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

Betts and Secretary, Department of Social Services (Social services second review) [2019] AATA 1000 (27 May 2019)
Division:GENERAL DIVISION
File Number: 2018/5127
Re:Ms Sandra Diana Betts
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:27 May 2019
Place:Melbourne

The Tribunal affirms the decision under review
....................[sgd]....................................................
Ms Anna Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – back pain, asthma/cough, generalised anxiety disorder/depression and osteoporosis (left hip pain)– whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Cases
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Kirvan and Secretary, Department of Social Services [2014] AATA 721
Cole and Secretary, Department of Social Services [2014] AATA 252
O'Cass and Secretary, Department of Social Services (Social services second review) [2016] AATA 876
Hansen and Secretary, Department of Social Services (Social services second review) [2016] AATA 1091
Secondary Materials
Guide to Social Security Law, Department of Social Services, Version 1.242 - Released 20 March 2018
REASONS FOR DECISION
Ms Anna Burke AO, Member

Ms Betts (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant her a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).
On 5 June 2017, Centrelink found that Ms Betts was not entitled to the DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 8 February 2019. Ms Betts was self-represented and Ms Kellie Latta, Solicitor of Sparke Helmore, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Latta.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Betts:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Ms Betts is 58 years of age, lives with her husband and has two adult daughters. She has completed a Bachelor of Applied Science and Physiotherapy, a Graduate Diploma in Occupational Health & Safety Management and a Graduate Diploma in Civil Ceremonies. She last worked in 2009, in numerous part-time physiotherapist positions. She is a registered marriage celebrant and is currently enrolled in a Juris Doctor at RMIT.
In August 2009, Ms Betts’ daughter was murdered and her killer dumped her dismembered body parts from a pier Ms Betts discovered her daughter had been murdered after reading a newspaper article about a leg that had been found off Phillip Island which had a distinct tattoo on the foot. After further investigation of internet articles and Facebook posts Ms Betts contacted police about her suspicions that the body part belonged to her daughter. Following DNA testing, the police confirmed that her daughter had been murdered.
On 2 May 2017, Ms Betts lodged an application for DSP, citing her medical conditions as:
(a)major depression, post-traumatic stress disorder, anxiety, alcohol use disorder – 20% whole person impairment;
(b)hypertension;
(c)hypothyroid autoimmune disorder;
(d)type 1 insulin-dependent diabetes;
(e)decreased oxygen diffusion - lung parenchymal dysfunction;
(f)shortness of breath on exertion;
(g)left total knee joint replacement;
(h)left hip recurrent trochanteric bursitis;
(i)C3-C4 severe left facet joint degeneration, hypertrophy, osteophytes and narrowing left intervertebral foramen;
(j)C4-C5: broad-based disc bulge, left side bony hypertrophy, disc space narrowing and marginal osteophytes;
(k)C5-C6: broad disc protrusion into neural foramen bilaterally, right facet joint osteophytes, and narrowing intervertebral foramen;
(l)grade 1 retrolisthesis of C5 on C6;
(m)C5-C6 severe spinal stenosis due to posterior osteophytes, 8 mm anterior-posterior (sagittal) diameter of spinal cord space (approximately 4 mm flattening as normal = 12mm);
(n)right C5 neural foraminal stenosis;
(o)left mild-moderate C5 neutral foraminal stenosis from facet and disc degeneration;
(p)C6-C7: right lateral disc protrusion with uncovertebral joint degeneration;
(q)C6 severe neural foraminal stenosis;
(r)C7 right neural foraminal stenosis;
(s)right C6 nerve compression;
(t)C5, C6, C7 upper limb radiated nerve pain and occasional paraesthesia right>left;
(u)occasional effects handwriting hand;
(v)mild lumbar scoliosis. Convex to right;
(w)L5-S1 circumferential disc bulge, L4-L5 and L5-S1 advanced facet disease and disc disease;
(x)recurrent right>left radiating sciatic nerve pain and paraesthesias, buttocks and lower limbs; and
(y)right 2^nd and 3^rd toes adducted, 2^nd over 1^st frequently.
On 25 January 2018, Centrelink conducted a Disability Support Pension Medical Assessment Recommendation on Ms Betts. The report was conducted as a file review by a psychologist who deemed that there was insufficient evidence to assess medical eligibility. Finding:
Alcohol use/Depression:
Consultant Psychiatrist confirms Alcohol Use Disorder and Major Depressive Disorder. Dr Adlard recommends ongoing psychiatric consultation and specific treatment to address serious alcohol use, with consideration to be made to use of medication to address excessive alcohol use. GP notes current use of antidepressant medication, with preparations being made to engage in therapy to reduce alcohol use. There is insufficient evidence available engagement in treatment (psychological intervention, psychiatric intervention, specialist rehabilitation programs, pharmacotherapy), prognosis of the condition or the functional impacts of this condition.
Back pain:
GP notes treatment is analgesia, physiotherapy and stretching. There is insufficient evidence available outlining diagnosis, engagement in treatment (allied health rehabilitation, specialist intervention, pharmacotherapy), prognosis the condition or the functional impact this condition.
[Chronic Obstructive Pulmonary Disease (COPD)]:
GP notes use of maximum medication. There is insufficient evidence available outlining diagnosis, engagement in treatment (allied health rehabilitation, specialist intervention, pharmacotherapy,) prognosis the condition or the functional impact this condition.
Note: There is an 11 page document outlining further medical conditions, however there is nil indication of who completed this document. In the absence of confirmation that this was completed by a qualified medical practitioner, this is not been considered.
On 16 March 2018, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier decision of the department to reject Ms Betts’ claim for a DSP stating:
I have found that your condition of major depressive disorder cannot be considered permanent.
According to the medical evidence, Dr Heather Allen reported the onset of this condition as 19 August 2009 with symptoms being poor motivation and energy, disturbed sleep, depressed mood, heightened anxiety and cognitive effects. Current treatment includes antidepressants and planned treatment is to maintain antidepressant therapy and a recommendation to engage in counselling. As per report dated 06 July 2016, Dr Steven Adlard advised you reporting seeing a couple of psychologists in the past however this did not assist with your condition. You also reported not currently having any psychological or psychiatric treatment for your condition.
…
On the basis of the evidence, at the time of your claim, there is no evidence to suggest you were under the care of either a clinical psychologist or psychiatrist. I also note that your treating doctor recommended appropriate psychological intervention which you have chosen not to pursue. Therefore, the condition is considered not fully treated and stabilised. This means no rating can be assigned on the Impairment Tables.
I have found that your condition of alcohol use disorder cannot be considered permanent.
…
On the basis of the evidence, at the time of your claim, there is no evidence to suggest you were undertook therapy to reduce the use of your alcohol use as recommended by Dr Heather Allen. Therefore, the condition is considered not fully treated and stabilised. This means no rating can be assigned on the Impairment Tables.
…
I have found that your condition of left hip recurrent trochanteric bursitis cannot be considered permanent.
According to the medical evidence, Dr Heather Allen reported the onset of this condition as 16 November 2012 with symptoms being intermittent pain on stepping forward uphill with left leg, occasional pain on stepping forward with left leg on flat surface, occasional pain when pivoting. Dr Heather Allen had reported treatment in the past being injections into muscle origins or tendons however there was no current or planned further treatment.
On the basis of the evidence, the time of your claim, there is no evidence to suggest you undertook any treatment or physical therapy. I also note that the prognosis his condition was unknown as noted by Dr Heather Allen. Therefore, the condition is considered not fully treated and stabilised. This means no rating can be assigned on the Impairment Tables.
I have found that your condition of lumbar and cervical disorder cannot be considered permanent.
According to the medical evidence, Dr Heather Allen reported the onset of this condition as 2005 with symptoms being pain in neck and lower back and nerve pain in arms and legs. Current planned treatment as reported by Dr Heather Allen is physiotherapy, analgesia and a series of stretches to manage the symptoms.
…
On the basis of the evidence, at the time of your claim, there is no medical evidence available outlining the diagnosis, treatment undertaken, prognosis and functional impacts of this condition. Therefore, the condition is considered not fully diagnosed, treated and stabilised. This means no rating can be assigned on the Impairment Tables.
I have found that your condition of chronic obstructive airways disease cannot be considered permanent.
According to the medical evidence, Dr Heather Allen reported the onset of this condition as January 2015 with symptoms being breathlessness and cough at times. Current planned treatment as reported by Dr Heather Allen is lifelong medications.
On 8 August 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Ms Betts’ DSP claim. The AAT Tier 1 awarded Ms Betts an impairment rating of 5 points for her neck and lower back conditions under Table 4 - Spinal Function of the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables). The Member found:
Having considered all the information before it and taking into account Ms Betts’ oral evidence, the tribunal accepts that she has a longstanding depressive disorder and alcohol use disorder for which she has not had any specialist medication review or therapy for several years. She was assessed by a psychiatrist in July 2016 and was diagnosed with a major depressive order and alcohol use disorder. Ms Betts’ general practitioner acknowledged that the two conditions are linked and a worsening of one condition impacts on the symptoms of the other condition. The tribunal was of the view that a medication review and some ongoing therapy to overcome the alcohol dependency issues are likely to help Ms Betts’ functional capacity in the next two years. The tribunal finds Ms Betts’ depressive disorder and alcohol use disorder were fully diagnosed at the time of claim but they were not fully treated and fully stabilised for the purposes of assessing qualification for disability support pension. The tribunal decided it was unable to assign any impairment points to these conditions at this time.
…
Having taken all the information before it into consideration the tribunal accepts that Ms Betts’ has long-standing pain affecting her neck and lower back in the setting of ongoing degenerative changes. The tribunal finds that the neck and back condition is fully diagnosed, treated and stabilised for the purposes of assessing qualification for the disability support pension. The tribunal decided that at the time of lodgement of this claim for the pension there was a mild functional impact on activities involving spinal function and so concluded that this condition rated 5 points under Table 4 - spinal function.
…
The tribunal accepts that Ms Betts has COPD for which she has been treated with some medication prescribed by her general practitioner. She has had a lung function test but has not consulted a respiratory physician. The tribunal accepts this is a longstanding chronic condition but it is possible that review by a specialist and perhaps a trial of some other medications may alleviate some of the symptoms of this condition, and so improve daily functional capacity. The tribunal finds that the COPD was fully diagnosed at the time of claim but not fully treated and fully stabilised for the purposes of assessing qualification for disability support pension. The tribunal decided that it was unable to assign any impairment points this condition at this time.
…
The tribunal accepts that Ms Betts has some left lower limb dysfunction but has not experienced any functional limitations with her lower limbs since she underwent surgery on her left knee in 2015. Details about the investigations undertaken, specialist referrals sought or treatments trialled for the medical condition diabetes are very sparse the medical evidence before the tribunal. Further, there is no information provided about the likely functional impact of this condition on Ms Betts’ daily functioning or any assessment of prognosis. The tribunal decided that Ms Betts has been diagnosed with all the medical conditions listed in this section. Ms Betts told the tribunal that she does not experience any functional limitations currently with respect to lower limb dysfunction; the tribunal decided these did not rate any impairment points. Also, given the lack of more detailed medical evidence regarding the diabetic condition, the tribunal decided it was unable to assign any impairment points to it at this time.
On 4 September 2018, Ms Betts sought a review of the AAT Tier 1 decision by this division of the Tribunal. Her long and detailed reasons for her application indicated she believes the Member did not have sufficient insight into her conditions, nor her functionality because of those conditions. Ms Betts also disputed the Member’s conclusion that further reasonable treatment was available to her as the Member had ignored the cost barriers to accessing such treatment.
In accordance with Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 (Administration Act) Ms Betts’ qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 1 August 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “[s]elf-report of symptoms alone is insufficient” and that “[t]here must be corroborating evidence of the person’s impairment.”
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of s 6(7), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The issue to be determined in this review is whether, during the qualifying period, Ms Betts suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment; not to assess conditions (see Part 2, s 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.

Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider Ms Betts’ medical conditions with reference to the applicable Impairment Tables.
The Social Security (Active Participation for Disability Support Pension) Determination, in Part 2, sets out a number of exemptions to the general requirements that a person must participate for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated 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 through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
The relevant period means:
(a) in relation to a person (other than a reviewed 2008‑2011 DSP starter) whose impairment is not a severe impairment—the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents, additional medical reports, as well as other information and numerous cases provided by Ms Betts.
DOES MS BETTS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for the DSP, in the first instance, a person must suffer from an impairment.
The parties accept that Ms Betts was suffering from a mental health condition, alcohol use disorder, spinal condition, respiratory condition and lower limb disorder - left hip and knee during the qualifying period. Accordingly, the Tribunal finds that Ms Betts meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
Mental health/alcohol use disorder
Doctor Stephen Adlard, consultant psychiatrist, in a medico-legal report of 6 July 2016, states:
She said her daughter… was brutally murdered by a man… who had murdered twice before, and was on parole at the time of [her daughter’s] death. [Her daughter’s] body was dismembered and not fully recovered and it took some time for the body parts that were found to be confirmed to be [her daughter’s]. Following [her daughter’s] death, Ms Betts describe significant psychiatric symptoms which have persisted despite treatment and the passage of time. She now describes lowered and anxious mood, impaired sleep, recurrent distressing thoughts about her daughter, some hyperarousal, subjectively impaired cognition, some guilt and ongoing anger related to the justice system.
I note that Ms Betts drank alcohol excessively prior to the death of her daughter, and she stated that she drank about 1 L of wine per day. Nonetheless she was heavily involved in a number of activities including working a number of jobs part-time and being involved with a political party and other social/community groups. Her alcohol intake has dramatically increased since the death of her daughter and now she has very hazardous levels of alcohol use, approximately 2.5 L of wine per day (about 20 standard drinks). In terms of her psychiatric conditions, I think it likely, based on history given, that Ms Betts had a couple of episodes of what were probably either brief depressive episodes or brief Adjustment Disorders in 1996 and 2000, from which she appeared to recover well. She clearly had an Alcohol Use Disorder prior to the death of her daughter. I think following the murder of her daughter she has developed an aggravation of her pre-existing Alcohol Use Disorder, and she also developed Major Depressive Disorder. There are some features of traumatisation though she does not meet the criteria for Post Traumatic Stress Disorder.
…
In my view, Ms Betts needs ongoing psychiatric treatment and particularly she needs treatment to address her serious alcohol use. I would recommend that she see a psychiatrist who also has expertise in managing Alcohol Use Disorders. I think she will need medication to control excessive alcohol use as well. The antidepressants, anti-alcohol medication and consultation with a psychiatrist (approximately two years for a total of approximately 40 sessions) would in my view cost $15,000.
…
She has a quite limited lifestyle now and she is not able to work. In my opinion there is no way she could work with her level of psychiatric distress and her excessive alcohol use. I note that while she drank excessively prior to the death of her daughter, she was still able to work and involve herself in a number of social and community activities, and this has changed quite substantially since the murder of her daughter.
Doctor Heather Allen, general practitioner, in a report to Centrelink for this DSP application dated 11 September 2017, states:
Major depressive disorder-onset August 2009 in the setting of a major family trauma and diagnosis was made soon after.
Her symptoms are as follows - lowered mood, anxious mood, impaired sleep, recurring distressing thoughts, hyperarousal at times, subjectively impaired cognition and ongoing anger.
She has had a variety of treatments that include psychological therapy, antidepressants and anxiolytics all of which have failed to make any significant impact on her mood and function.
Over the next two years, and in fact life long she will require ongoing antidepressant therapy and ongoing psychiatric care.
Alcohol use disorder - this was evident prior to the death of her daughter in August 2009 but was significantly aggravated by that incident and is now very severe.
She drinks at hazardous levels and has to date had limited but ultimately unsuccessful treatment for this partly due to her ongoing psychiatric disorder. The two are inextricably linked. The level of alcohol use disorder impairs her day to day function quite significantly.
Dr Melvin Pinto, consultant psychiatrist, in a report of 22 October 2018 opines: She suffers from a severe Post-traumatic Stress Disorder, with an unresolved grief reaction, which had followed the brutal murder and dismemberment of the body of her eldest daughter, whose remains were not fully recovered… She is now suffering from chronic mental illness and her mental state now is stabilised and unlikely to improve any further. As this report was compiled outside the qualifying period the Tribunal notes but does not rely upon it in its consideration.
Ms Betts’ gave evidence, by way of written submissions and at the hearing, that during the qualifying period she had diminished concentration and perseverance, altered diurnal rhythms, decreased social interaction, was depressed, and drank heavily at night which impaired her ability to function at any level. She argued that whilst she was undertaking a degree she could only manage one subject a semester at most and RMIT had put her on an Equitable Learning Plan (ELP), as she had provided documentary evidence that she had a long term mental illness. The ELP was tailored to her impairments to assist her undertake the course.
In her final written submission Ms Betts’ argued: This “inverted sleep pattern” (as Dr Pinto calls it) and the anti-social aspects of depression and PTSD, together with my night time drinking behaviour are reasons why I study at home on the computer mostly and have only occasional face-to-face practical as my main contact with other students.
Doctor Allen stated that Ms Betts: depression impacts on her ability to self care at times, in particular in regards to managing her Insulin dependent diabetes, she does not always involve herself in social events and interpersonal relationship are often strained. Concentration and task completion is impaired.
Doctor Allen stated that Ms Betts: regularly uses alcohol, and as a result of this often has difficulties in completing daily tasks and responsibilities. She has more frequent difficulties in reliably attending appointments and her alcohol use has a detrimental effect on family relations.
The Respondent accepted that Ms Betts’ mental health condition and alcohol use disorder were fully diagnosed in the qualifying period; but contended that neither was fully treated and stabilised as there was no evidence of any psychological treatment since 2013. Additionally, the Respondent argued Ms Betts had only consulted a psychiatrist, Doctor Adlard, for an assessment on one occasion, in the context of other legal proceedings; and there was no evidence she had undertaken the recommended treatment.
In Doctor Allen’s report, she stated that she did not believe that there were any further treatments that were reasonably available to assist Ms Betts’ major depressive disorder and noted that in respect of her alcohol condition Ms Betts had reasonably attempted to address this condition by attending an addiction treatment program called Day Hab, which was ultimately not helpful for her.
Ms Betts strongly contended that the argument she had not received adequate treatment for her mental health condition was inaccurate. She argued that she had undergone treatment for over five years, from August 2009 to late 2014, and this stabilised her condition, which has remained the same since. She emphasised that she had undertaken EMDR treatment with Barry Cripps which was a targeted treatment program for PTSD but this ceased when Barry Cripps retired and she has been unable to afford ongoing reasonable treatment.
Additionally, Ms Betts contended that she had undertaken significant treatment to deal with her alcohol use disorder, undertaking an expensive 12 week program which involved education, counselling, peer group support sessions, AA visits, self-reflection and study.
Ms Betts contended that her mental health condition and alcohol use disorder were stabilised; and she concurred with her treating general practitioner that further treatment, whilst necessary to support her, would not improve her condition.
The Respondent dismissed Ms Betts’ claim that ongoing treatment was too expensive, as services offering lower cost treatment had been recommended to her and there was no evidence she had sought a mental health care plan from her GP.
The Respondent also noted that Ms Betts’ mental health condition is impacted upon by her alcohol use disorder and there was no evidence she had sought treatment to reduce her alcohol dependency.
The Tribunal is satisfied that Ms Betts’ major depressive disorder and alcohol use disorder were fully diagnosed, treated and stabilised during the qualifying period as she had undertaken all reasonable medical treatment recommended by her treating specialists to stabilise the conditions. The Tribunal finds that Ms Betts is suffering from a chronic mental disorder that has been stabilised but will not improve. Therefore, the Tribunal, on balance, finds that Ms Betts’ major depressive disorder and alcohol use disorder had been fully diagnosed, treated and stabilised during the qualification period.
As Ms Betts reported, and her evidence was corroborated by her treating general practitioner, during the qualifying period she had moderate difficulties with self-care, avoided social activities, could not concentrate or complete tasks, had irregular sleep patterns, consumed excessive amounts of alcohol daily which was placing a strain on her family relationships, was unreliable - often failing to attend appointments - and undertook her studies at a reduced pace to complete the workload. The Tribunal considers these conditions under Table 6 – Functioning related to Alcohol, Drug and Other Substance Abuse and finds that they were having a moderate functional impact on her activities during the qualifying period.
The Tribunal awards Ms Betts 10 points under Table 6 of the Impairment Tables in respect of this condition, noting the effects of Ms Betts’ mental health and alcohol abuse are linked. As the two conditions cause a combined impairment, the rules of the Determination clearly state a single rating should be assigned therefore the Tribunal awards 10 points under Table 6 as it best reflects the impact this combined condition is having on Ms Betts’ functionality.
Spinal condition
Dr Doug Anderson reported on an x-ray of the lumbar spine on 19 October 2016, stating: [t]he spine shows a degenerative scoliosis. Advance facet disease and disc disease at L4/L5 and L5/S1. There is a potential recent superior end plate fracture of L2 involving the central portion of the vertebral body.
Doctor Allen, general practitioner, in a report to Centrelink for this DSP application dated 11 September 2017 opined: Ongoing pain secondary to back pain, both lumber and cervical. This has been ongoing for many years and was formally diagnosed as early as 2005. She has pain in her neck and lower back and often has nerve pain in her arms and legs. She has analgesia, physiotherapy and performs a series of stretches to try to manage her symptoms.
The Respondent accepts that Ms Betts’ spinal condition was fully diagnosed, treated and stabilised during the qualifying period, as verified by her general practitioner. The Respondent noted there was no suggestion that Ms Betts required surgical intervention for her condition.
Doctor Allen stated that Ms Betts: has difficulty with activities over head height due to her cervical spine issues and has trouble bending and straightening due to her lower limb issues.
The Respondent contended that Ms Betts’ spinal condition resulted in a moderate impairment of 10 points under Table 4, based on the evidence of her general practitioner and her reported difficulties with overhead activities. The Respondent argued that there was no evidence that Ms Betts was unable to perform any overhead activities, turn her head, bend her neck without moving her trunk, bend forward to pick up a light object from a desk or table or remain seated for at least 10 minutes. Additionally, they argued that Ms Betts’ low walking tolerance appeared to be due to her shortness of breath rather than her spinal condition.
Ms Betts concurred with the Respondent’s contention that her spinal condition was moderate and resulted in 10 points of impairment under Table 4 - Spinal Function, as she is able to drive a car for at least 30 minutes but is unable to sustain overhead activities and has difficulty bending.
The Tribunal concurs with the Respondent and Ms Betts, and is therefore satisfied that Ms Betts’ spinal condition was fully diagnosed, treated and stabilised during the qualifying period and was having a moderate impact upon her functionality. As she reported, and as was corroborated by her treating general practitioner, she had moderate difficulties with bending and overhead activates. The Tribunal therefore assesses this condition at 10 points under Table 4, as this best reflects the functional impact of this condition.
Respiratory condition
Doctor Allen, general practitioner, in a report to Centrelink for this DSP application dated 11 September 2017 opined: COPD - diagnosed January 2015. Her symptoms are that of breathlessness and cough at times. She uses maximum medication for this and has difficulty with exertional breathlessness. She will need to maintain these medications lifelong and there is no other specific treatment available for this condition.
Doctor Allen stated that Ms Betts: has difficulty with activities like walking up hills and other moderately physical activities as she gets quite out of breath.
Ms Betts gave evidence, by way of written submissions and at the hearing, that during the qualifying period she had difficulty walking up slopes and climbing stairs, needed to constantly stop to recover and had a complete inability to run or jog for more than short distances.
The Respondent argued that Ms Betts’ respiratory condition was diagnosed but not fully treated and stabilised during the qualifying period as there was no evidence that Ms Betts had been assessed by a specialist; and there was insufficient information regarding her treatment to date, which appeared to have been limited to medication.
Ms Betts argued that the contention her respiratory condition was not fully treated and stabilised as she had not consulted a respiratory physician was unfounded. She explained that she had discussed this issue with her general practitioner who advised that a referral was not warranted as it would not lead to an alteration in her treatment because her COPD is a permanent non-reversible condition. Ms Betts referred to an observation summary chart completed by the emergency department at the Angliss Hospital on 8 February 2017, which she contended showed her oxygen diffusion was very impaired at rest. She contended that this was evidence of this condition which had been provided to the Respondent.
Ms Betts took the Tribunal to the matter of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 where His Honour Justice Gyles stated:
It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis. Having considered the helpful arguments of counsel on the point, I remain of that view.
The Tribunal is satisfied that Ms Betts’ respiratory condition was fully diagnosed, treated and stabilised during the qualifying period and was having a mild impact upon her functionality. As she reported, and as was corroborated by her treating general practitioner, she had mild difficulties with physical exertion. The Tribunal therefore assesses this condition at 5 points under Table 1, as this best reflects the functional impact of this condition.
Left hip/left knee
Dr Anthony Upton, radiologist, performed a left hip ultrasound, a pelvis and left hip x-ray and left knee x-ray on Ms Betts on 18 January 2011. He found degeneration in the lower lumbar spine, tricompartmental degeneration in the left knee and gross changes of trochanteric bursitis. Ms Betts subsequently underwent a total left knee replacement in September 2012; and later had an ultrasound-guided injection of celestone/maracine into her left hip. Additionally, Ms Betts received physiotherapy treatment to assist with these conditions.
Ms Betts gave evidence that during the qualifying period she had weakness when stepping up stairs, pain if kneeling, difficulty getting up from the floor, and decreased depth of squatting and decreased ability to sustain a squatting position.
The Respondent accepted that Ms Betts had a total left knee replacement in September 2012 and injections for her left hip but argued that Ms Betts’ left hip and left knee conditions were not fully diagnosed, treated and stabilised during the qualifying period.. The Respondent also argued that there was no evidence that Ms Betts’ left knee or hip condition resulted in any functional impairment; and as such nil points could be awarded under Table 3 lower limb function.

The Tribunal is satisfied that Ms Betts’ left hip/left knee condition was fully diagnosed, treated and stabilised during the qualifying period and that it was having a mild impact upon her functionality. However the Tribunal finds that this condition was not having a functional impact on her daily activities and awards nil points to this condition.
IMPAIRMENT RATING
The Tribunal finds that Ms Betts has an overall impairment rating of 25 points: 10 points under Table 6 – for her alcohol use disorder, 10 points under Table 4 – for her spinal condition and 5 points under Table 1 – for her respiratory condition. Therefore, she satisfies s 94(1)(b) of the Act.
DOES MS BETTS HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Ms Betts must not only satisfy the requirement that she has impairment with a rating of 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work. Ms Betts would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to her claim for DSP and her impairment is of itself sufficient to prevent her from doing any work, independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act; and it is irrelevant whether an applicant was aware of the requirement.
Ms Betts has not been found to have a severe impairment attracting 20 points under a single table. Therefore, she must have participated in a program of support for the requisite 18 months prior to her claim. Ms Betts has not completed a program of support, having only attended an employment service provider on one occasion, on 4 July 2017, having been referred on 8 June 2017, after she had lodged her DSP claim.
Ms Sarah Court, Quality Manager at MatchWorks (Ms Betts’ disability service provider), advised Centrelink via letter that Ms Betts had been exited from MatchWorks at her request on 4 July 2018 as she was a voluntary participant. MatchWorks had no response in respect of whether Ms Betts was, solely because of her impairments, unable to improve her capacity to prepare for, find or maintain work through continued participation in a program provided by MatchWorks. Nor could it advise whether Ms Betts impairments may limit her ability to benefit from services provided by MatchWorks. A general file note from MatchWorks states:
Long discussion with [jobseeker] re her at one time being on DSP then getting taken off it (due to her husband’s work) and then having to reapply. However she has appealed (recently) as they refused her although her paperwork that she showed to me said that it was a permanent disability. However the ESS system says that she is a [voluntary jobseeker on newstart allowance] with a work capacity of 0 - 7 for ever. [Jobseeker] does not wish to be attached and has been exited. She will be going to Centrelink to see what is happening re her appeal.
Ms Betts also provided letters from Ms Court dated 31 January 2019 and 7 February 2019, the latter of which stated:
Your Mutual Obligation requirements are Reduced Activity Test.
You are currently Suspended from services, by Department of Human Services (Centrelink) due to having a Partial Capacity to work of 0-7 hours per week, the start date at this suspension is 6/07/2017.
Ms Betts strongly contended that she has a continuing inability to work. In her statement to the Tribunal of 8 March 2019 she states:
Centrelink has accepted that my work capacity is rated at 0-7 hours/week, and accordingly, as at 6 July 2017, the Department of Social Services (DSS) ‘suspended’ me from job active requirements. This has been confirmed to me by the Manager of Matchworks Boronia and this is meant Matchworks has not contacted me about seeking employment since the date.
There was confusion about my attendance at Matchworks Boronia on 4 July 2017, as my recall and file note was that an officer there told me they would ‘exit’ me - something I knew nothing of prior to attending Matchworks (and which they would be entitled to do under the Disability Employment Service Programme Review, Program Summary and Exit Guidelines at p16 “Provider Exit – for Volunteer Participants with Mutual Obligations” where ‘Following an Assessment a participant has a [Job Capacity Assessment (JCA)] and is assessed as having a future work capacity of 0-7 hours per week’. However the records that Matchworks show that that was NOT what happened, instead Centrelink themselves ‘suspended’ me, something Matchworks can not do but only Centrelink can do. My record shows ongoing ‘suspension’ from 6 July 2017 until now and that the reason was a job capacity assessment of 0-7 hrs/week.
I contend this shows that Centrelink has accepted my job capacity is 0-7hrs/week and not a level defined as capable for work as defined by the Act.
…
This circumstance also means that Centrelink has cause me not to be able to comply with the requirement of a “Program of Support” (POS) via a Disability Employment Service, as by ‘suspending’ me I am not able or required to attend a Disability Employment Service (DES) provider and said provider is ‘suspended’ from contacting me because of this action by Centrelink.
Ms Betts further contended that she has complied with the program of support determination through her participation in a Juris Doctor at RMIT under an ELP. She argued that the determination was satisfied as:
·RMIT is a designated provider as it is wholly Commonwealth funded;
·that the program was specifically tailored to her needs as she has been placed on an ELP;
·that the course focused on developing skills to improve her capacity to prepare for, find and obtain work; and
·the program includes job preparation education and training.
The Respondent argued that the Tribunal could not find that Ms Betts had fulfilled the requirements of a program of support by undertaking the Juris Doctor as it did not address her level of impairment, individual needs or barriers to employment. The Respondent took the Tribunal to the matter of Kirvan and Secretary, Department of Social Services, where the member stated:
I accept most of the submissions Ms Riley has made on behalf of Ms Kirvan in relation to this issue. In particular, I accept that subs 94(5) is potentially broad enough to allow a program which is not funded wholly or partly by the Commonwealth to be regarded as a "program of support" providing it is "similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth" and is "designed to assist persons to prepare for, find or maintain work". I also accept Ms Riley's submission that it is strongly arguable that the course undertaken by Ms Kirvan was "designed to assist persons to prepare for ... work", and that it was "similar to" programs designed to assist persons to "prepare for ... work" which are wholly or partly funded by the Commonwealth.
I further accept that the requirements for active participation in a program of support contained in Part 2 of the Determination can be met if the duration of the program of support was less than 18 months and the person completed that program, providing the person also supplies the decision-maker with the details outlined at subs 5(6) of Part 2. I also accept on the evidence that Ms Kirvan did complete the Certificate III in Property Services during the relevant period and that she has provided details of this sufficient to meet the requirements of subs 5(6) of Part 2 of the Determination.
However, as I have indicated previously, it is also clear that in deciding whether Ms Kirvan satisfies subs 94(2)(aa) of the Act, I must have regard to the Guidelines contained at Part 3 of the Determination. Those Guidelines contain four separate criteria which, in effect, are mandatory relevant considerations in determining whether subs 94(2)(aa) is satisfied.
The first criterion is that the relevant program was "provided by a designated provider". With respect to this criterion, I have decided that it is open to me to conclude that the TAFE course undertaken by Ms Kirvan was provided by a "designated provider", being a provider that provided a program satisfying paragraph (a) and subparagraph (b)(ii) of the definition of "program of support" in subs 94(5) of the Act, namely the provider of a program that was "similar to a program ... that is funded (wholly or partly) by the Commonwealth." Therefore, I am satisfied that the TAFE course undertaken by Ms Kirvan could potentially be regarded as a relevant program of support having regard to the requirements of subs 6(a) of the Guidelines.
The fourth criterion set out in the Guidelines relates to the activities included in the relevant program, and I am satisfied that the course Ms Kirvan undertook involved "education and training" pursuant to subs 6(d)(iii) and that this criterion is therefore also met.
However, as I have indicated previously, the second criterion is that the program was "specifically tailored to address the person's level of impairment, individual needs and barriers to employment" and the third criterion is that the program "provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person's capacity to find, gain or remain in employment (including self-employment)".
Although I have carefully considered this question, I am not satisfied that the Property Services course undertaken by Ms Kirvan satisfied either of those requirements. Ms Kirvan freely acknowledged in her evidence that the Property Services course she undertook was a general course offered by TAFE and was not specifically tailored to her needs or circumstances. Accordingly, there is simply no evidence before me which would allow me to conclude that this course met the criteria specified at subs 6(b) and (c) of the Guidelines.
It follows that the course undertaken by Ms Kirvan satisfies only two of the four criteria which the Tribunal is required to have regard to in deciding whether she has "actively participated in a program of support" for the purposes of subs 94(2)(aa) of the Act, and a proper application of the Guidelines therefore militates heavily against a conclusion that Ms Kirvan has met the requirements of subs 94(2)(aa). In these circumstances, I have concluded that I am not satisfied that Ms Kirvan has actively participated in a program of support for the purposes of subs 94(2)(aa) of the Act in the context of her claim for DSP lodged in May 2013.
Additionally, the Respondent relied upon the case of Cole and Secretary Department of Social Services, which they contended determined that studying a law degree on a full-time basis did not satisfy the requirements of s94(1)(c). Member Shanahan in Cole found:
that although she satisfied s 94(1)(b) in terms of the impairment rating, Ms Cole did have a partial capacity to work and was thus required, for the purposes of eligibility, to undertake a program of support. She has not done this because she is undertaking tertiary studies on a full time basis at Deakin University. The SSAT found that she did not satisfy s 94(1)(c) of the Act. While this Tribunal agrees with that finding, it also finds that she does not satisfy s 94(1)(b). The Tribunal affirms the decision under review.
The Tribunal does not find Ms Betts had completed a program of support by virtue of undertaking a Juris Doctor. The Tribunal finds the undertaking of a tertiary qualification aimed at qualifying an individual for a specific discipline, such as law, could not be said to satisfy the requirements of the determination that the course was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment. Nor did it provide 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.
Ms Betts argued that if the Tribunal did not find that undertaking her Juris Doctor was an equivalent to completing a program of support, she relied upon the decision of O'Cass and Secretary, Department of Social Services, where the Member found that:
The materials before the Tribunal, and those available during the qualification period, do not suggest that his medical conditions and related incapacity were likely to change for the better within two years, or at all. The evidence is that Mr O’Cass’s medical conditions and impairments will deteriorate with time, and there is little real prospect of any improvement in his capacity to work or to undertake training. It is quite clear that Mr O’Cass has been under ongoing medical certificates of incapacity well after the end of the relevant period and presently.
The evidence clearly establishes that Mr O'Cass had a baseline work capacity within two years of less than 15 hours per week and that training activity would not change this assessment. It follows that he satisfies s 94(2)(a) and (b).
For these reasons, Mr O'Cass has a continuing inability for work for the purposes of s 94(1)(c) with reference to the qualification period.
Ms Betts argued that like Mr O’Cass she had been referred to the disability employment provider after she had applied for the DSP, in her case some two months after, and at the time had ongoing medical certificates suspending her from Centrelink requirements. Ms Betts contended that her suspension had been serial and indefinite, with no action taken to confirm the continuing status of the program and no periodic review had ever been undertaken. Additionally, as she had not participated in a JCA at any stage in this process she argued that Centrelink had accepted her medical certificates which indicated her continuing inability to work.
Ms Betts additionally relied upon the decision of Hansen and Secretary, Department of Social Services where the member found:
First, contrary to the determination made by the JCA, I accept that the Applicant could not, regardless of her level of participation in a POS, improve her work capacity such that she meets the 15 hour per week minimum threshold over the next two years. Second, and in any event, I consider that the ongoing deterioration of the Applicant’s condition would likely impede her from being able to participate in a POS such that she would be able to reap any benefits from it at all.
Ms Betts contended that her conditions were such that she would not improve her capacity to prepare for, find or maintain work through participation in a program of support.
The Respondent contended that Ms Betts had voluntarily exited from the program of support and her participation had not been terminated because she was unable to improve her capacity to prepare for, find or maintain work through a continuing participation in the program. Additionally, the Respondent contended that at no stage had Ms Betts actively participated in a program and there was no evidence a decision to terminate her from the program had been made. Finally, the Respondent stressed the program of support attendance period ended on 1 May 2017 and Ms Betts had not attended MatchWorks until 4 July 2017. Therefore, the Tribunal could not find on the available evidence that her participation had been terminated before the end of the relevant period.
The Tribunal concurs with Ms Betts’ treating doctors, that her conditions would prevent her from being able, solely because of her impairments, to improve her capacity to prepare for, find or maintain work through continued participation in any program. The Tribunal does not have enough evidence to decide whether Ms Betts had been exited from the program of support by her service provider or suspended indefinitely from the program by Centrelink. The Tribunal notes that this situation has been exacerbated by Centrelink’s failure to conduct a JCA with Ms Betts at any stage during this DSP claim.
The Tribunal is very sympathetic to Ms Betts uniquely difficult situation but cannot find that Ms Betts satisfies the program of support requirement as she had not seen a relevant service provider during the relevant period, with her first appointment with MatchWorks taking place on 4 July 2017, well outside the qualifying period.
Dr Allen believed that Ms Betts would be unable to work at least 15 hours a week for at least the next two years because the combination of her numerous medical conditions make it impossible for her to work in her usual profession as an allied health practitioner. Doctor Allen also believed Ms Betts would be unable to undertake training activities in the next two years because of her mental health condition and alcohol abuse.
The evidence clearly establishes that Ms Betts had a baseline work capacity, within two years of the claim, of less than 15 hours per week and that a training activity would not change this assessment. It follows that she satisfies s 94(2)(a) and (b).
For these reasons, Ms Betts has a continuing inability for work for the purposes of s 94(1)(c) with reference to the qualification period.
CONCLUSION
The Tribunal is troubled by the fact that at no stage had Centrelink conducted a JCA on Ms Betts in respect of this DSP claim instead relying upon file reviews and that it never actually discussed with Ms Betts, face-to-face or via telephone, her functional impairment during the qualifying period. Centrelink also did not assist Ms Betts to comply with the program of support requirements by never conducting a JCA with her.
Given that Ms Betts’s current claim had not been subject to a JCA review it was open to Ms Betts to make a claim for compensation under the Scheme for Compensation of Detriment caused by Defective Administration (the CDDA Scheme), if she believe her claim had been impacted by defection administration. The CDDA scheme is administered by the Department of Finance, defective administration is defined as:
- a specific and unreasonable lapse in complying with existing administrative procedures; or
- an unreasonable failure to institute appropriate administrative procedures; or
- an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
- giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
The CDDA Scheme is discretionary, claims are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable.
The Tribunal is of the view that Ms Betts’ numerous complex impairments were having a significant impact upon her functionality and that she had a continuing inability to work but as none of her conditions were severe combined with the fact she had not participated in a program of support she did not qualify for the disability support pension during the relevant qualifying period.
The Tribunal wishes Ms Betts well and encourages her to reapply for the DSP when she has resolved her situation in respect of the program of support.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 93 (ninety-three)paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

................[sgd]..................................
Associate
Dated: 27 May 2019

Date of hearing: 8 February 2019

Date of final submissions: 29 March 2019

Applicant: Self-Represented

Advocate for the Respondent: Ms Kellie Latta

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 1000

27 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	8 February 2019
Date of final submissions:	29 March 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Kellie Latta
Solicitors for the Respondent:	Sparke Helmore