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

FXMM and Secretary, Department of Social Services (Social services second review) [2019] AATA 5488 (19 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7689
Re:FXMM
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:19 December 2019
Place:Sydney

The Tribunal decides that:
1.The decision of the AAT1 made on 6 December 2018 is set aside, and the matter remitted to Centrelink on the basis that the applicant was entitled to DSP as at 29 December 2017, the date of her application for DSP.

............................[sgd]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments fully diagnosed, treated and stabilised – whether the applicant has an impairment rating of 20 or more points according to the Impairment Tables – whether the applicant has a continuing inability to work – depression – anxiety – PTSD – peripheral neuropathy – spinal condition – Still’s disease – obstructive sleep apnoea – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Lawson and Secretary, Department of Social Security [1997] AATA 719
Markus and Secretary, Department of Social Services (Social services second review) [2009] AATA 4308
SECONDARY MATERIALS
Allen, J. (2003). Challenges in treating post-traumatic stress disorder and attachment trauma. Current Women’s Health Reports, 3(3), 312-320
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security Guide (11 November 2019)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
19 December 2019

On 29 December 2017, the applicant lodged a claim for DSP.[1] On 15 February 2018, her claim was rejected by the Department of Social Services (Centrelink).[2] On 22 September 2018, an authorised review officer (ARO) affirmed the rejection decision and provided the applicant with written reasons.[3] On 4 October 2018, the applicant applied for a review by the Administrative Appeals Tribunal (the Tribunal).
[1] T22, p. 138.
[2] T25, p. 172.
[3] T40, p. 203.
On 6 December 2018, the Social Services and Child Support Division of the Tribunal (AAT1) rejected the applicant’s claim. The AAT1 found that, although the applicant did suffer from some areas of physical, intellectual or psychiatric impairment, the impairments were not permanent, and therefore impairment points could not be assigned. Five areas of potential impairment were identified:[4]
·Peripheral neuropathy – fully diagnosed and treated but not fully stabilised;
·Still's disease – fully diagnosed but not fully treated or stabilised;
·Mental health condition – not fully diagnosed, treated or stabilised;
·Spinal condition – fully diagnosed but not fully treated or stabilised; and
·Obstructive sleep apnoea – fully diagnosed but not fully treated or stabilised.
[4] T2, pp. 8, 9.
The mental health condition stood alone as the only undiagnosed condition.
On 31 December 2018, the applicant lodged an application to the Tribunal to review the decision of the AAT1.[5]
[5] T1, p. 1.
THE HEARING
On 4 September 2019, the matter was heard by the Tribunal. The applicant gave evidence in person. She was assisted by a friend.
The applicant is a 51 year old woman. In the course of the hearing the following information emerged about the applicant’s background and health. She says that she was sexually abused by her uncle from the ages of 7 to 16. Her father was violent and threatened the family with a firearm. He was removed from the family and spent 6 weeks in a Mental Hospital.[6] She had a partner in her twenties. She had a termination of pregnancy at twenty. She suffered physical and emotional complications. She has been married twice but is now divorced. There are no children. The applicant has a brother, but they are estranged.
[6] ST8, p. 262.
She was school captain at an inner west High School. When she left school she took flying lessons.[7] She worked in administration. She taught English in China for two years.[8] She has undertaken international travel, apparently most recently in 2015 for the purposes of seeking various cures for her ailments.[9] She is articulate and intelligent.
[7] Transcript, p. 18.
[8] ST3, p. 250; ST8, p. 263.
[9] ST8, p. 263.
On 17 January 2018, her mother passed away in hospital. The applicant provided some care to her mother before she passed and received a carer’s allowance including some bereavement component until 25 April 2018.[10] During this traumatic time, her living conditions were very difficult. At one point the applicant was sleeping in a tent in the back garden. The applicant explained the situation.
SENIOR MEMBER: [Ms FXMM], when you moved, in [17 August 2007], from the Gold Coast to Sydney, was that specifically to look after your mum?
WITNESS: Yes, to live with mum. I moved in – mum was – I didn’t move into the house, I put up a tent in the backyard.
SENIOR MEMBER: Was there no space?
WITNESS: No, no space and they didn’t make space for me either, and I didn’t let that deter me. So I put up a tent and I slept in a tent in the backyard. I put up cardboard in it to stay warm and I slept with my clothes on and I put a hat on my head. Mum had plenty of hats, because she had cancer, and I would sleep in the backyard. Mum’s probably got the only house in [suburb] that had a outside toilet, so it was like an ensuite. I was about five feet from the toilet, down the back yard…That’s what I had to do so I could be with my mum for the last – - –
SENIOR MEMBER: Was there no space in the house?
WITNESS: No. No space for me. They didn’t – - –
SENIOR MEMBER: And your brother was staying there at that time?
WITNESS: And my brother. There was no – not even room to put a single mattress on the floor. She was a hoarder and there was only enough room to walk through the house and they didn’t make room for me and I didn’t have the capacity to clean the house out enough to have somewhere to sleep, other than on the lounge. And with my back condition I didn’t want to be on the lounge. Any time before that Mum would let me have her bed, because she knew I had a bad back and I said, “I can’t let you sleep on the lounge, you’re dying of cancer”. I couldn’t let her sleep on the lounge. I said, “I’ll put up a tent in the backyard”, so I can be with my mum before she died. So life isn’t stable, but things – things get tough. I have had a tough life and don’t say the fact that life’s gotten better and I have had some improvement I would say is correct. I don’t have that drama now in my life, I’ve just got lesser dramas, like having somewhere to live and having enough money to eat. I’m in a pretty safe place at the moment, so it’s been tough and I’ve had this on top. Yes, so – and that’s how much I love my mum, that it didn’t stop me. I found a way and I find a way all the time. See, that’s my determination, I don’t like to let things stop me from doing stuff. And if I’ve got to be in pain, if I’ve got to – if I’ve got to – I can’t turn it off, I don’t get a choice. I’ve got to live with pain all day every day. I’ve got ringing in my ears, it doesn’t turn off. I’ve got a headache, it doesn’t go away. I have a headache all the time. I’ve got pain in my hands, I’ve got pain in my feet. Every step I take is painful for me. Everything I touch is painful for me. I don’t get a day off. I don’t get a minute off. It’s constant. It – it – it doesn’t leave me. I’ve got to find a way to live with it.
[10] T49, p. 238.
Since 30 January 2018, the applicant has been housed in a NSW transitional housing program, which is an 18 months supported tenancy program. On 3 September 2019, she was informed that her lease would not be renewed. She has been in temporary accommodation for periods of time.[11] She has also spent times of homelessness, a condition she rightly fears.
[11] See additional material filed by applicant, letter dated 3 September 2019 from SGCH to the applicant.
She is also socially isolated. She has over the past two years been involved in a Friendship Program called Compeer, run by the St Vincent de Paul Society NSW, which aims to promote social inclusion by organising friendship activities.[12]
[12] See letter dated 28 May 2019 from St Vincent de Paul Society NSW.
She has experienced health problems for much of her life. Her lack of capacity to work is, she says, due to chronic pain and debility. Her life is a constant struggle. She drew on her experience in flight training to explain her challenges to the Tribunal.
RESPONDENT: How often do you drive your car now for any purpose?
WITNESS: Maybe a couple of times a week. I travel mostly on the public transport system. Well, I probably – some weeks it could be half and half, sometimes I might not drive sometimes. It depends, like if I don’t feel what I call “flight ready”….If you’re not flight ready you don’t get in a plane. I learned to fly when I was very young.
SENIOR MEMBER: You learned to fly?
WITNESS: Yes, when I was 16 years old. Before you get in the car to drive to the airport you’ve got to decide whether you’re flight ready. Now, I won’t get out and play in the traffic if I’m not flight ready and I have to – I have to assess my capacity every day when I wake up. I have to keep myself safe. I decide if I catch public transport, depending on where I am going. Today it was very easy to walk to the station and come in here, because it’s across the road. If I have to see a particular practitioner, let’s say my psychiatrist is in [suburb], you know, it’s a long way away. I do sometimes catch the train. I do sometimes drive the car if I feel like it. It depends on my capacity on the day. I have to be flight ready. So that’s my criteria and I try not to drive if I feel like my judgment is impaired, my reaction time is too slow, if my spatial awareness is compromised I will not – and if it is a particular day where I feel like my memory is failing me, like I get somewhere and I go “Why am I here?” “Where am I going?” There are those days where – I walked out of the doctor one day and I looked across the road – and I grew up in [suburb] and I looked out and I didn’t recognise what I saw. I didn’t know whether to turn left or right because I couldn’t remember where I parked the car. Now, all those factors determine how much risk I take on any day so it is a very flexible situation – it has to be. If I have to be somewhere by a particular time and I have to take what is happening in the moment on board and decide what risks I am prepared to take.
THE LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (the SSA) sets out the qualification criteria for DSP, which relevantly 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;…
The qualification criteria for DSP are cumulative, and if any one of the criteria under s 94 is not satisfied, the person will not be qualified for DSP.
The qualification period
Paragraph 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) provides:
4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
The accepted rule is that eligibility for DSP is tested by reference to the applicant’s physical or psychological condition within the 13 week review period commencing on the date of application: see Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404; Markus and Secretary, Department of Social Services (Social services second review) [2019] AATA 4308.
In the applicant’s case, the qualification period runs from 29 December 2017 (the date of application for DSP) to 30 March 2018.
If a person is not qualified at the end of the 13 week review period, the Tribunal has no alternative but to reject the application, even if satisfied that the applicant is qualified for DSP at the date of the hearing: see Lawson and Secretary, Department of Social Security [1997] AATA 719.
Reports created outside the qualification period may however be relevant to the extent that they cast light on the applicant’s medical condition during the qualification period.[13]
[13] Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].
The Impairment Tables
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination) is made under s 26(1) of the SSA. The Impairment Tables Determination commenced on 1 January 2012.
Section 6 of the Impairment Tables Determination sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Subsection 6(1) states that a person's impairment must 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.
Subsection 6(3) states that an impairment rating can only be assigned to an impairment if the person's condition causing that impairment is permanent (in accordance with s 6(4) of the Impairment Tables Determination) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years. This requirement is of particular importance in the present case.
Therefore, if the applicant's condition causing impairment is not "permanent", the impairment resulting from this condition cannot be assigned an impairment rating. This rule also means that, even if the applicant's condition causing the relevant impairment is "permanent" but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Impairment Tables.
Subsection 6(4) provides the meaning of "permanent" for the purposes of s 6(3)(a). A condition is permanent if it:
a) has been fully diagnosed by an appropriately qualified medical practitioner; and
b) has been fully treated; and
c) has been fully stabilised; and
d) is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of s 6(4)(a) and (b), the following is to be considered:
a) whether there is corroborating evidence of the condition; and
b) what treatment or rehabilitation has occurred in relation to the condition; and
c) whether treatment is continuing or is planned in the next two years.
Subsection 6(6) defines "fully stabilised" for the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables Determination. It provides that a condition is fully stabilised if:
a) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
b) the person has not undertaken reasonable treatment for the condition and:
i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment ; or
ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Subsection 6(7) provides that, for the purposes of s 6(6) of the Impairment Tables Determination, reasonable treatment is treatment that:
a)        is available at a location reasonably accessible to the person; and
b)        is at a reasonable cost; and
c) can reliably be expected to result in a substantial improvement in functional capacity; and
d)        is regularly undertaken or performed; and
e)        has a high success rate; and
f)         carries a low risk to the person.
Section 8 of the Impairment Tables Determination sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person's impairment must not be taken into account.
The application of the Impairment Tables to the applicant's circumstances is discussed below.
Continuing Inability to Work (CITW)
Section 94(2) of the SSA relevantly provides that a person has a continuing inability to work (CITW) because of an impairment if the Secretary is satisfied that: the person has actively participated in a program of support (POS) wholly or partly funded by the Commonwealth; and the impairment is of itself sufficient to prevent the person from doing any work independently of a POS within the next 2 years.
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the 2014 Determination), sets out the requirements for active participation in a POS. A claimant must participate for at least 18 months during the relevant claim period, which is the period of 36 months ending immediately before the day on which the claim for disability support pension was made.[14]
[14] Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) ss 5(1)(a), 7(2).
If the person has a severe impairment, then he or she is exempt from the obligation to participate in a POS. A person has 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: s 94(3B) of the SSA.
The Social Security Guide(the Guide) at 3.6.3.05 importantly notes:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
ANALYSIS
As noted above, each of the s 94 requirements for DSP are cumulative.
A.As at 30 March 2018, did the applicant have a physical, intellectual or psychiatric impairment, as required by s 94(1)(a)?
The applicant has provided reports relating to a variety of conditions. Apart from various somatic conditions, she also provided psychiatric reports from three psychiatrists: Dr Toohey;[15] Dr Dinnen;[16] and Dr Henson.[17]
[15] ST3, p. 250.
[16] ST8, p. 261.
[17] ST9, p. 266.
(a)Dr Patrick Toohey provided a report on 9 November 2018.[18] His report commences with the observation that:
She describes a traumatic and chaotic developmental history which is then followed by medically and psychologically complicated adult life. My guess is that treating doctors throughout her life have not known the complexity of her past psychosocial history and their possible association with physical symptoms.
He concludes by observing that:
[She] is not so inclined or motivated to enter into any psychotherapy or treatment of the chronic background psychosocial issues. But these issues don’t form the reason for a DSP application. Her symptoms restricting her functioning are the somatic issues.
(b)On 5 February 2019, Dr Anthony Dinnen, Consultant Psychiatrist, provided a detailed report.[19] The learned specialist said:
I note from your referring letter that you diagnosed her as suffering from PTSD anxiety and depression. I would certainly agree that that is the sort of diagnostic category that describes the nature of her ongoing psychiatric problems. A lot of her disturbance in my view is constitutional, but she does not easily fit into the category of personality disorder. There is a suggestion of some bizarre thinking and somatic complaints which are overvalued suggesting that at times the diagnosis of somatic symptoms disorder coded (300.82 in DSM-5) may also apply. This may well be relevant even today with her complaints of loss of sensation pain symptoms and impaired mobility.
The diagnosis of post-traumatic stress disorder certainly would apply from those childhood experiences.
She does report prominent symptoms of ongoing anxiety and depression which some would argue each would qualify for the diagnosis of generalised anxiety disorder on the one hand and persistent depressive disorder (dysthymia) on the other.
The bottom line is that she is chronically psychiatrically disturbed and is unlikely to either find employment or maintain employment. Indeed, her past employment history appears quite fractured and scattered, consistent with long-standing psychiatric disorder. I would unequivocally recommend her for disability support pension.
(c)On 7 February 2019, Dr Henson, Consultant Psychiatrist, reported that "it seems fairly certain" that the applicant had Complex PTSD, Depression and Anxiety.[20] On 13 May 2019, Dr Henson refers again to her living difficulties, which he attributes to depression, anxiety and distress. He stated that the applicant had significant difficulty with self-care and independent living, limited social and relational activity, that she struggled to cope with tasks involving her week to week life, struggled with planning and decision-making, and had significant difficulty with training and work preparation. He supported an impairment score of 20.[21]
[18] ST3, p. 250.
[19] ST8, p. 261.
[20] ST9, p. 266.
[21] ST12, p. 270.

The evidence before the Tribunal supports a finding that the applicant suffers from extreme anxiety, depression and complex post-traumatic stress disorder.[22] There is also some evidence that she experiences a preoccupation with various physical conditions that may be suggestive of somatic symptoms disorder.[23] The reports of Dr Toohey and Dr Dinnen suggest that the applicant’s mental health problems are deeply ingrained and are of a long standing nature. As previously noted, Dr Toohey speculated that, possibly, “treating doctors throughout her life have not known the complexity of her past psychosocial history and their possible association with physical symptoms”.[24] I am satisfied that the reports are materially relevant to the applicant’s mental health during the review period.
[22] See for example, reports of Dr Henson 7 February 2019, ST9, p. 266; 13 May 2019, ST12, p. 270; Dr Dinnen 5 February 2019, ST8, p. 261.
[23] ST8, p. 261.
[24] ST3, p. 250.
I therefore find, based on the combined weight of the three psychiatric reports, that the applicant did have a psychiatric impairment during the review period.
B.As at 30 March 2018, did she suffer from an impairment of 20 points or more, as required s 94(1)(b)?
The Respondent’s Statement of Facts, Issues and Contention (SFIC) states as follows:
[T]he Secretary contends, at the qualification period, 29 December 2017 to 30 March 2018, that the:
(1)depression and anxiety were fully diagnosed but not fully treated or stabilised during the qualification period, but, if they were, resulted in no more than a mild functional impairment attracting 5 points under Table 5 of the Impairment Tables, and the posttraumatic stress disorder was not fully diagnosed during the qualification period;
(2)neuropathy condition was fully diagnosed but not fully treated or stabilised during the qualification period, but, if it were, resulted in no more than a mild functional impairment attracting 5 points under Table 3 and 0 points under Table 2 of the Impairment Tables;
(3)spinal condition and Still's Disease was fully diagnosed but not treated and stabilised, but, in any event, there was insufficient medical evidence as at the qualification period to assess the functional impairment arising from the conditions; and
(4)hearing; obesity and upper limb conditions could not be assessed as there was insufficient medical evidence available at the qualification period to do so.
On that basis, the applicant's overall impairment rating at the qualification period would be no more than 10 points across Tables 3 and 5, and therefore, she did not satisfy s 94(1)(b) of the Act.
The Respondent’s SFIC suggests that, at most, the applicant should be assigned ten impairment points – five for each of Neuropathy and Mental Health. In the remainder of this decision, I propose to focus on the applicant’s mental health condition.
Subsection 6(3) of the Impairment Tables Determination, states that an impairment rating can only be applied if the person’s condition is permanent. Subsection 6(4) provides the meaning of “permanent”. As noted above, the condition is not permanent unless it has been fully diagnosed by an appropriately qualified medical practitioner; has been fully treated; has been fully stabilised; and is more likely than not, in light of the available evidence, to persist for more than two years.
Leaving aside the evidence of various physical health concerns, the applicant’s case, in relation to the psychiatric evidence, presents a problem not uncommonly found in DSP cases – there was no diagnosis of psychiatric illness during the qualification period. The medical diagnosis is contained in reports that were written some time later. This is not of itself fatal to the application, because health reports compiled after the review period may cast light on the applicant’s condition during the period, and if so, they should be admitted accordingly.
A more serious problem is that an undiagnosed health condition is unlikely to have been the subject of any treatment. There are however circumstances where a claim for DSP may succeed even in the absence of reasonable treatment during the review period.
Subsection 6(6)(b) of the Impairment Tables Determination sets out circumstances in which a condition may be regarded as fully stabilised even though a person has not undertaken reasonable treatment during the review period. It provides that a condition is fully stabilised if:
b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The psychiatric reports of Dr Dinnen[25] and Dr Henson[26] suggest that the applicant’s condition was unlikely to improve over the next two years. Dr Dinnen states:
The bottom line is that she is chronically psychiatrically disturbed and is unlikely to either find employment or maintain employment. Indeed, her past employment history appears quite fractured and scattered, consistent with long-standing psychiatric disorder.
[25] ST8, p. 261.
[26] ST9, p. 266.
I think it would be optimistic to find that, as at 30 March 2018, reasonable treatment would have led to significant functional improvement to a level enabling the applicant to undertake work in the next two years. The vagaries of mental health treatment are well known. There is a high failure rate with even the most reliable therapies. Treating PTSD in particular is an extremely difficult challenge for medical science.[27]
[27] Allen, J. (2003). Challenges in treating post-traumatic stress disorder and attachment trauma. Current Women’s Health Reports, 3(3), 312-320.
For completeness, I also considered whether there was a medical or other compelling reason for the applicant not to have undertaken reasonable treatment for PTSD, anxiety and depression. I think it would be unrealistic to say that, at the relevant time, psychiatric treatment was available to the applicant, within reach and at an affordable price, with a high rate of success, in dealing with her deeply ingrained and profound psychiatric problems. After all, she was, at the relevant time, in the throes of a crisis. To put it bluntly, she was living in a tent in her dying mother’s backyard. Due to the state of her mother’s house (her hoarding), and the enmity with her brother, she was reduced to living in an unsafe tent in the unfenced backyard. This was not an environment in which a person with chronic depression, anxiety and PTSD and with no financial resources might successfully engage therapeutic services. Reasonable treatment is treatment that is available at a location reasonably accessible to the person and at a reasonable cost. In my view, to expect a high rate of success from any treatment then available to her would be unrealistic.
It is also necessary to consider whether it was more likely than not, in light of the available evidence, that the applicant’s psychiatric state (anxiety, severe depression and complex PTSD) was likely to persist for more than two years. I have no hesitation in answering this question in the affirmative. On 30 March 2018, in light of information now available as to her psychiatric condition at that time, it was more likely than not that her psychiatric health would remain a source of concern for more than two years. I have no difficulty in so finding. (In considering this question, it would be an error to answer the question in light of current evidence as to her present state of mental health).
These findings imply that her psychiatric condition was in the nature of a permanent impairment. It was diagnosed and fully stabilised within the qualification period and likely to persist for more than two years.
Finally, it is necessary to find that the impairment was appropriately assessed as 20 points or more on the Mental Health Impairment Table. I have no hesitation in doing so based on the psychiatric reports before the Tribunal. Dr Henson explicitly supported an impairment rating of 20.[28] It is not necessary to search through the other impairment tables to find the necessary 20 points.
C.Did the applicant have a continuing inability to work (CITW), as required by s 94(1)(c)?
[28] ST12, p. 270.
The applicant lodged her claim for DSP on 29 December 2017. Centrelink records show no POS in the period from 28 December 2014 to 28 December 2017.[29] Therefore, the applicant does not satisfy the requirement for active participation in a POS, having not completed any POS hours in the 36 months ending immediately before the day on which she lodged her claim for DSP.
[29] T52, p. 246.
Therefore, the success of her claim depends upon her suffering from a severe impairment during the qualification period. The applicant needs to have an impairment rating of 20 points based on one of the Impairment Tables. As noted above, I have already found that the 20 points may be found in the Impairment Table relating to Mental Health.
At the hearing, the Tribunal had the benefit of psychiatric reports that were not available to AAT1 or Centrelink when considering the application for DSP in the first instance. The reports show that, during the review period, the applicant suffered from severe mental health impairment, as defined by the Impairment Tables. She should therefore be regarded as having a continuing inability to work (CITW) even though she had not participated in a program of support over the previous three years.
I therefore find that each of the requirements specified under s 94 of the SSA is satisfied and that the applicant was entitled to DSP. I therefore conclude that the correct or preferable decision is that the decision of AAT1 should be set aside.
CONCLUSION
The decision of the AAT1 made on 6 December 2018 is set aside, and the matter remitted to Centrelink on the basis that the applicant was entitled to DSP as at 29 December 2017, the date of her application for DSP.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........................[sgd]................................................
Associate
Dated: 19 December 2019

Date of hearing:
4 September 2019

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

[2019] AATA 5488

19 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Date of hearing:	4 September 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services