Reedy and Secretary, Department of Family and Community Services

[2003] AATA 1160

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2002/41

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMES TRINITY REEDY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date19 November 2003

PlaceBrisbane

Decision The Tribunal affirms the decision to refuse to backdate the grant of disability support pension to 6 January 2000 for James Trinity Reedy.

................SIGNED...............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – whether applicant withdrew earlier claim – whether entitled to back pay on retrospective diagnosis

Social Security Act 1991: s94

REASONS FOR DECISION

Deputy President Don Muller       

1.      James Trinity Reedy seeks a backdating of his disability support pension to 6 January 2000, including a payment of arrears of disability support pension to that date.

2.      Mr. Reedy applied for the disability support pension (DSP) at the Broome office of Centrelink on 6 January 2000.  The supporting documentation shows the following:

(a)His treating doctor diagnosed his medical problems as:

(i)Eating disorder

(ii)Stress and anxiety

(iii)Substance abuse (marijuana)

(iv)personality disorder.

(b)He was suitable for manual work and he would be likely to return to any kind of full-time work within six to 12 months.

(c)He was then able to work more than 20 hours per week – probably 30 hours per week.

(d)His rating pursuant to the relevant tables was ten points.

(e)He worked as a sales assistant at the Coles supermarket, Broome, from September 1999 until 17 December 1999.

3.      An electronic file note written on 18 July 2000 and an annotation made on 31 July 2000, notes that the claim for DSP had been withdrawn.  There is also a handwritten notation on Mr. Reedy’s “New Action Claim Sheet”, “customer withdrew claim”, and a box marked “Reject” has been ticked.

4. Section 94 of the Social Security Act 1991 sets out the qualification criteria for DSP.

“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;

Meaning of continuing inability

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;

94.(5)  In this section:

“work” means work:

(a)       that is for at least 30 hours per week at award wages or above;  and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.”

5.      Mr. Reedy would not have qualified for the DSP from January 2000 to July 2000 on the evidence available to Centrelink at the time.

6.      Mr. Reedy gave evidence to the Tribunal to the following effect:

·     He did not withdraw his claim for DSP in 2000.

·     He was occasionally banned from the Broome Centrelink office because the manager did not like him.

·     The Broome Centrelink officers told him to go back to work.  They did not take any notice of his disabilities.

·     He has had a history of medical conditions beginning with attention deficit disorder when he was at school.

·     He has been smoking “pot” for 17 years because it helps him relax.

·     He has trouble controlling his anger.

·     He has had 340 jobs in the past eight to ten years.  He has problems when people tell him what to do.  The longest period for which he has been employed was two months with a security firm in Darwin.

·     He could work if he could “get off drugs”.

·     He thought that in 2000 he had “lost the plot”.

·     His abuse of marijuana affects his memory.  He “forgets a lot of things, like appointments”.

·     He is currently taking the medications Zoloft and Valium for anxiety.

7.      Mr. Reedy subsequently re-applied for DSP in July 2001 and it was granted.

8.      The case put on behalf of Mr. Reedy is that:

(a)He did not withdraw his claim dated 6 January 2000.

(b)He was just as ill in January 2000 as he was in July 2001.  That is, he had not deteriorated.

9.      Mr. Reedy was examined by a Consultant Psychiatrist, Dr. Peter Anderson, on 26 October 2001 and again on 14 August 2003.  In his report dated 11 September 2003, Dr. Anderson said (among other things):

“Psychiatric Impairment Rating According to Table 6, Social Security Act 1991 as of my Consultation 26^th October 2001

He is in this time in the upper range of psychiatric disturbance. He has been regarded as suffering from a serious psychiatric illness and treated with antipsychotic drug therapy by the Government Health Service at Midland, then at Broome.  Background drug dependency and ongoing cannabis dependency is acknowledged.  Symptoms consistent with a diagnosis of Attention Deficit Disorder are given and this symptom profile is of quite severe degree.  Presentation with me was consistent with the history as given.  I would regard his presentation as consistent with a serious psychiatric illness, whatever specific diagnosis might have been made with more detailed review.  There were major impairments in several areas including his work, his family and interpersonal relationships, his mood, judgement and thinking.  I would have made psychiatric impairment rating of 30 points as of that date.

Psychiatric Impairment Rating According to The Social Security Act 1991, as of 14^th August 2003-11-18

On this occasion the presentation to me is not to seek treatment for Attention Deficit Disorder, but is for quite a different purpose, to seek psychiatric assessment. However he again impresses as being in the upper range of psychiatric disturbance. The symptom profile is in the severe range. There is severe insomnia, concentration difficulties and disorganisation predominated, he notes compulsive cleaning, and is frightened of people and withdrawn. He has attempted suicide the previous year and provides medical documentation of his inpatient psychiatric treatment in the Northern Territory. He has been regarded as suffering from a Major Depressive Disorder and from a Chronic Antisocial Personality Disorder. Again there is serious psychiatric illness with major impairments in several areas including work, interpersonal relationships, judgement, thinking and mood. It is very difficult for the doctor to enlist the full cooperation of the patient in the process of assessment because of difficulties in concentration and communication. Again I would rate psychiatric impairment as being greater than 30 points according to the table 6 of the Social Security Act 1991.

Overall Opinion

This history, as available to me, suggests that this young mans psychiatric problems commenced in childhood, and were continuous throughout his childhood, adolescence and adult life.  The manifestations of his problems have been protean, and thus it is the case that various different diagnoses have been made at different times.  The reality however is that his psychiatric disorder has been chronic.

I think it unlikely that his condition deteriorated between January 2000 and July 2001.  I think it likely that had he seen a psychiatrist in January 2000 he would have been assessed as in the severe range of psychiatric disorder, and should an impairment rating have been made at that time this would have been well over the 20 points required for the disability support pension to be awarded.”

10.     The Tribunal takes the view that officers from Centrelink would not normally note an application for DSP as having been withdrawn if it had not been.  The Tribunal also takes the view that the evidence of Mr. Reedy that he did not withdraw is unreliable because of his poor memory due to taking drugs and smoking cannabis.

11.     The Tribunal finds that the application by Mr. Reedy for DSP, made on 6 January 2000, was withdrawn by him.

12.     The Tribunal respects the opinion of Dr. Anderson that when he saw Mr. Reedy in October 2001, Mr. Reedy had a psychiatric disturbance in “the upper range”.. However, retrospective diagnoses have their limits and, as Dr. Anderson acknowledged, the manifestations of Mr. Reedy’s problems seem to have taken many different forms over the years. Doctors can only report on what they diagnose at the time of examination, what is told to them by their patient and an evaluation of the history as reported by other doctors. The decisions of the officers at Centrelink are then guided by the medical reports. The Tribunal takes the view that even if Mr. Reedy had not withdrawn his application in 2000, his claim would still have been rejected on the basis that his then medical report indicated that he did not satisfy the provisions of section 94 of the Act.

13.     The decision to reject the claim for back payment for disability support pension to 6 January 2000 is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  21.5.03, 29.8.03, 3.11.03
Date of Decision  19 November 2003
Solicitor for the Applicant          Hunt and Hunt
Respondent  Mr. J. Howard, departmental advocate