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

[2017] AATA 1138

Norman; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1138 (25 July 2017)

Division:GENERAL DIVISION

File Number(s):2016/1685      

Re:Secretary, Department of Social Services

APPLICANT

Keiran NormanAnd  

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:25 July 2017

Place:Sydney

The decision under review is set aside and in substitution it is decided that the respondent was not qualified for disability support pension as at the date of cancellation.

...............[sgd].........................................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – brain function – Attention Deficit Disorder – Asperger’s syndrome – whether respondent’s medical conditions rated at 20 points or more under Impairment Tables – whether respondent had a continuing inability to work – decision set aside and decision made in substitution 

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

25 July 2017

INTRODUCTION

1. The Secretary, Department of Social Services, has asked the Tribunal to review the decision made on 25 February 2016 by the Social Services and Child Support Division of this Tribunal (AAT1), which had the effect of reinstating Mr Norman’s (the respondent’s) disability support pension (DSP) which had been cancelled on 19 October 2015.

2. The legislative regime is set out in s 94 of the Social Security Act 1991 (Cth) (the Act).

3. It is not in dispute that:

   ·the respondent suffers from Attention Deficit Disorder (ADD) (also described as Attention Deficit Hyperactivity Disorder (ADHD) in some of the evidence) and Asperger’s Syndrome;

   ·the respondent received no treatment, including medications, from the end of 2009 until 2016 when he underwent eight counselling sessions with a psychologist;

   ·

   the respondent suffers an intellectual or psychiatric impairment, as required by

   
   

   s 94(1)(a) of the Act;

   ·both ADD and Asperger’s Syndrome have been fully diagnosed, treated and stabilised and therefore can be assigned a rating under the relevant Impairment Tables.[1]

   ·Table 7 – Brain Function – is the appropriate Impairment Table.

   THE ISSUES

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6.

   4.The issues before the Tribunal are:

   (a)whether the respondent’s impairments rate 20 points under Table 7 at the date of cancellation, 19 October 2015, and, if so,

   (b)whether he has a continuing inability to work.

   CONSIDERATION OF THE EVIDENCE AND FINDINGS

   5.Dr Donald, Senior Staff Specialist, Paediatrics and Child Health at The Maitland Hospital, treated the respondent from at least 2000, when he diagnosed the respondent with ADD, to 2009. Nine reports by Dr Donald from 2005 to 2009 were before the Tribunal. They demonstrate that the respondent attended high school throughout that period and was taking medication on school days and sometimes on weekends for his ADD to help his concentration. By mid-2006 it is clear that the respondent met the criteria for Asperger’s Syndrome. That was the opinion of both Dr Donald and a psychologist, Ms Matthews. During the period 2005 to 2009, the respondent completed years 8 to 12 of high school. Dr Donald’s reports show that the respondent was occasionally teased or bullied and was seeing Ms Matthews for help with his anger management in July 2006. At that time the school had arranged a safe haven during recess and lunchtime for the respondent and his friends who had similar problems where they were not bullied by other children and were supervised by a teacher. In June 2007, Dr Donald reported that the respondent “has been controlling his temper a little better lately, and so he is not being teased as much”. His success in English, Maths and Science varied throughout the period of the reports, but his strengths were Maths, Science and Computer Studies. In December 2008, Dr Donald commented that the respondent did virtually no school work on weekends and spent most of his evenings “on the computer chatting to ‘friends’ around the world”.

   6.When Dr Donald prepared the last report available to the Tribunal dated 21 May 2009, the respondent was half way through year 12. Dr Donald concluded:

   He is to remain on Concerta 54mg daily until he has completed his HSC. If after leaving school he feels he needs stimulant medication to help him with further study or in employment then I would be happy to see him once or twice more but it may be an appropriate time to consider referral to a psychiatrist for ongoing management of adult ADD.

   7.The respondent was not referred to a psychiatrist following that report. His mother told the Tribunal the following: she was unaware of that recommendation; recently she has been trying to find a psychiatrist to assist the respondent but has been unsuccessful because the psychiatrists have said that they are not taking further patients or do not treat the respondent’s age group. He is 26 years old.

   8.After that report, the next medical evidence is a medical report dated 31 March 2010 filled out by the respondent’s general practitioner, Dr Jongbloed, for the purpose of applying for DSP. He states that Dr Donald diagnosed the respondent’s condition in 2000. Dr Jongbloed reported the following current symptoms:

   ·difficulty concentration;

   ·difficulty completing tasks;

   ·difficulties with social interactions withdrawn in groups difficulty expressing self.

   9.The respondent was granted DSP with effect from 9 March 2010.

   10.After finishing school, the respondent completed a Certificate IV Lab Technician in 2011. He is two units short of being awarded a Diploma of Chemical Forensics, as the Tribunal understands it, which he studied in 2012. He was enrolled in a Bachelor of Biotechnology degree at university from 2013 to 2016 with limited success. He told the Tribunal that he has withdrawn from subjects in the last few years because of the stress of the cancellation of his DSP and the consequential processes, including this proceeding, and because of the death of a close friend of his mother.

   11.The internal review of the respondent’s qualification for DSP arose after he claimed Pensioner Education Supplement on 12 February 2015.

   12.On 3 May 2015, Dr Deep completed the medical section of the Program of Support and Medical Review Disability Support Pension form. Dr Deep noted that the respondent was “previously diagnosed with ADD” which impacted on concentration. In the part of the form the respondent filled out, he noted his disabilities were Asperger’s, ADHD and short sighted vision.

   13.On 8 September 2015, a Job Capacity Assessment report (JCA) was completed by a qualified speech pathologist, with contributions from a registered psychologist. The impairment caused by the respondent’s Asperger’s Syndrome was assessed as rating 10 points under Table 7.

   14.Following notification of the decision that he no longer qualified for DSP, the respondent submitted an unsigned and undated form, Part B – Doctor, of the Program of Support and Medical Review Disability Support Pension form on 2 November 2015. The condition with the most impact on the respondent was reported as “Aspers Syndrome” diagnosed in 2005. ADHD was reported to be a condition that was generally well managed and caused minimal impact. Based on the evidence of the respondent and his mother, the Tribunal finds that the report was prepared by Dr Innis, General Practitioner.

   15.On 5 November 2015, the respondent requested an internal review of the cancellation decision. The Authorised Review Officer spoke to the respondent and his mother on 18 November 2015 before affirming the cancellation decision.

   16.The respondent sought review by AAT1, which was successful. AAT1 found that the respondent’s impairment rating was 20 points under Table 7 for the functional impairment resulting from Asperger’s Syndrome.

   17.Since the commencement of these proceedings, the Secretary has obtained two reports from Dr Zsadanyi, Consultant Psychiatrist, dated 4 October 2016 and 23 March 2017, a Neuropsychological Assessment from Dr Levick, Clinical Neuropsychologist, dated 13 December 2016, and a JCA report dated 25 January 2017. The Secretary also filed and served Medicare and PBS records for the respondent from 1 January 2014 to 31 May 2016.

   18.The respondent has provided to the Tribunal a report of Dr Innis, General Practitioner, dated 17 October 2016.

   19.The Tribunal finds that the reports of Dr Zsadanyi and Dr Levick are comprehensive, considered, authoritative and persuasive. Dr Zsadanyi interviewed the respondent for two hours during the first consultation and for one hour, together with the respondent’s mother, during a second interview, after he had received Dr Levick’s Neuropsychological Assessment, which he had recommended. Dr Levick saw the respondent on two occasions: an initial session of three hours and a shorter second session. Dr Levick initially interviewed the respondent together with his mother.

   20.Dr Innis’s report is brief. In his opinion, the respondent suffers from moderate to severe mental and cognitive impairment. He specified in relation to mental impairment that the respondent has severe social impairment and moderate to severe impairment in relation to anxiety.  The Tribunal notes that if an impairment is considered to fall 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.

   21.Dr Innis asserted that Dr Zsadanyi had not assessed the respondent’s anxiety but acknowledged that the respondent may not have described his impairment in respect of anxiety without being specifically questioned.

   22.In relation to brain function, Dr Innis assessed the respondent as having moderate to severe cognitive impairment. He stated that the respondent is intelligent but listed difficulties including finding his way between particular places, comprehending information, depending on its content and format, filling in forms, and remembering dates or months. Dr Innis concurred with the recommendation Dr Zsadanyi made in his first report that a Neuropsychological Assessment be obtained.

   23.The Tribunal accepts Dr Zsadayni’s opinion that the respondent’s ADHD did not result in any functional impairment distinct from Asperger’s Sydnrome. Therefore, a single rating can be assigned to the impairment under a single Table (s 10(5) and (6) of the Impairment Tables). Dr Levick’s comments support that finding. Dr Levick commented that the respondent’s simple and complex measures of concentration were “at least average” and that “He appears to manage any residual attention difficulties associated with ADHD quite well”. Dr Levick also noted:

   Observation suggested some mild impulsivity consistent with his previous diagnosis of ADHD though I would not see this as a significant limiting factor in terms of his ability to cope with activities of daily living, including employment and education.

   24.For a condition to be assessed as rating at 20 points under Table 7, the person “needs frequent (at least once a day) assistance and supervision”. The evidence of the respondent and his mother at the Tribunal and the respondent’s report to Dr Zsadanyi is quite clear that the respondent does not require assistance and supervision at least once a day. His travel to and attendance at TAFE and University with no such supervision or assistance demonstrate that he does not satisfy that criterion. He therefore does not satisfy a rating of 20 points. Dr Innis’s evidence does not address this criterion.

   25.A rating of 10 points requires, first, that the person needs “occasional (less than once a day) assistance with day to day activities”. The Tribunal accepts that that is so. For example, the respondent requires assistance to learn a travel route between locations.

   26.As well as satisfying that criterion, a rating of 10 points requires that a person must have moderate difficulties in at least one of the following: memory, attention and concentration, problem solving, planning, decision making, comprehension, visuo-spatial function, behavioural difficulties or self awareness.

   27.It is unnecessary to list the criteria the respondent does not satisfy. The Tribunal accepts Dr Levick’s assessment that the respondent has moderate difficulties with self-awareness. Dr Levick considered that “self-awareness” was the “best fit” for social cognition, and that the respondent’s “level of impairment on the social cognition test results is moderate”. Dr Levick found it difficult to go beyond an assessment of moderate rating “even when I take into account (the respondent’s) self-report of social interaction difficulties”.

   28.Dr Levick commented:

   I think his problems with social interaction may be remediable to an extent that might improve his ability to cope in a wider range of carefully chosen employment setting (sic). This would depend on finding an appropriate therapist to work with him. I also consider that what appear to be underlying problems with stress-copying and anxiety are likely to respond to appropriate therapy with the potential to further enhance his ability to cope in education and employment settings.

   29.Dr Levick stated that the psychological factors “such as anxiety and stress-coping difficulties” were associated with the respondent’s Asperger’s.

   30.While Dr Innis has raised anxiety as a concern, the Tribunal finds on the evidence, that it has not been diagnosed as a separate condition from the Asperger’s. It therefore does not satisfy s 6(4) of the Impairment Tables and need not be considered further.

   31.For the above reasons, the Tribunal finds that the respondent’s conditions of Asperger’s Syndrome and ADHD are appropriately rated at 10 points under Table 7 as of the date of cancellation. He therefore does not meet the rating of 20 points required by s 94(1)(b) of the Act on the cancellation date.

   DECISION

4. The decision under review is set aside and in substitution it is decided that the respondent was not qualified for disability support pension as at the date of cancellation.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

...............[sgd].........................................................

Associate

Dated: 25 July 2017

Date(s) of hearing:	3 July 2017
Advocate for the Applicant:	Ms S Norman
Solicitors for the Respondent:	Ms G Heggen & Dr S Thompson, Department of Human Services