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

Hill and Secretary, Department of Social Services (Social services second review) [2020] AATA 3696 (21 September 2020)
Division:GENERAL DIVISION
File Number: 2019/6868
Re:Sandra Hill
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:21 September 2020
Place:Brisbane

The reviewable decision is affirmed.
.............................[SGD]..................................
Member R Maguire
Catchwords
SOCIAL SECURITY – Disability Support Pension – Impairment Tables – Whether impairment fully diagnosed, treated and stabilised within the qualification period – Whether Applicant suffers severe impairment – Whether Applicant has completed Program of Support - Where Applicant not entitled to 20 points – Where decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member R Maguire
21 September 2020

On Tuesday, 12 February 2018, Ms Sandra Hill (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”)[1] under section 94 (1) of the Social Security Act 1991 (the Act). The Applicant listed her medical conditions as “asma (sic), spina bifita (sic), arthritis, scolliosis (sic), RSI, knee pain, shoulder pain, dermatitis, blind one eye (sic)”.[2]
[1] Exhibit 1, T 27, pages 145 – 175.
[2] Exhibit 1, T 27 page 171.
The claim was rejected on 18 December 2018.[3]
[3] Exhibit 1, T 35 pages 199 – 200 Centrelink notice: Rejection of your claim for DSP.
The decision was reviewed by an Authorised Review Officer (“ARO”) who affirmed the decision to refuse the application for DSP on 17 July 2019.[4]
[4] Exhibit 1, T 41 pages 216 – 224 Decision and Notes of Authorised Review Officer.
The Applicant sought a first tier review of that decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal which affirmed the decision of the ARO on 8 October 2019,[5] on the basis that whilst the Applicant satisfied section 94 (1)(a) of the Act, she did not satisfy section 94 (1)(b). Having made this finding, the SSCSD did not address the issue of the Applicant’s continuing ability to work.
[5] Exhibit 1, T T2 pages 5 – 11 Decision of Social Services and Child Support Division (SSCSD).
Following this, the Applicant sought a second tier review of this matter by the General Division of this Tribunal by way of an Application for Review received on 22 October 2019.
The review was heard by telephone on 15 September 2020. The Applicant was self-represented and gave evidence under affirmation.
The Respondent was represented by Jasmine Forsyth of Mills Oakley Solicitors.
The question for this Tribunal to determine is limited to whether the Applicant was entitled to DSP during the period from 12 February 2018 to 14 May 2018 (“the qualifying period”). It is not for the Tribunal to determine if the Applicant became eligible after this period.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).
The Administration Act requires that in order to receive DSP payments, an Applicant must be qualified for DSP either on the date of application, or become so qualified at some stage within the period of 13 weeks following.[6]
[6] Clause 4 of Schedule 2 of the Social Security Administration Act 1999 (Cth) (‘The Administration Act”), discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.
Section 94 of the Act prescribes the criteria that must be met during the qualifying period in order to receive payment of DSP. For present purposes, the relevant part of this section is:
94 Qualification for disability support pension
1A 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 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
The Impairment Tables referred to in section 94 of the Act are set out in the Determination made under section 26 of the Act, and which came into force on 1 January 2012.
The Determination defines “impairment” thus:
impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.⁷
Section 5(2) of the Determination provides:
2The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
The impairment of a person 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.[7]
[7] Section 6(1) of Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (“The Determination”).
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[8]
[8] Section 6(2) of the Determination.
An impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent,[9] and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years.[10]
[9] Section 6(3)(a) of the Determination.
[10] Section 6(3)(b) of the Determination.
Section 8 of the Determination is headed “Information that must not be taken into account in applying the Tables.” Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[11] Moreover, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[12]
[11] Section 8(1) of the Determination.
[12] Section 8(2) of the Determination.
The determination provides that a condition is regarded as permanent, if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[13]
[13] Section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[14]
[14] Section 6 (5) of the Determination.
A condition is considered to be “fully stabilised” if: [15]
(a)either 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 two 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 two 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.
[15] Section 6 (6) of the Determination.
“Reasonable treatment” is treatment that is: available at a location reasonably accessible to the person; is at reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16]
[16] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Table,[17] it is necessary to:
(a)identify the loss of function; then
(b)refer to the table related to the function affected; then
(c)identify the correct impairment rating.
[17] Section 10 of the Determination.
In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[18]
[18] Sub-sections (3) and (4) of section 10 the Determination.
Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[19]
[19] Sub-sections (5) and (6) of section 10 the Determination.
An impairment rating can only be assigned in accordance with the rating points in each impairment table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied, and a rating cannot be assigned in excess of the maximum rating specified in each table.[20]
[20] Section 11 of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94 (1)(c) of the Act, a person must meet the criteria of section 94 (2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment table.[21]
[21] Section 94(3B) of the Social Security Act 1991 (Cth) (“the Act”).
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings is to be determined at the date of claim, or where a person is not qualified on that date, but becomes qualified within 13 weeks of lodging the claim, the date the person becomes qualified.[22]
[22] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
CONSIDERATION
The Respondent accepts that the Applicant has physical and psychological impairments and that paragraph 94 (1)(a) of the Act was satisfied during the qualifying period.[23]
[23] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions at page 7, paragraph 42.
The Applicant told the Tribunal that she is unable to get a job because prospective employers tell her that she is a workplace health and safety risk. The Applicant expressed frustration at the outcomes of her repeated attempts to get the DSP as she has been told that she is eligible and she should put in a new claim. She has been told by friends that the spina bifida is worth 20 points by itself.
Under questioning by Ms Forsyth, the Applicant said that her back condition is the condition that causes the most impact followed in order by her shoulder, asthma, knees, intermittent dermatitis which flares up now and then, and her eye. The RSI only flares up every now and again but is under control.
The Applicant told the Tribunal that she lives with her daughter, aged 14, and a housemate. She lives in a high set house with about ten steps which she is able to use. The Applicant has a driver’s licence but no vehicle, and would be able to drive if she had one.
She mainly uses a bench level micro-wave to cook as use of pots involves emptying water out of them which she finds difficult because of her shoulder. Her cupboards in the kitchen are at eye level, and waist high. Her daughter puts things in and out of the cupboards.
The Applicant is able to use the washing machine which is a top loader. She cannot use the clothes-line outside. The Applicant got her housemate to construct a lower level clothes-line under the house which is set at about an inch above her own height, and she is able to use it.
The Applicant is able to use a mobile phone and dress herself and her daughter brushes her hair. She is able to wash her own hair once a week in the shower but showers quickly because of pain from the water on her back and shoulders.
The Applicant occasionally borrows her housemate’s automatic transmission car or walks for two hours to do shopping at the Woolworths at Redcliffe and catches a cab back. Her daughter accompanies her to help out and carry the shopping upstairs. It is noted that the Applicant stated she is unable to drive a manual transmission car as she cannot physically operate the clutch. She only carries money as notes as they are lighter. She does not wear anything with buttons, and instead wears t-shirts.
She is able to sit and watch TV and place things on a coffee table which is close to her couch. She watches various television shows which go for half an hour to an hour. She is constantly getting up and down and does not sit for the full hour.
The Applicant was referred to a medical certificates[24] by Dr John Ting and Dr Judith Spurling. Dr Ting’s certificate dated 22 January 2018 described a primary condition of “low back pain” and gave an “uncertain” prognosis as to how long the symptoms would affect the Applicant’s capacity to work or study. It further certified unfitness for work or study from 22 January 2018 to 22 March 2018, a period which falls within the qualifying period. Dr Spurling’s certificate dated 1 March 2019 diagnosed long term asthma which would affect the Applicant’s capacity to work or study for less than three month. It also reported pain in the right shoulder and elbow as impacting on the Applicant’s capacity for work or study, and certified unfitness for work or study from 1 March 2019 to 1 May 2019 which period falls well outside the qualifying period.
[24] Exhibit 1, T 43 page 231 and 232 Various Medical Certificates.
The Applicant was also referred to a referral letter[25] from Clontarf Bridge Medical Clinic dated 17 August 2017, and agreed that there was no mention of bursitis of the shoulder. The Applicant said that this was diagnosed later on, last year or the year before. On this basis, the diagnosis of bursitis appears to fall outside the qualifying period.
[25] Exhibit 1, T 24 page 134 Medical Report: Doctor Andrew Woolons.
The Applicant was also referred to a Medical Certificate[26] dated 12 February 2018 Dr Hamed at Redcliffe Hospital where her condition of elbow tendonitis was described as temporary, and having an uncertain prognosis. It also certified unfitness for work or study from 12 February 2018 to 12 March 2018. The Applicant said that she took anti-inflammatory medication for the elbow but no physiotherapy. The first time she had bursitis issues she got an injection, and got it again this year following an ultrasound reported on 21 July 2020.[27]
[26] Exhibit 1, T 28 page 176 Medical Report provided by Doctor Hamed.
[27] Exhibit 5, MRI Report dated 21 July 2020.
With regard to her asthma condition, the Applicant said that she has been “up and down” with asthma since she was born, and was presently on 3 medications for it. She is fine when the medication takes effect. The Applicant said that she has never been rushed to hospital with asthma, but has been given steroids for it about four times over the past ten years.
The Applicant was also referred to a Medical Certificate[28] issued by Dr Spurling which described her asthma as a long term condition, and stated that the symptoms would affect her capacity to work or study for less than three months. The same certificate which listed back and leg pain as being permanent, and the duration of the symptoms so as to affect her capacity to work or study as uncertain. It also reported pain in the right shoulder and elbow as impacting on the Applicant’s capacity for work or study, and certified unfitness for work or study from 1 March 2019 to 1 May 2019, a period which falls well outside the qualifying period. The certificate described current treatment as physio, and future treatment “as needed”. However the Applicant said that she had not received physiotherapy. The Applicant also described an incident where she slipped on a banana at North Lakes, and said her pain has been worse since. She was given Panadol and put into a splint and was unable to use the crutches she was given. She was not recommended for physiotherapy following this incident, which does not appear to be the subject of medical evidence.
[28] Exhibit 1, T 43 page 232 Various Medical Certificates.
The Applicant told the Tribunal that she had knee pain prior to the lodgement of her claim, and was treated by a specialist at Redcliffe Hospital.
Ms Forsyth referred the Applicant to a referral form[29] dated 18 February 2019 wherein the Applicant was referred for physiotherapy. The Applicant told the Tribunal that she was not given an appointment as the treatment was not available.
[29] Exhibit 1, T 36 page 201 Referral for Allied Health Services: Dr Judith Spurling.
The Applicant was asked to point to a medical evidence which documented her dermatitis but was not able to do so. The Applicant said that she had suffered from dermatitis since she was a child, and it required cream treatment. The Applicant accepted that there was no medical evidence supporting her claim for dermatitis.
The Applicant said that she could see well out of her left eye with glasses and is able to drive, watch TV and read a newspaper, and read items on a shelf and packaging. She said that she was born blind in the right eye and it is normal for her and there are no issues there. The Applicant agreed with a suggestion by the Tribunal that her blindness in her right eye had a very low impact on her, and said that she had never known any different.
When asked by Ms Forsyth about her mental health, the Applicant said that she is trying her best and is coping every day. She continues to see a clinical psychologist. She stopped taking medication she was prescribed as it was interacting with other medication. The Applicant was referred by Ms Forsyth to a report[30] by Mr Kevin Gilsenti Clinical Psychologist dated 15 February 2018 wherein it was reported that she was responding moderately well to therapy for major depression, and a mild functional impact was reported. The Applicant said that she was prescribed mental health medication after she lodged the present application. Ms Forsyth referred the Tribunal to paragraph 24 of the Decision under review wherein it was recorded that the Applicant had been prescribed anti-depressants at the beginning of 2019. There was no other corroborating medical evidence in respect of the Applicant’s mental health condition.
[30] Exhibit 1, T 29 page 177 Report: Kevin Gisenti, Clinical Psychologist.
Table 1 – Functions requiring Physical Exertion and Stamina – Asthma / COPD

The Applicant was issued a Medical Certificate by Dr Judith Spurling on 18 July 2016 describing a permanent long-term condition of asthma/COPD likely to last more than 24 months, and resulting in shortness of breath and chronic fatigue. Planned treatment was Ventolin and to stop smoking. At the hearing on 8 October 2019 before the SSCSD the Applicant gave evidence that she had cut down on smoking.
In the medical certificate dated 1 March 2019,[31] Dr Spurling reported that the Applicant suffered from asthma and the condition was long-term and permanent. The doctor noted however that the Applicant’s symptoms of “shortness of breath” were expected to affect the Applicant’s capacity for work or study “less than three months”[32]
[31] Exhibit 1, T 43, 232 Various Medical Certificates.
[32] Exhibit 1, T 37 Prescription Provided by Doctor Spurling.
In the light of this evidence, the Tribunal finds that whilst the Applicant’s conditions of asthma/COPD, are fully diagnosed and permanent, during the qualifying period they were not fully treated or stabilised, and the Applicant had not engaged in all reasonable treatments (specialist respiratory consultation, and smoking cessation) and these treatments are likely to result in functional improvement and stabilisation of the condition.
Accordingly the Tribunal is unable to assign a rating under Table 1 in respect of these conditions.
Table 2 – Upper limb Function - Bilateral shoulder bursitis, left elbow tendonitis and osteoarthritis of fingers
The Respondent contends that there is insufficient evidence to determine whether the conditions are fully treated and fully stabilised as at the qualifying period. Further there is insufficient evidence regarding the functional impairment arising from the conditions. The Respondent also notes that the only available reports are outside the qualifying period and confirm that further treatment was required or that improvement was expected.[33]
[33] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions at page 11, paragraphs 64-65.
Although there is evidence in 2012 and 2013[34] of treatment of shoulder pain, in 2017, the Applicant’s medical history did not record a shoulder condition.[35] A medical certificate dated 12 February 2018 confirmed the Applicant had left elbow tendinitis and that the condition was temporary, and prognosis was uncertain.[36]
[34] Exhibit 1, T4 and T9 Various Medical Reports and Medical Report – Doctor Andrew Woolons.
[35] Exhibit 1, T 24 Medical Report: Doctor Andrew Woolons.
[36] Exhibit 1, T 28 Medical Report provided by Doctor Hamed.
Likewise, although there is a report of pain and swelling in the index finger on 1 July 2017,[37] there is no further reference to this in reports of 18 July 2017 or 17 August 2017.[38]
[37] Exhibit 1, T 23 Discharge Letter: Dr Dayal Jayawardena.
[38] Exhibit 1, T 24 and T 43, at page 230 Medical Report: Doctor Andrew Woolons Various Medical Certificates.
The Tribunal accepts the Respondent’s submission that there is insufficient evidence to determine whether these conditions are fully treated and fully stabilised as at the qualifying period, and that there is insufficient evidence regarding the functional impairment if any arising from the conditions.
Accordingly, the Tribunal is unable to assign a rating under Table 2 in respect of these conditions.
Table 4 - Spinal function
The Applicant’s spinal function is to be assessed under Table 4 – Spinal function. The Respondent contends that the Applicants spinal disorder was fully diagnosed, fully treated, and fully stabilised as at the qualifying period, and is to be allocated five points under Table 4.[39]
[39] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions at page 7, paragraph 43.
Table 4 provides for the allocation of five points in instances where there is a mild functional impact on activities involving spinal function:
1The person has some difficulty in:
(a)activities over head height (e.g. activities requiring the person to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
Table 4 provides for the allocation of ten points in instances where there is a moderate functional impact on activities involving spinal function:
1The person is able to sit in or drive a car for at least 30 minutes and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
A Job Capacity Assessment Report (“JCAR”) [40] dated 11 December 2018 recorded that the Applicant’s spinal disorder was permanent, verified by medical evidence, and fully diagnosed; fully treated; and fully stabilised. The Tribunal accepts this evidence.
[40] Exhibit 1, T 34 pages 184 – 198, at 187 Job Capacity Assessment Report.
In terms of impairment of the Applicants spinal function for the purposes of Table 4, the JCAR reported[41] a recommended rating of five points, and noted “To assign a higher rating the condition would need to cause moderate impacts on function. There is insufficient evidence to support the condition affects function to that degree.”
[41] Exhibit 1, T 34 pages 184 – 198, at 192 Job Capacity Assessment Report.
A moderate functional impact attracting a rating of ten points under Table 4 would apply if:
1The person is able to sit in or drive a car for at least 30 minutes, and at least on of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheel chair).
Whilst the Tribunal accepts the Applicant’s evidence that she is unable to sustain overhead activities, the Tribunal is bound by the Introduction to Table 4 which provides that self reporting of symptoms alone is insufficient to support a rating, and that there must be corroborating evidence of a person’s impairment. There is not sufficient evidence before the Tribunal to found a finding of moderate functional impairment in this instance.
The Tribunal finds that a rating of five points under Table 4 is appropriate in respect of this functional impairment.
Table 12 – Visual function
The Respondent contends that the Applicant’s low vision was fully diagnosed, fully treated and fully stabilised as at the qualifying period, and is to be allocated five points under Table 12.[42]
[42] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions at page 7, paragraph 43.
Based on the Applicant’s evidence, her visual function is of least concern to her, and there appears to be little functional impact on her activities involving visual function.
Table 12 requires that a diagnosis of a permanent condition resulting in functional impairment when performing activities involving visual function must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
The JCAR assessed the Applicant’s visual function as not fully diagnosed, fully treated and fully stabilised and did not assign an impairment rating against Table 12[43] on the basis that:
This condition is considered cannot be considered fully diagnosed, treated and stabilised – there is evidence of diagnosis by an appropriately qualified medical practitioner however there is no supporting evidence from an ophthalmologist.
[43] Exhibit 1, T 40 pages 206 – 215 at 209 Job Capacity Assessment Report.
The Respondent referred the Tribunal to a report by Harsha Bhook describing him as an Ophthalmologist dated 27 May 2013[44] which confirmed the Applicant had a scar over her right macular and the defect may be congenital, and further that her field of vision of the right eye was affected with “light perception.” Scrutiny of this report shows Harsha Bhook self describes as an optometrist, not an ophthalmologist. The Tribunal nevertheless notes that it records “RE totally blind” and a prognosis “will not improve”.
[44] Exhibit 1, T 11 pages 99 – 100 Request for Ophthalmologist/Optometrist Report.
The Respondent also referred to the medical report completed by General Practitioner Dr Meyer[45] dated 31 January 2012 which confirmed that the Applicant had been diagnosed with a right eye problem since childhood and that she was able to read. No past, current, or future treatment was listed, and the condition was expected to persist for more than 24 months and remain unchanged. The impact on ability to function was “Has not been offered a job.”[46]
[45] Exhibit 1, T 7 pages 62-69 Medical Report: Doctor Meyer.
[46] Exhibit 1, T 7 pages 65-66 Medical Report: Doctor Meyer.
The Tribunal finds that the Applicant’s visual function has not been the subject of evidence by an ophthalmologist, and the Tribunal is therefore not able to assign an impairment rating against Table 12 in respect of it.
Table 5 – Mental health function - Depression
A report by Dr Gilsenti dated 15 February 2018 confirmed that he had been treating the Applicant since 11 September 2017 and provided a diagnosis of major depression, and that the Applicant had been responding moderately well to psychological therapy.[47] A further report by Dr Gilsenti dated 8 April 2019 confirmed that the Applicant had responded moderately well to 7 sessions during the period 11 September 2017 to 15 February 2018, and the focus was on alleviating her depressed mood and that they were exploring effective coping strategies for anxiety.[48]
[47] Exhibit 1, T 29 page 177 Report: Kevin Gilsenti, Clinical Psychologist.
[48] Exhibit 1, T 38 Report: Kevin Gilsenti, Clinical Psychologist.
At the SSCSD hearing, the Applicant reported that she was on antidepressants at the beginning of 2019.[49] Having regard to this evidence, the Tribunal is not satisfied that the Applicant’s mental health function was fully treated and stabilised during the qualifying period, as the Applicant had not taken any antidepressant medication until early 2019.
[49] Exhibit 1, T2 at page 10 SSCSD Decision.
The Tribunal finds that the Applicant’s mental health condition was fully diagnosed by a clinical psychologist during the qualifying period, but not fully stabilised and treated. Accordingly, the Tribunal is unable to assign a rating under Table 5 in respect of the Applicant’s mental health function.
CONCLUSION
Overall, the Tribunal finds that the Applicant’s total impairment rating is five points.
The evidence before the Tribunal does not establish that the Applicant’s medical conditions attract an impairment rating 20 points under a single Impairment Table.[50]
[50] Section 94(3B) of the Act.
Ms Forsyth referred the Applicant to a report[51] of Periods of Active Participation in a Program of Support which showed that the Applicant had only spend a total of eight days in a program of support during the period 29 January 2015 to 29 January 2018. The Applicant did not dispute this, and based on this evidence the Tribunal finds that the Applicant has not actively participated in a program of support as provided for in section 94(2) of the Act.
[51] Exhibit 1, T 46 page 281 Program of Support Summary.
DECISION
For the reasons explained above, the decision of the SSCSD dated 8 October 2019 is affirmed.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

...............................[SGD]....................................
Associate
Dated: 21 September 2020

Date(s) of hearing: 15 September 2020

Date final submissions received: 11 August 2020

Applicant: In person

Solicitors for the Respondent: J Forsyth, Mills Oakley Lawyers

[2020] AATA 3696

21 September 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	15 September 2020
Date final submissions received:	11 August 2020
Applicant:	In person
Solicitors for the Respondent:	J Forsyth, Mills Oakley Lawyers