El-Hares and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 15 (12 January 2009)

Last Updated: 12 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0999

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MOHAMAD EL-HARES

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr I Alexander, Member

Date 12 January 2009

Place Sydney

Decision

The Tribunal decides that: (i) The decision under review is set aside. (ii) In substitution the Tribunal decides that at the time of his application Mr El-Hares satisfied the requirements of s 94(1) of the Act and did qualify for DSP.

..................[sgd]............................
Dr I Alexander
Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – psychiatric condition – whether condition fully diagnosed, treated and stabilised – whether condition permanent – failure to undertake medical treatment – impairment rating – continuing inability to work – decision under review set aside

Social Security Act 1991 – s 94, Sch 1B

Social Security (Administration) Act 1999 – ss 41, 42, Sch 2 cl 3, cl 4(1)

Dragojlovic v Director-General of Social Security [1984] FCA 6; (1984) 1 FCR 301

Koutsakis v Director-General of Social Security (1985) 10 FCR 42

Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358

REASONS FOR DECISION

12 January 2009

Dr I Alexander, Member

INTRODUCTION

1. Mr El-Hares lodged a claim for a Disability Support Pension (“DSP”) on 21 November 2007 on the basis that he suffered psychiatric impairment because of chronic depression.
2. Centrelink rejected the claim on 19 December 2007 following a Job Capacity Assessment (“JCA”) which determined that Mr El-Hares’ psychiatric condition was not fully diagnosed, treated and stabilised as required by Schedule 1B of the Social Security Act 1991 (“the Act”).
3. A decision of Social Security Appeals Tribunal (“SSAT”) dated 4 March 2008 affirmed Centrelink’s decision and found that Mr El-Hares did not satisfy the requirements of s 94(1)(b) of the Act and was not entitled to DSP.
4. Mr El-Hares seeks review of this decision in the current proceeding.
5. Mr El-Hares gave oral evidence at the hearing on 21 November 2008, but was not represented.
6. After having considered all the available evidence and for the reasons set out below I find that Mr El-Hares did meet the requirements of s 94(1) of the Act, and therefore did qualify for DSP which means that his application for review has been successful.

ISSUES

7. Section 94 of the Act sets out the requirements for DSP and in order to qualify Mr El-Hares needed to meet the following criteria:
   • He must have had a physical, intellectual or psychiatric impairment (s 94(1)(a)); and
   • His impairment rating was required to be 20 points or more under the Impairment Tables (s 94(1)(b)); and
   • He must have had a continuing inability to work (s 94(1)(c)(i)).
8. The Social Security (Administration) Act 1999 provides that the impairment ratings must be determined as at the date of the claim or within 13 weeks of lodging the claim (ss 41, 42, Sch 2 cl 3, cl 4(1)).
9. Therefore the “relevant dates” for the assessment of Mr El-Hares in respect of his qualification for DSP was 21 November 2007 to 21 February 2008.

DOCUMENTARY EVIDENCE

10. Submitted at the time of the DSP claim was a Treating Doctor’s Report (“TDR”) completed by Dr Ali, consultant psychiatrist, which listed Dysthymia (chronic depression) as a condition that had a significant impact on Mr El-Hares’ ability to function.
11. Dr Ali noted that there had been a slow onset of symptoms about four years earlier and listed various symptoms including depressed mood, sleep difficulties, tiredness and poor concentration, but provided no meaningful assessment as to functional impairment.
12. In a report dated 29 January 2008 Dr Ali noted that he first saw Mr El-Hares in December 2004 following a referral from his general practitioner (“GP”) and that he “had seen him on various occasions since then.”
13. Dr Ali again noted that Mr El-Hares’ symptoms had started in 2004 and had been progressing slowly. He diagnosed Adjustment Disorder with Depression and Dysthymia (Chronic Depression) and indicated that treatment included antidepressant medication and supportive psychotherapy.
14. Dr Ali commented that the progress of symptoms had been slow and that some of the symptoms had persisted despite treatment.
15. Dr Ali expressed the opinion that Mr El-Hares was not fit to work because of his symptoms of depression and added that the disability would certainly persist for more than two years and in his view would continue indefinitely.
16. On 11 July 2007 Mr El-Hares was placed on a court imposed good behaviour bond on the condition that he was “To accept the guidance of a psychiatrist or psychologist, to take medication as prescribed and to attend for counselling, rehabilitation or educational development in accordance with medical advice.”
17. A JCA was performed on 4 December 2007, and in the accompanying report the assessors concluded that Mr El-Hares’ psychiatric condition was not fully diagnosed, treated and stabilised so that an impairment rating under Table 6, contained in Schedule 1B of the Act, could not be assigned.
18. The assessors’ conclusion appeared to be based on an assumption that Mr El-Hares had been seeing a psychiatrist for only six months, was not compliant with taking medication and had not informed his psychiatrist about the recent onset of “hearing voices”.
19. On the basis that Mr El-Hares suffered from no permanent conditions that were fully diagnosed, treated and stabilised, the assessors concluded that his net work capacity was 15-22 hours per week (after a temporary reduction in work capacity to 0-7 hours per week expiring on 3 February 2008 to allow Mr El-Hares the opportunity to focus on his “psychological treatment”). It was anticipated that with appropriate intervention Mr El-Hares’ work capacity could increase “to the full-time bandwidth” (30+ hours per week). Without intervention the assessors considered that his future work capacity would remain 15-22 hours per week.

MR EL-HARES’ EVIDENCE

20. In his oral evidence Mr El-Hares stated that he left school after year 11 when aged between 16 and 17 years. After a short period at TAFE he worked for about one year with an aluminium window manufacturer.
21. At the age of 18 years in 2001 Mr El-Hares stated that he began to suffer symptoms of depression and was started on antidepressant medication by his GP. He continued on this medication until his supply ran out when he was in Lebanon in 2003 and claims to have suffered significant problems because of withdrawal symptoms.
22. On returning to Australia in 2004 Mr El-Hares tried various jobs, but found that his difficulties with his mood and poor concentration resulted in frequent anger and loss of control so after two to three weeks he would usually leave or get sacked.
23. In 2004 his GP referred him to Dr Ali who prescribed antidepressant medication. Initially Dr Ali saw Mr El-Hares on a regular basis every two to three weeks, but over time the visits have become more intermittent.
24. Although Mr El-Hares was somewhat vague on the issue of his medication he agreed that he had been tried on different forms of antidepressant medication and conceded that his compliance had been erratic. He added, however, that apart from helping him to sleep, the medication did not appear to help his symptoms, and said that he was worried about side effects, particularly addiction.
25. Mr El-Hares indicated that he felt that the medication and his visits with Dr Ali were not helping him.
26. Mr El-Hares stated that he is currently living with his parents again as he had tried living alone or with his sister but was unable to cope. He said that he spends a lot of time at home with his father, has few friends and does not socialise very much even with his siblings.
27. Mr El-Hares said that although he has a driver’s licence he is reluctant to drive because he is easily frustrated and gets angry. He described an incident involving the police which caused him to be charged for an offence and resulted in the court imposed good behaviour bond noted above.
28. Mr El-Hares stated that he had been attending a Personal Support Programme regularly for about two years, and said that it had been his regular counsellor who had suggested that he apply for DSP.
29. In his oral evidence Mr El-Hares described various unusual feelings and sensations which in my view could not be considered to be “hallucinations” or “hearing voices” in the context of psychiatric diagnosis.

CONSIDERATION

30. Schedule 1B of the Act provides various Tables to be used for the assignment of an impairment rating in respect of a medical condition when assessing eligibility for DSP.
31. The Respondent concedes that Mr El-Hares suffers from a psychiatric condition, but submits that the condition has not been “fully treated and stabilised” because Mr El-Hares is not compliant with his prescribed antidepressant medication, and therefore an impairment rating cannot be assigned.
32. The Introduction to Schedule 1B states that a rating can only be assigned to a condition that is a “fully documented, diagnosed condition which has been investigated, treated and stabilised.” In addition, the condition must be considered permanent which means lasting for more than two years and unlikely to show “any significant functional improvement, with or without reasonable treatment, within the next 2 years.”
33. In order to assess whether a condition is fully diagnosed, treated and stabilised it is necessary to consider, among other things, “whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.”
34. In respect of this issue paragraph 6 of Schedule 1B states inter alia that:

... In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.

35. In the decision of Smithers J in Dragojlovic v Director-General of Social Security [1984] FCA 6; (1984) 1 FCR 301 at 305 his Honour said:

... In any case in which treatment is refused the question for the respondent or the Tribunal is not whether the refusal is reasonable or otherwise, but whether, on the probabilities, the refusal is genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse ...

36. In Koutsakis v Director-General of Social Security (1985) 10 FCR 42 the Full Federal Court noted at 45:

The cases make it clear that the mere failure of a person to undertake medical or other treatment which is recommended to him does not disentitle him from receiving a pension or an award of compensation ...

Their Honours agreed with and adopted the reasoning of Smithers J in Dragojlovic and said:

... there is no finding that the appellant’s fears are not genuinely entertained by him. In our opinion, the mere fact that the appellant’s fears are groundless does not make them unreasonable if they are genuine.

37. In the decision of Heerey J in Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358 his Honour applied the reasoning of Smithers J in Dragojlovic to the text of Schedule 1B of the 1991 Act (both Dragojlovic and Koutsakis referred to provisions in the Social Security Act 1947) and said that the test in respect of a person refusing to undergo reasonable treatment in the context of obtaining a pension was not an objective test that requires the person show some reason or fact external to his or her decision but:

On the contrary, the emphasis is on subjective good faith, or lack thereof, in the person’s decision, however irrational it may seem.

38. Mr El-Hares has conceded that at the time of his application for DSP he was not taking the antidepressant medication prescribed by his psychiatrist, primarily, because the medication did not help his symptoms and because he had concerns about adverse effects of the medication.
39. On the evidence before me I have no reason to doubt that Mr El-Hares’ reluctance to take medication was bona fide.
40. The evidence in my view demonstrates that at the time of his application for DSP Mr El-Hares had suffered from depression for about six years and had been under the care of a psychiatrist for at least three years. During this time, despite treatment with varied antidepressant medication, albeit somewhat intermittently, there appears to have been no significant functional improvement. My impression is that Mr El-Hares’ underlying condition has remained fairly constant or, if anything, has shown some deterioration and that, although medication may have improved his symptoms from time to time, it does not appear to have had any significant effect on his functional impairment.
41. In the JCA report, relied on by the respondent, the assessors did not dispute the diagnosis of Dysthymia (chronic depression) but appeared to consider that Mr El-Hares’ psychiatric condition was not fully diagnosed, treated and stabilised on the basis that he had been seeing a psychiatrist for only a relatively short period, was not taking his prescribed medication and had not disclosed to Dr Ali that he had recently started “hearing voices”.
42. In my view, this assessment appears to have been based on an incomplete history and a somewhat superficial consideration of Mr El-Hares’ psychiatric condition that was not consistent with either his evidence or the report provided by Dr Ali. As noted above, it is my view that what Mr El-Hares described as “hearing voices” could not be considered as such in the context of psychiatric diagnosis.
43. Furthermore, the assessors provided no evaluation of the benefits or risks associated with taking the medication, did not indicate why the treatment was reasonable and did not note why Mr El-Hares had chosen not to continue taking the medication.
44. For these reasons, in respect of the issue as to whether Mr El-Hares’ psychiatric condition was fully treated and stabilised, I have placed little weight on the JCA and find that I am satisfied that at the time of his application for DSP Mr El-Hares’ psychiatric condition was fully diagnosed, treated and stabilised.
45. Although I accept that treatment may improve Mr El-Hares’ symptoms the evidence, in my view, does not support a conclusion that treatment is likely to result in any significant functional improvement in the next two years. That is, I consider that Mr El-Hares’ condition is permanent.
46. Therefore I find that in Mr El-Hares’ case it is appropriate to assign an impairment rating under Table 6 of the Impairment Tables in Schedule 1B of the Act.
47. The respondent contended that, if the Tribunal found Mr El-Hares’ condition to be fully diagnosed, treated and stabilised, Mr El-Hares’ symptoms are such that an appropriate impairment rating under Table 6 should be limited to 10 points on the basis that there is no medical evidence to support a contention that he has anything more than “moderate and regular symptoms, causing some difficulty.”
48. In order to be assigned a rating of 20 points under Table 6 the psychiatric disorder must be associated with serious symptoms or impairment in functioning that requires treatment by a psychiatrist, for example, “serious anti-social behaviour”. The disorder should also be associated with “significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.”
49. Mr El-Hares’ evidence was that he had not been in regular employment for more than six years, and that since 2004 whenever he had been employed his capacity to work for more than two to three weeks was usually limited by difficulties that arose because of his psychiatric condition.
50. Also Mr El-Hares described a lifestyle of significantly reduced social contact and limited recreational activity which, in my view, would clearly be considered contrary to the normal behaviour expected of a 25 year old man.
51. I note that the respondent did not challenge Mr El-Hares’ sworn evidence, and I have no reason to doubt the veracity of this evidence.
52. On the issue of anti-social behaviour it is relevant that Mr El-Hares had been placed on a court imposed good behaviour bond about four months before his application for DSP and that an essential condition of the bond was to continue psychiatric treatment. I can only infer that the court had considered that the offence committed by Mr El-Hares was significantly related to his psychiatric condition.
53. For these reasons it is my opinion that there is sufficient evidence before me to assign an impairment rating of 20 points under Table 6.
54. It follows, therefore, that Mr El-Hares at the time of his application for DSP satisfied the requirements of section 94(1)(b) of the Act.
55. The final issue to consider is whether at the time of his application for DSP Mr El-Hares had a continuing inability to work.
56. In the JCA report the assessors considered that in December 2007 Mr El-Hares had a current net work capacity of 15-22 hours per week.
57. For the reasons I have noted above it is my view that the assessors had underestimated the nature and severity of Mr El-Hares’ psychiatric condition and therefore I consider that it would be appropriate to adjust their assessment of his net work capacity to a lower level which means less than 15 hours per week.
58. I note that this assessment would be consistent with the opinion of Dr Ali.
59. It follows that at the time of his application for DSP Mr El-Hares did have a continuing inability to work, and therefore satisfied the requirements of s 94(1)(c) of the Act which means that at the time of his application he did qualify for DSP.

DECISION

60. For reasons set out above:
    • (i) The decision under review is set aside.
    • (ii) In substitution I find that the preferable decision is that at the time of his application Mr El-Hares satisfied the requirements of s 94(1) of the Act and did qualify for DSP.
      

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed: ..............[sgd]..................................................................

Associate

Date of Hearing 21 November 2008

Date of Decision 12 January 2009

Appearance for the Applicant Self-represented

Advocate for the Respondent Mr K Bullock, Centrelink Legal Services and Procurement Branch