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

[2015] AATA 698

Boer; Secretary, Department of Social Services and (Social services second review) [2015] AATA 698 (11 September 2015)

Division	GENERAL DIVISION
File Number	2014/0804
Re	Secretary, Department of Social Services
APPLICANT
And	Philip Boer
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	11 September 2015
Place	Adelaide

The decision under review is set aside. In substitution, it is found that Mr Boer does not qualify for the Disability Support Pension.

....................................................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - disability support pension – whether conditions fully diagnosed, treated and stabilised – no impairment rating attracted - decision under review set aside.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, (Cth)

CASES

Re Fanning and Secretary, Department of Social Services 144 ALD 133, [2014] AATA 447

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension

REASONS FOR DECISION

Member I Thompson

11 September 2015

1. Mr Boer lodged a claim for disability support pension (DSP) on 24 May 2013. Centrelink rejected the claim on 9 August 2013 and Mr Boer sought internal review of that decision. It was affirmed by an authorised review officer of Centrelink on 29 October 2013. Mr Boer applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision. His application was successful. On 15 January 2014 the SSAT set aside the Centrelink decision and returned the matter to Centrelink for reconsideration in accordance with a direction that Mr Boer satisfies the provisions of s 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) and has done so since the date of claim.  The effect of the SSAT decision is that Mr Boer is eligible to receive the DSP from the date of his claim. 

2. On 13 February 2014 the Secretary filed an application for review of the SSAT decision on the basis that the SSAT erred in finding that Mr Boer satisfied s 94(1)(b) of the Act, specifically in finding that Mr Boer’s condition of anxiety disorder was fully treated and fully stabilised at the date of his claim and assigning impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

3. The hearing before this Tribunal took place on 9 July 2015.  Mr Boer resides in regional South Australia and he gave evidence to the Tribunal by video link.  Mr Boer was represented by Ms Clark, from South East Community Legal Services, Mount Gambier, and the Secretary was represented by Ms C Shepherd, from Australian Government Solicitor.  The Secretary called oral evidence from Dr Marty Ewer.  Medical reports were received in evidence as exhibits together with reports from Centrelink. 

   LEGISLATION AND ISSUES

4. The Act sets out the qualification criteria for DSP.  Section 94(1) of the Act provides that an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

5. Under s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

6. Under ss 41 and 42, and cls 3 and 4 of the Social Security (Administration) Act 1999 (Administration Act) an applicant must qualify for a Social Security payment on the day on which the claim was made or within 13 weeks of that date (the “Assessment Period”).  For Mr Boer’s claim for DSP, the Assessment Period is from 24 May 2013 to 23 August 2013. 

7. In the statement of facts, issues and contentions the Secretary conceded that Mr Boer suffered from an impairment during the assessment period and satisfied s 94(1)(a) of the Act. However, the Secretary contended that Mr Boer’s mental health condition was not fully diagnosed, treated and stabilised during the assessment period and no impairment rating could be assigned. Similarly, in relation to evidence about alcohol use disorder, the Secretary contended that this condition was not fully treated and stabilised during the assessment period. Finally, the Secretary contended that there was insufficient evidence to assess whether conditions of gout, hypertension, hyperlipidaemia and vitamin D deficiency were fully treated and stabilised. In totality, the Secretary contended that Mr Boer did not have any fully diagnosed, treated and stabilised conditions and impairments arising from any of those conditions could not attract ratings under the Impairment Tables. Therefore it was argued that Mr Boer did not satisfy s 94 (1)(b) of the Act and was not eligible for DSP.

8. In Mr Boer’s statement of facts, issues and contentions it was asserted that he has a mental health impairment which was fully diagnosed, treated, stabilised and permanent during the assessment period. It was conceded that this is the only condition that attracts points under the Impairment Tables. It was asserted that Mr Boer had undertaken reasonable treatment during the assessment period and further reasonable treatment was unlikely to result in significant functional improvement to a level that would enable him to work or undertake training during the next two years from the date of the DSP claim. It was further contended that he had a severe impairment and was not required to participate actively in a program of support. Therefore, it was contended, that Mr Boer meets the requirements of s 94(1)(c) of the Act. Mr Boer stated that the decision of the SSAT was the correct and preferable decision.

   EVIDENCE

   Medical evidence

9. Dr Michael Nashed is Mr Boer’s general medical practitioner at Mount Gambier.  He provided two medical reports to Centrelink which were received in evidence as exhibits[1].  In the first report dated 23 May 2013 Dr Nashed wrote that Mr Boer had been his patient since 26 September 2011.  He recorded a diagnosis of severe anxiety disorder and the date of onset was 29 October 2012.  Psychiatric review was pending.  The current treatment was counselling, medical therapy, psychological therapy and future planned treatment depended on advice from a psychiatrist.  Current symptoms were severe anxiety with panic symptoms.  They had commenced shortly after amputation of Mr Boer’s right little toe.  The impact on his ability to function was significant in the performance of physical and mental activities that involved daily living activities. 

   [1] Exhibit 1, T8 and T10.

10. In the subsequent report dated 21 August 2013 Dr Nashed added that the diagnosis of severe anxiety disorder was now confirmed by further specialist opinion of a psychiatrist, Dr Bianca Djurdjevic.  Current treatment was noted as medical therapy, psychotherapy and supportive care and the symptoms were described as multiple, severe anxiety and panic attacks.  Dr Nashed reported that Mr Boer had very limited capacity to perform physical or mental activities with an uncertain effect on his ability to function over the next two years.  Dr Nashed wrote that Mr Boer “for over 12 months, responded poorly to treatment”.[2]  Dr Nashed also referred to other medical conditions including hepatitis, hypertension, hyperlipidaemia, chronic obstructive airway disease, gout and the right little toe amputation.  However he stated those were conditions that are generally well managed with minimal or limited impact.

    [2] Exhibit 1, T10, page 158.

11. A report by Dr Bianca Djurdjevic dated 12 June 2013 was received in evidence.[3]  Dr Djurdjevic was a psychiatric registrar with the Rural and Remote Mental Health Service of Country Health SA local health network.  She reported that Mr Boer did not have a previous psychiatric history prior to anxiety which he had experienced for the previous 12 months.  He had commenced seeing a psychologist, Mr Keith Smith, and at that stage had only attended two appointments.  He was currently prescribed various medications and he consumed excessive amounts of alcohol on some occasions.  Dr Djurdjevic wrote:

    “My impression was that of panic disorder with agoraphobia that appears to have developed in the context of recent surgery and difficult recovery thereafter with high amounts of pain.”[4]

    She recommended changes to medication and noted that Mr Boer may need “high end doses” for significant anxiety and panic disorder.  She noted that it was important for him to continue to see a psychologist for cognitive behaviour therapy which should be followed through in the long term rather than intermittently.  She reported that she encouraged Mr Boer to reduce alcohol intake or abstain altogether as alcohol may have a negative impact on his mental state particularly in relation to anxiety.

    [3] Exhibit 2.

    [4] Exhibit 2. Report of Dr Djurdevic dated 12 June 2013.

12. Mr Boer’s psychiatric treatment through the rural and remote mental health service continued over the next 12 months under the care and management of psychiatry registrar Dr Martin Downs.  Three reports from Dr Downs were received in evidence as exhibits.  In a report dated 9 December 2013, Dr Downs reported that Mr Boer continued to suffer from symptoms of anxiety.  In particular panic attacks were occurring at a frequency of about 2 to 3 per week.  Dr Downs recorded his impression as follows:-

    “Treatment resistant Generalised Anxiety Disorder with Panic Attacks and associated Alcohol Dependence with high suspicion that withdrawal is invariably exacerbating symptoms of anxiety.” [5]

    [5] Exhibit 3. Medical report dated 9 December 2013.

13. Dr Downs continued to monitor Mr Boer’s progress and medication management.  In a report dated 7 April 2014, Dr Downs recorded his concerns regarding Mr Boer’s alcohol dependence and the adverse effect it was having on his recovery from problems with anxiety.  Dr Downs thought that there was some motivation to change following a recent inpatient admission to Mount Gambier hospital which recorded that Mr Boer’s liver enzymes were “grossly deranged”. 

14. Following a further review Dr Downs wrote a report dated 18 August 2014 in which he noted psychiatric diagnoses of panic disorder with agoraphobia (June 2013), alcohol use disorder (September 2013) and generalised anxiety disorder (December 2013).  He recorded his impression about Mr Boer as:

    “… consistent with a diagnosis of Generalised Anxiety Disorder that is chronic and has partially responded to treatment.  His acute episodes in recent months have not been characteristic of explicit Panic Disorder, although this could also be conceptualised as partially treated.”

    Dr Downs noted that Mr Boer had consistently attended appointments through the Rural and Remote Mental Health Service and with a psychologist and his general medical practitioner.  He did not consider that Mr Boer was able to work at present. 

    “… However we would expect and hope that he will continue to improve over the next 2 years, he may not be in a position to return to work during this time.”

    Dr Downs considered it would be appropriate to obtain an independent opinion from a consultant psychiatrist and that, in any event, he would be referring Mr Boer to the Anxiety Disorders Association South East (ADADE) for assistance.  The medication regime would remain under review noting, however, that two trials of an antidepressant (anti-anxiety) medication had been implemented at a therapeutic dose.

15. Mr Boer received treatment from Mr Keith Smith who is a consultant clinical and forensic psychologist practicing in Mount Gambier.  Mr Smith wrote a report dated 23 May 2013.[6]  In that report he noted a diagnosis of panic disorder with agoraphobia (DSM 300.21).  He reported that he provided cognitive behavioural therapy and pharmacotherapy which commenced on 26 February 2013 noting that Mr Boer’s symptoms were panic, anxiety, uncontrolled fear of entering buildings and associating with others.  Mr Smith noted that the underlying causes and contributing factors were the previous hospitalisation and amputation of a toe.  Mr Smith expected that the impact of the mental health issues would have an impact on Mr Boer’s ability to function for more than 24 months and Mr Smith wrote – “despite intensive CBT we are not seeing any change at this time.”  He also recorded a diagnosis of “alcohol abuse (DSMIV 305.00)” which required future treatment of cognitive behaviour therapy, pharmacotherapy, drug and alcohol counselling.  The current symptoms were described as “self-medication with alcohol despite being prescribed appropriate medication and engaging in CBT.  Alcohol abuse puts him at risk of not functioning safely in a work environment” and it was noted that alcohol abuse is continuing.

    [6] Exhibit 1, T7.

16. A report from SA Health indicated that Mr Boer was admitted to the Flinders Medical Centre on 12 July 2013.[7]  According to the report Mr Boer was generally well with signs of chronic liver disease and also an acute kidney injury.  The report included a clinical synopsis outlining findings of “acute hepatitis, acute renal failure, anaemia, anxiety and hypokalemia”.  He was transferred back to the Mount Gambier Hospital for discharge planning and monitoring. 

    [7] Exhibit 1, T13, p 183.

17. The Secretary arranged for psychiatric review of Mr Boer by Dr Marty Ewer.  He wrote a report dated 17 November 2014,[8] following an interview on that day, which was received in evidence and he also gave oral evidence at the hearing.

    [8] Exhibit 6.

18. Dr Ewer is a psychiatrist and he has practiced since 1985.  His particular speciality is in occupational psychiatry and veteran’s mental health.  In his report he noted that Mr Boer told him he was admitted to the Flinders Medical Centre because of alcohol related liver disease in 2013.  Mr Boer told him he stopped drinking in May 2014 and has abstained from alcohol.  He said his main problems in November 2014 were anxiety and depression with difficulties in concentration.  Mr Boer told Dr Ewer that he had pain in his head, both hands and both feet, that approximately twice a month he has suicidal thoughts and generally cannot stop worrying and often feels overwhelmed. 

19. In his detailed report Dr Ewer explained his methodology of conducting psychiatric testing and assessing the results of investigation, noting in particular personality assessment testing and the use and interpretation of the classification system, the DSM-5, with its combination of strengths and shortcomings.  Dr Ewer wrote that Mr Boer presently suffers from a major depressive disorder, a generalised anxiety disorder and panic disorder.  These disorders existed during the assessment period together with an alcohol use disorder.  In relation to the nature and extent of the treatment for mental health conditions during the assessment period Dr Ewer wrote:-

    “In my opinion, Mr Boer’s mental health conditions had not been optimally treated by the end of the assessment period.  It would appear that he had had only 1 session with a psychiatric registrar and the nature of that session was primarily an assessment session rather than treatment session.  He then didn’t see another psychiatric registrar (a different one) until September 2013.  Therefore, he had minimal input from the psychiatric profession prior to the end of the assessment period.  He was still abusing alcohol during the assessment period yet he had not been prescribed Campral or Naltrexone.  He had not had intensive therapy to help him reduce his alcohol intake and hopefully abstain from alcohol.  He had not been prescribed other antidepressants which probably would have helped him.  He had not been prescribed other potentiating agents which would have helped his depression such as lithium.  It would appear he had not had rigorous cognitive behaviour therapy or been treated with mindfulness.  He probably did not have a behavioural desensitisation program during the assessment period.  All of these factors would have been reasonable treatments to optimally treat his conditions during the assessment period.” [9]

    [9] Exhibit 6.  Report of Dr Ewer, page 17.

20. In his report Dr Ewer acknowledged that depression and anxiety are serious, though treatable conditions.  Ideally the treatment should involve the establishment of a management plan.  The general treatment modalities which should form part of such a management plan include establishing a therapeutic relationship with the patient, liaising with the primary care provider and other mental health professionals, psychotherapy which may include cognitive behaviour therapy, interpersonal psychotherapy and other forms of therapy, together with antidepressants prescribed in accordance with the patient’s progress under the management plan.

21. In evidence to the Tribunal, Dr Ewer confirmed that the treatment which Mr Boer had received during the assessment period was a reasonable and appropriate commencement of the treatment that was going to be required.  It was a reasonable start though not a good place to finish.  In his view if a major depressive disorder had been diagnosed during the assessment period, then the treatment would have been different from the treatment that was actually pursued at that time.  He accepted that Mr Boer was complying with the treatment which was recommended for him.  Although he had noted in his examination of Mr Boer that there was a marked magnification of symptoms, he clarified in evidence that the magnification did not arise out of deliberate misrepresentation.  In his evidence Dr Ewer acknowledged that at the time of the DSP claim, or at least early on in Mr Boer’s treatment, it would have been ideal for him to see a psychiatrist fortnightly.  It would also have been ideal to receive additional help for an apparent problem with alcohol, as excessive alcohol intake can worsen depression.  He acknowledged that because Mr Boer’s treatment was based in Mount Gambier, he might have had difficulty accessing a psychiatrist for face to face consultation on a fortnightly basis.  Ideally, access to a psychiatrist through videoconference link would be useful.  He stated that cognitive behaviour therapy helps with anxiety disorders and there is considerable evidence to confirm its efficacy.  In the end, he reiterated his view which he had expressed in his report, namely, that “various psychiatric problems were not fully treated and his condition was not stabilised during the assessment period.”[10]

    [10] Exhibit 6, p 21.

    Evidence of Mr Boer

22. Mr Boer gave evidence to the Tribunal by video link from Mount Gambier.  His evidence was consistent and credible.  He described a multi-faceted deterioration in his mental health condition following an operation to amputate a toe in August 2012.  Following that operation he said that he lost all confidence, frequently shaking and vomiting.  He said that he became “just one big mess”.  This decline happened within days or weeks of the operation and he cannot point to a particular trigger for the problem.  However, he can date it by reference to the toe amputation.  He consulted his general medical practitioner Dr Nashed, who prescribed medication and arranged referrals for psychiatric assistance from the Rural and Remote Mental Health Service.  Dr Nashed also referred him to a psychologist Mr Smith whom he consulted on several occasions.  Psychology treatment included cognitive behaviour therapy.  Although he tried as best he could, the treatment itself had only minor positive effects.

1. Mr Boer gave evidence about his daily life, social activities and work capacity.  At home he has continued to do some of the household chores such as vacuuming, cleaning, washing and some maintenance work outdoors.  However he has difficulty concentrating, particularly with manual outdoor tasks and he becomes short tempered, starts shaking and has to walk away and rest.  When he goes shopping he sometimes has panic attacks and has to return home without completing the shopping.  His social life has all but disappeared.  He and his partner have a couple of good friends, but even with them there are times when he starts to panic and wants to leave, or if they are at his place he wants them to leave.  He no longer participates in structured social events. 

2. Mr Boer has made some enquiries about going back to work.  However, prospective employers or contractors indicate that he would be unreliable because of his inability to concentrate and focus during a working day.  By trade, he is a painter and he had worked consistently over several decades until the toe operation in August 2012.  Everything changed for him following that operation.  He came to a realisation that his alcohol use was excessive.  Medical advice confirmed for him that he should decrease his alcohol use or cut it out completely.  For several months he abstained and recently he resumed occasional, minor use of alcohol.  He has intermittent thoughts of self-harming.  His self-esteem is low – “I’m no good to anyone”.  His life has fallen apart and he said that he thinks, at times, that he is going insane.

3. Mr Boer’s evidence received cogent support from his partner Ms M Bowd.  She gave evidence by video link from Mount Gambier.  Her evidence was consistent and reliable.  By occupation she is a Carer.  When she is not working, she is devoted to caring for Mr Boer.  She assists him as best she can with keeping medical appointments, monitoring his medication regime and trying to keep his spirits maintained.  Following the operation on his toe she noticed significant changes in him through mood swings, lack of confidence, and lack of patience.  She said that Mr Boer lost his self-esteem, became withdrawn and when he is anxious he becomes taut, he shakes and occasionally vomits.  She confirmed that they have reduced their social life to associating with a couple of close friends, because of his anxiety.  Previously they had quite an active social life which involved visiting friends, going to the beach and going to the movies.  With his loss of self-esteem, short attention span and loss of patience, their social life has been restricted.  Mr Boer is “not himself any more.”

   The Impairment Tables

4. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

5. Table 5 of the Impairment Tables relates to mental health function.  The introduction to Table 5 states that it is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition and that includes recurrent episodes of mental health impairment.  The introduction to Table 5 also acknowledges that the signs and symptoms of mental health impairment may vary over time and that for mental health conditions that are episodic, the rating that best reflects the person’s overall functional ability is appropriate and needs to take into account the severity, duration and frequency of the episodes or fluctuations.  Table 6 of the Impairment Tables is used where a person has a permanent condition resulting in functional impairment through excessive use of alcohol, drugs or other harmful substances.

6. Section 6(5) of the rules for applying the Impairment Tables specifies that a decision whether or not a condition is fully diagnosed and fully treated by an appropriately qualified medical practitioner requires consideration of the corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years. 

7. Under s 6(6) of the rules for applying the Impairment Tables “fully stabilised” means:

   “(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

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

   (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.”

8. In Fanning and Secretary, Department of Social Services 2014 AATA 447 Deputy President Handley stated at [33]:

   The language in cl 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the tribunal is whether “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”. While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision.

9. Section 6(7) of the rules for applying the Impairment Tables sets out the requirements for “reasonable treatment” as treatment that :

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

   (b)  is at a reasonable cost; and

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

   (d)  is regularly undertaken or performed; and

   (e)  has a high success rate; and

   (f)    carries a low risk to the person.

   CONSIDERATION

10. The critical point in issue is whether Mr Boer’s mental health condition was fully diagnosed, treated and stabilised at the date of the DSP claim and during the assessment period.  If it was not fully diagnosed, treated and stabilised, it follows that no points can be assigned under Table 5 for the mental health condition.

11. The Introduction to Impairment Table 5 specifies that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

12. Having regard to the reports from the psychiatrist, Dr Djurdjevic, the reports from the general medical practitioner, Dr Nashed, and the report from the psychologist, Mr Smith, the Tribunal considers that Mr Boer suffered from a mental health condition that was, for the purposes and in the context of the Rules for applying the Impairment Tables, fully diagnosed.  Prior to the assessment period, the evidence is clear that Mr Boer’s mental health had deteriorated severely over several months.  During the assessment period, he had been examined by a general medical practitioner, by a psychiatrist and by a psychologist.  Treatment had commenced.  Whatever the nuances of the diagnosis at that time and in the months subsequent to the assessment period, the Psychiatry Registrar, Dr Djurdjevic noted in review of Mr Boer during the assessment period, that he was reporting panic attacks, significant agoraphobia, suicidal thoughts, significant anxiety and overuse of alcohol.  He was receiving medication.  Dr Djurdjevic made recommendations regarding his ongoing management to treat the condition of panic disorder and agoraphobia.

13. The management of Mr Boer’s psychiatric symptoms continued through care provided by Dr Downs from the Rural and Remote Mental Health Service.  Dr Downs’ assessments, reviews and recommendations for treatment continued from the initial assessment and findings of Dr Djurdjevic.  Rather than stating a “diagnosis” in his reports, Dr Downs referred to his “impression” about Mr Boer’s presentation.  This was a continuum starting with an assessment by Dr Djurdjevic and continuing with assessments by Dr Downs regarding anxiety disorder, panic attacks, and alcohol dependence.

14. In Mr Boer’s statement of facts, issues and contentions it was asserted that during the assessment period Mr Boer undertook reasonable treatment that was reasonably accessible and available to him in Mount Gambier.  It was suggested that fortnightly psychiatric treatment is not available or accessible in Mount Gambier at a reasonable cost.  It was further contended that Mr Boer was treated by a general medical practitioner, a clinical psychologist and a psychiatric registrar during the assessment period, that these health professionals consulted with each other and provided treatment that was reasonable, though not necessarily optimal.  However, it is clear from the medical evidence that psychiatric treatment had only commenced in the assessment period and was still in its early stages.  As Dr Ewer observed, the treatment of depression and anxiety should include the establishment of a management plan.  It seems clear that this is precisely the course which the Rural and Remote Mental Health Service was embarking upon and implementing.  It started in June 2013, during the assessment period, and continued with “management recommendations” as evidenced by Dr Downs’ recommendations in his reports.  By the time of Dr Downs last report (18 August 2014) which was almost 12 months after the assessment period, he made recommendations for continuing psychiatric intervention, psychotherapy, review of medication and exploring options of psychosocial rehabilitation.

15. In a Job Capacity Assessment (JSA) report dated 1 August 2013[11] it was noted that Mr Boer was awaiting a referral for psychiatric treatment.  In a subsequent JSA report dated 20 September 2013[12] it was again noted that Mr Boer had recently commenced psychiatric treatment.  In both reports it was considered that Mr Boer’s condition was not fully diagnosed, treated and stabilised.

    [11] Exhibit R1, T6 page 111.

    [12] Exhibit R1, T6 page 119.

16. The Tribunal finds that Mr Boer’s mental health condition was fully diagnosed during the assessment period.  The Secretary contended that Mr Boer’s mental health condition was not fully treated and not fully stabilised during the assessment period.  Dr Ewer wrote in his report that Mr Boer’s “various psychiatric problems were not fully treated and his condition was not stabilised during the assessment period.”[13]  As discussed, the medical evidence is clear that Mr Boer’s mental health condition was not fully treated and fully stabilised during the assessment period.  The treatment which was commenced during the assessment period does not come within the ambit of s 6(7) of the rules for applying the Impairment Tables.  The mental health condition was not “fully stabilised” for the purpose of s 6(6) of the rules for applying the Impairment Tables.  In those circumstances a rating from the Impairment Tables cannot be given in relation to the mental health problems.

    [13] Exhibit 6, page 21.

17. While it was contended for Mr Boer that he had a mental health impairment that was fully diagnosed, treated and stabilised, it was also conceded for him that there was no other condition that could attract points under the Impairment Tables.  That concession was correct and related to evidence about alcohol use disorder, and also in relation to gout, hypertension, hyperlipidaemia and vitamin D deficiency.

    SUMMARY

18. During the assessment period, Mr Boer suffered from an impairment as a result of his mental health condition. He met the requirements of s 94(1)(a) of the Act.

19. Mr Boer’s mental health condition was fully diagnosed during the assessment period.  However his mental health condition was not fully treated and not fully stabilised in the assessment period.  Accordingly an impairment rating under the Impairment Tables cannot be given for any impairment from the mental health condition.

20. Mr Boer does not have an impairment that attracted 20 or more points under the Impairment Tables at the time he lodged his claim or within 13 weeks of that date. Accordingly he did not satisfy s 94(1)(b) of the Act and cannot qualify for the DSP during that period. It follows that it is not necessary for the Tribunal to consider whether he had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    DECISION

21. The decision under review is set aside. In substitution, it is found that Mr Boer does not qualify for the DSP.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.................[Sgd]...................................................

Administrative Assistant

Dated 11 September 2015

Date(s) of hearing	9 July 2015
Advocate for the Applicant	Ms C Shepherd
Solicitors for the Applicant	Australian Government Solicitor
Advocate for the Respondent	Ms S Clark
Solicitors for the Respondent	South East Community Legal Service