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

Sziva and Secretary, Department of Social Services (Social services second review) [2018] AATA 3040 (11 July 2018)
Division:GENERAL DIVISION
File Number(s): 2016/6114
Re:Steven Sziva
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Bill Stefaniak AM RFD, Senior Member
Date:11 July 2018
Date of written reasons: 24 August 2018
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 11 July 2018, the Tribunal sets aside the decision under review dated 13 October 2016, and in substitution decides that the Applicant is to be granted Disability Support Pension with effect from 28 October 2015.
............................[sgd].........................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY– disability support pension – whether applicant qualified for disability support pension – mental health condition – whether applicant’s condition attracted 20 points or more under the Impairment Tables during the relevant period – set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
WRITTEN REASONS FOR ORAL DECISION
Bill Stefaniak AM RFD, Senior Member
24 August 2018
Background

The Applicant, Mr Sziva, was born on 31 July 1960. He worked in quite interesting and responsible jobs up until the time he branched out into a business venture on his own. The business venture did not go as well as he hoped and during this time his parents suffered significant health problems. He was a carer for his father who died in 2001 and then a carer for his mother who died in April 2015. The time from around 2009 to April 2015, when his mother died, was a particularly traumatic period for the Applicant. One can only admire the extreme dedication he showed to caring for his mother but it appears that that has cost him in many ways as has been referred to in various reports.
The Applicant had suffered some depression before and had other physical ailments as well. After his mother died in April 2015, it appears that this left a significant hole in his life and caused further problems which I will refer to later.
When the Applicant ceased his employment, he did receive for many years a Carer’s payment and Carer’s allowance for caring for his ill parents. On 29 July 2015, the Applicant lodged a claim for the Disability Support Pension (DSP). This was subsequently unsuccessful. The Applicant initially appealed to have this decision reviewed by an Authorised Review Officer (ARO) and provided a significant volume of documentation. On 2 May 2016, the ARO made a final decision to reject the claim. The Applicant then appealed to the AAT1 which affirmed the ARO decision on 13 October 2016. The Applicant then appealed to this Tribunal.
During the part-hearing of this matter on 16 November 2017 and during the resumed hearing on 22 June 2018, it became clear that the Applicants' physical impairments were of no consequence with respect to his DSP claim made on 29 July 2015. The only real issue for the Tribunal in these proceedings is whether the Applicant's mental health condition was fully diagnosed, treated and stabilised and, if so, whether it qualifies for 20 points under Table 5, given he does not satisfy the Program of Support (POS) requirement.
The Applicant had suffered significant lower back problems but he himself indicated in evidence before the Tribunal that it was not so much an issue now. As a result of the very commendable loss of 30 kilograms by the Applicant in the last year or so, his back condition has improved quite significantly and various sources in the documentation indicated that the assignment of five points from Table 4 was reasonable. The Applicant did note however that one of the officers in the Department indicated 10 points.
At any rate, it is of no great relevance to this tribunal in deciding this matter that the back condition does appear to have now improved because on any assessment during the relevant period the most points it would attract under Table 4 would be 10 points and as the Applicant did not and could not participate in a POS prior to applying for the DSP as he was a full time carer of his mother, he needed to attract an impairment rating of 20 points or more under a single Impairment Table to qualify.
The Applicant’s mental health condition was identified as the most significant issue before the Tribunal. Table 5, Mental Health Function, is the relevant Impairment Table that needs to be considered.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
The Tribunal needs to consider whether the Applicant satisfied the requirements to receive the DSP on the date of his claim or within a 13 week period after that date, namely 29 July 2015 to 28 October 2015 (the claim period).
During the claim period, if a person is assigned 20 points under any one of the Impairment Tables they do not need to complete a Program of Support. However, a person does need to show a continuing inability to be able to work at least 15 hours a week within the next two years.
There were significant issues in this case in relation to whether the Applicant’s mental health condition had been fully diagnosed, treated and stabilised. The position of the Respondent was that it was not. The Applicant saw a clinical psychologist, Ms Leahy in December 2015 who provided a report dated 11 January 2016.
The Applicant indicated that he experienced significant issues in relation to submitting material in support of his application for DSP and advised that he would have seen a psychiatrist earlier had he been told he needed to. He pointed to defects in documents, even defects in documents which were sent to him in August 2015 in the middle of the claim period indicating that many medical conditions needed to be backed up with relevant medical reports but the type of reports needed were not specified.
The Tribunal notes the point raised by the Respondent that a diagnosis for mental health issues under Table 5 needs to be determined by a psychiatrist or a clinical psychologist and in terms of the Applicant seeing a psychiatrist or a clinical psychologist , this did not occur until after the claim period.
The Law
The claim was rejected by Centrelink on the basis that the applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) in that he did not have an impairment rating of 20 points on the Impairment Tables as noted in the Respondent’s Statement of Facts, Issues and Contentions dated 8 September 2017 at paragraph 3.6.
Paragraph 6 of the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) sets out rules for assessing the level of functional impairment of condition and assigning impairment ratings.
In assessing functional capacity, paragraph 6(1) states that a person’s impairment 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 or what others do for the person.
In applying the tables, paragraph 6(2) provides that the Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
In terms of impairment ratings, paragraph 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of the available evidence, to persist for more than two years. The example given is a condition may last for more than two years but the impairment resulting from that condition may be assessed as likely to improve or cease within two years. If that is the case, an impairment rating under the tables cannot be assigned to the impairment.
Permanency of conditions is considered at paragraph 6(4). A condition is considered permanent if it:
(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 in light of available evidence, to persist for more than 2 years.
In determining whether a condition has been fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b) by an appropriately qualified medical practitioner, paragraph 5 provides that the following should 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.
To be fully stabilised, paragraph (6) provides that 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.
Reasonable treatment is defined. It certainly seems that after April 2015 on the evidence before me, the applicant has, over a two year period and appears to be continuing to do so, undertaken treatment in relation to his condition of depression, especially resulting from his mother’s death in April 2015 and such treatment to date has not resulted in significant functional improvement such as would enable him to undertake work in the next two years (from the claim period ) or indeed up until now or in the foreseeable future.
Those are the legal parameters in relation to fully diagnosed, treated and stabilised that The Tribunal has to look at.
The Evidence
The Applicant gave evidence on 16 November 2017 and 22 June 2018 and Dr Williams also gave evidence at hearing on 16 November 2017. There was an issue in relation to Dr Leahy, the clinical psychologist, who declined to appear in person or even by phone but whom neither party ultimately wished to subpoena despite being given the opportunity to do so by the Tribunal.
It should be noted that the Tribunal does have power if people do not attend or make any contact in answer to a subpoena to issue a warrant and they can be forcibly brought before the Tribunal. I put on the record that was something I was quite prepared to do.
It should also be noted that there was considerable logic in the Applicant’s desire not to subpoena the Doctor and at any rate the Doctor had a point in her assertion that she had covered everything amply in her written documentation supplied.
Dr Leahy supplied several reports to the Tribunal. At this stage I think it is important to consider what medical evidence there was to back up the oral evidence of the Applicant before this Tribunal in terms of how the death of the Applicant’s mother affected the Applicant’s mental health and indeed continues to do so.
Dr Williams gave evidence before the tribunal by telephone. She was cross-examined and indicated that she had been the family doctor treating the Applicant and his Mother since 2010. She said that she had some significant concerns for the Applicant and was very well acquainted with the Applicant and his Mother.
Dr Williams stated that the Applicant had suffered from a very severe grief reaction. She was concerned that the Applicant may well have been suicidal. She said the Applicant could not do anything, did not have any plan and could not bring himself to tidy up his Mother’s things. She said he had been to the house and had seen the Applicant in the house. She had been to the house three or four times at least in 2015 and had been there again in May 2016.
She stated that she had seen the Applicant on 17 occasions between May 2015 and May 2016 and monthly since then (that takes us up to November 2017 when she gave evidence). She said the Applicant had very severe persistent depression and that Centrelink had told the Applicant (after the claim period) that he needed to see a psychiatrist or a clinical psychologist and that is why the Applicant then promptly went to see Dr Leahy.
Dr Williams stated that the Applicant certainly could not work at the time of the claim period and that she wondered if he could ever work again. She also indicated the Applicant had seen Dr Shannon Paisley (consultant psychiatrist) in June 2016 for a change in medication.
Dr Williams stated that she had the seen the Applicant some 13 times in 2017 in addition to phone calls made with the Applicant and there had been a 30 to 40 per cent improvement. During cross-examination, the Doctor stipulated:
I do not think he has improved significantly; just he has improved 30 to 40 per cent.
She indicated that she herself had worked on post-traumatic stress in community mental health although she was not a clinical psychologist or a psychiatrist. She felt a lot of medication had been tried. She felt that it was unlikely that we would see any further improvement in the Applicant’s health and that it had stabilised.
Doctor Williams also provided a written report. While the Doctor is not a clinical psychologist or psychiatrist, she has had significant dealings with the Applicant. She had even been to the Applicant’s home and is in a very good position to indicate as an experienced person, especially as a practitioner, who has had some experience in dealing with mental health issues to speak from a position of authority in relation to this matter. She completed a report on 2 March 2017 at the Drummoyne Practice, in which she stated: :
I have known Steven Sziva since I became his mother’s General Practitioner in November 2009. I saw her regularly every month at least at his home with Steven until her death in April 2015.
I have been the General Practitioner for Steve since October 2010. His mother suffered a severe Hypoxic injury following surgery in June 2006 and expected to die in an aged care facility within 6 months. Steven Sziva cared for her at home until her death 8 years and 10 months after her injury with help from carers but without respite admissions or holidays.
He devoted his life to his mother’s care in that time. He rarely left the house during that time and slept fitfully in the same room as his mother and neglected his own self-care to prioritise his mother’s care. He has few interpersonal relationships and was concerned that specialist doctors were not caring for his mother appropriately when she attended hospital. He was not on anti-depressants during this time but I was concerned that he was at risk of suicide on his mother’s death.
In June 2015 Steven Sziva presented with symptoms of tearfulness, poor motivation and poor sleep. He had ceased his antihypertensive medication, he could not concentrate on TV. He had not left the house & he had not tidied the house. He believed that his life had no structure since his mother had died. By social security tables he was severely impaired in self-care and independent living and in interpersonal relationships, social and recreational activities, concentration and task completion, planning and decision making and work capacity.
I started treatment with oral anti-depressants which I changed at review 10 days later because of side effects, and increased dosage in late July. I completed a medical certificate for Centrelink in July 2015 as his carer’s benefits were due to expire. He was severely impaired and unfit for work. Steven has not worked for 15 years as he cared for both his parents until his father’s death and then his mother’s brain injury. He has also had chronic back and knee pain. He had sought treatment for a number of years.
By social security tables he had mild functional impairment from his knee pain and mild functional impairment from his back & neck pain.
As I indicated, his knee, neck and back pain are not really in issue in relation to this matter and do not need to be touched on. Dr Williams continued :
I encountered various changes to Centrelink definitions that have become a problem for Mr Sziva’s ongoing Sickness Benefits and his application for Disability Benefits. I was informed that a diagnosis of a Grief Recreation is unacceptable and that a diagnosis of Depression by a General Practitioner is no longer acceptable unless substantiated by a Psychologist or a Psychiatrist.
She then indicated:
Mr Sziva’s application for Disability Benefits in July 2015 and October 2015 appeal was declined partly because of those definitions. I have continued to do Medical Certificates for Mr Sziva on a regular basis and have attempted to supply sufficient information in the limited space on the Centrelink Certificates. At no time have I been requested to rank the severity of his disabilities. I consider that the financial insecurity arising from the difficulties with Centrelink have contributed to the severity of Mr Sziva’s ongoing mental health. I completed a K10 assessment (enclosed) and in December 2015 I referred Steven Sziva to Essential Balance Psychology where he saw Jennifer Leahy and whom he has continued to see. She also diagnosed a substantiated diagnosis of the severe range on recognised screening tool assessments and documented his self-care, interaction and interpersonal relationships in the severe impairment range ( letter of 11 January 2016).
She continues:
Mr Sziva continued on regular anti-depressants with little improvement in his functioning and I had him double his dosage in April 2016. In mid-May he requested I visit him at home so he could show me the state of his dishevelment with dishes unwashed since Christmas, piles of dirty and clean washing mixed on the floor and none of his mother’s effects sorted even though it had been a year since her death. I understand that he has no sustained friendships or interpersonal relationships and rarely left the house except for short visits to the shops.
I referred him for urgent review to Dr Shannon Paisley, psychiatrist in Burwood who saw him in mid June 2016. He also substantiated diagnosis of severe depression but I did not receive the formal report until October 2016. He suggested a change in the anti-depressants.
Despite continued psychology consultations and a change of medication Steven Sziva remained impaired throughout 2016. He had difficulty coping with situations involving stress particularly with Centrelink, and continued to have difficulties with concentration and task completion particularly at home for food preparation and cleaning and for self-care, and had persistent difficulties in making friends and sustaining relationships. He continued to be anxious to return home if he went out. Self-care improved to moderate functional impairment. He had managed to attend specialists in 2016 for a long delayed Colonoscopy and also for Obstructive Sleep Apnoea assessment, and was taking his medication for Depression and Hypertension regularly. By January 2017 a review K10 assessment with me showed a minor change from a score of 38 in December 2015 to a score of 36 (enclosed).
Mr Steven Sziva continues to suffer from Depression with persistent symptoms of poor motivation, poor concentration, easily experiences outbursts at stressful situations, is easily moved to tears when he thinks of his mother. His activity levels remain reduced and he has yet to tidy and clean his mother’s effects from the house.

Dr Joanne Williams signs it. It is dated 2 March 2017.
She encloses an assessment made on 7 December 2015 where he gets 38 points. Dr Leahy comments on that. She encloses another assessment on 19 January 2017 where the Applicant gets 36 points, just a minor change in relation to that.
Dr Leahy in a letter dated 11 January 2016 states:
Thank you, Dr Williams, for referring Steven.
She then noted that he had struggled to cope with the loss of his mother as it appears his whole life was dedicated to her. She went onto say:
Steven reported that he believes he has been depressed for approximately 2-3 years, however his mood and functioning have worsened since his mother’s death.
Steven said you had prescribed him Lexapro 15 milligram and he has been taking this for approximately eight months. Steven has not had any previous psychological treatment…
Steven reported a number of depressive symptoms. He reported that his mood is depressed every day. He reported poor sleep, fatigue, anhedonia, concentration difficulties. Steven said he had some suicidal thoughts but no plan or intent to act on these thoughts. Steven reported he has no motivation to do anything and does not want to leave the house. Steven has no social contact and no interests. Steven’s reported symptoms correlate with my clinical observations. Steven’s personal hygiene and grooming was poor. His mood was depressed with restricted affect and he frequently loss track when providing a history of his circumstances. Steven said he had been neglecting the household chores-he has crates full of dirty dishes in his kitchen and he has only vacuumed the house once since his mother’s death.
When Steven attended for his initial consultation on 17 December 2015, he completed the Beck Depression Inventory II (BDI-II) and the DASS21 (a screening tool to assess symptoms of depression, anxiety and stress). Steven scored 35 on the BDI-II which is the severe range of depression. Steven’s scores on the DASS 21 were depression 42 (severe): anxiety 18 (severe) and stress 26 (severe).
Steven has indicated that he is applying for a Disability Support Pension as he does not believe he currently has the capacity to work due to his depressive illness. Steven’s symptoms meet diagnostic criteria for a major depressive disorder. Steven’s mental problems have affected his functioning as follows:
(a) Self-care-Moderate impairment. While Steven is able to live independently, he is neglecting self-care ( grooming, hygiene and nutrition).
(b) Social/recreational activities and travel-severe impairment. Steven goes out infrequently and he has no interests or hobbies.
(c) Interpersonal relationships-severe impairment. Steven has no friends and currently has no interest in seeking social contact.
(d) Concentration and task completion-severe impairment. Steven has difficulty concentrating on tasks or conversation for more than 10 minutes.
(e) Behaviour, planning and decision-making-severe impairment. Steven has frequent mood difficulties and is withdrawn.
(f) Work/ training capacity-severe impairment. Steven is unable to attend work, education or training due to his mental illness.
She concludes:
In my opinion, Steven’s overall functioning is severely impaired by his depressive illness. Steven has recently begun treatment of depression. It is difficult to make a judgement on Steven’s prognosis given that he has only recently started psychological treatment. Response to treatment is often dependent on the patient’s engagement in therapy and their readiness to change. Given the severity and duration of Steven’s depressive symptoms and his physical pain and limitation, I would not expect Steven’s mood and functioning to improve rapidly, rather he will require extended treatment which will of course depend on his willingness to engage in therapy. I would expect that with a combination of medication and psychological therapy, Steven should make gradual progress over the next six to 12 months. Unfortunately, Medicare will only cover 10 therapies sessions per calendar year.
The Doctor completes another report in 2016 and one more in 2017. Her next report was 29 February 2016, in which she refers to her letter dated 11 January 2016. In this report she noted that Steven had completed 6 sessions under Medicare and indicated that his DSP had not yet been approved.
Doctor Leahy stated:
To date therapy has included psychoeducation, goal-setting, behavioural activation strategies and supportive counselling. Unfortunately Steven has been unable to do much in the way of physical activity due to his back and knee problems. Steve has been visiting a friend occasionally but otherwise is still quite socially isolated. Steve reported that his house is still a mess and he could not be bothered cleaning the dirty dishes which have been in the sink for months. I have continued to encourage Steve to set manageable goals to improve his functioning. I also plan to do more cognitive therapy to help address negative thinking and rumination.
She also wants Dr Williams to review and provide another referral so he can continue attending her surgery.
On 4 August 2016, Doctor Leahy sent a letter to Dr Williams and stated:
Steve has now completed 10 sessions under Medicare.
Steve’s mood has improved slightly since he first attended. He has experienced ongoing stress due to the rejection of his Disability Support Pension application as well as financial stress and this has impacted on his progress.
He advised he has seen a psychiatrist and his anti-depressant medication was changed, though he is not sure whether this has benefitted him. Steve complained of fatigue and reported that he is still not sleeping well. He wakes frequently during the night and does not feel refreshed the next day.
The Doctor encouraged the Applicant to do a sleep study and to continue with scheduled activities to increase enjoyment and achievement and to help reduce rumination and notes some administrative issues in relation to how he can continue to get assistance to pay for these sessions.
In her letter of 24 February 2017 to Dr Williams she states:
Thank you for referring Steven for treatment for depression. As you know, I saw Steven for 10 sessions in 2016…Steven has requested I provide some clarifications around his diagnosis of depression as his application for DSP was apparently rejected because of missing information regarding the timeframe in which the depression developed.
I note that you wrote on Steven’s mental health care plan dated 7 December 2015 that his depression was associated with a grief reaction following his mother’s death. This also fits with the history provided to me by Steven. Although Steven did not present to me until December 2015, I feel comfortable making the assumption that Steven had been suffering from depression since the death of his mother in April 2015, including the period in which he made his DSP application in July 2015.
I refer to my letter dated 11 January 2016. As previously mentioned, when Steven first presented to see me in December 2015, he reported depressed moods every day, insomnia, fatigue, anhedonia, concentration difficulties. Steven reported some suicidal thoughts but had no plan or intent to act on those. He reported no motivation to do anything. He did not want to leave the house. No social contact, no interests and Steven’s reported symptoms correlated with my clinical observations. Steven’s personal hygiene and grooming was poor, mood depressed with restricted effort, frequently lost track with providing a history of his circumstances. Steven said he had been neglecting his household chores. He had crates full of dirty dishes in his kitchen and he had only vacuumed the house once since his mother’s death. Steven’s scores on the Beck Depression Inventory II (BDI-II) placed him the severe range and his scores on the DASS 21 (a screening tool to assess symptoms of depression, anxiety and stress placed him in the sever range of depression, anxiety and stress symptoms.
She then referred to her notes made in her letter of 11 January 2016 in terms of how Steven’s functioning was affected.
The above was prepared with reference to the table and descriptors listed in the social security tables for the assessment of work related impairment for Disability Support Pension determination 2011.
These are the letters from Jennifer Leahy. Reference was made to the Applicant seeing another psychiatrist. On 17 June 2016, Dr Shannon Paisley sent a letter to Dr Williams and stated:
Thank you for referring Steven for an assessment and management .As you know he is a socially isolated single unemployed man who lives alone.
He went on in the second paragraph to say what he had been doing and how his father had died in 2001 and his mother in 2015. His depression had deteriorated markedly since his mother’s death:
He feels angry, hopeless, flat, broken and exhausted. He has insomnia and anhedonia and some suicidal thoughts without any specific intent or plans. There are no psychotic symptoms. He has allowed his house to become squalid due to a lack of motivation to clean and maintain it. He feels lost, purposeless and without a role.
Steven has no prior psychiatric history except for trialling a few antidepressants over recent years. Medically he has orthopaedic issues, sinusitis, hypertension and possible Restless Legs Syndrome.
He goes onto say that:
He currently takes escitalopram 20 milligrams and anti-hypertensive medication, fish oil and vitamin C. There is no significant drug and alcohol issues. The salient features of his personal history include the absence of trauma, his parents being refugees from the Russian revolution in Venezuela when he was 5, and academic and social success in high school.
He talks about his limited career in finance, how he stopped work and became a fulltime carer.
He was only attached to his parents and was therefore never able to sustain a romantic relationship.
In summary, Steven is suffering from an episode of Major Depression in the context of grief and on the background of probable dependent personality traits. I have suggested he try switching the escitalopram to venlafaxine and using lower dose quetiapine for sleep. He should continue to see his psychologist and I would like to review him again to assess his progress. I would support his application for DSP as his capacity to work is poor and is likely to persist.
I must say that seemed to me the opinion too of Dr Williams, his GP. Those appear to be the relevant supporting matters that were put before the Tribunal. From that it can be seen that in her letter of February 2017, Dr Leahy clarifies her letter of 11 January 2016 and squarely puts her diagnosis well and truly as being effective within the claim period. Indeed, it is a diagnosis that she feels would be effective from April 2015 and it is interesting too, in the various documentation in the Tribunal Documents that Dr Williams does indicate the onset of the depression as April 2015.
She of course cannot diagnose because whilst she has experience as a doctor dealing with mental health people, she is not a clinical psychologist nor is she a specialist psychiatrist. However, Dr Leahy is a Clinical Psychologist. Accordingly, I think on the evidence before me and this did cause me some concern until I went through it carefully, I would have to say that as at the relevant time, the claim period between 29 July 2015 and 28 October 2015 that proper diagnosis indeed had been made by an appropriate medical practitioner.
After looking at all the medical evidence which largely corroborates with what the Applicant has said, it does seem that from the time his mother died, the Applicant received treatment for his depression. While this treatment appeared over a two year period to have been of some assistance in that his General Practitioner indicated that he had made a 30 to 40 per cent improvement, Doctor Williams also advised that this was not a significant improvement in her opinion.
As indicated earlier, Dr Williams gave sworn evidence and was cross examined, Dr Leahy provided detailed reports and neither party took the tribunal’s invitation up to subpoena her so they could ask her further questions and Dr Paisley also provided a report. The written evidence of all three doctors and the oral sworn evidence of Dr Williams is in my view mutually corroborative and indeed complimentary of the evidence given by each of those three health professionals and I find it persuasive and I have no hesitation in accepting it.
It is also clear to the Tribunal that in terms of its own assessment of the Applicant, on one occasion during hearing on 22 June 2018, the Applicant appeared to breakdown and become quite teary. He certainly appeared to be quite obsessed with this matter and it seemed to have consumed him.
I understand a lot of people have significant issues with dealing with Centrelink but he certainly seemed to have quite a number. He was adamant that the joint capacity assessment reports were often wrong.[2] He told the tribunal in his sworn oral evidence before it that he had made complaints along the way. He experienced significant problems with Centrelink and it seemed to the Tribunal that he may well have had some good grounds for a lot of that and that these experiences did not help his depression.
[2] Tribunal documents pp. 153. 154.
As the job capacity assessors were not called to give evidence the tribunal notes the discrepancies between the respective accounts and notes that the Applicant gave evidence on oath and did not resile from what he said.
Obviously the Tribunal as constituted by myself, has absolutely no formal qualifications in the mental health field (apart from observing quite a number of mental health cases and dealing with people with mental health issues for psychiatric treatment orders at ACAT) but it was clear to me from the applicant’s demeanour, that he certainly appeared to be quite obsessed, anxious and had some significant problems that persons far more qualified than I have commented on in various documentation and in the case of Dr Williams, sworn evidence before the Tribunal.
The Applicant did seem to be doing his best to relate events and describe his condition as accurately as he could and he appeared to me to be an honest witness. His evidence of his condition as he saw it was backed up to a significant degree by Drs Williams, Leahy and Paisley.
The Tribunal would have liked to have had the benefit of talking to Dr Leahy, but as noted she was not subpoenaed. I also note that she herself might well feel frustrated because she certainly provided a number of reports and at the end of the day, those reports are comprehensive enough for me to say that this Applicant, as at the claim period, certainly satisfied the criteria for mental health issues – depression. He had been effectively diagnosed (with effect from April 2015 ) during the claim period and attracted 20 points under the Table 5 ( see Dr Leahy’s letter 11 January 2016 para 39 ) and furthermore the condition was more likely than not on the available evidence to persist for more than two years and indeed has done so.
He had prior to, at the time of the claim period and thereafter, taken reasonable treatment and that treatment has not resulted in a significant functional improvement enabling him to undertake work in the next two years after the claim period. I think the issues that he suffers are quite significant and apart from the fact that he himself appeared to have no motivation for work his ability to undertake any work in the foreseeable future is unlikely and the medical evidence backs that conclusion up.
I think that is highly unfortunate and I think this is a very intelligent man who has dedicated 15 years of his life to caring for his parents. Unfortunately his brother seems to have been of little assistance and indeed seems to be causing him further angst and problems. That is not for the Tribunal to go into but it is I think unfortunate because clearly to put together the documentation he has for the Tribunal, whilst showing an obsession, is indeed quite impressive in terms of his abilities to write and to do work of that kind.
Sadly, the Tribunal’s impression, taking into account all of the evidence and especially the medical evidence, is that it continues to appear unlikely that the Applicant is employable. I would hope with the passage of time, noting that he is in fact now in his late 50’s, that he may well get to a stage hopefully where he can get into some gainful employment.
People with mental health issues, indeed people on psychiatric treatment orders, have been known to have held down responsible middle ranking jobs in such important and sensitive areas of government such as the Department of Defence. So, it is not impossible if people have the right treatment. But at this stage I think that is certainly problematic in the applicant’s case.
It may well be, that further assessments could be completed. I would actually encourage Mr Sziva to continue getting help for his mental health issues and try if at all possible to see if he can get back into the workforce or at least do some work that removes him from the depression that he is suffering. Hopefully, this might help him overcome some of it. It may be sensible further down the track for further assessment, perhaps to be made through the Respondent Department as well.
However, as far as this matter is concerned, for the reasons I have given, I believe at the relevant time (namely the claim period) the mental health issues that the Applicant suffered, namely the depression, especially following his mother’s death, which continue to this day, were fully diagnosed, fully treated and fully stabilised for the purposes of the Act. Accordingly, as I have no or very little discretion in this matter and am restricted to the period between 29 July 2015 and 28 October 2015. I indicate that he is entitled to the Disability Support Pension which will commence at the end of that period, namely 28 October 2015.
The decision of the AAT1 will be set aside and the applicant is to be granted a Disability Support Pension with effect from 28 October 2015.
DECISION
The Tribunal sets aside the decision under review dated 13 October 2016, and in substitution decides that the Applicant is to be granted Disability Support Pension with effect from 28 October 2015.

I certify that the preceding 69 (sixty nine ) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...........................[sgd].............................................
Associate
Dated: 24 August 2018

Date of hearing: 11 July 2018

Applicant: Phone

Solicitors for the Respondent: Dr S Thompson

[2018] AATA 3040

11 July 2018

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Date of hearing:	11 July 2018
Applicant:	Phone
Solicitors for the Respondent:	Dr S Thompson