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

James and Secretary, Department of Social Services (Social services second review) [2020] AATA 3732 (22 September 2020)
Division:GENERAL DIVISION
File Number: 2019/8431
Re:Tracey James
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms L Rieper, Member
Date:22 September 2020
Place:Hobart

The Tribunal affirms the decision under review
...............................[sgd].....................................
Ms L Rieper, Member
SOCIAL SECURITY – disability support pension – rejection – qualification – medical – whether the Applicant had an impairment that was fully diagnosed, treated and stabilised during the qualification period – whether the impairment has a rating of at least 20 points – impairment found not fully treated or fully stabilised – decision under review affirmed.
Legislation
Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428
REASONS FOR DECISION
Ms L Rieper, Member
22 September 2020

Ms James seeks a review of a decision made by the Social Security and Child Support Division of this Tribunal on 30 August 2018.
The issue to be determined is whether Ms James was qualified for disability support pension (DSP) following the claim she made on 3 July 2017.
A hearing was held on 26 August 2020 by telephone. Ms James was represented by Mr Simon from the Speak Out Association of Tasmania, and the Respondent was represented by Mr Quanchi of Services Australia.
QUALIFICATION FOR DSP
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
Subsection 94(1) of the Social Security Act 1991 (“the Act”) sets out the qualifications for DSP:
94(1) A person is qualified for disability support pension if:
(a)The person has a physical, intellectual or psychiatric impairment; and
(b)The person’s impairment is of 20 points or more under the Impairment Tables; and
(c)One of the following applies:
(i) The person has a continuing inability to work;…
The Tribunal must determine whether Ms James met the qualification for DSP at the date of her claim, or within 13 weeks of that date, which in this case would be by 2 October 2017 (“the qualification period”). The Tribunal may consider medical evidence (or other evidence) provided subsequent to a claim but the evidence must pertain to Ms James’ condition and the status of her treatment at the time of her claim or during the qualification period.[1]
[1] See, for example, Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1].
In order to satisfy paragraph 94(1)(b) of the Act, Ms James must have an impairment rating of at least 20 points in total. The Impairment Tables are a Ministerial Determination under subsection 26(1) of the Act and are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).
The Impairment Tables set out the rules for assessing an impairment and assigning a rating. An impairment rating can only be given when a medical condition that is permanent. Permanent means:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(see subsection 6(4) of the Impairment Tables).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
(see subsection 6(5) of the Impairment Tables).
Fully stabilised means either:
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
(see subsection 6(6) of the Impairment Tables).
The Respondent concedes, and the Tribunal agrees, that Ms James had medical conditions that cause impairment at the relevant time and, therefore, she satisfied paragraph 94(1)(a) of the Act during the qualification period.
It follows that the issues the Tribunal must determine are whether, during the qualification period, Ms James had:
(a)A condition which was fully diagnosed, fully treated and fully stabilised;
(b)An impairment rating of 20 points or more under the Impairment Tables; and, if so
(c)A continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION
Was the condition fully diagnosed?
The medical condition which Ms James says prevents her from working is a mental health condition.
There is evidence before the Tribunal which indicates that Ms James has suffered from a mental health condition for many years. It includes a medical certificate dated 13 March 2014 from Dr Brooks, general practitioner, who diagnosed depression, which he said was an exacerbation of an existing condition.[2] In an employment services assessment report dated 21 March 2014 it was noted that the onset of Ms James’ depression had occurred more than eight years earlier. [3]
[2] T4, T documents, p 101.
[3] T5, T documents, pp 102-106, 103.
The evidence establishes that in the period prior to lodging her claim for DSP, Ms James was dealing with the death of an aunt, an estrangement from her daughter and ongoing issues in her relationship with her mother. In her evidence to the Tribunal she described herself as being “in crisis”.
Ms James has been consulting Mr McGarry, clinical psychologist, since early 2016. In a report dated 4 July 2017 he diagnosed major depressive disorder with anxious distress.[4] Based on this report, the Respondent concedes that Ms James’ mental health condition was fully diagnosed as of the qualification period.
[4] T9, T Documents, pp 139-140, 139.
However the Tribunal notes that Dr Hooper, consultant psychiatrist, produced a report dated 6 February 2018 in which he noted that he thought Ms James had insufficient symptoms to diagnose major depressive disorder and appeared to have an anxiety disorder such as panic disorder or a chronic adjustment disorder.[5] He also thought complex post-traumatic stress disorder (“PTSD”) was a possibility but wanted to see her again to further explore that. Subsequently, in a medical certificate dated 6 August 2018, he provided a diagnosis of chronic PTSD as well as panic disorder.[6]
[5] ST5, Supplementary T Documents, pp 227-289, 288.
[6] T23D, T Documents, p 185.
Therefore, whilst the Tribunal accepts the Respondent’s concession that the condition was fully diagnosed as at the qualification period, there is evidence that some months after the qualification period there was no consensus between Ms James’ treating practitioners as to her diagnosis and a year after the qualification period her treating psychiatrist made a different diagnosis.
Was the condition fully treated and fully stabilised?
The Respondent does not concede that Ms James’ mental health condition was fully treated or fully stabilised as of the qualification period. The Respondent relies on a report which was obtained from Ms Burton, a clinical psychologist, dated 10 August 2020.[7] Ms Burton is employed by the Respondent to provide psychological opinions. She did not consult with Ms James, but she did speak to her treating general practitioner, clinical psychologist and consultant psychiatrist.
[7] ST7, Supplementary T Documents, pp 311-331.
Ms Burton noted that Mr McGarry had advised her that the treatment he had provided was what Ms Burton describes as supportive counselling. Ms Burton’s view is that it is not, on its own, an evidence-based treatment for depression or anxiety disorders. She said that supportive counselling typically consists of active and empathetic listening and the client is not taught specific skills to self-manage symptoms such as cognitive behaviour therapy, interpersonal therapy or other evidence-based approaches. Ms Burton gave oral evidence to the Tribunal. She said that if evidence-based treatments had been used by Mr McGarry, she would expect to see a record of it in his notes but she had reviewed them and they seemed to be merely a summary of Mr McGarry’s conversations with Ms James. The notes are in evidence before the Tribunal and Ms Burton’s description appears to be accurate.
Mr McGarry gave oral evidence to the Tribunal. He told the Tribunal that he uses an “eclectic” approach to treatment. He said that cognitive behaviour therapy is part of his treatment regime although he does not use it in “block” form. He said that he also uses other types of treatment such as mindfulness and that he interweaves them quite a bit. However, when he was asked about the specific treatment he provided to Ms James he conceded that it was obvious to him from the outset that Ms James’ strong Christian faith meant that he would alienate her if he used treatments such as cognitive behaviour therapy.
In her evidence Ms James described Mr McGarry as listening to her, encouraging her to focus on her faith and complementing her. She confirmed that because of her Christian beliefs she was not open to any treatments that she perceived to be contrary to her faith. She said, for example, that she would not accept treatment that had its origins in the Buddhist faith such as mindfulness.
The Respondent relies on Ms Burton’s opinion to the effect that there was potential for improvement in Ms James’ symptoms with treatment within the two years after the qualification period. She noted that at that time Ms James had not been reviewed by a psychiatrist and she was yet to trial evidence-based psychological treatment for her depression and anxiety. She noted that only supportive counselling and one type of medication, prescribed by her general practitioner, had been trialled.
As noted by Ms Burton, Ms James did not consult Dr Hooper until after the qualification period. Ms James gave evidence that her general practitioner had prescribed 200mg of Zoloft (also known as Sertraline) per day which was the maximum a general practitioner could prescribe. On 28 February 2018 Dr Hooper wrote to Dr Lovatt, Ms James’ general practitioner, advising that he had written a script for 300mg per day.[8] Ms James told the Tribunal that her dosage remains above 200mg per day. In his report of 6 February 2018 Dr Hooper also stated that continued psychological support appeared to be important because Ms James was fairly isolated.[9] He suggested that part of the psychotherapy focus be on behavioural activation to increase her repertoire of activities, help her maintain her existing social supports and ideally expand her support network.[10]
[8] ST5, Supplementary T Documents, pp 277-289, 286.
[9] Ibid, p 288.
[10] Ibid.
In respect of the psychological treatment, the Tribunal finds that Mr McGarry did not provide treatment beyond what Ms Burton describes as supportive counselling before or during the qualification period. The Tribunal accepts that this was at least partially because of his concern that Ms James’ religious beliefs meant she would not accept such treatment. The Tribunal notes that Ms Burton reported that in her discussion with Dr Hooper he advised that he was not aware that Ms James’ psychological treatment had consisted of supportive counselling rather than formal evidence-based interventions such as cognitive behaviour therapy. Ms Burton reported that he was supportive of trialling evidence-based intervention.
The Impairment Tables provide, at subsections 6(5)-(7):
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
Note:    For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The Respondent directed the Tribunal’s attention to Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428. It was decided prior to the introduction of the Impairment Tables. The predecessor to the Impairment Tables required a similar consideration to that in subparagraph 7(6)(b)(ii), in that it expressly stated that:
In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
The Full Court held that determining whether or not there was a “compelling reason” for refusing treatment was not purely a subjective test.
There is no dispute in this case that the treatment available to Ms James was reasonable treatment. The issue is whether Ms James’ religious beliefs provided a compelling reason for her not undertaking psychological treatment beyond supportive counselling.
There is not sufficient evidence before the Tribunal to enable a thorough assessment of whether or not Ms James’ religious beliefs provided that compelling reason. There is no doubt Ms James is resistant to using methods which she perceives come from religions other than her own and that Mr McGarry, at least initially, had concerns that he would alienate Ms James if he used treatment beyond supportive counselling. However, there is no evidence that there was ever a frank and open discussion between Ms James and Mr McGarry regarding treatment options.
Ms Burton’s opinion is that the treatment is reasonable. Her evidence was that she had been able to use such treatments with people holding various strong religious beliefs. Her report indicates that Dr Hooper shares that view but he did not give evidence to the Tribunal and so the Tribunal has no first-hand evidence of that opinion.
On balance, the Tribunal has significant doubts as to whether Ms James genuinely has a compelling reason for not undertaking psychological treatment beyond supportive counselling.
However even if the Tribunal was to accept, objectively and subjectively, that Ms James had a compelling reason for not undertaking psychological treatment which conflicted with her religious faith, she did not raise any arguments regarding the treatment she subsequently received from her psychiatrist or the increase in her medication.
Clearly the consultations with Dr Hooper have been an important element of Ms James’ treatment. She has continued to see him regularly since early 2018. He was also responsible for prescribing what appears to be the optimal amount of medication for Ms James’ condition. Whilst the Tribunal accepts Ms James’ representative’s submission that her symptoms fluctuate, the evidence is that there has been no fluctuation in the dosage of her medication since it was increased by Dr Hooper. The PBS records before the Tribunal show that the monthly quantity of Sertraline dispensed to Ms James increased from 60 to 90 tablets in February 2018 and remained at that quantity through until February 2020 which is when the report ends.[11] Ms James’ evidence was that the increased dosage helped her condition.
[11] ST4, T Documents, pp 257-276, 274-276.
The Tribunal is therefore satisfied that because Ms James had not commenced receiving treatment from a psychiatrist and because her medication was not at the optimal dosage, her condition was not fully treated or fully stabilised as at the qualification period.
Impairment Rating
If the Tribunal is wrong with respect to the condition not being fully treated and fully stabilised as at the qualification period, the Tribunal is satisfied that Ms James’ impairment attracts an impairment rating of no more than 10 points when Table 5 of the Impairment Tables is applied.
The Table requires consideration of the functional impact on six categories of activities which involve mental health function. It (relevantly) provides:

10

There is a moderate functional impact on activities involving mental health function.

(1)        The person has moderate difficulties with most of the following:

(a)        self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)        social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)        interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)        concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)        behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)         work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

There is a severe functional impact on activities involving mental health function.

(1)        The person has severe difficulties with most of the following:

(a)        self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)        social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)        interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)        concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)        behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)         work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

Self-care and independent living

There is conflicting evidence before the Tribunal with respect to Ms James’ ability to manage self-care and independent living during the qualification period. In his report dated 9 November 2017, Mr McGarry stated that Ms James now required a church worker to visit her twice per week for 1.5 hours to help her with household tasks such as cooking, cleaning and gardening as well as sometimes accompanying her on excursions to the shops and medical appointments.[12] However, in his oral evidence to the Tribunal Mr McGarry said that Ms James was able to do normal things such as cooking for herself and keeping her house in good order. He also said she could handle hygiene and that she presented to their sessions looking well. Ms James said that she obtained some assistance from international students who boarded with her. She said that they would cook and clean together but sometimes she would need to lie down and rest, and they would take over.
[12] T12, T Documents, p 150-151, 150.
In his report dated 6 February 2018 Dr Hooper noted that Ms James exercised regularly and was fully independent in activities of daily living.[13]
[13] ST5, Supplementary T Documents, pp 277-289, 288.
A volunteer support worker, Ms Maiden, provided a statement for the Tribunal dated 20 August 2020.[14] Ms Maiden confirms that she commenced visiting Ms James on a weekly basis in September 2017 in order to provide support. She did not describe what activities, if any, she assisted Ms James with during the visits.
[14] Exhibit A1, Letter from Ms Sue Maiden, 20 August 2020.
Given the conflicting evidence, the Tribunal is satisfied that at most Ms James could be said to have “moderate difficulties” with self-care and independent living in that it appears that, as reported to Dr Hooper, she was able to manage on her own but she received some support from time to time.
Social/recreational activities and travel
In respect of social/recreational activities and travel there is evidence before the Tribunal that just before the qualification period Ms James travelled to South Australia to undertake a bike ride. Mr McGarry’s notes indicate that it was a 900km ride and that Ms James had a “wonderful time”.[15] Ms James told the Tribunal that she did not complete the entire 900km. She said that she rode a three-day stage of the ride. She agreed that she had had a good time although she said she did not want to do it again. In his notes of a consultation on 8 September 2017 Mr McGarry recorded that Ms James wanted to travel to France the next year to visit World War I grave sites and see the Tour de France and that she intended to take her own bike with her.[16] In his evidence Mr McGarry disagreed with the proposition that the proposed trip was a grandiose idea. Whilst he acknowledged it would be expensive, he thought it was “doable”. He said that Ms James expressed a lot of interest in cycling and it gave her something to aspire to, so he encouraged it. In his notes of his consultation on 4 August 2017 Mr McGarry noted that Ms James enjoyed attending her local Anglican church and went bike riding with a few other members.
[15] ST5, Supplementary T Documents, pp 277-298, 301.
[16] Ibid, p 304.
In her statement Ms Maiden said that Ms James ceased attending church in August 2017.[17]
[17] N 14, Exhibit A1.
In his report dated 9 November 2017, Mr McGarry said that Ms James would not travel alone to unfamiliar places and appointments where she would be required to assimilate information and make decisions.[18] As a result, she was quite socially isolated.
[18] ST5, Supplementary T Documents, pp 277-298, 303.
In his report dated 6 February 2018, Dr Hooper noted that Ms James had a preference for staying at home but was able to leave her home for appointments and also to attend spin classes.[19] He also noted that her support included a friend who she met through church and she also played guitar with another friend who she met through church.[20]
[19] Ibid, p 287.
[20] Ibid, p 288.
The Tribunal accepts Mr McGarry’s opinion that Ms James was socially isolated at the time of the qualification period, but the evidence establishes that she was able to attend social and recreational activities when the activity was one she was interested in, such as cycling and spin classes. The Tribunal is satisfied that at most, Ms James can be said to have “moderate difficulties” with social/recreational activities and travel.
Interpersonal relationships
In respect of interpersonal relationships, Mr McGarry reported on 9 November 2017 that Ms James had great difficulty in establishing and maintaining personal friendships due to feeling emotionally overwhelmed and needing considerable downtime to recover.[21]
[21] T12, T documents, pp 150-151, 150.
The Tribunal accepts that Ms James’ social contacts were primarily limited to people she met through church and that she had a limited group of friends. The Tribunal is satisfied that Ms James has “severe difficulties” with interpersonal relationships.
Concentration and task completion
In his evidence to the Tribunal, Mr McGarry said that his consultations with Ms James were 60 minutes in duration. He said that her concentration in those sessions was usually quite good although she sometimes got quite teary. He said that she did not lose track of the conversation and was very engaged because it was about her. However, in his report of 9 November 2017, he said that it had become increasingly challenging for Ms James to maintain her focus on a variety of tasks due to mental fatigue and that she had difficulty following conversations.[22]
[22] Ibid.
Given Ms James was able to concentrate without any difficulties for 60-minute consultations with Mr McGarry, the Tribunal is satisfied that at most Ms James could be said to have “moderate difficulties” with concentration and task completion.
Behaviour, planning and decision-making
In his report of 9 November 2017, Mr McGarry said that Ms James had reported that her decision-making had been impaired due to difficulties in assimilating, reasoning, understanding, retaining and evaluating information. This had resulted in some poor decisions with negative outcomes.[23]
[23] Ibid.
Mr McGarry gave evidence that Ms James expressed some unrealistic attitudes and expectations. An example just after the qualification period and recorded in his written notes related to concerns Ms James held with respect to her daughter. Mr McGarry recorded in the notes that Ms James had no proof for the concerns she held regarding her daughter.
Oral evidence was given regarding the student boarders Ms James took in at her home. Ms James initially said that it was suggested to her by Mr McGarry but that was contradicted by his oral evidence and is not consistent with his contemporaneous notes. Mr McGarry’s evidence was that it primarily provided Ms James with some financial assistance but there were also secondary benefits in the form of companionship and help around the house provided the boarder was not too intrusive. Whilst it appears that taking in boarders was a decision made by Ms James, the Tribunal accepts her evidence that she had some assistance with the process because the person at the University who ran the scheme was a someone she knew from church.
The Tribunal notes that Ms James was also able to plan and carry out her cycling trip in South Australia just before the qualification period. There is nothing in Mr McGarry’s notes or any other evidence which indicates that she struggled with the decision or planning the trip.
The concerns regarding her daughter are evidence that Ms James had some disturbed thoughts from time to time, but overall the evidence indicates that Ms James was able to make plans and make decisions without apparent difficulty. That being the case the Tribunal is satisfied that at most Ms James could be said to have “moderate difficulties” with activities involving behaviour, planning and decision-making.
Work/training capacity
Mr McGarry’s opinion, expressed in his report of 9 November 2017, is that anxiety and an inability to successfully manage stress has significantly compromised Ms James’ capacity to handle work/training demands.[24] He said that she becomes emotionally fragile and has to withdraw from the situation.
[24] Ibid, 151.
The evidence before the Tribunal is that at just before the qualification period, Ms James struggled with a part-time role in a jewellery store and left after about three weeks. Mr McGarry’s notes indicate that she had difficulties with two male manages who she described as “egotistical”. It appears that she has not worked since. Mr McGarry’s evidence to the Tribunal was that Ms James has very low resilience levels and small stressors get the better of her. He agreed with Ms James’ own assessment that she could manage about seven hours per week in a role that was voluntary or not too stressful.
Dr Hooper noted, in his report of 6 February 2018, that Ms James was not “keen” on working although was more open to volunteer work.[25] He thought that was appropriate but did not rule out the potential for work and thought it might be therapeutic for her.
[25] ST5, Supplementary T Documents, pp 277-298, 288.
The Tribunal accepts that as at the qualification period there was evidence that Ms James could not cope with the normal stressors of employment and is satisfied that Ms James has “severe difficulties” with work/training capacity.
OVERALL RATING
Overall, at most Ms James meets four of the descriptors in Table 5 at the “moderate” level and two of the descriptors in Table 5 at the “severe” level. Table 5 requires the person to meet most of the criteria in order to attract the rating, and so it is the Tribunal’s view that a rating of 10 points on Table 5 is appropriate. It follows that Ms James does not satisfy the requirements of section 94(1)(b) of the Act.
CONCLUSIONS
The Tribunal is satisfied that Ms James’ condition was not fully treated or fully stabilised as at the qualification period. The Tribunal is also satisfied that if an impairment rating were assigned it would not exceed 10 points under the Impairment Tables. This means that Ms James does not fulfil the qualification requirements set out in subsection 94(1) of the Act because she does not have an impairment of 20 points or more under the Impairment Tables.
It is therefore not necessary for the Tribunal to go on and consider whether Ms James has a continuing inability to work as defined in subsection 94(2) of the Act.
The Tribunal must affirm the decision under review.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Ms L Rieper, Member.
……………[sgd]……………….
Associate
Dated: 22 September 2020
Date of hearing:  26 August 2020
Advocate for the Applicant:               Mr L Simon, Speak Out Advocacy
Solicitor for the Respondent:             Mr A Quanchi, Services Australia

[2020] AATA 3732

22 September 2020

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