Pepic and Secretary, Department of Social Services

[2014] AATA 44

[2014] AATA 44

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5088
Re	Almedin Pepic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Redfern
Date	31 January 2014
Place	Sydney

The decision under review is affirmed

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

Senior Member Redfern

CATCHWORDS

Social Security - Disability Support Pension - Continuing inability to work - Whether continuing inability to work arose prior to grant of permanent residency - Whether applicant able to work more than 15 hours per week

LEGISLATION

Social Security Act 1991 (Cth) ss 94(1), 94(2), Sch 1B

Social Security (Administration) Act 1999 Social Security Act 1991 (Cth)

REASONS FOR DECISION

Senior Member Redfern

31 January 2014

1. The applicant, Mr Almedin Pepic, was born in Serbia in 1982 and arrived in Australia on 17 July 2009 on a prospective marriage visa.  He was granted a permanent partner visa on 16 September 2011. Mr Pepic is married to an Australian citizen who he met overseas. They have a child.

2. On 5 December 2011 Mr Pepic lodged an application for the disability support pension in respect of his diagnosed post-traumatic stress and major depressive disorders.  His application was rejected on residency grounds, namely that his inability to work first arose prior to him obtaining permanent residency.  Mr Pepic applied for a review of this decision to the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 16 October 2012 but on different grounds to the original decision. The SSAT was not satisfied that Mr Pepic's post-traumatic stress disorder and depression were fully treated and stabilised within the relevant period, and found that Mr Pepic did not qualify for the disability support pension because his impairment was not permanent.

3. Mr Pepic has now applied to this Tribunal for review of the decision of the SSAT.  Notwithstanding the findings of the SSAT, the respondent concedes, based on the available medical evidence, that Mr Pepic has a permanent psychiatric impairment of 20 points or more. There is no dispute Mr Pepic has a continuing inability to work for 15 hours a week as a result of his impairment.  The issue in dispute, and therefore for determination, is whether Mr Pepic satisfies the relevant residency requirements to qualify for the disability support pension. 

4. To be eligible to receive a disability support pension, an applicant must satisfy certain residency requirements. It is common ground that the only basis on which Mr Pepic can satisfy this requirement is if he was an Australian resident when his continuing inability to work for 15 hours a week first arose.  The respondent contended that Mr Pepic’s post-traumatic stress disorder, depression and resulting inability to work were pre-existing.  Mr Pepic contended that, even though he had a psychiatric condition when he arrived in Australia, the condition deteriorated during 2010 and 2011 to such an extent that he was unable to work from September 2011, not before.

   LEGISLATIVE FRAMEWORK

5. The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

6. Section 94(1) of the Act relevantly provides as follows:

   (1)  A person is qualified for disability support pension if:

   (a)  the person has a physical, intellectual or psychiatric impairment; and

   (b)  the person's impairment is of 20 points or more under the Impairment Tables; and

   (c)  one of the following applies:

   (i)  the person has a continuing inability to work;

   (ii)  the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)  the person has turned 16; and

   (e)  the person either:

   (i)  is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)  has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)  is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)  is not an Australian resident; and

   (B)  is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident;   

7. The Impairment Tables are set out in Schedule 1B of the Act and include the following guidance under the heading “Introduction to the Impairment Tables”:

   4        A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged….

   5.         The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

   6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

   Ÿ  What treatment or rehabilitation has occurred;

   Ÿ  Whether treatment is still continuing or is planned in the near future; and

   Ÿ  Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

8. The definition of ‘continuing inability to work’ and related terms are set out in ss 94 (2) to (5). Section 94(2) provides as follows:

   Continuing inability to work

   (2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)  in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)  in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)  in all cases--either:

   (i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)  if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

9. For the purposes of s 94(2) of the Act ‘work’ means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage.

10. The relevant period for consideration of the applicant’s qualification is the date of Mr Pepic’s application, namely 5 December 2011, and up to 13 weeks after his claim, being 5 March 2012 (ss 41 and 42 and clauses 3 and 4 to Schedule 2 of the Administration Act). This is not in dispute.

11. It is common ground Mr Pepic satisfies four of the qualifying conditions for entitlement to the disability support pension, namely s 94(1)(a), (b), (c) and (d). Having regard to the evidence referred to in more detail in my reasons, I am also satisfied about these matters and in my view the concessions made by the respondent in written and oral submissions are properly and appropriately made.

    THE EVIDENCE

12. Mr Pepic fled war-torn Kosovo when he was 18 years old. He was captured and imprisoned for six months. Mr Pepic returned to Kosovo after the war finished where he lived until 2008. It was reported that Mr Pepic was tortured while he was imprisoned and subsequently suffered post-traumatic stress disorder, which was diagnosed in about 2001. He spent two years in hospital but was vague about his illness and treatment during this hospitalisation when questioned about these matters. Mr Pepic studied law at university for four years, finishing in 2006, and worked as a paralegal for about a year in 2007. He said that it was difficult to find work and he did not work in Kosovo after he left the paralegal job.

13. Mr Pepic met his wife in Bosnia in 2008. He migrated to Australia with his wife in 2009 and they lived in Yagoona renting a house. He spent his first year learning English and later studied Business and Administration at a college in Burwood. He obtained a Certificate III qualification in Business Administration by May 2010. After May 2010 Mr Pepic worked in casual jobs for short periods. He worked with a company called IPA for two weeks as a storeman and as a data entry clerk for about a week through an agency called Westaff. Mr Pepic said that after he completed his studies, he found it difficult to obtain paid work in Australia. He went to a number of interviews during 2010 and 2011 but was not successful. During this period, Mr Pepic said he had problems with his teeth and needed to get them fixed. This also caused difficulties in finding work.  He did voluntary work for 10 days with an immigration firm during 2010. Apart from this voluntary role and a few weeks of paid work during 2010, Mr Pepic has worked little since arriving in Australia. The payslips and taxation returns submitted by Mr Pepic show that he has earned about $2,800 for paid work since 2010.

14. Mr Pepic nonetheless said he was still positive during 2011 and would have been able to work more than 15 hours a week but for the fact he and his wife were given notice to quit their rental premises in September 2011. He became increasingly depressed and anxious and his psychiatric condition deteriorated because he, his wife and his baby were homeless for a long period. They were unable to find alternative accommodation until early 2012. He consulted Mr Abdul Saad, Clinical Psychologist, in August 2011 and was later prescribed Oxycontin by his treating doctor. Now he cannot sleep and is anxious and depressed much of the time.

15. Mr Pepic was cross examined extensively about his symptoms and the onset of his incapacity to work. Mr Pepic denied he was unable to work before September 2011.

16. He first saw Dr Dusan Kecmanovic, Psychiatrist, on 22 November 2011 and he provided a medical report in support of Mr Pepic’s claim for the disability support pension on this date.  Dr Kecmanovic noted that Mr Pepic had diagnosis of post-traumatic stress disorder of the chronic type.  He recorded that the date of the onset of symptoms was 1998 and that the date of diagnosis was 2001.  Mr Pepic's symptoms at the time that he consulted Dr Kecmanovic were recorded as follows:

    intrusive and distressing reflections of the traumatic events; feeling as if the events were re-occurring, heightened anxiety, depression

17. Dr Kecmanovic noted that Mr Pepic was on Lexapro, Xanax and Cymbalta.  In response to the question about how Mr Pepic’s condition affected his ability to function, Dr Kecmanovic noted as follows:

    low endurance, poor concentration, low energy levels, need support in activities daily.

18. Dr Kecmanovic further noted that the impact on Mr Pepic's condition was expected to persist for more than 24 months and was likely to remain unchanged. 

19. Dr Kecmanovic also diagnosed Mr Pepic with a major depressive disorder, with onset recorded as 2001 and diagnosis as 2002.  This disorder was also reported to be related to Mr Pepic’s past experiences in the war.  His current symptoms were noted as “depressive mood, early-morning waking, low libido, social withdrawal and black thoughts”.

20. When he made his claim for the disability support pension, Mr Pepic provided a statement, which was attached to the application, dated 1 December 2011.  Mr Pepic noted that he suffered from extreme severe post-traumatic stress disorder for which he had been seeing a clinical psychologist and psychiatrist.  He also noted he had pain and dental pain.  According to Mr Pepic, all of these treatments affected his ability to work.  He recorded as follows:

    I have severe depression and my experiences and trauma that I went through in the war in Kosovo constantly haunt me.  I often get vivid flashbacks when my house was burnt down and when I saw someone being shot with my own eyes and other events that I had that I experienced.  During these flashbacks my mind goes completely blank and I start weeping uncontrollably.

    …………….. 

    I feel so powerless and I start sweating.  The medication that I take for PTSD makes me very drowsy and sleepy.  I often feel drowsy and confused and I find it difficult to remember my whereabouts.  I constantly need help of my wife to remind me of things and to look after me.

21. Mrs Mahwish Pepic provided a statutory declaration in support of Mr Pepic's application for a review of the decision to reject his claim.  Mrs Pepic noted she was receiving a carer’s pension because she was looking after Mr Pepic.  She also noted that Mr Pepic’s mental illness first occurred after his experiences in the war in Kosovo and Serbia.  She stated that his condition deteriorated by 2010 as he became “more and more stressed” as he could not find a job and “we could not afford to live”.  Relevantly she noted as follows:

    By mid-2011 his condition severely deteriorated as we were evicted from our unit as it was sold. 

    Despite applying everywhere, we could not secure, accommodation in the private market because were both unemployed. 

    We became homeless and my husband's illness dramatically worsened as the homelessness triggered strong memories and experiences in the war where his house was burnt down and his family became homeless.

22. According to a report provided by Mr Saad dated 28 October 2011, Mr Pepic was referred to him by his general practitioner. Mr Pepic had attended a number of counselling sessions, the first being on 13 August 2011.  He presented with a severe and chronic post-traumatic stress disorder and a major depressive disorder.  His mental health symptoms included “chronic war related nightmares, chronic insomnia, it irritability, avoidance of military and war related minders and emotional numbing”.  Dr Saad also reported as follows:

    PTSD is a serious and disabling condition which responds well to psychological treatment.  Up to this point, Mr Pepic has been experienced considerable situational crises which are compounded his mental health problems and impede recovery.  He informs me that he is currently homeless and has been unsuccessful in securing private rental accommodation.  He is also on antidepressant and antianxiety medication which is a further indicator of the severity of his condition.

23. There is evidence that Mr Pepic attempted to find employment through CRS Australia from about January 2011. On 28 July 2011 Mr Pepic made a written application expressing his interest in a trainee information technology position in the city and was attending interviews for jobs during August and September 2011.  He was being assisted in this process by CRS Australia.

24. There were two job capacity assessments undertaken for Mr Pepic, the first dated 10 January 2011 and the second dated 21 December 2011.  The first report noted that Mr Pepic had “reduced self-esteem and concern regarding presentation following the loss of four front teeth”.  It was also noted Mr Pepic had limited success in obtaining stable employment.  There was no reference to his mental health issues and the report recorded that “no permanent medical conditions were assessed as part of this report; therefore work capacity is 30+ hours per week”.  The second report noted that Mr Pepic had post-traumatic stress disorder and depression which were fully diagnosed, treated and stabilised. Mr Pepic was assessed as having psychiatric impairment of 30 points and his baseline work capacity was assessed as 8 to 14 hours per week.  Relevantly it was noted as follows:

    PSTD and Depression was with serious impacts on cognitive functioning.  Symptoms are likely to continue to impact on the type of work and the client should be provided with a quite work environment and sedentary work should be possible.

25. Mr Pepic was referred to Dr Anthony Dinnen, Consultant Psychiatrist, for assessment by Legal Aid New South Wales.  Dr Dinnen prepared a report dated 16 July 2013 after interviewing Mr Pepic and reviewing various reports and the CRS Australia file.  He opined that the view of the SSAT in rejecting Mr Pepic's claim on the basis that his psychiatric condition had not been fully treated and stabilised was incorrect.  Dr Dinnen reported as follows:

    The patient is suffering from chronic post-traumatic stress disorder with associated depressive disorder.  This condition has its origins in traumatic experiences some 15 years ago and after such a length of time is unlikely to abate to any significant extent.  The past history of hospitalisation gives a good indication of the severity and chronicity of his illness. 

    As many with this condition demonstrate, the ability to function is often in spite of the illness and the patient learns to adapt in a variety of ways – seeking employment below their real level of capacity, finding low stress circumstances in day to day life and personal relationships, receiving ongoing supportive treatment, and less effectively using alcohol and/or other drugs to ameliorate the ongoing symptoms of this disorder.  Typically with any psychiatric conditions, and certain PTSD with associated depressive disorder, the condition will fluctuate according to circumstances. 

    At present this patient is quite ill and requires ongoing psychiatric care.  I see little prospect of any significant improvement in the situation over the next 2 or more years.

    The SSAT view is wrong that his psychiatric condition has yet to be or can be treated and stabilised.  Treatment is sometimes a benefit in relieving symptoms in helping the patient to adjust, but is often not curative. 

    The psychologist’s optimistic prediction of response to treatment is as unrealistic in this patient's case as the SSAT assessment.  The facts prove that the patient is severely disabled.  Treatment will not be curative, but will at best provide some symptom relief and help the patient to cope better with his disabling illness.  The attention received from the psychologist and psychiatrist has been appropriate but has not led to the recovery posited by the SSAT.  It certainly justifies the opinion of the job capacity assessor of December 2011 that the condition is permanent, fully diagnosed, fully treated and fully stabilise. 

    There is no doubt that after 15 years this patient's condition has reached maximum medical improvement, as was the case in the early stages after he arrived in Australia.  His wife describes the deterioration in his condition is occurring in 2010, leading to, not caused by, homelessness.

26. When asked about whether Mr Pepic's conditions affected his ability to work, Dr Dinnen responded to the effect that his symptoms and medications, including the inappropriate use of alcohol, “would all seriously interfere with his ability to function in the workplace”.  When asked whether Mr Pepic could work for at least 15 hours per week given his conditions, Dr Dinnen responded “No”.  He concluded as follows:

    This condition has been present and causing significant and prolonged impairment since it least 3 years ago, that is prior to July 2012.  The documentation reviewed above includes a report from his wife which is consistent with his account that incapacitating symptoms were increasing as from 2010 and 2011. 

1. The respondent relied on a report dated 17 October 2013 from Dr Sandra Armstrong, Medical Adviser, working with the Health Professional Advisory Unit of the Department of Human Services.  Dr Armstrong reviewed various reports and documents from Mr Pepic’s file, although she did not interview Mr Pepic.  She opined as follows:

   I believe that Mr Pepic's psychiatric conditions are permanent, FDTS, and that the correct rating would be 20 to 30 points on a table 6 [pre-2012 tables], reflecting his severe impairment.  However, CITW arose 2 – 3 years prior to 16/9/11 when he became a permanent resident.  I accept that his mental state worsened further after he became homeless in September.  I agree with the SSAT decision that there was insufficient information to rate his dental injuries, and back pain.

2. Dr Saad provided a report to the Tribunal dated 2 September 2013 in support of Mr Pepic’s application. He stated that Mr Pepic had undertaken various work preparedness courses which he had completed successfully prior to September 2011. He noted that Mr Pepic became homeless in September 2011 and his PTSD “further intensified” to such an extent that “any prospect of him engaging in meaningful employment was severely diminished”. He noted that Mr Pepic has been genuine in his engagement with psychological therapy but unfortunately cognitive behavioural therapy was only unsuccessful in up to 40% of individuals. Mr Pepic had a “suboptimal response to pharmacological management” of his mental health issues.

   FINDINGS AND CONCLUSION

3. Having regard to the evidence of Dr Dinnen, which is consistent with the evidence of Mr Saad and Mr Pepic and the report of Dr Armstrong, I am satisfied Mr Pepic has a severe psychiatric impairment. His condition is chronic and has been in existence, to varying degrees, for over 15 years. It has been fully diagnosed, treated and stabilised and I am satisfied that this was the position at the time Mr Pepic made his claim for disability support pension on 5 December 2011. Furthermore, there is evidence Mr Pepic was not able to work for more than 15 hours per week at the time he made his claim.

4. The question is whether Mr Pepic’s continuing inability to work 15 hours per week arose on or after 16 September 2011, as asserted by Mr Pepic, or sometime before this date. Mr Pepic said he would have been able to work over 15 hours per week up to the time he made his claim for the disability support pension.  He was motivated to find a job and was attending interviews up to the time of his claim. However, his condition deteriorated after he was made homeless in September 2011. He began taking Oxycontin and his medication also made it difficult for him to work.

5. Mr Pepic’s circumstances are tragic. He is still a young man with a family, but his mental health has been severely affected by his past experiences from the war in Kosovo. He has been particularly affected by the harrowing experiences he has recounted to doctors and his treating clinicians. There is no dispute Mr Pepic suffers severe psychiatric conditions as a result of those experiences. Similarly, there is no dispute Mr Pepic has a continuing inability to work for more than 15 hours a week and that this was the case at the time he made his claim and remains the case. However, in order to qualify for the disability support pension Mr Pepic must have been an Australian resident when he first became unable to work for more than 15 hours per week. Under s 94(2), this means “independently of a program of support” and includes whether retraining would be likely to enable the person to work independently within the next two years.

6. There is compelling evidence that Mr Pepic first became unable to work for more than 15 hours a week some time before 16 September 2011, possibly as early as May 2010. Mr Pepic has worked no more than a total of about three to four weeks during the time he has lived in Australia. Two of the roles were paid, albeit very brief, and one role was voluntary. There is no evidence that Mr Pepic has worked longer than 15 hours a week for a sustained period. While I accept it has been difficult for him to find work, I find it is more likely than not that Mr Pepic’s medical conditions would have inhibited sustained work of more than 15 hours a week from at least mid 2010. The fact that Mr Pepic has completed studies while he has been in Australia does not demonstrate he can work for more than 15 hours per week or that he could do so at the relevant time. CRS Australia have been supporting Mr Pepic from at least early 2011 and there is no evidence that retraining would have assisted him in being able to sustain 15 hours work per week prior to his permanent residency.

7. Mr Pepic’s evidence, which he consistently recounted to others including his doctors and his treating clinicians, was to the effect that he had nightmares, low mood and depression from at least 2010. Mr Pepic’s general practitioner recommended he seek treatment from a psychologist as early as 2010 but he did not take up this recommendation until August 2011. By this stage, Mr Pepic was taking Lexapro, Cymbalta and Xanax. These are all anti-depressant medications. As noted by Dr Kecmanovic, Mr Pepic needed support in his activities daily by 22 November 2011. Mrs Pepic was his carer and there was a suggestion, although Mr Pepic denied this, that she gave up work in late 2010 to assist him. In her statutory declaration, Mrs Pepic stated that Mr Pepic’s condition deteriorated by 2010 when he became stressed about not finding a job. His condition was said to have “dramatically worsened” when they became homeless from September 2011. I accept this evidence.

8. There is no dispute that Mr Pepic’s mental health was affected by these circumstances from September 2011. Dr Armstrong agrees Mr Pepic’s condition was exacerbated by these events. Notwithstanding this, she reviewed Mr Pepic’s files and medical reports and was of the opinion Mr Pepic’s continuing inability to work was likely to have arisen two to three years prior to him being granted permanent residency. This is consistent with the opinion of Dr Dinnen, the history given by Mr Pepic and Mrs Pepic, and Mr Pepic’s own evidence. The job capacity assessment report of January 2011 does not support a finding that Mr Pepic was able to work more than 30 hours a week at that time because it is clear Mr Pepic’s psychiatric condition was not assessed.  This is expressly stated in the report.

9. Mr Saad notes that prior to September 2011, Mr Pepic had undertaken various work preparedness courses.  This does not evidence an ability to work more than 15 hour per week. Mr Pepic may have studied less than 15 hours a week and at his own pace. As observed by Dr Dinnen, people with chronic PTSD may be able to function in spite of their illness by “seeking employment below their real level” and “finding low stress circumstances in day to day life and personal relationships”. The second job capacity assessment report recognised this, recommending a quiet work environment between 8 to 14 hours per week. 

10. In summary, I find that Mr Pepic had a continuing inability to work but that this inability first arose before his permanent residency on 16 September 2011, possibly as early as mid 2010 but certainly by mid 2011. As such, Mr Pepic does not qualify for the disability support pension at this time because he does not satisfy the residency requirements.

11. I therefore affirm the decision under review, but on different grounds from those of the SSAT

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Redfern

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Associate

Dated 31 January 2014

Dates of hearing	16 January 2014
Applicant	In person
Solicitors for the Respondent	Legal Services Division, Department of Human Services