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

[2017] AATA 30

Thompson and Secretary, Department of Social Services (Social services second review) [2017] AATA 30 (18 January 2017)

Division	General Division
File Number	2016/3156
Re	Nathan Thompson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	18 January 2017
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant's conditions were fully diagnosed, treated and stabilised - whether applicant's impairments are rated 20 points or more under the Impairment Tables - depression and PTSD - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

18 January 2017

INTRODUCTION

1. Mr Thompson seeks review of a decision made by the Social Services and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 26 May 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) refusing Mr Thompson’s claim for the disability support pension (“DSP”) which was lodged on 8 October 2015.

2. Mr Thompson’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out on section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mr Thompson to qualify for DSP, he had to satisfy these criteria on 8 October 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 7 January 2016 pursuant to section 42 and Schedule  2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Mr Thompson was qualified for DSP during the relevant period.

5. The Secretary accepts that Mr Thompson suffered from a mental health condition during the relevant period. He therefore satisfies section 94(1)(a) of the Act.

6. The issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   IMPAIRMENT TABLES

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean :

    (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.

11. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through.

12. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably assessable to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

13. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, subsection 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    MENTAL HEALTH CONDITION (DEPRESSION AND POST-TRAUMATIC STRESS DISORDER (PTSD))

14. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

15. The Introduction to table 5 of the Impairment Tables provides (inter alia):

    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). (emphasis added)

16. However before functional impact is to be assessed I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised.

17. The Secretary says and I accept that Mr Thompson’s mental health condition was fully diagnosed during the relevant period.  This is corroborated by the report of Mr Tim Watson-Munro, a consultant forensic psychologist, dated 10 September 2012, and the report of Mr Tony Swinton dated 23 March 2016. 

18. The issue remaining is whether or not Mr Thompson’s mental health condition is fully treated and stabilised during the relevant period.

19. On 20 August 2012, Mr Thompson underwent a psychological assessment performed by Mr Watson-Munro. In his report dated 10 September 2012, Mr Watson-Munro states that despite the intensity of Mr Thompson’s difficulties which have been aggravated by his incarceration, ‘Mr Thompson has had no treatment to date’. He says that on examination, Mr Thompson:

    “…expressed a strong desire for assistance…It is clear however that he requires intensive work involving Cognitive Behavioural Therapy (CBT) focused upon issues such as relapse prevention, social skills and assertiveness training and one-to-one psychotherapy to address his long-standing symptoms of depression. Some work involving a systematic desensitisation to the queues which led to his flashbacks and sleep disturbance will be of additional benefit”.

20. Mr Thompson was adamant at hearing that he cannot work or leave the house because he is worried that he may hurt people. Mr Thompson advised at hearing that he underwent weekly sessions with a psychologist while he was in prison and was prescribed Effexor and Seroquel by a psychiatrist, which he continues to take. Since his release from prison in September 2015, Mr Thompson said that he has not continued to see a psychologist or psychiatrist because he doesn’t believe that it would help him.

21. I do not have before me any medical evidence or reports detailing the treatment undertaken by Mr Thompson while he was in prison. However, I do accept Mr Thompson’s evidence that he did attend regular sessions with a psychologist and psychiatrist during this period.

22. Mr Swinton noted in his report dated 23 March 2016, that Mr Thompson said he saw a psychiatrist weekly and a psychologist once or twice a month in jail to help him with his mood, depression and nightmares. The psychologist apparently refused to undertake any trauma work because he could not be assured that he would have the same psychologist on his next visit.

23. In his report, Mr Swinton clearly outlines the serious and ongoing psychological conditions suffered by Mr Thompson since early childhood. He opines that treatment may help with his day-to-day function. Specifically he opines, “Mr Thompson should seek psychological therapy that could help to address his trauma, social anxiety, panic and low mood in order to assist him to function in day to day life and not to continue to restrict and in so doing mistreat his family”.

24. Further, Mr Thompson advised the SSCSD that he was to see a psychologist under a mental health care plan which was drawn up two and a half months prior to the hearing. In these proceedings, Mr Thompson said at hearing that he had made an appointment with a psychologist, which was later cancelled, and that he is now on a 6 to 8 month waiting list for another appointment.

25. Dr Mukesh Sharma states, in a Medical Certificate dated 27 July 2016, that Mr Thompson’s condition of anxiety/depression was temporary and the prognosis was uncertain. In regards to treatment Dr Sharma stated that Mr Thompson was on Effexor and Seroquel and had been referred to a psychiatrist for assessment.

26. It is plain on the evidence before me that Mr Thompson has not undergone any further treatment since his release from prison in September 2015. The medical evidence shows that psychological therapy is recommended and may help him to address his trauma, social anxiety, panic and low mood. Based on this evidence, I find that Mr Thompson’s mental health condition was not fully treated and fully stabilised during the relevant period. I would like to note that if Mr Thompson undertakes the recommended treatment and there is no improvement in his condition or his condition is unlikely to improve in the next 2 years, a medical report to this effect, from an appropriately qualified medical practitioner, may assist him with any future claim for DSP.

27. It follows that no impairment rating may be given for Mr Thompson’s mental health condition under the Impairment Tables.

    CONCLUSION

28. Since Mr Thompson’s mental health condition was not fully treated or fully stabilised during the relevant period, an impairment rating cannot be assigned under the Impairment Tables and it is not necessary for me to consider whether he had a continuing inability to work during the relevant period.  It follows that his claim for DSP cannot succeed.

29. I affirm the decision under review. 

30. Mr Thompson may apply for DSP again at any time. Particularly if he undertakes the treatment required or has further medical reports from appropriately qualified medical practitioners advising that his condition is unlikely to improve in the next 2 years and/or is fully treated and stabilised.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 18 January 2017

Date(s) of hearing	5 December 2016
Applicant	By telephone
Solicitors for the Respondent	Ms S Hiethersay, Department of Human Services