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

Cooke and Secretary, Department of Social Services (Social services second review) [2021] AATA 1095 (30 April 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0851
Re:Laurence Cooke
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:30 April 2021
Place:Sydney

The Reviewable Decision dated 31 January 2020 is affirmed.
............................[sgd]...........................................
Senior Member Linda Kirk
Senior Member Linda Kirk
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – whether applicant’s mental health conditions were fully diagnosed, treated and stabilised during qualification period – whether applicant’s impairments attracted a total rating of 20 points under the Impairment Tables – where applicant’s diagnosis was not made by psychiatrist or appropriately qualified medical practitioner with evidence from a clinical psychologist – decision under review affirmed.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Secondary Materials
Macquarie Dictionary (online)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Linda Kirk
30 April 2021

Mr Laurence Cooke (‘the Applicant’) suffers from a number of medical conditions which he claims make it difficult for him to work, or to look for work.
On 7 March 2019, the Applicant applied for the Disability Support Pension (‘DSP’) in respect of two mental health conditions, Bipolar Disorder and Borderline Personality Disorder (‘the mental health conditions’).[1]
[1] T-Documents, T9, 121.
On 11 May 2019 the Applicant was notified that his application had been rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’). On 30 October 2019 the Applicant requested a review of the decision and provided further medical evidence.
On 13 November 2019, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that the Applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).[2]
[2] T-Documents, T16, 137-140
On 25 November 2019, the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (‘SSCSD’) for review of the ARO decision.[3]
[3] T-Documents, T17, 143-145.
In a decision dated 31 January 2020, the SSCSD affirmed the decision of the ARO refusing the Applicant’s claim for DSP as he did not satisfy section 94(1)(b) of the Act (‘the Reviewable Decision’).[4]
[4] T-Documents, T2, 5-9.
On 14 February 2020, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.
The matter was heard at a hearing of the Tribunal in Canberra on 15 February 2021. The Applicant attended the hearing by video-conference and was self-represented.
ISSUES AND LEGISLATION
The issue before the Tribunal is whether the Applicant qualified for DSP at the relevant time.
Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for DSP, the Applicant must satisfy the requirements of section 94 of the Act as at the date he made his claim, 7 March 2019, or within 13 weeks of lodging the claim, that is between 7 March 2019 and 6 June 2019 (‘the qualification period’).
Section 94(1) of the Act provides that a person qualifies for the DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work…
The Respondent concedes and the Tribunal accepts that during the qualification period the Applicant suffered medical conditions that caused impairment, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for DSP.
It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, the Applicant had:
·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and
·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).
Impairment Tables
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms, and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.[5]
[5] T-Documents, T3.
The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.
The Introduction to Impairment Table 5 – Mental Health (‘Table 5’) states that the diagnosis of a mental health condition must be made by either a psychiatrist, or by an appropriately qualified medical practitioner with evidence from a clinical psychologist.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.’
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of the Impairment Tables, provides that a condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised; and
(d)is more likely than not to persist for more than two years.
In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:
(a)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:
(c)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
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing.[6]
[6] Macquarie Dictionary (online at 29 April 2021) ‘undertake’
Reasonable treatment is defined in section 6(7) of the Impairment Tables as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
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.
EVIDENCE BEFORE THE TRIBUNAL
Medical evidence
The medical practitioners that the Applicant has consulted in relation to his mental conditions are Dr Philip Verghese, Ms Ghizala Jafri, and Dr Rashid Ali.
Dr Philip Verghese
In a Mental Health Plan dated 22 February 2019, Dr Philip Verghese noted that the Applicant had “Multiple stressors. Bipolar and borderline PD”.[7] Dr Verghese is a general practitioner, and he is not qualified or registered to practice as either a psychiatrist or clinical psychologist.[8]
Dr Rashid Ali
[7] T-Documents, T8, 88
[8] Supplementary T-Documents, ST3, 189
In his report of 14 March 2019, Dr Rashid Ali lists his title as “Senior Medical Officer Psychiatry (non-Specialist)”.[9] In his report of 29 June 2019 he provides a title of “Senior Medical Officer Psychiatry”.[10] Dr Ali provided a document, dated 24 August 2020, which details his qualifications. He wrote, “my primary qualification is MBBS… I have 25 years’ experience in Psychiatry”. He completed “college of Psychiatrist (RANZCP formal training program in 2004, however due to some personal reason I did not do final exams to gain fellowship”.[11]Dr Ali’s Australian Health Practitioner Regulation Agency (‘AHPRA’) registration states that he ‘must practice only in the field of Mental Health and ATODS at a non-specialist level’.[12]
[9] T-Documents, T18, 146
[10] T-Documents, T13, 133
[11] Supplementary T-Documents, ST1, 186
[12] Supplementary T-Documents, ST5, 191
In his report dated 14 March 2019, Dr Ali stated that the Applicant’s diagnosis is “Bipolar Disorder”.[13] In a further medical report dated 29 June 2019, he stated that the Applicant had a diagnosis of “Bipolar Disorder”.[14] Dr Ali notes that, as at 14 March 2019, the Applicant’s psychiatric treatment for his Bipolar Disorder is “Epilim, Seroqeul”.[15] At 29 June 2019, Dr Ali states the Applicant’s psychiatric treatment is “Epilim 1500 mg twice a day, Seroquel XR 200 mg at 7 pm, Lithium 500 mg twice a day, Propranolol 40 mg mane”.[16] The Applicant’s Pharmaceutical Benefits summary shows that the Applicant filled scripts for these medications before and during the qualification period.[17]
[13] T-Documents, T18, 146
[14] T-Documents, T13, 133
[15] T-Documents, T18, 146
[16] T-Documents, T13, 133
[17] Supplementary T-Documents, ST6, 192-195
On 14 March 2019, Dr Ali wrote a letter to “Centreline (sic)”, noting the following impairments experienced by the Applicant:[18]
·Can become angry and irritable easily.
·Struggle to be around people.
·Low motivation to do house chores.
·Can have high anxiety in social situations.
[18] T-Documents, T18, 146
On 26 June 2019, Dr Ali wrote another report to “Centreline (sic)” about the Applicant’s disability. Dr Ali noted the following impairments experienced by the Applicant:[19]
[19] T-Documents, T13, 133
·Can become angry and irritable easily. Struggle to be around people.
·Low motivation to do house chores.
·Can have high anxiety in social situations.
·Poor concentration.
·Difficult to complete tasks.
·Poor stress tolerance.
·Can get stressed in crowded place.
·Difficulty planning and decision making.
·Avoid driving certain places. Only drives to familiar places.
·Isolated and limited social contacts and interaction.
·He is not fit to attend any work, education or training on a regular basis over a long period due to his life long term mental illness.
On 27 August 2020, Dr Ali provided a further report as to the functional impairments experienced by the Applicant as a result of his Bipolar Disorder:[20]
·Laurence is capable of taking care of himself and hydyne (sic) however he lacks motivation to would need [sic] encouragement to do other housework and at times needs encouragements to have proper meals or do exercise.
·Laurence has difficulties socializing with people or to attend shopping centre and other places where there are many people around him. He would gat (sic) agitated and verbally aggressive to others with minor triggers in those places. He can travel on his own however company with family members makes him less anxious and gitated (sic). He would have difficulty using public transport.
·Laurence has difficulty making friends. He (sic) can become irritable and angry with family members when he is upset. He has low stress tolerance and difficulties dealing with his children when they are having difficult behaviour.
·Laurence has poor concentration and difficulty focusing on a task for a longer period. He would get frustrated easily.
·Laurence (sic) behaviour can fluctuate time to time depending on circumstances. He would get upset and irritable in interaction with his children and strangers in public places with minor interruptions. He would become very anxious and can become depressed Laurence lakes (sic) capacity to make decisions on his own. He lacks ability to plan a meaningful activity.
·Laurence has Bipolar affective Disorder and has poor concentration and poor ability to start or finish tasks and has difficult mixing with people.
·This would make him unable to work with other people. If employed the stress of work would make his mental state effected and he would be prone to become anxius (sic) and also go in depression. Due to poor inter-personal interaction and communication and tend to become verbally aggressive when he is upset would make him unable to attend any teaching or to attend work.
Ms Ghizala Jafri
[20] Supplementary T-Documents, ST2, 187-188
Ms Ghizala Jafri (psychologist), in a letter dated 19 March 2019, wrote that the Applicant has a “Working Diagnosis: Bipolar and Borderline Personality Disorder”.[21] Ms Jafri is a registered psychologist, not a clinical psychologist.[22]
[21] T-Documents, T10, 128
[22] Supplementary T-Documents, ST4, 190
CONSIDERATION AND REASONS
The first issue for determination by the Tribunal is whether the mental health conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
Which of the mental health conditions can be given an impairment rating?
Are the conditions fully diagnosed?
The Introduction to Table 5 states that the diagnosis of a mental health condition must be made by either a psychiatrist, or by an appropriately qualified medical practitioner with evidence from a clinical psychologist.[23]
[23] T-Documents, T3, 38.
With respect to the Applicant’s mental health conditions, the Respondent contends that these were not fully diagnosed, as there is no evidence of diagnosis by a psychiatrist or clinical psychologist, which is mandatory before any rating can be considered under Table 5.
Dr Verghese is a general practitioner and he is not qualified or registered to practice as either a psychiatrist or clinical psychologist.[24] Consequently, the Tribunal cannot be satisfied that Dr Verghese’s medical opinion establishes that the Applicant’s mental health conditions were appropriately diagnosed during the qualification period, as per the requirements of Table 5.
[24] Supplementary T-Documents, ST3, 189
Dr Ali’s own evidence of his lack of psychiatric qualifications, together with his AHPRA registration restrictions to practice in mental health as a “non-specialist”, demonstrate he was not qualified to diagnose the Applicant’s mental health conditions as required by Table 5.
Ms Jafri is a registered psychologist, not a clinical psychologist. For this reason, the Tribunal cannot be satisfied that Ms Jafri can diagnose the Applicant’s mental health conditions, as per the requirements of Table 5.
In his oral evidence to the Tribunal, the Applicant acknowledged that his mental health care professionals, Dr Ali and Ms Jafri, are not psychiatrists or otherwise appropriately qualified as required by Table 5.
On the basis of the evidence before it, specifically the fact that none of the Applicant’s medical specialists hold the requisite qualifications prescribed in the Introduction to Table 5 to make a diagnosis of his conditions, the Tribunal must find that the Applicant’s mental health conditions were not fully diagnosed and therefore a permanent condition, during the qualification period.
As the Applicant’s mental health conditions were not fully diagnosed and therefore were not permanent during the qualification period, no impairment rating can be assigned to these conditions under Table 5.
CONCLUSION
As the Tribunal cannot be satisfied that, during the qualification period, the Applicant suffered from impairments attracting a total rating of 20 points under the Impairment Tables necessary to establish eligibility for DSP, it finds that the Applicant was not qualified for DSP during the qualification period.
As the Applicant’s mental health conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.
The Tribunal’s decision does not mean that the Applicant’s symptoms are not real, genuine or disabling, rather that the applicable legislative criteria have not been met.
The Tribunal’s decision does not prevent the Applicant from making a new claim for DSP once the necessary investigations and treatment are complete and certified by those who are managing his mental health conditions and who meet the requisite qualifications specified in the Introduction to Table 5.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

.......................[sgd].................................................
Associate
Dated: 30 April 2021

Date(s) of hearing:

15 February 2021

Date final submissions received:

6 October 2020

Applicant:

By Microsoft Teams

Solicitor for Respondent:

Allan Quanchi, Services Australia

[2021] AATA 1095

30 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	15 February 2021
Date final submissions received:	6 October 2020
Applicant:	By Microsoft Teams
Solicitor for Respondent:	Allan Quanchi, Services Australia