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

MXGY and Secretary, Department of Social Services (Social services second review) [2017] AATA 398 (30 March 2017)
Division:GENERAL DIVISION
File Number: 2016/3898
Re:MXGY
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Burke

Date:30 March 2017
Place:Melbourne

The decision under review is affirmed.
........................[sgd]................................................
Member Burke
CATCHWORDS – SOCIAL SECURITY – disability support pension – cancellation – whether qualified – epilepsy fully diagnosed, treated and stabilised – depression not fully diagnosed – whether impairment attracts rating of 20 points or more under impairment tables – 5 impairment points assigned for epilepsy – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; ss 63, 80 & 118(13)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paras 6(3)(a) & 6(4)
Social Security Act 1991; ss 26, 27(3) & 94(1)
Social Security and Other Legislation Amendment Act 2011
CASES
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180; [2013] AATA 558
REASONS FOR DECISION
Member Burke
INTRODUCTION

Centrelink cancelled MXGY’s disability support pension (DSP) on 18 March 2016 after a cancellation notice made pursuant to s 63 of the Social Security (Administration) Act 1999 (Administration Act) was issued on 20 February 2015 and a resultant Job Capacity Assessment (JCA) on 8 March 2016. Centrelink is the service provider for the Department of Social Services.
The application was heard on 27 February 2017. MXGY was self-represented and Mr Joshua Lessing, solicitor of Sparke Helmore Lawyers, appeared for the Respondent. The hearing was conducted via telephone.
THE ISSUE IN CONTENTION
The issue in contention is whether the decision to cancel MXGY’s DSP on 18 March 2016 was correct.
BACKGROUND
MXGY was diagnosed with Juvenile Myoclonic Epilepsy (JME) in his childhood, around October 2002. MXGY, who is now 28 years of age, was granted DSP in 2008 on the basis of his epilepsy.
On 8 March 2016 Centrelink had a JCA conducted on MXGY. The JCA report stated the epilepsy was fully diagnosed and treated but had still not fully stabilised and that his depression was not fully diagnosed, treated and stabilised. MXGY was assessed as having a work capacity, within two years (with intervention), of 15-22 hours per week, and 30+ hours per week in respect of fully diagnosed, treated and stabilised conditions only.
On 18 March 2016 Centrelink notified MXGY that his DSP had been cancelled because he did not have a rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
On 29 April 2016, on internal review, an Authorised Review Officer (ARO) affirmed the earlier Centrelink decision, finding that:
·MXGY’s epilepsy was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 15 – Functions of consciousness;
·MXGY’s depression had not been diagnosed by either a clinical psychologist or a psychiatrist and therefore could not be assigned an impairment rating;
·MXGY did not have a continuing inability to work at least 15 hours per week within the next two years or engage in a training activity that would prepare him for work within the next two years.
On 6 July 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO.
On 26 July 2016 MXGY lodged an application for second review of the AAT1 decision.
On 28 July 2016 MXGY sought an order staying the implementation of the cancellation of his DSP. On 19 August 2016 the Tribunal refused to grant that order.
On 13 February 2017 MXGY made an application for the hearing to be held in private. The Tribunal refused the application but provided the Applicant with a pseudonym (MXGY), in respect of his privacy concerns.
RELEVANT LEGISLATION AND ISSUES
MXGY received an “assessment notice” within the meaning of s 27(3) of the Social Security Act 1991 (SS Act) which initiated the review of his entitlement. The Tribunal must therefore apply the instrument in force under s 26 of the SS Act on 20 February 2015 when determining this application.
On 20 February 2015 changes effected by the Social Security and Other Legislation Amendment Act2011 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 had commenced. The Applicant’s qualification for DSP after it was cancelled must therefore be determined according to the Impairment Tables.
The power to cancel MXGY’s DSP is provided by s 80 of the Administration Act which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, “the Secretary is to determine that the payment is to be cancelled or suspended”.
The decision to cancel MXGY’s DSP is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such a decision takes effect “on the day on which it is made”.
It follows that in order to qualify for DSP, MXGY must satisfy the requirements of s 94 of the SS Act as at 18 March 2016, the date on which Centrelink cancelled his DSP (time of cancellation).
Section 94(1) of the SS Act relevantly provides that a person qualifies for DSP 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 as defined by the Act
…
It is agreed that, at the time of cancellation, MXGY suffered a medical condition, epilepsy, that caused impairment and he therefore satisfied s 94(1)(a) of the Act.
The Impairment Tables require that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; para 6(3)(a)
Paragraph 6(4) states that a condition is “permanent” if:
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
In addition, the introduction to Table 5 of the Impairment Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that 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)”.
The Secretary contends that, at the time of cancellation, MXGY’s depression had not been diagnosed by either a clinical psychologist or a psychiatrist and therefore could not be assigned an impairment rating under Impairment Table 5.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included two sets of documents provided pursuant to
s 37 of the Administrative Appeals Tribunal Act1975, referred to as the “T-documents” and the “Supplementary T-documents”. Medical documents lodged by both parties were also before the Tribunal. Additionally, MXGY gave oral evidence at the hearing and the Respondent cross-examined MXGY and made oral submissions to the issues outlined in its statements of facts, issues and contentions. Both parties also provided additional submissions after the hearing to clarify matters discussed and the Tribunal has considered these.
Does MXGY have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the SS Act provides that the first requirement to qualify for DSP is that a person suffers from an impairment.
There is no dispute between the parties that MXGY meets this requirement and that he is suffering from epilepsy and depression. Accordingly, the Tribunal finds that MXGY suffers from these conditions and meets the requirements of 94(1)(a) of the SS Act.
A report from Dr Peter Rowe of the Children’s Neuroscience Centre dated 28 August 2005 records that MXGY started having early morning myoclonic jerks about two years earlier, causing him to drop coffee cups and more violent episodes causing him to fall. His first generalised tonic-clonic seizure was in October 2002 and resulted in a brief hospital admission. MXGY responded well to medication and was seizure free since commencing on Epilim, but the dosage made him sleepy in the morning. It was explained to MXGY and his parents at the time he would require anticonvulsant medication for his entire life as JME is a lifelong condition.[2]
[2] T documents; T4 at 44
Dr Rowais, general practitioner, provided a medical report dated 8 August 2008 in support of MXGY’s application for DSP. It states that MXGY has the condition of chronic epilepsy (generalised tonic-clonic seizures), which were first diagnosed in 1994. This causes MXGY memory problems, concentration problems, somnolence, headaches and incontinence. This impacted on MXGY’s ability to function because of fits, concentration problems, memory, behaviour problems and slow responding. Dr Rowais also notes that MXGY has a mental illness, personality disorder, paranoid identity and bipolar 2 disorder, first diagnosed in 1990.[3]
[3] T documents; T6 at 51-57
A medical report from Dr Sam Law, Neurology Registrar at Western Health, dated 10 July 2015 states that MXGY “most likely suffers from juvenile myoclonic epilepsy” and “the other episodes of collapse with rapid recovery of consciousness are more likely to be vasovagal in nature. He is obviously also significantly depressed”.[4]
[4] T documents; T11 at 77-78
Dr Bruce Samuels provided a medical report in support of an application for mobility allowance dated 22 January 2014. It states that MXGY “Suffers from epilepsy since childhood” with “5 [attacks] per week”. He noted that MXGY was on a high dose of epilim, that he struggled to get up as a result of his medication and that his symptoms were variable causing difficulty in attending to study.[5]
[5] T documents; T10 at 75
Dr Samuels also provided his view on MXGY’s level of difficulty when undertaking certain activities and his level of ability in certain skills. He reported that:
·MXGY had no difficulty walking 400 metres, sitting in public transport, crossing streets and negotiating kerbs, negotiating steps in or out of public transport and negotiating a large flight of steps; and
·MXGY had full ability in personal survival skills, social skills, educational skills and recognition skills. [6]
[6] T documents; T10 at 74-75
A medical report from Catherine Ly, psychologist, of 29 June 2016 notes that MXGY is suffering a depressive disorder and his symptoms are moderate in range.[7]
Does MXGY have medical conditions that can be rated at 20 points or more under the Impairment Tables?
[7] Exhibit 1
Epilepsy
Section 94(1)(b) of the Act states that the second requirement to qualify for DSP is that a person’s impairments rate 20 points or more under the Impairment Tables.
Given MXGY’s accepted disability of epilepsy, Table 15 – Functions of Consciousness is the relevant impairment table and is addressed in the following paragraphs.
MXGY tendered documentation at the hearing[8] which outlined his belief that his condition should be rated at 30 points. He stated that: “… I believe a rating of 30 should be allocated. In regards to the determination of the stuttering being altered state of consciousness this should be taken into consideration…” and “… The AAT1 hearing referred to the “little seizures”, I cannot stress that these little seizures do involve loss of consciousness, altered state of consciousness.” I note that each impairment table clearly states “self-report of symptoms alone is insufficient” and “there must be corroborating evidence”.
[8] Exhibit 1
MXGY provided medical evidence from his current general practitioner, Dr Minh Nguyen-Ngoc, dated 22 July 2016, which concurs that MXGY should be allocated 30 points on Table 15.[9] This advice was provided after the relevant determination date of 18 March 2016 and did not contain any additional medical evidence on which the Tribunal can rely.
[9] Exhibit 1
At the hearing MXGY said that he has altered states of consciousness on most days as he suffers from various seizure types and conditions, including vertigo and photosensitivity, which have never been recognised by Centrelink. MXGY said that these seizures and conditions affect his ability to function and his cognitive ability has greatly deteriorated because of constant falls associated with these seizures.
MXGY’s statement contends there has been much confusion about the diagnoses of his conditions and that simple mistakes in filling in forms by doctors should not have led to a belief his condition is stable or that he has full ability. MXGY did not furnish any corroborating evidence that simple administrative errors had led to major errors in his case and there is no medical evidence on or before 18 March 2016 which can verify these assertions. Accordingly, the Tribunal cannot rely upon this evidence.
MXGY, at the hearing and in subsequent written submissions, stated that he suffers from multiple conditions such as chronic fatigue, vertigo/tinnitus and chronic gastritis with intestinal metaplasia. He also stated that he is unable to receive appropriate treatment for these conditions; and indeed his depression is caused by his intolerance to medication. Medical reports do confirm that MXGY has reported suffering numerous side-effects from prescribed medication for various conditions over the years; and that these side-effects have had a negative impact on his epilepsy. However, there is no corroborating evidence to demonstrate that these conditions have been fully diagnosed by an appropriately qualified practitioner, fully treated, fully stabilised; or that these conditions will persist for longer than two years. Therefore an impairment rating cannot be assigned to these conditions.
MXGY’s statement attests that “I have severe impairments I don’t go shopping; I don’t cook, wash or clean. Self-care is difficult most times, for example when I brush my teeth I sometimes feel like vomiting and that nauseating feeling can trigger seizures, I have had a lot of seizures when this happens I fall and hurt myself, in the same time I feel like gasping for air because my heart is beating hard. If I wash my face and I close my eyes to dry my face I will have a seizure, this happens if I am tired and if I don’t feel like I got enough sleep”.[10] At the hearing MXGY went to great lengths to explain how difficult and limiting his life is. He explained that he has accepted his disability, does not complain, and that he has been trying to address his illness to the best of his ability but is not able to perform daily living tasks.
[10] Exhibit 1
Under cross-examination, MXGY confirmed that he had travelled to Egypt on two occasions, in 2009 and 2014, and that, while his illness(es) persisted during those trips, he had coped. He explained that both trips were not holidays but were to visit family and assist a greatly distressed friend.
Under further cross-examination, MXGY stated that he is currently residing between his family home and that of friends. He also stated that he had previously sought to move into a rental property on his own but this did not last because of his illness. He said that while he was in the rental property he was not responsible for his own care but only went there to sleep. He asserted at length that he does not perform any functions of daily living for himself.
MXGY was adamant under cross-examination that at no time had he been a carer for his family and his stress was caused by his inability to care for his family. MXGY was taken to document T13, a medical report from Western Health dated 6 November 2015, which states: “He is currently on a disability support pension and is caring for his family at home. He appears to be under significant carer stress as he does not have any assistance looking after his family members”.[11] MXGY stated that this had been misinterpreted by the doctor and taken out of context.
[11] T documents: T13 at 83
MXGY did not tender any evidence in respect of having a current driver licence but at the hearing advised the Tribunal that his licence had been cancelled by Vic Roads on medical grounds. Under cross-examination, MXGY asserted that, once again, there had been confusion and misinterpretation of his having a driver’s license on 18 July 2016. The Respondent took MXGY to paragraph 32 of the AAT1 decision of 6 July 2016, where the Tribunal found that MXGY did hold a valid driver’s licence on 18 March 2016.
The Respondent tendered into evidence a claim form for the Pensioner Education Supplement that MXGY had submitted to Centrelink, seeking assistance with undertaking study from 3 March 2016 until the end of December 2016. MXGY said that despite his incapacity, he was trying to be independent by attempting to study and live independently. MXGY again asserted that matters were taken out of context when he had responded positively in various JCAs that “he was largely independent”.
Depression
While there is considerable reference to MXGY’s mental state and acknowledgement of his depression, there is no medical evidence that MXGY’s mental health condition has been diagnosed by a clinical psychologist or a psychiatrist.
MXGY had been referred to Catherine Ly, psychologist, and had been receiving counselling but this did not take place until after the date of cancellation and Ms Ly does not have the requisite qualifications needed to confirm an impairment rating. Under cross-examination, MXGY was asked about Ms Ly’s qualifications and he stated: “I went to a psychologist, I don’t know the difference between that and clinical” and that “I’ve been on a waiting list with hospital” to be linked with appropriate mental health care.
Findings
The Tribunal finds there is no evidence that MXGY’s mental condition was fully diagnosed by a clinical psychologist or psychiatrist and fully treated and stabilised as at the date of cancellation, 18 March 2016. It therefore cannot be rated under the Impairment Tables. However, the Tribunal notes that MXGY has not yet been assisted by the medical system in getting his mental illness diagnosed or appropriately treated. MXGY and the Respondent both refer to a decision of Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[12] which outlines that a diagnosis of a condition could be made after the qualifying period if there was evidence that a DSP claimant was suffering from the condition during the qualifying period. The Tribunal accepts that MXGY is suffering from a mental illness but there has been no diagnosis by a clinical psychologist or psychiatrist at any stage of his DSP application.
[12] (2013) 138 ALD 180; [2013] AATA 558
In assessing all the evidence before the Tribunal, a decision has to be reached about whether MXGY’s accepted diagnosis of epilepsy meets the required 20 points under Table 15 as at 18 March 2016. This would require MXGY to have “a severe functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.”

The medical evidence does not support a finding that, as at 18 March 2016, MXGY suffered from episodes of loss of consciousness occurring at least once a month or episodes of altered state of consciousness occurring at least once a week. MXGY has asserted as much; but the medical evidence does not support this assertion. Dr Law found: “His epilepsy is characterised by daily myoclonus, infrequent generalised tonic-seizures and drop attacks”. Therefore MXGY does not meet the requirements of 1(a)(ii) of the “20 points” descriptors in Table 15.
There is no supporting evidence to validate MXGY’s assertion that he is unable to perform most activities of daily living. Indeed the evidence presented was that MXGY had at numerous JCA’s attested he can live independently, he had travelled overseas for extended periods and had been living outside the family home. Therefore, MXGY does not meet the requirement found in 1(b) of the “20 points” descriptors in Table 15.
There is no supporting evidence to validate MXGY’s assertion he cannot obtain a driver’s licence. Again, evidence would suggest that at the time of cancellation MXGY had a valid driver’s licence. Therefore, MXGY does not meet requirement found in 1(c) of the “20 points” descriptors in Table 15.
There is no supporting evidence to validate MXGY’s assertion that he cannot attend work, education or training activities. Again, evidence would suggest at the time of cancellation of his DSP MXGY had applied for a pension education supplement to undertake an IT course. Therefore, MXGY does not meet the requirement found in 1(d) of the “20 points” descriptors in Table 15.
CONCLUSION
Having carefully considered all the evidence before the tribunal, I find that MXGY’s condition of epilepsy does not meet the required 20 points on the Impairment Tables. I find that his epilepsy should be assigned a rating of 5 points under Table 15. As MXGY does not meet the required 20 points, he does not satisfy section 94(1)(b) of the Act and therefore did not qualify for the DSP at the time of cancellation.
DECISION
The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member Burke

..........................[sgd]..............................................
Associate
Dated: 30 March 2017

Date of hearing: 27 February 2017

Date final submissions received: 16 March 2017

Applicant: Self-represented

Solicitors for the Respondent:
Mr Joshua Lessing

Sparke Helmore

[2017] AATA 398

30 March 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	27 February 2017
Date final submissions received:	16 March 2017
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Joshua Lessing Sparke Helmore