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

LRVS; Secretary, Department of Social Services and (Social services second review) [2018] AATA 1518 (8 June 2018)
Division:GENERAL DIVISION
File Number: 2017/1887
Re:Secretary, Department of Social Services
APPLICANT

LRVSAnd
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:8 June 2018
Place:Perth

The Tribunal sets aside the decision of the AAT1 and substitutes a decision that the Respondent did not satisfy subsection 94(1)(c) of the Social Security Act 1991 (Cth) and does not qualify for a Disability Support Pension.
....[sgd]................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – impairment tables – did the Respondent have 20 impairment points – did the Respondent have a continuing inability to work – did the Respondent participate in program of support – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1), ss 94(2), ss 94(3B), ss 94(3C)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1), ss 7(2)
Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4(1), s 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability
Support Pension) Determination 2011 (Cth) – ss 6(1), ss 6(2), ss 6(3), ss 6(4), ss 6(5), ss 6(6), s 7, s 8, ss 8(1), s 9, s 10, s 11, ss 11(1), Table 1
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
8 June 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 21 February 2017 (A1, T2). The AAT1 decision set aside the decision under review and sent it back to the Chief Executive of Centrelink for reconsideration with the direction that on 21 October 2015 LRVS satisfied subsection 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act).
The Administrative Appeals Tribunal (the Tribunal) has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The matter was heard in Perth on 14 March 2018. The Applicant was represented by Mr Burgess from Sparke Helmore Lawyers and the Respondent appeared in person and represented herself with support from her sister.
The Tribunal would like to thank both the Applicant and the Respondent for their assistance during the hearing.
INTRODUCTION
On 21 October 2015, the Respondent lodged a claim for a Disability Support Pension (DSP) (A1, T8 pp 146-175).
The Respondent made a claim for the following conditions, “fibromyalgia (many problems), neck bone spurs, depression, diabetes 2” (A1, T8, p 158).
The Respondent’s claim for DSP was rejected by a delegate of the Department of Human Services (the Department) on the 21 January 2016 (A1, T14, p 189), on the basis of a Job Capacity Assessment (JCA) report dated 20 January 2016 (A1, T13, p 183).
The delegate found that the Respondent did not have an impairment rating of 20 points or more (A1, T14, p 189).
The JCA report assessed the Respondent’s fibromyalgia as fully diagnosed, but not fully treated and stabilised:
As the diagnosis has been verified by a Specialist the condition has been considered fully diagnosed, however it is noted that medical evidence provided with the claim indicates some deterioration in her mental state in the last 4-5 months with the recommendation that psychiatric assessment occur. LRVS has recently commenced psychological interventions with a clinical psychologist and these are ongoing with the report of some gains made and the recommendation for some further therapy to make gains in mood and stress management. The condition of Fibromyalgia and associated mood and stress issues is assessed as not fully treated or stabilised at this point in time given the recent deterioration in her functioning and with the possibility of some further gains through psychotherapy. (A1, T13, p 185)
The JCA report determined the Respondent had a baseline work capacity of 8-14 hours per week (A1, T13, p 186). The JCA assessor found further, that the Respondent has a capacity for work of 15-22 hours per week within two years with intervention (A1, T13, p 186).
The Respondent sought a review of the Department’s decision. This was undertaken by an Authorised Review Officer (ARO) (A1, T16, p 247).
On the 16 March 2016, the ARO determined the following:
Your conditions of fibromyalgia and diabetes are not accepted as being permanent as they have not been fully treated and stabilised.
You do not have an impairment rating of 20 points or more.
You do not have a continuing inability to work 15 hours per week or more because of your impairment (A1, T17, p 249).
On 21 February 2017, the AAT1 set aside the decision of the ARO (A1, T2, p 3) and substituted the decision as set out in paragraph 1 above.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Act and the Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
(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) …
Qualification Period
Section 94 of the Act must be read in conjunction with Schedule 2, subclause 4(1) of the Administration Act. In accordance with the requirements of Schedule 2, subclause 4(1) of the Administration Act, if a person makes a claim and the person is not, on the day on which the claim is made, qualified for the payment and the person will become qualified within the period of 13 weeks after the day on which the claim is made, the claim is taken to be made on the first day on which the person is qualified for the payment. In the present case, the 13 week period commences on 21 October 2015 and ends on 20 January 2016 (the Qualification Period).
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical condition that occur later are not relevant to the claim, they may however, be relevant to a future claim. See Re Bobera and Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; 158 FCR 252.
Assessing impairments and assigning an impairment rating
The impairment tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the 2011 Determination). The tables contained within the 2011 Determination are referred to as the “Impairment Tables”.
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Respondent are 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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 Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsection 6(4) of the 2011 Determination provides further guidance in assessing whether or not a condition is permanent. “Permanent” does not have its ordinary meaning and is considered permanent if the condition has been fully diagnosed, treated and stabilised and the condition is more likely than not, in light of available evidence, to persist for more than two years. Subsections 6(5) and 6(6) of the 2011 Determination establish when a condition may be considered fully diagnosed, fully treated and fully stabilised. Subsection 8(1) of the 2011 Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the 2011 Determination provide guidance on how to assess information and evidence using the Impairment Tables and assign impairment ratings. In particular, subsection 11(1)(c) of the 2011 Determination states that “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”.
Continuing inability to work
As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support - the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases - the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases - either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Emphasis added.)
“Severe impairment” is defined in subsection 94(3B) of the Act:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. (Emphasis added.)
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C) of the Act.
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)(POS Determination) require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. The Tribunal whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case not to do so (refer to Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
ISSUES FOR DETERMINATION
The key issue for the Tribunal to determine is whether the Respondent qualified for DSP for the purposes of section 94(1) of the Act.
This requires consideration of whether during the Qualification Period:
(a)the Respondent had any physical, intellectual or psychiatric impairment/s; and
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Respondent had a continuing inability to work.
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 – T-documents, received 28 April 2017 (T1-T27) pp 1-395;
·Exhibit A2 – Secretary’s Statement of Facts and Contentions dated 24 November 2017 (Secretary’s SOFIC);
·Exhibit A3 – Secretary’s list of authorities;
·Exhibit A4 – Annexure A to the Secretary’s SOFIC: medical report by Dr Kevin O’Daly, dated 13 June 2017;
·Exhibit A5 – Annexure B to the Secretary’s SOFIC: medical report by Dr Kevin O’Daly, dated 20 September 2017;
·Exhibit A6 -- Annexure C to the Secretary’s SOFIC: documents produced under summons and received by the Tribunal on 26 October 2017;
·Exhibit A7 -- Annexure D to the Secretary’s SOFIC: documents produced under summons and received by the Tribunal on 3 November 2017;
·Exhibit A8 – Briefing letter to Dr O’Daly, dated 5 September 2017;
·Exhibit R1 – Report prepared by the Respondent and signed by Dr Alizera Eskandaripour, dated 3 July 2017;
·Exhibit R2 – Letter from LRVS’s manager, dated 30 June 2017;
·Exhibit R3 – Letter from Dr Margret Horsley, dated 29 June 2017;
·Exhibit R4 – Letter from an employment consultant at Forrest Personnel dated 17 February 2017; and
·Exhibit R5 – Statement of the Respondent, handed up at hearing on 14 March 2018.
Oral evidence
The Applicant called Dr Kevin O’Daly, Consultant Psychiatrist, as a witness. He appeared by phone and gave evidence at the hearing.
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Written evidence
The Tribunal considers the Applicant’s contentions in the following paragraphs (A2, Secretary’s SOFIC paras 4.1 – 4.16):
4.1 On 21 October 2015, the Respondent lodged a claim for DSP. In her claim, she referred to her medical condition as ‘Fibromyalgia (many problems) neck bone spurs, depression, diabetes’. She was 50 years and 6 months of age at the time.
4.2 The Respondent attended a job capacity assessment (JCA) appointment on 7 January 2016. In a report dated 20 January 2016, the JCA assessor opined that the Respondent suffered from a fibromyalgia condition which was complicated by mental health condition. Although opining that the fibromyalgia condition in isolation was fully diagnosed, treated and stabilised (FDTS), the JCA also opined that the associated mental health condition was not fully treated and stabilised. Given both the fibromyalgia and mental health condition produced symptoms which were indistinguishable, the JCA did not consider that she could allocate an impairment rating under the Impairment Tables for any impairment(s) resulting from the fibromyalgia or mental health conditions. The JCA also opined that the Respondent had a baseline work capacity of 8-14 hours per week and a capacity of 15-22 hours per week within two years with intervention.
4.3 By decision dated 21 January 2016, the Respondent’s claim for DSP was rejected.
4.4 The Respondent requested a review of the decision and provided a report of Dr Eskandaripour (GP) dated 28 January 2016 in support of her application. Dr Eskandaripour listed the following impairment ratings, without further description of the Respondent’s impacts on functioning:
·      Table 1 – 5 points
·      Table 2 – 5 points
·      Table 3 – 10 points
·      Table 4 – 10 points
·      Table 5 – 10 points
·      Table 7 – 5 points
·      Table 8 – 5 points
·      Table 10 – 10 points
·      Table 13 – 10 points
·      Table 14 – 10 points
4.5 Following a request for review, an Authorised Review Officer (ARO) affirmed the decision under review on 16 March 2016. The ARO disagreed with the JCA assessment, finding that the fibromyalgia condition was FDTS and caused an impairment to functionas (sic) requiring exertion and stamina that was able to be assigned an impairment rating, notwithstanding the impact of the mental health condition. The ARO however, found that even if all of the Respondent’s conditions were accepted to be FDTS and the impairment ratings suggested by Dr Eskandaripour were accepted, the Respondent would not be qualified for DSP on the basis that she did not have a severe impairment and had not actively participated in a Program of Support (POS).
4.1 In a report dated 10 June 2016, Dr Sekhon, psychiatrist provided a report noting that he considered the Respondent’s psychiatric condition (depression) was FDTS. Dr Sekhorn did however note that he had only commenced seeing the Respondent on that day, 10 June 2016(after (sic) the date of claim plus 13 weeks).
4.2 By report dated 18 September 2016, Dr Carroll, rheumatologist noted that the Respondent’s diagnosis was Ehlers Danlos Syndrome (EDS) and fibromyalgia. Dr Carroll noted that the Respondent had long term symptoms from the conditions and that there were no further treatment options that existed.
4.3 The Respondent applied to the AAT1 for first review out of time on 13 October 2016. Given the request for review was made more than 13 weeks after the notification of the ARO decision, the Secretary contends that the AAT1 failed to properly consider the effect of section 147 of the Administration Act. We address this further in our contentions.
4.4 On 14 February 2017, Dr Eskandaripour provided a report addressing the Respondent’s mental health condition. The doctor noted that the Respondent suffered from depression and anxiety that had been present since 2009. The doctor noted that the Respondent had previously been treated by a psychiatrist with medication (cymbalta) and that anti-depressant medication was not tolerated.
4.5 On 15 February 2017, the Respondent obtained a further report from Dr Eskandaripour “amending” his previously listed impairment ratings under the Impairment Tables. From his circled answers, Dr Eskandaripour appears to report that the Respondent’s conditions attract 135 impairment points under the Impairment Tables, comprised of the following ratings:
(a)Table 1 – 20 points
(b)Table 2 – 10 points
(c)Table 3 – 10 points
(d)Table 4 – 10 points
(e)Table 5 – 20 points
(f)Table 7 – 10 points
(g)Table 8 – 10 points
(h)Table 10 – 10 points
(i)Table 12 – 5 points
(j)Table 13 – 20 points
(k)Table 14 – 10 points
4.6 Dr Eskandaripour did not provide any explanation as to why he circled the specified ratings under the Impairment Tables, nor did he explain why the ratings had changed from his initial report.
4.7 By decision dated 21 February 2017, the AAT1 set aside the ARO decision and found that the Respondent’s fibromyalgia was FDTS and the impairment rated 10 points under Table 1 and 10 points under Table 3. The AAT1 also found that the Respondent’s mental health condition was a separate condition that was also FDTS and the impairment rated 20 points under Table 5, and that the Respondent had a continuing inability to work.
4.8 By application dated 2 March 2017, the Secretary has sought review of the AAT1 decision.
4.9 During the course of this review, the Respondent has been reviewed by Dr O’Daly, independent psychiatrist, at the request of the Secretary. Dr Daly has provided two reports, dated 13 June 2017 and 20 September 2017.
Report of Dr O’Daly dated 13 June 2017
4.10 In his initial report, Dr O’Daly diagnosed the Respondent with “Major Depressive Disorder, recurrent episode, moderate severity with anxious stress”. In describing the Respondent’s presentation, Dr O’Daly noted:
LRVS’ thought form was organised and her thought content descripted an absolute preoccupation with her pain condition and her inability to work and socialise. LRVS denied any thoughts with regard to self-harm or suicide. There was no evidence of any perceptual abnormality. At the time of the assessment LRVS was oriented to time, person and place and her cognition appeared sound. At the time of the assessment therefore LRVS’ insight, judgement and capacity appeared moderately negatively impacted upon by her anxiety and low mood state.
4.11 Dr O’Daly opined that a referral to a psychiatrist and/or a psychiatric team should have occurred in October 2015, in addition to fortnightly visits with a clinical psychologist. Dr O’Daly noted that a psychiatrist should review her medication potential and that if such reasonable treatments were undertaken, it is more than likely that she would not have needed to reduce her hours of work.
4.12 Due to a typographical error in the commissioning letter, Dr O’Daly was incorrectly asked to assess the Respondent’s psychiatric condition under the Impairment Tables as at 25 May 2016. He initially considered that the Respondent suffered from a 20 point impairment under Table 5 but did not give any explanation for how he came to that assessment.
4.13 Following receipt of Dr O’Daly’s first report, it became apparent that the doctor had been asked the wrong questions and that the only medical evidence that the doctor had been provided with was the JCA report dated 20 January 2016 and the initial report of Dr Eskandaripour dated 28 January 2016. As a result of this oversight, Dr O’Daly was provided with all medical relevant medical (sic) documents and asked to provide a supplementary report addressing the Respondent’s condition as at the date of claim, 21 October 2015 or within 13 weeks of that date.
Report of Dr O’Daly dated 20 September 2017
4.14 In a supplementary report dated 20 September 2017, Dr O’Daly provided an updated opinion commenting on the records that he had been provided and the questions that had been asked.
4.15 With respect to the question of whether the Respondent’s psychiatric condition was fully treated and stabilised as at the date of claim (or within 13 weeks), Dr O’Daly opined that:
(a)During the qualification period the Respondent had not yet consulted a psychiatrist; and
(b)Therefore as at the date of claim, the Respondent had not been optimally treated.
(c)Best practice treatment would have involved regular intervention with a psychiatrist and clinical psychologist and “judicious clinical review by a specialist psychiatrist might allow consideration of prescriptions of medications with minimal or no side effects in the future”; and
(d)If the Respondent had undertaken this treatment on 21 October 2015 (the date of claim) the likely effect would have been an improvement in her capacity for employment as her mood state would have been less problematic and this would likely have manifest less depressive symptoms.
4.16 Dr O’Daly was also asked to assess the impact of the Respondent’s psychiatric condition as if it were FDTS, against each of the criteria in each of the 5, 10, 20 and 30 point ratings and give reasons as to why he assessed the Respondent at that level. At paragraph 5 of his report, Dr O’Daly made the following assessment in respect of the mental health condition:
(a)Self-care and independent living – mild impairment (5 point criteria)
(b)Social/recreational activities and travel – no impact (0 point criteria)
(c)Interpersonal relationships – mild impairment (5 point criteria)
(d)Concentration and task completion – mild impairment (5 point criteria)
(e)Behaviour, planning and decision making – mild impairment (5 point criteria)
(f)Work/training capacity – mild impairment (5 point criteria). (Original emphasis.)

The Applicant drew the attention of the Tribunal to be cognisant of the relevant Qualification Period (A2, pp 6-9). In this case from the 21 October 2015 to 20 January 2016. For the purpose of this application, this is the critical time to determine if the Respondent qualified for DSP.
In addition, the Applicant claimed that the impairments of the Respondent did not generate 20 impairment points under a single table and disagreed with the decision of the AAT1 (A2, p 15).
The Respondent provided the following evidence in her statement (R5):
Introduction
I understand that the Secretary has appealed to this Tribunal because they disagree with the AAT1 decision. I do not understand the legal jargon used in the documents but as a lay person I will attempt to explain my case to the Tribunal of how the medical condition affects my ability to do things on a daily basis.
I will rely on the medical evidence from my GP and Specialists and information already with the Tribunal. I trust that with the evidence already before the Tribunal and any new information I am able to provide today that the Tribunal finds that I am medically qualified for DSP.
I would like to highlight at this point that my second claim for DSP which is identical in every way in my eyes, was granted mid Feb. I now find myself in the position of the Department on one hand saying they don't think I am medically qualified for DSP yet receiving current DSP payments for exactly the same medical conditions.
Contention Points
… I am 52 years old. I am single, live on my own and have no children…
…I was diagnosed with Fibromyalgia approx (sic) 27 years ago however it has been during the period of time I have worked for [recent employer] … that it had deteriorated to a point that I have slowly had to reduce my hours and accept that I could not continue working as a Veterinary Nurse, a job that was my absolute passion. My employers have always supported me fully and have created positions within the work place to keep me in their employ. I have provided letters from them in support of this. My work hours and conditions changed many times over the years prior to me claiming DSP with them assisting me to find ways I could continue to work as much as possible.
My GP and Specialist recommended that I apply for Disability Support Pension (DSP) so I lodged my claim on 21 October 2015. I had used up all my leave entitlements from my employer and had begun seeing a Psychologist, who on my second visit with her advised me that in her opinion I had no choice now but to claim.
At the Job Capacity Assessment in January 2016, the Assessor actually said ‘I got so much here, I can't fit it on the computer... you should be fine’. I got the impression that he had all he needed so I felt that I met the medical criteria. Had the Assessor indicated to me that I was required to provide a Specialist reports (sic) and would have (sic) got it straight away’. (E.g. (sic) he knew I was seeing a clinical psychologist but never explained to me that I needed to have a Psychiatrist's opinion (sic). He knew I only had my GP reports and letters at that time but did not indicate I would be required get (sic) one from my Specialist. There was no mention of any forms or tables for any of my Medical Professionals to complete. Some of the department's paperwork says ‘she’ in explanations of this interview but it was in fact a male I saw and I believe his name was Ken .
Centrelink rejected my claim. I found out while I was in at the […] Centerlink, I asked if I could appeal to the original decision maker. I was advised they had gone home for the day and they would contact me. I have still not ever spoken with this decision maker.
I then indicated I would like to go to an ARO review and this was commenced (sic). It was only when I spoke to the Authorised Review Officer that she told all of the things I could provide to help my review)(sic). And this is why my Dr changed the points table. She explained to me how it worked and to include all my medical conditions not just the main one and to get him to redo it, which I then explained to him and he did.
All of my medical information was therefore not used in the original assessment of my claim (sic). I (sic) was after I had spoken to the ARO and she had gone into detail about what I should collect to help my appeal that I then obtained Specialist reports (sic), further Dr's reports/letters, and letters from my employer that was taken to the first Appeal where I was successful in being granted DSP.
This is important to explain the delay in providing the additional Specialists reports.
On 21 February 2017 the AAT1 decided that I met the medical qualification for DSP and I was advised I was granted [the DSP]. Until I received a call from the Litigation Department saying they didn't think I was qualified and they would be counter appealing.
Extra relevant information point (sic).
·I used all my leave entitlements to avoid claiming and to try further medications. The Tribunal can see on the pay-slips provided my (sic) employer that yes it does show payments of more than two days per week immediately prior to claiming but also shows a lengthy stretch of time where I either took sick leave or long service leave as part of these payments. I tried to do the four days a week but consistently failed to on many occasions and when I did manage them I spent the rest of my time away from work either in bed or recuperating in some way.
·Oct 2015 (sic) Dr sent me to Psychologist, after 2 visits she said no choice but to claim and supported me. I continued to see her for another 2 years-worth of visits under my mental health plan.
·I believe Dr Sehkon completely understood my situation and assessed it after much discussion (sic) and examination of the facts surrounding it. I would like to point out that I was not a prior patient of Dr Sekhon and he did not have any connection to my claim at all or any contact with my Specialist or GP. I believe he was more of an independent assessment and that the information he provided has been more consistent. He also concluded with the opinion of my Specialist: Dr Carroll (Rheumatologist) (sic) and my GP who has managed my medical conditions since and is well aware of how I am affected… I do not agree that Dr Daley (sic) was what the Department referred to as an ‘independent’ assessment, he was engaged by the Department, paid by the Department and added further information to my assessment after the fact with no further input by myself.
·While I respect Dr Daley’s (sic) opinion, I feel there are inconsistencies with his opinion when re approached by the Department for extra information and the extra information given in no way resembles my recollection of the conclusion of my assessment with Dr Daley (sic). In fact his final words to me on that day were along the lines of ‘I totally understand and I will support you fully and look after you in this matter’.
·Greater than 13weeks (sic): When I spoke to the ARO officer regarding my initial appeal, we went through the whole assessment and what I could obtain to greater my chances at the next appeal step. She spent a great deal of time with me going through each point and being extremely helpful, pointing out what I could obtain and/or get my Dr to change. At the end of this lengthy discussion she asked me if I wished to move on to the next stage, I said I did and she said ‘I will escalate this and you concentrate on getting your further information’ I took that to mean she had forwarded it on to the next review and went about getting my specialist reports, Dr’s (sic) information, Employer information etc. to take to this next review.
About a month later I hadn't heard anything so I went into Centerlink in […] to see if I could find out what was going on. I didn’t get to speak to anybody the lady at the triage point said, there is no point at this stage, it's too early and because there has been a large amount of people rejected for reviews it's going to be a while before you hear.
Some further weeks passed and I rang to find out, was given the same information.
More weeks passed and I went into […]Centerlink again and the visit was identical to the first one, to the point that I actually saw the same lady that I did the first time. I asked if they could check it for me but was told again, no point there is such a backlog, you have to be patient.
I was patient for more weeks and rang again, given the same information over the phone. Nobody wanted to check into it for me just did the blanket ‘have to wait, backlogs, be patient’.
All this time I was with a service provider at Forrest Personnel, I would see her every two weeks and she would ask and I would tell her about these contacts and we just waited. Finally one day she said this isn’t really good enough, it’s been so long, Ill (sic) ring for you. She rang a contact she had here at the Tribunal and that contact checked it out and advised that I had no appeal in place at all.
I think you can imagine my panic and upset on hearing this and I immediately rectified the situation and continued with my appeal. The service provider wrote a letter of support for me regarding this situation, which you have a copy of.
I know it was outside the 13 weeks but I can assure you regardless of my apparent misunderstanding of what the ARO meant by ‘escalation’ I would have certainly been within the 13 week period if Centerlink hadn't refused to check it on those four occasions…
…My conditions cause wide spread, permanent, untreatable severe pain. After having this for so many years and my life being so affected, yes it causes depression. It’s how I have lived for a long time. I have used all of my coping and pacing skills, which are very well developed to get this far without asking for help. Some people weight my pain higher, some my hyperextension, some my depression........ At the end of the day, if I could do something to have prevented claiming and asking for help I assure you I would have. The Government weights these things and I do understand why but from my side, I read the conditions and truly believe I should be granted under the medical and the mental health and I feel I have provided Medical documents to support both of those. It’s the Department that keeps changing where the ratings lie, my health is stabilised, permanent and as you can see from my Dr's reports, no further treatment is available.
The Respondent presented as an honest and truthful witness who has experienced pain and suffering as a consequence of the conditions she has had to endure for over 20 years. Her capacity to push through her pain and suffering to be a productive member of society is a great testament to her endurance and character.
Evidence on Respondent’s medical conditions
The Tribunal notes that the Respondent developed her mental illness and that she was diagnosed with these conditions around 2009.
Evidence in the T-documents indicates that the Respondent’s physical conditions have caused her mental health condition to deteriorate.
In the medical report dated 14 February 2017, Dr Eskandaripour, General Practitioner (GP) provided a report addressing the Respondent’s mental health condition. Dr Eskandaripour indicated that the Respondent had undertaken treatment with a psychologist who stated:
She has been suffering from low mood, lack of energy & depression for a while. Chronic pain can be a contributing factor for this condition (A1, T21 p 277).
The Tribunal is aware of observations made by Dr Carroll:
I saw her first of all in Fremantle Hospital in mid-2012 and came to the conclusion at that time that she had fibromyalgia of idiopathic origin and uncomplicated by any psychiatric or psychological disturbances. In respect to the latter I am now not so sure... In recent months LRVS reported a significant worsening in pain and emotional volatility (A1, T5, p 141).
The Tribunal notes that Dr O’Daly is a health specialist in psychiatry and the Tribunal finds his oral evidence in support of his written assessments was clear, concise and professional.
The Tribunal notes Dr O’Daly’s statement in his written report dated 20 September 2017:
…If you consider that there were additional treatment modalities that would have been of benefit to LRVS as at 21 October 2015, what treatment would you have recommended and how long would you have recommended that treatment take place for?
In my opinion, additional treatment modalities would include regular contact with a Psychiatrist and Psychologist on a monthly basis. I would also suggest, as described above, that consideration of medications be reconsidered. I would recommend that multi-contact with a Psychiatrist and Psychologist continue for 12 months, which is my recommendation from this point.
3. Having regard to your notes of the hours worked by LRVS prior to and at 21 October 2017, if LRVS had undertaken the treatment identified at 2.a),what do you consider would have been the likely effect of that treatment on her capacity for employment as at 21 October 2015?
As recommended in my previous report at 23.4, regular contact with a Clinical Psychologist fortnightly for three months would have been vital to LRVS’ mental health. My previous specialist recommendation was for Clinical Psychology appointments fortnightly for three months. In my opinion, the likely effect of that treatment would have led to an improvement on her capacity for employment. As at 21 October 2015, as the expectation would have been, LRVS’ mood state would have been less problematic and she would likely have manifest less depressive symptoms (A5 p 2).
The Tribunal notes that it has two reports from Dr O’Daly. The Tribunal notes that there are some discrepancies between the two reports, however it accepts Dr O’Daly’s oral evidence that these discrepancies were due to the fact that Dr O’Daly only had access to the Respondent’s further medical reports at a later date.
The Tribunal notes that the Respondent orally submitted:
·she attended a psychologist rather than a psychiatrist as she could not afford the fees of a psychiatrist (also see R5, p 4);
·she contracted this condition (fibromyalgia) over 20 years ago. She was initially diagnosed with multiple sclerosis or fibromyalgia. She attended a neurologist who indicated to her that both conditions were incurable;
·this condition resulted in significant pain in her joints, to a point at some time later she decided to leave her employer Centrelink and train as a veterinary nurse. In this new role as a veterinary assistant, her condition continued to worsen. She decided in 2012 to see her GP on a consistent basis;
·her GP referred her to Dr Carroll a rheumatologist who diagnosed her with fibromyalgia. Dr Carroll advised the Respondent that this condition was incurable. At some time during her treatment she was also suspected of having the condition Ehlers Danos Syndrome (EDS);
·she stated to the Tribunal that she lives with pain every day of her life. It does not matter whether she is lying down, standing or walking. She finds it difficult to maintain her house and gets assistance from a relative. She drives to the shopping centre but was quick to point out that this is only a six minute trip and is becoming more infrequent;
·she has adapted her lifestyle to fit in with the conditions that she suffers from; and
·she has made substantial changes to try and manage her condition.
Whilst there may be some differences in terms of variants to diagnosis, the Tribunal concurs with the following finding of the AAT1:
The Tribunal determined that, despite some confusion about which diagnostic label (fibromyalgia, EDS or both) is relevant to LRVS’ physical condition, she clearly has a permanent, untreatable condition (T2 8) (A1).
Dr Carroll’s medical report described the Respondent’s condition as “fibromyalgia” and that the Respondent had a history of “approx. 5 yr history of pain & fatigue.” Dr Carroll described her current symptoms as “pain everywhere… low energy levels”. Dr Carroll said “there is no effective treatment for this condition” and that past treatment was “irrelevant”. With regard to future treatment Dr Carroll said “none foreseen unless there is a medical breakthrough.” In regard to the Respondent’s ability to function he said that “pain & lack of endurance limit activities greatly” and that this is expected to continue for more than 24 months (A1, T20, pp 268-269).
Dr Eskandaripour’s medical report described the Respondent’s condition as “(1) Fibromyalgia and (2) recently diagnosed Ehlers Danos Syndrome by her rheumatologist” (A1, T21, p 276). Dr Eskandaripour stated that the condition of fibromyalgia had been going on for the last 25 years and this has been confirmed by Dr Carroll (A1, T21 p 276). Dr Eskandaripour also stated that the Respondent had the condition of EDS which, whilst only recently diagnosed, had been with the Respondent for a long time (A1, T21, p 276).
The Applicant accepts that the Respondent’s fibromyalgia condition is fully diagnosed, treated and stabilised (FDTS) and can be assigned an impairment rating under the Impairment Tables (A2, para 5.23).
CONSIDERATION
Whether the Respondent suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim, the Respondent suffered from Fibromyalgia, EDS, depression and type-two diabetes. The depression has been manifested from the chronic pain she has endured over the past 20 years (A1, T21, p 277).
The Tribunal notes and accepts that the Respondent has had the following conditions: hypertension, diabetes Type 2 and cervical cancer and fibroids. None of these conditions however have had an impact on her ability to function. (A1, T21 p 278)
The Tribunal accepts that the Respondent satisfies section 94(1)(a) of Act.
Whether the Respondent’s impairments receive an impairment rating of 20 points or more under the Determination
Depression
The Tribunal notes the Applicant’s submissions that at the time of the claim the Respondent had not seen a specialist psychiatrist and had only engaged with a specialist psychiatrist in June 2016 (A1, T18, p 256). The Tribunal finds that the Respondent engaged with a specialist psychiatrist outside the relevant Qualification Period.
The Tribunal considers that the Respondent’s condition has been fully diagnosed. The Tribunal notes the Respondent’s contention that, during the Qualification Period, the Respondent’s mental health condition was fully treated and stabilised. This is consistent with the finding of the AAT1 who determined that the Respondent met the criteria for a severe impairment in mental health function and had an impairment rating of 20 points under Impairment Table 5 (A1, T2, p10).
The Tribunal notes Dr O’Daly’s statement in his written report dated 20 September 2017 in paragraph 42 of this decision. The Tribunal is persuaded by Dr O’Daly’s expert evidence. The Tribunal finds that the Respondent’s mental health condition is fully diagnosed but not fully treated and stabilised and cannot be given an impairment rating under the Impairment Tables.
Fibromyalgia
The Applicant accepts that the Respondent’s fibromyalgia condition is longstanding and has been the subject of significant medical and specialist treatment. The Applicant accepts this condition is FDTS. The Tribunal agrees with the Applicant.
The Tribunal is cognizant of the fact that the Impairment Tables are function based. That is, broadly speaking, the Impairment Tables are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions (subsection 5(2) of the 2011 Determination).
The Tribunal is aware that the Respondent’s condition has resulted in her inability to undertake functions requiring endurance, stamina and exertion. For this reason the Tribunal, having considered the medical evidence before it, determines that this condition under Table 1 of the Impairment Tables has an impairment rating of 10 points and there is a moderate functional impact.

The Tribunal accepts evidence that the Respondent’s condition has resulted in permanent and long lasting significant pain. The Tribunal considers that this impacts directly on the capacity of the Respondent to be able to utilise her lower limbs to undertake functions such as walking distances, using steps without hyper extending her limbs, sitting or standing for more than five minutes.
At the hearing the Respondent gave evidence that she rarely ventures outside and does the majority of her shopping online. The Respondent further said at the hearing that she gets assistance with her housework and gardening.
The Tribunal notes that the Respondent suffers from significant swelling in her legs, which has resulted in skin ulcers due to leakage of fluid through her skin.
Whilst the Tribunal understands the arguments of the Applicant relevant to issues of double counting, the Tribunal is persuaded by medical evidence before it that the Respondent’s lower limb functions further generate an impairment rating of 10 points under Table 3 of the Impairment Tables.
The Tribunal is of the view on the basis of the medical evidence before it, that the Respondent’s mobility is significantly reduced as a result of the pain she suffers from her lower limbs.
Diabetes and Neck Bone Spurs
Whilst these two conditions formed part of the Respondent’s claim for DSP, the Tribunal has insufficient medical evidence before it to make a finding on these conditions.
Whether the Respondent has a continuing inability to work (CITW)
In order to satisfy subsection 94(1)(c)(i) of the Act, the Respondent must have a continuing inability to work. The Tribunal finds that the Respondent did not have a continuing inability to work pursuant to subsection 94(2) of the Act. The Tribunal agrees with the Applicant’s contention that the Respondent does not have a severe impairment pursuant to subsection 94(3B) of the Act as the Respondent did not have a severe impairment rating of 20 points or more under a single table. The Tribunal also agrees with the Applicant’s contentions that the Respondent does not meet the Program of Support (POS) requirements. The Tribunal notes that the Respondent’s records indicate that she had no periods of active participation in a POS prior to lodging her claim. The Tribunal finds that the Respondent did not commence participation in a POS until 19 April 2016, and that she remained in that program as at the date of her application to the Tribunal (T27, p 395). Accordingly, the Tribunal agrees with the Applicant’s contention that the requirement in subsection 7(2) of the POS Determination is not met and that the Respondent does not satisfy subsection 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal finds the following:
the Respondent had a physical, intellectual or psychiatric impairment; and
(b)the Respondent had impairments that collectively attracted at least 20 points under the Impairment Tables; however
(c)the Respondent did not have a continuing inability to work .
DECISION
The Tribunal sets aside the decision of AAT1 and substitutes a decision that the Respondent did not satisfy subsection 94(1)(c) of the Act and does not qualify for a DSP.

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

...[sgd]..............................................
Associate
Dated: 8 June 2018

Date of hearing: 14 March 2018

Representative for the Applicant: Ashley Burgess

Solicitors for the Applicant: Sparke Helmore Lawyers

Respondent: In person: self-represented

[2018] AATA 1518

8 June 2018

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	14 March 2018
Representative for the Applicant:	Ashley Burgess
Solicitors for the Applicant:	Sparke Helmore Lawyers
Respondent:	In person: self-represented