Milan Dudic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 605

[2013] AATA 605

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1647
Re	Milan Dudic
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	28 August 2013
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

SOCIAL SECURITY – disability support pension – overseas applicant – anxiety and depression – impairment rating – condition not fully treated and stabilised – decision under review affirmed

Social Security Act 1991, ss 27(3), (4B), 94(1), (3A), (3B), (3C), (5)

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant, Milan Dudic seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) dated 4 March 2013 which affirmed a decision of Centrelink to cancel his disability support pension (DSP) on the basis that he did not meet the qualification criteria under the new legislation.

2. Mr Dudic was first granted DSP from around 2 November 2011. He currently resides in Thailand and regularly returned to Australia in order to meet the then current legislative requirements for portability of DSP. After requesting unlimited/extended portability on 31 July 2012, a review of his qualification for DSP was undertaken by Centrelink. After receipt of medical evidence and a job capacity assessment (JCA), a Centrelink officer decided on 29 October 2012 that Mr Dudic was not qualified for DSP under the provisions of the new legislation. His DSP was cancelled effective from 27 December 2012. This decision was affirmed by an authorised review officer (ARO) on 23 January 2013.

3. The hearing was conducted by way of telephone link to Mr Dudic in Thailand. Mr Dudic appeared on his own behalf. Mr Brian Sparkes appeared on behalf of the Secretary. The T Documents were tendered in evidence pursuant to the provisions of section 35 of the Administrative Appeals Tribunal Act 1975. The Tribunal also had before it written submissions received from Mr Dudic, a psychological test report dated 15 August 2012 prepared by a clinical psychologist, medical report from Dr Metinee Tubtinthai from the Bangna General Hospital in Bangkok and the Secretary’s Statement of Facts and Contentions.

   APPLICANT'S CASE

4. In his application to the Tribunal Mr Dudic acknowledges that his application must be decided in accordance with the applicable legislation and understands that "there must be strict guidelines to prevent people from manipulating the system for personal benefit." He acknowledges that his circumstances and disability do not "tick all the boxes" but requests that the Tribunal "reconsider on the grounds of extenuating circumstances". Mr Dudic refers to his conditions of fear, anxiety and depression, panic attacks, paranoia and suicidal thoughts which he lives with on a daily basis but states that he wants to get better and return to a normal standard of living and is prepared to undergo necessary treatment to improve his conditions. Mr Dudic contends that treatment in Australia is detrimental to his health as he has fears for his personal safety and prefers to receive treatment in Thailand which "provides an environment which allows for a reduced level of stress and anxiety and ability to still receive the necessary treatment but at my own expense”. He proposes to continue to receive treatment under the supervision of Dr Metinee Tubtimthai. Mr Dudic goes on to state that he would be prepared to return to Australia at his own expense on a six monthly basis for a thorough review of his conditions.

   RESPONDENTS CASE

5. The Secretary concedes that Mr Dudic satisfies a number of the qualification provisions for DSP, but contends that Mr Dudic's conditions do not attract the required impairment rating of 20 points and that he does not satisfy the new legislative provisions relating to "continuing inability to work".

6. It is submitted that re-assessments of qualification for DSP are now undertaken in accordance with the amended provisions of the legislation.

   THE LEGISLATION

7. The qualification provisions for DSP are contained in section 94 of the Social Security Act 1991 and particularly in subsection (1) which reads as follows:

   “(1)     A person is qualified for disability support pension if:

   (a)       the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)       one of the following applies:

   (i)        the person has a continuing inability to work;

   (ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)       the person has turned 16; and

   (da)     in a case where the following apply:

   (i)        the person is under 35 years of age;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)      if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)       the person either:

   (i)        is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)       has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)      is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)      is not an Australian resident; and

   (B)      is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)     one of the following applies:

   (i)        the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)       the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27”.

8. The provisions with respect to "continuing inability to work are contained in subsection (2) which provides:

   “(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)     in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)       in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)       in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)       if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:    For work see subsection (5)”.

9. Also of relevance are subsection (3):

   “(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)       the availability to the person of a training activity; or

   (b)the availability to the person of work in the person’s locally accessible labour market.

   (3A)     If:

   (a)       a person is receiving disability support pension; and

   (b)       the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

   then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   Severe impairment

   (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   Example 1:      A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

   Example 2:      A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

   Example 3:      A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

   Active participation in a program of support

   (3C)     A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection”.

10. "Work" is defined in subsection (5) as:

    “work means work:

    (a)       that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)       that exists in Australia, even if not within the person’s locally accessible labour market”.

11. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 include the Rules for applying the Impairment Tables and Tables 1 to 15.

12. It is conceded by the Secretary and the Tribunal accepts that Mr Dudic satisfies the provisions of subsections (a), (d) and (e) of the qualification provisions set out in section 94 of the Act. The impairments identified in the Job Capacity Assessment Report of 14 September 2012 are psychiatric disorder, hernia and shoulder and upper arm disorder.

13. The requirements set out in subsection 94(1) are conjunctive meaning that all must be satisfied in order to qualify for DSP. Those provisions that remain in contention are the impairment rating of 20 points or more and a continuing inability to work. The Secretary further contends that Mr Dudic does not satisfy the provisions of subparagraph (1)(e) in that he was not an Australian resident at the relevant time.  That issue is not currently before the Tribunal for determination.

14. Amendments to the law relating to DSP were made on 3 September 2011 which affected any claims or reviews of entitlement for DSP made on or after 1 January 2012. The effect of the amendments is set out in the decision of the SSAT and does not need to be repeated here.

15. Subsection 3 of section 27 of the Act provides that a person’s qualification for DSP is to be assessed in accordance with the Instrument in force under section 26 on the day an assessment notice was given. Subsection 4B further provides that on a review of a determination made by the Secretary of the cancellation or suspension of payments, the AAT must apply the instrument in force under section 26 on the day the assessment notice was given.

16. One of the significant changes to the law was the requirement for a continuing inability to work (CITW). As from 1 September 2011 a person without a severe impairment (20 points from a single impairment table – subsection 94(3B) of the Act) must have actively participated in a program of support.

    IMPAIRMENT RATING

17. The application provisions for the Impairment Tables state in clause 6 of Part 2 that an impairment rating can only be assigned if the person's condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.

18. The example given is a condition that may last for more than two years but if the impairment resulting from the condition is likely to improve or cease within two years, an impairment rating under the Tables cannot be assigned to the impairment.

19. A condition is assessed as permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated, has been fully stabilised and is more likely than not, in light of available evidence to persist for more than two years. (Clause 6(4)).

20. Subclause 6(5) provides that in determining whether a condition has been fully diagnosed consideration is to be given to corroborating evidence and what treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years.

21. Subclause 6(6) sets out the considerations for assessment as to whether a condition is fully stabilised namely:  whether the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvements to a level enabling the person to undertake work in the next two years; or the person has not undertaken reasonable treatment for the condition and either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected even if the person undertakes reasonable treatment or there is a medical or other compelling reason for the person not to undertake reasonable treatment. Reasonable treatment is defined in subsection (7).  Subsection (8) provides that the presence of the diagnosed condition does not necessarily mean that there will be an impairment rating assigned.

22. The applicant’s two conditions will be separately considered under the following headings.

    ABDOMINAL MUSCLE SPASM

23. In the medical report which accompanied Mr Dudic’s claim for DSP Dr Zallmann described the diagnosis as "abdominal muscle spasms prec. by lifting''.  At the date of his report in September 2011, Dr Zallmann stated that there was no current treatment and the past treatment had consisted of Botox. Any future or planned treatment was not specifically identified. He stated that the impact of the condition on ability to function was expected to persist for more than 24 months and within that period, the doctor opined that the effect of the condition on Mr Dudic's ability to function was expected to "fluctuate".

24. On the basis of this evidence the Tribunal is not satisfied that this condition is permanent.  There is little if any evidence that the condition has been fully diagnosed and treated or persuasive evidence that any impairment is more likely than not to persist for a period of greater than two years.

    ANXIETY AND DEPRESSION

25. This condition was diagnosed by Mr Dudic’s treating psychiatrist, Dr Metinee Tubtimthai and confirmed in a letter addressed to Centrelink dated 22 May 2012.  In that letter Dr Tubtinthai stated that Mr Dudic consulted her with signs and symptoms of paranoid schizophrenia.  She described “tense fear and anxiety” and that he was currently receiving treatment from her which she suggested should continue “for a while". In a letter dated 5 June 2012 addressed to Centrelink, Dr Tubtimthai states that Mr Dudic is still suffering fear and distress and requires medication and support and he is under her care. She recommended that he not travel.

26. Dr Zallmann identified Mr Dudic's condition of anxiety in the September DSP medical report. He stated that there had been no current or past treatment and future planned treatment consisted of counselling. He described the duration of the current impact of the condition as uncertain. The Job Capacity Assessment Report completed in September 2012 refers to a medical report completed by Dr Tubtimthai  dated 21 August 2012. This report advised that Mr Dudic commenced counselling and taking multiple medications in July/August 2012 which was expected to continue for at least a year. The report concluded that the current impact of the condition on Mr Dudic's ability to function was expected to persist for between two and five years and that within the next five years the effect of the condition is expected to improve.  It was also indicated on a medical certificate completed by Dr H Tockman that the condition was temporary and likely to show considerable improvement within two years.

27. The decision to cancel Mr Dudic's DSP was made on 29 October 2012 which means that the two year period with respect to permanency of the condition, must be assessed from that time.

28. In a letter from Dr Tubtimthai dated 29 January 2013 she states that she has been treating Mr Dudic for a period of six months and although he seems a little better, he still suffers from anxiety and depression some days. Dr Tubtimthai stated that she expected to be treating Mr Dudic for the next two years when he should be fit for work.

29. In Dr Zallmann’s report of 18 December 2012 he stated that Mr Dudic had not completed his treatment and that his response to treatment was “sub optimal". He was uncertain as to Mr Dudic’s compliance with recommended treatment and stated that he had not seen him since March 2012.  In Dr Tubtimthai’s medical report completed in August 2012 she states that within the next five years his condition is expected to improve and if fully treated “he will be healed".

30. The job capacity assessor considered that Mr Dudic's psychiatric disorder was permanent and fully diagnosed but did not find that it had been treated and stabilised. The assessor noted that Mr Dudic was only recently diagnosed and only recently commenced treatment which was expected to improve his functionality.

31. I am not satisfied on the basis of the available evidence that Mr Dudic’s psychiatric condition is permanent within the meaning of the legislation. Whilst the condition was fully diagnosed by an appropriately qualified medical practitioner in May 2012, at the time of the decision in October 2012, the evidence was that it was likely that there would be improvement with treatment within the next two years.  There is insufficient evidence upon which a finding can be made on the balance of probabilities that in October 2012, Mr Dudic’s condition was fully treated and fully stabilised.

32. For these reasons I consider that the decision under review which found that in October 2012 Mr Dudic's recently diagnosed psychiatric condition was not fully treated or stabilised was correct.

33. I have given careful consideration to the material before me and also taken account of Mr Dudic's oral evidence at the hearing before the Tribunal.  I accept that Mr Dudic still suffers from anxiety and depression which impacts on his day-to-day functioning. I have no reason to doubt his evidence that life for him at present is difficult, that he has minimal contact with other people and really only enjoys the company of a single friend who he is able to trust. I accept that he is currently unable to work and is short of finances. In addition to his stated fear of returning to Australia, Mr Dudic is financially unable to do so and does not consider that he would benefit from receiving medical treatment in Australia. It is Mr Dudic’s intention to continue his treatment with Dr Tubtimthai and it is hoped that with ongoing treatment, which includes prescribed medication, there will be a marked improvement in his mental health.

34. My decision however, must be made in accordance with the applicable legislation taking account of the medical and other reports tendered in evidence. On the basis of my findings as outlined above, I determine to affirm the decision under review and dismiss the appeal. The legislation does not afford me any discretion to do otherwise.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated :   28 August 2013

Date(s) of hearing	25 July 2013
Applicant	In person by telephone link
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch