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

[2017] AATA 691

Spiteri and Secretary, Department of Social Services (Social services second review) [2017] AATA 691 (16 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3836

Re:Charles SPITERI

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:16 May 2017

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension - whether condition fully diagnosed, treated and stabilised - impairment tables – mental health condition - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Member

16 May 2017

BACKGROUND

1. Mr Spiteri, who is now 57 years old, lodged a claim for Disability Support Pension (DSP) on 1 October 2015.

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 21 June 2016, the Social Services & Child Support Division (AAT1) of the Administrative Appeals Tribunal accepted that Mr Spiteri suffered a fully diagnosed mental health condition but found that the condition was not fully treated and fully stabilised so a rating under the Impairment Tables could not be applied.

4. In this proceeding Mr Spiteri seeks review of the decision of AAT1.

5. At the hearing, Mr Spiteri was self-represented.

   ISSUES

6. In order to qualify for DSP Mr Spiteri must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 1 October 2015 and 31 December 2015 (the claim period).

7. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (section 94(1)(a); and

   ·the person’s impairment is of 20 points or more under the Impairment Tables section 94(1)(b); and

   ·the person has a continuing inability to work as defined by the Act (section 94(1)(c)(i).

8. The Respondent concedes, and the Tribunal accepts, that Mr Spiteri suffers a medical condition that causes impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

11. The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

12. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made 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).”

13. It is not disputed that, during the claim period, Mr Spiteri suffered a mental health condition variously described as Adjustment Disorder with anxiety and depressed mood, mixed anxiety and depression and Major Depressive disorder.

14. On the 25 June 2015 the diagnosis of Mr Spiteri’s mental health condition was confirmed by a psychiatrist, Dr Kumar, and there is no dispute that, during the claim period, the condition was fully diagnosed.

15. However, the Respondent contends that, during the claim period, Mr Spiteri’s mental health condition was not fully treated and fully stabilised and therefore, a rating under Impairment Table 5 could not be applied.

16. Therefore, the definitive issue in this matter is whether, during the claim period Mr Spiteri’s mental health condition was fully treated and stabilised, and if so, what was his impairment rating under Impairment Table 5.

    Was Mr Spiteri’s Mental Health Condition fully treated and fully stabilised?

17. In a Centrelink Medical Certificate dated 18 March 2014 Dr Sheriff, general practitioner (GP), indicates a diagnosis of “post traumatic anxiety related disorder” and notes that Mr Spiteri “needs psy counselling”.

18. In a letter dated 17 June 2014 Dr Anantharaman PhD, counsellor, stated that Mr Spiteri attended for assessment on 16 May 2014 and subsequently attended four more sessions “to be able to cope better and function adequately at home as well as outside home”.

19. In a Centrelink medical report dated 24 June 2014, Dr Sheriff makes a diagnosis of “Adjustment Disorder with Anxiety and Depression” and indicates that the diagnosis is supported by specialist opinion and lists Dr Anantharaman as Psychiatrist/ Clinical Psychologist.

20. Dr Sheriff notes current treatment as “psy counselling” commencing on 16 May 2015, and future treatment as “counselling by psychologist; if needs Antidepression drugs later”. [sic]

21. I note at this point that Dr Anantharaman is not a psychiatrist or clinical psychologist but appears to be a member of the Australian Association of Social Workers.

22. In a Centrelink medical certificate dated 17 September 2014, Dr Sheriff indicates that Mr Spiteri “needs counselling and treatment by psychiatrist”.

23. In a Centrelink medical certificate dated 15 December 2014, Dr Sheriff indicates that Mr Spiteri is “going to consult clinical psychologist in January 2015”.

24. In a letter dated 25 June 2015. Dr Kumar, psychiatrist, states that Mr Spiteri presents with “depressive symptoms” and makes a diagnosis of “mixed anxiety and depression”. Dr Kumar notes that Mr Spiteri is “reluctant to commence medications, however he is willing to think about it.”

25. At the hearing, Mr Spiteri told the Tribunal that he was reluctant to take medication because he was worried about possible side effects which had been described in various television programs.

26. In a letter to Dr Hogan, Mr Spiteri’s new GP, dated 16 July 2015, Dr Kumar notes that since the last follow up visit Mr Spiteri “has not commenced any medication and is quite reluctant to use any even now” and that he has agreed to “psychological therapy.” Dr Kumar asks Dr Hogan to refer Mr Spiteri to a psychologist.

27. In a Centrelink Medical certificate dated 23 July 2015, Dr Hogan notes that Mr Spiteri is under the care of Dr Kumar and awaiting psychological therapy from a clinical psychologist. In a subsequent certificate dated 24 August 2015, Dr Hogan states that psychological therapy is to commence on 28 August 2015.  

28. In a letter dated 25 September 2015, Ms Dale, clinical psychologist, states that she has seen Mr Spiteri on three occasions for treatment of Major Depressive Disorder but does not provide details of future treatment.

29. In a letter to Dr Hogan dated 28 January 2016, Dr Kumar states, inter alia, the following:

    The illness is fully diagnosed and Charles is being treated for it. The condition is not stable as he still has ongoing symptoms…In terms of treatment, he is currently under treatment from a psychologist for his symptoms. Charles is quite apprehensive about going on antidepressants…...Though I feel that medications may help, his own feelings towards them may a significant hindrance in his recovery [sic]. I suggest that he continue with psychological therapy and with time, with good a good therapeutic relationship, the option of medications can be explored regularly. Would appreciate if you could also have a discussion about medication options with Charles.

30. In a letter dated 5 February 2016, Ms Dale states that Mr Spiteri has attended nine psychology sessions.

31. In a letter dated 27 May 2016 Ms Dale states that Mr Spiteri has attended twelve psychology sessions since his first appointment on 28 August 2015 and in the past two weeks has commenced on an antidepressant, Zoloft 50 mg daily. 

32. In a letter to Dr Burke, GP, dated 31 July 2016 Dr Kumar notes that Mr Spiteri is now on Zoloft 100 mg and “has had no side effects” but feels that his condition is not getting better.

33. In a letter to Dr Burke dated 23 October 2016 Dr Kumar notes that Mr Spiteri is now on Zoloft 100 mg daily but despite medication and psychological therapy there has been no substantial change in his mental state and adds that a “significant factor in his illness is the financial stress and the fact that he has not been able to get a disability support pension.”

34. Dr Kumar suggests continuing with Zoloft and increasing the dose to 150 mg daily and ongoing psychological therapy.

35. In a letter to Dr Burke dated 21 April 2017, Dr Kumar notes that Mr Spiteri is now on Fluoxetine 20 mg daily with no improvement in his condition.

    Consideration

36. The documentary evidence before the Tribunal clearly demonstrates that Mr Spiteri has had symptoms of anxiety depression for several years. However, a formal psychiatric diagnosis was not made until he was seen by Dr Kumar on 26 June 2015. Treatment for his symptoms prior to June 2015 appears to have been confined to some counselling sessions.

37. Dr Kumar recommended treatment with antidepressant medication and psychological therapy. Mr Spiteri rejected treatment with medication because of concerns about possible side effects but agreed to attend psychological therapy.

38. Between 28 August 2015 and 5 February 2016 Mr Spiteri attended nine treatment sessions with a clinical psychologist with three sessions in the four weeks prior to the date of claim for DSP.

39. In his letter of 28 January 2016, about four weeks after the end of the claim period, Dr Kumar stated that Mr Spiteri’s condition was not stable and was clearly of the opinion that psychological therapy should be continued and that antidepressant medication would be helpful.

40. It is clear from the evidence that specific treatment of Mr Spiteri’s mental health condition did not begin until he attended the psychological therapy sessions a few weeks prior to the date of claim. These sessions also continued over the following eight months.

41. In May 2016 antidepressant medication was added to the treatment program with an increasing dose over the following six months.

42. I am satisfied that the treatment program described above points to a conclusion that, during the claim period, Mr Spiteri‘s mental health condition was not fully treated and fully stabilised, so that, a rating under Impairment Table 5 cannot be applied.

43. Therefore, I am satisfied that, during the claim period, Mr Spiteri did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

    DECISION

44. For reasons set out above the Tribunal is satisfied that, during the claim period, Mr Spiteri did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

45. The decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Dated: 16 May 2017

Date(s) of hearing:	28 April 2017
Applicant:	In person
Solicitors for the Respondent:	Carmen Juarez, Department of Human Services