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

[2022] AATA 4016

Baker and Secretary, Department of Social Services (Social services second review) [2022] AATA 4016 (22 November 2022)

Division:General Division

File Number:          2021/5459

Re:Olivia Baker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member R West

Date:22 November 2022

Place:Melbourne

The Tribunal affirms the decision under review.

......................[SGD]..................................................

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – idiopathic hypersomnia – anxiety/depression – attention deficit hyperactivity disorder – whether conditions fully diagnosed, treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security Guide

REASONS FOR DECISION

Member R West

22 November 2022

Background

1. This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 3 August 2021, which affirmed the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (‘DSP’).

2. The relevant history of the matter is as follows:

   (a)The Applicant made her application for DSP on 17 March 2021.[1]

   (b)The application was assessed and refused on 8 April 2021[2] (‘the Initial Decision’).

   (c)An authorised review officer (ARO) affirmed this decision on 21 May 2021[3] (‘the ARO Decision’).

   (d)A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (‘the First Tier Review’) and a decision affirming the ARO Decision was handed down on 3 August 2021.[4]

   (e)The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 11 August 2021.[5]

   [1] T46 at p.181.

   [2] T51 at p.199.

   [3] T52 at pp.200-201.

   [4] T2 at pp.5-9.

   [5] T1 at pp.1-4.

3. A hearing in relation to the Second Tier Review was held by video link on 16 August 2022. The Applicant was self-represented. The Respondent was represented by
   Ms Catherine Oppel, a solicitor with the Australian Government Solicitor.

   Legislation

4. The Tribunal has had regard to the following relevant legislation and determinations in making its decision:

   (a)Administrative Appeals Tribunal Act 1975 (‘the AAT Act’);

   (b)Social Security Act 1991 (‘the Act’);

   (c)Social Security (Administration) Act 1999 (‘the Administration Act’);

   (d)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011; and

   (e)Social Security (Active Participation for Disability Support Pension) Determination 2014.

5. In addition, the Tribunal has had regard to policy advice contained in the Social Security Guide (the Guide) where relevant.[6]

   [6] To ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons to depart from its application (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

   Qualification Period

6. A decision in relation to the granting of a DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualification period.[7]

   [7] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 17 March 2021 and ended on
   16 June 2021.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition after the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[8]

   [8] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and affirmed in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], and

   DSP Qualification

9. To qualify for a DSP, an applicant must satisfy the requirements set out in section 94(1) of the Act, as assessed during the qualification period.

10. In essence, section 94(1) of the Act requires that:

    (a)the Applicant have a physical, intellectual or psychiatric impairment; and

    (b)the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    (c)the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    (d)the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work independently of the program of support within the next two years, or to prevent the person undertaking a training activity within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    Hearing

13. In conducting the Second Tier Review, the Tribunal had regard to:

    (a)the documents produced by the Respondent pursuant to ss 37 and 38AA of the AAT Act (‘T Documents’);

    (b)the oral evidence of the Applicant; and

    (c)the documents listed as Exhibits in Appendix A.

    Claims on Review

14. The Applicant confirmed at the outset of the hearing that her claim on review relates to the following conditions:

    (a)idiopathic hypersomnia;

    (b)anxiety/depression; and

    (c)attention deficit hyperactivity disorder (‘ADHD’).

    Initial Consideration

15. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent, that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[9]

    [9] Sections 6(3) and 6(4) of the Impairment Tables.

16. In determining whether a condition has been fully diagnosed and fully treated, paragraph 6(5) of the Impairment Tables requires a consideration of whether there is any corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years.

17. A condition is fully stabilised if, pursuant to paragraph 6(6) of the Impairment Tables:

    (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.

18. Reasonable treatment is defined in paragraph 6(7) of the Impairment Tables as 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.

    Assessment of the Applicant’s conditions

    Anxiety/Depression

19. The Respondent accepts that the Applicant suffered anxiety/depression but asserts that the condition was not fully diagnosed, fully treated and fully stabilised during the qualification period.

20. The Applicant gave evidence that she had been diagnosed with anxiety and depression over 10 years earlier, and had undertaken a range of treatments. She said that her condition fluctuated, and she had good days and bad days, but the condition was continuing.

21. The Tribunal notes the Applicant’s evidence regarding her condition generally, but it is mindful that the task before the Tribunal is to assess the Applicant’s condition during the qualification period, and to determine whether that condition was fully diagnosed, fully treated and fully stabilised during that period.

22. The Introduction to Table 5 – Mental Health Function makes it clear that the self-reporting of symptoms alone is insufficient. There must be a diagnosis by an appropriately qualified medical practitioner, namely a psychiatrist, or evidence from a clinical psychologist if there has not been a diagnosis by a psychiatrist.

23. The T Documents include many medical reports related to the Applicant’s condition, among which are:

    (a)a diagnosis of depression by Dr David Chalmers, general practitioner, on 10 March 2014;[10]

    (b)reference to the Applicant receiving treatment from a psychologist for anxiety and depression in reports of Dr Khoa Tran, a sleep physician, in 2016-2018;[11]

    (c)a report by the Emergency Department at the Prince Charles Hospital dated 10 April 2018[12] which listed depression in the Applicant’s medical history;

    (d)various reports by Dr Alireza Shafizadeh, general practitioner, in 2019 which refer to the Applicant’s relationship issues and to her anxiety and depression;[13] and

    (e)a letter dated 23 August 2019 from Dr Kyaw Zin Htet, general practitioner, referring the Applicant for counselling, in which Dr Htet described the Applicant’s condition as an acute mental breakdown;[14]

    [10] T4 at p.92.

    [11] See T5, T9, T10, T11, T12, T13, T14 and T15.

    [12] T16 at p.108.

    [13] See T19, T21, T24 and T25.

    [14] T26.

24. A report of Dr Maria-Elena Lukeides, clinical psychologist, states that the Applicant was administered two self-reporting tests of her psychological functioning in February 2018.[15]  In the report, Dr Lukeides states that she saw the Applicant for the purpose of providing a clinical opinion about her capacity to undertake regular duties at work.  She noted that the Applicant had been prescribed anti-depressant medication by her general practitioner and concluded that the Applicant should not return to work for a period of two weeks from the commencement of the medication. Ms Lukeides recorded that the Applicant’s scores on the DASS-21 test were in the extremely severe range but noted that the DASS-21 test was not a diagnostic tool. The Applicant also scored in the very severe range for psychological stress on the K10 test, described by Dr Lukeides as a screening instrument to identify likely cases of psychological distress in the community.

    [15] T54 at pp.206-208.

25. The Tribunal is not satisfied that any of this medical evidence amounts to a diagnosis of anxiety and depression for the purpose of Table 5.  Apart from Dr Lukeides, none of the practitioners are appropriately qualified medical practitioners as defined in the Introduction.  The report by Dr Lukeides does not purport to offer a conclusive diagnosis.  It was confined to providing a clinical opinion as to the Applicant’s capacity to undertake work at that time.  Dr Lukeides’ assessment was made over three years before the qualification period.

26. More recently, the Applicant was seen by Dr Nitin Shukla, a consultant psychiatrist, in March 2020. In his report of 16 March 2020,[16] Dr Shukla noted that the Applicant presented with Moderate Depressive Episode – currently in remission with Venlafaxine 150 mg. Dr Shukla recommended further investigation and testing, psychological support (cognitive behavioural therapy (‘CBT’)): and to try an increase in Venlafixine by 37.5 mg to 187.5 mg and, if needed, up to 225 mg, with the option of further increasing to 300 mg after another 2 months.  He also noted that the Applicant presented with personality traits (impulsive and paranoid), narcolepsy and insomnia.

    [16] T35 at pp.155-159.

27. The Respondent asserts that Dr Shukla’s report does not provide a diagnosis. Rather it is merely an opinion that the Applicant presented with a condition; and in any event it is not contemporaneous with the qualification period.

28. A diagnosis is a process of identifying a disease, condition or injury from its signs or symptoms. It is not clear from Dr Shukla’s report whether he was expressing a conclusion regarding the Applicant’s condition based on his assessment of the patient history as recounted to him by the Applicant or was simply noting what had been reported to him by the Applicant.  While Dr Shukla noted on examination that the Applicant was affected with anxious and depressive cognition and themes, he noted that the Applicant denied self-harm ideation, her perception was intact, cognition was alert, insight was partial, and judgement was reasonable. He described her appearance, behaviour and speech in reasonable terms. His reference to depression was included under the heading “Impression”, suggesting that he was not expressing a concluded view.  He did not administer any tests and the report does not indicate that he had regard to any other medical information or reports. Dr Shukla recommended further investigation and testing in his report.

29. The Applicant asserted in her evidence that the only reason she saw Dr Shukla was for medication related to her Idiopathic Hypersomnia and not for depression; and that she saw Dr Shukla on a good day meaning she was not manifesting the symptoms of her condition. 

30. In any event, Dr Shukla’s report was made a year before the qualification period and indicated that the Applicant’s condition was moderate and episodic and at the time was in remission.  Dr Shukla recommended trying increases to the dosage of Venlafixine and recommended the Applicant undertake CBT.  The Applicant confirmed in her evidence that she attended six psychology sessions of the 10 sessions available to her under Medicare[17] between October 2020 and March 2021.  She decided herself not to continue the treatment because of the cost and her view that the therapist was not ideal for her.  There is no evidence that the effectiveness of the psychology sessions was assessed by a suitably qualified medical practitioner.  There was no plan for the psychological treatment to be continued.  The Applicant did not have any follow up appointment with Dr Shukla.

    [17] T39 at p.164.

31. Having regard to the unclear nature of Dr Shukla’s report, the fact that it was prepared a year before the qualification period, the lack of follow up with Dr Shukla, and the Applicant’s cessation of psychology sessions with no ongoing treatment plan, the Tribunal is not satisfied that the Applicant’s mental health condition can be said to have been fully diagnosed and fully treated during the qualification period.

32. Accordingly, the Tribunal is unable to assign a rating for the Applicant’s functional impairment under the Impairment Tables and the Applicant does not satisfy the requirements of s 94(1)(b) in respect of an anxiety and depression condition.

    ADHD

33. The Respondent contends that there is no evidence that the Applicant suffered from ADHD during the qualification period and, in the alternative, that the condition was not fully diagnosed, fully treated and fully stabilised during the qualification period.

34. The Applicant conceded in her evidence that she had been trying for years to get a diagnosis that she suffered from ADHD but had not been able to do so. This is confirmed in an undated letter the Applicant wrote to an assessor after her consultation with Dr Frenkel.[18] While there is a reference to ADHD in a mental health treatment plan prepared by Dr Stephen Tsimos on 16 October 2020,[19] this falls short of a clear diagnosis.  The only other medical report in which ADHD is raised is in correspondence from a clinical audiologist dated 11 November 2020.[20]

    [18] T57 at p.212.

    [19] T39, p.167.

    [20] T42 at p.171.

35. The appropriate table for the assessment of ADHD is Table 7 – Brain Function.  It requires that a diagnosis of the condition be made by an appropriately qualified medical practitioner, and that the self-reporting of symptoms alone is insufficient.

36. In the absence of a clear diagnosis that the Applicant was suffering from ADHD during the qualification period made by an appropriately qualified medical practitioner, the Tribunal is unable to assign a rating for the Applicant’s functional impairment under the Impairment Tables.

37. Accordingly, the Applicant does not satisfy the requirements of s 94(1)(b) in respect of an ADHD condition.

    Idiopathic Hypersomnia

38. The Respondent accepts that the Applicant suffered idiopathic hypersomnia but asserts that the condition was not fully diagnosed, fully treated and fully stabilised during the qualification period.

39. In 2016, the Applicant was diagnosed with an Idiopathic Hypersomnia condition by Dr Khoa Tran[21], who treated the Applicant for the condition throughout 2017,[22] with her last appointment in January 2018.  The Applicant was treated for Idiopathic Hypersomnia by Dr Frenkel, a respiratory and sleep disorder specialist, from mid-2020[23] and during the qualification period.

    [21] T5 at pp. 93-94.

    [22] See T10-T15.

    [23] T37 at p.161.

40. On the basis of this evidence, the Tribunal is satisfied that the Applicant’s Idiopathic Hypersomnia condition was fully diagnosed during the qualification period.

41. The Applicant’s treating general practitioner confirmed that the Applicant had been prescribed Ritalin, Dexamphetamine and Modafinil for her Idiopathic Hypersomnia condition prior to the qualification period, but with sub-optimal results.[24]  However, on 29 January 2021, Dr Frenkel recommended a trial of Armodafinil on a dosage titration schedule.[25]

    [24] T47 at p.191.

    [25] T44 at p.174.

42. The Applicant confirmed in her evidence that she had agreed to try Armodafinil as recommended by Dr Frenkel, and in January 2021 she tried various doses, starting on 75 mg daily which she up-titrated herself up to the maximum recommended dose of 250 mg daily when the symptoms abated.  She then reduced the dosage until the treatment ceased to be effective and then again up-titrated to settle on a dose of 250 mg daily.

1. Dr Frenkel reported on 26 March 2021[26] that the Applicant had had a good response to Armodafinil and was presently on 250 mg daily.  He noted that the Applicant was no longer sleeping during the day but was experiencing insomnia on average four out of seven nights.  He recommended back titrating the Armodafinil to either 200 or 150 mg daily to try to control her insomnia while also controlling her daytime somnolence.  Dr Frenkel indicated that he wished to catch up with the Applicant after a couple of months to review her progress.

   [26] T49 at p.195.

2. The Applicant attended a review consultation at the outpatients’ clinic at Western Health in May 2021.  The Applicant gave evidence that she continued to take Armodafinil at 250 mg daily during the qualification period and thereafter.

3. Dr Frenkel reported on 27 January 2022 that:

   Two review consultations in the outpatient clinic were undertaken during the ‘pension qualification period’ …At the first consultation (March 26, 2021) she reported an improvement in her hypersomnience with Armodafinil but was experiencing a significant side-effect of insomnia.  She was instructed to reduce the dose of Armodafinil but, at her next appointment (May 26, 2021), she reported significant rebound of her hypersomnience with dose reduction and was instructed to increase back to the higher dose.  As such her treatment during the ‘pension qualification period’ had not been optimised.[27]

   [27] Exhibit A8 at [6].

4. In response to a specific question as to whether there were any other treatments reasonably available which would lead to a significant functional improvement in the Applicant’s condition, Dr Frenkel stated:

   …Other than a trial of combination therapy with two wake-promoting agents, at the time of the ‘pension qualification period’ she had exhausted conventional therapeutic options for her idiopathic hypersomnia.  In view of the adverse effects and/or inadequate efficacy she experienced with monotherapy, it is my opinion that combination therapy would be unlikely to provide her with significant symptomatic benefit.[28]

   [28] Exhibit A8 at [8].

5. The Respondent relies on the trial of differing doses of Armodafinil during the qualification period as indicating that the treatment was under active evaluation and experimentation with no final prognosis being made. The Tribunal rejects this submission and accepts Dr Frenkel’s assessment that, notwithstanding some experimentation with the level of dosage of the Armodafinil, the Applicant had within the qualification period exhausted conventional therapeutic options and had undertaken reasonable treatment for her condition. And that any further reasonable treatment, such as combination therapy, was unlikely to result in significant functional improvement.

6. The Tribunal therefore accepts that the Applicant’s Idiopathic Hypersomnia was fully diagnosed, fully treated and fully stabilised during the qualification period.

7. The appropriate Impairment Tables for assessing the functional impact of the Applicant’s Idiopathic Hypersomnia condition are Table 1 – Functions requiring Physical Exertion and Stamina and Table 7 – Brain Function. Both tables require that symptoms reported by the Applicant only be taken into account if corroborated by her treating doctor or an appropriate medical specialist.

8. In her oral evidence, the Applicant affirmed the evidence given in her two personal statements[29] and added further that:

   (a)During the qualification period, she lived independently with a friend.  She said that her friend was unable to provide her with the assistance she required, and she dealt with what was required for daily living herself.  She stated that she was limited in her ability to make a physical effort and the house was often in chaos and without food.  She said she was able to pay bills because it required little physical effort. But she said she only showered once per week and there were often days where she did not eat; and when she did have the energy to prepare food, it was usually noodles or sliced bread with peanut butter.  She said that once in a while she could get the energy to do some housework and grocery shopping, but she was unable to walk her dog or do the garden.  She said she sometimes uses a rollator walking aid.

   (b)She said she could only drive for up to 30 minutes and not at all on a bad day.  She said she used public transport especially for longer trips.

   (c)She described an irregular sleep pattern, sometimes sleeping until 1 pm and at other times finding it difficult to get to sleep.  She said she usually napped during the day for between 30 minutes and four hours.

   (d)She said that she rarely socialised either in person or online, and that she had no energy to maintain relationships.

   (e)She described her poor concentration and attention ability. She said that if something triggered her memory she would lose concentration and her mind would wander while undertaking demanding tasks such as watching television, a movie or training video, or when talking to other people.

   (f)She said that she had good days and bad days, although more often bad days, and there was overlap between the impacts of her idiopathic hypersomnia and her anxiety and depression.

   [29] Exhibits A1 and A6.

9. The Tribunal notes the medical evidence of the Applicant’s condition dating back to treatment in 2016 but, given the changes evident in her response to treatment options at or around the qualification period, the Tribunal gives most weight to the medical evidence around this period.

10. On 26 November 2020, Dr Deshpande reported on the effect of the increased dosage of dexamphetamine and noted that the Applicant had reported that she managed 10 hours of sleep a night but required at least one nap per day of two hours on average.  He noted that prior to treatment she was falling asleep at work and feeling drowsy while driving; and it was difficult to assess if these symptoms had improved as she was no longer doing either activity.[30]

    [30] T43 at p.173.

11. Dr Frenkel wrote to the Applicant’s treating doctor on 29 January 2021[31] reporting on the Applicant’s response to methylphenidate 80 mg daily and noted that, despite adequate sleep duration overnight, she was waking with considerable sleep inertia and felt sleepy around lunchtime and slept for between one and four hours.

    [31] T44 at p.174.

12. The Applicant’s treating doctor, Dr Khan, responded to a DSP checklist on 17 March 2021,[32] describing the Applicant as having attention and memory related problems and forgets to do simple tasks.  She added that she cannot perform tasks easily and needs extra time and allowance to be able to do them at her pace because of the fatigue it causes. She noted that she had commenced a trial of Armodafinil, but he was yet to see if it helped.

    [32] T47 at p.191.

13. The available medical evidence provides limited corroboration of the Applicant’s evidence regarding the functional impact of her condition in terms of physical exertion and stamina.

14. The assessments by Dr Deshpande and Dr Khan were prior to the Applicant taking Armodafinil, which Dr Frenkel noted in March 2021 had given a good response and had resulted in the Applicant no longer sleeping during the day, although she was experiencing insomnia four out of seven nights.[33]

    [33] T49 at p.195.

15. The Applicant acknowledged in her evidence that Dr Frenkel did not assess her functionality when she saw him on 26 March 2021; and this was confirmed by Dr Frenkel in his report of 27 January 2022.[34]

    [34] Exhibit A8.

16. The Tribunal accepts that the functional impact of the Applicant’s condition fluctuated, but the medical evidence does not offer an assessment of the extent and degree of the fluctuation.  Part 2, paragraph 8(1) of the Tables makes it clear that symptoms reported by a person regarding their condition can only be taken into account where there is corroborating evidence. 

17. The evidence establishes that the Applicant was able to undertake exercise appropriate to her age for at least 30 minutes at a time (eg: driving for 30 minutes or using public transport) and was able to complete physically active tasks around her home but not without difficulty. Therefore, an impairment rating of NIL points would not be appropriate.  The medical evidence does not support a conclusion that during the qualification period (after commencing treatment with Armodafinil) the Applicant frequently experienced symptoms when performing day-to-day activities around the home and community and due to these symptoms was unable to walk far or had difficulty performing day-to-day household activities.  A rating of 10 points is therefore not justified.   The Tribunal is satisfied that the Applicant’s evidence, taken with the medical evidence, supports an overall functional assessment, taking account of the fluctuating nature of the Applicant’s condition, of a mild functional impact attracting a rating of five points under Table 1.

18. The medical evidence generally corroborates the Applicant’s claims regarding the effect of her condition on her memory, attention and concentration. Her treating doctor referred to attention and memory related problems and reported that the Applicant forgets to do simple tasks.[35]  Dr Baskocak, psychologist, reported in November 2020 that the Applicant had difficulty with attention and would like assistance with her social skills[36]. The Applicant described her poor concentration and attention ability. She said that if something triggers her memory, she would lose concentration and her mind would wander while undertaking demanding tasks such as watching a movie or training video, or when talking to other people. The Applicant stated that she lived independently and while she had difficulty at times with memory, attention and concentration, she did not rely on assistance from others, as such assistance was not available to her.  On the basis of this evidence, the Tribunal is satisfied that the Applicant’s impairment fits best with the definition of a ‘mild’ functional impact on her brain function and a rating of five points under Table 7 is an appropriate assessment of her condition. 

    [35] T47 at p.191.

    [36] T41 at p.170.

19. The Tribunal therefore finds that the Applicant’s Idiopathic Hypersomnia attracts a total impairment rating of 10 points under the Impairment Tables.

    Conclusion

20. The Applicant’s conditions do not attract an impairment rating of at least 20 points under the Impairment Tables and the Applicant does not satisfy the requirements of s 94(1)(b) of the Act. She is not eligible for the DSP. Accordingly, the Tribunal affirms the decision under review.

    Decision

21. The Tribunal affirms the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member R West

............................[SGD]............................................

Associate

Dated: 22 November 2022

Date of hearing:	16 August 2022
Applicant:	Self-represented
Advocate for the Respondent:	Catherine Oppel
Solicitors for the Respondent:	The Australian Government Solicitor

Appendix A

List of Exhibits
A1	Applicant’s personal statement lodged 17 August 2021
A2	Document submission cover sheet dated 3 October 2021
A3	Document identifying pinpoint references in T Documents lodged 3 October 2021
A4	Copy of Applicant’s email to Respondent dated 5 October 2021
A5	Applicant email submission dated 2 March 2022
A6	Applicant’s personal statement lodged 2 March 2022
A7	Applicant’s email submission dated 4 May 2022
A8	Medical letter of Dr Simon Frenkel dated 27 Jan 2022
A9	Brisbane Counselling Centre statement dated 19 April 2022
A10	Medical certificate of Dr Stephen Tsimos dated 8 March 2022
A11	Copy of emails regarding job plan dated 12–13 August 2020 (downloaded 5 April 2022)
A12	Copy of email dated 27 November 2019 (downloaded 5 April 2022)
A13	Copy of email dated 24 August 2020 (downloaded 5 April 2022)
A14	Copy of email dated 11 November 2021 (downloaded 5 April 2022)
A15	Medicare Patient History Report dated 19 February 2021
A16	Applicant’s email submission of 16 August 2022 and attachments

Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].