Robert Davies and Secretary, Department of Social Services

[2014] AATA 604

[2014] AATA 604 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0172
Re	Robert Davies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Dean Letcher, QC, Senior Member
Date	27 August 2014
Place	Sydney

The decision under review is affirmed

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

Mr Dean Letcher, QC, Senior Member

Catchwords

SOCIAL SECURITY - Disability Support Pension – psychiatric impairment - whether condition “permanent” - whether condition fully diagnosed, treated and stabilised at relevant time – diagnosis for the purposes of Table 5 – “appropriately qualified medical practitioner” – clinical psychologist

Legislation
Social Security Act 1991; s 94
Social Security (Administration) Act 1999; s 42, Sch 2

Cases
Re Drake and the Minister for Immigration and Ethnic Affairs [No. 2] 1979 2 ALD 634
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560

Secondary Materials

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

REASONS FOR DECISION

Mr Dean Letcher, QC, Senior Member

1. The Applicant seeks review of the decision of the Social Security Appeals Tribunal which, on 13 December 2012, affirmed a decision of Centrelink rejecting his claim for Disability Support Pension ('DSP'). On 1 May 2014, at a Tribunal directions hearing, both parties agreed to this matter being decided by a review on the papers without holding a hearing. This decision is the result of that process.

   LEGAL BACKGROUND

2. The Applicant’s condition was assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act1991 (the ‘Act’) and the Impairment Tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(the ‘Impairment Tables’). Under this criteria the Applicant must establish an impairment rating of 20 points or more, as well a continuing inability to work (CITW), as a result of health conditions existing at the date of application, deemed to be 24 May 2012, or during the following 13 week period through to 23 August 2012 (the ‘relevant period’): s 42 and Sch 2 of the Social Security (Administration) Act 1999.

3. Unlike many other reviews undertaken by the Administrative Appeals Tribunal (‘the AAT’), this Tribunal is not able to undertake a hearing de novo in this matter and is consequently unable to have regard to the Applicant’s situation at the time of hearing. The Applicant’s state of disability at the time of hearing is not the issue: Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560. Under the Social Security (Administration) Act1999 the role of the AAT is to decide whether the Applicant establishes a case for a pension as at the time of the DSP application or in the 13 week period thereafter i.e. during the relevant period. That is, the Applicant’s health conditions as assessed after 23 August 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal.

4. To form a basis for an impairment rating, a condition must be considered “permanent” as defined in the Impairment Tables, meaning each and every of the following:

   (A)fully diagnosed by a health practitioner qualified to make such a diagnosis;

   (B)fully treated – meaning  given all treatment which might be of some effect; and

   (C)unlikely to improve within the next two years (‘stabilised’).

5. Unless a health condition satisfies each of the criteria (A), (B) and (C), it cannot be given an impairment rating under the Impairment Tables.

6. In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:

   (a)whether there is corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next two years.

7. In deciding whether a condition is stabilised, the Tribunal must consider whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

8. In order to establish a CITW where the person’s impairment is not a severe impairment, the Tribunal must be satisfied that the Applicant has actively participated in a program of support, and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years.

9. However, a CITW assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is ‘permanent’ (as defined above), it will not be taken into account when assessing CITW.

   FACTUAL BACKGROUND

10. The Applicant was aged 45 years when he made the claim, citing disabilities of depression, anxiety, panic attacks and insomnia. He had not been in paid employment for some 20 years, but had been caring for his mother. This was despite suffering depressed affect, amotivation, poor concentration and tremulous anxiety. His claim was accompanied by a medical report by a general practitioner, Dr Siow, stating the condition with most impact to be "Major Depressive Disorder with Intercurrent Anxiety Disorder" and attaching to his report a "Letter from clinical psychologist given to patient".

11. The letter, dated 31 May 2012, was from Kerry Watson, a registered psychologist. Ms Watson expressed the opinion that the Applicant's 'clinical presentation is demonstrative of symptomology that is consistent with a Major Depressive Disorder' under DSM-IV. Ms Watson is noted on the register of the Australian Health Professionals Registration Authority as having 'Registration Type: General' and is thus not a Clinical Psychologist within the meaning of the registration legislation or the Social Security Act 1991 ('the Act').

12. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, is a ministerial determination under s 26(1) of the Social Security Act 1991. It is a registered Legislative Instrument with force of law. It specifies rules for the determination of eligibility for grant of a Disability Support Pension. It sets out tables with descriptions of functional impairments relevant to work activities. One of those tables is “Table 5- Mental Health Function”. It is the only table in the determination specifically relevant to the Applicant’s claimed health condition. There is an Introduction to Table 5. It is part of the Determination and is an expression of Ministerial policy.

13. As stated in the Introduction to the Table, a mental health condition can be assigned an Impairment Rating on Table 5 only if it has been diagnosed by: "an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)" – my emphasis, but parentheses are included in the text.

14. Decision-makers in the position of the Tribunal are obliged to apply lawful enunciated policy, unless there are cogent reasons not to do so. It would be a cogent reason if the policy worked an injustice. Consistency is a virtue but not if it is contrary to the requirements of justice (Re Drake and the Minister for Immigration and Ethnic Affairs [No. 2] 1979 2 ALD 634 at 644-645).

15. Dr Siow's practice is in suburban Sydney and his qualifications are stated as the basic general practitioner degrees of 'MB BS'. There is no evidence of any further qualification in the field of psychiatry. He is not 'appropriately qualified' for the purpose of making a diagnosis on his own.

16. In the absence of a diagnosis by a psychiatrist or clinical psychologist, the Applicant's mental health conditions cannot be allocated an Impairment Rating.

    FURTHER HEALTH CONDITION

17. On 18 September 2012, just outside the 13 weeks from the lodgement of the claim, for reasons which are not stated, the Applicant underwent a cerebral CT scan which showed a 'cystic-type lesion' about 1 cm in diameter and an MRI was suggested by the radiologist. There is no functional disability alleged to arise so far from this discovery. If it is a health condition of significance, then it has not been fully diagnosed, treated or stabilised and it cannot be assigned an impairment rating.

18. These appear to be the only health conditions of possible functional importance, but neither meets the tests for 'permanence' in the Act.

    DISCUSSION

19. The Applicant clearly had a 'physical, intellectual or psychiatric impairment' at the relevant time (namely psychiatric) and satisfies s 94(1)(a) of the Act.

20. The Applicant has not established that any of his conditions were fully diagnosed, fully treated and stabilised so as to attract Impairment Rating points pursuant to s 94(1)(b) of the Act. That being so, he does not qualify for DSP.

21. It is therefore not necessary for me to consider whether or not the Applicant has a continuing inability to work within the meaning of ss 94(1)(c) and 94(2), because he has not satisfied an essential part of the cumulative requirement for DSP. The Respondent has produced a document which it is said shows that the Applicant did not engage in 'programs of support' for at least 18 months of the three years immediately before lodgement of his claim.

22. The Conference Registrars of the Tribunal have endeavoured to point out to the Applicant the difficulties in the way of proof of his claim in accordance with the strict requirements of the Act. If the Applicant is contemplating a further application, he could profit by consulting the Welfare Rights Centre (92115300) before doing so to obtain advice about the pre-conditions he is required to satisfy.

    CONCLUSION

23. The Applicant has not satisfied the criteria for grant of a Disability Support Pension pursuant to his claim made on 6 June 2012.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member

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

Associate

Dated   27 August 2014

Date(s) of hearing	On the papers
Date final submissions received	21 February 2014
Applicant	In person
Solicitors for the Respondent	Steven Davidson; Department of Human Services