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

[2018] AATA 2156

Carroll and Secretary, Department of Social Services (Social services second review) [2018] AATA 2156 (9 July 2018)

Division:GENERAL DIVISION

File Number:2016/6684           

Re:Christine Carroll  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:9 July 2018

Place:Brisbane

The decision under review is set aside and substituted with the decision that the Applicant qualified for the Disability Support Pension on 14 January 2016.

........................[sgd]................................................

Senior Member Theodore Tavoularis

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – depression – spinal conditions – where Applicant had 30 impairment points –Applicant had a severe impairment – whether Applicant had a continuing inability to work – where Applicant underwent five Job Capacity Assessments – where successive reports had lower baseline work capacities – whether program of support was unlikely to improve Applicant’s capacity for work – Applicant had a continuing inability to work – decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 94

Social Security (Administration) Act 1999 (Cth), ss 41, 42, cls 3, 4(1) Schedule 2 Part 2

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500

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) Determination 2011

REASONS FOR DECISION

Senior Member Theodore Tavoularis

9 July 2018

1. On 14 January 2016, Ms Christine Carroll (“the Applicant”) lodged a claim for the Disability Support Pension (“DSP”), on which she listed her conditions as “Back op in 2000; back pain; neck pain, naralga, leg op for skin cancer; depression; diabetic B; sleep apneoa (sic)”.[1]

   [1] Exhibit 11, T-Documents, T12, p 156.

2. The issue before the Tribunal is whether the Applicant qualified for the DSP at the date of her claim, 14 January 2016, or within 13 weeks thereafter, that being up until                  14 April 2016.

   HISTORY OF THE MATTER

3. The Applicant’s claim for the DSP was assessed by a Job Capacity Assessor (“JCA”) who produced a report dated 27 April 2016.[2] The total impairment rating recommended by JCA for all reported conditions was 20 points, all of which were allocated under Table 4 – Spinal Function.[3] Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as 8-14 hours per week with a predicted capacity of 15-22 hours per week within 2 years with intervention.[4]

   [2] Ibid, T13, p 161.

   [3] Ibid, p 167.

   [4] Ibid, p 168.

4. On 7 May 2016, the Respondent wrote to the Applicant advising him that her application for DSP had been rejected on the basis that she could undertake training which would improve her work capacity within two years.[5]

   [5] Ibid, T14, p 171.

5. After receiving a request from the Applicant, her claim was reviewed by an Authorised Review Officer (“ARO”), who in a decision dated 22 July 2016 affirmed the decision under review.[6] The ARO upon review of the JCA report and additional other relevant evidence provided to the Department, made the following findings of fact:

   [6] Ibid, T15, p 173.

   Findings of Fact

   After careful consideration of the evidence, I have made these key findings:

   ·Your condition of depression is not accepted as being fully treated and stabilised.

   ·You have the following fully diagnosed, treated and stabilised conditions: lumbar spondylosis, asthma, type II diabetes and morbid obesity.

   ·Your total impairment rating is 20.

   ·You do not have an impairment rating of 20 or more under a single Impairment Table.

   ·You have not actively participated in a program of support.

   ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.[7]

   [7] Ibid, T15, pp 174-175.

6. Accordingly, the ARO affirmed the JCA’s decision. I note that the ARO accorded the Applicant 10 points for her spinal conditions and 10 points for her asthma. The ARO noted that the Applicant had participated in a program of support but had not met the requirements because she had had a number of periods of exemptions from participation.[8]

   [8] Ibid, pp 175-177.

7. On 11 August 2016, the Applicant applied for review to the Social Services and Child Support Division of this Tribunal (“AAT1”).[9] In its decision dated 10 November 2016, the AAT1 affirmed the decision under review.[10] The AAT1 found the Applicant’s conditions attracted 25 impairment points, comprised of 20 points under Table 4 – Spinal Function and 5 points under Table 1 – Functions requiring Physical Exertion and Stamina. The AAT1 found that the Applicant had been working for more than 15 hours per week and so could not have a continuing inability to work.

   [9] Ibid, T16, p 181.

   [10] Ibid, T2, p 5.

   LEGISLATIVE FRAMEWORK

8. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

9. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 14 January 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[11] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 14 January 2016 and 14 April 2016 (“the Relevant Period”).

   [11] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

10. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

    …the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. 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. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances

    [my underlining]

11. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[12] The Tables are function based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[14]

    [12] See s 26(1) of the Act.

    [13] See s 5(2) of the Determination.

    [14] See s 6(1) of the Determination.

12. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[15] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner, been fully treated, been fully stabilised and more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] See s 6(3) of the Determination.

    [16] See s 6(4) of the Determination.

13. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[17]

    [17] See s 6(5) of the Determination.

14. A condition is “fully stabilised” if:

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

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

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

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[18]

    [18] See s 6(6) of the Determination.

15. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[19]

    [19] See s 6(7) of the Determination.

16. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[20]

    [20] See s 11(1) of the Determination.

17. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

    ISSUES FOR THE TRIBUNAL

18. The issues for me to consider are:

    (a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, treated and stabilised;

    (b)whether the Applicant’s condition(s) warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

    (d)whether the Applicant had a continuing inability to work.

    CONSIDERATION

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

19. The Respondent accepted that the Applicant had impairments for the purposes of s 94(1)(a) of the Act. [21] However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy s 94(1)(b) or (c) of the Act.[22]

    [21] See Exhibit 8, Respondent’s Statement of Issues, Facts and Contentions (“SFIC”), [35].

    [22] Ibid, [74].

20. I accept that the Applicant had impairments for the purpose of s 94(1)(a) of the Act. I propose to deal with the calculation of impairment points by reference to each of the Applicant’s various medical conditions.

    Condition 1 – Depression

21. Mental health conditions are assessed under Table 5 of the Impairment Tables, which relates to Mental Health Function. Importantly for present purposes, under Table 5:

    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).[23]

    [23] The Determination, Impairment Table 5 – Mental Health Function, “Introduction to Table 5”.

22. Thus, even if the Applicant’s mental health conditions are diagnosed by a medical practitioner, that is enough for her to be able to claim the DSP for them. Rather, such diagnosis must be made either:

    (a)By a psychiatrist; or

    (b)By another appropriately-qualified medical practitioner, with supporting evidence from a clinical psychologist.

23. The Applicant contends she suffers from “depression”. In support of this contention, she has provided a number of reports. Most relevant among them for present purposes, however, are a report from Dr Toan Nguyen, a consultant clinical psychologist and the Applicant’s treating psychologist, dated 29 August 2017,[24] and Dr Raymond Chan, the Applicant’s treating General Practitioner (“GP”), dated 8 June 2015.[25] Dr Chan confirmed that the Applicant suffered from depression, as did Dr Nguyen. Together, I consider that these reports satisfy the requirements for a diagnosis of depression in accordance with Table 5. I note that the Respondent, appropriately, accepts that the Applicant’s depression condition was appropriately diagnosed.[26]

    [24] Exhibit 3.

    [25] Exhibit 11, T-Documents, T51, p 292.

    [26] Exhibit 8, Respondent’s SFIC, [51].

24. I find that the Applicant’s depression condition is fully diagnosed. However, it is another question whether it is fully treated in stabilised. Section 6(6) of the Determination explains when a decision-maker can consider a condition to be fully stabilised. To consider when it is fully treated, one must have reference to what treatment has occurred and what treatment is planned.[27]

    [27] The Determination, ss 6(5)(b)-(c).

25. The Respondent contends that although the Applicant’s depression condition may be fully diagnosed, it should not be considered fully treated or stabilised.[28] Crucial to this contention is the report of Dr Sandra Armstrong, writing for the Respondent’s Health Professional Advisory Unit on 23 October 2017.[29] Dr Armstrong noted that the 2015 Royal Australian and New Zealand College of Psychiatrists (“RANZCP”) guidelines indicate that initial treatment for moderate to severe or chronic depression should be a combination of pharmacotherapy and psychotherapy. Second line treatment (i.e. if initial treatment is ineffective in alleviating a person’s symptoms) is indicated to be trialling anti-depressants, preferably with different modes of action. Dr Armstrong relied on the assertion the Applicant had not tried different forms of pharmacotherapy and had not been referred to a psychologist to form the view that the Applicant’s mental health conditions had not been fully treated or stabilised.[30]

    [28] Exhibit 8, Respondent’s SFIC, [51].

    [29] Ibid, [50].

    [30] Exhibit 5, p 15.

26. The impression from Dr Armstrong’s report is that she expected the Applicant to trial every – or nearly every – avenue of treatment before the Applicant’s mental health conditions could be considered fully treated and stabilised. With respect, this misconstrues the test. A condition will be fully stabilised if:

    the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work in the next 2 years[31]

    (emphasis added)

    [31] The Determination, s 6(6)(a).

27. This does not, as Dr Armstrong seemed to consider, mean that most avenues for treatment should be explored before a condition will be considered fully stabilised. Rather, it means that if a person has been undertaking reasonable treatment, their condition will be considered to be fully stabilised unless further treatment is likely to result in sufficiently significant functional improvement that the person will be able to undertake work for 15 hours or more per week (bearing in mind the definition of work in s 94(5) of the Act).

28. It appears that in the time leading up to the relevant period, the Applicant had been treated with Efexor, Endep and Valium, three different forms of pharmacotherapy.[32] This is noted by the Respondent in its SFIC,[33] and supported by a Government-contracted doctor Disability Medical Assessment authored by Dr Edwin Nicoll.[34]

    [32] Exhibit 11, T-Documents, T51, p 292.

    [33] Exhibit 8, Respondent’s SFIC, [45].

    [34] Exhibit 11, T-Documents, T58, p 334.

29. Dr Nguyen has produced a report dated 29 August 2017.[35] This report discloses that the Applicant had been seeing Dr Nguyen approximately monthly since November 2014, and explicitly refers back to the Applicant’s state in the period 4 January 2016 to 4 April 2016 – ten days short of the relevant period.[36] In response to a question put to Dr Nguyen by the Applicant’s representatives (I note that the report is framed around such questions), Dr Nguyen wrote that, although he had suggested a psychiatric review to the Applicant, this was for the purposes of reviewing her medication. Dr Nguyen considered, however, that review by her GP – an option the Applicant took – was also an appropriate review mechanism. Otherwise, Dr Nguyen wrote:

    I do not believe that there would have been a different outcome in [the Applicant]’s mental state [had she undertaken the review] and that the review was unlikely to result in significant improvement in [the Applicant]’s level of impairment within 2 years that would allow her to work more than 5 hours per week.[37]

    [35] Exhibit 3.

    [36] Presumably, the Applicant’s representatives, in referring to 4 January 2016 instead of 14 January 2016, were working from the date the Applicant signed her application, not the date it was lodged.

    [37] Ibid.

30. Dr Nguyen also described the Applicant’s condition as “treatment resistant depression”.[38]

    [38] Ibid.

31. From this evidence, it seems that there are some issues with Dr Armstrong’s conclusions. First, it is apparent that the Applicant did trial several different kinds of medication in the period leading up to her claim for the DSP. This is concordant with the second line treatment plan recommended by the RANZCP. It further undermines the conclusion reached by Dr Armstrong – on whose report the Respondent relied – that the Applicant had not sought sufficiently diverse treatment options.

32. Secondly, it seems that while further treatment by a psychiatrist may have been reasonable treatment for the Applicant to undertake, it seems it may not have resulted in a significant improvement in the Applicant’s condition such as to meet the requirements of s 6(6)(a) of the Determination. Rather, a clinical psychologist who has been consistently treating the Applicant and who has treated her before, during and after the relevant period unequivocally stated that such treatment was unlikely to meet that threshold. I consider that the lengthy practitioner-patient relationship between Dr Nguyen and the Applicant lends weight to Dr Nguyen’s claims. Dr Armstrong appears to have intertwined the treatment received from seeing a psychiatrist with the pharmacological intervention arguments she made. With respect, while there is no doubt that seeing a psychiatrist is reasonable treatment for people with mental health conditions, I am not convinced that a GP could not appropriately oversee pharmacological intervention.

1. Looking to the totality of the evidence before me, I am therefore satisfied that the Applicant’s condition was fully treated and stabilised. While there were other treatment options available to her, the best view of the evidence is that her mental health condition would not improve to the sufficient standard had the counterfactual that she trialled even more different pharmacological interventions and sought care by a psychiatrist been realised. Simply, I accept that the Applicant’s depression is “treatment resistant” as described by Dr Nguyen.

2. Dr Nicoll did not attribute any impairment points to the Applicant’s mental health condition, apparently on the grounds that the Applicant’s mental state was at that time exacerbated by grief over her best friend being diagnosed with a terminal illness.[39] The Respondent has asserted that this meant the Applicant’s condition as not at that time stable.[40] I am not satisfied that it is an appropriate interpretation of the medical evidence on the whole.     Dr Nguyen in a report dated 4 June 2015 described distress over her best friend suffering from a terminal illness being one of a litany of stressors in the Applicant’s life.[41] Dr Nicoll’s report relied on this statement by Dr Nguyen to deny that the Applicant’s mental health condition was fully stabilised. That does not seem to me to be an appropriate interpretation of Dr Nguyen’s report. While there should be little doubt that this had an effect on the Applicant’s mental health condition, I have significant doubts that it should be isolated as a stressor in the manner of Dr Nicoll. Rather, it should be construed as one of a large number of stressors the Applicant struggled to cope with because, using the later words of Dr Nguyen:

   [The Applicant]’s depressed mood is complex and is maintained by ongoing high levels of environmental stress with demands exceeding her personal coping resources, low activity levels, a constricted lifestyle and little positive social interaction and a depressive cognitive style.[42]

   [39] Exhibit 11, T-Documents, T58, p 334.

   [40] Exhibit 8, Respondent’s SFIC, [48].

   [41] Exhibit 11, T-Documents, T50, p 286.

   [42] Exhibit 3.

3. To merely take one element of one of these factors which feed into the Applicant’s mental health condition and say that it is the cause of such an exacerbation that her condition is not fully stabilised is, simply, an inappropriate conclusion given the totality of the other evidence. Further and in any event, the report of Dr Nguyen on which Dr Nicoll relied was written fully six months before the Applicant lodged her application for the DSP and so is of dubious value in ascertaining the precise environmental stressors affecting the Applicant during the relevant period.

4. I therefore find that the Applicant’s mental health condition was fully diagnosed, treated and stabilised in the relevant period. I will now turn to assessing what impairment rating it should be given.

5. To meet a given level of impairment under Table 5, a person must meet most of a list of descriptors. The Respondent contends, correctly in my view, that this means a person must meet more than half of the descriptors.[43] The practical effect of this is that to meet a given level of impairment, four of the six descriptors for that level of impairment must be applicable to her. If they are not, I must defer back to a lower level of impairment.

   [43] Exhibit 8, Respondent’s SFIC, [54], citing the Guide, Instruction 3.6.3.50.

6. For the Applicant to have a severe level of functional impairment sufficient to attract a rating of 20 impairment points, she must have severe difficulties with four of the six following descriptors:

   (a)self care and independent living;

   (b)social/recreational activities and travel;

   (c)interpersonal relationships;

   (d)concentration and task completion;

   (e)behaviour, planning and decision-making;

   (f)work/training capacity.

7. The Applicant contends that she satisfies this test and so should be awarded 20 impairment points.[44] This contention is reliant upon Dr Nguyen’s report of 29 August 2017, with particular attention being drawn to the following points, recorded by Dr Nguyen:

   ·The Applicant both requires and receives visits 2-3 times per week for support for daily living activities. The Applicant conceded, however, that some of the support was for the Applicant’s spinal function impairments.

   ·The Applicant undertakes limited social and recreational activities, only travelling when accompanied by friends or family.

   ·The Applicant is socially withdrawn and does not mix with people due to trust issues.

   ·The Applicant struggles to concentrate on complex tasks for more than 30 minutes.

   ·The Applicant is unable to work more than 10 hours per week, or to attend work education or training on a regular basis over a long period of time due to her mental health condition and physical limits.

   [44] Exhibit 1, Applicant’s SFIC, [37].

8. With respect, I struggle to see how these points substantiate an impairment rating of 20 points for this condition. I note that the Applicant has not sought to make submissions on descriptor (e), relating to the Applicant’s behaviour, planning and decision-making. This seems appropriate – the evidence simply does not disclose issues with the Applicant’s decision-making.

9. As a guide to the level of functional impact on an applicant’s concentration and task completion necessary to satisfy descriptor (d), the Applicant would have to have, for instance, “difficulty concentrating on any task or conversation for more than 10 minutes”. However, the Applicant only contends that she struggles to concentrate on complex tasks for more than 30 minutes. This plainly does not meet the required threshold for descriptor (d).

10. With respect to descriptor (f), the Impairment Table indicates that for an applicant to have severe difficulties with their work/training capacity, as an example, they would be “unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.” It appears that ‘attending work’ as envisaged by this example is distinct from “work” for 15 hours or more per week as defined by the Act. Consequently, while the Applicant’s mental health condition may impact on her ability to concentrate and thus to undertake work responsibilities, that does not mean she satisfies this factor. As noted by the Respondent, the Applicant was rated “V good” by her employer in relation to complaints and absences from duty.[45] This does not mesh with the notion that she may not have been unable to attend work or training on a regular basis over a long period of time. Accordingly, it does not appear that her employment has a severe impact on her work/training capacity.

    [45] Exhibit 8, Respondent’s SFIC, [58]. See also Exhibit 5.

11. As the Applicant does not satisfy three of the factors necessary for her to be granted 20 impairment points, I cannot find that 20 points should be awarded for this condition. I will now turn to determining whether 10 points is a more appropriate rating. I note at the outset that the Respondent submitted that this is the maximum impairment rating that the Applicant may satisfy.[46]

    [46] Exhibit 8, Respondent’s SFIC, [60].

12. Under Table 5, to attain an impairment rating of 10, a person must have moderate difficulties with most of the following:

    (a)self care and independent living;

    (b)social/recreational activities and travel;

    (c)interpersonal relationships;

    (d)concentration and task completion;

    (e)behaviour, planning and decision-making;

    (f)work/training capacity.

13. The gulf between impairment ratings of 10 and 20 is that between a “moderate” and a “severe impairment”: significant. While the Applicant did not submit that this was the appropriate impairment rating, it appears that the evidence supports this rating over the higher rating.

14. While it cannot be said that the Applicant needs at least two days’ support a week for self care and independent living solely arising from her mental health condition, it is readily apparent that she needs at least some support arising from this condition. She thus plainly meets the threshold for descriptor (a) at a 10 impairment point level.

15. The evidence of Dr Nguyen is that the Applicant “has limited social and recreational activities. [The Applicant] only travels when accompanied by friend [sic] or family”.[47] Example 2 for descriptor (b) in the 10 point range is that “The person will often refuse to travel alone to unfamiliar environments”. The best evidence, then, is that the Applicant meets the qualification for this descriptor, too.

    [47] Exhibit 3.

16. With respect to descriptor (c), the example given is that “The person has difficulty making and keeping friends or sustaining relationships”. Dr Nguyen indicates that the Applicant “is socially withdrawn and does not mix with people due to trust issues”.[48] While this does not fit squarely with the example given for the descriptor, Dr Nguyen was referred to the descriptors contained in Table 5 and classified the Applicant’s mental health condition as having a “Severe Functional Impact” on her interpersonal relationships. On the balance of Dr Nguyen’s report, I consider that the Applicant does meet the requirements of this descriptor.

    [48] Ibid.

17. Turning to descriptor (d), Dr Nguyen said the Applicant “would find it difficult to concentrate on complex tasks for more than 30 mins”.[49] Clearly, this falls within the ambit of descriptor (d). Consequently, I find that the Applicant meets it.’

    [49] Ibid.

18. Dr Nguyen also said that the Applicant “has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).”[50] This fits squarely within Example 2 of descriptor (e). I therefore find that the Applicant’s condition satisfies this descriptor, too.

    [50] Ibid.

19. Finally, with respect to descriptor (f), Dr Nguyen thought that the Applicant’s condition had a “Severe Functional Impact”.[51] However, that does not square with the evidence from the Applicant’s employer. As noted above, the Applicant’s employer seems to be very satisfied with her ability to undertake her role, and her performance in the role.[52] In these circumstances, and where the Applicant does not appear to have either spent much time absent from work or had difficulties with co-workers, I cannot find that this descriptor applies to the Applicant.

    [51] Ibid.

    [52] Exhibit 5.

20. In consideration of the above, it is apparent that five of the six descriptors at a 10 point level in Table 5 apply to the Applicant. Consequently, I am satisfied that 10 impairment points can be attributed to her mental health condition. I will now turn to the Applicant’s other conditions.

    Condition 2 – Lumbar and Cervical Spine Conditions

21. The Respondent accepts that the Applicant’s lumbar and cervical spine conditions are fully diagnosed, treated and stabilised.[53] To my mind, this concession is wholly appropriate – the Applicant’s spine conditions are plainly fully diagnosed, treated and stabilised.

    [53] Exhibit 8, Respondent’s SFIC, [61].

22. The question, then, regarding these conditions is how many impairment points should be attributed to them. This question must be answered with reference to Impairment Table 4, which relates to Spinal Function. The Applicant contends her spinal function attracts 20 impairment points and thus has “a severe functional impact”.[54] Table 4 indicates that a spinal condition will have a severe functional impact if one of the following criteria is met:

    1The 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.

    [54] Exhibit 1, Applicant’s SFIC, [35].

23. Importantly, these criteria run in the alternative; for her condition to attract 20 impairment points, the Applicant must satisfy the Tribunal she is unable to perform any one of the four listed activities. As the Introduction to Table 4 indicates, any self-reported symptoms are insufficient for an applicant to show that they satisfy the criteria in the table. Rather, corroborating evidence – particularly from a doctor or other medical practitioner – is necessary.

24. The Respondent contends that the Applicant’s conditions only warrant an impairment rating of 10 points. For such a rating to be awarded, Table 4 requires the following conditions be met:

    1The 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).

25. The main contention of the Applicant with respect to this condition is that she is unable to sit for more than 10 minutes.[55] In support of this contention, she primarily relies on the report of Dr Nguyen of 29 August 2017, where he said that the Applicant “was unable to remain seated for the entire session and had to shift every 10mins”, and that she “had to move, shift and stood up every 10mins due to pain” in their counselling sessions during the relevant period.[56] This is corroborated by a report of Dr Chan, the Applicant’s treating GP, which described the Applicant’s back condition as attracting 20 points as she is “unable to remain seated for 10 mins”.[57]

    [55] Ibid, [32(a)].

    [56] Exhibit 3.

    [57] Exhibit 11, T-Documents, T55, p 308.

26. The Applicant made particular reference to the Guidelines to Table 4, which state:

    When determining whether the person is able to undertake the activities listed under the descriptors, consideration must be given to whether the person suffers pain on undertaking the activities. For example, under the 20-point descriptor, if a person is able to remain seated for 10 minutes but suffers significant pain on doing so, it should be considered that the person is therefore unable to remain seated for at least 10 minutes.[58]

    [58] Guidelines, Instruction 3.6.3.40, p 57.

27. Relying on this, the Applicant contends that although she may at times be required to sit for longer than 10 minutes – particularly when working as a bus driver – she will be in significant pain when she does so, and needs to get out of the bus and stretch at each stop.[59]

    [59] Exhibit 1, [34]; see also Exhibit 11, T-Documents, p 8.

28. Conversely, the Respondent contends that the Applicant’s job as a bus driver can involve driving times of more than 10 minutes between stops, regardless of whether the Applicant in fact gets out and stretches at each stop.[60] Further, it argues that the Applicant’s evidence – given at the AAT1 hearing – is that she can sit for up to 30 minutes if she rests on her left buttock and moves around.[61]

    [60] Exhibit 8, Respondent’s SFIC, [66]. See also Attachment B to Respondent’s SFIC.

    [61] Ibid, [65].

29. It is evident from the Guidelines to Table 4 that the word “unable” does not fully take on its dictionary definition; if it is physically possible for a person to do something, but undertaking that activity causes them “significant pain”, then they should be considered unable to perform that activity. This is important for present purposes because it appears that the Applicant is physically able to remain seated for at least 10 minutes. However, the fact she has to shift her weight or position and has to get up and stretch after remaining seated for that period – evidence that is corroborated by both her treating GP and psychiatrist – indicates that she is in significant pain after sitting for that long. I am therefore satisfied that her condition meets descriptor (d) for the 20 point impairment rating. I thus find that she should be granted 20 impairment points for this condition.

    Other Conditions

30. The Applicant accepts that the majority of her other conditions, as listed on her application form, are not fully diagnosed, treated or stabilised.[62] She does, however, still contend that she suffers from Chronic Obstructive Airway Disease.[63] The Applicant relies on a report of Dr Nicoll, which considered that this condition ought to attract 10 impairment points,[64] and another report of Dr Chan, which reported that she suffered from shortness of breath on exertion.[65] Importantly, Dr Nicoll noted that the Applicant’s respiratory disease shared a functional impact with her morbid obesity. This view was supported by Dr Armstrong.[66]

    [62] Exhibit 1, Applicant’s SFIC, [28].

    [63] Ibid, [30].

    [64] Exhibit 11, T-Documents, T58, p 333.

    [65] Ibid T56, p 321.

    [66] Exhibit 5, p 16.

31. My trouble with this condition is that, while there is some evidence that the Applicant has received some treatment for her respiratory condition, (1) Dr Chan has been inconsistent in describing it as Chronic Obstructive Airway Disease and asthma, so no clear diagnosis is forthcoming; and (2) as noted by Dr Nicoll and Dr Armstrong, her obesity may play a significant role in the functional effect of her respiratory condition, and has not been fully diagnosed, treated or stabilised, so in any event the functional impact of this condition is unclear. Accordingly, I do not find that this condition is fully diagnosed, treated and stabilised. It follows that no impairment points can be assigned to it.

    Summary of Impairment Points

    
    
    

Condition	Table	Points Assigned
Depression	Table 5 – Mental Health Function	10
Lumbar and Cervical Spine Conditions	Table 4 – Spinal Function	20
Other Conditions	Various Tables	Not fully diagnosed, treated or stabilised
Total Points =		30

1. As the Applicant has a total of more than 20 impairment points under the Tables, she satisfies the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). I must thus now turn to whether she has a continuing inability to work.

   Continuing Inability to Work?

2. As the Applicant has a single impairment which attracts a rating of 20 impairment points, I must now turn to addressing whether she has a continuing inability to work. This question must be determined with reference to s 94(2) of the Act, which relevantly reads:

   2A 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)… 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.

3. Importantly, “work” is defined in s 94(5) to be:

   "work " means work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person's locally accessible labour market.

4. A “severe impairment” is defined in s 94(3B) as one which attracts a rating of 20 impairment points or more under a single Impairment Table. Thus, as the Applicant’s spinal conditions attract 20 impairment points, s 94(2)(aa) is not relevant for present purposes. The question is then twofold: whether the Applicant’s impairments, alone, are sufficient to prevent her from undertaking “work” for at least 15 hours per week independently of a program of support during the 2 years from the relevant period; and if the Applicant’s impairment either prevents her from undertaking a training activity, or is such that she is unable to do any work independent of a program of support within the next 2 years.

1. In the consideration of either factor, it is important to isolate the effect of the impairments which were fully diagnosed, treated and stabilised during the relevant period, rather than the whole gamut of the conditions an applicant claims to suffer.[67]

   [67] See Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500.

2. The Applicant claims she is presently working at maximum capacity – her spinal condition prevents her from working 15 hours or more per week. Conversely, the Respondent relies on two JCA reports to assert that the Applicant’s capacity for work is 15-22 hours per week with intervention.[68] The Respondent seems to further contend that the Applicant was in the relevant period working and capable of working 15-22 hours per week as a bus driver.[69] Indeed, Dr Armstrong, on whom the Respondent also relied, seems to have based her conclusion that the Applicant was capable of working 15 hours or more per week on a factual finding that the Applicant had in fact been working for 15 hours or more per week.[70]

   [68] Exhibit 8, Respondent’s SFIC, [91]-[92].

   [69] Ibid, [92].

   [70] Exhibit 5, p 17.

3. I note at the outset that the Applicant kept detailed logs of the time she spent driving for work, with her hours totalling under two hours per day. This is supported by a letter from her employer, who stated that the Applicant “works only two hours per day in her role as a driver on a bus that transports disabled students.”[71] While these documents are from after the relevant period, the evidence from the Applicant is that her hours and route have remained consistent for several years. Although it is clear that the Applicant’s responsibilities included more than simply driving the bus, her logs evidently include the time it took her passengers to embark and disembark from the bus; unless she only picked up one student, the fact her times are not itemised indicates that those times refer to the entire time she was driving, which I take to include the pickup and dropoff periods.[72] I therefore find that the Applicant was in fact working around 10 hours per week during the relevant period. The contention that she was working for longer periods than that is misplaced.

   [71] Exhibit 4.

   [72] Exhibit 4.

4. The next question is whether the Applicant’s accepted impairments alone are sufficient to prevent the Applicant from working for 15 hours or more per week independently of a program of support. I find that they are. As will be discussed in more detail below, successive JCAs found that the Applicant was at each point in time only capable of working 8-14 hours per week.[73] The rationale for these ratings was that the Applicant had a reduced range of movement, significant mobility difficulties, endurance limitations, pain, and concentration and fatigue issues.[74] This appears to be the correct view of the evidence. I am therefore satisfied that the Applicant’s impairments by themselves are sufficient to prevent her from undertaking work of 15 hours or more per week in the next two years without intervention.

   [73] See Exhibit 11, T-Documents, T, T8, p 104; T9, p 113; T13, p 168.

   [74] Ibid.

5. The final hurdle the Applicant must overcome in order to be successful in her claim is to determine whether the Applicant’s impairment is enough to prevent her from undertaking a program of support in the next two years, or that a program of support is unlikely, because of the Applicant’s conditions, to enable her to work for 15 hours or more per week in the next two years, independent of a program of support.

6. I cannot find that the Applicant’s impairments are enough to prevent her from undertaking a program of support for the simple reason that she was participating in a program of support in the time leading up to her claim for the DSP. In fact, putting to one side her claiming DSP exceptions and periods of temporary medical incapacity, she participated in a program of support for 404 days in the period 25 July 2013 to 13 January 2016 (the day immediately preceding the lodging of her claim for the DSP).[75] It is self-evident that her impairments did not prevent her from participating in a program of support.

   [75] Ibid, T19, p 206.

7. It is another question entirely whether a program of support is unlikely to enable the Applicant to work for 15 hours or more per week in the next two years, independent of a program of support. In the period 4 July 2014 to 27 April 2016, the Applicant was the subject of some five JCA reports. Their summaries of the Applicant’s capacity for work are as follows:

   ·4 July 2014:

   oBaseline work capacity: 15-22 hours per week.

   oCapacity for work within 2 years with intervention: 15-22 hours per week.[76]

   [76] Ibid, T6, pp 90-91.

   ·26 September 2014:

   oBaseline work capacity: 15-22 hours per week.

   oCapacity for work within 2 years with intervention: 15-22 hours per week.[77]

   [77] Ibid, T7, p 98.

   ·6 February 2015:

   oBaseline work capacity: 8-14 hours per week.

   oCapacity for work within 2 years with intervention: 15-22 hours per week.[78]

   [78] Ibid, T8, p 104.

   ·27 March 2015:

   oBaseline work capacity: 8-14 hours per week.

   oCapacity for work within 2 years with intervention: 15-22 hours per week.[79]

   ·27 April 2016:

   oBaseline work capacity: 8-14 hours per week.

   oCapacity for work within 2 years with intervention: 15-22 hours per week.[80]

   [79] Ibid, T9, p 113.

   [80] Ibid, T13, p 168.

8. During the entirety of this period, the Applicant was participating in a program of support or validly exempted from doing so. Nevertheless, her baseline work capacity was assessed as decreasing between 26 September 2014 and 6 February 2015. During that time, she was participating in a program of support for all but a single day, where she was exempted from participating because she was claiming the DSP. Indeed, she had been participating in a program of support for some 195 days, yet her baseline work capacity actually decreased. However, her capacity for work within 2 years with intervention was assessed as remaining the same as “With disability services specific intervention work capacity may increase”.[81] This is substantially more equivocal than the rationale provided for the assessment made on 26 September 2014, which was that “With Disability services specific intervention work capacity is expected to increase or remain stable”.[82]

   [81] Ibid, T8, p 104 (emphasis added).

   [82] Ibid, T7, p 98.

9. Clearly, the Applicant’s work capacity neither increased, nor remained stable between those two JCA reports. Rather, it decreased in spite of the fact the Applicant continued to participate in the program of support. The Applicant continued to participate in the program of support for another 209 days before lodging her claim for the DSP, yet her baseline work capacity – excluding any temporary impacts – remained stagnant.

10. Curiously, the JCA who authored the 27 April 2016 JCA report opined that “With support in maintaining functional levels work capacity will remain stable”, despite classifying the Applicant’s capacity for work within 2 years with intervention as being higher than her then-present baseline work capacity.[83] As the JCA mentioned the Applicant’s work capacity being 8-14 hours in the very same rationale where they mentioned that work capacity will remain stable, and this was the rationale for her capacity within 2 years with intervention being 15-22 hours per week, it seems plain that the JCA made an error.

    [83] Ibid, T13, p 168.

11. The upshot of all of this is twofold. First, the Applicant’s baseline work capacity actually decreased while she was undertaking her program of support – it did nothing to improve her baseline work capacity. Secondly, putting the evidence favouring the Respondent’s view at its highest, the JCAs’ views of the Applicant’s prognosis with support grew increasingly equivocal over time. When read together, these effects lead me to the conclusion that the Applicant would not benefit from continuing to participate in a program of support. Rather, it seems that her capacity for work is, and will continue to be, of the levels at which she is currently working: around 10 hours per week.

12. For completeness, I will again make reference to the report of Dr Armstrong, on which the Respondent relied in part in support of its contention that the Applicant was capable of working 15 or more hours per week. Quite simply, Dr Armstrong’s conclusions were based on flawed assumptions and findings, as I have discussed above. I therefore cannot find that this is a reason for me to find that the Applicant does not satisfy the criteria contained in s 94(2) of the Act.

13. Consequently, I find that the Applicant satisfied the criteria of s 94(2) of the Act.

    CONCLUSION

14. The Applicant has a number of physical and mental impairments which, when taken together, attract an impairment rating of 30, which is comprised of 10 points for her mental health condition and 20 points for her spinal conditions. As she has 20 points under one table, she has a “severe impairment” within the meaning of s 94(3B) of the Act. Thus, s 94(2)(aa) is not relevant in this case. I have found that the Applicant does, however, meet the remaining requirements to be considered to have a continuing inability to work, as described in s 94(2) of the Act. Consequently, as the Applicant has an impairment, it is of 20 points or more under the Impairment Tables, and she has a continuing inability to work, I am satisfied that she qualified for the DSP at the date on which she lodged her application for it.

15. Accordingly, the decision under review is set aside and substituted with the decision that the Applicant qualified for the DSP on 14 January 2016, that being the date on which she lodged her claim.

I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..................[sgd]......................................................

Associate

Dated: 9 July 2018

Date of hearing:	17 November 2017
Counsel for the Applicant:	Mr Matthew Taylor
Solicitors for the Applicant:	Legal Aid Queensland
Advocate for the Respondent:	Ms Maleah Underhill
Solicitors for the Respondent:	Department of Human Services