Gill; Secretary, Department of Families, Community Services and Indigenous Affairs and [2010] AATA 4 (7 January 2010)

Last Updated: 7 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5537

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Secretary, Department of Families, Community Services and Indigenous Affairs

Applicant

And

Mr Desmond Gill

Respondent

DECISION

Tribunal

Dr Ion Alexander, Member

Date 7 January 2010

Place Sydney

Decision

On 23 February 2007, Mr Gill did not have an impairment rating of 20 points or more. Therefore, he did not satisfy s 94(1)(b) of the Act and was not eligible for DSP. The decision under review is set aside.

.

.............................................

Dr Ion Alexander
Member

CATCHWORDS

SOCIAL SECURITY- Centrelink- Social Security Appeals Tribunal- Social Security Act 1991 (Cth)- Disability Support Pension- impairment rating- Impairment Tables- continuing inability to work- depression- alcohol and drug dependence- decision set aside.

LEGISLATION

Social Security Act 1991 (Cth) (superseded).

REASONS FOR DECISION

7 January 2010	Mr Ion Alexander, Member
INTRODUCTION

1. Mr Gill was granted the disability support pension (DSP) in December 2003 because of impairment suffered at that time.
2. On 23 February 2007, Centrelink cancelled Mr Gill’s DSP on the grounds that, despite an impairment rating of 25 points, he had a work capacity of 30 hours or more. Therefore, Mr Gill did not satisfy s 94(1)(c) of the Social Security Act 1991 (superseded)(the Act).
3. On 15 August 2007, Mr Gill applied to the Social Security Appeals Tribunal (SSAT) for review of the Centrelink decision. On 10 October 2007 the SSAT set aside the decision of Centrelink, and substituted it with a decision that Mr Gill’s circumstances satisfied ss 94(1)(a), (b) and (c) of the Act since the date of cancellation on 23 February 2007.
4. In this application the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) seeks review of the SSAT decision.
5. After having considered all the evidence before the Tribunal, I find that on 23 February 2007 Mr Gill was not eligible for DSP because his impairment rating was less than 20 points. As such, it is the Tribunal’s finding that Mr Gill did not satisfy s 94(1)(b) of the Act.
   

ISSUES

6. The relevant provisions of s 94(1) states that a person is qualified for DSP 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;

...

7. Subsection 94(2) of the Act states that a person has a continuing inability to work 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;

8. Also, s 94(5) of the Act in force at the time Mr Gill was granted DSP defines ‘work’ for the purposes of this section as work:

    (a)  that is for at least 30 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.

9. It was conceded by the Applicant that Mr Gill satisfied the requirements of s 94(1)(a).
10. Therefore the issues to be decided in this application are;
    • (a) Whether as of 23 February 2007 Mr Gill’s impairment rating was at least 20 points; and
    • (b) Whether Mr Gill’s impairment was, of itself, sufficient to prevent him from working for at least 30 hours per week

Mr Gill’s impairment rating at 23 February 2007:

Documentary Evidence

11. A Treating Doctor’s Report (TDR) dated 29 December 2006 diagnosed ‘alcoholism’ as a medical condition which had significant impact on Mr Gill’s ability to function, but provided no meaningful information to support this diagnosis and no useful assessment of Mr Gill’s functional impairment.
12. The report also listed ‘depression’ and ‘tremor(s)’ as medical conditions suffered by Mr Gill, which were generally well managed and caused minimal or limited impact on his ability to function.
13. A subsequent TDR by the same doctor, dated 1 June 2007, diagnosed ‘alcoholism’ and ‘depression’ as medical conditions that had a significant impact on Mr Gill’s ability to function.
14. Again, the report provided very limited information in respect of either diagnosis and, in particular, there was no explanation to support the change in Mr Gill’s functional capacity due to depression.
15. In a Job Capacity Assessment (JCA) report dated 8 February 2007 Mr Gill’s impairment rating was assessed as 15 points for ‘Alcohol Dependence’ using Impairment Table 20 and ten points for ‘Depression’ using Impairment Table 6.
16. In a JCA report dated 12 November 2007 an assessor assigned an impairment rating of ‘nil’ for depression on the basis that the condition was stable and had minimal impact on Mr Gill’s functional capacity. Mr Gill’s alcohol dependence was considered to be a temporary condition that had not been treated and stabilised, and therefore, was not eligible for an impairment rating.
17. In a JCA report dated 15 April 2008 Mr Gill was assessed as having no permanent conditions and therefore an impairment rating of nil was assigned.
18. In a report dated 11 March 2008 Associate Professor Foy, General Physician, noted that Mr Gill had started drinking alcohol at the age of 16. This rapidly reached a fairly high level until about ten years ago, when he switched to low alcohol beer because of abnormal liver function tests. .Professor Foy noted that Mr Gill had never been treated for alcoholism apart from some drug treatment with ‘acamprosate’, but without any counselling.
19. On examination, Professor Foy found no signs of chronic liver disease and concluded that, although Mr Gill did suffer from alcohol dependence, there were no obvious physical consequences. He also concluded that Mr Gill’s alcohol dependence was treatable.
20. In a follow up report dated 21 April 2008 Professor Foy stated that all Mr Gill’s blood tests were normal.
21. In a report dated 14 March 2008 Dr Vickery, Psychiatrist, noted that Mr Gill had a longstanding history of increased alcohol consumption which was currently up to six units of light beer daily. This made him tired at times, but with no apparent impact on his life situation.
22. Dr Vickery also noted in this report that Mr Gill was prescribed antidepressant medication about six years ago for his ‘reduced frustration tolerance when there had been frequent arguments with his wife’, and because ‘he would become moody if things did not go the way he wanted them to’.
23. Dr Vickery concluded that Mr Gill ‘did not demonstrate any clinical diagnosable psychiatric disorder or any incapacitating psychopathology or clinically significant psychiatric impairment’. Dr Vickery added that Mr Gill had significantly reduced his alcohol intake a ‘decade or so ago’ and that there was no objective evidence of clinical anxiety or depression.

Mr Gill’s Evidence

24. At the hearing Mr Gill gave evidence that in 1989 he was forced to resign from his position at Westpac because of problems related to drinking alcohol. Subsequently, he worked at the Railway Staff Credit Union for about one year, and the State Bank for about five years. From 2000 he worked intermittently on a casual basis with Westpac until he was granted DSP in 2003.
25. In 2004 he was offered a part-time permanent position with Westpac, which he still occupies. Mr Gill claimed that the position was created for him because of his past relationship with the bank. From 2004 to late 2008 Mr Gill worked three and a half days per week for a total of 28 ½ hours per week.
26. Mr Gill explained that travelling to and from work each day took about five hours. This involved bus travel between his home and the train station, and one train change on each leg of the journey.
27. Mr Gill conceded that he had negotiated his work hours to be less than 30 hours because of his DSP, and agreed that he could have worked for more than 30 hours.
28. In respect of his alcohol intake, Mr Gill stated that in 2000 he changed from full strength beer to half strength beer because of problems with his liver. Mr Gill indicated that, at the time, despite the significant decrease in alcohol content, he did not increase the volume of his drinking.
29. Mr Gill stated that since 2004 there had been no real problems as a result of his drinking, particularly, no problems with his work or absenteeism from work. Mr Gill indicated that he had never had a driver’s licence and that this had nothing to do with his drinking.
30. He estimated that in 2007 he was drinking, on average, about ten light beers per day. However, this varied so that on some days he would not drink at all. In April 2008 Mr Gill stopped drinking completely with no apparent effects apart from an increase in his longstanding ‘tremors’.
31. The only treatment Mr Gill has had for his excess alcohol intake was in 2000 when he was prescribed ‘Campral’. This medication had no apparent beneficial effect and was stopped after about three years. Mr Gill stated that in 2007 he was not having any treatment for excess alcohol consumption.
32. In respect of the diagnosed condition of depression, Mr Gill explained that he was started on the antidepressant medication ‘Lovan’ between ‘1996 and 1998,’ and has continued on this medication since.
33. Mr Gill gave evidence that, at that time, he was drinking heavily and his wife and daughter found him to be unbearable due to his consistently irritable, cranky and generally unpleasant behaviour. The antidepressant medication apparently helped with these issues.
34. Mr Gill indicated that apart from the consultation with Dr Vickery, he had never seen a psychiatrist.

Consideration

35. The task of assessing Mr Gill’s impairment rating as of 23 February 2007 has not been helped by the protracted time between the original decision by Centrelink and the current application. In addition the contemporaneous assessment of Mr Gill’s medical conditions and the impairment caused by these conditions can, in my view, best be described as less than satisfactory.
36. Schedule 1B of the Act provides several tables for the assessment of work-related impairment for DSP in respect of various medical conditions. Paragraph 4 of the Introduction to Schedule 1B states that :

‘A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised’.

...

37. As noted above, the TDR of 28 December 2006 provides limited useful information. It contains no meaningful explanation to support either the diagnosis of ‘alcoholism’ or ‘depression’, the two medical conditions that were assigned an impairment rating by the JCA on 8 February 2007. The subsequent TDR on 1 June 2007 was similarly unhelpful.
38. The report by Professor Foy dated 11 March 2008 confirms the diagnosis of ‘alcohol dependence’, however, it also clearly establishes that Mr Gill had never been satisfactorily treated for ‘alcoholism’, apart from a period of medication prior to 2007. Additionally, during the hearing Mr Gill agreed that in February 2007 he was not having any treatment with regard to his alcohol consumption.
39. Accordingly, I find that in February 2007 Mr Gill’s ‘alcohol dependence’ was not ‘treated and stabilised’ for the purposes of Schedule 1B. The fact that Mr Gill stopped drinking alcohol in April 2008 lends further support to the conclusion that his alcohol dependence was not ‘stabilised’ in 2007. Therefore, it could not be considered a condition eligible for the assignment of an impairment rating.
40. Furthermore, I note that the JCA report of the 8 February 2007 assigned 15 points for the condition of ‘Alcohol Dependence’ using Table 20 of Schedule 1B of the Act, the ‘Miscellaneous’ provisions. No explanation was provided as to why Table 7, the provision for ‘Alcohol and Drug Dependence’, was not used.
41. Table 7 provides for the assignment of five points if there is a pattern of drug use sufficient to cause intermittent or temporary absence from work. In my view this pattern would be consistent with Mr Gill’s description of his level of impairment in February 2007.
42. In respect of the condition of depression, I note that Dr Vickery’s report and Mr Gill’s own evidence appear to challenge this diagnosis.
43. The JCA report of 8 February 2007 assigned an impairment rating of ten points on the basis of ‘moderate and regular symptoms and general functioning with some difficulty.’
44. It is my finding that the evidence before the Tribunal does not support an impairment rating of ten points having regard to the Table 6 provisions for ‘Psychiatric Impairment’. Rather, it is more consistent with an impairment rating of nil points, which is assigned if there are mild but regular symptoms which tend to cause distress, minimal interference with function in every day situations, and if an exacerbation of symptoms may cause occasional days off work.
45. I note that this finding is also consistent with the JCA report of 12 November 2007.

CONCLUSION

46. In accordance with the reasons set out above I find that on 23 February 2007 Mr Gill’s impairment rating did not reach the necessary threshold of 20 points, therefore, the requirements of s 94(1)(b) of the Act have not been satisfied. Consequently, Mr Gill was not qualified for DSP.

Mr Gills Work Capacity as of 23 February 2007

47. Although it is no longer necessary for me to consider whether Mr Gill had a ‘continuing inability work’ pursuant to section 94(1)(c) of the Act, I note that in February 2007 Mr Gill had been in continuous employment for 28 ½ hours per week since 2004. Further, in his oral evidence during the hearing Mr Gill conceded that he had the ability to work additional hours albeit in a work environment that was tailored to his skills and needs.

DECISION

48. The decision of the SSAT dated 10 October 2007 is set aside and substituted with a decision that as of 23 February 2007 Mr Gill did not have an impairment rating of 20 points or more. Therefore, Mr Gill did not satisfy the requirements of s 94(1)(b) of the Act and was not eligible for DSP.
    

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

Signed:..................................................................................

Associate

Dates of Hearing 11 November 2009, 3 December 2009.

Date of Decision 7 January 2010.

Representative for the Applicant Ken Bullock- Centrelink Legal Services

Representative for the Respondent Matthew Unwin- Envoy Lawyers