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

Dawson and Secretary, Department of Social Services (Social services second review) [2016] AATA 332 (23 May 2016)

Division

GENERAL DIVISION

File Number(s)

2015/5184

Re

Kerrie Dawson

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 23 May 2016

Place Sydney
The decision under review is affirmed.

...........................[sgd] .............................................
Mr S. Webb, Member
SOCIAL SECURITY – disability support pension – impairments – assessment of functional impact of impairments – construction of Impairment Tables and ancillary rules – - mental health function impairment assessment rules under Table 5 – meaning of ‘with evidence from a clinical psychologist’ - requirement for 20 or more points not met – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901, s 15AA

Legislation Act 2003, s 13
Social Security Act 1991, s 23, 94

Social Security (Administration) Act 1999, ss 39, 41, 42, Sch 2

CASES
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325
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

Guide to Social Security Law)
REASONS FOR DECISION
Mr S. Webb, Member
23 May 2016

Kerrie Dawson struggles with a number of conditions that affect her ability to function and work. She has done so for several years. She lodged a claim for disability support pension (DSP) but this was rejected by primary determination and on review. Ms Dawson is not satisfied with this outcome.
PROCEDURAL FACTS
On 2 February 2015, Ms Dawson lodged a claim for DSP.[1]
[1] T35.
On 12 March 2015, a Centrelink officer determined to reject Ms Dawson’s DSP claim.[2]
[2] T38.
On 3 June 2015, an Authorised Review Officer affirmed the decision to reject Ms Dawson’s claim for DSP.[3]
[3] T42 and T43.
On 10 September 2015, the Social Services & Child Support Division of this Tribunal affirmed the decision to reject Ms Dawson’s DSP claim.[4]
[4] T2.
On 6 October 2015, Ms Dawson lodged an application for review.[5]
[5] T1.
ISSUES
The issue is whether Ms Dawson qualified for grant of DSP.
In order to qualify for DSP, Ms Dawson’s claim must be assessed under s 94 of the Social Security Act 1991 (Cth) (the Social Security Act) and the qualification criteria for DSP must be satisfied. For this reason, it must be established that Ms Dawson has –
(a)a physical, psychological or mental impairment;
(b)the impairment or impairments must attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination); and
(c)a continuing inability to work.
In respect of a continuing inability to work, if Ms Dawson does not have a ‘severe impairment’ for the purposes of s 94(3B), the Secretary accepts that she has ‘actively participated in a program of support’ as defined by s 94(5) and that she has met the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Active Participation Determination).
Under ss 39, 41 and 42 and Pt 2 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), for DSP to be payable, Ms Dawson must be found to satisfy the DSP qualification criteria on the day on which she lodged her DSP claim or within 13 weeks thereafter (the qualification period). If the qualification requirements are not met within this period, DSP will not be payable and her claim must fail.
This means that her impairments must be assessed with regard to the qualification period commencing on 2 February 2015 and ending on 4 May 2015. For this purpose it is appropriate to have regard to evidence, including medical evidence, before and after the qualification period insofar as this is relevant to assessment of her impairments during that period.
IMPAIRMENTS
The documents before the Tribunal, including medical reports by Dr Perriman, Dr Volceva, Dr Ivits, and Dr Fernando, treating general practitioners over time, clearly establish that Ms Dawson has suffered from a number of health conditions. I am reasonably satisfied that the following ailments adversely affected her functional capacity during the qualification period –
(d)cervical and lumbrosacral spine pathology causing pain and movement restriction;
(e)depression and anxiety affecting mood and cognitive functions;
(f)diverticular disease with bowel symptomatology; and
(g)upper and lower limb pathology, including bi-lateral carpal tunnel syndrome and osteoarthritis of hands and feet, causing pain and movement restriction.
The evidence establishes that Ms Dawson suffered from functional impairments to her spine, mind, digestive system, upper limbs and lower limbs during the qualification period.
The first test for DSP under s 94(1)(a) is satisfied.
It is also quite clear that Ms Dawson was diagnosed with other conditions, including a hiatus hernia, glaucoma, a fatty liver and a squamous cell skin cancer. Furthermore, she suffers from respiratory conditions, including emphysema and asthma, causing shortness of breath. The present evidence does not establish the extent to which, if at all, these conditions affected her functional capacity or caused impairment during the qualification period.
IMPAIRMENT RATINGS
For the purposes of s 94(1)(b) of the Social Security Act, it is necessary to determine whether Ms Dawson’s impairments attract a rating of 20 or more points under the Determination. The Determination is delegated legislation that must be construed in accordance with the objects and purposes of the Social Security Act.
Before moving on to consider Ms Dawson’s various health conditions and functional impairments, I think it is desirable to say some things about the construction of the Determination.
Construction of the Determination
Part 2 of the Determination sets out rules that must be applied, generally, when applying the Impairment Tables set out in Part 3. Each Impairment Table sets out additional rules that must be applied in respect of that Table. The rules have statutory force under s 26(3) of the Social Security Act and are binding.
At this point, it is important to notice three things.
Firstly, the Determination is a legislative instrument to which the Legislation Act 2003 (Cth) applies. This means that the Determination has legislative force and, under s 13(1)(c) of that Act, it must be ‘read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument’.
The powers conferred on the Minister to determine Impairment Tables and related rules are set out in s 26 of the Social Security Act –
Impairment Tables
(1) The Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension.
(2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
If the Determination is construed to exceed the power under which it is made, the excess may be invalid - Bromberg J summarised the principles attaching to the validity of delegated legislation in Parker v Minister for Sustainability, Environment, Water, Population and Communities[6] at [61] to [68].
[6] [2011] FCA 1325.
Secondly, under s 15AA of the Acts Interpretation Act 1901 (Cth), bearing in mind what French CJ, Hayne, Crennan, Bell and Gageler JJ said in Commissioner of Taxation v Consolidated Media Holdings Ltd[7] at [39] about the importance of the text and the context of the legislation, the construction that would best achieve the purposes of the particular Act is to be preferred to every other interpretation. That is so whether or not the particular purpose or object is expressly stated.
[7] [2012] HCA 55.
It is perhaps trite to observe that beneficial legislation, such as the Social Security Act and the Determination, should be construed broadly and any ambiguity should be resolved in a manner that is consistent with the beneficial purposes of the legislation.
And thirdly, under s 5(2) of Part 2 of the Determination, the ‘Tables’ are ‘function based rather than diagnosis based’ and are ‘designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions’. The word ‘Tables’ is defined in s 3 of the Determination to mean ‘the tables relating to the assessment of work-related impairment for disability support pension which are set out in Part 3 of this Determination’.
It is quite clear, therefore, under s 26(1) of the Social Security Act and s 5(2) of the Determination, that the Impairment Tables are for rating functional impairments for the purposes of s 94(1)(b) of that Act. These are impairments determined under s 94(1)(a) of the Social Security Act. The rating assessment is subject to rules set out in the Determination. The Impairment Tables are not designed or intended, or authorised, for the assessment of medical conditions.
Under the authority of s 26(3) of the Social Security Act, the rules in Part 2 of the Determination set out criteria ancillary to the assessment of functional impairment under the Tables. This framework of rules precludes assignment of an impairment rating under any Table for an impairment that does not meet certain threshold requirements. These include requirements for the underlying causal medical condition to be ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’ and ‘permanent’, and for the impairment to be found likely to persist for more than 2 years. It is in this manner that the diagnosis of a ‘condition’ arises – it is a threshold issue.
When determining whether a condition is ‘permanent’, applying the rules set out in s 6(4) of the Determination, the test is whether the condition has been ‘fully diagnosed’ by an ‘appropriately qualified medical practitioner’ and ‘fully treated’.
For that purpose, under s 6(5), it is necessary to consider –
(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 planned in the next 2 years.
The term ‘appropriately qualified medical practitioner’ is defined under s 3 to mean ‘a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition’, and the term ‘medical practitioner’ is given meaning under s 23(1) of the Social Security Act –
medical practitioner means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.
There is a question whether these considerations, and the test of whether a medical condition is ‘permanent’, step beyond assessment of an ‘impairment’ and stray into assessment of a ‘condition’, potentially exceeding the power conferred by s 26 of the Social Security Act. I would not construe the tests and the rules in that way – the tests relating to a medical condition are matters for evidence that go to the character, duration and extent of resulting impairment and the likelihood, or otherwise, that any functional impact of the impairment may be reduced.
The first step, therefore, ‘before a decision-maker can assign an impairment rating’[8] is to determine whether the condition causing the impairment is ‘permanent’. This is to be done applying the rules set out in Part 2 of the Determination – if a condition does not meet the requirements set out in s 6(4), it cannot be treated as ‘permanent’ under s 6(3)(a) and an impairment rating cannot be assigned to any impairment resulting from the condition under any particular Table.
[8] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 at [26].
The second step is to determine whether or not an impairment resulting from a ‘permanent’ condition is likely to persist for at least 2 years. This requires consideration of the available evidence – if the evidence establishes that the impairment is not likely to persist for more than 2 years, then an impairment rating cannot be assigned under any particular Table.
These assessments (of the permanence of a condition and the likely persistence of an impairment caused by the condition) must be undertaken before moving to assess the functional impact of the impairment under the relevant Table set out in Part 3.
Once these assessments have been made, the third step is to apply the relevant Table, and in so doing abide by the introductory rules set out in the Table.
Cervical and lumbrosacral spine
Extensive degenerative changes in Ms Dawson’s cervical spine were diagnosed following X-ray investigation on 25 January 2012.[9] On 9 August 2012, Dr Perriman reported that Ms Dawson experienced back pain secondary to disc degeneration in her spine following an injury at work in or about 2000. Future treatment for this condition was reported to be physiotherapy and analgesic medication. Dr Perriman reported that the effect of the condition was likely to fluctuate and to persist for more than 24 months.
[9] T10.
Subsequent radiological investigations of Ms Dawson’s lumbrosacral spine reveal frank pathology at L3/4, L4/5 and L5/S1 with canal stenosis at L4/5.[10]
[10] T17, T18 and T21.
On 7 March 2013, Dr Volceva reported that Ms Dawson suffered from chronic back pain. This was to be treated with analgesia and physiotherapy, but the prognosis was uncertain. Dr Volceva reported that the condition was likely to persist for more than 24 months.[11]
[11] T24.
On 26 November 2013, Dr Gazt reported that Ms Dawson was suffering from chronic low back pain and chronic neck pain causing some physical restrictions.[12]
[12] T28.
On 8 April 2014, Dr Fernando issued a medical certificate in which he reported “OA – cervical spine and lumber [sic] spine” that he described as “permanent” with “neck pain, back pain” that was “likely to persist”.[13] Dr Fernando certified that Ms Dawson was unfit for work at the time of assessment.
[13] T30.
On 2 February 2015, Dr Fernando reported that Ms Dawson’s “back” osteoarthritis is generally well managed and it causes minimal or limited impact on her ability to function.[14] Rather cryptically in the same report, Dr Fernando states that Ms Dawson’s osteoarthritis will “remain unchanged & will not improve (impacts on ADL’s)”.[15] What, precisely, is meant by this reference to ‘ADL’s’ is not clear, although, commonly, it is a reference to ‘activities of daily living’. Dr Fernando was not called to give evidence orally, so these parts of his evidence could not be explored or tested. However Dr Fernando’s report is construed, I think it is tolerably clear he is reporting that Ms Dawson’s spine conditions impact on her functional capacity, although the extent of such impact is not made clear.
[14] T36 folio 214.
[15] T36 folio 213.
The Secretary accepts, correctly, that this condition is fully diagnosed, fully treated and fully stabilised for the purposes of the Determination. I am satisfied that the osteoarthritis and other spinal pathology in Ms Dawson’s lumbrosacral spine and in her cervical spine are permanent conditions for the purposes of s 6 of the Determination.
Ms Dawson’s resulting spinal impairment is to be assessed under Table 4.
The introductory rules in Table 4 require corroboration of the person’s impairment by a doctor or health practitioner – self report of symptoms, alone, is not sufficient.
Dr Fernando’s evidence in respect to Ms Dawson’s spinal impairment during the qualification period is scant, imprecise and difficult to follow, but it is clear enough that he reported Ms Dawson’s movements were restricted by pain.[16] Doing the best with this evidence, and having regard to medical reports documenting Ms Dawson’s history of spinal impairment,[17] I am reasonably satisfied that the relevant medical evidence supports and corroborates her account of restricted motion, bending, twisting and undertaking household activities.
[16] See T36 folio 210, for example.
[17] See T22 folio 135 and T28 folio 166, for example.
To my mind, this is consistent with a mild functional impact on activities involving spinal function, attracting a rating of 5 points under Table 4.
Depression, anxiety, panic attacks and alcohol abuse
On the evidence before the Tribunal, it is probable that Ms Dawson has experienced depression and anxiety over many years. She gave uncorroborated, but unchallenged, evidence that she consulted a psychiatrist a number of years ago. Unfortunately, she could not recall the psychiatrist’s name.
In the circumstances, it is germane to set out her history of mental health conditions arising from the available materials.
On 12 September 2011, Dr Babic, a general practitioner, reported a diagnosis of depression, but gave no details about the history of this condition.[18] This report listed depression as a condition having a minimal impact on Ms Dawson’s ability to function at that time, although Dr Babic records that the condition had an uncertain prognosis and was to be treated with counselling as required.
[18] T7 folio 106.
An Employment Services Assessment Report by Robert McKenzie, a registered psychologist, on 15 September 2011, states that –
The MR confirmed a diagnosis of depression. The MR indicates minimal functional impact. The client reported occasional low mood and anxiety impacting on ability to cope with stress and perform work tasks. Treatment: Past: Counselling. Current: Nil. Future: Counselling as required.[19]
[19] T8 folio 110.
On 4 June 2012, Margot Klein (apparently also known as Margot Doohan), a psychologist with Clinical Psychology Solutions Pty Ltd, reported to Dr Volceva –
Thank you for referring [Ms Dawson] to this service. [Ms Dawson] completed a Depression Anxiety Stress Scale on 14.5.12 and the results indicate that she is suffering from extremely severe depression (raw score 34) and extremely severe anxiety (raw score 33), as well as severe stress (raw score 29). These scores are consistent with the diagnosis provided in your referral.[20]
[20] T13 folio 118.
On 9 August 2012, Dr Perriman reported a diagnosis of depression and anxiety – “Alcohol dependence in the past and now since cessation anxiety & depression”.[21] Treatment was rehabilitation and antidepressant medications. Dr Perriman reported that Ms Dawson was unable to concentrate at times and that the condition was expected to affect Ms Dawson’s ability to function for up to 24 months and to improve somewhat. On 6 September 2012, Dr Perriman certified a diagnosis of anxiety which he reported was an exacerbation of an existing condition. He recorded the date of onset for this to be 1 December 2000.[22]
[21] T16 folio 124.
[22] T20 folio 133.
On 21 December 2012, Dr Ivits certified a diagnosis of “Depression and anxiety” that was “ongoing” and “fluctuating”.[23]
[23] T22 folio 135.
On 7 March 2013, Dr Volceva reported a diagnosis of “Depression – anxiety severe” that was supported by the ‘specialist opinion’ of Margot Klein.[24] I note that Dr Volceva recorded Ms Klein’s name in the box reserved for ‘Psychiatrist/Clinical Psychologist’. Dr Volceva reported treatment for Ms Dawson’s depression and anxiety condition included medication and counselling. It appears that Ms Klein provided counselling treatment to Ms Dawson over a lengthy period. Dr Volceva noted a 25 to 30 year history of depression that was affecting Ms Dawson’s ‘neurological/cognitive function (e.g. concentrating, decision making, memory, problem solving)’ and her ‘behaviour, planning, interpersonal relationships’, and recorded that the effects of this condition were likely to persist for more than 24 months with an uncertain prognosis.[25]
[24] T24 folio 146.
[25] Ibid, folio 148.

A summary of Ms Dawson’s patient medical record details dated 26 April 2013 records her ‘Current Medical History’ to include –
“2005 …
…
1998 Depression
Severe anxiety
Previous alcohol abuse
…”[26]
[26] T26 folio 156.
On 26 November 2013, Dr Gazt, a general practitioner, reported that Ms Dawson had depression at that time.
On 16 January 2014, Ms Dawson was delivered by Police to the Manning Base Hospital Emergency Department Mental Health facility “on a background of having ceased venlafaxine four days ago due to not having money to pay for a doctor’s visit and scripts”.[27] The documents before the Tribunal in respect of this admission are not complete – there is only the Hospital Psychiatry (Mental Health) Discharge Referral dated 20 January 2014. This document was issued for Dr Neale with input from Dr Cheah, a resident medical officer. It records that Ms Dawson had a primary diagnosis of Major Depressive Disorder with secondary diagnoses of Situational Crisis and Suicide Ideation, and that she was discharged with antidepressant medications on 17 January 2014 into the care of her treating doctor. Precisely who made the diagnoses at the Manning Base Hospital is not clear. It is not possible to determine whether Ms Dawson was assessed by a psychiatrist or a clinical psychologist during that enforced admission, although it may be inferred that she was in the particular circumstances.
[27] T29 folio 169.
On 8 April 2014, Dr Fernando certified that Ms Dawson was unfit for work or study and she was suffering from depression with an uncertain prognosis.[28]
[28] T30 folio 172.
On 2 February 2015, Dr Fernando reported that Ms Dawson was suffering from “Major Depression, Anxiety, Panic Attacks” that began in 1998. He confirmed that the diagnosis was supported by specialist opinion, namely that of Margot Doohan (also known as Margot Klein). He recorded Ms Doohan’s name in the box reserved for ‘Psychiatrist/Clinical Psychologist’ in the Centrelink Medical Report form and noted that Ms Dawson had received treatment for the condition in the form of psychological counselling and antidepressant medication since 1998.[29] Treatment was reported to be “Ongoing medication, counselling” - consultation with Margot Doohan was said to be ongoing.[30] Dr Fernando reported that the impact of the condition was expected to persist for more than 24 months, with a deteriorating prognosis.
[29] T36 folio 208.
[30] Ibid, folio 209.
On 10 March 2015, a Job Capacity Assessment Report by a registered Occupational Therapist, ‘Andrew’, and a registered Psychologist, ‘Jayde’ addressed the condition “Psychol/Psychiatric Disorder – Other”. This condition was said to be permanent and verified by medical evidence,[31] but it was found not to be fully diagnosed, fully treated and fully stabilised –
“As this condition has not been verified by a psychiatrist or clinical psychologist (NB a review of the AHPRA Website does not reveal a Clinical Psychologist named Margot Doohan) and future treatment options that may improve the client’s prognosis are yet to be explored, the condition cannot currently be considered to fulfil the fully diagnosed, treated and stabilised criteria.”[32]
[31] T37 folio 216.
[32] Ibid, folio 217.
The basis of the Job Capacity Assessors’ report that future treatment options, which had not been explored, may improve Ms Dawson’s psychiatric condition is not at all clear. There is nothing in the present materials to suggest that Ms Dawson had not explored or had not undertaken treatments recommended and prescribed by her treating health practitioners. There is nothing in the materials to suggest other treatment options that may improve her psychological condition. On the contrary, Dr Fernando indicated that the impact of the condition on her ability to function was expected to deteriorate.
As to the proposition that Margot Doohan (otherwise known as Margot Klein) was not formally endorsed as a ‘clinical psychologist’ when she reported to Dr Volceva in June 2012 or subsequently, this appears to be correct. There is no evidence that she held a formal clinical psychologist endorsement under the national Australian Health Practitioners Registration Authority (AHPRA) legislative scheme. Nevertheless, it is quite clear that Dr Volceva referred Ms Dawson to Clinical Psychology Services for psychological assessment and treatment. That is what occurred.
Much was made of this at hearing. The significance of the requirement in Table 5 for ‘evidence from a clinical psychologist’ must be properly understood. I have received written submissions from the Secretary addressing this and related issues, including extracts of Departmental Policy Guidelines that were not provided previously.
In order to address these issues, it is necessary to consider the proper construction of the introductory rules in Table 5.
How is the second rule in Table 5 to be construed?
The introductory rules in Table 5 are as follows –
·     Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·     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).
·     Self-report of symptoms alone is insufficient.
·     There must be corroborating evidence of the person’s impairment.
·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
-a report from the person’s treating doctor;
-supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
-interviews with the person and those providing care or support to the person.
·     In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·     The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·     The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·     For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The first introductory rule in Table 5 provides that the Table is to be used ‘where the person has a permanent condition resulting in a functional impairment due to a mental health condition’. Disregarding the rather circular form of this rule, it is clear enough that it gives effect to the general rule under s 6(3)(a) and specifies the kind of impairment that is assessable under the Table.
The second introductory rule in Table 5 is in respect of ‘diagnosis of the condition’.
In the Secretary’s submission, the second rule in Table 5 is to be read with the rules in Part 2 of the Determination when determining whether a mental health condition is ‘permanent’ for the purposes of s 6(3) – in effect, the rule imposes an additional requirement to the rules set out in s 6(4)(a) and 6(5) of Part 2 of the Determination. The Secretary argues that diagnosis of a mental health condition is to be made by a psychiatrist or a ‘clinical psychologist’ (if the doctor is not a psychiatrist) – diagnosis by a general practitioner, alone, is not sufficient. Furthermore, the reference to a ‘clinical psychologist’ means a registered psychologist with a clinical endorsement under the national AHPRA legislative scheme.
Diagnosis for the purposes of Table 5
As I understand the first limb of the Secretary’s argument, a mental health condition diagnosed by a doctor who is not a psychiatrist could not be taken to be ‘fully diagnosed’ under s 6(4)(a), or ‘permanent’ for the purposes of s 6(3), without reference to the introductory rules in Table 5 and the requirement for evidence from a clinical psychologist. Under this construction, Table 5 would be read together with the provisions of s 6(3) and s 6(4) concerning the permanence of a condition – adding an additional threshold requirement at the gateway to Table 5.
I note that rules relating to diagnosis of a condition appear in all of the Tables.
In Tables 1, 2, 3, 4, 6, 7, 8, 10, 13, 14 and 15, the basic requirement is that ‘diagnosis of the condition must be made by an appropriately qualified medical practitioner’. These rules repeat the diagnostic test set out in s 6(4)(a) that must be applied when determining whether or not the condition is permanent for the purposes of s 6(3)(a). It is not clear that these rules are intended to serve any additional purpose in the assessment of functional impairment under the particular Tables to which they apply – in effect, they are threshold or gateway provisions.
In Table 9, an ‘assessment of the condition must be made by an appropriately qualified psychologist’. The term ‘appropriately qualified psychologist’ is not defined, and it is not clear whether the qualification required is that of a ‘medical practitioner’ as required by s 6(4)(a) – a psychologist is not within the defined meaning of ‘appropriately qualified medical practitioner’.
In Tables 11 and 12, diagnosis of the condition by an ‘appropriately qualified medical practitioner’ must be ‘with supporting evidence’ from an audiologist or an Ear, Nose and Throat specialist (Table 11) or from an ophthalmologist (Table 12).
As I have said, the Tables in Part 3 of the Determination are expressly for the purposes of ‘assessing the level of functional impact of impairment and not to assess conditions’. Table 5 is for the assessment of mental health function impairment. There is a question whether the construction contended for by the Secretary, concerning the particular diagnostic requirement in Table 5 in respect of ‘the condition’, strays beyond assessment of impairment into assessment of a condition and, if so, whether this is consistent with the principles expressed in s 5 of the Determination, the purposes of s 94(1)(b) of the Social Security Act and the authority conferred by s 26(1) of that Act. But these are not issues I need to resolve for present purposes on the facts of this case.
Questions of validity aside, the second introductory rules in Tables 5, 9, 11 and 12 impose evidentiary requirements in respect of diagnosis (Tables 5, 11 and 12) and assessment (Table 9). Each is intended to apply, as the Secretary contends, at the gateway to the Table in which it appears. The evidentiary requirements are in addition to the general rule in respect of diagnosis of a condition under s 6(4)(a) and permanence of a condition under s 6(3)(a).
Diagnosis by a psychiatrist or a clinical psychologist
The Secretary’s second proposition is that in a case where a mental health condition is not diagnosed by a psychiatrist or a clinical psychologist, a rating cannot be assigned to any resulting impairment under Table 5.
There are three difficulties with this interpretation. Firstly, the proposition does not appear to be consistent with the language of the rule. The rule does not require diagnosis by a psychiatrist or a clinical psychologist. Rather it requires diagnosis by an ‘appropriately qualified medical practitioner’, which includes a psychiatrist, but, by definition under s 3 of the Determination, it does not include a clinical psychological unless the psychologist is also a qualified medical practitioner.
Secondly, the rule requires that, where the diagnosis is made by a doctor who is not a psychiatrist, the diagnosis is made ‘with evidence from a clinical psychologist’.
Does this mean, as the words convey, that the diagnosis was made by a doctor (other than a psychiatrist) with (in the presence of or having regard to) evidence from a clinical psychologist? Or does it mean, for the purposes of applying the Table, that there is evidence before the decision-maker of diagnosis by a doctor conjunctively with evidence from a clinical psychologist, possibly from a different time? Or does it mean, as the Secretary submits, that it imposes a “legislative requirement for a person to be diagnosed by a clinical psychologist or psychiatrist for the purposes of DSP qualification” – the requirement is for “corroborating medical evidence from a psychiatrist or clinical psychologist that confirms the diagnosis of a mental health condition”?[33]
[33] Secretary’s Submissions, 21 April 2016, page 2 at [3] and [4].
To my mind the rule does not mean ‘diagnosis’ by a clinical psychologist, as the Secretary contends. The word ‘with’ is open to different meanings in this context, but it is quite clear that the requirement is for evidence from a clinical psychologist that is consistent with or supportive of the diagnosis. For evidence of the requisite kind to support a diagnosis it must relate, directly or indirectly, to the mental condition of the person at or about the time the diagnosis was made. There may be cases in which diagnosis by a non-psychiatrist doctor precedes or post-dates evidence from a clinical psychologist, for example where a diagnosis is made prior to treatment by a clinical psychologist. To my mind, the second rule in Table 5 is sufficiently broad to allow for this, so long as the relational element is satisfied.
This construction is consistent with the Secretary’s Guide to Social Security Law (the Policy Guide) at ‘3.6.3.50 Guidelines to Table 5 – Mental Health Function’, which provides that –
Supporting evidence for the DSP claim can include professional or clinical reports but can also include advice from the general practitioner that the person has been seen by a clinical psychologist or a psychiatrist who made or confirmed the diagnosis or provided evidence in support of the diagnosis. This advice can be either in writing or verbally provided to the assessor. Verbal confirmation must be documented and added to the person's Medical Information File.
This suggests that the rule may be satisfied by evidence from a doctor (who is not a psychiatrist) that the person has ‘been seen’ by a clinical psychologist who provided evidence (to the doctor) supporting the diagnosis. I other words, the rule may be satisfied by relevant evidence from a non-psychiatrist doctor without direct evidence from a clinical psychologist being provided to a decision maker – evidence from the person’s treating doctor that a clinical psychologist supported the diagnosis may be sufficient.
Importantly, the question of diagnosis must be answered with reference to the claim for DSP - the test of permanence of a condition must be satisfied within the qualification period. Material before the Tribunal, on review, generated after the qualification period must be considered insofar as it relates to the nature and extent of impairments, and causal conditions, during that period.
Thirdly, even though some flexibility is allowed under the Policy Guide in respect of ‘vulnerable people’ and ‘use of specialist assessments’, if the rule is strictly applied, as presently construed by the Secretary, it would not allow flexibility to address the wide variety of circumstances affecting people with mental illnesses. A person with a long-standing mental illness may have been diagnosed and treated by a psychiatrist or a clinical psychologist in the past, but the illness may impair the person’s cognitive functions, relating to memory and understanding for example, such that the person cannot recall who diagnosed and treated their condition. Where a person suffering a mental illness is involuntarily admitted to a hospital for emergency mental health treatment, in the presence of psychosis or suicide ideation for example, the person may not know (and the records may not reveal) the qualifications of those who provided diagnostic assessment and treatment. In many rural and remote locations, a person suffering from a mental illness may not be in a position to obtain diagnostic assessment or treatment by a psychiatrist or evidence from a clinical psychologist – services of that kind may simply not exist in that area or be available for the person to access in a timely manner or at a reasonable cost. In each case, strictly, the rule would preclude assignment of an impairment rating under Table 5. A strict interpretation that may lead to arbitrary, unreasonable or disproportionate operation of the rule in some circumstances is not preferred.
To some extent, these difficulties may be answered by evidence from the person’s treating doctor, without a requirement for direct evidence from a psychiatrist or a clinical psychologist, and careful consideration of the person’s medical history. I think that this is a preferable construction of the second rule in Table 5.
Clinical psychologist
The Secretary’s third contention goes to the proper meaning of the term ‘clinical psychologist’. This term is not given any special meaning in the Determination or in the Social Security Act.
The Secretary maintains that, for the purposes of the Determination, a ‘clinical psychologist’ is a registered psychologist with a formal clinical psychologist endorsement under the AHPRA scheme. This meaning is expressed in the Policy Guide at 3.6.3.50: Guidelines to Table 5 – Mental Health Function.
But the term may have another meaning in ordinary language - it may simply refer to a psychologist who has assessed or treated the person in a clinical setting.
Nevertheless, having regard to the legal requirement for registration of psychologists under State laws, and I note the Health Practitioner Regulation National Law (NSW), it is quite clear that all psychologists providing clinical assessment or treatment to patients must be registered under the AHPRA scheme. For this reason, for the purposes of Table 5, I think the term ‘clinical psychologist’ can be taken to mean a psychologist who is registered to practice and provide clinical assessment and treatment services under the AHPRA scheme, as the Secretary contends.
I do not need to go any further on these points. I have dealt with them in some detail in order to address issues that arose in the hearing and the Secretary’s written submissions on related matters.
Permanent mental health condition
I am satisfied that Ms Dawson’s Major Depressive Disorder was diagnosed by ‘an appropriately qualified medical practitioner’, namely Dr Fernando, Dr Neale, Dr Cheah, Dr Volceva, Dr Ivits, Dr Perriman, Dr Gazt and Dr Babic. I am not able to determine on the present evidence whether any of these doctors is a registered psychiatrist. There is some evidence that Ms Dawson consulted a psychiatrist in the past, but the particularity of such consultation is not presently established by documentary evidence and her treating doctors make no reference to it.
Dr Fernando made his diagnosis with supporting evidence from the Manning Base Hospital Mental Health Unit. He and Dr Volceva made their (consistent) diagnoses with supporting evidence from Ms Klein (aka Doohan) – both doctors recorded her as a ‘psychiatrist/clinical psychologist’. The medical evidence over a substantial period is very consistent on the diagnosis of Ms Dawson’s mental health condition.
As regards Ms Klein’s registration under the AHPRA scheme, it appears that her clinical assessment and treatment of Ms Dawson was on referral to Clinical Psychology Solutions Pty Ltd by Dr Volceva and Dr Fernando. As I have said, Ms Klein was registered under the AHPRA scheme as a psychologist, but without formal endorsement as a clinical psychologist. Her report dated 4 June 2012 is on the letterhead of Clinical Psychology Solutions Pty Ltd.[34]
[34] T13 folio 118.
The legal basis on which Ms Klein and Clinical Psychology Solutions Pty Ltd provided clinical assessment and counselling treatment to Ms Dawson is not presently established. There is no evidence of personnel, other than Ms Klein, who were involved in Clinical Psychology Solutions Pty Ltd, and there is no evidence of the circumstances in which Ms Klein provided clinical psychological assessment and treatment to Ms Dawson in the clinical practice of that company.

I do not need to go any further with this – the evidence of Dr Fernando and Dr Volceva is quite clear. Their diagnoses were made with evidence from a clinical psychologist, namely Ms Klein, through Clinical Psychology Solutions Pty Ltd. Furthermore, Dr Fernando’s diagnosis was made with evidence from the Manning base Hospital Mental Health Unit.
I am satisfied that the evidence of Dr Fernando and Dr Volceva, and the inference that may be drawn from the Manning Base Hospital Mental health Unit records, is sufficient to meet the additional evidentiary requirements in respect of diagnosis under the second rule in Table 5.
It is clear that Ms Dawson obtained treatment in the form of anti-depressant medications prescribed by her treating doctors over time and on discharge from the Manning Base Hospital Mental Health Unit, and that she obtained psychological counselling from Ms Klein (aka Doohan) over an extended period on referral by her treating doctors. Dr Volceva and Dr Fernando refer to this treatment. Ms Dawson gave evidence that psychological treatment was ongoing in the early part of 2015.
It is not established by evidence that Ms Dawson had not explored or undertaken different modes of treatment exist that might reasonably be expected to result in significant functional improvement within two years of the qualification period. I accept that she undertook and largely complied with the treatment prescribed by her treating doctors.
On balance, I am reasonably satisfied that during the qualification period for DSP, Ms Dawson’s depression and anxiety disorder was fully diagnosed, fully treated, fully stabilised and ‘permanent’, although it was expected to deteriorate over time, and the resulting impairment of her cognitive functions was likely to persist for more than 2 years.
Mental health function impairment assessment
On Dr Fernando’s evidence and the evidence of Ms Klein, Ms Dawson’s mental health condition has a functional impact on her concentration, behaviour and mood.[35]
[35] T36 folio 209.
The available evidence does not establish that she had mild or moderate difficulties with most of the factors listed in Table 5 at the 5 point and 10 point levels, or that she met the rating criteria at a higher level. I am satisfied that Ms Dawson had some difficulty with concentration and behaviour, but the present evidence does not suggest that her mental health impairment caused her to experience any difficulty with the other listed factors.
For this reason, her mental health impairment is properly assigned a rating of 0 points under Table 5.
As regards alcohol abuse, I am satisfied that Ms Dawson abused alcohol in the past and that this was not the cause of any impairment during the DSP qualification period.
Diverticular disease
There is abundant evidence of Ms Dawson’s history of diverticular disease since 2009. The condition is well documented and fully diagnosed. By her account this is the most pressing and debilitating condition that afflicts her. I accept that this is so. But it does not follow that it can be assigned an impairment rating under the Impairment Tables.
On Dr Fernando’s evidence, the condition was unstable in 2015. This is consistent with Ms Dawson’s account of unpredictable symptoms and sudden bowel movements.
Ms Dawson gave evidence that she is due to undergo a surgical operation in respect of this condition in the near future. She hopes that this treatment will provide her with some relief. Once again, there is very little documentation to substantiate her oral evidence.
The Secretary accepts that her diverticular disease is a ‘permanent’ condition and that resulting impairment is likely to persist for more than 2 years.
On the evidence given at hearing, I do not agree. I think that the condition cannot be taken to be fully treated and fully stabilised during the qualification period in the present circumstances where further surgical treatment is pending in the very near future. The functional impact of this condition may be reduced by the impending surgical treatment. An assessment cannot properly be made until the condition has been fully treated and fully stabilised.
For this reason, under s 6(3) of the Determination, Ms Dawson’s digestive impairment and her incontinence cannot presently be assigned ratings under Table 10 or Table 13.
Upper and lower limbs
I accept that Ms Dawson has osteoarthritic conditions affecting her hands (her thumbs in particular) and her feet (following a motor vehicle accident). But there is very little evidence of treatment she has obtained for these conditions. It appears that she uses Panadol Osteo for pain relief.
Dr Fernando’s evidence is that these conditions are well managed and have a minimal impact on Ms Dawson’s ability to function.
Even if I accept that the conditions are fully treated and fully stabilised, the present evidence establishes that they have little functional impact on Ms Dawson, such that a nil rating would be appropriate under Tables 2 and Table 3.
Dr Fernando’s report that Ms Dawson suffers from carpal tunnel syndrome in her ankles is rather odd,[36] and it lacks corroboration or supporting evidence. I do not accept that Ms Dawson has carpal tunnel syndrome in her ankles – it is a condition confined to the wrists in the upper limbs. I am unable to understand Dr Fernando’s report on this point. It is conceivable that the doctor meant a different condition, such as tarsal tunnel syndrome, but this is not presently established.
[36] T36 folio 214.
Ms Dawson has undergone carpal tunnel release surgery on her right arm in the past. She says that this condition remains symptomatic in both arms. Unfortunately, there is insufficient evidence to corroborate this, or to establish that she continues to have bi-lateral carpal tunnel syndrome and related impairment of her upper limb functions.
For these reasons, I am unable to assign a rating for any impairment under Table 2 or Table 3.
Respiratory conditions
There is evidence that Ms Dawson suffers from asthma and emphysema.
But the evidence is very scant and I am unable to determine whether these conditions are fully treated and fully stabilised and, therefore ‘permanent’ for the purposes of the Determination.
Even if that was able to be determined positively, the present evidence does not establish the nature or extent of any resulting impairment during the DSP qualification period. It follows that no impairment rating can be given.
Other conditions
It appears that Ms Dawson has some other conditions that cause symptoms. She has a diagnosis of mild systolic dysfunction, possible glaucoma, mild ischemia in the frontal lobes and a skin cancer.
The present evidence does not establish the nature or extent of any impairment resulting from these conditions during the DSP qualification period.
Additionally, none of these conditions meet the test of permanency under s 6(3) of the Determination during the qualification period. For this reason, no rating can be given.
OVERALL RATING
In sum, I am satisfied that during the qualification period, Ms Dawson suffered from ‘permanent’ conditions that caused impairments. Assessment of these impairments under the Tables delivers a rating of 5 points for her spinal impairment and 0 points for her cognitive impairments. No other impairment ratings can be assigned on the present evidence.
Ms Dawson’s assessable impairments have an overall rating of 5 points under the Tables.
It follows that she does not satisfy the second essential qualification criterion for DSP under s 94(1)(b) of the Social Security Act.
CONCLUSION
Ms Dawson’s claim for DSP cannot succeed. She does not satisfy the essential qualification requirements and the decision under review must be affirmed.
For this reason it is not necessary to proceed any further to determine whether Ms Dawson has a continuing inability to work.
This is an unfortunate result for Ms Dawson, but it is one that hinges on her impending treatment for diverticulitis. One would hope that the treatment is effective in resolving her condition. Whatever the result, there is no bar to her lodging a fresh claim for DSP in the future. It will be clear from this decision that further and better evidence of her medical conditions and resulting impairments may assist any such claim in the future.
DECISION
The decision under review is affirmed.

I certify that the preceding 128 (one hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
........................[sgd]................................................
Associate
Dated 23 May 2016

Date(s) of hearing 18 April 2016

Date final submissions received 21 April 2016

Applicant In person

Solicitors for the Respondent Department of Human Services

[2016] AATA 332

23 May 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Division	GENERAL DIVISION
File Number(s)	2015/5184
Re	Kerrie Dawson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	23 May 2016
Place	Sydney

Date(s) of hearing	18 April 2016
Date final submissions received	21 April 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services