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

[2016] AATA 553

Kuljanin and Secretary, Department of Social Services (Social services second review) [2016] AATA 553 (29 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2600
Re	Jasminka Kuljanin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member William Stefaniak AM RFD, Senior Member
Date	29 July 2016
Place	Sydney

The Tribunal decides that the decision under review is varied with respect to the applicant’s impairment rating and the matter is remitted to the Secretary for reconsideration with respect to indefinite portability of the applicant’s DSP in accordance with the Tribunal’s findings.

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

Ms A F Cunningham, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – chronic spine pain, shoulder elbow pain and depression – impairment rating – severe impairment – indefinite portability – decision under review varied and remitted

LEGISLATION

Social Security Act 1991, s 94, s 1218AAA

Social Security (Administration) Act 1991  

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

CASES

Udrzal and Secretary, Department of Social Services (2014) AATA 232

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

29 July 2016

REASONS FOR DECISION

1. Mrs Jasminka Kuljanin, the applicant, sought the review of a decision of the former Social Security Appeals Tribunal (SSAT) made on 15 April 2015 which set aside a decision made on 6 August 2014 to cancel the applicant’s disability support pension (DSP) following a review of her DSP as part of an assessment for the eligibility for indefinite portability.

   Background

2. The applicant had been in receipt of DSP since 28 August 2008 on the basis of impairments arising from her chronic spine pain, shoulder and elbow pain and depression conditions. After contacting Centrelink to advise that she intended to go overseas on 13 August 2013 to Bosnia and Herzegovina, a review was undertaken of the applicant’s eligibility for indefinite portability of her DSP.

3. A job capacity assessment (JCA) was undertaken on 26 March 2014. Following a referral of the JCA report to the Health Professional Advisory Unit (HPAU) for opinion, the JCA report was finalised on 5 August 2014. Centrelink took these reports into account in deciding to cancel the applicant’s DSP on the basis that as the applicant did not have a total impairment rating of 20 points, she was not qualified for DSP. Accordingly the applicant’s DSP was cancelled with effect from 17 August 2014.

4. In its review of Centrelink’s decision, the SSAT agreed with the impairment rating given for the applicant’s spine condition of 10 points under Table 4 but considered that an impairment rating of 10 points under Table 3 was appropriate for the applicant’s right shoulder and elbow condition.  The Tribunal expects that the SSAT mistakenly referenced Table 3 – Lower Limb Function rather than Table 2 – Upper Limb Function.

5. The SSAT was not satisfied on the information available that the applicant’s mental health condition was fully treated and stabilised such as to attract an impairment rating. The tribunal went on to find that the applicants upper limb and spinal conditions were likely to continue to prevent her from doing any work or undertaking a training activity and therefore determined that as at 6 August 2014, the applicant had a “continuing inability to work” within the meaning of subparagraph 94 (1) (c) of the Social Security Act 1991 (the Act).

6. The Secretary agrees with the findings of the SSAT apart from its assignment of an impairment rating of 10 points under Table 2 for the applicant’s shoulder condition. The Secretary contends that this condition causes a mild impairment and should be awarded 5 points. The applicant maintains that an impairment rating of 10 points is appropriate for her upper limb condition as is the impairment rating of 10 points assigned for her spine condition. Her main contention is that her depressive condition is permanent in that it has been fully diagnosed, treated and stabilised and should be assigned an impairment rating under the Tables.

   Issues

7. The issue for this Tribunal to determine is whether the applicant was qualified to receive DSP as at the date of cancellation, 6 August 2014.

8. The SSAT did not consider the issue of indefinite portability and returned the matter to the Chief Executive Centrelink for reconsideration in accordance with its finding that the applicant has continued to satisfy the qualification requirements of the Act since the date of cancellation of the DSP.

9. Ms Doyle on behalf of the Secretary submitted that the Tribunal has jurisdiction to also consider the issue of portability and referred to the decision in Udrzal and Secretary, Department of Social Services (2014) AATA 232, where the applicants DSP had similarly been cancelled as part of a portability review. In that case however, Deputy President Hack had remitted the matter to Centrelink for consideration of the issue of indefinite portability before he determined the issue of the applicant’s qualification for DSP. Deputy President Hack concluded that the applicant had a severe impairment within the meaning of the Act and therefore satisfied the indefinite portability provisions of s 1218AAA (1)(d).

10. The Tribunal will consider the issue of indefinite portability in the context of the relevant provisions of the Act however does not propose to make a determination. In light of the Tribunal’s findings it will not be necessary to make a determination and in any event, the Tribunal considers that as portability was not considered in the reviewable decision, it should appropriately be remitted for determination by the Secretary.

    Legislation

11. The relevant legislation is contained in the Social Security Act 1991, the Social Security (Administration) Act 1991 (Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination). Also of relevance is government policy as set out in the Guide to Social Security Law.

12. The qualification criteria for DSP are set out in subsection 94 (1) of the Act which relevantly provides as follows:

    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;

13. Subsection 27 (3) of the Act provides that the applicants qualification for DSP must be assessed under the Impairment Tables that were extant on 6 August 2014 when her DSP was cancelled.

14. In considering whether to cancel a pension, it is relevant to consider whether the person is qualified at the date of cancellation.

    Impairments

15. In accordance with subsection 94 (1) (b) of the Act, a person’s impairment must rate at least 20 points under the Impairment Tables. In order for an impairment to attract an impairment rating under the Impairment Tables, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years (section 6 (3) of the Impairment Determination).

16. An impairment rating is assessed in accordance with the Impairment Tables made pursuant to the Impairment Determination. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.

17. In determining whether a condition has been fully diagnosed, treated and stabilised consideration must be given to any corroborating evidence of the condition, what treatment has occurred and whether a treatment is continuing or planned in the next two years (section 6 (5) of the Impairment Determination), or if there would be unlikely to be significant functional improvement that would enable them to work in the next two years (section 6 (6) of the Impairment Determination).

18. The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. The symptoms reported by a person in relation to the condition can only be taken into account where there is corroborating medical evidence (section 8 of the Impairment Determination and the Introduction to the Tables).

19. The term “impairment” is not defined in the Act. Section 3 of the Impairment Determination defines “impairment” to mean:

    A loss of functional capacity affecting a person’s ability to work that results from the person’s condition

    Evidence

20. The applicant attended the hearing in person and was assisted by her son, Semir Kuljanin. She gave evidence and was cross-examined by Ms Doyle who appeared on behalf of the Secretary.

21. No further documents were tendered by the applicant. The respondent tendered the T documents and supplementary T documents which contained information including medical reports and JCA reports relevant to the applicants renewed application for DSP in August 2015. The applicant was able to give her evidence in the English language but at times required the assistance of the Bosnian interpreter.

22. The applicant’s evidence to the Tribunal focused on her chronic anxiety and depressive condition. She could not understand how the condition was initially accepted for her claim in August 2008 but rejected following the review in August 2014. It was the applicant’s evidence that she first suffered from mental health issues following the death of her sister in 2007 and received psychological treatment on a regular basis in Australia and during her visits to Bosnia. She has also been prescribed medication from her general practitioner, Dr Oreb which she takes in addition to medication for her spine, hip and shoulder conditions and blood pressure.

23. The applicant said that 2014 had been a particularly bad year for her and gave an emotional account of her youngest son’s departure from the family home because he was unable to deal with the applicant’s mental health condition. The applicant currently lives in the home with her husband of 30 years and her son Samir who is assisting her with her application. The applicant agreed that her mental health deteriorated significantly following the receipt of Centrelink’s advice concerning the cancellation of her DSP.

24. The applicant said that initially she had been involved in the Bosnian community in Australia. However since the death of her sister and the onset of her mental health conditions, her current life is now very different. She says that she suffers ill health, has few friends and rarely socialises. Whilst she is able to undertake general housework activities she often requires help from her husband and son. She is able to shop locally for bread and milk but requires the assistance of either her son or husband with general supermarket and other shopping. The applicant informed the job capacity assessment in August 2014 that she was able to drive her car within the local area and would also catch public transport to visit her doctor in Campbelltown, a journey of approximately 10 minutes.

25. The applicant has made a number of return visits to Bosnia most recently between 12 October 2014 and August 2015 which she undertook on her own.

26. The applicant said that she was last employed at the post office in 2007 but was retrenched when the franchise arrangements changed. She temporarily worked in another position for a short period which was not successful.

27. It was the applicant’s evidence that her mental health condition improved significantly whilst in Bosnia where she had the support of her family and friends. She contrasted her life in Australia with that in Bosnia where she said she had more opportunity to socialise and participate in village life, for instance attend volleyball games, enjoy a cup of tea with the neighbours and participate in group therapy treatment. Dr Muhamed Ahmic (neuropsychiatric) stated in a report dated 3 November 2015 that the treatment provided in Bosnia and Herzegovina suits the applicant where it is much easier for her to cope without the language barrier and there is a more suitable climate. He stated that objectively, her,

    condition has improved so the treatment will be corrected. There is an impression that the treatment here would be more effective and the many symptoms which she has are from the cycle of difficulties of adjusting and they are reflected as prolonged depression reaction.

    Dr Ahmic listed the applicant’s various medications. In an earlier report dated 21 January 2015 Dr Ahmic stated that the applicant “takes her medication regularly”, that “she feels better, she socialises more and goes out more. Her sleeping is good and her condition is in the state of satisfactory remission.”

28. An earlier report dated 14 October 2014 was written following a hospital consultation. Dr Ahmic states that the applicant,

    does not feel well anywhere, she is unhappy, does not sleep well; she does not want to do anything. She complains about her appetite. Her condition is worse and that is why she needs our help. She is aware and alert, with good understanding of the situation, talkative. Her thoughts seem slow, but still in the regular circle. The feeling of hopelessness and disaster is present. She is not keen to do much. She dines (sic) any ides (sic) of suicidal action but states she attempted suicide in the past. She denies any perceptive delusion. The isonomy is present.

    A follow-up appointment was arranged for three weeks time following the 14 October 2014 appointment.

29. In Australia the applicant consulted Dr Zoran Protulipac, clinical psychologist, whose reports of 13 August 2014, 9 October 2014 and 27 October 2015 were included in the T documents. The applicant first consulted Dr Protulipac in August 2012 and attended psychological therapy sessions between one and two times per month until August/September 2013 when Dr Protulipac was away from the clinic. Upon his return the sessions continued with similar frequency. Dr Protulipac noted and that upon the cancellation of her DSP, the applicant’s psychological conditions worsened dramatically and she required more intensive therapy and support. She received further treatment under the Medicare Mental Health Plan whereas previously her children were meeting her treatment expenses. The applicant consulted Dr Protulipac on six occasions in August 2014 which he said resulted in a reduction in her symptoms to a more tolerable level. When she had exhausted the Medicare plan, the applicant continued her consultations as a private patient on two further occasions in September 2014. The treatment included antidepressant medication which did not completely relieve her of symptoms but provided a safeguard against further deterioration of her mental health and improved her functionality.

30. Dr Protulipac provided a comprehensive report dated 13 August 2014 following a request to evaluate the applicant’s fitness for employment, or the degree of permanent disability in terms of her psychiatric illness, for the purpose of DSP qualification. In this report Dr Protulipac stated that the applicant had commenced psychiatric treatment in Bosnia in 2007 when she consulted a local psychiatrist. She continued treatment with Dr Adela Bajric, psychologist, on her return to Australia in 2007 with whom she developed a trusted and productive therapeutic relationship. However when Dr Bajric later left Australia, the applicant was reluctant to pursue treatment with another psychologist but continued her psychiatric treatment by taking the psychotropic medication prescribed by her GP, Dr Oreb. Following treatment with a psychiatrist in Bosnia in 2012 the applicant consulted Dr Protulipac on her return to Australia.

31. In Australia the applicant is on antidepressant medication, sedation medication and sleeping aids.  Dr Protulipac noted that she has limited access to mental health treatment due to financial constraints. In Bosnia however a single consultation with her psychiatrist costs as little as 20 EUR. Dr Protulipac stated in his report of 13 August 2014 that:

    her reaction to treatment is poor in Australia, and the overall efforts to help her recover failed so far. The current treatment serves merely as a safeguard against further deterioration of her conditions with a little prospect of recovery. Her treatment in Bosnia is reportedly very effective as her conditions significantly improve every time she returns to her homeland.

32. In this report Dr Protulipac went on to describe the impact of the applicant’s mental health on her ability to function and stated that:

    she experiences a range of restrictions including the inability to work, attend to the house chores, pay bills, socialise, and care for her family. She reported being unable to attend to her self-care needs, prepare food, do laundry, cleaning, cooking or engage in any meaningful activities, and relies on others for such care. Given that her relationship with her husband and both sons are destroyed, she is assisted by a few kind-hearted friends who occasionally attend her home and assist with cleaning, cooking, shopping and other daily tasks.

    Due to severe insomnia, she suffers from significant loss of concentration and impairment to short-term memory. Such symptoms prevent her from engaging in any intellectual work, even reading a newspaper article, following a movie or following complex tasks.

33. Dr Protulipac diagnosed the applicant with major depressive disorder, recurrent, moderate, without psychotic features; generalised anxiety disorder; panic disorder with agoraphobia; post-traumatic stress disorder, chronic type on the basis of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.

34. Later in the report Dr Protulipac stated:

    There is ample evidence that her conditions improve significantly each time she resides in Bosnia, and deteriorate accordingly upon her return to Australia. It is therefore my opinion that, in order to improve the quality of her life and prolong her life, she should be able to reside permanently in Bosnia where she should have the access to the Disability Support Pension. This opinion is reportedly supported by her treating Psychiatrist in Bosnia, and concordant with mine.

    It was Dr Protulipac’s opinion that the applicant is completely unfit for work and would never return to employment and nor did he expect that her conditions would improve with time or treatment.

35. In his latest report dated 27 October 2015 Dr Protulipac stated that the applicant suffers from serious and chronic mental illness. He considered her symptoms fully treated and stable and that no further treatment would make any significant difference. Although the intensity and frequency of her symptoms fluctuate in accordance with her life stressors and other health conditions, Dr Protulipac considered that the applicant’s conditions are stable. He noted that this opinion had been confirmed by her treating psychiatrist, Dr Bajric who considered that periods of deterioration or apparent improvement of the applicant’s conditions do not represent the stages of the illness but rather fluctuations of mood as a reaction to various stressors. Dr Protulipac referred to the report of Dr Muhamed Ahmic of 3 November 2015 who opined that the applicant feels better when in Bosnia and he was able to reduce her therapy due to the improvement of her reported conditions. Dr Ahmic had commented that the applicant suffers from severe adaptation issues whilst in Australia which cause a deterioration in her mental health. In Dr Protulipac’s opinion it is in the applicant’s best interests to relocate and continue residing in Bosnia with reinstatement and portability of her DSP.

    Consideration and findings

    Spinal Function

1. The applicant’s spine condition was assessed in the JCA report dated 5 August 2014 and an impairment rating of 10 points under Table 4 was recommended on the basis of the medical reports from Dr Oreb and applicant’s reported functional impacts. The SSAT determined that the condition caused moderate functional impact and that a rating of 10 points was appropriate. The Secretary agrees with this rating noting that the applicant is able to drive a car for 30 minutes and has reported an inability to sustain overhead activities. This Tribunal has no difficulty in accepting an impairment rating of 10 points under Table 4 on the basis of the available evidence and concludes that there is no evidence to support a higher impairment rating.

   Upper Limb Function

2. The impairment rating recommended in the JCA report of 5 August 2014 under Table 2 for the applicant’s upper limb function was 5 points. The report noted that the applicant had said that she was able to drive an automatic vehicle for periods of up to 30 minutes, perform household duties such as dusting and wiping tables, washing including putting clothes into the washing machine, pulling them out and hang them at hip level, dishwashing, cooking and assisting with shopping duties for approximately 10 minutes. Further that the applicant retains self-care independently and demonstrated abilities during the course of the assessment that supported a mild functional impact on activities using hands or arms.

3. An impairment rating of 5 points under Table 2 was also recommended in the HPAU opinion on the basis of the applicant’s reported functional capacities.

4. The Secretary submits that there is no evidence that supports an impairment rating of 10 points under Table 2 and disagrees with the SSAT’s assessment of a 10 point impairment rating.

5. The applicant advised the Tribunal that prior to the cancellation of her DSP she was able to self-care without much assistance from her husband. She said that she is currently able to undertake general household activities although has some difficulty using a knife in her right hand and is able to shop and drive a motor vehicle within the local area. Whilst the applicant experiences some difficulty with buttons and laces, she is able to use a pen and type emails using a standard keyboard as evidenced by her typewritten correspondence in the T documents at T 36.

6. On the basis of the available evidence, the Tribunal considers that the applicant’s condition causes a mild functional impact on activities and that an impairment rating of 5 points is appropriate under Table 2.

   Mental Health Function

7. Whilst the Secretary accepts the diagnosis of depression, it is submitted that this condition was not fully stabilised at the time of the reviewable decision such as to attract an impairment rating.

8. The Tribunal considers that there is evidence upon which it can be satisfied that the applicant’s depressive condition was fully diagnosed as at the time of the decision to cancel her DSP. Chronic anxiety and depression are listed by Dr Oreb in his medical report of 3 February 2014. Following a referral by Dr Oreb, Dr Bajric, clinical psychologist, prepared a report dated 8 September 2008 in which she diagnosed adjustment disorders, with mixed anxiety and depression. Dr Protulipac provided a comprehensive report dated 13 August 2014 in which he diagnosed depression, anxiety, panic disorder and post-traumatic stress disorder.

9. The applicant notes the evidence that the applicant’s condition worsened after her DSP was cancelled when she sought further treatment. It is submitted on behalf of the Secretary that the applicant had limited psychological intervention by way of treatment as at the date of cancellation and that in the years preceding cancellation, the applicant had experienced improvement in her condition when she had sought treatment. The SSAT in its decision was not satisfied on the available evidence that the applicant’s mental health conditions were fully treated and stabilised as at the date of cancellation particularly since there was evidence of an improvement in the applicant’s condition since she left Australia. Thus it concluded that no impairment rating could be assigned for the applicant’s mental health conditions.

10. It is submitted by the Secretary that it cannot be said that the treatment that the applicant undertook in Bosnia is not available in Australia which could be expected to result in significant improvement in her condition. Therefore the condition cannot be considered fully treated and stabilised. It is contended that as at the date of cancellation, the applicant had accessed only intermittent treatment at best.

11. Details of the treatment accessed by the applicant in Bosnia have been outlined above in the consideration of the contents of the medical reports and in particular, those prepared by Dr Protulipac. The evidence is that the applicant first sought psychiatric treatment when in Bosnia in 2007 and continued treatment on her return to Australia with Dr Bajric. However when Dr Bajric later left Australia, the applicant was reluctant to seek treatment from another psychologist and instead was treated by her general practitioner, Dr Oreb. She continued psychiatric treatment in Bosnia in 2012 but due to financial constraints was unable to afford much treatment in Australia.

12. In Dr Protulipac’s report of 13 August 2014, which is relevant to the assessment period, he states that “there is ample evidence that her conditions improve significantly each time she resides in Bosnia, and deteriorate accordingly upon her return to Australia.” Dr Protulipac’s opinion is confirmed by the applicant’s evidence to the Tribunal. The applicant described the group therapy sessions that she attends in Bosnia which she finds beneficial within the supportive cultural environment provided by her family and friends. It was the applicant’s evidence that she is much happier when in Bosnia however her condition deteriorates when she returns to Australia. It is the opinion of Dr Protulipac that the applicant’s mental health condition improves when she is in Bosnia with family and friends and that she should spend more time there. In Bosnia the applicant has the opportunity to engage in activities with family and friends which she does not do in Australia. The only treatment that is accessible and affordable to the applicant in Australia is medication.

13. The applicant was asked in cross-examination why she had not accessed group therapy in Australia. She explained that it is the cultural environment of life in Bosnia together with the support of her friends and family that she finds beneficial.  She said that she would not be able to afford group therapy treatment in Australia.

14. In the JCA report of 18 November 2015 which post-dated the cancellation decision, it is recommended that the condition not be considered fully stabilised at the date of the report on the basis that the applicant may benefit from ongoing, consistent treatment in Australia with psychiatric and psychological support to manage adjustment issues and improve functioning.

15. The evidence provided by the applicant and contained in the medical reports is that the applicant’s mental health improves significantly during her visits to Bosnia and deteriorates on her return to Australia. The applicant describes the elements that impact on her improved mental health conditions whilst in Bosnia as being the accessibility of inexpensive treatment, group therapy sessions, support of family and friends and the general cultural environment. It is evident that it is the combination of these elements that positively impact on the applicant’s mental health conditions. This combination cannot be replicated in Australia. Nor is there any evidence that group therapy treatment for instance, has been recommended by any treating medical practitioners in Australia.

16. In considering whether a condition is fully treated regard must be had to treatment that has occurred and also what treatment is continuing or planned in the next two years. In Dr Oreb’s report of 3 February 2014 he lists the applicant’s chronic anxiety and depression as being conditions that are generally well-managed and cause minimal or limited impact on ability to function. The GP’s opinion however is inconsistent with the psychological report of a Dr Zoran Protulipac dated 13 August 2014 where he stated that treatment in Australia is ongoing however insufficient because the applicant has limited access to mental health treatment due to financial constraints. In Australia the applicant continues to use antidepressant medication, sedation medication and sleep aids and that her reaction to treatment in Australia is poor and overall efforts to help her recover have failed so far. In his opinion, the applicant should be able to reside permanently in Bosnia and continue to have access to her DSP.

17. The Tribunal accepts the evidence of Dr Protulipac which is consistent with the applicant’s evidence to the Tribunal and other medical reports as outlined above. On the basis of this evidence the Tribunal concludes that the applicant’s mental health condition of depression is fully treated.

18. The Tribunal is further satisfied that the condition is fully stabilised within the meaning of the Impairment Determination on the basis that the applicant has undertaken reasonable treatment for the condition and that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling her to undertake work in the next two years. “Reasonable treatment” is defined in the Impairment Determination in Part 2 paragraph 5 (7) as 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 readily undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    There was no evidence of any treatment either available or that has been recommended that would constitute “reasonable treatment” within the meaning the Impairment Determination.

19. The Tribunal finds that the applicant’s mental health condition of depression is permanent in that it is fully diagnosed, fully treated and fully stabilised such as to attract an impairment rating under Table 5.

20. In Dr Bajric’s report of 8 September 2008 she noted that the applicant demonstrates avoidance of people and places, has difficulty sleeping, excessive crying and in her opinion, would be unable to return to work and would require ongoing weekly counselling to improve her coping skills of  pain, anxiety and depression.

21. In the applicant’s work capacity form dated 3 February 2014 which was completed with the assistance of Dr Oreb, she lists the following as often presenting difficulties as a result of pain, anxiety and depression: ability to concentrate, remember, interact with others, attend work or other appointments and sometimes understand or follow instructions.

22. In Dr Protulipac’s report of 13 August 2014 he states that due to severe insomnia, the applicant suffers from significant loss of concentration and impairment due to short-term memory which prevents her from engaging in any intellectual work, even reading a newspaper article, following a movie or following complex tasks. He also stated that the applicant has difficulties with short-term memory, is forgetful and has difficulties in attention, motivation, and concentration. She has minimal, communication and is socially isolated and does not attend any social events, she neglects health and rarely attends doctors’ appointments. In Dr Protulipac’s opinion the applicant is completely unfit for work and will never return to employment. He also considers that there is a significant risk of suicide which should be managed by regular access to mental health services.

23. At appendix A of the 13 August 2014 report, Dr Protulipac evaluated the applicant’s mental health function under the relevant tables and assessed a severe functional impairment on activities. Dr Protulipac assessed the criteria as follows:

    (a)self-care and independent living: cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes;

    (b)social/recreational activities and travel: never attends any social events. Has no support. Not actively involved, remains quiet and withdrawn. Travel is on her own to doctors’ appointments or when absolutely necessary;

    (c)interpersonal relationships: marriage dissolved, not involved in a relationship, no prospect of gaining a partner, relationship with her son strained. Evidence of domestic violence. Has no support;

    (d)concentration and task completion: unable to read more than  newspaper articles. Finds it difficult to follow complex instructions, e.g. operating manuals, building plans, type detailed documents, follow a pattern for making clothes, tapestry or knitting. Evidence of psychomotor retardation due to severe depression, slow movements, poor motivation, impaired concentration;

    (e)behaviour, planning and decision-making: cognitive distortions due to depressive illness, catastrophising, polarised thinking, inability to plan, follow through and evaluate the outcomes due to memory impairments and inability to make decisions due to elevated anxiety. Plan making hindered by specific phobia.

    (f)work/training capacity: extremely impaired. Cannot work at all. Incapable of understanding training of any type.

24. Apart from Dr Protulipac’s conclusions under interpersonal relationships, the Tribunal has no reason not to accept his functionality assessment of the applicant’s mental health as “severe” under Table 5 which requires evidence supporting “most” of the descriptors. His conclusions in relation to the applicant’s marriage having been dissolved and her not being involved in a relationship with no prospect of gaining a partner are inconsistent with the applicant’s evidence to the Tribunal. It was the applicant’s evidence that although she has a strained relationship with her husband, they have been married for 30 years and still cohabit.

25. It is notable that the assessment was undertaken within a few days of the decision to cancel the applicant’s DSP and is therefore relevant.

26. In accordance with this evidence this Tribunal concludes that the applicant has an impairment rating of 20 points under Table 5. This constitutes a “severe impairment” within the meaning of section 94 (3B) of the Act and thus it is not necessary to consider the provisions relating to “continuing inability to work” pursuant to section 94 (2) of the Act.

27. For the above reasons and findings, the Tribunal assesses the applicant’s total impairment rating at 35 points under Tables 2, 4 and 5. 

28. The provisions relating to unlimited portability for DSP are contained in s1218AA (1) of the Act which provides as follows:

    The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

    (a)     the person is severely disabled (see subsection 23(4B)); and

    (b)     the person is receiving disability support pension; and

    (c)     the person is terminally ill; and

    (d)     the person’s absence from Australia is or will be permanent; and

    (e)     the purpose of the person’s absence is:

    (i)        to be with or near a family member of the person (see subsection 23(14)); or

    (ii)       to return to the person’s country of origin.

29. In the Tribunal’s view the evidence as outlined above and in particular that of Dr Protulipac satisfies the above provisions.

30. The decision under review is varied with respect to the applicant’s impairment rating and the matter is remitted to the Secretary for reconsideration with respect to indefinite portability of the applicant’s DSP in accordance with the Tribunal’s findings.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member and William Stefaniak AM RFD, Senior Member.

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

Associate

Dated 29 July 2016

Date(s) of hearing	18 April 2016
Advocate for the Applicant	Mr S Kuljanin
Solicitors for the Respondent	Ms G Doyle, Department of Human Services