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

[2017] AATA 1289

Toby and Secretary, Department of Social Services (Social services second review) [2017] AATA 1289 (22 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2818

Re:Matthew Toby

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor M J McGrowdie, Senior Member

Date:22 June 2017

Date of written reasons:        19 July 2017

Place:Sydney

The decision under review is affirmed

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

Professor M J McGrowdie, Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension -  Eryopoietic Protoporphria – anxiety disorder – applicant has a physical and psychiatric impairment – applicant’s Eryopoietic Protoporphria is fully treated, diagnosed and stabilised and awarded 10 points – applicant’s anxiety disorder not fully diagnosed, treated or stabilised – applicant’s impairments do not total 20 points or more – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

REASONS FOR DECISION

Professor M J McGrowdie, Senior Member

19 July 2017

1. The applicant seeks a review of a decision affirming the cancellation of his disability support pension. The primary issue is whether the applicant qualifies for the requisite 20 points under the Impairment Tables made under the social security legislation.

2. In relation to the condition of Eryopoietic Protophria (EPP), considering section 94 of the Social Security Act 1991 (Cth), there is a diagnosable condition that has been fully treated at the relevant date, which is in October 2015.  However, on the medical evidence that is available, given that there is the requirement for corroboration, one could only be confident of awarding 10 points.  I could not be satisfied that it is more than 10 points on the evidence that is available as of 20 October 2015.

3. In relation to the applicant’s anxiety disorder, there was no diagnosis from a qualified practitioner until it was provided by Dr Miller in June 2016.  Even though the applicant might well qualify for 10 points for the mental condition, the diagnosis is required to be given by a specialist, either a medical specialist who is a psychiatrist, or by a clinical psychologist. This requirement is outlined in the introduction to Table 5 (the relevant table). The applicant’s anxiety disorder was first diagnosed in June 2016 which is after the relevant date.   Whether the condition had been stabilised at the relevant date is also open to question given what Dr Miller said in his report of June 2016 regarding the regulation of medication.  Certainly, in relation to the EPP there is no doubt that that is a permanent condition and was fully treated and diagnosed; diagnosed and fully treated at the relevant date, namely, 20 October 2015.

4. So far as capacity to work is concerned, although there is a job capacity assessment report dated 22 September 2015 saying the applicant had a capacity to work at that time of 15 to 22 hours per week, I think that is probably doubtful.  The evidence is not entirely clear, certainly as at today’s date.  I would be inclined to accept what Dr Dobie has said in his certificate dated 3 May 2017.  Dr Dobie was of the view that the applicant could not now do eight hours of work a week and I would consider that to be correct.

5. In any event, the applicant needs to establish that as at 20 October 2015 he had diagnosed and fully treated conditions which would give him a total of 20 points.  In relation to the EPP, which is a light sensitivity disease, it is capable of assessment, as I mentioned above. I do not think that the evidence that was available as at 20 October 2015 would be sufficient to get the applicant 20 points for that condition.  The position might well be very different today.  If there was something more up-to-date from Dr Relic then there would certainly be a possibility that the applicant might go from 10 to say 20 for that condition.

6. In regards to the anxiety condition, there is no diagnosis from a psychiatrist or a clinical psychologist at the relevant date.  Therefore, what was said in the first AAT decision of 21 April 2016 in relation to the anxiety disorder is correct.  I would be quite satisfied that the applicant has been suffering from a mental condition since he was about 13 years of age and that it exists, but the rules and regulations require that there be a diagnosis from a psychiatrist or a clinical psychologist. 

7. Even if it could be said that the diagnosis provided by Dr Miller in June 2016 could possibly be used to take the diagnosis back to 20 October 2015 it is questionable whether  the condition was fully treated or stabilised before the applicant  came under the care of Dr Miller again in June 2016.  So even giving the applicant the benefit of doubt on the diagnosis having to be given by a qualified practitioner, it still leaves the question of whether or not it had been fully treated before June 2016 when the applicant went back to Dr Miller and again came under his care.

8. I do not think it can be said that the condition at that time was fully stabilised or fully treated.  Even if the applicant was having symptoms which would rate him at 10 points for that condition, which it probably would, unless the other requirements of the condition being fully treated and stabilised are met, points cannot be awarded.  With regard to the anxiety, I simply cannot make any assessment regarding points at this point, it is not assessable as at 20 October 2015, on the evidence that is available.

9. That leaves the applicant in the position where he does have 10 points confirmed for the EPP.  He may well have 10 or more points for anxiety but I cannot be satisfied that the condition was fully treated or stabilised before the applicant came back to see Dr Miller in June 2016, which is quite some time after the 20 October 2015 date.

10. So far as the applicant’s ability to work is concerned, I do not need to determine that, given the position in relation to the anxiety disorder not being able to be assessed on the evidence. However, it would be unlikely that he would have a capacity to work, or would have at that time a capacity to work 15 to 22 hours a week.  If one were looking at it now, as I have indicated, I would be inclined to accept the view expressed by Dr Dobie that at the current time the applicant is not likely in the foreseeable future to be able to engage in employment of eight hours or more a week.  But I say that by way of completeness rather than because it is necessary to determine the matter.

11. If the applicant were to make another application to the Department, given that he now has the additional condition of Lyme disease, there is a very reasonable prospect that he would satisfy the points requirements, on what I have seen, to receive the Disability Support Pension.  But when I look at it in terms of such an entitlement at 20 October 2015, the evidence does not support the necessary requirement that the applicant’s anxiety condition had been fully treated at that time.  I think the position would be otherwise today, provided that Dr Miller is still reviewing the applicant’s condition.

12. Based on the conclusions I have reached, the determination I make is that the decision of the Administrative Appeals Tribunal made on 21 April 2016 is affirmed.  I must add given the way that the system operates I am constrained to consider what the position was as at 20 October 2015, not as the applicant is today in regard to his various conditions.  I think the applicant has perhaps been troubled by the concept that I cannot take into consideration what developments have happened since, and the position, the very tragic position that he finds himself in now.  Unfortunately I cannot do that, but that does not mean that the applicant’s current position could not be considered and addressed by the lodgement of a fresh application to the Department.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Professor M J McGrowdie, Senior Member

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

Associate

Dated: 19 July 2017

Date(s) of hearing:	30 March 2017, 22 June 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services