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

[2016] AATA 633

Holt and Secretary, Department of Social Services (Social services second review) [2016] AATA 633 (24 August 2016)

Division	GENERAL DIVISION
File Number	2015/6504
Re	Liane Holt
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member AC Cotter
Date	24 August 2016
Place	Brisbane

The decision under review is affirmed.

...................[Sgd]....................................

Senior Member AC Cotter

Catchwords

SOCIAL SECURITY – disability support pension – whether condition fully treated – whether 20 points or more under the impairment tables – applicant did not qualify for DSP at the date of claim – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth), s94

Social Security (Administration) Act 1999 (Cth), ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Secondary Materials

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

REASONS FOR DECISION

Senior Member AC Cotter

24 August 2016

INTRODUCTION

1. Mrs Liane Holt applied for Disability Support Pension (“DSP”) on 16 January 2015. That claim was rejected by Centrelink in April 2015 on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables.

2. Centrelink’s decision to reject Mrs Holt’s claim was subsequently affirmed by an Authorised Review Officer (“ARO”) and later by the Social Services and Child Support Division (“SSCSD”) of this Tribunal.

3. Mrs Holt now seeks a review of the SSCSD’s decision by the General Division of this Tribunal. For the reasons outlined below, I do not consider that Mrs Holt qualified for DSP at the relevant time, as she did not have impairments attracting 20 impairment points or more. The SSCSD’s decision is therefore affirmed.

   BACKGROUND

4. Mrs Holt’s claim for DSP listed a number of disabilities from which she suffered.[1]

   [1] Exhibit 1, T Documents, T 19, pages 116 -145, Claim for Disability Support Pension dated 16 January 2015.

5. In support of her claim, her general practitioner, Dr Haroon Suleman, completed a medical report dated 12 January 2015, in which he listed 10 conditions (some duplicated or overlapping) from which Mrs Holt suffered and which he considered had a significant impact on her ability to function. They were as follows:

   (a)Depression and Anxiety, Post Traumatic Stress Disorder (“PTSD”);

   (b)Generalised Osteoarthritis (neck, shoulder, back and wrist), Rheumatoid fingers, Osteoporosis;

   (c)Chronic Obstructive Pulmonary Disease (“COPD”)/Emphysema, Obstructive Sleep Apnoea;

   (d)PTSD;

   (e)Hypothyroidism;

   (f)Low bone density, iron deficiency;

   (g)Fractured right collarbone, Carpal Tunnel Syndrome; Trigger finger;

   (h)Lipoma/Fibroma on the right hand;

   (i)Sludge ball in the gall bladder, gall bladder dysfunction, Gastro-oesophageal Reflux Disease (“GORD”), Hiatus Hernia; and

   (j)Nerve impingement with S1 nerve root compression.[2]

   [2] Exhibit 1, T Documents, T 18, pages 78-115, Medical Report of Dr Haroon Suleman dated 12 January 2015.

6. Dr Suleman also completed a medical certificate on 16 January 2015, in which he listed fractured clavicle, gallstones and L4/5 disc impingement as medical conditions impacting on Mrs Holt’s capacity for work or study.[3]

   [3] Exhibit 1, T Documents, T 21, page 151, Medical Certificate of Dr Haroon Suleman dated 16 January 2015.

7. Following an assessment by Job Capacity Assessors (“JCA”) in February 2015, Mrs Holt was informed that her claim for DSP was rejected on the basis that she did not have an impairment rating of at least 20 points.[4]

   [4] Exhibit 1, T Documents, T 26, pages 160-161, letter from Centrelink to Mrs Holt dated 2 April 2015.

8. Mrs Holt subsequently submitted a second medical report by Dr Suleman[5], which added some minor comments but which did not vary materially from his first report.  Following receipt of that report, a further JCA assessment was undertaken.[6]

   [5] Exhibit 1, T Documents, T 29, pages 177-199, second Medical Report of Dr Haroon Suleman dated 25 May 2015.

   [6] Exhibit 1, T Documents, T 30 pages 200-219, Job Capacity Assessment report dated 28 August 2015.

9. As mentioned earlier, reviews by an ARO[7] and then by the SSCSD[8] were unsuccessful. Dissatisfied with the outcome, Mrs Holt now seeks a review of the SSCSD’s decision by the General Division of the Tribunal.

   [7] Exhibit 1, T Documents, T 31, pages 220-227, Authorised Review Officer’s notes and letter to Mrs Holt dated 7 September 2015.

   [8] Exhibit 1, T Documents, T 2, pages 4-12, Social Services and Child Support Division’s decision and reasons for decision dated 6 November 2015.

10. Before I deal with the issues raised by Mrs Holt’s application, it is useful to pause and reflect on the key legislative provisions relevant to this claim.

    THE LEGISLATIVE FRAMEWORK

11. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

12. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 16 January 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[9] Therefore, the relevant period for considering whether Mrs Holt qualified for DSP is between 16 January 2015 and 17 April 2015. 

    [9] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.

13. Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports that come into being after the relevant period, may still be relevant, but only insofar as they are referable to an applicant’s condition during the relevant period.[10] Indeed, any subsequent change in the applicant’s health is irrelevant to the questions that arise in the proceeding, except insofar as it may cast light on the position at the relevant time:

    The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision. [11]

    [10] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher  v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).

    [11] Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, [33] (Deputy President Handley) (emphasis added).

14. As Member Breen noted in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:

    If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.[12]

    [12] [2012] AATA 922, [34].

15. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[13] The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[15]

    [13] See Social Security Act 1991 (Cth) s 26(1).

    [14] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).

    [15] See Ibid, s 6(1).

16. Under the Rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[16] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[17]

    [16] See Ibid, s 6(3).

    [17] See Ibid, s 6(4).

17. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to 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 is planned in the next two years.[18]

    [18] See Ibid, s 6(5).

18. A condition is “fully stabilised” if:

    (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 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.[19]

    [19] See Ibid, s 6(6).

19. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a 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.[20]

    [20] See Ibid, s 6(7).

20. An impairment rating can only be assigned in accordance with the rating points in each table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[21]

    [21] See Ibid, s 11(1).

21. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B) of the Act); 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, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

22. A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[22]

    [22] See Social Security Act 1991 (Cth) s 94(3B).

    ISSUES FOR THE TRIBUNAL

23. Having regard to the large amount of material produced by Mrs Holt, it is not in dispute that, at the relevant time, she had a number of physical and psychiatric impairments. I therefore consider that the first of the requirements for DSP is satisfied.

24. The issues that remain for me to consider are as follows:

    (a)whether Mrs Holt’s conditions were fully diagnosed, treated and stabilised at the time of her claim or within 13 weeks of that date;

    (b)if so, whether her conditions warranted an impairment rating of 20 points or more under the Impairment Tables; and

    (c)if so, whether Mrs Holt had a continuing inability to work.

25. I deal with those issues below.

    CONSIDERATION

    Were Mrs Holt’s conditions fully diagnosed, treated and stabilised?

26. As mentioned earlier, an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent (in that the condition is fully diagnosed, treated and stabilised, and is more likely than not, to persist for more than two years) and the resulting impairment is more likely than not, in light of the available evidence, to persist for more than two years.

27. I therefore consider this issue by reference to the conditions identified by Dr Suleman.

    Depression, Anxiety and PTSD

28. In his first report, Dr Suleman stated that the date of onset of this condition was 1998 and that the diagnosis had been confirmed by a psychiatrist, Dr Scott Jenkins.[23] Dr Jenkins’ report was also provided by Mrs Holt.[24] There is therefore no doubt that the condition was fully diagnosed by a psychiatrist, as required by the Introduction to the relevant table, Table 5 (Mental Health Function).

    [23] Exhibit 1, T Documents, T 18, page 81, Medical Report of Dr Haroon Suleman dated 12 January 2015.

    [24] Exhibit 1, T Documents, T 12, page 70, Medical Report of Dr Scott Jenkins dated 3 December 2013.

29. Dr Suleman noted that current treatment included counselling from a psychologist, Ms Maria Humberdross[25], since 2013 and medication (which did not appear to have changed, either in the drug itself or the dosage, since 2005). Future treatment was noted as ongoing counselling sessions, with medication being needed indefinitely.  Dr Suleman expressed the view that the impact of the condition on Mrs Holt’s ability to function was expected to persist for more than 24 months.[26]

    [25] See Exhibit 1, T Documents, T 5 pages 62-63, and T6, page 64, letters from Ms Maria Humberdross dated 10 April 2013.

    [26] Exhibit 1, T Documents, T 18, pages 81-83, Medical Report of Dr Haroon Suleman dated 12 January 2015.

30. Based on Dr Suleman’s report, I consider that these conditions were fully treated and stabilised, as well as fully diagnosed, at the relevant time, such that impairment points could be assigned in respect of their resulting impairments. I deal with that issue later.

    Generalised Osteoarthritis

31. This is a longstanding condition, supported by x-rays and CT scans. Treatment is described as various medications and physiotherapy. Future treatment is said to include pain medication, physiotherapy and “more imaging if necessary”. Dr Suleman noted that Mrs Holt “may need surgical relief if condition deteriorates”.[27]

    [27] Exhibit 1, T Documents, T 18, page 85, Medical Report of Dr Haroon Suleman dated 12 January 2015

32. Dr Suleman’s opinion was that the impact of this condition on Mrs Holt’s ability to function was expected to persist for more than 24 months, Osteoarthritis being a progressive condition. The doctor believed the condition would deteriorate with time.[28]

    [28] Ibid, page 86.

33. Although an earlier JCA had concluded in December 2013 that the condition was fully treated and stabilised, the JCA in February 2015 thought that Mrs Holt might benefit from secondary interventions, pain clinic or specialist Rheumatologist review due to multi joint pain and Rheumatoid Arthritis in the fingers. On that basis, that JCA considered the condition not to be fully treated and stabilised.[29] Dr Suleman had a different view. Considering the long standing nature of this condition, and the views expressed by an earlier JCA and Mrs Holt’s own treating general practitioner, I am inclined to the view that this condition was fully treated and stabilised at the relevant time.

    [29] Exhibit 1, T Documents, T 27, page 165, Job Capacity Assessment report dated 2 April 2015.

    COPD, Emphysema, Obstructive Sleep Apnoea

34. Mrs Holt’s Obstructive Sleep Apnoea was diagnosed in 2005.[30] There was some earlier confusion as to whether Mrs Holt had been using a Continuous Positive Air Pressure (“CPAP”) machine since that time. That was clarified by Mrs Holt who confirmed that she had been given a loan machine by Queensland Health in 2005 for as long as she needed it. She produced a copy of the equipment loan agreement from the time.[31] At the SSCSD hearing, she said that she was using the CPAP machine with the result that her sleep apnoea was “much better managed than had previously been the case”. [32] In those circumstances, I consider this condition to be fully diagnosed, treated and stabilised.

    [30] Exhibit 1, T Documents, T 4, page 61, report of Dr Justin Hundloe dated 7 September 2005.

    [31] Exhibit 2, letter from Mrs Holt, undated, and Queensland Health CPAP Program Equipment Loan Agreement dated 7 November 2005.

    [32] Exhibit 1, T Documents, T 2, page 9, Social Services and Child Support Division decision and reasons for decision dated 6 November 2015, [19].

35. Mrs Holt’s Emphysema was confirmed by Dr Suleman in his first report. He indicated at the time that the diagnosis had been confirmed in 2005 by a thoracic physician, Dr John Hundlor. He noted that future treatment involved CPAP machine, referral to specialists and regular spirometer.[33]

    [33] Exhibit 1, T Documents, T 18, pages 93-94, Medical Report of Dr Haroon Suleman dated 12 January 2015.

36. The JCA who assessed Mrs Holt in June 2015 reported having difficulty ascertaining functional impairment associated with Emphysema as Mrs Holt’s ability to perform physical activities was reported to be limited by pain associated with other physical conditions, and not due to shortness of breath. Further, that assessor observed that Mrs Holt was, at that stage, continuing to smoke and had not accessed all reasonable treatment. In particular, the JCA noted that there was a non-fee eight week pulmonary rehabilitation program (LungSmart) offered in her local community which would be accessible inside two years. It was thought that program may assist in smoking cessation and also improve Mrs Holt’s tolerance for physical activity and reduce her overall functional impairment.[34]

    [34] Exhibit 1, T Documents, T 30, pages 207-208, Job Capacity Assessment report dated 28 August 2015.

37. Having regard to the JCA’s comments and Dr Suleman’s planned specialist referral, I do not believe that Mrs Holt’s Emphysema could be considered to be fully treated and stabilised.

    Hypothyroidism

38. Dr Suleman put the date of onset of this condition as 2007.  He said that the diagnosis was confirmed by blood tests. Future treatment was described as regular blood tests and possible hormone replacement therapy. Dr Suleman described Mrs Holt’s symptoms as “lethargy, headaches, body aches, palpitations, itchy skin, shortness of breath, shakes and tremors”, as well as weight fluctuation.[35]

    [35] Exhibit 1, T Documents, T 18, pages 99-100, Medical Report of Dr Haroon Suleman dated 12 January 2015.

1. While the condition was considered fully diagnosed, the most recent JCA assessment thought that it was not fully treated and stabilised due to the severity of symptoms and functional impairment reported, the lack of current treatment and the fact that future treatment of replacement therapy may be required.[36] I agree with, and accept that assessment.

   [36] Exhibit 5, Attachment A to Secretary’s Statement of Facts and Contentions dated 27 May 2016, Job Capacity Assessment report dated 21 March 2016, pages 9-10/22.

   Osteoporosis (low bone density, iron deficiency)

2. Dr Suleman noted the onset of Osteoporosis as 2008. He said that diagnosis was confirmed by radiology/pathology. Treatment was described as Ostelin, Vitamin D, Panadol Osteo and fish oil. It was anticipated that treatment would continue in the future. Dr Suleman said that the condition was likely to persist for more than 24 months.[37] I accept that this condition was fully diagnosed, treated and stabilised at the relevant time.

   [37] Exhibit 1, T Documents, T 18, pages 102-104, Medical Report of Dr Haroon Suleman dated 12 January 2015.

   Fractured right collarbone, Carpal Tunnel Syndrome; Trigger finger

3. Dr Suleman noted that Mrs Holt had surgery in 2007 both for Carpal Tunnel Syndrome release and Trigger sheath release of the mid finger of the left hand.[38] Although surgery had been completed, the first JCA thought that the condition was not fully treated and stabilised as there was no indication that there had been secondary interventions, such as pain management, rehabilitation programs or hand therapy.[39] However, a later JCA observed that no further treatment seemed to be contemplated and that Mrs Holt had appeared to access all reasonable treatment.[40] On that basis, that JCA considered the condition was fully treated and stabilised. Given the length of time since the surgery and the absence of further treatment proposed by Dr Suleman, I am inclined to agree.

   [38] Exhibit 1, T Documents, T 18, pages 105-107, Medical Report of Dr Haroon Suleman dated 12 January 2015.

   [39] Exhibit 1, T Documents, T 27, page 169, Job Capacity Assessment report dated 2 April 2015.

   [40] Exhibit 1, T Documents, T 30, page 212, Job Capacity Assessment report dated 28 August 2015.

4. Dr Suleman noted that Mrs Holt had been referred for specialist review in 2013 and was on the waiting list for the conditions concerning her shoulder, arthritis and fractured collarbone.[41] In light of that, I consider that those conditions relating to the fractured collarbone were not fully treated and stabilised at the relevant time.

   [41] Exhibit 1, T Documents, T 18, pages 105-107, Medical Report of Dr Haroon Suleman dated 12 January 2015.

   Lipoma/Fibroma on the right hand

5. Mrs Holt had an excision operation on 5 January 2015, 11 days before she submitted her claim.[42] Apart from that reference, Dr Suleman’s reports contain no information about the surgery, whether it was successful and whether any follow up treatment was anticipated. I therefore do not consider that condition to be fully treated and stabilised.

   [42] Ibid, pages 108-109.

   Sludge ball in the gall bladder, gall bladder dysfunction, GORD, Hiatus hernia

6. Dr Suleman’s first report noted that this diagnosis had been confirmed by Dr Denise McGregor, the Director of Surgery at an unnamed hospital. His report stated that the condition was being monitored and treated with medication pending surgery.[43] In light of that remark, I do not consider the condition to be fully treated and stabilised. Further, Mrs Holt told the second JCA that provided she was taking her medication, the condition was well managed; it therefore results in minimal impairment.[44]

   [43] Ibid, pages 110-112.

   [44] Exhibit 1, T Documents, T 30, page 212, Job Capacity Assessment report dated 28 August 2015.

   Nerve impingement with S1 nerve root compression

7. There is no dispute that this condition was fully diagnosed at the time of claim, with supporting x-rays, ultrasounds, CT and MRI scans having been produced. Dr Suleman noted that Mrs Holt was waiting surgery (Category 1). He anticipated that her future treatment would also entail rehabilitation therapy and medication.[45]

   [45] Exhibit 1, T Documents, T 18, pages 113-115, Medical Report of Dr Haroon Suleman dated 12 January 2015.

8. Mrs Holt told the SSCSD that a subsequent neurological review recommended against surgery and that Dr Suleman was of the opinion that participation in a pain clinic was unlikely to make a difference to her functioning.[46]

   [46] Exhibit 1, T Documents, T 2, page 9, Social Services and Child Support Division decision and reasons for decision dated 6 November 2015, [23].

9. Notwithstanding the subsequent recommendation against surgery, I am required to consider Mrs Holt’s condition at the time of the claim. As at that date, Dr Suleman still anticipated that she would have surgery for her condition; it is not relevant, for present purposes, that a different view was reached by the surgeon after the relevant period. In those circumstances, I consider this condition was not fully treated and stabilised at the relevant time.

   Other conditions

10. At the first JCA assessment, Mrs Holt reported instances of bowel and bladder incontinence.[47] However, no supporting medical evidence has been produced. In the absence of verifying medical evidence, this condition cannot be said to be fully diagnosed, treated and stabilised.

    [47] Exhibit 1, T Documents, T 27, page 170, Job Capacity Assessment report dated 2 April 2015.

    Summary - conditions fully diagnosed, treated and stabilised

11. To summarise, for the reasons outlined above, I consider only the following conditions to have been permanent and fully diagnosed, treated and stabilised at the relevant time: Depression and Anxiety; Generalised Osteoarthritis; Osteoporosis; Obstructive Sleep Apnoea; Carpal Tunnel Syndrome; and PTSD.

    Did Mrs Holt’s impairments attract 20 points or more under the Impairment Tables?

12. I consider this question by reference to the conditions which I have found to be fully diagnosed, treated and stabilised at the relevant time. That entails a consideration of the following Impairment Tables: Table 5 (Mental Health Function) in respect of the Depression/Anxiety and PTSD conditions; Table 1 (Functions requiring Physical Exertion and Stamina) in respect of Osteoporosis and Obstructive Sleep Apnoea; Table 4 (Spinal Function) in respect of Osteoarthritis; and Table 2 (Upper Limb Function) in respect of Carpal Tunnel Syndrome.

    Table 5 (Mental Health Function)

13. The psychiatrist, Dr Jenkins, considered that Mrs Holt suffered from separate conditions of PTSD and Depression with Anxiety.[48]

    [48] Exhibit 1, T Documents, T 12, page 70, Medical Report of Dr Scott Jenkins dated 3 December 2013.

14. Dr Suleman described the impact of Depression with Anxiety on Mrs Holt’s ability to function as :

    Poor concentration, withdrawn, low moods, anxiety, low self-esteem, headaches, chronic pain, tired all the time, not eating properly, weight on weight off.[49]

    [49] Exhibit 1, T Documents, T 18, page 83, Medical Report of Dr Haroon Suleman dated 12 January 2015.

15. Symptoms of PTDS were recorded by Dr Suleman as recurring nightmares; reliving trauma; panic attacks; anxious; easily startled; insomnia; chest tightness; compulsive behaviour; obsessive thinking; lethargy; immobile; poor concentration and memory; and headaches.[50]

    [50] Exhibit 1, T Documents, T 18, page 97, Medical Report of Dr Haroon Suleman dated 12 January 2015.

16. At the SSCSD hearing, Mrs Holt indicated that she had some minor difficulties with self-care and relies on her ex-partner (with whom she lives on a separated basis) for assistance with activities such as cooking and shopping. She conceded, however, that these difficulties were due to her physical limitations rather than her mental health.[51]

    [51] Exhibit 1, T Documents, T 2, page 11, Social Services and Child Support Division decision and reasons for decision dated 6 November 2015, [33].

17. Mrs Holt indicated that she had a restricted social life and spent a lot of time at home. She feels anxious whenever a male approaches her; she has difficulty developing relationships of trust, particularly with men. She visits a neighbour and goes to bingo once a week. She has used Facebook to make contact with former school friends. As mentioned earlier, she lives with her ex-partner; she maintains regular contact with her adult children who live independently.[52]

    [52] Ibid, [34] and [35].

18. Mrs Holt’s preferred recreational activity is painting garden statues. She told the SSCSD that she is able to read and concentrate on her statue painting so long as she is not distracted by pain or worry. She said that she has periods of excessive worry whenever she is reminded of her abuse as a child. She worries about her children, which makes it difficult to concentrate on other things.[53]

    [53] Ibid, [36].

19. During cross-examination at the hearing before me, Mrs Holt reaffirmed those statements.

20. Impairment to mental health function is rated under Table 5 according to the difficulty a person experiences in most of six areas of functioning. In Mrs Holt’s case, her minor difficulties with self-help and independent living and her work/training capacity are largely attributable to her physical limitations rather than mental health factors. There is no evidence that she has any difficulty with behaviour, planning and decision-making. Of the remaining factors, I consider that she has mild difficulties with social, recreational activity and travel, and concentration and mild to moderate difficulties with interpersonal relationships. On balance, I agree with the conclusion reached by the SSCSD, that her difficulties resulted in mild impairment, warranting an assignment of five impairment points.

    Table 1 (Functions requiring Physical Exertion and Stamina)

21. Dr Suleman identified a number of different conditions as causing Mrs Holt’s shortness of breath and/or fatigue. They included Emphysema, COPD, Sleep Apnoea and Hypothyroidism. There is no medical evidence concerning the relative contribution of each of the respective conditions.

22. Of the conditions identified, only Sleep Apnoea is considered to be fully diagnosed, treated and stabilised. While the other three conditions remain possible contributors to the impairment, it is impossible to say whether the successful treatment of one or more of them will result in a significant improvement of functioning in this area. Consequently, because of that uncertainty, I am unable to assign any points under this table.

    Table 4 (Spinal Function)

23. Dr Suleman identified Osteoarthritis, disc protrusion and nerve compression as conditions impacting on Mrs Holt’s spinal function. Again, there is no medical evidence concerning the relative contributions of each of those conditions to the impairment.

24. I have concluded that while Osteoarthritis is a fully diagnosed, treated and stabilised condition, the remaining conditions are not. While disc protrusion and nerve compression remain possible contributors to the impairment, it is impossible to say whether the successful treatment of either or both of them will result in a significant improvement of functioning in this area. For that reason, I am presently unable to assign any points under this table.

    Table 2 (Upper Limb Function)

25. During cross-examination at the hearing, Mrs Holt confirmed the accuracy of the following, which she had previously reported to a JCA:

    Client reports that she is able to hold a pen and write, she can grasp, hold, and manipulate small items such as buttons, zippers, coins, and clothes pegs. Some difficulties with opening lids. Is able to carry objects weighing up to 3kg; however, this lifting capacity is restricted due to her Spinal Disorder-Other. Is able to hold and use a smaller paintbrush as she described painting garden statues for 30 minute periods.[54]

    [54] Exhibit 5, Attachment A to Secretary’s Statement of Facts and Contentions dated 27 May 2016, Job Capacity Assessment report dated 21 March 2016, page 4/22.

26. Based on that description, I believe that zero points should be assigned to Mrs Holt’s impairment under Table 2.  It does not demonstrate any, or any significant, impact on activities using hands or arms. In that regard, the descriptor for no functional impact reads:

    The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

27. On the evidence before me, there is nothing to justify a consideration of mild functional impact. Accordingly, zero points should be awarded under this table.

    Summary - impairment points

28. To summarise, I consider that a Mrs Holt ‘s impairments attract a total of five points under the Impairment Tables, being five points assigned under Table 5 (Mental Health Function). No points are to be assigned under Tables 1 (Functions requiring Physical Exertion and Stamina) and 4 (Spinal Function). Zero points are assigned under Table 2 (Upper Limb Function).

29. It therefore follows that Mrs Holt did not qualify for DSP because she did not have 20 points or more at the relevant time.

    Did Mrs Holt have a continuing inability to work?

30. None of Mrs Holt’s impairments could be considered ”severe”, as that term is defined in s 94(3B) of the Act. Consequently, if she were to qualify for DSP, she would have to establish that, in the 36 months preceding the date of claim, she actively participated in a Program of Support for a total of 18 months.

31. The Secretary contended that Mrs Holt did not satisfy that requirement, in that her referral history revealed that she had participated for 16 months and four days in the required period.[55]

    [55] Exhibit 5, Secretary’s Statement of Facts and Contentions dated 27 May 2016, [63].

32. Mrs Holt maintained that she had satisfied the relevant requirement. When I asked her to assist me by identifying the outstanding period of participation, she referred me to details provided by the service provider, EPIC Assist, dated 17 June 2016.[56] However, that noted that Mrs Holt commenced a program with that organisation on 28 April 2015, over three months after the date of claim. In the absence of further evidence, I find that, at the date of claim, Mrs Holt had not satisfied the requirement with respect to active participation in a Program of Support.

    [56] Exhibit 6, letter from Ms Lisa Simpson (EPIC Assist) to Tribunal dated 17 June 2016, with attachment.

33. I also note that the various JCAs who have been involved in the course of the consideration of the claim have concluded that Mrs Holt’s baseline work capacity is between eight and 14 hours per week. They considered that her capacity for work within two years, with intervention, is between 15 and 22 hours.[57] While Mrs Holt disagreed with that assessment, there was no evidence led to contradict those conclusions.

    [57] See Exhibit 1, T Documents , T 27 , pages 173-175 and T 30, pages 216-218, Job Capacity Assessment reports dated 2 April 2015 and 28 August 2015; and Exhibit 5, Attachment A to Secretary’s Statement of Facts and Contentions dated 27 May 2016, Job Capacity Assessment report dated 21 March 2016, pages 20-22/22.

34. Having regard to those matters, it appears that even if Mrs Holt otherwise met the requirements for DSP (which I doubt), she would not have been able to satisfy the last of the relevant requirements, namely that she had a continuing inability to work.

    CONCLUSION

35. To summarise, I do not consider that Mrs Holt qualified for DSP because at the relevant time, her impairments did not attract 20 or more impairment points under the Impairment Tables. Nor do I think that she was able to satisfy the relevant requirements relating to continuing inability to work.

36. The decision under review is therefore affirmed.

75.     I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

...........................[Sgd].............................................

Associate

Dated 24 August 2016

Date of hearing	26 July 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services