Pustul and Secretary, Department of Social Services (Social services second review) - [2019] AATA 4148

Pustul and Secretary, Department of Social Services (Social services second review) [2019] AATA 4148 (1 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1362
Re:Alicja Pustul
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION;
Tribunal:Member I Fletcher
Date:01 October 2019
Place:Perth

The decision is affirmed.
.........................[sgd]...............................................
Member I Fletcher
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension –whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has severe impairment – continuing inability to work – whether Applicant actively participated in program of support – decision under review affirmed – impairments: sleep disorder; shoulder condition; chronic low back pain; psychological condition.
LEGISLATION
Social Security Act 1991 (Cth) – s 23(1), s 26, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c),
s 94(1)(c)(i), s 94(2), s 94(2)(aa), s 94(3B), s 94(3C), s 94(5)
Social Security (Administration) Act 1999 (Cth) – Schedule 2, subclause 4(1)
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
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Croker v Secretary, Department of Employment and Workplace Relations
[2007] FCA 1635
Crossland and Secretary, Department of Family and Community Services
[2004] AATA 864
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466
Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517
Re Harris v Secretary, Department of Employment and Workplace Relations
(2007) FCA 404
Redmond and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1066
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 452
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
SECONDARY MATERIALS
Gavin Andrews et al, ‘Australian and New Zealand clinical practice guidelines for the treatment of panic disorders and agoraphobia’ (2003) 37 Australian and New Zealand Journal of Psychiatry 641
G. S. Malhi et al, ‘Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders’ (2015) 49(12) Australian and New Zealand Journal of Psychiatry 1087
Guide to Social Security Law (Version 1.257 Released 12 August 2019)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 12, s 3, s 5(2), s 5(2)(b), s 5(2)(c),
s 6, s 6(3), s 6(4), s 11
REASONS FOR DECISION
Member I Fletcher
01 October 2019
DECISION UNDER REVIEW

The decision under review is a decision of Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 12 February 2019. That decision affirmed the decision of an authorised review officer (the ARO) of the Department of Human Services (the Department) to reject the Applicant's claim for Disability Support Pension (DSP).
ISSUES
The issue before the Tribunal is whether the Applicant was qualified for DSP on the day she lodged her claim on 2 July 2018 or within 13 weeks thereafter (ending on

1 October 2018). This requires consideration of whether the requirements set out in section 94 of the Social Security Act 1991 (Cth) (the Act) are met; in particular:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;…
(Original Emphasis.)
The Applicant must meet all of the above criteria in order to be qualified for DSP.
FACTS
Prior claims for DSP
On September 3 2014, the Applicant lodged a claim for DSP, which was rejected
(T30, p 236). On review by the AAT1, the rejection was affirmed (T30), with the AAT1 relevantly finding that:
(a)the Applicant’s lumbar spine condition was fully diagnosed, treated, and stabilised (FDTS) and caused a mild impairment attracting 5 points under Table 4;
(a)the Applicant's psychological condition was not FDTS, on the basis that the Applicant had not trialled any anti-depressant medication, and therefore no impairment rating could be assigned under Table 5; and
(b)none of the Applicant's other conditions were FDTS, and as such, no impairment ratings could be assigned to any resulting functional impairments.
On 1 September 2016, the Applicant lodged another claim for DSP (T42, p 287), which was rejected. The rejection was reviewed and affirmed by the General Division of the Administrative Appeals Tribunal (AAT2) (T42).The AAT2 relevantly found that:
(a)the Applicant's psychological condition was fully diagnosed, but not fully treated and stabilised because the Applicant had “not undertaken reasonable trials of
anti-anxiety and anti-depressant medication”. No impairment rating could be assigned under Table 5 to any resulting functional impairment;
(b)
there was no evidence of any functional impairment arising from the Applicant's sleep disorder, and therefore no impairment rating could be assigned under

Table 1;
(c)the Applicant's left shoulder condition was not FDTS and therefore no impairment rating could be assigned under Table 2;
(d)the Applicant's spinal condition was FDTS and resulted in a mild impairment attracting 5 points under Table 4; and
(e)there was no evidence that any of the Applicant's other conditions were FDTS during the qualification period.
The present claim for DSP
On 2 June 2018, the Applicant completed a further claim for DSP (T43). This application was received by the Department on 2 July 2018 (T58, p 390). The Applicant provided a list of 18 conditions from which she suffered, but stated that “major depression and anxiety disorder [were] causing most of [her] condition[s]”.
On 14 July 2018, the Department rejected the Applicant's claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables (T48).
The Applicant sought review of the rejection decision dated 14 July 2018. In a decision dated 16 August 2018, an ARO from the Department affirmed the decision to reject the Applicant's claim for DSP (T50). The ARO found that:
(a)The Applicant's spinal condition was FDTS and caused a mild impairment attracting 5 points under Table 4.
(b)The Applicant's sleep disorder was FDTS but resulted in minimal functional impairment, attracting zero points under Table 1.
(c)The Applicant's psychological condition, left shoulder bursitis, cardiac condition, adnexal cyst, and right hand condition were not FDTS and no impairment rating could be assigned to any resulting functional impairments.
On 5 November 2018, the Applicant applied for a first review by the AAT1 (T53).
On 12 February 2019, the AAT1 affirmed the decision to reject the Applicant's claim for DSP (T2). The AAT1 found that:
(a)the Applicant's mental health condition was not FDTS and therefore no impairment rating could be assigned to any resulting functional impairment.
(b)the Applicant's low back condition was permanent, FDTS, and caused a mild impairment attracting 5 points under Table 4.
(c)the Applicant's left and right shoulder conditions were not FDTS, and therefore no impairment rating could be assigned to any resulting functional impairment.
(d)the Applicant's sleep apnoea was not FDTS, because there was “minimal evidence” before the Tribunal about that condition, and therefore no impairment rating could be assigned to any resulting functional impairment.
On 13 March 2019, the Applicant applied for second review by this Tribunal (T1).
CONTENTIONS
Summary
The Secretary contended that the Applicant did not qualify for DSP during the qualification period as she did not have a total impairment rating of 20 points or more under the Impairment Tables and did not have a continuing inability to work.
RELEVANT LEGISLATION
The legislation applicable to this matter is contained in:
·the Social Security Act 1991 (Cth) (the Act);
·the Social Security (Administration) Act 1999 (the Administration Act);
·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables);
·the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The relevant policy is contained in the Guide to Social Security Law (the Guide). The Secretary contended that to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634).
Qualification Period
The Applicant lodged her claim for DSP on 2 July 2018.
The Administration Act provides in Schedule 2, Part 2:
4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
(Original Emphasis.)
It follows that the Applicant's claim for DSP must be assessed based on her medical conditions as at the date of claim or within 13 weeks of that time (See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]–[8]).
The Secretary contended that the qualification period is 2 July 2018 to 1 October 2018 (the qualification period).
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 Member Kerry Breen stated at [34] (Bobera):
In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In ReFanning and Secretary, Department of Social Services (2014) 64 AAR 446 at [34] (Fanning), Deputy President Handley made the following pertinent observations:
31. In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant's condition during the relevant period.
32. This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; 45 AAR 247. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, "Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time".
33. The language in clauses 6(5) and 6(6) of the 2011 Determination is

forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether "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". While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal's decision.
(Original Emphasis.)
In Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [26]–[28], the Federal Court affirmed the principle (as discussed in Fanning and citing Harris above at [20]) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant's condition during the qualification period.
The Secretary contended that these decisions establish that a decision maker, such as the Tribunal, can only consider the Applicant's qualification for DSP within the qualification period. If the Applicant's circumstances have subsequently changed, it may be appropriate for her to lodge a fresh claim for DSP.
Qualification criteria for DSP
Section 94 of the Act details the qualification criteria for DSP and provides relevantly as follows:
94Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
(Original emphasis.)
The qualification criteria set out in subsection 94(1) of the Act are conjunctive, and each element must be satisfied before a person can be accepted to be qualified for DSP. As noted in the Guide, at Instruction 3.6.3.05:
The determination of an impairment rating and the assessment of CITW are

2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance.
Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied.
Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.
(Original Emphasis.)
Section 94(1)(a) - a physical, intellectual or psychiatric impairment
The Secretary accepts that during the qualification period, the Applicant suffered from impairments due to her various conditions. The Applicant therefore satisfied s 94(1)(a) of the Act at the date of claim.
Section 94(1)(b) - a rating of 20 points or more under the Impairment Tables
The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
‘Impairment’ is defined at paragraph three of the Impairment Tables to mean "a loss of functional capacity affecting a person's ability to work that result from the person's condition".
The Impairment Tables contain “Part 2 – Rules for applying the Impairment Tables” and must be satisfied before an impairment rating can be assigned (T3, pp 39-45).
Paragraph 6(3)(a) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent.
Permanent is defined in subparagraph 6(4) of the Impairment Tables to have a specific meaning for the purposes of subparagraph 6(3)(a), it states:
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;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Subsection 6(5) of the Impairment Tables states:
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.
Subsection 6(6) of the Impairment Tables states:
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.
(Notes omitted.)

When applying the Impairment Tables, subsection 6(1) must be kept in mind, it states:
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Assessment of Impairments under the Impairment Tables
Sleep disorder – Table 1
The Secretary accepts that the Applicant suffers from obstructive sleep apnoea with restless leg syndrome (the sleep disorder) as diagnosed by Dr Jeanie Leong (Sleep Physician) in her report dated 1 April 2016 (T31) and Dr Nick Toufexis (GP) in his report dated 13 July 2016 (T32). The Secretary accepts that the Applicant's sleep disorder was fully diagnosed during the qualification period, but contended that the condition was not fully treated or fully stabilised. The resulting impairment therefore cannot be rated under the Impairment Tables.
There is no recent evidence before the Tribunal about treatment or rehabilitation undertaken by the Applicant in relation to her sleep disorder. The most recent evidence is the reports of Dr Leong and Dr Toufexis referred to above at [33], which are dated more than two years prior to the qualification period. The Applicant has not provided any further evidence about treatment she has tried in relation to this condition since that time, other than limited oral evidence to the AAT1 that she had completed a sleep study approximately two years ago, and had used a sleep mask once, before discontinuing its use (T2, p 14). The Secretary further notes, there is no evidence about what treatment is planned or continuing in the next two years for this condition. Accordingly, consistent with the AAT1's findings, the Secretary contended that the Applicant's sleep disorder was not FDTS at the qualification period.
Should the Tribunal disagree, and find that the Applicant's sleep disorder was FDTS during the qualification period, the Secretary contended that there is no corroborating evidence to suggest the Applicant's sleep disorder results in any functional impairment. As such, the appropriate impairment rating under Table 1 is zero points.
This is consistent with the AAT2 decision in relation to the Applicant's 2016 claim

in which the Tribunal agreed that “there was no evidence before the Tribunal to find functional impairment in relation to the Applicant's sleep disorder” (T42, p 300). The Applicant has not provided any further evidence about the impact of treatment of her sleep disorder in the intervening two years that would support a different conclusion.
The Secretary contended that the Job Capacity Assessment (JCA) report dated

23 November 2016 (T36) provides an accurate assessment of the Applicant's present impairment rating. As noted in a DSP medical assessment recommendation completed in relation to the present claim, there is no new medical evidence about this condition that would alter the assessment included in the 2016 JCA. The JCA report recommended an impairment rating of zero points under Table 1 as there was “minimal impact on function” (T36, p 266).
Accordingly, the Secretary contended that the impairment arising from the possible sleep disorder condition rates a maximum of zero points under Table 1 of the Impairment Tables.
Shoulder condition – Table 2
The Secretary has accepted that the Applicant suffers from left shoulder bursitis as diagnosed by Dr Toufexis in his report dated 13 July 2016 (T32). However the Secretary contended that the Applicant's left shoulder condition was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating under Table 2 of the Impairment Tables can be assigned to any impairment arising from this condition.
The Applicant's past treatment for the left shoulder condition has included nonsteroidal anti-inflammatory drugs, analgesia and physiotherapy. However, the Applicant was not referred for specialist opinion and treatment of the shoulder condition. In accordance with the JCA Report completed by a Registered Occupational Therapist (T36, p 260), the Secretary contended that the Applicant has not undertaken all reasonable treatment and further specialist referral and treatment may result in significant functional improvement within the next two years.
This is consistent with the first AAT2 decision (T42), in which the AAT2 found that the Applicant's left shoulder condition was not FDTS because there was “no evidence before the Tribunal that the Applicant undertook specialist treatment in relation to her condition of left shoulder bursitis” (T42, p 300). The Applicant has not provided any further evidence about her left shoulder condition since the first AAT2 decision that would alter this assessment of the evidence.
In relation to the right shoulder condition, the Secretary noted that the only evidence about this condition consists of:
(a)
an ultrasound and x-ray report of the right shoulder dated 8 October 2018

(T51, p 351), which relevantly stated: “The rotator cuff tendons are all normal…. No significant degenerative changes in the AC joints….Subacromial/subdeltoid bursal/ thickening, with bursal impingement.”; and
(b)a referral letter from Dr Toufexis to the orthopaedic department at Royal Perth Hospital dated 29 October 2018, regarding the bursitis in the right shoulder of the Applicant (T52, p 352).
The Tribunal finds that the right shoulder condition was not fully diagnosed in the qualification period (ending 1 October 2018). Even if the later diagnosis contained in

Dr Toufexis' referral dated 29 October 2018 was referrable to the qualification period, the referral letter from Dr Toufexis clearly demonstrates that treatment had not commenced during the qualification period and further treatment options were being explored after the qualification period. Accordingly, the Secretary contended that the Applicant's right shoulder condition was not fully treated and stabilised during the qualification period.
Should the Tribunal disagree, and find that either or both of the Applicant's shoulder conditions were FDTS during the qualification period, the Secretary contended that the impairment arising from these conditions would attract a rating of zero points under

Table 2 of the Impairment Tables.
There is no medical evidence to corroborate that the Applicant had any impairment resulting from either of her shoulder conditions during the qualification period. The only relevant evidence is a report from Dr Toufexis dated 13 July 2016 in which he stated that the Applicant has “ongoing limitations with sleeping / lifting any objects” (T32, p 255).
For a rating of 5 points under Table 2, the Applicant would need to meet "most" (that is, at least 3) of the descriptors under that rating. The Secretary contended that there is no medical evidence to support that the Applicant has any difficulty with handling small objects, doing up buttons, or picking up heavier objects (such as a 2 litre carton of liquid) and accordingly the appropriate impairment rating is zero points under Table 2 of the Impairment Tables.
Chronic lower back pain– Table 4
The Secretary accepts that the Applicant suffers from chronic low back pain caused by disc protrusion and bilateral facet disease of the lumbar spine (Low Back Condition), and that this condition was FDTS during the qualification period.
The Secretary contended that the Applicant's Low Back Condition causes an impairment to her spinal function and that the impairment is appropriately rated under Table 4 of the Impairment Tables. Table 4 is to be used where a person has a condition resulting in functional impairment when performing activities involving spinal function. The Applicant's medical evidence indicates that she suffers from chronic low back pain, and experiences limitations with bending, stooping, lifting, and prolonged sitting, which the Secretary contended is appropriately assessed under Table 4.
The Secretary contended that during the qualification period the Applicant's impairment from her Low Back Condition attracted a maximum of five points under Table 4 of the Impairment Tables on the basis that she has difficulty in bending to knee level and straightening up again (T32; T36).
The Secretary contended that the Applicant cannot be assessed as having an Impairment rating higher than five points under Table 4, on the basis that:
(a)the JCA completed by a Registered Occupational Therapist, observed that the Applicant has minimal functional impact with turning her trunk and moving her head (T36);
(b)
while in 2014, Dr Toufexis recorded that the Applicant has a reduced ability to bend, stoop and lift (T22), the more recent report dated 13 July 2016, by

Dr Toufexis states that Applicant has "limited bending / lifting" (T32). Accordingly, the evidence does not suggest that, as at the qualification period, the Applicant was unable to bend forward to pick up a light object placed at knee height;
(c)there is no evidence to suggest that the Applicant needs assistance from another person to get up out of a chair; and
(d)the Applicant's back condition was diagnosed in 2008 (T6), however, as noted by the JCA, the functional impairment caused by this condition did not prevent the Applicant from undertaking full time employment in dress pattern-making and design until she was made redundant in 2012 (T24; T42, p 298).
Accordingly, the Secretary contended that the impairment arising from this condition rates a maximum of five points under Table 4 of the Impairment Tables.
This is consistent with the first AAT2 decision (T42), in which the AAT2 found that the Applicant's low back condition resulted in five impairment points under Table 4. The Applicant has not provided any further evidence about her low back condition since the AAT2 decision that would support any different finding.
Psychological condition – Table 5
The Secretary accepts that the Applicant suffers from generalised anxiety disorder with co-morbid recurrent major depression (psychological condition) which was fully diagnosed during the qualification period, but contended that this condition was not fully treated and stabilised at that time. Accordingly, no impairment rating can be assigned under Table 5 for the resulting impairment.
The JCA report dated 23 November 2016 (T36), recommended that this condition was FDTS. However this was based on an understanding that the Applicant had engaged in appropriate pharmacological intervention, as recommended by her psychologist, and was continuing with psychological counselling. Evidence provided to the AAT1 and AAT2 since the JCA report however, confirmed that the Applicant had not engaged in recommended treatment options (see T42, p 298; T2, pp 12-13).
The Secretary notes that the Applicant has engaged in psychological counselling for significant periods, which commenced in 2013 after she had been made redundant from her employment and was experiencing relationship difficulties. However, the Applicant appears to have ceased all psychological counselling in August 2016, and there is no evidence that she has re-engaged in counselling (T2, pp 12-13).
At the AAT1 hearing on 12 February 2019, the Applicant gave oral evidence about her psychological condition, she stated, among other things (as summarised in the AAT1 reasons in T2) that “she had many sessions with Ms Beel and also saw another psychologist, Dr Emma DeCicco. Those sessions ended in about 2016 and she has had no other formal counselling since then.” (T2, p 12). This evidence is consistent with the earlier evidence outlined at [53] above that the psychological condition was not fully treated and stabilised.
At the Tribunal (AAT2) hearing on 2 September 2019, the Applicant in her oral evidence about her psychological condition confirmed that she has had no further counselling since then.
Further, in a letter dated 6 August 2014, Clinical Psychologist Dr John Manners noted that, due to the Applicant's levels of anxiety and distress, "psychotherapy for her would not be suitable and medication would be required” (T19, p 204). The Secretary contended that, contrary to this recommendation, the Applicant has not undertaken reasonable trials of anti-anxiety and anti-depressant medication (T2, pp 12-13). Following Dr Manners' recommendation, the Applicant’s pharmaceutical benefit scheme history for the period January 2013 to June 2017 (Exhibit R1 Attachment A) indicates that:
(a)a months’ supply of the anti-depressant, escitalopram was dispensed to the Applicant on 20 August 2014; and
(b)the Applicant trialled sporadically anti-anxiety medication (oxazepam or diazepam) prior to the qualification period, with 25 day supplies dispensed on the following dates:
(i)2013: 29 January, 10 April, 21 June, 20 July, 22 August, 23 December;
(ii)2014: 4 November;
(iii)2015: 8 September;
(iv)2016: 30 January; and
(v)2017: 31 January.
The Australian and New Zealand Journal of Psychiatry quotes the Clinical Practice Guidelines for the treatment of mood disorders, (G. S. Malhi et al, ‘Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders’ (2015) 49(12) Australian and New Zealand Journal of Psychiatry 1087 (‘Guidelines for Mood Disorders’), and the Clinical Practice Guidelines for the treatment of the panic disorder and agoraphobia, (Gavin Andrews et al, ‘Australian and New Zealand clinical practice guidelines for the treatment of panic disorders and agoraphobia’ (2003) 37 Australian and New Zealand Journal of Psychiatry 641) (‘Guidelines for the treatment of panic disorders and agoraphobia’) that is endorsed by the Royal Australian and New Zealand College of Psychiatrists. These guidelines contain the following recommendations:
(a) Cognitive behaviour therapy (CBT) is more effective and more cost-effective than medication [in treating panic disorder and agoraphobia]. Tricyclic antidepressants (TCAs) and serotonin selective reuptake inhibitors [SSRls] are equal in efficacy...Drug treatment should be complemented by behaviour therapy (Guidelines for the treatment of panic disorders and agoraphobia, 641);
(b)In mild to moderate episodes of MDD, psychological management alone may be adequate, especially early in the course of illness. However, episodes of greater severity, and those that run a chronic course are likely to require the addition of antidepressant medication, or some other combination of psychological and pharmacological treatment (Guidelines for Mood Disorders, 1105);
(c) For Major Depressive Disorder (‘MDD’), if there is minimal response [to psychological counselling] within a reasonable period of time, then pharmacotherapy should be considered. Depending on the severity and symptom profile of the depressed patient, psychological treatment may be best administered after initiating pharmacotherapy…(Guidelines for Mood Disorders, 1107); and
(d)Patients with moderate-severe depression should be offered combined pharmacotherapy and psychotherapy as first line treatment.
Patients with chronic depressive disorders should be offered combined psychotherapy and pharmacotherapy as first line treatment. (Guidelines for Mood Disorders, Recommendation Box I., 1108).
(e)For MDD, when trialling anti-depressant medication, …if no improvement is apparent within the first three weeks of adequate treatment, a dose increase or augmentation should be considered, especially if the depressive symptoms are severe and/or disabling. If an adequate dose has been found effective, remission usually requires six weeks of treatment. Switching is an important strategy but should only be considered once an adequate trial at an adequate dose has been achieved. (Guidelines for Mood Disorders, 1108).
(Emphasis Added.)
The Secretary contended that pharmacological treatment, as recommended by

Dr Manners, combined with ongoing psychological counselling is a reasonable treatment as defined in s 6(7) of the Impairment Tables. That is, it is readily available to the Applicant at a reasonable cost, has a high success rate and can reliably be expected to result in a substantial improvement in functional capacity if undertaken. There is no medical evidence that suggests that, if such treatment were undertaken by Applicant, that significant functional improvement would be unlikely to result within two years. As the Applicant has not undertaken this recommended treatment, the Secretary contended that her mental health conditions cannot be accepted to be fully treated and stabilised as at the qualification period.
This is consistent with the findings of the AAT2, that the Applicant's psychological condition was not FDTS at the time of her 2016 claim because she was not continuing with appropriate treatment and had not explored all reasonable treatment options. The AAT2 noted:
the recommendations of clinical psychologist, Dr Manners in paragraph 35 of this decision (that is, the AAT1 decision dated 31 May 2018), "psychotherapy… would not be suitable and medication would be required" and agrees that the Applicant has not undertaken reasonable trials of

anti-anxiety and anti-depressant medication as contended by the Respondent.
The Applicant has not provided any further evidence about treatment for her mental health condition since the AAT2 decision that would support any different finding.
The Applicant did not provide any additional evidence about the treatment of her mental health condition at the AAT2 hearing on 2 September 2019, apart from a copy of a labelled box of Sifrol ER tablets that had been prescribed to her.
In the alternative, if the Tribunal finds that the Applicant's psychological condition was FDTS during the qualification period, the Secretary contended that the impairment resulting from this condition is appropriately rated under Table 5 of the Impairment Tables. The Secretary contended that during the qualification period the Applicant's impairment from her psychological condition attracted no more than five points under Table 5 of the Impairment Tables.
The Applicant has not provided any further corroborating evidence of her symptoms since the JCA report dated 23 November 2016 (T36). The only further information provided by the Applicant is her oral self-report of symptoms, which is not sufficient. The Secretary contended that the JCA report dated 23 November 2016 should be accepted as an accurate assessment of her impairment rating. The JCA report concluded that the Applicant's psychological condition resulted in a mild functional impact (that is,

5 impairment points) because she had mild difficulties with social/recreational activities and travel, interpersonal relationships, concentration and task completion, behaviour, planning and decision making, and work/training capacity. The JCA's conclusion was consistent with objective medical evidence available at the time, including reports provided by her General Practitioner Dr Toufexis, and Clinical Psychologists Dr DeCicco and Ms Beel.
For a rating of 10 points, the Applicant would need to be assessed as having a "moderate" impairment in most (4 or more) of the descriptors for that impairment rating. The Secretary contended that the Applicant does not meet at least 4 of those descriptors at the moderate level because:
(a)in relation to self-care and independent living, the Applicant lives in an apartment with her ex-partner but they live independently of each other. The Applicant reported that she does her own shopping and cooking and manages her own financial affairs (T36; T42, p 298; T2, p 12). There is no evidence to suggest that the Applicant has any difficulty with self-care;
(b)in relation to social/recreational activities and travel, the Applicant reported that she had a driver's licence and a car which she used to go shopping and to attend appointments (T36; T42, p 298; T2, p 12). However the Applicant reported that her anxiety makes it difficult for her to leave her home and that she only tends to leave home to attend appointments or familiar places (T34).
(c)in relation to interpersonal relationships, the Applicant reported that her friendships had declined since her separation from her ex-partner, but as at November 2016, she was slowly reconnecting with friends (T36). However, in a joint report by Clinical Psychologists Dr Emma DeCicco and Ms Beel, they observed that during consultation, the Applicant appeared to demonstrate difficulties responding to appropriate social cues in her discourse for example, often engaging in tangential speech (T34). The Applicant reported in February 2019 that she “has regular skype contact with her sister in Poland, which she finds helpful” (T2, p 12).
(d)
in relation to concentration and task completion Dr Toufexis recorded that the Applicant experiences difficulty concentrating, low motivation, and poor tolerance

(T8; T16; T22). The Applicant reported that she has difficulties with memory (T29), experiences fatigue, insomnia, an inability to complete activities, difficulty focussing, loss of enjoyment in tasks, and constant stress and worry. However:
(i)in September 2015, the Applicant reported that she has completed some computer courses at Belmont Business Centre to update her skills and that she has completed courses in design (T30, p 241);
(ii)in November 2016, the Applicant reported that she was undertaking a personal computer training course at the "Digital Hub" with the Victoria Park Town Council, which involves one-on-one training for 2 hours a day, 2 days a week. Together with homework, the Applicant reported that this course required 8 hours training per week. The Applicant also reported that she was undertook an online English clothing design course in November 2016 (T36, p265). This is despite the Applicant's report in August 2016, that her concentration lasts for approximately 10 minutes and that she finds it difficult to engage in tasks for any period of time (T34);
(iii)the Applicant reported that she and her ex-partner are in the process of selling their flat (T43, p 305);
(iv)the Applicant reported that she “spends a lot of time using the internet to look for solutions” (T2, pp 11-12).
(e)In relation to behaviour, planning and decision-making:
(i)in 2012 and 2013, the Applicant reported that she wanted to improve her computer skills to return to work and that she wanted to commence various study programs such as Photoshop and computer skills and a Cert IV in textile and design (T9, p 170; T13, p 179);
(ii)in September 2015, the Applicant reported that she designs and makes her own clothing and has sold her clothes online, through Facebook. The Applicant also reported that she had been investigating setting up her own business under the NEIS scheme (T30, p 241);
(iii)in November 2016, the Applicant reported that she was in the process of selling her apartment, which had been on the market for 3 weeks, requiring ongoing negotiation with the real-estate agent. The Applicant also reported that she was looking for rental accommodation (T36, p 265); and
(iv)
the Applicant reported that she had 'tried to start her own business’

(T2, p 11).
(f)In relation to work and training capacity, there is no evidence to indicate that the Applicant had interpersonal conflicts at work, or during her studies and further training.

The Secretary contended that the Applicant does not satisfy the requirements for a rating of 10 impairment points under Table 5 because there is no corroborating evidence to suggest that she had moderate difficulties in at least 4 of the 6 descriptors for a 10 point rating. At best, she may have moderate difficulties in social activities and travel, and interpersonal relationships, but the Secretary contended that the Applicant has no impairment to self-care and independent living and only mild difficulties with the remaining descriptors. Accordingly, if the condition were FDTS at the qualification period, the appropriate impairment rating under Table 5 would be 5 points.
The Applicant advised the Tribunal (AAT2) at the hearing on 2 September 2019 that she and her ex-partner had been unsuccessful to date in selling their flat/apartment.
Other conditions
The Secretary contended that the Applicant had provided the following evidence on additional conditions, since lodging her most recent claim for DSP:
(a)
Sir Charles Gairdner Hospital Emergency Medicine Discharge Summary dated

8 June 2018 (T45), which relevantly states: “Felt heart was racing…chest pain… symptoms consistent with unstable angina but will need stress echo to confirm…copy of blood results given and reassured they are all normal.”
(b)ultrasound Pelvis report dated 22 August 2018 (T52), which relevantly states: “There is a normal central endometrial echo complex ...There is no evidence of pelvic free fluid or a pelvic side wall mass lesion….The appearance suggests a probable nabothian cyst containing inspissated secretion. Bilateral ovarian remnant follicles.”
In relation to the Applicant's cardiac condition, the Secretary notes that the evidence from Sir Charles Gairdner Hospital indicates no formal diagnosis has been made and investigations are ongoing. This condition therefore was not FDTS during the qualification period.
In relation to the 'nabothian cyst' identified in the ultrasound completed on

22 August 2018, the Secretary notes there is no evidence to suggest what, if any, treatment has been undertaken or is being considered for this condition. The Secretary notes the Applicant was referred to the Osborne Park Hospital Gynaecology Clinic (OPHGC) in November 2017 for a 'small adnexal cyst' (T40). The Applicant was seen at the OPHGC on 19 December 2017 (T41) and further investigation was recommended but does not appear to have occurred. This condition therefore was not FDTS during the qualification period.
Overall impairment rating
The Secretary contended that the Applicant had an overall impairment rating of five points under the Impairment Tables. The Applicant therefore does not satisfy s 94(1)(b) of the Act.
Continuing inability to work
If, contrary to the Secretary's submissions, the Tribunal considers that the Applicant's conditions attracted a rating of at least 20 points under the Impairment Tables, the Tribunal is required to consider whether the Applicant had a continuing inability to work.
The Secretary contended that the Applicant did not have a continuing inability to work during the qualification period.
The term 'continuing inability to work' is defined in subsection 94(2) of the Act, which states:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The term 'severe impairment' is defined in subsection 94(3B) of the Act, as follows:
(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.
(Original Emphasis.)
The program of support (POS) requirements in s 94(2)(aa) only apply if a person has

20 points under the Impairment Tables but does not have a severe impairment as defined in subsection 94(3B). A person who needs to meet the POS requirements is considered to have actively participated in a POS if they meet the requirements set out in the POS Determination.
Generally, a person will be required to participate in a program of support for 18 months in the 36 months ending immediately prior to the date of the relevant claim for DSP (the relevant POS period). The Secretary accepts that the Applicant met this requirement.
The Secretary contended that the Applicant does not have continuing inability to work, as her impairments from FDTS conditions do not prevent her from doing any work of at least 15 hours per week or from engaging in a training activity.
The term 'work' is defined in subsection 94(5) of the Act, as work:
(a)that is for at least 15 hours per week 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.
It is clear from the terms of section 94(2) that the ‘impairment' referred to is the impairment which has been assessed as permanent and attracting a rating under the Impairment Tables. The result is that any impairment that is not permanent within the meaning of the Act cannot be considered when assessing whether a person has a continuing inability to work. In Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500, Dowsett and Kiefler JJ said (at [22]):
s 94(2) is intended to define the expression "continuing inability to work" for the purposes of s 94(1)(c). It is of interest that the expression defined in

s 94(2) is "a continuing inability to work because of an impairment. Impairment is referred to in s 94(1)(a) and (b) but not in conjunction with the expression "a continuing inability to work" in s 94(1)(c). Its presence in s 94(2) demonstrates that the continuing inability referred to in subpar 94(1)(c)(i) must be the result of the impairment referred to in pars 94(1)(a) and (b).
The Secretary notes that the phrase ‘any work’ in s 94(2)(a) ought not be interpreted to mean ‘suitable work’ (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at [34]). For example "any work" does not exclude types of employment that a claimant may consider insufficiently intellectually challenging or which are, in his or her view, insufficiently challenging (Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at [27]).
Further, a consideration of whether a person has a "continuing inability to work" should be based on "...the person's capacity to do the hypothesised job – rather than whether they have past experience, or actual skill in undertaking work of that particular kind” (Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066 at [41]).
In the process of determining whether a person has a continuing inability to work, the decision maker must disregard a number of factors in summary these include (see the Guide at Instruction 3.6.2.112):
·
the availability of work in the person's locally accessible labour market (see

s 94(3)(b) of the Act);
·the availability to the person of a training activity (see s 94(3)(a) of the Act);
·the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (see also Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
·the person's preferences regarding the type of work or training (see also Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
·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 (see also Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (see also Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517); and
·difficulties with language, literacy or numeracy that are not directly attributable to a medical condition.
In this respect, the Secretary relies upon the JCA Report dated 23 November 2016 that assessed the Applicant as having a future work capacity within two years with intervention of 15-22 hours per week. The JCA identified appropriate work as light semi-skilled work, such as retail sales, as suitable for the Applicant.
The Secretary contended that the opinion of the trained and qualified job capacity assessor employed by the Department of Human Services should be accepted in relation to the Applicant's capacity to work. The job capacity assessor has specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person's capacity to work. The job capacity assessor has knowledge of labour market issues and experience in assessing the impact of medical conditions on a person's ability to work, and is in the best position to properly determine the Applicant's capacity to perform any work or to undertake educational or vocational training (see Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642).
The Secretary further contended that the evidence does not support a finding that the Applicant is, by reason of her impairments from FDTS conditions only, prevented from undertaking a training activity. Rather, the evidence set out above demonstrates the · Applicant's ability to undertake further study and training.
Accordingly, the Secretary contended that the Applicant did not meet the requirements of ss 94(2)(a) and 94(2)(b) of the Act during the qualification period. Consequently, the Applicant did not have a continuing inability to work under s 94(1)(c) of the Act.
CONCLUSION
For the reasons outlined above, the Secretary’s contending conclusion was that the Applicant does not satisfy subsections 94(1)(b) and (c) Act and therefore does not qualify for DSP.
EVIDENCE
The evidence before the Tribunal comprised:
·a copy of a letter dated 26 June 2019 for a medical appointment with Dr Pienaar on 6 August 2019 (Exhibit A1);
·
a copy of a labelled prescription medicine box cover for Sifrol ER tablets

(Exhibit A2);
·the Respondent Statement of Issues, Facts & Contentions, dated 6 June 2019 (Exhibit R1);
·a copy of the Hearing Certificate (Exhibit R2);
·a copy of the Applicant’s Pharmaceutical Benefit Scheme Medical Records from August 2015 to December 2018 13/5/19, and Medicare report from 4 June 2015 to 11 June 2019 (Exhibit R3); and
·the Tribunal T documents (T1-T59, pp 1-403) (Exhibit R4).
CONSIDERATION
The Applicant in her oral evidence was in a very stressed and emotional state and was repetitive on a number of occasions. In her response to questions there was nothing in addition to that which she had provided at previous hearings.
At the Tribunal hearing (AAT2) the only new evidence provided was a certificate of her medical appointment on 6 August 2019 with Dr Pienaar at Sir Charles Gairdner Hospital, and a copy of a labelled box of prescription medicine tablets (Sifrol ER) prescribed to her.
Based on all the facts and evidence presented, the Tribunal concluded that while during the qualification period the Applicant suffered from physical impairments due to her various conditions and satisfied s 94(1)(a) of the Social Security Act 1991, she does not satisfy subsections 94(1)(b) and (c) of the Act on the basis of the following:
·the Applicant's mental health condition was not FDTS and therefore no impairment rating could be assigned to any resulting functional impairment;
·the Applicant's lower back condition was permanent, FDTS, and caused a mild impairment attracting 5 points under Table 4;
·the Applicant's left and right shoulder conditions were not FDTS, and therefore no impairment rating could be assigned to any resulting functional impairment; and
·the Applicant's sleep apnoea was not FDTS, because there was 'minimal evidence' before the Tribunal about that condition, and therefore no impairment rating could be assigned to any resulting functional impairment.
The Tribunal affirms the decision of the AAT1.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

..........................[sgd]..............................................
Associate
Dated: 01 October 2019

Date(s) of hearing: 02 September 2019

Applicant: In person

Counsel for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	02 September 2019
Applicant:	In person
Counsel for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers