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

[2021] AATA 1348

Briscoe and Secretary, Department of Social Services (Social services second review) [2021] AATA 1348 (12 May 2021)

Division:GENERAL DIVISION

File Number(s):      2019/8588

Re:Lorraine Briscoe

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:12 May 2021

Place:Adelaide

The decision under review is affirmed.

......................[SGND].............................

Senior Member B J Illingworth

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Senior Member B J Illingworth

12 May 2021

Introduction

1. On 1 November 2018 Ms Briscoe (the Applicant) lodged a claim for disability support pension (DSP) with the Department of Human Services now known as the Services Australia (Centrelink). She listed her medical conditions as spinal disorder, chronic wrist pain and psychological disorder.

2. On 19 March 2019 an employee of Centrelink decided that the Applicant was not qualified for the DSP (the original decision). The Applicant requested a review of that decision.

3. On 11 October 2019 an authorised a review officer (ARO) affirmed the original decision. The ARO decided that the Applicant’s spinal disorder was fully diagnosed, fully treated and fully stabilised (FDTS) and, pursuant to Impairment Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011 (the Determination), she was entitled to an impairment rating of 5 impairment points. In relation to her other claimed conditions, the ARO decided that they were not FDTS at the date of her claim for DSP.

4. Hence the ARO decided the Applicant’s total impairment rating was five points and therefore she did not satisfy s 94 (1) (b) of the Social Security Act 1991 (the Act) and did not qualify for DSP. The Applicant requested a review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).

5. On 4 December 2019, the AAT1 affirmed the decision of the ARO. On 23 December 2019, the Applicant applied to review that decision to the Administrative Appeals Tribunal (AAT2) which application is now before me.

6. The Applicant gave evidence by telephone from Port Augusta. The Respondent was represented by Ms Anneliese Massey of Sparke Helmore Lawyers.

   Issues

7. For the Applicant to qualify for the DSP she must satisfy the provisions of s 94 of the Act namely that:

   (a)she has a physical, intellectual or psychiatric impairment(s) for the purposes of s 94 (1) (a) of the Act; and

   (b)her impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Determination; and

   (c)she has a continuing inability to work; and

   (d)if she does not have a severe impairment which is defined as a score of 20 points pursuant to a single Impairment Table, but has a combined total of 20 points from two or more impairments on the Impairment Tables, the Applicant must have actively participated in a program of support in accordance with the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination), namely, that she participated in the program of support for a period of at least 18 months within the 36 months prior to the claim for DSP being lodged.

8. Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those tables contain instructions for assessing impairments with respect to nominated conditions. Those conditions must be permanent resulting in functional impairment, must be diagnosed by an appropriately qualified medical practitioner and there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.

9. A permanent condition is one that, pursuant to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) has been FDTS as at the date of the claim, namely 11 September 2018 or up to 13 weeks thereafter (the Qualification Period). The Qualification Period in this matter is 11 September 2018 to 31 January 2019.

10. For the condition to be “fully stabilised” pursuant to s 6 (6) of the Determination means that it will be unlikely that there will be any significant functional improvement in the condition, with or without reasonable treatment, within the two years following  the date of claim.

11. The Respondent maintains in the Statement of Facts, Issues and Contentions that the Applicant had not completed a program of support nor did she satisfy any exemption from the obligation of completing the program as at the date of the filing of her application for DSP. The Applicant did not dispute that she had not completed a program of support and she did not raise any exemption from the obligation to do so. Accordingly, the Applicant must demonstrate that she has a severe impairment in respect of any one condition, attracting 20 points or more under a single Impairment Table, and has a continuing inability to work (CITW).  

12. The Secretary accepts that the Applicant suffered from both physical and psychiatric impairments and that s 94 (1) (a) of the Act is satisfied. The Tribunal agrees. Hence the issues in dispute are:

    (a) whether the Applicant’s conditions were FDTS; 

    (b) whether she had a severe impairment rating in respect of any one condition so as to attract an impairment rating of at least 20 points; and

    (c) whether she had a CITW.

    The Applicant’s Evidence

13. The Applicant was born in August 1954 at Leigh Creek, South Australia. She had two brothers, both of whom died in 2003. She has four children. Since her husband died in 2015, she has been living with her son. In 2016, they moved from Loxton to Barmera. She continues to live with her son, but he has a partner and new baby and she is soon to move into her own accommodation.

14. The Applicant is an Australian Aboriginal Elder. Her late parents were from different tribes and she is involved in cultural matters for each of their tribes. She attends “a lot of meetings” including to deal with native title issues and artefact issues. Those meetings can be in Port Lincoln or Whyalla for her father’s tribe and can be in Port Augusta or in the Flinders Ranges, including at Hawker, for her mother’s tribe. She has been performing that role since her two brothers died in 2003.

15. The Applicant made her current claim for DSP on 1 November 2018. At that time, the Applicant was performing her role as an Elder and travelling to attend meetings.

16. Her father’s tribal meetings occurred 2 to 3 times a year. She would travel by bus to the meetings in Port Lincoln because it was too far to drive. If the meetings were in Whyalla, she would either travel by bus or drive depending upon the condition of her car. In 2018, the Applicant was travelling to her father’s tribal business by bus because at that time she had lost her driver’s license.

17. The frequency of her mother’s tribal meetings could vary and be up to four to five times a year.  She would travel from Barmera to Adelaide by bus. She would meet her cousins and then together they would travel to the Flinders Ranges. She travelled to Hawker in December 2018 for the annual general meeting.

18. At her father’s tribal meeting there would be about 18 in attendance. At her mother’s tribal meeting there would be 60 – 70 people in attendance. The Applicant booked two nights’ accommodation when she travelled to attend those meetings.

19. When the Applicant’s licence was returned, she would drive to meetings in Whyalla. For her mother’s tribal meetings, she would drive to Hawker because after the meeting she would also drive to Leigh Creek to see family. Leigh Creek is a two-hour drive from Hawker.

20. In 2018, when travelling by bus or car, she would have to stop, get out and walk around. She said driving “will cripple me up a bit” and she would stop and get out and have a walk. On a trip from Barmera to Hawker she would have two main stops in addition to refuelling her car and an extra stop if travelling to Port Augusta or Whyalla.

    Back Condition

21. In describing her back condition in November 2018, the Applicant said she had arthritis in her lower back. She said a doctor she saw in the Pilbara explained to her how she had a pinched nerve which would cause sciatica in her left leg.

22. The Applicant said that she had consulted two doctors, one for the purpose of a second opinion. They were both general practitioners. Those doctors could not guarantee the success of any operation, nor whether she may walk again. She said that she saw the doctors in about 2008, but at no other time more proximate to the date of her application for DSP. The Applicant could not remember the names of those general practitioners. Neither general practitioner was Dr Amaechi who provided a report dated 17 March 2016 over two years prior to her application for DSP.

23. She said in 2018 she still suffered from back pain. She could not vacuum or mop the floors. She would hang out her washing on a clothesline which was hung above her head. She found that function very tiring. In her culture, male family members are not permitted to handle ladies’ washing and she did not have any daughters to help her. Now she cannot hold a baby in her arms. She has a number of grandchildren and great-grandchildren and she knows that if she holds them her hand will shake, and it is difficult.

24. When asked to detail her condition at the time of the DSP application, the Applicant said she could bend down and touch the ground to pick up something but not for very long and not if it was heavy. It had to be a quick movement. When she was on her own, she had no choice but to perform that movement. She could bend down and pick something up off a coffee table. That function was not painful to perform. It was vacuuming and mopping that caused her difficulty and pain. If she had to bend to clean the bathtub, it was painful, but she did that function herself because she knew that if she did it, it would be done properly. Nonetheless it was painful, and she found it difficult to get up, and used the side of the bath to help her stand. She did not receive help other than from her son when he was available. He would help with “heavy stuff” such as shopping, gardening and vacuuming.

25. In cross-examination the Applicant was referred to the 2016 report of Dr Amaechi. She agreed with the doctor’s report that she had difficulty sitting or standing for prolonged periods of time. She agreed that she was unable to squat or bend from the hip at all.

26. In reference to a job capacity assessment in June 2016, the Applicant agreed she suffered sciatica in her left leg at that time, and that she sometimes had difficulty with tasks such as mopping and vacuuming. She said it is not getting any better and is getting worse because she is getting older.

27. In reference to a job capacity assessment report conducted in January 2019, the Applicant agreed that she stopped taking pain medication, including Endone, at that time. The treating medical practitioner did not want to give her that medication anymore. The only drug she was being prescribed was Panadeine Forte which she was taking during the Qualification Period. The Applicant agreed that she said that she walked everywhere at that time. She explained that she had to because she had lost her driver’s licence. She walked to the shops to purchase light items. That walk was about 15 minutes one way. A normal person would take 10 minutes.

28. The Applicant also agreed that she was independent with respect to her self-care and hygiene, and cooked and cleaned for herself. She could dress herself. Her son assisted with heavier chores around the home.

29. When unlicenced she travelled by bus to Adelaide and elsewhere to attend meetings. When her licence was returned, the Applicant drove herself to the doctors but then for 5 months the car was in the garage and the Applicant was back walking.

30. Recently, the Applicant’s son has had a partner and they have had a child. Accordingly, the Applicant is now thinking of moving out to her own accommodation.

31. The Applicant said that it was her back that was her main problem which prevented her from doing things. She now performs functions slowly to be able to cope but it is painful and tiring. Also, if she moves too quickly, she will be in pain.

32. The Applicant said that she could not turn her neck or upper body from side to side quickly. She would perform those functions slowly and with a lot more care to avoid pain.

    Wrist Condition

33. It is the Applicant’s right wrist that is causing her problems. The Applicant said that she suffered from carpal tunnel in her right wrist. The condition was diagnosed in 2010 when she was working in Queensland. In November 2018, at the time of her application for DSP, the Applicant said it was still causing her discomfort. She could not put much pressure on her right wrist, for example, when carving up meat, or mashing potatoes. Then, in the same month, the Applicant said she broke her right wrist tripping over a laundry basket. She was unclear whether she broke her wrist before or after the time of filing an application for DSP.

34. The Applicant agreed with the contents of the job capacity assessment report dated 18 March 2019, that she had an upcoming appointment with a rheumatologist in North Adelaide. She had not previously seen a rheumatologist in respect of her right wrist.

35. The Applicant agreed that she could cook for herself, hold and use a pen and manipulate buttons during the Qualification Period.

36. The Applicant said that she could lift a light shopping bag with her right arm but if it was heavy, she would use her left hand. She could pick up a two-litre container of milk using her right hand with the assistance of her left hand.

37. In relation to her left wrist, that is okay, however her left arm will shake if she attempts to lift anything that is too heavy.

38. As for her dexterity, the Applicant said that she could do up the buttons of a blouse using her right hand. She was still buying and wearing button up blouses at the time of her application for DSP. When shopping, she could pick up a can from a shelf that was within reach. She was right-handed and could still write with her right hand but only as much as was absolutely necessary. She no longer wrote as much as she used to. She used to do crosswords in one sitting but now would do them over a number of days due to pain. The Applicant is due to attend the Royal Adelaide Hospital in May 2021 to see an orthopaedic specialist after having broken her right wrist. It is the second time she has broken that wrist in the same place.

    Mental Health Condition

39. The Applicant said that in late 2018 her mental health was terrible. She lost her husband in 2015 and this loss caused her significant difficulty. She was admitted to hospital shortly after he passed away due to her mental health condition. She also lost other close family members at the same time which impacted upon her.

40. The Applicant said that she is still having difficulty dealing with the loss of family members and will cry on occasions. She had no choice but to continue to look after herself and she did not like anyone else looking after her. During this time, she still attended the Elder meetings. The Applicant said that she got a sense of value and self-worth by being involved in the meetings. It was important to her and to the future of her family, her children, grandchildren and great grandchildren. It was important to protect what was rightfully theirs.

41. As an Elder, the Applicant would engage with members of her parents’ tribes. However, in Barmera she does not mix with anybody. She does not want people coming around. When her husband was alive, she and her husband maintained a very private life and that was the life she wanted to continue to live. This is why she does not want to move to Port Augusta to be closer to her relatives. Access to a hospital is very important to the Applicant. There is a hospital in the Riverland.  She had given thought to moving to Port Pirie where her niece lives. She would have access to the hospital there. That niece is also to take over the care of the Applicant’s twin great-grandchildren.

42. The Applicant’s son raised with her the thought of moving to her own accommodation now that he has a partner and a young child. It is currently the Applicant’s intention to move to a one-bedroom residence in Barmera when one becomes available.

43. The Applicant said that she was admitted to hospital in 2016 for mental health issues. She left hospital to attend a tribal meeting. The Applicant first saw a specialist for her mental health in 2018. She was having telephone interviews with clinical psychologist Ms Pamela Wakefield-Semmens; however, she stopped those consultations when she was required to pay for the treatment. She could not afford the treatment. She could not recall how many times she saw Ms Wakefield-Semmens. She speculated possibly on eight occasions but was not sure. The Applicant said that she did not consistently take medication for her condition. She recalled medication being prescribed for her mental health condition, but she said it was not helping her and it was stopped.

    Consideration

44. The Respondent properly conceded that the Applicant had an impairment pursuant to s94(1)(a) of the Act. The Respondent further submitted that the Applicant did not, in respect of any one of the conditions, satisfy an impairment rating of 20 points in respect of any one of the relevant impairment tables.

45. CT scans of the Applicants lumbar spine in July 2009, December 2011 and March 2016 identified L5/S1 disc degeneration. The 2016 CT scan of March 2016 reported advanced disc space narrowing at the L5 - S1 and endplate sclerosis with spurring at the vertebral body margins[1].

    [1] T13 – T15, pages 159 – 161.

46. In a very short four-line medical report of Dr Ekambaram of Loxton Health Centre dated 17 March 2016, he confirmed that the Applicant suffered from longstanding back pain for four years, which caused her severe pain and impacted upon the Applicant’s day-to-day activities. The Applicant was on regular pain medication. She was diagnosed with osteoarthritis of the lumbar spine[2].

    [2] T 16, page 162.

47. In a further brief report of Dr Amaechi of Loxton Health Centre also dated 17 March 2016, it is reported that lower back osteoarthritis was diagnosed in early 2015, right wrist osteoarthritis was diagnosed in early 2016 and left lower limb sciatica was also diagnosed in 2016. The Applicant’s conditions were degenerative and non-operable. She was battling hard to remain active. Her conditions were likely to remain for the long term and possibly degenerate.  Dr Amaechi reported the Applicant was in daily pain, was unable to walk more than 50 metres without stopping to rest, was unable to sit or stand for prolonged periods, was unable to squat or bend at the hip for any length of time, that her pain wakes her at night when sleeping, her mood is impacted and she feels depressed[3].

    [3] T 17, pages 163 – 164.

48. However, Dr Amaechi’s report is restating the Applicant’s self-reporting of her symptoms and does not purport to give a medical diagnosis of the Applicant’s impairments based on his own clinical observations and findings. It is also two years prior to the application for DSP.

1. Clinical Psychologist Ms Wakefield – Semmens provided a report dated 5 November 2018[4]. She reports that she had treated the Applicant since 19 March 2018 but does not report the number of occasions when she was consulted or over what period of time and when the consultations ceased. She did report that she treated the Applicant with

   “Cognitive Behaviour Therapy for depression, stress and anxiety as described in a referral letter and Mental Health Care Plan dated 17^th November 2017 from Dr Saravanan Kanniappan at the Loxton Health Centre, plus a Mental Health Care Review from Dr Geoffrey Amaechi from the same clinic dated 3^rd September 2018. [The Applicant] is a recovering alcoholic who has had assistance through Drug and Alcohol Services SA and, has managed to improve her life being much less controlled by alcohol. She has been suffering extremely severe anxiety and depression, lower back pain, sciatica, and pain in her knees. These conditions have persisted for more than two years and have affected both her physical and her mental health”.  

   [4] T 22, pages 180 – 184.

2. Ms Wakefield-Semmens also reported that initially the Applicant was suffering from severe depression and grief over the loss of her husband in 2015, which was followed closely by the death of her favourite cousin and son-in-law. As a consequence, she became overwhelmed with grief and she tried to commit suicide and was admitted into hospital for depression in 2016.

3. Ms Wakefield-Semmens diagnosed the Applicant as suffering from Generalised Anxiety Disorder and Persistent Depressive Disorder (Dysthymia) with Intermittent Major Depressive Episodes. She reported that the Applicant fears social interactions in which she might be judged or criticised or in which she might struggle with conversation. Anxiety and anger bouts can occur if exposed to interactions in which she feels attacked. She said the Applicant was a social recluse with significant difficulties in her day-to-day functioning. She opined the Applicant suffered:

   “recurrent bouts of severe depression, anxiety and stress for more than three years now…her physical conditions are degenerative and will worsen rather than improve. She often suffers from suicidal ideations.”

4. Ms Wakefield-Semmens also reported that she had provided the Applicant with cognitive behavioural therapy for over a year, with recurring symptoms when the Applicant experienced attentional conflict or a challenging situation. This is not consistent with her report that she commenced treating the Applicant on 19 March 2018 with a report date of 5 November 2018. She said the Applicant’s psychological distress was extremely severe in spite of the treatment received. In referring to Impairment Table 5, Ms Wakefield-Semmens opined that the relevant functional impairment was extreme in every impairment function save for concentration and task completion which she assessed as severe. This was not consistent with the evidence given by the Applicant.

5. For example:  

   ·Under heading ‘self-care and independent living’, Ms Wakefield-Semmens said the Applicant was not able to live independently without daily supports and needs, constant social-emotional support,   practical assistance from her son and hence the effect on her functional impact was extreme. She opined that the condition was extreme (namely 30 points on Impairment Table 5). This is to be contrasted with the Applicant’s evidence which was that she was able to perform daily functions and care for herself independently. She was able to attend to her personal hygiene, clothing, cooking and cleaning but had some difficulty with mopping and vacuuming. Her son provided assistance those heavier functions.

   ·Under heading ‘social/recreational activities and travel’, Ms Wakefield-Semmens reported the Applicant only travelled with friends or with her son, mainly in familiar areas such as shops or other familiar venues. She does not drive herself and has to rely on friends or her son to accompany her to shops or appointments. If she walks, she allows plenty of time and avoids crowded areas and busy streets. If she travelled by bus, her son makes sure she gets onto the bus safely and arrangements are made for somebody to collect her at her destination. Ms Wakefield-Semmens opined her condition was extreme (namely 30 points on Impairment Table 5). The Applicant’s evidence was that she could attend the shops to purchase light items. She drove when she had her license, or when the car was available, including significant journeys to her tribal meetings. When travelling to her mother’s tribal meetings in Hawker, for example, she would then drive to Leigh Creek to visit family. During periods when she could not drive due to loss of license or when her motor vehicle was in the garage she walked everywhere, albeit at a slower pace.

6. The Applicant’s evidence about her functional impairment due to her mental health condition was that in late 2018 her condition was terrible. This was within the time frame of the report from Ms Wakefield-Semmens. However, importantly, the Applicant stopped consulting her clinical psychologist when she was required to pay for further treatment. The Applicant could not accurately recall the number of consultations she attended. Ms Wakefield-Semmens does not report on the number of consultations and in the job capacity assessment report dated 18 March 2019, the author reports “Psychologist Pamela Wakefield-Semmens indicates that she has been treating clients since March 2018. The client advises nil medication and no longer receiving counselling and attended approx. 4-5 sessions.[5]”

   [5] T 24, page 191.

7. The Applicant’s right wrist condition caused her pain and discomfort when applying pressure to the wrist. However, at about the time of the application for DSP, the Applicant broke her wrist. Prior to breaking her wrist, she described being able to manipulate buttons, reach up and pick up objects on shelves in a supermarket, hold or use a pen or pencil, and did not detail any significant impairment in her day-to-day living other than the inconvenience of pain and discomfort when cooking. The Applicant said that she was still having treatment to her right wrist and is due to see a medical specialist and the Royal Adelaide Hospital in May 2021.

   Conclusion

8. The Applicant was a truthful witness who did her best to assist the Tribunal. She did have some difficulty with her memory of circumstances as they existed during her Qualification Period, but that lack of memory did not impact upon the Tribunal’s decision.

9. The Applicant said that it was her back condition that was her main problem. It was in respect of that condition that she particularly maintained that she satisfied the criteria of severe functional impact which entitled her to an assessment of 20 points under Impairment Table 4 of the Determination.

10. The impairment descriptors for Impairment Table 4 include mild, moderate and severe functional impact are as follows:

5

There is a mild functional impact on activities involving spinal function.

(1)        The person has some difficulty in:

(a)        activities over head height (e.g. activities requiring the person to look upwards); or

(b)        bending to knee level and straightening up again without difficulty; or

          (c)        turning their trunk or moving their head (e.g. to look to the sides or

  upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)        the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)        the person is unable to bend forward to pick up a light object placed at knee height; or

(d)        the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)        The person is unable to:

(a)        perform any overhead activities; or

(b)        turn their head, or bend their neck, without moving their trunk; or

(c)        bend forward to pick up a light object from a desk or table; or

(d)        remain seated for at least 10 minutes.

1. In considering whether the Applicant suffers from a severe functional impact (20 points), it requires that the Applicant demonstrate that she was unable to perform those functions described in the severe functional impact table at the time of the application for DSP or during the Qualification Period, as opposed to having some difficulty in completing those functions.

2. The Applicant acknowledged that she could perform overhead activities, albeit such function might be tiring. It is not suggested that she cannot turn her head as described in the Impairment Table. She can bend forward and pickup light objects from a desk or table and plainly, by the nature of her driving to her mother and father’s tribal business meetings, each of which is for a considerable distance and over a considerable period of time, she could remain seated for far more than 10 minutes.

3. When considering the table for moderate functional impact on activities (10 points), the Applicant is able to sit in or drive a car for at least 30 minutes but does not satisfy the criteria in (1) (a) – (d). She does not complain of difficulty of movement as contained in (1) (b) of the table. She is not unable to perform those functions referred to in (1) (a) and (c). The Applicant does not complain that she needed assistance to get up out of the chair as referred to in (1) (d).

4. The Tribunal accepts the Applicant’s evidence that her back causes her pain and discomfort. She does have difficulty bending to pick up items up off the floor, but she can perform that function if she does it quickly. She will do it because she has no choice. The Tribunal also accepts that some functions in her day-to-day life including mopping the floor and vacuuming causes her discomfort and pain and are difficult to perform. However, despite discomfort and difficulty, the Applicant has not demonstrated that her functioning was impaired to either a moderate or severe level.

5. As for the Applicant’s mental health, the Tribunal accepts that her condition was fully diagnosed at the time of her application for DSP. The Tribunal accepts the opinion of Ms Wakefield-Semmens that the Applicant suffered from depression, stress and anxiety and had been the subject of a mental health care plan. Her mental health condition was significantly impacted by the loss of her husband in 2015 and two close family members. The Tribunal accepts the diagnosis of Generalised Anxiety Disorder and Persistent Depressive Disorder which was diagnosed in 2018.

6. The Tribunal is not satisfied as to the number of occasions that the Applicant consulted Ms Wakefield-Semmens. Ms Wakefield-Semmens does not provide that evidence, the Applicant was uncertain about the number of consultations, albeit she said possibly eight, and the author of the job capacity assessment report was informed that it was 4 to 5 occasions.

7. However, the Tribunal is satisfied that the Applicant ceased consultation from that point in time when she was required to pay for the consultations and has not sought further treatment since that time from Ms Wakefield-Semmens.

8. As is evident from Ms Wakefield- Semmens’s report dated 5 November 2018, the Applicant suffered significant functional difficulties due to her mental health condition at or about that time. As Ms Wakefield-Semmens reported, the Applicant required ongoing therapeutic support, which did not occur.

9. Nonetheless, having regard to the Applicant’s evidence and despite the apparent lack of therapeutic support, the Applicant’s mental health condition had significantly improved by the time she gave evidence. I refer to the examples to which I referred at paragraph 53 above which demonstrate the significant improvement in her mental health.

10. Given the Applicant’s cessation of mental health treatment, which the Tribunal infers was not continuing during the Qualification Period of 1 November 2018 to 31 February 2019, the Tribunal is satisfied that her mental health condition was not fully treated and stabilised at the time of her claim for DSP or during the Qualification Period. Accordingly, the Applicant is not entitled to an assessment under Impairment Table 5 for her mental health condition.

11. As for the Applicant’s wrist condition, she suffered discomfort performing certain cooking functions. Although the Applicant now described difficulty lifting her grandchildren, this complaint is over two years from the end of the Qualification Period.

12. Importantly, at about the time of her application for DSP, the Applicant broke her right wrist and has been waiting to see a medical specialist which is now occurring for the first time in May 2021 at the Royal Adelaide Hospital. In those circumstances, despite the Applicant’s general practitioner referring to right wrist pain due to osteoarthritis, the Tribunal is not satisfied that her right wrist condition was FDTS at the time of her application for DSP or within the Qualification Period.

13. Accordingly, the Tribunal is satisfied that the Applicant’s back condition was FDTS at the time of her application for DSP. However, the Tribunal is not satisfied that at that time she satisfied either the moderate or severe functional impact as referred to in Impairment Table 4. She does satisfy the criteria of mild functional impact and is entitled to 5 points.

14. The Tribunal is satisfied that the Applicant’s mental health condition was fully diagnosed at the time of the application for DSP. However, the Tribunal is not satisfied that this condition was fully treated and fully stabilised at that time or during the Qualification Period. She did not continue with her mental health treatment once she was required to pay. She has not engaged with ongoing therapeutic support, as recommended by Ms Wakefield-Semmens in her report. There was a significant improvement in her functional activities as referred to in Impairment Table 5, from the time she consulted Ms Wakefield-Semmens, all of which satisfies the Tribunal that her mental health condition was not fully treated and fully stabilised at the time of her claim for DSP or during the Qualification Period and she was not entitled to an Impairment Table 5 rating.

15. As for the Applicant’s right wrist, that condition was not FDTS. She broke her wrist at or about the time of her application for DSP. She was to have a further specialist consultation outside of the Qualification Period and she is to see a medical specialist in May 2021 for her wrist condition.  Hence, albeit the Applicant had a diagnosis in 2016 of chronic wrist pain for two years due to osteoarthritis[6], she had not completed her medical treatment and it is uncertain whether, and if so to what extent, her broken wrist impacted upon her pre-existing condition. To the extent she was suffering a functional impact to her right upper limb, it was no greater than a mild impact as contained in Upper Limb Function Table 2. However, because the Applicant’s wrist condition was not FDTS she is not entitled to an impairment rating on that Table.

    [6] T 17, page 163.

16. Accordingly, at the time of the application for DSP and during the Qualification Period, the Applicant did not satisfy the criteria to be entitled to the DSP.

    Decision

17. The decision under review is affirmed.

76.     I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

....................[SGND]..........................

Associate

Dated: 12 May 2021

Date of hearing:	16 November 2020 (by telephone)
Applicant:	Self-represented
Advocate for the Respondent:	Anneliese Massey, Sparke Helmore Lawyers