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

Cooper and Secretary, Department of Social Services (Social services second review) [2019] AATA 4188 (11 October 2019)
Division:GENERAL DIVISION
File Number: 2019/0294
Re:Helen Cooper
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:11 October 2019
Place:Brisbane

The Tribunal affirms the decision under review.
............................[SGD]..........................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
11 October 2019
INTRODUCTION

On 14 December 2017, Ms Helen Cooper (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T35, pages 193-223, DSP claim form.
The claim was rejected on 21 December 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the                 Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 2 August 2018.[3]
[2]     Exhibit 1, T Documents, T37, pages 230-231, Letter: Rejection of DSP claim.
[3]     Exhibit 1, T Documents, T45, pages 258-263, ARO Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 5 December 2018.[4]
[4] Exhibit 1, T Documents, T2, pages 3-10, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 17 January 2019.[5]
[5] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 19 September 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s DSP claim form[6] she lists the following disabilities, illnesses or injuries:[7]
lddm (Insulin Dependent Diabetes Mellitus) (poor control over 10% blood sugar level), Right Pituitary Microadenoma, Anxiety — Depression, Amenorrhoea — Secondary, Prolactinoma — (Cabergoline Tablets), COPD Lung Disease        (8mm right pneumothorax due to previous granulomatous infection), Asthma, Menopausal symptoms — severe hot flushes, Brest fine needle aspirations, Breast systs (sic) removal (persistent), leg vein removal (ongoing), Gastro-oesophageal reflux (GOR), persisting endocervical present (low grad squamous), 6x3mm tear right elbow, tear left elbow & finger joints, ongoing treatment for urine infections, under weight — weight loss, 1 points off being osteoporosis, piles rectum.
[6]     Exhibit 1, T Documents, T35, pages 193-223, DSP claim form.
[7]     Exhibit 1, T Documents, T35, page 219, DSP claim form.
On 21 December 2017, the Applicant’s claim for DSP was rejected on the basis that she did not have an impairment rating of 20 points or more.[8]
[8] Exhibit 1, T Documents, T37, pages 230-231, Letter: Rejection of DSP claim.
On 6 July 2018, the Applicant attended a telephone assessment with a Job Capacity Assessor (JCA).[9] The Assessor, whose professional discipline is listed as physiotherapist, with the contribution of an Assessor whose professional discipline is listed as a registered psychologist, provided a report[10] recommending the following:[11]
(a)The Applicant’s Diabetes (Insulin Dependent) was fully diagnosed, treated and stabilised (FDTS) and caused a moderate functional impact on activities involving physical exertion and stamina (10 points under Table 1);
(b)The Applicant’s Anxiety was fully diagnosed but not fully treated and stabilised;
(c)The Applicant’s Pituitary Micro adenoma and Chronic Obstructive Airways Disease (COAD) were both FDTS but were not assigned any additional points under Table 1 as the functional impacts of these conditions had already been considered in the impairment rating assigned for the impact of the Diabetes; and
(d)The Applicant had a baseline work capacity of 8-14 hours per week, which was expected to increase to 15-22 hours per week within 2 years with access to optimal medical treatment and disability specific intervention.
[9]     Exhibit 1, T Documents, T42, page 244, JCA Report.
[10]    Exhibit 1, T Documents, T42, pages 243-251, JCA Report.
[11]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 2, paragraph 6.
The Applicant provided further medical reports and sought review of this decision. On 2 August 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[12]
·You have the following permanent conditions: insulin dependent diabetes (type 1), pituitary microadenoma with raised prolactin levels and chronic obstructive pulmonary disease (COPD).
·Your conditions of anxiety and depression are not fully treated and stabilised.
·There was insufficient medical evidence about your amenorrhea, prolactinoma, menopausal symptoms, reflux, under-weight, urine infections, piles and tears in both elbows and finger joints to be assessed for your Disability Support Pension claim.
·You have an impairment rating of 10 points.
·You do not have an impairment rating of 20 points or more.
[12] Exhibit 1, T Documents, T45, page 258-263, ARO Decision and Notes.
On 17 August 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[13] On 5 December 2018, the SSCSD affirmed the decision under review.[14]
[13] Exhibit 1, T Documents, T47, page 266, Application to the SSCSD.
[14] Exhibit 1, T Documents, T2, pages 3-10, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[15]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and
3.Does the Applicant have a continuing inability to work?[17]
[15]    Section 94(1)(a) of the Act.
[16]    Section 94(1)(b) of the Act.
[17]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[20]
[18]    Section 6(1) of the Determination.
[19]    Section 6(2) of the Determination.
[20]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: 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 2 years.[21]
[21] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[22]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[22] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must 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 planned in the next 2 years.[23]
[23] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[24]
(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.
[24] Section 6(6) of the Determination.
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.[25]
[25] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[26] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[28]
[26]    Section 10 of the Determination.
[27]    Sections 10(3) and (4) of the Determination.
[28]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[29]
[29] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[30]
[30] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a 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.[31]
[31] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[32]
[32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 14 December 2017, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 15 March 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[33] and the Respondent considers the Applicant’s impairments include diabetes, COPD, pituitary micro adenoma,[34] anxiety and depression,[35] cognitive impairment[36] and other conditions (including amenorrhea, prolactinoma, menopausal symptoms, reflux, under-weight, urine infections, piles and tears in her elbows and finger joints).[37]
[33]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 39.
[34]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 43-46.
[35]   Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-11, paragraphs 47-52.
[36]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 53-55.
[37]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 56-58.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. The Applicant brought a friend to the hearing as a support person. I consider that the Applicant was open with her answers to the questions she was asked and was forth coming in providing her evidence. I accept that the Applicant suffers impairments and that sometimes she may overstate her true functional ability.
After discussing the available evidence in relation to the Applicant’s cognitive impairment and other conditions, she told the Tribunal that she agreed that they could not be considered fully diagnosed, fully treated and fully stabilised at the Relevant Period as she was still following up on them. She agreed there was very little evidence before the Tribunal in relation to these conditions. The Respondent agreed.
Consequently, based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s cognitive impairment and other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s remaining conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[38] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[39] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[40] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[41]
[38]    Section 6(3) of the Determination.
[39]    Section 6(4) of the Determination.
[40]    Section 6(2) of the Determination.
[41]    Section 8(1) of the Determination.
Diabetes, COPD and pituitary micro adenoma conditions
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s diabetes (Insulin-dependent – type 1), Chronic Obstructive Pulmonary Disease (COPD) and pituitary micro adenoma (brain tumour) were fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating under the Impairment Tables. This point is not in contention.[42]
[42] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 43.
The Respondent contends that the Applicant’s diabetes, COPD and pituitary micro adenoma conditions can at most be assigned 10 points under Table 1 of the Impairment Tables. In support of this contention the Respondent relies upon the following:[43]
(a)During the JCA on 6 July 2018 (T42), the Applicant reported that she: tires easily and falls asleep every afternoon for 2-3 hours (p244); experiences occasional shortness of breath on physical exertion (p246); has to pace her level of physical activity but continues to be independent in her living activities; can walk for up to 30 minutes at a time and can walk around a supermarket (p247); can use public transport if necessary but has her own car and drives (p247); can do any necessary shopping and is able to get herself to medical appointments (p247); and is able to do light and sedentary tasks such as light housework, preparing meals, washing, and complete forms (p247). Having regard to the medical evidence and the Applicant's self-reporting the assessors recommended an impairment rating of 10 points under Table 1 (T42, pp247-248).
(b)During the AAT1 hearing the Applicant reported that the condition which affects her most is her diabetes, which causes her to be anxious. As a result of this condition she feels weak, has temperatures and "hot flushes as part of the hormones"; and has a sleep on most days (T2, p4 at [5]). The Applicant also reported that she drives to visit her brother at least two or three times a week to provide care to him (T2, p5 at [8]); will go shopping "when she has to", goes out every couple of days and socialises with her girlfriends at least once per week (T2, p5 at [11]).
[43] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraph 45.

At the Hearing the Applicant told the Tribunal:
·In relation to her COPD her lungs were inflated and her asthma was playing up at the time of the claim.
·She has had curvature of the spine since primary school and this can affect her lungs.
·She confirmed that at the Relevant Period she could walk from the carpark and around a shopping centre or supermarket unassisted, although she leaned on the trolley for support.
·She could use public transport if she had to however she did not use it as she was scared to.
·She could perform light day to day household activities, for example folding laundry or light gardening.
·Although she contended that she should be assigned 20 points on Table 1, having worked through the 20 point descriptors she agreed that she did not meet them and should be assigned 10 points under Table 1.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s diabetes, COPD and pituitary micro adenoma conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period and that these conditions can be assigned 10 points under Table 1 of the Impairment Tables.
Mental health conditions
In a letter dated 6 October 2017, Dr Dick Williams, general adult psychiatrist, diagnosed the Applicant with anxiety and depression.[44] As such it is clear at the Relevant Period the Applicant’s mental health conditions were fully diagnosed. This point is not in contention.[45]
[44] Exhibit 1, T Documents, T32, page 174, Medical Report authored by Dr Dick Williams.
[45] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 47.
The Respondent contends that the Applicant’s mental health conditions were not fully treated and fully stabilised during the Relevant Period and summaries the evidence before the Tribunal in support of this contention as follows:[46]
[46] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraph 48.
(a)On 6 October 2017, Dr Richard Williams (psychiatrist) detailed he had first seen the Applicant on 3 July 2017 and that she currently had severe anxiety due in part to a domestic conflict. Dr Williams also indicated she was reporting problems with her son and daughter and was acting as unofficial carer for her brother (see T32, p174).
(b)In a medical certificate dated 15 February 2018, Dr Naseem Isaacs (GP) detailed diagnoses of brain tumour and depression but indicated these conditions were a temporary exacerbation of a permanent condition (T38, p233).
(c)In a medical certificate dated 10 May 2018, Dr Russell MacDougall (GP) detailed the Applicant was experiencing 'severe anxiety/depression' which was a temporary exacerbation of a permanent condition, and was "almost sufficiently severe to immobilise her at times". Dr MacDougall noted the Applicant had previously had counselling and this was expected to continue into the future (T39, p235).
(d)During the JCA on 6 July 2018, the Applicant confirmed she had experienced a worsening of her mental health symptoms over late 2017 and early 2018 due to personal stressors (domestic situation, financial pressures and having a car accident). The Applicant reported that at the time of the assessment her symptoms had gradually improved as the financial pressures were lifting and the domestic situation had resolved (T42, p245). In the JCA report dated 6 July 2018, the assessors formed the view that with additional time and further treatment it was anticipated that further symptomatic and functional improvement would continue to occur (T42, pp244-245).
(e)In his report dated 11 July 2018, Dr Williams noted that the Applicant's depression continues despite treatment (Escitalopram 20 mg daily), but indicated that to a significant degree this was a result of conflict she had with her son and daughter with whom she was staying and because she had been acting as unofficial carer for her brother who is bedridden and incontinent (T44,p254).
(f)In a medical certificated dated 13 August 2018, Dr Russell MacDougall (GP) indicated the Applicant was suffering from 'severe anxiety and depression recent exacerbation' and detailed that her "anxiety much more severe as well as depression aggravated by her present living situation as well as major family responsibilities, centred the need to care for her brother" (T46, p265).
(g)In his report dated 19 March 2019, Dr Williams indicated that although the Applicant's mental health condition had been fully diagnosed on 3 July 2017, all reasonable treatments which were likely to result in significant functional improvement in the next two years had not been undertaken until 10 October 2018, some seven months after the qualification period (see Attachment B, p2).
(h)The Secretary notes that in his responses to the 'Dear Doctor' letter Dr Williams detailed the treatments the Applicant had undertaken from 14 December 2017 instead of prior to 14 December 2017 (see Attachment A, p1 at [4]).
At Hearing the Applicant told the Tribunal:
·She had difficulty arranging all of her appointments, she uses a calendar to try and keep track, however sometimes has more than one appointment booked at the same time and then has to cancel.
·At the beginning of the Relevant Period she had gone to her brother’s house in Melbourne for rest and support.
·She was getting confused because the doctors were saying different anti-depressants but Dr Williams got her through.
·Dr Williams would see her weekly when she needed.
·During the Relevant Period, she was still sorting out medication and trying different doses – it has taken a year to get it right.
·She was trying to care for her sick brother and he expected her to do everything – cook, clean, and take him to all of his appointments.
·She was juggling financially as it took 9 years for her father’s estate to be finalised and then she had to sell her house in June 2018.
·She does not have normal coping mechanisms.
On cross-examination, the Applicant told the Tribunal:
·She confirmed that she first saw Dr Williams in July 2017 after having to wait for over 6 months to see him.
·She started seeing Ms Danagher, psychologist in March 2019. She had been seeing someone else every Saturday, however this was not in the system and she cannot remember who it was. She said that the person did not have the right qualifications for the DSP.
·She confirmed that at the Relevant Period her symptoms were worse than usual and that they gradually improved when she sold her house and her brother moved into his own home in around July 2018.
·That during the Relevant Period:
oShe was living in her own house and caring for her brother who was living with her.
oHer children came and went during this period.
oHer brother was on the DSP and expected her to be his carer.
oShe was financially supporting her brother every second week when his DSP money had run out.
oShe would drive to the Currumbin RSL club to meet her friends once a month to get out.
oShe had a good relationship at this time with her brother in Melbourne.
oShe was getting on with her children although it could be strained.
·She uses her budget book which is like a diary that reminds her of everything. She has not had the internet or a computer and would prefer not to have the phone – she would prefer not to be updated.
·She agreed she had sent emails during the review process, however said she struggled to do so and would get help from her children.
·She agreed that she had previously reported that she goes out every couple of days, but that she just says that, she will try but she does not go out every couple of days.
·She went to bingo recently and she met new people and did not feel uneasy as she was there with her friend.
·She does not socialise once a week as none of her girlfriends know about her circumstances, it has been about 3 years that she has not been in touch with some of them.
·She sees her friend Lisa at least once a week and they talk on the phone.
·She agreed she had told the SSCSD that she likes reading but she has never read a full book or watched a full movie.
·In the lead up to her claim she was seeing her POS provider once a month, sometimes they would ring her in between so contact may have been fortnightly but she only attended once a month.
·During the Relevant Period she was taking her brother to his appointments and cancelling her own if they clashed with his.
·When asked about why her answers at the Hearing differed to those she gave to the SSCSD, in that she had indicated at the Hearing that her functional impact may have actually been worse than perhaps what she was telling people previously, she was unable to provide a reference point to evidence supporting that this was the case.
At the Hearing, Dr Williams, the Applicant’s treating psychiatrist, provided evidence by telephone under affirmation. Dr Williams told the Tribunal:
·The Applicant’s depression and anxiety were linked to her domestic circumstances and that they were current during the Relevant Period as were her problems with her brother.
·That the first time he saw the Applicant was on 3 July 2017.
·The treatment he was providing the Applicant was largely supportive counselling, psychotherapy, trying to get an understanding of what emotional difficulties there were. They seemed to relate to her brother, problems with her children and her medical issues.
·He agreed that at the time he had diagnosed the Applicant with adjustment disorder (anxious mood) as that was his opinion at the time, with hindsight he would have also diagnosed depression.
·The Applicant’s clinical state has not changed substantially.
·When asked why in his response to the Basic Rights Queensland Questionnaire he had provided that all reasonable treatments had been undertaken for the Applicant’s adjustment disorder (anxious mood) on 10 October 2018 – he said he was not sure what the significance of the date was. But that reasonable treatments had been tried, however there are always other treatment alternatives. Those that he had tried and tested with the Applicant were of limited benefit.
·He was not sure why he listed 10 October 2018, however that has been consistent and on that date the Applicant had plans to go on a holiday of which he encouraged her to go on. The date was not all that relevant.
·When asked about whether the Applicant was experiencing an exacerbation of her condition at the Relevant Period, he said that she had some fluctuations, but that overall the picture has not changed, it has not become significantly better or worse.
·When asked whether he still agreed with his response to question 8 of his reply to the Dear Doctor letter dated 19 March 2019, specifically:[47]
[47] Exhibit 2, Secretary’s Statement of Facts & Contention, Attachment A – Medical report from Dr Richard Williams dated 19 March 2019 and original ‘Dear Doctor’ letter.
Symptoms include anxiety and frustration in regard to her caring role for a younger brother and alleged fraudulent conduct on part of her ex-lawyer who was said to have mismanaged her late father’s estate. [The Applicant] experiences some guilt as she withdraws services from her brother. These factors do not significantly prevent [the Applicant] from carrying out everyday activities.
He said he did. He said that her condition did not stop her activities of daily living, however did so in terms of wider aspects for example getting out and enjoying herself.
·The Applicant was well enough to go on the cruise however did not enjoy herself.
·That in terms of when the Applicant’s condition was fully treated and fully stabilised you could use 10 October 2018, however it was his opinion before that also.
·He had first prescribed anti-depressants in November 2017 and had continued to do so – 10 mg of Lexapro, however medication had not really assisted the Applicant.
·That during the Relevant Period the Applicant’s condition caused a moderate impairment on the basis that:
oShe had no problem with self-care.
oShe was more socially impaired.
oHer interpersonal skills to some degree were impaired as she did not have much by way of close friendships
oHe had not undertaken any formal psychological testing in relation to concentration and task completion, however he said she had an average IQ with no major cognitive impairment.
oShe had a limited scope to work or train and this was not realistically going to change partly because of her medical concerns and depression.
oHer behaviour, planning and decision was affected to some extent.
·It was fair to say that the Applicant’s depression and anxiety have been consistent and when she is free of her caring role things may improve but not all that much.
·He could not confirm whether he had ever seen Table 5 of the Impairment Tables, but that he may have in completing the Basic Rights Queensland Questionnaire.
On 7 March 2019 the Applicant commenced seeing Ms Michelle Danagher, psychologist who provided a report dated 1 April 2019 in support of the Applicant’s application for DSP.[48] However as the Applicant did not see Ms Danagher until well after the Relevant Period this report has little value to this current application.
[48] Exhibit 2, Secretary’s Statement of Facts & Contention, Attachment C – Medical report from Michelle Danagher (Registered Psychologist) dated 1 April 2019.
The Respondent contended that the Applicant’s adjustment disorder – anxiety and depression were fully diagnosed at the Relevant Period, however could not be said to be fully treated and fully stabilised given that Dr Williams evidence was inconsistent in this regard.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s mental health conditions were fully treated and fully stabilised during the Relevant Period. There is conflicting evidence from Dr Williams in relation to this issue as well as conflicting evidence from the Applicant in relation to the progress and functional impact of the conditions during the Relevant Period. This does not mean however that the Applicant’s mental health conditions may not be considered fully diagnosed and fully stabilised at some point in time after this current Relevant Period. It is always open to the Applicant to lodge a new claim for DSP with the Respondent.
Accordingly, the Applicant’s mental health conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s diabetes, COPD and pituitary micro adenoma conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned 10 impairment points under Table 1 of the Impairment Tables.
I find that the Applicant’s mental health condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for the condition.
I find that the Applicant’s cognitive impairment and other conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for the condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............[SGD]............................
Associate
Dated: 11 October 2019

Date of hearing: 19 September 2019

Applicant: In person

Advocate for the Respondent: Ms Lisa Palmer

Solicitors for the Respondent: Department of Human Services

[2019] AATA 4188

11 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	19 September 2019
Applicant:	In person
Advocate for the Respondent:	Ms Lisa Palmer
Solicitors for the Respondent:	Department of Human Services