TVWB; Secretary, Department of Social Services and (Social services second review)
[2017] AATA 903
•19 June 2017
TVWB; Secretary, Department of Social Services and (Social services second review) [2017] AATA 903 (19 June 2017)
Division:GENERAL DIVISION
File Number: 2015/4454
Re:Secretary, Department of Social Services
APPLICANT
AndTVWB
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:19 June 2017
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that at the date of his disability support pension cancellation TVWB did not satisfy the requirements of s 94(1)(b) of the Social Security Act 1991 (Cth). Thus the cancellation was the correct decision and the Authorised Review Officer’s decision of 7 May 2015 is affirmed.
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Miss E A Shanahan, Member
SOCIAL SECURITY – disability support pension – psychiatric disorder – previous diagnosis of schizophrenia – no psychiatric attendance or treatment since 2013 – reassessment by Secretary– disability support pension cancelled – Stay Order in force – respondent works through employment services provider 14 hours per week – psychiatric disorder not fully treated and stabilised – Administrative Appeals Tribunal 1st Tier decision set aside
Legislation
Mental Health Act 1986 (Vic)
Mental Health Act 2014 (Vic)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Freeman v Secretary, Department of Social Services [1988] FCA 294
Re Shaer and Secretary, Department of Social Services [2015] AATA 1005
Re Malik and Secretary, Department of Social Services [2015] AATA 649Re Saad and Secretary, Department of Social Services [2015] AATA 160
REASONS FOR DECISION
Miss E A Shanahan, Member
19 June 2017
TVWB qualified for the disability support pension (DSP) on 25 October 2011. He had been diagnosed with schizophrenia in September of that year, having been admitted to an adolescent inpatient psychiatric unit under the Mental Health Act 1986 (Vic), which was subsequently repealed and replaced by the Mental Health Act 2014 (Vic), for investigation and treatment. A job capacity assessment (JCA) completed on 7 November 2011 advised the condition was fully diagnosed, treated and stabilised and recommended that an impairment rating of 20 points under Table 6 of the then Schedule of Tables was attracted.
On 22 November 2014 Centrelink, on behalf of the Department of Human Services (the Secretary), issued a medical review of TVWB’s DSP. He was required to fill in a form entitled Medical Review Disability Support Pension and return it to the Department. TVWB or his mother ZLTD completed the form advising that TVWB’s only treatment was cognitive behaviour therapy. The medical section filled in by his treating general practitioner stated the condition to be anxiety which was expected to persist for 3 to 12 months but to slightly improve within the course of two years. Based on this report a decision was made by a delegate of the Secretary on 24 April 2015 that TVWB no longer qualified for the DSP. This decision was affirmed by an authorised review officer (ARO) on 7 May 2015. TVWB lodged an application for review of the decision with the Social Security Appeals Tribunal (now the Social Services and Child Support Division of the Administrative Appeals Tribunal, (AAT 1st Tier).
On 22 July 2015 the AAT 1st Tier set aside the decision to cancel TVWB’s DSP. The Secretary lodged their application for review of this decision by the General Division of the Administrative Appeals Tribunal (General Division) on 27 August 2015. The matter was heard by the General Division on 22 March 2017. TVWB was represented by his mother ZLTD. TVWB did not attend the hearing, nor provide any statement. The Secretary was represented by Ms Ailsa Bramley, Senior Government Lawyer. The Secretary provided extensive documentation filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-documents). The Secretary also filed the treating general practitioner Dr Wong’s clinical records covering the period from early 2013 to March 2016. At the hearing ZLTD handed up a report from Dr Dianne Grocott, psychiatrist, dated 1 March 2017. These documents were taken into evidence.
BACKGROUND TO THE APPLICATION
At the age of 15 TVWB exhibited social withdrawal, some evidence of lack of anger control with minor transgressions and poor performance at school. He admitted to some delusional symptoms, in that he was hearing voices that he interpreted as being those of God and Satan. He was first seen by a community based mental health service in July 2011 and thereafter had regular home visits for several months. He had completed years 9 and 10 at school but failed year 11. He was due to repeat this year but refused to do so. In July 2011 he had been commenced on the anti-psychotic Olanzapine but as his condition worsened the Crisis Assessment and Treatment Team (CAT team) were called and recommended his admission to hospital. TVWB refused to attend. The police were contacted and on 1 September 2011 he was admitted to Eastern Health Child Adolescent Inpatient Unit at Maroondah Hospital for assessment. TVWB did not engage with the staff or the treating psychiatrists, he objected to the taking of medication and remained isolated although he occasionally played table tennis and basketball with male co-clients.
On 29 September 2011 TVWB became very aggressive when his demands to be discharged were refused. He blamed his mother for locking me in here. He physically assaulted a staff member, punched a hole in the wall next to his bedroom and was aggressive toward the security staff, threatening to kill them. TVWB was locked in a seclusion room until he calmed down. He was not approachable and it was impossible to give him any sedating medication. Thereafter, he was treated in a high dependency unit, schizophrenia having been diagnosed. He was considered to be at risk of absconding, displaying further aggression and destroying property.
TVWB remained in hospital for a period of six weeks. His anti-psychotic medication was increased in dosage. His mother believed that this was too sedating in its effect and she continued to doubt the diagnosis of schizophrenia. The medical records suggest that throughout this period he remained isolated, did not converse with staff or fellow clients and tried to abscond on several occasions but denied any further delusions after 4 October 2011. He was eventually discharged home to the care of his mother on 11 October 2011. While he was still hospitalised applications for the DSP were made on his behalf and his mother applied for a carer’s allowance.
TVWB attended Eastern Health on an outpatient basis throughout 2012 and up until August 2013. In the final attendance of 16 August 2013 his mother, ZLTD, demanded that his medication be ceased. As he had already ceased it in July 2013 without any apparent deterioration the doctors agreed to this move. It was recommended that TVWB find a general practitioner and that he attend an adult psychiatric service. On occasion ZLTD attended the appointments with Eastern Health Mental Services without her son. She was regarded by the psychiatrists in this clinic as being both a protective factor and a maintaining factor in his mental disorder.
TVWB and ZLTD eventually made contact with the general practitioner Dr P Wong. The clinical history Dr Wong obtained came from the mother. Dr Wong’s records indicate that on 31 October 2013, Dr Dianne Grocott, psychiatrist, prescribed Mirtazapine 15 mg, increasing slowly to 45 mg. There is no evidence that she actually saw TVWB. It would appear that TVWB did attend Dr Wong on 5 January 2015 and stated that he had never hallucinated but answered yes to the psychiatric team when questioned. He said his concentration was now improving, he was helping a painter two days a week and was trying to restore his social skills and improve his self-esteem. A mental health plan was constructed, a diagnosis of anxiety made and what was called Christian orientated cognitive behaviour therapy was applied.
TVWB next attended in person on 2 March 2016 at which time he was said to be doing nothing other than surfing the internet. He denied hallucinations, delusions and suicidal thoughts. Counselling was given and he was encouraged to pray to God to help him overcome his difficulty.
During his hospitalisation TVWB had undergone various investigations to exclude an organic basis for his mental disorder. All biochemical and haematological investigations were normal as was an MRI (magnetic resonance imaging) study of his brain.
Evidence of ZLTD
The respondent TVWB did not attend the hearing. The only evidence was given by his mother. She said that no medication had been taken by her son since April 2013. She had endeavoured to engage him in activities and in particular to visit employment agencies but while she would drive him to attend an interview, he refused to get out of the car. Attempts at distance education also failed.
TVWB had obtained work for 14 hours per week with Connecting Skills Australia (CSA) commencing on 19 May 2015. This work is subsidised through Centrelink and his continuation is dependent on him remaining on the DSP. According to his mother the work entails packing and unpacking items such as milk and cream that have passed their use by date and have been donated for charitable use. TVWB’s work activities also involve washing police cars and this he enjoys. TVWB did miss work for a period of two to three weeks after he had experienced bullying by a supervisor but as this supervisor has left CSA he has been working two days per week on a regular basis.
ZLTD has discussed her son with the employer and has been told that he has reached 80 per cent of the standard CSA requires, his deficiency being in the area of Occupational, Health and Safety. ZLTD believed that CSA considered a 90 per cent standard to be essential for an individual to progress to work in the open labour market.
ZLTD tendered a report from Dr Dianne Grocott, psychiatrist.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
TVWB’s treatment by the Eastern Health Mental Service and his six weeks of inpatient detention under the Mental Health Act1986 (Vic) has been addressed under BACKGROUND TO THE APPLICATION. Similarly, the very short general practice record has been summarised.
Dr Ruth Valentine, a clinical psychologist, provided a report to the Secretary dated 13 October 2016. She had first seen TVWB in April 2016. More correctly she had seen his mother as he would not attend her office. Eventually he did attend and has apparently had a total of six sessions under a Medicare bulk-billed scheme of psychological treatment as part of a mental health care plan. Dr Valentine says that the bulk of the work they have done to date has been in building a therapeutic rapport and engagement. She has made a diagnosis of obsessive compulsive disorder (OCD), social phobia and negative symptoms consistent with schizophrenia. TVWB has admitted to hearing voices at night when in bed.
In terms of whether the condition was fully diagnosed, treated and stabilised Dr Valentine considered that a diagnosis had definitely been made, consistent with what she had previously said and was based on DSM-V references. Despite TVWB’s past treatment and his current involvement in a supported work environment, Dr Valentine considered that he continues to avoid social and recreational activities, has difficulty concentrating and thinking clearly and finds social conversations challenging. She concluded that it was unlikely that TVWB would be capable of working 15 hours in open employment within two years as working beyond 14 hours per week at CSA was difficult for him to sustain.
Dr Dianne Grocott
Dr Grocott provided a letter addressed to To Whom It May Concern and dated 1 March 2017. This was tendered to the Tribunal by ZLTD. The letter outlined the history of TVWB’s mental illness since 2011 and although ZLTD had consulted Dr Grocott in 2013, TVWB did not attend any appointments. Dr Grocott said she had spoken to TVWB briefly on 17 February 2017 when he was being seen by Dr Valentine and was not yet able to make a definitive diagnosis. She was confident she would achieve a psychiatric assessment and a trial of treatment in the near future. Despite the limited contact Dr Grocott provided an impairment rating in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) Table 5 – Mental Health Function, of 25 points.
In her evidence before the Tribunal the respondent’s mother ZLTD said that she had only obtained a referral to Dr Grocott from their general practitioner two weeks prior to the hearing and while neither she nor TVWB had recently seen Dr Grocott, Dr Valentine had discussed TVWB with Dr Grocott. Based on this information it would appear that the prescribing of Mirtazapine by Dr Grocott on 31 October 2013 had been at ZLTD’s request. Mirtazapine (Avanza) is an anti-depressant and is sometimes used to treat obsessive compulsive disorder.
Job Capacity Assessments
Job Capacity Assessments (JCAs) were performed on TVWB on three occasions and on each occasion the assessor was a registered psychologist. The first of these on 26 May 2011 recorded an onset of anxiety and depression in April 2008 but in the absence of any psychiatric report the condition was determined to be temporary and no impairment rating was assigned. The assessor had conversed with ZLTD regarding her son on several occasions but he did not attend.
On 9 November 2011 a face to face interview was conducted with the benefit of the report from the Eastern Mental Health Service from which TVWB had just been discharged with a firm diagnosis of schizophrenia. With certification by the psychiatric registrar at Maroondah Hospital, an impairment rating of 20 points was assigned under Table 6 – Psychiatric Impairment of the previous Impairment Tables and TVWB qualified for the disability support pension.
The last JCA was performed as a file assessment and recommendations were made on 27 April 2015. The medical report provided at that time by Dr Wong advised that the diagnosis was anxiety. This was clearly in contrast to the earlier diagnosis of schizophrenia. Further medical reports were requested but as none were forthcoming an impairment rating could not be provided as the condition was deemed not fully diagnosed, treated and stabilised and in fact there was an inconsistency in the diagnoses.
The notice of decision to cancel was issued on 24 April 2015 and the ARO affirmed this decision on 7 May 2015.
RELEVANT LEGISLATION
Section 63 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) empowers the Secretary to require a medical examination review at any time.
Section 80(1) empowers the Secretary to cancel a DSP and states:
80Cancellation or suspension determination
(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
The criteria for DSP provided in s 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act) which state:
94 Qualification for disability support pension
(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;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...
Section 94(3A) of the Act states that where a DSP is cancelled and notice was given under s 63(2) or s 63(4) the person who was receiving the DSP does not have to participate in a program of support in order to establish that they have a continuing inability to work. This applies to TVWB.
SUBMISSIONS
The Secretary provided a detailed Statement of Facts, Issues and Contentions addressing all facets of this matter.
Based on the Federal Court decision in Freeman v Secretary, Department of Social Services [1988] FCA 294 as applied on many occasions by the Tribunal, for example, in Re Shaer and Secretary, Department of Social Services [2015] AATA 1005, Re Malik and Secretary Department of Social Services [2015] AATA 649 and Re Saad and Secretary, Department of Social Services [2015] AATA 160 the Tribunal’s ambit of jurisdiction is limited to determining whether the decision to cancel TVWB’s DSP was correct. No further matter remains for the Tribunal’s consideration and the Tribunal cannot consider any subsequent changes to the medical conditions. The Secretary submitted that the relevant date at which TVWB’s qualification was to be established was 24 April 2015, which was the date of the determination to cancel TVWB’s DSP.
During the interval between TVWB qualifying for the DSP in 2011 and the date of the decision to cancel his DSP the Impairment Tables were replaced by new Tables with effect from 1 January 2012.
The Secretary submitted that TVWB satisfied s 94(1)(a) in that he had mental health issues that reduced his functional capacity.
Detailed consideration was given to whether TVWB satisfied s 94(1)(b) of the Act and the requirement that the condition be fully diagnosed, treated and stabilised and likely to persist for more than two years.
In relation to the diagnosis the Secretary contended that the original grant of the DSP was based on the diagnosis of the psychiatric unit at Maroondah Hospital, as reported by the registrar Dr Yeang, that TVWB had schizophrenia. In January 2015 TVWB’s general practitioner Dr Wong provided a diagnosis of anxiety. Dr Valentine has stated that TVWB’s diagnosis was agreed by Dr Yeang, Dr Wong and herself to be an anxiety condition specifically a social phobia, OCD and schizophrenia. This was stated to be a complex psychological condition. This particular diagnosis was accepted by the AAT at 1st Tier review.
It was brought to the Tribunal’s attention that Dr Robert Yewers, a consultant psychiatrist, had provided a second opinion regarding TVWB in January 2012, confirming the diagnosis of schizophrenia but not that of OCD.
The Secretary further contended that the diagnosis of a complex psychological condition is not a sufficient or exact diagnosis and has only been raised by Dr Valentine in late 2016.
In regards to the treatment of the condition, TVWB did receive appropriate treatment for schizophrenia but this was ceased on his mother’s initiation in April 2013. The file notes of Eastern Health, while acknowledging the request to reduce TVWB’s medication, indicated a gradual reduction of the medication by 5 mg per week.
Despite recommendations that psychiatric treatment be continued following TVWB’s discharge from the Eastern Health Mental Service the evidence provided to the Tribunal is that he has not seen a psychologist or psychiatrist again until after the cancellation of his DSP.
The Secretary submitted that there was no evidence before the Tribunal that TVWB’s psychiatric status, whatever it might be termed, had stabilised and in particular Dr Valentine had in October 2016 recommended that he be seen by a psychiatrist to determine if further treatment would be of benefit.
The Secretary also addressed the continuing inability to work requirement of s 94(1)(c) and advised that cancellation of DSP under s 63(2) or s 63(4) does not require active participation in a program of support. Work is defined in the Act as 15 hours per week on wages that are at or above the relevant minimum wage. Dr Valentine had provided the opinion that TVWB was unlikely to be capable of working 15 hours per week in open employment although there was evidence that he had been working part time for 14 hours per week with CSA since June 2015. The Secretary contended that TVWB may well be able to transit to 15 hours per week as there was no definitive evidence provided that he would be unable to transition to open employment if provided with assistance.
The Respondent
ZLTD did not make any formal submissions to the Tribunal.
TRIBUNAL’S DELIBERATIONS
The evidence before the Tribunal indicates that TVWB was on clinical criteria correctly diagnosed with schizophrenia in September/October 2011. Appropriate treatment was commenced and follow-up was provided until August 2013. It is clear that TVWB met all the criteria of s 94 at the time of his qualification for the DSP on 25 October 2011.
Since approximately April 2013 TVWB has ceased all treatment, both medication and attendance with a psychologist or psychiatrist, and has remained functionally incapacitated.
A medical assessment review was notified in accordance with the provisions of s 63 of the Administration Act and as required his treating doctor, Dr Wong provided the medical data. Dr Wong believed the current diagnosis to be an anxiety state. The treatment being provided by Dr Wong was cognitive behaviour therapy, described as being Christian orientated. In a period of 18 months Dr Wong saw TVWB on two occasions only. The other five consultations were with his mother ZLTD.
The JCA was conducted in the absence of the respondent with the assessor relying on the information provided by ZLTD.
TVWB has only returned to consultation and treatment with a clinical psychologist since April 2016, some 12 months after his DSP was cancelled. Despite the report received from Dr Dianne Grocott, she has not yet had a proper consultation with TVWB, the letter of referral having only been supplied two weeks before the hearing. Dr Grocott has provided a report following what she described as a brief conversation with TVWB in the presence of Dr Valentine in February 2017. The report confirms the diagnosis of a severe and incapacitating mental disorder.
Dr Valentine has diagnosed a complex psychological condition, specifically a combination of obsessive compulsive disorder, social phobia, positive and negative symptoms of schizophrenia as based on the history that she has obtained. The Tribunal notes that there have been no previous reports of obsessive or compulsive symptoms such as cleaning and washing compulsions, excessive showering, hand washing, tooth brushing, grooming etc. Dr Valentine states that TVWB feels he has to be perfect and this makes it extremely difficult for him to function in his daily life. Such descriptions were not part of the medical records of the Eastern Mental Health Service over the period of his six weeks of inpatient treatment nor did his mother ZLTD give any such evidence before the Tribunal. These features or symptoms may of course be of recent onset but were certainly not reported at the time of cancellation of his DSP.
Given that Dr Grocott has not seen TVWB on referral from his general practitioner the Tribunal cannot ascribe much weight to her report of 1 March 2017. It is noted that she had prescribed an anti-depressant in 2013 when she saw the respondent’s mother but she had not seen the respondent.
While Dr Valentine has referred to DSM-V in relation to the various criteria to make the diagnosis she has reached she has not stated which of the symptoms and signs that she observed fit the criteria delineated in DSM-V.
The Tribunal accepts that TVWB satisfies s 94(1)(a) of the Act and did so at the time of cancellation of his DSP. However, he did not satisfy s 94(1)(b) as of 24 April 2015 due to the lack of a definitive diagnosis, termed anxiety by the general practitioner, and the absence of any treatment other than cognitive behaviour therapy provided by Dr Wong. The evidence does not support a conclusion that the condition was stabilised. The Tribunal finds that there is no evidence to support a conclusion that TVWB’s mental disorder was fully diagnosed and treated as of 24 April 2015. An impairment rating could therefore not be attracted.
As the Tribunal has determined that TVWB does not satisfy s 94(1)(b) of the Act, it is not necessary to consider whether he satisfies the requirements of s 94(1)(c) of the Act. It is noted that TVWB is working 14 hours per week at a rate of $6.00 per hour, with CSA. He seems to enjoy the work and has attended regularly but has not achieved the appropriate CSA level to advance to employment in the open market.
The Tribunal affirms the decision of 24 April 2015 to cancel TVWB’s DSP.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
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Associate
Dated: 19 June 2017
Date of hearing: 23 March 2017 Advocate for the Applicant: Ms A Bramley Solicitors for the Applicant: Department of Human Services,
Freedom of Information and Litigation BranchAdvocate for the Respondent: ZLTD
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