Al Tajir and Secretary, Department of Social Services (Social services second review)

Al Tajir and Secretary, Department of Social Services (Social services second review) [2021] AATA 202 (11 February 2021)
Division:GENERAL DIVISION
File Number: 2019/2043
Re:Abdul Al Tajir
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Date:11 February 2021
Place:Perth

The decision of Centrelink dated 6 August 2018 to cancel the Applicant’s disability support pension, as affirmed by the AAT1, is affirmed.
.........[Sgd]...............................................................
Member M East
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant’s disability support pension was correctly cancelled – whether the Applicant met the eligibility requirements for disability support pension at the Cancellation Date – whether conditions fully diagnosed, treated and stabilised – post-traumatic stress disorder, major depression, ischaemic heart disease, left knee condition and other conditions – assigning impairment ratings – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 27(3), 26, 94, 94(1), 94(1)(a), 94(2), 94(3), 94(5), part 2.3
Social Security (Administration) Act 1999 (Cth) – ss 80, 80(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 5, 6, 6(3), 6(4), Table 1, Table 3, Table 5
SECONDARY
Social Security Guide – 3.6.3.50
REASONS FOR DECISION
Member M East
11 February 2021
INTRODUCTION

The issue to be decided by the Administrative Appeals Tribunal (the Tribunal) is whether the decision to cancel the Applicant’s disability support pension (DSP) from 6 August 2018 (Cancellation Date) was correct.
BACKGROUND
The factual and historical background to this matter is accurately detailed in the Respondent’s Statement of Facts and Contentions (SFIC) which the Tribunal has reproduced below.
The Respondent submitted:
3. The Applicant was granted DSP with effect from 10 September 2008 for impairments caused by heart disease (T43/299).
4. On 9 November 2017, following a “tip off” received from a third party, the Department of Human Services (the Department) initiated a review of the Applicant's entitlement to DSP (T43/282).
5. On 16 April 2018, the Department issued a Medical Report for DSP Review for the Applicant to complete and return, which he did on 5 May 2018 (T27/205-218).
6. On 5 July 2018, the Applicant attended a face to face assessment with a Job Capacity Assessor (JCA), who produced a report on 30 July 2018 (T28/219-232). The recommendations of the JCA were as follows:
(a)the Applicant's allergic rhinitis and conjunctivitis were fully diagnosed, but not fully treated or stabilised, on the basis that medical evidence indicated the Applicant was still undergoing treatment;
(b)the Applicant's shoulder condition was fully diagnosed, but not fully treated or stabilised, on the basis that the Applicant was expected to benefit from further treatment, including physiotherapy and a prescribed, tailored exercise program;
(c)the Applicant's acute stress disorder was fully diagnosed, but not fully treated or stabilised, on the basis that there was insufficient evidence to substantiate the Applicant having received appropriate treatment over a sustained period;
(d)the Applicant's ischaemic heart disease was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 5 points under Table 1 of the Impairment Tables;
(e)the Applicant's left knee condition was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 5 points under Table 3 of the Impairment Tables;
(f)the Applicant's spinal condition was fully diagnosed, but not fully treated or stabilised, on the basis that the Applicant was expected to benefit from further treatment, including specialist review, physiotherapy, a tailored exercise program, weight loss and pain management education; and
(g)the Applicant's baseline and future work capacity within two years with intervention was 15-22 hours per week respectively.
7. On 6 August 2018, a decision was made to cancel the Applicant's DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T29/233).
8. On 20 September 2018, the Applicant sought review of the decision by an Authorised Review Officer (ARO) of the Department (T44/290).
9. On 24 September 2018, an ARO affirmed the decision under review (T32/240-248). The ARO found the Applicant to have a total impairment rating of 5 points, made up of:
(a)lschaemic heart disease — 5 points, Table 1; and
(b)Left knee condition — 0 points, Table 3
10.On 20 December 2018, the Applicant sought further review of the decision by the AAT1 (T39/270-277).
11.On 26 March 2019, the AAT1 affirmed the decision under review, agreeing with the findings of the ARO of a 5 point impairment rating (T2/6-14).
12. On 15 April 2019, an Application for Review of Decision was lodged in the General Division of the Administrative Appeals Tribunal (the Tribunal) (T1/1-5).
13. On 12 September 2019, the Applicant, through his representative, provided a Statement of Issues, Facts and Contentions, in which the following was noted:
(a)the Applicant accepted that his back and neck pain, left shoulder and upper arm disorder were not fully diagnosed, treated and stabilised at the date of cancellation;
(b)the Applicant's left knee condition was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 5 points under Table 3 of the Impairment Tables;
(c)the Applicant's mental health condition was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated between 10 and 20 points under Table 5 of the Impairment Tables;
(d)the Applicant's ischaemic heart disease was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated 5 points under Table 1 of the Impairment Tables; and
(e)the Applicant had a continuing inability to work.
The medical conditions which are to be considered by the Tribunal therefore are the Applicant’s left knee condition, mental health condition and ischaemic heart disease.
At the beginning of the hearing, Ms Belcher, on behalf of the Applicant, confirmed that ischaemic heart disease had been conceded between the parties as warranting an impairment rating of five points.[1] She further said the neck, back and shoulder conditions are not fully treated but the left knee is in dispute. The Respondent contends that the left knee condition attracts zero points and the Applicant contends that it only attracts five points. The main point of dispute is the mental health condition, with the Applicant contending that at the Cancellation Date it was fully diagnosed, treated and stabilised and attracted an impairment rating of 20 points.[2]
[1] Transcript, page 5.
[2] Transcript, pages 6-7.
The Tribunal agrees, based on the medical and other evidence provided, that the Applicant’s medical conditions of back and neck pain and left shoulder and upper arm disorder were not fully diagnosed, treated and stabilised at the Cancellation Date.
The Applicant in his submissions has stated that he lodged a new claim for DSP on
4 December 2019 which was accepted.[3] His previous DSP was cancelled on
6 August 2018, with effect from 17 September 2018. The period for which the Applicant may be entitled to payment of DSP is therefore from 17 September 2018 to
[3] Applicant’s closing submissions dated 25 September 2020, [1].
3 December 2019.
MATERIAL BEFORE THE TRIBUNAL
The hearing commenced on 12 March 2020. The parties appeared by telephone at the hearing with the assistance of an interpreter also by telephone. The Applicant was represented by Ms Belcher of Welfare Rights & Advocacy Service. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers. During the course of the hearing it became apparent that difficulties were arising from not having an in-person interpreter due to his inability to translate the documents Ms Jones-Bolla was referring to. The hearing was adjourned with the intention of having an in-person interpreter. Shortly afterwards, in-person hearings at the Tribunal were suspended due to restrictions imposed by the COVID-19 pandemic.
The hearing was eventually resumed in person on 14 September 2020 with the assistance of an in-person interpreter.
The Tribunal had the following material before it:
·Applicant’s SFIC dated 12 September 2019 (Exhibit A1);
·
Annexure 1 to the Applicant’s SFIC: Change of name certificate dated

24 November 2004 (Exhibit A2);
·Annexure 2 to the Applicant’s SFIC: Medical Report of Dr Nadhum Shimmari dated 11 June 2019 (Exhibit A3);
·Annexure 3 to the Applicant’s SFIC: Letter from Michael Philp, clinical psychologist, dated 4 September 2019 (Exhibit A4);
·Applicant’s Statement of Issues dated 10 June 2019 (Exhibit A5);
·Respondent’s SFIC dated 23 October 2019 (Exhibit R1);
·Respondent’s list of authorities (Exhibit R2); and
·T-Docs (T1 to T44; pp 1 to 310) dated 14 May 2019 (Exhibit R3).
Due to the lengthy delays that occurred during the hearing of this matter, the Tribunal sought written closing submissions from the parties. The Tribunal received these submissions from the Applicant on 25 September 2020 and from the Respondent on

8 October 2020.
ISSUES
The issue in this matter is whether the decision to cancel the Applicant’s DSP on

the Cancellation Date was correct.
Section 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act) provides for cancellation of a social security payment if a person is no longer qualified for that payment. Provisions relating to whether a person qualifies for DSP are contained in Part 2.3 of the Social Security Act 1991 (Cth) (the Act).
Pursuant to s 94 of the Act, the issues for determination before the Tribunal are as follows:
(a)whether the Applicant had any physical, intellectual or psychiatric impairments;
(b)whether the Applicant’s impairments may receive an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) and if so:
(i)whether those 20 impairment points are achieved under a single Impairment Table such that the Applicant has a severe impairment; or
(ii)whether those 20 impairment points are achieved under multiple Impairment Tables; and
(iii)whether the Applicant has a continuing inability to work.
LEGISLATIVE FRAMEWORK
The Tribunal is required to consider the provisions of the Act and the Administration Act.
The Minister has determined tables relating to the assessment of work‑related impairment for disability support pension pursuant to s 26 of the Act, namely, the Impairment Tables.
The Tribunal is also assisted by the Social Security Guide (the Guide).
Qualification for DSP
Section 80 of the Administration Act states:
(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);
the Secretary is to determine that the payment is to be cancelled or suspended.
(Note omitted.)
Section 94(1) of 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; …
Section 27(3) of the Act states:
(3) If:
(a)a person is receiving disability support pension; and
(b)the Secretary gives the person a notice (the assessment notice) under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
the Secretary, in assessing the person’s qualification for that pension, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
(Original emphasis.)
The Impairment Tables
Section 5 of the Impairment Tables states:
(1)In applying the Tables, regard must be had to the principles set out in subsections (2) and (3).
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Note omitted.)
Section 6 of the Impairment Tables provides:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
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
(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
(c) the condition has been fully stabilised; and
(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 treatment 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.
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
(Notes and examples omitted.)
Qualification period
The Tribunal is required to consider the Applicant’s eligibility for DSP as at the Cancellation Date, being 6 August 2018.
CONSIDERATION
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?
The Respondent has conceded that at the Cancellation Date the Applicant suffered from impairments due to his various conditions.
Having reviewed the medical and other evidence presented, the Tribunal finds that the Applicant suffered from the following impairments:
·ischaemic heart disease;
·a mental health condition;
·a left knee condition;
·a left shoulder and upper arm disorder; and
·back and neck pain.
As noted earlier, the Applicant has conceded that the conditions of back and neck pain and left shoulder and upper arm disorder were not fully treated and stabilised as at

the Cancellation Date.[4]
[4] A1, para [3].
The Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Do the Applicant’s impairments receive an impairment rating of 20 points or more?
To attract a rating under the Impairment Tables, the condition from which the Applicant suffers must be fully diagnosed, treated and stabilised at the Cancellation Date.
The Tribunal has considered each condition in dispute and assigned an impairment rating where appropriate.
Post-traumatic stress disorder and major depression
Mr Philp, clinical psychologist, in a letter dated 25 October 2017, noted symptoms of ‘Acute Stress Disorder’.[5] In a subsequent letter dated 8 October 2018, he also recorded the Applicant as displaying symptoms of post-traumatic stress disorder (PTSD).[6] Mr Philp said that this PTSD arose out of the Applicant’s involvement in a car accident in May 2017. Mr Philp provided a further letter addressing the functional impairment on the Applicant due to his mental health condition.[7] As well as describing the Applicant’s symptoms, he said the Applicant spends most of his time alone, avoiding his friends and not taking care of himself. Dr Singh, consultant psychiatrist, provided a report dated

28 November 2018[8] in which he diagnosed the Applicant with complex PTSD with major depression in the context of several psychosocial factors including finances, Centrelink issues and social isolation. Suggested treatment was pharmaceutical (daily need for medication), goal-oriented cognitive behavioural therapy and support options from within the community, such as Beyond Blue.
[5] T23, page 200.
[6] T35, page 258.
[7] T36, page 259.
[8] T37, page 262.
In a later letter dated 4 September 2019 (provided as an attachment to the Respondent’s SFIC), Mr Philp said the Applicant was first referred to him on 23 October 2017 for treatment related to major depression and PTSD following a car accident in May 2017. He said he had seen the Applicant for 10 sessions, which had concluded on 21 August 2019. Mr Philp stated:
Mr Al Tajir has difficulty attending appointments for psychological treatment without the aid of close friends who both chaperone him to appointments and act as an interpreter. He finds it too difficult to drive to our appointments due to the distance, which is something that has occurred over the past two years. Mr Al Tajir’s English is insufficient to conduct a therapy session without an interpreter.
My impression is that Mr Al Tajir has exhausted the psychological treatment options available to him. His symptoms have worsened and stabilised over the past two years. Given the ongoing pain and physical mobility issues he continues to experience, it is unlikely that he will make any improvement in his mental health condition in the next two years.

As noted above, the date at which the Tribunal must consider the Applicant’s eligibility for DSP is the Cancellation Date, that is, 6 August 2018.
An impairment rating can only be assigned for an impairment arising from a condition that is permanent (s 6(3) of the Impairment Tables). Permanent is defined in s 6(4) to have a specific meaning in this context. Relevantly, the condition must be fully diagnosed, fully treated and fully stabilised and more likely than not to persist for at least two years.
Mr Philp’s evidence is clear in that he regarded the Applicant’s treatment as complete by 21 August 2019. Whilst acknowledging the various barriers posed to successful treatment, he was also of the opinion that the Applicant’s mental health condition had worsened and stabilised and at that point was unlikely to significantly improve.
The Respondent in her SFIC submitted that the Applicant’s mental health condition at the Cancellation Date was not fully diagnosed, treated or stabilised.
Considering the issue of diagnosis, the Tribunal finds that Mr Philp did vary his diagnosis from ‘Acute Stress Disorder’ in October 2017 to PTSD in October 2018. Mr Philp’s explanation was that there had been a deterioration in the Applicant’s mental health condition from the initial diagnosis. The Tribunal finds that the condition of PTSD was diagnosed at least by October 2018. The report of Mr Philp dated 4 September 2019 stated that ‘since’ October 2017 the Applicant’s mental health condition had deteriorated to develop PTSD and major depression. However, he does not specify when this deterioration took place. Despite his report of 7 November 2018 referring to both ‘symptoms of Major Depression and Post-Traumatic Stress Disorder following a car accident in May 2017’, the contemporaneous medical evidence at the relevant time does not indicate that the Applicant was diagnosed with PTSD prior to the Cancellation Date.
The earliest recorded diagnosis of PTSD from Mr Philp is in his report of 8 October 2018.
In his oral evidence, the Applicant discussed his personal history of coming to Australia as a refugee in 1999 from Kuwait.[9] He was in a detention centre for three years when he arrived and after being granted a humanitarian visa in 2002, he moved to Perth. His evidence was that he was in a ‘bad state’.[10] He further said he was told he had a ‘mental health condition’ but he was too embarrassed and ashamed to seek treatment. His oral evidence was that he received medication while in immigration detention and had taken it from that time.[11]
[9] Transcript, pages 10-11.
[10] Transcript, page 11.
[11] Transcript, page 12.
The Applicant also gave evidence that his wife and four children remained in Kuwait. He said they were not successful in applying for a visa and he has lost contact with them.
He said he tries to consult doctors who speak Arabic and discussed seeing ‘Dr Michael’. The Tribunal understands this to be Mr Philp, the clinical psychologist. The Applicant discussed his car accident and how his tendency to have nightmares had increased and ‘became worse and worse’ since the car accident.[12] He also said he was ‘agitated, on the edge’ and had memory and temper problems which resulted in him having no friends.
[12] Transcript, page 13.
In a medical certificate completed by Dr Alizadeh, general practitioner, dated

23 November 2004,[13] the Applicant was diagnosed with ‘depression’ with symptoms of ‘low mood, fatigue [and] insomnia’. Treatment was listed as ‘Avanza’ and ‘counselling’.
[13] T5, page 94.
In a Work Capacity/Participation Assessment Report dated 8 December 2004,[14] the rehabilitation consultant noted the Applicant was treated for depression after not seeing his children for 14 years. It said he has had counselling from ASeTTS (Association for Services to Torture and Trauma Survivors) but has not consulted a psychiatrist for his condition. It was noted that the depression affected his ability to concentrate. The assessor had psychology qualifications.
[14] T6, pages 95-106.
Dr Alizadeh provided a further report, dated 6 January 2005, citing a long history of depression.[15] Clinical features are noted as low/flat mood with fatigue, insomnia and slight paranoid ideation. It also refers to anxiety/panic states occurring. Treatment was again listed as Avanza and counselling. The same certification was given on 5 October 2005.[16]
[15] T7, page 108.
[16] T8, page 115.
A Work Capacity/Participation Assessment Report dated 23 November 2005[17] notes the ongoing condition of depression with ‘low mood, fatigue and sleep deprivation and poor concentration and excessive worry about his children overseas’. The report also states that the Applicant has ‘[m]oderate regular symptoms. Functioning with some difficulty due to low mood, sleep deprivation fatigue, socially withdrawn, poor concentration [and] anger’. The assessor had psychology qualifications.
[17] T9, pages 116-125.
The same diagnosis of depression is recorded in January 2007 by Dr Alizadeh.[18]
[18] T10, page 129.
The Job Capacity Assessment (JCA) Report dated 9 February 2007[19] refers to the condition of depression as ‘temporary as although Mr [Al] Tajir has attempted counselling and exercise for his condition no other treatment plans have been attempted such as pharmacological interventions or specialist interventions such as psychiatric services’.
[19] T12, page 147.
The Applicant was again assessed for a JCA Report on 30 April 2008,[20] where diagnoses of ‘post traumatic stress disorder’ and ‘depression’ were given. The assessor is recorded as being a ‘registered psychologist’. In relation to both conditions, the assessor noted in her report that the Applicant requires psychiatric treatment and services and a treatment regime review.
[20] T15, pages 164-174.
A further JCA dated 19 September 2008 was also prepared. It was recorded that the Applicant experienced depression and was taking medication but he was unsure of future treatment.[21] Even though the condition was considered at that time to be permanent, it was reported as being well managed, causing nil to minimal functional impact and attracting an impairment rating of zero.
[21] T17, pages 185.
A medical report prepared for the purposes of the DSP review was completed by

Dr Hassan, general practitioner, on 5 May 2018.[22] The condition of ischaemic heart disease is recorded as the condition ‘with most impact’. Back pain and shoulder pain are listed as further conditions having an impact. In response to the question ‘[d]oes the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?’ Dr Hassan lists the following: ‘hypertension, dyslipidemia, benign prostatic hyperplasia, anxiety and depression, hay fever, memory problems, [unclear], piles, polyps – colon, left knee pain (ligament injury)’.[23] No further information was provided in respect of these conditions.
[22] T27, pages 205-218.
[23] T27, page 217.
A further JCA Report undertaken by a registered psychologist dated 30 July 2018 was provided.[24] The diagnosis of ‘acute stress disorder’ is reported with it being fully diagnosed but not fully treated and stabilised. The JCA reported ‘[t]here is a lack of evidence to substantiate the client having been provided with appropriate treatment over a period of time such as would be expected to significantly assist with his psychological functioning’.
[24] T28, pages 219-232.
A review of the medical reports demonstrates a history of a mental health disorder dating back to 2004, although there is a suggestion that he had similar issues since his arrival into Australia in 1999.
The Applicant also confirmed in cross-examination that he stopped taking his medication but was unable to confirm it was in 2008.[25]
[25] Transcript, page 46.
For the Tribunal to accept the condition of PTSD as permanent however, it needs to be satisfied that the condition was fully diagnosed, treated and stabilised at the qualifying date, that is the Cancellation Date, being 6 August 2018.
Furthermore, that diagnosis needs to have been made by a psychiatrist or clinical psychologist. Repeated diagnoses are made by the Applicant’s general practitioners for depression and/or anxiety. A diagnosis of PTSD was also made by an assessor, a registered psychologist in 2008.
The Introduction to Table 5 – Mental Health Function requires the diagnosis of the condition to be made by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
There can be cases where a diagnosis by a non-psychiatrist doctor precedes or

post-dates evidence from a clinical psychologist. For example, a person may visit their general practitioner, who diagnoses anxiety and depression and then refers the patient for counselling with a clinical psychologist. That psychologist then provides corroborative evidence.
A clear reading of the Introduction requires either a diagnosis by a psychiatrist or by another appropriately qualified medical practitioner. If that practitioner is a general practitioner, evidence directly related to the diagnosis is required by a clinical psychologist.
As to the definition of ‘clinical psychologist’, the Guide at 3.6.3.50: ‘Guidelines to Table 5 – Mental Health Function’ provides that for the purposes of the Impairment Tables, a ‘clinical psychologist’ is taken to be ‘a psychologist registered with the Australian Health Practitioner Regulation Authority with an area of practice endorsed as clinical psychology by the Psychology Board of Australia’.
The first diagnosis of PTSD was made in April 2008 by an assessor, a registered psychologist for the purposes of providing a JCA.[26]
[26] T15, page 165.
Whilst his qualifications or accreditations are not provided, it is not sufficient as submitted by Ms Belcher for the assessor to have a ‘qualification in psychology’ or be a ‘Centrelink registered psychologist’. There must be at least a clinical setting in which the psychologist is treating or assessing the patient. To find otherwise would remove the need for independent evidence of diagnosis and treatment.
If a medical practitioner referred a patient to a psychologist for assessment and treatment that may be sufficient for the purposes of the Impairment Tables, even if they do not have a ‘clinical’ endorsement from the Australian Health Practitioner Regulation Authority.
In looking at the purpose of the Impairment Tables, it is for the express purposes of s 94(1)(b) of the Act and the assessment rating of work-related impairment.
The rule in Table 5 is for the express purpose of ensuring the diagnosis is either made by a psychiatrist or a suitably qualified medical practitioner supported by or consistent with evidence from a clinical psychologist.
The sole purpose here is to determine whether the mental health condition is ‘permanent’, which includes being ‘fully diagnosed’ for the purposes of s 6(3) of Part 2 of the Impairment Tables.
The involvement of the clinical psychologist is for evidence arising from a clinical assessment of the psychological signs, symptoms and presentation of the patient.
The Tribunal is not excluding a ‘registered psychologist’ from the term ‘clinical psychologist’. However, the registered psychologist would need to have an established clinical practice available to provide assessment and treatment on referral by a medical practitioner.
This has not occurred in this case. Even though registered psychologists have reported on the Applicant’s depression and PTSD, in the same report they have considered his hypertension, spinal disorder and lower limb deficiencies.
This leaves the Tribunal with the only diagnosis being provided by various general practitioners. The rule in Table 5 is quite clear that that evidence must be supported by a clinical psychologist (however defined). For the reasons outlined above, until the reports of Mr Philp the Tribunal does not have that corroborating evidence.
The Tribunal finds that the earliest recorded diagnosis of PTSD, which is supported by a clinical psychologist, is by Mr Philp, in October 2018, after the Cancellation Date.
Accordingly, the Tribunal is unable to find the condition of PTSD to be fully diagnosed as at the Cancellation Date, being 6 August 2018. As such it is unable to assign the condition of PTSD an impairment rating.
The Applicant had a diagnosis of depression in January 2004 by Dr Alizadeh.[27] As noted above, the same diagnosis was given in 2007, 2008 and May 2018.
[27] T7, page 108.
Dr Hassan’s report of May 2018 records anxiety and depression as being well managed and causing minimal and limited impact on his ability to function. The Tribunal finds the condition of major depression was not diagnosed by Mr Philp until October 2018, a diagnosis supported by Dr Singh in his report dated 28 November 2018.
Whilst the Tribunal accepts that the Applicant has had mental health issues dating back as early as 1999, a thorough review of all the medical reports provided does not demonstrate a diagnosis at any time by the appropriately qualified professional prior to the Cancellation Date. As such the Tribunal cannot find his mental health conditions as diagnosed at the Cancellation Date.
This makes any consideration by the Tribunal of whether the Applicant undertook reasonable treatment not necessary.
Ischaemic heart disease
Medical records demonstrate that the Applicant suffered from hypertension in 2008 complicated by ongoing angina with symptoms of headaches and blurred vision. He was also diagnosed as suffering from angina with chest pain and had an investigative angiogram.[28]
[28] T13, pages 149-163.
The Tribunal finds on review of the subsequent medical information provided that this condition appears to be stable and well managed.
In applying Table 1 – Functions requiring Physical Exertion and Stamina, the Tribunal accepts that five impairments points is the appropriate rating to be applied because the condition results in a mild functional impact on activities requiring physical exertion and stamina.
Left knee condition
The Applicant’s left knee condition was first reported in December 2002,[29] together with back pain. He was certified as unfit for work for two months and was restricted from carrying heavy objects. This condition was regarded as temporary at the time.
[29] T4, page 93.
Left knee pain is again recorded in January 2005.[30] The injury is stated to relate to an old sporting injury, with complications following surgery on the meniscus in Kuwait. At the time, the Applicant was recorded as walking with restricted movement. The same reports were given in 2007, with an updated diagnosis of ‘left knee post injury arthritis’.[31] The JCA report of the same year recorded the Applicant’s knee condition as being temporary ‘due to pending further diagnostic/medical intervention via an appointment with a specialist on 6/2/07’.[32]
[30] T7, page 110.
[31] T10, page 127.
[32] T12, page 147.
The JCA report in July 2018 found that the Applicant’s lower limb deficiencies were fully diagnosed, treated and stabilised. The assessor referred to the reports of Drs Hassan and Alizadeh.[33] Relying on the report of his general practitioner, Dr Hassan, the assessor said further treatment is unlikely to significantly improve the Applicant’s lower limb functioning. The Applicant stated that he continues to experience knee pain and self-reported symptoms to the assessor as follows:
his knee gives way and it feels like something has separated inside the knee. He said that he is able to squat for a matter of seconds and is able to kneel when he is praying but that it hurts, and he mostly prays on a chair. He said that his accommodation was changed to ground floor level so that he would not need to access stairs.
[33] T28, page 224
Based upon the treating general practitioner’s report together with the JCA report, the Tribunal finds that the Applicant’s left knee condition is permanent and therefore able to be assigned an impairment rating.
The relevant Table is Table 3 – Lower Limb Function.
In cross-examination, Ms Jones-Bolla questioned the Applicant on whether he was able to use public transport in August 2018. He said he had a car and could use public transport. He said after his car accident he mostly used public transport.[34]
[34] Transcript, pages 22-23.
The Applicant also gave evidence that he drove to his local IGA to buy cigarettes, which is about 500 metres from his house.[35]
[35] Transcript, page 25.
Limited evidence is available for the Applicant’s left knee condition. The AAT1 noted that the Applicant’s evidence was that he wore a knee splint when walking and managed quite well, and that walking distance is restricted due to his heart disease, not his knee.[36]
[36] T2, 12.
A report provided by the Applicant from Dr Shimmari states:
Mr Abdul Aziz Al Tajir is regular patient of our clinic and he presented with chronic left knee pain and restriction of movements following ACL injury in the 1980s which has resulted in osteoarthritic changes in the knee joint. Patint [sic] reported that he is unable to walk more than 100m without significant pain and it also limits his ability to squat and kneel for long time.[37]
[37] Exhibit A3.
Dr Shimmari’s report is dated 11 June 2019, which is after the Cancellation Date. The report is short on detail and does not specify when the Applicant became a patient of the practice and when he reported these restrictions in his movement.
Even though there is a long history of reported knee pain arising out of an accident in Kuwait, there is insufficient evidence of the functional impairment the Applicant has when performing activities. The 2018 JCA report rated the Applicant’s impairment at five points, however AAT1 assessed him at zero points. The Respondent in her submissions said there was no medical evidence to suggest the Applicant was either unable to stand for more than 10 minutes or required the use of a lower limb prosthesis or walking stick to mobilise effectively at the Cancellation Date.[38]
[38] Exhibit R1, paragraph [45].
The Tribunal agrees with this submission and finds that at the Cancellation Date the appropriate impairment rating to be assigned to the left knee condition under Table 3 is zero.
Back and neck condition, and left shoulder and upper arm condition
As conceded by the parties in both their SFIC and orally at the hearing, these conditions were not fully diagnosed, treated and stabilised at the Cancellation Date and accordingly cannot be considered to be permanent.
Other condition
The Applicant had also claimed the condition of allergic rhinitis. No submissions were provided by the Applicant for this condition at the hearing and therefore the Tribunal is unable to make a finding on this condition.
Continuing inability to work
In view of the Tribunal’s finding that the Applicant’s medical conditions only attract an impairment rating of five points, well short of the required 20 points, the Tribunal has not addressed the issue of his continuing inability to work.
CONCLUSION
Accordingly, the Tribunal finds that as at the Cancellation Date, being 6 August 2018, the Applicant did not meet the qualification criteria for DSP. Therefore, the decision to cancel the Applicant’s DSP on this date was correct.
DECISION
The decision of Centrelink dated 6 August 2018 to cancel the Applicant’s disability support pension, as affirmed by the AAT1, is affirmed.

I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Member M East

....[Sgd]....................................................................
Associate
Dated: 11 February 2021

Dates of hearing: 12 March 2020 and 14 September 2020

Representative for the Applicant: Ms C Belcher, Welfare Rights & Advocacy Service

Representative for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers

[2021] AATA 202

11 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Dates of hearing:	12 March 2020 and 14 September 2020
Representative for the Applicant:	Ms C Belcher, Welfare Rights & Advocacy Service
Representative for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers