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

[2015] AATA 638

Singh and Secretary, Department of Social Services (Social services second review) [2015] AATA 638 (27 August 2015)

Division	GENERAL DIVISION
File Number	2015/0229
Re	Julian Singh
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	27 August 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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

Member

Social Security – pensions, benefits and allowances – disability support pension application – illnesses not fully diagnosed, treated and stabilised – no impairment rating attracted – decision affirmed.

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

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

Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Miss E A Shanahan, Member

27 August 2015

REASONS FOR DECISION

1. Mr Singh lodged an application for disability support pension (DSP) with Centrelink on 7 July 2014. Centrelink is the service provider for the Department of Social Services. On 17 July 2014 Centrelink decided that Mr Singh was not qualified for DSP. Mr Singh sought an internal review of the decision.  On 15 October 20914 a Centrelink authorised review officer (ARO) affirmed the original decision.  Mr Singh sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 4 December 2014 the SSAT affirmed the decision of the ARO on the basis that Mr Singh’s medical conditions did not attract an impairment rating under the Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) as none of the conditions were fully diagnosed, treated and stabilised during the qualification period.  Mr Singh lodged an application for a review of the SSAT decision by this Tribunal on 16 January 2015. 

2. The DSP qualification period is defined in the Social Security (Administration) Act 1999 (Schedule 2 clause 4.1) as commencing on the day the claim was lodged with Centrelink and finishing 13 weeks later. In this case the qualification period is from 7 July 2014 to 6 October 2014.

3. Mr Singh was self-represented before the Tribunal and Miss K Latta, a solicitor of Sparke Helmore, appeared for the Respondent. The Tribunal was provided with the documentation lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).  These were assigned Exhibit number R1.   Between lodging his application for review and the date of the hearing, Mr Singh lodged a new claim for the DSP.  Supporting evidence in the form of a new Treating Doctor’s Report from his general practitioner, Dr M Singh, dated 13 March 2015 was provided.  This was accompanied by reports from Nurse Tan and a psychiatric registrar from Austin Health, all of which were taken into evidence.

   BACKGROUND TO THE APPLICATION

4. Mr Singh was diagnosed with Type 2 diabetes and depression in 2005.  The diabetes was treated with the oral hypoglycaemic medication Metformin. He was commenced on Avanza for his depression but discontinued it in 2007 as he felt he could deal with this condition himself without the use of pills.  According to his general practitioner, Mr Singh is non-compliant with his prescribed medication.

5. In late 2009, Mr Singh sustained a fracture to his right ankle.  The fracture took 18 months to fully heal.  During this period Mr Singh received work–cover payments following which he received a carer’s pension as his partner required full-time care.  His partner’s operative treatment had been complicated by a heart attack resulting in memory problems.  The carer’s pension entitled Mr Singh to a Health Care card.

6. In June 2014 Mr Singh lost his Health Care card and was required to apply for a replacement.  At approximately the same time, he was notified that his brother in Queensland was seriously ill and expected to die.  Mr Singh immediately travelled to Queensland to be with his brother.  While in Queensland Mr Singh commenced drinking whiskey heavily but denied he ceased taking his diabetes medication.  This is contrary to Dr Singh’s advice and the SSAT findings that Mr Singh did cease taking this medication for some time while in Queensland.

7. On his return to Melbourne, Mr Singh continued to drink more alcohol than normal, indulging in six bottles of beer per day.

8. In January 2015 Mr Singh’s carer’s pension was cancelled as his partner had recovered sufficiently to return to work and was earning up to $1100 per week.  The loss of his Health Care card has impacted on Mr Singh’s financial status as he now has to pay more for his medications.  He claims he is too ill to look for work as he is tired by 11:30am and suffers from frequency of micturition due to both his diabetes and his recently diagnosed prostatomegaly.  In addition, Mr Singh has recently been told that he has a renal or adrenal disease requiring further investigation.  Since 2011 he has suffered from intermittent diarrhoea which he says has not been investigated. In 2011 Mr Singh’s treatment for his diabetes was increased as control was inadequate. Since 2011 he has taken Diamicron in addition to the Metformin.

9. From September 2014, Mr Singh’s diabetes has been poorly controlled. This may represent a failure to take his medication regularly or may be due to his increased alcohol intake.  In mid-June 2015, Mr Singh developed numbness and tingling in his hands and at the same time recorded his blood sugar at 19.9.  He attributed this high level to drinking one cup of coffee.   These events frightened him to the extent that he is now adhering strictly to his diet, medication, blood sugar monitoring and is attending Banyule Community Health as directed.  He sees Nurse Tan and Mr Robertson fortnightly.  Mr Robertson is an alcohol and anger counsellor.  Mr Singh is also reviewed regularly by a psychology registrar.  Antidepressant medication has not yet been resumed but may be re-instituted in the future if he does not respond to the counselling he currently receives.

10. Further investigations in the form of CT brain, CT abdomen, a formal neuropsychological assessment, CT scanning of his right ankle and referral to an orthopaedic surgeon are all pending.  Mr Singh has reduced his alcohol intake to one can of beer on Friday nights while he watches the football on television.

    EVIDENCE BEFORE THE TRIBUNAL

11. Mr Singh’s evidence before the Tribunal has been summarised under BACKGROUND TO THE APPLICATION.  Mr Singh also described his continuing pain in relation to his right ankle, which restricts his walking distance to 150 meters; and confirmed that he had recently seen an orthopaedic surgeon. An opinion regarding his ankle is to be provided once the CT scan has been performed.

12. The documentary evidence provided has been summarised under BACKGROUND TO THE APPLICATION.  Dr Singh has stated that Mr Singh has hypertension and elevated cholesterol levels that do not impact on his capacity to work, as both are under treatment.  A job capacity assessment performed as a file assessment on 8 October 2014 determined that there were no fully diagnosed, treated and stabilised conditions and therefore impairment ratings were not attracted.  Mr Singh’s baseline work capacity was estimated to be 15 to 22 hours per week.

    RELEVANT LEGISLATION

13. Section 94 of Social Security Act 1991 (the Act) provides the criteria for qualification for the DSP and states as follows:

    Section 94.  Qualification for disability support pension

    (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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; ...

    SUBMISSIONS

14. Mr Singh did not make formal submissions other than to claim that he was too ill to contemplate work, let alone undertake employment.

15. Miss Latta spoke to the Respondent’s detailed Statement of Facts and Contentions and submitted that Mr Singh, satisfied s 94(1)(a) of the Act but did not satisfy s 94(1)(b), as his diabetes, depression and arthritis of the right ankle were not fully diagnosed, treated and stabilised. In addition, he had developed new symptoms which required further investigation. Mr Singh’s other conditions had been certified by his general practitioner as not contributing to any functional impairment as the hypertension and elevated cholesterol levels have been well managed since 2005.

16. Miss Latta contended that should the Tribunal find to the contrary and assign an impairment rating for the diabetes and the depression, thereby satisfying s 94(1)(b), Mr Singh would be required to undertake a program of support before being eligible for the DSP.

    TRIBUNAL’S DELIBERATIONS

17. The medical evidence indicates that the major conditions impacting on Mr Singh’s ability to work are his poorly controlled Type 2 diabetes and his long-standing depressive illness.  The Tribunal accepts that his hypertension and raised cholesterol levels are reasonably well controlled and do not impact on his work capacity.  The actual status of his right ankle and the severity of any osteoarthritis are subject to further expert opinion following investigation.

18. Mr Singh has not had his psychiatric disorder assessed by a psychiatrist or a clinical psychologist but has been seen by a psychiatric registrar, that is a psychiatrist-in-training.  The Rules relating to the Impairment Tables require the psychiatric opinion of a qualified psychiatrist or a qualified clinical psychologist but the Tribunal accepts the opinion of the psychiatric registrar, as a guideline at least, as it is clear that the depressive disorder from which Mr Singh suffers is not fully treated and stabilised.

19. Mr Singh satisfies s 94(1)(a) of the Act, his diabetes and depressive disorder being well documented.

20. The Tribunal finds that Mr Singh does not satisfy s 94(1)(b) of the Act as his diabetes is poorly controlled and cannot be considered to be stabilised; and his depressive disorder has only recently been the subject of treatment in the form of counselling and is far from being stabilised.

21. As no impairment points can be assigned in order to satisfy s 94(1)(b), it is unnecessary for the Tribunal to consider whether he meets the requirement of s 94(1)(c).

22. The Tribunal affirms the decision under review.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate 

Dated 27 August 2015

Date of hearing	6 July 2015
Applicant	In person
Solicitors for the Respondent	Miss K Latta, Sparke Helmore