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

[2017] AATA 2190

Russo and Secretary, Department of Social Services (Social services second review) [2017] AATA 2190 (15 November 2017)

Division:GENERAL DIVISION

File Number:           2015/5788

Re:Paul Russo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:15 November 2017

Place:Sydney

In conclusion, the decision under review is affirmed.

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

Senior Member M J McGrowdie

CATCHWORDS

SOCIAL SECURITY – disability support pension – spinal condition – upper limb condition – mental health condition – whether applicant has physical and psychiatric impairments –impairments are not fully treated and stabilised – rating cannot be given under impairment tables for mental health condition – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

CASES

Re Scutcheon and Secretary, Department of Social Services [2016] AATA 61

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member M J McGrowdie

15 November 2017

1. The applicant, Paul Russo, born in 1968, seeks the Disability Support Pension (‘DSP’).  He made an application for the DSP on 9 December 2014.[1]  His application was rejected on 31 January 2015.[2]  The decision to reject the application was affirmed by an Authorised Review Officer (‘ARO’) on 25 March 2015.  The applicant made an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) for a review of the decision of the ARO.  The decision of the AAT1 was that the applicant did not qualify for the DSP.

   [1] T30, pp.170-200

   [2] T35, pp. 214-215

   ISSUES

2. The key issue to be determined in this matter is whether the applicant satisfied section 94 of the Social Security Act 1991 (Cth) (‘the Act’). Section 94 outlines the requirements the applicant must meet to qualify for the DSP. These requirements are as follows:

   ·The applicant must have either a physical, intellectual or psychiatric impairment or impairments (s 94(1)(a)); and

   ·The applicant’s impairment or impairments must be rated 20 points or more under the Impairment Tables (s 94(1)(b)); and

   ·The applicant must have a continuing inability to work (s 94(1)(c)). 

   LEGISLATION

3. As stated by Member Ryan in AAT1 at [4]:-

   “The statutory provisions relevant to this review are to be found in the Social Security Act 1991 (the Act). To qualify for disability support pension, a person must have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Person) Determination 2011 (the Impairment Tables), and a continuing inability to work 15 hours per week or more.” (Emphasis added)

4. As provided for in the legislation, an impairment rating can be assessed for various medical conditions provided that the condition can be said to have been fully diagnosed, treated and stabilised[3] as at the date of the application for the DSP or within a period of 13 weeks from that date (‘the relevant period’).  The relevant period here is from 9 December 2014 to 10 March 2015.

   [3] Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Person) Determination 2011, s 6(4)

   EVIDENCE

5. The conditions suffered by the applicant in respect of this application are:

   ·Upper Limb Function (in relation to the shoulders and more particularly, the left shoulder and arm);

   ·Spinal Function (in respect of the neck and back, although during the hearing the applicant ceased to rely on the back); and

   ·Mental Health Function (in respect of a major depressive disorder).

6. The applicant had suffered a workplace injury in 2013.  He was employed as a salesman and was moving a heavy filing cabinet when he suffered injury by way of a tear in the left shoulder and injury to the neck.  As time went on, the applicant began to suffer from depression as a result of the workplace injury.

7. As part of the respondent’s consideration of the applicant’s application for the DSP, the applicant was referred for a Job Capacity Assessment.

8. A report on the assessment for this claim is dated 30 January 2015 and was prepared by a Rehabilitation Counsellor (the Assessor) who conducted the assessment on 16 January 2015, including a face-to-face interview with the applicant.[4]

   [4] T34, pp. 206-213

9. The Assessor recommended that the applicant be considered as having a 10 point rating for Upper Limb Function and a 5 point rating for Spinal Function for the neck.  In respect of rating the Mental Health Function, the assessor was of the view that the condition was not diagnosed by a clinical psychologist and further, was not fully treated or stabilised in the relevant period as the applicant had only recently commenced treatment.  However, the assessor did not then have available a report dated 28 March 2015 from a Clinical Psychologist, Dr Alison Beck, who saw the applicant on 6 March 2015 and considered that the applicant met the criteria for a major depressive disorder consistent with a moderate functional impact.  Under Table 5, moderate functional impact with respect of a range of activities may attract a rating of 10 points.

10. Further, in respect of the Mental Health Condition, the applicant had previously been seeing a psychologist, Mr Peter Tyron from January 2015 for treatment, and then Mr Russell Gibbs, psychologist from about 20 March 2016.

11. The respondent was prepared to concede 5 points for Upper Limb Function (despite the recommendation of the Rehabilitation Counsellor), and 5 points for Spinal Function.  In respect of Mental Health Function, the respondent maintained the position that although the major depression had been diagnosed, it had not been fully treated or stabilised.

12. Clearly, when Dr Beck saw the applicant on 6 March 2015, she diagnosed clinical depression.  As required, the diagnosis is provided by a Clinical Psychologist, namely Dr Beck.  The next question is whether the condition was fully treated and stabilised.  It would seem that the applicant saw Dr Beck for the purpose of obtaining a diagnosis.

13. The applicant had certainly come under treatment for his depression before the end of the relevant period and although treatment has continued it was only at a very early stage at the end of the relevant period.  As at 8 April 2015, the applicant had attended 8 sessions with Mr Tyron, with remaining sessions in this “bracket” to be completed by 30 September 2015.

14. Further sessions were arranged from late October 2015. Dr Bramston, General Practitioner, reported on 13 March 2016, that the applicant “has been sporadic in… the management of his anxiety/depression …”

15. After the applicant completed 15 sessions with psychologist, Mr Tyron, to May 2016, the applicant started to see Mr Gibbs, psychologist.

    CONSIDERATION

16. It can be seen from this analysis that the applicant had only just commenced treatment for his depression.  Even though mental health conditions can be episodic or fluctuating and still be considered to be fully treated and stabilised as considered by Member Thompson in Scutcheon’s case[5], his treatment had only just begun by the time the relevant period concluded.

    [5] Re Scutcheon and Secretary, Department of Social Services [2016] AATA 61

17. Accordingly, I conclude that the applicant’s Mental Health condition could not be considered to have been fully treated or stabilised within the relevant period.  The position is probably very different today. It would be open to the applicant to make a further application to Centrelink based on present circumstances.

18. As I have assessed the applicant at 15 points in the relevant period for the upper limb and spinal conditions, the applicant does not qualify for the DSP in terms of his application currently being considered.

19. Unless the applicant were to be assessed as having 20 points for any one condition, which is not the case and which would be unlikely even if the Mental Health condition had been fully treated or stabilised during the relevant period, given the opinion of Clinical Psychologist, Dr Beck, that the condition was moderate, then the applicant would have to satisfy the provisions of the legislation in relation to a continuing incapacity to work, that is, provided he had 20 or more points from a combination of conditions.

20. However, as the applicant has been assessed as having 15 points, it is unnecessary to consider the question of a continuing disability to work.  I note that the Applicant has been in receipt of a carer’s pension with regard to the care of his father.

    DECISION

21. In conclusion, the decision under review is affirmed.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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

Associate

Dated: 15 November 2017

Date(s) of hearing:	8 February 2017
Counsel for the Applicant:	Ms M Tibbey
Solicitors for the Applicant:	Mr K Wu, Legal Aid NSW
Solicitors for the Respondent:	Ms H Musgrove, Department of Human Services