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

Ozcan and Secretary, Department of Social Services (Social services second review) [2016] AATA 262 (26 April 2016)

Division

GENERAL DIVISION

File Number(s)

2014/5112

Re

Museref Ozcan

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Dr Gordon Hughes, Member

Date 26 April 2016

Place Melbourne
The Tribunal sets aside the decision under review and substitutes a decision to reinstate the Applicant's Disability Support Pension and to grant unlimited portability.
....................................[sgd]....................................
Dr Gordon Hughes, Member
Catchwords
SOCIAL WELFARE – social security payments – disability support pension – whether applicant suffering 20 point impairment in respect of either a spinal condition or a psychiatric condition – portability – decision set aside
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), Tables 4, 5; s 6
REASONS FOR DECISION
Dr Gordon Hughes, Member
26 April 2016

The Applicant was seeking a review of a decision by the Respondent to suspend her Disability Support Pension (DSP) on the basis that she had been overseas for more than 6 weeks, and to cancel her DSP on the basis that she had an impairment rating of less than 20 points.
The Applicant was born on 31 March 1974. She has a long standing history of anxiety and depression dating back to 2000, including at least two attempts at taking her own life. She hurt her lower back while mopping a floor in 2004 and underwent physiotherapy for approximately 12 months. She developed neck pain in 2013 and commenced physiotherapy for that condition which she discontinued as she considered the treatment increased the pain.
On 12 November 2013, the Applicant lodged a claim for DSP accompanied by a report from her general practitioner, Dr Hana Balvin. This claim was accepted by Centrelink on 24 January 2014 on the basis that both the spinal and psychiatric conditions were permanent, with the psychiatric condition attracting 20 points under Table 5 and the spinal condition attracting 10 points under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Impairment Tables Determination’).
On 30 January 2014, the Applicant advised Centrelink of her intention to travel to Cyprus to visit her husband, and applied for unlimited portability as she intended to stay overseas for more than 6 weeks. A job capacity assessment was completed on 11 March 2014. The Applicant travelled to Cyprus on 4 June 2016.
On 16 July 2014, the Applicant’s DSP was suspended because she had remained overseas beyond the 6 week portability period. On 24 July 2014, Centrelink cancelled the Applicant's DSP on the basis that she no longer satisfied the eligibility criteria, specifically because her total impairment score, based on the job capacity assessment, was only 10 points. The Applicant returned to Australia on 7 September 2014.
The Applicant seeks a review of the cancellation of her DSP and, in the event that her DSP is restored, a review of the refusal to allow unlimited portability.
Legislation
Qualification for DSP
Section 94(1) of the Social Security Act 1991 (the Act) provides, relevantly:
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;
Section 94(2) provides:
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)     …
(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.
Section 94(3) provides:
In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
The Impairment Tables Determination, which took effect from 1 January 2012, and which is referenced in section 94(1)(b), contains Impairment Tables together with the rules for the application.
Relevantly, section 6 of the Impairment Tables Determination provides:
Impairment ratings
(3)         An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note:     For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)         For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified          medical practitioner; and
(b) the condition has been fully treated; and
Note:      For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note:     For stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist         for more than 2 years.
Fully diagnosed and fully treated
(5)         In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition;    and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully Stabilised
(6)         For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully    stabilised if:
(a) either the person has undertaken reasonable treatment for the condition    and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to           undertake work in the next 2 years is not expected to result, even            if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:     For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)         For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Table 4 of the Impairment Tables Determination provides, in relation to the descriptors of a 20 point functional impairment involving spinal function:

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

Table 5 of the Impairment Tables Determination provides, in relation to the descriptors of a 20 point functional impairment due to a mental health condition:

20

There is a severe functional impact on activities involving mental health function.

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

(a)      self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)      social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)      interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)      concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)      behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)      work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

Portability

Section 1218AAA of the Act states:
(1)         The Secretary may make a written determination that a particular person's    maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances ) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe    impairment would prevent the person from performing any work      independently of a program of support (within the meaning       of subsection 94(4)) within the next 5 years.
(2)         …
(3)         The Secretary may revoke the determination if any of the qualifying circumstances    ceases to exist.
(4)         …
(5)         In this section:
"work " means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible     labour market.
Relevant to section 1218AAA(1)(b) of the Act, section 94(3B) provides:
(3B) 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…
Discussion
The Respondent conceded that the Applicant suffers from the following conditions for the purposes of section 94(1)(a) of the Act:
·Anxiety/depression
·Back condition (lumbar and cervical)
·Hypothyroidism
·Hypertension
·Gastric reflux
The Applicant's claim, and the evidence presented at the hearing, focused on the anxiety/depressive condition and the back condition.
In this regard, there are two issues before the Tribunal. The first is whether the decision to cancel the Applicant's DSP was correct and, if it was not correct, whether the Applicant satisfies the requirements for unlimited portability of DSP. Specifically, the Tribunal must decide whether the Applicant satisfies the eligibility criteria for DSP as set out in section 94(1) of the Act. If satisfied that the Applicant has a severe impairment as defined in section 94(3B) of the Act, being a 20 point rating under one impairment table, the second issue before the Tribunal is whether the Applicant satisfies the qualifying circumstances for unlimited portability of her DSP under section 1218AAA of the Act.
Qualification for DSP
In relation to the Applicant's anxiety/depression, the Respondent conceded, for the purposes of section 94(1)(a) of the Act, that the Applicant suffered from a mental health condition in the form of anxiety/depression and this was fully diagnosed as at the date her DSP was cancelled. The Respondent further accepted that the Applicant was suffering from a cervical and lumbar spondylosis and disc degeneration which was fully diagnosed as at the date the Applicant's DSP was cancelled.
Having satisfied the requirements of section 94(1)(a) the Tribunal must next determine if, for the purposes of section 94(1)(b) of the Act, the Applicant's impairment, whether attributable to her psychiatric condition or her spinal condition, attracts an impairment rating of 20 points under one of the applicable Tables. In this regard, it is necessary to consider each of the conditions separately.
A number of factors must be satisfied in order to meet the requirements of section 94(1)(b). Summarised, section 6(3) of the Impairment Tables Determination requires that the condition be permanent and that it result in an impairment that is more likely than not to persist for more than two years.
Pursuant to section 6(4) of the Impairment Tables Determination, a condition will be regarded as "permanent" if it has been "fully diagnosed by an appropriate qualified medical practitioner", has been fully treated, has been fully stabilised and is more likely than not to persist for more than two years. The Respondent conceded that the condition had been "fully diagnosed" for the purposes of section 6(4)(a).
In determining whether a condition has "fully treated" for the purposes of section 6(4)(b) of the Impairment Tables Determination, section 6(5) requires a consideration of whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or is planned for the next two years.
For the purpose of determining whether a condition has been "fully stabilised" for the purposes of section 6(4)(c) of the Impairment Tables Determination, section 6(6) contemplates three possible scenarios. First, the condition will be regarded as "fully stabilised" if the individual has undertaken reasonable treatment for the condition, such that any further treatment is unlikely to result in significant functional improvement to enable the individual to undertake work in the next two years. Second, if the individual has not undertaken reasonable treatment for the condition, the condition will be regarded as "fully stabilised" if significant functional improvement (to a level enabling the individual to undertake work in the next two years) is not expected, even if the person undertakes reasonable treatment. The third possible scenario is that although the individual has not undertaken reasonable treatment for the condition, there is a medical or other compelling reason for the person not to undertake such treatment.
The concept of "reasonable treatment" is elaborated upon in section 6(7) of the Impairment Tables Determination and includes a consideration of the availability of treatment at a reasonable location, reasonable cost and the expectation that it will result in a substantial improvement and functional capacity.
The Applicant gave evidence to the Tribunal in relation to both her back and neck condition and in relation to her psychiatric condition. She told the Tribunal that she first experienced back symptoms in 2003 and had been experiencing neck symptoms since 2013. She had not received treatment for her back condition because she was "too scared" to undergo medical treatment.
The Applicant said she lived with her mother, and had been unable to do any housekeeping for over ten years because of her back pain. She could not wash dishes, do laundry or hang out washing because of her back, neck and shoulder pain. She had been unable to twist her neck and this had made driving difficult since 2013. She had difficulty sitting for lengthy periods due to her lower back pain.
When the Applicant flew to Cyprus, her uncle helped her with her luggage, and she used pain killers and nausea tablets during the flight and walked around the aisles of the aeroplane wherever possible. She told the Tribunal that following the flight, it took her four weeks to recover, during which she had constant lower back and neck pain.
The Applicant said she experienced numbness and pins and needles in the hands and shoulders most of the time and that this was aggravated by movement. Her mother did her shopping as she was unable to do it herself and she had trouble lifting even light objects in the kitchen. She no longer carried a handbag, and she no longer had buttons on her clothes because it was too difficult for her to do them up. She also had difficulty writing.
With respect to her psychiatric condition, the Applicant confirmed to the Tribunal that she had been diagnosed with major depression and anxiety. She said she had twice attempted suicide. She was prescribed anti-depression tablets on two separate occasions for a short time but stopped taking them because of the side effects. Medication prescribed by Dr Balvin caused abdominal pains and urinary problems. Medication prescribed by another general practitioner, Dr Lim, caused vomiting. She was convinced that her father had died as a result of being given incorrect medication in 2005 and this had made her wary about taking any tablets.
The Applicant said she did not like leaving the house on her own and rarely went to the shops. She would have panic attacks when driving. She had no friendships outside the family and, at family gatherings, children made her anxious. She found that she became frustrated or angry quite quickly and changed her mind quite frequently, being unable to make decisions. She had never done any paid work and had no training.
Under cross-examination, the Applicant told the Tribunal that she had never looked for work since leaving school at the age of 17. She said she had travelled to Cyprus in 2011 with her husband who then stayed when she returned alone. In 2014, she travelled to Cyprus with her mother to visit her husband. She told the Tribunal she had refused an epidural for her back condition when recommended by a spinal surgeon because she was worried about the risk of infection. She explained that she never flew alone and that, when she returned from Cyprus without her husband in 2011, she had come back in the company of two cousins.
The Applicant told the Tribunal that she had refused further medication recommended by Dr Kader because she felt uncomfortable with the way Dr Kader had treated her.
Evidence was also given by the Applicant's sister Sherie Granieri. Mrs Granieri confirmed that the Applicant had suffered depression for some years and had attempted suicide "maybe three times". She said the Applicant did not see anyone outside the immediate family, had always lacked confidence and had few friends, principally because of concerns about her weight. Ms Granieri told the Tribunal that she no longer drove the Applicant to appointments because she was such a nervous passenger. She said the Applicant's concentration was not good, and that she had difficulty making decisions, as evidenced by her tendency to seek verification on Google in relation to any information, including medical advice. Ms Granieri said the Applicant had trouble sticking with decisions once they had been made.

In relation to the Applicant's physical condition, Mr Granieri said the Applicant complained of back, neck and arm pain every day. Her mother was required to do all housework, and this had been the case for the past three years. She said the Applicant had difficulty using her arms above her head, and difficulty twisting her neck. She could not sit for long or stand for long.
Impairment rating – psychiatric condition
In relation to the Applicant's psychiatric condition, the Tribunal heard evidence from forensic psychiatrist Dr Anthony Cidoni, who had previously provided a report dated 6 May 2015 following an assessment of the Applicant carried out on 4 May 2015.
Dr Cidoni's report concluded that the Applicant suffered from a major depressive disorder, in combination with generalised anxiety disorder with panic. The date of onset of these conditions was adolescence (in the case of her depression) and 2001 (in the case of the Applicant's anxiety), the conditions having been diagnosed by Dr Balvin in 2004 and confirmed by Dr Kader in 2013.
Dr Cidoni noted that the Applicant had received approximately five months in total of anti-depressant treatment with at least three different agents, plus nine sessions of psychological treatment which he regarded as a "small amount". Dr Cidoni thought that the Applicant required at least 20 to 30 sessions of cognitive behavioural therapy as a trial and several months each of at least two different anti-depressants.
Dr Cidoni regarded the conditions as fully diagnosed but not fully treated, in the sense that the Applicant had not had an adequate length of psychotherapy and her anti-depressant therapy had been brief. In this respect, it was his opinion that the Applicant's anxiety and depression was not fully treated and stabilised. At the same, he did not believe that further treatment would result in significant functional improvement to a level that would enable her to undertake work in the next two years, given the severity and chronicity of her symptoms, her difficulty in tolerating pharmacological treatment and her failure to respond to psychological treatment.
Dr Cidoni's report concluded that the Applicant's condition attracted an impairment of 20 points, observing that the impairment was causing a significant level of symptomatology including suicidal ideation and severely impairing social and occupational functions. This was likely to be a lifelong condition that would prevent the Applicant from doing work in the next five years.
In giving evidence to the Tribunal, Dr Cidoni attributed the Applicant's state of impairment to her mental rather than her physical condition. He observed reduced motivation and general depressive behaviour. Her social activity was restricted by mood swings, lack of motivation and anxiety, such that she could not be left alone. She had limited interpersonal relationships, not extending greatly beyond her mother and sister. She was easily upset and her concentration was affected by her mental levels, as was her planning and decision making. It was, in Dr Cidoni's opinion, clear that the Applicant was unable to work as she could not function in the workplace due to her depression and anxiety.
Under cross examination, Dr Cidoni maintained that the Applicant had no capacity to work to any extent, not even a couple of hours a week. Medication and counselling was unlikely to be useful and psychotherapy was unlikely to have significant impact. Dr Cidoni did not consider that the Applicant's travel overseas was inconsistent with an enduring mental illness, even if it had a led to temporary mental improvement. Dr Cidoni was confident in his methodology and rejected the suggestion that his assessment was tainted by the fact that it relied upon self-reported symptomology. Dr Cidoni explained that, as a forensic psychiatrist, his expertise lay in assessing a patient's history and nothing had led him to believe the Applicant was being untruthful. Based on the information available, he was confident that the Applicant's chronic condition had been present for a number of years.
The Tribunal was also referred to a medical report from psychiatrist Dr Linda Kader, dated 12 April 2013. Dr Kader expressed the opinion that, in her impression, the Applicant was suffering a major depressive disorder, possibly with generalised anxiety disorder and panic attacks. She considered the Applicant would benefit from SSRI (selective serotonin reuptake inhibitor) to help with her depressive and anxiety symptoms and she would also need ongoing supportive psychological work with a psychologist under a mental health care provider. She further observed that the Applicant was "not keen on medication" but added that "her current predicament and long standing history certainly warrants medication treatment".
The Tribunal was also referred to a report from psychologist Laura Agosta, dated 25 November 2014. Ms Agosta noted that the Applicant had attended six appointments for assessment and treatment for generalised anxiety disorder and some associated depressive symptoms. In the report to the Applicant's general practitioner, Dr Pin Pin Lim, Ms Agosta suggested re-referring the Applicant for an additional four sessions, noting that further treatment was required, focusing on acceptance and commitment therapy and, in particular, mindfulness and delusion strategies.
The Tribunal is satisfied, on the basis of the medical evidence and its own observations of the Applicant, that the Applicant has a psychiatric or physiological condition resulting in a severe functional impact on activities involving mental health function, consistent with the criteria which must be present under Table 5 to attract 20 impairment points.
Having satisfied the criteria set out in Table 5, the Applicant can, under section 6(3) of the Impairment Table determination, still only be assigned an impairment rating if her condition is "permanent" and is such that it is more likely than not to persist for more than two years.
In this regard, the Respondent contended that Dr Cidoni's opinion in relation to an impairment rating of 20 was made without explanation, clinical justification or reference to any of the listed criteria and therefore should not be relied upon by the Tribunal. From its own observations, however, supported by the medical evidence, the Tribunal considers there is no doubt that the Applicant's psychiatric condition will persist for at least another 2 years as required by section 6(3)(b) of the Impairment Tables Determination. To be classifiable as "permanent", however, the condition must also satisfy the requirements of section 6(3)(a) of the Impairment Tables Determination, meaning that it must, as set out in section 6(4), be "fully diagnosed", "fully treated" and "fully stabilised".
The Tribunal accepts, on the basis of the evidence presented to it, that the Applicant has severe difficulties with self-care and independent living, social/recreational activities, interpersonal relationships, concentration, decision-making and work/training capacity. This was borne out by the evidence from Dr Cidoni and Sherie Granieri, along with the tribunal's observations of the Applicant when presenting her evidence.
Conclusions in relation to psychiatric condition
The Respondent conceded that the condition was "fully diagnosed".
On the question of whether the Applicant's condition is "fully treated", section 6(5) of the Impairment Tables Determination requires the Tribunal to consider whether there is corroborating evidence of the condition, what treatment has occurred and whether treatment is continuing or is planned for the next 2 years. In this regard, the Tribunal considers there is ample corroborating evidence. The existence of a mental health condition is acknowledged by virtually all medical practitioners who have examined or treated the Applicant. The treatment received by the Applicant in the past has been referred to above, and whilst a number of practitioners would prefer her to receive further treatment in the future, most are of the opinion that it will not benefit her because of her mindset.
On the question of whether the condition was "fully stabilised", the Tribunal notes Dr Cidoni's observation that "Ms Ozcan's condition is not fully…stabilised". This comment must be taken in context, however. Dr Cidoni was referring specifically to the fact that the Applicant had not had an adequate length of psychotherapy, and that her anti-depressant therapy had been brief. He went on to qualify his comment by observing that due to the chronicity of the Applicant's symptoms and a range of other factors, it was unlikely that further treatment would have a significant impact on her symptoms and that further treatment would not result in a functional improvement to a level that would enable her to undertake work in the next two years. In other words, for the purposes of section 6(6)(b)(i) of the Impairment Tables Determination, and regardless of whether or not the Applicant had undertaken "reasonable treatment" for the psychiatric condition, significant functional improvement could not be expected to result in the next 2 years to the extent of enabling the Applicant to undertake work.
Having established that the Applicant is entitled to have an impairment rating assigned, the next question is whether in fact an impairment rating of 20 points is appropriate.
On the above basis, it is the Tribunal's conclusion that the Applicant has an impairment rating of 20 points under the Impairment Tables Determination and satisfies the requirements of section 94(1)(b) of the Act, at least in relation to her psychiatric condition. It is next necessary for the Applicant to satisfy the requirements of section 94(1)(c), namely that she has a "continuing inability to work". Section 94(2) elaborates upon the meaning of "continuing inability to work".
The first issue to consider in this regard is whether, for the purposes of section 94(2)(a) of the Act, the Applicant is suffering an impairment which sufficiently prevents her from doing any work independently of a program of support for the next two years. It is also necessary to consider, for the purposes of section 94(2)(b), whether the impairment is such that the Applicant will be prevented from undertaking a training activity during the next 2 years, or alternatively is unlikely, because of the impairment, to do any work independently of a program of support for the next 2 years.
The continuing inability to work must arise from an impairment that is permanent, fully diagnosed, treated and stabilised. The Respondent contended that the only impairment which was fully diagnosed, treated and stabilised on 24 July 2014 was the Applicant's back condition. The Tribunal rejects this contention for the reasons set out above.
The Respondent referred to previous decisions of the Tribunal in support of its contention that, in the process of determining whether a person has a continuing inability to work, a number factors must be disregarded including:
·any impairments that have not been assigned a rating under the impairment tables;
·the person's motivation to work or train except where medical evidence indicates that the lack of motivation is directly attributable to the impairment;
·the person's preferences regarding the type of work or training;
·the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities.
The Tribunal does not consider that any of these factors is a relevant consideration in the present case.
The Respondent submitted that the only assessment of the Applicant's capacity contemporaneous with the date of cancellation was that made by the job capacity assessor. In a report dated 28 March 2014, the job capacity assessor concluded that the Applicant's capacity to work within two years with intervention was 15-22 hours per week in light, semi-skilled work. The Respondent emphasised that there was no evidence that the Applicant's impairments would prevent her from undertaking a training activity that would enable her to work within two years of 24 July 2014.
It is the Tribunal's opinion that the Applicant, by virtue of her psychiatric condition alone, satisfies the requirements of section 94(2) of the Act. The medical evidence, especially from Dr Cidoni, and also the Tribunal's assessment of the evidence given by the Applicant and her sister, leads to the conclusion that the Applicant is incapable of working independently of a program of support for at least the next 2 years, and that any training she was capable of receiving would be unlikely to enable her to work independently of a program of support within the next 2 years.
Spinal condition
Having reached the above conclusion in relation to the Applicant's psychiatric impairment, it is not necessary for the Tribunal to decide whether she also has an impairment rating of 20 points in relation to her neck and spinal condition. Nevertheless, for the sake of completeness, the Tribunal makes the following observations.
Relevant to the Applicant's physical impairment, the Tribunal was provided with a medical report from Dr Balvin dated 23 October 2013. Dr Balvin reported that the Applicant had first presented with back problems in January 2004 and x-rays of her lower back revealed L4/5 disc space narrowing and degenerative changes of facet joints. She was initially treated with physiotherapy. Her condition deteriorated over the years and in 2009 she was referred for a CT scan which revealed mild to moderate L4/5 lumbar canal stenosis secondary to L4/5 disc prolapse and bilateral nerve root impingement. The Applicant was referred to Western Hospital Footscray, but did not present.
Dr Balvin saw the Applicant again on 20 February 2013 when she presented with lower back pain and also neck problems. The Applicant was referred to orthopaedic surgeon Mr Gerald Quan who offered epidural spinal injections which she declined over concern about possible risks. An MRI scan revealed multi-level cervical spondylosis with broad hard disc protrusion at C7/T1 causing foraminal stenosis and compression of the C8 nerve roots. Mr Quan had expressed the opinion that management should be conservative but the Applicant would require surgery if the condition deteriorated. Dr Balvin concluded, in relation to the Applicant's neck and back condition:
"In my opinion her condition is permanent, will persist for more than two years and I believe her condition will more than likely deteriorate.
At this stage no surgical management of her cervical or lumbar disc disease is indicated, but may be in the future if condition will deteriorate further.
I also believe that Mrs Ozcan is unable to perform any duties at this stage, considering her age, education and no work experience, I feel that she is not employable at this stage and in the future.
Her impairment rating for the above condition is 20 points."
Specifically, Dr Balvin recorded that the Applicant was unable to perform overhead activities, turn her head or bend her neck without moving her trunk, bend forward to pick up a light object from a desk or table or remain seated for at least ten minutes.
The Tribunal also reviewed a report prepared by the Health Professional Advisory Unit of the Department of Human Services dated 9 December 2013. The report observed that the functional incapacity reported by Dr Balvin was not reflected in the Applicant's imaging studies or her spine but the report nevertheless "acknowledged that she is considerably distressed at present". The report concluded that the Applicant's spinal condition which had been present for several years could be considered permanent and justified a rating of 5 impairment points under Table 4. The report disputed Dr Balvin's assessment of 20 impairment points. It was considered that the Applicant's acute cervical symptoms should improve with conservative care as recommended by her treating neurosurgeon and, as at the relevant time, the condition could not be regarded as being fully treated and stabilised.
In the Tribunal's opinion, the evidence presented to the Tribunal does not support a conclusion that the Applicant qualifies for DSP on the basis of her spinal and neck condition alone, considered independently of her psychiatric condition. The Tribunal is mindful of Dr Balvin's conclusion that the Applicant is suffering from a permanent condition which will persist for more than two years and which in all likelihood will deteriorate, that the Applicant is unable to perform any work at this stage and is not likely to be employable in the future. The Tribunal is also mindful that Dr Balvin attributed an impairment rating of 20 points to the Applicant’s spinal condition.
In relation to this condition, however, the Tribunal is also mindful of the report prepared by the Health Professional Advisory Unit of the Department of Human Services on 9 December 2013 which challenged Dr Balvin's findings and which, whilst acknowledging that the Applicant was considerably distressed, concluded that an impairment rating of 5 impairment points was more appropriate.
The Tribunal had limited medical evidence before in order to form a conclusion in relation to the Applicant's spinal and neck condition but is unable to be satisfied, on the basis of the material available, that the criteria for an impairment rating of 20 points would be justified. The Tribunal was not satisfied that the Applicant was unable to perform overhead activities, turn her neck without bending her trunk, pick up light objects, or remain seated for periods longer than 10 minutes. The Tribunal does accept, however, that the Applicant might be unable to sustain overhead activity and might have some difficulty in turning her head. The evidence before the Tribunal was sufficient to conclude that the Applicant's condition is fully treated and stabilised, and that an impairment rating of 10 points would be most appropriate. On this basis, and in this regard, further discussion of the Applicant's spinal and neck condition is not relevant in determining the Applicant's entitlement to DSP.
Portability
The Respondent contended that even if the Applicant were assigned 20 points or more under a single impairment table, there was a lack of cogent evidence that directly addressed whether the Applicant had less than 2 hours per week future work capacity.
It asserted that the Applicant did not, for the purposes of section 1218AAA(1)(b) of the Act, have a severe impairment as defined within section 94(3B); she had not satisfied the further requirement that she would suffered from a severe impairment for the next 5 years as required by section 1218AAA(1)(c); and there was no basis for concluding that the Applicant's impairment would, if she were in Australia, prevent her from performing any work independently of a program of support within the next 5 years as required by section 1218AAA(1)(d).
It is the Tribunal's finding that, on the basis of the medical evidence referred to above, and for the reasons set out above, the Applicant is suffering a severe psychiatric impairment within the meaning of section 94(3B) of the Act; the impairment will persist for at least 5 years (and in all probability indefinitely); and the impairment will in all probability prevent her from performing any work independently of a program of support within the next 5 years.
Decision
For the reasons stated above, it is the Tribunal's finding that the decision under review should be set aside and a decision substituted to reinstate the Applicant's DSP and to grant unlimited portability.

71. I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of:

72. Dr Gordon Hughes, Member

..................................[sgd]......................................
Associate
Dated 26 April 2016

Date of hearing 16 March 2016

Advocate for the Applicant Angie Wong

Solicitors for the Applicant Victorian Legal Aid

Advocate for the Respondent Joshua Lessing

Solicitors for the Respondent Spark Helmore

[2016] AATA 262

26 April 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Division	GENERAL DIVISION
File Number(s)	2014/5112
Re	Museref Ozcan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Dr Gordon Hughes, Member
Date	26 April 2016
Place	Melbourne

Date of hearing	16 March 2016
Advocate for the Applicant	Angie Wong
Solicitors for the Applicant	Victorian Legal Aid
Advocate for the Respondent	Joshua Lessing
Solicitors for the Respondent	Spark Helmore