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

Pustul and Secretary, Department of Social Services (Social services second review) [2018] AATA 1507 (31 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4842
Re:Alicja Pustul
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:31 May 2018
Place:Perth

The decision under review is affirmed
........................................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – assessing impairments and assigning impairment ratings – qualification period – continuing inability to work rating – participation in program of support - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 94 – ss 94(1) – ss 94(2) - ss 94(3B) – ss 94(3C)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1) – ss 7(2)
Social Security Administration Act 1999 (Cth) – Sch 2 subcl 4(1) – s 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2014 (Cth) – ss 6(1) – ss 6(2) – ss 6(3) – ss 6(4) – ss 6(5) – ss 6(6) – ss 6(7) – s 7 – s 8 – ss 8(1) – s 9 – s 10 – s 11 – ss 11(1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409; [1979] AATA 179
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Ulukut and Secretary, Department of Social Services [2014] AAT 399
SECONDARY MATERIALS
The Guide to Social Security Law

Gin S Malhi et al, ‘Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for the treatment of mood disorders’ (2015) 49.12 Australian and New Zealand Journal of Psychiatry 1
REASONS FOR DECISION
Member C Edwardes
31 May 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 21 July 2017 (T2 7-13) (R1). This decision affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 27 January 2017 (T43 309-315) (R1).
The General Division of the Administrative Appeals Tribunal (the Tribunal) has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
1A 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) …
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2, clause 4(1) of the Administration Act. Schedule 2, clause 4 of the Administration Act provides that the relevant time to consider a person’s entitlement for DSP is 13 weeks after the person’s claim (Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]). The Tribunal therefore notes that it is required to assess the Applicant’s eligibility for DSP based on her medical condition between 13 June 2016 to 12 September 2016 inclusive (the Qualification Period). For a claim to be successful a person must be qualified for DSP during the qualification period. Changes in medical condition that occur later are not relevant to this claim. They may however, be relevant to a future claim (Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]).
Assessing Impairments and assigning an impairment rating
The impairment tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”
Paragraph 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, subsection 11(1) of the Determination states that if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Continuing Inability to Work
As set above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
2A 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
(a)(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.
(Emphasis added)
“Severe impairment” is defined in subsection 94(3B) of the Act:
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.
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C).
The Tribunal notes that subsections 7(1) and 7(2) in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) generally require that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
The Tribunal is further assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. The Tribunal whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).
ISSUES FOR DETERMINATION
The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP between 13 June 2016 to 12 September 2016. This requires consideration of the following criteria:
(a)did the Applicant have any physical, intellectual or psychiatric impairment; and
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in section 94(2) of the Act.
BACKGROUND
On 1 September 2016, the Applicant lodged a claim for DSP involving the conditions of anxiety/depression, chronic low back pain, left shoulder bursitis and sleep disorder (T36 266) (R1).
On 23 November 2016, the Applicant attended a Job Capacity Assessment (JCA). The job capacity assessor from the Department of Human Services, Centrelink (the Department) determined that the Applicant’s following conditions were fully diagnosed treated and stabilised (FDTS):
·Anxiety;
·Spinal disorder; and
·Respiratory disorder (T40 299-302) (R1).
The job capacity assessor (JCA) determined that the Applicant’s shoulder and upper arm disorder were not FDTS (T40 301) (R1).
The JCA recommended the following impairment ratings of:
·anxiety – 5 points;
·spinal disorder – 5 points; and
·respiratory disorder – 0 points (T40 302-303) (R1).
The Applicant’s claim was rejected on the 23 November 2016 by the Department on the basis that the Applicant had not generated 20 or more points under the Impairment Tables. (T41 306) (R1).
On 27 January 2017, the Authorised Review Officer (ARO) affirmed the decision of the Department. The ARO determined the following:
You have the following permanent conditions: Anxiety, Depression, Chronic Low back Pain and Sleep Disorder.
Your condition of Left [sic] Shoulder Bursitis [sic] is not fully diagnosed, treated and stabilised
Your total impairment rating is 10 points.
You do not have an impairment rating of 20 points or more.
You do not have a continuing inability to work 15 hours per week or more because of your impairment (T43 310) (R1).
On 24 March 2017, the Applicant filed an application for review with the AAT1 (T44 316) (R1).
On 21 July 2017, the AAT1 awarded the Applicant the following:
·lumbar spine condition – FDTS – generated an impairment rating of 5 points under Table 4;
·anxiety/depression – FDTS – generated an impairment rating of 10 points under Table 5;
·left shoulder bursitis condition – not FDTS – generated an impairment rating of 0 points;
·sleep disorder – generated an impairment rating of 0 points; and
·other conditions – none of the other conditions caused functional impairment (T2 7-13) (R1).
On 15 August 2017, the Applicant applied to the Tribunal for a second review of the decision for the following reasons:
4 specialised doctors think other-wise [sic] my GP and me [sic] too. It is very hard for me to explain properly in brief interrogation how much my health limits my ability to find a job and a normal life (T1 1-2) (R1).
EVIDENCE
The matter was heard in Perth on 16 March 2018. The Applicant appeared in person and the Respondent was represented by Ms Jones Bolla from Sparke Helmore Lawyers.
The Tribunal received the following evidence:
·Exhibit A1 – Notification of Craft Practice, dated 22 March 1979.
·Exhibit A2 – Letter from Jeannie Figueroa (Department of Education and Training Overseas Qualification Unit), dated 24 January 2005.
·Exhibit A3 – Reference letter from LW & BT Laffin, dated 26 March 2005.
·Exhibit A4 – Reference from Yatish Devchand, Tara Uniforms, dated 27 July 2006.
·Exhibit R1 – T Documents, T1-T48, pp 1-349 and Supplementary T Documents, ST1-ST4, pp 350-437.
·Exhibit R2 – Secretary’s Statement of Issues, Facts and Contentions (SOFIC), dated 3 January 2018. Including list of authorities.
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Respondent’s Contentions
The Respondent’s contentions are summarised below:
·chronic low back pain – Table 4 – this condition is accepted as FDTS during the qualification period;
·sleep disorder – Table 1 – this condition is accepted as FDTS during the qualification period;
·anxiety and depression – Table 5 – this condition is accepted as fully diagnosed during qualification period, but not fully treated and stabilised; and
·left shoulder bursitis – Table 2 – this condition is not accepted as FDTS.
The Respondent’s contentions are further detailed below:
10The Secretary contends that the Applicant did not qualify for DSP during the qualification period for the following reasons:
10.1. the Applicant did not have a total impairment rating of 20 points or more under the Impairment Tables;
10.2. the Applicant did not satisfy 18 months of active participation in a program of support in the three years immediately prior to claim, or satisfy an exemption;
10.3. the only way for the Applicant to avoid the program of support requirement is if one of her conditions is a severe impairment of 20 points under a single Table, and there is no evidence to support that the Applicant had a severe impairment of 20 points under a single Table; and
10.4. the Applicant’s work capacity has been assessed as 15-22 hours per week within two years with intervention in light, semi-skilled work (R2 3-4).
The Secretary makes the following comments in respect to each of the Applicant’s conditions:
Sleep disorder- Table 1
32The Secretary accepts that the Applicant’s obstructive sleep apnoea with restless leg syndrome (sleep disorder) was FDTS during the qualification period and the resulting impairment can therefore be rated under the Impairment Tables.
33The Secretary contends that the Applicant’s sleep disorder causes impairment to her function requiring physical exertion and stamina and that the impairment is appropriately rated under Table 1 of the Impairment Tables. Table 1 is to be used where a person has a condition resulting in functional impairment when performing activities requiring physical exertion or stamina. The Applicant’s medical evidence indicates that she suffers from daytime fatigue, reduced alertness during the day and chronic aches, which the Secretary contends is appropriately assessed under Table 1.
34The Secretary contends that during the qualification period, the Applicant’s impairment from her sleep disorder attracted a maximum rating of 0 points under Table 1 of the Impairment Tables because:
(b)Dr Nick Toufexis, in his report dated 13 July 2016, confirms that the Applicant’s sleep disorder causes the Applicant to experience fatigue and reduced alertness during the day, as well as chronic aches (T32/237). However, there is no evidence to suggest that this impairment causes the Applicant to experience difficulty with walking without stopping to rest or performing physically active tasks;
(c)The Applicant reported to a Job Capacity Assessor that she is independent in self-care and is able to undertake domestic duties (T23/201-208)
(d)The Applicant reported to a Job Capacity Assessor that she walks for 1.5 hours per day (T40/299-305). This is corroborated in the report of Ms Julianne Beel, Clinical Psychologist, which states that the Applicant manages her anxiety through walking (TST2/411); and
(e)There is no medical evidence to substantiate a rating higher than 0 under Table 1 of the Impairment Tables.
35Accordingly, the Secretary contends that the impairment arising from this condition rates a maximum of 0 points under Table 1 of the Impairment Tables.
Left shoulder bursitis – Table 2
36Secretary contends that the Applicant’s left shoulder condition was not FDTS during the qualification period. Accordingly, under the Rules, an impairment rating cannot be assigned to any impairment arising from this condition.
37In accordance with the report of Dr Toufexis, the Applicant’s left shoulder condition was diagnosed in February 2016 and has been treated with NSAIDs, analgesia and physiotherapy (T32/237). However, the Applicant was not referred for specialist opinion and treatment of the shoulder condition. In accordance with the Job Capacity Assessment Report completed by a Registered Occupational Therapist (T40/299-305), the Secretary contends 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.
38Should the Tribunal disagree, and find that the condition was fully treated and stabilised as at the qualification period (which is not conceded), the Secretary contends that the impairment arising from this condition would attract a maximum of O points under Table 2 of the Impairment Tables. The Secretary relies on the assessment of Dr Toufexis, as set out at paragraph 3 of his report (T32/237). While the Applicant self-reported that she has some difficulty accessing items above head height (T40/299-305), there is no medical evidence to corroborate this. For a rating of 5 points, the Applicant would need to meet ‘most’ (that is, at least 3) of the descriptors under that rating. The Secretary contends 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 a rating higher than 0 points under Table 2 of the Impairment Tables is not available.
Chronic low back pain – Table 4
39The Secretary accepts that the Applicant’s chronic low back pain caused by disc protrusion and bilateral facet disease of the lumbar spine (low back condition) was FDTS during the qualification period and the resulting impairment can therefore be rated under the Impairment Tables.
40The Secretary contends 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 contends is appropriately assessed under Table 4 of the Impairment Tables because:
41The Secretary contends that during the qualification period the Applicant’s impairment from her low back condition attracted a maximum of 5 points under Table 4 of the Impairment Tables because:
(e)The Applicant has difficulty in bending to knee level and straightening up again (T32/237; T40/299-305).
42The Secretary contends that the Applicant cannot be assessed as having an Impairment rating higher than 5 points under Table 4, on the basis that:
(f)There is no evidence to suggest that the Applicant is unable to sustain overhead activities due to a spinal condition. As outlined in paragraph 38 above, there is no medical evidence to corroborate the Applicant’s contention that she has difficulty accessing items above head height;
(a)The JCA, a registered Occupational Therapist, observed that the Applicant has minimal functional impact with turning her trunk and moving her head (T40/299- 305);
(b)While in 2014, Dr Toufexis recorded that the Applicant has a reduced ability to bend, stoop and lift (T20/186-196), the more recent report of Dr Toufexis states that Applicant has ‘limited bending / lifting’ (T32/237). 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;
(d)The Applicant’s back condition was diagnosed in 2008 (T6/138), 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 (T23/201-208).
43Accordingly, the Secretary contends that the impairment arising from this condition rates a maximum of 5 points under Table 4 of the Impairment Tables.
Anxiety and depression – Table 5
44The Secretary accepts that the Applicant’s generalised anxiety disorder with co-morbid recurrent major depression condition (psychological condition) was fully diagnosed during the qualification period however contends that the condition was not fully treated and stabilised at that time. Accordingly, the resulting impairment cannot attract any rating under the Impairment Tables.
45The 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, in August 2014, clinical psychologist Dr John Manners noted that, due to the Applicant's levels of anxiety and panic, ‘psychotherapy for her would not be suitable and medication would be required’ (T181184). The Secretary contends that, contrary to this recommendation, the Applicant has not undertaken reasonable trials of anti-anxiety and anti-depressant medication. Following Dr Manners’ recommendation, the Applicant’s PBS history (pharmaceutical benefit claims history) indicates that:
(a)She had a single trial of an anti-depressant, escitalopram (one month supply dispensed on 20 August 2014);
(b)She has sporadically trialled anti-anxiety medication (oxazepam or diazepam) prior to the qualification period, with 25 day supplies dispensed on 20 August 2014; 4 November 2014; 8 September 2015; and 30 January 2016;
(c)As at the date of claim (1 September 2016) the Applicant had not filled prescriptions for any anti-anxiety medication for over 8 months.
46Clinical Practice Guidelines for the treatment of mood disorders and anxiety disorders endorsed by the Royal Australian and New Zealand College of Psychiatrists contain the following recommendations:
(a)‘Cognitive behaviour therapy (CBT) is more effective and cost-effective than medication [in treating panic disorder and agoraphobia]. Tricyclic antidepressants (TCAs)_ [sic] and serontin [sic] selective reuptake inhibitors [SSRls] are equal in efficacy ... Drug treatment should be complemented by behaviour therapy’
(b)‘In mild to moderate episodes of MOD [major depressive disorder], 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’.
(c)For 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...’
(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.
(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’ (R2 9-14).
(Original emphasis.)

The Respondent argues that the recommendation of Dr Manners and the ongoing treatment of continuous counselling can be viewed as reasonable treatment as defined by the Impairment Tables (R2 14). In addition, the Secretary has conceded given the evidence available that there would be little chance of significant functional improvement within 2 years for the Applicant (R2 15).
The Respondent believes that because the Applicant has not participated in the recommended treatment, her condition cannot be classified as fully treated and stabilised. (R2 14-15).
The Respondent’s further contentions are detailed below:
49The Secretary contends that during the qualification period the Applicant’s impairment from her psychological condition properly rated 5 points under Table 5 of the Impairment tableson [sic] the basis that:
(a)There is no evidence that suggests that the Applicant has any difficulties with self-care;
(b)The evidence suggests that the Applicant is not actively involved in social activities and is sometimes reluctant to travel alone to unfamiliar environments. 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 (T34/239). The Applicant also reported that she avoids driving because she fears she will lose concentration and cause an accident (T2/11). Dr Decicco and Ms Beel record that this has exacerbated the Applicant's social isolation and that the functional impairment caused by this condition significantly impairs her ability to attend occupational training and to obtain or maintain paid employment (T34/239- 240).
(c)Dr Toufexis records that the Applicant experiences difficulty concentrating, low motivation, poor tolerance (T9/141-151; T16/167-177; T20/186-196);
(d)In a joint report, Dr Emma DeCicco, Clinical Psychologist, and Ms Beel, observed that during consultation, the Applicant appeared to demonstrate difficulties responding to appropriate social cues in her discourse as she was often engaging in tangential speech (T34/239);
(e)The Applicant reported that she has difficulties with memory (T29/214), experiences fatigue, insomnia, an inability to complete activities, difficulty focusing, loss of enjoyment in tasks and constant stress and worry which she finds difficult to control (T2/10-11;T34/239).
50For 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 contends 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 (T40/299-305). Additionally, 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 has a driver’s licence and a car which she uses to go shopping and to attend appointments (T40/303). Clinical notes produced by Dr DeCicco and Ms Beel also record that, as at July 2016, the Applicant was slowly improving, seeing friends occasionally and had increased social connection (TST2/406);
(c)In relation to interpersonal relationships, further to paragraph 49(b) above, the Applicant reported that her friendships had declined since her separation from her ex-partner but that, as at November 2016, she was slowly reconnecting with friends (T40/303). The Clinical notes produced by Dr Decicco and Ms Beel record that the Applicant was making contact with old friends as early as July 2015 (TST2/383);
(d)In relation to concentration and task completion:
(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 (T30/221);
(ii)    In her claim for DSP, dated September 2016, the Applicant indicated that she was studying at home on her own (T36/261);
(iii)    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 undertaking an online English clothing design course in November 2016 (T40/303). 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 (T34/239-240) and her self-report to the ARO that she could not concentrate for 15 minutes;
(iv)   Additionally, the Applicant reported that she and her ex-partner are in the process of selling their flat (T36/245) and that, as at March 2016, the Applicant had been completing the paperwork for separation from her ex partner (TST2/395);
(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 [sic] and computer skills and a Cert IV in textile and design (T10/154; T13/161);
(ii)    In July 2015, clinical notes produced by Dr DeCicco and Ms Beel record that the Applicant is more confident in starting her business as a styler (TST2/386);
(iii)    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 (T30/221);
(iv)   Clinical notes dated November 2015, record that the Applicant was considering business ideas with a charity component (TST2/390);
(v)    As at January 2016, clinical notes produced by Dr DeCicco and Ms Beel record that the Applicant has booked computer lessons to commence in February, has joined a language course at TAFE and has been researching various conspiracies (TST2/393);
(vi)   As at March 2016, clinical notes produced by Dr DeCicco and Ms Beel record that the Applicant called a real-estate agent to sell her unit, had booked an English course with TAFE and has started a webpage (TST2/395);
(vii)     As at April 2016, clinical notes produced by Dr DeCicco and Ms Beel record that the Applicant and her ex-partner has progressed their separation and are having their unit looked at. The clinical notes also record that the Applicant is ‘still trying to work out her business plan – designing planning promotion etc’. (TST2/401-402);
(viii)    As at June 2016, the clinical notes produced by Dr DeCicco and Ms Beel record that the Applicant has two business models lined up and is working on her website. The notes record that the Applicant is working on her future and following her interests (TST21403);
(ix)   Ms Beel, in her report dated 30 September 2016, records the Applicant’s report that she is progressing her plan to start a business and that she has continued to make plans for her separation from her ex-partner, including seeing a real-estate agent to discuss the sale of the unit and separation of their possessions. The Applicant also reported that her focus has changed to working on her future (TST21411);
(x)    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 (T40/303).
(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.
51For completeness the Secretary contends that the Applicant does not have a ‘severe impairment’ of 20 points or more under Table 5, for the reasons outlined in paragraphs 49 to 50, above.
52Accordingly, the Secretary contends that the impairment arising from this condition (if FDTS) rates a maximum of 5 points under Table 5 of the Impairment Tables” (R2 15-19).
For the purposes of written substantive evidence, the above represents the views of the Secretary. In respect to the further conditions outlined by the Applicant, the Secretary contends that with the other conditions there is insufficient evidence and that these conditions, even if FDTS, do not cause any functional impairment and hence, an impairment rating cannot be assigned under the Impairment Tables (R2 19).
Applicant’s Contentions
The Tribunal notes the Applicant’s submissions under cross examination:
·the Applicant was referred to the JCA report dated 23 November 2011 (T40 299 – 305) (R1). The Applicant agreed with some commentary in the JCA and stated that she could walk over 1 hour per day and undertook yoga around 23 November 2011;
·the Applicant was referred to a letter from Dr Nick Toufexis in relation to her medical conditions (T32 237) (R1). The Applicant was queried about the treatment that she had received for her left shoulder and she stated that she had only attended 3 physiotherapist sessions for this condition and had not been treated by a specialist;
·the Applicant confirmed that in September 2016 (during the Qualification Period), she was doing her own grocery shopping, and in December 2016 was driving her car;
·the Applicant was referred to the JCA report dated 23 November 2011 and confirmed that whilst her spinal condition commenced in 2008, she was able to work until 2012, at which point she was made redundant (T40 299 – 305) (R1);
·the Applicant was referred to a letter from her clinical psychologist dated 6 August 2014 where her Clinical Psychologist, Dr John Manners stated “while she is so highly aroused, psychotherapy for her would not be suitable and medication would be required’ (T18 184);
·the Tribunal was referred to the Applicant’s PBS patient summary for the periods 20 November 2012 to 9 November 2017 (ST3 421) (R1). It was noted that since 6 August 2014, the Applicant’s records show that she only has four prescriptions relating to her anxiety and depression. These four prescriptions are dated 11 August 2014 (two prescriptions), 24 September 2014 and 22 October 2015; and
·the Applicant’s anxiety and depression were central to all of her conditions.
The Tribunal notes that the Applicant’s case centres on her depression. The Applicant broke down a number of times during the hearing however was able to compose herself as the hearing proceeded. The Tribunal notes that the Applicant stated that she was previously on a Newstart allowance. The Applicant discussed her marriage breakdown, the infections that she suffers from, chronic lower back pain, her anxiety/depression, her poor concentration, sleep disorders, left shoulder bursitis, and her general medical condition.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim the Applicant’s conditions satisfy paragraph 94(1)(a) of the Act. The Tribunal acknowledges that the Applicant suffers from several medical conditions. The Tribunal also notes reports in the T documents indicating that the Applicant has been undergoing ongoing treatment for her conditions (T9 144-145; T16 170-171; T32 237; T33 238; T34 239) (R1). The Tribunal finds that the Applicant suffered from a physical, intellectual or psychiatric impairment pursuant to paragraph 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Anxiety/depression
The Tribunal finds on the evidence before the Tribunal that the Applicant’s condition is fully diagnosed. The Tribunal notes the Clinical Practice Guidelines for the treatment of mood disorders and anxiety disorders endorsed by the Royal Australian and New Zealand College of Psychiatrists, as submitted by the Respondent in their SOFIC:
46Clinical Practice Guidelines for the treatment of mood disorders and anxiety disorders endorsed by the Royal Australian and New Zealand College of Psychiatrists contain the following recommendations:
(a)‘Cognitive behaviour therapy (CBT) is more effective and cost-effective than medication [in treating panic disorder and agoraphobia]. Tricyclic antidepressants (TCAs)_ [sic] and serontin [sic] selective reuptake inhibitors [SSRls] are equal in efficacy... Drug treatment should be complemented by behaviour therapy’.
(b)‘In mild to moderate episodes of MOD [major depressive disorder], 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’.
(c)For MOD, ‘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...’
(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.
(e)For MOD, 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’ (R2 13-14). (Original emphasis.)
The Tribunal notes the recommendations of clinical psychologist, Dr Manners, in paragraph 35 of this decision “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 (T18 184) (R1).
The Tribunal put the list of descriptors at Table 5 of the Impairment Tables in the Determination to the Applicant and gave her the opportunity to address each descriptor.
The Tribunal determined from the Applicant’s oral evidence that the following could be categorised:
·no difficulties with self-care and independent living;
·moderate difficulties with social/recreational activities;
·moderate difficulties with interpersonal relationships;
·moderate difficulties with concentration and task completion;
·moderate difficulties with behaviour, planning, and decision-making; and
·moderate difficulties with work/training capacity.
From evidence before the Tribunal, the Tribunal finds that the Applicant’s mental health conditions generate no points as they are not fully treated or stabilised.
Sleep Disorder
The Tribunal agrees with the Respondent and finds that there was no evidence before the Tribunal to find functional impairment in relation to the Applicant’s sleep disorder. The Tribunal therefore does not award any points to the Applicant in relation to her sleep disorder.
Left Shoulder Bursitis
The Tribunal finds that there is no evidence before the Tribunal that the Applicant undertook specialist treatment in relation to her condition of left shoulder bursitis. The Tribunal therefore concludes that this condition is not fully diagnosed, treated and stabilised. The Tribunal awards the Applicant zero points in relation to her condition of left shoulder bursitis.
Chronic Low Back Pain
The Tribunal accepts on the evidence before it that the Applicant is suffering from significant pain. The Tribunal accepts that the Applicant experiences limitations involving a whole range of physical activities that impact on the Applicant’s ability to stoop, bend or lift objects. The Tribunal accepts also that the Applicant is under a range of treatments to address her conditions and requires continuous anti-inflammatory medications, physiotherapy and analgesics.
The Tribunal is satisfied that the Applicant’s condition is fully diagnosed, treated and stabilised. The Tribunal finds on the evidence before it that this condition generates 5 points under Table 4 of the Impairment Tables. The Tribunal finds there is a mild functional impact on activities involving her lower back and that the evidence demonstrates the Applicant does have difficulties in over- head activities, bending and straightening without difficulty and moving their head from side to side. The Tribunal is satisfied this condition does not meet the requirements of a severe impairment.
Other Conditions
As to the Applicant’s other conditions including side effects to antibiotics, blood pressure, leukaemia, diabetes etc., the Tribunal finds no evidence was produced for the term of the Qualification Period in order for an assessment to be made.
There was no evidence to indicate any of the conditions in the above paragraph were fully diagnosed, treated and stabilised, and therefore for that reason, no points were generated under the Impairment Tables.
Whether the Applicant has a continuing inability to work (CITW)
The Tribunal finds that the Applicant has 5 impairment points and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.
For the sake of completeness, had the Tribunal found that the Applicant satisfied paragraph 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy paragraph 94(1)(c) of the Act: pursuant to subsection 94(3C) of the Act, the Applicant did not actively participant in a program of support.
DECISION
For the reasons above the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 51 (fifty one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

........................................................................
Associate
Dated: 31 May 2018

Date of hearing: 23/03/2018

Applicant: In person

Representative for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 1507

31 May 2018

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	23/03/2018
Applicant:	In person
Representative for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers