Triantafillou and Secretary, Department of Social Services (Social services second review)
[2017] AATA 5
•12 January 2017
Triantafillou and Secretary, Department of Social Services (Social services second review) [2017] AATA 5 (12 January 2017)
Division:GENERAL DIVISION
File Number: 2015/6711
Re:Dimitrious Triantafillou
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, Member
Date:12 January 2017
Place:Perth
The Tribunal affirms the decision under review.
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Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s impairments were fully diagnosed, treated and stabilised – whether applicant’s impairments attract 20 points under Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)(aa) – 94(3A)
Social Security (Administration) Act 1999 – Schedule 2 - s 63(2) – s 63(4)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2), Re; (1979) 2 ALD 634
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 5 – Table 9
Guide to Social Security Law
REASONS FOR DECISION
Brigadier AG Warner, Member
12 January 2017
INTRODUCTION
Mr Triantafillou seeks a review of the decision by of the Social Services & Child Support Division (AAT1) of this Tribunal dated 4 December 2015 (T2/5-11) that affirmed a decision of Centrelink to cancel his Disability Support Pension (DSP) on 17 September 2015 (T11/96).
A hearing was held on 17 November 2016 during which Mr Triantafillou gave oral evidence. Mr Triantafillou was represented by his mother who also gave evidence. Mrs Triantafillou was assisted by an interpreter.
BACKGROUND
Mr Triantafillou was born in 1976 and was in receipt of DSP since 17 June 1993 for the condition of learning difficulties (T19/118).
On 29 June 2015, the Secretary issued Mr Triantafillou with a ‘Medical Report Disability Support Pension Review’ form which was completed subsequently by Dr David Chin, General Practitioner (T7/78-87).
Mr Triantafillou was admitted to Sir Charles Gairdner Hospital (SCGH) from 27 August 2015 to 9 September 2015, with a principal diagnosis of bilateral pulmonary embolism and secondary diagnoses/complications of Attention Deficit Hyperactivity Disorder (ADHD), depression, hearing impairment, hypertension, learning disability and recurrent deep vein thrombosis (T9/90-92).
On 9 September 2015, Ms Carolyn King, psychologist, provided a ‘Confidential Specialist Assessment Report’ for the purpose of assessing eligibility for the DSP (T8/88-89).
Mr Triantafillou underwent an audiogram on 10 September 2015, and Dr Blake Henderson, audiologist subsequently produced a report dated that same day (T10/93). A hearing instrument order was also raised on that date for both Mr Triantafillou’s ears (T10/95).
A Job Capacity Assessment (JCA) for Mr Triantafillou was conducted by a registered occupational therapist and a registered psychologist on 24 August 2015. The assessors’ findings are included in the report dated 15 September 2015 (T12/98-104) and are summarised as follows:
·Mr Triantafillou’s ADHD is fully diagnosed, but not fully treated and stabilised because he had ceased dexamphetamine medication and his symptoms had deteriorated. It is anticipated that with further treatment and intervention, his symptoms will improve.
·Mr Triantafillou’s learning disability was fully diagnosed, treated and stabilised. The recommended rating under Impairment Table 9 – Intellectual Function is 10 points.
·Mr Triantafillou’s drug dependence is not verified in the medical evidence and he has not accessed reasonable treatment for this condition. It cannot be considered to be fully treated or stabilised.
·Mr Triantafillou’s depression is considered to be permanent, however cannot be considered fully diagnosed as the diagnosis has not been confirmed by a psychiatrist or clinical psychologist.
·Mr Triantafillou’s work capacity was assessed as 30+ hours per week within two years with mainstream intervention.
On 17 September 2015, an employee of Centrelink determined that Mr Triantafillou was no longer eligible for DSP and it was cancelled (T11/96-97).
On 11 October 2015, an Authorised Review Officer (ARO) affirmed the 17 September 2015 decision (T15/108-113).
The AAT1 reviewed and affirmed the ARO decision on 4 December 2015. AAT1 found as follows:
The Tribunal has found that Mr Triantafillou has a learning disability condition that receives a rating of 10 points under the Impairment Tables. This is less than the rating of 20 points or more that is required to satisfy paragraph 94(1)(b) and Mr Triantafillou is therefore not currently qualified for DSP (T2/11).
ISSUES
The issues to be decided in this application are whether, as at 17 September 2015:
a.Mr Triantafillou had any impairments that were fully diagnosed, treated and stabilised; and
b.Mr Triantafillou’s impairment(s) warranted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work- Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
c.Mr Triantafillou had a continuing inability to work.
LEGISLATION
The relevant legislation is contained in:
a. Social Security Act 1991 (the Act);
b. Social Security (Administration) Act 1999 (the Administration Act); and
c. Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Policy advice contained in the Guide to the Social Security Law (the Guide) is also relevant. The Tribunal has found that although policy is not binding it will ordinarily be followed unless there is a cogent reason not to do so (Drake and Minister for Immigration and Ethnic Affairs (No 2), Re; (1979) 2 ALD 634).
Section 94 of the Act sets out the qualification criteria for the DSP. It provides that a person is qualified for the DSP if:
a.They have a physical, intellectual or psychiatric impairment (s 94(1)(a)); and
b.That impairment (or impairments in combination) attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)); and
c.The person has a continuing inability to work (s 94(1)(c)).
The Impairment Tables contain rules (the Rules) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.
An impairment rating can only be assigned if the condition causing that impairment is permanent (that is, fully diagnosed, treated and stabilised and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) to 6(4) of the Rules).
The following must be considered in determining whether a condition has been fully diagnosed and fully treated:
a.Whether there is corroborating evidence of the condition; and
b.What treatment or rehabilitation has occurred in relation to the condition; and
c.Whether treatment is continuing or is planned in the next two years (s 6(5) of the Rules).
A condition is fully stabilised if:
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 two years; or
b. The person has not undertaken reasonable treatment for the condition and either:
1)Significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
2)There is a medical or other compelling reason for the person not to undertake reasonable treatment (ss 6(6) and 6(7) of the Rules).
The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If an impairment has no functional impact, then no rating can be applied (s 6(8) of the Rules).
For the purpose of assessing whether a person remains entitled to DSP, the Secretary must be satisfied that they have a continuing inability to work. A person has a continuing inability to work if the Secretary, or the Tribunal, is satisfied that the person’s impairment is of itself sufficient to prevent them doing any work independently of a program of support, or undertaking a training activity, within the next two years.
Section 94(3A) of the Act provides that a person who was receiving DSP and was given a notice under s 63(2) or 63(4) of the Administration Act does not need to have actively participated in a program of support as set out in s 94(2)(aa) of the Act.
EVIDENCE
The evidence before the Tribunal comprised:
·The ”T Documents” (T1-T19, pp 1-124) (Exhibit 1);
·Secretary’s Statement of Issues, Facts and Contentions dated 2 May 2016, including Attachments A-C (Exhibit 2);
·The oral evidence of Mrs Triantafillou; and
·The oral evidence of the applicant.
Since the preparation and filing of the “T Documents”, Mr Triantafillou has provided three further documents. The documents are attachments to Exhibit 2 and are as follows:
·A medical report by Dr John Adegboye, psychiatrist, dated 8 January 2016 (Exhibit 2 att A);
·A medical report by Dr Wendy Rappeport, general practitioner, dated 4 March 2016 (Exhibit 2 att B); and
·A letter from Mr Carter-Anderson of TCA Plastering dated 24 March 2016 (Exhibit 2 att C).
CONSIDERATION
At the outset, the Tribunal reviewed the decisions of the ARO (T15) and AAT1 (T2). It seems to the Tribunal that these reviews were completed diligently and with due regard to the available evidence. The Tribunal notes that both the ARO and AAT1 at first review determined that Mr Triantafillou’s impairments attracted 10 points under the Impairment Tables.
However, the Tribunal’s review is de novo, and this allows the Tribunal to reconsider the application according to the law, the policy and the facts. The Tribunal’s consideration is detailed in the paragraphs below.
As Mr Triantafillou’s DSP was cancelled, the Tribunal must assess his eligibility for DSP as at the date of cancellation, 17 September 2015.
The Secretary accepts that Mr Triantafillou suffered impairments as at 17 September 2015 and thus satisfies s 94(1)(a) of the Act.
Mrs Triantafillou’s evidence
Mrs Triantafillou presented as an honest, uncomplicated witness, solicitous for the welfare and wellbeing of her son.
Mrs Triantafillou told the Tribunal that:
·Mr Triantafillou had “been lost to her” for four years due to his drugs use;
·She had stayed with Mr Triantafillou for three months following his discharge from hospital on 9 September 2015. At that time he could still function, but tended to isolate himself, he felt neglected and he lacked confidence;
·Mr Triantafillou cannot live without the DSP. He tries very hard with employment but his impairments make it extremely difficult;
·Mr Triantafillou’s ADHD was long-standing and she thought he would have the problem until he died. Her former husband and her daughter both suffer from ADHD;
·She had great difficulty in finding a psychiatrist for Mr Triantafillou in the period after his discharge from hospital and his eventual consultation with Dr Adegboye on 23 October 2015; and
·Sugar remains a very big problem for Mr Triantafillou, but she can no longer manage his life.
Mr Triantafillou’s evidence
Mr Triantafillou actively engaged in the proceedings. He told the Tribunal that:
·His conditions and medications prevent him from working and he has difficulty coping with pressure;
·He agreed with the JCA remark that “The client stated that he feels “panicky” and rushed, and stated that his symptoms are currently worse than when he was being treated with dexamphetamine medications. He reported that he has poor initiation skills (for example at work he is able to complete routine/repetitive tasks or complete an activity when prompted, however is unable to recognise and initiate when a job needs doing, i.e. prepare mud/equipment in preparation for the plasterer)” (T12/99);
·He disagreed with Dr Chin’s opinion that his depression was well managed, but agreed that his condition improved with medication and that he was generally better when working;
·He had been taking Pristiq for his ADHD prior to his hospital admission in August – September 2015, but the hospital increased the strength to 200 mg;
·He should be on DSP because people might run out of patience with him and he would lose employment.
Learning disability
The JCA report refers to a clinical psychologist’s report dated 23 September 2005, which reported that Mr Triantafillou met the criteria for borderline intellectual ability and attended special education from grade 5 onwards through high school. The JCA report stated that there was appropriate evidence that this condition was fully diagnosed, treated and stabilised (T12/99).
The Confidential Specialist Assessment Report dated 9 September 2015 determined that Mr Triantafillou’s general adaptive composite score was 72, which equated to a percentile rank of 3 and was in the borderline range. The report recommended that Mr Triantafillou would benefit from referral to a disability employment service which would provide support to identify suitable work options (T8/88-89).
Table 9 – Intellectual Function of the Impairment Tables provides that there is moderate impact on intellectual function if at least one of the following applies:
(a)the person is assessed as having a score of adaptive behaviour of between 71 to 79, 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 3 to 8 on a standardised assessment of adaptive behaviour.
Mr Triantafillou’s assessed impairment satisfies both the above descriptors for moderate impact (10 points) on intellectual function. As Mr Triantafillou has not been assessed as having a score of adaptive behaviour between 50 to 70 or assessed as being within the percentile rank of 2 on a standardised assessment of behaviour, his impairment does not satisfy the descriptors for severe impact (20 points) on intellectual function.
The Secretary accepts that Mr Triantafillou’s learning disability condition was fully diagnosed, treated and stabilised as at 17 September 2015, and contends that the consequent impairment attracts 10 points under Table 9 (Exhibit 2 paras 4.24 and 4.25) . The Tribunal agrees.
ADHD
In his report dated 21 July 2015, Dr Chin listed Mr Triantafillou’s ADHD as the condition with most impact. He gave 1995 as the date of onset and stated that Dr Ross Manners, psychiatrist, had provided the diagnosis. Dr Chin stated that he was unsure of the history of the condition as Mr Triantafillou “was unwell and suffering ADHD since he arrived in this practice” (T7/82).
In relation to diagnosis, the JCA report states: “MR documents that this condition will persist for more than 24 months and remain unchanged… This condition is considered to be permanent and fully diagnosed, however not currently fully treated and stabilised” (T12/99).
In a letter to Dr Johann Combrinck at Perth Clinic Medical Suites dated 19 September 2015, Mr Triantafillou’s usual general practitioner, Dr Rappeport stated that “Jim apparently has ADHD and was once on dexamphetamine”. Dr Rappeport also asks Dr Combrinck to assess Mr Triantafillou for dexamphetamine or Strattera (T13/105).
In her later report dated 4 March 2016, Dr Rappeport states:
Mr Triantafillou has ADHD, and has been on tablets such as dexamphetamines on and off since he was a child. He has also had learning disability all his life, which has made others laugh and bully him.
Approximately 10 years ago, he was seeing Dr De Tissera, a Psychiatrist at Mirrabooka, who has now retired, and he was prescribing dexamphetamine. However Dimitrious (“Jim”) started abusing them and they were stopped. Without them he was ‘crazy’ and self-medicated himself with “ice”. At the moment he is seeing Dr John ADegobye (sic) who has prescribed Strattera 60mg for his ADHD, and sertraline and clonidine (Exhibit 2 att B).
Relevantly, and correctly in the Tribunal’s view, the respondent notes that:
Although the Applicant had not been receiving treatment from the Applicant’s current psychiatrist, Dr John Adegboye as at the date of cancellation, Dr Adegboye has diagnosed the Applicant with generalised anxiety disorder and a secondary condition of methylamphetamine dependence as at 23 October 2015 (T17, p116) and not ADHD. Dr Adegboye has not confirmed the suspected diagnosis of ADHD (Exhibit 2 para 4.28(c)).
Having regard to the evidence and the protracted circumstances related to this condition, the Tribunal accepts that Mr Triantafillou’s ADHD is fully diagnosed. However, the Tribunal is satisfied that there is sufficient evidence that at the date of cancellation of DSP, the condition was not fully treated and stabilised. Accordingly, Mr Triantafillou’s ADHD is not assessable under the Impairment Tables.
Depression
In his report dated 21 July 2015, Dr Chin records depression as a condition that is generally well managed and causes minimal or limited impact (T7/86).
In relation to the condition of depression, the JCA report states that:
Client reported that his GP diagnosed his symptoms of depression and commenced him on antidepressant medication (Pristiq) 2 years ago. He reported that his condition improved with medications, and his symptoms are generally better when he is working.
…
This condition is considered to be permanent, however cannot be considered to be fully diagnosed as there is no confirmation of diagnosed (sic) by an approved specialist (Psychiatrist or Clinical Psychologist) (T12/100).
In his report dated 8 January 2016, Dr John Adegboye, psychiatrist, stated that he first reviewed Mr Triantafillou on 23 October 2015, which the Tribunal notes was more than a month after cancellation of his DSP. Dr Adegboye reported that:
Dimitriou has multiple medical problems that include the diagnosis of attention hyperactive deficit disorder at the age of 16 and longstanding history of substance abuse… He is currently dependent on methamphetamine… Dimitriou has recurrent DVT… He also has acute renal failure and pulmonary hypertension…He also has a background history of learning disability… He gave a history that suggests generalized anxiety disorder including excessive worry and anticipatory anxiety (Exhibit 2 att A).
Although Dr Adegboye is a psychiatrist, his report does not contain a diagnosis of depression. Such diagnosis is mandated in the Introduction to Table 5 – Mental Health Function, which states among other things:
·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); and
·Self-report of symptoms alone is insufficient.
The Tribunal is satisfied that at the relevant date, Mr Triantafillou’s condition of depression was not fully diagnosed, treated and stabilised, and consequently an impairment rating cannot be assigned under Table 5.
Drug dependence
In relation to this condition, the AAT1 decision relevantly stated:
[33]The JCA report stated that Mr Triantafillou said he had been using illicit substances for at least four years and continues to use them on a weekly basis.
[34]Mrs Triantafillou told the Tribunal that after her son’s hospitalisation in August 2015, he ceased his illicit drug use.
[35]Mr Triantafillou confirmed that he no longer uses illicit substances and said that he is now attending counselling with Next Step in Warwick and that he sees a drug counsellor every alternate week. He has been attending for two months and the counselling will be ongoing. A letter from his GP dated 19 September 2015 stated that Mr Triantafillou previously used ice but has now stopped (T2/9 paras 33-35).
In addition to the information contained in Dr Adegboye’s report and detailed under the Tribunal’s consideration of depression above, the medical evidence contains several references to Mr Triantafillou’s use of drugs:
a. The Discharge Summary following Mr Triantafillou’s admission to SCGH in August-September 2015 lists Drug Addiction – Amphetamine as a secondary diagnosis/complication to the principal diagnosis responsible for the admission, bilateral pulmonary embolism (T9/90).
b. In her report dated 4 March 2016, Dr Wendy Rappeport states that approximately 10 years ago Mr Triantafillou had been prescribed dexamphetamine for ADHD but he abused the medication and it was stopped. Dr Rappeport said that “without them he was ‘crazy’ and self-medicated with “ice” (Exhibit 2 att 2).
c. The JCA report stated “there is no medical verification for this condition……Client has not accessed reasonable treatment for this condition, and therefore it cannot be considered to be fully treated or stabilised” (T12/100).
Having regard to all the evidence related to Mr Triantafillou’s condition of drug dependence, the Tribunal is of the view that there is insufficient evidence as to the condition, the details of any treatment being undertaken, and the impact of this condition on Mr Triantafillou’s ability to function as at the date of cancellation of his DSP.
Accordingly, the Tribunal is satisfied that the condition of drug dependence cannot be considered to be fully diagnosed, treated and stabilised and consequently no impairment rating can be assigned.
Hearing impairment
Dr Chin’s report for DSP review dated 21 July 2015 does not list the condition of hearing impairment, and the condition does not appear to have been included in the JCA report.
The report of Dr Blake Henderson, audiologist, to Dr Rappeport, dated 10 September 2015, states that Mr Triantafillou’s audiogram showed a bilateral conductive hearing loss which has remained stable. Dr Henderson considered that aiding would be of benefit to Mr Triantafillou and he mentioned referral for ENT investigation (T10/93).
An order for hearing aids for both ears was raised for Mr Triantafillou on 10 September 2015 (T10/95), and on 19 September 2015, Mr Triantafillou’s general practitioner recorded that his physical health problems included deafness “for which he is going to get hearing aids” (T14/106). In her later letter dated 4 March 2016, Dr Rappeport stated “Jim is hearing impaired, and wears hearing aids” (Exhibit 2 att B).
Relevantly, the AAT1 decision records that “Mr Triantafillou said, in relation to his hearing impairment, that he is currently awaiting a referral to SCGH. Mrs Triantafillou said that future surgery may be an option” (T2 para 50).
The Secretary accepts that Mr Triantafillou’s hearing impairment was fully diagnosed, but not fully treated and stabilised as at 17 September 2015, the date of DSP cancellation (Exhibit 2 para 4.42). Having regard to the available evidence, the Tribunal agrees. Consequently, the condition does not attract a rating under Table 11 of the Impairment Tables.
Circulatory system
The JCA report contains the following note in relation to a condition of circulatory system – other:
Please note that whilst arranging for the ABAS assessment to be completed for assessment of the client’s learning disorder, the assessor spoke with the client by telephone, who reported that he was in hospital due to complications arising from drug use. He provided his mother’s [Mrs Triantafillou’s] telephone details to arrange for her to collect the required ABAS documents for completion.
[Mrs Triantafillou] reported to the assessor that her son was in hospital due to a blood clot, secondary to his drug use. She expressed concerns for his ongoing drug use.
There is no previous history of heart or circulatory issues, and there is no medical verification of this condition for this assessment. No further evidence was sought as it will not impact on the outcomes or recommendations of this assessment. The client will require further assessment and treatment to stabilise his condition (T12/100-101).
The SCGH Discharge Summary dated 9 September 2015 following the hospital admission noted in the JCA, detailed ongoing clinical management including medications, outpatient immunology clinic and haematology clinic follow-up with Dr Auguston at SCGH (T9/91-92).
The Tribunal is satisfied that, having regard to the evidence, Mr Triantafillou’s circulatory system condition at the date of his DSP cancellation could not be considered to be fully treated and stabilised. Consequently, the condition does not attract an impairment rating.
Foot condition
Mrs Triantafillou provided the AAT1 with a letter from a podiatrist dated 16 November 2015. The letter stated that Mr Triantafillou had presented on 31 October 2015 with chronic plantar fasciitis of both feet, and that orthoses had been issued to aid the condition (T18/117). Before this Tribunal, Mrs Triantafillou said that her son’s foot condition was painful and was an inherited condition.
This foot condition was not mentioned in Dr Chin’s report dated 21 July 2015 and was not assessed in the JCA.
The Tribunal finds that there is insufficient medical evidence available such that Mr Triantafillou’s foot condition could be considered to be fully diagnosed, treated and stabilised at the relevant date.
CONCLUSION
The Tribunal finds that Mr Triantafillou’s condition of learning disability attracts 10 impairment points under the Impairment Tables, and that his other conditions could not be assessed under the Tables. This is less than the rating of 20 points or more necessary to satisfy s 94(1)(b) of the Act.
As the Tribunal has found that Mr Triantafillou did not satisfy s 94(1)(b) of the Act at the time of cancellation of his DSP, it was not required to consider his continuing disability to work.
It follows from the above that at the relevant time, Mr Triantafillou was not qualified for the DSP.
DECISION
The Tribunal affirms the decision of the Social Services & Child Support Division of this Tribunal, dated, 4 December 2015.
I certify that the preceding 66 (sixty- six) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member
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Administrative Assistant
Dated: 12 January 2017
Date of hearing: 17 November 2016 Representative for the
Applicant:Ms I Triantafillou Representative for the
Respondent:Ms J Vetter
Solicitors for the Respondent:
Sparke Helmore Lawyers
Key Legal Topics
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Statutory Interpretation
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