Lonie and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4658

Lonie and Secretary, Department of Social Services (Social services second review) [2022] AATA 4658 (16 December 2022)
Division:GENERAL DIVISION
File Number(s):2021/6425
Re:Tyler John Lonie
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member B Cullen
Date:16 December 2022
Place:Brisbane

The decision under review is affirmed.
...................................[SGD].....................................
Senior Member B Cullen

Catchwords
SOCIAL SECURITY — Disability Support Pension — where Applicant does not meet the 20-point impairment rating — decision under review affirmed.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534; [2007] FCAFC 130
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member B Cullen
16 DECEMBER 2022
Consideration
BACKGROUND

On 1 February 2018, Mr Lonie (the Applicant), lodged a claim for disability support pension (DSP) with the Respondent in respect of “fibromyalgia, chronic fatigue, sleep apnoea, irritable bowel syndrome, insomnia, brain fog, chronic pain, and restless leg syndrome”.[1] The Applicant’s claim for DSP was rejected by Services Australia on 17 February 2018, on the basis that the Applicant did not have an impairment rating of at least 20 points.[2]
[1] Exhibit 1, T Documents, T37, pages 151–156.
[2] Exhibit 1, T Documents, T72, pages 371–372.
On 14 December 2018, the Applicant’s DSP claim and file was reassessed by a rehabilitation counsellor and registered psychologist for the purposes of a Job Capacity Assessment Report (JCA). The JCA, dated 20 December 2018, recommended that the Applicant’s fibromyalgia be assigned 10 points under Table 1, and further recommended that the Applicant’s psychiatric disorder (schizotypal personality disorder) was fully diagnosed, but was not fully treated and stabilised.[3]
[3] Exhibit 1, T Documents, T50, pages 190–199.
On 21 February 2019, the decision to reject the Applicant’s claim for DSP dated 2 February 2018 was affirmed by an Authorised Review Officer (ARO).[4] The Applicant sought review of the decision by the AAT1, which set aside the decision under review on 11 June 2019.[5]
[4] Exhibit 1, T Documents, T72, pages 377–381.
[5] Exhibit 1, T Documents, T52, pages 201–211.
The AAT1 found that both the Applicant’s fibromyalgia and psychiatric disorder were fully diagnosed, treated, and stabilised, and caused impairments attracting 10 points under Table 1 (fibromyalgia) and 10 points under Table 5 (psychiatric disorder) of the Impairment Tables.[6] Further, the AAT1 found that the Applicant was unlikely to be able to work for fifteen (15) hours per week or more within a period of two (2) years from the date of claim or undertake a training activity likely to develop this level of work capacity. The AAT1 remitted the matter to the Agency to determine whether the Applicant satisfied the applicable program of support requirements.[7]
[6] Ibid, [30], [45].
[7] Ibid.
The Respondent sought review of the AAT1 decision. During this period, the Respondent requested that the Applicant be examined by Dr Phillip Vecchio, a Rheumatologist. The Applicant was examined by Dr Vecchio on 19 February 2020, and a report was prepared by Dr Vecchio on the same date. In his report, Dr Vecchio concluded that the Applicant’s fibromyalgia was fully diagnosed, treated, and stabilised, and met the criteria for 10 points, but not 20 points, under Table 1.[8]
[8] Exhibit 1, T Documents, T67, pages 280–293.
The General Division of the Tribunal set aside the AAT1 decision on 22 April 2020, substituting a decision that the Applicant did not quality for DSP on the basis that his psychiatric condition was not fully treated or fully stabilised during the qualification period. The basis for the decision was that, despite being diagnosed with a psychiatric condition, the Applicant had not accepted the various recommendations of his medical practitioners in relation to medication.[9]
[9] Exhibit 1, T Documents, T55, Reasons for Decision dated 19 May 2020, pages 214–220.
The current Application before the Tribunal
On 27 August 2020, the Applicant lodged a further claim for DSP, in respect of several conditions, including: Fibromyalgia; Costochondritis; Irritable bowel syndrome; Schizotypal personality disorder; Celiac disease; Allodynia; Mild scoliosis; Tunnelling chest syndrome; Postural hypotension; Chronic fatigue syndrome.[10]
[10] Exhibit 1, T Documents, T57, pages 228–241.
The Applicant’s further claim for DSP was rejected by Services Australia on 16 September 2020, on the basis that the Applicant did not provide sufficient medical evidence to enable assessment of his claim.[11]
[11] Exhibit 1, T Documents, T59, pages 245–246.
The Applicant requested review of the 16 September 2020 decision. On 27 November 2020, an ARO affirmed the decision to reject the Applicant’s claim for DSP lodged on 27 August 2020. The ARO found that the Applicant’s fibromyalgia was fully treated, diagnosed, and stabilised, but considered that there was insufficient evidence to be able to assign an impairment rating. Further, the ARO found the Applicant’s schizotypal personality disorder was fully diagnosed, however the Applicant could not be assigned an impairment rating as the condition was not fully treated and stabilised. In relation to the Applicant’s conditions of costochondritis, irritable bowel syndrome, celiac disease, allodynia, mild scoliosis, postural hypotension, tunnelling chest syndrome and chronic fatigue syndrome, the ARO found that the conditions were not fully diagnosed, treated, and stabilised.[12]
[12] Exhibit 1, T Documents, T57, pages 228–241.
The Applicant applied to the AAT1 for review of the 27 November 2020 decision and filed further evidence including a copy of Dr Vecchio’s 19 February 2020 report that had been prepared for the earlier review proceedings.[13] He filed further evidence in support of his application, including a copy of Dr Vecchio’s report dated 19 February 2020.
[13] Exhibit 1, T Documents, T64, pages 264–265.
On 6 August 2021, the AAT1 affirmed the decision under review, finding that the Applicant’s psychiatric conditions (including anxiety, depression, and schizotypal personality disorder) were fully diagnosed, but were not fully treated and stabilised. Therefore, the psychiatric conditions could not be assigned an impairment rating. In relation to the Applicant’s fibromyalgia, the AAT1 found that the condition was fully diagnosed, treated, and stabilised, attracting 10 points under Table 1 of the Impairment Tables.[14]
[14] Exhibit 1, T Documents, T2, pages 6–16.
On 8 September 2021, the Applicant applied to the Tribunal for review of the 6 August 2021 AAT1 decision.[15]
[15] Exhibit 1, T Documents, T1, pages 1–5.
The Tribunal held a hearing on 4 August 2022, where the Applicant appeared with his Representative, Mr Michael Tansky, a counsellor with the Disability Royal Commission Team at Micah Projects. The Applicant attended with a support person, Mr Ladislav Strcula, who provided a Statement dated 3 June 2022. Mr Strcula is the Applicant’s 71-year-old neighbour and an important part of the Applicant’s support network. Mr Strcula says that he assists the Applicant with cooking, washing clothes and linen, shopping, hygiene, and cleaning, as the Applicant is “unable to do these things himself when he is feeling nerve pain”.[16] Mr Strcula also says that he prompts the Applicant to remember about appointments, bills, and checking the mail.[17] The Respondent did not require Mr Strcula for cross-examination.
[16] Statutory Declaration of Ladislav Strcula, dated 3 June 2022.
[17] Ibid.
In addition to Mr Strcula’s Statutory Declaration dated 3 June 2022, the Applicant’s own evidence (including the Statutory Declaration dated 3 June 2022), Dr Vecchio’s 19 February 2020 report, and the material contained in the “T-documents”, the Tribunal has considered the following additional evidence (filed in the Tribunal on 15 June 2022 by the Applicant through his Support Worker):
·Submissions dated 15 June 2022;[18]
·Report of Dr Imran Kajani (General Practitioner) dated 12 June 2022;[19] and
·Arts Therapy Progress Review Report dated 9 June 2022.[20]
[18]   Exhibit 3.1.
[19]   Exhibit 7.1.
[20]   Exhibit 7.2
Decision under review
The decision under review is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 6 August 2021, which affirmed a decision of Services Australia (the Agency) to reject the Applicant claim for the Disability Support Pension (DSP) lodged on 27 August 2020.[21]
[21] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 6–16.
Issues
Whether, at the date of claim of 27 August 2020, or within thirteen (13) weeks thereafter:
(a)the Applicant had a physical, intellectual or psychiatrist impairment(s) for the purpose of section 94(1)(a) of the Social Security Act 1991 (Cth) (the Act); and
(b)If so, whether the Applicant's condition(s) were fully diagnosed, fully treated, and fully stabilised (FDTS) and caused impairment(s) which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination) for the purpose of section 94(1)(b) of the Act; and
(c)If so, whether the Applicant had a 'continuing inability to work' as defined in section 94(2) of the Act for the purpose of 94(1)(c) of the Act.[22]
Relevant Legislation[23]:
·Social Security Act 1991 (Cth).[24]
·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.[25]
·Social Security (Administration) Act 1999 (Cth).[26]
·Social Security (Active Participation for Disability Support Pension) Determination 2014.[27]
·Guide to Social Security Law.[28]
[22]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 1, [2].
[23]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 3, [15].
[24]    Act No. 46 of 1991, C2022C00165, registered 11 May 2022.
[25]    F2011L02716, registered 16 December 2011.
[26]    Act No. 191 of 1999, C2022C00161, registered 2 May 2022.
[27]    F2015L00001, registered 2 January 2015.
[28]    Refer to Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 3, [16].
The date for determining whether the Applicant meets the Section 94 Requirements is the date of his claim (27 August 2020), unless the Applicant becomes qualified within thirteen (13) weeks of lodging the claim, in which case, his start date is the day he becomes qualified.[29] Therefore, in-order-to qualify for DSP, the Applicant must have met the Section 94 Requirements between 27 August 2020 and 26 November 2020 (the Qualification Period).
[29] See ss 41 and 42, and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
When making a decision about whether the Applicant meets the Section 94 Requirements, the Tribunal can only consider medical evidence that relates to the functional impact of the Applicant’s impairments after the Qualification Period to the extent that it “may cast light on” the functional impact of the impairments within the Qualification Period.[30]
DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[30] See Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404, [1], and on appeal, Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534; [2007] FCAFC 130; Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123.
What is an Impairment?
The Determination contains the rules for applying the Impairment Tables and defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” to mean “a medical condition”.[31]
[31] Determination, s 3.
Consideration of Impairment
At the hearing, and in its Statement of Facts and Contentions, the Respondent accepted that the Applicant had impairments consisting of fibromyalgia and psychiatric conditions, which satisfied section 94(1)(a) of the Act during the Qualification Period.[32]
[32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 7.
Considering the above evidence, the Tribunal finds that during the Qualification Period, the Applicant had fibromyalgia and psychiatric conditions which are impairments for the purposes of the Act. Therefore, the requirements in section 94(1)(a) of the Act have been met.
DO THE APPLICANT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act.[33] They are function-based,[34] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[35]
[33] Determination, ss 4(2) and 5(2)(a).
[34] Determination, s 5(2)(b) and (c).
[35] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[36]
- the condition causing that impairment is “permanent”; and
- the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two (2) years.
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[37]
[37] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368, [12].
The Applicant’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[38]
- The condition has been “fully diagnosed” by an appropriately qualified medical practitioner;
- The condition has been "fully treated”;
- The condition has been “fully stabilised”; and
- The condition is more likely than not, in light of the available evidence, to persist for more than two (2) years.
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”,[39] the following is to be considered:[40]
- Whether there is corroborating evidence for the condition;
- What treatment or rehabilitation has occurred in relation to the condition; and
- Whether treatment is continuing, or is planned, in the next two (2) years.
A condition is fully stabilised[41] if:[42]
(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 two (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 two (2) years is not expected to result, even if the person undertakes reasonable treatment;[43] or
[41] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[42] Determination, s 6(6).
[43] For “reasonable treatment”, see s 6(7) of the Determination.
(ii) There is a medical or other compelling reason for the person not to undertake reasonable treatment.
In relation to the Applicant’s impairments, the Respondent’s position at hearing was that:
- The Applicant’s fibromyalgia was fully diagnosed, treated, and stabilised in the qualification period, and attracted an overall impairment rating of 10 points under Table 1, and therefore did not satisfy s.94(1)(b) of the Act;
- The Applicant’s psychiatric condition of ‘Schizotypal Personality Disorder’ was fully diagnosed during the qualification period, on the basis of the report of Dr Jatinder Randhawa, Psychiatrist, dated 31 January 2018;[44]
- The Applicant may also suffer from anxiety and depression, however these conditions could not be regarded as fully diagnosed during the Qualification Period in the absence of a diagnosis by a psychiatrist or clinical psychologist, as required by the Introduction to Table 5 of the Impairment Tables; and
- As the Applicant’s psychiatric conditions were not fully treated and fully stabilised during the Qualification Period, they cannot be assigned a rating under the Impairment Tables.
Although the Respondent acknowledged that the Applicant has engaged in some treatment for his psychiatric conditions, it contends that the Applicant has not engaged in consistent treatment of a psychological, psychiatric, or pharmacological nature during the Qualification Period. Accordingly, the Respondent asserts that the Applicant’s psychiatric conditions were not fully diagnosed, treated, and stabilised during the Qualification Period, and therefore should not be assigned an Impairment Rating using the Impairment Tables.
The Applicant’s Medical Conditions
Application of the Impairment Tables to the Applicant’s fibromyalgia
The Tribunal must assess the level of impact of the Applicant’s fibromyalgia against the descriptors (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in-order-to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
·The impairment of a person must be assessed on the basis of what the person can, or could do, and not on the basis of what the person chooses to do, or what others may do for the person.
·The Tribunal is obliged by the Determination to take the following information into account when applying the Tables:
othe information provided by the health professionals specified in the relevant Table; and
oany additional medical or work capacity information that may be available; and
oany information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
The Tribunal must not take into account, when applying the Tables, symptoms reported by the Applicant in relation to his condition if there is no corroborating evidence.
Which Tables are appropriate is a matter to be determined by:
·identifying the loss of function; then
·referring to the Table related to the function affected; then
·identifying the correct impairment rating.
·Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
·If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
·The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis, and not only once, or rarely.
·Where a person's diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.

The Respondent assessed the Applicant’s fibromyalgia under Table 1 – Functions requiring Physical Exertion and Stamina.
Table 1 rating – Functions requiring Physical Exertion and Stamina
To attract 10 points under Table 1, the Tribunal must be satisfied that the Applicant:
(1)   (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)   use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)   perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).
Further, in order for the Tribunal to assign 10-points, it must be satisfied that the Applicant meets at least one of the descriptor points (1)(a)(i) or (1)(a)(ii), as well as meeting both descriptor points (1)(b)(i) and (1)(b)(ii).
To attract 20 points under Table 1, the Tribunal must be satisfied that the Applicant:
(1)(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Further, in order for the Tribunal to assign 20-points, it must be satisfied that the Applicant meets at least one of the descriptor points (1)(a)(i), (1)(a)(ii), (1)(a)(iii) and (1)(a)(iv), as well as meeting the descriptor point (1)(b).
The Respondent referred the Tribunal to several passages from the 19 February 2020 report (prepared approximately six (6)-months prior to the Qualification Period) of Dr Vecchio[45]:
[45]   Exhibit 1, T Documents, T67, pages 284–285.
“Mr Lonie admits to having difficulty with self-care, and nominates that he struggles to look after himself, so relying on others to assist changing the bed clothes, do his washing and cook meals. He currently lives alone in a small government-subsidised apartment and an older neighbour assists with various tasks essential to domestic life. This difficulty extends to shopping although he is able to walk several hundred metres, access a shopping centre from its car park and achieve goals which require short term walking, Mr Lonie is able to, and does, use public transport.”
“The required criteria for 20 points (severe functional disturbance) are only very partially met in that Mr Lonie:
1. is able to walk around a shopping centre without assistance (not met).
2. is able to walk from the carpark into a shopping centre without assistance (not met).
3. He is able to use public transport without assistance (not met).
4.        He would sometimes be unable to light day to day household activities (partially met). Mr Lonie offered the history that his neighbour assists with much of his household tasks and I have no direct knowledge of whether this is corroborated or not; one would have to observe the performance, or attempt thereof, of the domestic chores requiring assistance and/or interview the neighbour. The background to interpreting the Table ratings requires that the recognition of impairment resides in whether a person can be reasonably expected to perform that activity, rather than allowing others to assist. Here, it is blurred: I would assume Mr Lonie should be able to perform simple household tasks such as changing bed sheets, cleaning of a small apartment and meal preparation, based on his appearance and status. I agree that pain and fatigue may interrupt the intention, pace and flow, but unlikely negate staggered achievement of these goals over a period of time.
5.        He would have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours (met).
As not all of the criteria are met within the applicable Table, I understand the points rating defer to the immediately lower rating of 10 points, where he does comply with the tenets articulated. Whilst I find Mr Lonie to be very significantly disabled by self-report, as it will be revealed below, does not meet the criteria as distinguished in the Table as described.”
The Respondent contends that Dr Vecchio’s evidence supports a conclusion the Applicant has difficulty performing day to day household activities, rather than being unable to perform light day to day household activities (as required by (1)(a)(iv) of the 20-point descriptor). The Respondent flags that Dr Vecchio was specifically asked to consider whether the Applicant satisfied the descriptors for a 20-point rating under Table 1. Dr Vecchio concluded that the Applicant did not meet the 20-point threshold but does have a level of impairment consistent with a 10-point rating level.
At the hearing, the Applicant explained to the Tribunal that since the time of Dr Vecchio, he had managed to obtain mobility allowance. This allows him to travel to important appointments without having to use public transportation, as he can use taxis and ride-share services.[46] The Applicant is hopeful that the evidence he receives mobility allowance will allow the Tribunal to find that his self-reporting of being unable to use public transport without assistance is capable of meeting the threshold to assign 20-points, as the self-reporting is then corroborated.
[46] Transcript, P-16, lines 18–26.
Mobility allowance is, according to the Australian Government Department of Social Services website, “is a social security payment paid to people with a disability, aged 16 or over, who cannot use public transport without substantial assistance and are required to travel to and from their home in order to undertake approved activities, which include work, study, training or job search.”[47]
[47] Department of Social Services, ‘Mobility Allowance (MOB)’, Disability and Carers (Web Page, 8 November 2022), <>
The Medical Report to support the Application for Mobility Allowance is dated 13 September 2021 and is signed by Dr Jeeda Pincombe from the Brookside Family Clinic. The Medical Report is well outside the Qualification Period (27 August 2020 and 26 November 2020) and therefore cannot, as flagged by the Tribunal during the hearing, be evidence of what the Applicant’s level of impairment was during the Qualification Period.[48]
[48] Transcript, P-17, lines 6–14.
Regardless, the Tribunal’s view is that the Medical Report from Dr Pincombe does not support a finding that the Applicant’s fibromyalgia is the reason for the Applicant’s having obtained mobility allowance. The Medical Report form asks that the completing professional consider the Applicant’s “physical disabilities” in relation to the level of difficulty affecting their ability to use public transport. The Medical Report says that the Applicant has “No Difficulty” walking 400 metres or crossing streets and negotiating curbs. The Applicant has “Minor Difficulty” “Crossing streets and negotiating kerbs”. The Applicant has “Moderate Difficulty” standing on public transport, sitting in public transport, and negotiating a large flight of stairs. There are no areas where Dr Pincombe found that the Applicant’s fibromyalgia caused “Serious Difficulty” or “Cannot Do”, in relation to the physical impairment.
The Medical Report from Dr Pincombe makes it plain that the Applicant obtained mobility allowance on the basis of his psychiatric disabilities – “Schizotypal personality disorder. Generalised anxiety disorder. These cause trouble leaving the house. Has social anxiety.” The Medical Report form asks that the completing professional consider the Applicant’s “psychiatric/intellectual disabilities” in relation to the level of difficulty affecting their ability to use public transport. The Medical Report says that the Applicant has “Full Ability” with “personal survival skills – e.g. not a danger to self”. The Applicant has “Slightly Limited” ability in “Recognition skills – e.g. ability to recognise landmarks or areas”. The Applicant is “Moderately Limited” in the area of “Educational skills – e.g. ability to handle money or buy tickets”. Finally, the Medical Record concluded that the Applicant is “Severely Limited” om area of “Social skills – e.g. ability to relate to bus drivers or public”.
Although the Medical Report does refer to the Applicant experiencing “Discomfort physically due to pain with standing (prolonged), prolonged sitting or physical activity,” the Tribunal is not prepared to find on the basis of the evidence before it that the Applicant is unable to walk around a shopping centre or supermarket without assistance; or walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or perform light day to day household activities (e.g. folding and putting away laundry or light gardening). Further, and importantly in relation to the Applicant’s argument here in relation to fibromyalgia, the Tribunal is not prepared to find that the evidence about the Applicant’s receipt of Mobility Allowance would support a conclusion that the Applicant is receiving the benefit due to his fibromyalgia. The report from Dr Pincombe indicates that the only area where the applicant has severely limited skills is in the social skills area, attributable to his psychiatric conditions. The Tribunal is therefore not satisfied that the Applicant was unable, during the Qualification Period, to perform the tasks set out in Table 1 (1)(a)(iii) (use public transport without assistance), on the basis of his fibromyalgia.
The Applicant refers to travelling on public transport as an experience that triggers anxiety.[49] While the Tribunal can understand how that may be the case on the basis of Dr Pincombe’s Report, there is no medical evidence before the Tribunal that is capable of supporting a finding that the Applicant cannot walk, mobilise, or perform day-to-day tasks, even if he requires reminders and some assistance on occasion. The evidence before the Tribunal from Mr Strcula is that he provides assistance when the Applicant is feeling nerve pain, not continuously. Dr Vecchio’s evidence is, as set out above, that the Applicant should be able to perform simple household tasks such as changing bed sheets, cleaning of a small apartment and meal preparation, as long as he staggers achievement of these goals over a period of time.
[49] Transcript, P-16, lines 46–47.
There is no medical evidence indicating that the Applicant is unable to perform the tasks set out in Table 1 (1)(a)(i), (1)(a)(ii), (1)(a)(iii) and (1)(a)(iv).
On this basis, the Tribunal is not able to find that the Applicant has difficulty with most of the descriptors under “severe functional disturbance” in the table. Therefore, the Tribunal finds that the Table 1 impairment rating in relation to the Applicant’s fibromyalgia is 10 points.
The Applicant’s Psychiatric Conditions
The Tribunal must consider the Applicant’s medical history, and the evidence given by him at the Tribunal hearing, in-order-to make a decision about whether his psychiatric conditions were fully treated and stabilised.
Anxiety and depression
The Respondent’s position in relation to the Applicant’s “anxiety and depression” is that these conditions cannot be regarded as fully diagnosed during the Qualification Period, without the support of a diagnosis by a psychiatrist or clinical psychologist, as required by the Introduction to Table 5 of the Impairment Tables.
The Tribunal notes that the Applicant has provided a letter from Dr Imran Kajani at the Brookside Family Clinic dated 12 June 2022, which refers to his having significant anxiety:
Although [the Applicant] arrived with only 15 minutes left for his appointment, I had spent over 40 minutes with him trying to figure out exactly what he needed. This is was primarily due to significant anxiety present, but also a significant amount of tangentiality, derailment and flight of ideas. This may be related to his previously diagnosed Schizotypal personality disorder, however he would need a Psychiatrist to make a more definitive comment on this.[50]
[50] Exhibit 7.1.
The Applicant has also provided a report from his art therapist, Tara Harriden, dated 9 June 2022. Ms Harriden is a “Professionally Registered Arts Therapist & Clinical Supervisor” with a Master of Mental Health but is not a psychiatrist or clinical psychologist. Ms Harriden expresses a view that:
However, I believe that despite his great strides toward recovery, [the Applicant] will need ongoing mental health treatment for the foreseeable future. Prescription medication, particularly anti-depressants which have caused significant adverse reactions for Tyler when he has taken them, should not be considered the only viable treatment in Tyler’s case. Tyler’s resistance to using anti-depressants is based on previous experience with such and is not an expression of general resistance to treatment. Indeed, [the Applicant] has sought, and found, treatment methodologies – such as Arts Therapy that have proven to be viable and efficacious.
The Tribunal considers the Applicant’s success with art therapy to be positive, but as the diagnosis of the Applicant’s “anxiety and depression” must come from a psychiatrist or clinical psychologist, the Tribunal cannot accept either Dr Kajani’s 12 June 2022 report, nor Ms Harriden’s art therapy report, as evidence that the Applicant has been diagnosed with anxiety and depression. Dr Kajani’s report refers to anxiety being present, but does not state a diagnosis, and says that a psychiatrist is needed to make a definitive comment. Dr Kajani is not a psychiatrist or clinical psychologist.
It is also the case that the evidence of both Dr Kajani and Ms Harriden falls well outside the Qualification Period (dated respectively 27 August 2020 and 26 November 2020).
On this basis, in the absence of evidence supporting the diagnosis of anxiety and depression during the Qualification Period, the Tribunal finds that that the Applicant’s anxiety and depression were not fully diagnosed during the Qualification Period.
Schizotypal personality disorder
The Respondent accepts, on the basis of the 31 January 2018 Report by Dr Jatinder Randhawa, Psychiatrist, that the Applicant’s psychiatric condition of schizotypal personality disorder was fully diagnosed during the Qualification Period but asserts that it was not fully treated and stabilised.[51]
[51] Exhibit 1, T Documents, T49, pages 189.
The Respondent has outlined the evidence that it says supports the Tribunal finding that the Applicant’s schizotypal personality disorder was not fully treated and stabilised, in its Statement of Facts, Issues and Contentions[52]:
[52] Respondent’s Statement of Facts, Issues and Contentions, [8]–[10].
·     6 August 2013 Report of Nicole Martin, provisional psychologist[53] - provided a potential diagnosis of Schizotypal Personality Disorder. Recommended referral to a psychiatrist to explore potential benefits of medication to assist his daily functioning.
[53]   Exhibit 1, T Documents, T11, page 89.
·     16 September 2015 Job Capacity Assessment Report:[54]
[54]   Exhibit 1, T Documents, T22, pages 126.
Past treatment: MR notes Psychologist, attended Valley Mental Health - date uncertain (in last 2 years). Taylor reported taking St John's Wort, seeing provisional Psychologists Nicole Martin and Carla Hopper (several sessions in 2013), one visit to Valley Mental Health and took 1 antidepressant tablet end 2012 but immediately ceased taking any more due to negative side effects.
Current treatment: MR notes support from Youth Worker at Brisbane Youth Service ongoing. Tyler also reported self-therapy and various alternate interventions including Chi Gong, Dietary Modification, Mind techniques.
Future treatment: MR notes re-refer to Psychologist at Brisbane Youth Service.
Prognosis: MR notes that impact on functionality expected to be persist for more than 20 months and expected to fluctuate.
As diagnosis has not been confirmed by either a Psychiatrist/Clinical Psychologist and Tyler has not trialled medication for ongoing period, condition is not deemed fully diagnosed, treated or stabilised. It is plausible that with ongoing Psychiatric/Clinical Psychologist and Medication, symptoms and functionality may improve.
·     31 January 2018 report of Dr Jatinder Randhawa, psychiatrist confirming diagnosis of Schizotypal Personality Disorder:[55]
Tyler was seen for the first time on 21/11/17 and was re-booked for further assessment, but he didn’t make it for his second appointment. I am not surprised by his no show as he was adamant that he didn’t suffer from Schizotypal personality Disorder and didn’t wish to trial Endep or an SSRI for his fibromyalgia.
On the other hand, he wanted to stay on Lyrica and Tranadol. I seriously questioned his psychological mindedness, and going by that, I believe he wouldn’t have benefitted much from CBT that he saw a psychologist for. His main focus was to obtain a certificate for DSP. Tyler continues to meet the criteria for Schizotypal Personality disorder such as Schizophrenia, but there is no evidence of delusions, hallucinations or thought disorder at the present time. He disagreed with my psychiatric opinion.
His condition doesn’t make him unfit from entering the workforce. Hence, it’s really hard for me to support his DSP application. He is heavily spiritually rooted in his daily life and smokes cannabis depending upon the availability…I would like to believe that he is suitable for a trial of Endep, low dose to begin with and aiming for very slow titration. He has trialled an SRI with a psychiatrist long time ago and didn’t have a good experience (he said, “it scared the fuck out me”). I imagine he is less likely to trial a psychotropic. If he were to engage with a therapist in a consistent manner, one could expect Tyler to develop better insight into his condition, but am not hopeful of him doing it.
There is nothing more I can offer at this stage as he has not engaged in his assessment and treatment.
·     20 December 2018 Job Capacity Assessment Report[56] - recommended, based on Dr Randhawa’s recommendations, that the Applicant’s psychiatric conditions were not fully treated and fully stabilised.
·     Health Professional Advisory Unit Opinion[57] dated 14 February 2019:
This condition can be regarded as fully diagnosed, but not fully treated and stablished. As of the date of claim and within the claim period Mr Lonie was not receiving appropriate evidence based treatment. The historical medical evidence did not show that Mr Lonie has consistently engaged in appropriate evidence based treatment (which may include therapies such as structured CBT, DBT and pharmacological treatments). The Psychiatrist Dr Randhawa believed that Mr Lonie is suitable for a trial of Amitriptyline, and noted if Mr Lonie were to engage with a therapist in a consistent manner, it could be expected that Mr Lonie could develop better insight into his condition. Dr Randhawa noted Mr Lonie was booked for further assessment, but did not make it for his second appointment.
The Psychiatrist provides the opinion in regards to Mr Lonie that “His condition doesn’t make him unfit for entering the workforce. Hence, it’s really hard for me to support his DSP application.”
Despite the letter dated 16/11/2018… from the Psychologist M. Rogers providing the opinion that Mr Lonie has engaged consistently in psychological, psychiatric and pharmacological therapies over many years, this is not supported in the medical evidence. The evidence shows Mr Lonie has not engaged in consistent treatment wither psychological, psychiatric or pharmacological. He has been engaged inconsistently with several different health professionals and case workers in the past… He has had minimal mental health specific treatment by a Psychiatrist, Clinical Psychologist or Psychologist despite this being recommended.
[55]   Exhibit 1, T Documents, T49, page 189.
[56]   Exhibit 1, T Documents, T50, page 192.
[57]   Exhibit 1, T Documents, T72, pages 373–376.

The Respondent provided the Tribunal with the Applicant’s PBS records[58] which confirm that the Applicant did not fill any prescriptions for antidepressant medication in the period from 27 August 2018 to the end of the Qualification Period on 26 November 2020. The Tribunal concludes that the Applicant was not taking antidepressants during this period.
[58] Respondent’s Statement of Facts, Issues and Contentions, Attachment A.
The Respondent asserts that the evidence supports a finding by the Tribunal that the Applicant’s mental health condition was receptive to further treatment. The Respondent also asserts that that there is no evidence from a psychiatrist or clinical psychologist before the Tribunal indicating that the Applicant’s schizotypal personality disorder was fully treated and stabilised during the Qualification Period.
The Applicant gave evidence at the hearing explaining that he has had some issues accessing treatment, given transport and financial issues. It is clear that the Applicant, on his evidence, is not taking any medication for his psychiatric condition, for the reason that:
I’ve just had very serious adverse reactions to previous medications and I am reluctant to trial those medications again, specifically Endep, as it was a very unhealthy experience and it’s not viable for me to take.[59]
[59] Transcript P-21, lines 44–46 and P-22 lines 1–2.
The Tribunal is obligated to apply the law as set by the Australian Government. The Tribunal discussed this with the Applicant in the hearing. The Applicant explained that he is motivated to seek legislative change and has made “submissions to the most recent Senate Committee Inquiry into the purpose, intent and adequacy of the Disability Support Pension”.[60]
[60] Transcript P-20, lines 24–30.
The Tribunal does not judge the Applicant’s personal motivations, and accepts that he has taken many positive steps, such as enrolling in art therapy, to address his personal health. However, the Tribunal is unable to find that the Applicant’s schizotypal personality disorder condition was fully treated and stabilised during the Qualification Period (Tribunal’s emphasis), as it is abundantly clear that psychiatrist Dr Jatinder Randhawa’s view was that adherence to a psychotropic medication regime may have resulted in significant functional improvement of the Applicant’s psychiatric health conditions.
For these reasons, the Tribunal finds that the Applicant’s schizotypal personality disorder was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the psychiatric condition under the Impairment Tables.
DECISION
The Applicant’s claim fails because his impairments did not attract 20 or more points under the Impairment Tables, therefore, he did not qualify for DSP during the ‘Qualification Period’ as required under section 94(1)(b) of the Act.
The decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

...............................[SGD].........................................
Associate
Dated: 16 December 2022

Date of hearing: 4 August 2022

Date final submissions received: 3 August 2022

Advocate for the Applicant: Mr Michael Tansky

Advocate for the Respondent Mr Ben Dube, Solicitor

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	4 August 2022
Date final submissions received:	3 August 2022
Advocate for the Applicant:	Mr Michael Tansky
Advocate for the Respondent	Mr Ben Dube, Solicitor
Solicitors for the Respondent:	Sparke Helmore Lawyers