Arman and Secretary, Department of Social Services (Social services second review) - [2019] AATA 678

Arman and Secretary, Department of Social Services (Social services second review) [2019] AATA 678 (10 April 2019)
Division:GENERAL DIVISION
File Number: 2018/0898
Re:Izad Arman
APPLICANT

Secretary, Department of Social Services And
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:10 April 2019
Place:Melbourne

The Tribunal affirms the decision under review.
..[sgd]......................................................................
Member K. Parker
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – osteoarthritis (right knee) – post-traumatic stress disorder – persistent depressive disorder (dysthymia) – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised and likely to persist for longer than two years – whether applicant had undertaken reasonable medical treatment – impairment of lower limb function – meaning of “assistance” in Table 3 of the Impairment Tables – impairment of mental health function – whether applicant had “continuing inability to work” – whether applicant met “program of support” requirements – meaning of “actively participated in a program of support” – decision affirmed
Legislation
Administrative Appeals Act 1975 (Cth) – ss 35, 37
Social Security Act 1991 (Cth) – s 23, 26, 94
Social Security (Administration) Act 1999 (Cth) ss 13, 42 and Schedule 2, clause 4
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 – s 3, 6, 11
Social Security (Active Participation for Disability Support Pension) Determination 2014 – ss 7, 8
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Plant and Secretary, Department of Social Services [2018] AATA 3860
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (DSM-5)
REASONS FOR DECISION
Member K. Parker
10 April 2019
INTRODUCTION

This application is about whether the Applicant, Izad Arman,[1] was entitled to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (Act) on the date he made a claim for DSP or within the 13-week period to follow.[2]
[1] The Applicant is also known as “Sarkawt Ismail”. The Secretary, Department of Social Services, lodged a set of documents with the Tribunal on 23 March 2018, pursuant to its obligations under s 37 of the AAT ACT (T-Documents). Refer T-Documents T3/13.
[2] In accordance with s 42 and cl 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (Administration Act), a person must qualify for the DSP on the date of their claim or within the following 13 weeks.
Mr Arman contacted Centrelink, the service delivery agency for the Department of Social Services, by telephone on 9 June 2017 about his intention to make a claim for DSP. On 22 June 2017, Mr Arman lodged a DSP claim form with Centrelink.[3] Accordingly, the relevant qualification period in this case against which Mr Arman’s eligibility for the DSP must be tested is 9 June 2017 to 8 September 2017 (Qualification Period).[4]
[3] Refer T-Documents T3/41.
[4] Section 13(1) of the Administration Act provides that a claim is taken to have been made on the date the person first contacted Centrelink about making a claim, provided the claim form was lodged within 14 days of that contact.
Mr Arman listed his medical conditions to include “depression/PTSD” and “R knee – Osteoarthritis”. Mr Arman stated his knee was injured when he was hit (as a pedestrian) by a car in Iraq following which he was taken to a hospital. Mr Arman did not state what had caused the onset of his mental health issues, other than to indicate that he had been very upset when 11 of his relatives went missing in Iraq in 2014 and that despite his searches; he has been unable to locate them.[5]
[5] Refer T-Documents T13/104.
On 29 June 2017 Mr Arman’s claim was rejected by Centrelink on the basis that he was assessed as not having an impairment rating of 20 points or more (Original Decision) under the Impairment Tables.[6] Mr Arman sought reconsideration of the Original Decision by an authorised review officer (ARO) of Centrelink.
[6] Refer T-Documents T31. The Impairment Tables are contained within the Social Security(Tables for the Assignment of Work-related Impairment for Disability Support Pension) Determination 2011 – see paragraph [15].
On 28 September 2017 the ARO affirmed the decision to reject Mr Arman’s claim for DSP.[7] The ARO found that Mr Arman had a total impairment rating of five points upon assigning five points for his lower limb impairment arising from the osteoarthritis (right knee) condition.[8] The ARO did not consider Mr Arman’s post-traumatic stress disorder (PTSD) to be fully treated and fully stabilised.[9] The ARO also found that Mr Arman had not met the “continuing inability to work” requirements. On 20 November 2017, Mr Arman sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).[10]
[7] Refer T-Documents T33.
[8] Refer T-Documents T33/166.
[9] Ibid.
[10] Refer T-Documents T36.
On 24 January 2018 the AAT1 affirmed Centrelink’s decision to reject Mr Arman’s claim on the basis that he did not have an impairment rating of more than 20 points.[11] The AAT1 found that Mr Arman’s conditions of “PTSD” and “depression” were fully diagnosed, but were not fully treated and fully stabilised and could not be assigned an impairment rating. The AAT1 found Mr Arman’s condition of osteoarthritis was fully diagnosed, treated and stabilised and assigned 10 points under Table 3 of the Impairment Tables for lower limb impairment. No finding was made as to whether Mr Arman had a “continuing inability to work”. Mr Arman seeks review of this decision by the General Division of the Administrative Appeal Tribunal (this Tribunal).[12]
[11] Refer T-Documents T2.
[12] Refer T-Documents T1 – Mr Arman’s Application for Second Review of Decision lodged on 21 February 2018.
The Secretary, Department of Social Services (Secretary) accepts that Mr Arman had physical and psychological impairments as at the Qualification Period.
The Secretary contends that Mr Arman’s lower limb condition (right knee) was fully diagnosed, treated and stabilised as at the Qualification Period and that the resulting lower limb impairment attracted a maximum of 10 points under Table 3 of the Impairment Tables.[13]
[13] Refer [4.17] of the Secretary’s Statement of Issues, Facts and Contentions dated 20 June 2018 (Secretary’s Submissions).
The Secretary contended that Mr Arman’s mental health conditions of “PTSD” and “depression” were fully diagnosed, but were not fully treated and fully stabilised as at the Qualification Period, because he had seen one psychiatrist on two occasions; had stopped taking medication and was referred to another psychiatrist. Accordingly, the Secretary contended that no impairment points could be assigned to Mr Arman for this condition.[14]
[14] Refer [4.19] of the Secretary’s Submissions.
The Secretary also contended that Mr Arman did not actively participate in a “program of support” for an aggregate period of 18 months within the three years before the date of claim. For this reason, the Secretary’s contended that Mr Arman did not meet the “continuing inability to work” requirements under the Act.
Mr Arman disagreed with the Secretary’s position and contended that he should able to receive the DSP. He said he had seen a psychiatrist and that “now there was only medication”. He contended that his mental health conditions were fully treated and stabilised. On Mr Arman’s Application for Second Review of Decision he contended as follows:[15]
I am not happy with the decision because at the moment I am on three separate medication [especially] when I take medication for my stress and depression and Doctor recommend to stay at home not driving not working. Regardless.
[15] Refer T-Documents T1/2.
Mr Arman appeared, self-represented, at the hearing before this Tribunal. The Secretary was represented by a lawyer from the Department of Human Services.
For the reasons set out in these Reasons for Decision, the Tribunal affirms the decision under review. Regrettably, as explained in further detail below, Mr Arman fell short, by a slim margin, of meeting the eligibility requirements for DSP as at the Qualification Period. Mr Arman may wish to consider making a new claim for DSP at a time when his circumstances have changed – see paragraph [193].
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2:     For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(2)A person has a continuing inability to work because of an impairment 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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.
Note:    For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(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.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
“training activity” means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a)      education;
(b)      pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
Work means work:
(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.
‘Impairment Tables’ is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
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 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.
Note:    For reasonable treatment see subsection 6(7)
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.
Subsection 6(1) in Part 2 of the Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments; taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined are, as at the time of the Qualification Period:
(a)whether Mr Arman had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether Mr Arman had a continuing inability to work; and
(e)unless the Tribunal finds that Mr Arman had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), whether he had satisfied the program of support requirements.
CONSIDERATION
Mr Arman’s claim for DSP
On 23 June 2017 Mr Arman signed a DSP claim form with Centrelink which stated as follows (2017 Claim):[16]
[16] Refer T-Documents T3.
(a)he was born on 3 December 1980;
(b)he is married to Ms Gazang Ismail (they were married in 2001);
(c)he has two children born in 2002 and 2004 (at the time Mr Arman lodged his DSP claim, his two children were living with him);
(d)he was born in Iraq and has lived in Australia since 1997;
(e)he is a dual citizen of both Australia and Iraq;
(f)he was receiving treatment in the form of “review by psychiatrist for treatment of depression, PTSD. On anti-depressant medication. & needs medication for Osteoarthritis of knee”;
(g)he ticked the box stating that he did not believe he required nursing home level of care, frequent support or supervision from a carer or palliative care;
(h)he ticked the box stating that he did not believe his life expectancy may be significantly reduced within the next few years because of his condition;
(i)he “might need arthroscopy” in the future; and
(j)he provided no answer when asked what sort of work he had done; whether he had undertaken any programs to help him find work or manage his injury; or when he thought he could do activities that would help him to prepare for work.

Mr Arman made earlier claims for DSP including the claim he lodged on 24 March 2015 (2015 Claim).[17] He listed his “disabilities, illnesses or injuries” as “® leg injury, back problem, depression”[18] and that his treatment consisted of “medication”. Mr Arman claimed that this form of treatment affected his ability to “work or study”, because he could not climb a ladder or lift any weight.[19] Mr Arman stated in this claim from that he completed Year 12. Mr Arman stated he was receiving the Newstart Allowance (NSA) at the time of lodging the 2015 claim.
[17] Refer T-Documents T10.
[18] Refer T-Documents T10/73.
[19] Ibid.
Mr Arman also made a previous claim for DSP on 9 February 2016 (2016 Claim).[20] He listed his “disabilities, illnesses or injuries” as “® knee injury due to car accident; PTSD & Depression”. Mr Arman stated that he “has been attending psychiatrist Dr Ravindra Srinivasaraju in Greenvale”.[21] Dr Srinivasaraju opined that this treatment affected Mr Arman’s ability to work or study because he was, “not able to concentrate. Poor memory”.
[20] Refer T-Documents T19.
[21] Refer T-Documents T19/139.
EVIDENCE BEFORE THE TRIBUNAL
Dr P. Eric Gassin, general practitioner, started treating Mr Arman in 2004 at the Manningham General Practice.[22]
[22] Refer T-Documents T13/98.
On 14 June 2013 Dr Gassin completed and signed a Centrelink Medical Certificate.[23] Dr Gassin diagnosed Mr Arman as having a “fracture ® knee in MCA [motor car accident] 2010”. The condition was assessed as being permanent and that he was being treated with “analgesia”. Dr Gassin opined that Mr Arman was unable to work and was impacted by the following: “works as painter. Unable to climb ladders and bend knees”.
[23] Refer T-Documents T6/51.
On 8 October 2013, Dr Gassin, general practitioner, completed and signed a Centrelink Medical Certificate.[24] Dr Gassin diagnosed Mr Arman as having a “® knee injury” and recorded that Mr Arman was experiencing the following symptoms: pain, stiffness, reduced range of movement and occasional swelling and that he was being treated with “analgesia”.
[24] Refer T-Documents T7/52.
On the same day, an X-ray was performed on Mr Arman’s right knee.[25] The results were recorded as follows:
There is a 6mm defect in the articular surface of the medial femoral condyle with some surrounding sclerosis. This is consistent with medial femoral osteochondritis dissecans. There is no loose calcified body in the joint.
There is some early osteophytic spurring medially.
The joint space is normal.
The lateral compartment and patellofemoral joint spaces are normal.
A little fluid is present in the suprapatellar pouch.
[25] Refer T-Documents T8/53.
On 10 April 2015, Dr Gassin issued a medical report which stated that Mr Arman had been a patient of the clinic for the previous 10 years.[26] Dr Gassin stated that Mr Arman was awaiting a specialist review at the Northern Hospital Orthopaedic Outpatients; and that the only treatment at that time was analgesia and avoiding activities which aggravated his symptoms. Dr Gassin stated that he was unable to work in his usual occupation as a painter.
[26] Refer T-Documents T11/89.
On 25 August 2015, Dr Gassin completed a detailed Centrelink Medical Report in support of Mr Arman’s 2015 Claim, which referred to his various physical and psychological conditions.[27]
(a)Dr Gassin listed Mr Arman’s physical diagnoses as “® knee injury – osteoarthritis dissecans” with the “date of onset” being “2011”. The treatment was recorded as “analgesia” which commenced in 2014 and a note is made that he was awaiting specialist review at hospital. Dr Gassin stated that Mr Arman had been “very compliant” with the recommended treatment. The current symptoms were listed as, “pain & swelling ® knee. Some stiffness and limitation of movements”.[28] Dr Gassin also recorded that Mr Arman, “has difficulty standing, kneeling and bending ® knee. Some problems with steps & uneven ground”.[29]
(b)Dr Gassin listed Mr Arman’s psychological diagnosis as “depression” with the “date of onset” being “2013”. Dr Gassin stated that this diagnosis was “confirmed” and indicated that there were no relevant specialist reports available. The current treatment listed for this condition was “counselling” which was stated to have commenced in 2013.[30] The past treatment was listed as “counselling”. Dr Gassin stated on this medical report that he had not referred Mr Arman to a specialist.[31] The future treatment was listed as “counselling”. Dr Gassin stated that Mr Arman had been “very compliant” with the recommended treatment.[32] The current symptoms (as at the date of Dr Gassin’s medical report) were listed as, “reduced concentration and motivation. Lethargy. Some insomnia”. Dr Gassin stated that he expected this condition to impact on Mr Arman’s ability to function for the following 13 to 24 months and that the effect on his ability to function was expected to “fluctuate” within the following two years.[33]
[27] Refer T-Documents T13.
[28] Refer T-Documents T13/100.
[29] Refer T-Documents T13/101.
[30] Refer T-Documents T13/102.
[31] Ibid.
[32] Ibid.
[33] Refer T-Documents T13/104.
Dr Gassin’s report, dated 25 August 2015, provided an answer in the negative to a question about whether, in Dr Gassin’s opinion, Mr Arman could currently do his usual work or study or any other work for 8 hours or more per week.[34]
[34] Refer T-Documents T13/105.
On 21 October 2015, Dr Shatha Fatouhi, general practitioner, Greenvale Medical Centre completed and signed a Centrelink Medical Certificate providing a diagnosis for Mr Arman as “depression”.[35] Dr Fatouhi listed this condition as “temporary” and opined that Mr Arman was unfit for his usual work/study or other work for more than eight hours per week. Dr Fatouhi stated that she had referred Mr Arman to a psychologist under a mental health plan which was signed by her and Mr Arman.[36]
[35] Refer T-Documents T14/107.
[36] Refer T-Documents T15.
Mr Arman’s mental health plan, dated 21 October 2015 (MHP), contains a hand written note at the top which indicated that Mr Arman’s first session with Ms Carol Schmidt, psychologist, was due to take place on 24 October 2015.[37] On this form, Mr Arman’s medications were listed as Demazin Cough Cold & Flu Tablets and Kenacomb ointment. The MHP indicated that Mr Arman had no previous history of a mental health problem and that he had a previous knee injury. In answer to a question on the MHP, it was stated that Mr Arman had not received specialist mental health care. The MHP stated that Mr Arman’s father suffered from anxiety. The MHP stated that Mr Arman spoke Kurdish at home and that he spoke English “well”. The MHP indicated that Mr Arman did not drink alcohol and that he smoked about three cigarettes per day.
[37] Refer T-Documents T15/108.
The MHP stated that upon “mental health examination” Mr Arman was assessed as “normal”:[38] appearance and general behaviour, thinking (content/rate/disturbances), perception (hallucinations etc), cognition (level of consciousness/delirium/intelligence), insight, orientation, affect (flat/blunted), judgement (ability to make rational decisions). Mr Arman was assessed as being other than normal in relation to his attention/concentration (which was listed as “decrease”), memory (listed as “decrease”), mood (listed as “depressed”), sleep (described as “early morning wakening”), appetite (described as “disturbed”), motivation/energy (listed as “decreased”), anxiety symptoms and speech. There was no reference made to Mr Arman being of risk to others or of having suicidal ideation or intent.[39]
[38] Refer T-Documents T15/109.
[39] Ibid.
The “initial action plan” identified in the MHP consisted of:[40]
(a)diagnostic assessment;
(b)pyscho-education;
(c)interpersonal therapy; and
(d)cognitive behavioural therapy (CBT).
[40] Refer T-Documents T15/110.
On 25 November 2015 Dr Fatouhi referred Mr Arman to a psychiatrist, Dr Ravindra Srinivasaraju.[41] In Dr Fatouhi’s letter of referral, she stated that Mr Arman had presented with symptoms of depression and PTSD and that he had seen a psychologist twice but it had not been helpful. Dr Srinivasaraju’s advice was sought as to “further management” and for “psych evaluation under item 912”.
[41] Refer T-Documents T16.
On 10 December 2015, Dr Fatouhi completed and signed a Centrelink Medical Certificate.[42] Dr Fatouhi made the following diagnoses in respect of Mr Arman:
(a)PTSD, stated to be “temporary”, with the date of onset being 1 August 2015. Mr Arman’s symptoms were listed as flash backs. Dr Fatouhi stated that the prognosis was “uncertain”. No treatment was identified; and
(b)Depression, stated to be “temporary”, with the date of onset being 1 August 2015. Mr Arman’s symptoms were listed as “sleeping disturbance, feeling down”. Dr Fatouhi stated that the prognosis was “uncertain”. No treatment was identified.
[42] Refer T-Documents T17/112.
On 5 February 2016, Dr Gassin completed and signed a Centrelink Medical Certificate.[43] The diagnoses were listed as “PTSD – Depression” and stated to be “temporary”. Dr Gassin indicated that Mr Arman’s symptoms would affect his capacity to work or study for the following three to twelve months. Those symptoms were identified as “lethargy. Poor concentration. Lack motivation”. Mr Arman’s “past treatment” was described as “counselling”. His “current treatment” was listed as “psych review” and there was nothing listed for “planned treatment”.
[43] Refer T-Documents T18/113.
On 3 March 2016, Dr Gassin printed a medical record in respect of Mr Arman.[44] It stated that Mr Arman was a light smoker and that his level of consumption of alcohol at that time was “light”. The record states that Mr Arman’s medication comprised Escitalopram, 10 mg daily. A medical report issued by Dr Gassin on the same day states that Mr Arman has attended a psychiatrist and psychologist for management of his condition of PTSD.[45]
[44] Refer T-Documents T20/144.
[45] Refer T-Documents T21.
On 22 June 2016, Dr Gassin completed and signed a Medical Certificate.[46] His diagnoses include “PTSD” and “right knee osteoarthritis”. The date of onset of the PSTD is stated as August 2015. The PTSD was listed as a “temporary exacerbation of a permanent condition” and likely to affect Mr Arman’s capacity for work or study in the following three to twelve months. The symptoms were listed as “anxiety”, “depression” and “reduced concentration”. Mr Arman’s past and future treatment was listed as “counselling”. Mr Arman’s knee condition was listed as “permanent” and likely to persist for longer than two years. Dr Gassin reported that Mr Arman had pain and stiffness on walking and reduced range of motion. The past treatment was listed as analgesia and the planned treatment was listed as “might require surgery”. In subsequent Centrelink Medical Certificates issued on 15 August 2016, 30 November 2016 and 17 March 2017, Dr Gassin states that Mr Arman’s condition of PTSD was “permanent” and likely to persist for more than two years.[47]
[46] Refer T-Documents T26.
[47] Refer T-Documents T25, T26 and T27.
On 4 August 2016, Dr Srinivasaraju issued a medical report (to Dr Gassin) in respect of Mr Arman.[48] Dr Srinivasaraju stated that her provisional diagnosis was that of “dysthymia with mild PTSD”. The Tribunal notes that following report by Dr Srinivasaraju about the progress of her management of Mr Arman’s condition:
[48] Refer T-Documents T24.
I did commence him on escitalopram 10 mg mane for his low mood and advised him to f/u after a week but Izad did not turn up. Today Izad stated that he took Escitalopram for 4 weeks in December 2016, he [complained of] gastritis and dry mouth and hence stopped taking them.
He continues to report ongoing PTSD symptoms from his past, sill has flashbacks and nightmares related to war events back home. He has ongoing dysthymia related to this. No melancholia or psychosis. Nil other major anxiety disorders. He denies any use of excess alcohol or illicit drugs.
He also [complained of] pain in the right leg following a car injury while he was in Iraq 2012/13. He is unable to do any job now due to pain symptoms.
Current [mental state examination]:
Tall, average built, casually dressed, middle aged Kurdish man, short brown hair with a stubble, casually dressed. Behaviourally settled, PMA normal, good eye contact. Speech was verbose, low v/t/t. Nil FTD or psychosis. Mild depressive conditions secondary to prominent [flashbacks] and nightmares [related] to PTSD. Nil SI or thoughts. Mood is mildly dysphoric, but well reactive. Nil hallucinations. CF norma. Insight present. Judgment intact.
My impression:
Post-traumatic stress disorder with chronic dysthymia, ongoing symptoms.
Management:
Brief supportive ventilation facilitated.
I have advised a trail of Sertraline and he is happy to take this under your supervision. I request he be commenced at 50 mg mane and [then] increase it to 100mg mane after 2 weeks.
Given CMI and have discussed common side-[effects].
I have advised him to that medications to be continued [at least] for 6 months.
Dr Fatouhi issued a “medical certificate” (undated) confirming that Mr Arman attended two sessions which he said were “useless” and was referred to a psychiatrist who diagnosed him with mild PTSD and started him on Escitalopram, 10 mg daily.
Mr Arman travelled overseas from 25 December 2016 to 8 February 2017.[49] A Centrelink record states that 13 of Mr Arman’s family members had passed away in Iraq including one of his aunts who had raised him (from the age of two to 17). Mr Arman’s biological mother passed away when Mr Arman was aged two.
[49] Refer T-Documents T51 for “immigration advised” movement records for Mr Arman.
On 20 June 2017, Dr Gassin referred Mr Arman to another psychiatrist, Dr Samir Ibrahim.[50] Dr Gassin stated in his referral letter that Mr Arman had been feeling depressed and anxious and that he had been on medications for over 12 months but his symptoms were getting worse. Dr Gassin also stated that his current medication was Sertraline, 50 mg daily.
[50] Refer T-Documents T29.
On 29 June 2017, Dr Gassin sent a letter to the Department of Human Services referring to Mr Arman’s right knee condition and advising that Mr Arman was unable to work in his normal occupation (as a painter) and “due to his age there are no plans for any surgical treatment in the foreseeable future”.[51] Dr Gassin issued a Centrelink Medical Certificate on the same date and diagnosed Mr Arman as having a “permanent” condition of osteoarthritis in the knee and a “temporary” condition of PTSD.[52] He stated that the prognosis for the PTSD was uncertain and the knee condition was likely to persist for more than two years. Mr Arman’s treatment was recorded as “analgesia and psychiatrist review”.
[51] Refer T-Documents T30/159.
[52] Refer T-Documents T30/160.
The ARO prepared a file note indicating that, on 28 September 2017, he spoke to Dr Gassin.[53] Dr Gassin informed the ARO that due to Mr Arman’s age he would not be suitable for a knee replacement for at least another ten years; because a knee replacement would only last between ten to fifteen years and Mr Arman would then require a “revised operation” which generally could only be performed once. The ARO also recorded that Dr Gassin informed him that:
(c)Mr Arman could only stand and walk for about ten minutes;
(d)he had difficulty with stairs;
(e)he used a walking stick;
(f)he had difficulty driving;
(g)all that could be done for Mr Arman “now” was pain management;
(h)he had not received a report from Dr Ibrahim; and
(i)he was still having his medications monitored and was due to see Dr Ibrahim in one month.
[53] Refer T-Documents T33.
On 23 January 2018, Mr Arman’s treating psychiatrist, Dr Ibrahim, issued a medical report.[54] Dr Ibrahim stated in this report that Mr Arman first attended his rooms for management of anxiety and depression in August 2017. Dr Ibrahim said Mr Arman was using a crutch and was in pain and agony. Mr Arman reported symptoms of “irritability, short temper, sadness, despair, a sense of helplessness and hopelessness” and that he had “anxiety and excessive worries and that he becomes unwell when triggered the memory of the [car] accident”. Dr Ibrahim stated that Mr Arman was prescribed Deptran and that this was mistakenly changed by the pharmacist to another medication but that this mistake had been rectified. Dr Ibrahim stated in his report:
The condition affected his ability to be focussed, and his memory and judgement have suffered. He requires help from his partner to plan his life. He reported to have lost the ability to enjoy pleasurable and recreational activities.
[54] Refer T-Documents T38.
Mr Arman lodged a medical report issued by Dr Ibrahim dated 28 March 2018 certifying that Mr Arman was in his care. Dr Ibrahim stated:
He continues to display the same clinical picture, as described in prior correspondences. The current circumstances, and the previous trauma he lived through, his clinical picture is deteriorating, and not improving. He is prescribed medications, and has supportive psychotherapy.
I cannot envisage that Mr Arman can handle gainful employment in the foreseeable future.
Job capacity assessments
Job capacity assessments (JCAs) of Mr Arman were conducted in November 2009, November 2013, May 2015 and June 2016.
First JCA Report – October 2009
The first JCA assessment was carried out on 29 October 2009 by two registered psychologists.[55] The report arising from this assessment (First JCA Report) states that Mr Arman was suffering from a “temporary” condition of “fractures and crush injuries” of the right leg. The assessor made the following remarks:
Onset around April 2009, fracture of right leg following car accident. Treated with surgery in Iraq. Fracture reportedly still existing within the bone, unable to be surgically treated. Rest and physiotherapy has been recommended for the next eight months. Not fully treated or stabilised.
[55] Refer T-Documents T5.
In this report, the assessors listed barriers to be addressed included a language barrier; with Mr Arman being able to engage adequately in English but having some verbal comprehension difficulties and problems with writing and spelling in English.[56] A further barrier was identified was Mr Arman’s limited work history with the report stating that he had only worked previously for two months as a painter. The report notes that Mr Arman considered his greatest barrier to working was “single-parenting duties reducing availability for work” and a vocational barrier was identified by the assessors as follows, “Long-term unemployed (greater than 10 years) due to caring responsibilities; reduced motivation and interest in working”.
[56] Refer T-Documents T5.
The assessors considered Mr Arman’s baseline work capacity was “30+ hours per week” in a “light less skilled role (examples, console operator, light courier)” and that his temporary work capacity was 15-22 hours per week until 26 June 2010, as a result of his right leg fracture, which was described as causing “occasional acute pain when pressure placed on the leg, sometimes affecting [Mr Arman’s] speed and endurance for walking”.[57] It was recorded that Mr Arman experienced no pain at rest. There is no mention in this report to Mr Arman experiencing any symptoms of PTSD, depression or any other mental health problem.
[57] Refer T-Documents T5/47.
Second JCA Report – November 2013
The second JCA assessment was carried out on 11 November 2013 by a registered psychologist.[58] The report arising from this assessment (Second JCA Report) states that Mr Arman was suffering from a “permanent” condition of “lower limb deficiencies”. The assessor made the following remarks:
Diagnosis of fracture of right knee in MCA in 2010. He has had surgery performed on his right knee and has been treated with analgesia.
[58] Refer T-Documents T9.

The assessor considered Mr Arman’s baseline work capacity was “8-14 hours per week” in a “light less skilled role (examples, service industry)” and that his temporary work capacity was 0-7 hours per week, until 20 November 2014, because Mr Arman, “has a reduced functional capacity due to an exacerbation of fracture of right knee as he has right knee pain, restricted range of movement and a limited standing tolerance, he cannot climb ladders or bend his knees and he had difficulty with his mobility”.[59]The assessor considered that Mr Arman’s capacity for work within two years with intervention was 15-22 hours per week and he was not likely to increase beyond this level.[60]
[59] Refer T-Documents T9/57.
[60] Ibid.
Seven different types of intervention were recommended for Mr Arman and “deferred referral to stream 4 services” was recommended.[61] It was identified by the assessor that Mr Arman’s personal factors had a high impact on his ability to work, obtain work or look for work because he had limited skills, very limited work experience, some mild language problems, was “long-term unemployed” and had caring responsibilities as a single parent.[62] His risk of “non-compliance” was rated as high. Mr Arman was referred to DES – Employment Support Services.
[61] Refer T-Documents T9/58&59.
[62] Refer T-Documents T9/59.
Third JCA Report – May 2015
The third JCA assessment was carried out on 20 May 2015 by a registered occupational therapist.[63] The report arising from this assessment (Third JCA Report) states that Mr Arman was suffering from a “permanent” condition of “lower limb deficiencies”.
[63] Refer T-Documents T12.
The assessor remarked that Mr Arman’s condition could only be managed with analgesia. However, Mr Arman reported to the assessor that he did not take it due to the side effects. The assessor recorded that he observed that Mr Arman did not require the use of a walking aid and that Mr Arman told the assessor that he could stand/walk for 15 minutes at a time.[64] A personal barrier was recorded by the assessor on account of Mr Arman reporting “significant stress related to his family who are living overseas in unsafe circumstances”.
[64] Refer T-Documents T12/91.
The assessor considered that Mr Arman required specialist disability employment interventions and was best suited to DES – Disability Management Service.
The assessor considered Mr Arman’s baseline work capacity was “30+ hours per week” in a “light less skilled role (examples, console operator, data entry, customer service)” because while his condition impacted on mobility, Mr Arman had confirmed to the assessor that, while sitting, his pain “resolved” and that he had no functional impact. The assessor expected that Mr Arman could maintain full time work in a suitable sedentary role. The assessor also stated that Mr Arman was independent in all activities of daily living.[65] The assessor considered that Mr Arman’s personal factors had a low impact on his ability to work, obtain work or look for work.[66] He was referred to DES – Disability Management Services. The assessor considered that Mr Arman’s capacity for work within two years with intervention was 30+ hours per week.[67]
[65] Refer T-Documents T12/93.
[66] Refer T-Documents T12/94.
[67] Refer T-Documents T12/93.
Fourth JCA Report – June 2016
The fourth JCA assessment was carried out on 20 June 2016 by a registered occupational therapist and a registered psychologist. The report arising from this assessment (Fourth JCA Report) states that Mr Arman was suffering from a “permanent” condition of “osteoarthritis” relating to his right knee and a “permanent” condition of “post-stress traumatic disorder”.[68]
[68] Refer T-Documents T22/144.
The assessors made the following remarks in relation to the right knee condition:
…Dr Gassin stated that he thought that an arthroscopic procedure was likely to be recommended. Functionally, Dr Gassin noted that the condition impacted Mr Arman’s standing, kneeling and range of movement in the right knee and cause difficulty using steps and walking on uneven ground.
Mr Arman reported his symptoms as including constant pain that increased in severity with cold weather, reduced movement in his right knee and reduced strength in his right knee. He reported he was unable to tolerate standing for periods of longer than 10 minutes and walking for 10-15 minutes before needing to take a break. He used a single point walking stick for mobility and confirmed that he had difficulty climbing stairs. Mr Arman also reported being unable to drive for longer than 10-15 minutes and had difficulty with transfers in and out of the car.
Mr Arman advised that he typically used non-prescription medications to assist with the management of his condition and had been attending reviews with his treating specialist at the Northern Hospital on a monthly basis. Mr Arman reported that he had been trialling a range of medications over the last three years under the supervision of his treating specialist and had participated in an exercise based rehabilitation program that had not been beneficial. He had also sought physiotherapy intervention in the past and continued to perform a home based program of strengthening exercises on a daily basis. Mr Arman stated that he had been advised that he will require a total knee replacement to effectively manage his condition and he was on a waiting list for this procedure to be undertaken at the time of assessment.
As Mr Arman is waiting for a surgical procedure that is expected to improve his condition, symptoms and right knee function, his condition cannot be considered fully treated and stabilised at the time of assessment, although it can be considered permanent and fully diagnosed…
The assessors state that Mr Arman’s right knee condition prevents him from using public transport without assistance.
The assessors made the following remarks in relation to Mr Arman’s condition of PTSD:
…Mr Arman reported that he was diagnosed with [PTSD] and depression following a terrorist attack on his family who have been missing for two years at the time of assessment in Kyrgyzstan. Mr Arman confirmed that he had been attending treatment sessions with Dr Srinivasaraju with his third session scheduled for 03/07/16. Client that his condition had been well controlled with medication and treatment to date and he expected a change in his medication at his next review with Dr Srinivasaraju.
Mr Arman described his symptoms as including bad dreams/flashbacks, constant worry, difficulty sleeping, difficulty with memory and concentration, social withdrawal and difficulty leaving the house without the support of his wife. Mr Arman reported that he received excellent support from his family and friends however they tended to come to his house to visit him due to his difficulty in leaving the house.
As Mr Arman has only recently commenced treatment with Dr Srinivasaraju and may require further medication changes and treatment, his condition cannot be considered fully treated and stabilised however it can be considered permanent and fully diagnosed…
The assessors considered Mr Arman’s baseline work capacity was “8-14 hours per week” in a “light less skilled (examples, service assistant)” role, once he recovered from surgical intervention and his psychological condition had improved with treatment.[69] The assessors considered that Mr Arman’s temporary work capacity was 0-7 hours per week until 30 June 2017, because he was assessed as unfit for work on the medical evidence that was provided; was on a wait list for a major operation; and that it would be an extended period of post-surgical recovery and rehabilitation before he could be considered capable of participating in vocationally directed program.[70] The assessor considered that Mr Arman’s capacity for work within two years with intervention was 15-22 hours per week, with further treatment and the support of a good vocationally directed program.[71]
[69] Refer T-Documents T22/149.
[70] Ibid.
[71] Ibid.
The assessors recorded that Mr Arman told them that he had previously worked as a house painter (commencing after he completed Year 12 until he left to travel overseas). He also reported having a strong motivation to return to paid employment in the future. The report states that Mr Arman had been linked with a disability management service providers on and off in the past due to medical exemptions since 14 June 2013.
Mr Arman’s evidence at the hearing before this Tribunal
Mr Arman was self-represented at the hearing and did not require the assistance of an interpreter. He had a basic command of the English language. Mr Arman attended the hearing with his wife, but she was not called to give evidence.
At the hearing, Mr Arman said he was presently taking two types of medication for his anxiety and one for his leg condition. Mr Arman said that it was very complicated and hard for him to go to work while he was on those medications.
Mr Arman said that in 2014, 11 members of his family disappeared in Iraq. He said they were his cousins and uncles. He said they used to live together like brothers and sisters. When he heard this, he said he was shocked and could not control himself. He said he started crying and that sometimes he tried to kill himself, but changed his mind when he looked at his children. He said it was very hard because he had been waiting for four years and was not able to find them. He said he had contacted Red Cross and done everything [to try to find them].
Mr Arman said his aunt, who raised, him passed away in 2016 from natural causes. Mr Arman said his aunt’s partner (Mr Arman’s uncle) had passed away too. Mr Arman said he did not have many friends or family in Australia. He said he previously studied and worked part time as a painter, but he could not work any longer. He said the doctor had told him he was too young to have the knee surgery.
Mr Arman said he was confused and did not know how to “contact Iraq to find his family” or how to fix his leg. He said it had been too much for him. He said he had been to the Health Department and was going to a psychiatrist. He said there was “only medication to stop me from doing something silly”.
Mr Arman said he lived in Craigieburn with his wife and two children, as was the case during the Qualification Period. He said they rented their home and had been living there for a couple of months.
Mr Arman said he was very tired. He said that he went to Centrelink and they sent him to Job Network who sent him home because they said they could not find a job in his condition. Then, he said he went to the Tribunal.
During cross examination, Mr Arman was asked how often he had seen the psychiatrist. He said, “it depends, if he was not too busy, it was every two months”. He said his next appointment was with Mr Ibrahim on 31 July 2018 and that he had been seeing him for longer than one year. Before that, Mr Arman said he had previously seen Dr Srinivasaraju in Greenvale once every two or three months. He said that Dr Srinivasaraju relocated to the city so he was transferred to Dr Ibrahim.
Mr Arman said that before this time he attended a group session at the clinic at which they discussed mental health issues. Mr Arman also said that before 2015, about two or three times, he had seen “an Asian lady” (he could not remember her name) operating out of the Greenvale Medical Centre about his mental health issues. He said he did not know if she was a counsellor, but he said he “talked with them” every two or three weeks. He said that this person told him that it was better if he saw a psychiatrist and he went to see Dr Srinivasaraju after that.
Mr Arman said that Dr Srinivasaraju initially prescribed him with medication which he said he took every day. When he was asked by the Secretary’s representative whether he had taken the medication for four weeks, Mr Arman said he had taken it for longer.
Mr Arman said that when he started seeing Dr Ibrahim in August 2017, he had prescribed two separate medications for him. He said that he used the medication for one month and became worse when it was discovered that the pharmacist had given him the wrong medication. Mr Arman said that “after one month”, he was given the Deptran (10 mg daily). Deptran is a tricyclic antidepressant that works by correcting the imbalance of certain chemicals in the brain. Mr Arman said he took this from August 2017. He said that this medication had not helped him much. Mr Arman said that Dr Ibrahim had told him to continue taking the tablets until he told him to stop taking it. Mr Arman said that as at the time of the hearing, Dr Ibrahim had not told him to stop taking this medication.
In relation to Mr Arman’s knee, he said he was walking across the road and was hit by a car. Mr Arman said he was lucky he was still alive. He said his general practitioner had told him that he would put him on the list in the public hospital system for the operation (knee replacement) but did not recommend that he have this surgery, because Mr Arman was too young. He said he would need to return for more surgery every five or ten years.
Mr Arman said he has seen a doctor “who specialised in bones and joints” in 2011 in Craigieburn. He said that the doctor told him he was too young to have the knee replacement. Mr Arman said they told him they could not do anything else, and that he was to take the medication to help with the pain. The medication prescribed was Meloxicam 7.5 mg, which Mr Arman said he took whenever he felt pain; about 20 times in a month. He said he has been taking Meloxicam from when he first had the injury.
Mr Arman said that his leg becomes painful when it is cold. He said he walks with a stick, including in the house to help him get up or to take a shower if his wife was not at home to help him. He said he could stay in the shower for five minutes, but not longer than that. He said he needed the stick to sit down in a chair.
Mr Arman said that he could walk around outside of the house without the stick, but only for a couple of minutes. Mr Arman said that if he walked for five minutes, he would have to sit down for 10 to 15 minutes. He said he not driving at the moment. Mr Arman denied telling the AAT1 that he drove. Mr Arman said he was not driving. He said he was told by his doctor not to drive when he was taking the medication, because it was dangerous. Mr Arman admitted that if there were times when he was not taking the medication, he would drive short distances but he “would not drive for long”. He said he would not drive to the city and did not remember telling the Tribunal at the previous AAT1 hearing that he had done so.
Mr Arman said he could use stairs but it was “very hard”. He said he would have to walk “very slow”. Mr Arman said he did not use public transport, because he did not need it and it was very difficult for him to do so. He said it would take him, “a long time to get to the train station” and that it was very hard for him to manage on his own. He said his wife helped him “to get to the shower” or to bring him a chair when he needed it. Mr Arman said that if he was single, he would have to stay in a hospital. Mr Arman said that if he had his wife to help him, he could catch public transport.
Mr Arman said he arrived in Australia in 1997. He said he was studying at a language school and doing a part time job. Mr Arman said his [first] child was born in 2002. He said he provided care for his child as much as he could, but that he could not do much now due to his situation. Mr Arman said he went to Sydney for work and started working there as a painter in 2008 or 2009 on a part time basis for about one or two years. He said he stopped working as a painter, because of the injury to his leg. Mr Arman said his knee had been getting worse since the time he first injured it.
Mr Arman said that in June 2017, he spent his days “crying in the back yard for my family”. He said, “I get shocked when 11 people in my family are getting executed”. He said he had a very difficult life, “until he got his family back”. Mr Arman said:
My life is hard, not easy. At home, I am trying to fix my leg. Pushing myself to get rid of all the things in my brain. I see the news. People get killed for no reason. People get treated by animals. My brain doesn’t accept it. I get very tired. Maybe 70% she [Mr Arman’s wife] helped me. To get relaxed, calm down, take medication, don’t cry, and don’t do something silly.
In June 2017 Mr Arman said that he was trying to push himself to get better. He said that he sometimes used a chair in the shower and that sometimes his wife would help him. He said he did not walk to the local shops because he could not walk. He said that he could not drive to the shop because of the effects of taking Depran. He told the Tribunal he would go to the shops with his wife to get the groceries but he would stay in the car because the shops were a couple of hundred metres away and it would take him about half an hour to get there. He said he made the journey with his wife because sometimes they would collect the children, and because his wife was not happy for him to stay at home by himself.
Mr Arman said he did not do any household duties or “anything around the house” in June 2017, because of his right knee injury. He said that in June 2017 he was able to shower himself, but his wife helped him to shave sometimes. He said he could dress himself but his wife helped him to do so sometimes.
Mr Arman said he spent his time reading books and exercising his leg. The exercises were given to him by the physiotherapist and were done using an elastic band. He said he had to scratch his leg 45 times. He said he did the exercises because he wanted to get better and that it was the “best choice” if he was not going to have surgery. Mr Arman said he had not been back to physiotherapy recently. Mr Arman also said he spent some of his time watching the news which he said is, “making me worse but I can’t control myself”.
Mr Arman said that he could only walk very slowly and he could only walk about 100 metres. He said that, between June and September 2017, he was using a walking stick and that he “used it all the time, including when getting out of bed”. Mr Arman said he did not use any other assistance to walk. When asked if he could walk on uneven surfaces, Mr Arman said that, “if it is straight it is better for me, but if it is wobbly, it is no good for me”. He said he would have to walk slower. Mr Arman said it would take him about 45 to 60 minutes for him to walk to the train station from the Tribunal (located at 15 William Street, Melbourne).
Mr Arman said he had made return visits to Iraq – one of them being in December 2016 when his aunt passed away. He said that he did not want to make that trip but he had to go because she had raised him like a mother. He said he went on this trip with his wife and children. He said at the airport, they gave him a wheelchair and his children carried the bags.
Mr Arman said that he did not make any trips interstate or to the country. He said he wished he could do but he could not. He said that from June to September 2017 his children were 13 and 14 years old. He said they did not go on holidays – he said they just went to the park.
Mr Arman said he only had one brother (and that his brother had a wife and four children). He said that most of the times his brother came to his house to visit him. He said he had no other family in Australia. Mr Arman said he had “maybe three or four friends” and that they came to his house to visit him. He said they would tell him to “get relaxed about what happened overseas (losing my family)”. He said that one of his friends was from Melbourne and three were from Iraq. He said they helped him to forget what was happening over there [i.e. Iraq]. He said they asked him not to watch any news and told them that when he watched it, he got worse. Mr Arman was asked whether he ever argued with his family or friends and he responded, “no, never”.

Mr Arman told the Tribunal that when he read at home, he would read “stories” in Kurdish. He said he would read for about half an hour at a time and that he did not read every day. He said he did not read the newspaper and did not listen “much” to the radio. He said he would usually watch about two hours of television.
Mr Arman said that he sometimes helped his children with their homework. He said that his wife “helped them 80%” and he “helped them 20%”. He said they did not need his help to undertake research on the internet because they were better than he was at that. He said when they reached a certain level it became difficult for him to help them, because education in Australia was different to the education in Iraq.
Mr Arman said he helped to look after household bills and to make sure they were paid, although, he said his wife looked after the finances. He said that between June and September 2017, his wife was doing all the housework. He said he “would love to be able to help her”, but there was not much he could do.
Mr Arman said he did not help with the planning of events involving his children, i.e. school events, as the children were “old enough”. He said he did not attend parent teacher interviews because they “took too long” and when he took his medication, he said he just wants to relax. Mr Arman said he did not attend school events. Nor was he friends with other parents at children’s school. He said he was not happy about that but he said, “that is all I can do. I don’t have any other choice”.
Mr Arman said that when he attended a program of support they told him that they could not fit him into the jobs and told him to go home. He said he would talk to Centrelink again. Mr Arman said that the employment service providers had helped him to prepare a resume but they told him, “in your situation, it is very hard to find you a job”. Mr Arman said he told them it was hard for him to go to a course while he was taking his medication, and they told him that it was better for him to stay at home.
Mr Arman said that between June to September 2017 he experienced bad dreams every day. He said he was “born in the war and then I came here”. Mr Arman said that he had “had enough. I’m very tired”.
CONSIDERATION
In taking into account the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at paragraph [1][72]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[72] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether as at the time of the Qualification Period, Mr Arman had a physical, intellectual or psychiatric impairment. Impairment is defined by s 3 of the Determination – see paragraph [14].
Both parties agreed that this requirement was met by Mr Arman. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because Mr Arman’s medical conditions resulted in a loss of functional capacity affecting his ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr Arman must meet is that his impairment(s) attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years. Under s 6(4) of the Determination, a condition is considered to be permanent if it was fully diagnosed, treated and stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
Mr Arman’s mental health condition(s)
Fully diagnosed, treated and stabilised
On 4 August 2016 (about one year before the Qualification Period) Dr Srinivasaraju provided a “provisional diagnosis” in respect to Mr Arman of “PTSD with chronic dysthymia, ongoing symptoms” and prescribed him anti-depressant medication.[73] Shortly after the start of the Qualification Period, Dr Gassin referred Mr Arman to Mr Ibrahim stating that he had not improved after being on medications for 12 months. At the time of this referral in June 2017, Mr Arman was taking Sertraline 50 mg daily. The Tribunal notes that Dr Srinivasaraju recorded that Mr Arman reported symptoms of prominent flashbacks and nightmares. This was reflected in Mr Arman’s numerous reports to his treating health practitioners and to this Tribunal about his concerns regarding his missing family members in Iraq.
[73] Refer paragraph [39] of these Reasons for Decision.
Dr Ibrahim did not issue a medical report until January 2018 (approximately four months after the end of the Qualification Period). However, Dr Ibrahim first treated Mr Arman in August 2017 which falls within the Qualification Period. Dr Ibrahim described that Mr Arman had been referred to him for management of his “anxiety and depression”. Dr Ibrahim did not offer any alternative diagnosis, nor did he state that Mr Arman was not suffering from anxiety and depression.
Based on Dr Srinivasaraju’s provisional diagnosis, on 4 August 2016, followed by Mr Arman’s continued treatment and supervision by her and other mental health practitioners, including Dr Ibrahim, up until the end of the Qualification Period, the Tribunal is satisfied that as at the time of the Qualification Period, Mr Arman was diagnosed with the conditions of:
(a)“PTSD”[74]; and
(b)“Persistent Depressive Disorder (Dysthymia)”[75].
[74] Refer pages 271 to 280 of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (DSM-5) setting out the diagnostic criteria and features of PTSD.
[75] Refer pages 168 to 171 of the DSM-5 setting out the diagnostic criteria and features of Persistent Depressive Disorder (Dysthymia).
During closing submissions, the Secretary’s representative contended that the corroborating evidence from Mr Arman’s treating practitioners did not support a conclusion that his mental health condition was fully diagnosed, treated and stabilised during the Qualification Period. The Secretary’s representative also contended that Mr Arman had only seen his initial treating psychiatrist twice and that he had commenced seeing a second psychiatrist, who prescribed new medications to Mr Arman, during the Qualification Period.
The Tribunal finds that the treatment of Mr Arman’s mental health conditions first commenced in 2013. In a Centrelink Medical Report completed in August 2015, Dr Gassin diagnosed Mr Arman with “depression” and expressly referred to him commencing “counselling” in 2013.[76] This was consistent with Mr Arman’s evidence at the hearing that before 2015, he had seen a person every two or three weeks at the Greenvale Medical Centre to talk about his mental health issues.
[76] Refer paragraph [29(a)] of these Reasons for Decision.
The Tribunal notes that Mr Arman saw Dr Fatouhi in October 2015. Dr Fatouhi placed Mr Arman on a MHP and arranged for therapeutic counselling with a psychologist. At that time, Mr Arman’s general practitioner had recommended treatment comprising the actions listed in paragraph [34] of these Reasons for Decision. At that stage it did not include a recommendation that Mr Arman be treated by a psychiatrist or that he take anti-depressant medication. It was recommended that Mr Arman engage in CBT.
The Tribunal notes that one month after the commencement of the MHP, Dr Fatouhi referred Mr Arman to see Dr Srinivasaraju. The Tribunal notes that Dr Fatouhi had stated in her referral letter that Mr Arman had seen a psychologist twice and that it had not been helpful. By inference, the Tribunal finds that Mr Arman saw a psychologist for counselling on two occasions between the start of the MHP and the referral of Mr Arman to Dr Srinivasaraju in November 2015.[77]
[77] It is quite possible this was a reference to Mr Arman having attended the appointments arranged with Ms Schmidt, although nothing turns on the identity of who provided these counselling sessions to Mr Arman.
It is apparent that by 3 March 2016 that, even though Mr Arman had not seen Dr Srinivasaraju by this time, he had been prescribed anti-depressant medication – see entry on the medical certificate issued on this date by Dr Gassin listing Mr Arman’s “usual” medication as Escitalopram 10 mg daily.
Dr Fatouhi referred Mr Arman to Dr Srinivasaraju for further management and for a psychiatric evaluation – see paragraph [35]. The treatment of Mr Arman’s mental health conditions continued under the initial supervision of Dr Srinivasaraju. He saw Dr Srinivasaraju for the first time on 4 August 2016 (that is, approximately ten months before the commencement of the Qualification Period). Dr Srinivasaraju reviewed Mr Arman’s anti-depressant medication; altered it to Sertraline; and recommended that he continue taking this medication for at least six months.
At the hearing Mr Arman gave evidence that he saw Dr Srinivasaraju every two or three months and that, in total, he saw her about three or four times. The Tribunal accepts this evidence. In cross-examination, the Secretary’s representative put to Mr Arman that he had only seen Dr Srinivasaraju twice. Mr Arman stood by his evidence that he had seen her about three or four times. The Tribunal has reviewed the evidence in the T-Documents and could not identify any evidence that supported the Secretary’s contention that Mr Arman had only seen Dr Srinivasaraju twice. It may have been the case that the Secretary’s representative had misunderstood the reference by Dr Fatouhi to Mr Arman having seen “a psychologist” twice as being a reference to Dr Srinivasaraju. As indicated in paragraph [59], the Tribunal notes that Mr Arman had reported to the JCA assessors on 20 June 2016 that he was due to have third session with Dr Srinivasaraju on 3 July 2016. Accordingly, the Tribunal rejects the Secretary’s contention in this regard and finds that Mr Arman saw Dr Srinivasaraju about three or four times before his psychiatric care was transferred to Dr Ibrahim.
Mr Arman’s psychiatric care continued under the supervision of Dr Ibrahim after he first saw Mr Arman in August 2017. Dr Ibrahim stated in his medical report of January 2018 that Mr Arman had been prescribed Depran. It was not apparent when this change of medication took place. The Tribunal considers that not a lot turns on it. Importantly, it seems that by the end of the Qualification Period (8 September 2017), Mr Arman had attended counselling at Greenvale Medical Centre since 2013; he had attended two sessions of counselling with a psychologist under the MHP between 21 October 2015 and 25 November 2015; he had commenced on anti-depressant medication since at least March 2016 and by the end of the Qualification Period, Mr Arman had taken a few different types of anti-depressant medication under the contiguous management of, initially, his treating general practitioner and then his two successive treating psychiatrists (that is, for a period of over one year).
Mr Arman had undertaken treatment over a significant period of time (since 2013) under the management of his treating medical practitioners including since August 2016, under the supervision of doctors holding specialist qualifications in psychiatry. Mr Arman was compliant with the recommendations made to him by his treating doctors.
On the basis this history, the Tribunal is satisfied that Mr Arman’s mental health conditions of “PTSD” and “Persistent Depressive Disorder (Dysthymia)” were fully treated and stabilised as at the Qualification Period after taking into account the matters set out in section 6(5) and 6(6) of the Determination.
The Tribunal considers that Mr Arman will continue to require ongoing medical and therapeutic care and preventative treatment for his mental health conditions as advised by his treating specialists. However, the Tribunal does not consider that the provision of such ongoing medical care is likely to result in a significant functional improvement in Mr Arman’s capacity for work in the next two years or, given the longevity of those conditions, the Tribunal is not satisfied that this ongoing medical treatment is curative.
Given that Mr Arman had suffered from those conditions long before the Qualification Period and that he had undertaken reasonable treatment for those conditions, the Tribunal finds that those conditions were likely to persist for a period of longer than two years. For these reasons, the Tribunal concludes that the two mental health conditions of “PTSD” and “Persistent Depressive Disorder (Dysthymia)” are “permanent conditions”. As such, an impairment rating may be assigned in respect of the resulting impairment to Mr Arman’s mental health function arising under Table 5 of the Impairment Tables.
Impairment rating under Table 5 – impairment to mental health function
The Introductory Notes to Table 5 set out as follows (among other things):
(a)Table 5 is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition;
(b)self-report of symptoms alone is insufficient;
(c)there must be corroborating evidence of the person’s impairment, for instance, treating doctors’ reports, assessment reports relating to the person’s mental health or psychiatric illness or information provided by the person’s carer(s); and
(d)it must be kept in mind that the person may not have a good self-awareness of their mental health condition.
Table 5 as prescribed by the Determination has been reproduced at Annexure A to these Reasons for Decision.
Whether or not a person’s condition is assessed as having a mild, moderate or severe functional impact on activities involving mental health function will depend on whether the person has a mild, moderate or severe level of difficulty in most of the following activities:
(a)self-care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making; and
(f)work/training capacity.
Self-care and independent living
Taking the first of those activities, self-care and independent living, an example in Table 5 of a person having mild difficulties with this activity is where “the person lives independently but may sometimes neglect self-care, grooming or meals”. An example given in Table 5 of a person having moderate difficulties with this activity is where “the person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition”. An example given in Table 5 of a person having severe difficulties with this activity is where “the person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker”.
The Tribunal notes that the JCA assessor on 20 May 2015 stated that Mr Arman had reported that he was independent in all activities of daily living.[78] From this report, it is not evident which activities were being referred to by the assessor. The Tribunal notes that Mr Arman informed JCA assessors on 20 June 2016 that he had difficulty leaving the house without the support of his wife.
[78] Refer paragraph [56] of these Reasons for Decision.
Otherwise, the Tribunal notes that, despite Mr Arman having been assessed by JCA assessors in 2015 and 2016, there were minimal references in the Third JCA Report or Fourth JCA Report indicating positively or negatively Mr Arman’s capacity to engage in the activities referred to in the descriptors in Table 5. The Tribunal regards this as a missed opportunity in that such information could have easily been sought from Mr Arman (rather than to proceed, as the assessors did, on the basis that their opinion about whether the conditions were fully diagnosed, treated and stabilised was correct), which would have allowed Centrelink and subsequent decision-makers, including this Tribunal, to make a well-informed decision about Mr Arman’s eligibility for DSP. The Tribunal could understand Mr Arman feeling a sense of frustration if his claim is denied on the basis of there being a lack of corroborating evidence as to the extent of his impairment, as contended by the Secretary, despite this being a requirement of the laws governing eligibility.
By his own admission at the hearing, Mr Arman said that he could dress independently but his wife helped him sometimes. Mr Arman also said that he could shower independently using a shower chair, but his wife helped him to shave. Mr Arman said that his wife looked after the finances and did all the shopping. Mr Arman said he would like to be able to help at home more, but he said there was not much he could do. Mr Arman said he could help with making payment of household bills, but his wife looked after the finances. He said he did not do any household duties.
On Mr Arman’s claim form, he ticked the box stating that he did not believe he required nursing-home level of care, frequent support or supervision from a carer or palliative care.[79] Although at the hearing, Mr Arman claimed that he would need to stay in a hospital if he was a single man.
[79] Refer paragraph [21(g)] of these Reasons for Decision.
Based on the matters set out above, the Tribunal finds that as at the time of the Qualification Period, Mr Arman experienced severe difficulties living independently. The Tribunal is satisfied that as at the Qualification Period, Mr Arman required the daily care of his wife, particularly in relation to nutrition, household duties and some aspects of personal grooming.
Social/recreational activities and travel
Examples in Table 5 of a person having mild difficulties with this activity are where “the person is not actively involved when attending social or recreational activities” and “is sometimes reluctant to travel alone to unfamiliar environments”. Examples in Table 5 of a person having moderate difficulties with this activity are when “the person goes out alone infrequently and is not actively involved in social events” and “will often refuse to travel alone to unfamiliar environment”.
By his own admission, Mr Arman gave evidence that he had about three or four friends who visited him at his home. He lived with his wife and two teenage children. Further to this, by Mr Arman’s own admission, his brother, sister-in-law and their children also visited him and his family. The Tribunal finds that while his focus was predominately on his family, he had a reasonable circle of family and friends to allow him to interact socially.
The Tribunal gained a general impression that Mr Arman was restricted in his recreational and travel activities. Mr Arman did not travel far from home. He did not make trips interstate or out to the country. Mr Arman travelled overseas on one occasion to Iraq, from December 2016 to February 2017, when his aunt passed away from natural causes. The Tribunal accepts Mr Arman’s evidence that he felt compelled to make that trip and, in doing so, required the assistance of his wife and children who accompanied him.

The descriptor in (3) for a 10-point rating applied to Mr Arman, in that he could move around independently provided he was able to use his walking stick (being an aid that he had and usually uses).
Accordingly, the Tribunal is satisfied that the 10-point rating applied to Mr Arman’s lower limb impairment under Table 3, because not all of the descriptors for a 20-point rating applied to Mr Arman.
Is the second requirement under s 94(1)(c) of the Act met?
The third requirement under s 94(1)(c) of the Act to establish eligibility to receive the DSP is that the person had a continuing inability to work as at the time of the Qualification Period.
Continuing inability to work
The requirements necessary to establish whether a person has a continuing inability to work are set out in s 94(2) of the Act, as reproduced in paragraph [14] above.
The Tribunal has found that, as at the time of the Qualification Period, Mr Arman had a moderate impairment of his mental health function and a moderate impairment of his lower limb function. Those impairments attracted a total of 20 points under two tables and not under a single Impairment Table. Accordingly, Mr Arman did not have a severe impairment as defined in s 94(3B) of the Act. Accordingly, Mr Arman is required to establish that he had actively participated in a program of support in order to meet the requirement in s 94(2)(aa) of the Act.
Were the requirements of s 94(2)(aa) of the Act met - did Mr Arman actively participate in a program of support?
Section 94(3C) of the Act provides that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of these subsection (see paragraph [169]). As reproduced in paragraph [14] above, s 94(5) of the Act defines a “program of support” as a program designed to assist persons to prepare for, find, or maintain work. Under s 94(5), it must also be either funded by the Commonwealth, or be of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find, or maintain work that is funded by the Commonwealth.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Participation Determination) commenced on 3 January 2015. It is the relevant legislative instrument made by the Minister under s 94(3C) of the Act. Under s 7 of the Participation Determination provides that a person has “actively participated in a program of support” if he or she satisfies the following requirements:
(a)the person has complied with the requirements of the program of support and participated in it during the “relevant period”.[90] The “relevant period” in Mr Arman’s case was the 36-month period ending immediately before the day he was taken to have made his claim for DSP, being 9 June 2014 to 8 June 2017 inclusive (relevant 36-month period); and
(b)the person must also satisfy one of the following:[91]
(i)the person participated in the program of support for at least 18 months during the relevant 36-month period - as specified in s 7(2) of the Participation Determination; or
(ii)the duration of the program was less than 18 months but they completed the entire program during the relevant 36-month period – as specified in s 7(3); or
(iii)the program was terminated before the end of the relevant 36-month period and was done so because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program – as specified in s 7(4); or
(iv)if the person was participating in a program at the end of the relevant 36-month period and was prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program – as specified in s 7(5); and
(c) the person must also satisfy s 7(6) of the Participation Determination which requires them to provide the Secretary with a range of information about the program as listed in subsections 7(6)(a) to (i) of the Participation Determination.
[90] Refer s 7(1)(a) of the Participation Determination.
[91] Refer s 7(1)(b) of the Participation Determination.
The Secretary contended that during the relevant 36-month period, Mr Arman participated in a program of support for an aggregate period of 173 days, as follows:[92]
(a)15 January 2015 to 12 February 2015 (29 days) with Disability Supported Employment, MFEZ AMES Employment Broadmeadows. The Tribunal notes that the entry for this activity indicated that Mr Arman had received “Stream 3” services for “disability supported employment” from which he was exited; and
(b)12 February 2015 to 27 May 2015 (104 days) with Employment Assistance/Training QC40 WISE Employment Ltd Craigieburn; and
(c)5 June 2015 to 14 July 2015 (39 days) with Employment Assistance/Training V367 Campbell Page Broadmeadows; and
(d)for one day on 14 July 2015 with Employment Assistance/Training AK30 Campbell Page Epping.
[92] Refer T-Documents T52 – Printout of Centrelink record listing details of Mr Arman’s Referral History for participation in various programs of support.
For various periods during the relevant 36-month period, Mr Arman was medically exempted from participation in the program. As made clear by s 8 of the Participation Determination, those exempted periods are not to be considered (or counted) in determining whether Mr Arman had met the requirement under s 7(2) of the Participation Determination as at the Qualification Period.
At set out in paragraph [170] Mr Arman only participated in programs of support for a total of 173 days during the relevant 36-month period. Accordingly, the Tribunal finds that Mr Arman did not the meet the requirement under s 7(2) of the Participation Determination.
The Tribunal also finds that the requirement under s 7(3) of the Participation Determination was not met, because there was no evidence before the Tribunal that Mr Arman had completed the entire program of support during the relevant 36-month period.
The Tribunal finds that the requirements of s 7(4) of the Participation Determination were not met. There was no evidence before the Tribunal to indicate that the program of support was terminated before the end of the 36-month period for the reason that Mr Arman was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program.
The Tribunal finds that Mr Arman did not satisfy the requirements under s 7(5) of the Participation Determination because he did not meet the first of two requirements necessary to satisfy that s 7(5) applied in Mr Arman’s case. The first element required Mr Arman to be participating in a program of support at the end of the relevant 36-month period, i.e. on 8 June 2017. On this day, Mr Arman was recorded as having been exempt on the basis of a “temporary medical exemption”. As a result of this circumstance, the Tribunal is unable to make a finding that Mr Arman was participating in a program of support as at 8 June 2017.
If Mr Arman was not under a medical exemption on 8 June 2019, the Tribunal would have found that the second element of s 7(5) applied to him because the Tribunal was satisfied that on 8 June 2017, Mr Arman was “prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation in the program” had he been participating in one.
The Tribunal has considered the decision of O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277. The Tribunal in that case made the following observations at paragraph [73]:
[73] Section 5(b) of the [2011 Participation] Determination appears to recognise a situation may arise in which a person who is participating in a program of support may, solely because of their impairment, be prevented from improving their “capacity to find, gain or remain in employment.[93]
[93] Subsection 5(b) is the earlier 2011 Determination is equivalent to s 7(5) of the 2014 Determination.
…
[75] Ms O’Gorman-Watson submitted that the nature and severity of her condition had prevented her from obtaining any benefit by participating in this program.
…
[79] On consideration of the available evidence in respect of the nature and severity of Ms O’Gorman-Watson’s condition and its effect on her cognitive, communication and physical capacities I have formed the view that she would be unlikely to benefit from a program of support unless it was tailored to meet her specific needs.
[80] There is no evidence to suggest that the program in which Ms O’Gorman-Watson was participating was such a program or that it would assist her to prepare, find or maintain work.
[81] The IDS document which Ms O’Gorman-Watson was forced to obtain under FOI provides little meaningful information. It is full of acronyms and is barely comprehensible. Nevertheless, the document does support her oral evidence in that the program was unable assist her, that she was in fact suspended from the program by Centrelink and was to exit the program.
[82] Neither the IDS nor the Centrelink documents provide a coherent reason for her “suspension” but seem to suggest that it had something to do with her capacity for work.
[83] Furthermore, although the ORS document refers to a period of participation not directly related to the assessment period it does, in my view, support the proposition that Ms O’Gorman-Watson was not able to be assisted by this type of program.
[84] After having considered all the evidence before the Tribunal and for reasons outlined above I have formed the view that during the assessment period Ms O’Gorman-Watson was prevented, solely because of her impairment, from improving her capacity to find, gain or remain in employment through continued participation in the program that she was participating in at that time.
[85] This means that Ms O’Gorman-Watson satisfied the requirements of s 5(5) of the Determination.
Mr Arman’s treating general practitioner repeatedly certified Mr Arman as incapable of working or studying due to his physical condition including from 21 October 2015 to 4 November 2011,[94] 10 December 2015 to 15 January 2016,[95] 22 June 2016 to 21 September 2016,[96] and 26 March 2016 to 7 February 2017.[97]
[94] Refer T-Documents T52/232.
[95] Ibid.
[96] Refer T-Documents T52/231.
[97] Ibid.
There was no evidence before the Tribunal indicating that any of the employment service providers who had engaged with Mr Arman had taken steps to tailor the program of support to address the combined effect of Mr Arman’s physical and psychological limitations; or to implement the numerous interventions identified by the assessors who had prepared previous JCA Reports for Mr Arman before the his DSP claim. The Tribunal considers that unless such tailoring of the programs was carried out by the service providers, the program for someone like Mr Arman was likely to have been a waste of time.
The particular challenges that Mr Arman faced in attempting to return to the workforce are also reflected in the extensive history he had before the relevant 36-month period in previous attempts to be assisted by employment service providers to return to work. Specifically:
(a)Centrelink’s Referral History recorded that Mr Arman had been approved for a short course and full time study in 1998 and 1999;
(b)he was recorded as having received “intensive assistance flex 3” for a total period of about four and half months in 2001;
(c)he received VRS services in February 2010 for two days and was exited from this service;
(d)in about late April/May 2010 he received “Stream 3” services described as “disability supported employment” through MFEZ AMES Employment Broadmeadows and was exited from this program;
(e)he started receiving “employment assistance” for a period of ten months from May 2010 to March 2011 delivered by V267 Campbell Page Broadmeadows. He was exited from that program;
(f)he received “post placement support” from V367 Campbell Page Broadmeadows for a period of about four months in 2011. He was exited from this program because he “moved to a new phase”;
(g)he received employment assistance from V367 Campbell Page Broadmeadows again for two weeks in mid-2011 from which he was exited (the record stated that Mr Arman had not been contactable and was not participating); and
(h)he received “Stream 1” services from MFEZ AMES Employment Broadmeadows for a period of over two years during the 2013 and 2014 calendar years from which he was eventually exited. Mr Arman received medical exemptions from June to September 2013 and October to January 2014 during that period.
The Tribunal notes that Mr Arman is a refugee from Iraq. The Tribunal has made some observations about Mr Arman’s personal circumstances, as set out in paragraph [139] above, including the language barrier he faced when competing with other job seekers in the open market. Mr Arman has completed Year 12. However, those studies were undertaken in Iraq in a different language. Mr Arman commenced studies when he first arrived in Australia, but they were interrupted when he moved to Sydney to work part time as a painter. Mr Arman has been out of the workforce for a very long time.
The Secretary did not obtain or seek to tender into evidence or request that a summons be issued to require the production of any of the case manager’s file notes in respect of Mr Arman. Such file notes, if available, would have indicated what had been done (or not done as the case may be) to assist Mr Arman to become “job ready” and to assist him to search for and obtain suitable employment in light of his particular limitations arising from the permanent medical conditions.
Mr Arman’s evidence at the hearing, upon questioning by the Tribunal, about his involvement in the various programs of support he participated in during the relevant 36-month period, suggested that it was considered by the employment service providers that not much could be done to assist him. Instead, Mr Arman said he was told that it would difficult to fit him into a job and eventually, they told him that he need not attend. In the absence of any other evidence from the employment service providers, the Tribunal accepts Mr Arman’s evidence about his experiences in participating in those programs. Mr Arman was medically exempted from participation in the program for significant periods of time as detailed above in paragraph [178], reflective that his medical condition and resulting impairments were such that he was not considered fit for any work or participation in a program of support during that time.
In consideration of the combined effect of Mr Arman’s impairments to his mental health function and his lower limb function, the Tribunal is satisfied that in the years prior to 9 June 2017, he was unlikely to have benefited from a program of support unless it was specifically tailored to meet his needs and his significant physical and psychological limitations. It was not clear from the evidence presented in this case that any meaningful efforts were made by the employment service providers to build a customised program for Mr Arman that accommodated his impairments. Without this, the Tribunal accepts Mr Arman’s evidence, and the supporting medical evidence, that his impairments rendered him unable to work (or study) in any capacity.
For these reasons, the Tribunal finds that Mr Arman was prevented, solely because of his physical and psychological impairments, from improving his capacity to find, gain, or remain in employment through continued participation in the program that he was participating in at the end of the relevant 36-month period.
This means that the Tribunal would have found in his favour that he had met the “program of support” requirements by reason of meeting the requirements of s 7(5), however, it could not do so because Mr Arman was under a “temporary medical exemption” on 8 June 2017 and consequently not participating in a program of support on the last day of the relevant 36-month period.
Regrettably (on account of Mr Arman meeting all other requirements for eligibility for the DSP), the Tribunal concludes that at the Qualification Period, the requirements of s 7(5) of the Participation Determination were not met in Mr Arman’s case and therefore, the Tribunal is unable to conclude that he had met the “continuing inability to work” requirements.
Were the requirements of s 94(2)(a) and s 94(2)(b) of the Act met?
Given the Tribunal is not satisfied that Mr Arman had met the “program of support” requirements, it is not necessary to proceed to determine with ss 94(2)(a) and 94(2)(b) of the Act are met in Mr Arman’s case. However, the Tribunal makes the following non-binding observations as they may be helpful to future decision-makers and to Mr Arman in the event that he makes, or has made, a subsequent claim for DSP.
The Tribunal is satisfied that the evidence supports a finding that Mr Arman’s functional impairments resulting from his osteoarthritis in the right knee, PTSD and Persistent Depressive Disorder (Dysthymia), were sufficient to prevent him from doing work independently of a program of support in the two years following the Qualification Period or from undertaking a training activity as defined in the Act. This Tribunal is also satisfied on the evidence that, to the extent he could have engaged in such activity, it was unlikely to enable him to work independently of a program of support within the two years to follow the Qualification Period. This evidence included the medical evidence of his treating general practitioners, Dr Gassin and Dr Fatouhi, and his treating psychiatrists, Dr Srinivasaraju and Dr Ibrahim. The Tribunal considered Mr Arman to be a credible witness and accepts the veracity of the evidence he gave to this Tribunal and the previous statements he was reported to have made to his medical practitioners and the JCA assessors.
The Tribunal is satisfied that Mr Arman met the requirements of s 94(2)(a) of the Act. The Tribunal is also satisfied on the evidence that Mr Arman did not have the capacity to undertake a training activity in the two years to follow the Qualification Period or to the extent that he could, that it was not likely to have enabled him to work independently of a program of support for more than 15 hours per week within the two years to follow the end of the Qualification Period. Therefore, the Tribunal concludes that Mr Arman also met the requirements of s 94(2)(b) of the Act at the time of the Qualification Period.
For these reasons, the Tribunal considers that Mr Arman had a continuing inability for work for the purposes of s 94(1)(c) of the Act at the time of the Qualification Period, except for the fact that he was under a medical exemption on the day before the lodgment of his DSP claim; and for this reason alone, s 7(5) of the Participation Determination did not apply.
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that, as at the time of the Qualification Period:
(a)Mr Arman met the requirement under s 94(1)(a) of the Act, as he had a physical and psychiatric impairment;
(b)Mr Arman met the eligibility requirement as set out in s 94(1)(b) of the Act on account of the following:
(i)he had diagnosed conditions of “osteoarthritis (right knee)”, “PTSD” and “Persistent Depressive Disorder (Dysthymia)”;
(ii)those conditions were fully diagnosed, treated and stabilised and it was more likely than not that they would have persisted for more than two years. Therefore, those conditions were permanent within the meaning of s 6(4) of the Determination;
(iii)the condition of “osteoarthritis (right knee)” had a moderate impact on Mr Arman’s activities requiring lower limb function and the impairment resulting from those conditions attracted a rating of 10 points under Table 3 of the Impairment Tables;
(iv)the condition of “PTSD” and “Persistent Depressive Disorder (Dysthymia)” had a moderate impact on Mr Arman’s activities requiring mental health function and the impairment resulting from those conditions attracted a rating of 10 points under Table 5 of the Impairment Tables;
(c)Mr Arman did not meet the eligibility requirement as set out in s 94(1)(c) of the Act. Although the Tribunal was satisfied that:
(i)Mr Arman’s impairment was, of itself, sufficient to prevent him from doing any work independently of a program of support within the two years to follow from the date of his DSP claim; and
(ii)Mr Arman did not have the capacity to undertake a training activity in the two years to follow or to the extent that he could, that it was unlikely to have enabled him to work independently of a program of support within the two years to follow the date of his DSP claim;
the Tribunal was unable to find that he had “actively participated in a program of support”. The Tribunal would have made such a finding if Mr Arman had not been under a medical exemption the day before he lodged his medical claim and instead, been referred to an employment service provider to undertake a program of support for the reasons explained above.

Accordingly, the Tribunal affirms the decision of the AAT1. This means that Mr Arman is not eligible to receive the DSP as from the date of his claim on 9 June 2017. As indicated to Mr Arman at the hearing, he is entitled to lodge a new claim to test his eligibility for the DSP, particularly if his circumstances in relation to his participation in a program of support have changed from the circumstances that existed on 8 June 2017 (i.e. is no longer under a medical exemption and instead, has been referred to an employment service provider to participate in a program of support).

I certify that the preceding 193 (one-hundred and ninety three) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

..[sgd]....................................................................
Associate
Dated: 10 April 2019

Date of hearing:

27 July 2018

Representative for the Applicant:

Self-represented

Representative for the Respondent: Ms Ailsa Bramley, Lawyer
Department of Human Services

ANNEXURE A

Extract from Impairment Tables prescribed under Social Security (Tables for the Assessment of Work-related Impairment for Disability Suppport Pension) Determination 2011

Table 5 – Mental Health Function

Introduction to Table 5

·   Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

·   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 has not been made by a psychiatrist).

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

interviews with the person and those providing care or support to the person.

·   In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

·   The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.

·   The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.

·   For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

Points

Descriptors

0

There is no functional impact on activities involving mental health function.

(1)      The person has no difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently and attends to all self care needs without support.

(b)      social/recreational activities and travel;

Example 1: The person goes out regularly to social and recreational events without support.

Example 2: The person is able to travel to and from unfamiliar environments independently.

(c)      interpersonal relationships;

Example: The person has no difficulty forming and sustaining relationships.

(d)      concentration and task completion;

Example 1: The person has no difficulties concentrating on most tasks.

Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.

(e)      behaviour, planning and decision-making;

Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.

(f)       work/training capacity.

Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.

5

There is a mild functional impact on activities involving mental health function.

(1)      The person has mild difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b)      social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d)      concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e)      behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f)       work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

10

There is a moderate functional impact on activities involving mental health function.

(1)      The person has moderate difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)      social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)      concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)      behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)       work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

There is a severe functional impact on activities involving mental health function.

(1)      The person has severe difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)      social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)      interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)      concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)      behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

30

There is an extreme functional impact on activities involving mental health function.

(1)      The person has extreme difficulties with most of the following:

(a)      self care and independent living;

Example 1: The person needs continual support with daily activities and self care.

Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.

(b)      social/recreational activities and travel;

Example: The person is unable to travel away from own residence without a support person.

(c)      interpersonal relationships;

Example: The person has extreme difficulty interacting with other people and is socially isolated.

(d)      concentration and task completion;

Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.

Example 2: The person has extreme difficulty in completing tasks or following instructions.

(e)      behaviour, planning and decision-making;

Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.

Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training sessions other than for short periods of time.

ANNEXURE B

Extract from Impairment Tables prescribed under Social Security (Tables for the Assessment of Work-related Impairment for Disability Suppport Pension) Determination 2011

Table 3 – Lower Limb Function

Introduction to Table 3

·   Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impairment;

results of diagnostic tests (e.g. X-Rays or other imagery);

results of physical tests or assessments showing impaired function of the lower limbs.

·   For the purposes of this Table lower limbs extend from the hips to the toes.

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:     The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

30

There is an extreme functional impact on activities using lower limbs.

(1)      The person is unable to mobilise independently.

Date of hearing:	27 July 2018
Representative for the Applicant:	Self-represented
Representative for the Respondent:		Ms Ailsa Bramley, Lawyer Department of Human Services

Points	Descriptors
0	There is no functional impact on activities involving mental health function. (1) The person has no difficulties with most of the following: (a) self care and independent living; Example: The person lives independently and attends to all self care needs without support. (b) social/recreational activities and travel; Example 1: The person goes out regularly to social and recreational events without support. Example 2: The person is able to travel to and from unfamiliar environments independently. (c) interpersonal relationships; Example: The person has no difficulty forming and sustaining relationships. (d) concentration and task completion; Example 1: The person has no difficulties concentrating on most tasks. Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe. (e) behaviour, planning and decision-making; Example: There is no evidence of significant difficulties in behaviour, planning or decision-making. (f) work/training capacity. Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5	There is a mild* functional impact on activities involving mental health function. (1) The person has mild difficulties with most of the following: (a) self care and independent living; Example: The person lives independently but may sometimes neglect self-care, grooming or meals. (b) social/recreational activities and travel; Example 1: The person is not actively involved when attending social or recreational activities. Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments. (c) interpersonal relationships; Example: The person has interpersonal relationships that are strained with occasional tension or arguments. (d) concentration and task completion; Example 1: The person has difficulty focusing on complex tasks for more than 1 hour. Example 2: The person has some difficulties completing education or training. (e) behaviour, planning and decision-making; Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation. Example 2: The person has slight difficulties in planning and organising more complex activities. (f) work/training capacity. Example*: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10	There is a moderate* functional impact on activities involving mental health function. (1) The person has moderate difficulties with most of the following: (a) self care and independent living; Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition. (b) social/recreational activities and travel; Example 1: The person goes out alone infrequently and is not actively involved in social events. Example 2: The person will often refuse to travel alone to unfamiliar environments. (c) interpersonal relationships; Example: The person has difficulty making and keeping friends or sustaining relationships. (d) concentration and task completion; Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book). Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions). (e) behaviour, planning and decision-making; Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement). Example 3: The person’s activity levels are noticeably increased or reduced. (f) work/training capacity. Example*: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20	There is a severe* functional impact on activities involving mental health function. (1) The person has severe difficulties with most of the following: (a) self care and independent living; Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker. (b) social/recreational activities and travel; Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues). (c) interpersonal relationships; Example 1: The person has very limited social contacts and involvement unless these are organised for the person. Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions. (d) concentration and task completion; Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes. Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects. (e) behaviour, planning and decision-making; Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed. (f) work/training capacity. Example*: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
30	There is an extreme* functional impact on activities involving mental health function. (1) The person has extreme difficulties with most of the following: (a) self care and independent living; Example 1: The person needs continual support with daily activities and self care. Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility. (b) social/recreational activities and travel; Example: The person is unable to travel away from own residence without a support person. (c) interpersonal relationships; Example: The person has extreme difficulty interacting with other people and is socially isolated. (d) concentration and task completion; Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes. Example 2: The person has extreme difficulty in completing tasks or following instructions. (e) behaviour, planning and decision-making; Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement. Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed. (f) work/training capacity. Example*: The person is unable to attend work, education or training sessions other than for short periods of time.