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

Cremona and Secretary, Department of Social Services (Social services second review) [2017] AATA 1817 (17 October 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5751
Re:Ms Angela Cremona
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:17 October 2017
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Ms Anna Burke, Member
SOCIAL SECURITY – disability support pension –– whether qualified – lumbar spine disorder not fully diagnosed, treated and stabilised – anxiety/depression fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under impairment tables –– whether program of support has been undertaken - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; ss 63, 80 & 118(13)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; ss 6(3)(a) & 6(4)
Social Security Act 1991; ss 26, 27(3) & 94(1)
REASONS FOR DECISION
Ms Anna Burke, Member
17 October 2017
INTRODUCTION

Ms Cremona (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant disability support pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 4 April 2016 Centrelink found that Ms Cremona was not entitled to the DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Social Services.
The application was heard on 23 August 2017 via telephone. Ms Cremona was self-represented and Ms Kellie Latta, solicitor for Sparke Helmore appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Cremona:
(a)had a physical, intellectual or psychiatric impairment;
(b)had a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)had a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)had a continuing inability to work.
BACKGROUND
Ms Cremona, who is now 50 years of age, lives with her adult son. She left school in year 8 and reports that she has solid literacy skills but difficult with numeracy. She has a very limited work history, having devoted much of her time to parenting her three, now adult, children.
6.On 25 January 2016 Ms Cremona made an application for the DSP, citing her medical conditions as anxiety, depression, osteoarthritis, emphysema, liver disease, irritable bowel syndrome, fibroids, stomach pain, breathlessness, migraines, headaches, sore eyes, heart palpitations, muscle pain, chest pain, jaw pain, left shoulder pain and neck pain.
On 17 March 2016 Centrelink had a job capacity assessment (JCA) conducted on Ms Cremona. The JCA report found that:
· no verified permanent, fully diagnosed, treated and stabilised conditions had been recorded and therefore nil impairment points could be awarded;
· Ms Cremona was assessed as having a baseline work capacity of 8-14 hours per week and capacity to work 15–22 hours per week in the next two years with intervention.
On 4 April 2016 Centrelink wrote to Ms Cremona to inform her that her DSP had been refused as she did not have an impairment rating of 20 points or more under the Impairment Tables.
On 5 July 2016 on internal review, a departmental Authorised Review Officer (ARO) found:
·     Ms Cremona’s emphysema was not considered fully treated and stabilised and as such was awarded nil points under the Impairment Tables;
·     that there was no evidence that Ms Cremona’s spinal condition had been assessed, treated or reviewed by specialist. As such it could not be considered fully diagnosed, treated and stabilised and was awarded nil points under the Impairment Tables;
·     that there was medical evidence confirming Ms Cremona’s psychological condition had been present for many years and that her doctor had reported that this condition would benefit from specialised treatment from a psychiatrist. As such it could not be considered fully treated and stabilised and was awarded nil points under the Impairment Tables; and
·     Ms Cremona had not met the program of support requirements.
On 12 October 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Ms Cremona’s DSP claim:
·10 points were awarded under Table 5 - Mental Health Function of the Impairment Tables, whereby it was found that Ms Cremona’s personality disorder and any associated anxiety and depression were fully diagnosed, treated and stabilised at the date of claim;
·no finding was made in respect of Ms Cremona undertaking a program of support as she was not found to have a severe impairment.
On 12 October 2016 Ms Cremona sought a review of the AAT1 decision by this division of the Tribunal. She contended that the AAT1 did not fully appreciate her condition as it did not consider all the circumstances together as a whole. Ms Cremona claims her anxiety and physical problems together make it impossible for her to work, she cannot work at the pace required and this combined with being around people causes her enormous stress.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified 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)the person has a continuing inability to work as defined by the Act.
In accordance with Schedule 2, section 4(1) of the Administration Act Ms Cremona’s qualification for the DSP is to be determined from the date of her claim to a date 13 weeks thereafter, being 3 May 2016.
It is agreed that at the time of application Ms Cremona suffered from a mental health condition, arthritis, spinal, lung and abdominal/liver conditions that caused impairment and she therefore satisfied section 94(1)(a) of the Act.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is permanent.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paragraph 6(3)(a)
Paragraph 6(4) of the Impairment Tables states that a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than two years.
The introduction to each relevant Impairment Table states that self-report of symptoms alone is insufficient and requires that there must be corroborating evidence of the person’s impairment.
Paragraph 6 of the Impairment Tables states:
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)     For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
For the purposes of paragraph 6(7), reasonable treatment is 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.
The determinative issue in this review is whether, at the relevant time, Ms Cremona suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, paragraph 5(2)).
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for them.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Ms Cremona’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the T documents, the Respondent’s application for review and additional medical reports provided by Ms Cremona.
DOES MS CREMONA HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for disability support pension in the first instance, a person must suffer from an impairment.
The parties accept that Ms Cremona is suffering from a mental health condition, arthritis, spinal, lung and abdominal/liver conditions. Accordingly, the Tribunal finds that Ms Cremona is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS CREMONA HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Mental health conditions - anxiety and depression
In her report dated 9 May 2013 Dr Masartharubi Govender, general practitioner, stated that Ms Cremona had been her patient since 2010. She noted that Ms Cremona had been diagnosed with anxiety for many years and had been seeing a mental health nurse and psychologist for counselling. Dr Govender was continuing to counsel Ms Cremona as she was not keen to take medication due to possible side-effects. She described Ms Cremona’s symptoms as somatic as they present in headaches, a sore jaw, sore eyes, muscle aches, palpitations, and wrist pain.
In his medical report dated 28 May 2013, Dr Christopher Corcos, consultant physician, opined that:
It was difficult to pin down a presenting complaint. Ms Cremona only says that she has suffered anxiety for many years, the anxiety shows up as aches and pains and stiffness in her jaws, or migraines or in her muscles or chest, and that multiple investigations have revealed no physical cause. She has so often been left feeling “not understood” and somewhat rejected.
…Ms Cremona has grown up with a personality disorder marked by hypervigilant- type narcissistic traits. She has cut herself off, in chronic anger, from her mother and from three of her four siblings. She is also estranged now from her daughter and her three grandchildren. That is a classic manifestation of the narcissistic defence. It’s not a manifestation of melancholic depression. Ms Cremona’s depressive symptoms are secondary to her habits of relating to herself, other people and the world. Those habits can, of course, be changed if the person is willing to look at them with an open heart.
In her medical report dated 12 January 2016, Dr Sonia Zammit, clinical psychologist, stated that:
Ms Cremone [sic] has been attending private psychological treatment sessions ranging from weekly to monthly session since November 2015 following repeated referrals by her General Practitioner on a Mental Health Care Plan. Ms Cremone [sic] has a diagnosis of Major Depressive Disorder, Complex trauma, with agoraphobia, mixed anxiety symptoms, panic attacks and somatic complaints…. Of most note is ongoing difficulties with anxiety including panic attacks, somatic complaints, and difficulty leaving the home and being in public spaces without experience of overwhelming physiological and emotional distress. This is largely tied to a long history of complex trauma associated with long-term severe physical and emotional abuse and neglect since early childhood by her mother and later domestic violence. Her anxiety and dissociated symptoms impact on group and individual social interactions, which significantly impairs her engagement in most tasks and environments required for employment, volunteer work and study. Further symptoms which will impair her work and study abilities include difficulties with concentration, memory, excessive fatigue, headaches and panic attack in social environments with tendency towards avoidant coping responses.
…Ms Cremone[sic] further briefly trialled an antidepressant following prescription by her General Practitioner given long period since last attempt at pharmacotherapy support. Unfortunately Ms Cremone [sic] experienced significant side effects including a rash and elevated and agitated mood states indicating such medication was not suited as treatment for her. The symptoms created significant distress given already somatic aspects to her anxiety and contributed to deterioration in mood following antidepressant trial. Overall Ms Cremone[sic] is demonstrating willingness to engage in treatment the best her ability, unfortunately her limited finances inhibit access to intensive treatment programs and her complex difficulties contribute to only limited progress in her recovery at present.
Dr Govender provided a medical report dated 17 March 2017 in response to a letter prepared by the FOI and Litigation Branch of the Department of Human Services, to assist Ms Cremona in ensuring that in any additional medical material she submits for the purposes of the appeal addresses the eligibility criteria for the DSP. Dr Govender stated:
Her main presenting problem has been chronic generalised anxiety with panic attacks, these often present in the form physical symptoms; as fatigue, generalised body aches, wrist, arm pains… She has been seen by psychiatrist and psychologist on many occasions in the past with no improvement in symptoms. She states she has experienced side-effects from all antidepressants/antia-nxiety medications prescribed and as such is no longer prepared to try any further medication. She had cipramil a few years back and retried pristiq 50MG daily on. She telephoned in mentioning headaches and rash on her arms as soon as she had taken these.
The JCA report undertaken on 17 March 2016 was conducted by an exercise physiologist and was reviewed by a registered psychologist. It confirmed that Ms Cremona’s mental health condition was not fully diagnosed, treated, and stabilised, as medical reports indicated that further treatment was likely to result in functional improvements for the client. They noted Ms Cremona’s symptoms as:
...fluctuating moods, often neglects self-care activities, anxiousness associated with leaving family home, social withdrawal, paranoid thoughts, poor concentration and memory, can maintain household duties and can attend the local shops independently.
At the hearing the Respondent contended that Ms Cremona’s mental health condition was still not fully treated and stabilised as the medical evidence indicated that pharmacological and psychiatric treatment would result in significant functional improvement. Further, the Respondent asserted that if it is accepted that the Applicant’s condition is fully diagnosed, treated and stabilised, which they did not concede, then the condition only presented a moderate impairment on Ms Cremona’s ability to function.
During the hearing the Tribunal took Ms Cremona to Table 5 – Mental Health Function of the Impairment Tables and explored Ms Cremona’s capacity in respect of severe functional impact. Table 5 provides:
There is a severe functional impact on activities involving mental health function.
(1)       The person has severe difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)       social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Ms Cremona explained that her condition as a whole was exceptionally hard to manage and that her anxiety combined with her physical limitations made her day-to-day living extremely difficult. She stated that her condition was worsening and she was constantly on edge. She was not prepared to trial any more medication as they had not proved effective in the past and had resulted in severe allergic reactions such as fits, migraines and rashes. She lived with her son who managed himself and on the whole she did not do many household activities, such as cooking or cleaning, and very rarely left the house. She said that nobody understood her and this made it exceptionally difficult especially dealing with Centrelink.
She asserted that she had difficulty with most of the functions outlined under the severe table for mental health:
·     that she could not manage day-to-day and was unable to maintain household duties and attend local shops;
·     that she did not undertake social activities as this caused too much anxiety and stress, and did not leave her own home except for medical appointments and attending Centrelink as required;
·     that she was cut off from the majority of her family, except her son who resided with her and provided her assistance with daily living. She undertook no social interactions and had no social contact with friends or family, she said that most of her family did not understand her situation and she found it stressful being around them;
·     that she had great difficulty concentrating and completing tasks, and had to read over things many times to try to understand them and that some days were harder than others;
·     she is incapable of making decisions, particularly on the spot. She can’t control her thoughts and gets distracted easily, which can lead to physical reactions such as heart palpitations and panic attacks. She cited a recent example of having to decide about switching to a new mental health nurse as the one she was currently seeing was taking maternity leave. This caused her to become exceptionally overwhelmed and incapable of making a decision; and
·     that she had been completely incapable of undertaking any work or training activity for many years.

The AAT1 found that Ms Cremona experienced moderate difficulties with most of the areas of mental health function designated in Table 5, and that corroborating medical evidence was broadly consistent with evidence provided by Ms Cremona. Table 5 states:
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
The AAT1 also noted that evidence clearly establishes that Ms Cremona has not responded to a range of psychopharmacological and physiological interventions. Further it stated personality disorder does not usually respond to medication and the presence of personality disorders is often a limiting factor in treatment responses to antidepressant medication, even when there is co-occurring mood and/or anxiety disorder.
The Tribunal is satisfied that Ms Cremona’s anxiety and depressive disorder is fully diagnosed, treated and stabilised as she has undertaken all reasonable medical treatment to stabilise the condition. Ms Cremona is, and has been, undertaking extensive psychological counselling over many years for her condition. She has reasonably declined to try any further pharmacological treatment as she perceives it carries to greater risk of side-effects and has limited medical benefit for her condition.
The Tribunal does not find Ms Cremona’s mental health function was severe at the time of her claim as she was still capable of self-care and independent living. The Tribunal awards 10 points under Table 5 as her anxiety was having a moderate impact on her ability to function.
Arthritis and spinal condition
Dr Govender, in Ms Cremona’s medical report for assessor dated 17 December 2015, stated that Ms Cremona suffered somatic symptoms of body aches which are most acute in the neck and shoulders. She reported CT cervical C6-7 disc degeneration and spinal stenosis.
Mr Paul Silk, advanced practice physiotherapist, stated in a report dated 2 August 2016, further to a report of 15 April 2016 and following Ms Cremona’s recent MRI scans:
In the case of her thoracic spine, the films are unremarkable with no abnormalities detected. …In the case of the cervical spine, there is evidence of multilevel cervical spondylosis with the major finding being that of left-sided foraminal narrowing, albeit mild at the C4-5, C5-6 and C6-7 levels. The central canal, however, is capacious with normal cord signal and no frank neurocompressive pathology identifiable, certainly nothing that would require neurosurgical intervention. …conservative management has been recommended in terms of her chronic neck and thoracic pain and transient left forearm paraesthesia.
Dr Govender’s medical report of 17 March 2017 noted:
As at 2 February 2016 Angie Cremona would have experienced headaches, neck pain and stiffness and tingling down her left arm. This has been an ongoing problem with intermittent flares of symptoms.
A CT scan of her neck revealed C6-7 disc degeneration (arthritis). She mentioned having been pulled by her hair while she was growing up. A referral was made to the neurosurgeon at Western Hospital.
She would not have been able to perform overhead activities or turn her head, or bend her neck without turning her trunk. …This condition is expected to persist for more than two years form [sic] 2 February 2016.
She did try anti-inflammatory medication Viz Celebrex and Neurofen Plus, but soon stopped these, stating they did not help and she has ongoing concerns regarding the effect of medication on her liver.
In assessing Ms Cremona’s arthritis and spinal condition, her functional activities would be assessed under Table 4 of the Impairment Tables:
There is a severe functional impact on activities involving spinal function.
(1)       The person is unable to:
(a)       perform any overhead activities; or
(b)       turn their head, or bend their neck, without moving their trunk; or
(c)       bend forward to pick up a light object from a desk or table; or
(d)       remain seated for at least 10 minutes.
Ms Cremona advised the Tribunal that she is in constant pain, gets excessively tired, had difficulty undertaking daily activities, and whilst she had a car and license she rarely left the house or drove the car.
The Tribunal is satisfied that Ms Cremona arthritis and spinal condition had been fully diagnosed, treated and stabilised, however, the medical evidence did not indicate that the condition was severe. The Tribunal finds the condition had minimal impact upon her functionality and therefore awards nil points under Table 4 of the Impairment Tables.
Lung condition
In the 17 December 2015 medical report for assessor, Dr Govender stated that Ms Cremona was diagnosed with emphysema.
In the medical report of 17 March 2017 Dr Govender noted:
In 2010, Angie mentioned feelings of tightness in her chest, a chest xray [sic] revealed “early emphysematous change”. Subsequent lung function testing proved to be normal. She has been using a Ventolin puffer intermittently. She has not been seen with any attacks of wheezing and has not needed hospital admissions for breathlessness.
Ms Cremona advised the Tribunal that she gets breathless on occasion, that activity makes her tired and that she used her puffer from time to time but did not feel it made any difference. On occasion she had tightness in the chest, which she could not distinguish between panic and emphysema. She said she had learnt to manage her condition, used settling techniques to manage the symptoms and continued to smoke.
The Tribunal is satisfied that Ms Cremona’s lung condition had been fully diagnosed, treated and stabilised, however, the medical evidence did not indicate that the condition was severe. The Tribunal finds the condition had minimal impact upon her functionality and therefore awards nil points under Table 1 of the Impairment Tables.
Abdominal/liver condition
In Ms Cremona’s medical report for assessor dated 17 December 2015 Dr Govender stated that Ms Cremona had fibroids, period pains, abdominal pains and liver disease, which were all generally well managed and cause minimal or limited impact on Ms Cremona’s ability to function.
In the medical report of 17 March 2017 Dr Govender noted:
She has been seen a few times at the Royal Melbourne Hospital for a liver lesion; this has subsequently found to be of a benign nature--haemangioma (collection of blood vessels).
Ms Cremona advised the Tribunal that she had to undertake ultrasounds every six months in respect of the condition and that it caused her pain and fatigue.
The Tribunal is satisfied that Ms Cremona’s abdominal/liver condition had been fully diagnosed, treated and stabilised, however, the medical evidence did not indicate that the condition was severe. The Tribunal finds the condition had minimal impact upon her functionality and therefore awards nil points under Table 1 and 10 of the Impairment Tables.
DOES MS CREMONA HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Ms Cremona must not only satisfy the requirement that she has an impairment with a rating of 20 points or more, she must also demonstrate she has a continuing inability to work. Ms Cremona would be considered to have a continuing inability to work if she had actively participated in a program of support within the meaning of section 94(3C) prior to her claim for the DSP, unless she can establish that she had a severe impairment (meaning one that attracts a rating of 20 points or more under one table of the Impairment Tables). A continuing inability to work requires that her impairment was of itself sufficient to prevent her from doing any work independently of a program of support within the next two years and from undertaking any training activity within the next two years, if a training activity was likely to enable her to work independently of a program of support.
The JCA report found that Ms Cremona’s conditions had a significant impact on her daily function and therefore her work capacity was recommended to be 8-14 hours per week. However, as she had been found not to have any condition that was fully diagnosed, treated and stabilised she had a work capacity of 30+ hours per week. The Tribunal is of the opinion that Ms Cremona’s mental health condition makes it virtually impossible for her to undertake any work activity.
Ms Cremona has not completed a program of support and therefore does not satisfy section 94(3C) of the Act.
CONCLUSION
Ms Cremona’s functional capacity was difficult to assess under the Impairment Tables as her mental health condition presented in a physical response. She described during the hearing that she has difficulty doing most things, that life is a day-to-day proposition where some days she copes and on others she does not. She is constantly on edge, fatigued stressed, in pain and unable to make herself and her condition understood by others. The Tribunal found Ms Cremona to be an open and honest witness with insight into her condition but an inability to find any solution.
Having carefully considered all the evidence before the tribunal, I find that at the time of her original DSP application of 25 January 2016, Ms Cremona did not meet the required 20 points under one Impairment Table to satisfy section 94(1)(b) of the Act. Further, she did not have a continuing inability to work, and had not completed a program of support in accordance with section 94(3C) of the Act. Ms Cremona therefore did not qualify for the DSP on 14 January 2016 or within the 13 weeks thereafter.
DECISION
The decision under review is affirmed.

I certify that the preceding 60 paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

...........[sgd]......................................................
Associate
Dated: 17 October 2017

Date of hearing: 23 August 2017

Applicant: Self-represented

Advocate for the Respondent: Kellie Latta
Sparke Helmore

[2017] AATA 1817

17 October 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	23 August 2017
Applicant:	Self-represented
Advocate for the Respondent:	Kellie Latta Sparke Helmore