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

[2016] AATA 618

Murray; Secretary, Department of Social Services and (Social services second review) [2016] AATA 618 (19 August 2016)

Division	GENERAL DIVISION
File Number	2015/2122
Re	Secretary, Department of Social Services
APPLICANT
And	Stuart Murray
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	19 August 2016
Place	Melbourne

The Tribunal sets aside the decision under review and in substitution reinstates the reviewable decision, that as Mr Murray did not satisfy the requirements of s 94(1)(b) of the Social Security Act 1991 his disability support pension was correctly cancelled.

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Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, allowances, benefits – disability support pension – cancellation of pension following review of eligibility – Bipolar Disorder – not fully treated – Social Security Appeals Tribunal restored the DSP – Impairment Rating of 20 points required – condition not fully treated – decision set aside and Secretary’s decision restored

Legislation

Social Security Act 1991

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

REASONS FOR DECISION

Miss E A Shanahan, Member

19 August 2016

1. Mr Murray qualified for the disability support pension (DSP) on 23 November 2009 when he was assessed as having an Impairment Rating of 20 points under the then in force Impairment Tables for the psychiatric condition of Bipolar Disorder. On 8 August 2014 in accordance with s 63(2) of the Social Security Act 1991 (the Act) the Secretary, Department of Social Services (the Secretary) issued a notice in relation to reassessing Mr Murray’s qualification for the DSP. 

2. Following receipt of a report from the treating general practitioner and a job capacity assessment (JCA) undertaken by a social worker and a registered psychologist, an Impairment Rating of 10 points under Impairment Table 5 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) was recommended.  This rating was based on the documentation of Dr Andries Bast, the treating general practitioner and Mr Murray’s self-reported assessment of his functional status.  Mr Murray had not had any psychiatric or psychological review for a period of seven years.  Based on the recommendations following the JCA, Mr Murray’s DSP was cancelled on 27 November 2014.  

3. Mr Murray lodged an application with the former Social Security Appeals Tribunal (SSAT) for a review of the decision. A hearing was conducted on 24 March 2015. Mr Murray gave evidence by telephone as did his social worker, Ms Carmen, who had been assisting him.   Based on the information provided by Mr Murray and Ms Carmen indicating a very limited level of function, the SSAT determined that his impairment rating under Table 5 of the Impairment Tables was 20 points and set aside the decision under review. The SSAT remitted the matter to the Chief Executive of Centrelink for reconsideration on the basis that Mr Murray satisfied ss 94(1)(a), 94(1)(b) and 94(1)(c) of the Act and had done so since his DSP was cancelled.

4. On 30 April 2015 the Secretary lodged an application for review of the SSAT decision by the Administrative Appeals Tribunal (the AAT). At the hearing before the AAT on 25 July 2016, Mr Murray gave evidence by telephone as did Ms Carmen who continued to assist him.  Mr Murray had emailed the AAT on Sunday, 24 July to inform the Tribunal that neither he nor Ms Carmen would be appearing as they were both ill and unable to travel from Geelong to Melbourne.  The Tribunal Member did not receive this advice until after 9.00am on the day of the hearing.   It was determined somewhat reluctantly to conduct the hearing by telephone as opposed to an in-person hearing. 

5. The Secretary was represented by Mr James Henderson, a solicitor with the Department of Human Services. The Tribunal was provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T and ST-documents). 

   EVIDENCE BEFORE THE TRIBUNAL

   Mr Stuart Murray

6. In his evidence, Mr Murray confirmed that he had been diagnosed with Bipolar Disorder by the psychiatrist Dr van Ammers in 2007.  He said he had seen a psychologist at various times but did not ever complete a full course of psychological treatment as he could not afford the fees.  Since 2007 he has only been treated by his general practitioner and has been prescribed a variety of medications. He takes Epilim as he is opposed to the suggested treatment with Lithium and to ECT (Electroconvulsive therapy). He says his grandmother, now deceased, had side effects from this treatment and he fears the long term effects of ECT.

7. Since the cancellation of his DSP, Mr Murray has received Newstart allowance. As a result of the cancellation of DSP, Mr Murray can no longer afford the rent he was paying in a shared house. He has moved to Geelong and is living with his aged grandmother. 

8. Mr Murray believes he is stable and he does not want to alter his medication. He said he will only go back to a psychologist if forced to so, as he has found psychological treatment to be unhelpful.  He agrees that in 2007 he suffered a psychotic episode which he says lasted for a year.  During this acute psychotic period he was paranoid, suicidal and wanted to self-mutilate. Over the ensuing years he had felt the desire to self-mutilate on perhaps five to six occasions. 

9. When it was suggested by the Tribunal that these continuing symptoms meant that his Bipolar Disorder was not stabilised, he responded by saying that he had self-awareness and just wished to continue as he was as his condition was not debilitating.  As this point Ms Carmen asked Mr Murray if he had lost his chain of thought, to which he replied yes.

10. More recently, Mr Murray has advised that he suffers from migraines and has done so since the age of 13. He says he has learnt to live with it.  He felt the Epilim prescribed for his psychotic episodes was of benefit. He took Mersyndol when he had an attack of migraine. He retreats to a darkened room and sleeps until the episode resolves.  He had tried various ergot compounds and sandomigran, which he said were of no benefit. 

11. Mr Murray agreed that he had been working as an animator for a company called Galaxy Pop. After one month of work he developed marked anxiety, depression and an inability to concentrate. He had to stop work and then took two months to recover.  He believed if he could set his own hours he could do some work. He described his abilities as being able to work for 10 minutes and then rest for an hour before he again could again work for another 10 minute stretch.  On average he said he could work one hour per week.  Since shifting to Geelong he is doing some volunteer work for an independent company which involves home based activities on a computer.

12. In response to a question posed by Ms Carmen to the effect that Mr Murray believed he was now stable and in fact in the best health he had been for some time, he replied no one knows or understood what his condition was and he himself would rather take no medication.  He also stated that he had not told Dr van Ammers in 2007 or 2008 exactly how he felt, hence Dr van Ammers’ incorrect conclusion that he was then euthymic.

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

    Dr Edmond van Ammers, psychiatrist

13. Dr van Ammers provided several reports between October 2007 and March 2008.  Mr Murray had been attending the Barwon Community and Mental Health Service for a year at the time of the first report of 14 March 2008.  Dr van Ammers made a diagnosis of Bipolar Disorder following a manic episode Mr Murray had suffered but had settled spontaneously.  When he first presented to Barwon Health, Mr Murray was said to be morbidly depressed, suicidal and contemplating self-mutilation. 

14. Dr van Ammers reported that in the delusional stage Mr Murray said he had seen a higher and spiritual meaning in life and he was now on a quest to rediscover it.  Mr Murray was treated with high doses of Olanzapine, Sodium Valproate and Clonazepam.  After some months he was considered to be euthymic but still exhibited preoccupations with his delusional state and a desire to recapture the spirituality of his manic episode.

15. On 19 March 2008 Dr van Ammers completed the treating doctor’s report advising that the onset of Mr Murray’s Bipolar Disorder was in 2006. He also noted that while Mr Murray had improved, he still suffered from a lowered mood and lowered motivation.  He was certified as being likely to significantly improve in the following two years.  Dr van Ammers stated that Mr Murray was temporarily unfit for work or study for a period of three months. 

    Dr McKellar, general practitioner

16. On 10 December 2009 Dr McKellar provided a treating doctor’s medical report confirming the diagnosis of Bipolar Disorder with continuing symptoms of low mood and anxiety, described as being moderately severe.  The treatment was Epilim and the antidepressant Zoloft. Mr Murray had been seeing a mental health nurse regularly since October 2009.  The condition was considered likely to persist for more than 24 months. 

    Job Capacity Assessment, 17 December 2009

17. It would appear that based on Dr McKellar’s report and the assessment of a social worker, an impairment rating of 20 points for Bipolar Disorder was recommended and this was accepted. Mr Murray was considered to meet the eligibility requirements for the DSP.

    Dr Andries Bast, general practitioner

18. At the request of the Secretary, Dr Bast provided a medical review for the DSP confirming the original diagnosis and that current treatment was Epilim, 500 mg twice a day.  Despite this treatment Mr Murray was said to remain anxious, lethargic and unmotivated with poor concentration.  It was predicted that he would not improve in a period of 24 months. 

19. Mr Murray subsequently underwent another JCA conducted by a social worker and a registered psychologist who, based on the new Impairment Tables introduced in 2011, determined and recommended an impairment rating of 10 points for the bipolar affective disorder.  As a result, Mr Murray’s DSP was cancelled. 

20. Dr Bast was requested to comment, and confirmed his earlier opinions and recommended a rating for the Bipolar Disorder as 20 points. He also provided an Impairment Rating of 10 points for the migraine condition although this was the first time Dr Bast had referred to this condition.  Dr Bast regarded Mr Murray as having been stable on Epilim for many years and did not believe he should be forced to take other medications against his will. 

    Dr Graeme Symington, neurologist

21. Dr Symington had seen Mr Murray after he attended the Austin Hospital on 30 June 2015. A report had been provided to Dr Bast relating to Mr Murray’s migraine, from which he had suffered since the age of 13.  The migraine was associated with a visual aura followed by a fairly severe headache, which was said to be frontal and bi-temporal. There was a strong family history of migraine. 

22. On 30 June 2015 Mr Murray had attended the Austin Hospital as he had had several episodes of migraine lasting for hours, whereas his normal pattern was one episode every few months.  While Mr Murray thought his right arm was paralysed and numb, no physical abnormality was detected.  Dr Symington recorded that Mr Murray had been prescribed Epilim 500 mg twice daily but had himself halved the dose. 

23. As a precaution, Mr Murray underwent an MRI (magnetic resonance imaging) and an MRA (magnetic resonance angiogram) of his brain on 6 September 2015.  The angiogram was normal and some minor changes on the MRI were considered not to be of significance.

    Statutory Declarations by Mr Whitney Yip and Ms Anne Murray

24. It would appear that Mr Yip is a friend of Mr Murray.  He provided a Statutory Declaration stating that he had known Mr Murray for two years and was aware that he suffered from migraine attacks twice monthly. These impacted on his work, his social life and his cognitive and mobility function and therefore his ability to work full time.  Mr Murray’s mother, Anne Murray, also provided a Statutory Declaration regarding his migraine. 

    Dr Gregor Schutz, consultant psychiatrist

25. At the request of the Department of Human Services, Dr Schutz assessed Mr Murray on 31 August 2015.  Dr Schutz had been provided with the relevant medical reports of Doctors van Ammers, McKellar and Bast and the Departmental file relating to Mr Murray.  Dr Schutz provided a very detailed report and confirmed that the only treatment Mr Murray was receiving was sodium valproate (Epilim). Mr Murray denied ever having trialled lithium but thought he had taken sertraline at one point.  

26. Dr Schutz regarded Mr Murray as showing no progress over the past three to four years, having persistent severe depression, lethargy, an inability to get out of bed, feelings of anger and frustration and heightened anxiety.  Mr Murray also gave the history that he remained suicidal and continued to have thoughts of deliberately self-harming.  When very depressed his self-care reduced. He showered every two or three days and did not eat regularly.  His depressive cycles could last days to months.  Mr Murray denied paranoid thoughts and hallucinations. 

27. When not depressed, Mr Murray said he would get up before midday, shower, meditate, ride his bicycle, go to the gym and visit friends although he still had social anxiety.  His hobbies were playing video games and the piano.  There was past history of heavy alcohol intake in his mid-twenties.  In relation to his work capacity, Mr Murray said he could only work an average of one hour per week.

28. On mental state examination, Dr Schutz did not find any evidence of thought disorder, psychotic symptoms or lack of insight.  He noted good eye contact. Mr Murray expressed warmth and humour and did not appear depressed or anxious.  Dr Schutz addressed all of the documentary evidence with which he was provided and concluded that Mr Murray suffered from Bipolar Mood Disorder likely Type 1 with a differential diagnosis of Schizoaffective Disorder.  While manic symptoms had been well controlled with Valproate, there were still some hypomanic symptoms and prominent depression. At the time of examination Mr Murray was considered to be in a stable situation. 

29. As Mr Murray had not been seen by a psychiatrist for over seven years, Dr Schutz recommended that he receive structured treatment and attend a psychiatrist, as well as receive medication for his bipolar depression.  As this had never been treated except in the early stages, Mr Murray’s condition could not be considered fully treated and stabilised and an impairment rating was not attracted.

    RELEVANT LEGISLATION

30. The eligibility for the DSP is outlined in s 94 of the Act.  This states:

    94Qualification for disability support pension

    (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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...

    SUBMISSIONS

31. Mr Henderson identified the issue before the Tribunal as being:

    ·Whether Mr Murray qualified for the DSP on the date of cancellation on 27 November 2014.

    Mr Henderson submitted that on that date Mr Murray did not meet the requirements of ss 94(1)(b) or 94(1)(c). In particular he did not attract an impairment rating of 20 points under the Impairment Tables as required as his medical condition of Bipolar Disorder was not fully treated and stabilised. Mr Henderson referred to the fact that Mr Murray had no psychiatric review for seven years (although he regularly continued to report depressive symptoms), that his medication had been directed only at the manic phase of his disease. Mr Henderson also referred to the fact that Mr Murray had not continued with medication directed at the depressive aspects of his disease, despite such treatment being reasonable treatment as defined in s 6(7) of the Act. 

32. Mr Henderson pointed out that in the early stages of his disease in 2006 and 2007 Mr Murray reportedly responded well to combined therapy with Olanzapine, valproate and Clonazepam.  Based on the evidence before the Tribunal it was said that Mr Murray appeared to have ceased all but the sodium valproate on his own initiative.

33. Mr Henderson contended that if the Tribunal did find that Mr Murray’s Bipolar Disorder  was fully diagnosed, treated and stabilised, then in accordance with Table 5 of the Impairment Tables this would attract, on the evidence then before the Department, an impairment rating of zero points, as it was at that time stated that his symptoms had all improved.  Certainly, at the time of the SSAT hearing on 24 March 2015, it had been determined that Mr Murray lived independently.

34. While Dr Bast considered that the current treatment of Epilim (valproate) was the only treatment that was required, Mr Henderson contended that a psychiatric opinion from a qualified psychiatrist as opposed to a general practitioner was required by the guidelines to the Act.  In addition, the Tables required corroborative evidence rather than relying on the symptomatology reported by the Applicant.

35. In relation to Mr Murray’s migraine, Mr Henderson submitted that this had not been a factor at the time of his application for the DSP in 2009, nor had it been fully diagnosed, treated and stabilised at the time of cancellation.  This was based on the evidence that Mr Murray underwent further investigation at the direction of Dr Symington, with Mr Murray’s brain MRI results being essentially normal and his MRA results definitely normal.  Dr Bast had not recorded migraines in any of his treating doctor reports although on the history provided by Mr Murray he had been diagnosed with this condition at 13 and on his own evidence admitted it did not impact significantly on his capacity for work. 

36. Mr Henderson contended that Mr Murray was a qualified animator and continued to work in this field although in a very limited manner.  However, he did report a period of 132 hours of work in a six week period in 2013.  Additionally, the JCA had estimated that Mr Murray had a baseline work capacity of 15 to 22 hours per week. 

37. Neither Mr Murray nor his advocate Ms Carmen made any formal submissions.  Mr Murray relied on his evidence and the documentation before the Tribunal.

    TRIBUNAL’S DELIBERATIONS

38. The Tribunal agrees that the only issue for determination is whether or not Mr Murray satisfied the eligibility requirements of the DSP on the date on which his pension was cancelled, that being 27 November 2014.

39. It is clear from the evidence that Mr Murray satisfies s 94(1)(a) of the Act in that he suffers from a Bipolar Disorder and has done so since 2006.  He also has the medical condition of migraine which has been present since the age of 13 and has not impacted on his capacity for study or work.  Any underlying brain abnormality has been excluded by MRI and MRA investigation.

40. Based on the evidence and expert reports, in particular those of Dr van Ammers, the psychiatrist who originally diagnosed the condition, it is clear that Bipolar Disorder is the correct diagnosis. It is also clear that initially, when Mr Murray accepted the need for triple medication aimed at controlling both the manic and depressive symptoms of his Bipolar Disorder, he improved markedly. 

41. It would appear that Mr Murray of his own volition ceased taking the anti-depressive medication although he continued with the Epilim. Epilim is primarily used for the control of epilepsy but also has a role in the control of mania, being a general cerebral depressant. According to the pharmaceutical data provided by the manufacturer, it may have an adverse effect on any depressive symptoms (MIMS). 

1. Mr Murray has expressed his wish to not take Clonazepam or lithium, the latter being the mainstay of treatment for Bipolar Disorder. He bases his decision on what he has been told were adverse reactions to lithium experienced by his grandmother.  He does not know what those adverse reactions were.  He has also refused ECT on the basis that the long term results of such treatment are unknown.  It would appear to the Tribunal that as a result of his decisions the manic aspects of his Bipolar Disorder have been well controlled but the depressive phase remains untreated and possibly accentuated by his current medication.   Dr Schutz of Medibank Health Solutions has provided a lengthy encompassing report with recommendations.

2. It was clear from Mr Murray’s evidence, albeit given by telephone, that his cognitive abilities remain impaired as his arguments were not entirely logical.  The Tribunal took note of the fact that he was suffering from an upper respiratory tract infection. The Tribunal also noted that while giving his evidence, Mr Murray did not cough at all but during pauses and when evidence was being given by Ms Carmen he could be heard coughing in the background. It is of particular significance that Mr Murray has not had any psychiatric review since 2008.  As he has now relocated to Geelong, he may well be able to make contact again with the Community and Mental Health Section of Barwon Health and resume treatment with a psychiatrist.

3. Based purely on the evidence, both oral and documentary, the Tribunal sets aside the decision under review on the basis that Mr Murray did not satisfy s 94(1)(b) of the Act at the date of cancellation of his DSP. His Bipolar Disorder was not fully treated and stabilised at that date. It is not necessary for the Tribunal to address his eligibility in relation to work capacity as per s 94(1)(c).

4. The decision under review is set aside and in substitution the reviewable decision is reinstated. Mr Murray should be encouraged to undergo further psychiatric treatment with a view to stabilisation of his symptomatology. 

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member

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Associate

Dated 19 August 2016

Date of hearing

25 July 2016

Advocate for the Applicant

Mr James Henderson, Department of

Human Services

Advocate for the Respondent

Ms B Carmen