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

[2015] AATA 791

Rawson and Secretary, Department of Social Services (Social services second review) [2015] AATA 791 (9 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0172
Re	Brian Rawson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	9 October 2015
Place	Perth

The decision under review is affirmed.

..(Sgd) A F Cunningham......................................................................

CATCHWORDS

Social Security - disability support pension - failure to meet qualification requirements - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Social Security Act)

Social Security Administration Act 1999 (Administration Act)
Social Security Tables for the Assessment of Work-related Impairment Disability Support Pension Determination 2011 (Impairment Determination)
Social Security Requirements and Guidelines-Active Participation for Disability Support Pension Determination 2011 (POS Determination)

REASONS FOR DECISION

9  October 2015

REASONS FOR DECISION

1. The applicant, Brian Rawson seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) dated 11 December 2014 which affirmed a Centrelink decision rejecting his claim for disability support pension (DSP). The SSAT concluded that none of Mr Rawson’s medical conditions attracted the required impairment rating to qualify for DSP.

2. The hearing was held by telephone link to the applicant and the respondent’s representative in Western Australia. The applicant submitted two medical reports from Dr Kevin Dodd, consultant psychiatrist dated 30 July 2015 and 3 September 2015 together with a Centrelink medical certificate signed by Dr Dodd on 7 July 2015. The T documents were received in evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

   BACKGROUND

3. The applicant lodged his claim for DSP on 15 November 2013 together with a DSP medical report from Dr G Milne (GP) dated 15 November 2013. The conditions listed in the medical report are hepatitis B, hepatitis C, drug use, insomnia and G6P deficiency.

4. On 20 November 2013 the applicant attended a job capacity assessment (JCA) carried out by a registered psychologist.

   LEGISLATION

5. The legislation relevant to this application is contained in the Social Security Act 1991 (Social Security Act); the Social Security (Administration) Act 1999 (Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011 (Impairment Determination); and the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (POS Determination).

6. The qualification provisions are contained in section 94 of the Social Security Act, subsection 1 of which provides:

   (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 20 points or more under the impairment tables; and

   (c) one of the following applies:

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

7. The Administration Act provides that the start day for a qualified DSP claimant is the date of the claim which means that qualification and impairment ratings must be determined as at the date of the claim. The only exception is where the person is not qualified on the date of claim but “will… become qualified” and “becomes so qualified within 13 weeks of lodging a claim’’, in which case their start day is the day they became qualified (Schedule 2 clause 4 (1) of the Administration Act).

8. The assessment period for consideration of Mr Rawson’s qualification for DSP is therefore 15 November 2013 to 14 February 2014.

   ISSUES

9. The issue for determination is whether the applicant was qualified for DSP when he lodged his claim on 15 November 2013 (or in the 13 weeks thereafter). This requires a consideration as to whether, at the relevant time: the applicant suffered from any conditions causing impairment; if so, whether these impairments attract ratings of at least 20 points on the Impairment Tables; and if so, whether the applicant had a continuing inability to work.

   CONSIDERATION

10. The diagnosed conditions included in Dr Milne’s medical report are accepted by the Secretary as constituting impairments as the term is defined in the Impairment Determination at section 3. The Tribunal accordingly finds that the applicant satisfies the qualification requirements of subsection 94 (1) (a) of the Social Security Act.

11. The next issue for consideration is whether the applicant’s impairments rate at least 20 points under the Impairment Tables.

12. In order for an impairment to attract an impairment rating under the Impairment Tables, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years as required by subsection 6 (3) of the Impairment Determination. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and stabilised and likely to last for more than two years.

13. An impairment rating is assessed in accordance with the Impairment Tables made pursuant to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.

14. In determining whether a condition has been fully diagnosed and treated, consideration must be given to any corroborating evidence of the condition, what treatment has occurred and whether treatment is continuing or planned in the next two years (section 6 (5) of the Impairment Determination.)

15. For a condition to be fully stabilised the person must have undertaken reasonable treatment and there should be evidence that it is unlikely that there will be any significant functional improvement with further reasonable treatment that would enable a person to work in the next two years. A condition can also be considered fully stabilised if the person has not undertaken reasonable treatment and there is a compelling reason for them not to undertake that treatment, or if there would be unlikely to be significant functional improvement that would enable them to work in the next two years (section 6 (6) of the Impairment Determination).

16. The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating medical evidence (section 8 of the Impairment Determination and the Introduction to the Tables).

17. Paragraph 11 (5) of the Impairment Determination provides that a diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned.

    ANXIETY/DEPRESSION

18. The SSAT concluded that whilst it was evident that the applicant suffered a mental health condition which has a significant effect on his ability to function, the condition had not been diagnosed by either a psychiatrist or with input from a clinical psychologist. Further, the condition did not appear to have been either optimally treated or stabilised and could not therefore be assigned an impairment rating under Table 5.

19. The Introduction to Table 5 states that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

20. The evidence tendered in the form of two reports from Dr Dodd postdate the assessment period.  Dr Dodd states in his report of 30 July 2015 and that he saw the applicant on 7 July 2015 for an initial assessment and again on 24 July for a follow-up appointment. He noted that the applicant has a history of long-standing daily anxiety and worry and had previously seen a clinician at the Armadale Mental Health Service some 15 to 20 years ago for similar problems. The applicant had informed him that he had been trialed on numerous medications including Zoloft but without benefit and that the duration of the treatment is unclear. Dr Dodd stated that for the past 20 years the applicant had been treated with diazepam and currently takes 5 mg tablets. The applicant was heroin dependent for 12 years but ceased some six years ago.

21. There is no evidence contained in either of Dr Dodd’s reports that is referrable to the assessment period and therefore is of no real assistance to the Tribunal. In the absence of a diagnosis of anxiety/depression or other mental health condition during the assessment period, no impairment rating can be assigned.

    HEPATITIS B AND HEPATITIS C

22. Both of these conditions are diagnosed in Dr Milne’s reports and confirmed by pathology. Dr Milne lists current and past treatment in his medical report however there is no evidence that the applicant’s hepatitis has been the subject of effective medical treatment or that any treatment is planned for the future. Current symptoms are described as “tired, poor stress tolerance, anger management”.  Dr Milne does not detail the impact on the applicant’s ability to function, nor does he state whether any impact is expected to persist for more than 24 months.

23. The Tribunal finds that the applicant’s hepatitis cannot be considered fully treated and fully stabilised during the relevant period and therefore an impairment rating cannot be assigned in respect of this condition.

    DRUG USE, ALCOHOL USE, INSOMNIA, G6P DEFICIENCY

24. Each of the above medical conditions has been diagnosed by Dr Milne during the relevant period. However there is insufficient evidence in his medical report to establish that these conditions were fully treated and fully stabilised during the assessment period. At T5 page 42 Dr Milne lists the conditions of drug use, insomnia and G6P deficiency as being generally well-managed and causing minimal or limited impact on ability to function.

25. There is no persuasive evidence before the Tribunal that these conditions have been fully treated and fully stabilised during the assessment period and therefore they cannot be considered permanent such as to attract an impairment rating.

    FINDING

26. On the evidence before the Tribunal none of the diagnosed conditions can be considered permanent within the meaning of the Impairment Determination such as to attract an impairment rating. The applicant therefore fails to qualify for DSP on the basis that his accepted conditions fail to attract an impairment rating of 20 points or more as required by subsection 94 (1) (b) of the Social Security Act. It is accordingly not necessary for the Tribunal to consider the remaining qualification requirements for DSP namely continuing inability to work and active participation in a programme of support.

27. For all of the above reasons of the Tribunal determines to affirm the decision under review.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of

...(Sgd) A Tran.....................................................................

Administration Assistant

Dated 9 October 2015

Date(s) of hearing	23 September 2015
Applicant	In person
Representative for the Respondent	Mr D Carroll
Solicitors for the Respondent	Australian Government Solicitor