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

Bontes and Secretary, Department of Social Services (Social services second review) [2020] AATA 1910 (16 June 2020)
Division:GENERAL DIVISION
File Number:2019/3002
Re:Sarah Bontes
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:16 June 2020
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 26 April 2019 is affirmed.
................................[SGD]................................
Member S Barton
CATCHWORDS
DISABILITY SUPPORT PENSION – DSP – fully diagnosed –fully stabilised – fully treated – reasonable treatment – applicant does not meet impairment rating requirement – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(3E), 94C
Social Security (Administration) Act 1999 (Cth) – ss 41, 179
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Bontes and Secretary, Department of Social Services [2019] AATA 461
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 paras – 5, 6(5), 6(6), 6(7), 10, 10(3)
The Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member S Barton
16 June 2020
THE APPLICATION

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 26 April 2019 (Reviewable decision) affirming a decision made by an Authorised Review Officer of the Department of Human Services (the Department), rejecting the Applicant’s claim for disability support pension (DSP) lodged on 28 March 2018.
FACTS
Miss Sarah Bontes (the Applicant) is 21 year of age. She currently lives at home with her mother, who is her full time carer. The Applicant presents with a complex range of medical conditions.
On 28 March 2018, the Applicant lodged a claim for the DSP, citing her various medical conditions. On 20 June 2018, the Department determined that the Applicant was not qualified for the DSP.
This decision was reviewed by an Authorised Review Officer (ARO) from the Department of Human Services and was affirmed on 15 October 2018.
On 20 December 2018, the Applicant sought a review of the decision by AAT1 which affirmed the decision of the ARO on 26 April 2019. On 30 May 2019, the Applicant applied for a second review by the Tribunal.
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Therefore, the Tribunal is satisfied that it has the jurisdiction to hear this application.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 16 March 2020. The Applicant was represented by her mother, Ms K Leggett.
The Tribunal was informed that the Applicant suffers from a form of selective mutism, among other conditions, that would prevent her from attending the hearing in person or via telephone. In accordance with s 32(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal allowed her to be represented by her mother. This is also consistent with the approach taken in the Applicant’s previous matter before the Tribunal in Bontes and Secretary, Department of Social Services [2019] AATA 461.
The Ms Leggett gave oral evidence.
The Respondent was represented by Mr A Burgess.
The Administrative Appeals Tribunal (Tribunal) admitted the following documents into evidence at the hearing:
(a)Statement signed by Ms K (Bontes) Leggett, dated 3 October 2007 (Exhibit A1);
(b)Centrelink Social Work Report, dated 17 October 2007 (Exhibit A2);
(c)Centrelink online document, dated 17 October 2007 (Exhibit A3);
(d)Sir Charles Gardiner Hospital discharge summary sheet, dated 16 August 2019 (Exhibit A4);
(e)Letter from Dr Edmund Lee, dated 24 October 2019 (Exhibit A5);
(f)Letter from Dr Andrew Stewart, dated 21 November 2019 (Exhibit A6);
(g)Centrelink Medical certificate, dated 13 November 2019 (Exhibit A7);
(h)Letter from Natalie Nahav, dated 5 November 2019 (Exhibit A8);
(i)Letter from Dr Dru Daniels, dated 9 October 2019 (Exhibit A9);
(j)Sir Charles Gardiner Hospital emergency medical summary,
dated 3 September 2019 (Exhibit A10);
(k)Letter from Dr Gothami Madadeniya, dated 2 July 2019 (Exhibit A11);
(l)Miscellaneous accounts and bank statements, received on 30 October 2019 (Exhibit A12);
(m)Letter from Centrelink dated 9 October 2019 (Exhibit A13);
(n)Centrelink customer record print out, dated 11 July 2019 (Exhibit A14);
(o)Respondent’s Statement of Facts, Issues and Contentions including Secretaries list of Authorities and Annexure A, dated 22 January 2020 (Exhibit R1); and
(p)section 37 documents (T documents) numbered T1 to T32, comprising 293 pages, dated 20 May 2019 (Exhibit R2).
ISSUES
The issues before the Tribunal are whether, during the period 28 March 2018 to

27 June 2018, the Applicant had:
(a)a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act);
(b)an impairment rating of at least 20 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables); and
(c)a continuing inability to work for the purposes of s 94(1)(c) of the Act.
QUALIFYING PERIOD FOR THE DSP
The Administration Act states at s 41 that ‘…a social security payment becomes payable to a person on the person’s start day in relation to the social security payment’. The start date is determined by Schedule 2 of the Administration Act, which provides a general rule for a start day as the day on which a claim is made. However, clause 4, states:
(1) If:
(a)   a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)   the person is not, on the day on which the claim is made, qualified for the payment; and
(c)   assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)   the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
The effect of this provision is to create a 13 week qualification (qualification period) period for the application. This window of time, and its subsequent effect, was described by
Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [253]:
It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, ...and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time…
This judgement has been cited by Senior Member Isenberg (Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 [8]) and by Deputy President Handley (Fanning and Secretary, Department of Social Services [2014] AATA 447 [31]) when they considered applications for the DSP.
The effect of clause 4, as supported by previous decisions, is to restrict consideration of the Applicant’s claim to the 13 week time period after the claim was made and to consider evidence only in so far as it relates to the Applicant’s condition during that period.

The practical outcome of this is captured by Member Breen’s observation in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.
The Tribunal, therefore, restricts its examination of the claim made by the Applicant to the period from 28 March 2018 and the following 13 weeks until 27 June 2018.
QUALIFICATION CRITERIA FOR DSP
The qualification requirements for the DSP are set out in s 94 of the Act:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system..
These qualifications are conjunctive, they are linked not by ‘or’ but ‘and’, so a successful applicant for the DSP must meet each requirement. If one of these requirements is not met, the application will be unsuccessful.
Section 26(1) of the Act allows the Minister, by legislative instrument, to determine the Impairment Tables referred to in s 94(1)(b) and the rules for applying them.

The Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) provides those Tables and the rules for their use.
The purpose and general design principles of the Impairment Tables are set out in Paragraph 5. The tables are to be based on functioning rather than based on a diagnosis, describing the functional activities, symptoms and limitations and assigning ratings to determine the level of functional impact of the impairment.
Paragraph 6(1) of the Determination states that ‘[t]he impairment of the person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do’ [emphasis added]. An impairment rating can only be assigned if the condition is permanent, which is, for the purposes of the Tables, if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated and stabilised; and it is more likely than not, in light of available evidence, to persist for more than two years.
Paragraph 6(5) of the Determination states that when determining ‘whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated’ consideration must be given to the following:
(a)whether there is corroborating evidence of the condition;
(b)what treatment and rehabilitation has occurred; and
(c)whether treatment is continuing or is planned in the next two years.
Paragraph 6(6) states that a condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement enabling a person to undertake work in the next two years.
A condition is also deemed to be full stabilised if the person has not undertaken reasonable treatment for the condition and significant functional improvement enabling work is not expected in the next two years, even if the person undertook reasonable treatment.

Or, if there is was a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment, defined in Paragraph 6(7), is treatment that:
(a)is available at a reasonably accessible location;
(b)is at a reasonable cost;
(c)can reliably be expected to result in substantial improvement in functional capacity;
(d)regularly undertaken or performed;
(e)high success rate; and
(f)carries a low risk to the person.
BACKGROUND
According to the Applicant and her mother, the Applicant witnessed domestic violence as a young child, as her father was physically and emotionally abusive to the Applicant’s mother (Exhibit A1, p 1-2 and Exhibit R2, p 221). The Applicant subsequently presented with anxiety and selective mutism. Due to her anxiety and selective mutism, the Applicant was home schooled from Year 3.
In 2011, the Applicant commenced seeing a clinical psychologist, Ms Jacqueline Landre, for the management of her selective mutism, anxiety disorder and adjustment reaction (Exhibit R2, p 43). The Applicant was referred to Ms Landre on an ongoing basis from 2011 to 2016 and, in a psychological report dated 2 November 2016, gave the opinion that the Applicant’s extreme anxiety and mutism was due to Post Traumatic Stress Disorder (PTSD) (Exhibit R2, p 76).
As a teenager, the Applicant complained of chronic fatigue and generalised pain.
On 27 February 2014, a paediatric rheumatologist Dr Senq-J Lee, concluded her symptoms were consistent with a diagnosis of chronic widespread pain syndrome and that she had moderate benign joint hypermobility (Exhibit R2, p 52).
In July 2014, the Applicant was admitted to Princess Margaret Hospital for rehabilitation associated with her chronic widespread pain syndrome, benign joint hypermobility, poor sleep hygiene and her psychosocial issues. However, due to her anxiety issues, she made the decision with her mother to discharge (Exhibit R2, p 59).
In late 2016, she was examined successively by rheumatologist and a cardiologist who thought it was possible she had postural orthostatic tachycardia syndrome (POTS)
(Exhibit R2, p 85-88). On 14 February 2017, the Applicant was examined by a cardiologist, Dr Edmund Lee, who diagnosed her with POTS (Exhibit R2, p 103).
The Applicant’s mother, who gave up work to care for the Applicant, attended all of the medical appointments with her daughter due to her mutism and her anxiety.
The Applicant previously sought a review of an earlier application for DSP on 7 November 2016. This application listed the following conditions, ‘chronic widespread pain syndrome, EDS – Benign joint hypermobility, Selective mutism, Severe anxiety, and Supraventricular tachycardia (Bontes and Secretary, Department of Social Services [2019] AATA 461 at [6]). The claim was rejected by the Department on 13 January 2017, a decision that was set aside by AAT1 on 25 Jul 2017 and sent back to the Department for reconsideration with the direction that the Applicant satisfied s 94(1) (a) (b) (c) of the Act. This decision was appealed and, on 20 March 2019, the Tribunal set aside the decision of AAT1 and found instead that she did not satisfy s 94(1)(b)of the Act and did not qualify for the DSP.
Through the above process, on 21 February 2017, the Applicant’s general practitioner,
Dr Andrew Stewart, provided a summary of the diagnosed clinical conditions experienced by the Applicant, which includes the following (Exhibit R2, p 106):
(a)Chronic anxiety disorder;
(b)Selective mutism;
(c)Chronic fatigue syndrome;
(d)Hypermobility syndrome (suspect Ehlers-Danlos syndrome);
(e)Sleep disorder; and
(f)POTS with suspected reflex tachycardia events.
On 7 April 2017, cardiologist Dr Edmund Lee, provided a further summary of the Applicant’s medical conditions, stating that (Exhibit R2, p 107),
This is to inform you that [the Applicant] has quite severe POTS. This condition is highly debilitating and despite optimal medical treatment, patients are often very disabled and continue to be disabled for many years/decades. There are not a lot of good treatments of POTS and certainly no significant randomised controlled trials showing any benefit for specific treatments. The treatment I have offered

[the Applicant]
is based predominantly on expert opinions and I suspect that

[the Applicant]
will be significantly disabled by this condition for a long time to come despite optimal management with physiotherapy, increased salt and water intake and medications.
On 18 April 2017, clinical psychologist Ms Natalie Lahav, reported that the Applicant continued to meet the criteria for selective mutism and generalised anxiety disorder and that her functional impairment was chronic and was of moderate to severe intensity (Exhibit R2, p 109).
The Applicant lodged another claim for the DSP on 28 March 2018, listing several physical and psychiatric conditions (Exhibit R2, p179), including:
(a)Hypermobility;
(b)Chronic fatigue;
(c)Postural orthostatic tachycardia syndrome (POTS)
(d)Anxiety;
(e)Selective mutism; and
(f)Chronic pain syndrome.
APPLICATION FOR DSP
For the Applicant’s application for the DSP, Ms Lahav and Dr Lee provided additional information to Centrelink.
In a four page letter dated 27 February 2018, Ms Lahav wrote that,
[The Applicant] presents with complex difficulties, which include a close relationship between chronic and disabling mental and physical health disorders…
(Exhibit R 2, p 150)
…[The Applicant] meets the criteria for what is known as complex and developmental posttraumatic stress disorder (complex PTSD)…
(Exhibit R 2, p 151)
Ms Lahav provided a formal diagnosis, by reference to Classification of Mental Disorder (DSM-5) of PTSD. Ms Lahav continues,
… Complex PTSD requires clinical input at different times, but overall is a condition that is managed rather than one that goes into remission. While progressive gains can be made across the adult lifespan, intervention must appropriately match patient needs and capacity at any given time.
It is reported [the Applicant] has had experience of both interventions that have helped and hindered her progress. There is also clear evidence that her mother has tried numerous options over the course of [the Applicant] life. It appears that establishing a long-term relationship with a psychologist, in whom she gained trust, has been useful. However, interventions, like those described to have taken place in an in-patient setting mid-adolescence, which are not described as having been trauma-informed, where [sic] not experienced as useful, and indeed, in their being a perceived lack of understanding of complex PTSD, may even have exacerbated [the Applicant’s] difficulties and acted to dissuade her from accessing professional care for her difficulties.
At present, [the Applicant] is reporting that for most of the last year, her contact with mental health professionals has been for purposes of [the] Centrelink process. Due to the rigour of assessment this requires, and necessity of information being readily shared with a number of parties, [the Applicant] reports understandably being “put off” psychological intervention for now.
(Exhibit R 2,p 152)
In his letter dated 21 March 2018, Dr Lee wrote that the Applicant has POTS and inappropriate sinus tachycardia, moreover that she ‘has undertaken all reasonable treatment for this condition and further treatment is unlikely to result in substantial improvement’ (Exhibit R2, p 154).
DOES THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Tribunal recognises that the Applicant suffers from some complex medical conditions and that, while a diagnosis will distinguish between that which is physical and that which is psychiatric, there will be relationship between conditions, even if only from the perspective of treatment. Nevertheless, in addressing the question of whether the Applicant has a physical or psychiatric impairment, it is necessary to address each in turn.
In addressing each of the physical and psychiatric impairments, it is necessary, for the purposes of the Tables in the Determination, to determine if a condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised and it is more likely than not, in light of available evidence, to persist for more than two years.
PSYCHIATRIC IMPAIRMENT

In the introduction to the Table 5- Mental Health Function in the Determination, it states that:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
In the Statement of Facts, Issues and Contentions, the Respondent has noted that diagnosis of the Applicant’s mental health has varied over time (Exhibit R1, p 12). At various points anxiety disorder, selective mutism and depression have been suggested.
The Respondent had previously sought an independent opinion from Dr Lawrence Terace, a consultant forensic psychiatrist, which was provided on 29 December 2017, nearly four months before the application currently under consideration.
Dr Terace, with regard to the medical evidence available to him and based on his session with the Applicant, said in his report (Exhibit R2, 137),
Therefore, with consideration to all available evidence, I can only offer a provisional and not definitive diagnosis, such that I do not consider [the Applicant] fully diagnosed…
Dr Terace identified four possible diagnoses: generalised anxiety disorder, PTSD, major depressive disorder and selective mutism.
Ms Lahav, a clinical psychologist, has provided a diagnosis of PTSD. Notwithstanding the reference to Dr Terace’s opinion, the Respondent accepts, based on Ms Lahav’s report, that the Applicant had psychiatric conditions that were fully diagnosed during the qualification period.
It is noted that PTSD is not in the conditions listed for the application for DSP.

The impairments that the Applicant listed in her application, anxiety and selective mutism, according to Ms Lahav’s assessment, relate to her complex PTSD.
The Tribunal accepts that during the qualification period of the DSP application the Application had a fully diagnosed psychiatric condition. Having accepted the condition was fully diagnosed, it is necessary to determine whether the condition was fully treated and fully stabilised during the qualification period, specifically what treatment and rehabilitation occurred and what treatment is planned or is continuing over the next two years.
The issue of the Applicant’s treatment for her condition is the most vexing aspect to this matter, given the complexity and nature of her conditions.
The Respondent contends that the Applicant’s conditions cannot be regarded as fully treated or fully stabilised as she has not undertaken reasonable treatment for the conditions (Exhibit R1, p 14). At this juncture, it is worth restating what constitutes reasonable treatment as defined in Paragraph 6(7) of the Determination. It is treatment that is:
(a)is available at a reasonably accessible location;
(b)is at a reasonable cost;
(c)can reliably be expected to result in substantial improvement in functional capacity;
(d)regularly undertaken or performed;
(e)high success rate; and
(f)carries a low risk to the person.
The Respondent’s contention relies, in part, on the report provided by Dr Terace, which states (Exhibit R1, p14),
[The Applicant] requires long-term assessment and treatment with a consultant psychiatrist of both a pharmacological and psychotherapeutic nature.
Moreover, Dr Terace reports (exhibit R1, p14),
…significant improvement should occur in some or many domains of her alleged psychiatric disorders with such treatment despite the chronicity of the condition.
The Respondent contends that the Applicant has not attended regular psychological counselling, nor long term therapy, as recommended in the report by Dr Terace, during the qualification period (Exhibit R1, p14). The Respondent points out that, after the Applicant’s last consultation with Ms Lahav on 27 February 2018, she did not attend another consultation with her until 5 November 2019 (Exhibit R1, p 14).
The Tribunal notes in a letter dated 5 November 2019 to the Applicant’s General Practitioner, Ms Lahav advised (Exhibit A8, p1):
I last meet with [the Applicant] at the beginning of 2018 and completed an assessment today regarding her current psychological intervention needs…
The assessment occurred in the context of previous diagnoses of complex or developmental PTSD and selective mutism…. [The Applicant’s] presentation continues to be consistent with these diagnoses…She subjectively described both annoyance and frustration with the current process of DSP application, saying ‘I’m over it’, and extended this to say that she has now wish to engage in a psychological or counselling process at present because of the stress this process has caused her, as it has been an intrusive experience.
In this light no further intervention or contact is planned with [the Applicant] at this stage.
The Respondent submits that the Applicant has not engaged in any treatment with a psychiatrist. The Respondent points to correspondence from Dr Gothami Madadenyia, a consultant psychiatrist, who saw the Applicant once in 2018 and once in 2019.

Dr Madadenyia stated that (Exhibit R1, p 15 & Exhibit A11, p1),
It appears that both [the Applicant] and [Ms Leggett] are not in favour of taking any medications. Whilst CBT [presumably cognitive behavioural therapy] has been suggested to them by past clinicians [the Applicant] has not seen a psychologist for at least one year.
Depending on whether she has current symptoms of an enduring illness she will need to engage in some treatment modality if she wishes to improve. The decision is best taken by clinicians who have assessed and treated her.
The Respondent also drew the Tribunal’s attention to oral evidence given by the Applicant’s mother before AAT1 (Exhibit R1, p15),
In the last two years, her daughter has been resistant to seeing anyone for care. [The Applicant] was not currently on medication and was not receiving any psychological or psychiatric treatment. [The Applicant] did see her general practitioner every month to address her other medical conditions. [The Applicant] has been under a GP mental health treatment plan in the past, but was not currently under a GP mental health care treatment plan.
The Respondent has also noted that while some medications are not open to the Applicant due to her other conditions, there is no evidence that the Applicant has undertaken a trial of any other anti-depressants or anti-anxiety medications (Exhibit R1, p15).
Applicant has stated that (Exhibit R2, p 222),
I am an extremely mentally unstable person, and all I’ve ever been told is that there’s basically nothing that will help me. I’ve been told by many people that my depression is situational and medication wouldn’t change the fact that I have to live in constant pain. My GP refuses to give me medication because of the serious side effects. I am the way I am because of severe undoable childhood trauma, and incurable genetic disorders.
Understandably, in light of her circumstances, the Applicant has an exceedingly bleak view of her circumstances. There is, she says, ‘nothing that will help me.’ It is reasonable to conclude, therefore, that for her perspective, there is no reasonable treatment available which will result in significant functional improvement over the next two years.
During the hearing, the Applicant’s mother addressed the issue of treatment, including the options of medication. She made the following comments:
Main reason why medication is not recommended for [the Applicant]- two reasons. First of all, POTS is extremely reactive with some of the medications that she could take. In particular, beta blockers are highly reactive with POTS patients. A lot of the antidepressants are also highly reactive with POTS. I can actually testify to that because I have POTS as well and I have a massive reaction on Endep, so these sorts of drugs are not recommended, and they have to be treated very carefully.
But the main reason why medication is not recommended for [the Applicant] is that her diagnosis of posttraumatic stress disorder is not one that’s readily treated by medication. I have been explained in great depth over the years by all of the different people that have treated her that because the trauma took place at such a young age, around the age of two in- specifically when her brain was developing, that her brain developed in such a way that she has become hypersensitive, over reactive. [the Applicant] has a whole range of problems…
[the Applicant] is not going to speak to a psychiatrist. A psychiatrist is not going to be able to make her speak, just like Natalie Lahav can’t make her speak. There’s nothing that a psychiatrist can do to make her speak, and that is a big part of the problem and it always has been in regard to her treatment, and that’s why treatment is so slow, it’s why it’s so difficult.
I really want to make that very clear, very clear. Even if I took [the Applicant] to a psychiatrist, she wouldn’t speak to them. She couldn’t speak to them...
…Now, all of the recommendations from all of the doctors that I have seen has been that no medication can fix it. Antidepressants are not going to solve the problem that she has an irreversible and untreatable brain developmental posttraumatic stress disorder. They’re not going to solve the problem, which is why they have not been recommended.
It may be inferred from the Applicant’s mother’s submissions that the treatment recommended will not result in any significant functional improvement to a level enabling her daughter to undertake work in the next two years. Such is the severity of her daughter’s condition, her mother contends, it is ‘irreversible’ and ‘untreatable’, therefore it cannot be reliably expected to result in a substantial improvement in capacity even with reasonable treatment.
Notwithstanding the severe and complex nature of the Applicant’s conditions, Ms Lahav, in her diagnosis of 27 February 2018, concluded (Exhibit R2, p 153):
The Applicant can be expected to make slow and steady gains in managing her difficulties, but, as described, her difficulties are both chronic and they won’t go into full remission.
In evidence given in Bontes at [47], Dr Terace stated that:
If you look at post-traumatic stress disorders, then probably half will recover within two years but up to a third have a more chronic course, but even then post-traumatic stress disorders do improve with specific treatments which are cognitive behavioural therapy, exposure based therapy and courses of medication including anti-depressants but not all.
The Tribunal notes that there is a consensus that the Applicant’s condition is severe, however, what is clear in the observations made by Ms Lahav and Dr Terace above, is that it is not untreatable and treatment options are available.
While full remission is unlikely, some measure of management and stabilisation may occur, but for it to do so, the treatment options would need to be pursued. Therefore, with due regard to the medical evidence presented, it is not open to the Tribunal to conclude that, while the Applicant has not undertaken reasonable treatment for the condition, significant functional improvement enabling work is not expected in the next two years, even if the Applicant undertook reasonable treatment.
As the Respondent notes, Dr Terace recommended that a consultant psychiatrist oversee the Applicant’s treatment (Exhibit R1, p 16):
… there are so many issues which are yet unclarified and so many risks given her physical disorders that she needs an architect and the architect for her care should be a consultant psychiatrist to liaise with the other disciplines. The various medical specialists and clinical psychologists.
There is no evidence before the Tribunal that treatment proposed is not reasonable. However, the Applicant’s mother has raised concerns during the hearing regarding her capacity to pay for the treatment, a point echoed by Ms Lahav in her correspondence of 5 November 2011. The Tribunal accepts that the Applicant and her mother have limited means, however there is no evidence before the Tribunal to suggest that her daughter would be denied the appropriate clinical services by the public health system.
The Tribunal cannot find the Applicant’s psychiatric condition permanent for the purposes of the Act, because it was not fully treated and full stabilised during the qualification period, as such the Applicant’s impairment cannot be assessed against the Impairment Tables.
PHYSICAL IMPAIRMENT
In her application for the DSP, the Applicant identified four physical conditions; hypermobility, chronic fatigue, chronic pain syndrome and POTS. The Tribunal accepts that the Applicant’s POTS was fully diagnosed during the qualification period, however, with respect to the other conditions there is insufficient clinical evidence before the Tribunal to be satisfied they are fully diagnosed, treated and stabilised and able to assign a rating under the Impairment Tables.
The Respondent has accepted that the POTS condition is fully diagnosed, but contends that it is not fully treated or stabilised.
The Respondent has pointed to correspondence from the Applicant’s general practitioner, during the qualification period, that does not record any active management for the condition (Exhibit R1, p 20).
In a previous report dated 7 April 2017, Dr Lee stated that the Applicant had started physiotherapy and taking Coralan and Fludrocortisone. During the hearing, the Applicant’s mother stated,
She was on Coralan for at least six months… She found it totally ineffective as a drug and it didn’t seem to help her, and with Dr Lee’s permission she stopped taking it.
After the episode last year, the severe one, he put her – he suggested putting her back on the Coralan at the highest dose… but after – after a while she started having some very strange side effects… she started having flashing in her eyes.
These reported side effects relating to Coralan occurred after the qualification period and with a heavier dose.
According to the Applicant’s mother, the Applicant ceased taking Fludrocortisone after her face started puffing up and ‘she was told it was probably not going to be effective anyway.’
During the hearing, the Applicant’s mother stated:
More recently, last year [2019], she saw a physiotherapist from DR7 under the health plan, because [the Applicant] felt that walking was exercising her legs, but she was still very, very weak in the arms, and so she’s been having some specialised strengthening exercises… mostly to do at home though…
[The Applicant] is extremely proactive in terms of trying to maximise her health. She walks three times a week at least. We try and walk around the shops where it’s air-conditioned.
During the qualification period, the Applicant was not taking any medication for her POTS condition and there is no evidence that she had taken up the various physiotherapy and exercise recommendation during that period. She has only done so more recently.
Based on the evidence available, the Tribunal cannot be satisfied that the Applicant’s POTS condition was fully treated or stabilised during the qualification period.
The qualification requirements for the DSP, set out in s 94 of the Act, are conjunctive.

For a DSP application to be successful, an applicant must meet each requirement.

The Applicant in this matter has both physical and psychiatric conditions that have been fully diagnosed. However, during the period under consideration, the Tribunal is not satisfied that they were full treated and fully stabilised. The Tribunal is, therefore, unable to assign impairment points under the Impairment Tables, as a result, the Applicant does not satisfy s 94(1)(b) of the Act and does not meet the requirements necessary to receive the DSP.
The Tribunal did not proceed to consider if she satisfied s 94(1) (c) of the Act.
In the Applicant’s previous hearing with the Tribunal, when asked a question by

Member Edwardes (Bontes and Secretary, Department of Social Services [2019] AATA 461 at [46]), Dr Terace stated,
I think that the medical practitioners in this case and the psychologists in this case have done the very best they can under very difficult circumstance and I absolutely have great respect for their efforts
Dr Terace’s point is well made and it is important to note that the fact that the Applicant’s conditions have not been fully treated and fully stabilised should not be read as a criticism of their efforts. Nor should it reflect poorly on the Applicant’s mother who has made considerable sacrifices and efforts to improve the well-being of her daughter. That the conditions have not been fully treated is largely the result of the complexity and interplay between the Applicant’s conditions. It is clear that treatment options remain that may manage and ameliorate her conditions.
CONCLUSION
The Reviewable Decision, being the decision of the AAT1 dated 26 April 2019 is affirmed.

I certify that the preceding 85 (eighty five) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

..................................[SGD]..................................
Associate
Dated: 16 June 2020

Date of hearing:

16 March 2020

Applicant:

Representative for the Respondent:

Represented by Ms K Leggett

Mr A Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2020] AATA 1910

16 June 2020

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