Morrison and Secretary, Department of Social Services (Social services second review)

Morrison and Secretary, Department of Social Services (Social services second review) [2021] AATA 2499 (23 July 2021)
Division:GENERAL DIVISION
File Number: 2020/5517
Re:Stephen Morrison
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:23 July 2021
Place:Sydney

The AAT1 decision is set aside and the matter is remitted to the respondent with a finding that during the qualification period the applicant was severely impaired and had a continuing inability to work.
...........................SGD............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – Table 5 – mental health function – severe impairment required – whether supported by evidence – decision set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security Guide
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
23 July 2021
INTRODUCTION

In October 2020, the applicant was approved for a Disability Support Pension (‘DSP’) under the Social Security Act 1991 (Cth) (the ‘Social Security Act’). The Administrative Appeals Tribunal (‘the Tribunal’) must decide in these proceedings whether he was entitled to DSP from an earlier date, namely 12 September 2019.
BACKGROUND
The applicant was employed until 2019 as a priest by the Anglican Church. He told the Tribunal that he has an undergraduate degree in Applied Mathematics, a four year Bachelor of Divinity degree with Honours, and a Masters of Philosophy in Ancient History. He has been enrolled in a doctorate although his candidature is currently inactive. He said that he had been employed as a tutor at Sydney University, and had two books published on philosophical ethics. His PhD candidature at Macquarie University in Ancient History was suspended after a few years due to his personal circumstances. He is also a talented Jazz musician.
From 2017 his mental health deteriorated, and he started compulsive drinking. His marriage broke down and he was forced to leave the Church, ostensibly due to his heavy drinking. He attended Alcoholics Anonymous sporadically. In 2019 he moved in with his parents. His mother was seriously ill and he hoped that he could assist in her care and in maintenance around the family home. His relationship with his parents became strained. In 2020 he moved to rental accommodation.
On 12 September 2019, he applied for DSP.[1] He stated that he was suffering from: extreme anxiety; extreme depression; extreme PTSD; and extreme stress. He provided a medical report from his GP, Dr Thashangan Murugathas, and a counselling psychologist, Dr Geoffrey Glassock.[2]
[1] T7/112.
[2] T6/108; T8/126.
The psychologist who performed the initial assessment found that he was manifestly medically ineligible,[3] and on 25 October 2019, Centrelink rejected the application.[4] The applicant had not provided supporting material from either a psychiatrist or clinical psychologist, as required under the application process.
[3] T10/129.
[4] T11/131.
On 7 November 2019, the applicant provided a short letter from a psychiatrist, Dr Fraser, dated 6 November 2019,[5] and requested a review.[6] Centrelink then conducted a full Job Capacity Assessment (‘JCA’), taking into account Dr Fraser’s letter.[7]
[5] T12/133.
[6] T20/158.
[7] T12/135.
On 13 March 2020, the JCA found that he suffered from co-morbid panic disorder and major depressive disorder, and that the conditions were fully diagnosed, treated and stabilised. The JCA Report found that the applicant’s degree of functional impairment was mild, and that he had a baseline work capacity of 8-14 hours per week with a capacity for work within two years of 15-22 hours per week with disability specific intervention.[8] The JCA took into account Dr Fraser’s letter, as well as reports from Dr Glassock, Dr Dassanayake and a mental health plan dated 20 March 2019. The JCA made no finding with respect to post traumatic stress disorder (‘PTSD’), because Dr Fraser’s letter made no mention of it.
[8] T14/140.
On 5 May 2020, an Authorised Review Officer (‘ARO’) found that he was ineligible for DSP,[9] and on 13 August 2020, the Social Services and Child Support Division of the Tribunal (AAT1) affirmed this decision.
[9] T17/146.
On 11 September 2020, the applicant lodged an application seeking second tier review of the AAT1 decision.[10]
[10] T1/1.
THE HEARING
The Tribunal heard the application by videoconference on 28 April 2021. The applicant was unrepresented during the hearing. The applicant presented as highly intelligent, articulate, and somewhat embarrassed by his circumstances. At various times during the hearing he was emotionally distraught. He also indicated that he did not wish to read some of the papers and reports, which might be distressing or induce a panic attack.[11]
[11] T6/108; Transcript 28 April 2021, p 7.
ELIGIBILITY REQUIREMENTS
The basic requirement for DSP is a continuing inability to work (‘CITW’) because of a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables, which rate a person’s functional impairment as mild (5 points), moderate (10 points), severe (20 points) or extreme (30 points).[12]
[12] Social Security Act, subsection 94(1). The Impairment Tables (‘the Tables’) are provided under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’).
A person’s eligibility for DSP is assessed on the day on which the claim is made, and if the applicant is not then qualified, within the period of 13 weeks after the day on which the claim is made (‘the qualification period’): Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’), section 42.[13] In this matter, the qualification period is the 13 week period from 12 September 2019 to 12 December 2019. Reports prepared outside that time-frame are relevant only to cast light on the applicant’s medical condition during the qualification period. If a person becomes qualified after the conclusion of the qualification period, a fresh application will be required.[14]
13 See Schedule Two, subsection 4(2). Subsection 4(1) of Schedule 2 does not require that a person is qualified throughout that 13 week period, but that they become qualified within the qualification period: see Badita and Secretary, Department of Social Services (Social services second review) [2018] AATA 3884; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
14 Section 42 of the Administration Act invoking section 4(1) of Schedule 2, which is headed Start Day – Early claim.
In his application for DSP, the applicant stated that that he had not participated in a program of support (‘POS’).[15] He confirmed this at the hearing. This requirement had not ‘crossed his radar’.[16] Importantly, a person who has not actively participated in an approved program of support is ineligible for DSP unless they have at least a ‘severe’ impairment, attracting 20 points under a single Impairment Table.[17]
[15] T7/120.
[16] Transcript 28 April 2021, p 4.
[17] Social Security Act, subsection 94(2)(aa); 94(3B); 94(3C). The POS requirements are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘POS Determination’).
The application was based entirely on mental health considerations and therefore Table 5 (‘Mental Health Function’) is the only relevant Table. The requirements for severe impairment under this Table are set out below.
THE IMPAIRMENT TABLES
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Determination’), provides Impairment Tables for the assessment of work-related impairment for disability support pension, and sets out rules for applying the Tables. The purposes and design principles of the Tables are set out in subsection 5(2) of the Determination. Importantly, the Tables are function based rather than diagnosis based; describe functional activities, abilities, symptoms and limitations, and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
I turn then to consider Table 5 (Mental Health Function). The Determination provides:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Table 5 prescribes that there is a severe functional impact on activities involving mental health function (worth 20 points) if:
(1)       The person has severe difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)       social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
THE DISPOSITIONAL ISSUE
The question to determine by reference to Table 5 is whether the applicant was severely impaired during the qualification period. He would be severely impaired if he had severe difficulties with at least four of the following:
(a) self-care and independent living;
(b) social/recreational activities and travel;
(c) interpersonal relationships;
(d) concentration and task completion;
(e) behaviour, planning and decision-making;
(f) work/training capacity.
MEDICAL AND CORROBORATING EVIDENCE
The Tribunal has before it various medical reports relating to his mental health condition.
(a)Letter dated 10 September 2019 from Dr Jeffrey Glassock AM, FAPS, counselling psychologist[18]
[18] T6/108-111.
Dr Glassock administered the DASS 21 and rated his scores, for each of the dimensions of depression, anxiety and stress, as extremely severe or severe. He also noted that the applicant had been suicidal for some weeks before he sought help for his mental condition, although that was not currently a concern. He described the history of the applicant’s mental deterioration as having its origins in a workplace dispute. This resulted in a complete breakdown of his relationship with the Rector and ultimately the loss of his employment. During this period his relationship with his wife also deteriorated and she asked him to leave the home, which she continued to occupy. The applicant went to live with his parents but had difficulty communicating with them, especially his mother. The applicant completed a mood assessment program online and the results showed that his depression was severe. Dr Glassock concluded by saying that he did not see that the applicant could return to meaningful employment in the foreseeable future and believed that he was a worthy recipient of a disability support pension.
(b) Letter dated 6 November 2019 from Dr Raphael Fraser, FANZCP, psychiatrist
Dr Fraser stated that his purpose in writing the letter was to support the applicant’s appeal against the decision to refuse his application for DSP. He stated:
‘Stephen is a forty-five year old man presenting with co-morbid panic disorder and major depressive disorder. Despite stable antidepressant treatment for some years with an SSSRI at maximal dose he has residual depressive symptoms of such degree that they substantially impair his function: his difficulties with energy and motivation have led to him being unreliable with attendance (despite wanting to do the tutoring work organised) and losing students and work. The breakdown of his marriage, his loss of previous role with the church, and his return to somewhat of a child role in his parents’ home due to financial strain, are significant perpetuating factors.’ [19]
(c) Letter dated 25 August 2020 from Dr Adriana Glusman, clinical psychologist[20]
[19] T12/133.
[20] T18/151-153.
Dr Adriana Mossman Glusman reported that she had interviewed the applicant, and administered various tests. She stated that based on these measures and clinical interviews he had reported symptoms consistent with agoraphobia, major depressive disorder, with anxious distress panic attacks and alcohol use disorder. She said that he was experiencing symptoms consistent with a diagnosis of major depressive disorder, and that he was experiencing constant anxiety with frequent panic attacks making it very difficult to leave the house.
Dr Glusman said that his self-medicating with alcohol had a negative effect. He reported a long history of conflict with the Anglican Church (of which he was a Minister) and he sought to avoid any situation where he could come across anyone he knew. He had flashbacks, intrusive thoughts and significant rumination and hypervigilance.
(d) Letter dated 19 September 2020 from Dr Vincent Chang, GP[21]
[21] T19/154.
Dr Chang stated that he had been the applicant’s family doctor since November 2014, and that he was aware of his psychological symptoms, which he listed as agoraphobia, major depressive disorder with anxious distress, panic attacks, and alcohol use disorder.
Dr Chang’s diagnosis was based on various diagnostic assessments and from his clinical presentations (symptomology) and knowledge of his social, work, and familial circumstances, as well as formal diagnostic assessments. He had referred him for psychotherapy several times since May 2017.
(e) Letter dated 11 January 2021 from Dr Thashangan Murugathas, General Practitioner
Dr Murugathas stated that he saw the applicant face-to-face at his clinic in Springwood during August 2019 until March 2020, when he moved to his parents’ home due to deterioration in his mental health. He said that there were approximately eight consultations, and that Dr Jeffrey Glassock (psychologist) and Dr Fraser (psychiatrist) had reviewed the case. He was taking the duloexetine, mirtazapine and valium.
Dr Murugathas opined that the applicant presented with exacerbated symptoms including panic disorder and major depressive disorder and related symptoms of anxiety and inability to concentrate. These symptoms were present from September 2019 and continued beyond that date. He was facing significant impairment in his ability to work and attend to daily life activities due to his mental health conditions.
Dr Murugathas expressed the opinion that the applicant demonstrated a severe functional impact under Table 5.
(f) Letter dated 1 March 2021, from Mr David Morrison, the applicant’s father
The letter states:
‘To whom it may concern-
My son, Stephen David Morrison, had a meeting with Centrelink on March 10, 2020. As he was living with my wife and me at the time I was very aware of his general mental health and his ability to interact with others, among other things. He has asked me to write giving my observations of his life at the time in order to correct the misleading impression he believes he made in that interview.
He moved in with us in June 2019 and was here for about a year. For much of that time he was hard to live with when he appeared, but he had a bedroom and toilet downstairs away from the main living area. He also had his own outside door and was thus able to stay away from us as much as he wished. For much of the time he would stay in his room and he regularly refused to come upstairs for meals. He rarely came upstairs for a chat or to enjoy a television show with us. He would sometimes go out unobserved to buy take-away food, or he would exist on snacks he had stored in his room.
Stephen occasionally went out to meet people but it was obvious from what he said, and what some of them told us, that his socialising was very poor at the time. On occasions when he appeared upstairs he would often "pick a fight" verbally and it was clear that he was not his old normal self. Stephen can put on a smiling face and try to give the impression that all is well when it is obviously not. The fact that his marriage has broken up, at least for the time being, is an indication of his mental state over much of the past few years.
Twice last year the police were involved when Stephen threatened suicide. How serious he was in those threats is hard to determine, but they form another example of his state of mind while he was with us. We have only brief communication with him now and I can't comment confidently on his present day to day life. If these words of mine are of use in determining any matters concerning Stephen I would be glad to add to them if desired.’
(g) Medical and pharmaceutical records
The Tribunal also has the applicant’s entire medical file from the Springwood Central Medical Clinic, as well as his Medicare and PBS records.
The medical reports speak to the deterioration of his mental health over a period of two or three years, as does the letter from his father.
I note the reference by Dr Glassock to suicidal tendencies in late 2019. I also note the reference in his father’s letter to two attempts of self-harm involving the police. Although the question of attempted suicide was not explicitly raised in the oral testimony, the applicant mentioned ‘section 22’. (Section 22 of the Mental Health Act 2007 (NSW) allows the police to take a mentally ill person to a mental health facility.) The applicant said that he was detained twice in February 2020 and that the acute mental health team were involved. On the second occasion, in February 2020, he was taken to hospital but ‘talked his way out of it’.[22]
[22] Transcript 28 April 2021, 13-14.
FINDINGS

The Tribunal has a difficult task in assessing the applicant’s mental health over the 13 week qualifying period. Distinguishing between the various grades of impairment is not an exact science, but the Tribunal has the advantage of a broader range of medical evidence, including a complete history of his pharmaceutical prescriptions, and an overview of his medical history. Reports and incidents are relevant to the extent that they cast light on the applicant’s mental condition during the qualifying period.
I turn then to consider the various capacities referred to in Table 5.
In relation to (a) Self-care and independent living or (b) Social/recreational activities and travel, the applicant gave evidence that he was able to care for himself, shop, obtain takeaway food, find new premises (not once but twice), and travel to Noosa to see a friend. These were not easily accomplished. He said he had difficulty getting out of bed and on most days even showering was an achievement. I find that the applicant did experience difficulties, but not severe difficulties, in these areas.
In relation to (c) Interpersonal relationships, it appears that his relationship with close family members, including his wife, had disintegrated, that he had no social support or friends. He had very little social contact during this period. He did not appear to be capable of sustaining social relations with anybody. I note Dr Glassock’s description of him as being ‘intellectually high functioning with autistic tendencies making interpersonal relationships difficult’. [23]
[23] T6/109.
In relation to (d) concentration and task completion, it is clear that he had extreme difficulty in concentrating on any task. I note that he had withdrawn from his doctoral studies. Considering the heights of his achievement in former years, the decline of his mental health was profound. He discontinued his academic studies, and although he tried to continue tutoring, he always let his students down.[24] Although he tried to pick up some work as ride-share driver, his level of commitment was minimal and perfunctory.
[24] T18/152.
In relation to (e) behaviour, thoughts and conversation being disturbed, this is corroborated by his father. He was making very poor decisions, including not long after the end of the qualification period, self-harm and involuntary detention. His involuntary detention in February 2020 under the Mental Health Act 2007 (NSW) falls outside the qualification period but is not irrelevant in assessing the degree of his impairment over the previous months.
In relation to (f) work capacity, the JCA Report found that the applicant’s degree of functional impairment was mild, and that he had a baseline work capacity of 8-14 hours per week with a capacity for work within two years of 15-22 hours per week with disability specific intervention.[25] I think that this assessment is very optimistic in light of the medical evidence that has been provided to the Tribunal.
[25] T14/140. Above, para [7].
I find that in these four areas [(c) - (f)] the applicant did experience severe difficulties.
I am satisfied that during the qualification period in 2019, the applicant experienced severe difficulties with most of the areas listed in Table 5.
Having reviewed this source material, I am satisfied that at or during the qualification period the applicant experienced a major disintegration of mental health, resulting in a complete breakdown of the relationship with his parents, his wife, and his best friend. The extent to which this was caused by alcoholism, work related conflict, marital breakdown, the loss of family, or his place of authority in the Church, is unclear. But taken as a whole it amounted to a profound psychic shock with major psychological consequences. Overall, he suffered a loss of dignity, sense of self-worth and any sense of joy in living.
I am therefore satisfied that a finding of severe impairment (20 points) is justified in relation to Table 5.
ASSESSMENT OF WORK CAPACITY
I note that the AAT1 did not make an assessment of work capacity because the Tribunal found that his impairment did not attract 20 points.
I note the respondent’s contention that the applicant’s impairments from fully diagnosed, treated and stabilised conditions did not prevent him from working at least 15 hours per week or from undertaking a training activity.[26] I have indicated above that I consider this to be an optimistic assessment.
[26] Respondent’s Statement of Facts, Issues and Contentions, para [86].
The respondent suggested (referring to the report from Dr Glusman, dated 25 August 2020) that during the qualification period the applicant was continuing to advertise his tutoring services and seeking work, stating the applicant was taking on new students, if only to let them down.
The respondent also notes that the applicant reported that he had continued playing music gigs during the qualification period.[27]
[27] T14/141.
The extent to which the applicant played gigs during the qualification period was the subject of examination during the hearing. The respondent’s representative noted that the applicant’s website showed that three gigs were played at the Tokyo Bistro at the end of November, and an additional gig played at the Palais Royale in Katoomba in December 2019. The applicant said that none of those gigs happened. He said:
‘So the Tokyo Bistro gigs didn’t happen because I just couldn’t pull them off. The Blue Mountains gig didn’t happen because of bushfires.’ [28]
[28] Transcript 28 April 2021, p 16.
He was unsure when he played in the last gig, but probably in September 2019 and he played nothing in October.
This is a slender basis upon which to find that the applicant was capable of earning money from his musicianship during the qualification period. I consider that it points in the opposite direction.
I am satisfied that during the relevant period the applicant’s mental health impairment was of itself sufficient to prevent him from doing any work independently of a program of support within the next 2 years; and that the impairment was of itself sufficient to prevent him undertaking a training activity during the next 2 years.
DECISION
I therefore set aside the decision of the AAT1 and remit the matter to the respondent with a finding that during the qualification period the applicant was severely impaired and had a continuing inability to work.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of

..........................SGD..............................................
Associate
Dated: 23 July 2021

Date of hearing: 28 April 2021

Applicant: In person

Solicitors for the Respondent: Ms S Moulder, Services Australia

[2021] AATA 2499

23 July 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction

Date of hearing:	28 April 2021
Applicant:	In person
Solicitors for the Respondent:	Ms S Moulder, Services Australia