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

[2019] AATA 660

Jordan and Secretary, Department of Social Services (Social services second review) [2019] AATA 660 (8 April 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4366

Re:Allison Jordan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:8 April 2019

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Ms Jordan satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of her claim.

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

Ms Anna Burke AO, Member

SOCIAL SECURITY – application for disability support pension – whether qualified –major depressive disorder – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Secondary Materials

Social Security Guide

REASONS FOR DECISION

Ms Anna Burke AO, Member

8 April 2019

INTRODUCTION

1. Ms Jordan (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).

2. On 29 May 2018 Centrelink found that Ms Jordan was not entitled to the DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.

3. The application was heard on 11 February 2019. Ms Jordan was self-represented and Mr Tim de Uray, a government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the Respondent. Ms Jordan gave evidence under affirmation and was cross-examined by Mr de Uray.

   THE ISSUES IN CONTENTION

4. The issues in contention are whether Ms Jordan:

   (a)has a physical, intellectual or psychiatric impairment;

   (b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;

   (c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (d)has a continuing inability to work.

   BACKGROUND

5. Ms Jordan is 46 years of age, a part-aboriginal, single female who currently lives with two of her brothers; she is the youngest of 10 children. Ms Jordan has completed a Bachelor of Arts (Hon), a Graduate Diploma in Psychology and a Masters in Teaching. Ms Jordan commenced work in 2011 with Tradewind Australia Pty Ltd as a primary school relief teacher at a cluster of schools. Ms Jordan sustained an accepted WorkCover injury on 20 November 2014 whilst at a Catholic primary school in Tarneit. She attempted a return to work following the injury but this was unsuccessful and she last worked in 2015. The medical panel that convened in respect of Ms Jordan’s WorkCover claim concluded that she had an accepted psychiatric condition arising from the injury which had resulted in a 20% permanent impairment. Ms Jordan has received a settlement in respect of her employment claim originally before Fair Work Australia but has ongoing legal matters in respect of her WorkCover claim.

6. Ms Jordan’s numerous medical reports indicate that a mental health condition arose after a workplace incident which the medical panel described in the following manner:

   She said that on the date of the incident 20 November 2014 she was sent to relief teach a Grade 4 homeroom class at [a] School in Tarneit. She said … she asked all the students to undertake a simple mathematic test to assess their level and that a boy of Indian background came up to her and was ‘really teary’ and said ‘I have to get it right.’ She said that he was ‘shaking’ with pleading in his eyes and said ‘my dad hits me’ and that she was quite distressed, particularly at the boy’s expression and ‘the look in his eyes.’

   She said that she decided that this was clearly a case in which mandatory reporting of abuse was required and that she later emailed her consultant at the relevant workplace agency asking for help to undertake the reporting process and ‘told her what happened’ and that she ‘needed help to do it’ and asked for someone from the relevant company to come to the school, but that help was not forthcoming.

   She said that she then told the Assistant School Principal whom she felt was ‘really cross at me’ and he asked her to write an incident report and to leave the matter with the School. She said that she could not do so given mandatory reporting laws and he was ‘huffing and puffing’ which was very stressful. She said that she then decided to ring the Institute of Teaching and was advised that the matter did require a mandatory report.

   She said that she finished the day’s work and two days after the incident having discussed it with her family, she rang DHS and reported the incident. She said that she had not been informed of the outcome of the report since then.

   She said that in the days after this occurred she asked the workplace if it had an employee assistance program in order to attend for psychological support because she remain very distressed, and was told that it did not exist.

   She said that during this time she felt ‘really stressed out’ was experiencing frequent nightmares about the child, had very disturbed sleep, poor concentration, was tense and anxious but did not have suicidal thinking or self harm impulses.

7. In another medical report dated 1 February 2019 prepared in respect of Ms Jordan’s WorkCover claim Associate Professor Shasjit Varma, consultant psychiatrist, also describes the incident in the following manner:

   As she was not getting any help she finally reported it herself. Then when she returned to school in 2015 she was excluded at school and she felt that something strange was going on. People were not talking to her and she did not even receive her identification badge. They were shutting her down. She was getting less and less hours and in fact the principal even tried to demote her, offering her a job with before and after school care. She refused. Finally the managing director called her for a meeting where she told him she was very passionate about child abuse as she was abused herself as a child. Then the managing director made fun of her and also said some nasty things like she was not a good teacher etc. and she was feeling like this because of her child abuse. They mocked her experience with the child abuse. The contract was finalised by them and then she went to fair work Australia.

8. On 25 January 2018 Ms Jordan lodged an application for DSP, citing her medical conditions as: major depression, post-traumatic stress, pre-diabetes and medical panel (two psychiatrists) determined 20% impairment permanent.

9. On 27 March 2018 Centrelink conducted a job capacity assessment (JCA) on Ms Jordan. The JCA report found that:

   ·     Ms Jordan’s depression was fully diagnosed, treated and stabilised;

   ·      Ms Jordan had engaged in reasonable treatment and continued to do so;

   ·      it was unlikely that further treatment would  lead to a significant improvement in her symptoms and functions in the next 24 months;

   ·      nil points should be awarded under Table 5 for the impairment as there was insufficient information to determine an impairment rating; and

   ·      Ms Jordan had a temporary baseline work capacity of 8-14 hours per week and a reduced work capacity of 15-22 hours within 24 months. Noting her “[a]bility to cope with work related stress and pressure, concentrate and remain task focused, job search, maintain employment affected.”

10. On 26 April 2016 Centrelink wrote to Ms Jordan to inform her that her DSP application had been refused as she did not have an impairment rating of 20 points or more under the Impairment Tables.

11. On 14 May 2018 the Health Professional Advisory Unit (HPAU) of the Respondent conducted a review (by a clinical psychologist) of Ms Jordan’s condition major depressive disorder. The report found:

    based on all evidence discussed above, a total rating 10 impairment points proposed under Table 5, Mental Health Function. It must be emphasised that the findings of this opinion do not imply that Ms Jordan is not severely impaired by her psychiatric condition. They merely reflect the fact that the currently available evidence does not support ‘severe' rating. The provision of additional evidence, which was unable to be obtained by the author of this opinion, could potentially change this rating.

12. On 29 May 2018, on internal review, a departmental Authorised Review Officer (ARO) concurred with the view of the HPAU that that Ms Jordan’s total impairment rating was 10 points under Table 5 due to her experiencing some moderate difficulties with most activities such as self-care and independent living, social activities, interpersonal relationships, concentration, behaviour, planning and decision-making and work. The ARO made no findings in respect of Ms Jordan’s continuing ability to work or having met the program of support requirements.

13. On 25 July 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Ms Jordan’s DSP claim. The AAT Tier 1 awarded Ms Jordan an impairment rating of 10 points under Table 5 Mental Health Function being satisfied there was a moderate functional impact on activities involving mental health function but did not consider other medical conditions, as a lack of more detailed supporting medical evidence to review Ms Jordan’s eligibility for the DSP was not available.

14. On 3 August 2018, Ms Jordan sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in her application:

    I cannot see how 3 psychiatrists have reported I am suicidal, have major depression and suffer PTSD (also reported by treating and independent psychiatrist) and I have begged Centrelink for a break but my requests are ignored. I was fired from my employment for reporting child abuse (mandatory reporter) and was put through hell from my employer and the catholic school. I was made fun of for being abused as a child. I have cut up my arms and trying hard not to end my life but nobody seems to care.

    I have a Serious Injury in pre court through workcover and am willing to take this matter to court if only to stand up for abused children and say enough is enough. We are not the criminals here.

15. In accordance with Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 (the Administration Act) Ms Jordan’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 25 January 2018 (the qualifying period).

    RELEVANT LEGISLATION AND ISSUES

16. Section 94(1) and (2) of the Act provides that a person is qualified for a DSP 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;

    …

    2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)all cases--either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    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.

17. For a condition to be a severe impairment the Act at s 94(3B) provides:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

18. The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]

    [1] See s 6(3)(a), Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

19. Section 6(4) of the Impairment Tables states that a condition is “permanent” if:

    (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.

20. The introduction to each relevant Impairment Table states that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.

21. Section 6(5) of the Impairment Tables states:

    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.

22. Section 6(6) of the Impairment Tables states:

    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.

23. For the purposes of s 6(7), 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.

24. The determinative issue in this review is whether, during the qualifying period, Ms Jordan suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.

25. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, s 5(2)).

26. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could, do; not on the basis of what a person chooses to do or what others can do for the person.

27. Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.

28. It is necessary, therefore, to consider Ms Jordan’s medical conditions with reference to the applicable Impairment Tables.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

29. The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents, additional medical reports and other information provided by Ms Jordan.

    DOES MS JORDAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

30. Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person suffers from an impairment.

31. The parties accept that Ms Jordan is suffering from a major depressive disorder. Accordingly, the Tribunal finds that Ms Jordan meets the requirements of s 94(1)(a) of the Act.

32. As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.

    DOES MS JORDAN HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

    Major depressive disorder

    Medical evidence

33. Dr Yasab Alemayehu, general practitioner, provided a medical report dated 12 April 2017 that diagnosed Ms Jordan as suffering from mixed depression and anxiety in association with her workplace injury. She opined that Ms Jordan was at risk of deterioration, particularly if there was no ongoing psychological support.

34. Dr Gregory White, consultant psychiatrist, in a report dated 7 December 2016 obtained in order to assist with a claim for compensation, diagnosed Ms Jordan as suffering from a major depressive disorder. He reported that:

    At this reassessment, she again described symptoms of a major depressive disorder, single episode, characterised by low mood and other physical, psychological and social symptoms of depression, including melancholic features and cognitive deficits.

    Despite a large number of sessions with a psychologist, there has not been any significant improvement, which Ms Jordan ascribes to ongoing continued harassment by her ex employer.

    However, in this examiner’s opinion, her depressive symptoms appear to have become self-generating and treatment resistant, and at the same time, she has been caught up in an unhelpful process of feeling obliged to apply for employment on the basis of reported advice by her general practitioner, psychologist, rehabilitation consultant, in the context of Ms Jordan not feeling sufficiently assertive to express her firm belief that she is not fit for any employment.

35. A medical panel constituted pursuant to the Workplace Injury Rehabilitation Compensation Act 2013 compiled a report dated 24 October 2017 that concluded Ms Jordan was suffering from major depressive disorder relevant to the accepted psychiatric condition injury. The panel considered that “due to the nature of [Ms Jordan’s] psychiatric injury and the duration of the symptoms, [Ms Jordan’s] psychiatric condition has substantially stabilised and is unlikely to remit with further treatment. The Panel therefore concluded that the purposes of the assessment, the workers psychiatric condition is stable and permanent.” The panel also “concluded that [Ms Jordan] has 20% psychiatric impairment resulting from the accepted psychiatric condition injury when assessed in accordance with Section 54 of the Act.”

1. Ms Imogen O’Connor, psychologist, prepared a report for the accident compensation conciliation services on 18 December 2017 in which she reported:

   Ms Jordan meets criteria for Post Traumatic stress disorder (309.81: DSM5) … At the time of making the report to Child Protection Ms Jordan was convinced that the child was being abused and at risk of significant harm/injury. Ms Jordan was scared for this child’s welfare and the response she received from the principal of the school and George from Tradewind left Ms Jordan feeling helpless to assist/protect this child. Furthermore, Ms Jordan’s sense of self-integrity was threatened by the response she received from the principal and George. Both the feeling of helplessness and threat to the integrity of self/identity are contributing factors to developing PTSD following a traumatic event.

   …

   Ms Jordan concentration, memory, sleep, motivation and energy levels are all affected by her PTSD, which would likely reduce her effectiveness as a teacher and/or in other employment positions. The school environment also triggers Ms Jordan’s PTSD symptoms and being in a school environment is likely to result in a further deterioration in her condition. Considering the extent of Ms Jordan’s condition, it is my opinion that Ms Jordan does not have current capacity to return to work and that doing so may cause her further injury.

2. Associate Professor Varma, consultant psychiatrist, in a report of 1 February 2019 in respect of Ms Jordan’s WorkCover claim stated: “I have already reviewed Ms Jordan on 12.09.2017, so in this report I will summarise the previous report and update the progress since then.” In the report Associate Professor Varma opines:

   On the last visit I diagnosed Ms Jordan to be suffering from adjustment disorder with depression secondary to alleged workplace stress and bullying ... According to DSM 5 diagnostic criteria Ms Jordan continues to suffer from adjustment disorder with depression, secondary to work-related trauma and stress … [Ms Jordan] does not have a current work capacity ... She is unfit for work ... [Ms Jordan] is seeing a psychologist on a regular basis and is on escitalopram 20 mg per day. I believe both the treatments are appropriate and need to be continued until she returned to some form of work.

3. At the hearing, Table 5 was explored in respect of the functional impact of Ms Jordan’s mental health condition, with a focus on whether she has a possible severe impairment. That Table provides:

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

   1The 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.

4. Ms Jordan reported:

   ·self-care/independent living – that she currently lives with her two brothers, she can’t live alone because of her self-harming. Her sisters bring meals around to her and look out for her general well-being.  The mornings are worse but she forces herself to get up. On average she is having a shower 2 to 3 times per week but she has to force herself into doing this; she can’t have anyone assist with washing her as she can’t bear anyone to touch her. Ms Jordan said at the moment it was harder as her teaching registration had been cancelled and her feeling of self-worth was very low. She undertakes light cleaning chores about the house and automatically does things like the dishes because of her personal experience with child abuse. Most days she spends her time sleeping, watching TV or interacting with her cat;

   ·social/recreation activities and travel – that she rarely goes out, she is okay in familiar territory but in unfamiliar environments freaks out and often gets into rages. She only interacts with family as they understand her moody/narky behaviour; she does not do well with people other than her family because they can’t accept her. She would often get into real rages when she felt she was not being understood. She doesn’t interact with any of her friends because they are teachers and she finds the situation too difficult and complicated;

   ·interpersonal relationships – that she does not interact with others. She finds this difficult particularly since she started self-harming and when people enquired about the cuts on her arms and legs she had to lie and say the cat scratched her; that she mainly interacts with her cat;

   ·concentration and task completion – that she cannot concentrate, it takes all day to read reports and to get her head around things that normally came naturally. Being a teacher, she was normally able to read and digest material but now it’s like the pot is full and she can’t take anything else in. She had undertaken the retraining course but that it had been very difficult. However she really could have done it in her sleep as everything was familiar. She had done such courses in the past and  she knew the material and what was required. If she’d hadn’t known the material she wouldn’t have been able to do it and felt that undertaking this course had prevented her from being able to access the disability support pension;

   ·behaviour planning and decision-making – that her behaviour was unpredictable she just gets into real rages. If she is left alone she can sort of manage but sometimes she can’t cope and that’s when she cuts herself. There are triggers that set her off – such as going past a school or running into a child she used to teach. Often in the morning everything comes flooding back to her and she just can’t cope. One report had mentioned she’d been picking weeds but it failed to mention that this has been recommended by her psychologist as a way of dealing with her rage; and

   ·work/training capacity – that she worried about herself and others if she did go back to teaching as she can just simply go off at the drop of a hat. Every job she has applied, for she’s been knocked back because who would want to employ a woman with a Masters in a menial role.  She simply just cannot cope with being in the workforce at the present stage but really her desire is to get back on her feet so she can return to teaching which she had previously enjoyed and been good at. Fundamentally, she needs quiet for a while to get a circuit breaker. When Centrelink sent her to various jobs, individuals saw her cuts and they didn’t want to employ her. Taking on a menial job was not going to help her self-worth; it would just get her into more of a rage and not feel better about herself because after all she was a qualified teacher.

   Consideration

5. The Respondent accepts that Ms Jordan is suffering from a major depressive disorder and has received reasonable treatment for this condition including extensive psychological counselling and anti-depressive medication. However the Respondent contends that corroborating medical evidence regarding functional impairment is generally scant and does not support a 20 point impairment rating. They preferred the finding of the HPAU which concluded Ms Jordan was severely impacted under two descriptors but not most, and therefore did not meet the descriptors for a severe impairment under Table 5. The Respondent advised the Tribunal that there was no doubt that Ms Jordan did meet some of the descriptors as severe and assessing her situation was a difficult matter.

6. Ms Jordan in a written submission to the Tribunal queried the Respondent’s claim that there was scant medical information to determine a rating for her mental health condition under Table 5. She queried how they had determined a 10 point rating. Ms Jordan believed her extensive medical information indicated she was severely disabled and that she met the majority of the descriptors. In a written submission she indicated she could not concentrate or complete tasks and referred to the report by Dr Varma which indicated “she barely has the ability to cope with this course.”

7. Ms Jordan indicated to the Tribunal that she was now in a position of always having to justify herself and that it was offensive that she had to continually demonstrate that she was honest. She also indicated that her situation had arisen because she was trying to do the right and legal thing in reporting a case of child abuse. Further, her employer had made her feel really guilty about reporting but she knew she had done the right thing. She was trying to feel better so that she could see a future but it wasn’t easy. Ms Jordan also stated that she wasn’t a criminal but felt like one and that she has to function so that she can stay on Centrelink which requires her to report every two weeks which was very challenging.

8. The Tribunal found Ms Jordan to be an honest, forthright witness who had a clear assessment of her current capabilities. The Tribunal was satisfied based on the information Ms Jordan provided and the corroborating medical evidence that she met the majority of descriptors under severe functional impact in Table 5. The Tribunal applied the same rationale as the HPAU but has arrived at a different determination finding Ms Jordan:

   ·was incapable of self-care and independent living as she relied extensively on her extended family to survive day-to-day;

   ·did not undertake social or recreational activities beyond immediate family and even those were undertaken with difficultly;

   ·that she had great difficulty with interpersonal relationships and is unable to contain her outbursts of anger;

   ·that she lacked the ability to complete tasks or concentrate despite undertaking the refresher teaching course which she had barely coped with;

   ·that her behaviour was severe as indicated by her regular self-harming and thoughts of suicide; and

   ·that, at present, the majority of her treating practitioners believe she was not capable of undertaking any work or training activities.

   IMPAIRMENT RATING

9. The Tribunal has found that Ms Jordan has an overall impairment rating of 20 points, under Table 5 – for her major depressive disorder therefore she satisfies s 94(1)(b) of the Act.

   DOES MS JORDAN HAVE A CONTINUING INABILITY TO WORK?

10. To qualify for the DSP Ms Jordan must not only satisfy the requirement that she has an impairment with a rating of 20 points or more, she must also demonstrate she has a continuing inability to work as per s 94(1)(c) of the Act. Ms Jordan would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to her claim for DSP and her impairment is of itself sufficient to prevent her from doing any work independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.

11. The Tribunal has strictly applied the program of support requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement or not. The Tribunal has found that Ms Jordan had not actively participated in a program of support.

12. As the Tribunal has found that Ms Jordan’s impairment was severe and therefore was of itself sufficient to prevent her from doing any work independently of a program of support or undertaking any training activity during the next two years, she was not required to complete a program of support. Ms Jordan therefore satisfies the s 94(1)(c)(i) requirement under the Act.

• A JCA report of 24 April 2018 conducted face-to-face by a registered psychologist and qualified social worker found that:

  Due to the effects of [Ms Jordan’s] medical conditions on functioning, a reduced baseline work capacity of 15-22 hours per week is recommended. Ability to cope with work-related stress and pressure, concentre and remain task focused, job search, maintain employment affected. With continued medical intervention and assistance of a DES ESS service, the person may obtain and sustain work of 15-22 hours per week within 24 months.

1. Ms O’Connor, psychologist, on 18 December 2017 reported: “[c]onsidering the extent of Ms Jordan’s condition, it is my opinion that Ms Jordan does not have current capacity to return to work and that doing so may cause her further injury.”

2. Associate Professor Varma, consultant psychiatrist, in a report of 1 February 2019 stated Ms Jordan was unfit for work.

3. Dr Joseph Slesenger, specialist occupational physician, in a medicolegal report dated 25 January 2019 assessed Ms Jordan’s capacity for work and opined:

   At this stage, I advise against Ms Jordan’s returning to her pre-injury role as the job demands are likely to aggravate her current impairment and disability. I am also of the opinion that she is unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.

4. The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal as to whether the conclusions in a JCA report should be preferred to those in a medical report for the purpose of assessing a continuing inability to work. I do not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or made assessments that formed part of the report), the duration and frequency of the report, the writer’s relationship with the subject of the report, and the reliability and depth of the analysis within the report.

5. The Tribunal concurs with the finding of the reports as prepared by Associate Professor Varma, psychologist Ms O’Connor and the medical panel in respect of Ms Jordan’s WorkCover claim that she was and continues to be unfit for employment.

   CONCLUSION

6. The Tribunal has awarded 20 points under Table 5 – Mental Health Function for Ms Jordan’s major depressive disorder, as she suffers from a severe functional impact on activities involving her mental health function.

7. I am satisfied that, at the date of application, Ms Jordan was qualified to receive the DSP. Her impairments attracted a total of 20 impairment points under the Impairment Tables. Additionally, Ms Jordan’s continuing inability to work means that she satisfies s 94(1)(c) of the Act.

   DECISION

8. The Tribunal sets aside the decision under review and in substitution determines that Ms Jordan satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of her claim.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

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

Associate

Dated: 8 April 2019

Date(s) of hearing:	11 February 2019
Applicant:	In person
Advocate for the Respondent:	Mr Tim de Uray
Solicitors for the Respondent:	Department of Human Services, Freedom of Information and Litigation Branch