Nash and Secretary, Department of Social Services (Social services second review)
[2017] AATA 635
•9 May 2017
Nash and Secretary, Department of Social Services (Social services second review) [2017] AATA 635 (9 May 2017)
Division:GENERAL DIVISION
File Number: 2016/2592
Re:Alexander Nash
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:9 May 2017
Place:Brisbane
The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether mental health condition fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 80, 118CASES
Aziz and Secretary, Department of Social Services [2016] AATA 588
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Conaghan and Secretary, Department of Social Services [2017] AATA 64
Fanning and Secretary, Department of Social Services [2014] AATA 447
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
9 May 2017
INTRODUCTION
Mr Nash has been a recipient of the Disability Support Pension (“DSP”) since 2010 for autism.[1] However, on 11 November 2015, after a medical review, Mr Nash’s DSP was cancelled by the Department of Human Services (“Centrelink”) due to a change in the assessment level of Mr Nash’s impairment.[2]
[1] Exhibit 3, Secretary’s Statement of Facts and Contentions, para 4.1.
[2] Exhibit 1, T Documents, T14, page 165, Letter from Centrelink to Mr Nash dated 11 November 2015.
Claim History
Mr Nash sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[3] The subsequent review by the ARO was unsuccessful on the grounds that Mr Nash did not have an impairment rating of at least 20 points.[4]
[3] Exhibit 1, T Documents, T16, pages 168-169, Letter from Mr Nash’s representative appealing decision dated 20
November 2015.
[4] Exhibit 1, T Documents, T17, pages 170-173, Decision of ARO dated 8 January 2016.
Mr Nash lodged an application for review with the Social Services and Child Support Division (“SSCSD”) on 21 January 2016.[5] The SSCSD rejected Mr Nash’s claim and affirmed the ARO’s decision on 6 April 2016.[6]
[5] Exhibit 1, T Documents, T19, pages 177-179, Letter from Centrelink to Mr Nash re: Application for Review of
Decision by the AAT 16 February 2016.
[6] Exhibit 1, T Documents, T2, pages 16-20, SSCSD’s Decision and Reasons for Decision dated 6 April 2016.
Mr Nash has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-15, Mr Nash’s Application for Review dated 13 May 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Nash must have a physical, intellectual or psychiatric impairment;
(b)Mr Nash’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Nash must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[9]
[9] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Nash must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 11 November 2015 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Nash’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[10]
DID MR NASH HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S AT THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
[11] Determination, s 3.
Mr Nash’s medical conditions
Mr Nash was diagnosed with Asperger’s Syndrome in 1997 when he was 7 years old.[12]
[12]Exhibit 1, T Documents, T11, page 147, Program of Support and Medical Review Disability Support Pension form prepared by Dr M Alinia dated 16 April 2015.
Since that time Mr Nash has undertaken pharmacological and clinical treatment.
A medical review for DSP was conducted in April 2015 by Dr M Alinia, General Practitioner. Dr Alinia reported that:[13]
(a)Mr Nash suffers from Autistic Spectrum Disorder (“ASD”), Severe Anxiety and Obsessive Compulsive Disorder (“OCD”);
(b)Mr Nash was not currently having any treatment;
(c)Mr Nash’s cognitive function is behind his age;
(d)Anger and anxiety affect his ability to function;
(e)Mr Nash’s ASD condition is expected to persist for more than 24 months and the effect this condition will have on his ability to function in the next 2 years is expected to remain unchanged;
(f)Mr Nash’s Severe Anxiety condition is expected to persist for more than 24 months and the effect this condition will have on his ability to function in the next 2 years is uncertain.
[13] Exhibit 1, T Documents, T11, pages 145-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
Dr Alinia provided additional medical evidence on 12 June 2015 and reported that:[14]
(a)Mr Nash can study and it was anticipated that he should be able to work 15 hours or more within 24 months;
(b)Mr Nash’s anger issues had settled; and
(c)Mr Nash had had no psychiatry involvement or issues for some years.
[14] Exhibit 1, T Documents, T12, pages 155-157, Additional Medical Evidence for Disability Support Pension record
form prepared by Dr M Alinia dated 12 June 2015.
A Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Nash on 12 June 2015 by a Registered Psychologist and a Registered Occupational Therapist.[15] The JCA concluded that Mr Nash’s ASD and anxiety and depression conditions were fully diagnosed, fully treated and fully stabilised. The JCA reported that, compared to several years ago, Mr Nash has gradually been “able to decrease impacts on function” possibly due to “gradual exposure, practice or maturation”. The JCA noted that at the time of the JCA Mr Nash was living with a partner and he was studying nursing and that past pharmacotherapy and psychotherapy treatments have assisted Mr Nash to manage his anxiety and anger symptoms.
[15] Exhibit 1, T Documents, T13, pages 158-164, JCA Report dated 6 August 2015.
Subsequent to the JCA assessment, in September 2015, Mr Nash’s relationship with his girlfriend of 5 years, Jessica Christie, ended. Ms Christie was also studying nursing with Mr Nash. Ms Christie declared that to help Mr Nash with his anxiety and awkwardness at University she arranged to be in the same classes and groups for assessment.[16] Dr Alinia reported on 18 November 2015, 7 days after Mr Nash’s DSP had been cancelled, that as a result of the breakdown in his relationship Mr Nash:[17]
(a)suffered an episode of depression;
(b)was unable to continue his studies;
(c)had been unable to leave the house; and
(d)was moving to his parents’ house for support.
[16] Exhibit 1, T Documents, T1, page 15, Statutory Declaration of Jessica Christie dated 3 March 2016.
[17] Exhibit 1, T Documents, T15, page 167, Letter from Dr Alinia dated 18 November 2015.
Mr Nash’s mother confirmed Dr Alinia’s November 2015 report.[18]
[18] Exhibit 1, T Documents, T16, page 169, Letter from Mrs Nash dated 20 November 2016
A further JCA was not conducted prior to the cancellation of Mr Nash’s DSP.
In or about early 2016, Mr Nash was referred to Dr Salvatore Catania, Psychiatrist. Dr Salvatore reports in May 2016 that in addition to ASD, Mr Nash presents with severe OCD. Dr Catania also reported that Mr Nash suffers from severe social anxiety.[19]
[19] Exhibit 3, Secretary’s Statement of Facts and Contentions, Annexure A Report of Dr Catania
dated 27 May 2016.
Dr Catania says the ending of Mr Nash’s relationship with Ms Christie in September 2015 caused a significant deterioration in his mood with ongoing suicidal ideation and caused him to cease his nursing degree studies only months from completion. Dr Catania recommended pharmacological and psychological treatment.
In June 2016, Dr Alinia referred Mr Nash to Ms Haynes, Psychologist.[20]
[20] Letter from Dr Alinia to Ms Haynes dated 7 June 2016.
In January 2017, Dr Catania reported that:[21]
(a)Mr Nash was not responding as well as he had hoped to the pharmacological treatment he prescribed in April 2016 and that his OCD and social anxiety remained quite prominent; and
(b)in his opinion, Mr Nash’s ability to function will still be impaired by social anxiety and OCD after a further 2 years of treatment
[21]Exhibit 3, Secretary’s Statement of Facts and Contentions, Annexure E Report of Dr Catania dated 10 January 2017.
Conclusion on Impairment
The Secretary accepts that Mr Nash suffers from an Impairment for the purposes of section 94(1)(a) as at the Qualification Date.[22]
[22] Exhibit 3, Secretary’s Statement of Facts and Contentions, para 5.8.
In light of the above medical evidence, I find that at the Qualification Date Mr Nash suffered from ASD, for the purposes of the Act and that the requirement in section 94(1)(a) has been met. I consider the anxiety, OCD and depression conditions later in this decision.
DO MR NASH’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[23] They are function based[24] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[25]
[23] Determination, s 4(2) and 5(2)(a).
[24] Determination, s 5(2)(b) and (c).
[25] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[26]
(a)Mr Nash’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[26] Determination, see s 6(3).
Mr Nash’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[27]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
[27] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated,[28] the following must be considered:[29]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[28] For the purposes of ss 6(4)(a) and (b) of the Determination.
[29] Determination, see s 6(5).
A condition is fully stabilised[30] if:[31]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[32]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[30] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[31] Determination, see s 6(6).
[32] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
ASD IMPAIRMENT
Is Mr Nash’s ASD impairment permanent and likely to persist for at least 2 years?
Mr Nash’s ASD was diagnosed by a Paediatrician in 1997 and in 2004, he commenced clinical treatment for this condition with Dr Isabelle Henault, Clinical Psychiatrist.[33]
[33]Exhibit 1, T Documents, T 11, pages 147-149, Program of Support and Medical Review Disability Support Pension form prepared by Dr M Alinia dated 16 April 2015.
I am satisfied on the evidence that Mr ASD’s was fully diagnosed.
Mr Nash has previously been treated with Dexamphetamine (an antidepressant) and Paediatric and Clinical Psychiatry consultation.[34]
[34]Exhibit 1, T Documents, T 11, page 148, Program of Support and Medical Review Disability Support Pension form prepared by Dr M Alinia dated 16 April 2015
Dr Alinia reported that Mr Nash’s ASD condition is expected to persist for more than 24 months and the effect this condition will have on his ability to function in the next 2 years is expected to remain unchanged.[35]
[35] Exhibit 1, T Documents, T11, pages 137-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
In June 2016 Dr Catania reported that Mr Nash’s ASD condition is expected to persist for more than 24 months.[36]
[36] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016.
The Secretary does not dispute that at the Qualification Date, Mr Nash’s ASD Impairment was fully diagnosed, fully treated and fully stabilised.
I am satisfied that Mr Nash’s ASD Impairment is permanent and an Impairment Rating can be assigned.
USING THE IMPAIRMENT TABLES
I have to assess the level of impact of Mr Nash’s ASD Impairment against the descriptors[37] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[38]
[37] Determination, see ss 3 and 5(3).
[38] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person.[39]
[39] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[40]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[40] Determination, see s 7.
I must not take into account the following information in applying the Tables:[41]
(a)symptoms reported by Mr Nash in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Nash’s local community.
[41] Determination, see s 8.
Which Tables are appropriate are determined by:[42]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[42] Determination, see s 10(1).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[43]
[43] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[44]
[44] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[45]
[45] Determination, see s 11(5).
ASD Impairment Relevant Impairment Table and Impairment Rating
Table 7 of the Determination, which deals with Brain Function, is the relevant Table.
The introduction to Table 7 provides that:
·Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·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;
oa report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);
oresults of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));
oresults of cognitive function assessments.
·The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For neurological or cognitive 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.
·A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.
·Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9 unless the person has an additional condition affecting neurological or cognitive function.
Evidence Identifying the Loss of Function
The JCA conducted in June 2015 reported as follows:[46]
Mr Nash reports he spends his day doing face to face university and study at home (currently studying third year full time Bachelor of Nursing); denies issues with study, no learning support required; denies issues with memory, problem solving, comprehension (currently studying), visuo-spatial skills (able to plan a journey to a new destination); can concentrate to study for 2-3 hours; can plan a birthday celebration, pay bills on time; difficulties making big decisions e.g. procrastinates and often relies on others to make decisions for him - no difficulties with everyday decision making (e.g. choosing clothes, food, what to do with his day); has self-awareness (confirmed by girlfriend).
The Assessor contacted Dr Alinia on 12.06.2015 to clarify the discrepancy between the previous Job Capacity Assessment report of 2012 and current presentation. Dr Alinia cites: Infrequent visits: anger issues have settled; can study/do his university Nursing placements.
…
Mr Nash reports feeling nervous; avoids social interaction; does not like to go out, including shopping; lives with his girlfriend; he is not frequently angry but it quick to escalate when angry (verbal only), but denies impacts on interpersonal relationships, gets on well with his parents, siblings, and girlfriend.
[46] Exhibit 1, T Documents, T13, pages 159 and 161, Job Capacity Assessment report dated 6 August 2015.
The difficulty with assessing the impact of the ASD Impairment on Mr Nash’s ability to function at the Qualification Date is due to the fact that between the time of Dr Alinia’s June 2015 report and the JCA assessment in June 2015, and the Qualification Date, a significant event occurred in Mr Nash’s life which is said to have had a major impact on his medical conditions and ability to function.
Centrelink was not aware of this situation at the time Mr Nash’s DSP was cancelled.
Counsel for Mr Nash submitted that this event caused a significant deterioration in Mr Nash’s ability to function which is confirmed by the subsequent medical reports of Dr Catania and Ms Haynes.
Ms Nash, Mr Nash’s mother, is his primary carer. Ms Nash provided a statutory declaration in which she explained that Mr Nash requires a high level of support and provided the following information about Mr Nash’s difficulties and the type of support required at the time of the breakdown in his relationship:[47]
[47]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure F, Statutory Declaration of Ms Lynnette Nash dated 11 January 2017.
·Hyper-sensitivity - Alex will not touch things that other people touch. He will avoid shaking someone's hand. If patting an animal, he will do this with the back of his hand not his palm. Alex does not like the feel of things touching his body or when he touches things. Alex will back away from a hug and does not like to be touched by me or anybody. Alex does not like. noise especially in confined places and if he does go to _the movies he wears ear plugs
·Physical and emotional agitation - Alex gets cranky and agitated when in situations with lots of people such as in shopping centers. Alex constantly shakes his legs when in unfamiliar or uncomfortable situations. When sitting at the table for dinner Alex will nervously fiddle with things such as the cutlery or a sauce bottle or will spin his plate. Alex becomes extremely agitated if I give a time to do something and I am running late, Alex will often then refuse to participate.
·Alex is unable to establish a regular sleep pattern
·Alex is unable to use public transport - Just before I moved Alex back home I asked him to get a train to Elimbah and I would pick him up from the railway station, it was a fiveminute walk from where he was living. I let him know what time to catch the train, what time to start to walk to the station and what platform he need to be on to catch the train. This he managed, but he did not get off the train at Elimbah. As mobile coverage is really bad here by the time I got through to him he was just pulling into Landsborough this was six stops from where Alex boarded the train. Alex only needed to go two stops he stayed on the train and only got off at Landsborough because I told him to, he would have just stayed on that train as he was oblivious as to his location. I had to drive 26 kilometres to collect him. He was unable to get his way back.
·Alex misinterprets voice tone and body language. This makes it difficult for him to interact with others. He can think I am upset with him when I am simply asking him to complete a task. Alex will often smile or smirk at or in inappropriate situations. Alex has only one friend that he sees once every 4 or 5 weeks, and only because this friend is always the one to instigate the contact. In the few brief periods Alex has been employed, generally as a result of my or another family friend's efforts, the employment has fallen through, due to Alex's inability to understand his work colleagues' intentions. For example, during his apprenticeship, Alex was unable to understand when work colleagues were serious or just having a lend of him which resulted in him doing silly jobs instead of doing what he was meant to be doing.
…
9From mid-October 2015, after Alex and Jess separated, Alex became withdrawn, unmotivated and his behavioural symptoms (examples of which I have listed above in paragraph 9), worsened significantly.
10I know that relationship break-ups are hard for everybody, but for Alex, because of his conditions, the impact of his break-up from Jessica was significant. His behaviours were, and remain, exacerbated due to the significant change in his life; the change to his daily schedule and routine.
11I was very concerned about Alex's wellbeing at the time of his break-up, and my concerns about Alex have since been validated by Alex's psychiatrist, Dr Catania.
12I checked on Alex via text and phone call on a daily basis and when Alex did not respond to me, I went to his flat to be with him and support him, in person. I needed to do this at least every second day.
13Due to my full-time work commitments, I couldn't do more, though to me it was clear that Alex needed more help.
14Each day Alex would wake late, doze and tell me that he was simply waiting to sleep again.
15Alex did not leave his flat without my presence and assistance. He was not able to feed or clothe himself, nor attend appointments with Centrelink or his doctors, without my assistance.
16I made sure Alex had food to eat and cook, by assisting him with his grocery shopping late at night to avoid crowds at stand-alone grocery stores, and also by delivering food to him.
17Given Alex's sensory limitations, I had to obtain, and return if need be, appropriate clothes for him. It generally takes me three trips to a clothing store to come away with one item with which Alex is comfortable.
18As much as possible, I tried to encourage Alex to maintain regular sleep patterns, and care for his health by taking his medication.
19Alex did not open or collect his mail. I therefore opened Alex's mail and corresponded with third parties as need be on Alex's behalf. Online systems have made things easier for me to continue to act in this way on Alex's behalf.
20Alex also needed my assistance to manage his personal hygiene. I washed his clothes, bedding and towels and reminded him to take a shower on a daily basis (Alex is sensitive to deodorants and prefers and chooses not to use them. Alex tends to get very hot and sweats a lot.).
21I also maintained the cleanliness of his apartment, including cleaning the dishes, bathroom and floors as Alex was not able to do this himself. The hyper-sensory symptoms and germ phobia prevent Alex from a lot of cleaning chores. He has tried to use gloves on lots of occasions and this always results in a breakout of a dermatitis rash on his hands. Alex uses disposable picnic plates and cutlery to avoid cleaning.
22I tried to encourage Alex to complete his University degree, but I realized that he was unable to meet the requirements of the degree, including completing a work-placement and university assignments, without the dedicated and intense support that he had been receiving from his ex-girlfriend,, Jessica, who was completing the same degree.
23Examples of the support Jessica provided to Alex throughout his degree include ensuring that she was a part of any group to which Alex was assigned so that she could support him in group work. Jessica would also scribe all of Alex's assignments for him as he was unable to put the information in his mind into sentences to make up an assignment
The Secretary did not dispute Ms Nash’s evidence. However, while I do not doubt Ms Nash’s account, her evidence is not the corroborating evidence required by Table 7.
In June 2015, prior to the ending of Mr Nash’s relationship with Ms Christie, the JCA assigned an Impairment Rating of 10 points for Mr Nash’s ASD Impairment on the grounds that Mr Nash occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).[48] I am unsure how this Impairment Rating was allocated given the report of Dr Alinia in June 2015 stated that Mr Nash’s anger issues had settled.[49]
[48] Exhibit 1, T Documents, T13, page 161, Job Capacity Assessment report dated 6 August 2015.
[49] Exhibit 1, T Documents, T12, pages 155-157, Additional Medical Evidence for Disability Support Pension record
form prepared by Dr M Alinia dated 12 June 2015.
The Applicant and the Respondent also submit that an appropriate Impairment Rating for Mr Nash’s ASD Impairment is 10 points.[50]
[50] Exhibit 2, Applicant’s Statement of Issues, Facts and Contentions dated 24 February 2017, para 22; Exhibit 3,
Secretary’s Statement of Facts and Contentions, dated 15 June 2016, para 5.20.
Table 7 provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment such as from a treating doctor or specialist health practitioner.
The only other medical evidence available prior to the Qualification Date is more than 10 years old.
However, there is medical evidence available from Dr Alinia, Dr Catania and Ms Haynes, after the Qualification Date.
Dr Alinia reported on 18 November 2015 that as a result of the breakdown in his relationship Mr Nash suffered “a recent episode of depression… [and] [i]t has affected his function and he has not been able to continue his studies. He has all clinical signs of depression and has not left the house since… and he is moving to his parents’ house for support”.[51]
[51] Exhibit 1, T Documents, T15, page 167, Letter from Dr Alinia dated 18 November 2015.
I do not consider this report to be of any assistance to an assessment of an Impairment Rating in relation to the ASD Impairment. This report concerns Mr Nash’s depression having an impact on function.
In January 2017 Dr Catania assessed Mr Nash’s ASD Impairment to be having a moderate functional impact.[52]
[52] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure E Report of Dr Catania
dated dated 10 January 2017.
The question remains whether that evidence can be taken into consideration. The Secretary submits that little or no weight can be given to this evidence and relies on Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (“Bobera”), Conaghan and Secretary, Department of Social Services [2017] AATA 64 (“Conaghan”) and Aziz and Secretary, Department of Social Services [2016] AATA 588 (“Aziz”).[53]
[53] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, para 5.19.
The Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) said:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
(my emphasis)
In Conaghan, Senior Member Sosso pointed out that:
29. The central question to be determined by the Tribunal is whether the Applicant was qualified for the DSP on the day it was cancelled, namely 15 April 2015 and not at the time the cancellation decision was reviewed by the Tribunal – Freeman v Secretary, Department of Social Security [1988] FCA 294; 19 FCR 342 at [9] per Davies J.
30. In reaching its decision the Tribunal is not limited to considering the material that was presented to the original decision-maker. The Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 – Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.
31. In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.
(my emphasis)
In Aziz, Senior Member N Isenberg said (at [21]):
The Respondent reiterated that the Applicant’s condition is to be assessed solely as at the date of cancellation, 11 May 2015: Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. That approach was recently affirmed in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 in which Besanko J approved previous observations by the Tribunal that medical reports produced after the relevant period are only relevant to the extent they are referrable to the person’s condition during the relevant period. Whilst in relation to the deterioration of conditions since an application for DSP, the principle, in my view, is equally applicable when considering the cancellation of a DSP.
(my emphasis)
The Applicant accepts that his condition must be assessed at the date of cancellation, that being 11 November 2015. However, the Applicant submitted in supplementary submissions dated 5 April 2017 that:
· by that date, the Applicant was experiencing significant functional impairments related to his psychological conditions, impairments which had worsened as a result of the Applicant's separation from his long-term girlfriend in September 2015 (that is, prior to the date of cancellation);
· the Applicant's condition has remained largely unchanged since the time of his separation from his long-term girlfriend, which preceded the cancellation decision. His case is not one of condition progression after the relevant period, which would warrant the making of a fresh DSP application;
· the cases of Aziz and Conaghan, at paragraphs 21 and 31, respectively, refer to Gallacher v Secretary, Department of Social Services [2015] FCA 1123 in which it was confirmed that the Tribunal is at liberty to admit into evidence and consider medical reports prepared after the relevant period provided that those reports relate to the Applicant's medical condition at the time the original cancellation decision was made;
· further, at paragraph 30 of Conaghan, the Tribunal noted it 'is not limited to considering the material that was presented to the original decision-maker. The Tribunal's mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.";
· the medical reports by Dr Catania and Ms Haynes on which the Applicant relies are referrable to the Applicant's condition at the date of the cancellation. Both Dr Catania and Ms Haynes, as specialists in psychological conditions, are qualified to provide opinions based on histories provided by a patient, in relation to when a psychological condition worsened. It is therefore appropriate for the Tribunal to consider this expert evidence in assessing the Applicant's condition at the date of the cancellation.
(emphasis removed)
Dr Catania says that because he did not assess Mr Nash until April 2016 he is “only able to comment on Mr Nash’s diagnoses” as at the Qualification Date “from the history provided by Mr Nash and his mother”.[54] Dr Catania sets out in his reports what Mr Nash reported to him regarding his social anxiety, depression and OCD symptoms. Dr Catania also reports that the ASD likely “exacerbated the symptoms of the other conditions”.[55]
[54] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016.
[55] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016.
Ms Haynes reported in August 2016 that because she did not assess Mr Nash until June 2016 she was “unable to comment on [Mr Nash’s] condition as at November 2105 (sic)”.[56] Ms Haynes then sets out what Mr Nash reported to her regarding his social anxiety, depression and OCD symptoms.
[56]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure D Report of Ms Haynes dated 4 August 2016.
The difficulty I have with relying on this evidence as corroborating medical evidence of Mr Nash’s impairment at the Qualification Date is that both Dr Catania and Ms Haynes did not assess Mr Nash until at least 4 months afterwards. Further Ms Haynes says she cannot comment and Dr Catania says he can only make comments based on self-report by Mr Nash and his mother. While I acknowledge that both Dr Catania and Ms Haynes are specialists and are able to provide an opinion that, if the self-reporting of symptoms was correct, the symptoms would indicate a certain diagnosis, it is not a definitive diagnosis of an earlier point in time. I also note that Table 7 specifically sets out that a person’s presentation on the day of the assessment should not be relied upon in isolation.
While I would have no difficulty accepting Dr Catania’s assessment of a moderate impairment rating as at January 2017,[57] I am not satisfied that this can be taken into account in making an assessment of Mr Nash’s condition as at the Qualification Date, some 13 to 14 months earlier.
[57]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure E Report of Dr Catania dated 10 January 2017.
The question remains regarding the rating that can be applied?
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities resulting from a neurological or cognitive condition. The Descriptors for a 10 point rating are:
1The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a)memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b)attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c)problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d)planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e)decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f)comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g)visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h)behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(i)self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
The corroborating medical evidence provided in April 2015 by Dr Alinia was that Mr Nash’s:[58]
(a)cognitive function is behind his age; and
(b)anger and anxiety symptoms were affecting his ability to function;
[58] Exhibit 1, T Documents, T11, pages 145-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
The corroborating medical evidence provided by Dr Alinia in June 2015 was that:[59]
(a)Mr Nash can study and it was anticipated that he should be able to work 15 hours or more within 24 months;
(b)Mr Nash’s anger issues had settled; and
(c)Mr Nash had had no psychiatry involvement or issues for some years.
[59] Exhibit 1, T Documents, T12, pages 155-157, Additional Medical Evidence for Disability Support Pension record
form prepared by Dr M Alinia dated 12 June 2015.
It is apparent from these two reports that Mr Nash’s condition can fluctuate. Table 7 provides that 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.
Given that Mr Nash has had some issues with anger (behavioural regulation), I find that an appropriate impairment of 10 points can be assigned to Mr Nash’s ASD Impairment.
ANXIETY IMPAIRMENT
Is Mr Nash’s anxiety impairment permanent and likely to persist for at least 2 years?
Anxiety is a mental health condition which falls within Table 5 of the Determination.
Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, 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). Without such evidence, no Impairment Rating can be assigned.
In 2005 Dr Henault, Clinical Psychologist, referred to Mr Nash having periods “where he feels more anxious” and needing to “discuss strategies to reduce anxiety”.[60] However, this was 10 years before the Qualification Date.
[60] Exhibit 1, T Documents, T7, page 113, Report of Dr Henault dated 8 February 2005.
Dr Alinia reported in April 2015 and June 2015 that Mr Nash was still suffering from anxiety.[61] Dr Alinia reported that the anxiety was diagnosed in 2003 and subsequently confirmed by Dr Henault in 2004 and was expected to last for more than 24 months.
[61] Exhibit 1, T Documents, T11, page 150, Program of Support and Medical Review Disability Support Pension
prepared by Dr Alinia dated 16 April 2015; T12, page 157, Additional Medical Evidence for Disability Support Pension record form prepared by Dr Alinia dated 12 June 2015
The JCA concluded that Mr Nash’s anxiety was permanent.[62] The ARO also found that Mr Nash suffered from anxiety and that it was a permanent impairment.[63]
[62] Exhibit 1, T Documents, T13, page 159, JCA Report dated 6 August 2015
[63] Exhibit 1, T Documents, T17, page 172, Decision of ARO dated 8 January 2016
Dr Catania reported in May 2016 that in addition to ASD, Mr Nash presents with severe social anxiety (“SAD”). However, in May 2016, Dr Catania noted that neither Mr Nash nor his mother was aware of his receiving any form of treatment for his severe social anxiety throughout his life.[64]
[64] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure A Report of Dr Catania
dated 27 May 2016.
Dr Catania confirmed in a July 2016 report that to the best knowledge of Mr Nash and his mother, this conditions had not been previously diagnosed although the symptoms had been present for many years.[65] Dr Catania said that because he did not assess Mr Nash until April 2016 he could not comment on Mr Nash’s diagnoses as at the Qualification Date but that the history provided by Mr Nash and his mother supports a conclusion that he would have been suffering from SAD as at the Qualification Date.
[65] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016
Mr Nash was referred to Ms Haynes, Psychologist, in June 2016, for the treatment of his OCD and SAD.[66] Ms Haynes reported in August 2016 that because she did not assess Mr Nash until June 2016 she cannot comment on Mr Nash’s diagnoses as at the Qualification Date but that the history provided by Mr Nash’s mother supports a conclusion that he would have been suffering from SAD at the Qualification Date.[67]
[66] Letter from Dr Alinia to Ms Haynes dated 7 June 2016; Exhibit 3, Secretary’s Statement of Facts and Contentions,
dated 15 June 2016, Annexure C Report of Dr Catania dated 28 July 2016.
[67]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure D Report of Ms Haynes dated 4 August 2016.
The Secretary submits that Mr Nash’s anxiety condition cannot be considered permanent because the evidence of Dr Catania and Ms Haynes concerns Mr Nash’s condition 4 to 6 months after the Qualification Date.[68]
[68] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, para 5.21.
In April 2015 Dr Alinia listed anxiety as one of Mr Nash’s conditions, however, she also reported that he was receiving no treatment for the anxiety at that time and that whatever treatment may be required was dependent upon its severity.[69]
[69] Exhibit 1, T Documents, T11, pages 145-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
In June 2015 Dr Alinia reported that:[70]
(a)Mr Nash can study and it was anticipated that he should be able to work 15 hours or more within 24 months;
(b)Mr Nash’s anger issues had settled; and
(c)Mr Nash had had no psychiatry involvement or issues for some years.
[70] Exhibit 1, T Documents, T12, pages 155-157, Additional Medical Evidence for Disability Support Pension record
form prepared by Dr M Alinia dated 12 June 2015.
I am satisfied that Mr Nash suffered from anxiety in 2005 as noted by Dr Henault. However, I am unable to find that Mr Nash was fully diagnosed with anxiety at the Qualification Date. It is also clear from the reports of Dr Catania and Ms Haynes that this condition had not been treated and could not have been fully stabilised at the Qualification Date. While I note that Drs Catania and Haynes consider this condition is unlikely to improve over the next two years even with reasonable treatment this view was one formed in April and August 2016, not as at the Qualification Date. There is no evidence available of the likely effect treatment may have had as at the Qualification Date. In Fanning and Secretary, Department of Social Services [2014] AATA 447 Deputy President Handley said (at [33]) that “evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.[71]
OCD IMPAIRMENT
[71] Approved by Besanko J, in Gallacher and Secretary, Department of Social Services [2015] FCA 1123.
Is Mr Nash’s OCD impairment permanent and likely to persist for at least 2 years?
OCD is a mental health condition which falls within Table 5 of the Determination.
Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, 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). Without such evidence, no Impairment Rating can be assigned.
In February 2005 Dr Henault reported that some of Mr Nash’s behaviour “can lead to” OCD, “especially if he is in a period where he feels more anxious”.[72]
[72] Exhibit 1, T Documents, T7, page 113, Report of Dr Henault dated 8 February 2005.
In April 2015 Ms Nash reported that Mr Nash suffered from OCD.[73] However, this condition was not listed in Dr Alinia’s attached report.[74] Dr Alinia did not report any OCD condition in her June 2015 report, either.[75]
[73] Exhibit 1, T Documents, T11, page 139, Program of Support and Medical Review Disability Support Pension
prepared by Ms Nash dated 16 April 2015.
[74] Exhibit 1, T Documents, T11, pages 145-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
[75] Exhibit 1, T Documents, T12, pages 155-157, Additional Medical Evidence for Disability Support Pension record
form prepared by Dr M Alinia dated 12 June 2015.
Dr Catania reported in May 2016 that in addition to ASD, Mr Nash presents with severe OCD. However, in May 2016, Dr Catania notes that neither Mr Nash nor his mother was aware of his receiving any form of treatment for his severe OCD this throughout his life.[76]
[76] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure A Report of Dr Catania
dated 27 May 2016.
Dr Catania confirmed in a July 2016 report that to the best knowledge of Mr Nash and his mother, these conditions had not been previously diagnosed although the symptoms had been present for many years.[77] Dr Catania says that because he did not assess Mr Nash until April 2016 he cannot comment on Mr Nash’s diagnoses as at the Qualification Date but that the history provided by Mr Nash and his mother supports that a conclusion that he would have been suffering from OCD as at the Qualification Date.
[77] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016
Dr Catania also reported that in relation to Mr Nash’s OCD, he is unable to confirm whether they will persist for more than 24 months, as this is dependent upon Mr Nash’s response to treatment. However, Dr Catania says that because of Mr Nash’s ASD condition, progress is likely to take a long time and therefore they are likely to last longer than 24 months.[78]
[78] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016
Mr Nash was referred to Ms Haynes, Psychologist, in June 2016, for the treatment of his OCD and SAD.[79]
[79] Letter from Dr Alinia to Ms Haynes dated 7 June 2016; Exhibit 3, Secretary’s Statement of Facts and
Contentions, dated 15 June 2016, Annexure C Report of Dr Catania dated 28 July 2016.
Ms Haynes reported in August 2016 that because she did not assess Mr Nash until June 2016 she cannot comment on Mr Nash’s diagnoses as at the Qualification Date but that the history provided by Mr Nash’s mother supports that a conclusion that he would have been suffering from OCD as at the Qualification Date. Ms Haynes says that because of Mr Nash’s ASD condition, progress is likely to take a long time and therefore these conditions are likely to take longer than 24 months to treat and stabilise.[80]
[80]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure D Report of Ms Haynes dated 4 August 2016.
I am not satisfied that Mr Nash was fully diagnosed with OCD at the Qualification Date. Therefore, this condition cannot be considered to be permanent at the Qualification Date and no impairment rating can be assigned.
DEPRESSION IMPAIRMENT
Is Mr Nash’s depression impairment permanent and likely to persist for at least 2 years?
Depression is a mental health condition which falls within Table 5 of the Determination.
Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, 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). Without such evidence, no Impairment Rating can be assigned.
In December 2012 Mr Nash provided a report for DSP review and reported that he was susceptible to depression.[81]
[81] Exhibit 1, T Documents, T9, pages 116-131, Medical Report for DSP Review by Dr Bennett dated 11 December
2012.
In April 2015 Dr Alinia listed depression as one of Mr Nash’s conditions, however, she also reported that he was receiving no treatment at that time and that what treatment may be required was dependent upon its severity.[82]
[82] Exhibit 1, T Documents, T11, pages 145-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
In June 2015 Dr Alinia reported that:[83]
(a)Mr Nash can study and it was anticipated that he should be able to work 15 hours or more within 24 months;
(b)Mr Nash’s anger issues had settled; and
(c)Mr Nash had had no psychiatry involvement or issues for some years.
[83] Exhibit 1, T Documents, T12, pages 155-157, Additional Medical Evidence for Disability Support Pension record
form prepared by Dr M Alinia dated 12 June 2015.
Dr Alinia reported on 18 November 2015 that as a result of the breakdown in his relationship Mr Nash suffered “a recent episode of depression… [and] [i]t has affected his function and he has not been able to continue his studies. He has all clinical signs of depression and has not left the house since… and he is moving to his parents’ house for support”.[84]
[84] Exhibit 1, T Documents, T15, page 167, Letter from Dr Alinia dated 18 November 2015.
The JCA concluded that Mr Nash’s depression was permanent.[85] The ARO found that Mr Nash suffered from depression and that it was a permanent impairment.[86] It is not clear, from my reading of the medical evidence, how a finding that Mr Nash’s depression was a permanent condition was reached by the officers of the JCA and the ARO.
[85] Exhibit 1, T Documents, T13, page 159, JCA Report dated 6 August 2015.
[86] Exhibit 1, T Documents, T17, page 172, Decision of ARO dated 8 January 2016.
There is no diagnosis of this condition by a psychiatrist or clinical psychologist in November 2015.
Dr Catania reported in July 2016 that in addition to ASD, Mr Nash presented with mild depressive disorder and that the self-report history obtained from Mr Nash and his mother would support a finding that he was suffering from mild depressive disorder as at 11 November 2015.[87]
[87] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016.
Ms Haynes reported in August 2016 that because she did not assess Mr Nash until June 2016, she cannot comment on Mr Nash’s diagnoses as at the Qualification Date but that the history provided by Mr Nash’s mother supports that a conclusion that he would have been suffering from Mild Depressive Disorder as at the Qualification Date. [88]
[88]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure D Report of Ms Haynes dated 4 August 2016.
The Secretary submits that Mr Nash’s depression condition cannot be considered permanent because the evidence of Dr Catania and Ms Haynes concerns Mr Nash’s condition 4 to 6 months after the Qualification Date.[89]
[89] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, para 5.21.
While the assessments were made by Dr Catania and Ms Haynes 4 to 6 months after the Qualification Date, they confirm the depression diagnosis made by Dr Alinia in November 2015. The assessments differ markedly in terms of the severity of the condition (Dr Catania and Ms Haynes describe the condition as “mild”, whereas Dr Alinia describes a more severe depressive episode).
The next issue to be determined is whether or not Mr Nash’s depression impairment was fully treated and fully stabilised.
In August 2016 Ms Haynes said that there has been no treatment to date for this condition other than that being provided by Dr Catania and herself.[90]
[90]Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure D Report of Ms Haynes dated 4 August 2016.
In April 2015 Dr Alinia reported that Mr Nash’s depression was likely to persist for more than 24 months but that the impact on Mr Nash’s ability to function was uncertain.[91]
[91] Exhibit 1, T Documents, T11, pages 145-154, Program of Support and Medical Review Disability Support Pension
form prepared by Dr M Alinia dated 16 April 2015.
In determining whether Mr Nash’s depression condition has been fully treated,[92] the following must be considered:[93]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[92] For the purposes of ss 6(4)(a) and (b) of the Determination.
[93] Determination, see s 6(5).
A condition is fully stabilised[94] if:[95]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[96]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[94] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[95] Determination, see s 6(6).
[96] For reasonable treatment see s 6(7) of the Determination.
The Applicant’s counsel submitted that Mr Nash had not undertaken reasonable treatment for the condition, but that the condition was fully stabilised because significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment.[97] It is unclear who made the decision that reasonable treatment would not work.
[97] For reasonable treatment see s 6(7) of the Determination.
Ms Haynes reported that in her opinion that “the nature of his conditions are chronic and of significant severity” and predicts that more than 2 years of treatment will be required to improve symptomology. However, given that she describes Mr Nash’s depression as “mild”, it is unclear whether it is this condition or the SAD and OCD conditions that require more than 2 years of treatment.
Further, Dr Catania’s June 2016 report states that “Mr Nash has already made some progress into the treatment for his Mild Depressive Disorder and I do not expect this to persist for 2 years from the 11th November 2015”.[98]
[98] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 15 June 2016, Annexure C Report of Dr Catania
dated 28 July 2016
I find that the Depression Impairment, separately from the OCD and SAD conditions, cannot be said to have been fully treated and fully stabilised as at the Qualification Date. It has also not been fully diagnosed in relation to severity. Therefore, Mr Nash’s Depression condition is not permanent for the purpose of the Act and no impairment rating can be assigned.
CONCLUSION
As I have concluded that Mr Nash’s Impairment only attracts an Impairment Rating of 10 points during the Qualification Period it is unnecessary for me to consider whether Mr Nash had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
Mr Nash’s claim fails because he did not qualify for DSP as at the Qualification Date under s 94(1)(b). The decision under review is affirmed.
I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
........................[Sgd]................................................
Associate
Dated: 9 May 2017
Date of hearing: 4 April 2017 Counsel for the Applicant: Ms Kate Blackford-Slack Solicitor for the Applicant: Ms Andrea de Smidt Solicitors for the Applicant: Disability Law Queensland Advocate for the Respondent: Ms Chloe Sheptooha Solicitors for the Respondent: Clayton Utz
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