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

Naumovski and Secretary, Department of Social Services (Social services second review) [2023] AATA 395 (15 March 2023)
Division:GENERAL DIVISION
File Number: 2022/7370
Re:Verka Naumovski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date:15 March 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
..................[sgd]......................................................
Senior Member A. Nikolic AM CSC
Catchwords

SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION

Acts Interpretation Act 1901 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member A Nikolic AM CSC
15 March 2023
INTRODUCTION

On 8 October 2021, the Applicant lodged a claim for Disability Support Pension (“DSP”),[1] which referred to three physical and psychological conditions.[2] This was rejected by Centrelink,[3] a decision that was subsequently affirmed by an Authorised Review Officer. The Applicant’s appeal to the Social Services and Child Support Division of this Tribunal (“AAT1”) was unsuccessful.[4] On 5 September 2022, she lodged a further appeal with the General Division of this Tribunal.[5]
[1] Exhibit R1, 102-111.
[2] Ibid 135.
[3] Ibid 144; Centrelink is the Respondent’s service provider.
[4] Exhibit R1, 5-10.
[5] Ibid 1-3.
The application was heard by telephone on 10 March 2023. The Applicant was self-represented, gave evidence through an interpreter in the Macedonian language, and was cross-examined. She was supported by her adult daughter, who also gave evidence. The Respondent was represented by Ms Stefana Doslo, a solicitor from Services Australia.
For the following reasons, the Tribunal affirms the decision under review.
Background
The Applicant has lived in Australia since 1975 and became a citizen in 1988.[6] She worked until 1995 as a ‘production worker’ before sustaining an injury,[7] for which she received a compensation payment. The Applicant could not recall how much she received.
[6] Ibid 103.
[7] Ibid 138.
The Applicant’s husband was diagnosed with cancer in 2010,[8] which caused her to become depressed. She looked after him as his condition worsened and received Carer Payment from 2019 until his death in August 2021.[9] The Applicant’s Carer Payment application stated her role was a ‘7 days per week’, during which she provided ‘personal care at home for a significant time each day’.[10] At the current hearing, however, the Applicant claimed she mainly provided companionship for her husband and ‘small things’ like ‘simple cooking’.
[8] Ibid 106.
[9] Ibid 148.
[10] Ibid 105-106.
Legislative Framework
Qualifying requirements for DSP are set out at s 94(1) of the Social Security Act 1991 (Cth) (“the Act”). It must be established that:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In relation to s 94(1)(c)(i), a person has a ‘continuing inability to work’ if:
(i) they have an inability to work due to their accepted impairments for 15 hours or more a week; and
(ii) they have actively participated in a Program of Support (“POS”).
Under s 94(3B) of the Act, participation in a POS is not required if the person has a severe impairment of 20 points or more under a single impairment table. Where a person’s impairment is not a severe impairment, they must have actively participated in a POS within the meaning of s 94(3C) of the Act. The term ‘actively participated’ means satisfying the requirements in a legislative instrument made by the Minister, titled Social Security (Active Participation for Disability Support Pension) Determination 2014. Sections 5 and 7 of that instrument provide that active participation requires partaking in a POS, which is wholly or partly funded by the Commonwealth, for a period of at least 18 months during the 36 months prior to the date of claim.
The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). They assign ratings reflecting the level of functional impact a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, treated, and stabilised, and are likely to persist for at least two years, can be allocated points under the Impairment Tables.
DISMISSAL APPLICATION
Prior to the hearing, the Respondent sought summary dismissal of the Applicant’s claim, contending it had no reasonable prospects of success. Section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that:
‘The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)       …; or
(b)       has not reasonable prospect of success; or
(c)       ….’
If the Tribunal is satisfied that an application has no reasonable prospects of success, the word ‘may’ enlivens a discretion to exercise the dismissal power.[11] The Respondent contends that the Applicant’s unencumbered ownership of a seaside property, in addition to her principal home, puts her assets over the value limit for DSP. The Applicant disputes the Respondent’s valuation, claiming house prices have fallen. The Tribunal notes that a person is not expected to obtain a professional valuation for any asset[12] and the Applicant has declined to allow the Respondent access to the seaside property for a more complete valuation to be undertaken.
[11] Acts Interpretation Act 1901 (Cth), s 33(2A).
[12] Guides to Social Security Policy Law, Social Security Guide, 6 March 2023, 4.6.6.10.
The Tribunal has considered a desktop valuation of the seaside property commissioned by the Respondent, which is higher than the valuation submitted by the Applicant, in a Centrelink Real Estate (“MOD R”) Form dated 8 October 2021. The valuation commissioned by the Respondent contains the following disclaimer:
The Indicative Assessment is not, and should not be construed to be, a representation as to the Market Value of the Subject Property, as defined in the Valuation and Property Standards Manual and the Practice Standards and Guidance.
A Desktop Assessment is merely an Indicative Assessment made without the benefit of an inspection of the subject property or sales evidence. If a formal valuation of the subject property is made based on an inspection it may vary significantly from the results of this Desktop Assessment. The instructing party should be aware that the Desktop Assessment methodology carries with it risks which entail a degree of likely variation greater than might be expected to be produced by a valuation.
Aspects of the usual valuation that have not been completed in this assessment are as follows; internal or external inspection, physical inspection of sales evidence, land topography and aspect; road and access; site defects; impacts of adjoining developments; environmental risks; encumbrances; permissible land uses and land use conformity; improvements and tenancies.
Due to these aspects of the usual valuation process not being completed there are risks that the outcome of this assessment may be inaccurate. These include; the risk of inaccuracy of information contained within this assessment; the inability of the valuer to confirm the accuracy of the information contained within this assessment; and the fact that the assessment will have significant limitations when compared to Valuations, including a greater degree of variation in the resulting Indicative Assessment.
The Applicant said she and her husband purchased the seaside property 25 years ago and she does not wish to sell it because it helps her ‘get out and enjoy life to improve [her] mental health’. She said the seaside property has never been ‘for any investment or profitable gains’ and should be exempt from the DSP assets test. She claims selling it would leave her feeling ‘hollow inside’ for the rest of her life.
Assets under the Respondent’s guidelines are generally assessed on their net market value, which is expressed as the ‘amount a person would expect to receive if they sold the asset on the open market, less any valid debts or encumbrances’.[13] The Applicant claims she owes money to her son for contributions he made to their principal property and for her husband’s funeral expenses. The precise nature and extent of this debt, however, remains opaque despite the Applicant’s explanations and the available documentary evidence. The Applicant did not call her son as a witness.
[13] Ibid, 1.1.M.40; 1.1.E.108.
On current evidence it is not possible to reliably determine the value of the seaside property. It is undoubtedly a valuable asset in addition to the Applicant’s principal residence. On balance, including because of the highly conditional nature of the Respondent’s desktop valuation, the Tribunal declines to dismiss the application.
SUBSTANTIVE MATTER
Evidence
The Tribunal took into evidence two bundles of documents lodged by the Respondent: one numbering 217 pages;[14] and the other 33 pages.[15] The Tribunal has considered a three-page undated and unsigned letter from the Applicant, and her other correspondence in the T-documents. The Tribunal has also considered letters from her two adult children dated 13 and 19 September 2022, and a letter from a neighbour dated 13 September 2022.[16]
[14] Exhibit R1.
[15] Exhibit R2.
[16] Ibid 190-191; 194.
In her DSP application, the Applicant referred to ‘Major Depression and Anxiety’, ‘Diabetes Mellitus Type 2 / Unstable’, and ‘chronic foot pain since foot fracture’.[17] She claimed these conditions began to significantly affect her work capacity in 2018. In oral evidence, the Applicant contextualised her dizziness as resulting from poorly controlled diabetes. She did not meaningfully advance the foot condition, but referred to using a walking stick, and problems with her hips, shoulders, and purportedly ‘losing control’ of her legs. The Applicant claimed that the stress of the current proceeding may consign her to a wheelchair. She stated that ‘at the time [of her DSP claim she] felt a little bit better’ than now, but her conditions have substantially worsened.
[17] Exhibit R1, 135.
The Applicant’s daughter gave oral evidence and was cross-examined. She and her brother are in their 40’s, married, and with two children each. They live separately from the Applicant but visit frequently and assist her with tasks like shopping, transport, and attending appointments. She said the Applicant has had ‘many falls’ because of her diabetes.
Key Issues
Refusal of the Applicant’s DSP application to date is on the basis that her conditions do not warrant an impairment rating of 20 points. The Tribunal must decide:
(a)The relevant period for the Applicant’s claim?
(b)Did the Applicant have a physical, intellectual, or psychiatric impairment(s) as defined under the Act during the relevant period?
(i)If yes, were these capable of being assigned 20 points or more under the Impairment Tables during the relevant period?
(ii)If the Applicant’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment)?
(iii)If the Applicant did not have a severe impairment during the relevant period, but her impairment(s) nevertheless attract a rating of 20 points or more, does she have a continuing inability to work or has she participated in a POS?
What is the relevant period for THE APPLICANT’s claim?
The Applicant signed a DSP application within two weeks of her husband’s death,[18] although this was not lodged until approximately a month later. In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), she had to satisfy the DSP criteria on 8 October 2021 (the date she lodged her claim), or within the following 13-week period ending on 7 January 2022 (“the relevant period”).
[18] Exhibit R1, 133.
The Applicant currently claims to suffer other symptoms, conditions, and impairment beyond those initially relied upon in her DSP application. In assessing whether the Applicant satisfies the requirements at s 94 of the Act, however, medical evidence regarding functional impact after the relevant period can only be considered if it casts light on functional impact during the relevant period.[19]
Did THE APPLICANT have a physical, intellectual or psychiatric impairment during the relevant period?
[19] Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, [27]-[28], citing Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252,253 [1]
It is not contested the Applicant suffers from several conditions, namely diabetes, anxiety and depression, and dizziness. The Tribunal finds she had impairments during the relevant period that satisfy s 94(1)(a) of the Act.
WERE THE APPLICANT’s impairmentS capable of being assigned 20 points or more under the Impairment Tables during the relevant period?
When submitting her DSP application, the Applicant said she continued to receive treatment in the form of counselling for depression, advice from a dietician / diabetes educator, and took analgesia ‘as needed’.[20] Attention now turns to her claimed conditions.
[20] Ibid 136-137.
Diabetes
The Tribunal has considered a letter dated 4 April 2022 from a Diabetes Coordinator, which states the Applicant has suffered Type 2 Diabetes for a decade and takes tablets. Medical records from the Applicant’s general practitioner, however, state that she has suffered diabetes for much longer (since 2006).[21] The Tribunal prefers the latter, because the Coordinator had only been seeing the Applicant for three years.
[21] Ibid 120.
A letter from the Applicant’s general practitioner, Dr Dragan Calic, dated 3 May 2022, stated: ‘Her diabetes also further deteriorated due to big stress, not having any payments from Centrelink since her husband died last year (sic)’.
During the hearing, the Applicant linked her dizziness to poorly controlled diabetes, claiming this had caused falls. Dr Calic’s evidence dated 16 March 2022 only refers to a risk of falls and states the Applicant could not be left alone. The latter claim appears inconsistent with the Applicant’s evidence, and that of her daughter, that the Applicant continues to live independently, albeit with frequent visits and assistance from her adult children.
The Tribunal finds that during the relevant period, the Applicant’s diabetes was fully diagnosed, treated, stabilised, and likely to persist in the subsequent two years. The available evidence, however, points to continuing treatment, including dietary and medication changes, exercise recommendations, and further specialist review. The prognosis was for likely improvement in within a six-to-eighteen-month timeframe.[22] It is noteworthy the Applicant was able to provide fulltime care for her husband, and received Carer Allowance, despite her diabetes. Her claims at the current hearing about the extent of care she provided for her husband conflicts with the basis on which her Carer Allowance application was approved. There is no persuasive basis for a finding that the Applicant’s diabetes had a meaningful impairment effect on her day-to-day activities during the relevant period. It therefore does not attract any impairment points.
[22] Exhibit R1, 117, 148, 152.
Anxiety and depression
The evidence about the Applicant’s depression and anxiety is somewhat inconsistent. She initially said it originated from when her husband was first diagnosed with cancer in 2010, but later stated it occurred: ‘like anyone would after their husband’s death’. The Tribunal has considered the following expert evidence:
(a)A referral from the Applicant’s general practitioner, Dr Dragan Calic, dated 4 April 2022, stated that she suffered depression ‘over the last 2-3 years due to husband’s terminal illness and passing away last year but has not had any treatment, except last 6 months’.[23] Dr Calic’s referral was for ‘six sessions’ with a psychologist, which the Applicant commenced in June 2022.[24]
(b)A letter from the Dr Calic dated 8 April 2022, again stated the Applicant’s depression and anxiety resulted from her husband’s illness and death in September 2021 (sic).[25] He said her depression caused ‘sleep insomnia’, for which medication was prescribed. Dr Calic referred the Applicant to a psychologist for further assessment, which is suggestive of a condition that is not fully diagnosed, treated, or stabilised.
(c)A letter from clinical psychologist Ms Tina Cocking dated 16 September 2022, stated she has known the Applicant since June 2022.[26] The Applicant attended three sessions with Ms Cocking to manage depression. Ms Cocking referred to the Applicant’s earlier consultations with another psychologist, Ms Susana Maksoni, which ‘had not alleviated Ms Naumovski’s distress’. Reference is also made to episodes of ‘dizziness’, although Ms Cocking noted: ‘investigation of these symptoms had not identified the organic origin of the dizziness and it was assumed these were part of her distress’. Reference is also made to the Applicant’s diabetes being ‘poorly managed’, which exacerbated her ‘symptoms of anxiety and low mood’. Ms Cocking opined that the Applicant’s met the diagnostic criteria for ‘Persistent Complex Bereavement Disorder’, counselling for which continued.
(d)A letter from Ms Cocking dated 19 January 2023, stated that the Applicant continued to receive treatment for Persistent Complex Bereavement Disorder. Her symptoms were then assessed as ‘stable and unlikely to improve over the next two years’.
(e)A letter from Dr Calic dated 8 January 2023, stated that the Applicant had commenced one type of medication, which did not improve her psychological symptoms, and then another.[27]
(f)A letter from Dr Calic dated 31 January 2023, stated that the Applicant’s ‘Persistent Complex Bereavement Disorder’ was ‘permanent as there was no any (sic) improvement with treatment’.
[23] Ibid 187.
[24] Ibid 188.
[25] Other material (Exhibit R1, 124) states the Applicant’s husband died on 20 August 2021.
[26] Ibid 192.
[27] Ibid 120.
The Introduction to Table 5 - Mental Health Function requires that a diagnosis of a mental health condition must be made by either a psychiatrist or another medical practitioner with evidence from a clinical psychologist. There is no evidence Ms Maksoni, as a general psychologist, has any endorsements to her registration as a clinical psychologist. It follows that the Applicant’s depression and anxiety was not diagnosed by a person with the requisite qualifications under Table 5. Moreover, the evidence discloses that Ms Cocking, who only started seeing the Applicant in June 2022, diagnosed a different condition, ‘Persistent Complex Bereavement Disorder’. This is a grieving-related disorder that was diagnosed after the relevant period, while different therapeutic and pharmacological approaches were still being trialled to address the Applicant’s symptomology.[28]
[28] Ibid 119.

The Tribunal finds that the Applicant’s depression and anxiety were not fully diagnosed, treated, and stabilised during the relevant period. It follows that the Tribunal cannot assign an impairment rating. Even if the Tribunal is wrong about this and the Applicant’s depression and anxiety were fully diagnosed, treated, and stabilised, the evidence presented by Dr Calic, Ms Maksoni and Ms Cocking, does not persuasively correlate with the requirement for either a moderate or severe impairment under Table 5. That is because:
(a)Most of the medical evidence post-dates the relevant period and it is difficult to discern what period some references to impairment relate to, or which condition caused the claimed impairment. The Tribunal finds that much of the medical evidence is general and overly reliant on the Applicant’s self-reported claims.
(b)The Applicant continues to live independently, notwithstanding assistance from her adult children.
(c)Pursuant to s 954A of the Act, the Applicant must have provided daily care and attention to her husband for a total of at least 20 hours per week to qualify for Carer Allowance. The Tribunal accepts the Respondent’s submission that receipt of Carer Allowance until August 2021, and the level of care claimed to have provided,[29] is irreconcilable with the severe impairments the Applicant invokes during the relevant period, which commenced relatively soon after her husband’s death.
[29] Ibid 106-107.
Dizziness
The Tribunal has considered the Applicant’s oral evidence about dizziness, and a letter from general practitioner Dr Dragan Calic dated 5 September 2022, which stated:
[The Applicant is] ‘getting dizzy due to blood pressure and blood glucose levels fluctuating and is unstable at times, prone to falls (sic)…needs constant caring at home…over the time I have been comnsolidating with Verka. Her condition is slowly deteriorating further and there is no improvement for years to come that is why she is unable to perform any duties and tasks. In my medical opinion she is unfit for any type of work and that is permanent’.[30]
(Errors in original.)
[30] Ibid 189.
The Tribunal has considered a CT scan result of the Applicant’s brain to investigate her dizziness, which returned a normal result.[31] It is not possible on current evidence to persuasively conclude why the Applicant suffers dizziness or what might be done about it. The Tribunal does not accept Dr Calic’s reference to the Applicant not being able to ‘perform any duties and tasks’, which is irreconcilable with the available evidence. The Tribunal does not accept the Applicant’s dizziness was fully diagnosed, treated, and stabilised during the relevant period. It therefore does not attract any impairment points.
[31] Ibid 178-179.
Foot fracture
There is a paucity of evidence regarding the chronic foot condition claimed by the Applicant in her DSP application. The injury to her foot was a fracture of the 5^th metatarsal[32] on 20 December 2019, after she tripped in her backyard.[33] At the time of presenting to hospital for treatment, the Applicant reported mild foot pain only. The Applicant did not meaningfully raise this foot fracture during the hearing and there is no expert evidence the fracture has not resolved or causes impairment. This condition does not attract any impairment points.
[32] A relatively common fracture to the long bone on the outside of the foot that connects the small toe.
[33] Exhibit R1, 112.
Hips, back, shoulders, arms, legs
The Applicant referred during the hearing to problems with her hips,[34] back, shoulders, arms, and purportedly ‘losing control’ of her legs. These conditions were not part of her original DSP claim.
[34] Ibid 186.
A letter from Dr Calic dated 8 January 2023, which is a year after the relevant period, refers to the Applicant having hip and back pain, headaches, hypertension, and elevated cholesterol. Other evidence discloses the Applicant has suffered Hypercholesterolaemia since 2006.[35] The Tribunal has considered an x-ray of the Applicant’s pelvis conducted in May 2022, which reported ‘no acute findings’.[36] There is no reliable evidence that problems with the Applicant’s hips, back, shoulders, arms or legs warrant any impairment points during the relevant period.
If THE APPLICANT’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment)?
[35] Ibid 120.
[36] Ibid 182.
None of the Applicant’s claimed conditions are capable of being assigned 20 points or more under a single impairment table. It therefore follows she does not have a severe impairment within the meaning of section 94(3B) of the Act.
If THE APPLICANT did not have a severe impairment during the relevant period, but HER mpairment(s) nevertheless attract a rating of 20 points or more, does She have a continuing inability to work or has She participated in a POS?
The Applicant’s impairments have not been assigned any points under the impairment tables, meaning that she does not qualify for DSP under section 94(1)(b) of the Act. It is therefore unnecessary to consider whether she has a continuing inability to work or has actively participated in a POS in the three years prior to lodging her DSP claim as required by section 94(1)(c) of the Act. The Tribunal does so for completeness.
The Applicant has not previously commenced or completed a POS. She is also not covered by any of the permissible exceptions, such as suffering a severe impairment. Based on her evidence about the extent of care responsibilities during her husband’s illness, the Tribunal finds she did have an ability to undertake at least 15 hours of work per week, or, in the alternative, a training activity within two years of the qualification period. As such, the Applicant did not have a continuing inability to work.
Conclusion
The Applicant did not satisfy ss 94(1)(b) and 94(1)(c) of the Act during the relevant period.
DECISION
The decision under review is affirmed.

I certify that the preceding forty (40) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 15 March 2023

Date of hearing: 10 March 2023

Advocate for the Applicant:
Applicant via telephone

Advocate for the Respondent: Ms Stefana Doslo

[2023] AATA 395

15 March 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	10 March 2023
Advocate for the Applicant:	Applicant via telephone
Advocate for the Respondent:	Ms Stefana Doslo