Wills and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 854
•29 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 854ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/4794
GENERAL ADMINISTRATIVE DIVISION ) Re MARK WILLS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
ORDER
Being satisfied that it is desirable to do so by reason of the confidential nature of the evidence, the Tribunal directs, pursuant to section 35(2)(b) of the Administrative Appeals Tribunal Act 1975, that the publication of the details of the charges, involving the applicant, before the District Court of Dusseldorf, be restricted.
DECISION
Tribunal Ms K Hogan, Member
Dr J Chaney, MemberDate29 November 2011
PlacePerth
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant qualified for a Disability Support Pension on 26 February 2010 or within 13 weeks thereafter.
..(sgd)…Ms K Hogan...........
Member
CATCHWORDS
SOCIAL SECURITY – Permanent Impairment – Continuing Inability to Work
LEGISLATION
SocialSecurity Act 1991
Social Security (Administration) Act 1999
CASES
Hatton; Secretary, Department of Employment and Workplace Relations [2007] AATA 1631 (7 August 2007)
El-Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 988 (9 December 2010)
Kokona Tlonan and Secretary, Department of Social Security [1997] AATA 30 (6 February 1997)
Rotundo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 484 (11 June 2009)
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007)
Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331 (18 May 2011)
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 452
Re: Watts and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2003] AATA 632
Re: Crossland and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2004] AATA 864
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] SCA 360 (15 April 2010)REASONS FOR DECISION
29 November 2011 Ms K Hogan, Member Dr J Chaney, Member History
1. Mr Wills lodged a claim for Disability Support Pension (“DSP”) on 26 February 2010.
2. On 20 May 2010 Centrelink rejected Mr Wills’ claim for DSP on the basis that his medical conditions were not fully diagnosed, treated and stabilised.
3. Mr Wills requested a review by an Authorised Review Officer (“ARO”) and on 15 June 2010 the ARO affirmed the decision.
4. Mr Wills appealed the decision to the Social Security Appeals Tribunal (“SSAT”) who on 25 October 2010 affirmed the decision of the ARO.
5. Mr Wills appealed to this Tribunal.
Issues
6. The issues to be considered by the Tribunal are:
(a)whether the Applicant has any impairments; and if so,
(b)whether his impairments are fully diagnosed, investigated, treated and stabilised, i.e. permanent and rate at least 20 points on the Impairment Tables; and
(c)if so, whether he has a continuing inability to work.
Legislative Framework and Policy
7. The legislation relevant to this decision is contained in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).
8. Provisions relating to whether a person is qualified for Disability Support Pension and whether Disability Support Pension is payable to a person are contained in Part 2.3 of the Act.
9. The qualification criteria for disability support pension are contained in s 94 of the Social Security Act 1991 (Cth) (“the Act”).
Eligibility Criteria
10. A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.
11. In considering whether the applicant had a “continuing inability to work” the Tribunal must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent the person from doing any work or training within the next two years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week that exists in Australia even if that work is not locally accessible (s 94(5)).
Impairment Tables
12. The Impairment Tables which the Tribunal is required to apply are in Schedule 1B of the Act. It is also necessary the Tribunal to have regard to the instructions in the Introduction to the Impairment Tables.
13. Paragraph 2 of the Introduction to the Impairment Tables provides that the Tables “are designed to assess impairment in relation to work”.
14. Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
15. Paragraph 5 of the Introduction to the Impairment Tables states that a condition “must be considered to be permanent”. The paragraph states that “once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years”. The paragraph concludes with a statement that a condition will be considered to be fully stabilised “if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.
16. Paragraph 6 of the Introduction to the Impairment Tables states that “in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred” and “whether any treatment is still continuing or is planned in the near future”.
17. There is no issue that the appropriate table for the applicant to be assessed under is Table 6 (Psychiatric Impairment).
Time for Determining Eligibility
18. In accordance with clause 4 of Schedule 2 to the Administration Act, the Tribunal is required to determine whether Mr Wills satisfied section 94 of the Act at the time he lodged his claim for Disability Support Pension, that is, 26 February 2010, or in the subsequent 13 weeks.
Evidence
19. The Tribunal was provided with a number of documents including:
(a)the section 37 documents; and
(b)written submissions from the parties.
20. The Tribunal heard evidence from the applicant, Dr Dale and Ms Loader.
21. The Tribunal heard oral submissions on behalf of the parties.
22. The Tribunal considered numerous medical reports including the following:
(a)Dr Pethick, dated 12 February 2010;
(b)Dr Wenzel (Rhine Clinics 26th May 2008)
(c), Dr Quarles, dated 12 August 2008;
(d)A Hwee, Clinical Psychologist, dated 8 September 2008;
(e)Royal Perth Hospital, dated 27 May 2009;
(f)Graylands Hospital Discharge Summaries:1991 and 1992
(g)Medical certificate, Dr Pethick, dated 14 January 2009;
(h)Mr Tejera, dated 10 March 2010;
(i)Dr Anne Dale, dated 4 January 2011;
(j)Ms L Johnson, dated17 August 2010.
23. The Tribunal considered job capacity assessments (JCA's), dated 26 August 2008, 2 March 2010 and 14 January 2011.
Issue 1: Does Mr Wills Have Physical, Intellectual or Psychiatric Impairments?
24. Paragraph 94(1)(a) of the Act provides that the first qualification for Disability Support Pension is that a person has a physical, intellectual or psychiatric impairment.
25. It was not disputed that Mr Wills has been diagnosed with psychological problems and so satisfied sub-section 94(1) (a) of the Act.
Issue 2: Whether Mr Wills’ Impairments are Full Diagnosed, Investigated, Treated and Stabilised, i.e. Permanent and Rate at Least 20 Points on the Impairment Tables
26. The respondent provided a detailed summary of the Applicant’s medical history which is to be found in the Secretary’s Statement of Facts and Contentions (R1 paras 22 to 52).
27. The respondent contended that recent medical evidence indicated that Mr Wills was suffering from depression rather than the past diagnosis of Hebephrenic Schizophrenia but that without a psychological evaluation there can no confirmation of whether Mr Wills' depression was a complete diagnosis or whether it was a symptom of a different medical condition.
28. The respondent contended that the depression was a diagnosed condition which had improved with counselling and was expected to continue to improve and therefore the respondent contended that an impairment rating could not be given because Mr Wills was still undergoing treatment and stabilisation.
29. The respondent contended that although Mr Wills had been diagnosed with a permanent condition of depression, it could not attract an impairment rating because he was still undergoing treatment and his condition had not stabilised and therefore he did not satisfy sub-section 94(1)(b) of the Act.
30. The applicant contended that his psychological condition has been fully diagnosed, treated and stabilised in accordance with Table K1 of the Guide to the Introduction to the Impairment Tables.
31. The applicant contended that whilst he has pursued reasonable treatment to improve his condition he has had long term psychological problems which will not resolve within the next two (2) years.
32. The applicant relied upon the decision of Member Mr S Webb, Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331 in which the Tribunal found that “for the purposes of section 94 and the Impairment Tables in Schedule 1B, it is not necessary for me to determine whether a particular diagnosis is correct. The correctness of a particular diagnostic label is perhaps of less moment for present purposes than the existence of documentation and the diagnosis of a particular condition”.
33. The applicant agreed with the Social Security Appeals Tribunal decision dated 25 October 2010 at [15] that “there was sufficient evidence in the reports to confirm that the Applicant currently suffers psychological/psychiatric problems”. Furthermore, “on the basis of this evidence the tribunal found the Applicant suffers from impairments due to conditions”.
34. The Graylands Hospital Discharge Summaries of 1991 and 1992 provide several possible diagnoses: bipolar affective disorder, schizophrenia and antisocial personality disorder in 1991; and personality disorder and polysubstance abuse in 1992.
35. The report of Dr Wenzel (Rhine Clinic 26th May 2008) states that the applicant was an inpatient by judgement of the District Court of Dusseldorf having been found not guilty as charged because he had committed the acts in a condition of diminished responsibility. The applicant was committed between 2002 and 2008 with a diagnosis of hebephrenic schizophrenia. Mr Wills' acute psychosis settled with continuous medication but at the time of discharge he was noted to suffer from “thought disorder, lack of motivation and affect disorder”. It was also noted that he “constantly requires instructions and help from staff”.
36. It was advised that “further treatment and securing in a forensic-psychiatric facility is advised because at this point it is still to expect that Mr Wills will commit offences outside of the above mentioned facilities which would be consistent with the offences he has committed before.”
37. After arrival in Australia via UK after deportation from Germany Mr Wills was seen at Perth City Psychology Clinic in May 2009 after referral with a diagnosis of major depressive disorder and a principal chronic medical condition of schizophrenia after referral by GP Dr Pethick on a Mental Health Care Plan.
38. Mr Wills has since had 32 sessions of therapy, 15 with Ms Johnson and 17 with Dr Dale, both Clinical Psychologists.
39. In a letter dated 17 August 2010, Ms Johnson referred to diagnoses of major depression with possible longstanding and complex PTSD. She considered him vulnerable to a psychotic breakdown, given his past diagnosis of schizophrenia.
40. In a letter dated 4th January 2011 Dr Dale referred to diagnoses in “numerous categories in the mental illness spectrum of disorders and at present is clinically depressed ”
41. Both Ms Johnson and Dr Dale suggested a complete psychiatric evaluation may produce a more definitive and complete diagnosis. This was also suggested by Augustine Hwee Clinical Psychologist, after his assessment six(6) weeks after Mr Wills' arrival in Australia, as although he met the criteria for major depression there was uncertainty re the diagnosis of schizophrenia.
Finding
42. The Tribunal finds that there is consistent evidence over many years that Mr Wills suffers mental illness.
43. The Tribunal finds that Mr Wills has suffered from mental illness of some form or another which has been consistently documented since his first psychiatric admission to Graylands Hospital in 1991.
44. The Tribunal agrees with the assessment of Dr Dale that Mr Wills suffers 'numerous categories in the mental illness spectrum of disorders and at present is clinically depressed' and finds that since his first admission to Graylands Hospital in 199, major depression and personality disorder have been consistent diagnoses with a prolonged episode of schizophrenia, probably in remission since 2009 at least.
45. Mr Wills has been receiving continual psychotherapy since May 2009, a total of 32 sessions with clinical psychologists to the time of the AAT hearing.
46. The Tribunal accepts Dr Dale's evidence that his condition will not improve in the near future. Dr Dale stated that sexual philias are very difficult to treat with a high level of recidivism and require long intense psychotherapy, as do personality disorders.
47. The Tribunal has carefully considered the reports and oral evidence above and finds that Mr Wills' condition has been fully diagnosed, stabilised and treated.
48. The Tribunal must be satisfied that the applicant qualified for a DSP on the day of his claim or within 13 weeks thereafter, Social Security (Administration) Act 1991 Schedule 2, clause 4.
49. The Tribunal is satisfied that Mr Wills’ condition was investigated, treated and stabilised to the extent that they are considered to be permanent at the date of his application.
50. It is therefore necessary for the Tribunal to consider the assessment of Mr Wills' condition under the Impairment Tables.
51. The submission of the respondent was that when previously an assessor had looked at whether or not the condition was fully treated and stabilised, a rating of 10 points was given and that whilst that might be appropriate now, it was not appropriate to give a rating because the condition had not been permanently diagnosed..
52. Given the findings of the Tribunal above, accepting a rating of 10 points would be inconsistent with the evidence.
53. The Tribunal considered the medical evidence in this claim, both written and oral and the evidence of Mr Wills and finds that the appropriate impairment rating, according to the criteria in Table 6, is at least 20 points. The requirement for section 94(1)(b) is satisfied.
Issue 3: Does Mr Wills Have a Continuing Inability to Work?
54. The applicant contended that the job capacity assessment of 2 March 2010 noted a number of barriers to the applicant’s employment: mood disorder, psychological/psychiatric condition, anger, physical fitness, limited employment history.
55. The applicant contended that the attendance at Workability between 16 September 2009 and 3 February 2010,combined with the evidence of Dr Dale would support a finding that Mr Wills would be unable to sustain employment.
56. The respondent contended that whilst Mr Wills had been unemployed for much of the last 20 years, that motivational factors affected Mr Wills’ performance in the work trial and that there was insufficient support for him in that position and that with a desire to join the workforce, a suitable workplace with better support would prove successful in him securing suitable employment of at least 15 hours per week within two years.
57. Mr Wills gave evidence that he underwent numerous Job Capacity Assessments since 2008. Each of these resulted in referral to Disability Job Agencies. He has been given one work trial with no renewal.
58. Ms Loader, a CRS assessor, gave evidence regarding Mr Wills' work capacity. Her evidence was that she thought his condition would improve sufficiently in the next two years with appropriate support to increase his work hours to 15 hours per week. This opinion was predicated upon less extensive information than the evidence before this Tribunal.
59. Dr Dale gave evidence that Mr Wills would like to work and was 'almost inconsolable' after RUAH did not provide him with a job but her opinion was that he would be unable to sustain employment. She stated that it was very difficult to hold his attention, he had a huge antagonism to authority, suffered mood swings, often being hostile and aggressive, was an isolationist, and exhibited destructive and inappropriate responses.
60. This opinion is reflected in the letter [Exhibit A3] from Mr Worthy, Social Enterprise Co-ordinator, Workability, after Mr Wills undertook a six month work trial.
61. Although the respondent contended that overall there was really a lack of information about the impact of his condition on his workability, the Tribunal finds that there is sufficient evidence to support a finding that Mr Wills has a continuing inability to work and had a continuing inability to work at the time of his application for DSP.
Conclusion
62. The Tribunal is satisfied that the applicant satisfies the requirements of section 94 of the Act and qualified for a DSP on 26 February 2010 or within 13 weeks thereafter.
Decision
63. The Tribunal sets aside the decision under review and substitutes a decision that the applicant qualified for a Disability Support Pension on 26 February 2010 or within 13 weeks thereafter.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member and Dr J Chaney, Member.
Signed: ..(sgd) T Freeman...............
AssociateDate of Hearing 15 June 2011
Date of Decision 29 November 2011
Representative for the Applicant Ms Marilyn Marvelli
Representative for the Respondent Mrs M Conlon
Departmental Advocate
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