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

QMJL and Secretary, Department of Social Services (Social services second review) [2020] AATA 1841 (18 June 2020)
Division: GENERAL DIVISION
File Number: 2019/3996
Re: QMJL
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:18 June 2020
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 4 September 2018.
.....[sgd]...................................................................
Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – several conditions including gastritis and anxiety with agoraphobia and depression – whether fully diagnosed, treated and stabilised – qualification period – medical appointments after qualification period – self-reporting – JCA report – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)
Cases
Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78
Eid and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Muir and Department of Employment and Workplace Relations [2005] AATA 902
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Uebergang and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
18 June 2020
BACKGROUND

The Applicant, who has been anonymised, is aged 54 and she lives at home with her adult daughter. QMJL, the Applicant, applied for the Disability Support Pension (“DSP”) on 4 September 2018.
Her application was rejected by a decision made by Centrelink on 20 December 2018.
The Applicant then sought internal review of that decision, but it was affirmed by an Authorised Review Officer on 7 March 2019.
Then the Applicant sought review of the decision by the Social Services and Child Support Division of this Tribunal (“Tier 1”), but on 14 June 2019 the decision was affirmed.
The Applicant now seeks review of the decision by this Division of the Tribunal.
HEARING
A hearing in this matter was conducted on 24 January 2020. The Applicant was represented by her daughter (Ms L) and the Respondent was represented by Mr S Reeves, lawyer, from the Australian Government Solicitor.
The Applicant gave sworn evidence as did her daughter and Mr Reeves asked questions in cross examination of both.
Dr Raja Paul, general practitioner, gave affirmed evidence by telephone on behalf of the Applicant and was cross examined by Mr Reeves.
A report by Dr Paul dated 3 January 2020 together with two Witness Statements – one by the Applicant and another by her daughter (both dated 14 January 2020) – were also received into evidence.
Further, the Tribunal had before it the T-documents in the matter together with Supplementary T-documents and they were both received into evidence. The Tribunal was also provided with Statements of Facts, Issues and Contentions by both parties.
The Tribunal reserved its Decision at the close of the hearing but allowed the parties to lodge closing submissions. Closing submissions were received from both parties—the Applicant’s dated 6 February 2020 and the Respondent’s dated 7 February 2020.
LEGISLATION
DSP is payable under the Social Security Act 1991 (Cth) (“Act”) in accordance with s 94(1) which relevantly provides:
(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;
The Impairment Tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Tables”). A points impairment rating under the Tables is arrived at by assigning points according to the appropriate table for the condition concerned. The points rating is function based rather than diagnosis based (see subsection 5(2)(b) of the Tables).
Before a points impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that a condition must be permanent (see subsection 6(3)(a) of the Tables). In order for a condition to be permanent, it must be fully diagnosed, treated and stabilised (see subsection 6(4) of the Tables). Another qualifying criterion is that a condition must be corroborated by evidence (see subsection 6(5)(a) of the Tables).
ISSUES
The Applicant gave evidence of the various medical conditions she suffers from, which include: endometriosis; blepharitis/posterior vitreous detachment (eye anomaly); gastritis/functional dyspepsia; and panic disorder with agoraphobia/generalised anxiety disorder with comorbid dysthymia.
It was not in dispute before Tier 1 or before this Tribunal that the Applicant suffers from these conditions. I am satisfied on the evidence that she does. There is no issue therefore that she satisfies s 94(1)(a) of the Act.
During the course of the hearing before me it became quite clear, in any event, that the real issue in the matter is whether the Applicant satisfies s 94(1)(b) of the Act – that is, whether she qualifies for an impairment rating of 20 points under the Tables. And then, if I find she does, whether she also satisfies s 94(1)(c) of the Act.
To be satisfied that the Applicant meets the requirements of s 94(1)(b) I must be satisfied that her conditions, or any of them, are permanent. In turn, this requires me to be satisfied that her conditions, or any of them, are fully diagnosed, treated and stabilised and that her conditions, or any of them, are corroborated.
These are all matters I must consider as at the date of her application or within 13 weeks thereafter – that is, from 4 September 2018 until 4 December 2018. This is called the “qualification period”.
Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.
Considering the evidence before me, I must decide what is the correct or preferable decision as regards all the Applicant’s conditions.
ANALYSIS AND FINDINGS
(1) Section 94(1)(a)
I am quite satisfied, as I have indicated, that I should accept the evidence of the Applicant as truthful in the history she gave of her various conditions. I note that the Respondent does not dispute that the Applicant has impairments consistent with s 94(1)(a) of the Act.
I am satisfied also that I should accept as truthful the evidence which was given by the Applicant’s daughter and by Dr Paul.
(2) Section 94(1)(b)
I am satisfied I may proceed to make findings in respect of each of the Applicant’s conditions mentioned above during the qualification period.
(a) Endometriosis
Tier 1 of this Tribunal accepted that the Applicant has the condition of endometriosis but was unable to conclude there was evidence that this condition was fully diagnosed, treated and stabilised in the qualification period. Tier 1 noted her evidence that the onset of her condition occurred when she was about 18 years of age and that it was thus a long-standing condition but that, even so, her other conditions cause her more difficulties.
I am not in doubt that the Applicant’s condition is a long-standing one (and that she has had surgery for it) even though a report of Dr Paul dated 27 August 2018 (shortly before the qualification period) indicates a date of onset of 2 June 2016. Dr Paul’s evidence was that she had not initially been the practitioner who dealt with the condition but that another medical practice had done so. She confirmed this in oral evidence.
The mere fact that the condition is one which is long-standing does not mean it cannot be a condition for the purposes of the qualification period.
I accept the evidence that the condition has been very painful for a long time. At the same time, however, the evidence is clearly to the effect that the condition is not one that has bothered the Applicant as much as her other conditions.
In the circumstances I find that the Applicant does suffer from the condition and that she was doing so during the qualification period. I am satisfied that her condition was permanent during that time in that it was fully diagnosed, treated and stabilised
However, I am unable to make a finding on the evidence that the condition has had a functional impact on the Applicant, although I acknowledge her position that the pain over time has been quite disabling.
As I indicated above (see para 13) the Tables are function based rather than diagnosis based and I was unable on the evidence to make a finding that her condition, as opposed to any other of her conditions, impaired her functioning in a way which could lead me to assign a points rating.
(b) Blepharitis/posterior vitreous detachment (eye anomaly)
Medical notes of Dr Paul dated 29 August 2018 refer to the Applicant as still having pain and intermittent blurring of vision. Earlier notes of Dr Paul dated 7 August 2018, record her concern about the blurring of vision. A letter dated 1 September 2018 from Dr D C Hettiarachchi, psychiatrist, records the Applicant as having recurrent eye symptoms with irritation and blurred vision. This letter makes mention of a diagnosis given at the Eye & Ear Hospital of blepharitis and posterior vitreous detachment.
A further letter dated 30 October 2019 from Dr Paul refers to the Applicant having been assessed and diagnosed by Dr Nima Pakrou from Vision Eye Institute with severe blurring bilaterally with marked eyelid inflammation diagnosed as blepharitis. The letter continues that the Applicant also has optic nerve drusen which gives her floaters and can also cause visual disturbances. In the letter Dr Paul states that the condition is not sight-threatening but can be quite symptomatic and disruptive. She further states that the Applicant has been treated to the fullest but that this is a permanent condition resulting in functional impairment involving visual function.
The report from Dr Pakrou is dated 24 July 2018 and confirms the contents of the October 2019 letter from Dr Paul, stating that the Applicant has quite marked blepharitis which will cause burning, discomfort and intermittent blur.
In her Witness Statement, confirmed by her as true, the Applicant says that during the qualification period she had difficulty seeing things close up when wearing glasses but also difficulties with distances. She refers to her difficulties reading print items and road signs and mentions she was using eye drops and taking pain medication. She states that she experienced a number of symptoms including watering of eyes, difficulty opening eyes, difficulty moving or coordinating eyes, light sensitivity, pain, itchiness, severe blurring, visual disturbances and light flashes. For many of these symptoms she had emergency hospital visits and visits to doctors.
In the Witness Statement of her daughter, confirmed by her as true, Ms L states that during the qualification period she assisted her mother with task completion, including reading and writing documents and other literature-based tasks. Ms L also mentions that her mother was constantly disrupted by her visual impairments.
In oral evidence the Applicant indicated that her condition (affecting both eyes but worse on the left) developed after waking up from anaesthesia after a gastroscopy in October 2017. She said, however, that her optic drusen developed much earlier than that.
Mr Reeves, in cross examination, had proposed to ask questions of Dr Paul about the Applicant’s eye condition but, out of consideration for Dr Paul (who was interrupted from her daily medical practice), elected not to do so. There was no challenge to Dr Paul’s evidence about the Applicant’s eye condition.
In cross examination the Applicant she said she was able to read her Witness Statement but only with glasses. However, she said “Even with the glasses it’s still blurry.” She said “I get easily fatigued and have a lot of pain in my eyes.” She said she has lots of discomfort and that she has had ocular pain for a long time. She admitted she still had a car licence and could see road signs, but with difficulty. She said although she could still drive – “I wouldn’t say safely.” Earlier in evidence she indicated that reading things in front of her is frustrating.
Permanency of the condition
Tier 1 of this Tribunal found that the Applicant’s eye condition was as stated and was fully diagnosed but was unable to conclude that it was fully treated and stabilised. This was because she had a follow-up medical appointment with her eye specialist outside the qualification period.
In itself, that may be enough to justify a finding that the Applicant’s eye condition was not within the qualification period fully treated and stabilised, but not necessarily. It could be possible to find, as events turn out, that even another medical appointment would make no difference. Or the medical appointment outside the qualification period may show a person’s condition truly was fully treated and stabilised within the period after all. In such circumstances, it seems absurd to say that merely by having an appointment outside the qualification period a person cannot possibly be fully treated and stabilised within that period.
In oral evidence, which I accept, Dr Paul, who was thoroughly conversant with the Tables, said without hesitation that the Applicant’s condition was fully treated and fully stabilised during the qualification period. If I accept that evidence, then it seems of no consequence that the Applicant had a medical appointment for her condition outside the qualification period.
The Respondent’s Statement of Facts Issues and Contentions indicates that it is open to me to find that the Applicant’s eye condition is fully treated and stabilised. This is in light of the consultation on 3 January 2019 when Dr Pakrou could not identify any further treatment options.
I am satisfied on the evidence that I may find, as I do, that during the qualification period the Applicant’s eye condition was fully diagnosed and fully treated and stabilized. Therefore, I find it was permanent.
Points rating
This means it is appropriate to consider assigning a points rating under the Tables. This was not undertaken by Tier 1 because of the conclusion it reached.
Table 12 of the Tables (Visual Function) is the appropriate table to consult and doing so I am satisfied that the Applicant is entitled to 10 points – that is she suffers moderate functional impairment. I do not consider that she has a severe impairment that warrants 20 impairment points.
I regard the descriptors in Table 12 relating to a 10-point rating as satisfied – in particular I refer to descriptor 1(d)(ii). It is possible also that the Applicant satisfies some of the criteria appropriate for a 20-point rating, but I would see her as having difficulty satisfying descriptors 1(b), (d) and (e). In any event, if in doubt I must opt for the lower points rating.
(c) Gastritis/functional dyspepsia
As regards gastritis/functional dyspepsia, in her Witness Statement the Applicant states that during the qualification period her gastritis condition caused her constant pain and discomfort. She says she suffered stomach bloating, cramps, vomiting, diarrhea, constipation, nausea, and bleeding and that she required frequent restroom breaks. Her symptoms, she says, were constant and she had to take medications as well as have a special diet. But she would still suffer abdominal pain and had to attend hospital for this condition or for this condition and others. Her concentration was constantly interrupted by her symptoms and personal care routine and she would constantly need to use the restroom facilities.
In her Witness Statement, the Applicant’s daughter says that in a social environment the Applicant would become extremely anxious and would need frequently to be able to access restroom facilities. During the qualification period she says the Applicant’s concentration would be constantly interrupted by, amongst other things, going on toilet breaks.
Materials in the T documents show a history of heliobacter pylori infection apparently eradicated in about 2016. They also show intestinal meta-plasia that is asymptomatic but requires monitoring and carries a risk of gastric carcinoma. A report of Dr N Arachchi, endoscopist, dated 28 January 2016 states that following gastroscopy the Applicant suffers mild erythematous gastritis involving the antrum. Another report from Dr Arachchi dated 2 February 2019 says that at initial consultation the Applicant had suffered from heliobacter pylori infection (which the Report says was very difficult to treat), and that although that had cleared up, she continued to suffer abdominal discomfort which was consistent with functional dyspepsia. The Report says that this is a somewhat difficult problem to treat with medications.
Permanency of the condition
With this condition, Tier 1 of the Tribunal found it to be fully diagnosed but not fully treated and stabilised. This is similar to its approach to her eye condition – it could not be found to be fully treated and stabilised because the Applicant was due for a specialist review in January 2019 – after the qualification period was over. This seems artificial given that, by the time of the decision in June 2019 the outcome of the planned specialist review was known. Tier 1 was looking at this matter a further six months on from the date of the appointment. I have indicated my view on this (see para 42).
Moreover, it was known by then what the condition was and that it was somewhat difficult to treat with medications. That, to my mind, does not mean the Applicant’s condition was not fully treated and stabilised. I consider that by the time of the Tier 1 decision, it was known that her condition during the qualification period was not only fully diagnosed but that it was also fully treated and stabilised.
The oral evidence of the Applicant was that she had several colonoscopies and gastroscopies for her condition. She said that at one point she was in excruciating pain all the time; she was vomiting frequently and could not tolerate food. She would visit Emergency facilities with her condition from time to time. During the qualification period conditions were horrendous – she said, “I was in chronic pain all the time.” She also suffered nausea. When asked what she could not do during the qualification period, she answered “Pretty much everything”, and said “I couldn’t function on a daily basis”. She agreed that during that time she felt like she had to be at the toilet all the time and was scared to go anywhere there might be no toilet.
Later, in response to questions from me, the Applicant’s daughter said that during the qualification period she would take her mother shopping to places nearby where there were toilets and that when driving in the car with her mother she would take for her sick bags, spare underwear, baby wipes, and other similar items. During the qualification period, in reference to the Tables (which she too seemed knowledgeable about), she said she thought her mother’s condition was extreme.
In oral evidence Dr Paul said that the Applicant’s condition during the qualification period was fully treated and fully stabilised. In cross examination she made mention of the possibility of gastric carcinoma – a risk factor which is due to the Applicant’s extensive intestinal metaplasia. When asked about the severity of the Applicant’s symptoms due to her condition, Dr Paul said it depends on the Applicant’s anxiety level (most of the time she is anxious) but that her condition varies from severe to extreme. She said the Applicant’s anxiety has a significant impact on the digestive tract as well. She said, “she gets bloated and has heart burn and things like that.” During the qualification period she said the Applicant’s anxiety was so difficult to control that it impacted her digestive tract as well. She indicated she considered that the Applicant’s condition would affect co-workers. This was so even though the Applicant was not then working. But had she been working, Dr Paul considered the Applicant would get panic attacks and that that would affect her digestive tract which would in turn affect her work and the comfort of co-workers. She said “I mean if…she goes to work and gets a panic attack and that affects the reflux or heart burn or things like that her co–workers would be affected by the [Applicant’s] distress or discomfort.”

In Closing Submissions, the Respondent contends I should take account of the Applicant’s specialist review with Dr Arachchi on 24 January 2019 as indicating that her condition was not fully treated and stabilised during the qualification period. Doing so, however, I note (as is correctly pointed out by the Respondent) that Dr Arachchi said there was nothing new at the time of the appointment since the symptoms are much the same. I should indicate, I am assuming the appointment with Dr Arachchi was indeed made during the qualification period, and not after it, as seems to be the case.
This information was available at the time of the Tier 1 Tribunal decision and there is nothing in that advice of Dr Arachchi which would indicate I should find that the Applicant’s gastric condition was not fully treated and stabilised during the qualification period. It was open to Tier 1 to find differently. I have indicated my view above (see para 42).
A further point raised by the Respondent is the significant link said to exist between the Applicant’s gastric condition and her psychological condition. By this the Respondent seeks to draw my attention to the definition of “impairment” in the Tables (defined as a loss of functional capacity affecting a person’s ability to work that results from the person’s condition) and to the decision of McCabe DP in Pignat and Secretary, Department of Social Services [2017] AATA 2745 (Pignat) (in particular at [22]). The argument seems to be that because of the link with the psychological condition, the Applicant’s gastric condition cannot be considered as contributing separately to her impairment. There is also evidence of a link in Ms L’s evidence.
It is true that the evidence of Dr Paul did link the two. I would expect that to be so, in any event. While a psychological condition may manifest itself in physical symptoms, that does not mean of itself that some physical condition, such as gastritis/ functional dyspepsia, is due solely to a psychological state.
I consider on the evidence I am quite able to regard the Applicant’s gastric condition separately. In Pignat, McCabe DP was speaking of the case before him. There is nothing in the evidence before me to indicate that the Applicant’s gastric condition, to use his words, “did not make a real or operative contribution to the [Applicant’s] impairment”. I am satisfied that it did, to the degree required, in the way described in the evidence, in particular of the Applicant herself.
I therefore reject the submission that it is not the Applicant’s gastric condition which had operative effect and that it cannot be considered separately as contributing to her impairment.
The Respondent then refers to some suggested options for the Applicant given by Dr Hettiarachchi in a letter of 1 September 2018, during the qualification period. Thus, the Respondent argues that the Applicant’s gastric condition is not fully treated and stabilised on this basis.
I reject that analysis. Dr Hettiarachchi is a psychiatrist – not an endoscopist. I can accept that a psychiatrist, as a medical practitioner, can be expected to comment on physical symptoms as well as psychological conditions.
I do not see Dr Hettiarachchi’s comments as recommendations except in her capacity as a psychiatrist. Observations by her about the Applicant’s gastritis etc. would not be of a specialist kind within the skill-set of a psychiatrist, helpful though they may have been. Moreover, they are quite inconclusive. They would carry more weight if they were expressed by an endoscopist. But Dr Hettiarachchi is a psychiatrist, not an endoscopist.
I cannot see therefore that Dr Hettiarachchi’s observations mean the Applicant’s gastric condition was not fully treated and stabilized. To argue that anything said by Dr Hettiarachchi could lead to a significant functional improvement for the Applicant is speculation. It would need medical opinion in my view to support it, however no evidence is called by the Respondent to show how this might be true.
Similarly, there is no evidence to justify the contention that improvements in the Applicant’s stress levels and ability to deal with stress – matters addressed by Dr Hettiarachchi’s recommendations – could lead to a significant functional improvement for the Applicant, which again is speculative. It was open to the Respondent to call answering endoscopic evidence.
I therefore reject the Respondent’s submission that the Applicant’s gastric condition was not fully treated and stabilised on account of the observations of Dr Hettiarachchi.
Next the Respondent argues that the Applicant’s evidence and that of her daughter involve self-reporting and are not, therefore, corroborated as required by the Tables. It is argued I should treat their Witness Statements with caution considering they were made a year or more after the qualification period and that they are likely to be affected by developments subsequently. At the same time, the Respondent made clear no submission of dishonesty is being advanced.
I reject these arguments. I have no reason to say that the memories of the Applicant and her daughter are or were impaired or deficient in some way because of the time elapsed between the qualification period and their statements. Moreover, I cannot see where the Applicant and her daughter were directly challenged in evidence about their powers of recall. Furthermore, I regarded both the Applicant and her daughter as having excellent, and independent, recollections.
The Applicant’s evidence is corroborated by the evidence of her daughter. To an extent it is also corroborated by evidence found in the report of Dr Hettiarachchi. The Tables speak of corroboration as including information which may be given by medical practitioners. This does not limit it to medical practitioners only. In any event, I regard the Applicant’s evidence as having been corroborated not only by her daughter’s evidence but also by information in the report of Dr Hettiarachchi and in the evidence of Dr Paul.
The Respondent argues however that Ms L’s evidence cannot be taken to be corroborative considering the Guide to Social Security Law s 3.6.3.05. This relates to exclusion of evidence based on what another person does for an applicant. It says that impairment must be based on an applicant’s abilities and not on what the person chooses to do, or not to do, or what the person is accustomed to having another person do for them. There is a question in my mind as to whether this only applies to partners, going by the example it gives. But I cannot see how it can reasonably be said that the assistance given to the Applicant by her daughter was other than necessitous. If this evidence were ignored because of the Guide, I would be abdicating the Tribunal’s review role (see Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78).
Having rejected the Respondent’s arguments to the contrary, and being satisfied as required in any event, I find the Applicant’s condition was fully treated and stabilised during the qualification period. Being satisfied also that it was fully diagnosed, I find it was permanent.
Points rating
The appropriate table to consult in the Tables is Table 10 – Digestive and Reproduction Function. The clear evidence of Dr Paul is that the Applicant’s condition warrants 30 points for extreme functional impact. On the other hand, the earlier view of Dr Arachchi was that in 2016 the Applicant was suffering mild erythematous gastritis involving the antrum. To my mind this would warrant the lesser assignment of 20 points for severe functional impairment.
As I am in doubt as to which points rating to assign, I am directed by the Tables to assign the lower. I do so and I assign 20 points for severe functional impairment.
I am satisfied that the Applicant meets the criterion in 1(a) in the descriptors for the 20-point impairment rating. That is, I find, on the evidence, and on the balance of probabilities, that the Applicant’s attention and concentration on a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition. The Applicant’s evidence of the functional effects of her condition was not contradicted or seriously challenged. I take into account her evidence that during the qualification period she was constantly in pain and discomfort, her concentration was constantly interrupted by her condition, she would constantly run to the restroom and use the facilities, and she was in chronic pain all the time. I refer also to the evidence of her daughter to similar effect.
I am also satisfied that the Applicant meets the criterion in 1(c) in the descriptors for the 20-point rating. That is, I find, on the evidence, and on the balance of probabilities, that the Applicant’s condition may affect the comfort or attention of co-workers, specifically due to her constantly needing to use the restroom facilities and being obviously affected by a condition which others could see for themselves. I note further the evidence of Dr Paul that the Applicant’s co-workers would be affected by her distress or discomfort. The Applicant herself indicated that hypothetical co–workers would have been affected by her.
Consideration of the criterion in 1(c) is hypothetical because during the qualification period the Applicant was not working. This may be the point that the Respondent is arguing when submitting that potential discomfort is outside the intended meaning of the criterion. The Respondent has not elaborated on what the intended meaning of 1(c) is or produced any extrinsic materials I might consider. But it cannot be right, in my view, that the Tables apply only to those who are actually working. Many of the cases assigned points under the Tables are hypothetical by their nature. Moreover, it may be said of the Applicant’s condition that, if she was working, her condition would affect co–workers. Criterion 1(c) uses the word may and I am not persuaded that this does not include or allow for the hypothetical worker to be considered. In my view may means might, in certain circumstances. I note that Mr Reeves had no difficulty in asking questions of the Applicant (and Dr Paul), prefacing them by saying that the Respondent knew the Applicant was not working at the time.
(d) Panic disorder with agoraphobia/generalised anxiety disorder with comorbid dysthymia
As noted in the report of Dr Paul dated 3 January 2020, the diagnosis of the Applicant’s mental health condition as panic disorder with agoraphobia/generalised anxiety disorder with comorbid dysthymia was made by Dr Hettiarachchi and recorded in her report dated 1 September 2018.
Permanency of the condition
Tier 1 of this Tribunal accepted that the Applicant had a psychological disorder but found that her condition was not fully treated and stabilized. As a result, no impairment points were assigned to her under the Tables.
Tier 1 found this to be so despite a report of Dr Paul to Centrelink dated 20 August 2018 where Dr Paul says that the Applicant has a severe anxiety disorder (and has been having anxiety attacks) which is preventing her from going out and is debilitating and affecting her daily living. Dr Paul writes further that the diagnosis of generalised anxiety disorder is based on the Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnostic criteria. Given that Dr Hettiarachchi’s September report was available at the June 2019 hearing, I consider it was open to hold that the Applicant’s condition during the qualification period was fully treated and stabilised.
Dr Paul in her report of January 2020 describes the Applicant’s symptoms as “feeling on edge, restless, worrying all the time, easily triggered by situation[s] around her.” She says the Applicant has been having frequent panic attacks with chest tightness and shortness of breath. She says the Applicant also has symptoms of depression most of the time—feeling sad, emotional, teary and crying, mostly worrying about her health. Dr Paul also says in her report that the Applicant has been treated to the fullest.
The description given by Dr Paul in her report of the symptoms suffered by the Applicant are borne out by the evidence of the Applicant herself. In her Witness Statement she refers to herself as having extreme anxiety and depression. She says that during the qualification period her interpersonal relationships and social interactions were extremely limited. She says she had panic attacks and experienced fear of leaving the house. She says she would stay at home overpowered by my severe depression and physical conditions.
In oral evidence the Applicant said that during the qualification period anxiety attacks were very much a feature of her life. She said “I constantly had panic attacks about my health, about anxiety.” The symptoms included “chest tightening, felt dizzy and I’d be just very restless.”
In oral evidence Dr Paul said that during the qualification period the Applicant’s condition was fully diagnosed, fully treated and stabilised. She made reference in that regard to Dr Hettiarachchi.
In cross–examination Dr Paul agreed that the Applicant had not sought specialist help before the qualification period although before that time she had seen a Mr Joseph Mollica. Mr Mollica, I am informed by the Respondent, is a registered general psychologist. Dr Paul said that during that period the Applicant was very anxious. She referred to her inability to tolerate antidepressants due to her gastric condition.
In response to a question from me, Dr Paul said she regarded the Applicant’s condition as severe to extreme, adding that when she gets anxiety, she can hardly leave the house. Dr Paul said, “she can hardly do anything.” In answer to questions I asked of Ms L, I was told the Applicant would lie in bed most of the day almost daily or very regularly.
The Respondent contends that Tier 1 was correct in its decision and maintains that the Applicant’s condition was not fully treated and stabilised during the qualification period. It maintains this position in the closing submissions.
I reject the Respondent’s arguments. I consider I have very strong evidence given by Dr Paul that the Applicant’s psychological condition was fully treated and stabilised during that period. On this basis nothing said by way of recommendation by Dr Hettiarachchi makes any substantial difference. I still have the independent evidence of Dr Paul. In that regard I refer to her report of August 2018 during the qualification period and the evidence of the Applicant herself.
But even as regards the recommendations of Dr Hettiarachchi, they are, as I have noted, expressed inconclusively and do not detract from a finding I make otherwise about her report in September 2018 that there is a strong basis in it on which to find that the Applicant’s condition was fully treated and stabilised.
Moreover, it cannot be said that during the qualification period, Dr Hettiarachchi’s recommendations proved to have any definite results altering the state of the Applicant’s condition. I refer also to the Applicant’s stated inability to tolerate antidepressants.
I note that included in those recommendations was psychological intervention, but the Secretary acknowledges that Dr Hettiarachchi stated that engagement with the therapy would be problematic and response would be limited. I am invited by the Respondent to place significant weight on the report of Dr Hettiarachchi on the question of self-reporting. Indeed, I do give it significant weight generally, including on the utility of psychological intervention in light of the Secretary’s stated acknowledgement of the Applicant’s condition being fully treated and stabilised. I also consider and take into account the evidence of Dr Paul.
I have already disposed of the argument that I cannot separately assess the Applicant’s mental health condition and her gastric condition because of the evidence that the two are linked. I consider I am able to consider them separately.
I have also already disposed of the argument that the evidence of the Applicant’s daughter cannot be corroborative of the Applicant’s condition on the ground, in effect, that the two live together. I consider her daughter’s evidence is materially corroborative, but I rely also upon independent medical opinion.
Further, I have disposed of the argument that I should have hesitation in accepting the evidence of the Applicant and her daughter because their Witness Statements were made some time after the events they detail. I consider they have excellent recollections of events.
I conclude therefore that the Applicant’s mental health condition at the time of the qualification period was permanent as having been fully treated and stabilised. No argument of the Respondent persuades me I should conclude otherwise.
Points rating
The appropriate table to consult in the Tables is Table 5—Mental Health Function. Again, the clear evidence of Dr Paul is that the Applicant’s condition is severe to extreme. I accept this evidence but am directed to assign the lower points rating of 20 points for severe as I am in doubt as to which to assign.
I am satisfied that the Applicant has severe difficulties with most of the descriptors set out in (1) and had them during the qualification period.
As regards descriptor (1)(a) I am satisfied the Applicant has had severe difficulties with self-care and independent living. I refer to her evidence and to that of her daughter, in particular, to the help the Applicant needed to go shopping. As regards (1)(b) I am satisfied the Applicant has had severe difficulties with social/recreational activities and travel. The Applicant suffers from agoraphobia and I refer to Dr Paul’s evidence that she can hardly leave the house. The Applicant gave evidence that during the qualification period she had extremely limited interpersonal relationships and social interactions. As regards (1)(c) I am satisfied the Applicant has had severe difficulties with interpersonal relationships. This in a sense follows on from the last point but I refer also to the evidence of the Applicant and her daughter regarding home visits and lack of social outings.
As regards (1)(d) I am satisfied the Applicant has had severe difficulties with concentration and task completion. At least so far as concentration is concerned, I refer to the evidence of the Applicant (and Dr Paul) relating to her symptoms of depression concerning her worrying about her health. But simply as a matter of common sense, this would significantly detract from task completion. She speaks of herself as being overpowered by her depression (and physical conditions) which must have diverted her away from things to be done or must have delayed them being done. As regards (1)(e) I am satisfied the Applicant has had severe difficulties in behaviour, planning and decision-making. The Applicant’s evidence is in accord with the example given in the table as is the evidence of Dr Paul. I consider her behaviour, thoughts and conversation at relevant times have been significantly and frequently disturbed. I refer to the Applicant’s agoraphobia, to her often worrying over the state of her health, and to her inability to do hardly anything (Dr Paul’s expression) during an anxiety episode which must include thoughts and conversation.
In considering these matters I should indicate I am aware of the cautionary note to table 5 about a person’s self-awareness of their mental health impairment. I see no reason in the evidence given to me, or in the way in which it was given by the Applicant, to have any doubts whatever about her self-awareness. I found her impressive in this regard.
(3) Section 94(1)(c)
Bearing in mind the findings I have made in relation to the Applicant’s gastric condition and her mental health condition, and the reasons why I have made those findings, it is not possible to maintain that she has, or had during the qualification period, a continuing ability to work at all.

I am satisfied independently and on the evidence that this is so due to either or both such conditions.
As regards the Applicant’s gastric condition, I rely upon her evidence alone that during the qualification period she required frequent restroom breaks requiring her to constantly run to the rest room and use the facilities, that her symptoms would constantly interrupt her concentration, and that she could not function on a daily basis. There is evidence enough in these considerations on their own for me to find that the Applicant has had a continuing inability to work. If she was working, her co–workers would be affected by her distress and discomfort.
Any conclusion other than the one I have reached would be totally unrealistic even at the hypothetical level at which I must consider the question, but I rely also on the evidence of Dr Paul.
As regards the Applicant’s mental health condition, I refer to her evidence and to that of Dr Paul concerning her agoraphobia that the Applicant can hardly leave the house. Her anxiety is so debilitating that it prevents her from going out and affects her daily living. She could not work with co-workers successfully – if she could leave the house – because of her limited social interaction, and would not be a suitable presence in the workplace because of her overwhelming sense of depression. She would be tense and anxious which would not assist in workplace harmony. She would have severe difficulties concentrating on tasks at hand. This would severely affect her performance. She would not be very productive. Management or co–workers would be distracted by attending to her needs or helping her to cope each day. I also take into account the opinion expressed by Dr Hettiarachchi in her report on assessing the Applicant’s work capacity and I note the Respondent does not contend that she had manifestly no basis for her assessment.
The Respondent draws my attention to the Job Capacity Assessment Report (“JCA”) of 6 December 2018 which found that the Applicant had a baseline work capacity of 23-29 hours per week from 17 November 2018. I note that the opinion expressed in this Assessment is outside the qualification period.
I am unable to explain how this Assessment arrived at this conclusion. In my view it is plainly wrong. Nothing in the Assessment explains exactly how the figure of 23-29 hours per week, which seems simply quite arbitrary, was arrived at. The Assessment was prepared by an assessor (‘Monika’) who is a registered psychologist and the contributing assessor (‘Kylie’) who is an exercise physiologist. Neither is a medical practitioner. That could explain a great deal. This addresses the point made by Forgie DP in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [63] regarding the need for relevant expertise in the persons making a JCA report. I cannot see how a psychologist, or an exercise physiologist, has any specialist knowledge of complex gastric conditions, or for that matter of a complex psychiatric disorder. Not to mention the Applicant’s endometriosis or her eye condition.
I consider I should give the report little or no weight. The Respondent submits, in reliance upon the decision in Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 (“Muir”), that one should prefer a JCA report over contrary evidence. This decision was quoted with approval in Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642. However, I am not bound by either decision and I decline to apply them, assuming an occasion for their application has arisen, and in my view it has not. The decision in Muir in particular is cited for more than it stands for, which was a ruling in response to a specific objection taken in that case. It gives in many ways an unsatisfactory analysis.
To rely upon a report which reaches a conclusion quite the contrary of sound medical evidence in a case, in my view undermines the objective of the Tribunal in s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to provide a review which is just.
I am quite satisfied, by reason of the foregoing, that the Applicant satisfies s 94(1)(c) of the Act – she has, and has had at all material times including during the qualification period, a continuing inability to work.
CONCLUSION
For the reasons I have given I am satisfied on the balance of probabilities that the Applicant meets the criteria in s 94(1) and otherwise satisfies all statutory requirements for DSP.
It follows that the decision under review must be set aside and a decision substituted reflecting these reasons.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

………[sgd]…………………………………………
Associate
Dated: 18 June 2020

Date of hearing:

24 January 2020

Advocate for the Applicant:

Ms L (the applicant’s daughter)

Advocate for the Respondent:

Solicitors for the Respondent:

Mr S Reeves

Australian Government Solicitor

[2020] AATA 1841

18 June 2020

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