Westwood and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2703
•15 December 2017
Westwood and Secretary, Department of Social Services (Social services second review) [2017] AATA 2703 (15 December 2017)
Division:GENERAL DIVISION
File Number: 2016/3774
Re:Thomas Westwood
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President K Bean
Date:15 December 2017
Place:Adelaide
The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability Support pension – Departmental review of applicant’s ongoing qualification for disability support pension – Disability support pension cancelled – Whether applicant satisfied criteria for disability support pension as at the date of cancellation – Whether conditions fully diagnosed, treated and stabilised – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work‑Related Impairment for Disability Support Pension) Determination 2011, s 6
CASES
McDonald v Director‑General of Social Security (1984) 6 ALD 6
Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Deputy President K Bean
15 December 2017
The applicant, Mr Westwood, is currently 23 years old. Prior to 2015, Mr Westwood had been in receipt of disability support pension (DSP) continuously since he turned 16 in 2010. He was granted DSP on the basis that he had the conditions of intellectual disability, speech disorder, anxiety and a traumatic brain injury.
However, on 18 July 2015, Mr Westwood was selected for a review of his entitlement to DSP, and medical and other information was sought. Following receipt of that information, which included a Job Capacity Assessor’s report, on 23 November 2015 a decision was made to cancel Mr Westwood’s DSP.[1]
[1] Exhibit R1, T-documents, T15/155‑156.
Following a request from Mr Westwood for review of that decision, it was affirmed by an Authorised Review Officer (ARO).[2] Mr Westwood subsequently sought review of the ARO’s decision by the first tier of this Tribunal, and on 21 June 2016 the Social Services & Child Support Division of this Tribunal affirmed the ARO’s decision. Mr Westwood then applied to the General Division of the Tribunal for review of that decision, giving rise to this application.
[2] Ibid, T17/212‑217.
The hearing took place in Darwin and Mr Westwood was represented by Ms Spence of the Darwin Community Legal Service.
STATUTORY FRAMEWORK AND ISSUES
It is not in dispute between the parties that Mr Westwood’s qualification for DSP must be assessed against the legislation in force as at the date of the cancellation, 23 November 2015. Further, the Tribunal must only affirm the cancellation decision if positively satisfied that he was not qualified for DSP as at that date.[3] Mr Westwood’s qualification for DSP must also be assessed as at the date of cancellation, and without regard to subsequent events.[4]
[3] See McDonald v Director-General of Social Security (1984) 6 ALD 6.
[4] See Fanning and Secretary, Department of Social Services [2014] AATA 447.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act) and in order to be qualified for DSP as at the cancellation date, Mr Westwood was required to have:
(a)a physical, intellectual or psychiatric impairment;
(b)an impairment which rated at least 20 points under the Impairment Tables; and
(c)a continuing inability to work within the meaning of s 94 because of the impairment.
DID MR WESTOOD HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
There is no issue between the parties that, as at the cancellation date, Mr Westwood had a psychiatric or intellectual impairment within the meaning of the Act.
AT THE RELEVANT TIME, DID MR WESTWOOD HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
The requirements
As referred to above, s 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.
The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and fully stabilised; and
·the condition must be more likely than not to persist for more than two years.
Section 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·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 planned in the next two years.
Section 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
As at the relevant date, were Mr Westwood’s conditions fully diagnosed, treated and stabilised?
The evidence
The evidence before me supports the proposition that Mr Westwood suffers from a degree of impairment in his processing and communication abilities, although it appears these have improved in recent years. What is not clear, however, is the precise nature of his difficulties and the reasons for these.
A significant amount of historical medical information has been provided, dating from as early as 1999. This material reflects a range of different opinions and conclusions as to the nature and cause of Mr Westwood’s difficulties, not all of which are consistent with one another. The opinions recorded include the following:
·That as at 1999, when he was five, Mr Westwood demonstrated a severe delay in his understanding and use of language;[5]
·That as at 2005, Mr Westwood suffered from severe expressive and receptive language problems;[6]
·That as at May 2007, Mr Westwood’s general cognitive ability was in the low average range, his general verbal comprehension abilities were in the average range and his general perceptual reasoning abilities were in the low average range;[7]
·That Mr Westwood suffers from an autistic disorder and not an intellectual disability;[8]
·That Mr Westwood had a severe language disorder but did not fulfil the criteria for an autism spectrum disorder;[9]
·That as at October 2010 Mr Westwood had an intellectual impairment and an acquired brain injury.[10] However, a language assessment report undertaken at around the same time also showed that his “receptive and expressive language skills” were then within average range for his age, although a mild auditory memory deficit was identified in testing.[11]
[5] Exhibit R1, T16/173.
[6] Ibid, T16/168.
[7] Ibid, T16/164.
[8] Ibid, T16/161.
[9] Ibid, T16/167.
[10] Ibid, T9/112.
[11] Ibid, T10/116.
In a medical report submitted to the respondent on 30 July 2015, Mr Westwood’s then general practitioner, Dr Tijani, indicated that Mr Westwood had been his patient for only a couple of days,[12] although he had been a patient of the practice for about four years. He gave a diagnosis of “intellectual impairment and cognitive impairment following a traumatic brain injury” with a date of onset of 29 September 1999.[13] Dr Tijani indicated that that diagnosis was supported by specialist opinion, including from a psychologist, Ms Philomena Holdforth, and a copy of her report of 1 May 2007 has also been provided.[14] Ms Holdforth was a school psychologist who was asked to assess Mr Westwood by the Department of Family and Children’s Services. As referred to above, she assessed Mr Westwood as having general cognitive ability in the “Low Average range” with his verbal comprehension abilities in the “Average range”, and his general perceptual reasoning abilities in the “Low Average Range”. She made no mention of any traumatic brain injury but recommended Mr Westwood be assessed by a psychologist for any “Pervasive Developmental Disorder”.[15] Dr Tijani also referred to an assessment by a speech pathologist, Ms Sarah Dockrell, however the material before me does not include that assessment.
[12] Ibid, T12/124.
[13] Ibid, T12/125.
[14] Ibid, T16/162.
[15] Ibid, T16/163‑164.
Against the background of these somewhat inconsistent assessments and opinions, a detailed psychological assessment was undertaken at the request of Centrelink in August 2015, by Ms Angela Lebar, a registered psychologist. Having administered applicable tests, her ultimate conclusions included the following:
-Mr Westwood’s “overall thinking and reasoning skills classifies his overall performance in the average range and is equal to or higher than 39% of adults within his age group”;[16]
-The current assessment did not provide evidence to support that Mr Westwood “meets the Diagnostic and Statistical Manual (DSM-5) criteria for a diagnosis of intellectual impairment or low cognitive ability. However, the overall pattern of results obtained … suggests that Mr Westwood demonstrated variability in his capacity for cognitive tasks … it is possible that weaknesses in processing speed results may be associated with a learning/language disorder and within the Borderline skill range”.[17]
[16] Ibid, T13/145.
[17] Ibid, T13/147.
After Mr Westwood’s DSP had been cancelled, an assessment was also undertaken by Dr Howard Flavell, a rehabilitation specialist at the Royal Darwin Hospital, on 8 January 2016. Dr Flavell relevantly concluded that Mr Westwood “clearly has significant cognitive issues, the aetiology of which are somewhat unclear. These deficits encompass frontal areas in terms of verbal fluency and also memory issues. There may be some perceptual issues”.[18] Dr Flavell recommended that Mr Westwood undergo a neuropsychological assessment, an MRI scan and a sleep study, and also suggested various other measures and investigations. In a subsequent report of 5 March 2016, he reiterated that he considered Mr Westwood had a significant cognitive impairment.[19]
[18] Ibid, T18/219.
[19] Ibid, T19/223.
Apparently as a result of Dr Flavell’s recommendations, a detailed assessment was subsequently undertaken by a psychologist, Dr James Huntley. He provided a report dated 9 April 2016, in which he recorded that a brain CT undertaken the previous month did not demonstrate any “intracranial pathology”. Dr Huntley also administered a range of tests to assess Mr Westwood’s cognitive and intellectual ability, the results of which were broadly consistent with the results obtained by Ms Lebar. Dr Huntley summarised the results as follows:
The results of this assessment suggest that Thomas has some considerable strengths in a number of cognitive domains and these can be well‑utilised to his advantage in school. His verbal abilities were particularly strong, with above average skills in vocabulary, abstract verbal reasoning, and immediate and delayed auditory memory. Average level scores were seen in visual memory, visuoconstruction abilities, psychomotor speed, arithmetic skills, phonemic verbal fluency, and inhibition of overlearned responses. Lower than expected results were seen in general knowledge, immediate auditory attention, and some perceptual reasoning subtests. Semantic verbal fluency was also in this range.[20]
[20] Ibid, T21/229.
As to the potential causes and contributors to Mr Westwood’s difficulties, Dr Huntley speculated as follows:
This disparity between verbal and perceptual reasoning skills is only seen in about 15% of the normative population. It could be that one of Thomas’ knocks to the head, or the accumulation of knocks in his lifetime, impacted subtly on focal areas of the brain responsible for visual perceptual reasoning skills. I could speculate changes in the area of the anterior parietal lobes, bordering perhaps on front areas which may add to the picture of lower attention and verbal fluency results.
Be that as it may, I suggest that Thomas probably doesn’t have global intellectual delay as such, but a combination of other issues. Thomas likely comes from a background of significant psychosocial challenges, very poor self‑esteem and self‑confidence, and social awkwardness and isolation. This has clearly evolved into feelings of severe depression and hopelessness, which in themselves has significant impact on cognitive skills.[21]
[21] Ibid.
He went on to observe that:
I feel that, disparities in verbal and perceptual skills notwithstanding, there is every likelihood that Thomas’ issues are as much psychological as organic. Clearly, his mood needs to be addressed as priority.[22]
[22] Ibid.
Dr Huntley also expressed the view that when Mr Westwood’s mood issues were addressed “a review cognitive assessment may well show improvements in abilities”.[23]
[23] Ibid, T21/230.
During her oral evidence, Ms Lebar also agreed with the proposition that the question of the extent to which Mr Westwood’s cognitive issues were due to organic factors, some form of learning disorder and/or psychological factors had never been fully investigated. She also acknowledged that as at the relevant time in 2015, depression and anxiety could well have been contributing to Mr Westwood’s learning issues and therefore his degree of impairment was not stable at that time.
Before moving to my analysis of the evidence, I should acknowledge that I have had regard to evidence which in some cases came into existence after the relevant date of 23 November 2015 and did not specifically relate to the positon as at that date. However I have done so on the basis that assessments of Mr Westwood’s cognitive functioning and related matters undertaken in early 2016 are also likely to be reflective of the position at the relevant time in 2015.
For completeness, I have also had regard to the report of Mr Mark Drake, a “Provisional Psychologist” dated 22 October 2016, in which Mr Drake indicated that he thought Mr Westwood was suffering from an “adjustment disorder with depressed mood”.[24] However, as this report related to Mr Westwood’s psychological status almost a year after the relevant date, it has very limited relevance to the question of his qualification for DSP in November 2015.
[24] Exhibit A2.
Analysis
As will be apparent from my description of the evidence, this matter is complicated by the fact that there is no clear consensus between the medical professionals as to the precise nature and cause of Mr Westwood’s difficulties.
I note that in a report submitted in the context of the review of Mr Westwood’s entitlement to DSP, Dr Tijani stated that Mr Westwood was suffering from intellectual impairment and cognitive impairment following a traumatic brain injury, but provided little in the way of evidence to corroborate this, and it appears that his opinion in this regard was based at least in part on assessments undertaken in 1999 when Mr Westwood was five years old. Having said that, I acknowledge that a Centrelink psychologist who assessed Mr Westwood in 2010 also concluded that he had “an intellectual impairment and an acquired brain injury”.[25]
[25] Exhibit R1, T9/112.
The more recent psychological assessments undertaken by Ms Lebar and Dr Huntley essentially agree that the tests they performed did not show an intellectual disability or permanent cognitive impairment, although Ms Lebar speculated that Mr Westwood may have a learning disorder, whereas Dr Huntley felt his difficulties were probably best explained by psychological issues. Significantly, an MRI scan showed no intracranial pathology. A rehabilitation specialist, Dr Flavell, considered that Mr Westwood had “significant cognitive issues”, the “aetiology of which are somewhat unclear”. However Ms Lebar has pointed out that the cognitive assessment tool used by Dr Flavell is one more commonly used in much older patients with dementia, and Dr Flavell himself appears to have considered that Mr Westwood’s cognitive issues were best assessed by a neuropsychologist.
Taken as a whole, the evidence before me suggests that at the relevant time Mr Westwood probably had some form of learning or language disorder, possibly in combination with a psychological condition and perhaps also psycho-social disadvantage. However, the precise nature of any disorder is unclear, as is the extent to which any impairment was attributable to a learning or language disorder, a psychological condition or other factors. In addition, it is not established that any learning/language or psychological disorder from which Mr Westwood suffered had been fully treated and stabilised at that time.
In these circumstances, I have concluded that it has not been established on the evidence that as at 23 November 2015 Mr Westwood was suffering from a relevant condition which had been fully diagnosed, treated and stabilised and was therefore permanent in the relevant sense. It follows that he did not have a condition which was capable of attracting a rating under the Impairment Tables.
I am therefore satisfied that Mr Westwood was not qualified for DSP on that date, and that I should accordingly affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
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Associate
Dated: 15 December 2017
Date of hearing: 10 April 2017 Advocate for the Applicant: Ms T Spence Solicitors for the Applicant: Darwin Community Legal Services Advocate for the Respondent: Mr J Forsyth Solicitors for the Respondent: Department of Human Services
FOI and Litigation Branch
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