Richardson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 819

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0714

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENHAM RICHARDSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr A Frazer,  Member

Date18 November 2011

PlacePerth

Decision The Tribunal affirms the decision under review.

…(sgd) Dr A Frazer..
   Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairment less than 20 points under Impairment Tables –applicant not qualified for disability support pension – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

18 November 2011                Dr A Frazer,  Member

Introduction

1.      Mr Denham Richardson, (“the applicant”), who is 32 years of age, lodged a claim for the disability support pension (“DSP”) in respect of his anxiety and depression on 16 August 2010.

2.      On 8 September 2010 a Centrelink officer rejected his claim on the basis he could work more than 15 hours a week. 

3.      On 11 November 2010 a Centrelink authorised review officer (“ARO”) affirmed the decision to reject the claim for DSP on the basis the applicant’s impairments were not permanent and did not rate at least 20 points on the Impairment Tables.

4.      On 8 February 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.

5.      On 1 March 2011 the applicant made an application to this Tribunal for review of the SSAT’s decision.

The Relevant Legislation

6. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:

“ 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;

…

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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:    For work see subsection (5).

…

94(5) In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)       education;

(b)       pre‑vocational training;

(c)       vocational training;

(d)       vocational rehabilitation;

(e)       work‑related training (including on‑the‑job training).

work means work:

(a)that is for at least 15 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.

…”

7. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraph 11 below.

The Evidence

8.The evidence before the Tribunal comprised:

·the “T Documents” (T1-T17), pp 1- 179) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

·Oral evidence of the applicant by telephone.

The applicant’s evidence

·The applicant told the Tribunal he lives in Katanning in a Unit and that he is fully independent. He said he has a car license however he usually walks everywhere.  

·The applicant told the Tribunal that he suffers from anxiety and depression for around the last 7 years and no other condition. He has been prescribed valium and effexor in the past however as of a few weeks ago no longer takes this medication. He said he now feels better.  He had to wean himself off the valium and his treating doctors no longer wish to prescribe it to him. He said that he is not taking any other medication. 

·The applicant said he has used some various drugs in the past over around 13 years however said that over the last 4 years or so he has got things in order. He said he now has no addiction.

·The applicant said he has does not work however he has recently entered into an Employment Pathway Plan. He said he is now seeing a Counsellor and overall feels good at the moment, although he will still have some bad days. He said he is feeling better socially and will get out and about more. 

·The applicant told the Tribunal he thinks his anxiety and depression are still stabilising.  He is about to see a new Counsellor in Narrogin. 

·The applicant said he has always been good at creative drawing since he was a child.  He is keen to work up a business in this area.

·The applicant said he is not that keen on receiving Disability Support Pension as he thinks he is a bit young.

The Relevant Medical Evidence

9.      Report by Dr Kanodia, GP, dated 16 August 2010 which states the applicant has anxiety and depression and receives regular counselling.

10.     Report by Dr Cronje, GP, dated 14 October 2010, which states the applicant has anxiety and depression with associated social withdrawal and lethargy.  Effexor had been commenced and the applicant was undergoing counselling.

The Impairment Tables

11. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:

“1.       These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …

2.        These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …

…

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. …

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.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment.

…

Analysis

Impairments

12. It is common ground that, at all material times, the applicant has a long history of anxiety and depression which is an impairment within the meaning of para (a) of s 94(1) of the Act.

13. The first matter for the Tribunal’s determination is whether the applicant, when he applied for the DSP in August 2010, had a total impairment, by reason of his anxiety and depression, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

Anxiety and Depression

14.     The Tribunal accepts the applicant has suffered from long term anxiety and depression and that this has impacted on his functioning and social interaction with others.  However, around the time of the application for DSP, the applicant was receiving counselling however had not commenced a medication regime or received a psychiatric assessment. The applicant told the Tribunal that he is now feeling better and that he thinks his anxiety and depression is still stabilising. Therefore, the Tribunal is not satisfied that the applicant’s impairment is “stabilised” as described in paragraphs 5 and 6 of the Introduction to the Impairment Tables.

15.The applicant therefore does not satisfy para (b) of s 94(1) of the Act.

16. As the applicant does not satisfy para(b) of the s 94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s 94(1) of the Act.

Decision

17.For the above reasons the Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

Signed: (sgd) T Freeman………...
  Associate

Date of Hearing  11 August 2011
Date of Decision  18 November 2011
Representative of the Applicant         Self-represented

Representative for the Respondent          Mr P Maishman

Centrelink