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

[2020] AATA 2641

Baker and Secretary, Department of Social Services (Social services second review) [2020] AATA 2641 (4 August 2020)

Division:GENERAL DIVISION

File Number(s):      2018/7674

Re:Donna-Marie Baker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:4 August 2020

Place:Brisbane

The reviewable decision is affirmed.

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

Senior Member P J Clauson AM

Catchwords

SOCIAL SECURITY – Disability Support Pension - DSP – Whether Applicant accrued 20 points on the impairment tables – Whether Applicant had a continuing inability to work – Whether Applicant had participated in a program of support – Decision Affirmed

Legislation

Department of Social Services, Social Security (Active Participation for Disability Support Pension) Determination 2014 (F2015L00001, 15 December 2014)

Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)

Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

Cases

Baker and Secretary and Chief Executive Centrelink (Unreported Decision, Administrative Appeals Tribunal, M Trotter, 20 September 2020)

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secondary Materials

Department of Social Security, Social Security Guide

REASONS FOR DECISION

Senior Member P J Clauson AM

4 August 2020

1. On 18 October 2017 Ms Donna-Marie Baker (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’) listing her conditions as:

   (a)Right Shoulder - Limited movement;

   (b)Emphysema;

   (c)COPD (Chronic Obstructive Pulmonary Disease);

   (d)Mental health; and

   (e)Diverticulitis.[1]

   [1] Exhibit 1, Volume 2, T138, pages 410 - 441.

2. To support her claim for DSP, the Applicant provided a list of the medical professionals who had attended to her various medical conditions, together with a sheet containing information additional to her application containing further material relating to her issues and treatments and a summary of aspects for the previous Social Services and Child Support Division (‘AAT1’) decision and her own commentary on her understanding of the circumstances attaching to her arrangements with ORS Disability Employment Services.[2]

   [2]  Ibid.

3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim on 18 October 2017 or within 13 weeks thereafter, that being up until 17 January 2018 (‘the Qualification Period’).

   HISTORY OF THE MATTER

4. On 18 October 2017 the Applicant lodged a claim for DSP, including the supporting material outlined above.[3] This was the second application for DSP made by the Applicant, the first application was rejected on 20 March 2017 and this decision was affirmed by Member Trotter on review. It is to be noted that in her decision Member Trotter,[4] in affirming the decision of the Authorised Review Officer (‘ARO’), awarded the Applicant 10 Impairment Points for her upper limb condition and 10 Impairment Points for her mental health condition and because there was little medical evidence relating to the impairment impact of the emphysema and diverticulitis conditions, no ratings were able to be allocated.

   [3]  Ibid.

   [4] Baker and Secretary and Chief Executive Centrelink (Unreported Decision, Administrative Appeals Tribunal, M Trotter, 20 September 2020)

5. The application the subject of this review was assessed by a Job Capacity Assessor (‘JCA’) in a face-to-face assessment during the Qualification Period on 9 January 2018. That report[5] found that the Applicant’s shoulder and upper arm disorder as verified by medical evidence was fully diagnosed, fully treated and fully stabilised and was considered to impose a functional impact rated as moderate and the JCA recommended an Impairment Rating of 10 points[6] under the Impairment Table 2 Upper Limb Function. The JCA also considered the Applicant’s emphysema condition, however, found that although the condition caused some shortness of breath, there was no Specialist treatment evidenced to show that although diagnosed, that the condition was fully treated and fully stabilised.

   [5] Exhibit 1, T39, pages 442 - 453.

   [6] Ibid 449.

6. The Applicant’s depression/mental health condition was also assessed by the JCA and was found to be fully diagnosed, fully treated and fully stabilised and it was noted that the Applicant had engaged in psychology intervention since 2014 and psychiatry from 2016. The JCA recommended an Impairment Rating of 10 points under Impairment Table 5 Mental Health Function.[7]

   [7] Ibid 449.

7. The JCA also noted that the Applicant had not met the Program of Support (‘POS’) criteria, having between 1 January 2015 and 1 January 2018 completed 175 days of the POS as a result of exemptions granted to her during her time on benefits.[8]

   [8] Ibid 450.

8. Further, the Applicant’s baseline work capacity was assessed by the JCA as 8 to 14 hours per week, allowing for temporary impacts of her conditions, building to 15 to 22 hours per week within two years with appropriate interventions.[9] The JCA noted that the baseline work capacity of 8 to 14 hours per week had been assigned, recognising that the Applicant’s permanent medical conditions were significantly functionally limiting and thus limited her capacity to work in the open market. It was noted, however, that with suitable disability-specific interventions in determining functional capacity and locating suitable employment, her work capacity was expected to increase.[10]

   [9] Ibid 451.

   [10] Ibid 452.

9. The Department wrote to the Applicant on 10 March 2018[11] advising her that her claim for DSP had been rejected on the basis that she had not completed the required POS.

   [11] Exhibit 1, T142, pages 466.

10. The Applicant then sought a review of this decision and on 30 July 2018 the Department wrote to the Applicant affirming the Department’s earlier decision. The Authorised Review Officer who reviewed the decision[12] advised that the Applicant’s upper arm and shoulder condition was fully diagnosed, fully treated and fully stabilised and was allocated a rating of 10 points under Table 2 of the Impairment Tables and that her mental health condition was fully diagnosed, fully treated and fully stabilised and was allocated a rating of 10 points under Table 5 of the Impairment Tables - Mental Health Function.

    [12] Exhibit 1, T146, pages 478 - 486.

11. The ARO also found that the Applicant’s emphysema condition was fully diagnosed but not fully treated or stabilised as there were treatment recommendations outstanding at the time of claim. The ARO also noted that no medical evidence was produced by the Applicant relating to the diverticulitis condition which alluded to treatments of the prognosis, no Impairment Rating was assigned as it had not been determined the condition had been fully treated and stabilised.

12. Thus, the ARO found that the Applicant did not have a severe condition under one Impairment Table alone but had been assessed as having 20 points under two Tables and was thus required to have completed a POS. The ARO found that the Applicant had completed 175 days of a POS in the 36 months prior to the date of claim on 18 October 2017 and confirmed the JCA’s findings of a baseline work capacity of 8 to 14 hours a week, rising to 15 to 22 hours per week with intervention, within the next two years. The ARO affirmed the decision of the Department that the Applicant did not qualify for DSP.

13. In coming to this decision, the ARO acknowledged that the Applicant’s conditions may limit her ability to obtain suitable employment, however, it was considered that the Applicant had the ability to undertake semiskilled work for at least 15 hours per week in the next two years and that her medical conditions would not prevent her undertaking a training activity to prepare her for alternative work within the next two years.[13]

    [13] Ibid 481.

14. The Tribunal has also noted that in the process of concluding its opinion, the ARO considered not only the assessment of the JCA of the Applicant’s impairments, but also the meticulous review of the Applicant’s conditions conducted by AAT1 Member Trotter in her decision of 20 September 2017[14] on the Applicant’s previous DSP application, and the equally well-reasoned decision of review by AAT1 Member Dr R. King in relation to this current application.[15]

    [14] Exhibit 1, T136, pages 394 - 406.

    [15] Exhibit 1, T2, pages 4 - 13.

15. On 21 December 2018, the Applicant filed a second Review Application of the latter decision with the General Division of the Administrative Appeals Tribunal (‘this Tribunal’).

    LEGISLATIVE FRAMEWORK

16. Section 94 of the Social Security Act1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

17. The Social Security (Administration) Act1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case 18 October 2017. There is, however, an exception where the person is not qualified on that date but ‘becomes qualified’ within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[16] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 18 October 2017 to 17 January 2018 (‘the Qualification Period’).

    [16] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act1999 (Cth).

18. It is well-established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition, and thus assessment of attributable impairment points, must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at para. [34]:

    The Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. (Tribunal’s underlining)

19. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination2011 (‘the Determination’), a legislative instrument made under the Act.[17] The Tables are function-based rather than diagnostic-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[18] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[19]

    [17] See section 26(1) of the Act.

    [18] See section 5(2) of Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (‘The Determination’).

    [19] See section 6(1) of the Determination.

20. Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[20] In order for a condition to be considered ‘permanent’, it must have been fully diagnosed by an appropriate qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[21]

    [20] See section 6(3) of the Determination.

    [21] See section 6(4) of the Determination.

21. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.[22]

    [22] See section 6(5) of the Determination.

22. 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 two years; or

    (b)the person has not undertaken reasonable treatment for the condition because:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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.[23]

    [23] See section 6(6) of the Determination.

23. ‘Reasonable treatment’ is treatment that:

    (a)is available at a location reasonably accessible to the person;

    (b)is at a reasonable cost;

    (c)can reliably be expected to result in a substantial improvement in functional capacity;

    (d)is regularly undertaken or performed;

    (e)has a high success rate; and

    (f)carries a low risk to the person.[24]

    [24] See section 6(7) of the Determination.

24. An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[25]

    [25] See section 11(1) of the Determination.

25. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

    ISSUES FOR THE TRIBUNAL

26. The issues for this Tribunal to consider are:

    (a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition(s) which was or were fully diagnosed, fully treated and fully stabilised;

    (b)whether the condition(s) warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a program of support; and

    (d)whether the Applicant has a continuing inability to work.

    CONSIDERATION

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

27. The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[26]

    [26] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions dated 20 September 2019.

28. This Tribunal accepts that the Applicant had impairments for the purpose of section 94(1)(a) of the Act. The Tribunal proposes to deal with the calculation of Impairment Points by reference to each of the Applicant’s various medical conditions.

    Condition 1 - Upper Limb Function - Table 2

29. The Tribunal accepts that there is comprehensive reported medical evidence from the Applicant’s treating medicos and treating therapists which relates to this condition sufficient to confirm to this Tribunal that the condition is fully diagnosed, fully treated and fully stabilised.

30. The Tribunal, in particular, notes the following:

    (a)Dr Kenneth Cutbush, Orthopaedic Surgeon, in his report of 9 March 2017[27] that:

    [27] Exhibit 1, T113, page 330.

    Post-operatively Donna has not made any improvement following surgery, and it seems unlikely that she will make a significant recovery in her right shoulder in the foreseeable future.

    It seems likely that Donna will have pain, limited movement, and lifting restrictions in relation to her right shoulder for the period of her life.

    (b)a report of Dr Kalam, dated 29 March 2017[28], indicated that the Applicant had undergone multiple procedures in her right shoulder, including a most recent one on 5 December 2016 under Dr Cutbush. It was also recorded that the Applicant had limited recovery of her right shoulder at the date of the report. Dr Kalam noted that her condition impacted her activities of daily living, including using a keyboard for a period of time despite adaption, involving herself in overhead activity and driving her motor car and it was anticipated that the Applicant would have limited movement with restricted lifting ability in relation to her right shoulder for the period of her life.[29] In a medical report prepared by Dr Kalam for Centrelink,[30] it was noted that the Applicant required help with personal care (face, hair and teeth); regarding her toilet use she required help but could do some things alone; that in relation to her feeding she needed help in cutting and spreading butter and moving from beds to chairs and back she required minor help, either verbal of physical, in relation to those needs and that she needed help in dressing, however, could do about half unaided. In the report, half is defined as being able to put on garments without assistance but requiring help to fasten buttons and use zippers. It was stated also in that report that in relation to bathing she was dependent upon others;

    (c)a report dated 6 April 2017 of Amita Naik, Physiotherapist[31], confirmed that the Applicant, due to her upper limb disability, found difficulty in performing:

    ·     lifting a bag of groceries at waist level through R (shoulder);

    ·     pushing through shoulder and touching the back of her neck;

    ·     washing hair and getting dressed with right shoulder;

    ·     placing an object on high shelf using right arm;

    ·     carrying a suitcase and vacuuming or sweeping using right shoulder.

    It is also noted that the Applicant has had issues with her left shoulder requiring subacromial bursal injection with local anaesthesia and Cortisone.[32] The report of Ms Naik[33] also confirms that she had been treating the Applicant for pain in both shoulders.

    [28] Exhibit 1, T116, page 342.

    [29] Exhibit 1, T116, page 342.

    [30] Exhibit 1, T119, page 345 at 348.

    [31] Exhibit 1, T120, page 351.

    [32] Exhibit 1, T54, page 160.

    [33] Ibid.

1. The Tribunal finds that the Applicant satisfies the descriptors set out in Table 2 of the Impairment Tables for a rating of 10 points equating to a moderate impairment of her upper limb functions.

2. For completeness, the descriptors for a Table 2 10 point rating are:

10

There is a moderate functional impact on activities using hands or arms.

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

(a)        picking up a 1 litre carton full of liquid;

(b)        picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)        holding and using a pen or pencil;

(d)        doing up buttons or tying shoelaces;

(e)        using a standard computer keyboard;

(f)         unscrewing a lid on a soft-drink bottle.

Other Conditions

1. The Applicant has listed as comorbid conditions with her upper limb condition and mental health condition the following[34]:

   (a)Emphysema;

   (b)COPD; and

   (c)Diverticulitis

   [34] Exhibit 1, T138, page 434.

2. The Tribunal notes that the Applicant has not agitated these conditions for consideration based on the Applicant’s Statement of Issues, Facts and Contentions and the incorporated Outline of Submissions.[35]

   [35] Exhibit 3, Applicants Statement of Facts, Issues and Contentions dated 29 October 2019

3. The Tribunal, for completeness, notes that the evidence before it relating to the treatment and stability of these conditions is very scant. Accordingly, there is very little evidence of the treatment for her emphysema. However, it is noted from the report of Dr Finnimore, a Respiratory and Sleep Disorder Specialist[36], that he recommended the Applicant remain on Incruse, control her diet and take some walking exercise to assist her condition. No functional impairment was noted. No impairment thus existed at the Qualification Period to attract a rating for this condition.

   [36] Exhibit 1, T127, page 439.

4. The Tribunal likewise, has no evidence before it which would indicate her COPD condition has been fully diagnosed, fully treated and fully stabilised and thus capable of attracting a rating under the Impairment Tables. Further, the Applicant’s diverticulitis condition appears to have been diagnosed and treated by colonoscopy, during which several polyps were removed and it was recommended by Dr Lim, in his report of 24 July 2017, that the Applicant look at a review colonoscopy in a year’s time unless it was required earlier.[37] No evidence exists in sufficiency to take into account in order to allocate an Impairment Rating to this condition.

   [37] Exhibit 1, T126, page 369.

   Major Depressive Disorder - Mental Health Function – Table 5

5. The Applicant’s Major Depressive Disorder was diagnosed as confirmed by her treating Psychiatrist, Dr Stephen Rodrigo, in a letter of support for her DSP Application dated
   

   [38] Exhibit 1, T93, page 288.

   3 October 2016.[38]

6. That report further noted that the Applicant had suffered a long history of major depressive episode and dysthymia, with poor response to medication and cognitive behaviour therapy. Dr Rodrigo also indicated that the Applicant was on medication and receiving assistance from a Psychologist.

7. Dr Rodrigo prepared a further letter for Ms Baker[39] confirming her major depressive episode and noting she was on long-term medication and that in addition to her antidepressants he had started her on Lithium Carbonate which was reported as having improved her depressive symptoms to the extent that Dr Rodrigo held the view that her mental health condition was fully treated and fully stabilised. However, notwithstanding this improvement, she had ongoing severe disabilities due to the residual symptoms of depression and anxiety. Dr Rodrigo expressed the view that her condition would not improve any further than this and not within the following two years.

   [39] Exhibit 1 T135, page 393.

8. Dr Rodrigo’s correspondences indicated that the Applicant’s mental health condition has been diagnosed in accordance with Table 5 of the Impairment Tables which requires the diagnosis to be made by a Psychiatrist or another medical practitioner with evidential corroboration from a Clinical Psychologist.

9. The Applicant’s treating Psychologist, Sharon Devine, in a report dated 4 June 2016[40] noted that at that time, the Applicant’s anxiety and stress levels were within normal range, however, her symptoms of depression were in the extremely severe range. Ms Devine opined that:

   Depressive symptoms at this level would provide restriction to her academic functioning by substantially reducing her memory processes, energy levels and both attention and concentration levels.  This in turn, would affect both her learning and study abilities at this time.

   [40] Exhibit 1, T84, page 271.

10. Ms Devine, in a further report dated 19 June 2016 to a Dr Ali[41], confirmed the Applicant’s primary diagnosis as depression and confirmed that the Applicant had undertaken three sessions for psychoeducation, cognitive intervention and confirmed the Applicant’s depression levels as extremely severe on the Depression, Anxiety and Stress Scale (‘DASS-21’), rating her depression at 15 on 3 June 2016 and 16 on 17 June 2016.

    [41] Exhibit 1, T85, page 272.

11. The Applicant was later referred to a Clinical Psychologist for her ongoing treatment and first visited Ms Priyankur Komandur on 31 August 2017.[42] A short report dated 7 December 2017[43] to Dr Kalam from Ms Komandur noted that the Applicant had attended two sessions with a four month gap between each and that the Applicant was yet to complete the initial set of six sessions. Ms Komandur, at the completion of the Applicant’s initial six sessions, recommended a further four sessions in a report to Dr Kalam on 5 April 2018[44] to:

    … continue to build adaptive coping skills to manage ongoing distress and arising concerns.

    [42] Exhibit 2, ST3, page 33.

    [43] Exhibit 2, ST5, page 95.

    [44] Exhibit 2, ST5, page 85.

12. The Applicant also had an independent psychiatric review (the Psychiatrist is not mentioned in the material before the Tribunal) and she was taken off the antidepressant Mirtazapine.[45]

    [45] Exhibit 2, T5, page59.

13. In a report dated 18 August 2018[46], Dr Rodrigo noted that he had reviewed the Applicant at the request of Becky, the Applicant’s daughter. Dr Rodrigo advised Dr Zhang in that report that the Applicant was taking Cymbalta 90 milligrams and Lithium 500 milligrams at night.  He reported that her daughter noted the Applicant’s condition had not improved for a long time and she found her medications were currently unhelpful. He also indicated the Applicant harboured concerns about the side-effects of the medication and he recommended to Dr Zhang that the Applicant admit herself privately to the Belmont Private Hospital to have her medication reviewed and look into options.

    [46] Exhibit 1, T162, page 565.

14. The Applicant was admitted to the Belmont Private Hospital in accord with the recommendation of Dr Rodrigo. Upon admission, the Applicant commenced a course of Electroconvulsive Therapy (‘ECT’) under Dr Wysoczanski, a hospital Psychiatrist. This treatment had not been undertaken by the Applicant prior to her admission to Belmont Private Hospital on 5 September 2018. This date was confirmed by Dr Wysoczanski in his evidence to the Tribunal.[47]

    [47] Transcript of Proceedings, page 26.

15. Dr Wysoczanski also confirmed that he had consulted Dr Rodrigo’s clinical notes prepared by him regarding the diagnosis of the Applicant’s condition and concurred with the diagnosis of Major Depression.[48] Dr Wysoczanski also confirmed the application of ECT by him to the patient upon her admission to Belmont Private Hospital in 2018.

    [48] Transcript of Proceedings, page 27.

16. Dr Wysoczanski also told the Tribunal that the diagnosis for the complaint had not changed from the application of the ECT and that the Applicant had a minimal response to the treatment and that her prognosis remained poor. He also stated in his evidence that the ECT was:

    The gold standard treatment for depression, and it has a - generally has a higher response rate than medication, so it is unlikely that the alternative medication would have a superior effect to ECT.[49]

    [49] Transcript of Proceedings, page 27.

17. Although the Respondent has contended that, notwithstanding the ECT was administered outside of the Qualification Period, it nonetheless indicates that the Applicant’s mental health condition during the Qualification Period was not fully treated and fully stabilised. The Respondent also refers to the report of Ms Komandur which indicated that treatment was continuing and planned within the next two years and indeed during the Qualification Period and as such the program had the endorsement of Ms Devine, the Applicant’s Psychologist.

18. Prima facie, the evidence as presented by the Respondent appears to indicate that the Applicant’s condition was not fully treated and stabilised during the Qualification Period. The Respondent also contended that its view is reinforced by the Royal Australian and New Zealand College of Psychiatrists Clinical Practice Guidelines[50] wherein Figure 6 of that document, a schematic diagram of the steps for management of Major Depressive Disorder, are set out. The document also points out in the explanatory paragraph to the schematic chart that:

    In severe episodes of MDD pharmacotherapy is typically needed and, where there is a high risk of suicide or when the patient’s welfare is threatened by a lack of nutrition or fluid intake, urgent intervention is sometimes necessary and may include electroconvulsive therapy (ECT). (Tribunal’s emphasis). (See Figure 6).[51]

    [50] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions dated 20 September 2019, Attachment ‘A’ page 28.

    [51] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions dated 20 September 2019, Attachment ‘A’, page 27 and 28.

19. The Figure 6 referred to in the above is the schematic which shows the goal and the three possible steps that may be taken to achieve that ideal outcome, the last of which is ECT.

20. A footnote to the schematic notes, inter alia, that the three steps are not necessarily sequential and that treatment may commence with different options from steps 2 and 3. Further, at page 42 of the Guidelines document an important point, in the opinion of this Tribunal, is noted, namely:

    Following a course of ECT, relapse rates within six months are being shown to be over 50% despite maintenance pharmacotherapy (Kelner et al., 2006). Therefore, in some cases maintenance ECT may be necessary.

21. The Tribunal has considered the evidential material relating to the Applicant’s Major Depressive Disorder and considers that at the Relevant Period the condition was fully diagnosed, fully treated and fully stabilised.

22. Dr Rodrigo was clearly of the view that Ms Baker’s condition whilst under his care and that of Ms Devine, the Psychologist, was such that she had shown little response to treatment with medication for depression and for mood stabilisation and as such her prognosis was poor.

23. He acted in response to the Applicant’s daughter urging a further review and in response Dr Rodrigo recommenced hospitalisation for review of the Applicant’s medication and did not subscribe at that time to a treatment course of ECT. It is thus this Tribunal’s view that Dr Rodrigo, in his professional opinion, clearly did not think that ECT was a worthwhile or reasonable option for treatment of the Applicant.

24. His agreement in its suggested application by Dr Wysoczanski does not necessarily indicate that it should have been undertaken before or at the Relevant Period, but that it was a form of treatment acceptable in the case of a severe depression condition that may assist in the alleviation of stubborn and persistent symptoms. In any event, Dr Wysoczanski did review the Applicant’s medication at the same time as ECT was being administered and he told the Tribunal that he had ceased Lithium administration and changed her Cymbalta to Lovan as in his opinion she was not responding to the Cymbalta and she had previously used Lovan and he had hoped that change would provide a better result.

25. Dr Wysoczanski also told the Tribunal that he had changed her antidepressant to Amitriptyline and had restarted the Applicant on Lithium.[52] Dr Wysoczanski told the Tribunal in response to a question by the Senior Member that the ECT was, in the Applicant’s case, a treatment that had yielded a very modest improvement in the intensity of her symptoms, but that the symptoms still remained. It was a stabilising treatment and it was to try and provide such relief as it was able to. He considered it was not going to cure the disorder.

    [52] Transcript of Proceedings, page 29.

26. The evidence before the Tribunal indicates that both Dr Rodrigo and Dr Wysoczanski were of the same opinion that the Applicant’s mental heath condition was fully diagnosed, fully treated and fully stabilised. The Tribunal considers that some conditions are permanent, as in the Applicant’s circumstances here, and will, throughout the life of the sufferer, fluctuate from time to time with episodic intensities requiring different medical responses. The Applicant’s treatment by ECT illustrates this. The Applicant’s daughter intervened on the basis that she felt her mother was not doing well on her then medications and after hearing her views, Dr Rodrigo took steps to have the medications reviewed. That ECT was suggested by her next treating Psychiatrist in no way, in this Tribunal’s view, meant that Dr Rodrigo’s view was wrong, just that his successor thought ECT was now an appropriate treatment worth attempting to try and ameliorate her symptoms as persisting.

27. The Tribunal agrees with the view of the AAT1, Dr King, in his decision regarding the Applicant’s agreeing to undertake a course of ECT where he stated:

    Thus, while it might be reasonable to introduce ECT as a ‘last resort’ treatment, it does not meet the ‘reasonable treatment’ requirements set out in the sub-section 6(7) of the Impairment Tables.

28. The Tribunal considers that although the treatment was readily accessible, it seems that it is not widely accessible and although it was provided in the Applicant’s case by choice through her private health cover, it was not necessarily on the evidence to be a reasonable cost, could not be said to be reliably expected to result in a substantial improvement in functional capacity (and certainly did not in the Applicant’s case). Given that the treatment was considered to be the ‘gold standard’, it would be unlikely in the view of this Tribunal to be regularly undertaken or performed. The success rate could not be described as ‘high’ in the context meant in the section and it does carry a risk to the person in the sense that there is a risk of potential cognitive side-effects which increase with increasing doses of ECT, memory impairment being the most significant.

29. The Tribunal has found that at the Qualification Period the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised and agrees with Centrelink’s findings outlined in the outcome of review letter to the Applicant dated 30 July 2018.[53]

    [53] Exhibit 1, T146, page 478 at 480.

30. The next consideration for this Tribunal is, given that the Applicant’s mental health condition has been found to be fully diagnosed, fully treated and fully stabilised at the Relevant Period, what Impairment Rating can be assigned under Table 5 of the Impairment Tables.

31. The descriptors for Table 5 are:

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.

1. The Tribunal, in coming to a view on the Impairment Rating of an Applicant’s condition, needs to consider the functional impact attaching to the six areas of function stipulated in the descriptor matrix.

2. In her letter of 15 February 2017[54], Sharon Devine, Psychologist, noted that the Applicant had initially been assessed on 3 June 2016 by her and exhibited symptoms of anxiety stress within the normal range, however, her symptoms of depression were in the extremely severe range. The Applicant, it is noted from that letter, had attended six psychology sessions throughout the previous year. It was further noted that the Applicant attended therapy on a regular basis but had shown little improvement, particularly her lack of motivation persisted. It seems that she had trialled several medications (presumably prescribed by her Doctor) but was referred to a Psychiatrist for further assistance. Ms Devine reported that the Applicant had begun therapy for the year and was receiving help also from a Psychiatrist. Ms Devine further noted at this time the Applicant continued to display depressive high level symptoms manifested by feelings of worthlessness, low motivation, tearfulness and reduced memory and concentration.

   [54] Exhibit 1, T109, page 326,

3. The Tribunal notes that in general terms these are the persistent conditions existing at the Relevant Period and beyond. Her treating Psychiatrist, Dr Stephen Rodrigo, in a letter of 17 September 2017[55], shortly before the Applicant lodged her claim for DSP, stated that the Applicant was suffering from a long history of major depression and dysthymia with poor response to medication and behavioural therapy. He noted that the Applicant had not improved much with her depressive symptoms in spite of optimal medication for her condition.

   [55] Exhibit 1, T111, page 328.

4. The Tribunal notes also the letter from Ms Shelley Tripene dated 5 April 2017[56] confirming that the Applicant had been receiving psychological counselling services from her in Western Australia from 21 November 2014 through to 11 January 2016. The Tribunal thus accepts that the mental health condition has been manifesting for a considerable length of time.

   [56] Exhibit 1, T111, page 344.

5. Ms Priyanka Komandur, the Applicant’s Clinical Psychologist, in the questionnaire completed for Basic Rights Queensland (‘BRQ’)[57], indicated that she considered the Applicant’s mental health condition to be fully treated and fully stabilised as at August 2016. Ms Komandur also noted that as the Applicant had been diagnosed with dysthymia which is a chronic mental disorder that is unlikely within two years to respond to treatment.

   [57] Exhibit 1, T140, pages 454 to 462.

6. In relation to the six categories set out in Table 5 from which ratings are ascertained, the Tribunal notes that Ms Komandur, in her consideration of the Applicant’s self-care and independent living capacity, indicated that the Applicant’s difficulties were in the extreme category and reported that the Applicant required assistance to wash her hair, dress, hang clothes on the line and go shopping. However, the evidence both from the Applicant and her medical reports, indicate that these restrictions exist as a result of the upper limb conditions and associated pain. In fact, the Applicant’s evidence to this Tribunal unequivocally confirmed this:

   Around the time we are talking about, Dr Komandur - sorry, Ms Komandur, has provided a report saying you needed help with washing your hair, undressing and dressing, shopping, hanging the washing out. Was that because of your shoulder? - Yes.[58]

   [58] Transcript of Proceedings, page 25.

7. The Tribunal considers that in relation to the self-care and independent living consideration, Ms Komandur’s evaluation of extreme functional impact has conflated the Applicant’s functional impacts from her shoulder condition with those of her mental health condition.[59] Thus, the Tribunal considers that the Applicant’s functional impact rating lies between mild to moderate with regard to her self-care and independent living capacity.

   [59] Ibid 140 at 455.

8. In relation to the Applicant’s mental health condition’s functional impact upon social/recreational and travel activity, it is acknowledged that she does not travel long distances and confines herself to only travelling locally to Doctors appointments, shopping and Chemist, her friend’s house close by and her mother’s house. The Tribunal accepts that these restrictions are impacts on her social and recreational and travel activities. It is noted that her treating Clinical Psychologist, Ms Komandur, did note in her report[60] that the Applicant did visit her friend who lives closely, however, in her evidence to this Tribunal, the Applicant stated that as at the Relevant Period, her friend was visiting her as she had stopped going to visit her friend. She also told the Tribunal that she used to receive invitations from friends but would not accept them.

   [60] Ibid.

9. The Applicant is able to maintain reasonable interpersonal relationships with her family, albeit these relationships are maintained within the surrounding circumstances of the Applicant’s condition. She says that she has a friend, Tanya, who visits and it seems Tanya’s daughter, a Hairdresser with whom the Applicant is very close, having known her since the age of 12, and they both sharing a birthdate. It is the view of this Tribunal that the Applicant is capable of keeping close friends and sustaining relationships to some extent with those she values the friendship of. The Tribunal considers that the functional impact upon the Applicant’s ability to sustain interpersonal relationships are mild to moderate. The report of Ms Komandur states that the Applicant’s difficulties with concentration and task completion are severe. In order to warrant such a rating, Table 5 of the Impairment Determination requires the person to find it difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book) or, finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

10. The Applicant’s evidence to this Tribunal was that she would start doing something and fail to complete it and that she would watch television for about 10 to 15 minutes and would become ‘fidgety’, then get up and then return to the paused program later.

11. The Applicant, however, told the AAT1 that she was able to watch television programs for 30 minutes and enjoy them. The AAT1 also found that she told them she enjoyed puzzles. The narrative also changed in her evidence to this Tribunal as her evidence was that at the Qualifying Period she would do crossword puzzles and Sudoku but how many and how much depended on her mindset. She stated that on a good day she might complete half of a puzzle and then complete the rest of it later. If she had a bad mindset she would not do any and just lie in bed.

12. The Tribunal also notes that the Applicant was able to sustain her attention for the duration of the hearing (as she was reported by the AAT1 to have during that hearing) and was capable of taking the witness stand and submitting herself to examination-in-chief and cross-examination for 30 minutes with a break for Dr Wysoczanski’s evidence of 27 minutes. She was gathered in her demeanour and answered questions quite capably. The Tribunal considers that the functional impact in this particular benchmark would be moderate and thus does not agree with that attributed by Ms Komandur of severe impact.

13. The Applicant gave evidence that she suffered from temper outbursts from time to time, and will withdraw from company if she becomes anxious and does not want to partake in small talk with people. She testified to suffering from rash decision making and mentioned a tendency to duplicate bill paying. The Tribunal notes, however, that in the materials before the Tribunal there is documentation in the form of emails and statements by her updating the details for her claim put together quite professionally. Thus, the Tribunal considers the functional impact of her condition upon her behaviour, planning and decision making during the Qualification Period to be no more than moderate.

14. The Applicant also agitated the contention that she had been suffering from her mental health condition for a lengthy period and that as a result she was at the Relevant Period not capable of working for a baseline capacity of 8 to 14 hours per week, let alone building to a capacity of 15 to 22 hours per week within two years. The Applicant contended that all of her assessed functional impacts relating to the mental health condition should therefore accrue 20 points under Table 5. This Tribunal does not agree with the Applicant’s contention. The Tribunal has considered the relevant medical evidence and the reasons and decisions of the JCA and those of both the AAT1 earlier decisions and concurs that the Applicant’s mental health condition should be assessed under Table 5 of the Determination at 10 points.

    Summary of Impairment Points

Condition	Table	Points Assigned
Upper Limb Conditions	Table 2	10 points
Major Depressive Disorder	Table 5	10 points
TOTAL POINTS:		20 points

1. The Tribunal has found that the Applicant, when she claimed DSP, had 20 Impairment Points under the Impairment Table. However, because she has not been assessed as having 20 Impairment Points on one Table alone, she can only qualify for DSP if she has a continuing inability to work. In this matter the Tribunal agrees with the Secretary’s contention that the Applicant did not have a severe impairment as she did not have an impairment of 20 points of more under a single Impairment Table (sub-section 94(3B) of the Act).

2. The meaning of this is that the Applicant must have actively participated in a program of support within the meaning of sub-section 94(3C) prior to the Applicant’s claim for DSP in accordance with the Department of Social Services, Social Security (Active Participation for Disability Support Pension) Determination 2014 (F2015L00001, 15 December 2014) (‘POS Determination’). If the Applicant has not done so, she cannot be found to have a continuing inability to work.

   Participation in a Program of Support

3. A person has actively participated in a program of support if they meet the requirements set out in the POS Determination. The POS Determination applies to all claims for DSP made on or after 3 January 2015. Part 2 of that Determination sets out the requirements for active participation which require a person must actively participate in a program that:

   (a)was provided by ‘a designated provider’;

   (b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment;

   (c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work; and

   (d)includes at least one of the defined activities.

4. The Applicant was registered in a program of support with ORS Group, a Job Services Australia provider.

5. Part 2, section 7, of the POS Determination provides that a person has actively participated in a program of support if they have participated in and complied with the requirements of the program within the Relevant Period which is defined by section 5 as the period of 36 months ending immediately before the day on which the person claimed DSP and the person either:

   (a)has participated for at least 18 months within the three years prior to the date of the claim (sub-section 7(2));

   (b)has completed a program of support that was less than 18 months in duration prior to claiming DSP (sub-section 7(3));

   (c)was participating in a program of support that was terminated, prior to the person claiming DSP, because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work (sub-section 7(4)); or

   (d)was participating in the program at the end of the Relevant Period and is prevented solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through a continued participation (sub-section 7(5)).

6. The Applicant lodged her claim on 18 October 2017 and so therefore must have actively participated in a program of support during the 36 months ending immediately before the day on which she lodged her claim. In the Applicant’s case, this is the period from 17 October 2014 to 17 October 2017 (‘the relevant POS period’).

7. The Applicant’s referral history confirms that the Applicant had not actively participated in a program of support for at least 18 months (547 days) during the relevant POS period.[61]

   [61] Exhibit 1, T171, pages 653 to 654.

8. The Department’s calculation in Attachment ‘C’ to the Secretary’s Statement of Facts, Issues and Contentions indicates that the Applicant completed 127 days of the relevant POS. It is noted that in the material the number of days the Applicant completed in a POS vary from 127 (in the Respondent’s submissions) to 175 in the ARO’s decision and notes. Notwithstanding this discrepancy, the Applicant has not satisfactorily completed a POS. Therefore, the Applicant has not satisfied sub-section 7(2) of the POS Determination.

9. The Tribunal notes that there is no evidence that any of the POS exemptions in sub-section 7(3) to (5) apply in this matter. There is a report from ORS Employment Group dated 15 September 2017 completed by Melissa Jane indicating that the Applicant was still in the program as at that date and had not completed the program at that stage.[62]

   [62] Exhibit 1, T134, page 389.

   CONCLUSION

10. The Tribunal has found that the Applicant has a total Impairment Rating of 20 points as at the date of claim. She therefore satisfies paragraph 94(1)(b) of the Act as at that date. The Applicant, however, does not have an Impairment Rating of 20 points under a single Impairment Table and therefore she does not have a ‘severe impairment as defined in the legislation and therefore participation in a program of support or exemption pursuant to the Social Security (Active Participation for Disability Support Pension) Determination, 2014’ is also required. As has been described, the Applicant has not participated in a program of support for the appropriate length of time to qualify for a Disability Support Pension or termination of the program of support as she was unable, because of her impairments, to improve her capacity to prepare for, find or maintain work, or whilst participating she was prevented because of her impairments from improving her capacity to prepare for, find or maintain work.

11. The decision-maker has no scope or discretion to disregard the program of support requirement and as the Applicant did not fulfil the program of support requirement, she therefore does not satisfy paragraph 94(2)(aa) of the Act. This means that she cannot have a continuing inability to work under paragraph 94(1)(c) of the Act.

12. As the Applicant did not meet all of the qualification requirements for Disability Support Pension at the Qualification Period, the Tribunal therefore has decided that the decision by the Respondent to reject her claim was correct.

    DECISION

13. The decision under review is affirmed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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

Associate

Dated: 4 August 2020

Date(s) of hearing:	30 October 2019
Date of last submission:	29 October 2019
Solicitors for the Applicant:	A Hodgson, A and P Hodgson & Associates
Solicitors for the Respondent:	J Kyranis, Sparke Helmore Lawyers