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

[2018] AATA 3855

ZGQY and Secretary, Department of Social Services (Social services second review) [2018] AATA 3855 (16 October 2018)

Division:GENERAL DIVISION

File Number:           2018/1671

Re:ZGQY  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:16 October 2018

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal finds that ZGQY satisfies subsection 94(1) of the Social Security Act 1991 (Cth) and has done so since the date of his claim on 5 May 2017.

...........................[sgd].............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – mental health condition – whether applicant’s condition attracted 20 points or more under the Impairment Tables during the relevant period – set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) s 94,

Social Security (Administration) Act 1999 (Cth) s 42

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

16 October 2018

INTRODUCTION

1. The applicant, ZGQY, lodged a claim for disability support pension on 5 May 2017.

2. On 25 May 2017, the Department of Human Services (Centrelink) rejected the applicant’s claim for the disability support pension on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 5 January 2018.

3. The applicant then applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 26 February 2018, the SSCSD affirmed the decision by Centrelink to reject the applicant’s claim for disability support pension.

4. On 3 April 2018, the applicant lodged an application for review to the General Division of the Tribunal.

5. The matter was heard in Sydney on 25 September 2018. The applicant did not have legal representation; he attended the hearing and gave oral evidence in person.

   RELEVANT LEGISLATION

6. To qualify for the disability support pension, the applicant must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, the applicant must satisfy these criteria on 5 May 2017 when he applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (the claim period).

   Rules for assigning impairment ratings 

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevant to this matter, the introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition:

    …must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    CONSIDERATION

    Issue 1 – Does the applicant have impairment?

14. The Tribunal is satisfied from the medical evidence that the applicant suffers from post-traumatic stress disorder (PTSD). He therefore satisfies the first criterion. The Tribunal considered this condition with reference to the Act.

    Issue 2 – Does the impairment rate at least 20 points under the Impairment Tables?

15. The applicant has a traumatic history of sexual abuse. Medical certificates completed by Dr ‘T’ (general practitioner) on 10 May 2017 and 31 October 2017 stated the applicant has been diagnosed with PTSD and experiences symptoms of anxiety, depression, anger, frustration and lethargy.

16. I note the applicant’s claim for disability support pension was rejected by Centrelink, both initially and on review, because no further medical evidence was provided to support his claim. In particular, the applicant did not provide any reports from a clinical psychologist or psychiatrist that set out a diagnosis of the applicant’s condition as required by the introduction to Table 5 – Mental Health Function of the Impairment Tables Determination.

17. Prior to the SSCSD hearing, the applicant filed the following documents with the Tribunal:

    ·An assessment report by psychologist ‘A’ dated 7 October 2002.

    ·An assessment report by consultant clinical psychologist ‘B’ dated 11 October 2002.

    ·A report by senior consultant psychiatrist ‘C’ dated 17 October 2002.

    ·A report by consultant forensic and general psychiatrist ‘D’ dated 10 August 2003.

    ·A psychological report by clinical psychologist ‘E’ dated 10 July 2006.

18. These assessments and reports set out the following information in relation to the applicant’s history, diagnosis and symptoms.

19. The applicant was diagnosed with PTSD by psychologist ‘A’ and clinical psychologist ‘B’ in 2002 following his experience of sexual assaults by two Catholic priests over a 10-year-period, approximately from 1984 to 1992. The assaults began when the applicant was 12 years old.

20. Psychologist ‘A’ described the applicant experiencing ‘recurrent and intrusive distressing recollections of the assaults including images, thoughts, and perceptions’.[1] The assessment by clinical psychologist ‘B’ stated the applicant had psychological symptoms of ‘physiological hyperarousal’ including problems with sleep and recurrent nightmares, anger and loss of temper, impaired concentration and forgetfulness, depressed mood and suicidal ideation.[2]

    [1] Exhibit T-T18, p 209.

    [2] Exhibit T-T18, pp 212-213.

21. The report by senior consultant psychiatrist ‘C’ noted the applicant displayed diagnostic criteria for PTSD and further observed that many of the applicant’s features are consistent with anti-social personality disorder.[3]

    [3] Exhibit T-T18, p 226.

22. Consultant forensic and general psychiatrist ‘D’ opined the applicant suffered PTSD as a result of a ‘prolonged period of sexual abuse’ and experienced ‘sleep disturbance, dreams of the assaults, and flashbacks’ in addition to alcohol abuse and pathological gambling.[4] Psychiatrist ‘D’ noted the applicant’s ‘complete lack of self-identity’ and ‘chronic rage’ also suggested borderline personality disorder. In terms of treatment, psychiatrist ‘D’ stated: ‘I do not see any sort of treatment as a viable option at the present time, and involuntary admission to a psychiatric hospital would undoubtedly greatly worsen his condition’.[5]

    [4] Exhibit t-T18, p 236.

    [5] Exhibit T-T18, p 236.

23. The report by clinical psychologist ‘E’ was compiled for the purpose of a compensation claim. Clinical psychologist ‘E’ noted initial difficulties in assessing the applicant because of his ‘angry, belligerent, loud and argumentative’ behaviour.[6] The report confirmed the applicant suffers from many symptoms commonly found in a traumatic stress reaction, and his social and occupational functioning (social, work, intimate relationship and intrapsychic functions) is seriously impaired. Clinical psychologist ‘E’ opined the applicant is likely to suffer from PTSD ‘indefinitely’ but that long term psychotherapy and cognitive behaviour therapy may assist the applicant to ‘work through his multilayered issues’ arising from the sexual abuse.[7] 

    [6] Exhibit T-T18, p 240.

    [7] Exhibit T-T18, p 248.

24. At the Tribunal hearing, the applicant explained that he discontinued seeing psychologists, clinical psychologists and psychiatrists from about 2006. He said his treatment of counselling was funded by the Catholic Church. However, this treatment and funding ceased in 2006 because the applicant believed the treatment was ‘not helpful’ and he had concerns his treating psychologist/psychiatrist was reporting information about him to the Catholic Church.

25. The applicant told the Tribunal he has tried cognitive behaviour therapy, medication and counselling, and none of these treatments have worked for him. The applicant said he has been part of a support group for the past 10+ years for men who have experienced sexual abuse. He said that this support group was originally a formal weekly session organised by a local hospital and it has continued to operate as an informal support network of people who have had similar experiences and support each other. The applicant said he found the support and understanding provided by this group, and spending time alone (preferably fishing), was the most effective treatment for him.

26. The applicant told the Tribunal that he reported his experiences to the Royal Commission into Institutional Responses to Child Sexual Abuse and he is currently involved in further legal proceedings. The applicant lives alone. He divorced from his wife in 2017 after many periods of separation. He has few friends due to his anger and is ‘just starting’ to reconnect with his parents and siblings. He said he struggles to get out of bed at least twice a week. He has difficulty concentrating to even watch TV due to ‘zoning out’. While the applicant participated in the hearing without a legal representative, his behaviour was unpredictable and he verbally threatened the respondent’s representative. The applicant had difficulties concentrating and recalling his thoughts. It was evident that, although the applicant was attempting to act in a manner appropriate to a Tribunal hearing, he was struggling to control his anger, behaviour and language.

27. After the Tribunal hearing, the applicant filed a further report from consultant psychiatrist ‘D’ dated 26 September 2018. Notably, consultant psychiatrist ‘D’ outlined the difficulty in taking a conventional history and mental state examination of the applicant – both in 2003 and 2018 – because of his anger. Consultant psychiatrist ‘D’ observed the applicant’s level of anger ‘which amounted to rage at times’ was also reported by the other clinical psychologists and psychiatrists.[8]  

    [8] Exhibit A4.

28. Consultant psychiatrist ‘D’s report provided the following assessment of the applicant’s impairment:

    Self-care and personal hygiene

    He not uncommonly neglects to shower. He washes his clothes once a week. He does not eat regular meals.

    Social and recreational activities

    He has virtually no social life because he tends to get angry in company. He sometimes goes fishing on his own. He said that he has a new girlfriend, although the relationship has only just begun and he has only seen her three or four times.

    Travel

    He has no problem with driving. However, he finds it hard to travel on trains, because he becomes too anxious.

    Social functioning

    He has divorced from [his wife] who has custody of the children. He has minimal contact with his family. He said he used to have a very large number of friends but because of his anger he has scarcely any friends now.

    Concentration, persistence and pace

    He is aware that he had become forgetful in recent times and his memory is now quite poor. However he said that in the past few months he has started reading newspapers and cooking and gardening books.

    Employability

    He has been unable to work for some time. He would not be able to do any work which involved working as part of a team or with other employees. (This symptom of needing to be alone and avoiding any close contact with others is a cardinal symptom PTSD).

29. The Secretary, in written submissions dated 7 September 2018, contended that the applicant’s PTSD cannot be considered fully diagnosed, treated and stabilised in view of  the absence of detailed current medical evidence.

30. I accept the Secretary’s contention that, in circumstances where the reports of clinical psychologists and psychiatrists is dated more than 10 years ago, it would be usual to consider the evidence is not current. However, I find the circumstances of the applicant are not usual. The applicant’s circumstances have been and continue to be traumatic.

31. I am satisfied the evidence of clinical psychologists and psychiatrists described above show a consistent diagnosis that the applicant has PTSD.

32. I also find, supported by the evidence, the applicant has engaged with treatment in as much as his symptoms of PTSD allow him. In making this finding, I note that it has been difficult for the applicant to engage with treatment and maintain an ongoing relationship with a psychologist, clinical psychologist or psychiatrist due to his complex history of abuse and PTSD, and in particular, his anger. The applicant’s capacity to engage with clinical psychologists or psychiatrists has also been affected by his understanding that his previous treating psychologist/psychiatrist conveyed information about him to the Catholic Church.

33. I accept the applicant’s evidence that the most effective treatment for him has been the support provided for the past 10+ years by people who have experienced similar trauma. I also accept that the applicant’s condition is likely to continue indefinitely, as stated by clinical psychologist ‘E’, and is unlikely to ever be stable. For these reasons, I am satisfied the applicant’s condition was permanent during the claim period.

34. In accordance with Table 5 – Mental Health Function of the Impairment Tables Determination, I find the applicant has a severe functional impact on activities involving mental health function and assign 20 points as the applicant meets the relevant criteria for interpersonal relationships, concentration and task completion, behaviour, planning and decision-making, and work/training capacity.

    Issue 3 – Does the applicant have a continuing inability to work?

35. Pursuant to paragraph 94(1)(c) of the Act, the applicant must have a continuing inability to work because of his impairment. Subsection 94(2) of the Act provides that a person has a ‘continuing inability to work because of an impairment’ where:

    (aa)      in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)  in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)  in all cases—either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

36. Subsection 94(3B) sets out that a person’s impairment is ‘a severe impairment if the person’s impairment is of 20 points of more under the Impairment Tables, of which 20 points or more are under a single Impairment Table’.

37. The applicant has a severe impairment because he has been assigned 20 points under a single Impairment Table and so he is not required to have actively participated in a program of support as set out in paragraph 94(2)(aa) of the Act.

38. The next issue I must consider is whether the applicant’s impairment is of itself sufficient to prevent him from doing any work independently of a program of support within the next two years; and either his impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years, or such activity is unlikely to enable him to do any work independently of a program of support within the next two years.

39. An Employment Services Assessment (ESA) report for the applicant dated 4 May 2016 assessed his baseline work capacity as 15-22 hours per week and his capacity to work within two years with intervention as 23-29 hours per week.[9] The ESA report considered the applicant’s condition was not permanent, which I find is inconsistent with the medical evidence. The documents before the Tribunal do not show that Centrelink has undertaken a Job Capacity Assessment report with the applicant.

    [9]  Exhibit T-T6, p 104.

40. On the basis of the applicant’s medical evidence, which has been extensively set out in my findings above, I am satisfied that his impairment is of itself sufficient to prevent him from doing any work independently of a program of support during the next two years. This is particularly so as the finding of 20 points under Table 5 reveals that he would be unable to attend work, education or training over a lengthy period. I am therefore satisfied that the requirement in paragraph 94(2)(a) is met.

41. I now consider whether, as required by subparagraphs 94(2)(b)(i) and (ii), the applicant’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years; or because of this impairment, any training activity is unlikely to enable the applicant to do any work independently of a program of support within the next two years.

42. On the basis of all the evidence, which has been extensively set out above, I find the applicant’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years and that any training activity is unlikely to enable the applicant to do any work independently of a program of support during the next two years. I am therefore satisfied that the requirement in paragraph 94(2)(b) is met.

43. For the reasons set out above, I find the applicant has a continuing inability to work as required by paragraph 94(1)(c) of the Act.

    CONCLUSION

44. The Tribunal is satisfied that the applicant was qualified to receive the disability support pension during the relevant claim period.

    DECISION

45. The decision under review is set aside and, in substitution, the Tribunal finds that ZGQY satisfies subsection 94(1) of the Social Security Act 1991 (Cth) and has done so since the date of his claim on 5 May 2017.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[sgd]............................................

Associate

Dated: 16 October 2018

Date(s) of hearing:	25 September 2018
Date final submissions received:	9 October 2018
Applicant:	In person
Solicitors for the Respondent:	Mr D McLaren