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

[2019] AATA 5548

West and Secretary, Department of Social Services (Social services second review) [2019] AATA 5548 (20 December 2019)

Division:GENERAL DIVISION

File Number:2018/4397          

Re:Jason WEST  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member G Hallwood

Date:20 December 2019

Place:Adelaide

The decision under review is affirmed

..........................[sgnd]................................

Member G Hallwood

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Permanent impairment – Sufficient points on impairment tables – Continuing inability to work – Decision under review is affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Member G Hallwood

20 December 2019

1. This application seeks to review a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 10 July 2018 affirming the decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 6 January 2017.

THE ISSUES

1. The Tribunal is asked to decide whether Mr West qualified for a DSP during the qualifying period between 6 January 2017 and 7 April 2017 (the qualification period). The issues to be determined are whether Mr West in the qualification period had:

   (a)A physical, intellectual or psychiatric impairment?

   (b)If so, does the impairment rate at least 20 points against the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011)?

   (c)If so, did Mr West have a continuing inability to work?

BACKGROUND

1. On 6 January 2017 Mr West lodged a claim for DSP.[1] His claim included a list of disabilities, illnesses and injuries consisting of:[2]

   ·     Antisocial personality disorder;

   ·     Hypomania;

   ·     Borderline personality disorder; and

   ·     Acquired brain injury.

   [1] Ex R4, T8.

   [2] Ex R4, T9 p 136.

2. On 6 July 2017 Mr West’s claim for DSP was rejected by the Department of Human Services (the Department).

3. Mr West requested a review of the decision and on 1 June 2018 an Authorised Review Officer (ARO) affirmed the decision to reject his DSP claim. The ARO found that none of Mr West’s conditions were fully diagnosed, fully treated and fully stabilised during the qualification period and so could not be assigned an impairment rating.

4. Mr West sought a further review and on 10 July 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject the DSP claim. The AAT1 found that Mr West had a mental health condition that was fully diagnosed, fully treated and fully stabilised and that attracted 10 impairment points under Impairment Table 5.[3]

   [3] Ex R4, T2.

5. On 2 August 2018 Mr West lodged an application for review with the General Division of the Administrative Appeals Tribunal and that application is now before this Tribunal.

6. The Department provided 278 pages of documents (T) to the Tribunal.[4] The Department also tendered a further 24 pages of documents (R) prior to the hearing.[5]  The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.

   [4] Ex R4.

   [5] Ex R1,R2, & R3.

THE LEGISLATION AND RULES

1. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.

2. The relevant law is contained in the Social Security Act 1991 (the Act) and Social Security (Administration) Act 1999 (the Administration Act). Also of relevance are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which contains the Impairment Tables, and Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination).

3. To medically qualify for a DSP a person must meet the qualification criteria set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act.

   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;

4. The second requirement in paragraph 94(1)(c) is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

5. To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks, as set out in the Administration Act at subclause 4(1) of Schedule 2.

6. Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP

7. The tables to be applied are contained in the Impairment Tables in accordance with section 27 of the Act.

8. The Impairment Tables contain rules for their application; the Rules for Applying the Impairment Tables (the Rules). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.

9. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that result from the person's condition. A person's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person (subsection 6(1) of the Rules).

10. Subsections 6(2) and 6(3) of the Rules set out that the Impairment Tables may only be applied after the person's medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than two years.

11. Subsections 6(3) to 6(7) of the Rules require a condition to be fully diagnosed, fully treated and stabilised, and likely to persist for more than two years in order to be considered permanent.

12. Subsection 6(6) states that a condition is fully stabilised if:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years, or

    (b)the person has not undertaken reasonable medical treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment,  or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.

CONSIDERATION

1. Mr West is a 42 year old man with a history of physical, intellectual and psychiatric conditions that he described as originating in childhood or antenatal.

2. Mr West believes he was diagnosed with foetal alcohol syndrome (FAS) as a child but has not been able to obtain records to corroborate a diagnosis at that time.

3. At the age of four Mr West stated that he had an operation to resolve glue ear causing deafness which contributed to him not talking until he was six years old. His schooling was delayed as a result and he has not been able to cope with auditory distractions since then. Mr West says he also struggles to concentrate when there are other sensory stimulants including light and touch.

4. Mr West has a history of depression stretching back at least 14 years[6] although his psychiatric symptoms have been diagnosed differently by different medical practitioners at different times. Mr West’s strong diagnostic preference relates to foetal alcohol syndrome which he has researched and believes best fits his physical, psychological and social profile.

   [6] Ex R4, T12 p 104.

5. After meeting a foetal alcohol syndrome national organiser in late 2016 Mr West says he sought a referral to Dr Brian Wilson, a geneticist at the Royal Adelaide Hospital, was diagnosed with foetal alcohol syndrome, and was encouraged to lodge a DSP claim.

Does Mr West have impairment?

1. In order to qualify for DSP paragraph 94(1)(a) of the Act firstly requires a person to have a physical, intellectual or psychiatric impairment.

2. The Tribunal finds, based on the medical evidence submitted, that during the qualification period Mr West had impairments that could affect his ability to work.

3. As well as the conditions listed on his application which included: antisocial personality disorder, hypomania, borderline personality disorder (BPD), and acquired brain injury (ABI); Mr West’s medical reports over a number of years also identified: FAS, bipolar affective disorder, urinary urgency and learning disability which were listed by the ARO;[7] with AAT1 also listing autism spectrum disorder (ASD).[8]  

   [7] Ex R4, T3 p 16.

   [8] Ex R4, T2 p 10.

If so, does Mr West’s impairment rate at least 20 points against the Impairment Tables?

1. The second requirement under subsection 94(1) of the Act for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables at the time of lodging the claim, or within 13 weeks of that. As noted, the qualification period in this case is from 6 January 2017 to 7 April 2017. The Tribunal cannot consider medical problems or developments that have arisen after that time.[9] Such issues can only be addressed by a new claim.

   [9] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34].

2. The Secretary contends that Mr West does not satisfy paragraph 94(1)(b) as he does not have a total impairment rating of 20 points under the Impairment Tables.

3. Before any of Mr West’s conditions can be assigned an impairment rating against the Impairment Tables the condition must be considered permanent.[10]

   [10] Subsections 6(3) and (4) of the Impairment Determination.

4. A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[11] The Tribunal notes DP Handley’s comments in Re Fanning and Secretary, Department of Social Services that:[12]

   The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether "any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years". While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal's decision.

   [11] Subsections 6(5), (6) and (7) of the Impairment Determination.

   [12] Re Fanning and Secretary, Department of Social Services [2014] AATA 447 [33].

5. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[13]

Urinary urgency

[13] Subsection 6(4) of the Impairment Determination.

1. Urinary urgency is mentioned in Dr Wilson’s report of August 2017[14] with a recommendation that Mr West be referred to an urologist. Mr West was sent to Dr Mark Lloyd for a kidney and bladder ultrasound in December 2017.[15] As this medical activity is well beyond the qualification period it is not possible to consider this condition as fully diagnosed, fully treated or fully stabilised at the time of the claim. For this reason the urinary urgency condition has not been assessed against the Impairment Tables.

Acquired brain injury

[14] Ex R4, T12 p 13.

[15] Ex R4, T12 p 216.

1. Mr West’s lodged claim included antisocial personality disorder, hypomania, borderline personality disorder, and ABI.

2. It is important to differentiate between the ABI that resulted from Mr West being hit across the head with a metal pipe in 2005, and the FAS which is an acquired brain injury caused by alcohol exposure before birth.

3. The first ABI related to Mr West being assaulted in 2005, while fully diagnosed and treated, does not have any evidence of causing a persistent impairment as distinct from the FAS condition. For this reason that ABI has not been assessed against the Impairment Tables.

Foetal Alcohol Syndrome

1. On 27 March 2017 Dr Siaw, Mr West’s GP, wrote to Dr Brian Wilson seeking support with diagnosing foetal alcohol syndrome after Mr West had met with “a foetal alcohol syndrome national organiser”.[16]

   [16] Ex R4. T12 p214.

2. Dr Wilson met with Mr West on 4 July 2017. The diagnosis and the reasons for this diagnosis are clearly described in the report:

   “Fetal alcohol syndrome is what we describe as a diagnosis of exclusion… I think we can say you have a diagnosis of fetal alcohol syndrome. This explains in particular your ongoing issues of learning and retention of information, and I hope you’ll be able to obtain appropriate support in relation to this in the future.”

3. I favour the diagnosis of foetal alcohol syndrome for the same reasons as Dr Wilson does, it fits with a number of the disparate symptoms Mr West has had to deal with over the years. Unfortunately for Mr West in this matter the appointment with and subsequent report from Dr Wilson[17] is well beyond the qualification period which ended on 7 April 2017.

   [17] Ex R4, T12 pp212-213.

4. In the absence of evidence of a diagnosis from his childhood the Tribunal is unable to consider Mr West’s foetal alcohol syndrome as fully diagnosed at the time of his claim or in the qualification period. For this condition to be considered it will need to be the subject of another claim. Although the currently available evidence suggests this is an important diagnosis for Mr West, the Tribunal is unable to assess his FAS against the Impairment Tables for this matter. For the same reason I find that the learning disability that is a symptom of the FAS cannot be assessed against the impairment tables.

Personality Disorder

1. Mr West has been diagnosed with various mental health conditions including antisocial personality disorder, hypomania, borderline personality disorder, and bipolar affective disorder.

2. There are only two reports from psychiatrists in evidence and they are over 11 years apart.

3. On 19 October 2006 Dr Osman Nalaye, psychiatrist, diagnosed Bi-Polar Affective Disorder 2. For this diagnosis people experience severe depression but only mild manic episodes. Dr Nalaye states: [18]

   “In summary Mr West has been treated for anxiety and was treated with different antidepressants with no marked improvement. In my opinion he suffers from BPAD 2 and at the moment of interview he presented with features of hypomania and in addition he may have borderline personality traits.”

   [18]Ex R4, T12 p 199.

4. Dr Anthony Dinesh, psychiatrist, in his report of 15 February 2018[19] mentions Mr West having seen Dr Howard Gordon when he was 25 years old and at that time being diagnosed with borderline personality disorder. Dr Dinesh also indicates a complex presentation diagnosing personality disorders with schizoid and antisocial traits. With the benefit of him having seen the history I find Dr Dinesh’s diagnosis to be preferable. Dr Dinesh also indicates that there is no indication of Axis 1 mental illness.

   [19] Ex R4, T12 pp219-221.

5. The Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV), which was replaced in 2013 by DSM-5, arranged psychiatric conditions into five axes with Axis l representing the most common disorders including anxiety and mood disorders.  Axis II disorders include developmental disorders and personality disorders. People with Axis II disorders usually display symptoms in childhood and have lifelong challenges. In stating that there was no indication of Axis I mental illness Dr Dinesh was making the point that Mr West’s conditions were not amenable to treatment with psychotropic medications.

6. Dr Dinesh explored treatment options and while excluding psychotropic medications does indicate that referral to psychology has the potential to be of benefit, Mr West indicated to Dr Dinesh he does not want to address any of his behaviours at this stage.

7. Based on the medical evidence I am satisfied that Mr West has been fully diagnosed with personality disorder at the time of his claim. There is evidence that Mr West attended a clinical psychologist, Mr Greg Fell, in 2011 for an assessment, there is no evidence that he has received any treatment from a psychologist. For that reason I find that Mr West is not fully treated or fully stabilised in relation to his personality disorder and cannot be assessed against the Impairment Tables.

Autism Spectrum Disorder

1. Dr Dinesh in his report of 15 February 2018 also indicates that Mr West is likely to have ASD “which was probably not diagnosed as a child and properly addressed.”[20]

   [20] T12 p 220.

2. Apart from indicating a likely diagnosis, there is no evidence of treatment for ASD. For this reason the ASD cannot be assessed against the Impairment Tables.

Total points

1. The Tribunal acknowledges that Mr West has impairments that are having a significant impact on his life and on his ability to work. Unfortunately it has taken many years for these conditions to be fully diagnosed, and based on the evidence before the Tribunal they were not fully treated or stabilised at the time of Mr West’s claim or within 13 weeks of that date. For that reason I find that Mr West receives zero points against the Impairment Tables.

2. As Mr West scores less than 20 points against the Impairment Tables he does not satisfy the requirements of paragraph 94(1)(b) of the Act and so does not qualify for a DSP.

Did Mr West have a continuing inability to work?

1. As one of the required criteria to qualify for DSP that “the person’s impairment is of 20 points or more under the Impairment Tables”[21] has not been met the Tribunal is not required to further explore Mr West’s continuing inability to work as he cannot qualify regardless of the findings on this matter.

   [21] Subsection 94(1)(b) of the Act.

CONCLUSION

1. The Tribunal finds that Mr West does not qualify for DSP in the qualifying period.

DECISION

1. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

......................[sgnd]...............................

Administrative Assistant Legal

Dated 20 December 2019

Date of hearing:	27 August 2019
Applicant:	In person
Representative for the Respondent:	Mr C Visser, Department of Human Services