Thomas Phillips and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 618

[2013] AATA 618 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1746
Re	Thomas Phillips
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	30 August 2013
Place	Adelaide

The decision under review is affirmed.

.........  [Sgd]  .........

Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Qualification – Whether applicant’s medical conditions are fully diagnosed, investigated, treated and stabilised – Applicant’s conditions were not fully diagnosed and treated during the relevant period – Conditions therefore do not attract any impairment points – Applicant not qualified for disability support pension – Decision under review affirmed.

LEGISLATION

Social Security (Administration) Act 1999, Schedule 2

Social Security Act 1991, s 94

REASONS FOR DECISION

Deputy President K Bean

30 August 2013 

INTRODUCTION

1. The applicant, Mr Phillips, is an accomplished artist whose work has been exhibited not only in South Australia but interstate and in New Zealand.  He is also reported to be a talented art teacher.  His achievements in this regard are all the more notable because from a young age he has suffered from a severe learning disability, which has made it difficult for him to successfully pursue education and training opportunities, and also severely limited the types of paid employment he is able to undertake.  In recent years he has also suffered psychiatric symptoms, at least partly related to frustration associated with his learning disability.

2. Having regard to his learning disability and psychiatric symptoms, in December 2011, Mr Phillips lodged an application for disability pension (DSP).  However, Centrelink determined that he was not eligible for DSP and the decision of the Authorised Review Officer denying his claim for DSP was affirmed by the Social Security Appeals Tribunal (SSAT) on 13 April 2012.[1]

   [1] T2/3.

3. As he contends that he is qualified for DSP, on 30 April 2012, Mr Phillips lodged an application with this Tribunal seeking review of the decision of the SSAT.

   LEGISLATION AND ISSUES

4. In broad terms the issue before me therefore is whether Mr Phillips was qualified for DSP as at the date of his claim on 2 December 2011,[2] or within 13 weeks of that date.[3]

   [2] T8/70.

   [3] Social Security (Administration) Act 1995, Schedule 2 at 4.

5. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the SS Act), which at the relevant time provided in part as follows:

   94 Qualification for disability support pension

   (1)   A person is qualified for disability support pension if:

   (a)   the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i)the person has a continuing inability to work;

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

   (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)either:

   (i)the person is an Australian resident; or

   (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.

   Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2:for Impairment Tables see section 23(1) and Schedule 1B.

   Continuing inability to work

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

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

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

   (b)in all cases—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.

   Note: For work see subsection (5).

6. The respondent does not dispute that Mr Phillips suffers at least one impairment within the meaning of s 94(1)(a), or that he satisfies the requirements of s 94(1)(d), (e) and (ea). However, the respondent contends that Mr Phillips does not suffer from an impairment or impairments which attract a rating of 20 points or more under the Impairment Tables as required by s 94(1)(b). The respondent also contends that Mr Phillips does not have a “continuing inability to work” within the meaning of s 94(1)(c), and does not otherwise satisfy that provision.

7. Therefore, the particular issues which arise for my consideration are:

   (a)at the relevant time, did Mr Phillips suffer from an impairment or impairments which attract a total rating of 20 points or more under the Impairment Tables; and

   (b)if so, did Mr Phillips have a “continuing inability to work” within the meaning of s 94?

8. I propose to first address the question of whether Mr Phillips suffered an impairment attracting 20 or more points under the Impairment Tables.

   AT THE RELEVANT TIME, DID MR PHILIPS HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?

9. In his claim for DSP, Mr Phillips stated that his current conditions were anxiety, depression and dysgraphia.[4]

   [4] T8/63.

10. In the medical reports submitted in support of the claim, Mr Phillips’ General Practitioner, Dr Waters, indicated that the condition with most impact upon him was “severe clinical depression/anxiety-chronic also dysgraphia”.[5]  In a subsequent report dated 13 January 2012, Dr Waters stated that Mr Phillips was suffering from “dysgraphia, depression”.[6]  Dr Waters further confirmed in a report dated 19 March 2012 that Mr Phillips was suffering from “depression and anxiety associated with literacy and dysgraphia”.[7]

    [5] T7/48.

    [6] T7/56.

    [7] T11/91.

11. Aside from material suggesting that the condition previously diagnosed as dysgraphia is more appropriately diagnosed as dyslexia, there is no material before me which suggests that Mr Phillips is suffering from any other conditions which are relevant in this context.  The next question which arises therefore is whether any of the conditions I have referred to can potentially attract an impairment rating under the Impairment Tables and, if so, what rating should be assigned for any rateable impairment.

12. I propose to first discuss Mr Phillips’ dysgraphia/dyslexia condition before proceeding to discuss his psychiatric condition(s).

    Does Mr Phillips’ dysgraphia/dyslexia condition attract an impairment rating and, if so, what rating should be assigned?

    Can an impairment rating be given?

13. The introduction to the Impairment Tables outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition.  These include:

    (a)A condition must be a fully documented, diagnosed one which has been “investigated, treated and stabilised”;

    (b)“The condition must be considered to be permanent”;

    (c)“Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years”; and

    (d)“A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years”.[8]

    [8] The Introduction to the Impairment Tables at Schedule 1B of the Act, at [4] – [5].  These Impairment Tables were subsequently repealed and replaced with respect to claims made from 1 January 2012:  Social Security and Other Legislation Amendment Act 2011.

14. Accordingly, before considering what rating can be given for Mr Phillips’ dysgraphia/ dyslexia, I must first consider whether the condition is capable of attracting an impairment rating having regard to the requirements set out in the Impairment Tables.

15. As I have indicated above, at the time Mr Phillips lodged his claim for DSP, both he and Dr Waters believed that he was suffering from a condition known as “dysgraphia”, a relatively rare condition which is apparently a type of visual processing disorder.  It appears that Mr Phillips and Dr Waters formed that belief due to the results of assessments by Ms Julie Grayston, who in her written reports described herself as a “psychologist”.

16. In a report dated 3 November 2011,[9] Ms Grayston reported that she had completed an assessment on Mr Phillips which showed that he had dysgraphia.  She confirmed that opinion in a subsequent report of 8 March 2012[10] wherein she reported in more detail on her testing of Mr Phillips which she said confirmed her diagnosis of dysgraphia.

    [9] T11/85.

    [10] T11/87.

17. In the context of these proceedings however, it came to light that Ms Grayston was not registered as a psychologist and was not entitled to refer to herself as a “psychologist”.  It also became apparent that the Australian Health Practitioner Regulation Agency was conducting an ongoing investigation in respect of Ms Grayston.[11]

    [11] See Exhibit 16.

18. Accordingly, not long before the hearing, Mr Phillips’ representative, Ms Riley, sought and obtained a further detailed report from a consulting psychologist, Dr Garry Childs, dated 28 May 2013.[12] 

    [12] Exhibit 10.

19. In that report, Dr Childs was critical of both the diagnosis arrived at by Ms Grayston and the basis upon which that diagnosis had been arrived at.  He stated in relation to Ms Grayston’s reports:

    There is no psychometric detail and no clinical rationale for the diagnosis of Dysgraphia, which is a recognised condition in DSMIVR, but has a very low incidence rate.[13]

    Having conducted his own testing on Mr Phillips, Dr Childs reported that:

    The current assessment clearly identified a primary diagnosis of Phonological Dyslexia.  There were no indications of Dysgraphia as a separate condition.[14]

    He went on to outline in detail the reasons for his conclusions.

    [13] Exhibit 10, page 3.

    [14] Exhibit 10, page 4.

20. Dr Childs also gave oral evidence at the hearing, in the course of which he confirmed that he was a specialist in learning disabilities.  He confirmed that Mr Phillips’ dyslexia was quite severe and caused him significant problems in his day-to-day life.

21. In summary therefore, insofar as Mr Phillips’ claim for DSP relied on a learning disability, the condition relied upon was dysgraphia.  However, upon receipt of Dr Childs’ report in May 2013, it became apparent that that diagnosis was not correct, and at the hearing Ms Riley conceded on behalf of Mr Phillips that it now appeared the proper diagnosis of his learning disability was phonological dyslexia.

22. The difficulty this creates for Mr Phillips’ case is that, as I have outlined above, in order for a condition to attract an impairment rating, it must have been fully diagnosed, treated and stabilised either at the date of lodgement of the claim for DSP or within 13 weeks of that date.  Unfortunately for Mr Phillips, it is clear from my description of the relevant evidence above that his learning disability had not been fully diagnosed as at the date of his claim or within 13 weeks of that date.  That is because Ms Grayston’s initial diagnosis of dysgraphia has been discredited by Dr Childs’ opinion that the proper diagnosis of Mr Phillips’ condition is dyslexia rather than dysgraphia.  I should add that I have no hesitation in preferring Dr Childs’ evidence to that of Ms Grayston, in light of his superior expertise and the fact that Ms Grayston is not and was not at the relevant time a registered psychologist.[15]

    [15] Exhibit 16.

23. As Mr Phillips’ condition of dyslexia had not been fully diagnosed as at the date of his claim for DSP or within 13 weeks of that date, it accordingly follows that no impairment rating can be given for that condition.

    Do Mr Phillips’ conditions of anxiety and/or depression attract an impairment rating and, if so, what rating should be assigned?

    Can an impairment rating be given?

24. Unfortunately for Mr Phillips, there are some parallels between the history of the diagnosis of these conditions and the diagnosis of his dyslexia.

25. As I have recorded above, in a medical report dated 11 November 2011, Dr Waters stated that Mr Phillips was suffering from “severe clinical depression/anxiety – chronic”.  In a subsequent report of 13 January 2012, Dr Waters also stated that Mr Phillips was suffering from “depression”, although he made no mention of anxiety. 

26. A Job Capacity Assessment Report dated 6 February 2012 also concluded that this condition was considered to be fully diagnosed, though not yet fully treated or stabilised.[16]  It was noted that Mr Phillips’ condition of depression had been diagnosed in September 2010, although there had been no trial of antidepressant medication to date.  It appears that this Job Capacity Assessment Report was influenced by Ms Grayston’s letter of 3 November 2011, in which she referred to Mr Phillips suffering from anxiety and depression.  In her subsequent letter of 8 March 2012, Ms Grayston also stated that Mr Phillips had “major depression” as well as “anxiety”. [17]

    [16] T6/32.

    [17] T11/90.

27. However, following his assessment of Mr Phillips on 2 and 14 May 2013, Dr Childs formed the view that Mr Phillips:

    [H]as no significant mental health issues apart from his anxiety under pressure and periodic reactive depression from having to do cleaning of public places for a living when he would rather be engaged in his Art.[18]

    Dr Childs also confirmed in his oral evidence at the hearing that he did not regard Mr Phillips as suffering from significant underlying depression or anxiety. 

    [18] Exhibit 10, pp 6 – 7.

28. As I accept that Dr Childs’ opinion is well founded and should be accepted, two possibilities therefore arise.  Either Mr Phillips’ depression and anxiety were misdiagnosed by Dr Waters and Ms Grayston as being far more severe than they actually were in late 2011 and early 2012, or both conditions have improved very significantly since he lodged his claim for DSP.  The difficulty for Mr Phillips is that, in either case, in my view there is an insufficient basis for me to be satisfied that Mr Phillips’ anxiety and/or depression were fully diagnosed, treated and stabilised as at the date he lodged his claim for DSP or within 13 weeks of that date.  For the sake of clarity, I should add that even if I had been satisfied that the conditions were fully diagnosed at that time, I would not have been satisfied that they had been fully treated and stabilised in the absence of any trial of medication for the conditions during the relevant period, and having regard to the apparent difference between Mr Phillip’s presentation to Dr Waters and Ms Grayston, and his presentation to Dr Childs in May 2013.

29. Accordingly, as any depression and/or anxiety suffered by Mr Phillips had not been fully diagnosed, treated and stabilised during the relevant period, it also follows that no impairment rating can be assigned for either of those conditions.

30. As I have therefore concluded that Mr Phillips did not satisfy s 94(1)(b) during the relevant period, and did not qualify for DSP for that reason, it is unnecessary for me to proceed to consider whether, during the relevant period, Mr Phillips had a “continuing inability to work” within the meaning of s 94 of the Act.

    CONCLUSION

31. For the reasons given above, I am not satisfied on the material before me that during the relevant period, Mr Phillips suffered from any condition which attracted an impairment rating under the Impairment Tables.  Whilst there is no doubt that Mr Phillips suffers from a longstanding and severe learning disability, it nevertheless follows that he was not qualified for DSP as at the date of his claim, or within 13 weeks of that date.  In these circumstances, I am obliged to affirm the decision under review.

    DECISION

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

........[Sgd].........

Associate

Dated 30 August 2013

Dates of hearing	11 and 12 June 2013
Advocate for the Applicant	Ms M Riley
Solicitors for the Applicant	Welfare Rights Centre (SA) Inc
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Program Litigation & Review Branch, Dept of Human Services