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

[2017] AATA 533

CPJP and Secretary, Department of Social Services (Social services second review) [2017] AATA 533 (6 March 2017)

Division	GENERAL DIVISION
File Number	2016/5100
Re	CPJP
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

TribunalMr D. J. Morris, Member

Date6 March 2017

Date of written reasons         24 April 2017

PlaceMelbourne

The Tribunal affirmed the reviewable decision.

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

D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – neurological disorder with mental health side effects – where applicant suffers from single condition causing multiple functional impairments - barrier to assessing under Table 5 without proximate diagnosis – not qualified for DSP – decision affirmed – written reasons requested – written reasons may elaborate on oral reasons given

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 36(1)

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2A), 43(2B)
Social Security Act 1991 (Cth) ss 94(1), 94(2), 94(5)

Social Security (Administration) Act 1999 (Cth) sch 2 cl 4(1)

SECONDARY MATERIALS

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

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

CASES

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

Re Preston and Secretary, Department of Family and Community Services [1999] AATA 614

Re Summers and Secretary, Department of Social Services [2014] AATA 165

REASONS FOR DECISION

D. J. Morris, Member

24 April 2017

PROCEDURAL BACKGROUND

1. CPJP applied for Disability Support Pension (DSP) on 19 November 2015.  An officer of the Department of Human Services (the Department), having considered her application, rejected it on 31 March 2016.

2. CPJP sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  The ARO affirmed the original decision to reject the claim on 30 May 2016.  Dissatisfied with this decision, CPJP then sought a review by the Social Services and Child Support Division of this Tribunal (AAT1).  On 8 September 2016 AAT1 affirmed the original decision.

3. CPJP then sought a hearing before the General Division of the Tribunal.  A hearing was held on 6 March 2017.  The Applicant was self-represented and gave evidence under affirmation. The Respondent was represented by Mr Tim Noonan, a solicitor in the employ of the Department of Human Services.

4. At the conclusion of the hearing, I made my decision ex tempore and provided oral reasons. On 29 March 2017, in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975, the Applicant requested a statement in writing of the reasons of the Tribunal for its decision. I am therefore required to produce reasons in writing for the decision which, in accordance with s 43(2B) of the Administrative Appeals Tribunal Act 1975, include my findings on material questions of fact and a reference to the evidence or other material on which those findings were based. This is that statement.

5. In the recent decision of Negri v Secretary, Department of Social Services (2016) 70 AAR 103, Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour stated at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B) .

6. In preparing the written reasons which follow, I am satisfied that they reflect the hearing on 6 March 2017, in line with the approach suggested in Negri.  New reasoning for my decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

7. This statement of reasons is divided into two parts.  The first is the applicable law and the background to the matter.  The second is a rendering of the reasons I gave ex tempore.

   PART 1 – APPLICABLE LAW AND BACKGROUND TO HEARING

   Qualification for DSP under the Act

8. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (‘the Act’) and the qualification criteria for DSP must be satisfied.  It must be established that:

   (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;

   (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d)…

9. CPJP’s claim for DSP was made on 19 November 2015. The Impairment Tables under which she must be assessed under the Act are therefore the Impairment Tables implemented from 1 January 2012. These are set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. 

10. In terms of the criteria under s 94(1)(c) of the Act, no contention was made that CPJP had participated in the supported wage system. She was therefore required to establish a ‘continuing inability to work’. Relevantly, section 94(2) of the Act provides that:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) … 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.

11. Section 94(3B) of the Act provides that:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table

12. The consequence of this is that if CPJP is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that she has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014. If CPJP does have a ‘severe impairment’, she is only required to satisfy sections 94(2)(a) and 94(2)(b).

    CPJP’s claim

13. When CPJP lodged her claim for DSP on 19 November 2015, in answer to the question on the form “List any diseases, illnesses or injuries that you have”, she listed Severe Delayed Sleep Phase Disorder.

14. The Tribunal also had before it two medical reports in relation to CPJP under her former name, which the Tribunal accepted relate her.  The first of these was a report from Dr Fergal O’Donoghue, physician, dated 14 February 2012.  Dr O’Donoghue lists Delayed Sleep Phase Disorder (DSPS) as the condition which has the most impact on CPJP. 

15. The second medical report was from Dr John Fogarty, general practitioner, dated 12 October 2012.  Dr Fogarty listed Depression as the condition with the most impact on the Applicant, with a date of onset of pre 2005. Dr Fogarty also stated that there was a corroborative diagnosis from Ms Geeta Sitaram, who is a clinical psychologist.   Dr Fogarty lists a second condition of the Applicant as Sleep disorder, also with a date of onset of pre 2005 and a date of diagnosis as 2007.  Dr Fogarty’s notation of the symptoms of the sleep disorder is somewhat difficult to read, but includes “impaired …sleep” and “increased daytime somnolence”.  Relevantly, when listing the clinical features of CPJP’s depressive condition, Dr Fogarty listed: "Impaired sleep – impaired mood.  Impaired motivation and drive. Impaired energy…Impaired endurance.”  Dr Fogarty also noted Back pain as a condition CPJP has but which was generally well managed and caused her minimal or limited impact on her ability to function at that time.

16. In her letter of 30 May 2016 the ARO concluded, after considering the evidence before her, that the Applicant had a permanent condition, namely Circadian rhythm disorder.  The ARO decided that CPJP’s other medical conditions of Depression, Back pain and Gender dysphoria were not accepted as being permanent, within the terms required Determination, in that these conditions were not fully treated nor fully stabilised.

17. The ARO did not assign impairment ratings for CPJP’s gender dysphoria, depression or back pain.  While the ARO accepted the circadian rhythm disorder condition as permanent, consideration of Table 1 of the Determination, which is the table relating to Functions requiring Physical Exertion and Stamina, led the ARO to conclude that the descriptors for a mild impairment rating were not met, so no impairment points were assigned.  The ARO therefore found that CPJP could not qualify for DSP as her conditions could not be assigned 20 points under the impairment tables.

18. The ARO also considered whether CPJP had a continuing inability to work. The ARO decided that CPJP did not have a ‘severe impairment’ rating, that she had not participated in program of support and that she did not have a continuing inability to work 15 hours a week or more because of her impairment.

19. When AAT1 considered CPJP’s claim on 8 September 2015, it was only considered against the requirements of section 94(1)(c) of the Act: does CPJP have a continuing inability to work? Section 94 is a conjunctive provision in that, for a successful claim, a person must have satisfied all the provisions in section 94(1). The AAT1 appears to have taken a reverse approach, concluding that the compulsory requirement for a continuing inability to work was not satisfied and that it therefore did not need to consider whether CPJP met the requirements of paragraphs 94(1)(a) and (b) of the Act including whether the impairments could be allocated 20 points under the Impairment Tables.

20. With respect, I found this a somewhat unorthodox approach. AAT1 focused on evidence from CPJP that she had been working for some 15 hours a week and did not first consider the question of impairment and whether one or more of the impairments could be correctly assigned 20 or more impairment points. In particular, AAT1 did not consider whether the Applicant had an impairment which should be assigned 20 or more impairment points under one Impairment Table. This approach laid open the trap of overlooking the provisions of section 94(3B) of the Act.

21. The Tribunal accepts that even if the CPJP had a severe impairment within the meaning of s 94(3B) of the Act, she would still need to satisfy sections 94(2)(a) and 94(2)(b). This would be difficult given the Applicant’s work history during the relevant period. However, while DSP is not granted because a person has an impairment, it is granted because a person has an impairment which leads to a continuing inability to work. The conjunctive provisions of section 94 should be read in the context that the Act is beneficial legislation. The discrete fact that a person may be working with what might, if correctly assessed under the Determination, severe impairment should not, in my view, mean the person should not have the functional impact of that impairment or those impairments tested against the statutory criteria. In this respect, I adopt the reasoning of Deputy President McMahon in Re Preston and Secretary, Department of Family and Community Services [1999] AATA 614 where he said, in regard to ‘work’ for the purposes of section 94(2)(a) of the Act, at paragraph [17]:

    An ability to work cannot mean an ability to pursue employment whilst suffering an unacceptable level of pain or impairment.

22. The Tribunal’s role is to conduct a hearing de novo, applying all of the relevant law and facts to reach the correct or preferable decision. The Tribunal considers that in order to reach such a decision, the preferable approach is to assess the Applicant’s claim for DSP against the provisions of section 94(1) seriatim, rather than the approach adopted by AAT1.

    What is the relevant period for considering the claim?

23. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

24. Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.

25. Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider whether CPJP qualified for DSP on the date lodged she lodged her claim, 19 November 2015. If not, the Tribunal must then consider whether, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, the Applicant become qualified on a day within the 13 week period from 20 November 2015 to 19 February 2016 (the claim period).

    PART 2 – THE HEARING

26. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act (T-documents and supplementary T-documents). In the supplementary T-documents was a Health Professional Advisory Unit Opinion – 6167 prepared for the Department by Dr Anthony Turner, general practitioner, dated 14 February 2017.

27. At the hearing the Respondent tendered a further document which set out the professional qualifications of Dr Turner, which was admitted as Exhibit R1.

28. The Applicant tendered:

    ·Letter dated 31 January 2017 from Dr David Cunnington of the Melbourne Sleep Disorders Centre.  The Tribunal notes that the Australian Health Practitioner Regulation Agency register records Dr Cunnington as a physician with specialities in respiratory and sleep medicine.  This letter was admitted as Exhibit A1.

    ·Letter dated 20 May 2009 from Dr Harry Hemley of Northcote Plaza Medical Clinic.  This letter referred to the Applicant by a former name but the Tribunal accepts it relates to CPJP.  This letter was admitted as Exhibit A2.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

29. In his submissions, the Respondent accepted that CPJP suffers from the following conditions: (Delayed sleep phase) circadian rhythm disorder; depression; back pain.  CPJP also underwent a Job Capacity Assessment (JCA) on 31 March 2016 which, as well as these three conditions, listed gender dysphoria as a condition the Applicant had advised, but with no medical documentation available to the JCA. 

30. The ARO also accepted gender dysphoria as a condition.  CPJP told the JCA she had consulted with a psychiatrist in approximately June 2015 and had an appointment to see an endocrinologist in February 2016 regarding hormone therapy.  At the hearing, in response to a question from the Tribunal, CPJP confirmed that she had seen Dr Ada Cheung on 26 February 2016.  The Australian Health Practitioner Regulation Agency confirms that Dr Ada Cheung is a consultant physician with a specialty in endocrinology.

31. After carefully considering the medical evidence before me, I find that CPJP satisfied the requirements of section 94(1)(a) of the Act in the claim period because she had impairment, namely Circadian Rhythm Disorder, depression, back pain and gender dysphoria

    If so, what is the correct assignment of points under the Impairment Tables?

32. In the hearing, the Tribunal considered these various conditions in turn.

    Gender dysphoria

33. The Applicant told the JCA that she had been diagnosed with gender dysphoria in approximately June 2015 following consultation with a psychiatrist.  She said she commenced hormone therapy in October 2015 following consultation with her general practitioner.  She said that she was to attend an appointment with an endocrinologist for the first time on 26 February 2016 regarding hormone therapy and that she planned to attend for cosmetic surgery in the future.  CPJP told the JCA that she was experiencing worsening headaches since commencing the hormone therapy.

34. As mentioned above, CPJP gave evidence that she did see Dr Ada Cheung in February 2016 in connection with this condition and treatment.

35. Corroborative material is necessary for the Tribunal to determine that this condition was fully diagnosed in the claim period. On the evidence of CPJP it was factually still being treated after the claim period. Applying section 6 of the Determination, the Tribunal is unable to assign impairment points for this condition.

    Back pain condition

36. Dr Fogarty’s 2012 medical report refers to a back pain condition as a condition that is generally well managed and causes minimal or limited impact on CPJP’s ability to function.

37. CPJP said in cross-examination that at the time she lodged her claim she was experiencing back pain, which would manifest after about 3 hours on her shift and, after 4 hours she would have to do stretches or, sometimes, go home early from work because of the pain.

38. CPJP told the JCA in March 2016 that she was not engaged in current treatment for her back condition and none was planned.  She indicated normal range of movement and no restrictions in sitting.

39. On the paucity of evidence, Dr Fogarty’s brief mention in 2012 provided no other detail and Dr O’Donoghue did not mention this condition at all in his report, the Tribunal finds under section 6 of the Determination, no impairment points can be assigned for this condition.

    Depressive condition

40. Dr Fogarty’s medical report of October 2012 notes that the Applicant was at that time being prescribed anti-depressant medication and was engaged in cognitive behavioural treatment with a clinical psychologist.  Dr Fogarty was of the opinion that this condition was expected to persist for more than 24 months and fluctuate within the next 2 years.

41. CPJP told the Tribunal that she was seeing Ms Geeta Sitaram, clinical psychologist, in 2012. CPJP told the Tribunal that Ms Sitaram then went on maternity leave and CPJP had not seen her, or another clinical psychologist or psychiatrist since that time.  When asked in cross-examination whether she had had any recent treatment for his depression, CPJP said that the closest was probably hormone replacement therapy and that she was not currently taking anti-depressant medication.

1. The Tribunal finds that, on the basis of the evidence of no recent treatment for this condition, and no corroborative diagnosis, proximate to the claim period, by a psychiatrist or a clinical psychologist to support Dr Fogarty’s diagnosis, this condition cannot be assigned impairment points under the Determination.  The correct impairment table for considering the functional impact of depression on a person’s ability to work is Table 5 – Mental Health Function, and there is a mandatory provision in assessing functional impact of a mental health condition using that Table which requires such a corroborative diagnosis by either a psychiatrist or a clinical psychologist.

   Circadian rhythm disorder

2. The Applicant said that this condition was the one which had the most significant impact on her day to day life.  Exhibit A2 was a letter written by Dr Harry Hemley to the Austin Hospital Sleep Clinic in 2009 when the Applicant was in her final year of high school.  Dr Hemley relevantly said that CPJP had a long (8 year) history of inappropriate sleep times, and that she normally sleeps:

   6 am until 2 pm and despite attempts to change the pattern to a nocturnal sleep pattern, doing all of the appropriate behavioural things like avoiding caffeine several or other stimulation hours prior to the appropriate sleep time and trying to regulate…sleep time with hypnotics; all these attempts have been unsuccessful.

   Dr Hemley said that CPJP was prescribed Temazepam 10 mg, with a dosage of 1-2 at night, for insomnia.

3. CPJP told the Tribunal how she had seen several general practitioners and specialists but had not had a satisfactory diagnosis until she saw Dr David Cunnington.  Dr Cunnington first saw CPJP in March 2014 and said the following in his letter of 6 May 2015, reiterated almost verbatim in his 31 January 2017 letter (Exhibit A1):

   This letter is to support [CPJP’s] application for disability support pension.

   [CPJP] has been seeing me since March 2014 for assessment and management of a sleep disorder.  On the basis of clinical assessment and sleep measurement using longitudinal sleep measurements, [CPJP] has been found to have a Circadian Rhythm Disorder. 

   …

   While delayed sleep phase Circadian Rhythm Disorder is relatively common, a small proportion of people have a very severe form that results in sleep being very delayed and is somewhat intractable to treatment.  [CPJP’s] condition has proved to be both severe and refractory to treatment, as [she] maintains a very delayed phase despite melatonin and chronotherapy with sleep scheduling.

   The timing and unpredictability of [CPJP’s] sleep means that it would be almost impossible for [her] to reliably present for work on a regular basis.  The situation has been stable for some time and over the last 12 months has not really shifted.  As such, whilst the future prognosis is not clear, I am not optimistic that there will be major changes in [CPJP’s] condition over the next few years.

   …

   Dr Cunnington’s January 2017 letter updated this assessment to remark that the condition had been stable since early 2015 and had not really shifted over the last 36 months.

4. CPJP gave evidence during the hearing of the effect of this condition.  She said she might sleep four hours on a work ‘night’, usually actually going to sleep around 8 a.m., sometimes later.  She said that she experiences severe migraines about once a month which last for more than four hours and affected her sight.  These migraines occur soon after waking.

5. CPJP said her sleep disorder had not changed since at least early 2015 and got worse around nine months ago when she tried to, in her words, get a life outside of work, but then found this condition overwhelmed her.

6. CPJP gave evidence that the condition has a number of side effects such as vertigo and nausea.  She also felt that it had a cognitive impact and, when asked about the effect on memory and processing tasks, gave the example that, at the supermarket where she works, she is not allowed to return items to the shelves because she found she could not remember where stock went; she is restricted to helping at the check-out stations.

7. The Respondent said that because of the uncommon nature of the condition, it had been initially thought by Department officers that the correct Impairment Table to assess functional ability was Table 1 – Functions requiring Physical Exertion and Stamina.  That was the Table against which the ARO assessed this condition and concluded no impairment points could be allocated.

8. Subsequently, the Department sought a professional medical opinion from Dr Anthony Turner. The question put to Dr Turner on 13 February 2017 by Mr Noonan was What is the appropriate impairment Table to assess the circadian rhythm disorder? Dr Turner provided his opinion the following day.  He said it was made following consideration of a medical report from Dr Cunnington dated 6 May 2015 and the JCA of 31 March 2016.

9. Dr Turner concluded that the correct Table to assess this condition was Table 7 – Brain function.  Although not asked, Dr Turner also proffered that in his view CPJP had a condition that was fully diagnosed, fully treated and fully stabilised and that 5 impairment points were able to be allocated.

10. At the hearing, CPJP, while accepting Dr Turner’s view that circadian rhythm disorder is a neurological condition, submitted that Dr Turner’s professional qualifications did not compare with Dr Cunnington’s in terms of assessing the functional impact of this condition. She submitted that Dr Turner’s opinion was not based on any discussion with her treating professionals, nor any interview with the Applicant.

11. The Tribunal made clear that Dr Turner’s remarks about 5 impairment points are, like a JCA recommendation, only a recommendation.  The assignment of points is for decision-makers alone.

12. The Tribunal accepted Dr Turner’s professional opinion that the correct Table is Table 7, but it does not adopt his recommendation of 5 impairment points.

    Evidence at the hearing of functional impact

13. CPJP said she lives with housemates in a share house.  She works shifts at a local supermarket.  She generally goes to sleep between 5 a.m. and 8 a.m. and generally does not feel rested when she wakes.  On work nights she sleeps for between 4 and 5 hours.  When asked about the physical effect of the sleep disorder, CPJP said it was a constant tax on her energy.  It caused migraines and nausea and affected her memory.  She said she frequently missed her train to work because her body finds ways to destroy itself and, apart from nausea, she suffered motion sickness and vertigo.

14. Having accepted the professional medical opinion that this sleeping disorder should properly be assessed under Table 7, the Tribunal then closely examined the 20 point (severe impairment) descriptors.  The descriptors in this part of the Determination have the following overall heading:

    The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:

    …

    (Emphasis added.)

15. The Tribunal has consistently taken the view that “assistance” in the Determination means assistance by another person (see, for example, reasons of Senior Member Bell in Re Summers and Secretary, Department of Social Services [2014] AATA 165). CPJP said that, on occasions, her housemates would wake her but otherwise she did not need daily assistance. It would therefore be impossible to allocate the functional impairment of the condition on CPJP’s brain function 20 points under that table. It may be that the functional impairment reaches the mild (5 point) or moderate (10 point) descriptors, where a mild impairment does not require any reliance on assistance and a moderate impairment requires that the person needs occasional (less than once a day) assistance with day to day activities.

16. CPJP said that, in considering the Determination, she felt that the descriptors in Table 5 – Mental Health Function, might more accurately match up with the effect of the sleep disorder on her functional abilities.

17. The Tribunal accepted that this may be so. The Tribunal is not bound to consider only one table for each condition. Section 10(3) of the Determination states that where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table. It provides that:

    (3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.

    Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).

    (4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.

18. The effect of this is that if CPJP is able to establish that her sleep disorder causes two functional impairments, each functional impairment is separately allocated an impairment rating under the Tables and these ratings are added together. The barrier for this approach is that Table 5 incorporates a mandatory corroborative diagnosis by a psychiatrist or a clinical psychologist which was not present in the claim period.  As this is an explicit requirement in Table 5, the guidance on assessing impairments in section 10(3) of the Determination does not override it.

19. The Tribunal considers that the ARO erred, perhaps understandably, in choosing to assess CPJP’s sleep disorder under Table 1, because the condition does affect the Applicant’s stamina, in the sense of ‘endurance’.  The way the Descriptors in Table 1 are couched, however, does not appear to take account of the sort of condition suffered by CPJP because they focus on pain and cardiac effects more than what would appear to me in this case to be a functional effect, on the evidence at the hearing and on Dr Cunnington’s written opinion, of what I might call over-arching and refractory fatigue. Although the Tribunal certainly accepts that the Applicant’s sleep cycle is disrupted by the sleep disorder, the functional impairment elaborated by the Applicant would seem to be, on the evidence before the Tribunal, impact on the Applicant’s mental health function and brain function rather than stamina.

20. Even though it is clear to me, taking into account the medical evidence from Dr Cunnington and Dr Turner, together with Dr Fogarty’s 2012 notation about the link between the depressive and sleeping disorder conditions, that a preferable assessment of the functional impact of CPJP’s sleep disorder would be by applying both Tables 7 and 5, it would be of no benefit to the Applicant for me to remit the decision back to the Department with such a direction because the decision-maker would face the same barrier in the Determination.  I do not believe it is possible, in the absence of the corroborating diagnosis mandated under Table 5 to undertake this exercise.

21. CPJP submitted that it was very difficult for her to get such a corroborating diagnosis because of the time of a consultation and the limited funds she has, and that the Tables should be able to be adapted to match a person’s particular disorder.  I understand the Applicant’s frustration but pointed out that assigning impairment points must take into account a person’s medical history.  The Impairment Tables used to assess functional impact make clear that they are function-based, not diagnosis-based.

22. I therefore found that I was unable to assign impairment points for CPJP’s sleep disorder condition under the Table 7 and Table 5 Descriptors together, which would be the preferable manner of assessing the functional effects of her condition, given that her condition has an impact on two different functions.

23. In summary, I did not assign an impairment rating under Table 7 at the hearing, as CPJP does not meet the ‘severe’ descriptors set out above. It may be that the impact on CPJP’s brain function could be assigned a mild or moderate impairment rating, meaning 5 or 10 points respectively. Without the ability to consider the Table 5 criteria in the claim period, however, there is no point in doing so. CPJP’s condition could not be allocated 20 points under Table 7 alone, meaning it would not be possible for her to satisfy section 94(1)(b) of the Act at that time. I reiterate that if a person is assigned 20 or more impairment points from more than one Table, the other parts of section 94 must also be satisfied to qualify for DSP.

24. Because CPJP’s claim failed to satisfy section 94(1)(b) of the Act, it was not necessary for the Tribunal to go on to consider whether she had a continuing inability to work.

    Conclusion

25. The Tribunal is sympathetic to the Applicant.  She presented as an intelligent, honest and frank young woman who had a good appreciation of her medical condition and had battled to get a suitable diagnosis of it. 

26. It was clear that she suffers from a particular condition which has a debilitating effect and closes many employment pathways off from her. The Tribunal leans towards Dr Cunnington’s learned opinion that the condition is refractory to treatment and, in his words, it would be almost impossible for CPJP to reliably present for work on a regular basis. The Tribunal urged CPJP to obtain a contemporary diagnosis which would allow an assessment against Table 5, or a combination of Table 7 and Table 5, in any fresh claim for DSP she may lodge.

27. However, in regard to this particular claim, the Tribunal is bound by the requirements set out in the Determination and found that the original decision that CPJP was not qualified in the claim period was the correct decision. For that reason, I have affirmed the decision under review.

69.     I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the written reasons for the decision of Member D. J. Morris.

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

Associate

Dated             24 April 2017

Date of hearing	6 March 2017
Applicant	By Telephone
Advocate for Respondent	Mr T Noonan
Solicitors for Respondent	Department of Human Services, Freedom of Information & Litigation Branch