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

Milovanovic and Secretary, Department of Social Services (Social services second review) [2021] AATA 1134 (4 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0945
Re:Desa Milovanovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:4 May 2021
Place:Sydney

The decision under review is set aside and substituted with a decision that Ms Milovanovic’s DSP should not have been cancelled and that, as at 17 July 2019, she was qualified for DSP.
.....................................[sgd]...................................
Dr I Alexander, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether the applicant’s impairment was 20 points or more under the Impairment Tables – whether the applicant had a continuing inability to work – unreliable and untested evidence – unable to decide the question of fact – Tribunal must decide whether applicant was not qualified for the payment of DSP at date of cancellation – Tribunal not persuaded on the facts – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 94 and 1218AAA
Social Security (Administration) Act (Cth) ss 80, 117
CASES
Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] FCA 57; FCR 354
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
REASONS FOR DECISION
Dr I Alexander, Senior Member
4 May 2021
BACKGROUND

On 3 March 2015, Ms Milovanovic who is now 64 years old, lodged a claim for disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act).
In a medical report dated 2 March 2015, in support of Ms Milovanovic’s application for DSP, her general practitioner (GP), Dr Todorovic, listed “[r]ight breast cancer - total mastectomy… [s]evere major - chronic depression mixed with anxiety disorder, [h]ypertension, [v]isual impairment, [w]idespread osteoarthritis” as having a significant impact on her ability to function.
A Centrelink online document, dated 20 February 2020, indicates that, with effect on 20 February 2015, Ms Milovanovic was qualified for DSP.
The Tribunal was not provided with a copy of the determination which granted Ms Milovanovic DSP.
The decision to grant DSP appears to have been based on a Job Capacity Assessment (JCA) performed on 23 March 2015 but not submitted until 4 May 2015.
In the JCA report, the assessor concluded that Ms Milovanovic had “now accessed sufficient specialist treatment therefore, this condition is FDTS[1] and a severe rating[2] has been applied.” [emphasis added]
[1] FDTS – fully diagnosed, treated and stabilized.
[2] 20 points under Impairment Table 5.
On 7 February 2019, Ms Milovanovic advised Centrelink that she was considering leaving Australia “indefinitely but not permanently”. This initiated a portability medical assessment to determine if she would be eligible to receive an unlimited portability period for DSP under section 1218AAA of the Act.
On 19 March 2019, Ms Milovanovic provided a medical report by her general practitioner and a self-completed form in which she identified her impairments as “right shoulder and arm weak and painful, severe leg pains, blind in left eye, high blood pressure, depression and anxiety”.
In a JCA report submitted on 10 May 2019, Ms Milovanovic was assigned a total “impairment rating of 0 points and concluded that her work capacity “is expected to increase 15-22 [hours] per weeks [sic]” in the subsequent two years with intervention.
In particular, the assessor stated that Ms Milovanovic’s health condition “is considered permanent and fully diagnosed but not fully treated and stabilised [emphasis added].”[3]
[3] The assessor appears to not to have understood understand the meaning of “permanent’ for the purposes of the Impairment Determination.
On 17 July 2019, as a result of the JCA report, Ms Milovanovic’s DSP was cancelled.
On 29 November 2019, an authorised review officer (ARO) affirmed the cancellation decision on the basis that Ms Milovanovic did not have an impairment rating of 20 points or more.
On 31 January 2020, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) decided that Ms Milovanovic “has 5 impairment points” and therefore, did not satisfy paragraph 94(1)(b) of the Act.
Ms Milovanovic, who was self-represented, seeks review of the AAT1 decision in these proceedings.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by telephone conference.
STATUTORY PROVISIONS AND ISSUES
DSP is a social security payment as defined in section 23 of the Act.
Section 80 of the Social Security (Administration) Act1999 (Cth) (the Administration Act) provides:
1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
Section 117 of the Administration Act provides that an adverse determination means a determination under sections 79, 80, 81 or 82.
Subsection 118(1) of the Administration Act provides that
1The day on which an adverse determination takes effect in relation to a social security payment is worked out:
…
(b)in the case of carer payment—in accordance with this section and section 120; and
(c)in the case of any other social security payment—in accordance with this section.
Subsection 118(13) of the Administration Act provides for DSP as follows:
13In any other case, an adverse determination takes effect:
(a)on the day on which it is made; or
(b)if a later day is specified in the determination, on that day.
As the decision to cancel Ms Milovanovic’s DSP was an adverse determination within the meaning of section 117 of the Administration Act, she had to satisfy the requirements of section 94 of the Act as at the date of cancellation of her DSP, that is, 17 July 2019.
Subsection 94(1) of the Act relevantly provides that a person is qualified for DSP 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)…
(i) the person has a continuing inability to work;
(ii) …
The Respondent concedes, and the Tribunal accepts, that Ms Milovanovic suffered medical conditions that may cause impairment and, therefore, satisfied s 94(1)(a) of the Act.
For present purposes, the relevant medical conditions include a mental health condition, breast cancer, visual impairment and osteoarthritis.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).
The Introduction to each relevant Table of the Impairment Determination requires that the “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used “where a person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
The Respondent contends that, at the date of cancellation:
·the mental health condition was fully diagnosed but not fully treated and stabilised;
·the breast cancer was fully diagnosed, treated and stabilised and should be assigned zero points under Impairment Table 2;
·the osteoarthritis was fully diagnosed but not fully treated and stabilised; and
·the visual impairment was fully treated and stabilised and should be assigned 5 points under Impairment Table 12.
The Respondent also contends that Ms Milovanovic did not have a “continuing inability to work”.
Paragraph 94(2)(aa) provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)…– the person has actively participated in a program of support within the meaning of subsection (3C).
Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
However, Ms Milovanovic is not required to have actively participated in a program of support for the purposes of paragraph 94(2)(aa) because her DSP was cancelled as opposed to being denied.
Therefore, the definitive issue in this matter is whether, as at the date of cancellation on 17 July 2019, Ms Milovanovic’s impairment was 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
Ms Milovanovic – oral evidence
In her oral evidence before the Tribunal, Ms Milovanovic stated that she was first diagnosed and treated for a mental health condition in 2009 but could not remember the name of the psychiatrist. She did remember seeing Dr Kecmanovic in 2013/2014 and said that she had also seen him before then.
Ms Milovanovic agreed that, when she was in Serbia, Dr Ostojic was her treating general practitioner and in 2013, he gave her a “different, stronger” antidepressant medication.
In response to a question from the Tribunal, Ms Milovanovic agreed that she returned to Australia in October 2013. When she had seen Dr Kecmanovic in November 2013, he changed her medication to Avanza. [4] However, she said that took this new medication “only for the month… [b]ecause it was not any good for me. It wasn't doing anything. I was still shaking a lot and, I don't know, I just didn't feel good in my stomach. I was feeling sick. I was shaking more than usual. And then I went back on to Zoloft.”[5]
[4] Avanza: mirtazapine – SNRI antidepressant.
[5] Ms Milovanovic’s DHS Individual Prescribing History (IPH): Dr Kecmanovic provided a prescription for ‘sertraline’ dated 24 March 2014.
Ms Milovanovic agreed that she saw a new psychiatrist in January 2021 and stated that:
Because I was advised to see the psychiatrist before but because it's too expensive, $400, and too busy. That's why I went to Dr Zorian Protulipac, because he advised me - for the past few years he was telling me to go and see him, but because I had to see the surgeon for the cancer... that all cost money. Eye specialist also I had to cancel because I can't afford, so that's why I couldn't see him before.
Ms Milovanovic said that she had been seeing Dr Protulipac since about 2013 and it was he who referred her to Dr Kuljic. She explained that she would see Dr Protulipac “every couple of months” and she “spoke to him on the phone many times” because he told her that "[w]hen you feel really depressed, suicidal or something just give me a call and I'll call you back".
Ms Milovanovic agreed that on 9 September 2019 she returned Serbia to recover from an operation on her right arm which had been performed about two weeks earlier. The operation was necessary because of a complication from her breast cancer treatment.
Ms Milovanovic explained that during 2019 her daughter had her own serious health issues and was unable to provide any assistance. However, since finishing her treatment, in about February or March 2020, her daughter would come about once every two weeks and “help me have a shower, blow dry my hair, clean up if there's anything to be cleaned”.
When asked about her JCA interview in May 2019, Ms Milovanovic indicated that she could not remember what she said at that time. However, she conceded that she was living independently and doing her own cooking and able to look after herself. She said that “[i]n 2019 I was feeling better…. [y]es, it was still bad, but, you know, it will be good days and bad days. That was - that's how it was… you would have one day then you feel really good, you feel fine, and the next day you're down, you're crying. It's - it just - maybe that was a good day.”
Ms Milovanovic said she is now longer able to drive because of her visual impairment but agreed that in 2019 that she was still using her car “sometimes only close when I have to go to Liverpool or Miller, but only close, like shorter distances… When I have to do the shopping”.
In response to questions from the Tribunal, Ms Milovanovic explained that, in January 2021, Dr Kuljic increased the dose of Zoloft to 150mg but because “it was not doing any good” he changed the medication to Duloxetine[6] which she has now been taking for only for 7 days with “no difference in things”.
[6] SSNRI antidepressant.
On further questioning by the Tribunal, Ms Milovanovic confirmed that treatment with Zoloft had commenced in Australia and that when she went to Serbia in 2011, she continued on 100mg per day. She explained that in 2013 she was in Serbia for 6 weeks and during that time her GP prescribed a new medication, which she took for only one month (28 tablets) before returning to Australia.
Ms Milovanovic confirmed that during the month she spent in Serbia in 2017 “I just went to psychologist, talking to him, had some sessions with a doctor there” but that her medication continued unchanged, being the 100mg of Zoloft per day.
Ms Milovanovic also confirmed that during the month she spent in Serbia in 2018 she saw a psychologist but there was no change in treatment and she was told that “when you go back to Australia see what's going to happen… it's not enough time to change medication.”
When asked whether any of the psychologists she had seen talked to her about changing medication, Ms Milovanovic said that “Dr Protulipac did, but because he doesn’t change medications - he doesn’t prescribe. That's why he told me he wants to refer me to psychiatrist.” She was unable to remember exactly how long ago changing her medication had first been raised but said “probably more than a year and a half”. However, she did recall being given a referral by her GP to see a psychiatrist at some time in the past, but when she rang up to make an appointment the secretary told her that it would cost $400 which she could not afford.
MENTAL HEALTH CONDITION
Dr Kecmanovic – consultant psychiatrist
In a letter to Dr Todorovic, Ms Milovanovic’s GP dated 8 November 2013, Dr Kecmanovic stated, inter alia, as follows:
She divorced her second husband in 2010. The second divorce affected her a lot. … she went back in Belgrade… returned in Sydney a few months ago…
Secondary to these unfortunate circumstances, she is depressed, uneasy and unhappy… she has been taking Zoloft 100[7] for the last three years or so, with small improvement…
The patient suffers from Dysthymia[8]. I switched her to Avanza 30 nocte[9] and provided counselling… [f]ollow-up arrangements have been made.
[7] Zoloft: sertraline - SSRI antidepressant.
[8] DSM-5: persistent depressive disorder.
[9] Avanza: mirtazapine – SNRI antidepressant.
I note Ms Milovanovic’s DHS Medicare Patient History Report (MPHR) revealed that Ms Milovanovic consulted Dr Kecmanovic on four occasions, 4 November 2013, 21 January 2014, 7 February 2014 and 11 March 2014.
Dr Tomic – clinical psychologist
In a letter dated 23 January 2014, Dr Tomic stated, inter alia, as follows: –
Ms Milovanovic presented with many chronic symptoms which reflect mixture of anxiety and depressed mood... Dg: Major Depressive Disorder, Chronic… treatment sessions to date: six; the treatment has consisted of stress-focussed cognitive therapy… Ms Milovanovic has been suffering for a long period without being properly treated at an early stage of her condition, the therapy has yielded only mild improvements in some aspects of her functioning.
In a letter to Centrelink dated 5 February 2014, Dr Tomic confirmed the diagnosis of “Major Depressive Disorder, Severe, Chronic” and stated his opinion that Ms Milovanovic would be “mentally unable to accept responsibility for any kind of formal employment, including voluntary work for a period of at least two years.”
In a letter dated 3 April 2014, Dr Tomic noted that Ms Milovanovic has attended a second course of psychological treatment and stated that “[c]onsidering the severity and chronicity of her condition, I maintain that she will require a long-term treatment and psychological support.”
Specialist’s Report - Clinical Centre of Serbia
In a translated report, with date of examination as 3 December 2018, Dr Ostojic stated, inter alia as follows:
Mrs. Desa Milovanovic… under treatment since 2011.
Suffers from anxiety, depression and chronic insomnia, as well as pain caused by rheumatoid arthritis…
Initially presented for examination on 02/02/2011, when she was treated with Zoloft 100mg, and her condition significantly improved after 2-3 months. On 06/09/2012 she returned to Australia where she spent approximately a year. The next examination in Serbia took place on 03/09/2013. Her conditions significantly deteriorated. She received treatment again and her health gradually improved. In 2014 her breast was removed due to breast cancer. She underwent mastectomy and radical limphadenectomy [sic]. She subsequently underwent the necessary reconstructive surgeries. Problems developed due to swelling of the entire arm caused by lymphedema, which left her with mobility difficulties.
After spending time in Australia, she was examined again in Serbia on 05/07/2017. On this occasion she was in a rather difficult condition. She was placed under intense treatment and rehabilitation which caused her to recover.
The next examination took place in Serbia on 30/10/2018. She required treatment again as her conditions deteriorated meanwhile. Whilst in Australia, she is unable to afford adequate treatment, has no necessary support, does not react well to the climate, she is lonely, idle, unemployed, isolated… When in Serbia, she receives support from her father, sisters, uncle, relatives and a number of friends who assist her on a daily basis, help her, care for her, assist with [chores] and household duties, personal hygiene and self-care needs. Apart from that, physical therapy is significantly cheaper in Serbia than in Australia, so Mrs. Milovanovic can afford it on a regular basis. She regularly spends time in the recommended therapeutic spas which ease her pain and suffering related to rheumatoid arthritis. This improves everyday functionality and reduces dependence on others... She therefore feels incomparably better psychologically when in Serbia.
Dr Protulipac – clinical psychologist
In a report dated 24 January 2019, Dr Protulipac stated, inter alia, as follows:
Mrs. Desa Milovanovic reported a long history of disability which developed as a result of chronic and complex organic musculoskeletal problems, as well as a longstanding history of psychiatric illness. She has been a recipient of Disability Support Pension since 2017.[10] Her circumstances have changed significantly and she is no longer able to reside in Australia as her health conditions require her to live overseas…
She developed severe psychiatric illness as of 2010. This later coincided with her organi[c] illness and musculoskeletal problems… As she could no longer cope on her own in Australia, she started m[a]king trips to her motherland where she has her father, 2 sisters, an uncle and a number of close relatives as well as numerous friends. During her trips she was assisted in most regards, namely with everyday chores, household duties, personal hygiene and self-care needs. She had access to various treatments and recommended therapeutic spas which she would otherwise be unable to afford in Australia. The presence of the social network and extensive assistance and support that she was receiving caused improvement to her conditions… In his report of 03/12/2018, her treating doctor in Serbia… emphasised the dramatic oscillations to her conditions depending on where she lived since 2011. Based on his observations he was convinced that her conditions worsened each time she returned to Australia and improved accordingly upon every trip to Serbia…
[10] Correction: DSP was granted on 20 February 2015.

With respect to Ms Milovanovic’s mental health condition, Dr Protulipac stated, inter alia, as follows:
She pursued psychiatric treatment as of 2011. She could not recall the names of her treating doctors over the years… she was [trialled] on a number of psychotropic medications but was mostly reacting to sertraline, a common antidepressant medication of SSRI class…
Due to her poor physical and psychological health, she experiences a range of restrictions including the inability to work, attend to house chores, pay bills, be socially active or engage in a recreational or leisure activities. She reported being unable to attend to her self-care needs, prepare food, do laundry, cleaning, cooking or engage in any meaningful activities…
Mental state examination
She was appropriately dressed for the season… and her personal hygiene was reasonable. She was disturbed. She cried whilst providing her personal history … Her affect was visibly depressed. There was evidence of psychomotor agitation and hyper vigilance. She reported having a disturbed sleeping pattern with nightmares…
She had poor concentration and on moments was irritable. She reported having difficulties with short term memory and being forgetful. She reported difficulties in attention, motivation, concentration and short-term memory… She reported feeling socially isolated as she doesn’t attend any social events whatsoever. She experiences difficulties in attending to her personal needs due to limitations in motivation.
Psychometric Assessment
…
oHer results on Beck Depression Inventory are in the range of “severe” which indicates a presence of depression. She experiences pervasive low mood and loss of interest or pleasure in usual activities. She feels hopeless and fails to experience feelings of joy and happiness
oHer results on Beck Anxiety Inventory are in the range of “severe” which indicates a presence of anxiety
DSM V Diagnoses
Ms Milovanovic met the criteria for the following diagnoses:
oMajor Depressive Disorder, Recurrent, Moderate, Without Psychotic Features
oPosttraumatic Stress Disorder, Chronic Type
Opinion…
On the psychiatric side, she suffers from severe symptoms of chronic pain, trauma, depression and anxiety with specific phobia and panic attacks… she is heavily medicated with pain killers, anxiolytic, antidepressant and other types of medication… She is completely socially isolated and unable to pursue recreational or leisure activities. She is unable to attend to her self-care needs, to maintain the household, cook, clean, pay bills, drive, shop or manage her affairs without assistance… There is ample evidence that her conditions significantly improve during her stays in Serbia.
The evidence suggests that she is unable to attend to her needs without regular care and support. She does not have such support in Australia as her son is distant and her daughter is heavily disfunctional [sic]. At the same time, the medical evidence provided confirmed that her conditions were adequately managed during her visitations to Serbia where she receives the necessary assistance and support from her family and where she has access to the appropriate therapies and treatment. It is therefore plausible to conclude that she should relocate to Serbia… It is therefore recommended that she is provided with opportunity to receive her Disability Support Pension whilst residing overseas… [emphasis added]
Treatment…
…
Mrs Milovanovic developed chronic psychiatric problems requiring constant monitoring and treatment. She needs to continue with medications as prescribed and attend psychological treatment. It is advised that she consults a Clinical Psychologist on regular bases, at least monthly. She also requires regular psychiatric treatment. I estimate that a long, rather than short term psychological intervention will be required… especially considering the stubborn nature of depression in patients with chronic pain…
In a brief letter to Centrelink dated 12 May 2020, Dr Protulipac stated as follows:
In my original report… I have provided a detailed history, history of treatment, diagnoses and prognoses on Ms. Desa Milovanic. She suffers from a number of chronic illnesses and conditions, including a very serious and chronic mental illness.
Ms Milovanovic remains under my care at present. Her conditions continue to deteriorate due to the lack of support, isolation, financial difficulties, and all other, relevant psychosocial factors as originally noted. She is experiencing frequent panic attacks and now reports suicidal ideation. Her conditions are at the extreme level and they are fully diagnosed, stabilised and treated. She clearly has no capacity for employment of any type, and this will remain the case in the future.
In a report dated 21 July 2020 Dr Protulipac stated inter alia as follows:
I hereby confirm that Mrs Desa Milovanovic was under my care from 2014 - 2019. …..The treatment outcome was generally poor. Ms Milovanovic’s symptoms remained at the level of significance despite long term, ongoing psychological treatment and the usage of psychotropic medication. Her functionality and thus her capacity for employment did not improve, and her conditions also gradually deteriorated. The treatment which she received whilst in in Serbia did little to enable her to function. …… Mrs Milovanovic is utterly and completely unfit for paid employment in any capacity. [emphasis added]
Dr Protulipac also provided an assessment, in accordance with Impairment Table 5, and on the basis on the evidence he provided in his original report, he concluded that Ms Milovanovic suffered “severe impairment” in all activities involving mental health function and “[c]annot work at all” and was “incapable of undertaking training of any type”.
Dr Todorovic - Ms Milovanovic’s GP
In a Centrelink medical report dated 19 March 2019, Dr Todorovic noted that Ms Milovanovic suffered “severe major depression” for years and that current treatment included Zoloft 100mg daily and “regular counsellings [sic]”.
Dr Todorovic stated that Ms Milovanovic’s condition is “fully treated and stabilised” on the current treatment plan and described impact on ability to function as “ADL’s are affected… concentration, decision making, memory decline” but provided no other details.
In a report dated 11 May 2020 Dr Todorovic stated that “Mrs Milovanovic has been seeing psychologist regularly for her chronic major depression/Adjustment disorder mixed with Anxiety Disorder. Her condition is fully diagnosed treated and stabilized on the current management” [emphasis added]
Dr Todorovic also appears to support Dr Protulipac’s assessment of “severe difficulties” with activities involving mental health function.
Job Capacity Assessment (JCA) report
In the report, submitted 10 May 2019, the assessor relied primarily on the report provided Dr Protulipac and stated as follows:
Based on available medical evidence, this condition is considered permanent and fully diagnosed however, not fully treated and stabilised. It is anticipated that client’s functional capacity is expected to significantly improve within the next 24 months following reasonable medical intervention including ongoing medications, monthly consultation with a clinical psychologist and regular psychiatric treatment as indicated by the clinical psychologist, Dr Protulipac (24/01/2019).
Dr Protulipac… noted there is ample evidence that client’s conditions significantly improve during her stays in Serbia. Thus, client has demonstrated her capacity for engaging in treatment overseas and her symptoms were significantly improved with treatment…
Services Australia Health Professional Advisory Unit
In a report dated 19 September 2020, Dr Stephanie Smith, Medical Advisor, describes her herself as recent medical graduate (2018) and part-time psychiatry trainee (2020).
Dr Smith indicated that her opinion was based on “a file review and detailed analysis of the referenced documents, and… discussions with treating health professionals (THPs)” but also indicated she did not personally interview or examine the applicant.
At the beginning of the report Dr Smith stated, inter alia, that:
Most recently, her DSP was cancelled due to reports from a doctor in Serbia and her clinical psychologist in Australia reporting significant improvement in symptoms when she is in Serbia. Her condition of major depressive disorder was deemed not fully treated or stabilised based on these reports, while other conditions either did not attract enough points or were not assessed as fully diagnosed, treated and stabilised (FDTS).
SYNOPSIS OF HPAU OPINION
The conclusion reached after consideration of all the medical evidence and discussion with Ms Milovanovic’s two primary THPs is the condition of major depressive disorder is not fully treated or stabilised. Both primary THPs indicated there is treatment which is available in Australia which Ms Milovanovic does not receive in Australia but does receive in Serbia. She is known to experience a significant improvement in symptoms when in Serbia. [emphasis added]
Dr Smith recorded a telephone discussion with Dr Protulipac on 15 September 2020, inter alia, as follows:
He stated that he believed he had already provided the Agency with sufficient information. He reiterated that he believed her condition had been deteriorating over the ten year period and was at its worst now, with the most dramatic deterioration in the last five years. Given his view, the question was put to him why then a referral hadn’t been made to a psychiatrist for a review of medications and possible further treatment. He stated that he believed Ms Milovanovic had trialled multiple medications. It was explained to him that as per our information, Ms Milovanovic had only ever been prescribed 100mg of sertraline, despite her worsening state and that while a psychiatrist had recommended a change to mirtazapine, it wasn’t clear from the medical evidence that this had occurred.[11] He then indicated that these medication changes occurred overseas under the guidance of a psychiatrist.[12] It was pointed out that these were at the same time as her symptoms improved[13] and he agreed that this would have played a role in that, along with the increased support from family given that Ms Milovanovic has not built a social network in Australia. When asked if he had recommended medication changes or titration, or referral to a psychiatrist given her deteriorating state, he reiterated that this was already occurring during her visits overseas. When asked if he had communicated his beliefs regarding her process to her GP, he stated that he had not.
[11] See paragraph 37 above.
[12] There is no evidence before the Tribunal to corroborate this.
[13] As above, there is no evidence before the Tribunal to corroborate this.
I note that there was no evidence in this report that Dr Smith has asked Dr Protulipac about Ms Milovanovic’s level of impairment.
Dr Smith recorded a telephone discussion with Dr Todorovic on 15 September 2020, inter alia, as follows:
…Dr Todorovic explained that she felt that Ms Milovanovic’s depression was well-controlled and “stabilised” on 100 mg sertraline. Dr Todorovic was unable to find any record of ever receiving any alternative dosage of sertraline or an alternative antidepressant in her records…
When questioned as to why, if her symptoms were severe and preventing engagement in employment or participating in social activities, this medication hadn’t been increased or changed, she stated that she didn’t think Ms Milovanovic was completely withdrawn or that there had been any change in her functioning within the ten years she had known her. She felt that Ms Milovanovic was able to attend social activities and… and that was still able to function. She indicated that Ms Milovanovic had never indicated that to her that she was unhappy with that prescription or that she was unable to function due to symptoms of depression… Ms Milovanovic was always on time to appointments, kept them regularly, took medications as required, and was well-presented at appointments. There was never any indication that self-care had declined or that she was unable to care for herself. She reported that Ms Milovanovic receives good support from her daughter,[14] but remains independent with daily life. She describes her as having good days and bad days, but that she has no awareness that Ms Milovanovic had ever not been to function due to depression.
Further, Dr Todorovic never received any indication from Dr Protulipac nor Ms Milovanovic that her symptoms were increasing or that she was not responding to treatment. As such, after treating psychiatrist Kecmanovic passed away she had not seen a reason to refer Ms Milovanovic to another psychiatrist…
Dr Todorovic indicated that she did believe Ms Milovanovic should be on a DSP, but rather than for depression, for the combination of medical conditions she faces.
[14] This is not consistent with Ms Milovanovic’s sworn evidence at the hearing the details of which are excluded on the basis of privacy.
In a section headed “Discussion and Opinion”, Dr Smith stated that “[t]he medical evidence is clear that while overseas, Ms Milovanovic shows significant improvement in a short period of time” and that the “[t]he overseas medical report (T30) goes so far as to describe her as ‘recovered’ in response to the treatment she receives whilst there”.
In response to a question posed by the Respondent as to whether Ms Milovanovic mental health condition was fully treated and stabilised as at 17 July 2019, Dr Smith stated as follows with emphasis added:
No. There is overwhelming medical evidence that states that Ms Milovanovic is able to “recover” when in Serbia and feels better psychologically (T30).[15] He indicates that she engages with more treatment, is more social, and demonstrates reduced dependence on others. She has a long demonstrated history of showing significant improvements in functioning whilst in Serbia and then returning to Australia and resuming her life in isolation. This is supported by Dr Protulipac.
The importance of any sort of recovery cannot be understated. It is possible to argue with chronic depressive illness of a severe nature, that even with aggressive treatments any improvement will be minimal and take along period. That Ms Milovanovic can see such significant improvements over a ten year period indicates incresde likelihood of first and second line treatments being successful… There is significant discrepancy between the medical evidence as t what her level of functioning,
[15] The report of Dr Ostojic dated 3 December 2018.
Dr Smith proceeded to express her opinion as to the appropriate management of “chronic depressive illness” and how it should apply Ms Milovanovic treatment, and states inter alia as follows:
As previously stated, while usually it is possible to argue that with such an entrenched illness recovery is very unlikely, Ms Milovanovic has had multiple episodes of remission, as supported by her treating professionals. This is a strong indicator that with appropriate pharmacological intervention, Ms Milovanovic would achieve an improvement in symptoms. These significant changes in functioning suggest that that Ms Milovanovic has a diagnosis of major depressive that tends to remit and relapse depending on her surroundings and engagement with the health service and community around her. Dr Protulipac indicated that when overseas she is trialled on different medications and she is under the care of a psychiatrist. [emphasis added]
Dr Smith then proceeded to make her own assessment of the functional impact on Ms Milovanovic’s activities of mental function as at 17 July 2019, and concluded that she had moderate impairment with a rating of 10 points under Impairment Table 5 and did not have a continuing inability to work. In forming her view, Dr Smith relied primarily on her conversation with Dr Todorovic with little consideration of Dr Protulipac’s reported opinion.
CONSIDERATION
It is clear from the available evidence that Ms Milovanovic has suffered a chronic mental health condition for at least 10 years. The precise diagnosis of her condition is not so clear and has been variously described as Dysthymia (persistent depressive disorder); Depressive Disorder, Severe Chronic; Anxiety, depression and chronic insomnia, Major Depressive Disorder, Recurrent; Post Traumatic Stress Disorder, Severe Major Depression. Chronic Major Depression, Major Depression/Adjustment Disorder mixed with Anxiety Disorder and Major Depressive Disorder that tends to remit and relapse.
In 2015, after several years of treatment, it was accepted that Ms Milovanovic’s suffered severe functional impact on activities involving mental health function and, therefore, was granted DSP.
The Respondent now contends that, as at 17 July 2019, Ms Milovanovic was not qualified for DSP on the basis that her mental health condition was not fully treated and stabilised.
In the alternative, if the Tribunal finds that, as at 17 July 2019, that her condition was fully treated and stabilised the Respondent contends that, on that date, Ms Milovanovic suffered only a moderate functional impact on activities involving mental health function and, therefore, only 10 points under Impairment Table 5 could be assigned. This would mean that, on that date, she would have a total rating of only 15 points[16] under the Impairment Tables and subsequently, she would not qualify for DSP.
[16] 5 points for visual impairment under Impairment Table 12.
Fully treated and Stabilised?
The Respondent’s primary contention is based on the opinion that “there is overwhelming medical evidence”[17] to support a conclusion that on her frequent short visits to Serbia, Ms Milovanovic was able to receive treatment, not available in Australia, that significantly improved her mental health symptoms and functioning.
[17] Health Professional Advisory Unit, Medical Opinion Prepared for Litigation and Information Release Branch Services Australia.
I note at this point that, in the six years prior to September 2019, Ms Milovanovic travelled to Serbia 5 times for about 4-6 weeks each time such that during those years she spent just over a total of 6 months in Serbia.[18]
[18] Centrelink Travel Outside Australia Summary.
The Respondent relies on the “report” by Dr Ostojic and the reports of Dr Protulipac and Dr Smith.
The “report” of Dr Ostjic, dated 3/12/2018, is a one page letter that appears to have been sourced and translated by Dr Protulipac and clearly was provided to support Ms Milovanovic intention to live in Serbia for an extended period and continue to receive DSP.
I find the report to be problematic in that it is incomplete and tends to mislead. The report is lacking in clinical detail and is not consistent with Ms Milovanovic’s sworn evidence at the hearing which I have no reason to question.
Dr Ostojic stated that that Ms Milovanovic was examined on the on 3 September 2013 and that “[h]er conditions significantly deteriorated. She received treatment again and her health gradually improved”.
It is not clear what “conditions” were being treated or how they were being treated. I note Ms Milovanovic returned to Australia on 25 September 2013,[19] 3 weeks after the “examination” and the only apparent additional treatment for her mental health condition was a 4 week supply of a different medication.
[19] Ibid.
Dr Ostojic stated that Ms Milovanovic was again examined again on 5 July 2017 and was “in a rather difficult condition” and “was placed under intense treatment and rehabilitation which caused her to recover” but provided no relevant clinical details. Furthermore, according to Centrelink’s Travel Outside Australia Summary, Ms Milovanovic actually returned to Australia 2 days later on the 7 July 2017.
Dr Ostojic stated Ms Milovanovic was again examined in Serbia on 30 October 2018 and “required treatment again as her conditions deteriorated meanwhile”. I note, however, that Ms Milovanovic returned to Australia on 20 October 2018[20] and, in fact, consulted Dr Todorovic on 23 October 2018.[21]
[20] Ibid.
[21] Medicare Patient History Report.

Dr Ostojic stated that “when in Serbia, she receives support from her father, sisters, uncle, relatives and a number of friends who assist her on a daily basis, help her, care for her, assist with chores and household duties, personal hygiene and self-care needs” and added that “physical therapy is significantly cheaper in Serbia… so Mrs. Milovanovic can afford it on a regular basis. She regularly spends time in the recommended therapeutic which ease her pain and suffering related to rheumatoid arthritis.”
Dr Ostojic report demonstrates that Ms Milovanovic requires significant daily assistance for her various “conditions” and obtains significant benefit from her family support which I accept would make her feel better. However, in my view, there is no convincing evidence to support a conclusion that the “treatment” Ms Milovanovic receives in Serbia results in a “significant improvement” in her underlying mental health condition.
On the issue of treatment and stability of Ms Milovanovic mental health condition on 17 May 2019, I find Dr Ostojic’s report to be unreliable.
I find Dr Protulipac’s evidence problematic and somewhat inconsistent with other evidence.
In his first report dated 24 January 2019, prior to the date of cancellation of DSP, Dr Protulipac is clearly of the opinion that Ms Milovanovic would be better off living in Serbia.
Dr Protulipac’s opinion appears to be influenced by Dr Ostojic’s report as well as a global assessment of Ms Milovanovic’s medical conditions, which he believes would be better managed with the extra support provided her family and friends. In this report, however, he did not directly address the specific issue of Ms Milovanovic treatment at the date of cancellation.
In his letter, dated 12 May 2020, Dr Protulipac stated that “[h]er conditions are at the extreme level and they are fully diagnosed, stabilised and treated [emphasis added].”
In his report dated 21 July 2020, Dr Protulipac stated that “the treatment which she received whilst in in Serbia did little to enable her to function” but did not provide any reasons for the apparent change in his opinion.
In his conversation with Dr Smith on 15 September 2020, Dr Protulipac claimed that Ms Milovanovic’s mental health condition had experienced “the most dramatic” deterioration over the previous five years but was unable to provide a satisfactory explanation as to why treatment her hadn’t changed. He claimed that “medication changes had occurred overseas under the guidance of a psychiatrist”. Apart from the single medication change in 2013 there is no other evidence to support this claim.
In her medical report, dated 11 May 2020, Dr Todorovic confirmed that Ms Milovanovic’s mental health condition was “fully diagnosed treated and stabilized on the current management [emphasis added].”
In her conversation with Dr Smith on 15 September 2020, Dr Todorovic stated that she believed “Ms Milovanovic’s depression was well-controlled and ‘stabilised’ on 100mg of sertraline [emphasis added].”
In her report dated 16 September 2020, Dr Smith cited Dr Ostic’s report to support her opinion that “there is overwhelming evidence that states that Ms Milovanovic is able to ‘recover’ when in Serbia and feels better psychologically” and she has “a long demonstrated history of showing significant improvements in functioning whilst in Serbia”.
I accept that the evidence suggests Ms Milovanovic “feels better psychologically” while in Serbia because of the assistance provided by her family and friends. However, I am not persuaded that the cited evidence supports a conclusion that her mental condition significantly improved during her visits to Serbia.
Dr Smith stated that “Ms Milovanovic has had multiple episodes of remission… This is a strong indicator that with appropriate pharmacological intervention, Ms Milovanovic would achieve an improvement in symptoms” and also stated that:
These significant changes in functioning suggest that Ms Milovanovic has a diagnosis of major depressive disorder that tends to remit and relapse depending on her surroundings and engagement with health service and community around her. Dr Protulipac indicated that when overseas she is trialled on different medication and she is under the care of a psychiatrist.
I note at this point, that I am not persuaded that the available evidence points to a conclusion that Ms Milovanovic has had “multiple episodes of remission” and relapses.
Dr Smith expressed her opinions without the benefit of an interview and examination of Ms Milovanovic and has relied on evidence which, in my view, is of questionable reliability. Therefore her opinions must be given less weight.
Functional Impact
On the issue of Ms Milovanovic’s level of impairment as at 17 July 2019, I note that in his report of 24 January 2019, Dr Protulipac stated that Ms Milovanovic “is completely socially isolated and unable to pursue recreational or leisure activities. She is unable to attend to her self-care needs, to maintain the household, cook, clean, pay bills, shop or manage her affairs without assistance.”
In his report of 21 July 2020, Dr Protulipac stated that, based on the evidence provided in his original report, Ms Milovanovic suffered severe impairment in all activities involving mental health function as set out in Impairment Table 5, and therefore “scored in excess of 20 points”.
In her medical report dated 21 March 2019, Dr Todorovic noted impact on ability to function as “ADL’s are affected… concentration, decision making, memory decline” but provided no other details.
In her report dated 11 May 2020, Dr Todorovic, appeared to support Dr Protulipac’s assessment that Ms Milovanovic suffered severe impairment of mental health function.
In her conversation with Dr Smith on 15 September 2020, Dr Todorovic indicated that Ms Milovanovic “was able to attend to social activities… was always on time to appointments… remains independent with daily life” and that there was “never any indication that self-care had declined”.
In her assessment of functional impact, Dr Smith concluded that, as at 17 July 2019, Ms Milovanovic suffered a moderate impairment of mental health function and assigned a rating of 10 points under Impairment Table 5. Her conclusion was largely based on her conversation with Dr Todorovic.
I note that Dr Smith’s assessment suggests that Ms Milovanovic’s mental health condition had significantly improved since the assessment of severe impairment in 2015. This seems to be inconsistent with Dr Smith’s stated opinion, that Ms Milovanovic’s mental condition was not fully treated and stabilised and that she required significant changes in her psychiatric treatment.
CONCLUSION
Subsection 6(5) of the Impairment Determination provides that in determining whether condition is fully treated the Tribunal must consider “what treatment or rehabilitation has occurred in relation to the condition” and “whether the treatment is continuing”.
There is no dispute that, as at 17 July 2019, Ms Milovanovic was receiving continuing treatment for her mental health condition.
Subsection 6(6) of the Impairment Determination provides that a condition is fully stabilised if “the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years”.
Subsection 6(7) of the Impairment Determination relevantly provides that reasonable treatment is treatment that “is available at a location reasonable accessible to the person; and is at a reasonable cost; and can be expected to result in a substantial improvement in functional capacity…”
There is no dispute that, as at 17 July 2019, Ms Milovanovic was undertaking reasonable treatment.
However, the Respondent submits that further treatment, which involved review by a psychiatrist and a change in medication, was likely to result in a substantial improvement in Ms Milovanovic’s functional capacity.
The difficulty with this submission is that, in 2019, the treatment proposed by the Respondent was not reasonably accessible to Ms Milovanovic at a reasonable cost.
Furthermore, in my view, there is no convincing evidence before the Tribunal to support a conclusion that, as at 17 July 2019, the treatment proposed by the Respondent was likely to result in a substantial improvement in Ms Milovanovic’s functional capacity.
The suggested potential improvement in Ms Milovanovic’s functional capacity was based on evidence that, in my view, was unreliable.
It follows that I am satisfied, that as at 17 July 2019, Ms Milovanovic ‘s mental health condition was fully treated and stabilised and, therefore, permanent for the purposes of the Impairment Determination.
The next issue to consider is whether, as at 17 July 2019, Ms Milovanovic’s impairment was 20 points or more under the Impairment Tables
In the Introduction to Table 5 - Mental Health Function it is stated, inter alia, as follows:
In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed. The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects… The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied on. For mental health conditions that are episodic or fluctuate, the rating that best reflects the persons overall functional ability must be applied…
I find that the evidence before the Tribunal on the issue of Ms Milovanovic’s mental health impairment as at 17 July 2019 is problematic and can best be described as incomplete and unconvincing.
On one side, Dr Smith who, without the benefit of interviewing and examining Ms Milovanovic, provided an assessment, largely based on a single conversation with Ms Milovanovic’s GP, that there was a moderate impairment of mental health function and that she did not have a continuing inability to work.
Dr Smith’s assessment of a moderate functional impairment suggests that, since 2015, her current treatment had in fact resulted in a significant improvement in her function and, on the available evidence, the case for a significant in change in treatment is questionable.
On the other side Dr Protulipac, Ms Milovanovic’s treating clinical psychologist, who reports that she has “severe impairment” of all activities involving mental health function, that her condition had deteriorated over the last five years and that she “[c]annot work at all” and is “incapable of undertaking training of any type”.
The Respondent submits that the opinion of Dr Smith should be preferred over the opinion of Dr Protulipac and that Ms Milovanovic’s mental health condition should be assigned no more than 10 points under Impairment Table 5.
The Respondent submits that a possible explanation for the disparity in the assessment may be explained on the basis that Ms Milovanovic’s condition had significantly deteriorated in the 12 month period between the date of cancellation (17 July 2019) and the date of Dr Protulipac’s third report (21 July 20120).
I find that this submission to be without merit, particularly, as in his report of 21July 2020, Dr Protulipac clearly indicated that his assessment was based on his findings as noted in his first report, dated 24 January 2019.
The significant disparity of this untested evidence leads me to an inevitable conclusion that I am not able to decide this question of fact, either way, on the balance of probabilities.
This type of uncertainty was addressed in a decision of the Full Federal Court in Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] FCA 57; FCR 354 his Honour Woodward J stated, inter alia, as follows:
If the AAT finds itself in the state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to made in the light of new evidence, whether or not the pension should ever have been granted, then it has failed to be satisfied that the person ever was permanently incapacitated for work…
Jenkinson J addressed the issue in slightly different way and stated, inter alia, as follows:
There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself… Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist… In this case the Administrative Appeals Tribunal would determine whether the Social Security Act 1947, upon its proper construction, required that the applicant’s pension be cancelled if she were found not to be permanently incapacitated for work, or required that the applicant’s pension be cancelled unless she were found to be permanently incapacitated for work . In the former case the Tribunal’s lack of persuasion that permanent incapacity did not exist would preclude cancellation. In the latter case the Tribunal’s lack of persuasion that permanent incapacity did exist would result in cancellation.
Section 80 of the Social Security (Administration) Act1999 (Cth) (the Administration Act) relevantly provides:
1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment…
the Secretary is to determine that the payment is to be cancelled or suspended.
This means that the Tribunal must decide whether, as at 17 July 2019, Ms Milovanovic “was not qualified for the payment” of for DSP.
On consideration of the available evidence, I am not persuaded that, as at 17July 2019, Ms Milovanovic was not qualified for DSP and, therefore, I am satisfied, in accordance with the reasoning of the Full Federal Court that the preferable decision in this matter is that Ms Milovanovic’s the DSP should not have been cancelled.
This means that, as at 17 July 2019, Ms Milovanovic was qualified for DSP.
DECISION
The decision under review is set aside and substituted with a decision that Ms Milovanovic’s DSP should not have been cancelled and that, as at 17 July 2019, she was qualified for DSP.

I certify that the preceding 137 (one hundred and thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

..................................[sgd]......................................
Associate
Dated: 4 May 2021

Date(s) of hearing: 11 March 2021

Applicant: In person

Solicitors for the Respondent: Mr M Sheedy, Services Australia

[2021] AATA 1134

4 May 2021

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Remedies

Date(s) of hearing:	11 March 2021
Applicant:	In person
Solicitors for the Respondent:	Mr M Sheedy, Services Australia