CVETKOVSKI and Secretary, Department of Social Services (Social services second review) - [2021] AATA 167

CVETKOVSKI and Secretary, Department of Social Services (Social services second review) [2021] AATA 167 (10 February 2021)
Division:                  GENERAL DIVISION
File Number(s):      2019/4623
Re:Biljana  CVETKOVSKI
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member G Hallwood
Date of decision: 10 February 2021

Place: Adelaide
The decision under review is affirmed.

...............[Sgnd].......................
Member G Hallwood
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, fully treated and stabilised during the qualification period – whether applicant’s conditions stabilised – whether applicant’s conditions attracted an impairment rating of at least 20 points – 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
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Member G Hallwood
8 February 2021
INTRODUCTION

On 20 September 2018, the applicant, Ms Biljana Cvetkovski, lodged a claim for disability support pension (“DSP”). Ms Cvetkovski’s claim included the following conditions:
(a)depression; and
(b)anxiety.[1]
[1] T9, p 131.
On 1 October 2018, Centrelink rejected the DSP claim[2] and on 18 February 2019 an authorised review officer (“ARO”) found the decision to reject the claim was correct.[3]
[2] T10, pp 137-138.
[3] T12, pp 140-144.
On 5 July 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) affirmed this decision.[4]
[4] T2, pp 5-7.
The AAT1 found that Ms Cvetkovski had the conditions of anxiety and depression; and that these conditions were permanent for DSP purposes. Based on the AAT1 assessment, Ms Cvetkovski was found not to have impairments rating the 20 points required to be eligible for DSP. [5]
[5] T2, p 6.
On 1 August 2019, Ms Cvetkovski lodged an application for review with the General Division of the Administrative Appeals Tribunal (the “Tribunal”). This application was heard on 4 December 2020 and resumed on 14 December 2020 to hear evidence from Dr Sing Ping Ting.
Prior to the hearing, the respondent; the Secretary, Department of Social Services, provided 248 pages of T-Documents (“T”).[6] Ms Cvetkovski, provided a further 5 pages of documents.[7] The respondent also provided an amended Statement of Issues Facts and Contentions (“SoFICs”) including a list of authorities totalling 27 pages.[8]
[6] T1-T17.
[7] Exhibit A1 to Exhibit A4.
[8] Exhibit R1.
The Tribunal’s decision has regard to the above-mentioned documentary evidence as well as oral evidence presented at the hearing over two days.
ISSUES
The issues which arise in this case are:
(a)whether Ms Cvetkovski has an impairment;
(b)if yes, whether the impairment is permanent;
(c)if yes, whether Ms Cvetkovski’s impairment attracts a rating of 20 points or more; and
(d)if yes, whether Ms Cvetkovski has a continuing inability to work.
RELEVANT RULES
To medically qualify for DSP, a person must meet the qualification criteria set out in ss 94(1)(a)-(c) of the Social Security Act 1991 (“the Act”):
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)    the person has a physical, intellectual or psychiatric impairment; and
(b)    the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)    one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…
The requirement in s 94(1)(c)(ii) is not necessary if a person has a severe impairment of 20 points or more under a single table (“Impairment Table”) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Determination”).
To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks (“the qualification period”), as set out in Schedule 2 cl 4(1) of the Social Security (Administration) Act 1999 (“the Administration Act”). In this matter, the qualification period is 20 September 2018 to 20 December 2018.
It is important to note that medical evidence, such as reports or certificates, that are produced after the qualification period are only relevant to a claim for DSP to the extent that they provide evidence or corroborate the claimant’s condition during the qualification period.[9]
[9] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[10], Member Breen said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks) … If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
[10] [2012] AATA 922.
With respect to consideration of functional impact, the purpose of the Impairment Determination must be appreciated. In Ulukut and Secretary, Department of Social Services,[11] Senior Member Isenberg explained:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[11] [2014] AATA 399, [5].
The Tribunal’s responsibility is to assess Ms Cvetkovski’s eligibility for the DSP and decide the matter afresh, as opposed to reviewing the earlier decision for error.[12]
[12] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [68].
CONSIDERATION
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. A number of criteria must be met in order to qualify.
Issue 1 – Does Ms Cvetkovski have impairment?
In order to be considered for the DSP it is necessary to have a physical, intellectual or psychiatric impairment.
Reports from Dr Sing Ping Ting, general practitioner, dated 14 October 2014[13], 23 October 2018[14] and 5 February 2019,[15] identify Ms Cvetkovski as having impairments resulting from anxiety and depression.
[13] T28, p 235.
[14] T17, p 155.
[15] T20, p 164.
Ms Marni Ahmer, clinical psychologist, in a report dated 7 December 2017, describes the applicant’s impairments resulting from anxiety and depression.[16]
[16] T31, p 248.
The Secretary does not dispute, and the Tribunal is satisfied that Ms Cvetkovski has psychological impairments. For that reason, the Tribunal finds that Ms Cvetkovski satisfies the first criterion set out in s 94(1) of the Act.
Issue 2 – Is Ms Cvetkovski’s impairment permanent?
For a condition to be assigned an impairment rating under the Impairment Tables the condition must be considered permanent.[17]
[17] Impairment Determination, ss 6(3)-(4).
A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[18]
[18] Ibid, ss 6(5)-(7).
Once a condition has been fully diagnosed, fully treated and fully stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in light of available evidence, to persist for more than two years.[19]
[19] Ibid, s 6(4).
Anxiety and depression
When this matter was before AAT1 it was not disputed by the Secretary, and AAT1 was satisfied on the evidence before them, that Ms Cvetkovski’s conditions of anxiety and depression were permanent.
In light of further evidence, the Secretary now contends that the applicant’s mental health conditions were fully diagnosed but were not fully treated or fully stabilised within the qualification period.
As early as 15 June 2007 the Department noted in a Job Capacity Assessment (“JCA”) that Ms Cvetkovski was likely to suffer from an undiagnosed psychiatric or intellectual illness or disability.[20] At that stage Ms Cvetkovski had been out of the workforce for more than 10 years.
[20] T23, p 212.
The report of a JCA from 2 October 2009 details that Ms Cvetkovski had temporarily reduced her work capacity to 15-22 hours per week and was suffering from unconfirmed depression.[21]
[21] T24, p 218-219.
A JCA report dated 27 October 2010 discusses Ms Cvetkovski’s depression and five or six sessions of treatment with “Psychologist (Kathryn at Franklin House)”.[22]
[22] T25, p 226.
In a letter dated 20 October 2014 Mr Michael Tarrant, an accredited mental health social worker who had 14 meetings with Ms Cvetkovski over the previous ten months, discussed her presenting issues of depression and anxiety. He believed that she was suffering from undiagnosed Social Anxiety Disorder / Social Phobia.[23]
[23] T27, p 234.
On 24 October 2014, it appears in response to a request from the Physiotherapist completing an Employment Services Assessment (ESA) report, Dr Ting wrote:
Biljana Cvetkovski has been suffering from anxiety and depression for several years. She is on an antidepressant for the last 6 months. She will need to stay for this medication for the next few months.[24]
[24] T28, p 235.
The subsequent ESA report dated 27 October 2014 recommended that Ms Cvetkovski be referred to a Disability Employment Services (DES) provider because of her psychiatric problems or mental illness. This report also notes that, despite Dr Ting’s comments at paragraph 30 above, Ms Cvetkovski had denied using medication.[25]
[25] T29, pp 240-241 and 237.
A report dated 10 August 2015 by Ms Marni Ahmer, clinical psychologist, describes several of Ms Cvetkovski’s presenting issues and subsequent treatment, including cognitive behaviour therapy (“CBT”), mindfulness, and acceptance commitment therapy (“ACT”). Ms Ahmer also indicated the applicant’s Depression, Anxiety and Stress Scale 21 question (“DASS 21”) assessment results demonstrated a reduction in depression from severe to normal, and a reduction in stress from moderate to normal during the period from 11 February 2015 to 26 June 2015, and as a result of the strategies applied. At the time of the report Ms Cvetovski had participated in six appointments with Ms Ahmer.[26]
[26] Exhibit A4.
An ESA report dated 5 May 2016 cites a report from Dr Ting dated 3 May 2016. This report was not available to the Tribunal, but reportedly details that Ms Cvetkovski had been diagnosed with depression and anxiety in 2016; had presented with symptoms since 2006; was taking Zoloft; and had been seeing a psychologist, Ms Ahmer. The medical report provided a current work capacity of 0 to 7 hours with an uncertain prognosis. The conditions were noted to affect concentration, sleep, and physical and mental endurance.[27] The ESA report noted Ms Cvetkovski would be applying for DSP and recommended her for extended DES employment support services.
[27] T30, p 243.
Ms Ahmer’s report of 16 April 2017 notes that when Ms Cvetkovski was retested using the DASS 21 assessment tool on 10 March 2016 and 7 March 2017, her depression, anxiety and stress levels were consistently normal. This report also states that Ms Cvetkovski was no longer symptomatic but that there would be benefit in her continuing to attend sessions to work on goal setting, confidence and to assist her to return to work.[28]
[28] Exhibit A2.
A further report from Ms Ahmer dated 20 September 2017 stated that in discussions about progress, Ms Cvetkovski reported that she was feeling positive about her life and goals, was no longer symptomatic and didn’t think she needed any further sessions at this time.[29]
[29] Exhibit A3.
The final report from Ms Ahmer provided to the Tribunal was dated 7 December 2017. This report summarises Ms Ahmer’s treatment sessions with Ms Cvetkovski since February 2015. It lists the various approaches taken to treat Ms Cvetkovski’s presenting depression and anxiety, and to improve her ability to communicate with family and friends. The report also describes work on goal setting and “improving Ms Cvetkovski’s confidence to begin with some volunteer or course work to improve her skills and assist with entry into the workforce”.[30] This report does not include any indication of planned future treatment.[31]
[30] T31, p 248.
[31] Ibid.
A report from Dr Ting dated 5 February 2019, outside the qualification period, states that Ms Cvetkovski suffers from anxiety and depression.[32]
Fully diagnosed
[32] T20, p 164.
The Impairment Tables contain rules for their application (the “Rules”). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.[33]
[33] Impairment Determination, s 5(2)(b)-(d).
Impairment is defined as a loss of functional capacity affecting a person’s ability to work that result from the person’s condition.[34] A person’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[35]
[34] Ibid, s 3.
[35] Ibid, s 6(1).
The Impairment Tables may only be applied after the person’s medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than 2 years.[36]
[36] Ibid, ss 6(2)-(3).
A condition is permanent if it is fully diagnosed, treated and stabilised and likely to persist for more than 2 years.[37]
[37] Ibid, ss 6(3)-(7).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, 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 two years.[38]
[38] Ibid, s 6(5).
Table 5 of the Impairment Tables is used where a person has a permanent condition resulting in permanent impairment due to a mental health condition, and states in its Introduction:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
A report from Dr Ting dated 15 September 2020 indicates that she was involved in Ms Cvetkovski’s care during the qualification period and that Ms Cvetkovski had depression, anxiety and stress.[39] This diagnosis is supported by earlier reports from Dr Ting. The Tribunal is satisfied that Dr Ting is an appropriately qualified medical practitioner.
[39] Exhibit A1.
There is evidence from Ms Ahmer, a clinical psychologist, supporting Dr Ting’s diagnosis.
For these reasons the Tribunal is satisfied that Ms Cvetkovski’s mental health conditions are fully diagnosed.
Fully treated and stabilised
The Secretary contends that Ms Cvetkovski was not fully treated within the qualification period.
Dr Ting’s report of 23 October 2019 stated that Ms Cvetkovski was on Zoloft 50 mg daily to treat her anxiety and depression.[40]
[40] T17, p 155.
Ms Ahmer’s reports describe the application of a range of psychotherapies including CBT, mindfulness, ACT and targeted goal setting.[41]
[41] T31, p 248.
The Tribunal is satisfied that these treatments led to a substantial improvement in Ms Cvetkovski’s functional capacity. The last two of Ms Ahmer’s reports from the end of 2017 indicate that Ms Cvetkovski was positive about her life and goals and was no longer symptomatic.
Based on the available reports, a JCA dated 21 January 2019 stated that Ms Cvetkovski’s condition was fully treated and fully stabilised.
Dr Ting, in the report dated 15 September 2020, stated that Ms Cvetkovski had “coped better while she was on medication” but was now “only taking medication intermittently”. Dr Ting also reported that Ms Cvetkovski’s psychotherapy had ceased in June 2018.[42]
[42] Exhibit A1.
Ms Cvetkovski’s DSP claim form submitted on 20 September 2018 stated that she was taking medication and that the treatment was causing her lethargy, whilst also impacting on her concentration, memory, and ability to perform tasks and duties.[43]
[43] T9, p 132.
The change in described symptomology between the end of 2017 and the time when Ms Cvetkovski lodged her claim for DSP in September 2018 is, according to the Secretary, of significance. In light of comments from Dr Ting, that Ms Cvetkovski coped better whilst on medication, and her treating psychologist’s comments indicating the psychotherapy had been efficacious; it appears that Ms Cvetkovski had not been fully treated at the time of her claim submission.
In oral evidence Dr Ting stated that she had seen Ms Cvetkovski 15 or so times since her first visit on 28 August 2012, and that Ms Cvetkovski had also seen some other doctors in the practice. Doctor Ting reiterated the efficacy of the medication and psychotherapy treatments, and emphasised that Ms Cvetkovski had only intermittently taken medication, as evidenced by her not returning for prescriptions. Dr Ting was also aware that Ms Cvetkovski has stopped seeing her psychologist prior to submitting her claim.
Dr Ting confirmed that the report of 15 September 2020 described Ms Cvetkovski’s condition at the time of her claim and agreed that the condition had deteriorated because of lack of treatment.
The last two of Ms Ahmer’s reports from the end of 2017 indicate that Ms Cvetkovski was positive about her life and goals and was no longer symptomatic. By the time the DSP claim was lodged in September 2018 Dr Ting describes Ms Cvetkovski as having considerably reduced function and an inability to work or study for at least 15 hours a week.
Section 6(6) of the Rules states that a condition is fully stabilised if:
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years; or
(b)the person has not undertaken reasonable medical treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.
For the purposes of s 6(6) of the Rules, reasonable medical treatment is treatment that is:
(a)available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.[44]
[44] Impairment Determination, s 6(7).

Ms Cvetkovski has, over a long period of time, indicated a preference for herbal treatments over prescribed medication.[45] On the evidence of Dr Ting, Ms Cvetkovski has intermittently taken the medication prescribed and this medication has improved her condition when it has been taken as prescribed.[46] Ms Cvetkovski determined that because she was no longer symptomatic she would cease attending appointments with her psychologist under a mental health care plan.[47]
[45] T25, p 225; T26, p 232.
[46] Exhibit A1.
[47] Exhibit A3.
The Tribunal is satisfied, based on the evidence provided, that the treatments demonstrated to be efficacious, and which Ms Cvetkovski had participated in, were reasonable medical treatments as described in the Rules. The Tribunal is also satisfied based on documentary as well as oral evidence from Dr Ting, that significant functional improvement could again be achieved, which would provide Ms Cvetkovski a realistic opportunity to undertake work within the next two years from the time she lodged her claim.
On the evidence before it, the Tribunal is satisfied that by ceasing psychotherapy, and only taking her medication intermittently, Ms Cvetkovski’s condition deteriorated in the lead up to lodging her claim. The corollary to this is, as was stated by Dr Ting in oral evidence, further reasonable treatment was likely to reduce her symptoms of anxiety and depression and lead to significant functional improvement in the two years from the date of her claim. For this reason, the Tribunal is not satisfied that at the time of her claim, and during the qualification period, Ms Cvetkovski was fully treated or fully stabilised.
The Impairment Tables may only be applied after the person’s medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than 2 years.[48]
[48] Impairment Determination, ss 6(2) – (3).
A condition is permanent if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years.[49]
[49] Ibid, ss 6(3) – 6(7).
As the Tribunal has found that Ms Cvetkovski’s mental health condition was not fully treated and fully stabilised during the qualification period, the condition is not permanent and for this reason the relevant Impairment Table cannot be applied.
One of the required criteria to qualify for DSP is that “the person’s impairment is of 20 points or more under the Impairment Tables”.[50] The Tribunal finds the criterion at s 94(1)(b) of the Act has not been met.
[50] Section 94(1)(b) of the Act.
All three requirements of s 94(1) must be met in order to qualify for DSP. As Ms Cvetkovski has not met the second requirement it is not necessary for the Tribunal to further explore Ms Cvetkovski’s continuing inability to work[51] as she cannot qualify for DSP regardless of any findings in relation to this.
[51] Section 94(1)(c) of the Act.
CONCLUSION
The Tribunal is satisfied that Ms Cvetkovski has “physical, intellectual and psychological impairments” and finds that Ms Cvetkovski satisfies the first criterion in s 94(1)(a) of the Act.
The Tribunal was not satisfied on the evidence that Ms Cvetkovski’s mental health conditions were permanent during the qualification period and so these conditions were not assessed using the Impairment Determination. For this reason, Ms Cvetkovski was not assigned a rating of 20 points or more under the Impairment Tables and so does not meet the requirement in s 94(1)(b) of the Act.
As Ms Cvetkovski does not qualify under s 94(1)(b) the Tribunal has not considered whether she met the requirements of s 94(1)(c).
The Tribunal finds that Ms Cvetkovski does not satisfy ss 94(1)(b) of the Act and for that reason the decision to reject her claim for DSP should be affirmed.
DECISION
The decision under review is affirmed

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood.

.............[Sgnd]........................
Associate
Dated: 10 February 2021

Date of hearing: 4, 14 December 2020

Representative for the Applicant: Self-represented

Representative for the Respondent: Mr Domenic Nocera, SPARKE HELMORE

Date of hearing:	4, 14 December 2020
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr Domenic Nocera, SPARKE HELMORE