QZXS and Secretary, Department of Social Services (Social services second review) - [2021] AATA 3624

QZXS and Secretary, Department of Social Services (Social services second review) [2021] AATA 3624 (7 October 2021)
Division:GENERAL DIVISION
File Number:2016/5690
Re:QZXS
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:7 October 2021
Place:Perth

The Authorised Review Officer’s decision dated 11 March 2016, as affirmed by the AAT1 on 8 September 2016, is affirmed.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – whether the Applicant suffered from permanent impairments that attracted 20 points or more under the Impairment Tables –Impairment Table 1 – Functions requiring Physical Exertion and Stamina – Impairment Table 7 – Brain Function – Impairment Table 5 – Mental Health Function – Impairment Table 13 – Continence Function – fibromyalgia/ chronic fatigue syndrome – irritable bowel syndrome (IBS) – mental health condition described differently by various medical practitioners including as Major Depressive Disorder, depression and anxiety and post-traumatic stress disorder with depression and anxiety – tinnitus – conduct of the Applicant – Applicant threatened to make complaints to various ministers and oversight bodies when she was not given what she wanted by the Tribunal – Applicant made serious allegations of misleading and improper conduct by the Respondent and Respondent’s legal representatives which Tribunal found to be without foundation – protracted application filed in the General Division of the Tribunal approximately five years ago – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33(1AB), 40(1)(b), 42A(2), 42A(5), 63(1)
Social Security Act 1991 (Cth) ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s 7
Social Security (Administration) Act 1999 (Cth) ss 179(2)(a), sch 2, pt 2, s 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(3), 6(4), 6(5), 6(6), 10, 11
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
QZXS and Secretary, Department of Social Services [2021] AATA 2094
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
7 October 2021
BACKGROUND

The Applicant is a 55-year-old woman who seeks review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of this Tribunal.
Prior to September 2015, the Applicant was employed by a Commonwealth Government Department. An invalidity retirement certificate was issued on 26 August 2015 by the Applicant’s Commonwealth Superannuation Fund, which stated that her invalidity retirement had been approved. No medical conditions were stated (T9/81).
The Applicant was issued a notice of termination from her employment with the Commonwealth Government Department on 1 September 2015, which stated that the Applicant’s employment was terminated “on the grounds of inability to perform duties because of physical or mental incapacity” (T10/82–83).
On 14 September 2015, the Applicant lodged a claim for a disability support pension (DSP) (T11/84–113). In her claim, she listed her medical conditions as “fibromyalgia, chronic fatigue, IBS, Depession, Anxiety, PTSD” (without alteration) (T11/97).
The Applicant was referred for a job capacity assessment (JCA). The assessor, an accredited exercise physiologist, undertook an assessment of the Applicant on

18 November 2015 and produced a JCA report with a submitted date of 24 November 2015 (2015 JCA Report) (T12/114–119).
The assessor found that the Applicant’s fibromyalgia/chronic fatigue syndrome was fully diagnosed, treated and stabilised and assigned an impairment rating of five points under “Impairment Table 1 – Functions requiring Physical Exertion and Stamina” of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) (T12/115 and 117).
The assessor also found that the Applicant’s irritable bowel syndrome (IBS) and her “depression and anxiety” were not, fully diagnosed, treated, and stabilised (T12/115–117) and consequently those conditions were not assigned an impairment rating.
Further, in the 2015 JCA Report the assessor stated the opinion that the Applicant had a baseline work capacity of eight–14 hours per week. The assessor further opined that, with intervention, the Applicant’s work capacity could increase to 15–22 hours per week of light semi-skilled work (T12/117–118).
The 2015 JCA Report also identified interventions for the Applicant to assist her. These were listed in the 2015 JCA Report as psychiatric services/treatment; functional capacity evaluation/assessment; and disability management education/counselling (T12/118).
However, the Applicant’s claim for a DSP was rejected by the Department of Human Services, now Services Australia (Centrelink), on 24 November 2015 because her conditions did not have an impairment rating of 20 points or more under the Impairment Tables (Original Decision). The letter offered the Applicant support services to improve her work capacity and to assist her to find work (T13/120–121).
The Applicant sought an internal review of the Original Decision and provided a Centrelink Medical Certificate from a general practitioner, Dr Stewart, dated 26 November 2015 (T14/122).
Consequently, the Applicant was referred for another JCA, which was undertaken on

2 March 2016 (T15/123). In a report with a submitted date of 9 March 2016 (2016 JCA Report), the assessor, also an accredited exercise physiologist, found that:
(a)the Applicant’s “post traumatic stress disorder associated with depression and anxiety” was not fully diagnosed, treated and stabilised (T15/124–125);
(b)the Applicant’s fibromyalgia/chronic fatigue syndrome was fully diagnosed, treated and stabilised and was assigned a rating of 10 points under “Impairment Table 1 – Functions requiring Physical Exertion and Stamina”;
(c)a rating of five points was assigned under “Impairment Table 7 – Brain Function” due to the Applicant’s difficulty with concentration and memory, which were symptoms of her fibromyalgia/chronic fatigue syndrome; and
(d)the Applicant’s IBS (which the assessor included as a symptom of her fibromyalgia/chronic fatigue syndrome) was fully diagnosed, treated and stabilised and was assigned a rating of five points under “Impairment Table 13 – Continence Function”.
The assessor’s opinion was that the Applicant had a baseline work capacity of zero–seven hours per week. Further, the assessor opined that, with intervention and ongoing support, the Applicant’s work capacity could increase to more than eight hours per week of light semi-skilled work, but was unlikely to reach more than 15 hours per week in the open labour market (T15/128).
The assessor also noted in the 2016 JCA Report that the Applicant had not participated in a program of support for more than 18 months within the previous three years, and therefore that the Applicant had not met the program of support requirement to qualify for a DSP (T15/127).
On 11 March 2016, an authorised review officer (ARO) of Centrelink affirmed the Original Decision (T16/130–134) (ARO Decision). The ARO made findings commensurate to those in the 2016 JCA report.
Specifically, the ARO found that the Applicant’s fibromyalgia/chronic fatigue syndrome was fully diagnosed, treated and stabilised. The ARO assigned the same impairment ratings as the assessor of the 2016 JCA Report for functions involving physical exertion and stamina, brain function and continence function, which added up to 20 points. The ARO found that the Applicant’s post-traumatic stress disorder, depression and anxiety were not permanent (that is, not fully diagnosed, treated, and stabilised), and therefore could not be assigned an impairment rating.
The ARO was satisfied that the Applicant met the requirement of having a continuing inability to work 15 hours or more a week. The ARO noted that because the Applicant’s conditions could not be assigned 20 points under a single Impairment Table, she was required to have actively participated in a program of support. However, departmental records indicated that the Applicant had not done so. The ARO therefore concluded that the Applicant did not have a continuing inability to work, as required under s 94(1)(c) of the Social Security Act 1991 (Cth) (the Act) (T16/133–134).
The Applicant provided a further Centrelink Medical Certificate from her general practitioner, Dr Chauhan, dated 23 May 2016 (T17/143).
By a telephone application on 3 June 2016, the Applicant requested a review of the ARO Decision in the AAT1 (T2/6, para [4]).
Prior to the AAT1 hearing, on 8 September 2016, the Applicant made written submissions and provided evidence to the AAT1 in support of her application (T19/145–191).
However, on 8 September 2016, the AAT1 affirmed the ARO Decision, which was posted to the Applicant on 20 September 2016 (T2/5–12).
On 21 October 2016, the Applicant applied to the AAT2 for a review of the AAT1 decision dated 8 September 2016 (T1/1–4).
The ARO Decision of 11 March 2016, as affirmed by the AAT1 on 8 September 2016, is the Reviewable Decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth) (Administration Act)).
ISSUES
The overall issue for determination is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP in s 94(1) of the Act including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment (or impairments) (s 94(1)(a) of the Act);
(b)if so, whether the impairment(s) were fully diagnosed, treated, and stabilised and attracted a rating of 20 points or more under the relevant table (or tables) of the Impairment Tables (s 94(1)(b) of the Act); and
(c)whether the Applicant had “a continuing inability to work” (s 94(1)(c) of the Act).
THE HEARING, THE EVIDENCE AND THE CONDUCT OF THE APPLICANT
As is evident from the “background” section above, it has taken approximately five years from the filing of this application in the AAT2 to progress to a final hearing.
I explained the lengthy procedural history of this application in some detail in QZXS and Secretary, Department of Social Services [2021] AATA 2094 (QZXS No 1). In QZXS No 1, I refused the Applicant’s request that I recuse myself from hearing the application. The relevant paragraphs setting out the procedural history of the application included:
PROCEDURAL HISTORY OF TIER 2 APPLICATION
5.It is fair to say that the application in this matter has been protracted. Since the lodgement of the Applicant’s Tier 2 appeal on 21 October 2016, very little progress has been made towards a resolution of the application. By way of summary, there were four alternative dispute resolution (ADR) conferences held by telephone in 2017 and 2018, four telephone directions hearings (TDH) that proceeded in 2020 and 2021, and hearings scheduled for 26 November 2019 and 12 February 2020 that were vacated because the Applicant was not ready to proceed. Further hearings scheduled for 5 May 2020 and 28 October 2020 were vacated due to restrictions on in-person hearings caused by the COVID-19 pandemic.
6. More recently, on 29 March 2021 I issued directions for the filing of updated statements of facts, issues and contentions and any further evidence by 22 April 2021 for the Respondent and 20 May 2021 for the Applicant. I also directed that the matter be listed for a one-day in person hearing on 28 June 2021.
7. On 27 April 2021, I directed that the time for the Respondent and Applicant to file these submissions and further evidence be extended to 30 April 2021 and 28 May 2021 respectively.
8. On 18 May 2021, I again made directions to extend the time for the Applicant to file her statement of facts, issues and contentions and any further evidence upon which she proposed to rely at the hearing from 28 May 2021 to 18 June 2021.
TDH of Monday 23 June 2021
9. Further, on 23 June 2021 I presided over a TDH to ensure that the matter was ready to proceed to a hearing on Monday 28 June 2021 (June TDH). Prior to this TDH, the Applicant emailed the Tribunal on Friday 18 June 2021 at 3.15 pm stating, amongst other things, that she was “still collating the medical evidence” and that she needed additional time to prepare her statement of facts, issues and contentions. The email was accompanied by a medical certificate dated 17 June 2021 from the Applicant’s general practitioner requesting an extension of time for the Applicant to provide “documentation” due by 18 June 2021 (being a statement of facts, issues and contentions and any further evidence). The Applicant also advised in her email that she had been seeking legal advice and had been in contact with a private solicitor to represent her at the hearing. This was not the first time that the Applicant had indicated that she would be seeking legal advice or representation. She had indicated that she would do so on several occasions including at TDHs on 25 March 2020 and on 5 May 2020. The Tribunal previously arranged a telephone appointment with the Legal Aid Advice service for the Applicant on 12 April 2021 so that she could obtain some legal advice.
10. At the June TDH, I discussed with the Applicant whether she would like to be relieved from the obligation to provide a statement of facts, issues and contentions, given that her difficulty in completing one was stated by her general practitioner in the medical certificate dated 17 June 2021. I noted that the Tribunal had before it the Applicant’s application for review which stated in detail her grounds of appeal. The Tribunal also had before it a 23 page document titled “interim list of medical evidence” which the Applicant had emailed to the Tribunal on the morning of the June TDH at 11.55 am, which indicated the medical reports and other evidence the Applicant thought relevant to apply to the relevant impairment tables. It was explained to the Applicant that the Tribunal was experienced in these types of DSP applications and in assisting unrepresented applicants and so the Tribunal was familiar with the law and the issues from reviewing the Applicant’s application. The Applicant had also been able to make lengthy and articulate submissions at the June TDH (and previous TDHs), including that the Respondent had not properly considered all the evidence that she thought relevant and that the wrong law had been applied to assess the program of support requirement. The Tribunal therefore suggested that the Applicant could make these and further oral and written submissions on the day of the hearing to supplement the grounds of appeal stated in her initial application, and that the Tribunal would also accept any written submissions from the Applicant on the day of the hearing on 28 June 2021.
11. The Applicant stated, however, that she was not only seeking an extension to lodge her statement of facts, issues and contentions but that she was seeking an adjournment of the hearing. She said that she was “not available” for the hearing on Monday 28 June 2021 and said that the medical certificate from her general practitioner dated 17 June 2021 was “all encompassing” (transcript/13) and covered the adjournment. Later in the June TDH, I informed the Applicant that the medical certificate did not contemplate or cover the hearing dated 28 June 2021 and only referred to the documents due on 18 June 2021. The Applicant disagreed with me and said she would obtain another medical certificate.
12. The Applicant had also made a request for “reasonable adjustments” to be given to her in her email to the Tribunal dated 23 June 2021 at 11.55 am. Specifically, she stated that “I require reasonable adjustment as per my rights under the Disability Discrimination Act 1992, and have provided a medical certificate in support of this” (referring to the medical certificate dated 17 June 2021). Unfortunately, as previously mentioned, the medical certificate only contemplated an extension of the 18 June 2021 deadline to provide a statement of facts, issues and contentions and any further evidence to the Tribunal. It does not specify any reasonable adjustment to be made for the Applicant.
13. In the June TDH, I asked the Applicant about the reasonable adjustments she was seeking but she was evasive in her answers and reiterated that she was entitled to “reasonable adjustments”. When I asked the Applicant if she was simply seeking an adjournment by way of a reasonable adjustment, the Applicant responded, “Yes, I am” (for the entire exchange regarding reasonable adjustments, see transcript/8–9).
14. I explained to the Applicant at the June TDH that I was endeavouring to balance her needs with the Tribunal’s objectives as expressed in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Noting the length of time taken to progress the matter, and mindful of the Tribunal’s obligations in s 2A of the AAT Act to provide a mechanism of review that is accessible, fair, just, economical, informal and quick, proportionate to the complexity of the matter and which promotes public trust and confidence in the decision making of the Tribunal, I suggested to the Applicant that the hearing could proceed on Monday 28 June 2021 with adjustments made to accommodate her concerns and medical conditions. These included that:
(a)the hearing on 28 June 2021 proceed by video conference so that the hearing would be more informal, and the Applicant would not have the stress of attending the Tribunal in person. I pointed out that at previous TDHs we had proceeded on the basis that the hearing should be in person because of the volume of documents before the Tribunal, but that however, the Respondent’s legal representative had collated and paginated all of the Applicant’s documents so we could be in different locations and be easily able to access the same documents;
(b) the entire day be set aside for the hearing. I advised the Applicant that although a DSP hearing would normally take approximately two hours, I had set aside the entire day for the hearing and would be happy to give the Applicant regular breaks when she thought it necessary; and
(c) I invited the Applicant to have a support person with her;
(d) the hearing start at 11:30 am, as the Applicant stated that she would have difficulty with a 10 am start due to her medical conditions and 11:30 am was the earliest time the Applicant said she would be able to commence; and
(e) as per the suggestion from the Respondent’s legal representative in her email dated 22 June 2021 at 3.50 pm, the Applicant be afforded some additional time (for example two weeks) to provide further written closing submissions with the Respondent being given a right of reply.
15. These adjustments were unacceptable to the Applicant and she would not comment on them (transcript/13–14). The Applicant requested that I should recuse myself from hearing her application because she was concerned about my “impartiality” and my “perceived bias”. She stated that I was “trying to manipulate her” into proceeding with the hearing on Monday, 28 June 2021.
16. I should note at this point that the Respondent opposed the adjournment request. The Respondent’s position was that the hearing should proceed on Monday 28 June 2021 in person.
17. As the TDH had already taken approximately one hour, I stood the matter down for a 10-minute break to hear the recusal application when we recommenced.
18. When we recommenced, the Applicant indicated that she was unhappy with three of the last TDHs, that she had “lost confidence” in me and that I had “manipulated” her, was “attempting to manipulate” her, and “a number of times throughout this direction hearing you've tried to manipulate me again and again” (transcript/10, 14, 16, 17, 20). When I asked the Applicant to expand on her “manipulation” submission she declined to do so, stating that she had “reached the end of [her] ability to concentrate” (transcript/17). The Applicant referred me to a complaint that she had made through the Tribunal’s complaints system, which included a previous recusal request with the reasons being set out in the complaint. I did not have a copy of this complaint or any response but invited the Applicant to send through any recusal request to me in writing so that I could properly consider it.
19. The Respondent’s representative indicated that she did not think there was any basis for recusal. However, as the Applicant did not fully articulate her reasons for recusal, I was unable to determine the recusal application. I directed that the hearing would proceed at 11.30 am on Monday 28 June by videoconference and that the recusal application would be heard first.

I further explained the events of the morning of 28 June 2021 in the following paragraphs from my reasons in QZXS No 1:
20. By way of further background, on the morning of the hearing at 9.07 am on 28 June 2021, the Applicant emailed a further request for an adjournment to the Tribunal, attaching a medical certificate dated 27 June 2021. The medical certificate stated that she was “unfit to attend work/court for 2 days from 27/6/21 to 28/6/21”, and then stated, “looking at handing case Tang Lawyers/+ Welfare Rights & Advocacy group”. Notwithstanding the inadequacy of this medical certificate, which did not address the Applicant’s inability to participate in the hearing, the Tribunal relisted the videoconference hearing for 29 June 2021 at 11.30 am.
21. However, at 9.26 am on the morning of 29 June 2021, the Tribunal received an email from the Applicant in which she stated that she was unfit to attend the hearing scheduled for today on medical grounds and that she had an appointment the following day to obtain a medical certificate. Due to the absence of a valid medical certificate prior to the hearing, I advised the parties that the hearing would go ahead, commencing with the recusal application. I further suggested that, subject to any submissions, the Tribunal could provide the Applicant with a copy of the transcript and give the Applicant two weeks from when she received it to make submissions, with a corresponding right of reply for the Respondent. I note that we have not received any response from the applicant as at the commencement of this hearing this morning.
At the rescheduled hearing on the morning of 29 June 2021, which proceeded by videoconference, the Respondent sought (transcript/23):
(a)dismissal of the application under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis of the Applicant failing to appear at the hearing;
(b)dismissal pursuant to s 42A(5) on the basis of the Applicant failing to proceed with the application; or
(c)for the hearing to proceed in the absence of the Applicant pursuant to s 40(1)(b) of the AAT Act, noting that she was provided with reasonable and adequate notice of the hearing.
I decided to proceed with the hearing on 29 June 2021 in the absence of the Applicant.
The following documents were admitted into evidence at the hearing:
(a)various emails from the Applicant (Exhibit A1) comprising emails dated:
(i)18 June 2021 at 3.15 pm, attaching a letter from Hillarys Medical Centre dated 17 June 2021 and a copy of a letter from the Welfare Rights and Advocacy Service to the Applicant dated 9 June 2020;
(ii)18 June 2021 at 5.15 pm;
(iii)23 June 2021 at 11.54 am attaching a document titled, “Interim list of medical evidence” prepared by the Applicant, comprising 23 pages;
(iv)23 June 2021 at 5.07 pm titled “Application for recusal; and pending medical certificate for hearing on Monday 28 June 2021”, attaching a two page document titled, “Via AAT complaints online: 30 March 2021” and a copy of a letter dated 15 June 2021 from an executive officer of the Principal Registry of the Tribunal;
(v)23 June 2021 at 5.36 pm, being the same as the 5.07 pm email, with one additional paragraph in bold at the end of the email; and
(vi)24 June 2021 at 1.41 pm.
(b)email from the Applicant dated 28 June 2021 at 9.07 am attaching a medical certificate from Hillarys Medical Centre dated 27 June 2021 (Exhibit A2);
(c)four (4) volumes of documents filed by the Applicant comprising 1460 pages in total (these volumes were paginated by the Respondent) (Exhibit A3);
(d)email from the Applicant dated 29 June 2021 at 9:26 am attaching a transcript of AAT1 proceedings dated 8 September 2016 (Exhibit A4);
(e)s 37 T-documents, labelled T1 toT21 comprising pages 1 to210 (Exhibit R1);
(f)email from the Respondent’s legal representative dated 22 June 2021 at 3.50 pm objecting to the Applicant’s request for an extension to file her Statement of Facts, Issues and Contentions (SFIC) (Exhibit R2);
(g)s 37 documents, labelled ST22 to ST24, comprising pages 210 to 260 (Exhibit R3);
(h)s 38AA documents, labelled ST1 to ST6, comprising pages 1 to 22 (Exhibit R4);
(i)program of support calculation from 15 September 2012 to 14 September 2015 showing no participation in a program of support (attachment G to the Respondent's SFIC dated 4 December 2019) (Exhibit R5); and
(j)letter on behalf of the Tribunal’s District Registrar dated 31 March 2021 confirming a Legal Aid telephone advice appointment for the Applicant on 12 April 2021 (Exhibit T1).
Given that the Applicant did not attend the hearing, the Respondent’s legal representative suggested that the Applicant be given a period of two weeks after the hearing to make written submissions, and for the Respondent to be afforded the opportunity to file reply submissions. Accordingly, I made the following direction on 29 June 2021:
1.A copy of the transcript of the hearing at 11.30am on 29 June 2021 be provided to the parties as soon as it becomes available to the Tribunal.
2.On or before 21 July 2021, the Applicant has leave to file written submissions with the Tribunal, and to provide a copy to the Respondent, regarding the issue of whether the Applicant met the eligibility criteria for a disability support pension under s 94(1) of the Social Security Act 1991 (Cth) during the Qualification Period (14 September 2015 to 14 December 2015). This may include submissions on the following issues:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments during the Qualification Period;
(b)whether any impairments were permanent (that is, fully diagnosed, treated and stabilised) during the Qualification Period;
(c)whether any permanent conditions attracted an impairment rating of at least 20 points under the relevant social security impairment tables; and
(d)whether the Applicant had a “continuing inability to work” (including any submissions on the program of support requirement and applicable law).
3.On or before 4 August 2021, the Respondent has leave to file any submissions in reply, and to provide a copy to the Applicant, or is to provide written confirmation that they do not intend to do so.
On 21 July 2021, the Applicant requested an extension to file submissions from 21 July 2021 to 25 July 2021. Consequently, on 22 July 2021, I varied the direction of 29 June 2021 to extend the date the Applicant had leave to file written submissions to 26 July 2021, with an extension for the same amount of time given to the Respondent, being to 9 August 2021.
On 26 July 2021, received by the Tribunal Registry at 6.49 pm, the Applicant filed 43 pages of typed submissions, and a further 51-page document titled, “list of medical evidence” in which the Applicant undertook a review of the medical evidence in the four volumes of materials that comprise Exhibit A3. In the Applicant’s covering email she stated that the list of medical evidence “requires a minor update” and that she wanted to proofread the submissions again. She further stated that:
I have not as yet provided comments to the Respondent’s issues in the substantive hearing of 29 June 2021 as the attached submission should address these issues, however, there were some factual inaccuracies which I would like to resolve for clarity and correctness of information.
In an email dated 2 August 2021, received by the Tribunal Registry at 1.06 pm, the Applicant made approximately three pages of further submissions. At the commencement of her email the Applicant stated that:
I have reviewed the Hearing Transcript of the 29 June 2021 and wish to provide further comment, corrections and clarifications. In order to manage the symptoms of my medical conditions, I will provide these comments in increments on specific points over the next few days.
At the end of this email the Applicant stated that, “I will have a health break now and send through further comments, corrections and clarifications shortly”.
In an email dated 2 August 2021, received by the Tribunal Registry at 3.25 pm, the Respondent requested an extension to file submissions in reply from 9 August 2021 to

23 August 2021, due to the length of the Applicant’s submissions. The Respondent further noted that it appeared that “the Applicant now intends to lodge further submissions and/or further evidence in respect of which she has not been granted leave”. The Respondent further stated that, “[g]iven the circumstances of this matter, its long history and the numerous opportunities afforded to the Applicant to lodge material and submission in support of her application, we are instructed to oppose leave being granted to the Applicant”.
In an email dated 3 August 2021, received by the Tribunal Registry at 10.33 am, the Applicant stated, “I believe that the correction and clarification of the Secretary’s Submission is imperative as there are a number of medical and factual inconsistencies”. The Applicant sought leave to make further submissions, specifically, “I would like to request the opportunity to respond to the Secretary’s Closing Submission with my own Closing Submission”.
I made a further direction on 4 August 2021, which gave the Applicant an extension of time to file any additional comments or updates to the submissions she filed on 26 July 2021, giving the Respondent a similar extension, but refusing leave for the Applicant to file further submissions. The Direction stated:
1.Direction 1 of the Direction made by the Tribunal on 22 July 2021 be varied by changing the date by which the Applicant has leave to file “additional comments or updates” on the submissions filed on 26 July 2021, and to provide a copy to the Respondent, or is to provide written confirmation that she does not intend to do so, from 26 July 2021 to 9 August 2021.
2.Direction 2 of the Direction made by the Tribunal on 22 July 2021 be varied by changing the date by which the Respondent has leave to file any submissions in reply, and to provide a copy to the Applicant, or is to provide written confirmation that they do not intend to do so, from 9 August 2021 to 23 August 2021.
3.The Applicant is refused leave to file any written submissions in reply to the Respondent’s submissions in reply with the Tribunal. This is because the Applicant’s submissions in Direction 1 above are already reply submissions to the Respondent’s closing submissions made at the hearing.
In the covering email sent to the Applicant on 4 August 2021, which attached the direction, my Associate explained that the Applicant’s submissions were already submissions in reply to the Respondent’s submissions. The email stated:
Please find attached a Direction made in this matter.
Please read the Direction carefully. This Direction does not permit you to file further evidence or new submissions with the Tribunal. As I mentioned in our telephone conversation yesterday, the opportunity to provide all submissions, including comments on any inaccuracies contained within the Respondent’s closing submissions, was when the submissions dated 26 July 2021 were filed.
As has also been noted in Direction 3, your submissions in Direction 1 are already a reply to the Respondent’s closing submissions made at the hearing. Therefore, no further right of reply is necessary.
In an email dated 9 August 2021, received by the Tribunal Registry at 8.40 am, the Applicant strongly objected to Direction 3 of the 4 August 2021 Direction. Her email comprised approximately seven pages. The concluding paragraph to the Applicant’s email summarises its content:
I reiterate that I am entitled to comment, correct or rebut the closing statement of the Secretary due on the 23 August 2021, and to deny this will be in breach of the Principles of natural justice, respect for law, and the Standard of Conduct of the Tribunal Members. I request a Review of the Direction of 4 August 2021 Point 3 to be provided with equal opportunity and time to the Secretary to provide a Closing Statement following the Secretary’s Closing Statement in order to clarify, correct, comment and/or rebut.
(Original emphasis.)
The Applicant attached a further six pages of submissions titled, “Corrections; Clarification; Comments and Rebuttal to the Secretary’s Hearing Submission 29 June 2021” to an email that was received by the Tribunal Registry at 4.16 pm on 9 August 2021. The Applicant stated the following in this covering email:
The Secretary has the opportunity to finally correct false, misleading or incorrect information in their Closing Submission, following which I will respond with my Closing Submission, as per my rights and entitlement as an unrepresented Applicant in accordance with the Administrative Review Council, A Guide to Standards of Conduct for Tribunal Members September 2001 (Revised August 2009).
On 20 August 2021, the Respondent filed reply submissions by email in accordance with Direction 2 of the Directions dated 4 August 2021, which were received by the Tribunal Registry at 6.57 am.
The Applicant sent an email response that was received by the Tribunal Registry at

9.42 am on 20 August 2021. In this email, the Applicant again insisted on filing further submissions “as I am entitled to do so as an unrepresented applicant” by way of a further reply to the Respondent’s submissions “to ensure correctness and clarifications to the Secretary’s contentions, especially given the history of the Secretary’s failure to apply medical facts, failure to correctly apply legislation, and failure to correctly apply the impairment tables”. The Applicant stated her own timeframe as follows:
Whilst I will endeavour to provide my right of reply submission before 3 September 2021, as I have a hospital admission on 2 September 2021, I may require additional time, although It [sic] is unlikely that I would require an additional 2 weeks. I would like to request that on or before the 10 September 2021 to provide this right of reply submission as per my entitlement as an unrepresented applicant: Standard of Conduct of the Tribunal Members.
The Applicant continued:
I have previously complained to the AAT on a number of matters in which I have been advised to escalate this to the Commonwealth Ombudsman. In accordance with the Commonwealth Ombudsman guidelines, I will submit my complaint under the AAT Complaints case number. Further, as a former Commonwealth employee, I am also lodging an additional complaint pertaining to issues of legality and wrongdoing under the Public Interest Disclosure and requesting an investigation into these historical issues. Where relevant, these issues will be escalated to the Australian Attorney-General, the Shadow Attorney-General, as well as other relevant Ministers, local Member of Parliament, and the Human Rights Commission.
In an email dated 26 August 2021, received by the Tribunal Registry at 12.16 pm, the Respondent opposed the Applicant’s request for leave, stating that:
We refer to the Applicant’s request for leave for a right of reply and subsequent notice that she intends to provide further submissions on 3 September 2021 regardless of any leave consideration by the Tribunal.
Following the hearing, the Applicant was granted leave to provide closing submissions only and the Secretary afforded a right to provide any submissions in reply. Nothing in the Secretary’s reply raised any new issues or mattes [sic] that were not already before the Tribunal and in those circumstances, the Secretary does not see any reason why the Applicant should be afforded a further opportunity.
The Secretary submits there must be finality in these proceedings and allowing the Applicant leave would be inconsistent with the objectives of the Tribunal. In particular, to do so would be inconsistent with the objectives to provide a mechanism of review that is fair, just, economical and quick and is proportionate to the importance and complexity of the matter.
In response, on 27 August 2021, the Tribunal Registry received the following email from the Applicant at 2.42 pm:
CC: Senior Member Evans-Bonner
In response to the above objection by the Secretary of my request to provide a right of reply / closing submission, I wish to advise that you, and other APS employees of the Secretary, are legally obliged to assist the AAT Tribunal Member, and myself as an Unrepresented Party, to provide correct factual evidence as per the Model Litigant obligations Guide of Standards of Conduct by Tribunal Members p.19 (attached). To hinder or obstruct this process or to provide misleading information is in breach of the APS Values and Codes of Conduct , which you personally can be held accountable for (attached). In addition, providing false testimony is a criminal offence under s 35 of the Crimes Act 1914 (attached).
As previously advised, I have now written to the Attorney-General Australia and opened communications to report on this matter. In addition, I have opened a complaint with the Commonwealth Ombudsman and will be submitting further information under the Public Interest Disclosure complaint mechanism as a former APS employee. Further, these reports will also be submitted to the Shadow Attorney-General, relevant Ministers and Members of Parliament, and in all likelihood, I will provide an account to the various public interest media organisations.
To reiterate, the Secretary has an obligation to ensure all facts provided to the Tribunal are correct, and where an Agency has the resources and processes to enable this, then they are obliged to do so. To obstruct this is in breach of the APS Codes of Conduct and contrary to natural justice principles. I believe that a right of reply should be welcomed by the Secretary in order that the Secretary avoid providing incorrect or false and misleading information as I will be ensuring public scrutiny and avenues of recourse. The submission I provided was not a closing submission, it was the submission in lieu of attending the Substantial Hearing, of which I was not a Party on the day. If the submission of the Secretary and testimony provided by yourself at the Hearing was factually correct, I would not need to continually correct this false and misleading evidence by the Secretary. I will be proceeding as previously advised and lodge a right of reply between the 3rd and 10th September 2021, as requested of the Tribunal Member.
(Original emphasis.)
On 1 September 2021 at 4.48 pm, my Associate sent the following email to the Applicant:
I refer to your emails dated 9 August 2021, 20 August 2021 and 27 August 2021, requesting further leave to provide written submissions in reply to the Secretary’s submissions dated 20 August 2021.
Please be advised that Direction 3 of the Direction made by the Tribunal on 4 August 2021 still stands. The Direction states:
3.The Applicant is refused leave to file any written submissions in reply to the Respondent’s submissions in reply with the Tribunal. This is because the Applicant’s submissions in Direction 1 above are already reply submissions to the Respondent’s closing submissions made at the hearing.
The email which attached this Direction, also stated:
This Direction does not permit you to file further evidence or new submissions with the Tribunal … As has also been noted in Direction 3, your submissions in Direction 1 are already a reply to the Respondent’s closing submissions made at the hearing. Therefore, no further right of reply is necessary.
Therefore, the Senior Member will not give consideration to any further submissions or evidence filed without leave of the Tribunal.
The Applicant sent the following email addressed to the District Registrar, which was received by the Tribunal Registry at 5.51 pm on 1 September 2021. As can be seen from this email, the Applicant again stated her dissatisfaction with the direction and further stated that she would be filing a reply anyway. The Applicant accused the Respondent of “false and misleading testimony”. She further stated that she would make her grievances public including to the media and repeated that she would be complaining to various Ministers, the Ombudsman and the Human Rights Commission:
I disagree with this refusal for a right of reply as the additional Submission provided by the Secretary is grossly false and misleading and is in contradiction to the plethora of medical and other evidence provided. Whilst you have assured that although you are not a medical doctor, as a Doctor of Law specialising in Administrative law, you can and will discern the factual medical evidence and legislation and assess it correctly. In addition, I understand that the Tribunal will ensure the utilisation of internal and external resources where there is a knowledge gap. However, due to the Secretary’s continued provision of false and misleading information, I genuinely believe that to disallow a right of reply to this false information will lead to an inaccurate assessment of this 2nd Review of Decision.
As a newby law student, I am genuinely shocked at the level of false and misleading testimony that has been provided on a continuous basis by the Secretary. If the skewing and false representation of facts and evidence is the norm by Australian solicitors in Administrative Law in Australia, it is shameful. As you are aware, I have not undertaken my Administration Law unit yet, however, I am certainly obtaining a lot of real life research into what I consider the ugly reality of Australian Administrative Law from the perspective of the Unrepresented Party. I am applying this to my research unit thesis next year. In addition, as a former filmmaker, having obtained my Masters Degree at the Australian Film Television and Radio School, I am compelled to bring to light this unjust practice of public law into the public arena and forums.
Although you are disallowing this right of reply, I am still drafting and lodging this response to the AAT by 10 September 2021, whether it is considered or not, as it is also relevant to my report submissions with the Australian Attorney-General, Shadow Attorney-General, Commonwealth Ombudsman, relevant Members of Parliament, the Human Rights Commission, public interest media, future law studies, and publishing, that as advised last week, I have actioned.
Thank you District Registrar, I am available at your convenience for any questions you may have affirming medical evidence, program of support, or other relevant facts, for the purpose of making the correct and preferred 2nd Review of Decision of this Disability Support Pension claim.
(Original emphasis.)

On 10 September 2021, the Applicant, via an email, filed the submissions that she was not given leave to file. These were titled “Right of Reply” and consisted of 27 typed pages.
The Applicant’s conduct is of concern. As the above procedural history indicates, the Applicant has been afforded numerous opportunities to make submissions and to put her case forward to the Tribunal. The Applicant has been given a great degree of latitude, and as a result the application has been protracted. When the Applicant has not received a result she has wanted, such as an adjournment or leave to file further submissions, she has become argumentative. She has ignored directions of this Tribunal, instead asserting that she will file documents when she is ready to do so. This conduct is inconsistent with the obligation of a party to these proceedings (which includes the Applicant), pursuant to

s 33(1AB) of the AAT Act, to use their best endeavours to assist the Tribunal fulfil the objective in s 2A of the AAT Act.
As can be seen in the email correspondence outlined above, on several occasions, the Applicant has threatened to make complaints to various Ministers and oversight bodies when the Tribunal did not give her what she wanted. If a party to Tribunal proceedings, has a genuine grievance, it is their right to make a complaint through the Tribunal’s formal complaints process, or to an appropriate oversight body. A party is also free to raise any grievances with their local member of Parliament or other Ministers, or indeed to contact the media with their concerns. It is not, however, acceptable for a party to ongoing Tribunal proceedings (in this instance, the Applicant), to assert to the Tribunal that such complaints will be made when the party is not given what they want. Such conduct suggests an attempt to influence the decision-making of the Tribunal to achieve the desired result and may constitute contempt (s 63(1) of the AAT Act).
As has also been outlined above, the Applicant has made serious accusations against the Respondent and the Respondent’s legal representatives. These accusations included that the Respondent had provided false and misleading information and had misrepresented facts and evidence to the Tribunal. These accusations appear to have been made in response to the Applicant having a different interpretation of some of the medical evidence to the Respondent. There is no evidence that the Respondent (or the Respondent’s legal representative) has been anything other than a model litigant in these proceedings. As the Applicant has indicated above, she is in the early stages of studying for a law degree and should know better than to make serious allegations of unethical and unlawful conduct that are without foundation. Although the Applicant may have a different interpretation or opinion of the evidence to the Respondent, that is no basis for making such serious allegations.
During these proceedings, the Respondent (including the Respondent’s legal representative) fulfilled their obligation to assist the Tribunal and, as I have already mentioned, acted as a model litigant. For example, the Respondent did not object to the inadequate medical certificate filed by the Applicant on the morning of the hearing on 28 June 2021, even though this certificate failed to state why the Applicant’s medical condition rendered her unfit to attend and to participate effectively in the hearing. Instead, the Respondent agreed to proceed with the hearing the following day, as 29 June 2021 was not covered by the medical certificate. It was also the Respondent’s legal representative who suggested that the Applicant could be afforded an opportunity to make written submissions in lieu of her participation at the hearing on 29 June 2021 after she failed to attend. The Respondent and the Respondent’s legal representative have been generous in accommodating the Applicant, notwithstanding the Applicant’s contribution to the protracted nature of the proceedings. This, in my opinion, showed sensitivity to the Applicant’s health conditions and to her being self-represented.
LEGISLATION
The legislation applicable to this matter is contained in:
(a)the Act;
(b)the Administration Act;
(c)the Impairment Tables; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
Qualification for DSP
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(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 …
Each criterion must be satisfied before a person will be qualified for a DSP.
Impairment tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply them.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(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.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered. …
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and …
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which 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; and
(b)the condition has been fully treated; and …
(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.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated, and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments:
Selection steps
(1)Table selection is to be made by applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor and relevant medical specialists.
Section 11 of the Impairment Tables states, in part:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
The Impairment Tables that may be applicable to the Applicant’s circumstances, and which are considered in more detail later in these reasons, are:
(a)Impairment Table 1 – Functions requiring Physical Exertion and Stamina;
(b)Impairment Table 7 – Brain Function;
(c)Impairment Table 13 – Continence Function; and
(d)Impairment Table 5 – Mental Health Function.
Qualification period
Schedule 2, pt 2, s 4(1) of the Administration Act provides for a 13-week qualification period from the date of 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.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. The Applicant lodged her claim for a DSP on 14 September 2015 (T11/84). Consequently, the relevant qualification period is 14 September 2015 to 14 December 2015 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the Court concerning the operation of these important provisions. It is to be noted at the outset that, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. 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.
In Gallacher, Besanko J (at 7 [27] and [28]) also stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 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 relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
Continuing inability to work
One of the qualification criteria for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(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.
(Original emphasis.)
Section 94(3B) of the Act provides that “[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).
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment, they will not be required to actively participate in a program of support.
Program of support
A “program of support” (POS) is defined in s 94(5) of the Act as:
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Section 94(5) continues to define “work”:
“work” means 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.
A person is considered to have actively participated in a POS if they meet the requirements set out in s 7 of the POS Determination. These requirements include that the person must have participated in the POS for at least 18 months in the 36 months ending immediately prior to the date the person claimed a DSP.
THE PARTIES’ SUBMISSIONS REGARDING THE IMPAIRMENT TABLES
The Applicant submitted that her conditions should be given a total impairment rating of 40 points, including more than 20 points under a single impairment table. Specifically, the Applicant stated (submissions filed on 26 July 2021, page 2):
I contend that the medical conditions of Fibromyalgia with Chronic Fatigue and IBS have a total rating of 35 points; of which there is 20 points under a single Table 1; plus 5 points under Table 7, and 10 points under Table 10; and for the medical conditions Post Traumatic Stress Disorder with Depression and Anxiety 5 points under Table 5; therefore totalling 40 points across the Impairment Tables.

The Respondent submitted that only 10 points could be assigned under Impairment Table 1 for the Applicant’s fibromyalgia/chronic fatigue syndrome condition. The Respondent further submitted that the Applicant’s IBS condition was not fully diagnosed at the time of the Qualification Period, and that whilst her mental health condition was diagnosed at the time of the Qualification Period, it had not been fully treated and stabilised at that time (Respondent’s SFIC, paras [50], [59], [64]).
FIBROMYALGIA/CHRONIC FATIGUE SYNDROME
The medical evidence before the Tribunal confirms that the Applicant suffered from the condition of fibromyalgia, which is also known as chronic fatigue syndrome (with the terms being used interchangeably), during the Qualification Period.
The medical evidence leading up to, and during, the Qualification Period confirms that the Applicant was diagnosed with fibromyalgia/chronic fatigue syndrome, with a date of onset of approximately October 2011. This evidence also describes some of the Applicant’s symptoms and is considered in further detail below.
(a)A letter from Dr Christopher Clay, dermatologist, dated 15 January 2014 (A3, vol 4/1266), stated that the Applicant:
has a long catalogue of problems including fatigue, weakness, nausea, wheezing, pain in the feet and hands, memory loss, insomnia and difficulty sleeping. She reports waking with burning hands and feet. They burn at night and are freezing during the day.
(b)A letter from rheumatologist, Dr Jack Edelman, dated 27 May 2014, states that the Applicant’s symptoms were consistent with fibromyalgia (ST22/212). This letter also describes some of the Applicant’s symptoms. Dr Edelman noted that the Applicant “tends to ache from head to toe”, that the Applicant “is always fatigues [sic] and tired”. Dr Edelman further stated that:
She doesn’t sleep well at night and awakes in the mornings feeling totally washed out. Her memory is terrible, her concentration is terrible.
(c)A medical certificate dated 30 July 2014 from general practitioner, Dr Fiona Liew, stated a diagnosis of “chronic fatigue syndrome/ fibromyalgia” for the Applicant with symptoms of decreased concentration and memory, joint and muscle pain and “chronically fatigued” (T4/67).
(d)A medical report completed for Centrelink by Dr Liew dated 27 August 2014 (T5/68–74) stated a diagnosis of “fibromyalgia/ chronic fatigue syndrome” for the Applicant with a date of onset of December 2011. The medical report stated “daily symptoms” of “chronically fatigued, reduced concentration and memory, pain in muscles and joints” (T5/70).
(e)A medical certificate by general practitioner, Dr Jamie Stewart, dated 20 November 2014, stated a diagnosis of “fibromyalgia; chronic fatigue syndrome” for the Applicant which was stated to be “permanent (likely to persist for 2 years or more)” and that the Applicant had “multiple symptoms including fatigue, generalised aches and pains”. The certificate stated that the Applicant was unfit for work or study from 20 November 2014 to 20 February 2015 (T6/75).
(f)Dr Stewart issued a similar medical certificate on 25 March 2015 which stated that the Applicant was unfit for work or study from 23 March 2015 to 23 June 2015 (T6/76).
(g)In a report prepared by occupational physician, Dr Mary Wyatt, dated 2 April 2015 (A3, vol 4/1397), Dr Wyatt stated that the Applicant’s diagnosis was “not clear”, but noted she had been diagnosed with fibromyalgia and chronic fatigue in the past, which were “plausible diagnoses” (page 1402). Dr Wyatt stated (page 1399) that the Applicant:
advised having a number of symptoms. She described substantial fatigue and said even after performing basic activities she might take a few days to recover. She cited difficulty cleaning her house, and said her house is in a ‘poo’ state because of this.
She is sore in multiple areas of her body, sore generally, and described being constantly nauseous. She vomits in the mornings, and can vomit after eating food or having something to drink. [The Applicant] also advised having intermittent explosive diarrhoea, along with abdominal pain. She advised having bone pain, and a newer development of numbness over the outer aspect of both thighs. She described wheezing and coughing. She advised having pain in her thyroid gland area, and a burning feeling in her hands and feet, particularly with walking on her feet, with a similar sense in her hands.
At home [the Applicant] said she does little but tries to do the housework when she feels up to it. She might do some simple food preparation. If she does the shopping, she said she may be tired four days after doing so. She is able to drive. [The Applicant] reported that she tries to walk her dog regularly, and was thinking about starting some exercise in pool.
(h)A medical attendant statement from Dr Edelman, dated 11 May 2015, stated that he had been treating the Applicant since 15 May 2014. Dr Edelman stated a diagnosis of fibromyalgia with a date of onset of October 2011. He stated the condition was “severe” and “mod[erate] to severe” and described the short-term and long-term prognosis as “very poor” (T7/77–78).
(i)A letter from Dr Edelman dated 11 May 2015 stated that the Applicant “does have … fibromyalgia” and that “[i]t is worsening but there is little else that she can do about it” (ST22/213). With respect to the Applicant’s symptoms, Dr Edelman stated:
As one would expect her symptoms are slowly worsening. She has constant pain and it is widespread involving virtually every joint and muscle in her body. Added to this she is chronically fatigued and if she exercises or overdoes anything she becomes nauseated with marked increase in symptomatology. She of course has difficulty in concentrating. She even has pins and needles down her arms and burning in her wrists and ankles.
(j)The diagnosis of “Fibromyalgia, Chronic Fatigue Syndrome, Irritable Bowel Syndrome” was also stated in a medical certificate from Dr Stewart, dated 26 June 2015, which stated that the Applicant was unfit for work or study from 23 June 2015 to 30 October 2015. The symptoms were stated as “generalised aches and pains, fatigue” (T8/80).
(k)A further medical certificate from Dr Stewart dated 26 November 2015 (T14/122) stated that the Applicant suffered from “fibromyalgia, chronic fatigue Syndrome, IBS”, which was “permanent (likely to persist for 2 years or more)”, and that her symptoms included, “generalised aches and pains, fatigue, diarrhoea”.
(l)The 2016 JCA Report stated, under the sub-heading “Functional impact” (T15/124):
Medical certificates (multiple) completed by Dr. Stewart note generalised aches & pains, fatigue and diarrhoea. Client reported very low endurance, widespread muscle & joint pain which prevents her from completing many activities of daily living e.g. household chores. She reported needing assistance to manage cleaning at home and shopping. Client reported IBS symptoms can come on suddenly leading to urgency and occasional accidents if she can not get to the toilet quickly. When fatigued, other symptoms quickly follow e.g. nausea, vomiting, reduced concentration, generalised pain.
In a letter to Dr Liew dated 14 March 2014 (T19/155), the Applicant described a suspected meniscus injury in her right knee. She further stated:
my bones and joints have been aching and painful in past 3 months and worsening. Recently, I have woken a number of times throughout the night from stabbing and throbbing pain in my long bones and knee/ wrist / elbow and shoulder joints.
At the AAT1 hearing on 8 September 2016, the Applicant gave evidence that she was “impacted on a daily basis” by her conditions. She described being able to shop once a fortnight, but after pushing the trolley and walking around “more pain would come on and quickly” and that she “would find it difficult to walk with the stiffness that comes”. She described her “symptoms” being aggravated when she got home. The Applicant described spending a lot of time in bed because of pain in her hips, knees and feet (AAT1 transcript/21). The Applicant described having fatigue and “days where I’m 100 percent incapacitated” where she “just can’t do anything”. She described not being able to make a phone call or read on those days, but that she could listen to an audio book (AAT1 transcript/22).
She stated that her hands would hurt if she was using a keyboard or if she were to open a bottle, and if she was walking around the shops, she would have “stabbing pains” in her feet. She described her symptoms being “layered” and including irritable bowel, nausea and vomiting. The Applicant stated that she had a cleaner to help with housework and to do her bathroom, floors and vacuuming, and that she was having her grocery shopping delivered (AAT1 transcript/22–23).
The Applicant described to the AAT1 that she “can’t hang up washing anymore” and that she would use a clothes dryer. She described breaking down tasks into 10 to 15-minute blocks and “generally no more than half an hour”. The Applicant also told the AAT1 that she would “try and cook a healthy meal in the morning or even lunchtime when I have better energy so I have food for later in the day and fatigue and the pain comes on” (AAT1 transcript/23).
The Applicant stated that she could sit outside and spend five minutes in one section of the garden, pulling up weeds, but otherwise has a gardener (AAT1 transcript/23). She further described her symptoms as “all my muscles, burning skin, burning hands, pain in my hands, pain in my feet” (AAT1 transcript/27).
The AAT1 referred to the Applicant travelling between Queensland (where she resided at the time of the AAT1 hearing) and Western Australia and staying in Western Australia for four to five weeks at a time. In her email dated 2 August 2021, the Applicant stated that she had not travelled during the Qualification Period. She explained that she travelled to Perth after the Qualification Period in late May 2016, that she had “never travelled back and forth between Perth and Queensland every 4-5 weeks”. Further, she stated that she had difficulty travelling and referred to medical certificates where she had had to cancel flights due to her symptoms (for example, medical letter from Dr Liew dated 4 February 2014 confirming the Applicant was unable to fly for “medical reasons” at A3, vol 4, 1309).
The relevant impairment table is Impairment Table 1 – Functions requiring Physical Exertion and Stamina. The other potentially relevant table is Impairment Table 7 – Brain Function.
Before turning to Table 1, I will address Table 7. Whilst the medical evidence referred to the Applicant having reduced concentration and memory, and whilst the Applicant described to the AAT1 as not being able to talk on the telephone or read on the occasions when her fatigue was severe, there is little to no corroborating medical evidence of the functional impact under Table 7 of her reduced concentration and memory. There is no medical evidence about what the Applicant could or could not do because of her reduced concentration and memory so as to enable me to differentiate between the descriptors for “no functional impact” (zero points) and a “mild functional impact” (five points) under Table 7.
Turning to Table 1, based on the corroborated medical evidence, I find that the corroborating medical evidence of the functional impacts of Applicant’s fibromyalgia condition are best characterised as having a “moderate” functional impact of 10 points. This is because, although the Applicant experiences symptoms, including fatigue and pain when performing day to day activities around the home and has difficulty performing many activities, she can nevertheless perform them. For example, the Applicant was able to live alone, could undertake light household tasks such as cooking a meal or putting washing in the dryer, provided household tasks were undertaken in 10 to 15-minute intervals and of no more than 30 minutes. That is, she would have difficulty undertaking these tasks, and would need breaks, but it could not be said that she was unable to perform light household activities, which is an indicator of a severe functional impairment.
Similarly, the Applicant gave evidence to the AAT1 that she could go to the shop and push a shopping trolley around fortnightly, although doing so would aggravate her symptoms of pain and fatigue. However, an indicator of a “severe” functional impact would be that the Applicant would be unable to walk around a shopping centre without assistance.
There is no evidence as to whether the Applicant could not walk from a carpark to a shopping centre without assistance and there is no evidence that the Applicant could not use public transport without assistance, which are also indicators of a “severe” functional impact. I note that although there is evidence of the Applicant being unable to travel by plane on occasions due to illness, she did travel to Perth from Queensland by plane approximately five months after the Qualification Period in May 2016, where she stayed for four–five weeks, returning with her sister (Applicant’s email dated 2 August 2021). Also, evidence from Dr Wyatt dated approximately five months prior to the Qualification Period stated that the Applicant could drive and that she walked her dog regularly.
Impairment Table 1 also refers to the ability to perform work-related tasks of a clerical, sedentary or stationary nature. It is unclear as to whether the Applicant had difficulty doing so for “a continuous shift of at least 3 hours”, which is required for a “severe” impairment rating at the Qualification Period. I observe that in these proceedings, the Applicant has submitted lengthy and detailed emails and typed submissions to the Tribunal which indicate her ability to perform these types of tasks. I note that, in her email correspondence, the Applicant referred to needing breaks of unspecified duration when her symptoms were severe. However, some time has passed since the Qualification Period and I cannot be reasonably satisfied of the Applicant’s ability to perform work-related tasks of a clerical, sedentary or stationary nature at that time.
In summary, I find that:
(a)the functional impacts of the Applicant’s fibromyalgia/chronic fatigue syndrome condition can be assigned an impairment rating of 10 points under Table 1 – Functions requiring Physical Exertion and Stamina; and
(b)for the reasons outlined above, the Tribunal is unable to assign any points under Table 7 – Brain Function.
IRRITABLE BOWEL SYNDROME
The Tribunal will now review the relevant medical evidence to determine whether the Applicant suffered from IBS that was permanent (that is, fully diagnosed, treated and stabilised) as at the Qualification Period.
The following evidence, which has been referred to in the above section on fibromyalgia/chronic fatigue syndrome, includes references to symptoms that tend to indicate a diagnosis of IBS.
(a)The letter from Dr Edelman dated 27 May 2014 observed that the Applicant had been “sick with upper abdominal pain, nausea, bloating” and that “[s]he did appear to be rather bloated” (ST22/212).
(b)The medical report completed for Centrelink by Dr Liew dated 27 August 2014 refers to the symptom of “diarrhea” under the diagnosis of “post-traumatic stress disorder associated with depression and anxiety” (T5/71).
(c)The medical certificate from Dr Stewart dated 25 March 2015 did not refer to the Applicant having a diagnosis or any symptoms relating to IBS, diarrhoea or any like condition, but did state, “[h]as recently been seen by another specialist – Dr Tarquino – who is currently undertaking several investigations” (T6/76).
(d)The letter from Dr Wyatt dated 2 April 2015 (A3, vol 4/1399) states that the Applicant “advised having intermittent explosive diarrhoea, along with abdominal pain”.
(e)The letter from Dr Edelman dated 11 May 2015, referred to in the above section on fibromyalgia/chronic fatigue syndrome, stated the Applicant, “gets recurrent diarrhoea which would be quite consistent with an irritable bowel” (ST22/213).
(f)The medical certificate from Dr Stewart dated 26 June 2015 stated a diagnosis of “Fibromyalgia, Chronic Fatigue Syndrome, Irritable Bowel Syndrome”, but no corresponding symptoms were noted (T8/80).
(g)The medical certificate from Dr Stewart dated 26 November 2015 (T14/122) states a diagnosis of “Fibromyalgia, Chronic Fatigue Syndrome, IBS” with the corresponding symptom of “diarrhoea”.
(h)The 2016 JCA Report stated that (T15/124) “[c]lient reported IBS symptoms can come on suddenly leading to urgency and occasional accidents if she can not get to the toilet quickly”.
In addition to the above evidence, I also note the following medical evidence.
(a)A letter dated 9 May 2013 from Dr Liew to gastroenterologist, Dr Lorenzo Tarquinio, states that the Applicant “has persistent nausea, abdominal pain, belching and bloating” (T19/152).
(b)On 25 June 2013, the Applicant underwent biopsies including “multiple gastric body and antral biopsies” (A3, vol 4/1238).
(c)A letter to psychiatrist, Dr Dennis Tannenbaum, dated 11 June 2014 from Dr Liew (A3, vol 4/1340) states that “her more recent symptoms of muscle pain and generalised fatigue, and her visit to a rheumatologist, have led to a diagnosis of fibromyalgia, chronic fatigue syndrome and IBS”.
(d)A letter of referral from Dr Stewart to Dr Tarquinio dated 23 December 2014 (A3, vol 4/1379) requests an opinion as to the cause of the Applicant’s bowel symptoms. The letter states that the Applicant:
has been seen by yourself in the past with abdominal pains and reflux and you preformed OGD and colonoscopy. She is now experiencing persistent diarrhoea which she describes as watery and explosive and has been going on for a number of months now. I would be grateful for your opinion as to the possible cause of this. Bloods have recently been normal and I have organised for stool C+S.
(e)A Western Diagnostic Pathology invoice states that the Applicant was referred by Dr Tarquinio on 25 February 2015 for a “chromogranin A serum” test on 15 March 2015 (A3, vol 4/1392).
(f)In her letter to Dr Liew dated 14 March 2014 (T19/155), which was also referred to above in the section on fibromyalgia/chronic fatigue syndrome, the Applicant described “[u]rgently needing to go to the toilet and exploding bowel movement has also returned in recent weeks, as well as frequency per day”.
Although the evidence of the Applicant’s general practitioner states a diagnosis of IBS at the time of the Qualification Period, there is no corroborating medical evidence of a diagnosis from Dr Tarquinio, or another gastroenterologist. Indeed, as at 15 March 2015, Dr Tarquinio was still undertaking investigations into the Applicant’s bowel symptoms. However, Impairment Table 13 states a “report from the person’s treating doctor” as an example of corroborating evidence. There is evidence from the Applicant’s general practitioners stating a diagnosis of IBS at the time of the Qualification Period. I therefore find that the Applicant’s IBS was fully diagnosed at that time.
However, there is insufficient evidence upon which I could be reasonably satisfied that the Applicant’s IBS was fully treated and stabilised at the time of the Qualification Period. The evidence shows that the cause of the Applicant’s IBS was being investigated prior to the Qualification Period in late 2014 and early 2015. It is also unclear what, if any, treatment the Applicant has had for her IBS and whether the condition had been stabilised at the time of the Qualification Period.
Further, even if I could find that the Applicant’s IBS was fully treated and stabilised at the Qualification Period, there is minimal corroborating medical evidence of the functional impact of the Applicant’s IBS to enable me to assess the condition under Table 13 – Continence Function. For example, the extent or frequency of any urgency or leakage or whether the condition interrupts the Applicant’s daily tasks, work or training has not been referred to in any of the medical evidence.
MENTAL HEALTH CONDITION

The evidence of the Applicant having a mental health condition in the several years leading up to the Qualification Period includes the following.
(a)A medico-legal report by consultant psychiatrist Dr Stephen Proud, dated 20 December 2011, stated a diagnosis for the Applicant of “Major Depressive Disorder With Anxiety, chronic”. Dr Proud’s opinion was that the Applicant was “not fit to resume full-time duties yet, but [was] fit to commence a graduated return to work programme” (A3, vol 2/574–580; Attachment B to Respondent’s SFIC).
(b)A medico-legal report by consultant psychiatrist Dr Jonathon Spear, dated 22 February 2012, noted Dr Proud’s diagnosis of “Major Depressive Disorder” in the “history” section of his report. However, Dr Spear did not state that same diagnosis as Dr Proud. Using the multi-axial system of the DSM IV, Dr Spear’s diagnosis was:
Axis I:                Alcohol abuse, Caffeine abuse
Axis II:               Histrionic style
Axis III:              Alleged tinnitus.
Axis IV: Perceived workplace bullying, industrial issues, not working currently, ongoing dispute with employer, stress of the medicolegal process.
Axis V:              Global assessment of functioning 55.
Dr Spear recommended that the Applicant was “fit to commence a graduated return to work program” and that her “history of alcohol abuse and excessive caffeine use … are probably the main causes of her current mental health symptoms”. Dr Spear recommended counselling to assist with the Applicant’s alcohol and caffeine intake and recommended that the Applicant could withdraw from taking Temazepam (A3, vol 3/678–687; Attachment C to Respondent’s SFIC).
(c)A report by clinical psychologist, Anne Walters, dated 14 March 2012, disagreed with Dr Spear’s finding that the Applicant had a “histrionic” personality disorder. Ms Walters stated that the Applicant’s scores on the Traumatic Stress Inventory and Personality Assessment Inventory “are consistent with symptoms of posttraumatic stress”. Ms Walters stated, with respect to the Applicant, that (A3, vol 3/762–770; Attachment D to Respondent’s SFIC):
some of her symptoms appear to be slowly decreasing in intensity over time. This has been aided by her willingness to engage in therapy and to implement strategies to improve her outcome. Given an improved occupational environment and continued psychological care then it would be likely that [the Applicant’s] condition would improve gradually over time.
Ms Walters also commented on the functional impact of the Applicant’s mental health condition:
In summary, [the Applicant] is not functioning psychologically or physically at the same level previous to her trauma experience. Her freedom in terms of being able to visit her friends and family and engage in her usual pursuit has been severely curtailed due to her PTSD symptoms. She no longer sleeps well and is constantly ruminating about what she experienced at work. She is tense and nervous when contemplating going somewhere outside of her “comfort zone” which is her home. Her lifestyle has been significantly compromised and restricted due to the problems associated with the workplace stress she experienced.
(d)The Applicant attended approximately seven appointments with Ms Walters in 2011 and 21 appointments in 2012 (A3, vol 2/522–570; A3, vol 3/605–1008).
(e)A registered psychologist from People Sense also provided updates regarding the Applicant’s return to work program in approximately 2012. The psychologist’s role appeared to be to assist the Applicant achieve her rehabilitation goals, to report on her progress with reference to her medical treatment and readiness to return to work, and to make recommendations to facilitate and support the Applicant’s transition back to work, and not as a treating psychologist (see, for example, letter dated 6 March 2012 in A3, vol 3/722–724; letter dated 18 April 2012 in A3, vol 3/839–841; letter dated 15 June 2012 in vol 3/944–945).
(f)A letter from consultant psychiatrist Dr Tannenbaum dated 3 April 2012 (T19/150–151) to general practitioner Dr Terry Kurdian stated that the Applicant “presents with acoustic trauma” which was “likely to have precipitated the depression directly, and a considerable amount of anxiety”. Dr Tannenbaum recommended medication as follows:
I would strongly recommend and [sic] antidepressant and I would give her Pristiq at 50mg for a couple of weeks, then go up to 100mg if she tolerates it. Alternatively I would use an SSRI like sertraline at 150mg, starting at 50mg and building up slowly. If she does not reach full remission and feel fully well, I would perhaps suggest that you send her back for review.
Dr Tannenbaum continued to state that the Applicant, “has far more to gain to take an antidepressant and get herself fully well so that she can return to work, and she could do well with continuing to see her clinical psychologist”.
(g)A letter to Comcare from Dr Kurdian, dated 8 June 2012 (A3, vol 3/890–894; Attachment E to Respondent’s SFIC), stated that the Applicant “manifests symptoms and signs consistent with depression and anxiety disorder … affecting mood; in turn resulting in low self-esteem; teariness; loss of interest in activities; loss of appetite; social withdrawal as well as insomnia”. Dr Kurdian noted that anxiety and depression generally responded well to antidepressant medication as well as counselling, and that it “may take some time, but given the right work environment and ongoing support and counselling an improvement in [the Applicant’s] condition is achievable”.
(h)A letter from Dr Tannenbaum dated 7 July 2014 (A3, vol 4/1349–1352; Attachment F to Respondent’s SFIC) stated that he had last seen the Applicant on 10 January 2014. Dr Tannenbaum stated that at that time he was treating her with the antidepressant sertraline, and that she had been responding to treatment and had been “progressing on her medication” until she was diagnosed with another physical disorder.
(i)A Medicare statement of claim and benefit payment statement (A3, vol 4/1354) records an “outpatient consult of more than 30 Minutes but not more than 45 minutes duration” on 21 July 2014 with Dr Tannenbaum.
(j)The medical report completed for Centrelink by Dr Liew dated 27 August 2014, which I referred to above, stated a diagnosis of “post-traumatic stress disorder assoc[iated] with depression and anxiety” with a date of onset of April to June 2010. The report indicates that the Applicant saw psychiatrist Dr Tannenbaum in February 2012. The “future/planned treatment” was stated as “to continue on sertraline and further follow-up with Dr Tannenbaum” (T5/71–72).
(k)The medical certificate from Dr Stewart dated 20 November 2014 stated a diagnosis of a secondary condition of “depression and anxiety” with the symptoms of “low mood and anciety [sic], as well as health anxiety”. The condition was stated to be a “temporary exacerbation of a permanent condition” with the prognosis stated to be “uncertain”. The treatment for this condition was stated as “Medication – currently on sertraline, previously tried psychology and other medication” (T6/75).
(l)
Like the medical certificate dated 20 November 2014, a medical certificate dated

25 March 2015 from Dr Stewart, stated that the Applicant had a secondary condition of “depression and anxiety” which was a “temporary exacerbation of a permanent condition”. The treatment for this condition was similarly stated as “Medication – currently on sertraline, previously tried psychology and other medication” with the planned treatment as “continue current medication” and the prognosis as “less than 3 months”. The symptoms were stated as (T6/76):
Low mood and anxiety, as well as health anxiety. Her symptoms have improved since our last review, more towards her baseline level.
(m)The medical attendant statement from rheumatologist, Dr Edelman, dated 11 May 2015, referred to above with respect to fibromyalgia, gave the following answer to a question regarding factors which may affect or prolong the condition (of fibromyalgia), “depression & Post Traumatic stress” (T7/78), that “multiple [word indecipherable] Trigger Pts”. There is a reference under medications to “antidepressant”, “lyrica” and what appears to be “endep” (A3, vol 4/1423).
(n)The medical certificate from Dr Stewart dated 26 June 2015, also referred to above, stated a secondary condition of “depression and anxiety” with symptoms of “low mood and anxiety” which was a “temporary exacerbation of a permanent condition”. The certificate stated that the Applicant’s current treatment was sertraline and that her prognosis was “uncertain” (T8/80).
As can be seen from the above overview, the Applicant’s mental health condition was described differently by various medical practitioners, including being labelled as Major Depressive Disorder, depression and anxiety and post-traumatic stress disorder with depression and anxiety. Regardless of the exact description, the medical evidence indicates that, leading up to the three months prior to the Qualification Period, the Applicant had been consistently diagnosed with a mental health condition. I am therefore reasonably satisfied that at the time of the Qualification Period the Applicant was suffering from a mental health condition.
However, there is insufficient evidence to ascertain whether the Applicant’s mental health condition was fully treated and stabilised at the time of the Qualification Period.

Evidence from Dr Tannenbaum indicates that the Applicant had been taking medication and had been improving up until January 2014. Shortly before the Qualification Period, on 25 March 2015, Dr Stewart stated that the Applicant’s symptoms had improved, that she was taking sertraline and the prognosis was three months, which suggests further improvement was expected. Approximately three months prior to the Qualification Period, on 26 June 2015, Dr Stewart stated that the Applicant was taking sertraline and that her prognosis was “uncertain”, which also suggests that at that time, the condition had not been stabilised. It is also unclear whether the Applicant continued with her clinical psychologist appointments, as recommended by Dr Tannenbaum on 3 April 2012, beyond 2012. There is therefore insufficient evidence to enable me to be reasonably satisfied that the Applicant’s condition was fully treated and stabilised at the time of the Qualification Period. Therefore, I cannot be reasonably satisfied that the Applicant’s mental health condition was permanent during the Qualification Period, which means that an impairment rating cannot be assigned (s 6(3) of the Impairment Tables).
Even if I was able to conclude that the Applicant’s mental health condition was permanent, a further difficulty for the Applicant is that there is insufficient corroborating medical evidence of the functional impact of the Applicant’s mental health condition at the time of the Qualification Period to enable me to assess the functional impact under Impairment Table 5 – Mental Health Function of the Impairment Tables. For example, in 2012, Ms Walters and Dr Kurdian referred to the Applicant’s mental health condition resulting in a loss of interest in activities and social withdrawal, but the references are general and lacking in detail. Also, their evidence pre-dates the Qualification Period by approximately three years.
TINNITUS
The Applicant also referred to her condition of tinnitus “due to its relevance as the causal factor in relation to the onset of all medical conditions of this DSP claim” (submissions filed on 26 July 2021). She summarised the medical evidence concerning this condition at pages 1–5 of her “List of Medical Evidence” filed with the Tribunal on 26 July 2021.
Some of the medical evidence concerning the Applicant’s tinnitus condition has been summarised below.
(a)A letter from ear and nose specialist Dr Philip Beinart dated 27 September 2010 stated a diagnosis of “acoustic shock causing tinnitus” (A3, vol 2/431).
(b)A letter to Comcare dated 26 July 2012 from an audiologist, Zoe Sampson (A3, vol 3/1007), refers to a diagnosis of tinnitus which is “exacerbating [the Applicant’s] depression and anxiety”, and recommends a further treatment option called “neuromonics” which has “up to a 90% success rate”.
(c)A workers’ compensation progress medical certificate completed by Dr Kurdian, with a date of examination of 10 May 2013, stated that, “Tinnitus under control at present. Continues with mneumonic programme organized by Zoe Sampson” (A3, vol4/1212). I note that this certificate appears to be the most recent evidence concerning the Applicant’s tinnitus, and that the medical certificates from the Applicant’s general practitioners in 2014 and 2015 do not refer to this condition.
Consequently, although there is evidence of a diagnosis of tinnitus in 2010, there is insufficient evidence regarding whether the Applicant continued to suffer from the tinnitus condition, whether the condition was permanent, or its functional impact at the time of the Qualification Period.
CONCLUSION
Based on the evidence before the Tribunal, the Applicant did not meet the eligibility requirements in s 94(1) of the Act during the Qualification Period and was therefore not qualified to receive a DSP at that time.
The Applicant suffered from impairments at the time of the Qualification Period, namely fibromyalgia/chronic fatigue syndrome, IBS and a mental health condition, thus satisfying

s 94(1)(a) of the Act. There is insufficient evidence regarding whether she suffered from tinnitus at the Qualification Period.
However, I have found that the Applicant did not satisfy s 94(1)(b) of the Act because her conditions could not be assigned an impairment rating of 20 points or more under the Impairment Tables. Specifically, I made the following findings:
(a)The Applicant suffered from the permanent impairment of fibromyalgia/chronic fatigue syndrome at the Qualification Period, which can be assigned an impairment rating of 10 points under Table 1 – Functions requiring Physical Exertion and Stamina.
(b)The Applicant’s IBS and mental health condition were fully diagnosed but were not fully treated and stabilised at the time of the Qualification Period. Therefore, no impairment rating could be assigned for those conditions. In addition, even if those conditions could be regarded as permanent, there is insufficient evidence of their functional impact during the Qualification Period to allow me to determine the appropriate impairment rating.
(c)There is insufficient evidence upon which I can determine if the Applicant suffered from a permanent condition of tinnitus, or any functional impact of this condition at the time of the Qualification Period.
As the Applicant does not satisfy s 94(1)(b) of the Act, it is unnecessary to consider whether the Applicant had a continuing inability to work under s 94(1)(c) of the Act.
Although the outcome of this application is likely to be disappointing for the Applicant, she can make a new claim for a DSP. The advantage of doing so is that up to date medical evidence can be submitted and considered by Centrelink. As has been mentioned throughout these reasons, I am only able to consider evidence relating to the Applicant’s impairments during the Qualification Period. Given the considerable amount of time that has passed between the Applicant’s initial claim for DSP, and depending on current medical evidence, her condition of fibromyalgia/chronic fatigue syndrome may have worsened, and/or her IBS and mental health conditions may now be permanent and may be able to be assigned an impairment rating. This may, depending on the medical evidence, give the Applicant the 20-point impairment rating that she requires under a single impairment table to be able to succeed with a new claim for DSP.
Whether the Applicant is successful in making a new claim will depend on the available and up to date medical evidence and requires assessment by Centrelink. If the Applicant seeks to make a new claim for a DSP, I request that Centrelink work with the Applicant and her medical practitioners to assist her. This should include providing the Applicant’s medical practitioners with copies of the Impairment Tables to ensure that Centrelink obtains the relevant information regarding the Applicant’s conditions and their functional impact to be able to properly assess and determine any new claim.
DECISION
The Authorised Review Officer’s decision dated 11 March 2016, as affirmed by the AAT1 on 8 September 2016, is affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

....[Sgd]....................................................................
Associate
Dated: 7 October 2021

Date of hearing: 29 June 2021

Applicant: Self-represented

Representative for the Respondent: Ms J Forsyth, Mills Oakley Lawyers

Date of hearing:	29 June 2021
Applicant:	Self-represented
Representative for the Respondent:	Ms J Forsyth, Mills Oakley Lawyers