Parkes and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 269 (23 April 2009)

Last Updated: 27 April 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4057

GENERAL ADMINISTRATIVE DIVISION		)
	Re		STEPHEN PARKES

Applicant

And

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

Respondent

DECISION

Tribunal

Ms A F Cunningham (Senior Member)

Date 23 April 2009

Place Hobart

Decision

The decision under review is affirmed.

[Sgd Ms A F Cunningham]
Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - qualification criteria - condition of depression not permanent - no impairment rating assigned - decision under review affirmed

Social Security Act 1991, section 94

Social Security Administration Act 1991, sections 41, 42 and Schedule 2, clauses 3 and 4 and the Tables for the Assessment of Work-Related Impairment as contained in Schedule 1B of the Act.

REASONS FOR DECISION

23 April 2009

Ms A F Cunningham (Senior Member)

1. This was an appeal against a decision of Centrelink which rejected Mr Parkes' application for a disability support pension (DSP) on the basis that he did not satisfy the qualification criteria. The decision was affirmed by an authorised review officer and by the Social Security Appeals Tribunal (SSAT) on 18 August 2008.
2. The appeal hearing was conducted by telephone to Mr Parkes who appeared on his own behalf. Flemming Aaberg appeared on behalf of the respondent. The T Documents were admitted into evidence. The Tribunal also received into evidence a faxed copy of a letter dated 4 April 2009 from Mr Parkes' general practitioner, Dr Katherine Nemeth.
3. Mr Parkes' original claim for DSP was lodged on 29 April 2008, together with a Treating Doctor's Report by Dr Pava of the same date. On 22 April 2008, a Job Capacity Assessment Report was completed with a second Job Capacity Assessment Report completed on 15 May 2008. Both reports were written by registered psychologist, Charles Crocker.

LEGISLATION

4. The qualification criteria for DSP are contained in the Social Security Act 1991 (the Act) and in particular section 94. Also relevant are the Social Security Administration Act 1991 (the Administration Act), sections 41, 42 and Schedule 2, clauses 3 and 4 (start day) and the Tables for the Assessment of Work-Related Impairment as contained in Schedule 1B of the Act.
5. Schedule 2, clauses 3 and 4 of the Administration Act states that if a person is not qualified for the payment on the day on which the claim is made but becomes qualified within 13 weeks of lodging the claim, the start day is the day the person became qualified.
6. Mr Parkes lodged his claim form on 29 April 2008. He must accordingly satisfy the qualifying provisions of the Act either on that date or during the period up to 29 July 2008.
7. The qualifying provisions as contained in section 94 read as follows:

(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) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and ..."

8. Mr Parkes has been diagnosed with depression and it is accepted that sub-graph 94(1)(a) is met.
9. In the Introduction to the Tables for Work-Related Impairment in Schedule 1B of the Act, it is stated at paragraph 4 that for a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. Paragraph 5 states that the condition must be considered to be permanent and is accepted as being permanent if on the available evidence it is more likely than not it will persist for the foreseeable future, that is lasting for more than two years. Further, that a condition may be considered fully stabilised, if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment within the next two years.
10. Paragraph 6 of the Introduction states:

"In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

• What treatment or rehabilitation has occurred;
• Whether treatment is still continuing or is planned in the near future;
• Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years".
  

11. A continuing inability to work is assessed in accordance with section 94(2) of the Act which reads:

A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) 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) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; ..."

12. Work is defined in section 94(5) as:

"(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market."

THE EVIDENCE

13. The Tribunal is required to be satisfied on the evidence before it that Mr Parkes met the qualification criteria as outlined above either on 29 April 2008, being the date he lodged his claim for DSP or within 13 weeks thereafter, that is up to and including 29 July 2008.
14. The evidence relied on was that contained in the T Documents which included a copy of Mr Parkes' claim and supporting medical report by Dr Pava, PSP Exit Report by Mission Australia dated 7 March 2008 and the Job Capacity Reports dated 22 April 2008 and 15 Mary 2008.
15. In Dr Pava's report he records a diagnosis of depression and refers to current and future planned treatment of psychological support. With reference to past treatment Dr Pava also referred to psychological support and some medication. He was uncertain as to whether Mr Parkes was compliant with the recommended treatment. Dr Pava stated that he expected the current impact of the condition on Mr Parkes' ability to function was expected to persist for more than 24 months and further that he was uncertain as to the affect of the condition on Mr Parkes' ability to function within the next two years.
16. In the PSP Exit Report undertaken by Mission Australia it is stated that Mr Parkes had been encouraged to seek professional counselling and it was expected that with consistent counselling and medical intervention Mr Parkes would improve.
17. In the second Job Capacity Assessment Report completed on 15 May 2008, Charles Crocker, Registered Psychologist, states:

"Treatment details: Long term, chronic condition that has not been optimally treated. Onset in approximately 2001 reactive to relationship issues, client has previously been prescribed antidepressant medication (Dr Pava: 29/04/2008). Client is awaiting commencement of psychotherapy and reports an intention to seek medical treatment (ie, recommence antidepressant medication). With the provision of such interventions, it is optimistically anticipated that this client's symptomatology and functionality will show marked improvement within the next 12 months".

18. Mr Crocker acknowledges Mr Parkes' incapacity to work due to the severity of his symptoms but went on to state "with appropriate psychiatric/psychological intervention functionality is likely to improve". Mr Crocker expected that the symptoms were likely to have a continuing negative effect on Mr Parkes' work capacity for the next twelve months which was then temporarily limited to 0 to 7 hours. However with the stabilisation of his psychiatric condition, it was Mr Crocker's opinion that Mr Parkes is likely to benefit from vocational rehabilitation services which would assist him to improve his occupational functioning in general and build his work capacity specifically up to 30 plus hours per week. He stated that there are no permanent conditions that are fully diagnosed, treated and stabilised.
19. In the report from Mr Parkes' current general practitioner, Dr Katherine Nemeth of 4 April 2009, she states that Mr Parkes has been seeing the psychologist, Sue Benney on a regular basis and is waiting on an appointment to see Dr Pusic psychiatrist. Mr Parkes informed the Tribunal that his appointment is scheduled for 21 April 2009.
20. Whilst Dr Nemeth confirms Mr Parkes' depressive condition, she states that Mr Parkes has only been a patient of her practice for the last six months. The report is of little if any assistance to the Tribunal in determining whether Mr Parkes satisfied the qualification criteria for a DSP during the relevant period.
21. In his evidence to the Tribunal Mr Parkes stated that he had received some psychological/psychiatric treatment in 2002 and again in 2005. Whilst he said that he had counselling following that time, there was no evidence of any further psychiatric/psychological intervention as recommended in the Job Capacity Assessment Reports.

DETERMINATION

22. The Tribunal accepts that Mr Parkes' diagnosed condition of depression satisfies the qualification requirements of section 94(1)(a).
23. There is no evidence however to satisfy the Tribunal of an impairment rating of twenty points or more as required by sub-section 94(1)(b). Not only is there no evidence of an impairment rating for Mr Parkes' condition, none could be assigned as the evidence is that his depressive condition has not been fully treated and stabilised. Although the condition has been diagnosed, on the evidence, the Tribunal is unable to accept that for the relevant period, it could have been accepted as a permanent condition in that it would persist for the foreseeable future. The evidence from Mr Crocker was that with appropriate psychiatric/psychological intervention Mr Parkes' functionality was likely to improve and that he would benefit from vocational rehabilitation services. Whilst Mr Parkes maintains that he still suffers from the condition and that his functionality has worsened rather than improved, it was his evidence that he has not undergone the recommended intervention treatment. The Tribunal accordingly has no way of assessing whether at the relevant time the condition could be considered to be permanent. The evidence supports a conclusion that the condition was not then fully stabilised or unlikely to improve with the recommended treatment.
24. Mr Parkes informed the Tribunal that he is in the process of obtaining psychiatric treatment but has had difficulty in securing an appointment. Whilst the Tribunal is heartened to hear that Mr Parkes is now seeking treatment, this is of no assistance in determination of the issue as to whether he satisfied the qualification criteria for a DSP at the relevant time.
25. On the available evidence the Tribunal agrees with the determination under review and accordingly affirms it.
26. As the Tribunal has found that Mr Parkes failed to meet the qualification criteria of an impairment rating of 20 points or more as required by sub-section 94(1)(b) of the Act, there is no need to consider whether Mr Parkes had a continuing inability to work as required by sub-section 94(1)(c) of the Act.
    

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed: [Sgd R Hunt]............................

R Hunt (Administrative Assistant)

Date of Hearing 7 April 2009

Date of Decision 23 April 2009

Representative for the Applicant Applicant on his own behalf
Representative for the Respondent Mr Flemming Aaberg