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

[2016] AATA 777

Sinnott and Secretary, Department of Social Services (Social services second review) [2016] AATA 777 (4 October 2016)

Division	GENERAL DIVISION
File Number	2015/5879
Re	Shaun Sinnott
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J Sosso
Date	4 October 2016
Place	Brisbane

The Tribunal affirms the decision under review.

..........................[Sgd]..............................................

Senior Member J Sosso

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – value of medical evidence – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

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

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Senior Member J Sosso

4 October 2016

INTRODUCTION

1. Mr Shaun Sinnott (the Applicant) made a claim for a disability support pension (DSP) on 2 December 2014. On 9 January 2015 the Department of Human Services (Centrelink) rejected his application. Subsequently the authorised review officer (ARO) and the Social Services and Child Support Division of the Tribunal (SSCSD) affirmed the decision of Centrelink.

2. The Applicant has sought a review of the last mentioned decision.

3. Each of the earlier decisions found the Applicant did not have an impairment rating of at least 20 points and in fact had an impairment rating of zero points.

4. The application was heard on 29 September 2016. The Applicant appeared by telephone and was self-represented.

   BACKGROUND

5. The Applicant is currently 51 years of age.  He was born in Adelaide and travelled to Sydney when he was 19 to work as an apprentice screen printer. Unfortunately he was confronted with an abusive workplace and one of his superiors engaged in a systematic campaign of verbal, physical and, finally, sexual abuse. The Applicant returned to Adelaide but his supervisor continued to make threats against both him and his family.

6. The Applicant started smoking marijuana at the age of 13, but only on a monthly basis. When he turned 16 he started smoking on a weekly basis. He testified that he did not use hard drugs until after returning to Adelaide from Sydney when, after a period of eighteen months, he began using heroin. The Applicant testified that he suffered from depression after he was abused in the workplace, and progressively began using heroin to deal with his depression. 

7. The Applicant has never been married, has no children and, in fact, has not been in a relationship since his time in Sydney. He has a few friends but is not a social person and has no family living in New South Wales. His mother is still alive, but is in a nursing home in Adelaide and suffers from dementia.

8. The Applicant eventually moved from Adelaide (where he resided with his mother until he was 25, and then with a brother) to Brisbane and then, in 2006, to Northern New South Wales. He lives by himself in quite primitive conditions; a hut that has no electricity or town water.  He pays no rent, but relies on the charity of a friend who owns the property. He has lived in the hut for nine years, but is concerned that his friend will soon be selling the property and he will have to leave.  The Applicant uses tank water and currently receives no social security payments. He earns money from wood carving and busking. Previously he also grew strawberries to provide an income, but due to water shortages he was unable to continue.

9. The evidence before the Tribunal is that the Applicant does not have a driver’s licence and lives 25 kilometres away from the nearest population centre, Mullumbimby. There is no public transport that he can rely upon (other than a school bus), and when he is required to travel he either has to walk, rely on friends or hitch a lift.

10. The Applicant has only been in paid employment on three occasions over the past 20 years. His last paid employment was in 2007 with Byron Bay Green Effect, an enterprise that grew and marketed hydroponic tomatoes.  The Applicant worked as a labourer for that firm between 5 July 2007 and 5 November 2007 (Exhibit 1 T4 p. 47).

11. In his claim for a DSP the Applicant listed (Exhibit 1 T4 p. 46) his disabilities, illnesses and injuries as; “major depression, substance problems, neck injury, driving phobia”.

12. The Applicant testified to the SSCSD that he was completely drug free, having ceased using heroin eighteen months previously, alcohol two years previously and marijuana six to seven weeks previously. At the 29 September 2016 hearing the Applicant testified that he had not used heroin for more than two years, but had an occasional wine and smoke of marijuana.

13. The Tribunal has before it two medical reports from the Applicant’s general practitioner, Dr Martin Hartmann. The first is dated 22 January 2014 (Exhibit 1 T9 p.68).

14. Under the heading: Primary condition – diagnosis”, Dr Hartmann wrote: “Major Depression”. Under the heading “Secondary/Related condition(s) he noted: “Polysubstance issues”. He marked “Temporary exacerbation of a permanent condition” for depression and “Permanent (likely to persist for 2 years or more)” for the polysubstance issues.  Under the heading “Symptoms” for depression he wrote in barely legible handwriting: “anxiety, sleep disturbances, social isolation” and another matter which I cannot decipher. The symptom for polysubstance abuse was “poor concentration/memory”.  Dr Hartmann prescribed (Exhibit 1 T9 p.70) the Applicant Deptran for his condition, which is an anti-depressant medicine. Prior to Deptran, Dr Hartmann prescribed Cipramil, another anti-depressant medicine.

15. Dr Hartmann noted that the date of onset of the polysubstance abuse was “90’s” and for major depression “5  13”. I infer that Dr Hartmann was suggesting that the onset of major depression was May 2013.

16. The second medical report prepared by Dr Hartmann is dated 10 September 2014 (Exhibit 1 T10 p.71). In this report under the heading of depression, Dr Hartmann has noted as symptoms: “Suicidal ideation, Social isolation, Poor organization.”  The symptoms for polysubstance abuse are noted as “Poor concentration/memory, Fluctuating mental states.”  The treatment for depression is stated to be Deptran and for polysubstance abuse “Abstinence”. In the Assessment portion of the form, Dr Hartmann ticked “Prognosis unclear” for both conditions, rather than “Temporary” or “Permanent”.

17. On this occasion, eight months after his first report, Dr Hartmann put the date of the onset of depression as “70’s” and for polysubstance abuse also as “70’s”. I infer that Dr Hartmann was of the opinion that the Applicant’s depression and substance abuse were longstanding and commenced more than 35 years ago.

18. The Tribunal also has before it two medical reports from Dr Ian Hayes a psychiatrist who practices at Bangalow and who has been treating the Applicant since 29 November 2012.

19. The first report is dated 25 November 2014 and is in a standard Centrelink medical form (Exhibit 1 T 11 p. 72).  Dr Hayes noted that the Applicant had two conditions, polysubstance dependence (p.75) and depression (p.78). The report states that polysubstance dependence commenced in 1986 and was being treated with Deptran and previously Citalopram.  Some of the 2014 symptoms of substance dependence included low mood, low energy and social isolation. He also noted (p.77) that the Applicant had depression like symptoms. Dr Hayes noted (p. 77) that the Applicant was “slowly moving towards abstinence” but also observed (p.77): “No rehab/detox/fellowship”.

20. Dr Hayes was of the view (p.78) that the Applicant’s depression “can be seen as part of his substance abuse problem.”

21. The second report of Dr Hayes, dated 31 May 2016, has been individually prepared and is a much more helpful and fulsome document. After noting the Applicant’s background and substance abuse history, he stated:

    “Mr Sinnott lives in an isolated environment and is essentially self-sufficient. His psychological conditions have been present for many years and certainly have been present throughout the time I have known him and will continue to handicap him from a functional perspective.

    The treatment as far as I am ware has included counselling with psychiatric nurse Clency Bernard in 2011 and 2012, psychotherapy for approximately 18 months with a psychologist from 2012 onwards and some drug and alcohol related counselling through a Buttery Outreach programme in or around 2014. He has not been on medication from my perspective but has been trialled on antidepressants by his GP. He has been able to tolerate relatively small doses of a tricyclic antidepressant and had marked side effects on an SSRI…

    Mr Sinnott appears to have functioned in isolation better than when engaged in the community and is quite isolated and would have great difficulty engaging in services…..

    The consequence of Mr Sinnott’s drug abuse, social anxiety and panic are that he is self-sufficient and isolative. He cannot predict how functional he will be on any particular day or how able he will be to engage with the outside world. He has some skills including capacity carving, in which he engages periodically.

    I believe his conditions to be chronic and enduring. I see little likelihood of change. I do not believe he has capacity to engage in the workforce and would support his application for DSP.”

22. The Tribunal has also considered the Job Capacity Assessment Report dated 7 January 2015 (Exhibit 1 T 12 p.83) which was prepared by a fully accredited mental health practitioner (p.86).  The report was prepared following a face to face meeting with the Applicant.  The author of the report after outlining the above medical reports made the following observations under Prognosis (p.84):

    “According to available medical evidence, this condition is likely to continue for more than 24 months with a functional impact that is expected to fluctuate. Dr Hayes (psychiatrist) reported that the client is slowly moving towards abstinence.

    Whilst this condition is considered to be fully diagnosed, it is not considered to be fully treated and stabilised.  The client advised that he is contemplating applying to attend a residential rehabilitation clinic which he has not done to date. The client is not engaged in AA and NA meetings and does not have a sponsor. The client has recently attended a detoxification centre. The client did advise that he is minimising drug use overall.”

    LEGISLATION

23. To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:

    (a)the person has a physical, intellectual or psychiatric impairment;

    (b)the person’s impairments is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work.

24. The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) which is made pursuant to section 26 of the Act and came into force on 1 January 2012.

25. Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clause 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b) and describe functional activities, abilities, symptoms and limitations (Cl 5(2)(c).  Consequently the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions (Cl.5(2)(d)).

26. The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).

27. An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).

28. To be a permanent condition it must be:

    (a)fully diagnosed by a medical practitioner;

    (b)fully treated;

    (c)fully stabilised; and

    more likely than not, to persist for more than two years (Cl6(4)).

29. In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).

30. A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment was undertaken or there is medical or compelling reason for not undertaking such treatment – Cl 6(6).

31. A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.

32. This requirement was explained  by the Tribunal in Bobera and Secretary, Department of Families, Housing,  Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors.  If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

    CONTENTIONS

33. The Secretary, Department of Social Services (the Respondent) concedes that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

34. The Respondent contends that the Applicant’s impairments are not of 20 points or more under the Impairment Tables as they were not been fully treated and stabilised during the relevant period, and consequently the requirements of section 94(1)(b) have not been met.

35. The Applicant contends that he is suffering from depression and the side-effects of polysubstance abuse, and that the polysubstance abuse was a by-product of his depression and not the other way around. Further, he contends that both conditions are fully diagnosed, treated and stabilised, that they attract 20 points or more under the Impairment Tables, that he is unfit to work and, consequently, he is entitled to receive the DSP.

    CONSIDERATION

36. The medical evidence before the Tribunal is scant. At the time the Applicant made his DSP application the entirety of the written medical evidence was contained in three pro-forma medical reports, two of which were from his general practitioner and one from his psychiatrist. These documents only contain the minimum of required information.

37. The Tribunal still has no written information about the other treatments that the Applicant undertook over the past five years. For example, the Applicant was seeing a psychiatric nurse for twelve months, but there is no information about that treatment other than the name of the nurse. Further, the Applicant was receiving treatment from a psychologist on a monthly basis, and had 20 sessions over the past few years.  Again, there is no information about that treatment or the medical condition of the Applicant at the beginning, during or at the conclusion of such treatment.

38. Dr Hartmann’s prognosis of the Applicant in his report of 10 September 2014 is unclear. Dr Hayes wrote in his Medical Report of 25 November 2014 (Exhibit 1 T11 p, 76) that the Applicant’s future treatment consisted of “ongoing counselling with psychologist encouraging abstinence.”

39. The Reports themselves are not entirely consistent. Of significance, Dr Hayes states in his 25 November 2014 report (Exhibit 1 T11 p.78) that: “his symptom of depression can be seen as part of his substance abuse problem.”  Yet in his report of 31 May 2016 (Exhibit 2 p.1) Dr Hayes stated: “He also has anxiety symptoms, probably initiated by physical and verbal abuse in workplace related trauma at the age of 19.”

40. Further, Dr Hayes opined in November 2014 that the Applicant required further counselling, however by May 2016 he was of the view that his condition was chronic and enduring with little likelihood of any change.

41. The Respondent drew the Tribunal’s attention to the divergence of opinion between the 2014 and 2016 reports and suggested that it may be that Dr Hayes is now of the opinion that the Applicant has exhausted all treatment options.

42. So far as the Applicant’s depression, the Respondent contends that it is a symptom of the polysubstance abuse, and given that the substance abuse has not been fully treated and stabilised, neither can the depression. This contention is supported by Dr Hayes in his 25 November 2014 report and the conclusions reached in the Job Capacity Assessment Report.

43. The Tribunal is unable to reach a sensible conclusion as to whether the Applicant’s depressive condition is a by-product of his longstanding substance abuse, or whether the substance abuse is a by-product of his depression. The medical evidence is too scant, too flimsy and contradictory to allow any secure conclusion to be reached.

44. However, while a conclusion of cause and effect is illusory, what is abundantly clear is that the Applicant’s impairments were, at the time he made the DSP claim, neither fully treated nor stabilised. Indeed, there is even a diagnostic question, particularly considering the scant and potentially contradictory nature of the medical diagnoses that existed as at November 2014.

45. The starting off point when considering this matter is the simple proposition: was the Applicant qualified to receive the DSP on the date he made his claim or within 13 weeks thereafter? Medical reports prepared after that time can be taken into account, but only if they elucidate the Applicant’s medical condition at that time. Accordingly, the 2016 report of Dr Hayes is not immediately helpful in determining whether the Applicant met the section 94 requirements at the relevant time.

46. Conversely, Dr Hayes 2016 report is very helpful in another context. His report goes some way towards suggesting that between 2014 and 2016 the Applicant’s impairments may have been fully treated and fully stabilised, or, perhaps, are moving in that direction. In any event, the 2016 report provides a starting point from which sensible and medically based conclusions can be reached, as distinct from the scant material that existed in 2014 and which forms the basis of this determination.

1. The Tribunal has before it material which suggests that the Applicant has longstanding depression and polysubstance abuse impairments.  In both cases they arose when the Applicant was a young man and in each case more than 30 years ago. The evidence before the Tribunal is that the Applicant has lived a transient lifestyle for the past twenty years and only been engaged in paid employment a few times since he was assaulted in his Sydney workplace more than 30 years ago. His last paid employment was nine years ago and only lasted four months. For most of that time the Applicant did not receive the benefit of medical intervention. It is only since the Applicant moved to New South Wales that there appears to be clinical intervention. The nature, extent and success or otherwise of that intervention as at November 2014 is unclear.

2. In order for the Tribunal to assign an impairment rating, there must be evidence that the condition was fully diagnosed, treated and stabilised when the DSP claim was made. The evidence discloses that neither the Applicant’s depression nor substance abuse was fully treated and stabilised in November 2014 or for six weeks thereafter. Accordingly a total impairment rating of zero points is the only conclusion open to the Tribunal.

3. The material before the Tribunal suggests that the Applicant suffers from a variety of ailments, both physiological and psychological. These ailments or impairments are compounded by his social and geographic isolation, his poverty and his lack of social skills. The Applicant is in a position of severe disadvantage and has, at times, fallen through the social safety net. He currently lives at the margin of society in primitive conditions and in an environment of isolation and deprivation.  Some of his lifestyle choices have been the product of free-will while others are the product of his mental and physical state. Unfortunately as he grows older his ability to exercise free will in determining his future will decrease in parity with opportunities to improve his life.

4. The Tribunal has before it a summary of the Applicant’s extensive dealings with Centrelink since 1998 (Exhibit 3). Throughout this long period of time, there have been numerous interventions by Centrelink, and the Applicant has been the beneficiary of those interventions in a variety of ways. In order for the Applicant to properly found a DSP application in the future he will need to provide Centrelink with medical evidence that his impairments have been diagnosed, fully treated and are fully stabilised. Unless he can do so, then the prognosis for intervention as outlined in the Job Capacity Assessment Report provides his best scope of escaping the cycle of poverty, deprivation and isolation that presently constitute his existence.

   CONCLUSION

5. The Applicant’s depression and polysubstance abuse were not fully treated and stabilised during the relevant period and therefore an impairment rating of zero points under the Impairment Tables must be accorded.

6. Accordingly, the Applicant’s claim for the DSP cannot succeed as he did not satisfy the requirements of section 94(1)(b) of the Act.

7. Having reached this conclusion it is not necessary for the Tribunal to consider the contentions on whether the Applicant has a continuing inability to work.

   DECISION

8. The decision under review is affirmed.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

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Associate

Dated  4 October 2016

Date of hearing	29 September 2016
Applicant	By Phone
Solicitors for the Respondent	Department of Human Services