Warwick and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1750
•16 October 2017
Warwick and Secretary, Department of Social Services (Social services second review) [2017] AATA 1750 (16 October 2017)
Division:GENERAL DIVISION
File Number: 2016/5130
Re:Christopher Warwick
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member AC Cotter
Date:16 October 2017
Place:Brisbane
The Tribunal affirms the decision under review.
................................[Sgd]......................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the Impairment Tables as at date of cancellation – whether conditions were fully diagnosed, treated and stabilised – whether reasonable treatment available – decision under review affirmed
LEGISLATION
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) Schedule 2, part 1, s 13
Social Security Act 1991 (Cth) ss 27, 94
Social Security (Administration) Act 1999 (Cth) ss 63, 80Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6, 8
CASES
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
McDonald v Director-General of Social Security (1984) 6 ALD 6
Natalizi and Secretary, Department of Social Services [2014] AATA 803Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member A C Cotter
16 October 2017
INTRODUCTION
Mr Christopher Warwick was granted Disability Support Pension (“DSP”) in March 2004.
Following a review in March and April 2016, the Department of Human Services (“Department”) determined that Mr Warwick was no longer eligible for DSP, as he had been assessed as having an impairment rating of less than 20 points under the Impairment Tables. As a result, his DSP was cancelled.
Mr Warwick sought a review of that decision by an Authorised Review Officer (“ARO”). It was unsuccessful. His subsequent request for a review of that decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal was similarly unsuccessful, with the SSCSD affirming the ARO’s decision.
Still dissatisfied with the outcome, Mr Warwick has applied to the General Division of this Tribunal for a second tier review of the SSCSD’s decision.
For the reasons set out below, I consider that the SSCSD’s decision was correct and should be affirmed.
BACKGROUND
Mr Warwick was granted DSP from 26 March 2004 in respect of his learning disability, anxiety depression/psychiatric impairment and sleep apnoea.[1]
[1] Exhibit 1, T Documents, T 2, page 3, Social Services & Child Support Division decision and reasons for decision dated 9 September 2016, [2]; and T 16, pages 84-85, Disability Support Pension Record of Decision, dated 6 April 2004.
On 1 March 2016, the Department issued a Medical Report – Disability Support Pension Review form to be completed by Mr Warwick and his treating doctor respectively. In his section of the form completed on 21 March 2016, Mr Warwick listed depression and asthma as his disabilities or illnesses.[2] The section completed the same day by his general practitioner, Dr Graham Cruickshank, nominated only depression as the condition which impacted on Mr Warwick’s ability to function. Dr Cruickshank also noted that
Mr Warwick suffered from asthma “intermittently”, although that condition was said to be generally well managed and caused minimal or limited impact on Mr Warwick’s ability to function.[3]
[2] Exhibit 1, T Documents, T 19, pages 98-100, Mr Warwick’s Medical Report – Disability Support Pension Review form, dated 21 March 2016.
[3] Exhibit 1, T Documents, T 20, pages 101-111, Dr Graham Cruickshank’s Medical Report – Disability Support Pension Review form, dated 21 March 2016.
Following receipt of the completed review forms, a face to face Job Capacity Assessment was conducted by a Job Capacity Assessor (“JCA”), a registered psychologist. The JCA recommended that a total impairment rating of zero be assigned in respect of
Mr Warwick’s impairments. In forming that view, the JCA noted that the medical evidence and Mr Warwick’s own reports indicated that there had been no treatment for any condition since 2006; the depression/anxiety and sleep apnoea remained active and impairing on a daily basis, but were not currently being treated. As such, no impairment rating could be assigned in respect of them. In respect of the intellectual disability condition, the JCA expressed some doubt about the validity of the IQ test results from 2004. That was because of the possible impact of the psychiatric condition and untreated sleep apnoea on Mr Warwick’s test taking ability at the time. Until those conditions had been treated and stabilised enough to minimise their impact on test taking, the JCA believed that updated cognitive testing could not be undertaken and the condition could not be fully diagnosed. With respect to asthma, zero points were assigned in light of the indication that the condition had no or limited impact on function.[4] The JCA assessed
Mr Warwick as having a temporary work capacity of eight to 14 hours per week until 1 October 2016, and a baseline work capacity of 15 to 22 hours per week. He was assessed as having a work capacity of 15 to 22 hours per week within two years with mainstream intervention.[5]
[4] Exhibit 1, T Documents, T 23, page 118, Job Capacity Assessment Report, dated 27 April 2016.
[5] Ibid, page 119.
On 28 April 2016, the Department wrote to Mr Warwick, informing him that he was not eligible for DSP as he had been assessed as having an impairment rating of less than 20 points.[6]
[6] Exhibit 1, T Documents, T 24, pages 121-122, Department’s letter to Mr Warwick dated 28 April 2016.
Mr Warwick requested a review of that decision by an ARO. The ARO found that the conditions of depression, sleep apnoea and intellectual disability were not permanent conditions which were fully diagnosed, treated and stabilised. While the asthma condition was accepted as fully diagnosed, treated and stabilised, the ARO noted that it was generally well managed and caused limited or minimal impact on Mr Warwick’s ability to function. Zero points were therefore assigned in respect of that condition. As a result, the ARO affirmed the original decision.[7]
[7] Exhibit 1, T Documents, T 33, pages 139-142, Authorised Review Officer’s letter to Mr Warwick dated 25 June 2016.
A first tier review of the ARO’s decision by the SSCSD was equally unsuccessful, with the decision to cancel Mr Warwick’s DSP being affirmed.[8]
[8] Exhibit 1, T Documents, T 2, pages 2-7, Social Services & Child Support Division decision and reasons for decision dated 9 September 2016.
Mr Warwick now seeks a review of the SSCSD’s decision by the General Division of the Tribunal.
THE LEGISLATIVE FRAMEWORK
Under s 80(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[9] In this case, that is 28 April 2016. It is irrelevant that a person may later again fulfil the requirements for a grant.[10]
[9] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[10] See Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674.
Section 94 of the Social Security Act 1991 (Cth) (“SS Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.
The documents sent to Mr Warwick relating to the review of his eligibility for DSP constituted a notice under s 63(2) of the Administration Act.[11] Under s 27(3) of the SS Act, if a person is receiving DSP and receives a notice under s 63(2) of the Administration Act, the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[12] At that time (1 March 2016), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), whereas Mr Warwick’s original grant of DSP had been assessed under different requirements.
[11] Exhibit 1, T Documents, T 19, page 97, Medical Report – Disability Support Pension Review form dated 1 March 2016.
[12] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803 at [3].
The Impairment Tables under the Determination are function based, rather than diagnostic based,[13] and describe functional activities, abilities, symptoms and limitations.[14] They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.[15]
[13] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2)(b).
[14] Ibid, s 5(2)(c).
[15] Ibid, s 5(2)(d).
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[16] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[17]
[16] Ibid, s 6(3).
[17] See ibid, s 6(4).
The following factors are to be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[18]
[18] See ibid, s 6(5).
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 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.[19]
[19] Ibid, s 6(6).
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[20]
[20] See ibid, s 6(7).
The presence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[21]
[21] See ibid, s 6(8).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[22]
[22] See ibid, s 8(1).
ISSUES FOR THE TRIBUNAL
The central issue for my determination is whether, at the date of cancellation (28 April 2016), Mr Warwick was qualified for DSP. That in turn leads to a consideration of each of the requirements in s 94(1) of the SS Act.
The Secretary accepts that, as at the date of cancellation, Mr Warwick suffered from sleep apnoea, a mental health condition, asthma and an intellectual disability.[23] Having regard to the material before me, I believe that is an appropriate concession to make. Consequently, there is no dispute that Mr Warwick satisfied the first of the requirements in s 94(1) of the SS Act, namely that at the relevant time he had physical, intellectual and psychiatric impairments.
[23] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 23 May 2017, [31].
It is also accepted by the Secretary that Mr Warwick has a continuing inability to work for the purpose of s 94(1)(c)(i) of the SS Act.[24] Again, I consider that concession to be reasonable and appropriate, having regard to the relevant requirement which existed at the time of the original grant, the terms of the relevant amending legislation which preserved that requirement for pre-1 July 2006 recipients like Mr Warwick,[25] and the JCA’s most recent assessment of work capacity.[26] I therefore accept that Mr Warwick would satisfy the third of the requirements for DSP, relating to continuing inability to work.
[24] Ibid, [33] and [61].
[25] See ibid, [62]-[63] and Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth), Schedule 2, part 1, s 13.
[26] See Exhibit 1, T Documents, T 23, page 119, Job Capacity Assessment Report dated 27 April 2016.
Consequently, the only issue that remains for my consideration is whether, at the relevant time, Mr Warwick’s impairments attracted a total of 20 points or more under the Impairment Tables made under the Determination. In particular, that raises the question of whether each of his conditions were, at the date of cancellation, fully diagnosed, treated and stabilised, as those terms are understood under the Rules for applying the Impairment Tables.
CONSIDERATION
Having identified the issues which remain outstanding, I turn to consider what, if any, impairment points should be assigned in respect of each of the conditions from which
Mr Warwick suffers.
Depression and anxiety
There is no doubt that Mr Warwick has suffered from a mental health condition for many years. In a December 2003 report, his general practitioner, Dr Cruickshank, confirmed that Mr Warwick had been diagnosed in September 2000 as suffering from anxiety depression dating back to 1996 (following the deaths of his grandfather and father).[27] Subsequent reports confirmed Mr Warwick to be suffering from a mental health condition.[28]
[27] Exhibit 1, T Documents, T 10, page 46, Treating Doctor’s Report of Dr Graham Cruickshank dated 24 December 2003.
[28] See, for example, Exhibit 1, T Documents, Dr Cruickshank’s Treating Doctor’s Report dated 27 February 2004 (T 13, pages 61-64); Dr Cruickshank’s Employment Assistance Professional’s Report dated 24 August 2006 (T 17, pages 86-90); and Dr Cruickshank’s Medical Report – Disability Support Pension Review form dated 21 March 2016 (T 20, pages 103-105).
What is in dispute, however, is whether the condition was fully treated and stabilised as at the date of cancellation.
Dr Cruickshank’s report of 24 December 2003 stated that Mr Warwick was seen by a psychiatrist at Ipswich Mental Health in April 2003, but no report was sent concerning that consultation.[29] Another report prepared by Dr Cruickshank a month earlier recorded that there had been no response to medication and that psychiatry was suggested;
Mr Warwick needed to resolve his grief.[30] Reading Dr Cruickshank’s two reports together, it appears that the antidepressant Cipramil was trialled, but without response.[31] As a result, the December report stated that there was no current treatment for the condition.[32] That remained the situation in March 2004, although further psychiatric treatment was proposed.[33] By August 2006, Mr Warwick was receiving counselling sessions from a private psychologist.[34]
[29] Exhibit 1, T Documents, T 10, page 46, Treating Doctor’s Report of Dr Graham Cruickshank dated 24 December 2003.
[30] Exhibit 1, T Documents, T 7, page 31, Dr Cruickshank’s Employment Assistance – Professional’s Report dated 14 November 2003.
[31] See ibid and Exhibit 1, T Documents, T 10, page 47, Treating Doctor’s Report of Dr Graham Cruickshank dated 24 December 2003.
[32] Exhibit 1, T Documents, T 10, page 47, Treating Doctor’s Report of Dr Graham Cruickshank dated 24 December 2003.
[33] Exhibit 1, T Documents, T 13, page 62, Treating Doctor’s Report of Dr Graham Cruickshank dated 1 March 2004.
[34] Exhibit 1, T Documents, T 17, pages 87-89, Employment Assistance – Professional’s Report prepared by Dr Graham Cruickshank dated 24 August 2006.
Following those reports, there is a gap of some 10 years before Dr Cruickshank’s next report of 21 March 2016, prepared in response to the DSP review. It listed counselling as the current treatment, it having commenced just over a fortnight earlier, on
5 March 2016.[35] Mr Warwick told me at the hearing that his mental health condition had started to deteriorate from December 2015,[36] and that Dr Cruickshank had provided the counselling referred to in his report.[37] The report stated that Mr Warwick had been treated with the antidepressant, Efexor, for about a year from March 2006, and that he had attended consultations with both a psychologist and a psychiatrist, also in 2006. Future/planned treatment was described simply as “continue to monitor”.[38]
[35] Exhibit 1, T Documents, T 20, page 103, Medical Report – Disability Support Pension Review form dated 21 March 2016.
[36] Extract of transcript of proceedings dated 14 June 2017, page 9, lines 6-9.
[37] Ibid, page 13, lines 41-47.
[38] Exhibit 1, T Documents, T 20, page 104, Medical Report – Disability Support Pension Review form by Dr Graham Cruickshank dated 21 March 2016.
The JCA asked Mr Warwick about the gap in treatment. He said that he had “intolerable” side effects from Efexor and changed to Cipramil, but was only able to stay on that medication for six months due to side effects. He said that he saw a psychologist on one occasion only as he found talking about his grief distressing and could not sleep for two weeks after the appointment. Mr Warwick told the JCA that he generally avoided going to doctors and that Dr Cruickshank was not happy with his lack of attendance for years and wanted to see him more regularly.[39]
[39] Exhibit 1, T Documents, T 23, page 115, Job Capacity Assessment Report dated 27 April 2016,
Mr Warwick told me that he attempted suicide on ANZAC Day, 25 April 2016.[40] He saw
Dr Clive Tucker (from the same clinic as Dr Cruickshank) on 28 April 2016 and was referred to a psychologist, Mr Warren Martin.[41] It appears that Dr Tucker also completed a Mental Health Plan for Mr Warwick.[42]
[40] Extract of transcript of proceedings dated 14 June 2017, page 9, lines 8-9.
[41] Exhibit 1, T Documents, T 26, page 128 report of Mr Warren Martin dated 23 May 2016.
[42] Exhibit 1, T Documents, T 37, page 147, report of Dr Graham Cruickshank dated 28 August 2016.
Mr Martin first saw Mr Warwick on 5 May 2016. Tests administered at the time placed
Mr Warwick in the severe range for depression and the high moderate range for anxiety. As Mr Martin did not consider Mr Warwick’s condition stable or stationary, he recommended that he return to Dr Cruickshank for a referral to a psychiatrist for assessment and advice regarding medication.[43]
[43] Exhibit 1, T Documents, T 26, page 128, report of Mr Warren Martin dated 23 May 2016.
Dr Cruickshank subsequently referred Mr Warwick to a psychiatrist “for further management of agarophobia (sic), depression and unresolved grief related to fathers (sic) death”. In the referral, he noted that Mr Warwick’s current treatment was Efexor-XR SR capsule 75mg twice per day.[44]
[44] Exhibit 1, T Documents, T 29, page 131, letter from Dr Graham Cruickshank to Dr Jataveda Mahapatra dated 31 May 2016.
The first consultation with the psychiatrist, Dr Ambica P Jha, occurred on 9 June 2016. At that time, Dr Jha formed the opinion that Mr Warwick suffered from depression with dependent personality traits. An increase in dosage (to 225mg in the morning) of the antidepressant, Venlafaxine,[45] was recommended. The doctor proposed awaiting the outcome of the CPAP machine for treating sleep apnoea to see if it improved
Mr Warwick’s attention and concentration. Otherwise he thought a stimulant could be trialled, which would not only improve Mr Warwick’s concentration but also might help with weight loss and day time somnolescence. Dr Jha concluded that Mr Warwick would “benefit from further counselling session and gradual introduction to work which will help him regain his confidence and worth”. A review was proposed in five weeks’ time.[46]
[45] I understand that Venlaflaxine is the active ingredient of Efexor, with which Mr Warwick was already being treated.
[46] Exhibit 1, T Documents, T 31, page 135, medical report of Dr Ambica P Jha dated 10 June 2016.
In his report dated 28 August 2016, Dr Cruickshank noted that Dr Jha had diagnosed
Mr Warwick as suffering from adult ADHD (which I understand is attention deficit hyperactivity disorder) and had commenced him on the drug Dexamphetamine. According to Dr Cruickshank’s report, Dr Jha had also commenced Mr Warwick on the drugs Pristiq 100mg and Avanza 15mg to further treat his depression.[47]
[47] Exhibit 1, T Documents, T 37, page 147, medical report of Dr Graham Cruickshank dated 28 August 2016.
In an update report to Dr Cruickshank a few days later, on 1 September 2016, Dr Jha confirmed that Mr Warwick was suffering from “complicated grief with depression and anxiety in the background of Attention Deficit Disorder”. He described Mr Warwick’s then medication as Venlafaxine XR 300mg in the morning after breakfast; Mirtazapine 45mg at night; and Dexamphetamine 10mg in the morning and 10mg in the noon. He added that the current symptoms were being exacerbated by Mr Warwick’s constant worry about the review of his DSP. He expected him to recover once the review was completed.[48]
[48] Exhibit 1, T Documents, T 38, page 149, medical report of Dr Ambica P Jha dated 1 September 2016.
On 4 April 2017, Dr Jha provided a further report for the purpose of the present hearing. In it, he stated that he had seen Mr Warwick 13 times, commencing on 9 June 2016. On his further assessment, he found Mr Warwick to be suffering from “Depression with Agoraphobia with Asperger’s syndrome with Attention deficit disorder”. He considered those conditions to be permanent and unlikely to improve with further treatment. He did say, however, that Mr Warwick would benefit from further counselling sessions and gradual introduction to work, which would help him regain his confidence and worth. He noted that Mr Warwick’s current medications were Ritalin 20 mg (which I understand to be a stimulant designed to treat ADHD) in the morning and noon, and Efexor XR 300 mg.
Dr Jha concluded that Mr Warwick’s condition was stable and stationary and that he was well stabilised on his medication. He added that Mr Warwick was stable and stationary at the time his DSP was cancelled.[49]
[49] Exhibit 2, medical report of Dr Ambica Prasad Jha dated 4 April 2017.
For the Secretary, it was contended that Mr Warwick’s mental health condition, while long term, was not fully treated and stabilised as at the date of cancellation. It was said that he had sought no treatment for his condition since 2006, and indeed, did not engage in any treatment until his DSP was cancelled on 28 April 2016.[50] Mr Warwick’s counsel relied on Dr Jha’s most recent report of April 2017, saying that the diagnosis was stable, which is consistent with the fact that the condition did not resolve through previous treatment and had continued since its inception.[51]
[50] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 23 May 2017, [50]-[52].
[51] Exhibit 5, Applicant’s submissions dated 13 June 2017, [31].
Having regard to the brief history I have outlined above, I do not believe that Mr Warwick’s mental health condition could be said to have been fully treated and stabilised at the date of cancellation. I say that for several reasons.
First, Mr Warwick’s own evidence at the hearing was that his condition had been deteriorating since December 2015. He required counselling by Dr Cruickshank in March 2016, but that was apparently insufficient to forestall his suicide attempt on 25 April, some three days before the date of cancellation. Indeed, on the day of cancellation, Mr Warwick consulted Dr Tucker who prepared a Mental Health Care Plan. It was presumably pursuant to that plan that Mr Warwick was referred to the psychologist, Mr Martin. Objective psychological tests administered by Mr Martin confirmed that Mr Warwick was in the severe range for depression and the high moderate range for anxiety. On that basis, a referral to a psychiatrist for assessment and advice on medication was recommended. In short, after a decade long gap and (coincidentally) on the day of cancellation,
Mr Warwick finally sought the comprehensive treatment that he needed. In those circumstances, I do not believe it could be said that his condition was fully treated and stabilised at the relevant time.
Second, it is apparent, from the reports of Dr Jha and what was reported by
Dr Cruickshank, that in the weeks following the date of cancellation, Dr Jha was trialling a variety of different medications and dosages. Other treatment, in the form of counselling, was also recommended. Mr Warwick told the SSCSD that Dr Jha’s treatment helped him.[52] He reiterated to me at the hearing that he had improved overall.[53] That is a strong indication that as at the date of cancellation, necessary or beneficial steps in Mr Warwick’s treatment remained to be undertaken. For that reason, too, I do not consider that
Mr Warwick’s condition could be said to have been fully treated and stabilised at the relevant time.
[52] Exhibit 1, T Documents, T 2, page 6, Social Services & Child Support Division decision and reasons for decision dated 9 September 2016, [25].
[53] Extract of transcript of proceedings dated 14 June 2017, page 12, line 36.
Third, Dr Jha’s report of 4 April 2017 not only came almost a year after the date of cancellation, but also purported to express an opinion as to Mr Warwick’s condition at a time when Dr Jha had not even seen him. Further, it was silent on Dr Jha’s reasons for concluding that Mr Warwick’s condition was “stable and stationary” at the relevant time. Nor did it attempt to reconcile that conclusion with the views Dr Jha had earlier expressed as to prognosis, and the treatment he had recommended, during the intervening period. For those reasons, I am inclined to discount Dr Jha’s report of 4 April 2017. By contrast, Dr Tucker saw Mr Warwick on the day of cancellation and apparently felt the need to prepare a Mental Health Care Plan. The psychologist, Mr Martin, saw Mr Warwick a week later and, armed with objective psychological testing, recommended referral to a psychiatrist. I favour those contemporaneous, or relatively contemporaneous, assessments over Dr Jha’s opinion, expressed almost a year later and in relation to a time when he had not even seen Mr Warwick.
It follows from what I have said that I do not consider that Mr Warwick’s condition was fully treated and stabilised at the date of cancellation. Accordingly, I do not believe that it attracts any impairment rating under the Impairment Tables.
Sleep apnoea
It is not in dispute that Mr Warwick suffered from sleep apnoea at the date of cancellation.[54] The diagnosis was confirmed in reports by Dr Cruickshank as early as 2003. In particular, his December 2003 report stated that, following sleep studies conducted by Snore Australia, Mr Warwick was diagnosed in July 2003 as suffering from sleep apnoea.[55]
[54] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 23 May 2017, [38].
[55] Exhibit 1, T Documents, T 10, page 48, Treating doctor’s report by Dr Graham Cruickshank dated 24 December 2003. See also Exhibit 1, T Documents, T 7, page 31, Employment Assistance – Professional’s Report of Dr Graham Cruickshank dated 14 November 2003.
It is equally uncontroversial that at about the time of the diagnosis, Mr Warwick was advised that he would need a continuous positive airways pressure (CPAP) machine and further assessment.[56] However, at the hearing he told me that he was still to receive the machine, despite the passage of some 13, or more, years.[57]
[56] See Exhibit 1, T Documents, T 9, page 43, Special Needs Assessment Interview dated 2 December 2003.
[57] Extract of transcript of proceedings dated 14 June 2017, page 16, lines 42-46.
The Secretary contended that the condition was not fully treated and stabilised as at the date of cancellation.[58] Put simply, it was said that Mr Warwick had only engaged in CPAP therapy after the date of cancellation, not having received any treatment for the condition until relatively recently, in 2016.[59] Mr Warwick’s counsel disputed that the condition was not fully treated and stabilised. He submitted that, given the required cost of the CPAP machine and accessories if Mr Warwick were to obtain them privately, the treatment would not be considered “reasonable” for the purposes of the Rules for applying the Impairment Tables.[60]
[58] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 23 May 2017, [38].
[59] Ibid, [44].
[60] Exhibit 5, Applicant’s submissions dated 13 June 2017, [26].
Mr Warwick’s evidence
As mentioned earlier, Mr Warwick gave evidence at the hearing before me. In view of the significant delay in his receiving the relevant treatment, it is worthwhile outlining that evidence in some detail.
Mr Warwick said that he had been dealing with a company, CPAP Direct, concerning the possible purchase of a CPAP machine, the ResMed S9 VPAP Adapt. He was shown a current price list, from which he identified the recommended model, on sale for $3,475.00 (reduced from the original retail price of $4,273.00). The required accessories were also on sale: the mask for $219.00 (reduced from $299.00) and the humidifier for $289.00 (down from $349.00).[61] Mr Warwick told me that he had been offered a deal to purchase everything, including the accessories, for just under $2,900.00.[62] He could not afford to pay that price himself. Nor could he obtain a loan for the purchase due to his bad credit rating.[63] Asked about the prospect of obtaining a loan from family or friends, Mr Warwick said that his mother and her partner had recently bought a house and could not assist him.[64] His only sibling, a brother, is in prison.[65]
[61] Extract of transcript of proceedings dated 14 June 2017, page 3, lines 11-25; and Exhibit 4, CPAP Direct price list dated 14 June 2017.
[62] Extract of transcript of proceedings dated 14 June 2017, page 3, lines 27-41.
[63] Ibid, page 3, lines 29-33 and page 7, lines 34-37.
[64] Ibid, page 8, lines 5-8.
[65] Ibid, page 11, lines 19-24.
Given his difficulties in purchasing the machine outright, Mr Warwick was asked to explain a Queensland Health (“QH”) scheme for the supply of machines on permanent loan. He said that under the scheme, a patient was placed on a waiting list for a machine. When a machine was available for the patient, they were required to pay for the mask and humidifier as well as a rental cost for the first two months, after which time they would keep the machine “until it plays up and then they replace it with another one”.[66] Mr Warwick confirmed what he told the SSCSD hearing, that the rental cost was $85.00 per month and that he could not afford that amount.[67] He said that, with all his other bills, he probably had about $30.00 “to (his) name to even afford for a lifestyle living”.[68] He reiterated what he told the SSCSD, that he planned to borrow money from his mother. However, she did not have the money to assist at that stage.[69] He spoke to
Dr Cruickshank about other options, but he responded that the only other option was to buy a machine outright.[70]
[66] Ibid, page 2, lines 25-39.
[67] Ibid, page 6, lines 41-45 and page 7, lines 1-8.
[68] Ibid, page 7, lines 8-11.
[69] Ibid, page 7, lines 1-6.
[70] Ibid, page 7, lines 13-15.
Mr Warwick told me that he was on the QH waiting list, but had not received a machine. He said that he first phoned the Princess Alexandra Hospital (where the relevant Sleep Disorder Centre was situated) in about 2004. He described the scheme as follows:
…if your name comes up you’re lucky to actually get one and you [sic.] just put in like a pool and it just keeps – it keeps going around and around until your name comes up –comes up.[71]
Later in his evidence, Mr Warwick told me that the selection from the waiting list was not according to one’s order on the list, or priority; the names were drawn at random.[72]
[71] Ibid, page 5, lines 21-31.
[72] Ibid, page 15, lines 31-38.
He again followed up QH in 2006. He has not heard back since.[73] When asked if he ceased his efforts in 2006, he said that he did not give up. He continued looking at other avenues to purchase a machine but it was hard to save money on the pension. He kept phoning QH but it was hard to get an answer out of them at the time. In response to the question when he stopped following up QH, he said:
When they wouldn’t respond back to me, that’s when I pretty much stopped. I don’t – I can’t remember when I didn’t stop.
When asked what he meant by QH ceasing to get back to him, he said that he was “getting passed from one person to another”.[74]
[73] Ibid, pages 5, lines 45-48 and 6, lines 1-5.
[74] Ibid, page 6, lines 7-25.
In response to my question as to whether he received anything in writing from QH,
Mr Warwick said that the only communication he had was by phone or in person when his breathing was checked “and all that sort of stuff”, and when QH sent a report back to his doctor. He told me he had no regular periodic reviews and was worried that he was “lost in the system”, like half of those in the system.[75] Later in his evidence, Mr Warwick stated that he had never received anything, either verbally or in writing, to the effect that he had been taken off the list; for all he knew, he “could be still on it at this stage”.[76]
[75] Ibid, page 16, lines 4-16.
[76] Ibid, page 16, lines 30-40.
When asked whether he had taken any other steps between 2004 and the present to seek treatment, Mr Warwick responded:
Other than like going to my normal GP and seeing what he could do for me in that period of time as well. [77]
[77] Ibid, page 7, lines 26-32.
The documented history
That is a convenient point to refer back to Dr Cruickshank’s reports. His treating doctor’s report of 1 March 2004 nominated severe obstructive sleep apnoea as “condition 1”, being the condition having the most impact on Mr Warwick’s ability to function. It described
Mr Warwick’s then current symptoms as daytime sleepiness and snoring. Current treatment was shown as “nil available at present”. As for future/planned treatment, the report noted “waiting for CPAP machine”.[78] A Work Capacity Assessment report prepared by a Centrelink psychologist at about the same time likewise recorded that Mr Warwick was awaiting a CPAP machine.[79] The author described the effect of sleep apnoea on
Mr Warwick’s capacity to work as:
Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of an activity. Symptoms cause loss of efficiency in daily activities but minimal interference performing work-related tasks.[80]
[78] Exhibit 1, T Documents, T 13, pages 59-60, Treating doctor’s report of Dr Graham Cruickshank dated 1 March 2004.
[79] Exhibit 1, T Documents, T 14, page 69, Work Capacity Assessment report dated 21 March 2004.
[80] Ibid, page 73.
Dr Cruickshank prepared another report in August 2006, in which he again noted that
Mr Warwick was awaiting a CPAP machine.[81] A Job Capacity Assessment Report the following month also noted that Mr Warwick was on the waiting list for a CPAP machine. He was not on any medication. Mr Warwick told the assessor that he usually went to sleep at 10:30/11:00pm and woke at 6:00am not feeling tired. He added that the condition did not affect his ability to complete self-care activities or the activities of daily living.[82]
[81] Exhibit 1, T Documents, T 17, page 87, Employment Assistance - Professional’s Report of Dr Graham Cruickshank dated 24 August 2006.
[82] Exhibit 1, T Documents, T 18, page 95, Job Capacity Assessment Report dated 20 September 2006.
At that point, the paper trail is suspended for almost exactly 10 years until the next set of documents, being the forms completed by Mr Warwick and Dr Cruickshank in March 2016 for the purpose of the DSP review.
Significantly, in his DSP review report of 21 March 2016, Dr Cruickshank made no reference at all to Mr Warwick’s sleep apnoea.[83] Nor did Mr Warwick make any such reference in the form completed by him on the same date.[84]
[83] Exhibit 1, T Documents, T 20, pages 101-111, Medical Report – Disability Support Pension Review form by Dr Graham Cruickshank dated 21 March 2016.
[84] Exhibit 1, T Documents, T 19, pages 98-100, Medical Report – Disability Support Pension Review form by Mr Warwick dated 21 March 2016.
However, on 25 April 2016, Dr Cruickshank referred Mr Warwick to Snore Australia for an assessment of obstructive sleep apnoea.[85] In his subsequent report of May 2016,
Dr Sean Tolhurst of Snore Australia recommended CPAP therapy as being “the most suitable treatment option” and that Mr Warwick should undertake an evaluation study to introduce him to the therapy.[86] The study was conducted on 3 June 2016[87] and a script letter was sent to Mr Warwick two weeks later.[88]
[85] Exhibit 1, T Documents, T 22, page 113, Sleep Study Referral by Dr Graham Cruickshank dated 25 April 2016.
[86] Exhibit 1, T Documents, T 25, page 123, letter from Snore Australia to Mr Warwick, undated.
[87]See Exhibit 1, T Documents, T 30, pages 132-134, CPAP Titration Polysomnography dated 3 June 2016.
[88] Exhibit 1, T Documents, T 32, pages 137-138, Snore Australia letter to Mr Warwick dated 17 June 2016, together with CPAP Script.
The primary issue
Considering the history outlined above, there is no dispute between the parties on a number of key points: that Mr Warwick’s sleep apnoea was diagnosed in about 2003; that the condition existed at the date of cancellation; that Mr Warwick was recommended CPAP treatment at about the time of diagnosis; that he did not receive that relevant treatment in the intervening 13 years; and that he was referred to Snore Australia for assessment of obstructive sleep apnoea on 25 April 2016, three days before the date of cancellation.
As mentioned earlier, the primary issue in dispute is whether Mr Warwick’s condition was fully treated and stabilised as at the date of cancellation. Central to that consideration is whether the CPAP therapy was “reasonable treatment” (as that expression is understood in the Rules for applying the Impairment Tables) and in particular, whether it was both available and at reasonable cost.
Further evidence
Some aspects of Mr Warwick’s evidence recounted above, concerning the availability and cost of CPAP machines, was led for the first time at the hearing before me. With the agreement of Mr Warwick’s counsel, I therefore made directions at the conclusion of the hearing, affording the Secretary’s representative time within which to provide supplementary written submissions limited to the availability and reasonableness of CPAP therapy for Mr Warwick’s sleep apnoea.
The Secretary’s supplementary submissions were received on 5 July 2017, together with a witness statement of Ms Michelle Brazier of the Department. The statement recorded that Ms Brazier had spoken with an (unidentified) officer from the QH Sleep Disorders Program (“Program”), who advised that Mr Warwick was known to the Program and that they were awaiting a response from him to progress his participation. The officer added that a place was available in the Program and that Mr Warwick would be able to access a hired machine within a short period of time once he contacted them.[89] Ms Brazier went on to state that, pursuant to s 196 of the Administration Act, she had caused an information notice to be issued to the Program at the Princess Alexandra Hospital (“Information Notice”); that no written response had yet been received; and that the return date for the notice was 13 July.[90]
[89] Witness statement of Michelle Brazier dated 5 July 2017, [3].
[90] Ibid, [2] and [4].
Although my directions at the conclusion of the hearing did not expressly refer to the prospect of further evidence being led, I indicated to the parties that I was nevertheless willing to consider further evidence on the issue concerning the availability and reasonableness of CPAP therapy for Mr Warwick’s sleep apnoea. That was on the basis that:
(a)it appeared, on the face of Ms Brazier’s statement, that there were reasonable prospects that the Information Notice would elicit further information material to the issue;
(b)in the circumstances and having regard to directions made prior to the hearing concerning the timing of the Applicant’s provision of information to the Tribunal and the Secretary,[91] it would be unfair and unreasonable to deprive the Secretary of the opportunity to lead evidence in response to Mr Warwick’s evidence on the issue given at the hearing; and
(c)no prejudice or injustice would be caused to Mr Warwick because he would be afforded an opportunity to respond, and to make submissions as to the relevance of any additional evidence led by the Secretary and the weight which should be attached to it.[92]
[91] See directions of Conference Registrar Mitchell dated 29 March 2017.
[92] See Brisbane Registry’s email to the parties dated 7 July 2017.
The Program subsequently provided the information in response to the Information Notice.
The Secretary’s evidence and supplementary submissions on the issue of availability and reasonableness of CPAP therapy for Mr Warwick’s sleep apnoea can be summarised as follows:-
(a)The ResMed S9 VPAP Adapt model which Mr Warwick priced and to which he referred in his evidence is reported as having specific technology “designed to stabilise the ventilation of adult patients exhibiting central breathing disorders such as Cheyne-Stokes respiration, central sleep apnea (sic.), complex sleep apnea (sic.) and mixed apnea (sic.) with or without upper airway obstruction.” [93] However, the CPAP script which Mr Warwick received does not refer to his specific needs for that particular model.[94]
(b)Mr Warwick’s script prescribed a fixed-pressure machine, preferably with a humidifier.[95] A search of various providers indicated a much lower purchase cost than that mentioned by Mr Warwick in his evidence - less than $1,050.00 to $1,660.00 for a machine that matches his script.[96]
(c)One supplier, CPAP Australia Pty Ltd, also offers a rental service, as well as a “rent-to-buy” plan. A fully refurbished ResMed S9 Autoset with humidifier, mask and other accessories is available for a $180.00 initial payment and $60.00 per month, with the customer owning it outright after 12 months. It is submitted by the Secretary that there is no evidence to verify the contention that Mr Warwick cannot meet the cost of $60.00 per month to rent the machine.[97]
(d)The Program’s equipment loan scheme assists patients who can least afford to purchase their own sleep therapy device. It requires the patient to purchase their own accessories (valued at approximately $300.00 for a nasal mask system) and to demonstrate that they are able to use CPAP treatment on a long-term basis by undergoing a two month home trial of CPAP prior to being supplied with a QH CPAP machine. The first step is for the patient to contact the machine supplier to arrange a two month CPAP machine rental (QH does not rent machines), estimated at between $100.00 and $200.00 per month. Once that is arranged and the patient starts renting, they are required to contact the QH Sleep Disorders Centre (“Centre”) so that it can arrange a follow-up appointment with one of its sleep physicians at the end of the two month rental trial. At the end of the first month of the rental trial, the patient is to contact the Centre to report on the trial’s progress, so that the Centre can determine if the patient is having difficulties with using the machine and that they are using it for an adequate number of hours each night. After the two month rental trial is over, the patient is to attend the follow-up appointment with a sleep physician from the Centre. If the patient has no difficulties with using CPAP treatment and has been able to use CPAP for an adequate number of hours each night, the doctor will submit an approval for issue of a QH CPAP machine on a permanent loan basis.[98]
(e)The Program provides for the long term loan of CPAP machines and prioritises patients based on need. A patient requiring urgent assistance will be seen within two weeks and a routine patient will be seen in greater than 90 days. Consequently, the Secretary submits that Mr Warwick’s description of the Program as being based on a “lottery system” should not be accepted.[99]
(f)As regards Mr Warwick specifically, the Centre states that he is not required to register for the Program. He had an appointment with Dr Claire Ellender on 11 August 2016, at which time he was given a Program information pack and a CPAP prescription. According to the Centre, the requirements to access a CPAP machine through the Program were explained to him at that time. In particular, he needs to arrange a two month rental period (after purchasing a mask) and to return for a medical review after the rental period. If he uses the CPAP machine for four hours or more per night, a machine will be provided to him at the medical review.[100] As a Program officer told Ms Brazier, they were awaiting a response from Mr Warwick to progress his participation. A place was available in the Program and he would have access to a machine within a short period of his contacting them.[101]
[93] Secretary’s Supplementary Submissions dated 5 July 2017, [3]; and
[94] See Exhibit 1, T Documents, T 32, page 138, CPAP script dated 17 June 2016.
[95] Ibid.
[96] Secretary’s Supplementary Submissions dated 5 July 2017, [3]; and align="left">[97] Secretary’s Supplementary Submissions dated 5 July 2017, [4]; and
[98] See letter from Princess Alexandra Hospital to Department of Human Services dated 6 July 2017, attaching Queensland Health Sleep Disorders Centre, “Information for Queensland Health Sleep Disorders Program Patients” and “Equipment loan eligibility”; and
[99] Secretary’s Supplementary Submissions dated 5 July 2017, [5]; and
[100] See letter from Princess Alexandra Hospital to Department of Human Services dated 19 July 2017, attaching response to Information Notice (responses to questions 1, 2 and 3).
[101] Statement of Michelle Brazier dated 5 July 2017, [3].
Mr Warwick’s submissions
Mr Warwick’s counsel submitted that Ms Brazier’s statement should be excluded from consideration because it is “inherently vague” and not supported by identifying information or by a response to a notice.[102]
[102] Applicant’s Outline dated 18 August 2017, [5].
He was critical of the Information Notice as it did not address Mr Warwick’s previous registration with the Program; as a result, counsel said that there is no evidence to contradict Mr Warwick’s evidence.[103]
[103] Ibid, [6]-[9].
As to participation in the Program, counsel noted that it is dependent on the applicant holding a pensioner concession card, for which Mr Warwick was no longer eligible following the cancellation of his DSP.[104] In any event, it was said that even under the Program, Mr Warwick would be required to meet an initial cost of $1,000.00. That, counsel said, was an unreasonable cost.[105] The CPAP treatment through the Program was therefore said not to be reasonable.[106]
[104] Ibid, [10].
[105] Ibid, [11].
[106] Ibid, [13].
The Secretary’s submissions
In response, it was submitted on behalf of the Secretary that Ms Brazier’s conversation with the unnamed QH officer is consistent with the information recorded in the response to the Information Notice. The officer’s identifying information is not relevant.[107]
[107] Secretary’s Submissions in Reply dated 24 August 2017, [6].
As to Mr Warwick’s previous registration in the Program, the Secretary submitted that the critical issue was whether Mr Warwick was eligible as at the date of cancellation. Given that he was referred to the Program just before the date of cancellation and had his first review on 11 August 2016, it was said that his condition was not fully treated and stabilised as at the relevant date.[108] As to the suggestion that there was no information to contradict Mr Warwick’s evidence that he had not received a response from the Program to date, the Secretary pointed to the information about the 11 August appointment provided in response to the Information Notice.[109]
[108] Ibid, [7].
[109] Ibid, [8].
With respect to Mr Warwick’s eligibility for the Program, it was noted by the Secretary that as Mr Warwick is a recipient of Newstart Allowance, he is eligible for a health care card and therefore, eligible for the Program.[110] With respect to the costs associated with the Program, the Secretary submitted that the initial cost was more in the vicinity of $400.00 to $500.00, rather than the $1,000.00 suggested by Mr Warwick’s counsel. Further, if that were not feasible, it was said that Mr Warwick could consider the CPAP Australia “rent to buy” alternative, involving an initial payment of $180.00 followed by a rental of $60.00 per month for 12 months. It was said that there was no evidence that Mr Warwick could not afford that cost.[111]
[110] Ibid, [9].
[111] Ibid, [10].
Findings
The outright purchase of the CPAP machine was clearly not an option for Mr Warwick. It was well beyond his reach, even if he could have negotiated a reduced price.
The question is whether other options were available to Mr Warwick through either the QH Program or some other means, such as a “rent to buy” arrangement. That in turn raises considerations as to both availability and cost.
As to availability, Mr Warwick maintained that the Program was akin to a lottery, with patients being placed on an indefinite waiting list until they received word of their selection. He said that there was no prioritising by reference to either need or chronological order. That was discounted by the material provided by QH pursuant to the Information Notice, which clearly states that selection is based on assessed need. That accords with my own understanding of the way in which QH clinics are operated over a range of disciplines. It is also clear from the date references in some of the material provided that the Program has been operating for some time, and certainly for some years before the date of cancellation.
Mr Warwick’s counsel submitted that the Information Notice was deficient in that it did not address the question of Mr Warwick’s previous registration with the Program and the availability of treatment during the time after he was diagnosed. As such, he said that there was nothing to contradict Mr Warwick’s evidence that, despite the passage of over a decade, he had not received a response from the Program to date. It was therefore submitted that his evidence should be accepted.
I do not accept that submission. Mr Warwick’s evidence is at odds with the information provided pursuant to the Information Notice. That reveals that he attended an appointment at the Centre on 11 August 2016, at which time he was given a Program information pack and a CPAP prescription. The requirements to access a CPAP machine via the Program were also explained to him at that time.[112] Mr Warwick’s evidence is also inconsistent with what he told the SSCSD at its hearing, that he never received his machine because he had a “fear of going to doctors and hated going to hospitals”.[113]
[112] See letter from Princess Alexandra Hospital to Department of Human Services dated 19 July 2017, attaching response to Information Notice (response to question 1).
[113] Exhibit 1, T Documents, T2, page 5, decision and reasons for decision of the Social Services & Child Support Division dated 9 September 2016, [18].
In view of those inconsistencies and drawing on my own experience, I am not prepared to accept Mr Warwick’s evidence as to the operation of the Program’s waiting list or that he has received no response from QH regarding the Program. I therefore find that CPAP machines via that Program were reasonably available. For completeness, I should add that I accept the Secretary’s submission that following cancellation of his DSP,
Mr Warwick was nevertheless still potentially eligible for the Program because he was a Newstart Allowance recipient and therefore eligible for a health care card.
That leads to the question of whether the cost of machines obtained through the Program or otherwise were reasonable.
Mr Warwick’s counsel estimated that the initial cost associated with accessing the Program would be in the vicinity of $1,000.00. That figure appears to assume that
Mr Warwick would have paid two months of rental initially, at the upper range of rentals ($200.00), as well as purchasing the accessories.
By contrast, QH estimated the initial rental cost would be between $100.00 and $200.00 per month, in addition to the cost of a mask (approximately $300.00). Assuming that only one month’s rental would be paid initially, that gives an initial total cost of between $400.00 and $500.00.[114] For ease of reference here, I call that the “QH option”.
[114] See letter from Princess Alexandra Hospital to Department of Human Services dated 19 July 2017, attaching response to Information Notice (response to question 5).
It was submitted by the Secretary that if that figure was cost prohibitive, it would be open for Mr Warwick to consider the “rent to buy” option, of an initial payment of $180.00 followed by a $60.00 monthly rental for 12 months.
Counsel for Mr Warwick submitted that the $1,000.00 initial outlay would be cost prohibitive given that the fortnightly payment of DSP is $800.00. I agree. Based on the figures put forward by him, there would be a shortfall for at least two weeks during which Mr Warwick would go without the basics of food, rent and medication.
However, the same could not be said of the QH option or the “rent to buy “option. There was no evidence before me to verify Mr Warwick’s financial circumstances and in particular, that he could not meet the cost to rent a machine either through the Program (based on the QH option) or under the “rent to buy” option. Absent any evidence to the contrary, I consider that either option would have offered CPAP therapy at reasonable cost.
It follows from what I have said that the CPAP machine, whether offered through the QH option under the Program or the “rent to buy” option, could be considered reasonable treatment under the Rules for applying the Impairment Tables.
It is not in dispute that Mr Warwick did not avail himself of that treatment and in particular, that he had not availed himself of it as at the date of cancellation.
Mr Warwick not having availed himself of reasonable treatment, the question which next arises is whether his condition was fully stabilised as at the date of cancellation. Section 6(6)(b)(ii) of the Rules for applying the Impairment Tables relevantly provides that a condition is fully stabilised if the person has not undertaken reasonable treatment for the condition and there is “a medical or other compelling reason for (them) not to undertake reasonable treatment”. Apart from the suggested randomness of the Program’s waiting list and the claimed unreasonableness of the cost of treatment, both of which I have rejected, no reason has been advanced as to why Mr Warwick failed to avail himself of the CPAP therapy. His explanation to the SSCSD, that he had a fear of going to doctors and hated going to hospital, is hardly a compelling reason. I therefore consider that Mr Warwick’s condition was not fully stabilised as at the date of cancellation.
As his condition was not fully treated and stabilised as at the date of cancellation, no impairment rating could be assigned in respect of this condition.
Even if I am wrong and (contrary to my view) Mr Warwick’s condition was fully treated and stabilised such that it could attract an impairment rating, I do not think it would attract more than minimal points under Table 1 (Functions requiring Physical Exertion and Stamina). There is no contemporary corroborating medical evidence of Mr Warwick’s impairment as at, or prior to, the date of cancellation. On the contrary, as I mentioned earlier, Dr Cruickshank’s report on the topic is silent, notwithstanding that he was asked to give details of the conditions that had a significant impact on Mr Warwick’s ability to function.
Intellectual disability
In 2004, Mr Warwick was assessed as having a full scale IQ of 71, with a verbal IQ of 78 and a performance IQ of 68.[115] Based on that assessment, he was at that time assigned an impairment rating of 10 points in respect of learning disability.[116]
[115] Exhibit 1, T Documents, T 12, pages 56-57, Psychology Assessment Report dated 27 February 2004.
[116] Exhibit 1, T Documents, T 16, pages 84-85, Disability Support Pension Record of Decision dated 6 April 2004.
It was submitted on behalf of Mr Warwick that the 2004 test results were the only report available and that the impairment rating from 2004 should stand. In particular, it was said that the views of the JCA as to the validity of the 2004 results (to which I referred in paragraph 8 above) were speculation, and should be discounted accordingly.[117]
[117] Exhibit 5, Applicant’s submissions dated 13 June 2017, [34], [36].
On behalf of the Secretary, it was contended that there was no evidence of Mr Warwick’s intellectual impairment in any recent medical reports. Consequently, it was said that there was insufficient information to consider the condition fully diagnosed, treated and stabilised as at the date of cancellation.[118] Even if the condition were fully diagnosed, treated and stabilised, the Secretary contended that it would not attract any impairment points under the relevant table, Table 9 (Intellectual Function).[119]
[118] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 23 May 2017, [54].
[119] Ibid, [56]-[58].
The starting point for a consideration of this matter is found in ss 27(3) and (4) of the SS Act, which make it clear that any review of a decision to cancel DSP has to be determined by applying the Impairment Tables in force at the time of the Secretary’s notice given under s 63(2) of the Administration Act. In the present case, that means that the review of the cancellation decision is to be undertaken by applying the Impairment Tables in force under the Determination.
The Rules for applying the Impairment Tables emphasise that the tables may only be applied to a person’s impairment after their medical history, in relation to the condition causing the impairment, has been considered.[120] As mentioned previously, an impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent”, in the sense that (among other things) it has been fully diagnosed, fully treated and fully stabilised.
[120] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6(2).
While it is true that Mr Warwick was previously tested on the IQ scales, that was some 12 years before the date of cancellation. There is no evidence of his intellectual impairment in any recent medical reports. On that basis, I agree with, and accept, the Secretary’s contention that there is insufficient information for me to consider the condition fully diagnosed, treated and stabilised as at the date of cancellation.
Even if I am wrong in that conclusion, and the condition could be considered permanent and capable of attracting an impairment rating, I do not consider that, as at the date of cancellation, there is any evidence to satisfy the requirements set out in Table 9.
The Introduction to the table sets out in some detail the means by which an assessment of intellectual function is to be undertaken for that purpose. In particular, it requires:
(a)the assessment to be made by an appropriately qualified psychologist;
(b)an assessment of intellectual function to be undertaken in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment;
(c)an assessment of adaptive behaviour to be undertaken in the form of either the Adaptive Behaviour Assessment System (ABAS–II), the Scales for Independent Behaviour – Revised (SIB-R), the Vineland Adaptive Behaviour Scales (Vineland – II) or any other standardised assessment of adaptive behaviour; and
(d)corroborating evidence of the person’s impairment.[121]
The respective descriptors in the table are likewise directed to the outcome of those forms of assessment.
[121] Introduction to Table 9 (Intellectual Function).
The testing undertaken by Mr Warwick in February 2004 was in the form of WAIS III, a form of assessment earlier than those now anticipated by Table 9. Therefore, if Mr Warwick were to be assessed under Table 9, he would have to undertake the tests in the forms prescribed by that table. In the absence of the results of those tests, his impairment rating could not be assessed according to the terms of the table, even if his condition were fully diagnosed, treated and stabilised; there is simply insufficient evidence as required by the table to enable an assignment of an impairment rating to be made. While I acknowledge that, based on the 2004 test, Mr Warwick was then assigned 10 impairment points, there is no justification under the Impairment Tables to accept that previous rating by default.
In those circumstances, it is not necessary for me to specifically address the remarks made by the JCA concerning the validity of the 2004 tests and Mr Warwick’s counsel’s criticisms of them. I would, however, comment that the DSP system should not remain static or be immune from change and that it is desirable, from time to time, to have regard to contemporary assessments of function rather than rely on dated assessments. As Woodward J observed in McDonald v Director-General of Social Security:
It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvements in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.[122]
[122] (1984) 6 ALD 6, [13].
Finally, Mr Warwick’s counsel also referred me to Table 7 (Brain Function). That table is to be used when the person has a permanent condition resulting in functional impairment related to neurological or cognitive function. The Introduction to the table states that the table should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function. Examples of such additional conditions would include acquired brain injury, stroke (cerebrovascular accident), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders and chronic pain. There is no suggestion in the present case that Mr Warwick suffers from any such, or like, conditions. In the absence of corroborating medical evidence to that effect, I do not believe that Table 7 is applicable in this instance.
For the reasons outlined above, I do not consider there is sufficient evidence before me to enable a consideration of the impairment under Table 9 (Intellectual Function) or Table 7 (Brain Function).
Asthma
It is accepted by the Secretary that this condition was fully diagnosed, treated and stabilised at the date of cancellation.[123] I agree with that view.
[123] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 23 May 2017, [35].
In his medical report prepared for the purpose of the review, Dr Cruickshank listed “asthma intermittently” as a condition that was generally well managed and that caused minimal or limited impact on Mr Warwick’s ability to function.[124] Consistent with that,
Mr Warwick confirmed to the JCA that this condition was well managed with occasional Ventolin. He said that it had no, or limited, impact on his ability to function.[125]
[124] Exhibit 1, T Documents, T 20, page 110, Medical Report – Disability Support Pension Review form by Dr Graham Cruickshank dated 21 March 2016.
[125] Exhibit 1, T Documents, T 23, page 115, Job Capacity Assessment Report dated 27 April 2016.
In light of Dr Cruickshank’s assessment and Mr Warwick’s confirmation of the condition’s impact, I consider that the condition has minimal functional impact, such that it would attract zero impairment points under Table 1 (Functions requiring Physical Exertion and Stamina).
Total Impairment Rating
It follows from what I have said that, as at the date of cancellation, Mr Warwick’s conditions attracted no points under the Impairment Tables. The mental health, sleep apnoea and intellectual disability conditions could not be said to be permanent and therefore, could attract no points under the tables. Further, there was simply insufficient medical evidence for me to make any assessment as to the points to be assigned in respect of intellectual disability in the event that I was wrong that the condition was not permanent. The asthma condition, while fully diagnosed, treated and stabilised, had minimal functional impact and attracted zero points under the relevant table.
As Mr Warwick did not have, as at the date of cancellation, 20 impairment points or more under the Impairment Tables, he did not satisfy the requirement in s 94(1)(b) of the SS Act and was therefore not qualified for DSP.
CONCLUSION
Mr Warwick did not have a total impairment rating of 20 points or more under the Impairment Tables as at the date of cancellation. He therefore did not satisfy the requirement in s 94(1)(b) of the SS Act and was not qualified for DSP at that date. The decision to cancel his DSP was correct.
Consequently, I consider that the decision of the SSCSD was correct, and should be affirmed.
I appreciate that this decision will be both distressing and frustrating for Mr Warwick. However, it should not discourage him from making a fresh claim for DSP once he has received the necessary treatment for his conditions and has undertaken the appropriate tests required by the tables.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter
................................[Sgd].....................................
Associate
Dated: 16 October 2017
Date of hearing: 14 June 2017 Counsel for the Applicant: Mr L Burrow Solicitors for the Applicant: Ms M Hogan
Fisher Dore LawyersSolicitors for the Respondent
Ms S Sangha
Mills Oakley Lawyers:
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