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

Steel and Secretary, Department of Social Services (Social services second review) [2022] AATA 194 (11 February 2022)
Division:GENERAL DIVISION
File Number: 2020/2578
Re:Andrew Steel
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:11 February 2022
Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 21 January 2020, is affirmed.
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Member S Barton
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant met the eligibility requirements for a disability support pension – fully treated and stabilised – Qualification Period – assigning impairment ratings – Applicant’s PTSD fully diagnosed – Applicant’s PTSD not fully treated or stabilised – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – ss 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 6(1), 6(3), 6(4), 6(5), 6(6), 6(6)(b)(i), 10
CASES
Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Member S Barton
11 February 2022
BACKGROUND

This is a review of a decision made by the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 21 January 2020 (Reviewable Decision) that affirmed a decision to reject the Applicant’s claim for disability support pension (DSP).
FACTS
The Applicant is 45 years of age.
On 4 July 2019, the Applicant lodged a claim for a DSP with Services Australia (Centrelink). He listed in his application the conditions of dyslexia, drug and alcohol disorder, and various psychiatric disorders, such as anxiety, PTSD, hypervigilance, and paranoid behaviour (T11/160).
On 20 August 2019, the Applicant’s claim for a DSP was rejected because he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T15/171) (Original Decision).
The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO). However, on 21 November 2019, an ARO of Centrelink wrote to the Applicant to advise him that the ARO had found the Original Decision to be correct, and that his review was unsuccessful (T19/177) (ARO Decision).
The ARO found that while the Applicant’s post-traumatic stress disorder (PTSD) was fully diagnosed, the condition was not fully treated and stabilised, which meant that no impairment points could be assigned (T19/178).
On 27 November 2019, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T20/184). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 21 January 2020 (T2/7-14).
On 30 April 2020, the Applicant lodged an application for an extension of time for second review in the General Division (AAT2) of this Tribunal (T21/186) and on 21 May 2021, the Tribunal granted the extension of time for the Applicant to bring an application for review.
JURISDICTION
The application for review was made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the AdministrationAct). Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard on Monday 24 January 2022. The Applicant was self-represented and appeared by telephone. The Applicant gave oral evidence and was cross-examined. The Respondent was represented by Ms Amy Simpson of Services Australia, who also appeared by telephone.
The Tribunal admitted the following documents unto evidence at the hearing:
·Application for review, dated 30 April 2020 (Exhibit A1);
·Section 37 T-Documents, labelled T1-T27, consisting of pages 1-251 (Exhibit R1);
·Supplementary Section 37 T-Documents, labelled ST1, consisting of pages 252-263 (Exhibit R2);
·Respondent’s Amended Statement of Facts, Issues and Contentions with attachment, dated 17 September 2021 (Exhibit R3);
·Medical Documents from Gingin Medical Centre, filed on 18 June 2021 (Exhibit R4); and
·Health Professional Advisory Unit Report, dated 10 June 2021 (Exhibit R5).
ISSUES
The issue for determination is whether, during the Qualification Period, that is 4 July 2019 to 3 October 2019, the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant had a physical, intellectual or psychiatric impairment or impairments for the purpose of s 94(1)(a) the Act;
(b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of at least 20 points under the relevant Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work” for the purposes of s 94(1)(c) of the Act.
LEGISLATION
The legislation applicable to this matter is contained in:
(a)the Act;
(b)the Administration Act; and
(c)the Impairment Tables.
Qualification for DSP
The qualification requirements for a DSP are set out in s 94(1) of the Act:
(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; …
The criteria contained within s 94(1) of the Act are conjunctive, meaning for a DSP application to be successful, an applicant must satisfy each sub-section.
Impairment tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.
Section 5 of the Impairment Tables sets out their purpose and general design principles, being to describe the functional impacts associated with certain types of conditions, and to assign ratings to determine the level of functional impact of impairments on applicants.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(1) of the Impairment Tables states that “[t]he impairment of the person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do …” (emphasis added). An impairment rating can only be assigned if the condition is permanent (s 6(3) of the Impairment Tables).
With regard to the permanency of conditions, ss 6(4), 6(5) and 6(6) state:
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and …
(c)the condition has been fully stabilised; and …
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments. It is first necessary to identify the loss of function, for example, lower limb function or upper limb function, refer to the Impairment Tables related to that function and then to identify the correct impairment rating.
Qualification Period
The qualifying period for assessing whether or not a person is qualified for a payment has been the subject of a number of decisions in both the Federal Court and the High Court. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, the Court found, at [12]:
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect to a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s19.
Referring to this decision, in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court found, at [144]:
In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account…
The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
(Footnotes removed.)
The effect of these decisions is described by Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066, at [48]:
Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period. That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.
Following these established precedents, the Tribunal is restricted in its consideration of the Applicant’s condition at the date of his claim, or within 13 weeks of that claim, which provides the Tribunal with a qualification period of 4 July 2019 to 3 October 2019 (Qualification Period).
Following the practice in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [31], cited with approval in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, medical reports generated after a qualification period must be relevant to that period.
DOES THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Tribunal accepts that the Applicant had an impairment during the Qualification Period.
As detailed above, the Applicant submitted an application for DSP on 4 July 2019. In support of this application was a report provided by Mr Richard Taylor, a clinical psychologist, which made the following diagnosis (T10/132):
[The Applicant] meets the criteria for Complex PTSD and evidences significant disturbance in self-organisation including affective dysregulation, negative self-concept, and disturbance in relationships. He also evidences functional impairment in relationships, ability to work, and other important areas of his life such as family, vocational/work, and leisure activities.
The Applicant had been referred to Mr Taylor by his general practitioner, Dr Daniel Conradie (T10/127).
The agency requested the Health Professional Advisory Unit of Services Australia (HPAU) to provide a medical opinion regarding the Applicant’s impairment during the Qualification Period. This report was provided in June 2021 and the opinion of the clinical psychologist was that the Applicant (R5/298):
…presented with Complex PTSD which can be considered fully diagnosed as it has been confirmed by both a general practitioner and clinical psychologist.
The Tribunal accepts that the PTSD condition that the Applicant referred to in his application for DSP was fully diagnosed. However, with respect to the other conditions that he referred to, (namely the dyslexia, drug and alcohol history, anxiety, hypervigilance and paranoid behaviour) this is not the case.
The medical report provided by Mr Taylor (T10) and further records provided by Gingin Medical Centre make reference to substance abuse. However, there is no further clinical evidence before the Tribunal that suggest a diagnosis. The Tribunal accepts the HPAU’s assessor comment that (R5/298):
[the Applicant] may have very well presented with a number of other comorbid conditions such as substances misuse and possible underlying psychotic illness as suggested by his general practitioner, however without verification from a psychiatrist, these cannot be considered fully diagnosed at the relevant time.
Having accepted that the Applicant’s PTSD was fully diagnosed during the relevant period, it is necessary to consider if his condition was fully treated and fully stabilised.
In June 2019, the Applicant’s clinical psychologist, Mr Taylor wrote (T10/132):
[The Applicant] can be regarded as having been fully treated in terms of his diagnosis and what might be realistically available to assist him personally in a biopsychosocial sense. It is not about a new drug or therapy program to alleviate psychological suffering.
On 29 August 2019, the Applicant’s general practitioner, Dr Conradie, wrote (T16/173):
He remains committed to seeing his clinical psychologist but has also agreed to see the visiting psychiatrist of Wheatbelt Mental Health Service to assist with further management of his mental health conditions.
On 3 September 2019, in a referral to the Wheatbelt Mental Health Service, Dr Conradie wrote (R4/282):
[The Applicant] has not engaged in active treatment in years. Early August he was involved in a fight, obtained a gun and fired it in public.
He was detained by Police and taken to JHC [Joondalup Health Campus] by ambulance for mental health assessment. The handover went terribly wrong as he was triaged and treated for toothache. This would’ve been the perfect opportunity for him to be fully observed and assessed. He has agreed to seek help at WBMHS [Wheatbelt Mental Health Service] as he wants to access Disability Pension but requires…[text missing].
On 13 September 2019, Dr Conradie wrote in his consultation notes (R4/269):
He hasn’t made contact with Richard [clinical psychologist] again, has had mail from Wheatbelt Mental health but sounds reluctant to get involved with them today…
expl that optimal management is required if [he] has any hope to access disability funds.
Notwithstanding Mr Taylor’s contention above that the Applicant was fully treated, there is no evidence of treatment for his condition. Moreover, Dr Conradie’s medical notes suggested an unwillingness and or inability by the Applicant to engage in appropriate treatment.
The Tribunal notes the HPAU report, which offered the following opinion (R5/299):
… [the Applicant’s] complex PTSD was not fully treated during the period of qualification. [the Applicant] has not been reviewed by a psychiatrist as recommended by both his GP and clinical psychologist. Although he attended appointments with a clinical psychologist, this had been for assessment rather than therapeutic intervention. While [the Applicant] has been reluctant to engage in further services, he had displayed sufficient insight to recognise his need for additional treatment.
During the hearing, the Applicant also advised the Tribunal that he was not fully treated during the Qualification Period.
Section 6(6)(b)(i) of the Impairment Tables allows for a condition to be considered fully stabilised where a person has not undertaken reasonable treatment where:
significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
there is a medical or other compelling reason for the person not to undertake reasonable treatment.
It may be the case that even with reasonable treatment there may not be significant functional improvement in the Applicant’s condition, however as noted in the HPAU report (R5/300):
without at least trialling appropriate treatment, it was premature to opine that significant functional improvement was unlikely.
CONCLUSION
Based on the information before it, the Tribunal finds that during the relevant Qualification Period, the Applicant’s condition could not be assessed as fully treated and stabilised. Therefore, an impairment rating cannot be assigned under the Impairment Tables because the Applicant’s condition does not meet the requirements of being permanent. The Applicant has not satisfied 94(1)(b) of the Act. Given this requirement is not met, it is not necessary to consider whether the Applicant had a continuing inability to work.

The Tribunal notes that the HPAU report recorded that the Applicant attended a number of sessions with a psychologist outside the Qualification Period (R5/300). This treatment would presumably be considered in any future application for DSP.
DECISION
The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 21 January 2020, is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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Associate
Dated: 11 February 2022

Date of hearing:
Applicant:

24 January 2022

Self-represented

Advocate for the Respondent: Ms A Simpson, Services Australia

[2022] AATA 194

11 February 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Appeal

Statutory Construction

Procedural Fairness