Stephens and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 880

[2012] AATA 880

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1652
Re	Neil Stephens
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President D G Jarvis and Professor D Ben-Tovim, Member
Date	14 December 2012
Place	Adelaide

The decision under review is affirmed.

........................................................................

Deputy President D G Jarvis

CATCHWORDS

SOCIAL SECURITY - Disability support pension - held that applicant does not have a continuing inability to work - significant permanent impairment not fully investigated or diagnosed - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

CASES

Bushell v Repatriation Commission (1992) 175 CLR 408

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director General of Social Security (1984) 1 FCR 354
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Re Lavery and Registrar, Supreme Court of Queensland (No.2) (1996) 23 AAR 52
Shi v Migration Agents Registration Authority (2008) 235 CLR 285

REASONS FOR DECISION

Deputy President D G Jarvis and
Professor D Ben-Tovim, Member

14 December 2012 

INTRODUCTION

1. The applicant, Neil Stephens, lodged a claim for a disability support pension (DSP) with Centrelink on 15 August 2011.[1]  He was referred for a job capacity assessment, and after reviewing various medical reports, the assessor concluded that no verified permanent fully diagnosed, treated and stabilised conditions had been recorded, and therefore impairments could not be recorded.[2]

   [1] Exhibit R1, T7, page 29.

   [2] Exhibit R1, T8, page 57.

2. Mr Stephen’s claim for DSP was rejected by Centrelink, and that rejection was affirmed on 12 January 2012 in a decision made by an authorised review officer (ARO).[3]  The ARO accepted that Mr Stephens suffers from complex post-traumatic stress disorder and major depression, but found that those conditions were not fully treated and stabilised, and did not attract impairment points.  She further found that because Mr Stephens was working as an entertainer averaging 15 to 24 hours per week he did not have a continuing inability to work and did not qualify for DSP for that reason also.

   [3] Exhibit R1, T6, page 19.

3. Mr Stephens then appealed from the ARO’s decision to the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the ARO’s decision.[4]  He then applied to this tribunal for review of the decision to reject his claim for DSP.

   [4] Exhibit R1, T2, page 3.

   ISSUES BEFORE THE TRIBUNAL

4. The issues before the tribunal are:

   (a)whether Mr Stephens has a physical, intellectual or psychiatric impairment;

   (b)if so:

   ·what is the nature of that impairment or those impairments;

   ·do the impairment(s) rate as least 20 points under the Impairment Tables; and

   ·does Mr Stephens have a continuing inability to work because of the impairment(s).

   BACKGROUND

5. The following background facts are not in dispute, and are based on the evidence of Mr Stephens and on documents before us.  We found Mr Stephens to be an honest witness, and accept his evidence.  Many of the documents refer to the name Phillip Derek Spruce, being his name before October 2009, when he registered a change of name with the Registrar of Births, Deaths & Marriages.[5]

   [5] See Exhibit A3.

6. By making freedom of information requests Mr Stephen has been able to obtain a number of historical records relevant to his medical conditions and treatment.  He carefully collated this material, and also provided other helpful background records and documents in support of his claim.

7. Mr Stephens is 42 years of age.  He migrated with his family to Australia from Great Britain as an infant in 1970.  In his early years in Australia his family received racist comments from some members of the community, but they did their best to integrate positively into Australian society.  When he was young he excelled at football, but this caused resentment, and led to his suffering, while he was at school, certain serious assaults to which we will refer below.

8. He studied at the Centre for Performing Arts in Adelaide.  Throughout the 1990s he worked as a successful actor.  He also produced some theatrical performances.  He tendered a folder containing particulars of his work in the theatre.  This contains an impressive record, and indicates that he had a number of significant roles.[6]  Mr Peter Dunn, a former TAFE lecturer, who taught him as a student and later directed him in over 10 productions, described the quality of his work as a student and later as a professional actor as excellent, and said that he was “energetic, committed, enthusiastic, intelligent and effervescent in his approach to his work”.  He also said that Mr Stephens brought to his work “an actor’s generosity, sensitivity, and excitement”.[7]

   [6] See Exhibit A12.

   [7] Exhibit A13, statement from Peter Dunn.

9. However, in 1997, Mr Stephens had a breakdown and was hospitalised at the Alfred Hospital in Melbourne.  He was prescribed Haloperidol, and continued to take this medication for about seven years after that.  He believes that this has had an adverse effect on his psychological functioning.  We will refer below to his hospitalisation and his concern about the effects of having taken the medication for such a long period in the circumstances in which he was placed.

10. After coming off Haloperidol in about 2003, his condition improved.  In 2005 or 2006 he felt ready to go to work and liaised with certain job network providers.  He was unable to return to acting, but needed work and was prepared to undertake any form of manual work.  He obtained some work in kitchens, and in about 2008 obtained employment as a disability support worker with the South Australian Department for Families and Communities, working very long shifts two and a half days a week.  However, he had difficulties arising from being allocated long working shifts at locations far removed from his home.  He suffered a “meltdown” in November 2010.  He was suspended without pay for a period, and finally resigned in July 2011.

11. He applied for a disability support pension in August 2011, and later in 2011 began busking at the Seaford Shopping Centre and the Colonnades Shopping Centre.  He did this to assist in paying his rent and bills.  Last summer he would busk between two to five hours a day, but in 2012 he reduced these hours substantially to devote time to preparing for the present proceedings.

12. Mr Stephens claims that he is suffering from four impairments, namely ruptured left testis (torsion), traumatic brain injury, depression and involuntary drug dependency.  We will refer to each of these impairments below.

    LEGISLATIVE PROVISIONS

13. Section 94 of the Social Security Act 1991 (Cth) (the Act) sets out the circumstances in which a person is qualified for DSP. It provides relevantly as follows:

    “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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

    …

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)      either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    ...

    (5)       In this section:

    ...

    work means work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person’s locally accessible labour market.”

14. The introduction to the Impairment Table as in force at the material time outlined the requirements that had to be satisfied before an impairment rating could be assigned for a condition.[8]  The introduction provided relevantly as follows:

    [8] The Impairment Tables at Schedule 1B of the Act were repealed and replaced with respect to claims made from 1 January 2012: Social Security and Other Legislation Amendment Act 2011.

    1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following an assessment is termed work-related impairment and this term is used throughout this document.

    2.  These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.  These Tables are function based rather than diagnosis based. ...

    3.  These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work.  This is measured by reference to an individual’s efficiency in performing a set of defined functions in comparison with a fully able person.  In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.

    4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

    5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

    6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

    ·   what treatment or rehabilitation has occurred;

    ·   whether treatment is still continuing or is planned in the near future;

    ·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

    CONSIDERATION

15. In reviewing a decision made by the Secretary or the SSAT, this tribunal may exercise all of the powers and discretions that are conferred by the Act on the Secretary, and stands in the Secretary’s shoes.[9]  The tribunal must conduct a hearing de novo, that is, hear the matter afresh, and must arrive at the correct or preferable decision on the material before it, and not by reference to the material before the Secretary or the SSAT.[10]  The focus of the review by this tribunal is not the correctness or otherwise of the decision under review, and there is no presumption that that decision is correct.  Further, the decision-maker may seek to support the decision on grounds that are different from those upon which it was originally made, and equally an applicant may seek to have the decision set aside on grounds that are different from those originally put to the decision-maker.[11]

    [9] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

    [10] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Shi.

    [11] Re Lavery and Registrar, Supreme Court of Queensland (No.2) (1996) 23 AAR 52 at 56.

16. In considering the submissions of each party in relation to the matters raised by the Secretary, we bear in mind that proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus.[12]  However, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist, since as a matter of common sense, if there is no such evidence, the finding cannot be made.[13]

    [12] Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.

    [13] See Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 at [18], and McDonald v Director General of Social Security (1984) 1 FCR 354 at 358.

17. Mr Stephens was critical of the conduct of certain Centrelink officers, but as explained above, the present proceedings entail a rehearing of the matter; it is not relevant to the tribunal’s review of the reviewable decision to examine the conduct of Centrelink officers, and in any event, the tribunal has no jurisdiction to do so.

18. As mentioned above, Mr Stephens claims that he has four impairments, and we will consider these in turn.

    Ruptured left testis (torsion)

19. Mr Stephens gave the following evidence in relation to this asserted impairment.  In 1978, when he was a school boy, he was physically restrained by another boy by having his arms pinned from behind, and then kicked forcibly in the groin causing a ruptured testis.  About six weeks after this incident, he suffered Bell’s Palsy, and he believes that this condition was caused by this incident in the school yard.  Mr Stephens said that he has a discomfort as a result of this incident but he lives with it.  He said further that the Bell’s Palsy does not cause pain; that there are times when his hearing or senses are impaired but not to a large degree, and that this can create misunderstandings, or the misinterpretation of a look.

20. Mr Stephens produced film from Benson Radiology and the radiologist’s report relating to an ultrasound examination on 17 September 2009.[14]  The radiologist reported that no abnormality was seen, and that there was no significant asymmetry in the size of the testes.  Mr Stephens also referred to a report from a paediatrician, Dr Chris Pearson, dated 1 April 1978 and attached clinical notes,[15] but this report relates only to the Bell’s Palsy, and does not suggest that it is related to the earlier groin injury.  He asserts that this injury is contributing to depression, and also relies on various other reports and documents.[16]  Some of these also refer to the history on which he is now relying, but they do not constitute evidence that the groin injury resulted in any ongoing impairment.  We are not satisfied that the incident has resulted in any continuing impairment, or in any continuing inability to work, and find that this asserted impairment does not give rise to an entitlement to DSP.

    [14] Exhibit A6, ME 4.

    [15] Exhibit A6, ME 6.

    [16] See Exhibit A5.

    Traumatic brain injury

21. Mr Stephens said that on 19 February 1980 he was hit on the head with a cricket bat by the same boy who had kicked him in the groin over a year earlier, and this caused him to faint and fall on to concrete steps causing a traumatic brain injury.  He said that he suffered concussion with amnesia, a fractured skull, a severed tooth and intellectual regression, as evidenced by contrasting certain school reports of his school work prior to and after to this event.

22. Records from the Flinders Medical Centre relating to this incident were tendered.[17]  They refer to a diagnosis of concussion as a result of a fall at school, and to a history of loss of consciousness and an absence of memory, both prior to and after the incident.  The notes also confirm that he fractured a tooth.  A radiologist’s report indicates that there were no other fractures or abnormalities seen.

    [17] Exhibit A6, ME 8.

23. Mr Stephens also relied on other documents listed in exhibit A5, under the heading “Traumatic Brain Injury”.  These include CT brain scans on 31 October 2008.  The scans were tendered,[18] but the report which accompanied the scans was not provided, and there is no evidence before us that the scans revealed any abnormality.

    [18] Exhibit A6, ME 7.

24. It appears from the records before us that Mr Stephens’ general practitioner, Dr Moira McCaul, referred him to the Flinders Medical Centre regarding a possible brain injury as a result of the above incident, as well as possible Asperger’s/High Functioning Autism.  The Chief Clinical Neuropsychologist at the Flinders Medical Centre, Dr Kneebone, subsequently provided a report dated 9 February 2010.[19]  This report refers to the incident when Mr Stephens was kicked in the groin and to the development of Bell’s Palsy.  It also refers to the history of being hit on the head with a cricket bat in the school yard, and with the subsequent fall, hitting his head on the concrete ground.  The report also records a further history of being admitted to hospital, a decline in school grades, and the development of behavioural problems with difficulty focussing and concentrating in class, as well as the trauma of ongoing bullying that continued into his teenage years. 

    [19] Exhibit A6, ME 3.

25. After conducting a formal neuropsychological examination and analysing Mr Stephens’ responses to the Adult Asperger Assessment questionnaire, Dr Kneebone concluded that there appeared to be no current difficulties in relation to depression, anxiety or stress, and that it appeared highly unlikely that he had Asperger’s or High Functioning Autism.  Dr Kneebone concluded as follows:

    In relation to his neuropsychological functioning, Neil demonstrated sound memory for both verbal and visual information, and generally adequate language, executive functioning, verbal reasoning, and visuoconstuctional (sic) abilities.  However he performed quite slowly on tasks that required him to process information quickly and had some difficulty attending to more complex verbal information.

    In the context of accepted indicators of head injury severity (PTA/length of LOC) it would appear from Neil’s own account that his head injury sustained during childhood was unlikely to be more than very mild. Whether or not Neil continues to suffer subtle cognitive effects of a mild head injury is difficult to answer given the passage of time and considering the other psychosocial factors also present at the time. Given that the question of aetiology of his past complaints is unlikely to be definitely answered combined with what appears to be some ongoing distress about the aforementioned childhood incidences, (sic) the most productive treatment from this point may be some form of psychological intervention.

1. Table 8 of the Impairment Tables is relevant to this asserted impairment.  We find that the first criterion in Table 8, namely: “(c)omprehension, reasoning and memory are comparable with peers or only minor difficulties,” best fits the evidence before us, including the evidence of Dr Kneebone.  We think it unlikely that any continuing subtle neurological consequences of Mr Stephens’ brain injury would have developed in later years, and his success as an actor is inconsistent with continuing symptoms from this injury.  This criterion produces a rate of nil impairment points.  In any event, in view of Dr Kneebone’s opinion that some form of psychological intervention may be the most productive treatment it would not be appropriate to assign a rating to this condition having regard to paragraphs 4 and 5 of the Introduction to the Tables, which in effect require the relevant condition to be diagnosed, treated and stabilised, and therefore permanent, before a rating can be assigned to a condition.

2. According to exhibit A5, Mr Stephens also relies on certain other medical records, assessments or reports and other material, but we are not satisfied from those matters that the brain injury has produced any relevant ongoing impairments of neurological function.

   Depression

3. Mr Stephens’ evidence in relation to this claimed impairment is as follows.  In the winter of 1983, when he was 13 years old, he was the victim of a statutory rape by six boys, including the boy who had earlier kicked him in the groin and hit him with a cricket bat.  The rape was not reported and he attempted to conceal it.  He believes that this incident and certain other events caused him to be hospitalised in 1997, suffering from major depression and other psychiatric conditions to which we will refer below.  He was put on medication known as Haloperidol, which he remained on for the ensuing seven years, despite having no signs of psychosis.  He believes that his protracted use of Haloperidol has had significant long-term adverse effects.

4. Mr Stephens gave evidence that after he discontinued Haloperidol he began to take control of his life, and he viewed life in a more optimistic way; that he now leads a reasonably well-balanced life despite occasional episodes of depression; and that he manages his depression very well these days, and treats it by physical exercise such as going for a run.

5. In a Centrelink medical report form dated 26 August 2011 prepared by Mr Stephens’ general practitioner, Dr Moira McCaul, in connection with his claim for DSP, Dr McCaul recorded a diagnoses of long-term complex post-traumatic stress disorder (PTSD), with a date of onset of 2008, and major depression, with the date of onset of 1997.  She recorded various symptoms that were current at the date of the form, including (in the case of complex PTSD) interpersonal difficulties, anxiety, and difficulties with concentration, motivation, fatigue and stress response, and (in the case of major depression) low mood, difficulties in concentration, focus, motivation, and early morning wakening at times.[20]  In a medical report dated 9 September 2011, Dr McCaul said:

   I have no doubt that he has some long term impact from Childhood Bullying/trauma which often leads to a presentation in adulthood consistent with a diagnosis of personality disorder (also now sometimes thought of as complex PTSD) and the way he presents to me is consistent with this.

   There is also the past history of a psychotic episode leading to a psychiatric admission. It is unclear to me how much of his limited insight and to some extent delusional ideas about the nature of his problems may be attributed to a continuing low grade psychotic illness.[21]

   She concurred with the view expressed by Ms Southwell, in a letter requesting the report, that Mr Stephens would benefit from another psychiatric assessment and from psychotherapy.

   [20] Exhibit R1, T9, page 61.

   [21] Exhibit R1, T12, page 102.

6. Dr McCaul had been provided with a report prepared some six months earlier by a psychiatrist, Dr M Ewer, to Mr Stephens’ then employer, the Department for Families and Communities.  The letter requesting this report was not provided, but it appears that the report was requested as a result of then current problems with Mr Stephens’ employment, for the purpose (amongst other things) of determining whether he was fit to undertake the duties entailed in his employment.  After examining Mr Stephens and reviewing various earlier medical reports, notes and records, Dr Ewer concluded that at the time of his examination, Mr Stephens was probably not suffering from an axis-1 psychiatric disorder, but that he had probably previously suffered from an axis-2 psychiatric disorder.  He also considered that Mr Stephens probably had axis-2 personality issues, and commented:

   He (Mr Stephens) acknowledged impulsivity and he acknowledged that at times his behaviour is “irrational”.  He acknowledged that he can become irrational if he perceives he is being controlled.  I note there is a history of impulsive behaviour including gambling.  Mr Stephens seemed to have a limited repertoire of healthy/adaptive coping mechanisms.[22]

   Dr Ewer thought that it would be appropriate for Mr Stephens to go back to Dr Kent for further psychotherapy, given the ongoing personality issues that he had.  We have noted from records included in exhibit A6 that Dr J Kent, who is a distinguished psychotherapist, had treated Mr Stephens on a regular basis from early in 2000 for at least twelve months.[23]

   [22] Exhibit R1, T10, page 80.

   [23] See Reports of Dr Kent dated 10/2/00 and 1/2/01, included in Exhibit A6, ME 16.

7. On the basis of the evidence before us, and in the absence of some further up-to-date specialist assessment, we are not satisfied that Mr Stephens is currently suffering from major depression, or any other depressive disorder.

   Involuntary drug dependency

8. Mr Stephens again referred in connection with this claimed impairment to his having been prescribed Haloperidol in 1997, and to that medication having been maintained for the next seven years.  He said that at the age of 26, following a relationship breakdown, he had moved to Melbourne, and in February 1997, during a heatwave and as a result of emotional stress due to, amongst other things, severe financial pressures and not eating adequately, he suffered a major depression and breakdown, and was hospitalised at the Alfred Hospital, where he says he was wrongly diagnosed as an illicit drug user.

9. Dr W Rowston, a psychiatrist from the Mental Health Services Noarlunga, provided a treating doctor’s report to the Department of Social Security dated 21 July 1997 indicating that in February 1997 Mr Stephens had a first episode of psychosis, and he referred to differential diagnoses of schizophrenia and bipolar disorder.  He also referred to the diagnosis of depression, and recorded that Mr Stephens had cut his wrists just before admission to hospital.  He also referred to a long-standing condition of asthma.[24]  In a later report dated 14 April 1999 to Mr Stephens’ then general practitioner, Dr Rowston, recounted the events that gave rise to Mr Stephen’s admission to the Alfred Hospital, and referred to his earlier history, and concluded that the most likely diagnosis appeared to be schizoaffective disorder with a differential diagnosis of bipolar disorder and schizophrenia.[25]

   [24] Exhibit A8, CM 4.

   [25] Exhibit A6, ME 14(B).

10. Further information as to Mr Stephens’ condition after the dates of the above reports is contained in notes from the Noarlunga Hospital, which refer to his admission in November 2000 with a principal diagnosis of depression with attempted suicide, and differential diagnoses of schizoaffective disorder, schizophrenia and bipolar affective disorder.[26] In a report dated 24 October 2002 Angus Forbes, a senior clinical psychologist with the Centre for Anxiety and Related Disorders of the Flinders Medical Centre, referred to events that gave rise to Mr Stephens’ hospitalisation in 1997, and also to suicide attempts in 1997, 1999 and one month prior to the date of the report.[27]  Mr Forbes records that there were no then current thoughts of self-harm, and there had been no abnormal perceptual experiences since the psychotic episode that occurred in 1997.  The report also dealt at some length with a gambling problem which Mr Stephens was then experiencing.  He was later admitted to the Flinders Medical Centre for a period of 19 days in January 2003 for therapy for this problem.  He has since recovered from his gambling problem.

    [26] Exhibit A6, ME 12.

    [27] Exhibit A6, ME 14(A).

11. It appears clear from the evidence before us that Mr Stephens had significant behavioural and other problems over the years while he was taking Haloperidol, and that he attributes those problems to his use of that medication.  However, he has not taken Haloperidol for many years, and we find that he is not now affected by having used that medication during that period, or by any other form of drug dependency.

    Job Capacity Assessment

12. Ms J Southwell, a qualified social worker, provided a job capacity assessment report in September 2011.[28]  She referred to the medical conditions that were then apparent from medical reports in her possession.  These conditions included complex PTSD, which had been referred to by Dr McCaul (but in terms that indicated that she equated this with personality disorder) and depression, which was referred to in a medical certificate dated 22 June 2011 provided by Dr Hsu.[29]  Ms Southwell drew attention to recommendations made by Doctors McCaul and Hsu, and also in a report provided by a psychiatrist, Dr  Ewer, to the effect that referrals for further specialist assessment and treatment would be beneficial.  She next considered traumatic brain injury, which was also referred to by Dr McCaul in the context of the history of complex PTSD,[30] but she was unable to accurately assess that condition on the state of the medical information before her and because Mr Stephens was reluctant to discuss any symptomatology with her relating to that condition.  She finally referred to personality disorder, in view of a reference in Dr Ewer’s report to personality issues, but in the absence of a detailed psychiatric assessment concluded that this condition could not be regarded as having been fully diagnosed.[31]

    [28] Exhibit R1, T8, page 53.

    [29] Exhibit R1, T13, page 103.  He also referred to “possible” PTSD in this certificate, but there appears to be no basis for a diagnosis of PTSD as that condition is ordinarily understood.

    [30] Exhibit R1, T9, page 62.

    [31] Exhibit R1, T8, page 56.

13. Ms Southwell accordingly concluded that no impairment points could be recorded in respect of conditions that she considered could not be regarded as fully diagnosed, treated or stabilised.  She assessed Mr Stephens’ work capacity over a projected period of two years, with his capacity increasing with the benefit of psychiatric and psychological intervention combined with vocational counselling and support, and concluded that within two years, with this intervention and support, he would have a capacity for 23 to 29 hours work per week. 

14. In evidence, Ms Southwell acknowledged that she was working from the information she had, and that general practitioners had nominated conditions which specialist psychiatrists had not identified.  She further acknowledged that she was not aware that Dr Kent had completed his treatment of Mr Stephens some years before.  In the circumstances, Ms Southwell was placed in a very difficult position to formulate an opinion, and we think that only limited weight can be given to her conclusions.

    Does the applicant have a continuing inability to work?

15. Mr Stephens acknowledges that he is physically fit, but claims that his multifaceted impairments render him liable to become unbalanced by workplace or personal stressors leading to episodes of anxiety and dysfunctional behaviour.  He further claims that his inability to work is evidenced by his loss of his employment with the Department for Families and Communities.

16. As mentioned below, we accept that Mr Stephens has had significant ongoing functional difficulties since his breakdown in 1997, and it is clear that he has been unable to return to his earlier pre-morbid work as a successful professional actor.

17. However, it also appears that his condition has improved over the period since 2003 when he ceased using Haloperidol and, as he said, began to take control of his life. He is physically fit and could do a variety of manual work. We note that he has worked as a taxi driver in the past. It appears that he enjoyed his work as a disability services officer with the Department for Families and Communities until the difficulties arose from what appear to have been unreasonable shift allocations, and he became exhausted from working very long shifts and the time and effort required travelling long distances to the locations where he was assigned to work. Nevertheless, in March 2011 Dr Ewer considered that he was capable of doing his duties with the Department,[32] and (although her assessment has limited weight, as mentioned above), Ms Southwell assessed him as having the capacity to work as a disability support worker for periods in excess of the statutory minimum of 15 hours a week, subject to a temporary period of about 3½ months to receive psychiatric and psychotherapy intervention.[33]  He has not apparently sought to engage in paid employment since he ceased his work with the Department, other than to engage in busking activities.  He performed in these activities, at times for substantial periods of the day, and he also referred to having at times given performances in restaurants in return for meals.

    [32] Exhibit R1, T10, paragraph 25.5, page 82.

    [33] Exhibit R1, T8, page 58.

18. Mr Stephens has also, in support of his claim for DSP, obtained, assembled and collated extensive records of his past disabilities and treatment, and prepared very detailed and careful submissions.  These activities demonstrate that he has the capacity to undertake work other than manual work, and also seem to have provided him with an understanding of his present circumstances, and an ability to recall experiences from earlier in his life.

19. After weighing up the evidence before us, we are not satisfied that Mr Stephens has a continuing inability to work, and therefore does not meet the qualification in s 94(1)(c) of the Act.

    Further observations re assessment of applicant’s psychiatric disorders

20. We referred in paragraphs 33 to 36 above to Mr Stephens’ history of psychiatric disorders.  It is apparent from the medical records before us that Mr Stephens has a history of severe psychiatric illnesses for which he has received treatment, and that that treatment was completed some years ago.  It also appears clear that he has never fully recovered the level of functioning that he had prior to his breakdown in February 1997, that he is still suffering long term consequences from those disorders, and that he has been left with a significant level of impairment which is likely to be permanent.  It is possible, although not likely, that there is also some possible continuing effect on his cognitive functioning as a result of his traumatic brain injury.  The change in his situation was described by his former drama teacher, Mr Dunn, in the following terms:

    Phil’s personality has changed so much that he seems like a different person. ... (He) has changed from a gregarious, confidant person to a recluse.  It appears that his thought processes have slowed dramatic.  He appears to find difficulty in answering even the simplest of questions.  He was a man of action but now looks like he spends so much time working out what to do that he has no time to do it.  I say this with hesitancy, because I don’t wish to hurt Phil, but he is now hard work to be with while in the past he was exciting and fun. (sic)[34]

    [34] Exhibit A13.

21. We think it likely that Mr Stephens continues to suffer from a psychiatric disorder, and that any such continuing disorder has stabilised.  One possible diagnosis is that he has a personality disorder (which Dr McCaul seems to have equated with complex PTSD).[35]  We are mindful that Dr Ewer did not make that diagnosis when he prepared his report dated 8 March 2011 (but he did refer to Mr Stephens having “ongoing personality issues”,[36] to his reluctance to give some aspects of his history, and to his having declined to complete certain psychiatric measuring instruments, and the focus of the report was not to arrive at a diagnosis in connection with the claim for DSP). However, from the information Mr Stephens provided to us relating to his childhood experiences, we think that the question of whether he has a diagnosable personality disorder should be investigated. It is also possible that an assessment of his current situation may reveal some other psychiatric condition, including a depressive disorder, although as mentioned above, we are not satisfied on the evidence before us that he is currently suffering from such a disorder. It does appear that the possibility that Mr Stephens suffers from some kind of longer-term deficit state as a consequence of his episodes of severe psychiatric illness has not been adequately examined for. The range of potential longer-term consequences of those illnesses should not be confined to the view that Mr Stephens himself holds about the aetiology of his present difficulties. Taking into account the information provided by Mr Dunn, and the previously mentioned evidence of a clear overall deterioration in functioning to which we referred in paragraph 45 above, the possibility of a deficit state from the schizophrenic component of a schizo-affective disorder, schizophrenia, or some other past severe acute psychiatric illness, and the implications for ongoing employment of such a state if present, might reasonably be included during any further psychiatric review (or job capacity assessment, if a further claim for DSP is made in the future).

    [35] See her report of 9 September 2011, where she refers to a possible diagnosis of “personality disorder (also now sometimes thought of as complex PTSD)”: Exhibit R1, T12, page 102.

    [36] Exhibit R1, T10, page 81.

22. We note that in the course of her evidence, Ms Southwell indicated her willingness to assist Mr Stephens to arrange for further psychiatric treatment to be provided for an initial period at no separate cost to him.  We think that that course of action should be pursued as soon as possible, and suggest that a copy of these reasons for decision should be made available to assist those involved in that re-assessment process.

23. In summary, whilst we think it likely that Mr Stephens is suffering from a continuing psychiatric disorder and that it has stabilised, it would be preferable for his condition to be further investigated, and if necessary, for further treatment to be provided, and on the evidence before us we are not satisfied that it is such that it has resulted in a continuing inability to work.  As a result, the criteria for entitlement to DSP are not met, and we must accordingly affirm the decision under review.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis and Professor D Ben-Tovim

........................................................................

Administrative Assistant

Dated  14 December 2012

Date(s) of hearing	3 and 4 October 2012
Date final submissions received	11 October 2012
Applicant	In person
Advocate for the Respondent	Mr Anthony Parker
Solicitors for the Respondent	Centrelink Program Litigation and Review Branch