ZHIVAGO HILL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 885

[2012] AATA 885  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3375
Re	ZHIVAGO HILL
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	17 December 2012
Place	Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd]...............................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Psychiatric impairment – Condition not fully diagnosed, treated and stabilised in the relevant period – No impairment rating under the Impairment Tables – Applicant not qualified for disability support pension – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

Social Security (International Agreements) Act 1999 (Cth) Sch 3

SECONDARY MATERIALS

Guide to Social Security Law s 1.1.S.110

REASONS FOR DECISION

Mr R G Kenny, Senior Member

17 December 2012

BACKGROUND

1. On 21 July 2011, Mr Zhivago Hill lodged with Centrelink a claim for disability support pension which is payable under the Social Security Act 1991 (Cth) (the Act). A medical report, by psychiatrist Dr Nick Kukuchi, was provided in support of the claim. Therein, Dr Kukuchi diagnosed “drug-induced psychosis” with date of onset 1 January 2011 and date of confirmed diagnosis 7 July 2011. Mr Hill’s claim was rejected by a Centrelink delegate on 22 September 2011. On 7 November 2011, an authorised review officer affirmed that decision as did the Social Security Appeals Tribunal on 24 April 2012.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for a disability support pension are set out in s 94 of the Act which, in so far as relevant to Mr Hill’s claim, reads:

   (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) …; and

   (d) the person has turned 16; and

   (da) …

   (e) the person either:

   (i) is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   …

3. To qualify for a disability support pension, all of the requirements in s 94(1) of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In Mr Hill's case, this is from 21 July 2011 until 20 October 2011 (the relevant period). The Introduction to Schedule 1B of the Act provides guidance in the application of the various Tables which it contains. Part of that introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.

   [1] See Schedule 2, clauses 3 and 4 of the Social Security (Administration) Act 1999 (Cth).

   EVIDENCE

4. Barbara Tofilau, Mr Hill’s mother, completed a statement on 4 December 2012 and gave evidence. She described Mr Hill’s psychiatric difficulties as commencing around mid-2008. His behaviour worsened to an extent where she arranged for his admission to the Ipswich Mental Hospital for two weeks in July 2011 where he saw Dr Kukuchi who diagnosed drug-induced psychosis. Because Mr Hill was reluctant to attend Goodna Community Health for follow–up treatment, Ms Tofilau arranged for him to see her own family doctor, Dr Sudeer Mahadeo. Ms Tofilau described Mr Hill as being compliant with his use of medication in recent times.

5. Mr Hill described some difficulty in taking prescribed medication but had managed his condition much better since consulting with psychologist Ms Claudine Chen from November 2011 and having his medication changed by Dr Mahadeo from tablets to injections from January 2012. Mr Hill agreed that he was a New Zealand citizen, that he first came to Australia in 2005 and that he held a sub-class TY444 visa.

6. In his initial report, Dr Kukuchi confirmed that he first examined Mr Hill on 8 July 2011 and entered a diagnosis of drug-induced psychosis. He described treatment at that time as comprising medication and social support. His opinion was that that Mr Hill’s condition was very likely to improve if he stayed “free from psychosocial stressors and away from drugs”. Dr Mahadeo provided a series of reports. On 19 September 2011, he confirmed Dr Kukuchi’s diagnosis and wrote that future treatment would comprise psychotherapy. On 14 December 2011, he referred to a history of schizophrenia and diagnosed psychosis with treatment by Risperdal tablets. On 6 January 2012, Dr Mahadeo diagnosed psychosis and again identified treatment with Risperdal tablets. On 26 January 2012, he diagnosed schizophrenia, noting the change from tablets to the injection form of Risperdal. On 8 October 2012, Dr Mahadeo noted that Mr Hill was being treated for paranoid schizophrenia with Risperdal injections and that he had been admitted to Ipswich hospital for the condition in September 2012.

7. Mr Hill received psychological counselling from mental health counsellor Ms Chen who completed reports on 10 January 2012 and 2 March 2012. She described Mr Hill as progressing well under her treatment which commenced on 11 November 2011. She described his emotional and psychological states as still being “variable due to the unpredictability of his long-standing mental health condition”.

8. Four Job Capacity Assessment (JCA) reports were completed in relation to Mr Hill’s circumstances. In reports dated 18 August 2011 and 13 October 2011, different reporters noted Dr Kukuchi’s comments and concluded that Mr Hill’s condition was not permanent in that it was not fully diagnosed, treated and stabilised. For that reason, no impairment rating was allocated. The reporters’ opinions were that Mr Hill had a baseline work capacity of 15 to 22 hours per week. In reports dated 13 February 2012 and 5 July 2012, the reporter accepted the final diagnosis of schizophrenia but considered that the condition was still not treated and stabilised and that there was a baseline work capacity of 8 to 14 hours per week and 15 to 22 hours per week, respectively.

   CONSIDERATION

9. The evidence of Dr Kukuchi and Dr Mahadeo is not supportive of Mr Hill’s psychiatric condition being fully diagnosed, treated and stabilised during the relevant period. Clearly, even the diagnosis of his condition was changed from drug-induced psychosis to schizophrenia by Dr Mahadeo. His treatment regimen was varied in January 2012 and he did not see Ms Chen, the psychologist, until after the relevant period. JCA reports completed during the relevant period by different assessors detailed the nature of Mr Hill’s treatment and fluctuating presentation of the condition in Mr Hill such that, in their opinion, the condition had not been fully diagnosed, treated and stabilised during the relevant period. In the absence of any medical or other evidence to the contrary, I accept the opinions expressed in the JCA reports. This means that no impairment rating may be allocated under the impairment tables in Schedule 1B of the Act.

10. During the relevant period, Mr Hill’s overall impairment is less than the threshold of 20 points required for him to qualify for the disability support pension under s 94 of the Act. For that reason, his claim for disability support pension is unsuccessful.

11. I have noted the opinions of the JCA reporters in relation to whether Mr Hill has a continuing inability to work as provided for in s 94(1)(c)(i) of the Act. However, I make no finding in relation to that component of s 94 of the Act or on Mr Hill’s Australian residence qualification as required by that provision.[2]

    [2] As well as s 7(2) of the Act as qualified by Article 2 of Schedule 3 of the Social Security (International Agreements) Act 1999 (Cth). See also the Guide to Social Security Law at 1.1.S.110.

    DECISION

12. The decision under review is affirmed.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

..........................[Sgd]..............................................

Associate

Dated 17 December 2012 

Date of hearing	4 December 2012
Advocate for the Applicant	Ms Barbara Tofilau
Solicitors for the Respondent	Mr Joe Guthrie