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

[2019] AATA 5521

XDHW and Secretary, Department of Social Services (Social services second review) [2019] AATA 5521 (20 December 2019)

Division:                  GENERAL DIVISION

File Number(s):      2019/0489

Re:XDHW

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:20 December 2019

Place:Canberra

The decision under review is affirmed.

........................................................................

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – alcohol and drug dependency – mental health condition – inflammatory arthritis – whether conditions fully diagnosed, treated and stabilised – inadequacy and incompleteness of medical evidence – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, ss 26, 27, 94
Social Security (Administration) Act 1999, ss 37, 42, Schedule 2

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

Cases

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

REASONS FOR DECISION

Mark Hyman, Member

20 December 2019

1. This decision is about whether the applicant qualifies for disability support pension (DSP). The applicant lodged a claim for DSP on 19 March 2018; on 5 May 2018 the Department of Human Services – Centrelink (the Department) rejected the claim on the basis that The applicant’s impairments did not meet the relevant criteria under the Social Security Act 1991 (the Act). The applicant applied for review of the Department’s decision, and his claim was rejected again twice on review, first by an authorised review officer of the Department on 11 October 2018, and then on 2 January 2019 by the Social Services and Child Support Division of this tribunal. On 29 January 2019 the applicant applied to this tribunal for further review.

2. The tribunal held a hearing on 28 November 2019. The applicant appeared by telephone and gave evidence. Mr Kelvin Defranciscis, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. The applicant appeared and gave evidence by telephone.

3. The documentary evidence before the tribunal consisted of documents (the “T-documents”) submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

4. The applicant’s history with regard to DSP is that he was granted the benefit from 12 February 2014, but it was cancelled when he was imprisoned in early 2015. The initial grant of DSP was on the basis of his alcohol and drug dependence. After his release, he submitted a new DSP application, and it is that application that is currently before the tribunal.

5. Under a confidentiality order made in accordance with subsection 35(3) of the AAT Act, for reasons unrelated to the matter before the tribunal, the applicant is identified in these reasons by the pseudonym “XDHW”.

   LEGISLATION

6. The grant of DSP is governed by section 94 of the Act. Section 94 reads in part as follows:

   94(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;

   …

7. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

8. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and made a mandatory consideration in the decision process under paragraph 94(1)(b) by section 27 of the Act. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. The Impairment Tables are preceded by some preliminary material, including in Part 2 of the Determination a set of Rules for Applying the Impairment Tables (the Rules). Subsection 6(4) of the Rules provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of “fully treated” and “fully stabilised”.

9. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

10. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

1. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that to succeed in his claim the applicant must have been qualified in the period from 19 March to 18 June 2018. The qualification period prevents developments in the applicant’s conditions occurring after 18 June 2018 from being taken into account. This was explained by Member Breen in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   … it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

   ISSUES

2. The issues before the tribunal in this matter are:

   ·whether the applicant has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether he has a continuing inability to work.

   THE EVIDENCE

3. Whether the applicant meets the criteria required to qualify for DSP depends in particular on the medical evidence. There is evidence before me in respect of three conditions that might affect the applicant’s ability to work: drug and alcohol dependence; a mental health condition; and inflammatory arthritis. There is also mention of a further condition, or possible condition, namely a brain injury arising from alcohol use. Each of these conditions is considered below in turn.

   Drug and alcohol dependency

4. It is common ground that the applicant has a longstanding drug and alcohol dependency problem. In a medical report prepared for the applicant’s earlier DSP application, dated 19 February 2014 (T7), Dr Desmond Wong, the applicant’s then general practitioner, identified the date of onset as 1979. Dr Wong stated that the applicant had been through an “alcohol detox” treatment program in 1994; that he attended Alcoholics Anonymous (AA); and that he was “not open to drug counselling”. In a Job Capacity Assessment conducted by the Department on 27 March 2014 and reported the following day (T8), the applicant apparently told the assessor that he had been drinking and smoking marijuana since the age of eight; that his history of heavy drinking stretched for 20 years; and that he began using heroin at the age of 18 or 19. He confirmed that he underwent a residential detox program in 1994, but said that he resumed drinking thereafter. He told the assessor that “he has not been drinking as heavily over the past 3 months since attending AA meetings; however his heroin use has increased over this time”.

5. Dr Wong’s report includes an assessment of the symptoms and functional impacts of the condition. Dr Wong noted difficulty getting out of bed, memory loss, “cognitive/mood disorder” and that the applicant has not had any interpersonal relationships for more than 18 years.

6. Later records suggest that after his release the applicant’s habits may have changed somewhat. A brief report by Dr Agnieszka Rofail, a general practitioner, dated 15 March 2018 (T11) describes the applicant as “Recovering from drug and alcohol abuse”. A DSP medical assessment by the Department, dated 1 May 2018 (T14), noted that the applicant said that he was not using any drugs/medications at that time.

7. The applicant began seeing a psychologist, Mr Brett Bedson, in June 2018. In a report dated 4 August 2018 (T20) Mr Bedson noted that the applicant’s childhood had been traumatic and unstable, involving episodes of foster care and significant abuse. He also noted compromised concentration and focus on details, possibly from alcohol use. He reported that the applicant had been alcohol free for seven years and regularly attended AA meetings. He postulated that the applicant’s cognitive capacities were significantly impaired, possibly because of an acquired brain injury resulting from alcohol use, but noted that that aspect “is not part of this assessment or diagnosis”. He diagnosed post-traumatic stress disorder (PTSD), listing alcohol and drug abuse as an example of reckless or self-destructive behaviour symptomatic of that condition. A later report from Mr Bedson, dated 17 August 2018 (T24), provides a more detailed diagnosis of PTSD but in respect of alcohol and drug dependency adds little to the earlier report beyond noting that the applicant reported resorting to alcohol to prevent nightmares and manage his emotions “consistent with a history of childhood abuse”.

8. In oral evidence the applicant said that as a child he had been taken from his family, lived in “boys homes” from the age of seven to 13, had been subjected to abuse, and had become a drug and alcohol addict in part as a result.

   Mental health

9. Dr Rofail’s report of 15 March 2018 (T11) reports that the applicant suffered from “severe depression and anxiety”, with the DASS21 test for those conditions yielding  outcomes of 14 for depression, 12 for anxiety and 14 for stress (the significance of these results is not explained). Dr Rofail notes that the applicant had been released from prison on 14 February 2018 and was on parole. A further report from Dr Rofail, dated 3 May 2018 (T15) provides detailed results of the DASS severity ratings from March 2018, showing that the applicant had “extremely severe” ratings against two axes (depression and anxiety) and “severe” against the third (stress).

10. The reports of Mr Bedson referred to above (T20, T24) refer to the applicant’s traumatic childhood experiences and the resulting longstanding problems that have resulted. The earlier report notes that the DASS tests yielded depression and anxiety results in the extremely severe range and stress in the severe range. At the date of the report the applicant had attended five sessions of treatment; ongoing treatment should include cognitive behaviour therapy, and other therapeutic techniques including interpersonal therapy, self-regulation of emotions and strategies to assist with relaxation. The later report repeated the elements of that treatment plan.

11. A brief report by Dr Abish Antony, a psychiatrist, dated 7 August 2018 (T21), diagnoses the applicant with “generalised anxiety disorder, symptoms of post-traumatic stress disorder and secondary depressive symptoms since many years with a recent worsening”. He identified a need for ongoing treatment (antidepressants and psychotherapy) and foreshadowed impaired functionality for twelve months.

12. In oral evidence the applicant pointed to his abusive childhood and stated that he now suffered from acute anxiety and went for treatment weekly with his psychologist.

    Inflammatory arthritis

13. The applicant has had occasional work as a bricklayer in the past. Dr Rofail’s report mentions that he has inflammatory arthritis in both hands and knees. Medical certificates (T18, dated 8 June 2018, T19, 20 July 2018, T22, 7 August 2018, all signed by Dr Rofail) record that the arthritis extends to his hips, ankles and shoulders, and that treatment consists of “NSAID when needed”. The certificate at T18 refers to the arthritis as seronegative, the others as simply arthritis. In oral evidence the applicant reported that he could hardly walk because of the pain in his knees.

    CONSIDERATION

14. To succeed in his application for DSP, the applicant must meet the tests set by the three paragraphs in subsection 94(1) of the Act.

    Does the applicant have one or more impairments?

15. It is common ground that the applicant has impairments. I find that he meets paragraph 94(1)(a) of the Act.

    Are the applicant’s impairments of 20 points or more under the Impairment Tables?

16. To be given any rating for severity, each of the applicant’s impairments must meet the permanence criteria under the Impairment Tables, that is, by the end of the qualification period, each must be fully diagnosed, fully treated and fully stabilised, and expected to continue for at least two years.

17. There is no doubt that the applicant suffers from quite severe disabilities, but the medical evidence with regard to them is incomplete and at times appears inconsistent. There are also questions about how his various conditions ought to be regarded and assessed under the Impairment Tables.

18. There are potentially three conditions affecting the applicant’s cognition and behaviour. In the first place, he has a mental health condition that arose from his difficult and traumatic childhood; second, he has an alcohol and drug dependency, which may have been contributed to by his childhood or the mental health condition arising from that childhood, but is a separate disorder; third, there is Mr Bedson’s brief mention of an acquired brain injury. Leaving aside for the moment the question first, whether the medical evidence is sufficient to take all three into consideration and second, whether each might meet the permanence criteria under the Impairment Tables, there is a question of how the three ought to be assessed. Cognitive impairments can be assessed under Table 5 – Mental Health Function; Table 6 – Functioning related to Alcohol, Drug and Other Substance Use; and Table 7 – Brain Function (the last is the Table usually used for acquired brain injuries, such as those resulting from head trauma or stroke and the like).

19. Section 10 of the Rules for applying the Impairment Tables deals with selecting the appropriate Table and assigning ratings where common impairments result from multiple conditions or where a single condition causes multiple impairments.  Subsection 4(3) provides that impairment ratings must not be assigned under more than one Table for the same impairment. That suggests that the applicant’s loss of cognitive function should only be assessed under one Table. In particular, if he has cognitive impairment from alcohol use, it is most appropriate in my view that that impairment should be assessed under Table 6 rather than Table 7.

20. The applicant’s conditions are considered in turn below.

    Alcohol and drug dependency

21. The evidence regarding the applicant’s present relationship with alcohol and drugs is a little inconsistent. In 2014 he said he had reduced his alcohol use but his heroin use was increasing; he told Mr Bedson in August 2018 that he had been alcohol free for seven years. Both statements cannot be true. I have no detailed knowledge of the applicant’s current drug use, if any; I have no report from AA regarding his continued participation in that organisation’s activities; Dr Rofail says he is “recovering” from drug and alcohol addiction; but no more detailed information is available. The condition is clearly fully diagnosed, but the evidence is too incomplete to allow me to conclude that it is fully treated and fully stabilised. I cannot assign a rating under the Impairment Tables.

22. The cognitive impairment identified as possible by Mr Bedson does not have sufficient backing and recognition to allow its consideration. It is not clear whether Mr Bedson was intending to identify a separate condition or a symptom of drug and alcohol use. Nor is it clear that a registered psychologist is a suitable practitioner to diagnose and assess such a condition, rather than, for example, a neuropsychologist. And Mr Bedson’s identification of the possible condition is itself tentative. I cannot take any cognitive impairment to the applicant into consideration as a separate condition.

    Mental health

23. Given the trauma and difficulties in the applicant’s background, it is perhaps no surprise that he has been left with a legacy of mental health problems. Table 5 – Mental Health Function requires that a diagnosis of a mental health condition be made by a psychiatrist or with input from a clinical psychologist. Mr Bedson, who is a registered but not a clinical psychologist, has provided a diagnosis of PTSD; Dr Antony, a psychiatrist, has provided a slightly different diagnosis. It dates from after the qualification period, but only by six weeks, and is clearly looking backward (Dr Antony states that the applicant has had the condition he diagnoses “since many years”). As argued in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558, at [88], a diagnosis made after the qualification period but referring to the applicant’s state during that period is adequate to meet the requirements of the Impairment Tables. The difference between Mr Bedson’s and Dr Antony’s diagnoses is not significant (it is very typical of variation among psychiatric diagnoses). I find the applicant’s mental health condition to be fully diagnosed.

24. I cannot, however, find the condition to be fully treated and fully stabilised. Both Mr Bedson and Dr Antony indicate an ongoing requirement for treatment, and neither suggests or even hints that treatment has reached maintenance level. As the applicant’s mental health condition is not fully treated and fully stabilised, I cannot assign a rating under the Impairment Tables.

    Inflammatory arthritis

25. The use of the adjective “inflammatory” by Dr Rofail and the use of “seronegative” in one medical certificate may suggest that enough exploration has been done to establish the condition with a degree of certainty. But to reach that conclusion is to do a great deal of reading between the lines. It assumes that blood tests have been done; that no inflammatory markers are present; but that the symmetrical swollen and reddened joints are sufficient to allow a diagnosis of inflammatory but seronegative arthritis. But there is no clear indication that these tests have in fact been done; there is no evidence that the applicant has seen a specialist (such as a rheumatologist); and no indication that, if a clear diagnosis has been arrived at, therapeutic options such as disease modifying agents have been tried or even contemplated.

26. I am not prepared to make the leaps of faith necessary to conclude that the applicant’s arthritis is fully diagnosed, let alone fully treated and stabilised. There is simply insufficient evidence for me to do so. I cannot assign the condition a rating under the Impairment Tables.

    CONCLUSION

1. I have been unable to assign any ratings to the applicant under the Impairment Tables. He does not meet paragraph 94(1)(b) of the Act, and he therefore does not qualify for DSP. I do not need to consider whether he has a continuing inability to work.

2. This is a sad and distressing case. The applicant is plainly significantly disabled and is probably unable to work. He was very upset during the hearing (although he appeared to be more troubled by his limited income than by his disabilities). He can make a new application for DSP, but to succeed he will need a much more complete file of medical evidence that allows a decision-maker to reach the necessary conclusions about both permanence and severity.

   I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.

   ……………………………………………………

   Associate

   Date:  20 December 2019

   Date of hearing:  28 November 2019

   Applicant:  In Person

   Solicitor for the Respondent:           K Defranciscis, Department of Human Services