Stephen Menzies and Secretary, Department of Social Services

[2015] AATA 4

[2015] AATA 4

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3883
Re	Stephen Menzies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	6 January 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

6 January 2015

BACKGROUND

1. On 23 August 2013 Mr Menzies lodged a claim for Disability Support Pension (DSP) on the basis that his medical conditions were having an impact on his ability to function. The conditions as described in the claim form included “depression, anxiety and sleeplessness”.

2. Mr Menzies’ claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that his mental health condition was not fully diagnosed, fully treated and fully stabilised during the claim period so that an impairment rating could not be assigned.

3. In this proceeding Mr Menzies seeks review of the decision of the SSAT.

4. Mr Menzies attended the hearing by telephone and was unrepresented.

   ISSUES

5. In order to qualify for DSP Mr Menzies had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 23 August 2013 and 22 November 2013.

6. It is agreed that Mr Menzies suffers from a mental health condition variously described as “depression” and “generalised anxiety” and therefore satisfies s 94(1)(a) of the Act.

7. The definitive issue in this matter is whether during the claim period Mr Menzies satisfied section 94(1)(b) of the Act, and in particular, whether his mental health condition was ‘permanent’ as defined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

   The Evidence

8. In support of his application for DSP Mr Menzies relies on several documents from the Norfolk Island Hospital and two medical reports from his general practitioner, Dr G Thompson, dated 28 August 2013 and 31 October 2013.

9. These documents confirm that between March 2013 and October 2013 Mr Menzies suffered symptoms of depression and anxiety and was treated with intermittent antidepressant medication and counselling.

10. Relevantly, in a report dated 2 April 2014, Dr M Naumoska, clinical psychologist, states that Mr Menzies attended an initial assessment on 13 December 2013 and presented with symptoms of depression and generalized anxiety.

11. Dr Naumoska stated that Mr Menzies was offered cognitive-behavioural intervention tailored to his specific needs and noted that he “participated well in therapy and seemed to benefit from regular practice of strategies”.

    CONSIDERATION

12. The Determination stipulates that that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

13. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition 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)).

14. Additionally, 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 a psychiatrist)”.

15. It is clear from the evidence that Mr Menzies was not diagnosed or treated by a psychiatrist or clinical psychologist at the time of his application or during the subsequent 13 week claim period.

16. Also, the report from Dr Naumoska clearly indicates that Mr Menzies had not been fully treated and that the specialised treatment that he had undertaken did appear to have significant benefit.

17. It follows that during the claim period Mr Menzies’ mental health condition was not permanent as defined in the Determination and that as a result, an impairment rating could not have been assigned.

18. This means that Mr Menzies did not satisfy section 94(1)(b) and did not qualify for DSP.

    DECISION

19. The reviewable decision is affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 6 January 2015

Date of hearing	9 December 2014
Applicant	By telephone
Solicitor for the Respondent	Ms S Wavamunno, Program Litigation and Review Branch, Department of Human Services