Tung Trinh and Secretary, Department of Social Services

[2015] AATA 295

[2015] AATA 295

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2654
Re	Tung Trinh
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	5 May 2015
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that the applicant qualifies for disability support pension.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s impairment is of 20 points or more under the Impairment Tables – whether the person has a continuing inability to work – decision set aside

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

5 May 2015

INTRODUCTION

1. Mr Tung Truong Trinh, the Applicant, is in his early forties. He was born in Vietnam. He and his mother, father, brother and sister fled Vietnam for Australia in 1984. Mr Trinh married in 1994, and he has two sons who were aged 18 and 8 at the date of the hearing. Mr Trinh and his wife separated in 2006 and divorced in 2011. Mr Trinh now lives with his parents and sister.

2. On 27 August 2013, Mr Trinh contacted Centrelink to inquire about the Disability Support Pension (DSP). Some days later, he claimed DSP on the grounds that he suffers from severe depression and anxiety. Centrelink refused his application. Mr Trinh sought review from an Authorised Review Officer, and then from the Social Security Appeals Tribunal (SSAT), but both affirmed the decision being reviewed. Mr Trinh now seeks review of the SSAT’s decision by this Tribunal. At the hearing, Mr Trinh was represented by a lawyer from Legal Aid NSW.

   THE LEGISLATION

3. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

4. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Trinh’s circumstances, section 94(1) relevantly provides:

   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;

   ...

5. Put simply, I must be satisfied, first, that Mr Trinh has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables (found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011). Finally, I must be satisfied that Mr Trinh has a continuing inability to work.

   THE 13 WEEK QUALIFYING PERIOD

6. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. This clause is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Trinh’s eligibility for DSP in the 13 week period commencing on the day on which Mr Trinh inquired about DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Trinh qualified for DSP between 27 August 2013 and 26 November 2013.

   THE CONCESSIONS OF THE RESPONDENT

7. Paragraph 46 of the Respondent’s Statement of Facts and Contentions is as follows:

   46.The Secretary accepts that the Applicant suffers from depression. It is further accepted based on the medical evidence available that this condition was fully diagnosed, treated and stabilised during the relevant period. Therefore, the only issue in contention is the rating to be applied to the condition.

8. These concessions mean, first, that Mr Trinh has fulfilled the criterion of section 94(1)(a) of the SS Act due to his condition of depression.

9. Second, in relation to section 94(1)(b) of the SS Act, the Respondent has conceded that the depression was fully diagnosed, stabilised and treated during the claim period. This means that the impairment arising from this condition can be given a rating under the Impairment Tables.

10. The Respondent submitted that Mr Trinh’s depression has a moderate impact on his functional capacity and thus is assessed at 10 points under Table 5 of the Impairment Tables titled “Mental Health Function”.

11. From the medical evidence, Mr Trinh also suffers from alcohol dependence (in remission) and sleep apnoea. The Respondent accepted that his sleep apnoea was fully diagnosed, treated and stabilised during the claim period, but that it warranted an assessment of nil points under Table 1 of the Impairment Tables (see the Respondent’s Statement of Facts and Contentions paragraphs 82-83). The Applicant put his case squarely on his depression and did not mount an argument that the sleep apnoea warranted a higher assessment under the Impairment Tables. Therefore, this case turns upon the assessment of Mr Trinh’s depression.

    THE ISSUES BEFORE THE TRIBUNAL

12. The primary issue before me is whether Mr Trinh’s depression results in a moderate or severe functional impairment. If I find it has a moderate impact, then it is assessed at 10 points under Table 5. If, on the other hand, I find it has a severe impact, then it is assessed at 20 points under Table 5.

13. If Mr Trinh’s impairment resulting from his depression receives a rating of 20 points, then I am required to decide the further issue of whether he has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    THE EVIDENCE OF MR TRINH

14. Mr Trinh gave sworn evidence and I found him to be a truthful witness.

15. In his evidence, Mr Trinh described his depression in great detail. He said that he began to get depressed in years 11 and 12 of high school. He thought that marriage would lessen his depression but that was not the case. After he and his wife separated in 2006 his depression became worse. He began to drink heavily.

16. Mr Trinh described his current day to day difficulties. He finds it difficult to go to sleep until 2:00 am, and he sleeps to about 8:30 am. When he wakes up he has to have a shower. He then goes to a coffee shop for two hours to have coffee and to smoke.

17. Mr Trinh said that he comes home, that he may sleep for an hour, and then he might watch a movie. He often watches and listens to the same movie over and over again.

18. Mr Trinh said that he can no longer taste food, and now he only eats one meal a day in the evening.

19. He often drives and picks up his children after school, but sometimes he forgets to do so.

20. Mr Trinh said that he has constant thoughts going on in the back of his mind and this limits his capacity for concentration.

21. Mr Trinh said that he lives with his parents because he would find it difficult to live on his own. He said he often has difficulty filling in forms or making telephone calls. He finds it difficult to concentrate.

22. Mr Trinh gave evidence on his participation in various activities. He said that he commenced going to martial arts in 2011. After several months he missed sessions and has not been there for more than a year. He also tried surfing in the summer of 2013-2014 but he only went to two of the three lessons before he was overwhelmed.

23. Mr Trinh said that he tried to do TAFE courses in 2012 and again in 2013. He could go for several months, but he found it difficult to concentrate and stopped attending.

24. When he was in class he could not concentrate because of background thoughts in his mind.

    THE MEDICAL EVIDENCE

25. I have examined all of the medical reports and certificates before the Tribunal.

26. Two doctors gave sworn evidence by telephone. First, Dr Thomas Luong who is Mr Trinh’s treating psychiatrist gave evidence. He confirmed what he had written in his three reports dated 15 July 2014, 14 November 2014 and 17 February 2015.

27. Second, Dr Sandra Armstrong gave evidence. Dr Armstrong has been employed for five years at the Health Professional Advisory Unit, Department of Human Services and she has extensive experience treating people with mental illness. Dr Armstrong is a medical practitioner, but she is not a psychiatrist and she has neither met nor examined Mr Trinh. She confirmed what she had written in her report dated 18 December 2014.

28. I give greater weight to the written and oral evidence of Dr Luong who has been treating Mr Trinh since 2011. I did find the written and oral evidence of Dr Armstrong to be helpful.

    CONSIDERATION

    WHETHER MR TRINH’S IMPAIRMENT IS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES

29. The primary issue before me is whether Mr Trinh’s depression has a moderate or severe impact on his functional capacity pursuant to Table 5 of the Impairment Tables.

30. The impairment rating is determined by assessing the level of difficulty the person has with the following activities:

    (a)self care and independent living;

    (b)social/recreational activities and travel;

    (c)interpersonal relationships;

    (d)concentration and task completion;

    (e)behaviour, planning and decision-making; and

    (f)work/training capacity.

31. Under Table 5, the functional impact of a mental health condition can be rated as nil (0 points), mild (5 points), moderate (10 points), severe (20 points) or extreme (30 points). To attain 20 points under this table, it must be shown that Mr Trinh has severe difficulties in respect to the majority of these six descriptors, that is four of the descriptors. Various examples are set forth in the table to assist the assessment of the level of functional impact. These examples are but examples of behaviour and should be treated as such when undertaking assessments. I shall examine each of the descriptors in turn.

    (a) Self care and independent living

32. In his oral and written evidence, Dr Luong states that Mr Trinh’s difficulties in respect to self care and independent living were mild to moderate. Dr Armstrong agrees with this assessment. Having regard to the evidence, and especially the evidence of Mr Trinh, I find that in respect to self care and independent living activities Mr Trinh’s difficulties are moderate. Mr Trinh does live with his parents and his sister and does require support with meals and with general living.

    (b) Social/recreational activities and travel

33. Dr Armstrong and Dr Luong agree that Mr Trinh’s difficulties in respect to this descriptor were moderate. As I understood the arguments of the parties, they agreed that moderate was the appropriate category. From the evidence before me, it is clear that Mr Trinh does not travel to unfamiliar environments and he does not cope well with stressful situations.

34. Accordingly, I find that in respect to social/recreational activities and travel Mr Trinh’s difficulties are moderate.

    (c) interpersonal relationships

35. Both Dr Luong and Dr Armstrong agree that Mr Trinh has severe difficulties with his interpersonal relationships. The parties also agreed that severe was the appropriate category. From the evidence before me, Mr Trinh does not have friends, he is irritable in social situations, and it appears that he only really gets along with his sister.

36. Accordingly, I find that in respect to interpersonal relationships Mr Trinh’s difficulties are severe.

    (d) concentration and task completion

37. With respect to this descriptor, the two doctors disagreed. Dr Luong said that severe best fitted this descriptor, while Dr Armstrong said that moderate was appropriate.

38. Much of the written and oral evidence before me concerned Mr Luong’s capacity to concentrate. He did try to study at TAFE, but with no success owing to his limited capacity to concentrate. Mr Trinh did try to attend martial arts sessions, but without much success. He also does drive to pick up his children from school. The first example for the category of severe is “The person has difficulty concentrating on any task or conversation for more than 10 minutes.” I have not found this matter an easy one to decide. From the oral evidence of Mr Trinh and from the medical evidence, I find his concentration to be episodic in nature. Nevertheless, I found him to be severely impaired in the area of concentration.

39. Accordingly, I find that in respect of concentration and task completion Mr Trinh’s difficulties are severe.

    (e) behaviour, planning and decision-making

40. Again, the two doctors disagreed, with Dr Armstrong stating that Mr Trinh’s difficulties in respect of these activities is moderate, whereas Dr Luong said they were severe.

41. The example for the category of severe is “The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.” In the report of Dr Luong dated 17 February 2015, the doctor writes that:

    Mr Trinh’s behaviour, thoughts, and conversation get significantly disturbed from time to time. A recent example occurred when he followed [the] recommendation by a doctor at Fairfield Hospital Drug and Alcohol Service to substitute Aropax with Efexor. I believe that that doctor was not his usual Drug and Alcohol treating doctor/counsellor yet he accepted advice without first checking with me who has been treating him since May 2011. He became depressed, paranoid with delusional jealousy, and suicidal after the switch from Aropax to Efexor.

    Mr Trinh either actively avoids making major\important decisions or makes decisions without careful consideration or taking into accounts of his knowledge, experience or evidence available to him.

42. From the evidence before me, it is clear that Mr Trinh is forgetful on occasions to pick up his children from school, he has missed appointments and needs assistance from his sister, former wife and parents.

43. Accordingly, I find that in respect to behaviour, planning and decision making Mr Trinh’s difficulties are severe.

    (f) work/training capacity

44. The evidence of Dr Luong is that Mr Trinh has severe difficulties with work/training capacity. In her report, Dr Armstrong assesses his difficulty as moderate. In the report of Mr Trinh’s treating clinical psychologist dated 4 April 2014, Ms Ellen Nolan writes that, “Due to the severity and chronicity of Mr Trinh’s symptoms it is my opinion that he is unfit for work. He does not have the capacity currently to deal with the rigors and demands of the workplace.”

45. From the evidence of Mr Trinh and having regard to the medical evidence, I find that Mr Trinh is severely impaired with respect to his capacity to work and to undergo training. From his daily behaviour which is described above, I am of the view that he has little capacity to undergo work on a daily basis.

46. Accordingly, I find that in respect to work/training capacity Mr Trinh’s difficulties are severe.

47. I therefore find that Mr Trinh’s depression has a severe functional impact on activities involving mental health function and I assess the impairment at 20 points under Table 5 of the Impairment Tables.

    DOES MR TRINH HAVE A CONTINUING INABILITY TO WORK?

48. The remaining issue which I am required to decide is whether Mr Trinh has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

49. Section 94(2) specifies the criteria that must be satisfied to have a continuing inability to work. As Mr Trinh’s impairment arising from depression is assessed at 20 points under Table 5, he has a severe impairment pursuant to section 94(3B) of the SS Act. This means that he is not required to actively participate in a program of support to have a continuing inability to work: section 94(2)(aa) of the SS Act. However it is necessary for him to satisfy the other subsections of section 94(2) of the SS Act.

50. I note the Job Capacity Assessment report dated 16 October 2013. The assessor wrote that:

    Based on the level of support required the client requires specialist disability employment interventions. The client is best suited to DES – Employment Support Service.

    Work Capacity

    Baseline Work Capacity: 15-22 Hours per week.

51. The assessor recognises that Mr Trinh would need assistance. Furthermore, the assessor has not had the advantage of the later medical evidence which is before me.

52. Having regard to Mr Trinh’s severe impairment and to the evidence before me, I find that Mr Trinh has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and attendant provisions.

53. I therefore find that Mr Trinh qualifies for DSP.

    DECISION

54. The decision under review is set aside in substitution the Tribunal decides that Mr Trinh qualifies for disability support pension.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 5 May 2015

Date of hearing	27 March 2015
Solicitors for the Applicant	Ms J Finlay, Legal Aid NSW
Solicitors for the Respondent	Mr S Davidson, Department of Human Services