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

[2019] AATA 1391

Kordanovski  and Secretary, Department of Social Services (Social services second review) [2019] AATA 1391 (21 June 2019)

Division:GENERAL DIVISION

File Number:           2017/6468

Re:Nataly Kordanovski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:21 June 2019  

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes it with a decision that the Applicant satisfied the requirements of s 94 of the Social Security Act 1991 as at
22 May 2017.

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

Dr Stewart Fenwick, Senior Member

Catchwords

SOCIAL SECURITY – cancellation of disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions were fully diagnosed, treated and stabilised – whether conditions met requirements for 20 points under the Impairment Tables – receipt of carer allowance – impact of carer role on diagnosis and impairment assessment – whether Applicant had a continuing inability to work – decision set aside and substituted

Legislation

Social Security Act 1991, ss 26, 94(1)(a), 94(1)(b), 94(1)(c)(i), 94(3B), 94(5)
Social Security (Administration) Act 1999, 80(1)(a)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, rules 6(1), 6(2), 6(3)(a), 6(4)(a)-(d), 6(6), 10(1), 10(3),10(4), 11(4)

Cases

Abdulrahman and Secretary, Department of Families, Housing, Community Services and    Indigenous Affairs, Re [2013] AATA 150
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 558
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Negri v Secretary, Department of Social Services (2016) 246 FCR 1

Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2011] AATA 331

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

21 June 2019

BACKGROUND

1. Ms Kordanovski applied to the Tribunal for review of a decision of the Social Services and Child Support Division (AAT1) of 4 October 2017.  AAT1 affirmed a decision by an Authorised Review Officer on 19 June 2017 which had upheld Centrelink’s decision of
   22 May 2017 (the assessment date) that she was no longer eligible for the Disability Support Pension (DSP).

2. Prior to the decision under review, Ms Kordanovski received the DSP between April 1999 and July 2017.  She first received the pension at the age of 26 after a brief period of full time employment of some 8-9 months.  In February 2016 Ms Kordanvoski became a mother and she played a role of carer to her then partner and received a carer allowance in this role, but they did not live together.  The nature of this partnership and its duration will be considered in more detail below.

3. Ms Kordanovski originally received the DSP on the basis of the existence of a permanent psychiatric disorder.  Therefore there is no dispute that she has history of multiple conditions being anxiety, depression, and anorexia.  Ms Kordanovski has had periods of inpatient treatment for her mental health, including postdating the decision to cancel her DSP, and a history of substance abuse.

4. Ms Kordanovski lodged with the Tribunal new material that was not presented to AAT1.  This material comprised a report from her treating psychologist, a report from a forensic psychiatrist, and evidence from her father.

   LEGISLATIVE FRAMEWORK

5. A person qualifies for the DSP if the criteria in s 94 of the Social Security Act 1991
   (SS Act) are satisfied.  The relevant criteria for the purposes of the decision under review are that the person:

   1.has a ‘physical, intellectual or psychiatric impairment’ (s. 94(1)(a));

   2.

   has an impairment rating of 20 points or more under the Impairment Tables

   
   

   (s. 94(1)(b)); and

   3.has a continuing inability to work (s. 94(1)(c)(i)).

6. Section 26 of the SS Act provides that the Minister may determine tables relating to the assessment of impairment together with rules to be complied with in applying the tables.  The tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables) and the Determination provides that:

   1.impairment is based on an assessment of functional capacity (rule 6(1));

   2.the Tables may be applied following consideration of the person’s medical history (rule 6(2)); and

   3.a rating can only be applied to an impairment if the person’s condition is permanent (rule 6(3)(a)).

7. A condition is considered permanent if it is ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’, and ‘more likely than not, in the light of available evidence, to persist for more than

   
   

   2 years’ (rule 6(4)(a)-(d)).  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 …

   (rule 6(6)). 

8. The steps involved in making an assessment include:

   1.selecting Tables following the identification of a loss of function (rule 10(1));

   2.if a single condition causes multiple impairments, assessing each impairment under the relevant Table (rule 10(3); and

   3.not assigning an impairment rating for a particular impairment under more than one Table (rule 10(4)).

   The definition of stabilised (rule 6(6)) applies to the assessment of impairments ‘caused by conditions that have stabilised as episodic or fluctuating’ which must be assigned a rating based on their ‘overall functional impact’ (rule 11(4)).

9. Under s. 94(2) of the SS Act a continuing inability to work because of an impairment arises where the Secretary is satisfied that:

   (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)in 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.

10. Under section 94(5) of the SS Act ‘work’ is defined as work of ‘at least 15 hours per week on wages that are at or above the minimum wage’. However, it was common ground that the definition of work applicable to Ms Kordanovski was 30 hours per week, the work test applied to claims made prior to 11 May 2005 and prior to the test’s amendment.

11. The Social Security (Administration) Act 1999 provides that a determination is to be made to cancel or suspend a social security payment if the recipient is not qualified for the payment (s. 80(1)(a)). 

    ISSUES

12. The issues for consideration are:

    1)    whether Ms Kordanovski’s conditions were fully diagnosed, treated and stabilised;

    2)    if so, the extent of impairment with reference to the Tables and rules; and

    3)    if an impairment of 20 points or more exists, whether Ms Kordanovski had a continuing inability to work 30 hours or more per week.

13. It was common ground that the date on which Ms Kordanovski’s eligibility is to be assessed is 22 May 2017, the date of the decision that she was no longer eligible for the DSP.

    FULLY DIAGNOSED, TREATED AND STABILISED

    Anorexia and Mental Health

14. In a medical report generated for the DSP review dated 24 March 2017, Ms Kordanovski’s anorexia is described as commencing in 1996, leading to treatment as an inpatient (T23,

    
    

    p 85).  The functional impact is described as ‘tiredness ++, difficulty concentrating, poor memory, irritability’ (T23, p 87).  The report also describes that the condition will have an impact on Ms Kordanovski’s ability to function for more than two years and that the effect will fluctuate during this time. Periods of hospital admission are described as occurring in 2001, 2007 and 2008 (T25, p 99). 

15. Medical certificates and reports describe Ms Kordanovski experiencing conditions of anxiety, depression and major depressive illness across 1995, 1996 and 1997 (T14-20).  A discharge summary (T25, pp 98-100) describes four public psychiatric inpatient admissions in 2013 between March and July, totalling just over six weeks.  These were stated to have occurred following episodes of self-harm and a suicide attempt, and both prescription and illegal drug abuse. 

16. Ms Kordanovski’s treating GP, Dr Helen Dooley, describes in her report of 6 June 2017, that Ms Kordanovski has a ‘chronic psychiatric disability’ including ongoing depression with onset in her teenage years, anorexia (ongoing) and obsessive compulsive disorder (T24, p 93).  She describes referral to a psychologist to further manage depression, anorexia and ‘BPD’ [which I understand to refer to borderline personality disorder]. 

17. A report from Ms Kordanovski’s treating counselling psychologist Ms Nikki Alderman dated 16 May 2018 was lodged with the Tribunal (Exhibit A1), and Ms Alderman gave evidence at the hearing.  She first treated Ms Kordanovski in 2011 through to 2012, and again between 2016 and 2017.  In her report Ms Alderman states that Ms Kordanovski’s various mental health conditions bear a relationship to her anorexia: ‘these conditions are related to her current fears, triggering events and her self-image and related self-management needs emanating from her long-standing diagnosis of Anorexia Nervosa’.

18. In examination by Ms Kordanovski’s representative, Ms Alderman was asked to comment on her condition as at May 2017.  Ms Alderman stated that she conducted a phone consultation with Ms Kordanovski on 30 May 2017.  While she was distressed about the DSP cancellation, Ms Kordanovski’s presentation then was consistent with her condition overall during treatment with her, which Ms Alderman described as severe. 

19. She was of the opinion that Ms Kordanvoski accesses the health system for treatment when she can, given that her multiple conditions (co-morbidities) tend to restrict her ability to access medical services.  Ms Alderman was asked to express an opinion about the reason Ms Kordanovski did not receive treatment from her between the years 2013 and 2016.  She responded that it was common for there to be absences in a treatment program and that Ms Kordanovski had also been hospitalised during 2013.

20. In cross-examination Ms Alderman was asked about the average anorexia prognosis and stated that there is a percentage of persons with anorexia who are considered permanent and that Ms Kordanovski is in this category.

21. A report was commissioned on behalf of Ms Kordanovski from Dr Anthony Cidoni a consultant psychiatrist and his report dated 29 October 2018 was based on an examination that took place on 16 October 2018 (Exhibit A2).  Dr Cidoni gave evidence at the hearing.  This report discloses further periods of admission for mental health treatment not set out above, being across May to August 2018.

22. In this report, when asked to consider further reasonable treatment that might lead to significant functional improvement, Dr Cidoni states that Ms Kordanovski’s ‘psychiatric impairment, despite very significant treatment, has not significantly improved’ and that in his opinion, no further treatment would enable her to work 15 hours per week or more. 

23. In evidence at the hearing Dr Cidoni stated there was: ‘no evidence that her disability had improved at the point of the 2017 review and, indeed, it has subsequently become more worse [sic] … sufficient time has elapsed to confirm that the projection of inability to work for 2 years in 2017 would be correct’.  He confirmed based on his examination in October 2018 that all Ms Kordanovski’s conditions were present and operative in May 2017 and that her eating disorder was a mental illness for the purposes of DSM-5.

24. In cross-examination Dr Cidoni was asked to consider the implications of a break in
    Ms Kordanovski’s psychological treatment between 2013 and 2016.  In his opinion as
    Ms Kordanovski had five separate psychiatric conditions which had been consistent over time albeit with some fluctuation, a gap in treatment did not change his assessment.  The five conditions recorded in his report are: anorexia nervosa; major depressive disorder; generalised anxiety disorder; borderline personality disorder; and, opiate dependence.

25. When asked about the reasonableness of treatment in place in 2017, Dr Cidoni stated that medical and psychiatric treatment were in place but had not been effective.  In his opinion no other treatment would have improved her condition to a significant extent.

26. The Secretary’s representative sought Dr Cidoni’s opinion as to Ms Kordanovski’s diagnosis of borderline personality disorder, and whether a referral to a psychiatrist would be appropriate given the long period of treatment by a psychologist.  Dr Cidoni responded that she had received psychiatric treatment as part of admissions and outpatient treatment.  In his view Ms Kordanovski had received ‘a significant amount of intervention’ and he did not accept the proposition that a different treatment regime would change his overall assessment of her condition and her capacity to work within two years. 

27. In cross-examination Ms Kordanovski was asked about her medication regime following her inpatient hospitalisations and stated that she had been placed on a lot of medication and would take herself off them.  She was not taking her Seroquel, which had been prescribed after her latest psychiatric admission.  She stated that her doctors were aware of this and had advised that the best approach was to slowly reduce medications. 

    Drug addiction

28. Dr Fran Bramwell administered Ms Kordanovski’s opiate replacement therapy for her longstanding opiate dependence.  Her report, dated 26 September 2017 (T25, p 95), describes prescription of Suboxone, required ‘long term’, which was being taken regularly on a gradually reducing dosage. 

29. The report of Dr Dooley (T24, p 93) notes: ‘Heroin abuse 41-43 years – currently on Suboxone, withdrawal symptoms.’  Ms Kordanovski’s substance abuse history is further elaborated in a hospital discharge summary (T25, pp 98-100) as involving alcohol, intravenous drug and cannabis use.  I note that the year range quoted for heroine use are, approximately, 2013 to 2015.

30. In the report generated for the DSP review dated 24 March 2017, Dr Dooley notes symptoms identified with drug addiction as ‘tiredness, generalised pain, anxiety and insomnia’ (T23, p 89).  This report describes treatment with Suboxone as a ‘Future/planned treatment’.  The impact of the condition is described as expected to persist for over two years and to fluctuate during this time.

    Payment of carer allowance

31. The Statement of issues, facts and contentions filed on behalf of the Secretary, dated

    
    

    23 July 2018, identifies the period of payment of carer allowance as 21 October 2013 to 22 March 2018.  Ms Kordanovski’s Carer’s Allowance Questionnaire, dated 29 September 2015 (Exhibit R1), completed be her indicates the provision of a total of 70 hours of care across all but one of six categories of personal care for 7 days each week (an average of 10 hours per day).  The categories are: mobility around the home; personal hygiene; communication; treatment (help with medication); and, safety and behaviour. 

32. The Secretary’s representative put questions to medical witnesses as to the possible impact on their diagnoses and professional opinions of Ms Kordanovski providing care of 20 hours per week.  I also put questions to these witnesses in relation to the carer role.  These witnesses appeared prior to Ms Kordanovski giving evidence herself about the nature and scope of the role.  Both Ms Alderman and Dr Cidoni gave evidence that they were not previously aware that Ms Kordanovski claimed to perform a carer function for her former partner.  Ms Alderman stated that care would be ‘more possible’ in Ms Kordanovski’s home as she functions to a certain extent in that environment.  Dr Cidoni stated that he would need further information about the role to consider fully how it might impact on his professional opinion. 

33. Ms Kordanovski gave evidence in cross-examination that the care provided was for her former partner, the father of her daughter.  It took the form of ‘keeping company’ either at his residence in a neighbouring suburb, or at her own residence and that it was ‘relatively easy’.  Ms Kordanovski stated that she would also drive him nearby to obtain medicine as they attended the same chemist.  She did not drive him to locations further away for medical appointments.  Ms Kordanovski stated that the answers provided in the Questionnaire were ‘somewhat’ reflective of the care provided however she considered the care provided ‘very basic’.  She stated that she ceased providing care for him some time after her daughter was born. 

    Consideration

34. It was contended on behalf of the Secretary that Ms Kordanovski’s conditions, particularly borderline personality disorder, were not fully diagnosed, treated and stabilised.  It was contended that a psychiatric referral may have been appropriate, and that Ms Kordanovski was selective in her use of prescribed medication.  It was submitted that the gap in attendance with Ms Alderman between 2013 and 2016 and capacity to provide care for another person suggested something other than fluctuation in an underlying mental condition. 

35. It was submitted on behalf of Ms Kordanovski that a condition can be stable, albeit subject to adjustment in treatment,[1] and that it may also fluctuate or worsen.[2]  Ms Kordanovski’s representative also cited Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, at paragraph 17:

    It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment, but, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment.

    [1] Re Abdulrahman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 150, at para 14.

    [2] Re Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331, at para 34.

36. Ms Alderman considers Ms Kordanovski’s anorexia to be a permanent condition in that she falls within a category of sufferers who will not recover.  She was also of the opinion that Ms Kordanovski engaged in her treatment regime to the extent she was able, and that a gap in attendance with her did not change her opinion of the nature and extent of her condition.  While not ventilated at the hearing, I note there appears to be a correlation between the period of absence from treatment with Ms Alderman and the years ascribed to heroine use.

37. Dr Cidoni was firmly of the opinion that despite reasonable treatment, Ms Kordanovksi’s long standing condition had not improved, and there was no other treatment regime that would help her return to the workforce.  He considered her access to local mental health services to be appropriate.

38. In relation to Ms Kordanovski’s drug addiction, she was participating in a treatment program with opiate replacement therapy at the relevant time.  There was no evidence of ongoing substance abuse raised with the Tribunal. 

1. The reports of Ms Alderman and Dr Cidoni were provided after the relevant decision date but, in the case of Ms Alderman, her report was based upon her experience treating

   
   

   Ms Kordanovski for some time, including around May 2017.  I am satisfied that these medical opinions bear appropriately upon Ms Kordanovski’s state of health at the relevant time.[3]

   [3] Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558, at para 88.

2. The medical evidence was clear and consistent that Ms Kordanovski’s conditions were fully diagnosed and fully treated.  The nature and suitability of the treatment regime for her mental health conditions was thoroughly tested in evidence and adequately addresses the issue of whether her conditions were fully stabilised on the terms required in rule 6(6) of the Tables.  Dr Cidoni’s evidence adopted explicit wording consistent with this test and I note the finding of AAT1 that her conditions were fully diagnosed, treated and stabilised.

3. In relation to the carer role for her former partner, there appears to be a discrepancy between the extent of support claimed in the form completed by Ms Kordanovski, as well as its duration based on agency records, and that described in her evidence.  I am satisfied that the best evidence as to the actual nature and duration of the role was that provided by Ms Kordanovski in her oral evidence and I accept this evidence.  The medical witnesses were only able to provide qualified observations and their reports did not take the role into account.  However, I consider the issue was adequately tested with them.  I am satisfied that the weight of medical opinion overall about Ms Kordanovski’s conditions is not altered in a substantial way by the evidence as to the carer role.  I will address further below the extent to which the provision of care may affect the impairment ratings.  I also consider the carer allowance in relation to the work test.

4. I am satisfied, therefore, based on the evidence provided both in the form of the medical reports lodged and also the evidence provided at the hearing, that Ms Kordanovski’s mental health conditions (including anorexia) and drug addiction can be considered permanent in the sense required by the rules in force under s 26 of the SS Act.

   IMPAIRMENT ASSESSMENT

   Table 1 – Functions requiring Physical Exertion and Stamina

5. The written and oral medical evidence addressed in detail the impact that

   
   

   Ms Kordanovski’s anorexia and mental state have on her energy levels.  Fatigue limits her domestic capacities, and Ms Alderman’s report and evidence emphasised extreme tiredness including poor sleep patterns.  Ms Kordanovski in her evidence described being able to drive to the local shops and supermarket around once per week for visits of around 20 minutes.  She also stated that she is frequently unable to complete household chores such as vacuuming, her accommodation being a two bedroom flat.

6. It was submitted at the hearing by Ms Kordanovski’s representative that a rating against this Table was appropriate.  I note that the Tables are based on function and not tied to a particular condition.  I am satisfied that the evidence given as to Ms Kordanovski’s capabilities are consistent with those described for moderate functional impact arising from fatigue, and accordingly I assign a rating of 10 points under this Table.

   Table 5 – Mental Health Function

   Self care and independent living

7. Ms Kordanovski’s father, Mr Kordanovski, gave evidence of direct assistance to his daughter over an extended period.  Her parents have helped with a wide range of household tasks and with increasing frequency following the birth of her daughter.  Visits rose from 1-2 times per week following the birth (in early 2016), to nearly daily over the subsequent 12 months.  Assistance was provided with garden maintenance and shopping, as well as cleaning tasks.  Mr Kordanovski described assisting his daughter to remember and attend medical appointments.  

8. I accept that the evidence is to the effect that Ms Kordanovski’s ability to maintain her household and care for herself and her daughter appears to have deteriorated significantly over time, to the extent that she relinquished full time care for her daughter to her parents.  This arrangement took effect around six months after the assessment date under an informal arrangement negotiated through the Department of Human Services. 

9. As noted above, there is also evidence that Ms Kordanovski had provided some care to another adult in the time leading up to the assessment date, however her evidence is that her relationship ended some time after her daughter’s birth.  I accept therefore that her circumstances had changed by the date of the assessment.

10. Assessments of moderate impairment were made by AAT1 and by Dr Cidoni under this descriptor.  While the evidence demonstrates Ms Kordanovski is challenged in her domestic functions, I note the focus of this element is self care.  The examples provided under the ratings for mild or moderate functional impact refer to the neglect of self care or grooming and for assistance in maintaining personal hygiene and nutrition and I am not satisfied that a rating other than moderate is appropriate under this element.

    Social/recreational activities and travel

11. Ms Kordanvoski stated her daily life was ‘isolating’, arising from her general low level of energy and that all her efforts had been directed toward caring for her daughter.  The evidence was that her primary social contact has been through visits from her parents and that there is some limited engagement with family.  Ms Kordanovski’s activities with her former partner were of a quite defined scope, as described above.

12. Ms Alderman gave evidence that Ms Kordanovski’s anorexia led her to wish not to be far from home, that she has anxiety around her poor body image, low confidence and negative self-worth.  I accept Ms Kordanovski therefore has psychological barriers to leaving her home environment.  Dr Cidoni also highlighted lack of motivation and social withdrawal, and reported significant restriction to Ms Kordanovski’s social activity with visits outside the home of three times a week for medicine or shopping. 

13. I accept the evidence given that Ms Kordanovski has quite limited capacity to attend to her own needs, as discussed above, and her social life has been heavily confined for a long time.  Her evidence as to the nature of her care to her former partner does not significantly alter this assessment given the confined nature and scope of activities undertaken with him.  The evidence was that the primary location for the care role was her former partner’s house, which I accept as broadly consistent with Ms Alderman’s opinion that Ms Kordanovski could function in her own home.  I assign a rating of severe under this element.

    Interpersonal relationships

14. The examples provided against this descriptor suggest a degree of personal assistance might be required with facilitating interpersonal interaction in order for a person to qualify as having a severe rating.  The examples also envisage, generally, a very limited range of engagements including those arranged for the person.  In Ms Kordanovski’s case she does not appear to require assistance with her external engagement, however the majority of her interactions other than infrequent local trips, such as shopping, arise from medical appointments and with her immediate family. 

15. The medical evidence both at hearing and material lodged with the Tribunal demonstrates Ms Kordanovski has had a long history of poor quality intimate relationships.  There is evidence of intimate partner violence, relationships complicated by substance abuse, and numerous episodes of hospitalisation.  Her most recent partnership broke down after the birth of her daughter.

16. I note AAT1 assigned an impairment rating of moderate and that Dr Cidoni in his report, which was not available to AAT1, assigns a rating of severe to this element.  I am satisfied as to the evidence of Ms Kordanovski’s limited opportunity and capacity to develop and pursue a wider range of personal relationships.  I assign a rating of severe to this element.

    Concentration and task completion

17. The evidence at hearing on this descriptor was somewhat mixed.  Ms Alderman’s evidence indicates that Ms Kordanovski has obvious deficits in that she appears to be unable to recall and implement guidance around the program of therapy administered by her psychologist.  Her father also gave evidence that Ms Kordanovski required help to remember medical appointments. 

18. I note that Dr Cidoni administered a clinical test and was satisfied that Ms Kordanovski  possessed adequate functionality and he himself assigned a moderate rating to this element.  Ms Kordanovski gave evidence that she was unable to read for a period of more than half an hour.  On balance, I consider the evidence overall appears to be consistent with a moderate rating, based on the example under this descriptor, and I therefore assign a moderate impairment.

    Behaviour, planning and decision-making

19. At the date of the decision to cancel her DSP, Ms Kordanovski’s daughter was a little over 12 months old.  The evidence given was that by this time her parents were providing greater levels of support, and Ms Kordanovski was increasingly unable to manage her life.  As noted above, the evidence also indicates that Ms Kordanovski requires assistance in keeping scheduled appointments.

20. Ms Alderman’s evidence was that shortly after the cancellation of Ms Kordanovski’s DSP, she conducted a consultation over the phone with her patient as she was at the time in hospital.  She has a history of admissions for mental health care and further admissions occurred during 2018.  I am satisfied that Ms Kordanovski lives with a disruptive psychiatric condition and its impact is such that she has been unable to maintain primary care of her own child.  I assign a rating of severe under this element.

    Work/training capacity

21. The level and kind of impairment experienced by Ms Kordanovski appears to be incompatible with a capacity to engage in regular work or training activities.  The evidence indicates that she lacks the ability to manage a small household, to engage in a range of activities including maintaining interpersonal relationships beyond immediate family, and to care for her infant daughter.  All of these militate strongly against having the ability to sustain attendance and performance in a workplace or training program.  Moreover

    
    

    Ms Kordanovski has, as a result of her conditions been unable to do so for some considerable period of time, numbering in decades.  I assign a rating of severe under this element.

22. In summary, I assign a rating of severe against four out of the six descriptors, being most of the descriptors, leading to a functional impairment of severe under Table 5.

    Table 6 – Functioning related to Alcohol, Drug and Other Substance Use

23. It was submitted on behalf of Ms Kordanovski that an assessment under this Table was appropriate.  AAT1 declined to assess impairment under this Table.  However, the table explicitly provides that a moderate impairment rating:

    includes a person in receipt of treatment and in sustained remission (e.g. a person who is receiving Methadone treatment or opiate replacement therapy) and who is able to complete most activities of daily living.

24. Dr Bramwell’s report on opiate replacement therapy does not state when Ms Kordanvoski commenced this treatment.  In Dr Dooley’s report, which follows shortly after the cancellation date of 22 May 2017, she describes Ms Kordanovski as ‘currently’ being on Suboxone (the opiate replacement).   I am therefore satisfied that at the relevant date

    
    

    Ms Kordanovski was in receipt of treatment for her prior drug abuse, which was one part of her wider history of drug and alcohol abuse and that her situation is consistent with the narrative in the Table.  Therefore, I assign a rating of 10 for moderate functional impairment.

    Summary

25. The rating of severe under Table 5 amounts to a rating of 20 points, and to a severe impairment assessment overall.  Further ratings of moderate under Table 1 and Table 6 result in an additional 10 points for each of these ratings. Ms Kordanovski’s impairments attract a total of 40 points across the Tables.

    CONTINUING INABILITY TO WORK

26. The work test in this case is whether Ms Kordanovski would be capable of working 30 hours per week.  This would equate, based on a typical work week of 37 hours, to attendance at least 4 days per week.  It was submitted in the Secretary’s Statement of Issues, Facts and Contentions that Ms Kordanovski’s ‘ability to provide care for another adult’ demonstrated that her impairment did not prevent her undertaking a training activity in the next two years.

27. I note that the above impairment assessment under Table 5 includes as one component an assessment against work/training capacity and I have assigned a rating of severe against this element.  The example provided against that descriptor adequately describes Ms Kordanovski’s situation in that I am satisfied that she is unable to attend work or undertake training over the required period.  I have accepted that Ms Kordanovski ‘s carer role finished with the end of her relationship with her child’s father, and that it had been of a confined scope.  I do not consider the evidence about this role weighing against her what I have found to be her in capacity to work 30 hours per week.

28. I note also that the Job Capacity Assessment (JCA) submitted on 19 May 2017 and provided with material lodged with the Tribunal (T6, pp 42-43) assessed Ms Kordanovski with a baseline work capacity of 8-14 hours.  The JCA proposed her work capacity may rise to 15-22 hours per week within two years of the assessment with interventions being psychiatric services/treatment, psychological/cognitive assessment/intervention and substance abuse assistance/counselling.  Accordingly, this assessment itself, which informed the cancellation decision by the Authorised Review Officer, identified that Ms Kordanovski would not meet the agreed test for her case, being capacity to work 30 hours per week.

29. I am not satisfied on the evidence provided that Ms Kordanovski would meet this work test. 

    CONCLUSION

30. As at the date of cancellation, 22 May 2017, I find that Ms Kordanovski:

    1.had a physical, intellectual or psychological impairment (s 94(1)(a) SS Act);

    2.that her impairments should be assigned a rating of 20 or more points across three tables (s 94(1)(b));

    3.that she has a severe impairment with at least 20 points assessed under a single table (s 94(3B); and

    4.that she did not meet the relevant work standard (s 94(1)(c)(i)).

    DECISION

31. Accordingly, under s 43(1)(c) of the AAT Act the Tribunal sets aside the decision of the Social Services and Child Support Division of 4 October 2017 and substitutes the decision that that the Applicant satisfied all of the requirements of s 94 of the Social Security Act 1991 as at the date of cancellation on 22 May 2017.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 21 June 2019   

Date of hearing:	7 March 2019
Counsel for the Applicant:	Ms Gemma Cafarella
Advocate for the Applicant:	Ms Rehana Chowdry
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Ms Ailsa Bramley
Solicitors for the Respondent:	Department of Human Services, Litigation and Information Release Branch