Re Secretary, Department of Workplace Relations and Nicholas
[2006] AATA 497
•7 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 497
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/493
GENERAL ADMINISTRATIVE DIVISION ) Re Secretary, Department of Employment and Workplace Relations Applicant
And
Ian Nicholas
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date7 June 2006
PlaceSydney
Decision A stay order is granted.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
APPLICATION FOR STAY ORDER – payment of disability support pension – respondent’s condition of depression not adequately investigated, diagnosed, treated or stabilised to warrant an impairment rating – applicant has significant prospects of success at a substantive hearing – respondent would not suffer hardship if stay granted – risk that the respondent would incur a debt which is unlikely to be recovered – if stay not granted public monies would be paid when not warranted.
Administrative Appeals Tribunal Act 1975 s 41(2)
Social Security Act 1991 ss 94, 94(1), 94(2), 94(3), 94(5)
Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418
Re Griffiths Grif-Air Helicopters PtyLtd and Civil Aviation Authority (1993) 31 ALD 380
REASONS FOR DECISION
7 June 2006 Professor GD Walker, Deputy President Summary
1. The respondent, Ian Nicholas, who is aged 45, claimed disability support pension in November 2005 for ulcerative colitis and depression, which was rejected by Centrelink on 3 January 2006 and the decision affirmed by an authorised review officer on 7 March 2006 on the ground that Mr Nicholas’ psychiatric condition had not been adequately investigated, diagnosed, treated and stabilised to warrant an impairment rating.
2. On 31 March 2006, the Social Security Appeals Tribunal (SSAT) found that the respondent had an impairment rating of 10 points for his ulcerative colitis and 10 points for his depression and had a continuing inability to work and therefore qualified for disability support pension. That is the decision to be reviewed by the tribunal and the subject of the current application for a stay order by the tribunal.
Background
3. The respondent, Mr Nicholas, was born on 25 April 1961 and is aged 45. On 15 November 2005, he applied for disability support pension (DSP) for ulcerative colitis and depression. He was assessed by Dr Peter Cook, Health Services Australia, on 5 December 2005 as having an impairment rating of 10 points for his ulcerative colitis but HSA rejected his claim for depression on the grounds it was a temporary condition (T35 p220). He was also assessed as being currently fit for 30 hours work or study per week and therefore did not qualify for disability support pension. This decision was affirmed by an authorised review officer on 7 March 2006 (T53 p261).
4. The respondent appealed this decision and on 31 March 2006, the SSAT found that the applicant did have an impairment rating of 10 for ulcerative colitis and that his “depression should not be considered temporary because it is a longstanding condition, associated with domestic violence and drug use. Mr Nicholas has tried antidepressant medication, however it exacerbated his ulcerative colitis. The Tribunal considered that the appropriate rating for the depression was 10 points under table 6 because Mr Nicholas has moderate and regular symptoms, and difficulty with daily functioning; there has also been a noticeable reduction in social contacts; he has been treated with antidepressants and counselling”. The SSAT having found that he satisfied all the other requirements decided that he should be paid disability support pension (T2 p3).
5. On 1 May 2006, the applicant lodged an application for a review of that decision by the tribunal. On the same day, the applicant also lodged an application for a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975. In making this application the applicant submitted:
(a) The Secretary’s application has real prospects of succeeding;
(b)In the event that a stay is not granted and the Secretary is successful in the substantive proceedings before the AAT, it will place greater financial hardship upon the Respondent than if a stay is granted.
6. When lodging its substantive application with the tribunal, the applicant noted:
The SSAT assigned an impairment rating of 10 points for Mr Nicholas’ depression. However the Secretary argues that there has not been optimal or reasonable psychiatric treatment in relation to this condition. Therefore the condition has not been adequately investigated, diagnosed, treated and stabilised to warrant an impairment rating.
Therefore the appropriate combined impairment rating in respect of Mr Nicholas’ medical condition is 10 points (for ulcerative colitis under Table 11.2 of the Impairment Tables). Therefore Mr Nicholas fails to satisfy section 94(1)(b) of the Act.
7. Mr Nicholas opposes the stay.
8. At the hearing of the stay application, the applicant was represented by Alan Duri, advocate, legal services branch, Centrelink and the respondent appeared in person.
Applicable Legislation
9. The tribunal is empowered to make a stay order in proceedings before the Tribunal pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975. This states:
(2)The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceedings before the Tribunal (in this section referred to as the relevant proceedings), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relate or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
10. The principal legislation is the Social Security Act 1991 (the Act). Section 94 of the Act provides the qualification criteria for disability support pension:
Qualification for disability support pension
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.
…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
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.
Note: For work see subsection (5).
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 educational or vocational training 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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely 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.
"on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
"work" means work:
(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Person not qualified in certain circumstances
94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
11. Schedule 1B of the SSA contains the Impairment Tables for assessing medical conditions. The introduction to these tables provides, inter alia:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
Consideration
12. The respondent Mr Nicholas gave oral evidence. He was a voluble witness and quite articulate in his own way. He said he has had depression for most of his life. He smoked drugs (presumably marijuana) for 17 years, and 20 years ago attended a group at Gosford called Grow to try to understand what ailed him. He participated in that group for about 12 months.
13. In 2001 he consulted a psychiatrist, who referred him to a counsellor at the St Vincent de Paul Society, with whom he met over a period of six to 12 months. He also joined a domestic violence group and groups working on drugs and personal development. Later at Redfern Health Centre he met someone named Fran Bowick; it was not quite clear if Ms Bowick was a social worker or whether her mother had been a social worker and she had learned something from her. At all events she was not a psychiatrist. Mr Nicholas saw Ms Bowick at Waterloo Community Centre for a one-hour session each week and for about four days a week spent his time at the centre because it made him feel better, and he was able to help out there.
14. At one stage he obtained employment as a childcare worker with South Sydney Municipal Council, but resigned after a few months because he was unable to supervise the children properly because of his colitis condition. He now works with the Hope Street Centre at Waterloo (Hope Street) as a community development worker. Those administering the centre understand his health position and he works there for about 19 hours a week, sometimes spreading his working hours over six days. He earns about $300 a week and receives about $80 per fortnight by way of mobility allowance. He would like additional money so that he could buy things for his children, whom he has not seen for three years. He has three daughters who live together at Earlwood and one son who has moved to Queensland where he lives with his mother. Two daughters are attending Catholic schools but he cannot support them. Occasionally he makes a modest contribution to their school fees.
15. He finds his work quite stressful and suffers from “sadness”, partly on account of the nature of his work and partly because of painful memories over the fact that his daughter was twice (or on another version three times) raped when she was 15. She is now 23. He says he has suffered two nervous breakdowns in his life, from which he only recovered by reading the Bible. He lives alone in a two-bedroom Housing Commission apartment at Redfern. He says he is isolated but has been involved with a local football club for seven years, and also helps street children by taking them to the football. He also helped to start a men’s camp for fathers and their sons. Some of the work he does for Hope Street is voluntary.
16. He started smoking marijuana again some time ago because he felt upset, angry and anxious. He was prescribed Lexatro as an anti-depressant, but it made him sick because of his colitis. Problems with his back had been preventing him from sleeping well, and on consulting a general practitioner he was prescribed Mirtazamine, which is a sleeping preparation that also contains an anti-depressant.
17. He tendered a medical certificate dated 31 May 2006 from Dr Srividya Ravi of Waterloo Medical Centre (Exhibit R1). It is handwritten and not easy to interpret, but after the formal parts it appears to read as follows:
This patient is known to me for many years. He has a long history of ulcerative colitis, and depression and drug use, and arthritis. Patient has been referred to Redfern Community Health Centre for psychiatric review. Patient has received counselling and support from GP, psychiatrist, social worker, and psychologist since 1998. Patient has been on anti-depressants from time to time when symptoms [illegible].
He also has a bit of family problems and is separated from his children.
18. Mr Nicholas said he last visited a psychiatrist in 2001, when he was referred to the St Vincent de Paul Society. He is reluctant to see psychiatrists, however, because his sister spent some time in Rozelle Psychiatric Hospital for schizophrenia. Asked about the reference in Exhibit R1 about his being referred to Redfern for psychiatric review, he said that was five or six weeks ago. The Redfern Centre had telephoned and asked him to come in but he had not yet done so. He is reluctant to see a psychiatrist but would like to obtain support and intends to follow up the invitation to attend Redfern Health Centre.
19. His only current debt appears to be $1,600 owed on his Visa card, of which he pays $50 a month. If he had a debt to Centrelink, it would come out of his mobility allowance.
20. The applicant relied on the T documents and statements by Mr Nicholas in his oral evidence, but adduced no other evidence.
21. The issue for the tribunal to determine in this case is whether, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, it is desirable to make a stay order “for the purpose of securing the effectiveness of the hearing and determination of the application for review”. There are four sub-issues which the tribunal considers relevant to the determination of a stay order: first, the prospect of success or otherwise of the application; secondly, whether there will be prejudice to the parties if the stay is not granted; thirdly, the public interest, and fourthly, whether the review application, if successful, will be rendered nugatory if the stay is not granted (Re Griffiths Grif-Air Helicopters PtyLtd and Civil Aviation Authority (1993) 31 ALD 380 at 385; see also Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418).
22. As to the first issue, the prospects of success at a substantive hearing, the applicant states in its submission on the stay hearing (Exhibit A2) that there is no medical evidence to support the SSAT’s decision that Mr Nicholas’ depression is permanent and warrants a rating of 10 points. To be considered permanent, a condition must be investigated, treated and stabilised. The respondent informed the SSAT that he was not receiving any active treatment for his depression. Further, there is insufficient evidence to support the finding that he has a continuing inability to work. Mr Nicholas currently works approximately 19 hours per week. Dr Cook of Health Services Australia assessed him as being fit for light semi-skilled work for at least 30 hours per week. The respondent has trained as a chef and social worker and the applicant submits there are a variety of work options which could suit his medical conditions.
23. Mr Nicholas said he thought Dr Cook was very young and feels that he might not adequately have explained his condition to Dr Cook. He believes that at the substantive hearing of the application he will be better prepared and he is confident that his case will be successful.
24. There is, however, no psychiatric evidence before the tribunal supporting Mr Nicholas’s arguments. That is largely his own doing, as he is loth to consult a psychiatrist and although called in by Redfern Community Health Centre for psychiatric review about four or five weeks ago, he has yet to take up that invitation. He has not received any serious psychiatric evaluation or treatment for about five years.
25. Schedule 1B of the Act states that:
Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
26. In the present case the condition has not yet been systematically investigated, let alone treated and stabilised. The applicant says it will arrange to send him to a psychiatrist, and it may be that the results of that investigation could support Mr Nicholas’s case. As the evidence stands, however, he does not meet the statutory criteria and the applicant must therefore have significant prospects of success at the substantive hearing.
27. The second sub-issue is the question of prejudice to the parties. The applicant submits that the respondent would not suffer any prejudice if a stay is granted because Mr Nicholas is currently earning approximately $381.33 gross per week and that on this basis, his disability support pension would be $250.04 per fortnight. If a stay is not granted Mr Nicholas will receive arrears of payment of approximately $3,500 for the period from 15 November 2005 as well as ongoing payments of $250.04 per fortnight. If the applicant is successful at the hearing, that could see the respondent accruing a debt in excess of $5,000.00 which the department would find difficult to recover because Mr Nicholas has no significant financial assets and has a $1,600 credit card debt which he services at the rate of $50 per month.
28. At present he is able to manage on his earnings of $381.33 gross per week and his $69.70 mobility allowance (Exhibit A2) from Centrelink. He lives in a Housing Commission apartment. Although he would prefer to have the means to help his children more than at present, it does not appear that he would suffer hardship if a stay were granted. The applicant would not suffer hardship whether a stay were granted or not.
29. No doubt it is in the public interest that persons entitled to a disability support pension should receive it, and that those not entitled should not. If my assessment of the applicant’s prospects of success at a substantive hearing is correct, there is a real risk that the respondent may incur a debt which the applicant would then have to recover, at some expense to the taxpayer, even if (which does not appear to be the case) Mr Nicholas has the assets to meet it. Consequently I think that the public interest considerations favour the grant of a stay in this case.
30. The fourth sub-issue is whether the review application, if successful, would be rendered nugatory if the stay is not granted. If Mr Nicholas succeeds on the appeal, he will receive arrears accrued up to the date of the decision, together with an on-going pension. He will have lost nothing except the inconvenience of having to wait some months to receive payment. From the applicant’s point of view, if a stay is not granted, it will have paid Mr Nicholas a significant sum of the taxpayer’s money which is unlikely to be recovered. While it would be going too far to say that the application would thereby be rendered nugatory, the public purse would have made a significant transfer of money that was not warranted and that would be unlikely to be recovered.
31. On balance I conclude that it is appropriate to stay the operation of the decision under review pending determination of the current application.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 1 June 2006
Date of Decision 7 June 2006
Representative for the Applicant Mr A Duri, Advocate, Centrelink
Representative for the Respondent Self-represented
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