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

[2018] AATA 3578

Perkins; Secretary, Department of Social Services and (Social services second review) [2018] AATA 3578 (21 September 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0731

Re:Secretary, Department of Social Services

APPLICANT

AndChristopher Perkins

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:21 September 2018

Place:Melbourne

The decision of the Social Services and Child Support Division of the Tribunal dated 8 January 2018 is set aside.  In in its place, the Tribunal decides that Mr Christopher Perkins did not qualify for disability support pension in relation to his claim made on 14 March 2017 and did not become qualified in the thirteen weeks after that date.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – disability support pension (DSP) – whether conditions permanent in terms of the Determination – spinal condition – mental health condition – other conditions – 20 or more impairment points required – 10 points allocated – not qualified for DSP – decision of Social Services and Child Support Division set aside

Legislation

Acts Interpretation Act 1901 (Cth), 36(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 38AAA
Social Security Act 1991 (Cth), ss 94(1), 94(5)
Social Security (Administration) Act 1999 (Cth), Sch 2, cl 4(1)

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

REASONS FOR DECISION

Senior Member D. J. Morris

21 September 2018

BACKGROUND

1. On 14 March 2017 the Respondent, Mr Christopher Perkins, lodged a claim for Disability Support Pension (DSP) with the Department of Human Services (the Department). On 22 June 2017 the Department decided to reject Mr Perkins’ claim for DSP on the basis that his medical conditions were not fully diagnosed, treated and stabilised and therefore he failed to satisfy section 94(1)(b) of the Social Security Act 1991 (the Act).  Mr Perkins sought a review of the rejection decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.

2. On 31 August 2017 the ARO affirmed the original decision.  Mr Perkins sought a review of the original decision by the Social Services and Child Support Division of the Tribunal (AAT1). On 8 January 2018 AAT1 set aside the original decision and substituted a decision that Mr Perkins qualified for DSP from the date of his claim.

3. On 14 February 2018 the Applicant, the Secretary of the Department of Social Services (the Secretary), lodged an application for review of the AAT1 decision. A hearing was held on 31 August 2018. Mr Perkins made submissions, gave evidence and was cross-examined by Mr Tim Noonan, representing the Secretary. The Secretary tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T-documents), and supplementary documents (ST-documents) under section 38AA of the AAT Act.

4. The Tribunal also took into account the following documents lodged by the Secretary: Letter from Dr Zia Ahmed dated 6 January 2015 (Exhibit A1); Medical certificate signed by Dr Ahmed dated 27 November 2015 (Exhibit A2); Certificate of Capacity signed by Dr Ahmed dated 1 October 2014 (Exhibit A3); Letter from Mr Kevin Gould of WDEA Works, dated 8 June 2018 (Exhibit A4); Medicare Bulk Bill Assignment of Benefit Forms, various dates (Exhibit A5); Extract from Patient Account for Mr Perkins – physiotherapy treatment, dated 7 June 2018 (Exhibit A6); Information about  participation in a program of support form, dated 8 June 2018 (Exhibit A7); Assessment by Dr Dielle Felman, Consultant Psychiatrist, dated 3 May 2018 (Exhibit A8); Bundle of clinical notes, received 9  April 2018 (Exhibit A9); Pharmaceutical Benefits Scheme (PBS) Patient Summary for Mr Perkins, dated 7 March 2018 (Exhibit A10); Medicare Report dated 7 March 2018 (Exhibit A11); Letter from Dr Linda Danvers of Ballarat Health Services, dated 23 February 2018 (Exhibit A12); Bundle of medical documents from Dr Praveen Thottappilil, consultant psychiatrist, received 9 April 2018 (Exhibit A13).

   THE LEGISLATIVE FRAMEWORK

5. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied.  It must be established that:

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

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

   (c)one of the following applies:

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

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

   (d)…

6. In terms of the criteria under section 94(1)(c) of the Act, no contention was made that Mr Perkins had participated in the supported wage system. He was therefore required to establish a ‘continuing inability to work’. Relevantly, section 94(2) of the Act provides that:

   (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 the program of support was wholly or partly funded by the Commonwealth; 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.

7. Section 94(3B) of the Act provides that:

   A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

8. Therefore, if Mr Perkins is assigned 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that Mr Perkins has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014. If Mr Perkins does have a ‘severe impairment’, he is only required to satisfy sections 94(2)(a) and 94(2)(b) of the Act.

   WHAT IS THE RELEVANT PERIOD FOR CONSIDERING THE CLAIM?

9. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

   If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

10. Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.

11. The task before the Tribunal, therefore, is to consider two questions. First, whether Mr Perkins was qualified for DSP on 14 March 2017, the date he lodged his claim. If not, the Tribunal must then consider whether, applying clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, Mr Perkins became qualified on a day in the thirteen week period from 15 March 2017 to 13 June 2017 (the claim period).

    THE HEARING

12. At the hearing, the Secretary conceded that Mr Perkins satisfied section 94(1)(a) of the Act in that he had a physical, intellectual or psychiatric impairment in the claim period.

13. In his DSP claim form (T33, p 90), Mr Perkins listed the following medical conditions: Bipolar 1 disorder, PTSD, right leg injury, lower back disorder, cyst – left wrist, cervical spine syndrome.  Mr Perkins has undergone a number of Job Capacity Assessments (JCA).  The most proximate JCA to the date he lodged his claim for DSP is the JCA carried out on 10 April 2017.  The assessor accepted (T35, p 96-7) that Mr Perkins had a psychological/psychiatric disorder that was verified by medical evidence and a spinal disorder that was verified by medical evidence.

14. The Tribunal has also considered a number of other supporting medical documents contained in the T and ST documents and finds that Mr Perkins satisfied section 94(1)(a) of the Act in the claim period.

15. The Secretary contended, in written arguments, that none of Mr Perkins’ medical conditions could be regarded as permanent in the terms required by the Determination. However, during the hearing, while repeating the Secretary’s position that there was insufficient evidence to find that Mr Perkins’ mental health condition was fully treated and fully stabilised, Mr Noonan said that the Secretary would accept the opinion of Dr Felman, the psychiatrist who examined Mr Perkins on 3 May 2018, that he should be allocated 10 impairment points, under Table 5 – Mental Health Function, in the Determination.

16. The Tribunal must therefore consider Mr Perkins’ various medical conditions.

    WHAT DOES ‘PERMANENCY OF CONDITIONS’ MEAN?

17. The Determination requires, at section 6(4) that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and the condition has been fully treated, and the condition has been fully stabilised and the condition is more likely than not, in the light of available evidence, to persist for more than two years. Section 6 of the Determination goes on to set out what must be considered by a decision-maker as he or she considers whether a condition can be assigned points under the Impairment Tables:

    Fully diagnosed and fully treated

    (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (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.

    Fully Stabilised

    (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (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; or
    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    Note: For reasonable treatment see subsection 6(7).

    Reasonable treatment

    (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

    (a) is available at a location reasonably accessible to the person; and

    (b) is at a reasonable cost; and
    (c) can reliably be expected to result in a substantial improvement in functional capacity; and
    (d) is regularly undertaken or performed; and
    (e) has a high success rate; and
    (f) carries a low risk to the person.

    Spinal condition

18. The Tribunal had before it (T7, p 33) a CT scan of Mr Perkins’ lumbar spine, conducted on 18 September 2014.  It states, in part:

    L5/S1: Normal appearance.
    L5 satisfactory canal size of 1.2cm.
    L4/L5: There is evidence of central and paracentral disc bulging-focal protrusion which is touching the anterior theca and lying adjacent to the L5 nerve roots.
    L4 nerve roots exit unimpeded.
    L4 satisfactory canal size of 1.2cm.
    L3/L4-L1/L2: Normal.

    CONCLUSION

    Slight age-related disc bulging seen at the lumbosacral junction with moderate disc bulging-central broad-based small protrusion seen at level of L4/L5.  It does not appear to be compromising the structure though does lie in close association with the L5 nerve root on both left and right side prior to its exit in the segment below.  The examination is otherwise normal.

19. Dr Baan Mahmod, Mr Perkins’ treating general practitioner, provided a medical certificate (T31, p 86) that stated that Mr Perkins had a lower back pain condition which was a temporary exacerbation of a permanent condition.  Mr Perkins told the JCA of 10 April 2017 that he had previously had between 10 and 12 sessions of physiotherapy but he had ceased as this treatment was no longer helping.  Dr Mahmod said that symptoms of Mr Perkins’ back condition  were lower back pain and right lower leg pain. The JCA reported he was unable to do any heavy lifting, unable to sit or drive for any long distance.  The JCA reported that Mr Perkins told them he was unable to sit, stand or walk for more than 10 minutes at that time, and has severe pain.

20. The Tribunal had before it (ST2, p 193) a letter to the Department from Dr Linda Danvers, Deputy Chief Medical Officer of Ballarat Health.  Dr Danvers noted that she had no direct involvement in Mr Perkins’ care or management and had responded to certain questions based on the medical records held by Ballarat Health.  In answer to specific questions, Dr Danvers wrote:

    Has Mr Perkins seen an orthopaedic surgeon at Ballarat Health Services?  If so, the dates of such attendances.

    Mr Perkins has not seen an orthopaedic surgeon at Ballarat Health Services.  Mr Perkins has been referred to the Orthopaedic Outpatient Clinic on two occasions (for separate problems) by his general practitioner Dr Baan Mahmod (referral letters dated 04/01/16 and 13/02/17).

    Whether the referral of Mr Perkins to the Department of Orthopaedics by Dr Baan Mahmod dated 4 January 2016 has expired or lapsed.  If so, why?

    Mr Perkins was referred to the Orthopaedic Outpatient clinic by Dr Baan Mahmod regarding low back pain, in a letter dated 04/01/16.  Mr Perkins was offered an appointment in the Spinal Assessment Clinic on 05/08/16.  When he did not attend this appointment, he was offered a further appointment on 25/08/16, which he also failed to attend.  Mr Perkins was advised in a letter dated 25/08/16, that if he failed to contact the Allied Health reception desk by 22/09/16 to arrange a further appointment, he would be discharged from the Orthopaedic Waiting List.  There was no response to this letter and on 23/09/16 Mr Perkins was discharged from the Orthopaedic Waiting List.

21. In his evidence, Mr Perkins disputed Dr Danvers’ summary, and said that he had indeed made contact with Ballarat Health to say he could not make the appointment on 5 August 2016.  He conceded that he may have subsequently received a letter from Ballarat Health which he did not respond to.

22. In terms of the Determination, the relevant table for the assessment of Mr Perkins’ back condition is Table 4 – Spinal Function.  Mr Perkins, in his evidence, said in the claim period, he had extreme difficulty in moving his head and had to move his whole body  and he could not look over his shoulder.  He said suffered got pins and needles each time he picked up a light object and that, at the time, he needed assistance to get out of a chair and that his 13 year old son would help him.  He said that at the time, he could not remain seated for 10 minutes without pain in his feet and groin area and the outside of his hip.

23. Dr Mahmod said that the current treatment (as at February 2017) was Panadeine Forte.  Mr Perkins also attended several physiotherapy sessions.  The Tribunal had an extract of Mr Perkins’ patient account (Exhibit A6) which indicated that the last physiotherapy session he attended was on 12 February 2015.  Mr Perkins said in evidence he thought he had attended a further session at the end of 2016, but that his condition had ‘not improved’.

    Consideration

24. The Tribunal observed that Mr Perkins was able to sit for most of the two and a half hour hearing, only standing towards the end, and did not appear to have any neck movement problems.  It would seem, given the lack of other corroborative material, that Dr Mahmod’s assessment in his certificate of 5 February 2017 (T31, p 86) that this was a temporary exacerbation of a permanent condition points to the condition not being fully stabilised in the claim period.  It is also notable that Mr Perkins had not continued with physiotherapy sessions and had not engaged in pain management as recommended.  He told the Tribunal that the way he manages his pain is with alcohol and non-prescription drugs.

25. The Tribunal is sympathetic with the fact that Mr Perkins lives in a rural area, and, so consequently, specialist orthopaedic care is therefore not as accessible for him as it would be in more urban areas.  However, it would seem on the evidence in Dr Danvers’ letter, that Mr Perkins had been offered appointments that might have enabled him to have his spinal condition better treated, but had chosen not to take up this opportunity.  The Tribunal finds, on this evidence, that Mr Perkins had not undertaken reasonable treatment for this condition, so it cannot be regarded as permanent in terms of the Determination, and cannot be assessed for the assignment of impairment points in the claim period.

    Mental health condition

26. Mr Perkins was referred by his general practitioner, Dr Mahmod, to Dr Praveen Thottappilil, consultant psychiatrist, and he saw Mr Perkins on 25 February 2016 (T28, p 82).  Dr Thottappilil recorded that Mr Perkins was seeing a psychologist, Ms Urquhart, and that he had a history suggestive of depression and anxiety.  Dr Thottappilil referred to a workplace injury Mr Perkins sustained in 2014 and the back problems that followed and then wrote:

    He reports to have sadness of the mood, lack of interest, lack of motivation, negative thinking, hopelessness, worthlessness, sleep and appetite disturbances.  Before the accident he had some work related bullying too, which again increased his stresses.   It seems that he has history suggestive of Post-Traumatic Stress Disorder symptoms, mainly in the form of getting flashbacks, nightmares about the accident he had, and becoming very agitated and restless at times, not able to sleep very well at night time, and not able to focus and concentrate.

27. Dr Thottappilil’s clinical diagnosis was Major Depressive Disorder and Post-Traumatic Stress Disorder symptoms.  He started Mr Perkins on Cymbalta 30 mg, and recommended continuing psychological engagement, continued pain management and a further review at the end of March 2016.

28. The Secretary submitted that Mr Perkins did not comply with Dr Thottappilil’s treatment recommendations to his general practitioner.  While he had prescribed Cymbalta 30 mg, one each morning, PBS records show (ST5, p 296) show that Mr Perkins only filled 2 prescriptions of 28 tablets each for Duloxetine (a trade name for Cymbalta) prior to his DSP claim.  Mr Perkins said that he found the Duloxetine was effective because it relieved his nerve pain but he stopped it because it was ‘messing with my head’.  Mr Perkins agreed that the dosage was increased from 30 mg to 60 mg in about July 2017.

1. The psychologist, Ms Robyn Urquhart’s, clinical notes (Exhibit A9) show that on 17 March 2016 Mr Perkins told her he had not tried antidepressant medication prescribed for him.  Her notes also show that he did not attend any psychological sessions with her between 11 August 2016 and 10 March 2017. Mr Perkins said that this was ‘probably correct’, though he said he did visit the clinic where Ms Urquhart is located and saw a psychiatric nurse privately on one occasion because he was ‘in a bad way’.   In addition, Mr Perkins confirmed to Dr Felman when he saw her in May 2018 that he had not engaged in any pain management programme.  In addition, Mr Perkins did not attend Dr Thottappilil for review again until 31 March 2017 (after the claim period).

2. Mr Perkins, as mentioned above, was referred to see Dr Felman by the Secretary in connexion with this hearing.  Dr Felman provided a report (Exhibit A8) in which she referred to the previous medical reports she had access to in order to compile a clinical history, together with her personal clinical assessment of Mr Perkins.  Dr Felman’s conclusion was that the appropriate diagnosis of Mr Perkins’ mental health conditions in the claim period was a ‘substance misuse disorder, Major depressive disorder with features of traumatization and significant personality vulnerabilities, in the antisocial spectrum’.

3. Taking into account Dr Felman’s specialist expertise and her opinion that Mr Perkins has had a diagnosable mental health condition since 2014, the Tribunal finds that this condition is fully diagnosed in the claim period.

4. In terms of treatment, Dr Felman referred to psychological therapy ‘of varying frequency and one appointment with a psychiatrist’ and prescribing of Cymbalta.  She reports that Mr Perkins also previously trialled Endep, an antidepressant medication, though she was unsure whether this drug had been prescribed in relation to assisting Mr Perkins with pain and sleep problems, or as an antidepressant dose. 

5. The Secretary posed the following question to Dr Felman:

   Do you consider that Mr Perkins’ mental health condition/s had been optimally treated prior to the relevant period?  That is, had all appropriate and reasonable treatment been undertaken by Mr Perkins at that time?

6. Dr Felman responded:

   In my opinion Mr Perkins had not received optimal treatment by the date of the assessment and there were other treatments that would reasonably have been available to him, including regular follow up by his psychiatrist, treatment of his drug and alcohol misuse and anger management.  Trials of additional medications may have also been of benefit.  While more regular psychiatric reviews and psychological therapy would have been appropriate, financial factors may have impacted on engagement.

7. Dr Felman was also asked:

   Are there any further reasonable treatments, not undertaken by Mr Perkins at the relevant period, that you consider would have been appropriate for Mr Perkins to undertake for his mental health condition/s?  If such  treatment(s) were undertaken, what, in your opinion, would be the  likely prognosis for Mr Perkins?

8. She responded:

   Yes, there are further treatments that could have been undertaken.  It is unclear what impact these treatments would have had on him.  In my opinion additional treatments may have improved some of his emotional dyscontrol but would have been unlikely to fully address his issues with emotional and conduct disturbance.

   In my opinion, even with enhanced treatment, there were a range of negative prognostic factors for recovery and returning to work, including:

   ·Underlying longstanding personality vulnerabilities including anger, irritability and recklessness.

   ·Chronic pain and his work experience being limited to manual work.

   ·A lifelong history of difficulty sustaining employment.

   ·Lack of motivation to return to work due to fear of repaying his TPD payout.

   ·Concern regarding liability in the event of a further injury.

   I note that many of these factors are not purely psychiatric.

   Consideration

9. The Secretary’s question to Dr Felman, asking her whether in her opinion Mr Perkins had received ‘optimal’ treatment is, in the Tribunal’s view, a misunderstanding of the Determination.  The Oxford English Dictionary defines the world ‘optimal’ as meaning ‘the best or most favourable’.  That is rather more than section 7 of the Determination sets out as how a decision-maker should assess whether a person had undertaken ‘reasonable’ treatment.  As set out above, factors such as the availability of the treatment at a location reasonably accessible to the person, the cost of the treatment, the risk to the person and the regularity of a procedure and its success rate are to be considered in assessing what is reasonable treatment.  The question is not whether it is the ‘best’ treatment.  While the second part of the question posed by the Secretary to Dr Felman partly attempts to return to the language of the Determination, it asks her whether ‘all appropriate and reasonable’ treatment had been undertaken by Mr Perkins.  The Tribunal finds that the way this question is couched is not neutral and affected the way Dr Felman responded.  Consequently, the utility of Dr Felman’s response is less useful in this review than if the question she was asked to respond to more closely mirrored the provisions in the Determination.

10. More importantly in this review, while Dr Felman said there were other treatments Mr Perkins could have undertaken, she was unclear what impact these other treatments (not listed but presumably partly covered in the answer to the earlier question) would have.  She was of the opinion that such other treatments would not fully address his emotional disturbance.

11. The Tribunal has taken all the clinical opinions into account, especially the substantial clinical notes taken by Ms Urquhart who was treating Mr Perkins before his DSP claim for a lengthy period, if intermittently, and taking account of the professional opinions of two consultant psychiatrists, Dr Thottappilil and Dr Felman, in particular Dr Felman’s conclusions about the prognosis over the next two years.  The Tribunal finds that Mr Perkins’ mental health conditions are permanent in terms of the Determination and are therefore assessable under Table 5 – Mental Health Function.

12. Dr Felman considered Mr Perkins’ functional impairments against the Descriptors in Table 5.  She considered that in terms of self-care and independent living there was a moderate functional impact because Mr Perkins reported reduced showering and self-care.  In terms of social/recreational activities and travel, Dr Felman considered there was a moderate functional impact because Mr Perkins avoids many activities due to his irritability and aggression.  In terms of interpersonal relationships, Dr Felman assessed a severe functional impact upon Mr Perkins in the claim period, because of his difficulty engaging with others owing to his irritability and aggression.  Dr Felman assessed a moderate functional impact in terms of Mr Perkins’ concentration and ability to complete tasks and a moderate functional impact in terms of his behaviour, planning and decision-making, again because his conduct is frequently disturbed by anger and irritability.  In terms of work/training capacity, Dr Felman assessed a moderate functional impact owing to Mr Perkins’ advising her of past conflicts at work, which had led to ‘frequent’ termination of roles.

13. In his evidence, Mr Perkins said that in the claim period he was living in a caravan.  His ex-partner came to visit and helped with laundry and took him to medical appointments, and he had some welfare visits from Uniting Care.  Mr Perkins said his personal hygiene at the time declined, he grew a beard and did not wash regularly and was advised to seek dental treatment because he was not regularly looking after his teeth.  He said he would not eat for three or four days and would then heat something up in the microwave oven of the caravan.  He said he ‘hated’ people and would walk his dog but avoid any personal contact.  He said that he tried to read books but had difficulty concentrating for any length of time and spoke about suicide attempts, which he had detailed to Dr Felman.

14. The Tribunal finds that Mr Perkins’ evidence on the functional impact was generally consistent with what he had told the JCA assessor, AAT1, and Dr Felman.  The Introduction to Table 5 states that self-report of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment.  The Descriptors in Table 5 for a mental health condition to have a severe functional impact require that the person must have difficulty with most of the functionalities listed. The Tribunal concludes, on the evidence and Dr Felman’s assessment, that Mr Perkins cannot be allocated 20 points for a severe functional impact because there was no corroborative evidence that he met most of the Descriptors in the matrix of Table 5 for 20 points, but that he did satisfy the Descriptors for the allocation of 10 points in the claim period.  I note this was a conclusion   AAT1 also arrived at.

    Other conditions

15. Mr Perkins listed a left wrist cyst as another condition in the claim period but there was insufficient evidence before the Tribunal to consider this condition further.  He also listed a right leg injury.  In terms of a hernia in his right leg, Mr Perkins gave evidence that he was run over in 2010 but did not seek medical treatment after that and his leg pain increased after he suffered a severe electric shock at work.  He said he was still on a waiting list for treatment of his right leg hernia but that he was ‘not going to let’ the Ballarat Base Hospital operate on his leg.  Even if the Tribunal found sufficient evidence that Mr Perkins’ right leg condition was fully diagnosed, it cannot be regarded as permanent in terms of the Determination because, on his own evidence, he is still awaiting medical intervention.

    CONCLUSION

16. The Tribunal has found that Mr Perkins should be allocated 10 impairment points in the claim period, for his mental health condition. Section 94(1)(b) of the Act requires that, for a person to be eligible for DSP, the person’s impairment must be allocated 20 points or more under the Determination. As section 94(1) of the Act is conjunctive (that is, each part of it must be satisfied) Mr Perkins’ DSP claim cannot succeed. It is not necessary for the Tribunal to go on to consider whether Mr Perkins satisfied section 94(1)(c) of the Act, in having a continuing inability to work, in the claim period. However, the Tribunal does note that the Secretary contended that Mr Perkins had only undertaken 14.7 months of participation in a program of support in the three years immediately prior to his claim. However, Mr Gould of WDEA Works (Exhibit A4) was of the view that Mr Perkins should in effect be existed from the program as, in his view, Mr Perkins ’is unable to improve his work capacity through continued participation in the program’.

17. The Tribunal observes that Dr Felman’s assessment of Mr Perkins’ anger and irritability is a major barrier to him being able to work, and that this appears to have been a consistent theme in relation to his mental health since around 2014. The Tribunal notes that, had Mr Perkins’ claim satisfied section 94(1)(b) of the Act in the claim period, Mr Gould and Dr Felman’s conclusions would carry significant weight in consideration of section 94(1)(c).

18. The Tribunal understands that this decision will be a disappointing outcome for Mr Perkins.  The Tribunal cannot give advice to a person making a claim for DSP except to say that documented evidence of a condition and a record of treatment, including the considered medical opinion of treating medical practitioners that no substantial improvement, in terms of a condition, is likely in the next two years, would be important information in regard to the assessment of any fresh claim.  It is always open to a person to test his or her qualification for a benefit by lodging a new claim, which would be assessed on contemporary information about his or her condition.

    DECISION

19. The decision of the Social Services and Child Support Division of the Tribunal dated 8 January 2018 is set aside.  In in its place, the Tribunal decides that Mr Christopher Perkins was not qualified for DSP in relation to his claim made on 14 March 2017 and did not become qualified in the thirteen weeks after that date.

48.     I certify that the preceding 47 (forty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 21 September 2018

Date of hearing:	31 August 2018
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Tim Noonan - Department of Human Services