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

BPPB and Secretary, Department of Social Services (Social services second review) [2018] AATA 1504 (1 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4685
Re:BPPB
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:01 June 2018
Place:Perth

The Tribunal affirms the decision under review.
....(Sgd)....................................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – mental health – – impairment tables – did applicant have 10 impairment points – continuing inability to work rating – participation in program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 94 – ss 94(1) – ss 94(2) - ss 94(3B) – ss 94(3C)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011- ss 6(1) – ss 6(2) – ss 6(3) – ss 6(4) – ss 6(5) – ss 6(6) – ss 6(7) – ss 8(1) - s 7 to 11 – ss 11(1)
Social Security (Active Participation for Disability Support Pension) Determination 2014 – ss 7(1) – ss 7(2)
Social Security Administration Act 1999 (Cth) – s 179 – Sch 2 Cl 4 (1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AAT 399
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
01 June 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 3 August 2017. This decision affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 16 November 2016 (T2 5-6) (R1).
INTRODUCTION
On 16 November 2016, the Applicant lodged a claim for Disability Support Pension involving conditions of anxiety, complex PTSD and major depressive order (T28 140-171) (R1).
The Applicant has lodged this claim for review on the basis that her application to AAT1 failed because the Applicant’s conditions only generated 10 points under the Impairment Tables (T2 11) (R1).
The claim was rejected by an officer of the Centrelink and the Applicant was advised of this rejection by letter dated 6 January 2017. The reason for rejection of the application was on the basis that the Applicant had failed to attain an impairment rating of 20 points or more. (T31 178) (R1).
The Applicant sought a review and this was conducted by an Authorised Review Officer (ARO) who on 27 March 2017 determined the following (T38 193-201) (R1):
·The Applicant had a Mental Health condition.
·The Applicant’s condition could not be accepted as fully diagnosed, treated and stabilised (FDTS) at the time of the claim.
·The Applicant therefore did not have an impairment rating of 20 points or more.
·The Applicant did not have a continuing inability to work (CITW) 15 hours per week or more.
·The Applicant had not participated in a program of support (POS).
As a result of the decision of the ARO, the Applicant lodged an application with AAT1.
In a decision dated 3 August 2017, the AAT1 determined that the Applicant had generated an impairment rating of 10 points under Table 5 of the Impairment Tables (T2 5-17). (R1)
On 8 August 2017 the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 decision dated 3 August 2017 (T1, 1-4) (R1).
The Application for review stated (T1 4) (R1):
I believe the decision regarding impairment of 10 points is incorrect and that I meet the requirements of 20 points impairment which would qualify me for DSP. A review into my impairments and the impact my illness has on my abilities needs further explanation. All other areas and evidence as affirmed by the member in my hearing qualify me for DSP.
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth).
The matter was heard in Perth on 30 April 2018, the Applicant was represented in person and the Respondent by Ms Jones-Bolla of Sparke Helmore Lawyers.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 94 of the Act provides the criteria for DSP, relevantly:
(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) person has a continuing inability to work;
(ii) …
Accordingly, for a person to be qualified for DSP, the person must have criteria including:
·a physical, intellectual or psychiatric impairment; and
·impairments must be assigned a rating of 20 or more points under Impairment Tables; and
·the person must have a continuing inability to work.
ASSESSING IMPAIRMENTS AND ASSIGNING AN IMPAIRMENT RATING
The Impairment Tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables are located in the Determination).
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399 Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using impairment tables and assign impairment ratings. In particular, subsection 11(1) states that if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
CONTINUING INABILITY TO WORK
As set above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(emphasis added)
‘Severe impairment’ is defined in subsection 94(3B) of the Act:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(original emphasis)
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C) (original emphasis).
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case that 13 week period, is from the 16 November 2016 to 16 February 2017 inclusive, and is known as the qualification period.
For a claim to be successful a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to this claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]).
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).
ISSUES
The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the qualification period for the purposes of section 94(1) of the Act.
This requires consideration of whether at the time of the qualification period:
(a)the Applicant had any physical, intellectual or psychiatric impairment; and
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in subsection 94(2) of the Act.
EVIDENCE
As mentioned above, the matter was heard in Perth on 30 April 2018. The Applicant appeared in person with the support of friend. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers
The Tribunal received the following evidence:
·Exhibit A1 – Medical certificate by Dr Gild dated 1 March 2018.
·Exhibit A2 – Letter by BPPB dated 27 January 2018.
·Exhibit A3 – Other evidence received 29 January 2018.
·Exhibit A4 – Job Capacity Assessment reports dated 4 March 2015 and 17 March 2017.
·Exhibit A5 – Job Capacity Assessment Report dated 22 March 2016 and Centrelink letter dated 6 January 2017.
·Exhibit A6 – Other evidence received 23 January 2018.
·Exhibit A7 – Other evidence received 22 January 2018.
·Exhibit A8 – Other evidence received 22 January 2018.
·Exhibit A9 – Other evidence received – – 22 January 2018
·Exhibit A10 – Submission received 1 December 2017.
·Exhibit A11 – Report of Janet Correia, Clinical Psychologist dated 6 December 2017.
·Exhibit A12 – Letter of Glenys and Raymond Moore dated 14 August 2017.
·Exhibit A13 – Report of Dr Gild dated 10 November 2017.
·Exhibit A14 – Letter from DSS – Changes to Disability Employment services, dated 15 March 2018
·Exhibit R1 – T Documents and Supplementary T documents (T1-41 pp1-231and ST1-6 pp1-30).
·Exhibit R2 – Secretary’s Statement of Issues, Facts and Contentions dated 18 January 2018.
·Exhibit R3 – Secretary’s list of authorities received 18 January 2018.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Secretary made the following contentions (R2):
33.The Secretary accepts that the Applicant's psychological condition was fully diagnosed, treated and stabilised during the qualification period and the resulting impairment can therefore be rated under the Impairment Tables.
34.The Secretary contends that the Applicant's psychological condition causes an impairment and that the impairment is appropriately rated under Table 5 of the Impairment Tables. Table 5 is to be used where a person has a condition resulting in functional impairment due to a mental health condition. The Applicant's medical evidence indicates that she suffers from conditions including PTSD, panic attacks anxiety and depression, which the Secretary contends is appropriately assessed under Table 5.
35.1.In relation to social and recreational activities and travel, in a report dated 11 August 2016, Terry Levinthal, Clinical Psychologist, records that a symptom of the Applicant's depression is that she experiences extreme fatigue and has diminished motivation to participate in social activities (T20/129);
35.2.the report of Dr Geoffrey Gild, General Practitioner, dated 10 November 2017, records that the Applicant remains acrophobic, socially isolated, overwhelmingly anxious and substantially psychiatrically impaired (ST3/5-6). While this report is outside the qualification period, the report does refer to the Applicant's conditions in the claim period;
35.3.In relation to concentration and task completion, behaviour, planning and decision-making and work and training capacity:
35.3.1.On 25 March 2014, a Job Capacity Assessor, being a registered psychologist, noted that according to the medical report of Dr Tandi Hobbs, General Practitioner, dated 10 February 2015 (T7/101; TS/102-105), the Applicant experiences extreme anxiety, low concentration and insomnia. The Job Capacity Assessor also assessed the temporary functional impact of the Applicant's psychological condition and concluded that that the Applicant's condition restricts her ability to engage in and remain task focussed and that, at least in the short term, she will have difficulty engaging and interacting in a variety employment and social situations (TS/104);
35.3.2.the medical report of Dr Hobbs, dated 17 August 2015, states that the Applicant's symptoms include anxiety, insomnia, lethargy and low concentration (T9/106);
35.3.3.the medical report of Dr Geoffrey Gild, General Practitioner, dated 4 March 2016, records that Applicant experiences "overwhelming panic/stress" (T13/111);
35.3.4.on 8 March 2016, a Job Capacity Assessor, being a registered psychologist, assessed the temporary functional impact of the Applicant's psychological condition and concluded that the Applicant is likely to experience ongoing difficulties in coping with workplace stress and pressure, difficulties with concentration and that she may experience episodic periods of reduced capacity (T14/115);
35.3.5.on 3 May 2016, a Job Capacity Assessor, being a clinical psychologist, assessed the temporary functional impact of the Applicant's psychological condition and concluded that the functional impact of the condition includes a reduction in concentration, confidence, efficacy and motivation, which may affect endurance for work related tasks but opined that the Applicant could sustain at least three, four hour shifts of work per week. The Job capacity assessor also noted that, on a temporary basis, the Applicant's condition would impede her ability to remain task-focused and sustain productive working relationships (T19/126);
35.3.6.the Applicant reported that she experiences flashbacks and traumatic memories of the abuse she suffered from her ex-husband (T18/122). In a report dated 11 August 2016, Mr Levinthal records that the Applicant continues to experience hypervigilance and flashbacks related to family violence (T20/129);
35.3.7.in a report dated 12 September 2016, Janet Correia, Clinical Psychologist, observed that during her consultation with the Applicant, the Applicant was teary with constant rumination relating to her divorce and legal matters (T22/132; T34/184). Additionally, in a further report dated 20 February 2017, Mr Correia, opined that until the Applicant's issues with her ex-husband and parenting dispute are resolved, her ability to maintain employment is significantly compromised (T34/184); and
35.3.8.in a report dated 6 December 2017, Ms Correia, stated that as at 16 November 2016, the Applicant suffered from loss of concentration and short-term memory (ST6/28-30). While this report is outside the qualification period, the Secretary notes that it refers to the Applicant's conditions in the claim period.
The Applicant’s written evidence contained in her submissions dated 30 November 2017 (A10) and 27 January 2018 (A2) mentions that:
·There appears to be some discrepancy with the JCA reports stating face to face, whereas it appears only file assessments occurred (T30 173-177) (R1).
·The Applicant has not satisfied the requirement of active participation in a program of support (POS) of at least 18 months in 3 years prior to the claim. There is no evidence to show that in-spite of the Applicant being referred to a Disability Management Service action was undertaken by the Respondent to action this.
·The Applicant claims she received a letter dated 9 November 2016 (A3) to attend Peedac Pty Ltd, however this appointment was cancelled by the employment service because she was exempt due to her DSP claim.
·The Applicant speaks daily with her friend for support.
·The Applicant is also supported by friend B.
·The Applicant cooks and cleans independently when her children stay with her.
·The Applicant does her own grocery shopping with the assistance of medication.
·The Applicant does not make eye to eye contact with people.
·The Applicant feels overwhelmed in public places.
·The Applicant takes her children to shops, pools, beach and parks with the support of medication.
·The Applicant does not engage with strangers.
·The Applicant takes her daughter once a week to gymnastics.
·The Applicant has not studied for 30 years and not worked since 2001.
·The Applicant diarises everything so she can recall information and conversations.
·The Applicant cannot focus more than 10 minutes.
·The Applicant cleans her house to a bare minimum on a monthly basis.
·The Applicant only attends the houses of very close friends.
·Most days the Applicant is fatigued due to insomnia and nightmares.

The Applicant gave oral evidence at hearing and was cross-examined by Ms Jones-Bolla. She said:
·She agreed with her statement to AAT1 (T2 10) (R1).
·She had custody of her 3 children for 65%, 50% and 14% per fortnight.
·She did do her shopping.
·She did prepare meals.
·She did not have physical support to clean her house.
·She relied on emotional support from her close friends, Mum, her medical support team and Kelly Molloy.
·She paid her own bills.
·She did drop her children to school.
·She did take her daughter to gymnastics on a weekly basis.
·She did not have a dog during the qualification period.
·She was an observer of social media.
·She last worked in 2003.
·She, nor her Doctor, asked for an exemption from the Department to undertake a POS.
The Applicant presented as an honest and truthful witness, who the Tribunal observes has gone through significant mental trauma in her life.
Mental health
Evidence in the T documents (R1) indicates that the Applicant suffers a significant mental health condition. This was confirmed by medical evidence which indicates she’s been subjected to years of domestic violence and abuse.
AAT1 stated (T2 11) (R1):
Based on the evidence provided, and the psychological reports, the tribunal felt that BPPB will have mental health problems for a considerable time, probably until her children have reached adulthood. She will require ongoing treatment.
Dr Gild’s medical certificate describes the Applicant’s condition as “Panic disorder depression” (T13 111) (R1). He stated the Applicant’s treatment included psychology and medication.
Terry Levinthal, Clinical Psychologist, described the Applicant’s condition as (T18 122) (R1):
…fulfils The Diagnostic and Statistical Manual of Mental Disorders, Fifth edition, criteria for Postraumatic Stress Disorder with panic attacks. She also fulfils criteria for major depressive Disorder
The JCA report dated 5 May 2016 states (T19 126) (R1):
The client has a permanent condition which impacts on work capacity. Functional impacts of mental health condition include a reduction in concentration, confidence, efficiency and motivation, which may affect endurance for work related tasks. A work capacity of 8-14 hrs/week has been recommended to account for the impact of stated functional impairment on client’s ability to sustain more than three 4 hr periods/shifts per week.
Janet Correia, Clinical Psychologist stated that the Applicant (T34 183) (R1):
… was referred for the treatment of Post Traumatic (sic) Stress Disorder (PTSD), including major depression, severe anxiety and severe stress ...
reported having experienced a physically and verbally abusive marital relationship over 15 years and a subsequent three-year custody battle with her ex-husband.
Ms Correia said (T34 184) (R1):
It is my opinion that BPPB has experienced, prolonged, repeated trauma that has resulted in a diagnosis of Complex PTSD with acquired maladaptive coping strategies including chronic anxiety, depression, poor self- perception, poor hygiene habits, disturbed sleep and social withdrawal.
Assessments at paragraphs 33-36 above confirm earlier medical advice in the T documents (R1).
Dr Gild stated at (ST3 5-6) (R1):
“Dear Madam,
I am in receipt of your request for specific answers to questions associated with the application for a Disability-Support Pension by BPPB date of birth 10/03/1972.
This is to confirm that I am a legally qualified medical practitioner practicing in Nollamara BPPB has been a patient of my practice from 25/02/2016 when she was referred to me by her psychologist at that time Gayle Rewell.
In answer to your specific questions:
1From what date has Ms BPPB been a patient. Covered above.
2Diagnosis and date of onset of each BPPBs conditions. BPPB has a diagnosis of major depression, severe anxiety and stress disorder and post-traumatic stress disorder (PTSD). These conditions were present when I first saw her and they persist. This diagnosis was present by at least December 2013 when BPPB left her husband.
3Are the conditions expected to persist more than 2 years from 16/11/2016. Yes. BPPB has severe ongoing symptoms. She requires ongoing medication and therapy. As mentioned in my previous reports I believe this will persist indefinitely.
4Functional impacts arising from conditions expected to persist for more than 2 years from 16/11/2016. Yes BPPB remains significantly impacted by her conditions. She remains acrophobic, socially isolated, overwhelmingly anxious i.e. substantially psychiatrically disabled.
5Treatments received for each condition. BPPB has been on anti anxiety medications (alprazolam) from April 2016. For depression SSRI (Aropax) from May 2016 as well as agomelatine (Valdoxan) from March 2016. Valdoxan samples were supplied by my practice as it is extremely expensive. BPPB was unable to pay for this herself and this was ceased after a year. Currently she is taking (SSRI/SRNA) Pristiq from August 2016. She takes alprazolam to reduce anxiety when she goes out.
6Compliance. BPPB is fully compliant with all treatment recommendations.
7Further investigations and specialist referrals. BPPB continues under the care of Ms Pinto-Correia who has significant expertise in the treatment of PTSD. Prior to that she was under other psychologists as you have been informed. She has not seen a psychiatrist as this is an overwhelmingly expensive project. I believe that BPPB will require significant ongoing therapy. This will be greater than 2 years.
8Use of assisted technology. N/A.
9Detailed description of symptoms. This is essentially covered in all other reports you have received from her psychologist. T.C. has significant symptoms of post-traumatic stress disorder. She has flashbacks, nightmares, overwhelming situational stress. She is constantly anxious, tearful. She has poor appetite, no libido and difficulty with task focusing. I do not believe that these are going to improve anytime soon.
BPPB has suffered ongoing abuse for many years including a pre-morbid personality problem prior to her marriage. Her marriage was disastrous and the situation remains extremely fragile and abusive. I would hope that sympathetic consideration could be given to getting this unfortunate woman a Disability Support Pension.
Dr Geoffrey Gild”
(original emphasis)
Ms Correia stated in response to questions relating to the conditions and level of impairment of the Applicant (ST6 28-30) (R1):
“In response to your request relating to BPPBs conditions and level of impairment associated with her application for a Disability Support Pension as at 16/11/2016, I report as follows:
1From what date has BPPB been your patient?
BPPB first presented 26/08/2016. BPPB was directed to myself under the Black Swan Health Limited Program due to her financial circumstances and the availability of Bulk Billing services to BPPB. BPPB presented for a total of seven sessions up until and including 17/11/2016. BPPB has continued to present on an approximate fortnightly basis since her initial referral and I have seen her for a total of 25 appointments.
2Describe the diagnosis and date of onset of each of BPPBs conditions.
BPPB was referred for the treatment of complex Post‐Traumatic Stress Disorder with Major Depression, severe Anxiety and stress.
BPPBs experienced prolonged, repeated trauma within her marriage of fifteen years that has resulted in a diagnosis of Complex PTSD, with acquired maladaptive coping strategies including chronic anxiety, depression, poor self‐perception, poor hygiene habits, disturbed sleep, and social withdrawal.
BPPB described a dysfunctional childhood being exposed to a number of family traumas which would indicate BPPBs vulnerable to personality stressors. In my opinion, the onset of BPPBs condition has well exceeded two years; with symptoms being significantly exacerbated at the time of BPPBs separation from her husband and subsequent court hearings.
3Are the conditions expected to persist for more than two years from 16/11/2016?
Affirmative. BPPBs condition is expected to persist for more than two years. Ongoing psychological treatment with myself has affirmed this. While BPPB has implemented coping strategies, these techniques are repeatedly reviewed and reinforced in addition to BPPBs externalizing her ongoing distress in the context of her co‐parenting matters, which continue to significantly impact on her functionality in all other areas of her daily life.In my opinion BPPBs mental health conditions are likely to continue until at least her children are adults, as the major source of distress, at this time, has proven to remain constantly unpredictable and unresolved.
4Are the functional impacts arising from the conditions expected to persist for more than two years from 16/11/2016?
Affirmative. BPPBs condition continues to significantly impact on her functional activities of daily living and is expected to persist for more than two years from 16/11/2016. BPPB remains socially isolated and withdrawn, she experiences ongoing hyper-‐vigilance, panic attacks, insomnia, reduced standards of hygiene, exhaustion, short-‐term memory loss and headaches.
5Describe the treatment that BPPB has received for each condition prior to 16/11/2016. Please include details of the date/s on which relevant treatments were undertaken, and for how long such treatment was undertaken.
Treatment with myself initially included psycho-education in the context of BPPBs understanding her locus of control. Cognitive Behavioural Therapy (CBT) was implemented including gentle cognitive challenge and restructure in the context of her social withdrawal and negative predictive thought patterns. Mindfulness and breathing exercises were introduced to assist in managing BPPBs stress and anxiety. Eye Movement Desensitisation and Reprocessing (EMDR) has been implemented to address traumatic memories and flashbacks. Supportive psychological counselling was implemented to improve her confidence.
Prior to BPPB being referred to myself she reportedly received treatment from:
·Ms Gayle Rowell, Registered Pscyhologist, ACT NOW Psychological Services, from August 2015 until March 2016
·Dr Terry Levinthal, Clinical Psychologist, Carine from April 2016 until August 2016.
·Dr Gild, Family Practice & Obstetrics, Nollamara from February 2016 to present.
·Ms Kelly Molloy, Counsellor from Patricia Giles Centre, Joondalup for women and children affected by domestic violence from March 2014 until March 2017.
·A friend of 25 years. Ongoing support receiving (multiple) daily calls and texts for support, in addition to attending court with BPPB.
6Was BPPB fully compliant with all treatment recommendations?
Affirmative. BPPB was/is fully compliant to all treatment and recommendations.
7Were there any further investigations, specialist referrals, or treatments yet to be undertaken for any condition as at 16/11/2016?
BPPB has not sought psychiatric treatment due to affordability and costs involved. It is my opinion that BPPB will require ongoing psychological support and management indefinitely.
8Does BPPB have, or has it been recommended she use, any aids, equipment or assistive technology?
No, not applicable.
9Provide a detailed description of symptoms suffered by BPPB, as well as the frequency and severity of the symptoms as at 16 November, 2016. Please describe with examples, how such symptoms impacted BPPBs ability to carry out everyday activities.
On presentation BPPB presented with the following symptoms of Complex PTSD: Hyper-‐vigilance and flashbacks relating the court hearing of 2014 of physical assaults by her ex-husband; anxiety with panic attacks; headaches and migraines; social withdrawal and isolation; insomnia and disturbed sleep with exhaustion and fatigue; loss of concentration and short-‐term memory; anhedonia and loss of libido; increased irritability; loss of confidence and reduced hygiene standard with BPPB reporting that she does not shower for up to five consecutive days when her children are not in her care; loss of appetite; and dismonoreah.
BPPB condition appears stablised and she will require ongoing psychology treatment to maintain her limited functionality. BPPB remains vulnerable to setback and deterioration should the dynamics between her ex-‐husband and herself deteriorate, in the possibility of another court hearing with regard to breach of court orders or custody.
BPPBs priority and protective factors remain that of her three children and her role as mother and carer. BPPBs sense of security remains limited to her home, a small group of friends and family, and/or when her children are in her presence. BPPB will continue to receive treatment in 2018 in order to maintain her current level of functioning.
BPPB has experienced significant ongoing manipulation and abuse from her ex-‐ husband, compounded by a dysfunctional childhood. This has continued to impact BPPBs mental health and functionality of daily activities. It is in my opinion that BPPB remains significantly compromised in finding and maintaining employment and I support her application for the Disability Support Pension.
Yours sincerely,
Ms Janet Pinto Correia
Clinical Psychologist, 280290FF”
The Respondent agrees this condition is FDTS during the qualification period (R2).
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers from a severe mental health condition comprising PTSD with major depression, severe anxiety and stress.
Ms Correia’s report at paragraph 39 above refers to a history over 15 years within a marriage which has resulted in repeated and significant trauma.
The Tribunal finds therefore, the Applicant satisfies subsection 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Mental Health
The Secretary refers to facts including the capacity of the Applicant to: prepare meals; clean her own home; drive to places within her local area; and keep up with her long term friendships.
The Secretary refers to the evidence provided to AAT1 by the Applicant that she cares for her children, lives independently alone and drives her daughter to school on a daily basis and cares for her sons when they stay with her.
The Secretary alludes to the fact that the Applicant drives her daughter to gymnastics on a weekly basis and attends to a range of daily living functions as part of her responsibilities as a parent.
Importantly the Secretary states that the Applicant has 3 longstanding friends and her mother who provide her with emotional support.
In respect to her capacity to concentrate greater than 10 minutes, the Secretary contends the AAT1 hearing demonstrates the Applicant is more than capable of satisfying this requirement.
The Tribunal notes the Applicant’s written evidence is confirmed by her oral evidence to the Tribunal. The Tribunal finds the Applicant to be a truthful and honest witness who has undergone significant mental anguish and trauma.
The Tribunal notes there is no evidence before it to indicate that the Applicant or her medical support team asked her to be exempt from a POS. Yet this is the case and has been the subject of evidence presented.
For the Applicant to satisfy the requirements of attaining 20 points under the Impairment Tables the Applicant has to meet the descriptors. The Applicant would need to satisfy the Tribunal that she needed regular support to live independently.
That is not the case. The Applicant lives with her children and maintains her household as a responsible parent.
The Applicant would have to show she travels alone only in familiar areas. The applicant goes shopping, catches the train, takes her children to school and takes her daughter to gymnastics.
In terms of interpersonal relationships, the Applicant has demonstrated she has a limited number of friends and very limited social contacts. The Applicant has however, some very long term friendships, including her children and her mother.
The Applicant has been observed by the Tribunal throughout the hearing. Whilst she clearly had some difficulties in terms of composure, she managed in a professional manner to present her case carefully and clearly. For her to satisfy the Tribunal with the descriptor of concentration and task completion the Applicant would have to demonstrate she had difficulty concentrating on any task or conversation for greater than 10 minutes. The Tribunal finds this is not the case.
The Tribunal also finds whilst there might be some lapses in decision making, the Applicant demonstrated throughout the hearing that she was able to clearly articulate her case and answer the questions of the Respondent and the Tribunal.
The Tribunal also notes the Applicant has been assessed as having a capacity to work between 15-22 hours per week by the Psychologist who undertook the assessment contained in the report dated 19 December 2016. (T30 175) (R1)
Having considered all the evidence, the Tribunal agrees with the Secretary and allocates 10 points under the Impairment Tables (Table 5) for the purpose of the Applicant’s mental health condition.
Whether the Applicant has a continuing inability to work (CITW)
The Tribunal finds that the Applicant has 10 impairment points and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.
For the sake of completeness however, should the Tribunal find that the Applicant satisfies paragraph 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy paragraph 94(1)(c) of the Act. According to subsection 94(3B) of the Act, the Applicant did not have a severe impairment, and, according to subsection 94(3C) of the Act, the Applicant did not actively participant in a program of support (POS).
The Applicant lodged her application for DSP on the 16 November 2016. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate this occurred.
On this basis it is highly unlikely this application would have succeeded regardless of whether 20 Impairment points were assigned.
DECISION
For the reasons above the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
....(Sgd)........................................................
Associate
Dated: 01 June 2018

Date of hearing: 30 April 2018

Applicant: In Person

Representative for the
Respondent: Daphne Jones-Bolla

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2018] AATA 1504

1 June 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	30 April 2018
Applicant:	In Person
Representative for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers