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

[2015] AATA 622

Lindsay and Secretary, Department of Social Services (Social services second review) [2015] AATA 622 (21 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6478
Re	Kellie Lindsay
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	21 August 2015
Place	Perth

The Tribunal affirms the decision under review.

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

Senior Member CR Walsh

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant’s impairments (bipolar affective disorder, temporal lobe epilepsy, degenerative disc disease, drug dependence and morbid obesity) did not attract at least 20 points under the impairment tables as at the relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) - s 94(1)(a) – s 94(1)(b) – s 94(1)(c)  - s 94(2)(aa) -  s 94(2)(a) – s 94(2)(b)

Social Security (Administration) Act1999 – s 13 – s 41 – s 42 - cl 3 of Schedule 2 – cl 4(1) of Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - s 3 – s 6(1) – s 6(2) - s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 10(5) – s 10(6) - s 11(4)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

SECONDARY MATERIALS

Guide to Social Security Law – s 3.6.3

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension

REASONS FOR DECISION

Senior Member CR Walsh

21 August 2015

INTRODUCTION

1. Ms Lindsay seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 25 November 2014, which affirmed a decision of a Centrelink Authorised Review Officer (ARO), dated 10 June 2014,[1] that Ms Lindsay was not qualified for disability support pension (DSP) under s 94(1) of the Social Security Act 1991 (SSA) because her impairments (bipolar affective disorder, temporal lobe epilepsy, degenerative disc disease, drug dependence and morbid obesity) did not attract at least 20 points under the impairment tables (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) as at the relevant period (i.e. up to and including 14 January 2014 to 15 April 2014).[2]

   [1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 7 February 2014.

   [2] Refer to paragraphs 14 and 15 below.

   FACTUAL & PROCEDURAL BACKGROUND

2. On 14 January 2014, Ms Lindsay lodged a Centrelink “Claim for Disability Support Pension or Sickness Allowance” form with Centrelink (DSP Claim). In the DSP Claim, Ms Lindsay listed her “disabilities, illnesses or injuries” as:

   bipolar disorder epilepsy - sleep apnoea complex borderline - diabetes depression - greif (sic). Bad back

3. An additional extract from an undated Centrelink DSP claim form lists Ms Lindsay’s “disabilities, illnesses or injuries” as:

   Grief, depression, sevever (sic) sleep apeoa (sic), bleeding from bowel, temporal lobe epilesy (sic), detoxing methadone

4. In a Centrelink “Medical Report Disability Support Pension”, dated 30 December 2013, Dr John Kemp, Consultant Psychiatrist, listed Ms Lindsay’s conditions as:

   Bipolar Disorder + Temporal Lobe Epilepsy (2004) + Poly Substance abuse (2001).

5. On 6 February 2014, Ms Lindsay attended a job capacity assessment (JCA) conducted by a registered occupational therapist and a registered psychologist.  In their report, the JCA assessors recommended “Employment Service” Stream 4.

6. On 7 February 2014, Centrelink rejected the DSP Claim on the basis that Ms Lindsay had been “assessed as not having an impairment rating of 20 points or more” (Original Decision).

7. On 7 May 2014, Ms Lindsay wrote to Centrelink disagreeing with the Original Decision and provided Centrelink with a further “Medical Report Disability Support Pension” by Dr Kemp, dated 16 April 2014, which listed Ms Lindsay’s conditions as “Bipolar affective disorder”, “Temporal lobe epilepsy” and “Minimal degenerative disease at L4-L5 & L5-S1, bilateral femoroacetabular impingement”.

8. On 19 May 2014, Ms Lindsay, as part of Centrelink’s review of the Original Decision, attended another JCA conducted by a registered occupational therapist and a registered psychologist. In their report, dated 19 May 2014, the JCA assessors recommended assigning Ms Lindsay an impairment rating of 5 points on the basis of her bi-polar disorder.

9. On 10 June 2014, an authorised review officer (ARO) affirmed the Original Decision, finding that Ms Lindsay’s total impairment rating was 5 points and that she did not have a continuing inability to work (ARO Decision).

10. On 11 September 2014, Ms Lindsay applied to the SSAT for a review of the ARO Decision.

11. On 25 November 2014, the SSAT affirmed the ARO Decision (SSAT Decision), finding that Ms Lindsay’s bipolar affective disorder should be assigned 5 points under Table 5 of the Impairment Tables (Mental Health Function), that Ms Lindsay’s drug dependence should be assigned 0 points under Table 6 of the Impairment Tables (Functioning related to Alcohol, Drug and Other Substances Use), that Ms Lindsay’s temporal lobe epilepsy should be assigned 0 points under Table 7 of the Impairment Tables (Brain Function) and that Ms Lindsay’s arthritis of the spine could not be rated under the Impairment Tables.

12. On 12 December 2014, Ms Lindsay applied to the Administrative Appeals Tribunal (Tribunal) for a review of the SSAT Decision.  In a handwritten letter to the Tribunal, dated 29 May 2015, Ms Lindsay stated:

    I disagree with your decision.  I think different tables should be used for bipolar and T.L.E. [i.e. temporal lobe epilepsy].

    T.L.E. causes me to have parial (sic.) complex seizures.

    I stare into space for 2 seconds at a time several times a day.

    I see auras, I feel like I’m being touched.  I can smell things that are not there.  I get feelings of déjà vu.  I have outer body experiences.  I have hallucinations and night terrors.

    I think you need to take in the fact that reducing my methodone (sic.) is really hard thing to do even though I’m reducing very slowly it is physically (sic.) addictive as well as psychological.

    Having a back problem is making it harder as well.  I have to wait a couple of hours in morning before it takes affect. 

    I do not use illegal drugs or drink alcohol or smoke ciggarettes (sic.).

    ISSUES

13. In reviewing the SSAT Decision, the relevant issues for consideration by the Tribunal are:

    (i)Whether Ms Lindsay had a physical, intellectual or psychiatric “impairment” as at the “relevant period” (refer to paragraphs 14 and 15 below), as required by s 94(1 )(a) of the SSA;

    (ii)if so, whether as at the “relevant period” (refer to paragraphs 14 and 15 below) the impairment attracted at least 20 points under the Impairment Tables, as required by s 94(1 )(b) of the SSA; and

    (iii)if so, whether Ms Lindsay has a “continuing inability to work”, as required by s 94(1 )(c)(i) of the SSA:  refer to paragraphs 75 and 76 below.

    ANALYSIS

    Relevant Period

14. The Social Security (Administration) Act 1999 (SSAA) provides that the “start-day” for a qualified DSP claimant is the date of the claim: s 13, s 41, s 42 and cl 3 of Schedule 2 to the SSAA. This means that qualification for DSP and impairment ratings must be determined as at the date of the claim. The only exception is where the claimant is not qualified on the date of the claim but “will…become qualified” and “becomes so qualified” within 13 weeks of lodging a claim, in which case the “start-day” is the day the claimant became qualified: cl 4(1) of Schedule 2 to the SSAA.

15. Consequently, the relevant period for consideration of Ms Lindsay’s qualification for DSP is 14 January 2014 (being the date of the DSP Claim) to 15 April 2014 (being 13 weeks after the date of the DSP Claim) (Relevant Period).[3]

    [3] See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] and [8].

    Medical evidence

16. Set out below is a summary of the medical evidence relevant to Ms Lindsay’s application as it relates to Ms Lindsay’s medical conditions up to and including the Relevant Period:  refer to paragraphs 14 and 15 above.

    Letter from Dr John Kemp,  Consultant Psychiatrist, to Dr Myo Maung, General Practitioner, dated 27 November 2013

17. In a letter to Dr Myo Maung, General Practitioner, dated 27 November 2013, Dr John Kemp, Consultant Psychiatrist, stated the following in relation to Ms Lindsay:

    ……Kellie is a lady who has been treated through the mental health services over a number of years and she has quite a long history of a very mixed picture of affective disorder, psychosis and personality difficulties, with periods of chaotic behaviour.  She also has significant problems with substance abuse and is currently maintained on methadone via Next Step.

    ……..She has long-standing difficulties with morbid obesity and her compliance with treatment and medication in the past has tended to be erratic up until about 12 months ago, when she has been much more reliable.

    Letter from Dr Berny Wijedasa to the Sleep Studies Unit, Sir Charles Gairner Hospital, dated 20 December 2013

18. In a letter to the Sleep Studies Unit, Sir Charles Gairdner Hospital, dated 20 December 2013, Dr Berny Wijedasa, General Practitioner, stated that continuous positive airway pressure had resulted in minimal improvement to Ms Lindsay’s sleep apnoea and that she was having “severe symptoms with daytime somnolence” and had “put on weight over the last few months”.

    DSP Medical Report from Dr John Kemp, dated 30 December 2013

19. In a Centrelink “Medical Report Disability Support Pension”, dated 30 December 2013, Dr John Kemp recorded that Ms Lindsay had been his patient since 2011 and a patient of his practice since 2001. Dr Kemp described Ms Lindsay’s condition with the most impact as “Bipolar Disorder + Temporal Lobe Epilepsy (2004) + Poly Substance abuse (2001)” with a date of onset of June 2011 and with a confirmed diagnosis based on his own specialist opinion.

20. Dr Kemp reported that “current treatment” for Ms Lindsay’s condition was follow up with Kalgoorlie Mental Health Clinic since 2001, medication (sodium valproate and quetiapine) since 2011 and Next Step since 2001, “past treatment” was “multiple inpatient admissions to the Kalgoorlie Psychiatric Unit” and “planned treatment” was “continued psychiatric follow up”.

21. Dr Kemp also reported that “current symptoms” of Ms Lindsay’s condition were “poor concentration, ruminations” and the impact on Ms Lindsay’s “ability to function” was “lack of motivation” which was expected to persist from more than 24 months and remain unchanged over that period. Dr Kemp also noted that Ms Lindsay’s initial episode of bipolar disorder/psychosis was “probably related to Temporal Lobe Epilepsy + Substance”.

    Diagnostic imaging report from Dr Eric Brecher, Consultant Radiologist, dated 8 February 2014

22. A diagnostic imaging report from Dr Eric Brecher, Consultant Radiologist, dated 8 February 2014, states:

    Report:

    There is no evidence of an acute fracture or subluxation of the lumbar spine. There is minimal degenerative disc disease located at the L4-L5 and L5-S1 levels.  There is mild levoconvex scoliosis of the mid and lower lumbar spine.  Both sacroillac joints are normal.

    The pelvic bones are normal.  There is bilateral femoroacetabular impingement.  There is no evidence of arthritis of either hip.  There is moderate degenerative change of the symphysis pubis.

    Impression:

    There is bilateral femoroacetabular impingement.  The lumbar spine is essentially normal.

    DSP Medical Report from Dr John Kemp, dated 16 April 2014

23. In a Centrelink “Medical Report Disability Support Pension”, dated 16 April 2014, Dr Kemp described Ms Lindsay’s condition with the most impact as “Bipolar affective disorder (2010), Temporal lobe Epilepsy (2004)” with a date of onset of 2010 and with a confirmed diagnosis based on his own specialist opinion.

24. Dr Kemp reported that “current treatment” for this condition was sodium valproate 1500mg daily since January 2013, Seroquel 200mg since 2009 and “Mental Health outpatient clinic follow up’” and that “past treatment” was “multiple inpatient admissions to the Kalgoorlie Psychiatric Unit’. Dr Kemp recorded that Ms Lindsay had been referred to three psychiatrists, and future/planned treatment was continued psychiatrist follow up.

25. Dr Kemp also reported that “current symptoms” of Ms Lindsay’s condition were “poor concentration, ruminations, easily agitated” and the impact on her “ability to function” was lack of motivation and poor concentration, which was expected to persist for more than 24 months and remain unchanged over that period.

26. Dr Kemp further reported that Ms Lindsay’s second condition as “narcotic abuse (INACTIVE since about 1993)”, that “current treatment” was methadone 42.5ml per day and “Next Step” commenced in 1997 and “current symptoms” were nil.  No impact on Ms Lindsay’s ability to function was recorded by Dr Kemp.

    Thoracic spine x-ray report from Dr Ansu Abraham, Consultant Radiologist, dated 28 April 2014

27. A thoracic spine x-ray report from Dr Ansu Abraham, Consultant Radiologist, dated 28 April 2014, reports the following findings:

    The visualised vertebral bodies were of normal height and alignment.

    I note the clinical history tenderness in the lower thoracic spine however the radiograph remains unremarkable.

    The disc space maintained.  Paravertebral soft tissue within normal limits.  Very early degenerative changes noted at the mid dorsal vertebrae.

    Medical Report from Dr Myo Maung, General Practitioner, dated 30 April 2014

28. In a Centrelink “Medical Report for Assessor”, dated 30 April 2014, Dr Myo Maung recorded that Ms Lindsay had been his patient since 12 November 2013 and a patient at his practice since 22 July 2004.

29. Dr Maung listed conditions that have a “significant impact” on Ms Lindsay’s “ability to function” as:

    1.    Bipolar Affective Disorder & Temporal lobe epilepsy

    2.    Minimal degenerative disc disease at L4-L5 & L5-S1

    3.    Bilateral femoroacetabular impingement

    4.    Morbid obesity

30. The information recorded by Dr Maung, regarding Ms Lindsay’s bipolar affection disorder, was consistent with Dr Kemp’s previous DSP medical reports, although Dr Maung noted that this condition had a functional impact on Ms Lindsay’s endurance.

31. In relation to Ms Lindsay’s degenerative disc disease, Dr Maung recorded current and past treatment as methadone and panadeine forte PRN, and future/planned treatment as “she will see physiotherapist”. Dr Maung reported the “current symptoms” of this condition were “low back pain & hip pain on & off, clinical history was ‘because of morbid obesity, low back pains & bilateral & hip pain started”, and impact on “ability to function” was “mobility”, which was expected to persist for more than 24 months and fluctuate during that period.

    JCA Report, dated 6 February 2014

32. In their JCA Report, dated 6 February 2014 (February 2014 JCA Report), the JCA assessors (a registered occupational therapist and a registered psychologist) reported, in relation to Ms Lindsay’s bipolar affection disorder, that Ms Lindsay has a review with a psychiatrist at Kalgoorlie Mental Health Service every 4-6 weeks, that she can contact a mental health nurse if required and her symptoms include low mood,  previous suicidal ideation, does not cope with stress, has impacted sleep, low confidence, anger, impacted social interactions, becomes easily agitated, and fixates on the safety of her daughter.

33. The February 2014 JCA Report also recorded Ms Lindsay’s bipolar affective disorder as verified by medical evidence and “fully diagnosed”, but did not assess it as “fully treated” and “fully stabilised” because “possible further pharmaceutical or involving with clinical psychologist could assist stabilise this condition” and there was “limited information in the medical report to confirm regarding current dosages, or review of medication.”

34. The February 2014 JCA Report recorded Ms Lindsay’s epilepsy as verified by medical evidence, but that there was insufficient medical information provided to confirm that it was fully diagnosed, fully treated and fully stabilised.

35. The February 2014 JCA Report also recorded Ms Lindsay’s additional conditions as “Drug Dependence” and “Spinal Disorder – Other”, but noted that:

    No additional medical information was provided within the medical report to confirm condition.

36. The JCA assessors recorded that Ms Lindsay had a work capacity of 0-7 hours per week until 1 August 2014 as a result of her permanent medical condition and assessed her baseline work capacity as 8-14 hours per week of moderate less skilled work with a capacity to increase to 15-22 hours per week within 2 years with intervention and recommended a deferred referral to stream 4 employment services from 1 August 2014.

    JCA Report, dated 19 May 2014

37. In their JCA Report, dated 19 May 2014 (May 2014 JCA Report), the JCA assessors (a registered occupational therapist and a registered psychologist) reported, in relation to Ms Lindsay’s bipolar affection disorder, the same symptoms as reported in the February 2014 JCA Report, and, further, that:

    ·     Ms Lindsay completes self-care tasks and is able to pick up medication and complete shopping;

    ·     Ms Lindsay has limited social interaction but will engage with her neighbour; and

    ·     Ms Lindsay’s condition has been stable (with the assistance of medication) since her discharge from hospital (in 2011 and 2012).

38. The May 2014 JCA Report also recorded that Ms Lindsay’s bipolar affection disorder as fully diagnosed, fully treated and fully stabilised on the basis that she:

    has not been admitted to hospital for over 18 months, does not have in house support, and continues to engage with psychiatrist.

39. In the May 2014 JCA Report, the JCA assessors recommended that Ms Lindsay’s bipolar affection disorder be rated 5 points under Table 5 of the Impairment Tables (Mental Health Function).

40. In relation to Ms Lindsay’s other conditions, the May 2014 JCA Report recorded the following:

    ·     Ms Lindsay’s epilepsy as verified by medical evidence, but that there was insufficient medical information provided to confirm that it was fully diagnosed, fully treated and fully stabilised;

    ·     that there was no additional medical evidence to confirm drug dependence as a condition;

    ·     Ms Lindsay’s spinal disorder was verified and fully diagnosed but not fully treated and fully stabilised as she had not commenced physical based treatment or engaged with a treating health professional; and

    ·     Ms Lindsay’s morbid obesity was verified and fully diagnosed but not fully treated and stabilised as she is due to attend a dietician in June 2014.

41. The JCA assessors reported that Ms Lindsay had a work capacity of 0-7 hours per week until 29 December 2014 while engaging in treatment relating to her spinal condition, and assessed her baseline work capacity as 8-14 hours per week of moderate less skilled work with a capacity to increase to 15-22 hours per week within 2 years with intervention and recommended a deferred referral to stream 4 employment services from 12 December 2014.

    Qualification for DSP – s 94(1)

42. The requirements for qualification for DSP are set out in s 94(1) of the SSA, as follows:

    94       Qualification for disability support pension

    (1)       A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)       one of the following applies:

    (i)        the person has a continuing inability to work;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    …………

    [Emphasis added]

    Impairment – s 94(1)(a)

1. The term “impairment” is not defined in the SSA.  However, s 3 of the Impairment Tables Determination defines “impairment” to mean:

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

2. It is not in dispute that Ms Lindsay suffers from “impairments” (namely, bipolar affective disorder, temporal lobe epilepsy) and, therefore, she satisfies s 94(1)(a) of the SSA.

   20 points under Impairment Tables – s 94(1)(b)

3. A person’s level of impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables Determination.

4. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered: s 6(2) of the Impairment Tables Determination.

5. The “Introduction” to the Impairment Tables sets out that an impairment rating can only be allocated in relation to an impairment if the condition causing the impairment is “permanent” and the impairment is “likely to persist for more than 2 years”: s 6(3) of the Impairment Tables Determination.

6. A condition will be “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and “likely to persist for more than 2 years”: s 6(4) of the Impairment Tables Determination.

7. An “appropriately qualified medical practitioner” means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables Determination.

8. In determining whether a condition has been “fully diagnosed” and “fully treated”, the following must be considered:

   (i)whether there is corroborating evidence of the condition;

   (ii)what treatment or rehabilitation has occurred in relation to the condition; and

   (iii)whether treatment is continuing or is planned in the next 2 years:  s 6(5) of the Impairment Tables Determination.

9. In relation to what is meant by “fully stabilised”, s 6(6) of the Impairment Tables Determination provides:

   Fully Stabilised

   (6)For the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables Determination, a condition is fully stabilized 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.  [Emphasis added]

10. Section 6(7) of the Impairment Tables Determination provides that “reasonable treatment” , for the purposes of s 6(6) of the Impairment Tables Determination, 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.

    Bipolar affective disorder

11. It is not in dispute that Ms Lindsay’s bipolar affective disorder was fully diagnosed, fully treated and fully stabilised as at the Relevant Period.

12. The Tribunal considers that any functional impairment arising from Ms Lindsay’s bipolar affective disorder should be assessed under Table 5 of the Impairment Tables (Mental Health Function).

13. A mental health impairment will attract 5 points under Table 5 of the Impairment Tables if it has “mild” functional impact on activities involving mental health function.  This will be the case where:

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

    (a)self care and independent living;

    ………

    (b)social/recreational activities and travel;

    ……….

    (c)interpersonal relationships;

    ……….

    (d)concentration and task completion;

    ……….

    (e)behaviour, planning and decision-making;

    ……….

    (f)work/training capacity.

14. Evidence regarding the functional impact of Ms Lindsay’s bipolar affective disorder is limited.  Specifically, the evidence in the DSP medical reports from Dr Kemp and Dr Maung regarding the functional impact of Ms Lindsay’s bipolar affective disorder (in combination with her temporal lobe epilepsy and historical substance abuse) including some impact on motivation, concentration and endurance, is limited:  refer to paragraphs 21, 25, 29 and 30 above.  Similarly, the evidence regarding the functional impact of Ms Lindsay’s bipolar affective disorder in the February 2014 JCA report, including impact on mood, social interactions, and levels of agitation, is limited:  refer to paragraphs 32 and 33 above.

15. In short, there is no evidence that Ms Lindsay experienced anything more than a “mild” functional impact on activities involving mental health function (as a result of her bipolar affective disorder) as at the Relevant Period.  Consequently, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is, at most, 5 points.

    Temporal lobe epilepsy

16. It is not in dispute that Ms Lindsay’s temporal lobe epilepsy condition, was fully diagnosed, fully treated and fully stabilised as at the Relevant Period.

17. The SSAT assessed the functional impact of Ms Lindsay’s temporal lobe epilepsy condition under Table 7 of the Impairment Tables (Brain Function): SSAT Decision at [55].

18. The Tribunal considers that the functional impairment of Ms Lindsay’s temporal lobe epilepsy condition should instead be assessed against Table 15 of the Impairment Tables (Functions of Consciousness).  There is no medical evidence indicating that Ms Lindsay has difficulties with some of the descriptors identified in Table 7 (for example memory, attention and concentration, decision-making).  However, to the extent that Ms Lindsay does experience such difficulties, they are likely to be the result of a combination of her mental health condition and her epilepsy. The impairment arising from each of these conditions is more appropriately assessed under Table 5 of the Impairment Tables (Mental Health Function) and Table 15 of the Impairment Tables (Functions of Consciousness).

19. Where two or more conditions cause a common or combined impairment, a single rating should be assigned, and it is inappropriate to assign a separate impairment rating for each condition:  s 10(5) and (6) of the Impairment Tables Determination.  The Guidelines to the Tables for the Assessment of Work-related Impairment for DSP, contained in s 3.6.3 of the Guide to Social Security Law, clarify (at p 25) that when using more than one Table to assess multiple impairments resulting from a single medical condition, care must be taken to ensure that the different Tables are being used to assess separate functional impairments and not the same functional impairment.[4]

    [4] The Tribunal is not bound to apply policy instructions referred to in the Guide to Social Security Law, but it may do so and, indeed, will usually apply the policy instructions unless there are cogent reasons not to: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 639-645 per Brennan J.

20. An impairment involving loss of consciousness or altered state of consciousness will not attract any points under Table 15 of the Impairments Tables where there “is no functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.  This will be the case where:

    (1)  The person does not experience loss of consciousness or an altered state of consciousness during waking hours when occupied with a task or activity.

21. The Tribunal notes the following evidence regarding Ms Lindsay’s temporal lobe epilepsy condition:

    ·     Dr Kemp’s and Dr Maung’s medical reports addressed Ms Lindsay’s bipolar affective disorder and epilepsy as part of the same condition and as having the same functional impact:  refer to paragraphs 19-21, 23-16 and 29 above;

    ·     there is no medical evidence on the functional impact of Ms Lindsay’s temporal lobe epilepsy condition by itself; and

    ·     there is limited general evidence of any functional impact caused by Ms Lindsay’s temporal lobe epilepsy other than her self-reported impacts on mood (anger) (refer to the February 2014 JCA Report in paragraph 34 above) and daydreaming, zoning out, and seeing colours and auras:  refer to paragraph 12 above.

22. There is no medical evidence of the frequency of Ms Lindsay’s claimed episodes of altered state of consciousness, nor is there any medical evidence that there is any residual impact in between these episodes on her activities of daily living, arising from her epilepsy condition. Consequently, the Tribunal finds that Ms Lindsay’s temporal lobe epilepsy attracts zero points under Table 15 of the Impairment Tables.

    Degenerative disc disease

23. Based on the evidence, the Tribunal finds that Ms Lindsay’s degenerative disc disease was not fully diagnosed, fully treated or fully stabilised as at the Relevant Period.  In making this finding the Tribunal refers, in particular, to the following evidence:

    ·     Dr Kemp’s DSP medical report, dated 30 December 2013, does not address this condition:  refer to paragraphs 19-21 above;

    ·     during her 6 February 2014 JCA assessment, Ms Lindsay reported back pain which she believed was the result of weight gain associated with her medication:  refer to paragraphs 32-36 above;

    ·     Dr Brecher’s x-ray report on the lumbar spine and pelvis, dated 8 February 2014, diagnosed Ms Lindsay with bilateral femoroacetabular impingement:  refer to paragraph 22 above;

    ·     Dr Maung’s medical report, dated 30 April 2014, listed the functional impact of this condition as “mobility” and noted that Ms Lindsay would see a physiotherapist:  refer to paragraph 31 above; and

    · as at the Relevant Period reasonable physiotherapy treatment had not yet occurred. Although, Ms Lindsay’s evidence before the SSAT indicates that she has since commenced physiotherapy: SSAT Decision at [56].

24. Consequently, Ms Lindsay’s degenerative disc disease cannot be assigned an impairment rating under the Impairment Tables.

    Drug dependence

25. It is not in dispute that Ms Lindsay’s drug dependence condition was fully diagnosed, fully treated and fully stabilised as at the Relevant Period.

26. Based on the evidence, it is appropriate to consider the functional impairment of Ms Lindsay’s drug dependence condition under Table 6 of the Impairment Tables (Functioning related to Alcohol, Drug and Other Substance Use).

27. An impairment involving alcohol, drug or substance abuse will not attract any points under Table 6 of the Impairments Tables where there “is no functional impact from alcohol, drugs or other harmful substance use”.  This will be the case where:

    (1)  The person:

    (a)is able to reliably attend and effectively participate in work, education and training activities; and

    (b)attends all aspects of personal care and daily living tasks.

28. Based on the evidence, Ms Lindsay’s drug dependence condition has no functional impact and attracts no points under Table 6 of the Impairment Tables.  More specifically, the Tribunal notes the following evidence in relation to the functional impact of Ms Lindsay’s drug dependence condition:

    ·     in his DSP medical report, dated 30 December 2012, Dr Kemp listed “poly­-substance abuse (2001)” and bipolar affective disorder as the condition with the most impact on Ms Lindsay, and recorded the sole functional impact of these conditions as “lack of motivation”:  refer to paragraphs 19-21 above;

    ·     during her JCA assessment, on 6 February 2014, Ms Lindsay denied any ongoing drug use (including alcohol); and

    ·     in his DSP medical report, dated 16 April 2014, Dr Kemp listed narcotic abuse as a separate condition, noted that it was inactive since about 1997, and recorded no symptoms or functional impact:  refer to paragraph 26 above.

    Morbid obesity

29. There is no evidence of Ms Lindsay being diagnosed with morbid obesity as at the Relevant Period.  Dr Maung’s medical report, dated 16 April 2014, listed morbid obesity as a condition causing functional impact. However, Dr Maung appears to have considered obesity as a factor causing Ms Lindsay’s degenerative disc disease as opposed to a condition resulting in its own functional impact:  refer to paragraph 31 above.

30. There is no evidence of any treatment being undertaken by Ms Lindsay for morbid obesity, nor is there any evidence that it results in a functional impairment other than back pain, which has been addressed above.

31. Consequently, Ms Lindsay’s condition of morbid obesity was not fully diagnosed, fully treated and fully stabilised as at the Relevant Period such that Ms Lindsay cannot be assigned any points under the Impairment Tables for this condition.

    Total impairment rating

32. In summary, the Tribunal finds that Ms Lindsay’s “impairments” attracted a total of 5 points under the Impairment Tables (as at the Relevant Period), as follows:

    ·     bipolar affective disorder - 5 points under Table 5;

    ·     temporal lobe epilepsy- 0 points under Table 15;

    ·     drug dependence - 0 points under Table 6;

    ·     degenerative disc disease - not fully diagnosed, fully treated and fully stabilised; and

    ·     morbid obesity - not fully diagnosed, fully treated and fully stabilised.

    Continuing inability to work – s 94(1)(c)

33. Since the Tribunal considers that Ms Lindsay’s impairments do not attract ratings of at least 20 points under the Impairment Tables as at the Relevant Period, it is unnecessary to consider whether Ms Lindsay has a “continuing inability to work”, as required by s 94(1)(c) of the SSA.

34. However, for completeness, the Tribunal notes that since, based on the evidence, Ms Lindsay has not actively participated in a program of support for the required amount of time, she is not unable to work 15 hours per week with the assistance of a program of support within the next 2 years, she is not prevented, because of her impairments, from participating in a training activity, Ms Lindsay does not satisfy s 94(2)(aa), s 94(2)(a) or s 94(2)(b) of the SSA and does have a “continuing inability to work”, as required by s 94(1)(c) of the SSA.

    DECISION

35. For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 77 (seventy seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

..............[sgd D Brodie]..........................................................

Administrative Assistant

Dated 21 August 2015

Date of hearing	18 August 2015
Representative for the Applicant	Self
Representative for the Respondent	Mr D Carroll
Solicitors for the Respondent	Australian Government Solicitor