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

[2017] AATA 1453

PTWB and Secretary, Department of Social Services (Social services second review) [2017] AATA 1453 (16 August 2017)

Division:GENERAL DIVISION

File Number:           2016/0032

Re:PTWB”  “

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President K Bean

Date of decision:     16 August 2017

Date of

written reasons:      8 September 2017

Place:Adelaide

The decision under review is affirmed.

...............[Sgd].....................................

Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Departmental review of applicant’s ongoing qualification for DSP – DSP cancelled – Whether applicant satisfied criteria for DSP as at date of cancellation – Conditions not fully treated or fully stabilised – Impairments do not attract 20 points under Impairment Tables – Decision under review affirmed.

LEGISLATION

Social Security Act 1991, s 94

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

CASES

McDonald v Director-General of Social Security (1984) 1 FCR 354

Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Deputy President K Bean

8 September 2017

1. The applicant was in receipt of disability support pension (DSP) from 17 February 2009 until 12 August 2015.  Unfortunately, he has suffered from depression and anxiety for many years and it was on the basis of those conditions that he was found to be qualified for DSP.

2. However, in June 2015, Centrelink commenced a review of the applicant’s medical qualification for DSP. This ultimately culminated in a decision on 12 August 2015 to cancel his DSP on the basis that he was no longer medically qualified under s 94 of the Social Security Act 1991 (the Act).[1]  That decision was affirmed by an Authorised Review Officer on 7 October 2015 and by the Social Services and Child Support Division of this Tribunal on 15 December 2015.[2]

   [1]     Exhibit R1, T19/234.

   [2]     Exhibit R1, T3.

3. On 3 January 2016, the applicant sought review of that decision by the General Division of the Tribunal.

   STATUTORY FRAMEWORK AND ISSUES

4. It is not in dispute between the parties that the applicant’s qualification for DSP must be assessed against the legislation in force as at the date of the cancellation, 12 August 2015.  Further, the Tribunal must only affirm the cancellation decision if positively satisfied that the applicant was not qualified for DSP as at that date.[3]  The applicant’s qualification for DSP must also be assessed as at the date of cancellation, and without regard to subsequent events.[4]

   [3]     See McDonald v Director-General of Social Security (1984) 6 ALD 6.

   [4]     See Fanning and Secretary, Department of Social Services [2014] AATA 447.

5. Qualification for DSP is governed by s 94 of the Act and in order to be qualified for DSP as at the cancellation date, the applicant was required to have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment which rated at least 20 points under the Impairment Tables; and

   (c)a continuing inability to work within the meaning of s 94 because of the impairment.

   DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

6. There is no issue between the parties that, as at the cancellation date, the applicant had a psychiatric impairment within the meaning of the Act.

   AT THE RELEVANT TIME, DID THE APPLICANT HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?

   The requirements

7. As referred to above, s 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.

8. The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition.  These include:

   ·the condition causing the impairment is permanent; and

   ·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.

9. Further, for a condition to be considered permanent under the Determination:

   ·the condition must be fully diagnosed by an appropriately qualified medical practitioner;

   ·the condition must be fully treated and fully stabilised; and

   ·the condition must be more likely than not to persist for more than two years.

10. Section 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:

    ·whether there is corroborating evidence of the condition;

    ·what treatment or rehabilitation has occurred in relation to the condition; and

    ·whether treatment is continuing or planned in the next two years.

11. Section 6(6) provides that a condition is fully stabilised if:

    ·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    ·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    ·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.

    As at the relevant date, were the applicant’s psychiatric conditions fully diagnosed, treated and stabilised?

    The applicant’s evidence

12. During his oral evidence, the applicant was asked about the fact that he appeared to have had very little treatment for his psychiatric conditions between mid‑2009 and mid‑2015.  In response, he explained that by mid‑2009 he was feeling better and neither he nor his GP felt he needed more treatment.

13. However, when he was asked about his current symptoms, he indicated that he often suffered panic attacks when he left the house, and this had been the case for some years.  As a result, he was reluctant to go out and when he did go out he tended to do so late at night.  When asked about his daily activities, both currently and in 2015, he also described a severe level of impairment, such that he was unable to make himself a sandwich or carry out most other daily activities, apart from very basic self‑care such as showering and dressing. 

14. When asked about his alcohol use in July and August 2015, around the time his DSP was cancelled, he indicated that at that time he was binge drinking in various amounts, about three times per week.  He said after a binge drinking session he would have difficulty getting out of bed the next day and would usually have a headache.

15. The applicant was also asked about medication he had taken, and indicated he had been given some trial drugs by a psychiatrist he saw in 2006 and 2007, Dr Hilton, which were ceased due to side effects.  He provided photocopies of packets of drugs he had taken, including Efexor and Seroquel.  Based on the packets, most of these were given to him in the period 2005‑2009.  One of the packets was for a medication described as Escitalopram prescribed in 2012.[5]  He said he was currently taking benzodiazepine and Moclobemide, an antidepressant.  He also mentioned that a psychologist he had been seeing since January 2016, Mr Zeitz, had taught him a breathing technique, presumably for anxiety.

    [5]     Exhibit A9.

16. Subsequent to the hearing, the applicant also provided a statement prepared for a workers’ compensation matter.  According to this, he was first prescribed medication for anxiety and depression in December 2003, when he was prescribed Valium and Zoloft.  Apparently he was also prescribed Prozac in August 2005, although he did not tolerate this. 

17. The applicant also indicated in this statement that after ceasing work in about January 2006, his alcohol intake increased significantly.  As at the date of signing that statement, 21 November 2006, he was seeing Dr Hilton about once per month and taking the antidepressant medication, Axit, daily.  He also mentioned in the statement that “since receiving treatment from Dr Hilton, I have started to decrease my alcohol intake”.

    The medical evidence

18. It is clear from the medical evidence before me and there is no dispute that in the period 2006‑2009, the applicant’s psychiatric condition/s were diagnosed and treated.  He consulted Dr Hilton between April 2006 and February 2007.[6]  He also consulted a clinical psychologist, Ms Joy Althorpe, between September 2008 and May 2009.[7]

    [6]     Exhibit R1, T17/214.

    [7]     Exhibit R1, T27/292.

19. In a report dated 5 April 2006 to the applicant’s’ solicitors, Dr Hilton indicated a diagnosis of “adjustment disorder with anxiety and depression with differential diagnosis of major depression”.[8]  She also outlined that she had suggested that he wean off the medication Efexor and try the stronger antidepressant Mirtazapine.  She also advised the applicant to be reviewed in two to four weeks’ time “depending on his progress with this medication change over and response to the Mirtazapine which may be increased up to a higher dose depending on side effects”.[9]  She indicated in her report that treatment was “ongoing” and that the duration of his condition was uncertain “at this point as treatment response has not yet been assessed”.[10]  In a letter of the same date to the applicant’s General Practitioner, Dr Schultz, she also referred to the applicant’s “excessive alcohol intake”.[11]

    [8]     Exhibit R1, T3/9, [30].

    [9]     This was not given an exhibit number at the hearing, but was referred to by both parties and I have decided I should have regard to it.

    [10]    Exhibit R1, T3/9, [30].

    [11]    This letter was supplied by the applicant after the hearing.

20. In a letter dated 30 January 2009, Ms Althorpe confirmed that she had been seeing the applicant since September 2008 after he was referred due to his “depression and anxiety, including panic attacks”.  In her letter she referred to his diagnosis of “major depressive disorder with associated symptoms of anxiety”.  She further reported:

    [the applicant] is working in a cognitive behavioural therapy context looking at identifying and challenging unhelpful thinking and replacing this with more helpful thinking. We are also working at goals towards behavioural activation and [the applicant] is making slow but definite progress with specific goals.[12]

    [12]    Exhibit A3.

21. In a subsequent report of 24 April 2009, Ms Althorpe reported that in addition to major depressive disorder and associated anxiety disorder, the applicant was also suffering from “social phobia”.[13]

    [13]    Exhibit R4.

22. Surprisingly, despite the apparently significant level of his symptoms in April 2009, there are no contemporaneous medical records or reports relating to treatment received by the applicant for his psychiatric conditions between mid‑2009 and mid‑2015.

23. However, in a claim for total and permanent disablement benefits, completed on 22 July 2014, one of the applicant’s general practitioners, Dr Schultz, indicated that the applicant was suffering from “chronic anxiety‑depression (major)” and “social phobia”, and that commencing in 2003 he “began treatment with antidepressants + anxiolytic drugs from that time, continuously”.[14]  He further indicated that current treatment was Zoloft and Xanax and the applicant was “stable on this”.  He also said that the condition was “unchanged (stable) over last six years”.[15] 

    [14]    Exhibit R1, T21/257.

    [15]    Exhibit R1, T21/258.

24. In a Centrelink form completed on 12 June 2015, another of the applicant’s treating general practitioners, Dr Zuvela, confirmed that he was suffering from “major depression/anxiety” with a date of onset of 2003.[16]  Dr Zuvela further indicated the applicant’s current treatment was “antidepressants (Zoloft)” and “Anxiolytics (Xanax, Diazepam)”, all of which had been commenced “years ago”.[17]  He also referred to the fact that the applicant had had treatment from Dr Hilton and Ms Althorpe, and that his current symptoms were depressed mood, anxiety, panic and social phobia.[18]  However, I note the applicant informed a Job Capacity Assessor in December 2015 that adverse impacts of his condition included being “slowed down by Benzodiazepine medication” as he “can no longer be prescribed Xanax”.[19]  This suggests he was no longer taking Xanax by December 2015, but was taking a different benzodiazepine.

    [16]    Exhibit R1, T23/266.

    [17]    Exhibit R1, T23/266.

    [18]    Exhibit R1, T23/267.

    [19]    Exhibit R1, T22/260.

25. Dr Zuvela subsequently formulated a GP Mental Health Care Plan for the applicant on 14 August 2015, after his DSP had been cancelled.  In a subsequent Centrelink form completed on 26 August 2015, Dr Schultz also stated that the applicant was suffering from “major anxiety/depression, with panic disorder” and also “alcohol dependence” with a date of onset of 2007.  He said the diagnosis of alcohol dependence had been confirmed by Dr Hilton in 2007 and that current treatment, commenced in 2007, was “counselling, Zoloft, Antenex”.[20]

    [20]    Exhibit R1, T25/281.

26. In a further report of 6 December 2015, Dr Schultz indicated that the applicant was suffering from “major anxiety and depression, with panic attacks” and “severe alcohol dependence”.  He also stated that “each of the above conditions has been fully, and repeatedly assessed, stabilised + treated by appropriate medical specialists”.[21]

    [21]    Exhibit A1, p 1.

27. In a report of June 2016, Mr Zeitz also reported that he had assessed the applicant in June 2016 and “[t]he assessment determined that his level of Depression, Anxiety and physical stress were consistent with the extremely severe range”.[22]

    [22]    Exhibit A4, p 2.

28. In a report dated 28 February 2017, Dr Schultz stated:

    [the applicant] has had reasonable psychiatric treatment in the past made up of:

    (a)   11 consultations with Dr. Christine Hilton.

    (b)   Treatment with Clinical Psychologist, Joy Althorpe, from September, 2008 to May, 2009.[23]

    [23]    Exhibit A7, p 2.

29. In May 2016, the applicant was referred to a different psychiatrist, Dr Loukas, whom he first saw on 29 June 2016.  Dr Loukas has provided a report dated 26 August 2016.[24]  In his report, Dr Loukas indicated that he considered the applicant was suffering from “a chronic Major Depressive Disorder” and that “his anxiety is best understood as him having Panic Disorder with agoraphobia”.[25]  He indicated that on first seeing the applicant he formed the view that “his current antidepressant dose was suboptimal”[26] and reported that the applicant had agreed to trial a new antidepressant, although it was ultimately found he did not tolerate the side effects of this.  He indicated:

    His prognosis for further recovery is indeed poor in view of his past failed attempts on various antidepressants.  Nonetheless, I have encouraged him to see me on a regular basis for ongoing psychotherapy addressing his symptoms and also his avoidance behaviour and his low self-esteem.[27]

    [24]    Exhibit A5.

    [25]    Exhibit A5, p 2.

    [26]    Exhibit A5, p 3.

    [27]    Exhibit A5, p 3.

30. With respect to whether the applicant’s condition had been fully treated and stabilised, Dr Loukas stated:

    When first seen [the applicant’s] antidepressant dose was indeed low.  I encouraged him to change his antidepressant though he did not tolerate the side effects.  He is back on his original antidepressant and I have asked him to increase the dose of his Sertraline to 50mg.  It is unclear whether he will tolerate the higher dose.  He may indeed benefit from higher doses of this medicine though previously he has not tolerated it.  Furthermore he has previously tried Citalopram 20 mg for two years and also Sertraline at a higher dose.  For a period of time from 2007 to 2014 he was also taking Alprazolam 0.5mg daily.  As seen above he has also trialled other antidepressants.  In view of such treatments and the fact that he did not significantly improve I am of the opinion that his conditions have been fully treated and stabilised.  It is unlikely he will further improve with ongoing psychiatric treatment.[28]

    [28]    Exhibit A5, p 4.

31. As to what further treatment was planned, he stated:

    The treatment plan is for him to remain on his Sertraline at 50mg and if he tolerates this to further increase the dose up to 100mg which he has previously taken.  There is also the option that he may potentially trial two antidepressants at the same time.  I am not optimistic he will accept this treatment option or whether he will tolerate taking two medications concurrently.[29]

    [29]    Exhibit A5, p 4.

32. Another psychiatrist, Dr Ewer, has also been asked to assess the applicant (by the respondent).  He examined the applicant on 7 November 2016 and provided a report of the same date.  He formed the opinion that the applicant was suffering from a major depressive disorder and a generalised anxiety disorder.  With respect to whether the condition had been fully treated prior to 12 August 2015, he stated as follows:

    [the applicant’s] mental state was probably not fully treated prior to 12 August 2015. I note in [sic] Dr Loukas suggested a combination of 2 antidepressants and I agree with that suggestion. Unfortunately this was not done prior to 12 August 2015. [the applicant] was not prescribed a potentiating agent prior to 12 August 2015. He was not treated with mindfulness prior to this date. His history suggests that brief reference to being more positive was made but I did not obtain a history of him being treated with cognitive behaviour therapy. I did not get a history that he had been treated with behavioural desensitisation. He probably has not been treated with acceptance commitment therapy. All of these are reasonable options to help his depression but he had not received these options prior to 12 August 2015. Consequently he had not received all appropriate and reasonable treatment by this date.[30]

    [30]    Exhibit R2, p 16.

33. Dr Ewer proceeded to state “[i]n my opinion, his mental health conditions were not fully diagnosed, fully treated or fully stabilised as at 12 August 2015”.[31]

    [31]    Exhibit R2, p 16.

34. Dr Loukas and Dr Ewer also gave oral evidence concurrently at the hearing.  They indicated that they were substantially in agreement on diagnosis, with both considering that the applicant’s primary diagnosis was a major depressive disorder, accompanied by an anxiety disorder.

35. Dr Ewer also referred to the guidelines generally followed by psychiatrists with respect to treating major depression.  He indicated that the steps recommended by the guidelines included tapering and ceasing any agents which lower mood (such as benzodiazepines), a sleep hygiene program, lifestyle changes including attention to exercise, psychotherapy, cognitive behavioural therapy, acceptance commitment therapy, and trial of antidepressants including potentially combining antidepressants or combining antidepressants with Lithium, a potentiating agent or an antipsychotic.  Both doctors also agreed that as at August 2015, it was not apparent all of these steps had been followed with respect to the applicant.  In particular, it was not apparent that steps had been taken to taper and cease mood lowering agents, that a sleep hygiene program had been trialled, or lifestyle changes, including exercise, had been implemented.  They said it was also not clear that the applicant had had formal cognitive behavioural therapy or acceptance commitment therapy, or that he had had combinations of antidepressants or antidepressants combined with antipsychotics or potentiating agents.

36. However, whilst acknowledging that these guidelines were relevant, Dr Loukas indicated that it was not the case that all options necessarily needed to be trialled in every case.  His view that the treatments undertaken, including antidepressants and some cognitive behavioural therapy was “fairly sufficient” and “fairly reasonable”, even though not everything had been done.  Having said that, he acknowledged that when he first saw the applicant, his antidepressant dosage was low and given the fact the applicant was relatively young and was suffering considerable disability he said that the applicant needed to be treated aggressively.  When pressed, he accepted that some treatment options had not been explored and these offered the possibility of improvement. 

1. Dr Ewer’s view was that as at August 2015, even if the applicant’s conditions had been fully diagnosed, they had not been fully treated and there were a number of treatment options which offered a real prospect of improvement which had not been trialled.

2. With respect to prognosis, there was significant disagreement between the doctors.  Dr Ewer’s view was that as at 2015, the major depressive disorder was not adequately treated and there was reason to expect it would significantly improve with appropriate treatment.  He noted that in general the expectation is that within one year, four in five individuals recover from major depression.  Dr Loukas was more pessimistic about prognosis, noting that the applicant had not previously had a good result from antidepressants, although he accepted that it was possible the applicant had not been on some of these for long enough.  Further, he noted that the applicant had developed an entrenched pattern of low functioning, which was a negative prognostic indicator. On questioning on behalf of the applicant, Dr Loukas confirmed that he thought the prognosis for the applicant was relatively poor and he would not be ready for work within two years as at 2015.

3. Nevertheless, in response to a summary of the applicant’s evidence as to his current symptoms and level of functioning, Dr Loukas observed that he thought the applicant could improve from the level of functioning described.  He observed that he “got the feeling” that, once the applicant “got DSP” (in February 2009) “he accepted that he couldn’t do anything.  Which is a shame, he’s still a young man”.

4. With respect to the applicant’s evidence that as at August 2015 he was heavily using alcohol and binge drinking about three times a week, Dr Ewer expressed surprise about this as this was different to the history he obtained.  He also observed that if the applicant was abusing alcohol in mid‑2015, his opinion was that his alcohol dependence condition also was not fully treated at that time.  He also noted that alcohol was a mood altering agent and a depressant, and the guidelines specified that this needed to be ceased or tapered in order to treat depression.  He observed that “if you don’t do that, none of the treatments may work”.  Dr Ewer also agreed with the proposition that with respect to the applicant’s anxiety, there were techniques such as breathing techniques and cognitive behavioural therapy techniques together with medication, which were well researched treatments and tended to have a reasonably high level of success.

5. Both doctors also agreed that as at 12 August 2015, the applicant’s psychiatric status and prognosis was essentially unknown, and he had not been assessed or treated since 2009 and “a lot could have changed” between 2009 and 2015.

   Consideration

6. As the question of whether the applicant’s conditions or any of them were fully diagnosed as at the cancellation date is relatively complex, I will first consider the question of whether his conditions were fully treated and stabilised, noting that in general terms those treating him had a good understanding of the nature of his conditions.

7. As I have already outlined, there is no dispute that the applicant was treated by a psychiatrist in 2006 and 2007, attending approximately 11 consultations between April 2006 and February 2007 according to Dr Schultz. This treatment from Dr Hilton included medication, and he also attended Ms Althorpe, a psychologist, on a number of occasions between September 2008 and May 2009. At the hearing, the applicant provided a document Ms Althorpe had given him titled “Types of Unhelpful Thinking”,[32] and Dr Ewer agreed during his evidence that this supported the proposition that the applicant had undertaken some cognitive behavioural therapy.

   [32]    Exhibit A8.

8. As outlined above, in the form completed by Dr Zuvela in June 2015, he indicated that the applicant’s current treatment was “antidepressants (Zoloft)” and “anxiolytics (Xanax, Diazepam)”.[33]  Based on the material supplied by Drs Zuvela and Schultz, this treatment regime had been in place since at least 2007, with no input from a mental health professional, despite the fact there had been little to no improvement in the applicant’s condition for a period of at least eight years.  Future/planned treatment was described as “psychological review again possibly”. 

   [33]    Exhibit R1, T23/266.

9. While no mention was made of it by Dr Zuvela in June 2015, in a subsequent form completed by Dr Schultz in August 2015, reference was also made to “alcohol dependence” with a date of onset of 2007, and current treatment was described as “counselling, Zoloft, Antenex” commenced in 2007 (although there is no evidence before me of “counselling” occurring between June 2009 and June 2015).  Future/planned treatment was also described as “counselling + Antenex, Zoloft”,[34] despite the fact that this treatment regime had apparently been in place for about eight years and did not appear to be having the effect of reducing the applicant’s drinking.

   [34]    Exhibit R1, T25/282.

10. One of the main issues in this case is what flows from the fact that according to the available records, the applicant had very little medical treatment for any of his psychiatric conditions between 2009 and 2015.  He was not reviewed by a psychiatrist and the Medicare records show only one consultation with a general practitioner, Dr Schultz, for “attendance for GP mental health treatment” on 30 December 2010.

11. Whilst the applicant gave evidence of taking various medications, there is limited evidence before me as to the precise dates on which he took each medication, what the dosages were, or what medical advice he was given between 2009 and 2015 about what medications to take, why, how these were tolerated, the medical reasons for changing medications, etc.

12. The evidence from both Dr Loukas and Dr Ewer was to the effect that treatment for major depression would generally involve regular reviews by a psychiatrist and/or general practitioner.  This would involve monitoring the effects of medication, adjusting medications and dosages as required and also considering the use of the range of treatments outlined by Dr Ewer.

13. On the evidence before me, most of the recommended treatments for major depression had not been trialled by the applicant as at August 2015, or had been trialled only to a limited degree.  It appears that he had some limited exposure to cognitive behavioural therapy techniques whilst he was consulting Ms Althorpe and he has clearly tried a number of medications, although Dr Loukas acknowledged that in some cases these may not have been trialled for long enough. 

14. As at August 2015, the evidence is that antidepressants had not been trialled in combination or in conjunction with potentiating agents, Lithium or antipsychotic agents.  Perhaps more importantly, other recognised and well‑researched strategies, including mindfulness, behavioural desensitisation, acceptance commitment therapy, attention to sleep hygiene and lifestyle changes had not been trialled, and he had not had psychotherapy for about six years.  The evidence also suggests that the applicant was taking benzodiazepines (being a mood lowering medication) in August 2015.  Whilst the applicant told Dr Ewer that he was abstaining from alcohol as at August 2015, his evidence at the hearing was that in fact in August 2015 he was drinking heavily and binge drinking about three times per week.  This could be regarded as consistent with Dr Schultz’s assessment of 26 August 2015 (14 days after the cancellation date), in which he referred to the applicant’s “binge drinking”, although I acknowledge that assessment could also be seen as consistent with the applicant’s binge drinking having recurred or worsened after the cancellation decision.  In any case, Dr Schultz’s assessment indicated that the applicant had suffered from alcohol dependence since 2007, which suggests it was a current condition as at the cancellation date.

15. Assuming that the applicant’s evidence at the hearing was correct and he was drinking heavily as at 12 August 2015, then reduction in his alcohol intake is another important strategy which does not appear to have been in place at that time and, on Dr Ewer’s evidence, this would be the first step in treating his major depression.

16. I note Dr Loukas’ oral evidence that prior to August 2015, the applicant had had “fairly reasonable” treatment.  However, I also note his comment during his evidence that it is fortunate from the applicant’s point of view that his DSP was reviewed, as that has prompted him to seek and obtain appropriate treatment.  Dr Loukas also observed that the applicant is a relatively young man who is very significantly impaired and his depression should be treated “aggressively”.  He further indicated that when he first saw the applicant, in June 2016, his current dose of antidepressant was “suboptimal”.

17. I also note that Dr Loukas did not disagree with Dr Ewer’s description of the applicable guidelines and the steps which would generally be taken, or at least considered, in order to treat major depression, including reducing or eliminating mood lowering agents and attention to sleep hygiene and lifestyle factors, including exercise, as well as ongoing psychotherapy.  With respect to the applicant’s severe anxiety symptoms and social phobia, he did not disagree that there were techniques available including cognitive behavioural therapy, desensitisation, and controlled breathing, which were very effective and potentially offered the prospect of improvement in the applicant’s case.  He also agreed that, currently, the applicant’s anxiety symptoms, including social phobia, were contributing significantly to his overall level of functional impairment. 

18. I note that Dr Ewer was strongly of the view that there were effective treatments which should be tried in the applicant’s case and which offered a real prospect of significant improvement.

19. Having carefully considered all of this evidence, on balance, I have ultimately concluded that I am satisfied none of the applicant’s then psychiatric conditions had been fully treated as at August 2015. 

20. It is striking that as at August 2015, the applicant had had no treatment from a mental health professional for any of his psychiatric conditions since 2009. 

21. With respect to his major depression, as explained by Dr Ewer, there were a number of effective treatment options which had not been trialled as at August 2015, and it is not clear on the evidence that a concerted and recent attempt had been made to ascertain the optimal medication for the applicant.  The evidence suggests that mood lowering agents, potentially including benzodiazepines and alcohol had not been reduced or eliminated, and no concerted attempt had been made to improve his sleep hygiene or introduce lifestyle measures including exercise.  Nor had the applicant been treated with mindfulness or acceptance commitment therapies, or had recent psychotherapy.

22. With respect to his anxiety symptoms, including social phobia, although it appears that the applicant has been suffering from severe and disabling symptoms for a lengthy period of time, as at August 2015, no recent and concerted attempts had been made to address these by reference to cognitive behavioural therapy techniques, controlled breathing, behavioural desensitisation or other treatments referred to by Dr Ewer. 

23. On the evidence, it appears likely that the applicant also had relatively severe alcohol dependence in August 2015.  There is no evidence before me to suggest that this was being effectively monitored and addressed with a view to reducing or eliminating his drinking, notwithstanding that this was likely to be negatively impacting on his other psychiatric conditions, and compromising the treatment of those conditions.  Given the apparent severity of the alcohol dependence which the applicant described as at August 2015, I note Dr Ewer’s opinion was to the effect that addressing this would be the most important first step in treating his depression.  I also note that, based on the applicant’s 2006 statement, his treatment from Dr Hilton included reduction of his alcohol intake.

24. For essentially the same reasons, I have also concluded that as at August 2015, not only were they not fully treated, but none of the applicant’s then psychiatric conditions were fully stabilised.  In the case of each condition, namely major depression, anxiety and alcohol dependence, I consider that there were reasonable treatment options available which had not been trialled, or had not been trialled sufficiently and, disregarding the applicant’s actual response to treatment he has had since then, it could not be said in August 2015 that if such treatment was undertaken, it would not be expected to result in a significant functional improvement such as to allow him to undertake work for at least 15 hours per week within two years.  In my view, treatment of the kind the applicant has subsequently undertaken, that is regular reviews by a psychiatrist together with more frequent sessions with a psychologist, was indicated in August 2015.  Further if that treatment had been intended to embrace psychotherapy, adjustments to his medication, and reduction or elimination of his alcohol intake and/or benzodiazepine use, together with consideration of the range of other treatment options canvassed by Dr Ewer and Dr Loukas, it offered the prospect of a significant functional improvement sufficient to potentially enable the applicant to work 15 hours per week within two years. 

25. As I am satisfied that none of the applicant’s psychiatric conditions were fully treated or stabilised as at 12 August 2015, it follows that none of them attracted an impairment rating under the Tables.  Accordingly, as the applicant was not suffering at that time from an impairment which attracted an impairment rating of at least 20 points under the Impairment Tables, he was not qualified for DSP on that date and, in my view, his DSP was correctly cancelled.  I have therefore decided to affirm the decision under review.

    DECISION

26. The decision under review is affirmed. 

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

..........[Sgd].........................................

Associate

Dated: 8 September 2017

Dates of hearing:	3 and 16 August 2017
Solicitors for the Applicant:	Ms M Riley Welfare Rights Centre (SA) Inc.
Solicitors for the Respondent:	Mr C Visser Department of Human Services FOI & Litigation Branch