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

Teleahiva and Secretary, Department of Social Services (Social services second review) [2018] AATA 2107 (6 July 2018)
Division:GENERAL DIVISION
File Number: 2017/3504
Re:George Teleahiva
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member

Date:6 July 2018
Place:Sydney

The decision under review is affirmed.
………….……[SGD]………………
Chris Puplick AM, Senior Member
CATCHWORDS
Social Security – Disability Support Pension – Whether the Applicant is entitled to any back-payments of Disability Support Pension – Impairment Tables – Moderate mental health functional impairment – Fully diagnosed and fully treated – Fully stabilised – Decision under review is affirmed
LEGISLATION
Social Security Act 1991
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
6 July 2018

Mr George Teleahiva has appealed to the Tribunal to review a decision made by the Social Services and Child Support Division of this Tribunal (AAT 1) to uphold a decision by the Secretary, Department of Social Services (the Department) to refuse Mr Teleahiva’s application for a Disability Support Pension (DSP).
CHRONOLGY
Mr Teleahiva’s original application for a DSP was made on 12 August 2016 and was rejected by the Department on 19 December 2016. This rejection was affirmed by a decision of an Authorised Review Officer (ARO) on 19 January 2017. Mr Teleahiva appealed this decision to AAT 1, which affirmed the decision of the ARO on 15 May 2017.
An appeal to this Tribunal was lodged on 15 June 2017 and heard on 20 June 2018.
This Tribunal, unlike the AAT 1, did not have the benefit of Mr Teleahiva himself being present or available personally before it. In this proceeding, Mr Teleahiva was represented by his sister, Ms Sandra Joseph. The Tribunal was also assisted by Ms Sharon Sangha appearing on behalf of the Department. The Tribunal is grateful to both parties for their assistance and the way in which this matter was conducted.
At the hearing, the Tribunal was advised that, while awaiting the determination of the Tribunal, Mr Teleahiva had lodged a further application for the DSP and this application had been granted in December 2017 and effective from 7 August 2017.
The effect of this grant of DSP was to place the Tribunal effectively in the position of determining whether or not Mr Teleahiva was entitled to any back-payments of DSP as from 12 August 2016 to 7 August 2017.
DSP QUALIFICATION – LEGISLATIVE REQUIRMENTS
The original application for a DSP was made on 12 August 2016 and that triggers an assessment process to determine the eligibility of the Applicant for the DSP, which must take place as of the date of the claim or within 13 weeks thereafter. That is, any time between 12 August 2016 and 4 November 2016. This is the so-called “qualifying period”.
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the Applicant’s health, changes in their status or acquisition of additional medical or psychological conditions. Although the subsequent grant of a DSP has been made, this does not necessarily lead the Tribunal to any findings in relation to the qualifying period upon which it must concentrate its considerations.
In order to qualify for the DSP, an Applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act 1991 (the Act), which provides that:
(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; and
(d) the person has turned 16; and
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
In the event that the Tribunal finds that the Applicant satisfies these requirements and, in particular, the Applicant is accepted as having an impairment related to some condition, the Tribunal must go on to assess the degree of that impairment using the points system set out in the Impairment Tables made under subsection 26(1) of the Act.
However, before proceeding to make any such assessment of any relevant condition, that condition must be assessed to determine if it is fully diagnosed, fully stabilised and fully treated, which are defined in the Impairment Tables[1] as follows:
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 pt 2 s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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.
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.
Again, each of these conditions must be met before any points on the Impairment Tables can be awarded.
A continuing inability to work is defined in subsection 94(2) of the Act. In effect it means that the impairment prevents the person from:
...
(a) … 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.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
IMPAIRMENTS
In the material before the AAT 1 and this Tribunal, Mr Teleahiva makes claims in relation to three matters, namely mental health issues, diabetes and gout.
Diabetes and Gout
Although both conditions were before the Tribunal in the written submissions, they were essentially in the form of advising the Tribunal as to the overall state of health of Mr Teleahiva and no claim was made that they constituted any form of impairment. The evidence before the Tribunal suggested that both conditions were well managed on medication and they caused no functional impairment to Mr Teleahiva in living his normal life/routine. As such, there is no basis to assess them against the criteria in the Impairment Tables and no impairment points are thus generated.
Mental Health Condition
The Respondent contends that there is no evidence to show that Mr Teleahiva suffered any impairing mental health condition during the qualifying period that was fully diagnosed, treated and stabilised.[2]
[2] Secretary, Department of Social Services, Statement of Facts, Issues and Contentions, paras 43-48.
For any such diagnosis to be made it must, as required by the Impairment Table 5 – Mental Health Function, be made by “an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).” Furthermore, “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment.”[3]
[3] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 pt 3.
In this respect, Mr Teleahiva relies upon a report by Dr Yee Leong Ong (a clinical psychologist) dated 5 May 2016. There are some issues surrounding this report.
The “report” appears to be in the form of a Medical Exemption Certificate issued to Centrelink by Dr Ong.[4] The Applicant’s representative outlined the difficulties that this entailed as far as being able to produce a copy of the “report”, while the Respondent relies on its absence to establish that no relevant diagnosis was made.
[4] Tribunal Evidence at A5.
There is a letter from Dr Sim Gulati (Psychiatric Registrar, Ryde Community Mental Health) dated 24 August 2017 in which he states:
“He (Mr Teleahiva) was diagnosed with Post Traumatic stress disorder with generalised anxiety and Panic Attacks and Major Depression with Psychotic features by Dr Yee Leong Ong on 05/08/16.”[5]
[5] Tribunal Evidence at A2.
As I explained to the Respondent’s representative, the Tribunal is prepared to accept this as being sufficient evidence that such a diagnosis was made by a person appropriately qualified to do so. There is no reason to call into question the competence or honesty of Dr Gulati in writing as he did, nor to assume that, as a qualified professional, he would not have satisfied himself as to the veracity of what he was reporting. The Respondent’s representative sought to make no attack upon this proposition and as a result the Tribunal accepts that Mr Teleahiva’s condition was fully diagnosed and documented during the qualifying period.
There is, however, the question of whether that condition was fully treated and stabilised. The Respondent contends that it was not.[6]
[6] Secretary, above n 2, para 46.
I note that the AAT 1 accepted that Mr Teleahiva’s condition was fully diagnosed, treated and stabilised in the qualifying period, contrary to the finding of the ARO.[7]
[7] Tribunal Documents, T2, 9 [17]-[18].
However, it is up to this Tribunal to determine that matter for itself on the basis of evidence put before it.
This evidence consists, in large part of the Applicant’s Medicare history which was before the Tribunal and provided to the Applicant’s representative prior to the hearing,[8] supplemented by a copy of the Applicant’s prescription records which were tendered at the hearing.[9]
[8] Tribunal Evidence at R2.
[9] Tribunal Evidence at R3.
What these reveal is that throughout the early part of 2016, the Applicant was seeing his treating general practitioner on a very regular (weekly) basis. This then apparently stopped on 12 August 2016 and he commenced seeing another set of clinicians regularly as from 8 December 2016.
The Respondent relied upon this as evidence that the Applicant failed to take steps to ensure that he was being appropriately treated and that his condition stabilised. In response, the Applicant’s representative asserted that the prescription records indicated that medications were being provided on a regular basis and that the prescription scripts for these were being written at the Ryde Community Mental Health Centre. The Tribunal accepts what the Applicant puts to it and places no weight on the incomplete evidence in the medical appointment records.
However, both the prescription records and the evidence of the Applicant’s representative strongly suggests that during the qualifying period, Mr Teleahiva’s medication was being changed in order to establish the most suitable medication routine for him. The Tribunal was informed that he had ceased some medications which produced undesirable side-effects and that dosage variations took place in order to maximise clinical outcomes.
While the Respondent contends that this is indicative of the condition not being fully stabilised or treated, the Applicant contends that this adjustment process took only one month and that thereafter a stabilised routine was established. The clinical evidence itself is strongly suggestive of the fact that Mr Teleahiva’s condition was not likely to improve within the prospective two years of the qualifying period and, indeed, the fact that the Department has now granted Mr Teleahiva a DSP, would tend to confirm this.
Assessing the relative weight of the counter positions is far from easy, however, on balance, the Tribunal agrees with the assessment of the AAT 1 that at the relevant time Mr Teleahiva’s condition was fully diagnosed, treated and stabilised.
Given that finding, the next step is to turn to the Impairment Tables and establish an impairment rating for Mr Teleahiva, bearing in mind that in order to qualify for the DSP (or at least to proceed to the next step in the assessment process) his rating must be at least 20 points.
Evidence presented by the Applicant’s representative, his sister, clearly indicated that Mr Teleahiva’s functioning is compromised in terms of his need for support with his living arrangements, as well as his lack of external socialisation or social activities and his problems with both concentration and decision-making. She also indicated to the Tribunal that Mr Teleahiva was reluctant to attend to some of his own personal and domestic hygiene requirements. She further stated that Mr Teleahiva had suffered, in effect, a “breakdown” at around age 35 (approximately 4 years ago) at which time he entered a “deep, dark space”, had given up usual activities, such as playing rugby, and become, in effect, housebound due to anxiety.
The Tribunal explored with the Applicant’s representative the various matters listed as “activities” in the Impairment Tables.
The Impairment Table 5 – Mental Health Function is prefaced by an “Introduction”, which provides guidance for decision-makers on how to approach the assessment process. It is as follows:
Introduction to Table 5
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Respondent’s representative argued before the Tribunal that, for the Tribunal to accept any evidence of functional impairment it needed to have before it corroborating evidence, and further suggested that this needed to come from qualified medical personnel attesting specifically to matters listed as activities in the Table itself. However it is clear from the Introduction that the Tribunal may rely equally upon “interviews with the person and those providing care or support to the person” – in this case his sister and representative before the Tribunal, Ms Joseph. The Tribunal, of course, notes that she is not an entirely dispassionate or independent party.
Nevertheless, Ms Joseph’s evidence to the Tribunal was forthright and clear. From it, the Tribunal was persuaded that Mr Teleahiva suffered “moderate functional impact” in relation to “most” of the six activities listed in the Impairment Table 5. These are:
...
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

In relation to Mr Teleahiva specifically, the Tribunal finds that, in terms of:
(a)Self-care and independent living – Mr Teleahiva is dependent upon his sister for this;
(b)Social/recreational activities and travel – there appear to be no recreational activities outside the home environment, although there are some limited travels undertaken;
(c)Interpersonal relationships – these appear very strong in relation to Mr Teleahiva’s sister and her children, although Mr Teleahiva can become short-tempered with them and with visiting social workers;
(d)Concentration and task completion – Mr Teleahiva is unable to concentrate for prolonged periods, although he is able to participate in some activities, such as shopping and attending medical appointments;
(e)Behaviour, planning and decision-making – Mr Teleahiva has some issues looking after himself physically, and his plans and arrangements are generally made by his sister;
(f)Work/training capacity – there appears to be none.
However, Mr Teleahiva is not entirely incompetent in terms of his ability to live and function with some degree of autonomy. His sister suggests that he is still quite strong-willed and has a degree of intolerance for being “bullied” or overly-organised.
This leads me to conclude that Mr Teleahiva suffers from a moderate but not severe degree of functional incapacity. As such, the Tribunal finds that his impairment rating should be set at 10 points.
The Tribunal also has before it a letter from Dr Abirami Ratnagopal (Psychiatric Registrar, Ryde Community Mental Health Centre) in which details are provided of Mr Teleahiva’s mental health condition assessed against the specific Impairment Table criteria. This letter is dated 10 July 2017 and the Tribunal understands that it was taken into account by the Department in making their 2018 decision to grant Mr Teleahiva his DSP.
The letter was not available to the ARO when they made their original decision on 19 January 2017 and so it could not have influenced that outcome. Furthermore, the letter, while it has great contemporary relevance, cannot be taken as a definitive statement of Mr Teleahiva’s condition at the time of the qualifying period, approximately one year earlier.
The Tribunal is thus satisfied that for the purposes of this application:
(i)Mr Teleahiva’s condition of mental health functional impairment was fully diagnosed, treated and stabilised as at the required time of the qualifying period; and
(ii)Mr Teleahiva is entitled to a rating of ten (10) points on Impairment Table 5.
As this rating does not meet the threshold requirement of 20 points, it is not necessary for the Tribunal to proceed to the next step of considering the Applicant’s continuing ability to work under subsection 94(1)(c) of the Act.
These conclusions lead to a finding that Mr Teleahiva, at the relevant time, did not qualify for the DSP and, as a result, the decision under review is affirmed.
This, in turn, means that there is no valid claim for any back-payments of DSP.
The Tribunal also takes this opportunity to remark how fortunate Mr Teleahiva is to have the degree of love, care and support which was evident from his sister and her family.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

………..……..[SGD]………..……..
Associate
Dated: 6 July 2018

Date of hearing: 20 June 2018

Advocate for the Applicant: Ms Sandra Joseph

Solicitor for the Respondent: Ms Sharon Sangha

[2018] AATA 2107

6 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	20 June 2018
Advocate for the Applicant:	Ms Sandra Joseph
Solicitor for the Respondent:	Ms Sharon Sangha