QX06/10 and Secretary, Department of Employment and Workplace Relations

[2006] AATA 780

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 780

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/812

GENERAL ADMINISTRATIVE DIVISION		)
Re		QX06/10

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date13 September 2006

PlaceBrisbane

Decision  The Tribunal affirms the decision under review.  

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

KS Levy

Member

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - disability support pension - obsessive compulsive disorder - continuing inability to work - insufficient evidence to conclude applicant is unable to work because of psychiatric condition.

REASONS FOR DECISION

13 September 2006  Dr KS Levy, Member

Background

1.The applicant, with the aid of her parents, unsuccessfully applied for a Disability Support Pension for her Obsessive Compulsive Disorder, to the Secretary, Department of Employment and Workplace Relations (“the Respondent”).  The original decision was made on 20 May 2005.  This decision was reviewed by the original decision maker and an Authorised Review Officer.  It was subsequently considered by the Social Security Appeals Tribunal (“SSAT”) and by decision dated 2 November 2005, the Centrelink decision was affirmed.

2.The applicant is presently 17 years of age and is attending Grade 12 at a Brisbane High School.   She lives with her parents and two sisters, one older and one younger than herself. 

Preliminary

3.The Tribunal acceded to a request that the applicant’s name not be published in any public document, nor in any transcript or decision in this matter. The order, under s35 of the Administrative Appeals Tribunal Act 1975, was also made in respect of the applicant’s parents.

Issues

4.The issues in this case are whether the applicant satisfies section 94(1) of the Social Security Act 1991, that is:

(a)Does the applicant have a psychiatric impairment of Obsessive Compulsive Disorder?

(b)If so, is that impairment one with a total rating of 20 points or more under the Impairment Tables? and

(c)If so, does she have a continuing inability to work?

Evidence

5.The following documents were admitted into evidence:

·Exhibit 1 T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975

·Exhibit 2    The applicant’s amended Statement of Facts and Contentions dated 1 August 2006

·Exhibit 3    Report of Dr Michael Beech dated 13 July 2006

·Exhibit 4    Report of Dr Maria Haase dated 31 July 2006

·Exhibit 5    Curriculum Vitae of Dr Michael Beech

·Exhibit 6    School Semester Report of Semester 1, 2006 of the relevant District State High School.

6.      The applicant did not give oral evidence, her parents considering that it may be stressful for her if she was in the hearing room or had to provide evidence.  However, she sat outside the hearing room all day.  She was in school uniform and was in direct view of the Presiding Member for virtually all of the hearing between 10.00am and 3.40pm and made eye contact on a number of occasions.  She sat outside and was very disciplined in what appeared to be her academic school work. 

the Applicant’s Father

6.      The father’s evidence was that the applicant was first referred in 2001 to the Redland Youth Mental Health Centre by Dr Pitt, a general practitioner.  The applicant’s father was critical of that service and then went to Di Maria Haase.   The applicant also had seen two psychologists, Ms Corinne Mioche and a Ms Rimland.

7.      The applicant then saw Dr Michael Beech in 2001 who confirmed the diagnosis of Obsessive Compulsive Disorder (“OCD”).  She was initially prescribed Zoloft, but has also undertaken Cognitive Behaviour therapy which has tended to keep her “stable” and “well”.  The applicant’s father explained this meant that it was to keep her repetitive acts or rituals within some degree of control.  He described previous extreme rituals resulting in, for example, the toilet being clogged with toilet paper. 

8.      The witness said that the High School had been very supportive and that teachers know that the applicant is to be given extra time to complete work.  For example, the witness stated that where the applicant was to finish an examination by 3.00pm, she was still going at 5.15pm.  She was also given extra tuition by her mathematics teacher.

9.      The applicant gets stressed over transport matters.Her father described a situation where his daughter gets near her friend’s place (where she has been many times before) but gets disoriented.  She frequently rings her father and he goes to pick her up.  He does so where often she is only a short distance from a friend’s house.  The witness explained that this is very disruptive to his work schedule but something which is necessary in his daughter’s developmental cycle.  The witness stated that she sends him text messages three to four times each day just to remind him about picking her up where she feels uncomfortable about possibly getting lost.  She worries that her father might forget. 

10.     The applicant has had work experience.  Her elder sister worked at Big W as a night filler and it was hoped that the applicant might also.  It was thought that the repetitive nature of the work may be a factor that would make her successful.   However, while she has worked in that capacity about 10 times between March and July, she has not been called back since. The applicant’s father did not provide any further detail, nor did the applicant or the respondent’s advocate pursue that further.  She also worked with her mother at the Catholic Church as a cleaner, but she did not like cleaning toilets and this exacerbated her condition.

11.     The applicant’s father stated he was a Recruitment Counsellor and dealt with placement of people with disabilities in the workplace.  He told the Tribunal that in his professional field, he would be optimistic of having his daughter placed in the labour market but it can be more difficult on a full time basis.  The applicant thought she could not work full time, as evidenced by recent employment with Big W.  He also based this on a speed and accuracy test she did with Coles Myer, where her performance was poor.

12.     When asked what career path the applicant might pursue, the father said he and his wife were not pushing her, although he would like her to be a Physical Education Teacher.  She loves sport, but has not done all the right subjects.

13.     However, the father said in relation to travelling independently, his daughter can look on the internet to find bus timetables but he considers it is too confusing for his 17 year old to get a bus and train to their suburb.  Nevertheless, she has a good circle of friends and has a boyfriend.  Her parents have endeavoured to ensure the applicant has as much normalcy as possible in her situation.  The father stated that no one understands his daughter’s situation, only her family and Dr Beech.

14.     Under cross-examination, the father stated that she plays tournament tennis in the Metropolitan regional team, although she is not ranked at a State level.    She socialises normally, although the witness attributed some of that success to the work “behind the scenes” by her family. 

15.     The father has aspirations for his daughter for the future.  She passed Grade 11 (with grades of three out of five) but with much support.  He stated that he had sought the teacher’s assistance to ensure his daughter’s late attendances were not noted on her official school record.

16.     He thought they could not afford to support her on their income.

17.     The witness also thought that his applicant daughter could not work full time because there would be a lesser rate of productivity.  He referred to a scheme where the employer may pay a percentage of the award wage and the client provide the earnings to Centrelink, whereby DSP earnings are in turn adjusted, based on those earnings.  At present, he referred to her not being able to work more than 15 hours per week when she had chronic OCD.  At present, she is in school for the other four days per week.

The Applicant’s Mother

18.     The mother confirmed the father’s evidence.  She referred to the applicant’s symptoms changing depending on need to perform in exams and assignments.   She stated the applicant sometimes cannot turn off the shower.  The applicant’s obsessions just change periodically.  The mother said that although her daughter is not lazy, she just did not know how the applicant would get to work if she was not there.   

19.     The mother said that the daughter must be dropped off at school and picked up most of the time.  She spends time at friends places, where there is a parent present.  The applicant has a mobile phone.  The applicant calls her at least once each day where she has forgotten an assignment, lunch money, tennis shoes or other requirements.

20.     The mother said if anything, her daughter tends to get worse as she gets older. She described her daughter as having difficulty in interacting effectively with her two sisters. For instance, she would never touch anything her elder sister had touched.

Medical Evidence

21.     Dr Beech, who has treated the applicant since 2001, is a psychiatrist with experience in adolescence and specialises in obsessive disorder. 

22.     Dr Beech thought the applicant had a moderate to severe case of OCD.  In the early stages, he expected improvement, as his report of 6 April 2005 indicated that he expected her condition to “significantly improve” with the following two years.  However, one week later, on 24 June 2005, Dr Beech reported that she required “parental assistance with toileting, bathing and grooming as well as personal hygiene and dressing”.

23.     In a Health Professional Assessment dated 24 June 2005, Dr Beech reported that the condition was “temporary”.  He noted that the applicant sometimes showed signs of depression, had no memory loss, never withdrew from social contact, and never displayed aggression.  He noted occasional attributes of disinhibited behaviour.  

Consideration

24.     The legislation covering the facts of this application are those as at the date of the application.  These are contained in the Social Security Act 1991 and are provided for in s 94 as follows:

“94.  Qualification for disability support pension–continuing inability to work

94.(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.

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

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)    the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on the-job training during the next 2 years; or

(ii)   if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94.(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of a educational or vocational or on-the-job training; or

(b)if subsection 4 does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

…

94.(5)  In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments:”

25.     Based on the medical evidence, this Tribunal accepts that the applicant suffers from obsessive compulsive disorder [section 94(1)(a)].  Based on other evidence available, the Tribunal accepts that there is an impairment rating of 20 points or more [section 94(1)(b)].

26.     The critical question is whether the applicant has a “continuing inability to work” [section 94(1)(c)].  This clause is defined in section 94(2) and is quoted above.  Under section 94(2)(a) the Tribunal must be satisfied that the applicant’s OCD is sufficient to prevent her from doing:

(a)her usual work;

(b)work for which she is currently skilled.

27.     To the extent that the applicant has any “usual work”, she being a full time school student, it could be described as a shop filler in line with work she performed at Big W.  The applicant’s father stated she worked there about ten times but they just did not call her back.  The father’s perception was that this was due to her OCD, however, no evidence was presented as to why this was.  The Tribunal would have been better assisted by evidence from the employer at this point.

28.     Other indicia as to her competence relates to her interaction with her family.  She is said to be somewhat haphazard in tasks at home and requires a great deal of support.  For example, even making a cup of coffee results in considerable cleaning up by her parents. She was portrayed as being incompetent with the ordinary things of life, including dressing, bathing and toileting.  The father of the applicant also claimed that he had asked the school to alter official records to reflect that her poor record of timely school attendance was better than it actually was. 

29.     On the other hand, the applicant’s relevant competencies include that she actively participates in sport, interacts socially and has a boyfriend.  Her school report (Exhibit 6) from Semester 1, 2006, shows she consistently displays excellent behaviour and a positive attitude.   She is noted as being polite and co-operative.  Almost invariably, her subject teachers report that she participates and performs satisfactorily.  She is regarded as a “responsible student” (Legal Studies) but in some subjects she is said to need to “study more and take care with exams”.

30.     The Tribunal accepts that the applicant’s father and mother are exceedingly concerned about the future for their daughter.  This is understandable, especially where the father is experienced placing those with disabilities in employment.

31.     The Tribunal took into account evidence of the Deputy Principal and Guidance Office at the school (Folios 82-83), and took into account the Semester report detail in Exhibit 6, as well as the evidence of performance and effective integration at school and with peers. That evidence stands in stark contrast to the evidence of the applicant’s parents.  The facts related by the parents to Dr Beech and Dr Beech’s assessment are consistent with each other. But based on all of the evidence provided to this Tribunal, there seems to be difficulty projecting the applicant as being unlikely to effectively integrate harmoniously into the workplace on the basis of her relatively successful social interaction and academic performance, which is within the normal result range.  

32.     On this basis, the Tribunal was not satisfied that her OCD prevents her from doing work on the basis of her one time employer not calling her back after ten work shifts, as this is not sheeted home to her performance on the job. Equally, performance in the workplace in the future cannot be said to be fairly predicted for this young applicant on the basis only of her behaviour at home or the some aspects of her school performance. There is simply not sufficient evidence to conclude that under Section 94(2)(a), that the applicant would be prevented from doing any work for the next two years. Indeed, her prospects could be said to be more positive than negative.  Therefore, the Tribunal finds that the requirement in section 94(2)(a) is not satisfied.

33.     In addition, it must be shown that the test in Section 94(2)(b) is also met, that is, that either:

(i)the OCD is itself sufficient to prevent the applicant undertaking education or vocational training or on-the-job training during the next two years; or

(ii)such educational or vocational training or on-the-job training is not likely to equip the person to do any work within the next two years.

34.     Section 94(2)(a) and either subsection (i) or subsection (ii) of section 94(2)(b) must be satisfied to meet the qualification for Disability Support Pension on the basis of “continuing inability to work”.

35.     In assessing vocational or educational programs, those programs especially designed for people with disabilities are not to be taken into account [section 94(5)].  Also, regard is not to be had as to the availability of work to the person in her local area [section 94(3)].

36.     In relation to section 94(2)(b)(i) the evidence does not indicate an inability to successfully undertake educational or perhaps more relevantly, vocational training over the next two years.  Her academic record does not support that conclusion.  Indeed she undertakes some work or catch up work on one day per week now. This is so as the evidence indicated students at the applicant’s school attend school four days per week and spend the remaining one day per week doing work experience, or they can catch up on academic work.

37.     But in relation to section 94(2)(b)(ii), does this evidence indicate the applicant is unlikely to be equipped to do any work within the next two years.  She clearly has some difficulties with meeting some time deadlines and living in harmony with everyone at home.  However, the evidence does not demonstrate that she is performing ineffectively in her school life, social and sporting life. In addition, there was no evidence of psychotic illness, no problems of mobility, no impairment of sight, or hearing, and no significant intellectual impairment.  She may have an impairment which may be with her for life. Alternatively, it may be “temporary”, even though it may exist for more than the next two years.  But her academic achievements to grade 12, together with her social and other interactions do not provide evidence that she will not be able to undertake educational or vocational training or to absorb such training to be able to undertake work within two years. 

38.     That is not to minimise the extent of obsessions as they may be concealed at times.  The Diagnostic and Statistical Manual (Text Revision) states that “Children may be more prone to engage in rituals at home than in front of peers, teachers or strangers” (DSM-IV TR page 459).  However, while 15% may show progressive deterioration in occupational and social functioning (DSM-IV TR page 459), adults at some point usually recognise that their obsessions are excessive.  This does not apply to children, because children lack sufficient cognitive awareness to make this judgment (DSM-IV TR page 457).

39.     In all circumstances, the applicant is a young person with OCD, who is  progressing satisfactorily in grade 12 albeit with more stress on her parents to support her towards her achievements than the parents consider is normal. Nevertheless, she appears to have a level of intelligence and capacity that provides a cause for optimism for success in life for her.  She has a supportive family that will complement those chances of success, although this does not account for her own personal ability and clear personality attributes which indicates her success in academic learning and interpersonal skill, both of which are relevant to assessment under section 94(2) of the Act.  While she meets the 20 points test, she does not satisfy  section 94.

40.     The Tribunal accepts that she is likely to have some features of OCD for at least the next two years.  However, the Tribunal was satisfied that the evidence does not show that she has a continuing inability to work, and therefore does not comply with section 94(2).

41.In the circumstances, the decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member

Signed:         J Lauriston

(for) Legal Research Officer

Date/s of Hearing  2 August 2006
Date of Decision  13 September 2006
For the Applicant  Ms R Wilkinson, Legal Aid
For the Respondent                  Mr R McQuinlan, Departmental Advocate