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

[2021] AATA 3066

Reiter and Secretary, Department of Social Services (Social services second review) [2021] AATA 3066 (27 August 2021)

Division:GENERAL DIVISION

File Number(s):2021/0082      

Re:Kurt Reiter

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Administrative Appeals Tribunal

Date:27 August 2021

Place:Melbourne

The Tribunal affirms the decision under review.

.

................................[sgd]......................................
Member R West

Catchwords

SOCIAL SECURITY – Disability Support Pension – depression and post-traumatic stress disorder (PTSD) – whether conditions fully diagnosed, treated and stabilised in the qualification period – not diagnosed by an appropriately qualified medical practitioner – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services, Re (2014) 144 ALD 133

Secondary Materials

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

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

27 August 2021

Background

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 16 September 2020[1] (First Tier Review Decision), affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (DSP).[2]

   [1] Matter: 2020/M152595 – see T2 at pp. 13-16.

   [2] The Applicant applied for the DSP on 23 June 2020, the application was refused on 23 July 2020 and an authorised review officer affirmed the decision to refuse the application on 17 August 2020.

2. The Applicant applied for a Second Tier Review of the First Tier Review Decision by the General Division of the Administrative Appeals Tribunal on 3 January 2021.

3. A hearing in relation to the Second Tier Review was held by telephone on 14 April 2021. The Applicant was self-represented and the Respondent was represented by Mr Brian Sparkes, a solicitor with Services Australia.

4. At the hearing on 14 April 2021, the Applicant confirmed that his claim for the DSP was based on his mental health condition, namely major depression and post-traumatic stress disorder (PTSD).[3] The Tribunal drew the Applicant’s attention to the fact that the basis of the Tribunal’s decision in the First Tier Review was that the Applicant’s mental health condition had not been diagnosed by an appropriately qualified medical practitioner (a psychiatrist or clinical psychologist). The Applicant stated that he had not had an opportunity to consult with an appropriately qualified practitioner and sought an adjournment to do so. The Tribunal granted a six-month adjournment to enable the Applicant to consult a psychiatrist or clinical psychologist and the matter was relisted for hearing on 15 October 2021. 

   [3] The First Tier Review Decision determined that there was insufficient medical information regarding other conditions referred to in the initial claim, namely seizures, alcohol withdrawal and pancreatitis.

5. On 19 July 2021, the Applicant advised the Tribunal that he had been unable to secure an appointment with a psychiatrist before the scheduled hearing on 15 October 2021. 

6. The Tribunal convened a telephone directions hearing (TDH) on 10 August 2021 at which the Applicant was self-represented[4] and the Respondent was again represented by Mr Sparkes. 

   [4] The Applicant advised the Tribunal that he felt confident to represent himself in the proceedings and advised the Tribunal that he was studying for a law degree, having previously told the Tribunal that he already held a doctoral degree.

7. At the TDH, the Applicant confirmed that he had been unable to secure an appointment with a psychiatrist or clinical psychologist before 15 October 2021, and stated that he did not think he could obtain an appointment for a considerable time after that date. The Applicant was offered the opportunity to apply for a further adjournment but he declined to do so.  The parties were invited to consider the utility of proceeding to the substantive hearing scheduled on 15 October 2021.  It was agreed that the review could be determined on the basis of the evidence then filed with the Tribunal[5] without the need for a further hearing, and the parties consented to that course. The Tribunal was satisfied that the issues for determination on the review could be adequately determined in the absence of the parties, and determined pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act) to conduct the review of the Decision without holding a further hearing.  The Tribunal issued directions for the parties to file and serve final written submissions prior to a determination of the review.

   [5] Comprising the documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents) and the written submissions of the parties.

8. The Applicant filed a written submission on 13 August 2021. The Respondent provided a brief submission in reply on 17 August 2021.

   Consideration

9. A decision in relation to the granting of a DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualification period.[6]  In this case, the qualification period commenced on 23 June 2020 and ended on 22 September 2020. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence. Evidence of the Applicant’s condition after the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[7]

   [6] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

   [7] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]; ReFanning and Secretary, Department of Social Services (2014) 144 ALD 133, 140 [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353, [7].

10. To qualify for a DSP, an applicant must satisfy the requirements set out in s.94(1) of the Social Security Act 1991 (the Act), as assessed with regard to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011[8] (the Impairment Tables) during the qualification period.

    [8] A determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011.

11. In essence, s.94(1) of the Act requires that:

    (a)  the Applicant have a physical, intellectual or psychiatric impairment; and

    (b)  the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    (c)   the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table) or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    (d)  the Applicant has a continuing inability to work or the Secretary is satisfied that the Applicant is participating in the supported wage system.

12. The Applicant’s claim for the DSP relies on a diagnosis of mental health conditions, namely major depression and PTSD.  These diagnoses were given by his general practitioner, Dr Kok Hoong Loo.  Dr Loo issued medical certificates on 16 May 2018, 7 August 2018, 11 February 2019, 27 May 2019, 16 September 2019, 3 February 2020 and 15 June 2020.[9] These medical certificates stated consistently that the Applicant was suffering from major depression and PTSD, and was being treated with antidepressant medication.[10]  More recently, on 30 June 2021, Dr Loo issued a certificate stating that the Applicant was suffering from Major Depression – Post Traumatic Stress Disorder and was unfit for work from 11 July to 10 October 2021.  The Applicant stated in his claim form[11] that he had been referred for counselling with a psychologist, Ms Leanne of SIA Medical Footscray. The evidence also establishes that the Applicant was referred to a Mr Colin Gray of Zazenkai Counselling Service for psychological support under a mental health plan.[12]  The Tribunal was not provided with any reports from either practitioner.

    [9] T5 at pp. 56-68.

    [10] T5 at p. 70.

    [11] T4 at p. 56.

    [12] T5 at p. 73.

13. The first issue for determination under s.94(1) of the Act is whether to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent; that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.

14. The appropriate Table for the assessment of the Applicant’s condition is Table 5 – Mental Health Condition. The introduction to Table 5 states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner, that is a psychiatrist or a clinical psychologist. The diagnosis by the Applicant’s general practitioner does not satisfy this requirement. In the absence of a diagnosis by an appropriately qualified medical practitioner the Applicant’s condition cannot be considered fully diagnosed and a rating cannot be assigned under Table 5.

15. As a rating under the Impairment Tables cannot be given for the Applicant’s condition, he does not meet the requirements of s.94(1) of the Act and is therefore ineligible for the DSP.

16. The Applicant asserted in his written submission that a member of the Tribunal can under the Act instruct the Secretary that (the Applicant) is eligible for the DSP despite the decisions of bureaucrats that are employed by the Secretary and are not medical professionals.  This submission misconstrues the nature of the Tribunal’s powers.

17. In conducting a review, the Tribunal is not at large and it is not empowered to determine matters beyond the limits of its statutory powers. Section 25(1) of the AAT Act empowers the Tribunal to review decisions made in the exercise of powers conferred by an enactment, but only as provided for in that enactment. Under s.43(1) of the AAT Act the Tribunal may affirm, vary, or set aside the decision under review. If it sets the decision aside, it may either make a decision in substitution or remit the matter for reconsideration.

18. In this case, the Tribunal’s power to conduct the Second Tier Review derives from s.179 of the Social Security (Administration) Act 1999. The Tribunal’s power is limited to reviewing the First Tier Review Decision which determined the question of the Applicant’s eligibility for the DSP. In conducting the review, the Tribunal is required to assess the Applicant’s eligibility, having regard to the requirements of the Act. Relevantly, this includes the proper application of the Impairment Tables in assessing the level of impairment.

19. As the Applicant cannot be assessed under Table 5, he does not meet the requirements of s.94(1) of the Act and is ineligible for the DSP. The preferrable and correct decision is for the Tribunal to affirm the decision under review.

    Decision

20. The decision under review is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

.........................[sgd].........................................

Associate

Dated:  27 August 2021

Date of hearing:	14 April 2021
Date final submission received:	17 August 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Brian Sparkes
Solicitors for the Respondent:	Services Australia