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

[2020] AATA 2209

Fuller and Secretary, Department of Social Services (Social services second review) [2020] AATA 2209 (13 July 2020)

Division:GENERAL DIVISION

File Number:          2019/1921

Re:Daniel Fuller

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:13 July  2020

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 13 December 2017.

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

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – several conditions including Major Depressive Disorder – whether fully treated and diagnosed – qualification period – medical appointments etc after this – self-reporting – ESA and JCA reports – extreme functional impact – decision set aside – decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

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

Cases

Fanning and Secretary, Department of Social Services [2014] AATA 447
Pignat and Secretary, Department of Social Services [2017] AATA 2745

Twining and Secretary, Department of Social Services [2019] AATA 5296

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

13 July 2020

BACKGROUND

1. The Applicant, Mr Daniel Fuller, seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) dated 1 March 2019. The decision affirmed a decision made on 3 January 2018 by the Respondent, the Secretary of the Department of Social Services, to reject the Applicant’s claim for Disability Support Pension (“DSP”) lodged on 13 December 2017.

2. The Applicant is a 44 year old Australian who lives on his own in regional Victoria.

3. On 13 December 2017, the Applicant lodged a claim for DSP for “chronic regional pain syndrome” leading to “depression and anxiety”.

4. On 3 January 2018, the Applicant’s claim for DSP was rejected. On 9 August 2018, an Authorised Review Officer (“ARO”) of Centrelink affirmed the decision made on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables. The ARO reached this conclusion as the Applicant’s condition, although fully diagnosed, was not fully treated and stabilised.

   HEARING

5. A hearing in this matter was conducted over two days on 13 December 2019 and  25 February 2020. The Applicant was represented by Mr Bryn Overend, a community lawyer from Social Security Rights Victoria Inc and the Respondent was represented by    Ms Cailin Farrell, a lawyer from Sparke Helmore.

6. The Applicant gave sworn evidence by telephone and Ms Farrell asked questions of him in cross examination

7. No witnesses were called on behalf of the Respondent.

   LEGISLATION

8. DSP is payable under the Social Security Act1991 (Cth) (“Act”) in accordance with s 94(1) which as far as material provides as follows:

   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;

   …

9. The Impairment Tables referred to are those mentioned in s 94(1)(b) and are set out in the SocialSecurity (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“Tables”). A points impairment rating under the Tables is arrived at by assigning points according to the appropriate table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.[1]

   [1] See ss 5(2)(b) of the Tables.

10. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent.[2] In order for the condition to be permanent, it must be fully diagnosed, treated and stabilised.[3] Another criterion is that the condition must be corroborated.[4]

    [2] See subsection 6(3)(b) of the Tables.

    [3] See subsection 6(4) of the Tables.

    [4] See subsection 6(5)(a) of the Tables.

    ISSUES

11. It was not in dispute before Tier 1 or before this Tribunal that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act. I am satisfied on the evidence that the Applicant satisfies s 94(1)(a) of the Act.

12. During the course of the hearing it became quite clear that the real issue is whether the Applicant satisfies s 94(1)(b) of the Act – that is, whether he qualifies for an impairment rating of 20 points or more under the Tables. If I find that he does, the issue is then whether he also satisfies s 94(1)(c) of the Act.

13. To be satisfied that the Applicant meets the requirements of s 94(1)(b), I must be satisfied that his conditions (or any of them) are permanent. In turn, this requires me to be satisfied that his conditions (or any of them) are fully diagnosed, treated and stabilised and that his conditions (or any of them) are corroborated.

14. These are all matters I must consider as at the date of his application or within 13 weeks thereafter – that is, from 13 December 2017 until 14 March 2018. This is called the “qualification period”.

15. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.

16. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter.

17. The Applicant contended that the decision under review should be set aside and that he satisfied all the requirement of s 94(1) of the Act so far as it applies to him. It was made clear to me by Mr Overend, however, that the focus of the hearing was on the Applicant’s mental health condition (major depressive disorder) rather than his pain condition.

18. The Respondent contended that the Applicant does not satisfy s 94(1)(b) of the Act, but if he does, he does not satisfy s 94(1)(c), and accordingly the decision under review should be affirmed.

    EVIDENCE

19. The Applicant said that he had qualifications which included painting and decorating.               Ten years ago, he ran a painting and rendering business and was mentoring in remote communities (in the Northern Territory and Central Northern Queensland) with Indigenous people.

20. The Applicant told the Tribunal that he worked painting houses “28 days on and one day off“. On his day off he would go to a local school and help out. During his 28 days on, he went to very remote locations and helped paint local people’s houses. He would sometimes have people working for him – as many as 28 or 29 on occasion. He said he was earning good money, perhaps $4,000 or $5,000 a day. He described it as a “gravy train”.

21. He was also looking after his own physical fitness, doing weights and running perhaps 60 or 70 kilometres a week. He played music in a band for a while and was teaching martial arts to adolescents. He described himself at this time as “strong, fit, organised” and “bullet proof”.

22. He recounted that he had had a long term partner who was keen to settle down and have children. He and his partner were living in a community in Mooball in northern New South Wales in a house he had built out of shipping containers.

23. In about 2015 the Applicant said he went to Indonesia to earn more money. While he was away, his partner fell pregnant to a “close friend” of his. He told the Tribunal that when he found out about it, he felt betrayed – “if you betray me that’s one thing that really screws with me”. He said, “that event alone just twisted me totally”. He had not returned to his house in more than four years.

24. Other events around this time included the Commonwealth Bank “somehow” allowing $260,000 to leave his account “overnight”. He also lost all his contracts. He had little money left and, with what indeed he did have left, he then stayed in Indonesia. He said he lived “on the streets for at least a couple of months”.

25. At one point he went and “lived on the streets in Malaysia”. But after this he returned to Indonesia and was helping out a friend in a roof space or cavity, “because he’d fixed the pipe and it was like really dodgy”. The house was on a remote Indonesian island. Apparently while he was there the pipe (which was connected to the water tank) broke and filled the cavity with water. The Applicant said rats had been eating the wires in the roof. As a result, the Applicant got electrocuted. He says he was picked up and thrown through the roof to the ground perhaps two and a half meters below landing “head first” Although he said it’s all “kind of a bit patchy” he says he lost his power of speech and his memory for a period.

26. After this the Applicant said a friend helped him get back to Australia and he went to Melbourne. He still had stitches on his head, and he thinks he went to hospital to have them removed.

27. His evidence was then directed to his mental health condition. He saw a Dr Wong, although he said, “I hate doctors at the best of times” and “they’re worse than mechanics”. At this stage, after recounting the various things which had gone wrong for him, he said he was “besides being jaded with humanity….just totally depressed and just hating life”. He said, “everything’s quite confusing” but “I was always pretty well stuffed up”.

28. The Applicant told the Tribunal that he recalls being put on medication for both mental health and pain. He was put on an anti-depressant which he said had a “zombie effect”. At the same time, however, he said “it did nothing really for me”. I expect that the Applicant meant something positive. He said he was given others, “I can’t remember…I know that there was at least two or three”.

29. After a brief adjournment, the Applicant was again asked about the “zombie effect” and whether the medications had helped him at all to which he replied, “No. Like it’s yes, I don’t know that they did anything”.

30. The Applicant then said he saw other doctors but reported that “I broke my leg in three places and then I had another head I injury so I saw like a couple of doctors at different hospitals I think with that”. He saw another doctor or other doctors, but he said, “everything was getting too fast so I had to get away” and then went to Geelong. He tried further or other medications, “block receptors or block breakdowns or something” but it was “same story”.

31. The Applicant was then asked about Mr Brett Jones, a clinical psychologist. He said that he knew him, “Yes, like he’s actually, you know, he’s really sort of thorough and he’s a good person so I don’t really like, you know, being around people at the best of times these days”. He said he was “a good person that supported me at least”.

32. On the day he made his DSP application, the Applicant told the Tribunal he woke up feeling very sad. He said, “so you know, like it’s like clicking your fingers on a daily basis, all of a sudden you can be just sad or you go and try like do something and then, you know, you can’t do it, like you can’t – like you’ve got to go and like see someone or it’s something important and then you just literally – like you freak out and you can’t go there”.

33. The Applicant spoke of a photo of his room which was produced and said, “It’s like I’m a mess, it’s a mess, you know. It’s a mess. My life’s a mess”. He said his room was regularly like that. I would agree that the picture depicted a “mess”.

34. The Applicant spoke of visitors who came to his room to check if he was “still alive” and to do some cleaning up. He says that in his room he is “just existing and just I wake up and stare at stuff”. People came to see him to try and get him to have a shower and he said “I literally have not had a shower for minimum of three months, minimum”. He said “I get up and stare at the ground… I can’t explain why this has happened”. He added “I don’t even go to the toilet most times, like I usually just pee in a bottle and leave it sitting there where it is, until someone comes and cleans the place up again”. He said a photo could show “20 or 30 bottles that haven’t been thrown out since the last time somebody came around”.

35. He said that when he applied for DSP there were probably even more bottles lying around.

36. When asked about his daily routine in 2017, the Applicant said when he woke up sometimes he would just cry, he didn’t have a television and he didn’t do much. He said for food, apparently referring to 2017, that he would only eat Weetbix and would share his food with the mice. He said he had on the same clothes for at least three months.

37. The Applicant confirmed that nothing had changed for him between 2017 and the present day and said, “I’m functioning as much as I didn’t back then”. He stated “I just don’t function” and “I don’t plan”. Sometimes he would just watch the phone ring. In regards sleep, he said “I’d either be awake for days or I’d sleep for days” and told the Tribunal he takes sleeping tablets.

38. When asked about whether he could have applied for jobs in 2017, the Applicant answered “no way”. He said he could definitely do a job in 2017 “where you can sit in the corner of the room with your hands over your head and be freaking out”.

39. In cross examination the Applicant said he suffered memory loss following his fall but following the electrocution it was “a pain thing”.

40. The Applicant agreed that he had been on two anti-depressant  medications, Cymbalta and Zoloft. He had also been placed on Valdoxon by Dr Wong he recalled for depression, not for pain. He agreed Dr Hargreaves prescribed him Panadeine Forte and Lyrica, the former for  pain relief.

41. The Applicant agreed in answer to questions that he has experienced “impaired concentration”  as well as “difficulty making complex decisions”. He said in the latter regard that he had difficulty “processing new information”. He also agreed he had a “reduced ability to organise and plan”, but said “they couldn’t really confirm that it was from the head injury or from the electrocution”.

42. The Applicant was asked whether he is “independent “ with daily living activities. His answer was, “I don’t know what you call independent… I don’t do any activities”. He agreed that he had been assessed as having a capacity to work between 15 and 22 hours per week, but he said, “that’s obviously not the case”.

43. In answer to a question from me the Applicant said, “I mostly just stare at the floor a lot of the time”.

    ANALYSIS AND FINDINGS

44. The Applicant’s previous comment indicates quite plainly how the Applicant has been living his life, including during the qualification period.

45. The evidence which he gave, as summarised above, was at times exceedingly difficult to follow and indicated very disordered thinking.

46. Even so, I formed the view that he was telling me the truth in what he said. I do not think he lost credibility out of cross examination at all but may have added somewhat to the confusion.

47. I accept the Applicant as a witness of truth who has fallen on hard times, who has had various things go wrong in his life through no fault of his own and who now has a significant mental health condition which affects, amongst other things, his ability to properly order his thoughts and recall events in proper detail.

48. In having regard to the evidence of the Applicant I need to bear in the mind the objective of the Tribunal set out in s 2A of the Administrative Appeals Tribunal Act1975 (Cth) (“AAT Act”). In particular, pursuing the objective of providing a mechanism of review that is fair and just to the Applicant.[5]

    [5] Administrative Appeals Tribunal Act 1975, s 21A(b).

49. I am satisfied that the Applicant satisfies s 94(1)(a) of the Act as he has a significant mental health condition.

50. I am also satisfied, on the balance of probabilities, that the Applicant meets the requirements of s 94(1)(b) of the Act in regards his mental health condition, which is the focus of this review.

    Applicant’s mental health condition

51. I am satisfied that the Applicant suffers from the mental health condition of major depressive disorder. I base this on the report of Mr Brett Jones, clinical psychologist, dated   21 March 2018. The letter is dated after the qualification period but it relates back to the period of June 2017 which is within the qualification period. My description of the Applicant’s condition may differ slightly from that of Tier 1.

52. I note in passing that the Respondent accepts major depressive disorder as the proper description of his mental health condition. This was accepted in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) and in their closing oral submissions in which Ms Farrell stated that the Applicant “is unwell with various conditions, including a major depressive disorder…”. I cannot read this concession except as referring to the reference made in the diagnosis provided by Mr Jones in his report of 21 March 2018. I find it hard to accept that the Respondent can be relying on information in that report on the one hand and then submitting on the other that the Tribunal should not rely on that report because it is outside the qualification period.

53. I do not consider that the Respondent should regard itself as free to pick and choose like that.

54. In particular, the Respondent submits that the Tribunal should not rely upon that report of Mr Jones on the question of whether the Applicant’s condition is fully treated and fully stabilised for that very reason, that the report is prepared outside the period. But if the Respondent is going to rely on the report for one thing despite it being dated outside the period it cannot exclude it for another because of that reason

55. Reliance was placed on authorities including Fanning and Secretary, Department of Social Services [2014] AATA 447 (“Fanning”). Often this case is cited to the effect that medical reports after the qualification period cannot be relied upon. But that is not what Handley DP said in the case. He stated at [31] that only “medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period”.

56. It would also be particularly harsh considering s 2A(b) of the AAT Act to exclude a valuable expression of expert opinion because it happens to be dated seven days after the end of the qualification period. Indeed, for all I know, it could have been prepared before the end of that period and simply dated afterwards.

57. In any event, I pass by this because I consider that the report of Mr Jones is relevant within the Fanning rule because it clearly refers to the Applicant’s condition during the qualification period.

58. In addition, I note that the Respondent submits I should rely upon the report of Dr Sowerby dated 4 April 2018, nearly two weeks after the report of Mr Jones. This report refers the Applicant to the Grace Mackellar Centre and the Respondent contends that it shows the Applicant’s condition was not fully treated and stabilised in the qualification period. I cannot see how the Respondent can rely on the report of Dr Sowerby despite it being dated outside the qualification period and at the same time, it submits that the Tribunal cannot rely on the report of Mr Jones because it is dated outside the qualification period.

59. In the circumstances I consider I am entitled to rely upon the report of Mr Jones bearing in mind also the objective in s 2A(b) of the AAT Act.

60. As I see the matter, it then becomes a question of whether by reference to the report of      Dr Sowerby or other reports I should find I do not accept the opinion expressed by Mr Jones.    I should add I regard Mr Jones, if not also Dr Brennan and Dr Sowerby, as sufficiently corroborating the Applicant’s mental health condition including as to its effects on his mental state.

    Permanency

1. I am satisfied as was Tier 1 that the condition was fully diagnosed within the qualification period. No point was taken about this by the Respondent in closing submissions and it was accepted by the Respondent in its SFIC, based in part on the March report of Mr Jones as I have noted.

2. I differ from Tier 1 in finding also that within the qualification period, on the balance of probabilities, the Applicant’s condition also was fully treated and stabilised.

3. I base my view on the report of Mr Jones dated 21 March 2018. By the time of that report Mr Jones had had 10 psychotherapy sessions with the Applicant and was well placed to speak of the Applicant’s state of mental health. The Respondent agrees with the diagnosis given by Mr Jones and I do not think the Respondent would idly that. Therefore, Mr Jones’ opinion in his report on this matter, obviously from the perspective of the Respondent, and thus from the Tribunal’s perspective, carries some weight.

4. Mr Jones in the report notes that the Applicant’s condition “has not improved since I first saw him”, which refers to June 2017. It also states “despite having ten sessions… appears to have stabilised… there has been no improvement in his symptoms” and his condition “will not improve for at least the next two years”.

5. Based on these observations, unless other evidence satisfies me otherwise, I am satisfied that the Applicant’s mental health condition of major depressive disorder was, during the qualification period, not only fully diagnosed, but also fully treated and fully stabilised.

6. The question then is whether other evidence displaces the views in this report of Mr Jones, that is whether the report of Dr Sowerby and any of the other reports on file have effect to do so. Some of these reports, are quite some time after the end of the qualification period.

7. The Respondent placed reliance on the report of Dr Sowerby, above, of 4 April 2018.              In reality, it can hardly be classified as a considered medical “report” (as per the Respondent’s SFIC) but is more in the nature of a referral to the Grace Mackellar Centre.    I do not, for one moment, regard it as showing that the Applicant’s mental health condition was not fully treated and stabilised during the qualification period. It is obviously a referral principally “re regional pain syndrome” as it says. The reference to “and consequent depression/anxiety” adds nothing of substance in my view to the relevant question.              The Grace Mackellar Centre moreover is accompanied by the description “neuropsychology cognitive assessments” which does not appear on its face to deal with depression. In any event, I did not receive any evidence by the Respondent on that point to say that the Centre is a specialist Centre dealing with depression. Indeed, it appears from the evidence of the Applicant that he considered he was being given an IQ test or similar.

8. Even if the Grace Mackellar Centre does specialise in depression, there is nothing in             Dr Sowerby’ referral  stating whether the Applicant’s mental health condition is or is not fully treated and stabilised. Merely having a referral generated for a condition, if that be so, is not enough in my view to say that the condition cannot be fully treated and stabilised and that anyone saying anything to the contrary, such as Mr Jones, must be wrong.

9. Reliance was also placed on a letter of Dr E Tandiono dated 5 June 2018 in its reference to the Applicant seeing a psychologist but not yet having seen a psychiatrist. The focus of this letter is clearly cognitive impairment, not depression. How this casual passing reference to the Applicant as not yet having seen a psychiatrist can possibly mean that his accepted mental health condition is therefore not fully treated and stabilised, remains unclear to me. I reject the notion.

10. The Respondent also relied on an internal report of Ms Tamara Jennings dated   15 June 2018 (three months after the qualification period) regarding an encouragement given to the Applicant to follow up a referral to a psychiatrist regarding “possible” depression. This in my view does not in any way show that the Applicant’s accepted mental health condition during the qualification period was not fully treated and stabilised. Indeed, it does not even seem to escape the Fanning rule as it is not in itself a medical report. The internal report unfortunately betrays a lack of knowledge about the Applicant’s true condition, or a lack of expertise, because by that date, as is accepted by the Respondent, the Applicant was suffering a major depressive disorder.

11. Reliance was then placed on reports of Dr Louise Brennan dated 15 June 2018 (over three months after the qualification period). The Respondent highlighted Dr Brennan’s referral of the Applicant to Dr Scott Hall where she states she “suspects” the Applicant’s formulation may be “more complicated” than depression. This is so tentative and/or speculative as to be entirely unhelpful and it is expressed moreover as a view at a time when the Respondent accepts the Applicant suffered from major depressive disorder. And it is clear as well that the Applicant did suffer a head injury and pain syndrome. So, the reference made by              Dr Brennan takes me nowhere. Similar remarks are made by Dr Brennan in another communication on that date but do not provide anything any firmer for me to rely upon.

12. The Respondent also referred to a report of Dr Ng dated 8 August 2018 (nearly five months after the qualification period) which is in its nature is inconclusive and hardly justifies any finding that the Applicant did not have a mental health condition that was fully treated and stabilised during the qualification period. While the report does mention major depressive disorder it states, “there was insufficient evidence to meet this criteria [sic] today”. If this is the aspect of the opinion that was sought to be relied upon, the observation I would make is that the Respondent should not have accepted, as it has, that the Applicant had a mental health condition of major depressive disorder and that he had that condition by then.                Also, it clearly expresses an opinion about a time well outside the qualification period.               The reference to the Applicant awaiting neuropsychological assessment at the Grace Mackellar Centre takes the matter nowhere.

13. The Respondent also relied on a report of Dr C Omizzolo dated 25 September 2018 (over six months after the qualification period). The report focused on the Applicant’s cognitive capacity and only tangentially related to his mental health condition of “depression” as one amongst other factors. Dr Omizzolo recommended psychiatric monitoring and clinical psychology. From reading the report of this neuropsychologist it seems plain to me that her focus is cognition not depression. She makes no reference to the qualification period and does not seem to have any knowledge of Mr Jones and his March report. For, had she done so, I doubt she would failed to note the sessions with Mr Jones.

14. The Respondent, finally, referred to Medicare records and PBS records .

15. The Medicare records show that the Applicant saw Mr Jones for a number of sessions after the end of the qualification period. I am unable to see how this means that when Mr Jones did his March report that the Applicant’s accepted mental health condition of major depressive disorder was not fully treated and stabilised by the time of that report.

16. The PBS records show that the Applicant commenced Fluoxetine on 2 March 2018. But of itself I am unable to see how this means that the Applicant’s accepted condition was not by then fully treated and stabilised as plainly stated by Mr Jones. Merely by taking a new medication it does not follow that, before then, a condition had not been fully treated and was not fully stabilised.

17. In my view it cannot be established on the evidence whether the Applicant ever took this medication or whether he had trialled it before. If I assume he did take it, and had not previously trialled it, I consider the period of 12 days too brief for me to form a view that, therefore, the Applicant’s mental health condition cannot be regarded as fully treated and stabilised. I have nothing of detail to go on with respect to that period. Merely taking the medication, if that occurred, may have done nothing at all. I have already indicated my view that it cannot be said that a condition is not fully treated and stabilised merely by taking a new medication.

18. I am unable to see the relevance of the reference to the Applicant not having taken Venlafaxine as recommended by Dr Ng on 8 August 2018, nearly five months after the end of the qualification period.

19. The conclusion I reach is that nothing satisfies me that I should not rely upon the March 2018 report of Mr Jones.

20. I am fortified in the view that I should rely upon Mr Jones’ report by the fact that Mr Jones had eight sessions in person with the Applicant between June 2017 and March 2018 (inclusive), thus including during the qualification period.

21. Further, I refer to the evidence of the Applicant himself. Mr Jones obviously related well to the Applicant. He said he was “thorough”, “a good person” and one who had “supported him”. This indicates that Mr Jones was in an excellent position, far better than many of the others it seems to me, to form a judgement about whether the Applicant’s mental health condition was indeed fully treated and stabilised.

22. I find therefore, in accordance with the March report of Mr Jones that permanency under the Act is satisfied.

    Tables

23. Before proceeding to assign points under any of the Tables, an issue has been raised as to whether I approach the Applicant’s mental health condition as a separate condition or whether it must be viewed as one with his pain condition. I have noted that the Applicant is relying solely on his mental health condition.

24. The Respondent contended that I cannot be satisfied that the Applicant’s symptoms are solely due to his mental health condition and argued that they are symptomatic of more than that one condition. In other words, that I cannot on the evidence separate out the Applicant’s pain condition from his mental health condition. This would mean that any points assigned to him go across two Tables, Table 3 and Table 5. Reference is made to isolated statements of Dr Sowerby, Dr Tandiono, Dr Brennan and Dr Omizzolo. I have noted the importance of each of those statements.

25. There are many cases on questions such as this. I was referred to my own decision, for instance, in Twining and Secretary, Department of Social Services [2019] AATA 5296. However, the decision in that case turned on its own peculiar facts as a result of the nature of the expert evidence given which led to one mental health condition being unable to be separated out from another. A better reference exists in Pignat and Secretary, Department of Social Services [2017] AATA 2745, which was referred to by the Respondent in its SFIC.

26. I must establish whether the Applicant’s mental health condition made “a real or operative contribution” to his impairment such that I can treat it separately.[6] I acknowledge that it can be difficult to compartmentalise in matters of this kind, and obviously pain may have a profound psychological effect and it would be absurd to hold otherwise, but I am satisfied that I am able to regard the Applicant’s mental health condition separately from his pain condition.

    [6] Pignat and Secretary, Department of Social Services [2017] AATA 2745 at [22].

27. Certainly, the Respondent saw no difficulty, it seems, in separately conceding that the Applicant suffers major depressive disorder and chronic pain syndrome.  And I refer to and rely upon the remarks of Dr Brennan in her report of 15 June 2018 that “there is a pure mental health component to his presentation”. In another report of 7 December 2018             Dr Brennan this time says “both conditions are mutually exclusive as his “premorbid mental health issues predate his chronic pain history”.

28. In the circumstances, I am able to rely upon these expressions of expert opinion and to deal separately with the Applicant’s mental health condition as having made, as is apparent also on the evidence, a “real” and “operative” contribution to his impairment.

    Table 5 – Mental Health Function

29. I am not in any doubt that the Applicant’s mental health condition is such as to warrant a finding that he is extremely, and if not extremely, then severely impaired by it.

30. The evidence is plain to me that the Applicant satisfies all and not merely most of the descriptors in Table 5.

31. In regards (1)(a) “self care and independent living”, the Applicant is living in quite horrific circumstances where he collects his urine in bottles and does not clean up his premises by himself. Occasionally he is visited by kind persons who try to get him to take a shower and clean up. It is obvious from this that his personal care and hygiene is lacking. He needs support or assistance at least in that regard and probably needs it more than twice a week given the frequency of urination of persons. I form the view that the Applicant “needs” continual support.

32. As regards (1)(b) “social/recreational activities and travel”, the Applicant has no recreational activities and “mostly” simply stares at the ground. Sometimes he cries upon getting up or will stare at a ringing telephone. He has no interests to speak of which engage him. He said, “I don’t do any activities”.

33. Concerning (1)(c) “interpersonal relationships”, it is quite apparent on the evidence that the Applicant relates to no one, except those who may visit. He has no television. It is to the credit of Mr Jones that he was able to secure the Applicant’s confidence or trust so well.

34. As regards (1)(d) “concentration and task completion”, I am quite satisfied that the Applicant has extreme difficulties in concentration and task completion. His answers in cross-examination justify this finding. His concentration is possibly not aided by long periods of sleep alternating with long periods of wakefulness.

35. Concerning (1)(e) “behaviour, planning and decision-making”, the Applicant’s answers in cross-examination justify a finding of extreme difficulties in the Applicant’s behaviour, planning and decision-making. He has in my view extremely disturbed behaviour. I refer to his toileting habits, his lack of showering and his lack of change in the clothes he wears. I refer also to him staring at the ground “mostly” and sharing his meals of Weet Bix with the mice. I cannot regard him in any way as engaging in any semblance of rational planning or decision-making.

36. As regards (1)(f) “work/training capacity”, it is very plain, I consider, on the whole of the Applicant’s evidence that his functional difficulties with work/training capacity are extreme.  I accept him being truthful but giving in exaggerated example when he said he could do a job requiring him to sit in a corner with his hands over his head and “freaking out”. This is obviously not merely a pain issue. I repeat his words that “mostly” he stares at the ground during the day and “I don’t do any activities”. I am not satisfied that the Applicant has any capacity to attend work, education or training for any period at all due to his mental health condition.

    Section 94(1)(c)

37. An applicant also must satisfy s 94(1)(c) of the Act by having a continuing inability to work.

38. I am not in any doubt (and this follows from my remarks about Table 5 (1)(f) in the severe or extreme category of impairment) that the Applicant satisfies s 94(1)(c) of the Act. It is plain to me that he has no continuing ability at all, from during the qualification period up until now, to work in any capacity due to his mental health condition.

39. I note however that the Respondent placed reliance on the findings in the Employment Services Assessment (“ESA”) Report dated 31 July 2017, which was completed some six months before the start of the qualification period. This report stated that the Applicant had a capacity for work within two years with intervention of 23-29 hours per week. The Respondent also placed reliance on the findings in the Job Capacity Assessment (“JCA”) Report dated 2 August 2018, completed nearly six months after the end of the qualification period, that the Applicant had a capacity for work within two years with intervention of 15-22 hours per week.

40. The ESA Report is prepared by “abs 763(AS2928)”, otherwise unidentified, who claims to be a registered psychologist. I can see no basis whatever for the findings expressed in that report based on the evidence I heard. I reject those findings in light of such evidence.

41. The JAC Report is prepared by “AM3677”, otherwise unidentified, who claims to be a physiotherapist who purports to make findings about “Severe depression and anxiety symptoms”. The assessor states (even at a date, as I have noted, which is nearly six months after the qualification period is over) that the Applicant’s condition “is considered not to be fully diagnosed”. It is unsatisfactory to have a physiotherapist making recommendations in respect of a major depressive disorder. In any event, in light of the clear evidence which is before me, I reject the findings.

    CONCLUSION

42. I am satisfied that the Applicant, for the reasons I have given, meets all the requirements of s 94(1) (a), (b) and (c) of the Act and is entitled to DSP from the time of his application. I regard him as suffering extreme functional impairment due to his mental health condition of major depressive disorder.

    DECISION

43. The decision under review is set aside and a decision is substituted that the Applicant is entitled to DSP with effect from 13 December 2017.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Associate

Dated: 13 July 2020

Dates of hearing:	13 December 2019 and 25 February 2020
Solicitors for the Applicant:	Mr Overend, Social Security Rights Victoria
Solicitors for the Respondent:	Ms Farrell, Sparke Helmore Lawyers