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

PCJP and Secretary, Department of Social Services (Social services second review) [2020] AATA 1468 (26 May 2020)
Division:GENERAL DIVISION
File Number: 2019/3850
Re:PCJP
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:26 May 2020
Place:Melbourne

The Tribunal affirms the decision under review.
......................[sgd]............................................
Dr Stewart Fenwick, Senior Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – lower limb condition – mental health condition – whether impairment attracts rating of 20 points or more under a single Impairment Table – applicant also in receipt of carer payment – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
26 May 2020
BACKGROUND

This is an application for review made by the Applicant, PCJP, in respect of a decision of the Social Security and Child Support Division (AAT1) of this Tribunal to refuse the Applicant’s claim for a Disability Support Pension (DSP).
By way of chronology:
(a)the Applicant made a DSP application on 2 October 2018, giving a qualification period ending on 1 January 2019;
(b)this application was rejected on 20 November 2018 and the Applicant sought internal review in December 2018. On 23 January 2019, an Authorised Review Officer affirmed the decision. Shortly thereafter, the Applicant applied to AAT1 for review;
(c)on 5 June 2019, AAT1 decided to affirm the decision of the Authorised Review Officer. The Applicant then applied for review of that decision, giving rise to the current proceedings.
The Applicant was granted a pseudonym by Direction of the Tribunal dated 12 November 2019.
The Applicant has two conditions under consideration, being a lower limb condition arising from a workplace injury to his foot in 2010 and a mental health condition also ultimately arising from this same incident. The injury occurred in the course of his occupation as a storeman and I note the Applicant has had other employment, including in the banking sector, after deciding not to pursue higher study at university.
In essence, this matter revolves around the fact that the Applicant has been assessed as having 20 impairment points, but not 20 points under a single table. New medical material was sought and provided, being the report of Dr Anthony Cidoni dated 30 October 2019. In addition to evidence from Dr Cidoni at the hearing, evidence was given by the Applicant and his mother. The hearing was conducted by telephone.
At the request of the Tribunal, the Respondent provided additional documents immediately prior to the first hearing date relating to the Applicant’s history of receiving Carer Payments. This had been referred to in the AAT1’s decision and did not otherwise appear to have been exposed in material lodged. Payment of this benefit appears to have ceased prior to the DSP application being made.
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (‘T’ documents) and the further material referred to above was lodged pursuant to s 38AA of the AAT Act (‘ST’ documents).
LEGISLATION

Qualification for the DSP is established in s 94(1) of the Social Security Act 1991 (the Act). Under this provision a person must be found to have:
(a)a physical, intellectual or psychiatric impairment;
(b)an impairment rating of 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
Under Clause 4(1)(c) an applicant for DSP may qualify for the entitlement if they become qualified for it within thirteen weeks of the application date, such period known as the ‘qualification period’.
The Impairment Tables are those found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination provides that:
(a)impairment is based on an assessment of functional capacity;
(b)the Tables may be applied following consideration of the person’s medical history; and
(c)a rating can only be applied to an impairment if the person’s condition is permanent.
A condition is considered ‘permanent’ under rule 6(4) if it is ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’, and ‘more likely than not, in light of available evidence, to persist for more than 2 years’.
In considering whether a condition is fully diagnosed and fully treated, the following considerations arise under rule 6(5):
(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 two years.
Rule 6(6) states that 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 two years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment …
‘Reasonable treatment’ is defined under rule 6(7) of the Determination as 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.
In addition to particular requirements qualifying the application of particular tables, each Impairment Table carries these two general qualifications: ‘self-report of symptoms alone is insufficient’; and ‘there must be corroborating evidence of the person’s impairment’.
By operation of s 94(2)(aa) and s 94(3B) of the Act, a person with a severe impairment (one that attracts an impairment assessment of 20 points or more under a single Table) is considered to have a continuing inability to work.
For persons without a severe impairment, under s 94(3C) of the Act it is necessary that they have ‘actively participated in a program of support’ as established in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Active Participation Determination’). The Active Participation Determination requires a person to have participated in such a program for 18 months during the period of 36 months prior to making their DSP application. It also establishes certain conditions under which the requirement may be satisfied (s 7(3)-(5)).
ISSUES
The issues in this matter are whether the Applicant had a condition or conditions that were permanent in the sense required by the legislation, and if so, what level of impairment can be assigned. In the absence of a severe impairment rating, the Applicant is required to have actively participated in a program of support and there is no dispute in this matter that the Applicant did not do so.
EVIDENCE
I summarise here the evidence of both the Applicant and his mother, integrating also supporting material from the numerous medical reports and materials lodged:
(a)The Applicant lives independently, although he spent many years at home beyond school age.
(b)He attended private school and was admitted to university but did not attend. He gained a cadetship in banking and studied banking and finance, although the evidence on the nature of this training is not strong. This evidence is broadly substantiated in a report of Dr Saleem Khan dated 8 April 2015.
(c)He trained in horticulture and then became a storeman in casual and later full-time employment. He gained a qualification as a forklift driver.
(d)The Applicant returned to work some time following a workplace injury to his foot in 2010 and continued working for some years. He later left this employment and received a compensation payment.
(e)He has cohabited with a partner and with housemates, at least one of whom was a disabled man for whom he was a carer. He has had a carer relationship with a female as well, who has been known by two different names. This carer relationship lasted for a matter of years, and was longer than the other carer relationship. Carer payments were made until just prior to the DSP application. The Applicant denied that the relationship with the female caree was a partnership or personal relationship.
(f)The evidence as to what functions he carried out as a carer is mixed. The documentary record indicates sufficient active support activity to warrant payment of the carer payment, although it was suspended on several occasions. While it appears from documentary evidence to have included direct, intimate and physical assistance to both male and female carees, it was not entirely clear from the Applicant’s evidence to what extent he provided this kind of support. He accepted that he assisted with tasks including the sourcing or provision of medication.
(g)His mother’s evidence was that in one of his residences, in Maribyrnong, the bedrooms were on the first floor. This is corroborated in Dr Kahn’s report of 8 April 2015.
(h)In cross-examination it was accepted by the Applicant that he has moved a number of times across a widely distributed range of suburbs across Melbourne, stretching from the bayside area to the western suburbs. It was not disputed that he had moved four to five times over the past five years. He stated in evidence that at least his last move occurred with the assistance of a friend or friends who the Applicant asked to assist him. The Applicant was able to pack boxes and make arrangements for the move but not carry heavy objects such as the couch.
(i)There are references in medical reports to the Applicant having problems with self-care, isolation, and being sedentary (for example Dr Mathew Gelman in his report of 7 April 2016). Associated mood issues were reported at the time of the DSP application by Dr Indra Mohan in a report dated 12 October 2018, including self-image, inadequacy, low mood and anxiety – such issues having been stable for quite some time. In a report dated 14 August 2019, Dr Mohan also reported that the Applicant struggles with interpersonal relationships, avoidance, lack of social contacts and issues with planning and organisation.
(j)The Applicant’s own evidence and indeed that of his mother was that prior to his injury he led an active social life with friends and that this has changed significantly. The Applicant stated that he no longer associates regularly with friends and appears to have both removed himself from social contact and had friends drop away. He described that, prior to his medical issues, he went out to meet friends at bars and ate at restaurants with his then partner. He attended football matches with friends.
(k)The Applicant acknowledged that he currently has social interaction with at least one neighbour, who assists with gardening and delivering food (and this is corroborated in medical material) and he chats with her. It was not disputed that he has had casual contact with other neighbours. It appears he last cohabited some time prior to the DSP application.
(l)At the same time the evidence shows that he was able to attend a family funeral and Christmas gathering. It was the evidence of both the Applicant and his mother that on her weekly visits to him he is frequently not at home, or leaves after his mother arrives.
(m)His mother stated that she regularly brings food albeit that it may not be eaten. It was not disputed that she attends at least once a week and sometimes more often. She cleans up around the kitchen and does laundry. The evidence suggests that the Applicant does virtually no cooking or any housework of any sort at all. Written material refers to him sitting down to cook (Dr Khan’s report of 8 April 2015) and from after the DSP application (Dr Mohan’s report of 14 August 2019) struggling with chores, online shopping and difficulties with supermarket shopping.
(n)The Applicant’s own evidence did not clarify, significantly, these issues. He confirmed his limitations with respect to both wanting to go out to shop, for example, and physical limitations around doing so.
(o)Clarity about the Applicant’s physical and emotional limitations is clouded somewhat by the written and oral evidence in respect of his travel and recreational pursuits generally. At a lunch break at the hearing for example, he indicated he had been out for a walk and spoke to the Tribunal on the phone for several minutes while returning apparently to sit in his car to conduct the balance of his evidence.
(p)The Applicant stated that he could walk in a one hour radius about his home. He stated that walking involved pain and he took anti-inflammatories and required frequent stopping, for example ‘every bus stop’. He also stated that he had travelled to the Sunshine Coast, and in at least one medical report this is described as a twice-yearly event. In his evidence, he described having walked on what I understood to be a coast walk from his residence. I put to the Applicant that I had noted that on an online map search, this was some distance from his accommodation which was not disputed.
(q)In cross-examination the Applicant acknowledged hiring a stand-up paddle board during a holiday to the Sunshine Coast. He stated the board was hired for an hour and that he had been unable to stay standing on the board for long due to the pain in his foot.
(r)The Applicant undertakes infrequent road trips to Geelong in his Nissan Pathfinder which is consistent with a medical report which states that his driving ability is not affected by his injury. His movements are of course presently limited by the current pandemic response. He looks forward to undertaking, possibly, other outings in his car, including to locations he has researched on the internet.
(s)Evidence as to the Applicant’s capacity to use public transport is somewhat mixed. It appears from his evidence that he prefers not to use it due to his issues around physical limitations and the appearance this creates.
(t)I understood from the Applicant’s replies in cross-examination that he was and is able to book holidays, search for accommodation by phone and discuss deals including arranging for replacement tyres for his car. He described negotiating rent arrears with his landlord. The Applicant also described in evidence negotiating a sub-lease in a property with one of the carees and evicting the same gentleman when his behaviour became unacceptable due to alcohol use.
(u)The Applicant’s mother was of the opinion his budget and financial planning skills were poor on account of the fact that he regularly asks her for money and she stated it was she who had to make the payment with the garage for the tyres.
(v)There is reference in the medical material to the Applicant watching TV as a solitary pursuit. It appears from his evidence he prefers not to watch TV as the content often annoys him, but he expressed an interest in watching AFL which was supported by his mother’s evidence. It is not clear when this occurs with reference to the qualification period.
(w)Evidence as to the Applicant’s capacity to concentrate and read was not clear. While his mother stated he did not care to read the paper, she said she did not provide it specifically for him to read. She did not clarify his past reading history but stated he had actively participated in drama at school.
(x)Dr Mohan in his 14 August 2019 report refers to the Applicant's ability to concentrate lasts less than 10 minutes and also notes the Applicant struggling with planning and decision making.
Carer payment and contact records
The first reference in material before me to a carer payment is one granted effective 12 March 2014 (ST 19, p 180). This grant appears to have been in place, possibly with periods of suspension, until cancellation in May 2016. At times the records indicate the Applicant did not live with the caree (a female), and at one time was said to be providing care while the caree lived forty-five minutes away (ST 19, p 170). The cancellation was appealed and appears to have been restored.
A claim form for carer payment dated 11 October 2017 was lodged (ST 1, pp 1-7). This claim related to a male caree with whom the Applicant was sharing accommodation. The records state that both the Applicant and a supporting medical report indicate that the care was ‘constant’ (ST 19, p 151). At a point around March 2018 the male caree went into respite or rehabilitation (ST 19, p 150). A supporting medical report dated 24 November 2017 (ST 3, pp 15-20) states the caree had a spinal injury, right leg amputation and personality disorder. The Applicant confirmed in evidence at the hearing that the caree had a prosthesis. A handwritten application form (ST 2, pp 8-14) states that the care is ‘constant’ which is described on the form as being the equivalent of a full working day. The form shows that the Applicant has completed the section on day to day care needs, including that the caree needs ‘some help’ with a range of activities including moving to and from bed and chair, showering and bathing, eating and medication, and ‘often’ needs help and attention at night and was incontinent, but able to use incontinence aids without help.
A subsequent carer payment application dated 6 February 2018 was lodged (ST 4, pp 21-27). This was in respect of a female caree bearing the same name as the earlier caree, who it appears had moved to Western Australia prior to the care commencing for the male caree (ST 19, p 153). The application form notes the caree and Applicant as sharing a residence, and a contact record notes ‘yes’ in response to the query whether daily care was required (ST 19, p 149). The application form states that the caree requires the help of one person to move about the house, ‘often’ needs help and attention at night, can shower and bathe with ‘some help’, can self-groom with ‘some help’ and needed ‘a lot of help’ with medication.
Contact records are consistent with the Applicant’s evidence at the hearing, to the extent that they reveal some uncertainty about the actual time committed to care functions. For example, with respect to the earliest care period, one record (ST 19, p 171) suggests that the Applicant may have provided twelve hours care per week, three to five hours per day, and possibly as high as forty to fifty hours over a week.
Residence records lodged (ST 20, p 184) indicate the Applicant as having recorded eleven addresses across seven suburbs between June 2013 and August 2018, including a short period in a Victorian regional city. One short period coincides with the oral evidence at the hearing as to a period of residence with the Applicant’s parents.
Lower limb condition
The medical material lodged with the Tribunal indicates that the Applicant indeed suffered a relatively severe right foot injury at work. Numerous reports state that it is fully resolved and that there is no further surgical intervention required. I understand it has resolved itself into a chronic pain condition (for example reports of Dr Khan, 8 April 2015 and Dr Gelman, 4 March 2016).

I note in particular the report of Mr Sasha Roshan, dated 11 October 2018, which states some tenderness but no significant swelling, no significant osteoarthritic changes and summarises that with a report of ankle weakness there was also a global weakness affecting the right lower limb.
Tolerances reported are consistently along the lines of 10-15 minutes standing or walking, difficulty weight bearing, a need to rest etc. The Applicant has orthotics available to him and, in his own words, has an antalgic gait (walks with a limp).
Mental health condition
Dr Cidoni’s report and evidence at hearing was focused explicitly on an impairment assessment in the terms of the Tables. In his written report he considers the Applicant’s mental condition to give rise to a severe impairment rating. In his evidence at the hearing, Dr Cidoni confirmed the content of his report dated 30 October 2019.
Dr Cidoni has, in essence, changed the foundation diagnosis for the Applicant’s mental health condition from adjustment disorder with other features of depression and anxiety and post-traumatic stress, to that of Major depressive disorder with some additional factors present.
I will summarise here some key aspects of the evidence of Dr Cidoni at the hearing:
(a)The Applicant was late to the appointment and as a result the appointment had to be abridged somewhat, but Dr Cidoni did not feel that this affected his ability to take a history and assess the Applicant’s mental state.
(b)The Applicant’s depressive condition can fluctuate over time but would never go away. The Applicant’s presentation and Dr Cidoni’s observations were consistent with the contents of the medical reports he had been provided with and other treating professionals’ conclusions. In cross-examination he acknowledged that some of these reports are brief but was satisfied that the conclusions made were consistent with his observations of the Applicant.
(c)Dr Cidoni stated that his report remarks upon the receipt of carer payment and restated his observation that he understood the relationship had negatively affected the Applicant which is why it was ended. Dr Cidoni did not have further information as to the nature of the specific functions performed. He largely maintained this position under cross-examination, however also stated that he doubted, given the Applicant’s symptoms and deficits, that he could undertake a caring role.
(d)He stated that the evidence as put to him about the Applicant’s mother attending his home once per week, or sometimes more frequently, was consistent with his assessment of a moderate impairment in the domain of self-care and independent living.
(e)Dr Cidoni was asked to consider his assessment given the Applicant’s evidence of travelling alone to the Sunshine Coast and to conduct a holiday there, to move about Victoria and to move house with the help of friends. He responded this did not change his impairment rating of severe in respect of social and recreational activities and travel. Dr Cidoni stated that the Applicant undertook an extremely limited range of social activities and that his travel to ‘a few other places’ would not change his assessment. He considered that the Applicant would struggle given his capacity to organise. In his opinion someone with a severe impairment could still do such things and that he made an assessment based on an overall judgment, including the range of activities undertaken by the Applicant, as well as his level of engagement.
(f)In cross-examination Dr Cidoni clarified that people with a severe impairment are still able to function and that the question was where they sit in terms of their level of disability. Examples of the Applicant’s engagement in various tasks did not change his assessment. People with a severe disability usually need assistance, but it comes down to the overall assessment of the nature of their functioning.
(g)With respect to interpersonal relations, Dr Cidoni stated that the Applicant does not initiate social contact and considered this was consistent with the descriptor which pointed to social contact being arranged for a person. Casual engagement with neighbours he considered to be incidental and does not change the impairment assessment of a severe level of impairment. Dr Cidoni did not consider the kind of engagement said to take place with strangers, including on holiday, to affect his assessment. He considered that the Applicant struggles with friends and intimate relations, to a level he considers severe.
(h)Dr Cidoni acknowledged that the Applicant reports mildly impaired attention and concentration. He performed a screening test which involved asking the Applicant to recite the months of the year backwards, in which he made three errors (as stated in this report). He considered the rating overall to be moderate impairment with respect to concentration and task completion.
(i)He stated that he considered the Applicant’s capacity for planning to be non-existent, that he presents as irritable and is over-inclusive in his dialogue. Dr Cidoni was not aware of the Applicant making any ‘major decisions’ and considered that he needed some assistance in decision making. The Applicant did not meet the descriptor for extreme impairment, although he meets some of the elements. Overall, he considered a severe impairment rating appropriate. Dr Cidoni did not agree when it was put to him in cross-examination that the Applicant’s ability to write a letter making submissions in relation to his previous hearing before the Tribunal would change his assessment.
(j)Dr Cidoni did not consider that executing a plan for a single activity such as a holiday would change his assessment. He was not convinced that shopping around for holiday deals demonstrated a level of sophistication or change his overall assessment. Exploring different options for activity and travel outside a restricted travel regime does not affect the overall rating for this domain.
CONSIDERATION
There was no dispute between the parties that the primary focus of the matter is whether or not the Applicant’s mental condition should be assessed as giving rise to a severe impairment rating.
The Applicant’s representative submitted that under rule 11(3) of the Determination, the ability to do an action once or rarely does not lead to a descriptor applying to a person; they must be able to do the action normally or on an habitual basis. Rule 11(4) also requires that a rating must be assigned that reflects the overall functioning with an impairment that may fluctuate. It was further submitted that Dr Cidoni’s report should be given appropriate weight, that it was relevant and that authorities did not prevent medical evidence obtained after the qualification period being considered so long as it related to the qualification period.
The Respondent’s representative submitted that rule 6(1) of the Determination states that in assessing functional capacity the assessment must be based on what a person can, or could, do and not on the basis of what they choose to do or what others do for them. It was submitted that the Applicant does not meet the assessment of severe impairment in four of the six descriptors as required under Table 5. The Applicant’s travel history was not captured by the relevant descriptor and his movements within the wider city and state did not indicate he was restricted to a local area. The Applicant’s interpersonal relationships also do not meet the level established for severe impairment. It was also submitted the Applicant can plan and undertake activities when he chooses to do so.
With respect to medical evidence I note that the Applicant’s Statement of Facts, Issues and Contentions (ASFIC) alone references some dozen reports from three treating specialists across approximately four and a half years. As noted, evidence was also given by a consulting specialist Dr Cidoni. In preparing his report he also had reference to some ten reports spanning over three years and cited in the body of his report more than half of these.
I have considered the medical reports on their own terms, including several reports not cited in the ASFIC and Dr Cidoni’s report but found in the materials lodged. Of the reports there are only a few that are substantial and which also contain specific assessments that can be related directly to the process of making an impairment assessment. There is valuable information in them all but many of the reports are brief.
With respect to the date span overall, and bearing in mind the qualification period which extends thirteen weeks following the DSP application, I accept that the majority of the medical material cited in the ASFIC predates the DSP application in late 2018. But a significant amount of material has also been produced since then. In the ASFIC it was submitted in particular that the reports of Dr Cidoni, Dr Kahn and Dr Mohan which postdate the qualification period should be given considerable weight.
In his evidence at the hearing the Applicant demonstrated a tendency to express frustration, and at times became agitated, resulting in an adjournment. He was also at other times quite cooperative, and yet at other times provocative and quite assertive. The Applicant also at times wandered away from the question and his own representative had to intervene to try to have him focus on the issue at hand. He demonstrated a tendency to answer in a somewhat abstract way, and there were occasions when it was not always clear whether he was refencing his current experiences, or those referable to the qualification period.
Nonetheless, the Applicant was quite capable of engaging in the process of examination for a period of well over two hours. Overall, he was specific, and able to recall at some level of detail events and transactions going back in years. While stating that he had memory problems and concentration problems, I did not find this to affect his evidence in any obvious way. I do not wish to overstate this as at the same time it was not always entirely clear that the Applicant had answered questions put to him and his tendency to loquaciousness meant that additional hearing time had to be scheduled in order to accommodate other witnesses.
IMPAIRMENT ASSESSMENT
I note that the lower limb condition was accepted as permanent in a Job Capacity Assessment Report (JCA) dated 20 November 2018 (T24, pp 151-160) and also by AAT 1. The Applicant’s mental health condition was considered by the JCA report in 2018 not to be fully treated and stabilised but it was found by AAT 1 to be permanent.
On the balance of the evidence before me, noting that this issue was not in dispute, I am satisfied that the Applicant’s conditions are both permanent in the sense required, and accordingly it is appropriate to make an assessment of impairment under the Tables.
Table 3 – Lower Limb Function
The Applicant’s foot condition falls to be considered under this Table which addresses lower limb capacity generally which I understand by inference to be an overall, bilateral assessment of capacity.
With respect to moderate impairment I accept that the Applicant has difficulty walking but appears able to walk for relatively long distances, albeit with pain and the inconvenience of frequently stopping. I am uncertain from the evidence what his actual capacity is with respect to stairs. His standing tolerance has been consistently described as in the range of ten minutes. On balance and given the issues noted above with Applicant’s evidence, I am satisfied that he meets at least one of the descriptors for mobility in relation to moderate impairment.
The Applicant is able to use public transport and or a motor vehicle and walk around a shipping centre, albeit with some inconvenience. The Applicant does or at least has used walking aids and can move about independently.
While there are some uncertainties with relation to the evidence, I am satisfied that it is appropriate to assess his lower limb impairment as a moderate functional impairment, attracting a 10 point impairment assessment.
Table 5 – Mental Health Function
As noted above, Dr Cidoni has diagnosed Major depressive disorder with some additional factors present. In his report of 4 March 2016, Dr Gelman diagnosed severe adjustment disorder, chronic pain syndrome and enduring personality damage associated with the workplace injury. In his report of 28 November 2018, Dr Mohan diagnosed adjustment disorder with depressive symptoms and anxiety, with features of post-traumatic stress disorder. I address below the descriptors under Table 5.
Self-care and independent living
The Applicant was described by Dr Cidoni as being ‘mildly dishevelled’. Nonetheless, the evidence of his mother describing the condition of his home, which I accept, suggests strongly that the Applicant benefits from his mother’s regular visits and seems to demonstrate a high level of disregard for his domestic well-being. He accepts assistance from a neighbour with sourcing provisions and gardening, although I understood this to be more closely related to his physical limitations rather than psychological.
An important issue is what activities and tasks the Applicant is incapable of doing as opposed to being unwilling to perform. His mother’s evidence was that she has concern for her son and as a mother has felt an obligation to assist. I accept that the Applicant receives assistance from a neighbour. As noted the evidence with respect to the Applicant’s caring responsibilities is not consistent. However, I consider it appropriate to take note of the fact that he was in receipt of a carer payment until just prior to the DSP application. Dr Cidoni’s report with respect to this factor was limited to a statement that he was informed by the Applicant that he left his chores undone and had assistance from a neighbour. It lacks any reference to the visits by the Applicant’s mother. I do not consider Dr Mohan’s reports from 2019 to add significantly to my understanding of the evidence around this element.
The combined visits by the Applicant’s mother and assistance from his neighbour may at least mathematically satisfy the descriptor for a severe impairment as I accept that they are likely to occur on approximately two occasions per week. His mother’s evidence was that her weekly visits occur now, but I am not satisfied there is clear evidence that these were being undertaken at the time of the application or qualification period. Even were they more frequent in the past, I am not satisfied, on the evidence as a whole, that the Applicant’s particular needs are such that he would not be able to maintain adequate hygiene or nutrition were they not to take place. The evidence supports the view that the Applicant chooses not to cook and is able to supplement his eating with take away or equivalent. Furthermore, he is not so prevented from shopping so as to require the assistance of others in this respect. The evidence does not support the interpretation that he needs assistance with these functions.
I consider that needing ‘some’ support to live independently is an appropriate description of the Applicant’s circumstances and meets the descriptor for moderate impairment.
Social/recreational activities and travel
I accept that the Applicant has very limited social interaction, but his evidence indicated that he is comfortable travelling to, in some instances, very distant locations and interacting with strangers, these instances being on holidays. The thrust of the Applicant’s evidence was that he was comfortable having casual interaction with strangers, more so than with friends and family or those in his usual orbit. His evidence was also that he felt uncomfortable travelling on public transport due to his physical impairment and that this made him uncomfortable. It appears, and as stated in Dr Cidoni’s report, that the Applicant’s family contact is extremely limited and this was substantiated by his mother’s evidence.
There are some inconsistencies across aspects of the domain. I understand the evidence as being that while the Applicant rarely, if ever, goes out for social purposes, he is not thoroughly anti-social. Moreover, he leaves the house quite freely as he wishes and is also capable of traveling when he desires to destinations at extreme distances from his local area. However, the evidence demonstrates that his range of social activities including with friends and family has been seriously affected due to his condition. It might be argued that his holiday destination is not an unfamiliar location and therefore is consistent with the descriptor for a severe impairment which suggests travel only to familiar local locations. I do not accept this is an appropriate interpretation of the evidence overall and find, in particular, the Applicant’s apparently regular interstate travel, and his intra-state travel, to demonstrate a capacity and willingness to move in a very wide range of environments.
With respect to Dr Cidoni’s report, he states a number of instances of failure to maintain, or absence of contact, with close family and friends citing various dates across March to December 2019. The reference to December 2019 must be an error since the report itself is from October 2019. I accept this refers to December 2018 as it correlates with evidence from the Applicant’s mother. On the whole, I do not consider these few specific instances to be helpful in the context of the qualification period. The reports of Dr Mohan from 2019 are broadly consistent with the evidence with respect to this element of assessment but are somewhat brief.
On balance, I am satisfied that the Applicant meets the descriptor for moderate impairment and I am satisfied he does not meet the more confined range of local functioning envisaged for a severe impairment.
Interpersonal relationships
As with social interaction, the evidence in respect of interpersonal relations is somewhat mixed. I accept the Applicant has not had an intimate partnership for some time and that his engagement with friends has reduced over time, possibly significantly. Against this, I note his capacity to engage in more superficial encounters and to engage more routinely with a neighbour. Again, an aspect of choice appears to arise from the Applicant’s evidence. He seems capable of engaging in arms-length transactions and was able to recruit friends to move to a new house. However, I also accept that there is an element of necessity arising from this kind of encounter.
With respect to the higher level of severe impairment, the descriptor indicates that a person may need assistance to engage in social interaction. This does not appear to be the case for the Applicant. There are indeed interactions that he willingly engages in, particularly with strangers. On the other hand, I consider his mother’s evidence to suggest that direct personal interaction with his parents would be unlikely to occur unless she initiated it. As noted, Dr Cidoni recorded specific instances of absence of contact from December 2018 through 2019 up to the time of his report. While these are broadly consistent with the oral evidence at the hearing, they largely do not apply to the qualification period. They are also far less comprehensive than the much wider evidence as to the Applicant’s social habits obtained at the hearing. Dr Mohan’s report of August 2019 records avoidance behaviour driven largely by issues of self-image and self-esteem.
I do not discount that there are aspects of the Applicant’s capacity that might be understood as meeting a severe level of impairment based on the descriptors. One possible indication of severe impairment may be the need to have a support companion to engage in social interaction. While expressed as optional (‘may need’) I consider it indicative of a quite high level of disfunction. In contrast, there is an element of voluntarism in the Applicant’s social engagements which, while still low level and infrequent, do not appear to me to indicate that, taken as a whole, his impairment meets this standard. Any impairment falling between two ratings must be assessed at the lower level.

On balance I am satisfied that the evidence demonstrates that the Applicant meets the descriptor for moderate impairment specifically in relation to the difficulty he has sustaining relationships and in ordinary interpersonal engagement.
Concentration and task completion
The evidence with respect to concentration and task completion is also mixed. Difficulties with concentration were noted by Dr Mohan in his report of 28 November 2018 and this was contemporaneous to the DSP application. Dr Mohan reports nearly a year later in August and September 2019 that concentration span was under 10 minutes and describes it as ‘very poor’. As previously mentioned, Dr Cidoni described in his report and evidence that he administered a test which consisted of the Applicant reciting the months of the year in reverse order: he made three errors. His report describes attention and concentration as ‘mildly impaired’ and he confirmed in evidence that based on an overall assessment he rated this as a moderate level of impairment, also stating that concentration span is at or under 10 minutes. These judgments appear to be contradictory, in the context of the Tables, but I understand Dr Cidoni to have made an overall assessment.
The Applicant’s mother gave evidence that the Applicant did not read the paper when she brought it to his house on her visits. She clarified in cross-examination that she bought the paper for her own purposes and left it at the Applicant’s home, rather than explicitly for the Applicant’s benefit. She confirmed that the Applicant had enjoyed watching football on television but it was not clear what time period this applied to. I accept the Applicant’s evidence that he was reluctant to watch television as he found it frustrating. I do not wish to overstate my own observations during the hearing, however it was the case that the Applicant participated actively in the hearing and that his evidence spanned several hours, with an adjournment of around an hour. Equally, the Applicant demonstrated some difficulty in following a line of questioning and providing focused responses. Indeed, this was the reason he was engaged in giving evidence for so long.
The 10 minute timeframe cited in reports directly reflects the descriptor for a severe functional impairment. The timeframe referred to in the descriptor for moderate impairment is 30 minutes. As noted, Dr Cidoni also referred to a mild level of impairment. The variability in the evidence across a range of relevant functional activities renders an assessment somewhat problematic. I am, however, unable to accept the judgements previously made as to a limited 10 minute attention span. I do accept that, notwithstanding the length of the Applicant’s engagement with the hearing, he certainly demonstrated certain traits indicating a difficulty in focussing on specific issues. I note that in the JCA from 2018 the assessor stated that the Applicant faced barriers to employment arising from limited tolerance to stress, concentration and endurance.
I am satisfied on the basis of the evidence as a whole that the Applicant meets the descriptors for a moderate functional impairment under this element.
Behaviour, planning and decision-making
The Applicant’s own evidence demonstrated that is capable of organising holidays, travelling independently, negotiating deals and dealing with landlords and tenants. However, his own demeanour at hearing, admittedly a very stressful situation, demonstrated that he has some obvious limitations with stress and moderation of behaviour. Dr Cidoni was of the view that his return travel to familiar locations was an indication of his limitations in this domain. In cross-examination, Dr Cidoni stated that specific examples of the Applicant’s capacity to function in society did not change his opinion of him having a severe impairment. He stated that people with significant disabilities can still function, but it is a question of where they sit in terms of the level of their disability.
Dr Cidoni was also of the view that the Applicant had limited financial planning capacity. The Applicant’s mother was also of the view the Applicant was unable to save and manage expenses. This view needs to be balanced against his own evidence with respect to travel and dealing with others, set out above. I also consider his history of experience in the finance sector, albeit that experience is now some time ago, a relevant consideration with respect to this domain.
I am satisfied that the Applicant has difficulty coping with stress or pressure and has reduced activity levels in general. The descriptor for severe impairment refers to frequent and significantly disturbed behaviour, thoughts and conversation. I am not satisfied that this threshold is met on the evidence overall, and accordingly find the Applicant has a moderate level of impairment.
Work/training capacity
There is limited evidence with respect to work and training capacity before me. I accept from the evidence of the Applicant’s mother and the report of Dr Khan of April 2015 that the Applicant has had a relatively diverse work and educational background. This includes not only completion of school but acceptance to University, a period in banking, including related training, as well as horticulture. This is well beyond the scant information on this dimension in Dr Cidoni’s report.
Some assistance is provided by reference to JCA reports. The 2017 report states that the Applicant’s 'personal factors have a High impact on their ability to work, obtain work or look for work’ and notes a high probability of non-compliance. The 2018 report states ‘claimant needs specialised rehabilitation with long term post placement support due to long term medical conditions …’. Both reports considered his immediate work capacity as 8-14 hours per week rising to 15-22 over two years, but with specific interventions required to meet this objective.
The descriptors offered in the Table make reference to issues including workplace conflict and capacity to work in groupings of which I have no evidence before me to contribute to an assessment. However, on the basis of the cumulative effect of the various areas of impairment set out above, and with the comments of the JCA reports in mind, I consider it appropriate to rate the Applicant’s impairment against this dimension as severe.
Summary
I am satisfied that the functional impact of the Applicant’s mental health condition meets the conditions established by the descriptors for a moderate functional impairment under Table 5 as I have assessed him as having moderate difficulty within most of the domains.
Taken together, I find that the Applicant can be assessed as having a 10 point impairment under Table 3 and a 10 point impairment rating under Table 5, giving a total of 20 points across two tables.
Accordingly, under s 94(3C) of the Act it is necessary that the Applicant has ‘actively participated in a program of support’. It was common ground between the parties that the Applicant does not meet the requirements of the legislation in this respect.
DECISION
On the basis of the above, the Tribunal affirms the decision under review.

I certify that the preceding 69 (Sixty-Nine) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

.......................[sgd]............................................
Associate
Dated: 26 May 2020

Dates of hearing: 14 & 24 April 2020

Counsel for the Applicant: Ms S. Dhanji

Solicitors for the Applicant: Victoria Legal Aid

Advocate for the Respondent: Ms M. Underhill

Solicitors for the Respondent: Services Australia

[2020] AATA 1468

26 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Procedural Fairness

Natural Justice

Statutory Construction

Appeal

Dates of hearing:	14 & 24 April 2020
Counsel for the Applicant:	Ms S. Dhanji
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Ms M. Underhill
Solicitors for the Respondent:	Services Australia