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

Dennis and Secretary, Department of Social Services (Social services second review) [2019] AATA 2347 (18 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5096
Re:Sam DENNIS
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:18 June 2019
Place:Perth

The decision under review is affirmed.
.....................[sgd]...................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – disability support pension – medical conditions – alcohol dependency – mental health – qualification period – Impairment Tables – not fully diagnosed, treated and stabilised – program of support – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2),
94(3B), 94(3C)
Social Security (Administration) Act 1999 (Cth) – s 179, Sch 2 cl 4(1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7(1), 7(2)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 6(1), 6(2), 6(3), 6(4), 6(5),
6(6), 6(7), 7, 8(1), 9, 10, 11, 11(1)(c)
Australian Government, ‘Social Security Guide’, Guides to Social Policy Law (Guide, Version 1.254, 6 May 2019) < FOR DECISION
Member C Edwardes
18 June 2019
THE APPLICATION

This is an application for the review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1) dated 7 August 2018 (T2 6-12, R1). The AAT1 affirmed a decision of the Department of Human Services (Centrelink) to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 5 May 2017 (T7 104-133, R1).
On 5 May 2017, the Applicant lodged a claim for DSP involving the medical conditions of anxiety, depression, and alcohol dependency (T7 129, R1).
The claim was rejected by Centrelink by the Job Capacity Assessor (T10 136-137, R1) and again by the Authorised Review Officer (the ARO). The Applicant was advised of this rejection by letter dated 20 March 2018 (T16 145-150, R1). The application was rejected on the basis that the Applicant did not have an impairment rating of 20 points or more.
The ARO advised the Applicant of the following findings of fact (T16 146, R1):
·Your conditions of alcohol dependence syndrome, depression and generalised anxiety disorder are not accepted as being permanent in relation to Disability Support Pension claim you made on 9 May 2017.
·You are not assigned an impairment rating in relation to that claim.
·The decision to reject the claim was correct.
As a result of the decision of the ARO, the Applicant lodged an application with the AAT1. The AAT1 affirmed the decision in the AAT1 decision dated 7 August 2018.

The AAT1 determined that the Applicant’s medical conditions generated no impairment points under the Impairment Tables (T2 6-12, R1).
The AAT1 made the following findings (T2, 9-11, R1):
Condition 1 – alcohol dependency
…
31.The tribunal noted that Mr Dennis lodged his claim on 9 May 2017, about six months after commencing treatment through the Next Step program. A report from his treating doctor, written near the same date as the claim, stated that Mr Dennis had been successful in reducing his alcohol usage.
32.The tribunal determined that, at the time of the claim, the problem of alcohol dependency was fully diagnosed. However at that time it could not be considered fully treated or fully stabilised. Therefore it cannot warrant points from the Impairment Tables.
Condition 2 – depression/anxiety
…
34.The tribunal noted a report from Dr Greg Neate, psychiatrist, dated 8 May 2017, which confirmed that Mr Dennis had been attending The Inner City Mental Health Service since December 2016. Dr Neate gave a diagnosis of alcohol dependence syndrome, plus a mild depressive episode and generalised anxiety disorder. He confirmed treatment with antidepressant medication and psychological counselling. He felt that the alcohol problem needs to be resolved before the anxiety can be addressed.
35.The tribunal determined that, at the time of the claim, the problems of anxiety and depression were not fully treated or fully stabilised. Therefore they cannot be considered for points from the Impairment Tables.
As a result of the above decision, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 8 September 2018 (T1 1-5, R1).
The Applicant lodged this claim for review on the basis that his application to the AAT1 failed because his conditions generated no points under the Impairment Tables.
The Application for review stated (T1 4, R1):
I think the decision was wrong and a different decision should be made.

The information provided was not taken into account, the letter from Dr Vytialingam 28th August 2017 stated I was treated and stabilised. The decision the tribunal determined that I was not fully treated or stabilised at the time of the claim is incorrect.
RELEVANT LEGISLATION AND POLICY
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth)

(the Administration Act).
The Tribunal has jurisdiction to hear this matter pursuant to s179 of the Administration Act. Section 179 of the Administration Act states that:
(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
(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…
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the ‘Impairment Tables’.
Section 94(1)(b) of the Act requires the Tribunal to decide whether the Applicant’s impairments would generate an impairment rating of 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5]… 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.
[6]The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
(Original emphasis.)
Sections 6(5), 6(6) and 6(7) of the Determination provide guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination requires that symptoms reported by a person in relation to their condition can be taken into account only where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular,

s11(1)(c) of the Determination states that:
if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Continuing inability to work
As set out above in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s94(2) of the Act:
(2)A person has a continuing inability to work because of an impairment if the        Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)     if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
‘Severe impairment’ is defined in s94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Section 94(3C) of the Act states that a person has actively participated in a program of support (POS) if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, ss 5, 7(1), and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) require generally, that a person is to participate in a POS for 18 months in the 36 months prior to the date of the relevant claim for DSP.
Qualification Period
Section 94 of the Act must be read in conjunction with Sch 2 cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2 cl 4(1) of the Administration Act, there is a 13 week qualification period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the Applicant lodged the claim for DSP on 9 May 2017. Therefore, the 13 week period is from 9 May 2017 to 8 August 2017 inclusive, and is known as the ‘Qualification Period’.
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim.

They may, however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1]).
The Tribunal is also assisted by the Guides to Social Policy Law: Social Security Guide

(the Guide). The Guide provides assistance to those who administer the Act.

Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
ISSUES
The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP pursuant to s 94(1) of the Act during the Qualification Period.
This requires consideration of whether at the time of the Qualification Period:
(a)the Applicant had any physical, intellectual or psychiatric impairment;
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in s 94(2) of the Act.
EVIDENCE
The matter was heard in Perth on 17 May 2019. The Applicant appeared in person by phone. The Respondent was represented by Mr Bishop of Mills Oakley.
The Tribunal would like to thank all parties for the assistance they provided during this hearing.
The Tribunal had the following evidence before it:
·Exhibit A1 – Letter of Dr Vytialingam dated 5 October 2018;
·Exhibit A2 – Letter of Dr Vytialingam dated 6 June 2018;
·Exhibit A3 – Letter of Dr Vytialingam dated 28 August 2017;
·Exhibit A4 – Letter of Mr Patullo dated 14 February 2019;
·Exhibit R1 – T documents (T1-25 1-181); and
·Exhibit R2 – Respondent’s Statement of Facts Issues and Contentions (SoFIC) dated 14 March 2019, including:
oAttachment A – Job Capacity Assessment Report dated 9 August 2018;
oAttachment B – Report of Dr Vytialingam dated 19 December 2018.
The Tribunal has reviewed all of the material before it, and is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Secretary made the following contentions in respect to the medical conditions of the Applicant (R2):
Alcohol Use Disorder
30.The Secretary contends that the Applicant's alcohol use disorder was fully diagnosed, but not fully treated or stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.
31.During the qualification period, the Secretary contends that the Applicant's condition was subject to ongoing interventions, including detoxification, inpatient and outpatient treatment, and medications. The prognosis of his condition was consistently reported as “uncertain”, being conditional upon his response to further reasonable treatment. The Secretary relies on the following evidence:
(a)The report of Dr Vytialingam, medical officer at Next Step Drug and Alcohol Services (Next Step), dated 5 May 2017 that reported the Applicant to be “exploring options to reduce [his alcohol use] further” at that time, being approximately four days prior to his relevant claim for DSP. Dr Vytialingam reported the Applicant to have been a patient of Next Step since December 2016, attending regular fortnightly appointments and reducing his alcohol intake during that period.
(b)The subsequent report of Dr Vytialingam dated 28 August 2017 that confirmed the Applicant was referred to the Inpatient Withdrawal Unit of Next Step for alcohol detoxification following unsuccessful further attempts to reduce alcohol intake. Dr Vytialingam noted that it will be “difficult to predict if there will be significant improvement in the next 2 years. This will largely depend on his efforts to reduce alcohol use and his response to interventions such as alcohol detoxification, continued outpatient treatment and medication”.
(c)The medical certificate of Dr Neale, supervised consultant psychiatrist at Next Step, dated 12 March 2018, that reported an uncertain prognosis, noting planned treatment to be “under Next Step review”.
(d)The various other medical certificates by the Applicant's general practitioner, Dr Rogers, dated 5 July 2017, 11 October 2017,

29 May 2018 and 19 December 2018, that reported an uncertain prognosis.
(e)The JCA report dated 9 August 2018 that recommended the Applicant's condition be assessed as not fully treated and stabilised at that time, being more than one year after the Applicant's relevant claim for DSP. The JCA noted that other clinically recommended treatments were yet to be utilised, including group therapy residential rehabilitation and participation in community based support groups. A gap in treatment from January to May 2018 was also reported.
32.Whilst the more recent report of Dr Vytialingam dated 19 December 2018 reported the Applicant's condition to be fully treated and stabilised, the Secretary submits that limited weight ought to be afforded to it in circumstances where it was produced approximately 16 months outside the qualification period. Whilst hindsight may suggest that treatment did not result in significant improvement, that is not the question for the Tribunal to determine. The Tribunal is required to consider the treatment that had taken place, was intended to take place, and the likely effect of that treatment during the qualification period (see Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]).
33.In this instance, during the qualification period, the Applicant had seen a reduction in his alcohol consumption in response to treatment, and his condition was subject to ongoing intervention in an attempt to further limit this. His prognosis was uncertain as it was conditional upon his response to further reasonable treatment that occurred during and outside the qualification period, including alcohol detoxification, continued outpatient treatment and medication. His condition could therefore not be considered fully treated and stabilised during the qualification period.
Mild Depressive Episode and Generalised Anxiety Disorder
34.The Secretary concedes that the Applicant's mental health condition was fully diagnosed during the qualification period. The report of Dr Neale dated

8 May 2017 reported the Applicant to present with a “Mild Depressive Episode since 2016 and Generalised Anxiety Disorder with features of anxiety prior to and throughout adulthood”. However, the Secretary contends that the condition was not fully treated or stabilised during the qualification period, nor expected to persist for more than two years in light of available evidence. On that basis, an impairment rating cannot be assigned.
35.The Secretary relies on the following evidence:
(a)The report of Dr Neate dated 8 May 2017, being one day prior to the Applicant's relevant claim for DSP, that confirmed the Applicant was seeking treatment through Next Step, including in-patient detoxification, “before he can address his ongoing concerns with anxiety”(emphasis added).
(b)The medical certificates of Dr Neale dated 12 March 2018 and

24 April 2018 that reported the condition to be a temporary exacerbation of a permanent condition, and likely to persist for 3-12 months.
(c)The medical certificates of Dr Rogers dated 29 May 2018 and

19 December 2018 that reported the prognosis of the condition as “likely to show considerable improvement within two years”.
(d)The JCA report dated 9 August 2018 that recommended the Applicant's condition be assessed as not fully treated and stabilised at that time, being more than one year after the Applicant's relevant claim for DSP. The JCA noted that, “with cessation of alcohol consumption and further intervention from psychiatric services, a significant improvement in function is expected within two years”.
Overall Impairment Rating
36.The Secretary contends that the Applicant did not have a total impairment rating of at least 20 points under the Impairment Tables during the qualification period, on the basis that none of his conditions were fully diagnosed, treated and stabilised, and therefore the resulting impairments cannot be assigned any impairment rating. He therefore fails to satisfy paragraph 94(1)(b) of the Act.
(Original emphasis.) (Footnotes omitted.)
HEARING

The Applicant stated there was no end date to his treatment for his anxiety, depression or alcohol dependency; however that he was meeting the goals of his ongoing treatment plan relating to his alcohol dependency condition. He said his treatment plan had been finalised during the Qualification Period, and therefore it can be determined this condition was fully treated and stabilised.
During cross-examination, the Respondent put to the Applicant the question of whether his treatment was ‘reasonable treatment’, in order to ascertain whether all options had been explored. The Applicant stated his treatment plan was designed to suit his conditions and therefore he was fully treated during the Qualification Period for his alcohol dependency condition.
The Applicant conceded that because of the ongoing nature of treatment relating to alcohol it was not possible to be fully treated.
The Applicant accepted in response to questions from the Tribunal that his mental health condition was not fully treated during the Qualification Period.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal, it is not in dispute that during the Qualification Period the Applicant suffered from the following medical conditions: Alcohol Use Disorder, Mild Depressive Episode, and Generalised Anxiety Disorder.
There are various medical reports provided to the Tribunal which attest to the fact that the Applicant suffered from these medical conditions.
The Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Impairment Tables
The Tribunal will now assess the medical conditions of the Applicant as detailed in the written and oral evidence presented. The Tribunal accepts both medical conditions overlap each other in terms of symptoms and treatments. They are interwoven in a cause and effect situation.
Alcohol Use Disorder
The Applicant told the AAT1 (T2 9-10, R1):
·He started drinking alcohol at the age of 13 years. Initially he got it from his father’s supply. He has been drinking ever since, with the amount consumed increasing over the years. Drinking has impeded his ability to work and to study, but has never got him into trouble with the police.
·
He grew up in Melbourne. He left school at age 15 and left home at age 16. He got a few jobs in electronics and moved to Adelaide. In Adelaide he did adult education classes and completed high school years 11 and 12.

He then went to TAFE and ultimately got a place at the University of South Australia graduating with a degree in computer science in 2002.
·During all those years he was drinking heavily and studied on a part-time basis. Concentration was difficult so he took longer than usual to complete his studies.
·He couldn’t find employment related to his degree. For a while he lived in Sydney and in 2004 had a job in customer service, working in a call centre for a year or two.
·In 2011 he moved to Perth and got a job in the HBF call centre. He worked there for three years between May 2012 and July 2015. Because of his drinking there were frequent absences and he was eventually dismissed. He claimed for wrongful dismissal and the issue was resolved on a confidential basis.
·
He then got a job in another call centre, this time working for RAC.

He was employed on a trial basis but after six months was told he was not successful. After losing that job he had to sell his house and ‘lost everything’.
·He became depressed and suicidal and contacted the public mental health services. He was told that his drinking was the main problem and was advised to contact the ‘Next Step’ drug and alcohol service, which he did. Prior to that he had never considered himself to have a drink [sic] problem. The doctors at Next Step put him on Naltrexone tablets and he attends for [sic] weekly counselling sessions. He has regular liver function tests, which are mildly abnormal.
·
He has been attending the Next Step programme continuously since December 2016, apart from a break of about five months earlier this year when he had to go to NSW following the death of a close friend.

He remained in telephone contact with the counsellors at Next Step during that time.
·His aim is to limit his drinking. It is common for him to consume two bottles of wine a day, and he has got that down to one a day at times. However he has a lot of relapses and has gone for a seven-day in-patient detoxification program on four occasions. He goes on that program voluntarily when he realises he is losing control of his drinking.
The medical report (T12 139, R1) of Dr Vytialingam of 28 August 2017 states:
It is difficult to predict if there will be significant improvement in the next 2 years. This will largely depend on his efforts to reduce alcohol use and his response to interventions such as alcohol detoxification, continued outpatient treatment and medication.
The Tribunal considers that the medical report of Dr Vytialingam makes reference to the Applicant’s conditions improving periodically with treatment, and to the difficulty in accurately predicting the future improvement or stability of the Applicant’s conditions over a two year period. In view of this, the Tribunal does not consider that the Applicant’s alcohol dependency disorder may be determined to be fully treated or fully stabilised in light of Dr Vytialingam’s medical report.
Generally the Tribunal finds that the medical certificates before it are not able to indicate a clear prognosis of this condition. The term ‘uncertain’ is used consistently throughout the medical certificates which were provided to the Tribunal (T21 156; T18 152; T13 141; T11 138, R1).
Dr Vytialingam states in advice dated 6 June 2018 (A2):
He continues to engage with Next Step for medical and case management appointments. The diagnosis of severe alcohol disorder remains current.

Sam has been receiving treatment at Next Step since December 2016.
The Tribunal notes at (T8 134, R1) the advice of Dr Vytialingam dated 5 May 2017 stating that the Applicant ‘has managed to reduce his alcohol use and is exploring options to reduce this further’. In the view of the Tribunal, exploring treatment options indicates that the Applicant’s treatment was ongoing during the Qualification Period.
Dr Neate provided (T9 135, R1) in his advice dated 8 May 2017 that:
Mr Dennis has Alcohol Dependence Syndrome with longstanding anxiety. He is seeking treatment through Next Step, including in-patient detoxification, before addressing he can address his ongoing concerns with anxiety.
(Original emphasis.)
In the view of the Tribunal, this again suggests that for the purpose of the Qualification Period the Applicant’s conditions had not been fully treated, as further treatment was required before he could begin to address his Generalised Anxiety Disorder.
Dr Vytialingam states in his advice dated 19 December 2018 (R2) that:
For the period of time between 9 May 2017 and 8 August 2017, Sam was fully engaged in comprehensive treatment at Next Step. A treatment plan was formulated to match his treatment goals at the time, which was to reduce and stabilise his alcohol use without being abstinent.
Dr Vytialingam at (T12 139-140, R1) states in his advice of 29 August 2017:
It is difficult to predict if there will be significant improvement in the next 2 years. This will largely depend on his efforts to reduce alcohol use and his response to interventions such as alcohol detoxification, continued outpatient treatment and medication.
This implies to the Tribunal that the Applicant at the time of the qualification period was not fully treated.
While the Tribunal notes that during oral evidence the Applicant submitted that he was fully treated in terms of his treatment plan during the Qualification Period, the medical evidence available to the Tribunal does not support that view. There is no compelling medical evidence available which suggests all reasonable forms of treatment had been explored during the Qualification Period, and that the condition had fully stabilised.
The Tribunal therefore determines this condition was fully diagnosed, but the Applicant was still undergoing treatment for the condition of alcohol dependence during the Qualification Period. There is no compelling evidence to persuade the Tribunal that these conditions were fully treated and stabilised during the Qualification Period.

These conditions therefore generate 0 points under the Impairment Tables.
Massive Depressive Episode and Generalised Anxiety Disorder
The Applicant told AAT1 (T2 11, at [33]):
·In 2016, when he lost his job with RAC he became anxious, depressed and suicidal. He sought help from his GP at the time, Dr Soe Tun and later contacted the public mental health program.
·Dr Tun did not prescribe medication but referred him for psychological counselling.
·Sometime later Mr Dennis started attending the Inner City Mental Health Service. He is under the care of Dr Greg Neate, psychiatrist, and a team of other staff. He has been prescribed various antidepressants over the intervening period and attends on a weekly basis for support from his case manager and a psychologist.
·He feels less depressed but still has some suicidal thoughts. He is better than he was.
·
He lives alone in a rented flat belonging to a friend, who is rarely there.

He has no social life and avoids going out if he can. He has a car but rarely uses it because of his problem with alcohol. He avoids crowds and tends to use the free CAT bus service to keep his medical appointments.

He will also do a little food shopping on these occasions, but also gets food from charitable agencies.
·
He doesn’t do much in the day. He sleeps a lot and watches a bit of TV.

He has very little contact with his Melbourne based family, except for one of his four sisters, who used to live in Perth. The rest of the family are not aware of his personal circumstances. He has never married and has no dependents.
The medical advice of the Dr Neate dated 8 May 2017 (T9 135, R1) states the Applicant was prescribed medication in the form of antidepressants, and had commenced short term psychology sessions with Mr Patullo since 2 May. The Tribunal assumes that this date refers to 2 May 2017.
The medical advice of Dr Vytialingam dated 29 August 2017 (T12 139-140, R1) stated that the Applicant was a patient at the Inner City Community Health Service where he was seeing a psychiatrist and psychologist. Dr Vytilingam stated that the Applicant’s ‘engagement with mental health services is essential to manage comorbid mental health problems…’ This suggests to the Tribunal that during the Qualification Period the Applicant’s mental illness conditions had not been fully treated, as their potential improvement was at least partially dependent on continued treatment.
The advice of Mr Patullo’s advice dated 14 February 2019 (A4) states:
During the period 9/5/2017 to 8/8/2017 I provided clinical psychological treatment and support for his long standing depression, anxiety and PTSD. lt was and remains my opinion that, due to the nature of his trauma, Mr Dennis is unlikely to make significant gains in his symptomatology in the appreciable future. Treatment, therefore, has taken the form of therapy that helps stabilise and contain his mental health symptoms and increase his capacity to tolerate and accommodate his symptoms. I believe there is some possibility of functional gains that may help to improve quality of life, but is unlikely to make sufficient gains for paid or unpaid work.
The Applicant conceded during the hearing that this condition had not been fully treated during the qualification period.
The Tribunal therefore determines that this condition is fully diagnosed but not fully treated and stabilised. These conditions therefore generate 0 points under the Impairment Tables.
Whether the Applicant has a continuing inability to work
The Tribunal finds that the medical conditions exhibited by the Applicant generate 0 points under the Impairment Tables and therefore fail to satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider whether the Applicant has a continuing inability to work pursuant to s 94(1)(c) of the Act.
DECISION
For the reasons above, the Tribunal affirms the decision.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member
C Edwardes

.........................[sgd]...............................................
Associate
Dated: 18 June 2019

Date(s) of hearing: 17 May 2019

Applicant: In person

Counsel for the Respondent: Mr C Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

[2019] AATA 2347

18 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	17 May 2019
Applicant:	In person
Counsel for the Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers