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

[2017] AATA 700

Thompson and Secretary, Department of Social Services (Social services second review) [2017] AATA 700 (19 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2242

Re:Malcolm Thompson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr Conrad Ermert, Member

Date:19 May 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

SOCIAL SECURITY - disability support pension - whether applicant qualified for disability support pension during relevant period - whether applicant has conditions causing impairment - whether conditions fully diagnosed, treated and stabilised - whether conditions attract an impairment rating of 20 points or more - assessment of intellectual impairment - where conditions do not attract required impairment rating - decision affirmed

Legislation

Social Security Act 1991 (Cth) s 94(1)
Social Security (Administration) Act 1999 (the Administration Act)

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

REASONS FOR DECISION

Mr Conrad Ermert, Member

19 May 2017

1. On 5 May 2015 Mr Malcolm Thompson, the Applicant, submitted a claim for Disability Support Pension (DSP) listing as his disabilities:

   ·Emphysema,

   ·Inguinal hernia,

   ·Type 2 Diabetes, and

   ·Cholesterol.

2. On 7 July 2015 an officer of Centrelink decided that Mr Thompson was not qualified for the payment of DSP because his disabilities did not attract an impairment rating of 20 points or more.  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.

3. Mr Thompson sought a review of the Centrelink decision.  On 10 September 2015 an Authorised Review Officer (ARO) of Centrelink decided to affirm the decision.  Mr Thompson sought a further review.  On 14 April 2016 the Social Services and Child Support Division of this Tribunal (AAT1) affirmed the ARO decision. This matter is an application for review of the AAT1 decision.

   HEARING

4. At the hearing Ms Angie Wong of Counsel, instructed by Victorian Legal Aid, represented Mr Thompson.  Mr Thompson gave evidence before the Tribunal. Ms Pamela Matthews, Forensic Psychologist, and Mrs Dorothy Thompson, Mr Thompson’s mother, appeared in person and gave evidence on behalf of Mr Thompson. 

5. Mr Joshua Lessing, a solicitor in the employ of Sparke Helmore Lawyers, represented the Respondent.  Dr Anne Steet, Registered Psychologist, gave evidence via a telephone link.

6. I had before me the documents provided under the provisions of section 32 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). 

7. For Mr Thompson I took in as evidence:

   ·Exhibit A1 – Ms Matthews report titled Addendum to my Report of the 1^st April 2016 dated 29 August 2016;

   ·Exhibit A2 – Ms Matthews report Addendum to my Report of the 1^st of April 2016 dated 13 December 2017; and

   ·Exhibit A3 – Vineland-II Survey Interview Form (the Vineland test) completed by Ms Matthews on 25 February 2016.

8. I took in for consideration the Applicant’s Statement of Facts, Issues and Contentions dated 9 January 2017.

9. For the Respondent I took in as evidence:

   ·Exhibit R1 – Dr Steet report dated 22 February 2017;

   ·Exhibit R2 – ABAS II Adult Form (the ABAS test) completed by Dr Steet dated 19 August 2016;

   ·Exhibit R3 – bundle of notes of Ms Matthews recorded as she took a history from Mr Peter Thompson, brother of Mr Malcolm Thompson; and

   ·Exhibit R4 – History Questionnaire in regard to Mr Thompson extracted from the T-Documents for ease of reference.

   LEGISLATION

10. The relevant legislation is contained in:

    ·Social Security Act 1991 (the Act);

    ·Social Security (Administration) Act 1999 (the Administration Act);

    ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

    ·Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

    EVIDENCE

    Ms Matthews

11. Ms Matthews provided details of her qualifications which were not in dispute.  She confirmed the information provided in her reports dated 1 April 2016 (first report), 29 August 2016 (second report) and 13 December 2016 (third report). The first report provides that Malcolm had attended Ms Matthews on 25 February 2016. Ms Matthews had administered several diagnostic tests, including the Stanford Binet 5^th Edition Intelligence Test, which is an intelligence quotient (IQ) test, and the Vineland II Test of Adaptive Functions.

12. Ms Matthews said that she conducted the IQ test on Mr Malcolm Thompson (Malcolm) with Mr Peter Thompson (Peter), the brother of Malcolm, in the room, together with an assistant.

13. Ms Matthews said that the Vineland test relating to Malcolm was completed by Peter, in the form of a Vineland II Caregiver Form.  It took about one hour to complete.  She said that on the day of the assessment she also spoke separately to Peter and Malcolm and that Peter had provided a letter relating to Malcolm. 

14. When asked about her diagnosis in the first report Malcolm of Autism Spectrum Disorder (Autism) Ms Matthews said she stated that she used the methodology in the fifth edition of the Diagnostic and Statistical Manual (DSM V) in making the diagnosis.  She stated her opinions that Malcolm needs to be registered with the National Disability Insurance Scheme (NDIS), needs sheltered workshop employment, and needs greater independence. 

15. Asked further about Malcolm’s ability to work, Ms Matthews said that he needs supervision all the time, that he needs to be instructed on each task and that he does not fit in a team. 

16. In answer to questions by Mr Lessing, Ms Matthews said that:

    ·Malcolm is able to drive on his own on familiar trips but would need assistance with new trips;

    ·Malcolm needs support to get a job;

    ·Malcolm is able to do a simple job with lots of support;

    ·Malcolm’s ability to apply for jobs is very limited and he requires the support of his family;

    ·she was not aware Malcolm had a fork-lift licence; nevertheless he would need help to obtain other work-related licences;

    ·her assessment of Malcolm is that he is on the borderline of intellectual disability; and

    ·in making her assessment she considered the influence of Malcolm’s epilepsy on his ability to attend school but determined that it would not explain why his general knowledge had not increased since school.

17. When asked by Ms Wong about any possible change in Malcolm’s condition in the period of time between Malcolm’s claim and her assessment Ms Matthews said there would be little change unless he had a major depressive episode in that period.

    Mrs Thompson

18. Mrs Thompson said that Malcolm lives in a unit behind her house.  She sees him five to six times per day.  He regularly comes to her house for breakfast, coffee, afternoon tea, and for evening television.  She said he has maintained this routine since he moved into his unit, about 16 years ago. 

19. In answer to questions from Ms Wong, Mrs Thompson said of Malcolm:

    ·he cleans his unit when she asks him to do so;

    ·she shows him how to clean the shower and suggests he clear cobwebs;

    ·he showers regularly without having to be ‘presses’ but sometimes she has to tell him to put on a clean shirt and comb his hair;

    ·she and her husband set up the accounts with which Malcolm pays his bills;

    ·he attends medical appointments by himself;

    ·when going to new places a family member usually goes with him at first but he can manage on his own after that;

    ·he can send emails although she helps him by drafting more difficult letters;

    ·he does gardening jobs for her after she issues instructions;

    ·he will do shopping for her;

    ·he attends family gatherings but does not arrange them;

    ·he is able to initiate conversations although she usually instigates them;

    ·he sits in on conversations but rarely joins in;

    ·he scans newspapers and sometimes talks about the weather and items like murders, but not politics;

    ·he shows no emotional responses; not even at the time of his father’s death;

    ·he has difficulty learning how to do things unless they are repetitive;

    ·he walks on a treadmill for about 10 minutes every day;

    ·his job at the Melbourne Metropolitan Board of Works (MMBW) was instigated by her brother; it was full-time, menial, involving gardening and cleaning out;

    ·his MMBW job ceased as a result of a change of contractors;

    ·he applied for his job with Kinetic and was accepted without family involvement; the job lasted for over two years;

    ·since his job with Kinetic ceased he has applied for over one thousand jobs, but had success with only four applications;

    ·he completes the applications by himself;

    ·a friend of her other son suggested he apply for a job for which he was suited however the agent would not accept him in the position;

    ·on the occasion of Malcolm’s assessment by Dr Steet she was together with Malcolm for only 15 minutes and explained his childhood problems, after which she was asked to fill out the ABAS test questionnaire form by herself in the waiting room;

    ·she checked the box marked “Check if You Guessed” for a number of the questions as she is not with Malcolm 24 hours per day and does not know what he does all the time; and

    ·following a telephone conversation between Malcolm and Dr Steet, Mrs Thompson asked Malcolm why he kept saying Yes and he replied because he did not understand the questions and “he just wanted to get it over with”.

20. In answer to questions by Mr Lessing, Mrs Thompson replied:

    ·she did not hear the questions being asked in a telephone conversation being had by Malcolm;

    ·her daughter said the caller was Malcolm’s psychologist;

    ·Malcolm was not particularly upset at losing the jobs;

    ·Malcolm does not always need assistance with spelling and can send emails; and

    ·when he was employed Malcolm was able to do his work; he was retrenched because the jobs were relocated.

    Dr Steet

21. Dr Steet stated her professional qualifications which were not disputed.  She confirmed the contents of her reports dated 23 June 2015 and 22 February 2017 with the exception that she could not recall the exact date of her telephone call to Malcolm. 

22. Malcolm attended Dr Steet with his mother. Dr Steet described the tests she uses in making her assessments.    Dr Steet took a developmental history from Malcolm, asked about partners, children, family, education, schooling, kindergarten, travel and transport, eyesight, and hearing.  After this discussion, Dr Steet provided the Adaptive Behaviour Assessment System - Second Edition (ABAS-II) to Mrs Thompson. Dr Steet gave Mrs Thompson the form, showed her how to use it and led her to another room to complete it. Dr Steet explained to the Tribunal that when conducting an ABAS test she also looks at other available reports, takes a history of the person including social aspects.  While Mrs Thompson completed the ABAS test in a separate room, Dr Steet administered the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) test to assess Malcolm’s IQ. 

23. When Mrs Thompson had completed the form Dr Steet checked it and found a lot of the questions were checked as guesses.  Dr Steet stated that as she had not before seen so many guesses she checked the instructions accompanying the ABAS test form.  The instructions advise that more than four guesses in any section requires a check to determine whether the responder really knows the patient.  The test manual informed her that she should conduct the test directly with the person.  After discussing the situation with colleagues, Dr Steet decided to conduct the test directly with Malcolm.

24. Dr Steet explained that she then administered the test via a telephone call to Malcolm.  The test took at least one hour to complete.  Dr Steet said she used the form completed by Mrs Thompson and clarified each question.  She had no concerns resulting from the IQ test about doing the ABAS test directly with Malcolm.  She did not follow up the ABAS test with Mrs Thompson. 

25. Dr Steet was asked to comment on Mrs Thompson’s evidence that Malcolm did not understand what he was being asked over the telephone and just wanted to get the conversation over. Dr Steet explained that she could not read Malcolm’s mind, and said that she had no way of knowing whether Malcolm was answering incorrectly. 

26. Responding to questions from Mr Lessing, Dr Steet said:

    ·it is very important to take into account Malcolm’s ability to do things such as his car servicing, insurance, bank accounts, his ability to drive, understand recipes, and use a street directory;

    ·it is not uncommon to see a person with a low WAIS score and a higher adaptive behaviour score; “people adapt to survive”;

    ·Malcolm’s IQ is within the borderline range; his perceptual reasoning is quite good but his processing speed and verbal comprehension are low which leads to problems with language; and

    ·epilepsy, poor social relations, being bullied, poor speech and verbal comprehension are all factors that caused Malcolm to struggle at school, however, he does not have an intellectual disability;

27. Asked if Malcolm’s difficulties are inconsistent with his ability to work, Dr Steet said “No, but he needs support from the Employment Support Service (ESS) to set up a job”.

28. In answer to questions from Ms Wong relating to the ABAS test Dr Steet said:

    ·she spoke to Malcolm and Mrs Thompson together before the test for 15 to 20 minutes for background information;

    ·she noted guess checks on the form completed by Mrs Thompson but did not ask further questions;

    ·the instructions with the ABAS form do not state a preference for a carer to complete the form;

    ·she did not contact Malcolm’s family in regard to the completed form; she wanted to get answers directly from Malcolm;

    ·her telephone call to Malcolm had no prior warning and he had no chance to look at the form during the call; and

    ·she did not tell Malcolm of differences between his answers and those of his mother; she marked his answers onto the same form as completed by Mrs Thompson.

29. Ms Wong put the proposition to Dr Steet that autism in adults was not usually assessed by a team of professionals. Dr Steet disagreed with this, asserting that the assessments were usually done by a team. 

30. Asked about Malcolm’s verbal capabilities Dr Steet said:

    ·the results show he had problems as a child;

    ·because of his processing speed he may be confused more easily and lack some insight to some extent;

    ·general knowledge can be acquired after attending school but it is usually acquired through reading;

    ·Malcolm can read and write but his skills are poor; and

    ·he could acquire general knowledge through interactions with family but he has difficulties with social interactions and has had only one good friend.

31. Dr Steet said she did not consider Malcolm’s IQ and Adaptive Behaviour scores to be “incongruent”, adding that he had learned to adapt well.  She agreed that Malcolm had the support of his family but added that he also had support in his work environment and that he lived alone, independently.  Asked about the ABAS test results showing Malcolm’s adaptive behaviour to be in the 21 per cent, Dr Steet said the results came from Malcolm’s answers and she was not surprised, adding that people can adapt out in the world.

32. Dr Steet agreed that Malcolm needs support in a work environment and recommended that he be referred to ESS.  Dr Steet said that once Malcolm was familiar with the task he would be fine, stating that “once he understands the job he can maintain it for years”.  He needs support to become familiar with the tasks.  Dr Steet opined that there would be a number of roles appropriate for him.

33. Ms Wong asked questions related to the completed ABAS form.  Dr Steet replied:

    ·she had to go with Malcolm’s answers, however, she would clarify to make sure;

    ·she discussed the high incidence of guesses from Mrs Thompson with her colleagues, including a psychologist; and

    ·the advice contained in the Manual was to “get the right answers directly from the patient”.

34. Ms Wong asked Dr Steet if she would have discussed the guesses with Mrs Thompson, opportunity permitting.  Dr Steet said that if both Mrs Thompson and Malcolm had been in the room together she would have asked Mrs Thompson to clarify the answers.  She said that, in the last 12 months, she has adopted as a personal practice to personally ask the questions in the ABAS form.

35. Mr Lessing asked if the ABAS Guide provided that a family member should be with the client while completing the form.  Dr Steet replied “No”.

    Mr Malcolm Thompson

36. Mr Lessing sought leave to call Malcolm to give evidence.  He said he had not been aware that Ms Wong was not calling him to give evidence. I reminded both parties that, in accordance with the provisions in the Introduction to Impairment Table 9 – Intellectual Function the decision would be determined by the assessments of the medical practitioners and that I would not make any assessments related to his condition on the basis of any evidence I heard from Malcolm.  As Ms Wong raised no objection and Malcolm agreed I allowed Mr Lessing to call Malcolm to give evidence.

37. Replying to questions by Mr Lessing, Malcolm said:

    ·he worked for the MMBW for 15 to 18 years until the position became redundant;

    ·he enjoyed the work, he could do it, but another contractor took over;

    ·he worked for Kinetic for four to five years, he was able to do the work and would have continued if the job had not been relocated;

    ·he would be able to do another job if it was not too far away;

    ·he has been looking for a job since 2001 but has not been given a job because of his hernia;

    ·he had a job at Point Cook, but that this lasted only one day as there was nothing more for him to do;

    ·he used to have a fork-lift licence but it expired at the end of 2016;

    ·he can use public transport;

    ·the seizures he had while at school were disruptive and he was asked to leave school;

    ·he was employed since age 19 up to the time of his DSP claim;

    ·he can drive his car;

    ·he can fill the car with petrol putting in $10 to $20 per fortnight;

    ·he arranges the car servicing from time to time;

    ·he checks the tyres when needed, inflating them to 32 pounds per square inch;

    ·he does shopping for his mother;

    ·he cooks about three times per week;

    ·he does his own banking, dividing up his lump sums by himself;

    ·he uses a street directory from time to time;

    ·he reads newspaper headlines and has talks about topics such as the weather and sports;

    ·he has cut down on his consumption of whisky over a period of time; and

    ·he does some lawn mowing and gardening for his mother.

38. In response to questions from Ms Wong, Malcolm said:

    ·he does bank transfers by himself;

    ·he does not listen to politics, however, he named the current Prime Minister and Leader of the Opposition; and

    ·in regard to the telephone call from Dr Steet, Malcolm explained that he was with his sister, he was uncomfortable, it seemed to last for about 30 minutes, he did not really understand the questions and was not sure what Dr Steet was doing.

    TRIBUNAL CONSIDERATIONS

    Qualification Period

1. The Secretary contends that the Applicant lodged his claim on 5 May 2015 and therefore the relevant period for consideration of his qualification for DSP is 5 May 2015 to 4 August 2015, that being a period of 13 weeks.  This contention is well supported by case law and is not in dispute.  I find accordingly.

   Qualification for DSP (section 94(1) of the Act)

2. Section 94(1) of the Act details the relevant requirements for qualification for DSP as follows:

   (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:

   …

   Does Mr Thompson suffer an Impairment (sub-section 94(1)(a) of the Act)?

3. The Applicant contends that Malcolm suffers impairments arising from:

   ·an intellectual disability; and

   ·Chronic Obstructive Airway Disease (COAD).

4. The Secretary accepts that Malcolm suffers from impairments arising from the conditions of an intellectual disability, Chronic Obstructive Pulmonary Disease (COPD) and sleep apnoea. The concession is supported by the medical evidence. I find that the provisions of sub-section 94(1)(a) are satisfied.

   Do the Impairments attract 20 points or more on the Impairment Tables (sub-section 94(1)(b) of the Act)?

   Intellectual Disability

5. Section 6 of the Rules for Applying the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent.  It further provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and the condition has been fully treated and stabilised.

6. The Respondent accepts that Malcolm’s intellectual function condition is fully diagnosed, fully treated and fully stabilised.  The medical evidence is of the condition existing since early childhood.  There is no dispute that the condition is permanent and I find accordingly.  As the condition is permanent I am able to assign an impairment rating to the condition.

   Impairment Table 9 – Intellectual Function

7. The Impairment Table relevant to this condition is Table 9 – Intellectual Function.  The Introduction to Table 9 provides relevantly:

   ·An assessment of the condition must be made by an appropriately qualified psychologist;

   ·An assessment of intellectual function is to be undertaken in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment … ;

   ·An assessment of adaptive behaviour is to be undertaken in the form of either the Adaptive Behaviour Assessment System (ABAS-II), … , the Vineland Adaptive Behaviour Scales (Vineland-II) or any other standardised assessment of adaptive behaviour … ;

   ·A person with Autism Spectrum Disorder …  who also has a low IQ should be assessed under this Table.

8. The descriptors in Table 9 relating to the rating of the impairment comprise a range of scores of adaptive behaviour from the ABAS-II or Vineland-II scales or a percentile ranking on a standardised assessment of adaptive behaviour.  The scores must come from the assessments of the appropriately qualified psychologists.

9. In September 2014, Malcolm’s IQ was assessed by Ms S Hulin, a Registered Psychologist.  Ms Hulin did not perform adaptive behaviour testing as required by Table 9.  As a result her assessment does not assist the Tribunal in applying the tables.

10. Malcolm has since been assessed by Ms Matthews and Dr Steet, both of whom are appropriately qualified psychologists.  Both practitioners have undertaken assessments using methods that accord with the provisions of Table 9.

11. In this case the assessments of the two psychologists are markedly different.  It is not open to me to attempt to reconcile assessments made by appropriately qualified psychologists using the required standardised assessment methods.  Accordingly I must determine which assessment is preferable in the Malcolm’s case.

12. Ms Wong contended that the results of Dr Steet can not be relied upon as her assessment was based on information obtained from Malcolm by telephone.  Ms Wong contends Malcolm’s self-reported capabilities are unreliable due to his intellectual functioning.  He did not understand the questions and the telephone call was rushed.  Ms Wong contends further that Dr Steet’s assessment of Malcolm’s IQ is disproportionate to his adaptive behaviour assessment.  She submits that Malcolm’s evidence is at variance with that of his mother in regard to his house cleaning, car servicing and financial management.  Ms Wong submits that it is hard to believe that a rating in the top 21 per cent reflects his behaviour. 

13. Ms Wong referred also to the report of Dr Ferwerda in which he recorded Malcolm as “Slow to pick up new task’s, easily anxious, difficulty concentrating, easily confused, poor decision making skills.  Needs lot of supervision”. 

14. Ms Wong contends that Ms Matthews diagnosis of Autism is well founded.  Ms Wong submits that Ms Matthews is experienced in the field of Autism.  Ms Matthews evidence was that she made the diagnosis in terms of the DSM V.  Ms Matthews evidence was that Malcolm’s Autism explains his lower IQ score and his adaptive behaviour. 

15. Ms Wong urges me to prefer the assessment by Ms Matthews as it is more authoritative, Ms Matthews had read Malcolm’s background before the interview and she provided a more detailed report.  She contends that Ms Matthews assessment meets the requirement for 30 impairment points.

16. For the Respondent Mr Lessing contends that, in coming to her assessment, Ms Matthews relied on the information contained in the letter from Peter.  Mr Lessing submits that Peter’s account of Malcolm’s abilities do not explain Malcolm’s work history of 26 years.  During that time Malcolm did not lose a job because he was unable to do it.  Malcolm, by himself, found and was successful in being appointed to his job with Kinetic, which he held for six years.  Mr Lessing contends that Ms Matthews did not have all the relevant employment information for her assessment. 

17. In regard to the contended unreliability of Malcolm’s evidence Mr Lessing submitted that would only be relevant if the Tribunal accepted Ms Matthews findings. 

18. Mr Lessing submits that Dr Steet’s re-application of the ABAS test with Malcolm was in accordance with the provisions of the test manual. 

19. Mr Lessing submits that the evidence of Mrs Thompson regarding his activities of daily living corroborates that given by Malcolm such as: he can send emails, he will sometimes initiate and join in conversations with her, he was aware of the Prime Minister and Leader of the Opposition, he walks on a treadmill for 10 minutes per day, and he was offered a job but the agency would not accept his application.

20. Ms Matthews, informed by Peter’s letter, came to the conclusion that Malcolm’s condition has a severe impact on his intellectual function.  I consider this conclusion to be incompatible with Malcolm’s undisputed work history over a period of 26 years and his capacity for undertaking daily living tasks.  The assessment reflects more the opinions provided by Peter rather than the facts of Malcolm’s work history and his daily living capabilities.

21. On the other hand Dr Steet’s assessment is that Malcolm is capable of undertaking employment once he becomes familiar with the tasks, and that he is capable of independent travelling once when helped to become familiar with the trips.  Dr Steet stated the importance of taking into account Malcolm’s ability to do things such as his car servicing, insurance, bank accounts, his ability to drive, understand recipes, and use a street directory. 

22. I am of the opinion that Dr Steet’s assessment is grounded on the facts of Malcolm’s capabilities.  I accept the evidence of Mrs Thompson who describes Malcolm as having a capability to follow instructions and a capability for independent activities once he becomes familiar with the tasks.  These are capabilities applicable to a workplace situation and support the facts of Malcolm’s long employment history. 

23. For these reasons I prefer the assessment of Dr Steet. 

24. The first rows of Table 9 - Intellectual Function provide:

Points

  Descriptors

0

There is no impact on intellectual function

(1)    At least one of the following applies

(a)    the person is assessed as having a score of adaptive behaviour of 90 or above, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or

(b)    the person is assessed as being within the percentile rank of 24 or above on a standardised assessment of adaptive behaviour.

5

There is mild impact on intellectual function.

(1)    At least one of the following applies

(a)    the person is assessed as having a score of adaptive behaviour of between 80 to 89, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or

(b)    the person is assessed as being within the percentile rank of 9 to 23 on a standardised assessment of adaptive behaviour.

1. Dr Steet assessed Malcolm as having an IQ of 72 in the Borderline range.  This score is between the range of 70 to 85 as required by the Introduction to Table 9 for the application of the table. Dr Steet assessed Malcolm as having a score of adaptive behaviour of 112 on the ABAS-II scale.  This means that Malcolm’s impairment rating is zero for this condition and I find accordingly.

   Chronic Obstructive Airways Disease (COAD)

2. The Applicant relies on the findings of the Job Capacity Assessor (JCA) in his report dated 6 July 2015. I note that, under the heading of COAD, the JCA considers the two conditions of COPD and Sleep Apnoea.  I will consider each condition separately.

   COPD

3. The Applicant contends that the condition is fully diagnosed, fully treated and fully stabilised and that the Tribunal should adopt the rating of 10 impairment points as arrived at by the JCA.

4. The Respondent accepts that the condition was fully diagnosed, fully treated and fully stabilised at the Qualification Period.  The reports of Dr Neil Smith, a respiratory and sleep disorders physician, and Dr Ferwerda, Malcolm’s General Practitioner, support the concession and I find accordingly. 

5. The Impairment Table relevant to this condition is Table 1 – Functions Requiring Physical Exertion and Stamina.  In assessing the functional impairment from this condition I note the report of Dr Ferwerda dated 5 May 2015 in which he recorded: “low exercise tolerance … low endurance … short of breath with little exercise”. 

6. The descriptors in Table 1 for mild and moderate impairment require relevantly:

Points

 Descriptors

5

There is mild functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    experiences occasional symptoms (e.g. mild shortness of breath, fatigue …) when performing physically demanding activities and due to these symptoms has occasional difficulty:

(i)     walking … without stopping to rest; or

(ii)    performing physically active tasks … ; and

(b)    is able to perform most work-related tasks, other than tasks involving heavy manual labour …

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)    experiences frequent symptoms … and, due to these symptoms, the person:

(i)     is unable to walk … far outside the home … ; or

(ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

…

1. I am satisfied from the report of Dr Ferwerda that Malcolm satisfies the requirements for an impairment rating of five points for the COPD condition.

2. I have no evidence that Malcolm is unable to walk far outside the home or has difficulty with daily household tasks as a result of his symptoms.  Indeed the undisputed evidence is that he walks on the treadmill for 10 minutes per day and mows the lawn and does gardening tasks for his mother.  I find that the impairments from COPD do not attract an impairment rating of 10 points.  I therefore assign an impairment rating of five points to the condition of COPD.

   Sleep Apnoea

3. In considering whether the condition is permanent I take note of the report of Dr Neil Smith dated 12 November 2012 who, after reviewing Malcolm and the results of his lung function test, recommended Malcolm trial CPAP therapy.  I have no evidence that Malcolm underwent any trials of CPAP therapy.  Accordingly, I am not satisfied that the condition is fully treated.

4. As the Sleep Apnoea is not fully treated it is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.

   Total Impairment Points

5. I have found that Malcolm’s conditions attract the following impairment ratings:

   ·Intellectual disability – zero impairment points;

   ·COPD – five impairment points; and

   ·Sleep apnoea – not fully treated; unable to assign an impairment rating.

6. The total is five impairment points.  This is less than the 20 points required by sub-section 94(1)(b) of the Act and the provisions of the sub-section are not met. 

   Conclusion

7. To be qualified for DSP all of the sub-sections of section 94(1) of the Act must be met. As the requirements of sub-section 94(1)(b) are not met the requirements of section 94(1) cannot be met. It is not necessary for me to consider the requirements of sub-section 94(1)(c).

8. The requirements of section 94(1) are not met at the Qualifying Period. As a result, Malcolm is not qualified for the receipt of DSP. I find that the AAT1 decision is correct and affirm the decision.

9. However, I note the evidence of both psychologists that Malcolm is capable of performing work activities once he becomes familiar with the required tasks and routines.  Their evidence is that he requires assistance and support to find and be accepted for suitable employment.  The services of ESS in this regard are specifically recommended by Dr Steet.  I urge the Respondent to provide whatever assistance is available in order to find suitable employment for Malcolm.

   DECISION

10. I affirm the decision under review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated:   19 May 2017

Date of hearing:	2 May 2017
Counsel for the Applicant:	Ms A Wong
Solicitors for the Applicant:	Victorian Legal Aid
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers