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

[2016] AATA 874

Gordon and Secretary, Department of Social Services (Social services second review) [2016] AATA 874 (4 November 2016)

Division	GENERAL DIVISION
File Number	2015/4598
Re	Mary Gordon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	4 November 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

SOCIAL SERVICES - Qualifications for Disability Support Pension - physical, intellectual or psychiatric impairments - Impairment Tables - impairment rating of 20 points - whether continuing inability to work - impairments not severe - not participated in program of support - not qualified for DSP - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Mr Conrad Ermert, Member

INTRODUCTION

1. On 27 January 2015 Mrs Gordon, the Applicant, lodged a claim for Disability Support Pension (DSP) with Centrelink.  Centrelink is the service provider for the Department of Social Services, the Respondent.  In her claim she listed as her disabilities and injuries: Type 1 diabetes, insulin pump, underactive thyroid, head injuries, chronic disabling back pain, arachnoiditis, lower back, psychological problems, right knee. 

2. On 9 April 2015 a Centrelink officer determined that Mrs Gordon was not qualified for DSP because her impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  On 11 May 2015 a Centrelink authorised review officer (ARO) affirmed this decision.  Mrs Gordon sought review of the ARO’s decision.  On 4 August 2015 the Social Services and Child Support Division of this Tribunal (AAT1) affirmed the decision. 

3. This matter is a review of the AAT1 decision.

   HEARING

4. Mr Graham Wells, of Social Security Rights Victoria, represented Mrs Gordon.  Mrs Gordon appeared in person and gave her evidence under oath.  Ms Vincci Chan appeared for the Respondent.

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) pages 1 to 162 and the Supplementary T-Documents (ST-Documents) pages 163 to 294, less pages 202 to 204.

6. For the Applicant, I took in for consideration the Applicant’s Statement of Facts, Issues and Contentions dated 20 September 2016.  Mrs Gordon gave evidence under oath.  Dr James Sutherland, her General Practitioner, gave evidence under affirmation by telephone.  Ms Virginia O’Loughlan, Registered Psychologist, gave evidence under affirmation by telephone. 

7. For the Respondent, I took in for consideration the Secretary’s Statement of Facts and Contentions dated 29 August 2016.

   LEGISLATION

8. The legislation relevant to this matter is contained in the:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act); and

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

9. Section 94 of the Act  relevantly prescribes qualification for DSP, as follows:

   (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; …

   QUALIFICATION PERIOD

10. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

11. In this case the qualification period runs from 27 January 2015, the day on which the claim was lodged, to 28 April 2015. 

    ISSUES

12. The issues are whether, during the qualification period, Mrs Gordon:

    ·had any physical, intellectual or psychiatric impairments; and, if so,

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·she had a continuing inability to work.

    EVIDENCE

    Mrs Gordon

13. In her evidence Mrs Gordon said the last time she was employed was 2003.  At that time she hurt her back.  The doctors sent her to specialists and she spent three days in hospital.  She submitted a claim for DSP in 2010.  She has been in a lot of pain since then. 

14. Mrs Gordon was asked about her situation in regard to exertion and pain around January 2015, the qualifying period.  Mrs Gordon said she was unable to walk around to do her shopping and her husband had to push the trolley for her.  Asked if she could drive, Mrs Gordon said she would be very sore.  She could walk independently but with pain.  From January 2015 she walked with a limp and now she uses a crutch.  Asked about using public transport, Mrs Gordon said she would need help because of the steps.  Asked how she managed in the home, Mrs Gordon said that bending down made her pain worse.

15. Mrs Gordon was asked questions relating to her spinal condition during the qualifying period.  She said she was involved in a car accident in 2007.  In 2010 she had an operation to her shoulder.  She said her lower back condition was and continues to be severe.  It is ongoing.  Mrs Gordon said she could lift her hands above her head but it hurt.  She can vacuum the house but with pain.  She can not bend her neck since the car accident and she can not pour a glass of water.  Mrs Gordon said she could sometimes remain seated for 15 minutes but it depends on the level of pain. 

16. In regard to her mental health Mrs Gordon she first realised she had a problem in 2004 when she felt suicidal and overdosed resulting in police involvement.  In 2015 she was depressed and suicidal at times.  She described her husband as her carer who does the shopping and looks after the household.  Mrs Gordon does not travel as she finds it overwhelming and “scary”.  She no longer has a social life.  She has poor concentration and has to write notes for her husband.  She does not plan ahead and lives day to day.  Mrs Gordon said she tried undertaking some study in 2012 but found that it aggravated her back and she has not tried again. 

17. In regard to her brain functions Mrs Gordon said she forgets things in the short term however her long term memory is better.  She said she stumbles over words and cannot find the right word. 

18. Asked about her diabetes condition Mrs Gordon said she had a car accident in 2007 and was diagnosed a year later with diabetes.  Now she has to use her pump four times per day.  She is on medications, but her condition fluctuates.  She said that in 2015 her condition was poorly controlled and would have symptoms every day.  Mrs Gordon tests her blood sugar levels before and after driving the car and she has conditions imposed on her driving licence. 

19. In cross examination Mrs Gordon said her pain is constant, whether sitting down or standing.  Her pain has not changed since 2003.  She had a number of more ergonomic appliances installed in the home about five or six years ago.  However her husband carries the washing basket out and hangs up the washing as it causes her pain.  She cannot turn as it causes pain in her back.  In January 2015 she could sit for 15 to 20 minutes, but not for 30 minutes.  She had difficulty in reaching overhead, such as hanging out the washing, because of her back.  She had difficulty in looking to her left.  Picking up a light object pulls her back.  She could have tried working but it would have had consequences for her.  Bending to the left hurts more than the right.  She has a reclining chair and pushes herself up to get out of it. 

20. Asked about shopping, Mrs Gordon said her husband pushes the trolley and picks items off the top and bottom shelves.  She cannot carry items. 

21. Asked about public transport, Mrs Gordon said she does not use public transport because the tram steps are too high.  She always drives the car.  It takes about 25 minutes for her to drive to Ballarat for her appointments. 

22. In regard to mental health issues Mrs Gordon said her doctor prescribed anti-depressant medication for her.  She could not recall if the medications had been changed.  She receives no treatment for her brain injury. 

23. Asked about her ability to walk independently, Mrs Gordon said she had to ask people to carry things to her car.

    Dr Sutherland

24. Dr Sutherland stated he had been a General Practitioner since the 1990s and had a special interest in aged care.  He sees a lot of patients with chronic pain and mental health issues.  He described Mrs Gordon’s lower back chronic pain as severe.  He described her mental health condition as “more severe than moderate”.  He said he prescribes anti-depressant medications for a lot of patients.

25. Asked why he rated Mrs Gordon’s lower back pain in January 2015 as severe, Dr Sutherland said that she had had ongoing back pain for a number of years, that she was in significant distress and was more often using opiate medications than not using them.  He said she complained of lower back pain, observed the way she stood, and had seen the CAT scans, X-ray and MRI images.  Dr Sutherland said he referred Mrs Gordon to Mr de la Harpe who suggested surgical procedures however WorkCover refused to pay the costs. 

26. Dr Sutherland gave the following responses to questions about Mrs Gordon’s condition in January 2015:

    ·Ability to sit – five minutes;

    ·Overhead activities – not sure; she could do them but with pain in her shoulder and neck;

    ·Turn head and neck – not sure;

    ·Bend forward – could bend but with a lot of pain.

27. Asked about Mrs Gordon’s treatment for depression in January 2015, Dr Sutherland said she needed anti-depressant medication intermittently and she was seeing a psychologist. 

28. Asked what conditions led to Mrs Gordon’s chronic pain, Dr Sutherland said her back, her neck, and now her knee problem.  He said the rotator cuff problem had been resolved; however, she also had lumbar spondylosis in her spine. 

29. Dr Sutherland said that, although Mrs Gordon was accompanied by her husband in shopping centres, she may be able to do things unaccompanied. 

30. In re-examination, Dr Sutherland said only about ten percent of his patients had as many conditions as Mrs Gordon.  He said “she is out of the norm”.  He said she needs ongoing physical and mental assistance.

    Ms O’Loughlan

31. Ms O’Loughlan stated that she was a registered psychologist with 12 years’ experience.  Asked to explain the difference between a Registered Psychologist and a Clinical Psychologist Ms O’Loughlan said that a Clinical Psychologist had to successfully complete a two year Master of Clinical Psychology course of studies followed by a year of on-the-job training.  Nevertheless she did not believe that the treatment provided by herself would differ from that provided by a Clinical Psychologist. 

32. Mr Wells asked her if Mrs Gordon’s treatment at the Ballarat Mental Health Unit would have been supervised by a psychiatrist.  Ms O’Loughlan said that would have been dependent on the workload at the time. 

33. In cross examination, Ms O’Loughlan stated that she first treated Mrs Gordon on 18 June 2015.  She completed her assessment of the condition of depression on 15 July 2015.  When asked about the treatment received by Mrs Gordon, she relayed that Mrs Gordon’s condition had fluctuated since July 2015 and was difficult to stabilise.  Ms O’Loughlan said that Mrs Gordon had recently been referred to a psychiatrist. 

34. Asked about the functional impact of the condition, Ms O’Loughlan said that Mrs Gordon:

    ·Was tearful and suicidal at times;

    ·Had difficulty in concentration;

    ·Had difficulty with relationships;

    ·Had lost interest in activities and friendships; and

    ·Was not physically or mentally capable of working.

35. In re-examination Mr Wells asked if Mrs Gordon’s condition in January 2015 was likely to be similar to her condition on 18 May 2015.  Ms O’Loughlan said she was unable to comment.

    TRIBUNAL CONSIDERATIONS

    Does Mrs Gordon have an Impairment? (subsection 94(1)(a) of the Act)

36. The Respondent concedes, correctly in my opinion, that during the qualifying period Mrs Gordon had impairments from a number of conditions which satisfied the requirements of section 94(1)(a) of the Act.  The concession is supported by medical evidence, and I find accordingly.

    Do the Impairments attract an Impairment Rating of 20 points or more? (subsection 94(1)(b) of the Act)

37. I must now determine whether Mrs Gordon’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

38. The Respondent concedes that Mrs Gordon’s impairments attract a total of 20 points or more and she satisfies the requirements of subsection 94(1)(b) of the Act.  I am satisfied that the medical evidence supports this concession and I find accordingly.

    Does Mrs Gordon have a continuing inability to work? (subsection 94(1)(c) of the Act)

39. Subsection 94(1)(c)(i) of the Act provides that a person is qualified for DSP if the person has a continuing inability to work.  Subsection 94(2) of the Act provides:

    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) … – the person has actively participated in a program of support within the meaning of subsection (3C); …

40. Subsection 94(3B) provides that 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. 

41. Accordingly I must determine whether any of Mrs Gordon’s impairments attract a rating of 20 points or more under a single table of the Impairment Tables.  If so, I will then determine whether Mrs Gordon has actively participated in a program of support.

42. I will consider each of the conditions in turn.

    Lower Back Pain

43. The appropriate table for assessing this condition is Table 4 – Spinal Function.  The descriptors for a severe functional impact attracting a rating of 20 points are:

    The person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

44. The Introduction to Table 4 states that self-report of the symptoms alone is not sufficient and there must be corroborating evidence, exemplified by reports from medical practitioners.  The corroborating evidence is contained in the following reports:

    ·Mr Steven Leitl, Orthopaedic Surgeon, dated 13 August 2010 – “Pain was constantly present and aggravated by prolonged postures/activities such as sitting for 10 minutes or walking for 300 metres … She was unable to do much around the house.  She said that she occasionally did some dishes and used long handle equipment for some dusting … She had two hours per fortnight of insurer paid home help for the heavier tasks.  She accomplished ADLs independently … She reports a significantly decreased capacity to undertake domestic tasks and has ongoing insurer paid regular home help of two hours per fortnight.  This should be able to be ceased after the pain management program.” ;

    ·Dr Sutherland dated 12 November 2012 – “general impairment of everyday activities…” ;

    ·Dr Sutherland dated 9 January 2015 – “general impairment of function and most ADLs (activities of daily living)”;

    ·Job Capacity Assessment dated 9 April 2015 – “Mrs Gordon is able to sit in or drive a car (automatic) for at least 30 minutes, from her home in Linton and ... She is unable to turn her head and has difficulty looking down”;

    ·Dr Sutherland dated 15 October 2015 – “I believe she has moderate to severe functional impairment from her spinal problems” .

45. In his oral evidence Dr Sutherland said that in January 2015 Mrs Gordon’s condition was severe, she could sit for 5 minutes, she could do overhead activities with pain and could bend forward with a lot of pain.  He was not sure whether she could turn her head and neck. 

46. In his submissions, Mr Wells urged me to take a broad and holistic approach to the interpretation of the Impairment Tables.  The evidence on this condition, taken as a whole, describes a range of severity from moderate to severe.  In particular, the contemporaneous evidence of Dr Sutherland in his report dated 9 January 2015 records only a general impairment of everyday activities.  Dr Sutherland confirmed this assessment in his report of 15 October 2015 by rating the impairment as moderate to severe. 

47. With a more specific application of the Impairment Tables I note that, with one exception, there is no evidence that Mrs Gordon is unable to perform the functions listed for an assessment of 20 points.  The exception is the statement of the Job Capacity Assessor that Mrs Gordon is unable to turn her head.  This is the only record of such an opinion and is at odds with Mrs Gordon’s own evidence.  Asked whether she could move her head in all directions, Mrs Gordon said she had difficulty looking to the left.  This evidence does not indicate that she is unable to turn her head. 

48. I am satisfied from the evidence that Mrs Gordon’s functional impairment from her lower back pain condition is in the range from moderate to severe.  Subsection 11(c) of the Rules for applying the tables requires me to assign the lower of the two ratings.  The higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied.  In this case I accept the evidence that Mrs Gordon was able to perform some overhead activities, she could turn her head and could remain seated for longer than 10 minutes. 

49. As all of the descriptors for the rating of 20 points are not satisfied, I must apply the next lower rating of 10 points.  I find accordingly.  This is not the rating of 20 points required to classify the condition as severe. 

    Left Shoulder Injury

50. The appropriate table for the assessment of a left shoulder injury is Table 2 – Upper Limb Function.  The Introduction to Table 2 provides that self-report of symptoms alone is insufficient and there must be corroborating evidence, exemplified by reports from medical practitioners.

51. The corroborating medical evidence relevant to the left shoulder injury is contained in the following reports:

    ·Dr Sutherland, dated 15 October 2015 – “I believe Mary’s impairment would have rated at least 5 points on the tables as she is Right handed and her Left shoulder is injured and had been operated on three times” ; and

    ·Ms Virginia O’Loughlan, Psychologist, dated 29 February 2016 – “Mrs Gordon has a mild functional impact on activities using upper limbs requiring physical exertion or stamina.  Mary experiences difficulty with most activities of daily living such as attending to buttons, handling small objects, hanging out washing”. 

52. The Respondent contends that this condition attracts an impairment rating of five points.  Mr Wells relies on a report by Dr Sutherland that assesses the impairment as mild.

1. From the medical evidence I am satisfied that Mrs Gordon suffers a mild impairment from her left shoulder injury.  I find that the impairment rating for this condition is five points which is not the 20 points required to classify this impairment as severe.

   Brain Injury

2. The appropriate table for the assessment of a brain injury is Table 7 – Brain Function.  The Introduction to Table 7 provides that self-report of symptoms alone is insufficient and there must be corroborating evidence, exemplified by reports from medical practitioners.

3. The corroborating medical evidence relevant to the brain injury is contained in the following reports:

   ·Ms Louise Boin, Clinical Neuropsychologist, dated 25 September 2013 – “There appears to have been a significant acquired brain injury (ABI) in 2007, with 30-60 minutes loss of consciousness and perhaps a few hours of posttraumatic amnesia (PTA).  This length of time in PTA would classify the ABI as “Mild”, although there does not appear to have been monitoring of PTA and this estimate is only based on her account”;

   ·Dr Sutherland, dated 15 October 2015 – “Head Injury:  Mary suffered a skull fracture in the car accident on 18.07.2007.  I will enclose the Neuropsychiatric report from Louise Boin which indicates a mild acquired brain injury”; and

   ·Ms Boin, dated 19 July 2016 – “There would be a mild functional impact resulting from:

   oMemory: tendency to be overwhelmed with large amounts of information.

   oMild fluctuations in attention when required to sequence while holding information in her immediate memory.

   oMild problem solving deficits when abstract concepts are involved or when complex visual material needs to be planned/monitored.

   oPlanning in most spheres is intact.

   oDecision making is intact at a cognitive level (no comment offered here with regard to mood or psychiatric difficulties)

   oComprehension would be mildly reduced in situations where a lot of information is given at once.”

4. The Respondent submits that the rating for this impairment should be five points.  Mr Wells does not contest this rating.

5. From the medical evidence, I am satisfied that Mrs Gordon suffers a mild impairment from her brain injury.  I find that the impairment rating for this condition is five points which is not the 20 points required to classify this impairment as severe.

   Diabetes

6. The appropriate table for the assessment of diabetes, in the Mrs Gordon’s circumstances, is Table 1 – Functions requiring Physical Exertion and Stamina.  The Introduction to Table 1 provides that self-report of symptoms alone is insufficient and there must be corroborating evidence, exemplified by reports from medical practitioners.

7. The corroborating medical evidence relevant to Mrs Gordon’s diabetes is contained in the following reports:

   ·Dr Howard Zeimer, Endocrinologist, dated 26 July 2012 – “To further optimise glycaemic control I have increased insulin doses during the day and at night … I will review Mrs Gordon at the end of the year.  I did ask her to consider the option of an insulin pump to improve diabetic control and quality of life.” ;

   ·Dr Mandy Lau, dated 2 November 2012 – “Diabetic control remains poor” ;

   ·Dr Sutherland, reports dated 12 November 2012 and 9 January 2015 in which he recorded Type I Diabetes as a condition that was well managed and caused minimal or limited impact on ability to function;

   ·Job Capacity Assessment Report dated 9 April 2015 – “Mrs Gordon advised that the use of the insulin infusion pump was at times problematic for her however her condition was monitored by the Sunshine hospital and is chronic, well managed and has no/minimal impact on function” ;

   ·Dr Sutherland, dated 15 October 2015 – “Her stamina was greatly reduced as at 27/1/15.  I attribute this to a combination of factors including her diabetes, chronic pain, depression, anxiety, and medications need to treat these conditions as well as her mild acquired brain injury.  Her diabetes has been difficult to control including last year leading up to 27/1/15 … Mary had an insulin infusion pump from June 2014 until March 2015 … Mary has been on Insulin since 2009 … Mary had (and still has) an insulin infusion pump for her diabetes … Another example is Mary’s diabetes, which required her to have four insulin injections per day and frequent (two hourly) blood glucose monitoring.  This was an added burden for her on top of her other stresses and chronic pain.  Mary’s diabetes is a contributor to her lower limb function as well as her stamina as per the impairment tables.  Her sleep was significantly impaired despite regular use of sleeping tablets (temazepam).  Her diabetes and other problems (including underactive thyroid) were impacting significantly on her everyday activities as at 27 January 2015.”; and

   ·Mrs Louise Boin, Clinical Neuropsychologist, dated 19 July 2016– “Whilst she describes her diabetes as quite brittle (with poorly controlled sugar levels), it would appear from her lack of cognitive deterioration that she has been managing it adequately … “.

8. I note that in his report of 15 October 2015, Dr Sutherland attributes a significant impact on Mrs Gordon’s everyday activities to her diabetes, together with her other problems.  This is at odds with his opinions in his 9 January 2015 report and the opinions of Mrs Gordon, as recorded in the Job Capacity Assessment report of 9 April 2015.  I also take note of Mrs Boin’s finding, based on her observations of a lack of cognitive deterioration, that Mrs Gordon has been adequately managing her diabetes condition.  I give a greater weight to these opinions over those recorded by Dr Sutherland in his later reports. 

9. Considering all the evidence I am satisfied that, at the time of the qualifying period, Mrs Gordon’s diabetes was reasonably well managed and causing minimal impact on her ability to function.  I find that, at the qualifying period, the condition of diabetes attracted an impairment rating of zero points.

   Right Knee Injury

10. Subsections 6(3) and (4) of The Rules for applying the Impairment Tables provide that an impairment rating can only be assigned to a condition if it has been fully diagnosed, fully treated and fully stabilised.  In considering this issue I note the following reports:

    ·Job Capacity Assessment dated 9 April 2015 – “Musculo-Skeletal Disorder … Surgery … Arthroscopy right knee … This condition is fully diagnosed, treated and stabilised.” ;

    ·ARO Notes dated 11 May 2015 – “Customer said she is currently an inpatient in hospital receiving treatment for knee problem” ;

    ·A/Prof Martin Richardson, Orthopaedic Surgeon, dated 10 February 2015 – “I reviewed Mary in my Epworth Consulting Rooms on 09/02/2015.  She is having worsening troubles with the right knee and we have organised an arthroscopic debridement for her” ; and

    ·Mr Paul Plank, Orthopaedic Surgeon, dated 21 April 2015 – “The Operation performed today was:- Left/Right Knee Arthroscopy, Medial / Lateral Meniscectomy, Lateral Release” .

11. I am satisfied from the medical evidence that at the time of the qualifying period Mrs Gordon’s right knee condition was not fully treated or fully stabilised.  As a result I am unable to assign an impairment rating to this condition and the condition does not meet the requirements of a severe impairment.

    Depression

12. The Impairment Table relevant to depression is Table 5 – Mental Health Function.  The Introduction to Table 5 requires the diagnosis of the condition to be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a Clinical Psychologist (if the diagnosis has not been made by a psychiatrist). 

13. In determining the diagnosis of the condition I note the following reports:

    ·Dr Sutherland, dated 9 January 2015 –

    oCondition 1 Diabetes + Depression … depression – has been suicidal in past;

    oCondition 2 Head injury … Specialist consultation Ms Louise Boin neuropsychologist 6/13  … multiple comorbidities including severe depression and anxiety symptoms” ;

    ·Dr Sutherland, dated 15 October 2015 – “Whilst is it acknowledged that Mary’s depressive and anxious symptoms fluctuated and consequently her levels of pain fluctuated as at 27/1/15, she had a chronic level of moderate to severe disability in my opinion …4. Treatments (b) … Depression and anxiety.  Mary had required assessment by Ballarat Health Services Psychiatric Services at times when she has been suicidal.  I will enclose relevant documentation.  Mary had seen Psychologists.  I have already mentioned Louise Boin, whose report I will enclose” ; and

    ·Mrs Boin, dated 25 September 2013 – “Her mood is of concern and it would appear that she has chronic mental health problems.  Whilst her affect appeared elevated, she reported symptoms of depression and her scores on the DASS21 were very high.  I wondered also whether her neuropsychological profile in which she showed strengths in verbal fluency and speed of processing together with her presentation might also suggest a mood disorder.  Perhaps psychiatric opinion could assist in clarifying this … “ ; and

    ·Mrs Boin, dated 19 July 2016 – “Her mood remains of concern and it would appear that she has chronic mental health problems.  Whilst her affect appeared bright she reported symptoms of depression and her scores on the ORS indicated severe distress.  Perhaps psychiatric opinion could assist in clarifying this and I support ongoing psychological treatment.”.

14. In his submissions Mr Wells urged me to take a holistic view of the requirements of the Impairment Tables.  In regard to Table 5, he contends that the diagnosis needs to be made by an appropriately qualified medical practitioner which is not limited to a psychiatrist.  He contends that Dr Sutherland is an appropriately qualified medical practitioner on the basis of his experience obtained as a normal part of his practice, which includes patients with mental illness.

15. While I do not doubt that Dr Sutherland has acquired considerable knowledge from his experience in treating patients with mental illness, I do not accept that he is appropriately qualified in the terms of the Act.  I have no evidence that Dr Sutherland has achieved any qualifications in the field of mental health.  Without qualifications, Dr Sutherland cannot be qualified.  I do not accept that knowledge acquired through experience in General Practice satisfies the meaning of appropriate qualifications as required by the Act.  I find that Dr Sutherland is not an appropriately qualified medical practitioner in the field of mental health functions. 

16. I am supported in this view by the opinions of Mrs Boin who recorded the need for psychiatric opinion to clarify the issues arising from the reported symptoms of depression.  This indicates to me the limited expertise of Dr Sutherland in the analysis of mental health symptoms.

17. As Mrs Gordon’s mental health condition has not been diagnosed by an appropriately qualified medical practitioner, the diagnosis does not satisfy the requirements of the Act.  Accordingly, I find that her mental health condition is not fully diagnosed.  As a result, the condition can not be assigned an impairment rating under Table 5 and it does not meet the requirements for a severe impairment. 

    Active Participation in a Program of Support (subsection 94(2)(aa) of the Act)

18. I have found that none of Mrs Gordon’s impairments are severe in the terms of the subsection 94(3B) of the Act.  This means that, in order to satisfy subsection 94(2)(aa) of the Act, Mrs Gordon must have actively participated in a program of support. 

19. The Respondent submits that Mrs Gordon did not actively participate in a program of support at any time prior to lodging her claim for DSP.  There is no evidence of any such participation.  Mr Wells has made no submissions on this issue.

20. I am satisfied that, at the time of the qualifying period, Mrs Gordon had not actively participated in a program of support and I find accordingly.  As a consequence, Mrs Gordon does not satisfy the requirements of subsection 94(2)(aa) of the Act. 

    Subsection 94(2) of the Act

21. As Mrs Gordon does not satisfy the requirements of subsection 94(2)(aa) she does not satisfy all the requirements of subsection 94(2) of the Act.  Accordingly, she does not have a continuing inability to work in the terms of subsection 94(1)(c) of the Act.

    Qualification for DSP

22. As Mrs Gordon does not satisfy the requirements of subsection 94(1)(c) she does not satisfy all of the requirements of subsection 94(1) of the Act.  This means that, at the time of the qualifying period, Mrs Gordon was not qualified for the DSP, and I find accordingly.

    DECISION

23. I affirm the decision under review.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 4 November 2016

Date of hearing	21 September 2016
Solicitors for the Applicant	Mr Graham Wells, Social Security Rights Victoria
Advocate for the Respondent	Ms Vincci Chan, Department of Human Services