Editors --- "Disability support pension: qualification; whether condition diagnosed and fully treated and stablised" [2014] SocSecRpr 4; (2014) 16(1) Social Security Reporter, Article 4

• GRAHAM and SECRETARY to the DFHCSIA
• Background
• Legislation
• Issue
• Evidence
• Consideration of the issues
• Formal decision

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Disability support pension: qualification; whether condition diagnosed and fully treated and stablised

GRAHAM and SECRETARY to the DFHCSIA

(2013/650)

Decided: 12th September 2013 by R.P Hadnley

Background

Graham was receiving newstart allowance. On 21 March 2012, he lodged a claim for a disability support pension (DSP) in respect of a back injury, panic attacks, anxiety, bipolar disorder, schizophrenia, and confusion. On 5 April 2012 a Job Capacity Assessment Report was completed. His psychiatric condition was assessed as being permanent and fully diagnosed but not fully treated or stabilised. No medical information had been provided about the back condition. The Assessor found that Graham had a temporary work capacity for 0 to 7 hours per week for the following year and a capacity for work with intervention of 15- 22 hours per week within two years. The application for DSP was rejected on 12 April 2012. Graham requested a review of the decision and lodged a further medical certificate. On 28 May 2012, an Authorised Review Officer affirmed the decision and Graham sought a review by the SSAT and provided a further medical report. On 29 August 2012, the SSAT affirmed the decision. On 19 September 2012, Graham lodged an application for a review of the SSAT decision by the Tribunal.

On 6 May 2013, another Job Capacity Assessment Report was prepared which identified two conditions: a psychiatric disorder and a spinal disorder. The spinal condition was found to be fully diagnosed but not fully treated or stabilised. The psychiatric condition was found to be neither fully diagnosed nor fully treated and stabilised. The Report found that Graham’s capacity for work within two years with intervention was only 8 to 14 hours per week.

Legislation

Section 94 of the Social Security Act 1991 (Cth) (the Act) provides:

(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;

...

(2) A person has a continuing inability to work because of and if the Secretary is satisfied that: (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); 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. ...

(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

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

Paragraph 6 states relevantly:

Impairment ratings

(3) An impairment rating can only be assigned to an impairment if:

(a) the person’s condition causing that impairment is permanent; and

Note: For permanent see subsection 6(4).

(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

...

Permanency of conditions

(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner;

and

(b) the condition has been fully treated; and

Note: For fully diagnosed and fully treated see subsection 6(5).

(c) the condition has been fully stabilised; and

Note: For fully stabilised see subsection 6(6).

(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

Fully diagnosed and fully treated

(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the

purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

(a) whether there is corroborating evidence of the condition; and

(b) what treatment or rehabilitation has occurred in relation to the condition;

and

(c) whether trearment is continuing or is planned in the next 2 years.

Fully stabilised

(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or (b) the person has not undertaken reasonable treatment for the condition and:

(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

The introductory notes to Table 5 – Mental Health Function include the following:

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 had not been made by a psychiatrist).

Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) required that Graham’s qualification for DSP be assessed as at the date he made his claim for DSP (21 March 2012) or in the 13 week period following the claim (ending 20 June 2012).

Issue

The issue was whether Graham’s impairments should attract an impairment rating of 20 points or more under the Impairment Tables (s.94(1)(b)). The Secretary stated that if the Tribunal found that his psychiatric condition was fully diagnosed, treated and stabilised and was given an impairment rating of at least 20 points under Table 5, then the Secretary accepted that he had a continuing inability to work.

Evidence

Graham told the Tribunal he had his first psychotic episode in 2007. He was hospitalised and treated. He had another episode in mid-2011 which was much worse. He was hospitalised and then

released under the care of the Community Mental Health Service. At the time of the hearing Graham said he was waiting to get another appointment with the Mental Health Service and was taking medication prescribed by his GP. He still suffered panic attacks, anxiety and got very emotional. He had difficulty concentrating because of the noise in his head. Graham said there had been no change in his psychiatric state over the past two years and his psychological state was ‘unbearable’.

Graham said his back had been troubling him since 2003. He had an L4/5 disc protrusion which was pressing on his nerve. He took Panadeine Forte as needed.

Graham’s partner gave evidence that Graham could barely get dressed in the morning without her making a decision for him and had great difficulty leaving the house. The Secretary contended that:

• Graham’s psychiatric condition had not been fully diagnosed, treated or stabilised as he had not been diagnosed by a psychiatrist;

• the medical evidence suggested that he had not been compliant with some recommended treatments and some further improvement in his condition was possible;

• his back condition was not fully treated or stabilised as a report from his GP suggested that he might benefit from physiotherapy.

Consideration of the issues

The Tribunal considered Graham’s psychiatric condition. The Tribunal noted the content of medical reports lodged by Graham and concluded that he had had at least two psychotic episodes: in April 2008 and July 2011. He had been treated with Risperidone from July 2011 and had remained under the care of the Community Mental Health Service and his GP following the second psychotic episode.

The Tribunal noted that in the case of some mental conditions, including those involving a psychotic episode, it can be difficult to identify the appropriate diagnosis and this might only be possible after reviewing a person’s response to treatment over a period of time. The Tribunal rejected the Secretary’s submission that during the relevant period there was no diagnosis by an appropriately qualified person. The clinical notes for the Community Mental Health Service showed that between July 2011 and June 2012, he was under the care of, in turn, two psychiatric registrars whose professional work would have been supervised by an experienced psychiatrist. His condition was also monitored by his GP.

The Tribunal was satisfied that:

• by the end of the 13 week period from the time of Graham’s claim there had been a diagnosis by an appropriately qualified medical practitioner that he was suffering from a psychotic illness and schizophrenia;

• his condition had been fully treated by the end of the 13 week period as he was under the care of the local Mental Health Service and his GP, was taking prescribed medication and the treatment was planned to continue;

• his condition was fully stabilised and given the nature of his condition and its past history, any further reasonable treatment was unlikely to result in any significant functional improvement in the next two years.

• The Tribunal found that his mental health condition should have been regarded as ‘permanent’. Having considered Table 5 – Mental Health Function the Tribunal was satisfied that, at the relevant time, Graham’s psychiatric condition was having ‘a severe functional impact on activities involving mental health function’ and should have been assigned an impairment rating of 20 points. This meant that his condition was classified as a ‘severe impairment’ pursuant to s.94(3B) of the Act and so the program of support requirement did not apply.

The Tribunal noted that the Secretary had conceded that Graham’s capacity for work within two years, with intervention, was less than 15 hours a week and the Tribunal was satisfied that, at the relevant time, Graham also satisfied s.94(1)(c) and so subject to meeting any other eligibility and payability requirements, was qualified for a DSP. The Tribunal considered the limited evidence relating to the back condition but as it was not necessary to do so, did not make any findings about it.

Formal decision

The decision was set aside and in substitution a decision was made that Graham satisfied s.94(1)(a)(b) and (c) of the Act and subject to meeting other eligibility and payability requirements

was qualified for a DSP.

[C.E.]