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

[2017] AATA 479

Thomas and Secretary, Department of Social Services (Social services second review) [2017] AATA 479 (18 April 2017)

Division:GENERAL DIVISION

File Number:           2016/3867

Re:Peter Thomas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:18 April 2017

Place:Sydney

The Tribunal sets aside the decision under review and substitutes the decision that Mr Thomas qualified for Disability Support Pension on 13 October 2015 or within the following 13 weeks.

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

Senior Member J F Toohey

CATCHWORDS

Social Security – disability support pension – remitting and relapsing multiple sclerosis – depression and anxiety – osteoarthritis of knees – emphysema – right wrist – whether impairments fully diagnosed during claim period – whether impairments fully treated and stabilised during claim period –program of support – whether applicant had continuing inability to work – decision under review set aside

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, s 45, sched 2

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123   

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252

SECONDARY MATERIALS

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

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

REASONS FOR DECISION

Senior Member J F Toohey

18 April 2017

Background

1. This decision concerns an application by Mr Peter Thomas for a disability support pension (DSP).  Centrelink decided Mr Thomas did not qualify for the payment and, on 29 June 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal affirmed that decision.

2. Mr Thomas is 55 years old. He has osteoarthritis in both knees, weakness in his right wrist, emphysema, and brain damage as a result of a stroke.  In about 2014, he suffered a head injury in an accident while overseas.  A subsequent CT scan showed white areas in his brain.  In February 2016, he was diagnosed with a relapsing form of multiple sclerosis.

3. Mr Thomas first applied for DSP in August 2010.  At that time, his general practitioner, Dr Killalea, identified the medical conditions affecting him most as osteoarthritis in both knees and weakness in the right wrist.  He noted depression and “COAD?” (chronic obstructive airways disease) as conditions that were generally well-managed and had minimal or limited impact on Mr Thomas’s ability to function.  Centrelink assessed Mr Thomas as having a total impairment rating of 10 points which was insufficient to qualify him for DSP.  

4. On 13 October 2015, Mr Thomas made a second application for DSP after an MRI in April 2014 and a CT scan in September 2015 showed features consistent with multiple sclerosis.  Investigations were carried out and a formal diagnosis of multiple sclerosis was made on 1 February 2016.  This second application is the subject of this decision.

   Qualification for DSP

5. To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, a person must have:

   (i)an impairment rating of 20 or more points according to the Impairment Tables in the Act; and

   (ii)a continuing inability to work.

   The claim period

6. Mr Thomas had to satisfy the criteria in s 94 of the Act on 13 October 2015 when he applied for DSP, or within the following 13 weeks, that is by 12 January 2016: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.

7. Mr Thomas’ qualification for DSP must be assessed solely by reference to the claim period: Gallacher v Secretary, Department of Social Services [2015] FCA 1123. Any changes in his conditions after the claim period are only relevant insofar as they may cast light on the position during the claim period: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252.

   The Impairment Tables: rules for assigning impairment ratings 

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). 

9. The Impairment Tables include instructions and rules for assessing and rating an impairment by reference to the effect of a condition on a person’s physical or mental functioning.  Depending on its effect, an impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a condition that is permanent: paragraph 6(3).  ‘Permanent’ in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: paragraph 6(4). 

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future; and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: paragraph 6(5) and (6).

12. ‘Fully stabilised’ means that it is unlikely there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).

13. In considering whether a condition was fully treated and stabilised during the claim period, the Tribunal must consider the treatment that had taken place, and was intended to take place, and its likely effect, during the claim period.  Subsequent treatment, and whether or not it was effective, is not directly relevant: Fanning and Secretary, Department of Social Services [2014] AATA 447; and see Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

14. Where a single condition causes multiple impairments, each impairment should be assessed under the relevant table: paragraph 10(3).  Where two or more conditions cause of common or combined impairment, a single rating should be assigned under a single Table: paragraph 10(5).

    Continuing inability to work

15. The meaning of continuing inability to work is set out in s 94(2) of the Act. It includes the requirement that, unless a person has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, he or she must have actively participated in a program of support: s 94(2)(aa).

16. Ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP: Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination2011 cl 5(1) and (2).

17. The Centrelink records show that, in the 36 months immediately before the claim period, Mr Thomas had completed 518 days of a program of support.  He was short of the necessary 18 months (546 days) by just four weeks.  There is no discretion in the Act to accept less than the prescribed period as constituting active participation in a programme of support.  There are some exceptions to the requirement, but none applied to Mr Thomas during the claim period.

18. This means that, unless any of Mr Thomas’s impairments rated 20 points or more under a single Impairment Table during the claim period, he could not qualify for DSP at that time.

    Did Mr Thomas have an impairment rating of 20 points or more during the claim period?

19. I will consider Mr Thomas’s conditions and resulting impairments in turn.

    Was Mr Thomas’s multiple sclerosis fully diagnosed during the claim period?

20. The Secretary accepts, and I am satisfied, that Mr Thomas’s multiple sclerosis was fully diagnosed during the claim period.  As the record of Reasons for Decision by the Centrelink Authorised Review Officer on 12 April 2016 notes, the MRI report on 29 April 2014 indicated “clinically significant results”.  Although the diagnosis was not formally confirmed until 1 February 2016, a certificate from general practitioner, Dr Oleksandr Petsentiy, dated 25 November 2015 showed that Mr Thomas was under investigation by a neurologist for a diagnosis of multiple sclerosis. 

21. In the context of the changes seen in Mr Thomas’s brain in the MRI and CT scan in April 2014 and October 2015 respectively, it is clear that the provisional diagnosis made during the claim period was only awaiting formal confirmation.  The Secretary does not take issue with this, and I am satisfied, in the circumstances, that this condition could be considered fully diagnosed during the claim period.    

    Was Mr Thomas’s multiple sclerosis fully treated and stabilised during the claim period?

22. In a statement dated 12 October 2015 written for him by a friend, Mr Thomas stated that he could no longer stay on his feet or be active for more than half an hour without experiencing pain, and blurred vision and giddiness which, he said, were part of his multiple sclerosis.  He said his short term memory was “shot” and “Logical assessment and a major effort if not inability to effect logical argument or assessment (sic).”  He said he had mood swings and “an inability to maintain mental processes for any length of time.  More than 10 minutes.  I can no longer concentrate assimilate information and retain the information.  Or learn.”  He said muscle spasms meant he could not have an uninterrupted night’s sleep, or sleep at all.

23. The Secretary submits that Mr Thomas’s multiple sclerosis was not fully treated and stabilised during the claim period.  The question of whether, and if so when, multiple sclerosis can be considered fully treated and stabilised is not simple.  In the first place, there are different forms of multiple sclerosis.  At the time of the formal diagnosis, on 1 February 2016, Professor Steve Vucic, neurologist, reported that Mr Thomas’s clinical features were consistent with a relapsing remitting form of multiple sclerosis which appeared to be stable.  He did not indicate for how long it might be stable or what the pattern of relapse might be.

24. Professor Vucic reported that he had suggested to Mr Thomas that he should be treated with an immunomodulating therapy.  He reported that Mr Thomas was very keen to review the literature first and said he would review Mr Thomas in six weeks, at which point they would decide which specific therapy he had chosen. 

25. It is not clear from the information before the Tribunal whether any therapy was expected to improve the symptoms of multiple sclerosis or merely prevent, or slow, its deterioration.  Nothing in the information suggests any basis for finding that Mr Thomas’s multiple sclerosis was likely to improve or that there would be any significant functional improvement.  It is reasonable to infer that any significant improvement was unlikely.  In a report dated 16 February 2016 addressed “To whom it may concern”, Professor Vucic said Mr Thomas had been diagnosed with multiple sclerosis which is “a brain disease that is progressive and he will require chronic treatment as this is a chronic disorder. He is likely to have disability in the future”.

26. An information sheet from the Westmead Multiple Sclerosis Clinic indicates that Professor Vucic saw Mr Thomas in March 2016, at which point he prescribed Aubagio and said Mr Thomas would have routine check-ups every three months.  On 21 March 2016, Professor Vucic reported to Dr Petsentiy that he had reviewed Mr Thomas that day and, since his last review, he had been “relatively stable”.

27. On 27 June 2016, Dr Petsentiy provided a medical certificate for Mr Thomas stating that he had had a relapse, or exacerbation, of his multiple sclerosis as of 1 February 2016 and was suffering from blurred or double vision, thinking problems, clumsiness or a lack of coordination, loss of balance, numbness, tingling, and “weakness in an arm or leg”.  He thought Mr Thomas’s symptoms were likely to persist and certified him unfit for work or study for three months.  I do not think, in the circumstances, that it can fairly be inferred that Mr Thomas was likely to be fit for work or study at the end of that period. 

28. On 28 October 2016, Dr Shea Morrison, staff specialist, director of rehabilitation medicine at St Vincent’s Hospital, provided a report to the Tribunal.  She said she had only been involved in Mr Thomas’s case since August 2016, and could not comment on his condition during the claim period, but it was clear to her that he was “unsuitable for any open market employment”. In particular, his “significant cognitive impairment” was the main reason for his incapacity to work 15 hours per week or any length of time at all.

29. Dr Morrison reported that, in her view, Mr Thomas’s cognitive impairment rated 20 points on Impairment Table 7 (Brain Function).  She said it was clear from her interactions with Mr Thomas that he had severe difficulties with his memory, attention and concentration, problem solving, planning and decision-making.  Further, his “behavioural regulation” was “one of his biggest issues” and he had been regularly unable to control his behaviour in routine day-to-day situations and been “very verbally abusive and threatening”.

30. On 14 December 2016, Dr Christopher Minogue, an occupational physician with the Centrelink Health Professional Advisory Unit, reviewed the documents on Mr Thomas’s Centrelink file concerning his claim for DSP.  Referring to the medication Aubagio, Dr Minogue said it was intended to reduce the relapse rate of multiple sclerosis, and disability progression may also be reduced, but it was not expected to benefit existing neurological disease. 

31. Dr Minogue reported that cognitive impairment occurs in 40-65% of multiple sclerosis patients.  In relapsing remitting multiple sclerosis, “timely and adequate disease modifying drug treatment may stabilise or possibly improve cognition”.  He noted, however, that cognitive rehabilitation in multiple sclerosis patients is still in its infancy, and results were “mixed”.  He referred to a journal article indicating that cognitive behavioural therapy, exercise and education programs were “promising psychological interventions to improve coping and lesson cognitive symptoms”; he did not put it higher than that.    

32. Dr Minogue spoke with Dr Petsentiy who said there was “not really” any beneficial effect noted from Aubagio; he considered there was “obvious cognitive impairment and that a degree of dementia may be developing”.  Dr Reza Pishyar, Mr Thomas’ treating clinical psychologist, told Dr Minogue she found it difficult to separate the personality disorder of an antisocial type from cognitive impairment; she thought Mr Thomas might benefit from psychotropic medications such olanzopine, with or without antidepressant medication.  As I understand it, any psychotropic medication would be directed to Mr Thomas’s psychological condition and not to his multiple sclerosis.

33. I am satisfied that the weight of the information supports the conclusion that Mr Thomas’s multiple sclerosis should be considered fully treated and stabilised during the claim period.  Nothing in the information that postdates that period suggests any treatment was likely to achieve any real improvement in his condition or its effect on his ability to function was likely.  At best, it seems that any treatment was aimed at containing and managing his symptoms.

    What impairment rating should be assigned to the impact of Mr Thomas’s multiple sclerosis?

34. The principal effect of Mr Thomas’s multiple sclerosis on his ability to function at appear to be on his gait and stability, and on his brain function.

    Lower limb function

35. Lower limb function is assessed according to Table 3.  Mr Thomas gave evidence that, since being diagnosed with multiple sclerosis, he has fallen and hit his head several times.  He is able to walk around, but with pain. He uses crutches sometimes, for example on longer trips on public transport, but not if taking shorter walks such as to the shops; he is trying to function normally as best as he can.

36. The Secretary submits, and I agree, that at most Mr Thomas’s lower limb impairment rates 10 points on Table 3.  To rate 20 points (severe functional impact) a person must be unable to do any of the following: walk around a shopping centre supermarket without assistance; walk from the car park into a shopping centre or supermarket without assistance; stand-up from a sitting position without assistance; and must require assistance to use public transport.  Mr Thomas’s lower limb impairment is not severe when considered in these terms.

    Brain function

37. Brain function is assessed according to Table 7.  For an impairment to rate 20 points, a person must “need frequent (at least once a day) assistance and supervision” and have severe difficulties with at least one of the following: memory; attention and concentration; problem-solving; planning; and decision-making; comprehension; visuo-spatial function; behavioural regulation; self-awareness.

38. Around the time his multiple sclerosis was diagnosed, Mr Thomas was living in a shed at the back of his mother’s house and she would cook for him, wash his clothes and help him out.  She has since moved to another city and Mr Thomas has moved to a boarding house close to where his daughter lives.  He is plainly determined to maintain his independence for as long as possible.  I am satisfied that during the claim period, and since, he requires frequent assistance and supervision in daily activities.  That there is no one to provide that, or that he does not wish to accept it, does not change that his functioning is diminished and he does need that level of assistance and supervision.

39. “Behavioural regulation” is described in Table 7 as the inability “to control behaviour, even in routine, day-to-day situations” and may be accompanied by verbal abuse to others and threatened physical aggression.  Dr Morrison identified this as the most severe of what she described as Mr Thomas’s severe cognitive impairments.  She had only been seeing him since August 2016 and said she could not comment on the claim period. 

40. In a Job Capacity Assessment report completed on 3 September 2010 in connection with Mr Thomas’s first application for DSP, the assessor identified a number of “barriers to be addressed” in relation to his employment.  The first barrier was anger.  The assessor noted:

    Mr Thomas presented at the JCA interview as extremely angry. He demonstrated difficulty controlling his anger when discussing his personal circumstances and disclosed information reflecting long-term anger management difficulties. This is likely to affect his job seeking activities and the type of work he will be able to maintain.

41. On 18 December 2013, an Employment Services Assessment was conducted. The reasons for the assessment are described in the report as “JSCI Personal Factors”.  I understand that to mean Job Seeker Classification Instrument, but that sheds little light on what prompted the assessment.  The assessor identified “counselling intervention to assist Mr Thomas to manage issues including anger issues” was likely to increase his ability to return to work. She noted that he was “quite angry at times throughout the interview”.

42. The Job Capacity Assessment completed on 16 March 2016 in connection with Mr Thomas’s present claim does not refer to behavioural issues.  A note by an Authorised Review Officer on 11 April 2016 refers to Mr Thomas becoming angry and “obviously unhappy” during their telephone discussion.

43. Throughout the course of these proceedings, and during the Tribunal hearing, Mr Thomas displayed similar behaviour.  He sent a number of abusive emails to the Tribunal and made threats against Centrelink staff.  He sent large volumes of material to the Tribunal, much of which was repetitive.  I am satisfied that much, if not all, of his behaviour can be attributed to his impaired brain function. 

1. Taking into account all of this information, I am satisfied that rating of severe is a fair assessment of the impact of Mr Thomas’s multiple sclerosis on his ability to function during the claim period.  I am satisfied, on balance, that its effect on his cognitive function pre-dated the claim period and did not change to any substantial degree between the claim period and when he started seeing Dr Pishyar and, three months later, Dr Morrison.

   Depression and anxiety

2. On 19 September 2016, Dr Pishyar provided a report to Centrelink. She stated that Mr Thomas had been under her “psychological intervention” since 9 May 2016 and was receiving ongoing cognitive behaviour therapy with supportive counselling to manage his long-standing history of depression and anxiety disorder. She thought he was not fit to look for, or obtain work and that attending the workforce would aggravate his mental health conditions and affect his mental stability.

3. Dr Minogue thought that Mr Thomas’s mental health condition seemed likely, at least in part, to be secondary to the multiple sclerosis brain lesions, although “other relevant factors could include an underlying personality disorder, alcohol and possible benzodiazepine misuse”.

4. The introduction to Table 5 (Mental Health Function) provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist, with evidence from a clinical psychologist, if the diagnosis has not been made by psychiatrist. 

5. It appears, from Dr Killalea’s report in support of Mr Thomas’s first claim for DSP in 2010, that Mr Thomas was suffering from depression although, at that time, it appeared to be well managed or have limited impact on his ability to function.  However, it was only when he started seeing Dr Pishyar in May 2016 that a diagnosis was made by a clinical psychologist.

6. As the diagnosis was not made until after the claim period, it cannot be considered fully diagnosed at that time.  It follows that it cannot be assigned an impairment rating for that period.  The situation may well be different now, especially if there is evidence that cognitive behaviour therapy and supportive counselling have had limited effect.

   Osteoarthritis of knees

7. It is not in dispute that Mr Thomas has osteoarthritis in both knees. The Secretary contends that it was not fully diagnosed during the claim period, but that, even if it was, it was not fully treated and stabilised during that period.

8. I accept that submission.  Dr Minogue’s report confirmed that, on 14 December 2016, he discussed this condition was Dr Petsentiy who confirmed that he intended referring Mr Thomas to an orthopaedic surgeon and he expected he would be placed on a public hospital waiting list for knee replacement surgery, which he thought likely to occur within the next two years.

9. As Mr Thomas was yet to have reasonable treatment for his osteoarthritis during the claim period, his condition was not fully treated and stabilised at that time and it cannot be taken into account in assigning an impairment rating for his lower limb function.

   Right wrist

10. Mr Thomas gave evidence that, when he was 15, he suffered an injury to his right wrist and had an operation. Since then, his bones “click out” if he lifts anything heavy.  He said he has reduced functioning and feeling in the wrist but he can do most things and he manages to “get around it.”

11. Upper limb function is assessed according to Table 2.  Mr Thomas’s evidence shows that his impairment is mild and rates, at most, five points on Table 2.

    Emphysema

12. Mr Thomas has been smoking for 40 years.  He has had lung function tests that he says he has passed and failed at different times.  He has not formally been diagnosed with emphysema but he says the probability that he has the condition is very high.

13. Mr Thomas may well be right but his condition has not been diagnosed and nor has it been treated and stabilised, to the extent that might be possible. It follows that it can be given an impairment rating.

    Acute pancreatitis

14. A medical certificate from Dr Pitsentiy on 14 January 2016 refers to a temporary condition of acute pancreatitis, the prognosis for which was uncertain.  Is this condition was identified as temporary during the claim period, it cannot be assigned an impairment rating.

    Did Mr Thomas have a continuing inability to work during the claim period?

15. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary (and so the Tribunal) is satisfied that:

    (aa)in a case with the person’s impairment is not a severe impairment within the meaning of subsection (3B) - the person is actively participated in a          programme of support within the meaning of subsection (3C); and

    (b)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a programme of support within the next 2 years; and

    (c)in all cases – either:

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

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

16. “Work” means work of at least 15 hours a week at award wages or above, which exists anywhere in Australia: s 94(5).

17. For the reasons set out above, I am satisfied that, during the claim period, Mr Thomas had an impairment rating of 20 points under Table 7.  It follows that he is not required to have actively participated in the program of support in order to have a continuing inability to work.

18. Turning to whether Mr Thomas satisfied s 94(2)(a) and (b) during the claim period, the Job Capacity Assessor found he had a temporary work capacity of 0-7 hours until late June 2016 to allow him time to commence treatment for his multiple sclerosis; that he had a “baseline work capacity” of 8-4 hours per week and a capacity for work within two years with intervention of 15-22 hours per week in light less skilled employment.

19. I am not persuaded that the assessment of Mr Thomas’s capacity was realistic.  During the claim period he had a chronic, progressive medical condition.  As early as 18 December 2013, the employment services assessment report concluded he was “best placed working at 8-14 hours per week due to ongoing physical issues” and he had a capacity to work 15-22 hours per week, provided work duties were physically suitable.

20. On 14 January 2016, Dr Petsentiy certified Mr Thomas unfit until 1 April 2016, on account of his acute pancreatitis, bilateral knee osteoarthritis, and multiple sclerosis which at that point was under investigation.  On 27 June 2016, he certified Mr Thomas unfit for a further three months as a result of his multiple sclerosis.  

21. On 1 August 2016, Dr Petsentiy reported to the Department of Human Services that, due to his medical history, Mr Thomas was unable to hold a full-time position at this present point in time. He referred in particular to Mr Thomas’s diagnosis of multiple sclerosis and its many side-effects.

22. Dr Morrison was firm in her view in October 2016 that “the significant cognitive impairments” caused by Mr Thomas’s multiple sclerosis were the main reason he lacked the capacity to work for 15 hours per week, or for any length of time at all.  She said Mr Thomas was “unsuitable for any open market employment” and she would “not be comfortable in medically clearing [him] for any work environment”. Although Dr Morrison could not comment directly on the claim period, nothing in her report suggests that his condition had deteriorated markedly since that period.

23. On balance, I am satisfied on the information before me that Mr Thomas had a continuing inability to work within the meaning of the Act during the claim period.

    Conclusion

24. For these reasons, I am satisfied that the decision under review should be set aside and the decision substituted that Mr Thomas qualified for DSP during the claim period.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated: 18 April 2017

Dates of hearing:	20 January 2017
Date final submissions received:	10 February 2017
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services