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

Ramirez and Secretary, Department of Social Services (Social services second review) [2021] AATA 216 (12 February 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4129
Re:Erika Ramirez
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:12 February 2021
Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 13 June 2019, is affirmed.
.............. ......[sgd]....................................................
Member S Barton
CATCHWORDS
DISABILITY SUPPORT PENSION – DSP – Impairment Tables – applicant does not meet impairment rating requirement –– unlimited portability – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – ss 80, 179
Social Security (International Agreements) Act 1999 – sch 13, art 2(1)(b)(i)(B)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294
Shi v Migration Agents Registration Authority [2008] HCA 31
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide, vers 1.278
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – paras 5, 6(1), 6(5), 6(6)
REASONS FOR DECISION
Member S Barton
12 February 2021
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal,

Social Services and Child Support Division (the AAT1) dated 13 June 2019

(the Reviewable decision) that affirmed a decision made by the Department of Human Services (the Department), to cancel the Applicant’s disability support pension (DSP) and therefore not grant unlimited portability.
FACTS
Mrs Erika Ramirez (the Applicant) is 62 years of age and was granted the DSP from
September 2008.
On 29 January 2018, the Applicant advised the Department that she planned to travel to the United States of America (USA) and, on the same day, blank forms for a review of the portability of the DSP were sent to the Applicant.
On 15 March 2018, the Applicant advised the Department she planned to depart overseas on 19 March 2018, returning to Australia between 30 April 2018 and 19 June 2018.
The Applicant declined an assessment of her medical condition under the current Impairment Tables at that stage.
On 16 June 2018, the Applicant returned to Australia and her payments were restored from that date.
On 14 September 2018, the Applicant requested a medical assessment to determine if she was medically eligible to receive DSP under the unlimited portability provisions of the Act. She also requested an assessment under the International Agreement between Australia and the United States of America.
On 18 October 2018, the Applicant attended a session with a Job Capacity Assessor (JCA). The JCA found a total impairment rating of 10 points and a baseline capacity for future work within two years as 15-22 hours per week.
On 4 January 2019, a decision was made to cancel the Applicant’s DSP on the basis that she did not have an impairment rating of 20 or more under the Impairment Tables.
On 21 January 2019, a decision was made not to pay the Applicant’s DSP for unlimited periods of time outside Australia.
The Applicant sought a review and on 23 January 2019 an Authorised Review Officer (ARO) from the Department affirmed the decision on 1 November 2019.
The Applicant sought a further review of the decision by the AAT1, which affirmed the decision of the ARO on 13 June 2019.
On 11 July 2019, the Applicant applied for a second review by the Administrative Appeals Tribunal (the Tribunal).
JURISDICTION
The application for review was made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth). Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable decision.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Tuesday 17 November 2020. The Applicant was

self-represented and gave oral evidence and was cross examined. The Respondent was represented by Mr A. Burgess, who appeared via teleconference.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Application for a Stay Order dated 25 July 2019 (Exhibit A1);
(b)Amended Application for Stay Order dated 26 July 2019 (Exhibit A2);
(c)Answers to Secretary’s Opposition to Grant of Stay dated 2 September 2019 (Exhibit A3);
(d)Letter from Dr G Bloor dated 3 October 2019 (Exhibit A4);
(e)
Letter from NDIS and report from Dr O De Mello dated 13 September 2019

(Exhibit A5);
(f)
Letter from NDIS and report from Dr L MacKinnon dated 2 October 2019

(Exhibit A6);
(g)Medical report from Dr Simon Darn dated 17 September 2019 (Exhibit A7);
(h)Medical report from Dr De Mello dated 25 August 2019 (Exhibit A8);
(i)Letter from Dr Ugo Egesi dated 27 December 2019 (Exhibit A9);
(j)
Medical evidence including pain clinic referral form dated 24 October 2019,

neuro referral form of 9 September 2019 and rheumatologist referral form of

9 September 2019 (Exhibit A10);
(k)CT lumbar spine and pelvis report dated 1 July 2017 (Exhibit A11);
(l)
Letter from Dr Jo Lagerberg to Dr Mackinnon dated 24 November 2019

(Exhibit A12);
(m)
Letter from Z Conaghan, physiotherapist, to Dr Egesi dated 17 July 2019,

letter from Dr S Jayabahu to Dr Bloor dated 20 June 2019, letter from

Dr Srivastava to Dr Bloor dated 14 June 2019 and letter from Dr Bloor dated

7 June 2019 (Exhibit A13);
(n)Radiology Report from Dr Mackinnon dated 11 November 2020 and photographs of the Applicant’s hands and feet (Exhibit A14);
(o)Document with information regarding spinal conditions (Exhibit A15);
(p)Section 37 documents (T documents) numbered T1 to T62, comprising 288 pages, received 8 August 2019 (Exhibit R1).
(q)Secretary’s Outline of Submissions Opposing the Grant of Stay, with attachments A-C dated 8 August 2019 (Exhibit R2);
(r)Respondent’s Statement of Facts, Issues and Contentions dated 20 December 2019 (Exhibit R3); and
(s)Supplementary Section 37 documents numbered ST1 to ST7, comprising 477 pages (Exhibit R4).
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant, on the day her DSP was cancelled, had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act);
(b)an impairment rating of at least 20 points under the Impairment Tables;
(c)a continuing inability to work for the purposes of s 94(1)(c) of the Act;
(d)if the Applicant met the criteria for the DSP, whether the Applicant was entitled to unlimited portability of her DSP payments on and from 14 September 2018; and
(e)is the social security agreement between the Government of Australia and the Government of the USA in Schedule 13 of the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act) relevant for the purposes of this review.
QUALIFICATION REQUIREMENTS FOR DSP
The qualification requirements for the DSP are set out in s 94 of the Act:
(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; …
A successful applicant for the DSP must meet each requirement: they must have an impairment; it must be of 20 points or more under the Impairment Tables and they must have a continuing inability to work. If an applicant does not have 20 or more points under the Impairment Tables, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act.
Section 26(1) of the Act allows the Minister, by legislative instrument, to determine the Impairment Tables referred to in s 94(1)(b) and the rules for applying them.

The Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) (the Impairment Tables) provides those Impairment Tables and the rules for their use.
The purpose and general design principles of the Impairment Tables are set out in s 5.

The Impairment Tables describe the functional activities, symptoms and limitations and assigns ratings to determine the level of functional impact of the impairment on an applicant. ‘[I]mpairment’, defined in s 3, means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
Section 6(1) of the Determination states that ‘[t]he impairment of the 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 … ’ (Emphasis added.). An impairment rating can only be assigned if the condition is permanent, which, for the purposes of the Impairment Tables, is if it has been fully diagnosed by an appropriately qualified medical practitioner; if it has been fully treated and stabilised; and if it is more likely than not, in light of available evidence,

to persist for more than two years.
Section 6(5) of the Determination states that when determining ‘whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated … ’ consideration must be given to the following:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment and rehabilitation has occurred; and
(c)whether treatment is continuing or is planned in the next two years.
Section 6(6) states that a condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement enabling a person to undertake work in the next two years.
A condition is also deemed to be fully stabilised if the person has not undertaken reasonable treatment for the condition and significant functional improvement enabling work is not expected in the next two years, even if the person undertook reasonable treatment. Or, if there was a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 10 of the Determination details the means by which an Impairment Table is selected and an impairment or impairments are assessed. It is first necessary to identify the loss of function, for example, lower limb function or upper limb function, refer to the Impairment Tables related to that function and identify the correct impairment rating. Section 10(3) of the Determination notes that where a single condition causes multiple impairments, each impairment should be assessed under the relevant Impairment Table.

It provides the example of a stroke, a single condition, that may affect multiple functions, including upper and lower limb function, brain function and communication function. However, the same impairment must not be assigned across multiple tables.
QUALIFYING PERIOD
Section 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
The qualifying period for assessing whether or not a person is qualified for a payment has been the subject of a number of decisions in both the Federal Court and the High Court.

In Re Joan Elizabeth Freeman v Secretary, Department of Social Security [1988] FCA 294, the Court found:
[12]The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in relation to a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19.
Referring to this decision, in Shi v Migration Agents Registration Authority [2008] HCA 31, the High Court found:
[144]In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account…
The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
(Footnotes removed.)
The effect of these decisions is described by Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066:
[48]Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period.
That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.
Following these established precedents, the Tribunal is restricted in its consideration of the Applicant’s condition to the date of the cancellation of the DSP, which was 4 January 2019. Following the practice in Fanning at 473 [31], affirmed in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, medical reports generated after a qualification period must be relevant to that period.
DOES THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In the Medical Report prepared for the Applicant’s DSP review for portability by her general practitioner, Dr Ugo Egesi, the following conditions were listed (Exhibit R1, PT42, pp 206-211):
(a)chronic lower back pain; and
(b)depression/anxiety.
Lower back pain
The Applicant has had lower back pain since 1988, resulting from a fall while working as a flight attendant (Exhibit R1, T16, p 146 and Exhibit R4, PSTA4, p 52). The Applicant underwent several procedures including a laminectomy, foraminotomy and spinal fusion and has experienced pain since 1991 (Exhibit R1, T16, pp 146-147, PT42, 206-207 and Exhibit R4, PSTA, p 52)
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant suffered from a physical impairment, relating to her back condition, on the day her DSP was cancelled. The Tribunal accepts the condition has been fully diagnosed, fully treated,
fully stabilised and, on the basis of the available evidence, likely to persist for more than two years. The Tribunal notes this is not disputed by the Respondent, who accepts that the Applicant meets the criteria of s 94(1)(a).
In the Applicant’s JCA, submitted on 18 October 2018, the assessor examined the Applicant’s impairment against Impairment Table 1- Functions requiring Physical Exertion and Stamina in the Determination, ascribing a moderate functional impact on her activities with 10 impairment points.
Impairment Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina, associated with a diagnosis including cardiac or respiratory impairment, extreme fatigue or exhaustion. The Secretary has submitted that the spinal condition is more appropriately rated under Impairment Table 3 – Lower Limb Function or Impairment Table 4 –
Spinal Function (Exhibit R3, p 10 at [5.37]).
Impairment Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of the legs or feet. Impairment Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving the back, trunk or neck.
The selection of the appropriate table is by no means straight forward. As detailed in the Determination, it is necessary to identify the loss of function, refer to the related table and apply the correct impairment rating.
It is noted that a single condition can cause multiple impairments across several Impairment Tables. The example provided by the Determination is of a stroke, which may affect different functions, resulting in multiple impairments. Impairment ratings from the same Impairment Table must not be assigned under more than one table.
It is conceivable, for example, that a spinal condition could result in multiple impairments: it could result a loss of function in activities requiring the use of the legs or feet and any activity bending or turning the back, trunk or neck.
It is worth examining the Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (the Guidelines) as contained in the Guides to Social Policy Law, Social Security Guide, noting, as was established by Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645 that the Tribunal will apply Ministerial policy, unless there are cogent reasons not to do so.
Under the heading, ‘Rating multiple impairments resulting from a single condition’,
the Guidelines note that ‘a single medical condition may result in multiple functional impairments which can be assigned ratings from more than one Table.’ It also cautions that:
… When using more than one Table to assess multiple impairments resulting from a single medical condition, care must be taken to ensure that the different Tables are being used to assess separate functional impairments and not the same functional impairment…the same impairment must not be assigned an impairment rating under more than one Table.
In the Guidelines to Table 1 – Functions requiring Physical Exertion and Stamina, it states ‘Table 1 is … used where a person has a functional impairment when performing activities requiring physical exertion or stamina … ’ Under the heading ‘Impairments that should not be assessed using Table 1’, the Guidelines state:
Restriction of physical activity due to musculo-skeletal conditions, e.g. severe arthritis, spinal problems, unless the musculo-skeletal Tables 2, 3 or 4 do not sufficiently capture the impairment from any associated impact on physical exertion and stamina.
Assessors need to be mindful not to overstate the level and nature of impairment. Musculo-skeletal conditions can be expected to involve some level of ongoing pain and reduced stamina in addition to a loss of dexterity/flexibility which would all be factors in determining the level of severity of the impairment. This is more evident when assessing a person's ability to undertake the actions described on a repetitive basis rather than a one-off action.

Dr Egesi reported that the Applicant was unable to walk more than 200 metres,
suffered from poor exercise tolerance and required use of a walking aid (Exhibit R1, PT42, p 208). During the hearing the Applicant stated (Transcript, p 22 at [40]):
The most problem was mobility. I can wash my hair. I don’t need to reach up to pick anything off a shelf. My deal is walking.
The Tribunal notes that in her written submission, the Applicant states that she told the AAT1 she could barely raise her hands high enough to wash her hair (Exhibit A3, p 6).
When asked how she managed to walk to train station 900 metres from her house,
the Applicant replied (Transcript, p 18 at [20] and [45]):
With probably about four breaks, five breaks. To take and rebalance. To take and chance pressure in my back and that. …
I walk where I need to go. I have to take and figure in my distance at one to two kilometres of walking speed that compensates for the pace that I walk.
And also for me having to stop and deal with pain. …
The Applicant spoke broadly about managing her condition, stating (Transcript, p 36 at [5]):
… Riding the bus, riding the train, you do what you have to do. You exchange one pain for another all the way through. It’s like me sitting here. I shift from left to right, I bend forward, I lean back. When I stand my body does it naturally. I shake. …
The Secretary has referenced the Applicant’s evidence in the AAT1 that (Exhibit R3, p11 at [5.38(e)]):
‘picking things off the floor is difficult but she manages activities at table height’
On this basis, and with regard to Dr Egesi’s medical report and the JCA report,
the Secretary has submitted that the Applicant met descriptor 1(c) of a moderate impairment rating under Impairment Table 4, that the Applicant was unable to bend forward to pick up a light object placed at knee height.
The Tribunal respectively disagrees: ‘picking things off the floor is difficult’ is not the same as ‘unable’. It appears more consistent with descriptor 1(b) of a mild functional impairment rating under Impairment Table 4. This has an impairment rating of five.
With respect to Impairment Table 3, the Secretary has submitted that only permanent conditions can be rated under the Impairment Tables. The Secretary has referenced
Dr De Mello’s report of 25 August 2019, which points to a diagnosis of sero-negative rheumatoid arthritis. The symptoms include pain in the hands, elbows, shoulder, neck, hips and knees (Exhibit A8, p 12 and Exhibit R3, p 11 at [5.42]). There is also peripheral neuropathy, likely fibromyalgia and chronic fatigue like syndrome listed in a referral by
Dr L MacKinnon (Exhibit A10).
The Secretary has contended that, at the time of cancellation, these were from a
non-permanent condition (that is, not fully diagnosed, treated or stabilised) and were affecting the Applicant’s lower limbs (Exhibit R3, p 12 at [5.45] and [5.47]).
While Dr Egesi reports that the Applicant’s chronic lower back pain condition results in impairment affecting the Applicant’s walking distance, the Secretary submits that Dr Egesi has not reconciled how the impairment results from the lumbar spine condition as opposed to the other conditions (peripheral neuropathy, fibromyalgia, chronic fatigue like syndrome and rheumatoid arthritis conditions) …
…
The Secretary submits that the Tribunal, on current evidence, cannot distinguish the impairment on lower limb function resulting from the permanent condition as opposed to the non-permanent condition at the cancellation date. Accordingly, the Tribunal cannot be satisfied that any impairment results from the lumbar spine condition as opposed to the non-permanent lower limb conditions. …
It may prove to be the case, after further examination, that those conditions also affected the Applicant’s lower limb functions. However, at the time of the cancellation, the Applicant’s functional impairments relating her lower limb function are consistent with long standing lower pain back and referred leg pain. The impacts described by the Applicant and Dr Egesi appear consistent with the moderate functional impacts on activities in Impairment Table 3, that is she unable to walk far, is able to use public transport and can move around independently using walking aids. The moderate functional impact has a rating of 10 points.
Cervical Spinal Condition
The Applicant also claims to have cervical spine condition, resulting from an incident in 2008 when she attempted to lift her partner from the ground. On 24 November 2009,
the Applicant underwent a radiograph of the cervical and lumbar spine after reporting pain in that area (Exhibit A11). The Applicant stated that (Transcript p 23, at [15]:
… it wasn’t major at that time. It has progressively gotten worse over time.
As a result, the Applicant states she is unable to turn or bend her neck (Transcript p 23,
at [20]):
… It’s gotten that bad. I think I fell asleep onboard the aircraft in an upright position. And it took and exacerbated from there. Everything I did prior to that was limited but not to the point that it is after – since then.
On 14 June 2019, the Applicant underwent a radiological scan of her cervical spine,
which found degenerative changes in the cervical spine and severe joint arthropathy (Exhibit A13). The Applicant’s cervical spinal condition is also noted in a medical report from Dr De Mello, which is dated 25 August 2019 (Exhibit A8, pp 4-5). It is also mentioned in correspondence dated 15 July 2019 between Mr Zachary Conoghan, a physiotherapist, and Dr Egesi, which notes that the movements were limited by pain (Exhibit A12).
The Tribunal is limited to considering the Applicant’s condition on 4 January 2019 and can give no weight to reports produced several months later. There is no evidence before the Tribunal that at the time of the cancellation of the DSP, the cervical spine condition was permanent, that it was fully treated, fully diagnosed and stabilised. There is no reference to the condition in Dr Ugesi’s medical report or in the JCA.
Other conditions
Dr De Mello’s report of 25 August 2019 also lists rheumatoid arthritis and irritable bowel syndrome (IBS) (Exhibit A8 pp 11, 14). There are referrals, dated 9 September and
24 October 2019, from Dr Lewis MacKinnon, citing peripheral neuropathy, a long history of back pain and likely fibromyalgia and chronic fatigue like syndrome (Exhibit A10).
There is a report dating from 27 September 2012 from Dr D.R. Langlands that notes the Applicant said she had been diagnosed with inflammatory arthritis in 1991, however he concluded (Exhibit R1, PT21, pp 155-156):
I suspect that this lady’s problems are predominantly those of mechanical and degenerative changes in her back with referred discomfort. I don’t see evidence today of active inflammatory synovitis …
Dr MacKinnon’s referral noted the ‘RF’ (rheumatoid factor) was normal (Exhibit A10).
There is no evidence before the Tribunal that the condition was fully diagnosed, treated or stabilised at the time of the cancellation, therefore it cannot be assessed against the Impairment Tables.
With respect to the IBS, the Applicant underwent a colonoscopy in January 2015 which found diverticular disease (Exhibit R1, T126, p 175), which can be similar to IBS.
However, there is no further evidence before the Tribunal that would allow it to consider the condition as fully diagnosed, treated or stabilised at the time of the cancellation.
There is no evidence before the Tribunal that the peripheral neuropathy, fibromyalgia or chronic fatigue like syndrome was fully diagnosed, treated or stabilised at the time of the cancellation, therefore these cannot be assessed against the impairment Tables.
This is not to suggest that the Applicant was not suffering from a constellation of conditions at the time of the cancellation, rather that it has not been established that these are permanent within the meaning of the Determination. It may also be that the Applicant’s conditions have worsened since the cancellation date, which was nearly two years before her hearing before the Tribunal. It is worth noting Member Breen’s observation in
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922:
[34]… If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application …

Psychological conditions
While living in the USA, the Applicant was a patient of Dr Raymond Finn, a clinical psychologist. In correspondence dated 23 January 2001, Dr Finn reported the Applicant suffered from ‘episodic depression’ and ‘gender identity disorder’ (Exhibit R1, T6, p 112).
The Applicant stated at the hearing that (Transcript p 11, at [45]):
As to the mental, yes, it was fully diagnosed. If you look at the letterhead from Dr Finn, he is a clinical psychologist as well as a forensic psychologist, which he states that he has taught me different ways of coping, et cetera, to handle the chronic depression …
On 13 December 2008, psychiatrist Dr Navneet Johri found (Exhibit R1, T12, p138):
There are depressive symptoms not accounting for a formal diagnosis.
I would best consider this a grief reaction.
The Applicant stated during the hearing that (Transcript p 12, at [40])
… I had both depression and grief at the time because I had lost my partner in the end of 2008, and that’s when it really flared, and it has continued. My partner was everything to me, and it still hurts. I feel that the government failed my partner and actually killed my partner.
On 26 August 2009, Mr Carl Graham, a clinical psychologist with the Fremantle Hospital Pain Medicine Unit, provided the following assessment of the Applicant (Exhibit R1, PT6,
p 146):
This patient presented with moderate depressive symptoms and high pain related anxiety. There was a substantial overlay of psychosocial distress and Erika appears to be socially isolated.
The Medical Report prepared for the Applicant’s DSP review for portability by Dr Egesi reported depression and anxiety (Exhibit R1, PT42, p 209).
Dr De Mello in his 25 August 2019 report stated the Applicant had PTSD, depression and anxiety, listing Dr Finn, Dr Johri and Mr Graham as the relevant specialists (Exhibit A8).
On 27 September 2019, nine months after the cancellation date, Dr Simon Darn, psychiatry registrar, provided the following assessment of the Applicant (Exhibit A7, p 1):
Historical diagnoses of PTSD, anxiety and depression. Erika’s mood and anxiety symptoms are increased currently in the context of stressful event and grief. …
It is difficult to establish the Applicant’s mental health condition on the cancellation date.
Mr Graham’s assessment of moderate symptoms was nearly a decade earlier, Dr Johri’s assessment of a grief reaction, eight months prior to that. Moreover, as the Respondent has submitted, a diagnosis of PTSD or anxiety has not been confirmed by either a clinical psychologist or psychiatrist (Exhibit R3, p 17 at [5.69]).
While it is likely that the Applicant was experiencing some impairment from a psychological condition at the time of the cancellation, the Tribunal cannot find that it was fully diagnosed, treated or stabilised based on the evidence available.
INTERNATIONAL AGREEMENT
The Applicant requested assessment under the social security agreement between the Government of Australia and the Government of the USA in Schedule 13 of the International Agreements Act.
The Agreement allows an Applicant to add periods of residence in Australia and a third country (in this case, the USA) so minimum requirements for a payment are met.
The Applicant meets the eligibility criteria under the Social Security Act, so it is unclear how the International Agreements Act would be of assistance. Moreover, art 2(1)(b)(i)(B) of the USA Agreement relates to DSP for the severely disabled: the Applicant does not meet the criteria for the DSP.
CONCLUSION
The Tribunal finds that the Applicant had a total impairment rating of 15 points across two Impairment Tables at the date of cancellation and therefore did not satisfy s 94(1)(b) of the Act.
The Applicant did not qualify for the DSP on the cancellation date, therefore it follows that she is not eligible for unlimited portability.
The Reviewable Decision, being the decision of the AAT1 dated 13 June 2019 is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

.........................[sgd]...............................................
Associate
Dated: 12 February 2021

Date(s) of hearing: 17 November 2020

Applicant: In person

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 216

12 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	17 November 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers