Re Yazdari and Secretary, Department of Social Services

[2014] AATA 34

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/0297

Re

Mohammad Yazdari

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne
Professor P L Reilly AO (Member)

Date 28 January 2014

Place Adelaide
The Tribunal affirms the decision under review.

..........................[Sgd]..............................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - application for disability support pension rejected - physical, intellectual or psychiatric impairment - whether impairment rating of 20 points or more existed under the Impairment Tables - whether there was a "continuing inability to work" - Job Capacity Assessments conducted - reports of medical practitioners and clinical psychologists considered - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1), (2), (3), (3C), (4) and (5) and Schedule 1B

Social Security (Administration) Act 1999 (Cth) s 4
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938

Rajski v Scitec Corporation Pty Ltd [(unreported, NSWCA, Kirby, Samuels and Mahoney JJ, 16 June 1986)]
SECONDARY MATERIALS
Introduction to the Impairment Tables

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION
Senior Member R W Dunne
Professor P L Reilly AO (Member)
28 January 2014
INTRODUCTION

Mohammad Yazdari (“applicant”) applied to the respondent for a disability support pension (“DSP”) on 16 July 2012. Following a Job Capacity Assessment (“JCA”), his application was rejected by the respondent and affirmed by the Social Security Appeals Tribunal (“SSAT”). The applicant has applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Mr Yazdari was self-represented and the respondent was represented by Mr A Schatz (from the Program Litigation and Review Branch, Department of Human Services). The Tribunal admitted into evidence the T-documents,[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
[1] Exhibit R1
·various documents that were Annexures (Numbered 1-10) to the respondent’s statement of facts, issues and contentions, comprising;
oAnnexure 1 – medical certificates of Dr Bianca dated 19 February 2013, 14 May 2013 and 12 August 2013;[2]
oAnnexure 2 – letter from Mr Fallo, Clinical Psychologist, dated 14 March 2013;[3]
oAnnexure 3 – medical report by Mr Fallo dated 2 April 2013;[4]
oAnnexure 4 – medical report by Dr Bianca dated 3 April 2013;[5]
oAnnexure 5 – letter from the Department of Immigration and Citizenship dated 13 June 2013;[6]
oAnnexure 6 – JCA Report for assessment conducted on 19 June 2013;[7]
oAnnexure 7 – letter from Dr Bianca dated 28 June 2013;[8]
oAnnexure 8 – letter from Mr Fallo dated 2 August 2013;[9]
oAnnexure 9 – letter from Dr Bianca dated 6 August 2013 and enclosed medical reports/letters;[10] and
oAnnexure 10 – report by Dr Minogue, Specialist Occupational Physician, dated 8 August 2013.[11]
[2] Exhibit R2, Annexure 1
[3] Exhibit R2, Annexure 2
[4] Exhibit R2, Annexure 3
[5] Exhibit R2, Annexure 4
[6] Exhibit R2, Annexure 5
[7] Exhibit R2, Annexure 6
[8] Exhibit R2, Annexure 7
[9] Exhibit R2, Annexure 8
[10] Exhibit R2, Annexure 9
[11] Exhibit R2, Annexure 10
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in considering s 94 of the Social Security Act 1991 (“Act”) which is relevant in the present case, is whether Mr Yazdari was qualified to receive DSP during the period from 16 July 2012 or within 13 weeks thereafter, namely 15 October 2012 (“Claim Period”). As the claim for DSP was lodged after 1 January 2012, the Rules set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables Determination”) apply. These Rules relate to the application of the Impairment Tables for the purposes of s 26(3) of the Act.
In respect of the Claim Period, the respondent accepted that Mr Yazdari had a physical, intellectual or psychiatric impairment. The respondent did not accept:
(a)that the impairment attracted an impairment rating of at least 20 points under the s 94(1)(b) of the Act; and
(b)that Mr Yazdari had a “continuing inability to work”, because of his impairment, within the meaning of s 94(1)(c)(i) and s 94(2), (3), (3C), (4) and (5) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i) the person is under 35 years of age;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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)--the person has actively participated in a program of support within the meaning of subsection (3C); 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.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
…
Active participation in a program of support
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
…
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
Other definitions
(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.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
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.
…”
IMPAIRMENT TABLES DETERMINATION
The Impairment Tables Determination[12] applies to the applicant’s claim for DSP. This Determination relevantly provides in Part 2:
[12] Exhibit R1, pages 32-39
“6 Applying the Tables
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.
Note: For additional information that must be taken into account in applying the Tables see section 7.
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
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
….”
BACKGROUND
The material facts in this case are not in dispute and are largely taken from the respondent’s statement of facts, issues and contentions. The applicant was born overseas. He reportedly fled from Afghanistan to Pakistan and first arrived by boat on Christmas Island on or about 22 December 2009. He was placed in immigration detention and was granted a Refugee and Humanitarian (subclass 866) visa in April 2010. In a letter dated 13 June 2013, the Department of Immigration and Citizenship confirmed that an application for a Refugee and Humanitarian (Class XB) visa for a number of the applicant’s family members had been refused.[13]
[13] Exhibit R2, Annexure 5
The applicant underwent a JCA for “JCSI Special Needs” purposes on 13 April 2010 and, according to the JCA Report,[14] no medical conditions were identified at that time. He participated in a second JCA, conducted by an Accredited Exercise Physiologist, on 23 June 2011. He was assessed as suffering from two medical conditions at that time, which were described as “depression” and “osteoarthritis” in the relevant JCA Report.[15] The assessor considered the “depression” to be temporary based on the limited medical evidence available and, while he assessed the “osteoarthritis” as being permanent, it was not considered to be fully diagnosed, treated and stabilised. Accordingly, no points were assigned under the Impairment Tables.
[14] Exhibit R1, pages 138-141
[15] Exhibit R1, pages 142-147
The applicant then applied for DSP (16 July 2012) and he subsequently provided a supporting medical report from Dr Robert Bianca dated 23 July 2012.[16] In Dr Bianca’s report, he indicated that the applicant was suffering from four separate medical conditions, namely “major depressive disorder with anxiety”, “osteoarthritis- lumbarsacral spine/knees/feet”, “GORD/gastritis” and “haemorrhoids” (“Claimed Conditions”). Dr Bianca considered that, at that time, the applicant’s claimed GORD/gastritis and haemorrhoids were generally well managed conditions that caused only minimal or limited impact on ability to function. He also indicated that he expected “significant improvement” of both of those conditions. However, Dr Bianca considered the applicant’s claimed depressive and osteoarthritis conditions to have a significant impact on his ability to function, with each of those condition expected to persist for more than 24 months. He indicated that the impact of the depressive illness on the applicant’s ability to function would remain unchanged over the next two years, whereas he expected the osteoarthritis to deteriorate over the same period.
[16] Exhibit R1, pages 148-155
A third JCA was conducted, about two and a half weeks after the commencement of the Claim Period, on 2 August 2012. However, the resulting JCA Report[17] was specifically prepared for the DSP claim, unlike the two preceding JCA Reports. This Report was also prepared by an exercise physiologist with contributions from a registered psychologist. The assessors concluded that none of the Claimed Conditions were fully diagnosed, treated and stabilised and that, as a result, no points could be assigned under the Impairment Tables. The respondent decided to reject the DSP claim on 13 September 2012 on the ground that the Claimed Conditions attracted less than the required 20 points under the applicable Impairment Tables. The decision-maker expected the applicant’s GORD to improve within two years and did not consider any of the other Claimed Conditions to be fully diagnosed, treated and stabilised.
[17] Exhibit R1, pages 156-162
When the applicant applied for a review of the respondent’s decision, a further JCA was conducted on 2 October 2012. The resulting JCA Report[18] was submitted for consideration in the context of the DSP claim. It took into account a range of medical evidence including a letter prepared by a clinical psychologist (Mr Tindaro Fallo) dated 27 August 2012.[19] Mr Fallo relevantly stated, “among other things”:
“In my opinion, Mr Yazdari meets the DSM-IV criteria for a diagnosis of Major Depression, which incapacitates him for any form of employment for which he is currently suited. His prognosis is to be considered poor as he is unable to reunite with his family and this will continue to contribute to his depressive illness.”
Based on the opinion expressed in Mr Fallo’s letter, the authors of the Job Capacity Assessment Report concluded that the applicant’s claimed depressive illness could be considered permanent and fully diagnosed. However, the contributing psychologist was of the view that this condition could not be considered fully treated or stabilised as:
“… Mr Yazdari could benefit from a specialist services [sic] such as STARRS, has had very limited treatment by a psychologist to date and the fact Mr Yazdari reported he is not taking his medications as prescribed by the GP (i.e. intermittently as he sees fit).”
As none of the Claimed Conditions were considered to be fully diagnosed, treated and stabilised, it was again decided that no impairment points could be assigned under the Impairment Tables.
[18] Exhibit R1, pages 164-171
[19] Exhibit R1, page 163
Dr Bianca prepared a further medical report for the applicant on 5 October 2012.[20] His opinion regarding the applicant’s GORD and haemorrhoids remained practically unchanged. He indicated that he expected the applicant’s osteoarthritis to remain unchanged or to deteriorate over the next two years and, despite any interventions, osteoarthritic changes were likely to produce chronic issues and with time worsen. He also indicated that he expected the functional impact of the applicant’s claimed depressive illness to remain unchanged for the next two years and was unlikely to respond to treatment “as the main triggers relate to separation from family/fear for family’s well-being & health of son (renal failure)”.
[20] Exhibit R1, pages 172-179
The respondent’s decision made on 25 October 2012 (by an Authorised Review Officer) found that the applicant was not qualified to receive DSP because his claimed impairments did not attract a minimum of 20 points under the Impairment Tables, and because he did not have a “continuing inability to work” as required by s 94 of the Act. In particular, the decision-maker found that none of the Claimed Conditions could attract a rating point under the Impairment Tables because they were not fully treated and stabilised. The decision-maker also found that the applicant had not actively participated in a Program of Support for at least 18 months in the three years before 16 July 2012, as required by the Act. When the applicant applied for a review of the respondent’s decision, the SSAT affirmed the decision and ultimately concluded that the applicant’s claimed conditions did not attract at least 20 points under the Impairment Tables, and that he was therefore not qualified to receive DSP.
EVIDENCE
Evidence of Mr Yazdari

It was Mr Yazdari’s evidence that he left Afghanistan for Pakistan 35 years ago after being ill-treated because he was a member of a minority group. He worked for a printing company in Pakistan between approximately 1986 and 2009 when he left Pakistan to travel to Australia. He decided to travel to Australia without his family because he thought the journey would be too dangerous for them, and also because he had “no money”. On the way to Australia, the boat he was travelling on nearly sank and everyone on board thought they would drown (“Boat Incident”). Shortly after the Boat Incident he started having nightmares about boats sinking and he still had them. Television shows or stories about asylum-seeker boats sinking reminded him of the Boat Incident and that made him upset. He had lost interest in things he used to enjoy and had felt distant or separated from other people. The feelings he experienced after the Boat Incident upset him and affected his relationships and his ability to work. He said he was given drugs when he was in immigration detention that he said were to “calm him down” and “help him sleep”. He continued taking the drugs he was given in immigration detention after he was released. He also obtained some other drugs during his later trips back to Pakistan. On his second trip back to Pakistan between August 2011 and March 2012 he found out that his son was seriously ill and had regular dialysis for his kidney problems.
Mr Yazdari said he couldn’t recall whether an interpreter was present at each of the Job Capacity Assessments he participated in after his release, but he did not dispute the references to the use of an interpreter in the Job Capacity Assessment Reports. There was no interpreter present during his first consultation with Dr Bianca on 23 May 2011, and no interpreter was present during any of his other meetings with Dr Bianca. He communicated with Dr Bianca using a combination of gestures and body language along with the very limited English he had been able to learn. He didn’t tell Dr Bianca (or he didn’t recall telling Dr Bianca) that he was taking the drugs he was given in immigration detention or the drugs he got in Pakistan, in addition to the medication Dr Bianca had prescribed. He also didn’t recall telling Dr Bianca he had not been taking the medication he had prescribed in the prescribed way. He was put on Avanza by Dr Bianca, but he didn’t like certain side effects and he stopped taking the drug at times because of how it made him feel. He didn’t recall telling the assessor who conducted the Job Capacity Assessment on 2 August 2012 that he hadn’t been taking his medication the way Dr Bianca told him to.
In cross-examination, Mr Yazdari did not dispute that Dr Bianca would not have rated him as “very compliant” on three separate occasions if Dr Bianca knew he was not taking his prescribed medication in the manner prescribed and that he was taking other drugs that Dr Bianca did not prescribe. In relation to his meetings with Mr Fallo, there was sometimes, but not always, an interpreter present during the meetings. He thought Mr Fallo might have told him to stop taking Avanza. He said he also thought that his musculoskeletal condition was worse at the time of the hearing than it was when he claimed DSP in 2012, and it was harder for him to walk, sit and stand now than it was then.
He said he caught the tram to the Tribunal for the hearing and he walked from his home to the tram stop that was either part of or in the vicinity of the parklands on South Terrace. He got off the tram at the Pirie Street stop in King William Street and walked to the hearing without stopping until he reached the Tribunal building. He did not need any help cleaning his teeth, showering or washing dishes when he claimed DSP in July 2012, and he still didn’t. But, he said his back condition had become worse since July 2012 and he had trouble sleeping, walking and sitting. He said he lived with some younger men after being released from immigration detention, but he would not describe them as friends. When he was taken to a number of references in the Job Capacity Assessment reports to him “living with friends”, he claimed they were flat mates, not friends and he didn’t go out with his flat mates at all. He sometimes did the cooking for his other house mates.
Mr Yazdari did not appear to recall attending the Job Capacity Assessment on 2 August 2012 at Centrelink Kilkenny. However, he ultimately accepted that he used the stairs instead of a wheelchair access ramp. He walked to and from Centrelink Kilkenny to attend the Job Capacity Assessment after catching public transport to the nearest railway station. He did not appear to dispute the assessor’s claims about observing him using stairs, moving from sitting to standing and walking down the road for more than 500 meters without any apparent difficulty. He said he never saw a psychiatrist at the Royal Adelaide Hospital, only Mr Fallo. He said he had no back trouble in Pakistan or during his voyage to Australia, but he was often dizzy and seasick and spent a lot of the voyage lying down.
Evidence of Mr Fallo
In giving his evidence, Mr Fallo said that, apart from a referral letter and mental health plan from Dr Bianca which did not give a proposed diagnosis, he was not provided with any other documents about the applicant before he first saw him on 31 July 2012. He said he formed his opinion that the applicant was suffering from “major depression” at the end of his first session with him. He did not perform a formal differential diagnosis in the manner specified in the Diagnostic and Statistical Manual of Mental Disorders because it would have been hard to do that through an interpreter, particularly where the interpreter did not stay for the full consultation.
He said he was unable to secure the services of an interpreter for the entire duration of his sessions with the applicant, but he thought the interpreter stayed for the important parts of his first meeting with the applicant. As the applicant spoke some English, he said he felt he was still able to continue when an interpreter was not present. He did not formally administer any psychological assessment tests like Depression Anxiety Stress Scales, the Kessler Psychological Distress Scale or the scales developed by Zung, Beck or Hamilton. However, he asked the applicant questions during his initial assessment on 31 July 2012 that were based on the types of questions used in those tests.
Mr Fallo said he primarily based his diagnosis on the history he took from the applicant during the consultation on 31 July 2012, as well as what he called “educated assumptions” he made about the applicant based on the fact he came to Australia as a refugee from Afghanistan. He agreed that the symptoms described in the third paragraph of his letter of 27 August 2012 could satisfy diagnostic criteria for PTSD, were it not for the fact that the applicant had not disclosed any event that might constitute a traumatic event under the DSM-IV-TR criteria. He accepted that the applicant might be suffering from both a major depressive disorder and PTSD. On the history he took, he considered the applicant’s psychological condition to be fully diagnosed by the end of the session on 31 July 2012. He said he did not tell the applicant to stop taking Avanza, but recalls the applicant telling him that he had already stopped taking his medication when he saw him on 31 July 2012 and that he kept medication he hadn’t been taking at home. He did not accept that referral to a psychiatrist was a reasonable treatment option because he thought it would be difficult to see a psychiatrist, given waiting times and the associated expense. He did not think that referring the applicant to STTARS would be a reasonable course either because he did not think the applicant would be able to access a psychiatrist through STTARS because of the issues he had already identified regarding availability, waiting times and associated expense.
Evidence of Dr Bianca
It was Dr Bianca’s evidence that he first met the applicant on 23 May 2011. He could not recall whether an interpreter was present during his meetings with the applicant, but the applicant was probably correct to say there was never an interpreter present. Although an interpreter was not present at the time of his consultations, he felt he was able to communicate with the applicant using what little English the applicant knew at that time. He formed his view that the applicant was suffering from a depressive disorder before he referred the applicant to Mr Fallo and after seeing the applicant six or seven times. He said he relied on the accuracy of the history he had obtained from the applicant to form his view that the applicant suffered from a depressive disorder.
Dr Bianca did not recall the applicant telling him he was not taking the medication he had prescribed and that the applicant was taking other medication he had obtained in immigration detention and/or during trips to Pakistan. Dr Bianca did not know that the applicant told Mr Fallo he had stopped taking his Avanza by the time he saw Mr Fallo on 31 July 2012 or that he told Mr Fallo he had medication he had not taken at home. He agreed that, if he had been told these things, he would not have listed the applicant as being “very compliant” in his reports of 23 July 2012, 5 October 2012 and 3 April 2013. He agreed that if he had known the applicant was not taking his medication as prescribed, then that would also have affected his opinion on whether the medications he had prescribed were effective. He said that if he accepted the history given in the applicant’s oral evidence, then he considered that the applicant may well have suffered from PTSD rather than a major depressive disorder during the Claim Period.
Dr Bianca said that if he knew in 2011-2012 what he knows now, he would have approached things differently and would have been more inclined to refer the applicant to STTARS and/or a psychiatrist, and his view about the effectiveness of the medications he had prescribed to the applicant may have differed. He said he would not have considered the applicant’s psychological and musculoskeletal conditions to be fully diagnosed, fully treated and fully stabilised at that time. If the applicant did suffer from PTSD, rather than a major depressive disorder, then he would have been even more guarded about his prognosis and even less optimistic about him improving with treatment. He thought the most appropriate course would now be for the applicant to be referred for a full psychiatric review of his mental state, taking into account all of the available information, including the applicant’s oral evidence.
Evidence of Dr Minogue
In giving his evidence, Dr Minogue confirmed his opinion that the applicant’s musculoskeletal condition was not fully diagnosed, treated and stabilised during the Claim Period. He said the applicant was in the process of being referred to a specialist and the resulting specialist assessment was required to confirm the appropriate diagnosis and advise on reasonable treatment options. Even if he assumed that the musculoskeletal condition was fully diagnosed, treated and stabilised as some time during the Claim Period, he would not consider that any resulting functional impairment could have met the criteria for a rating of more than 0 points under Table 3, or more than 10 points under Table 4 of the Impairment Tables.
Evidence of Ms Hampson
In giving her evidence, Ms Hampson confirmed her opinion that any major depressive disorder that may have been suffered by the applicant during the Claim Period was fully diagnosed, but was not yet fully treated and stabilised. She said that only one type of antidepressant medication had been trialled with the applicant and it was commonly accepted that depressive illnesses that didn’t respond to one type of medication might well respond to another type. She said that taking medication intermittently, or taking it in combination with other non-prescribed drugs, could be quite dangerous and could actually have a negative effect on a person’s mental state. There were other reasonable treatment options available, including accessing the specialist and counselling services available through STTARS. If the history given during the applicant’s oral evidence was accurate, then he may well have been suffering from PTSD during the Claim Period, which would only strengthen her view that the applicant’s condition had not been fully diagnosed, treated and stabilised at that time.
Evidence of Mr Pateyjohns (JCA Assessor)
In giving his evidence, Mr Pateyjohns confirmed and expanded upon the points made in his Job Capacity Assessment Report. He said that, on 2 August 2012 at the Kilkenny branch of Centrelink, he had seen the applicant walk rapidly and freely for over 500 metres, including using stairs and transferring from sitting to standing without any apparent discomfort. The applicant told him that he did not take any medication except Paracetamol and denied having taken NSAIDs (Non-steroidal anti-inflammatory drugs) or analgesics. He said the applicant reported that he had only been taking Avanza “intermittently as he sees fit”, which were words he used to describe what the applicant said to him, rather than what the applicant actually said to him. He explained that he had checked some notes he took during the assessment on 2 August 2012 and he was confident that what he wrote in the Job Capacity Assessment Report accurately reflected what he saw and heard at that time.
CONSIDERATION
Is the applicant qualified to receive DSP during the Claim Period from 16 July 2012 to 15 October 2012?
In order to qualify for DSP, Mr Yazdari must satisfy the relevant requirements of s 94(1) of the Act. In respect of the Claim Period, the respondent accepted that Mr Yazdari had a physical, intellectual or psychiatric impairment. However, as is said in paragraph 4 of these reasons, the respondent did not accept:
(c)that the impairment attracted an impairment rating of at least 20 points under the Impairment Tables; and
(d)that Mr Yazdari had a “continuing inability to work”, because of his impairment, within the meaning of s 94(1)(c)(i) of the Act, when read with s 94(2), (3), (3C), (4) and (5) of the Act.
Impairment Tables – Psychological Condition(s)
In his medical report dated 23 July 2012, Dr Bianca reported that the applicant was suffering from “major depressive disorder with anxiety”. The Tribunal notes in passing that the medical certificates prepared by Dr Bianca on 19 February 2013, 14 May 2013 and 12 August 2013 indicated that he considered the applicant’s psychological condition to be “temporary” and it was “likely to show considerable improvement in 2 years”. The condition reported by Dr Bianca is included in the psychological condition(s) that are considered in the following paragraphs.
The respondent has submitted (with which submission the Tribunal agrees) that:
(a)the Impairment Tables are for assessing the degree of psychiatric impairment, not to assess the severity of psychiatric conditions;[21]
(b)an impairment rating can only be assigned to a psychiatric impairment if the condition causing that impairment is ‘permanent’;[22]
(c)a psychiatric condition is only ‘permanent’ if it has been fully diagnosed by an appropriately qualified medical practitioner such as a psychiatrist or, failing that, a general practitioner with input from a clinical psychologist;[23]
(d)while psychiatric conditions are diagnosed by reference to psychiatric symptoms, an appropriately qualified medical practitioner would usually differentiate between a diagnosed condition and the symptoms on which their diagnosis is based; and
(e)it is not possible to assess whether a psychiatric condition has been fully treated and stabilised without a proper diagnosis, which is essential for the development of a fully informed treatment plan.
[21] See paragraph 6(1) of the Rules in the Impairment Tables Determination
[22] See paragraph 6(3)(a) of the Rules in the Impairment Tables Determination
[23] See paragraph 6(4)(a) of the Rules in the Impairment Tables Determination
The respondent has further submitted (which submission the Tribunal notes and accepts) that the DSM-IV-TR was broadly accepted as the most authoritative manual for diagnosing psychiatric conditions in Australia during the Claim Period. While the DSM-IV-TR warns about the risks associated with applying it in forensic settings, it also helpfully states the following about the need to distinguish between diagnosed conditions and resulting impairment:
“… It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment of disability.”[24]
[24] See the DSM-IV-TR at page xxxiii.
During the course of the hearing, it became clear to the Tribunal that the term “Depression” is sometimes used by doctors or other health professionals to refer to mood disorders like “major depressive disorder”. However, the term can also be used to describe a symptom, or set of symptoms, that may result from any one of a number of distinct disorders like major depressive disorder,[25] adjustment disorder with depressed mood,[26] or even PTSD.[27] It seems this is why some health professionals use the term “clinical depression” instead of “depression” and why psychiatrists and clinical psychologists often prefer to use diagnostic terminology from the DSM-IV-TR. It became clear that Mr Fallo accepted this point during his oral evidence when he clarified his earlier reference to the applicant being referred to him for treatment of his “depression” by agreeing that he meant “depression” (with a little “d”) as a symptom or set of symptoms rather than “Depression” (with a big “D”) as in a diagnosable depressive disorder for the purposes of the DSM-IV-TR.
[25] See the DSM-IV-TR at pages 369-376
[26] See the DSM-IV-TR at pages 679-683
[27] See the DSM-IV-TR at pages 463-468, especially at page 467
Based on the available evidence including, in particular, the applicant’s oral evidence and the oral evidence given by Mr Fallo, Dr Bianca and Ms Hampson at the hearing, it appears to the Tribunal that the applicant may have been suffering from:
(a)a diagnosable (but undiagnosed) anxiety disorder such as PTSD; or
(b)a diagnosed mood disorder, namely, ‘major depressive disorder’; or
(c)more than one diagnosable psychological condition such as, for example, a PTSD and a major depressive disorder.
We note that no diagnosis of PTSD was made before, during or after the Claim Period. Accordingly, no PTSD suffered by the applicant could properly be said to have been fully diagnosed, treated and stabilised during the Claim Period and no points could be assigned to any resulting impairment under Table 5 of the Impairment Tables. We also note that, even if the applicant could be said to have suffered from a major depressive disorder alone and not a PTSD, on the evidence available (particularly the oral evidence of Dr Bianca, Mr Fallo and Ms Hampson) the major depressive disorder was not fully diagnosed, treated and stabilised at any time during the Claim Period. If the applicant was suffering from a PTSD and a major depressive disorder during the Claim Period, no PTSD or major depressive disorder was fully diagnosed, treated and stabilised at any time during that Claim Period. In these circumstances, no points could be assigned under Table 5 of the Impairment Tables.
Even if the applicant suffered from a fully diagnosed, treated and stabilised major depressive disorder during the Claim Period and no other psychological condition, no more than 10 points could be assigned under Table 5 of the Assessment Tables, having regard to the evidence of Mr Fallo[28] and the oral evidence of Ms Hampson. Moreover, no progression or exacerbation of a physical condition (or conditions) suffered by the applicant after the Claim Period could be used to award him DSP. As was said by Member Breen in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decision arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[28] Exhibit R2, Annexure 3 at pages 6 and 10

Also, in Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938 at [21]-[22], Deputy President Hack SC said:
“21. It is, I think, important to realize that ‘temporary’ is used by Centrelink in this context in a special sense. It is a shorthand way of describing a condition which is not, at that time, capable of being regarded as being permanent. That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.
22. It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.”
To summarise, in the Tribunal’s opinion, no impairment rating can be given to any psychological condition(s) suffered by the applicant during the Claim Period as he had no fully diagnosed, treated and stabilised psychological condition at that time.
Impairment Tables - Musculoskeletal Condition
In his medical report dated 23 July 2012, Dr Bianca reported that the applicant was suffering from “osteoarthritis-lumbersacral spine/knees/feet”. This condition is included in the musculoskeletal condition that is considered in the following paragraph.
On the evidence, particularly the evidence of Dr Bianca and Dr Minogue, the Tribunal is of the view that the musculoskeletal condition was not fully diagnosed, treated and stabilised during the Claim Period. It follows that no rating can be given to that condition under the Impairment Tables.
Impairment Tables – GORD and Haemorrhoids
Again, in his medical report dated 23 July 2012, Dr Bianca reported that the applicant was suffering from “GORD/gastritis and haemorrhoids”. These conditions are considered in the following paragraph.
On the available evidence, the applicant’s claimed GORD and haemorrhoids were not fully diagnosed, treated and stabilised at some point during the Claim Period. In these circumstances, the Tribunal is of the view that neither of these conditions can be properly assigned any points under the Impairment Tables.
Continuing inability to work
As the Tribunal has found that the applicant was not medically qualified to receive DSP at any time during the Claim Period, it is strictly not necessary to determine whether s 94(1)(c) of the Act, in relation to the applicant’s continuing inability to work, was met. However, for completeness, the Tribunal notes that under s 94(2)(aa) of the Act, where a person has not been assigned 20 points under a single Impairment Table and therefore does not have a “severe impairment” (as defined in s 94(3B)) the person is required to have actively participated in a Program of Support. As the applicant has not done so, he cannot be found to have a continuing inability to work regardless of what his actual work capacity might be. Moreover, even if one or more of the applicant’s conditions could properly be assigned points under the Impairment Tables (which the Tribunal does not accept), the applicant does not have a “severe impairment”, and has not actively participated in a Program of Support prior to the Claim Date as required by s 94(2)(aa) of the Act. As such, the applicant does not have a continuing inability to work for the purposes of s 94(1)(c) of the Act.
The Applicant’s Complaints
Mr Yazdari has made a number of complaints about his treatment since his arrival in Australia. One of his complaints has been that he was not represented by a lawyer at the hearing. He appears to be suggesting that the hearing was not “fair” as a result. An email from the applicant dated 12 December 2013 relevantly states:
“I want to say tribunal that if I lose the DSP case and I think so, because I don't have lawyer during hearing, please I say to tribunal/Authrity[sic] AAT send my case to court and I think the government of Australia did't[sic] provide me lawyer injustice and I cundam[sic] I request to legal aid for lawyer he reject my request, if I in Pakistan/Afghanistan they provide me free lawyer. I did't[sic] like lawyer but I helpless to do, lawyer always lies but court and tribunal trust him for exampale[sic] three year and half before the legal aid lawyer his name simon take my family case to come Australia and also say your family will come Australia about one and half year or two year and after three and half year reject my case, the lawyer take a big money from people and make the cae [sic]they want and the judges and tribunal trust him. One thing I say before and now many offices that I disable to work and can't and never work any thing happend[sic], work is good for man give money, don't wasit[sic] my time and government of Australia time and a lot of money. I trust to this tribunal and they trust evdance[sic] and did't[sic] trust on me and I once again say I sheia muslim in God I trust that all my problems truth. …”
In submissions, the respondent has identified the provisions in the Administrative Appeals Tribunal Act 1975 (“AAT Act”) which are most relevant to the approach the Tribunal should take when hearing applications involving unrepresented litigants. Those provisions are ss 2A, 32, 33(1)(b) and 39(1) of the AAT Act. Those provisions relevantly provide:
(a)that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s2A);
(b)that, at the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person (s 32);
(c)that a proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act, and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit (s 33(1)(b)); and
(d)that, subject to ss 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case (s 39(1)).
The respondent has also identified a number of cases in which courts and Tribunals have grappled with the role of the presiding judge(s) or Tribunal members in cases involving unrepresented litigants. For example, the general principles governing the role of the judge in civil proceedings involving an unrepresented litigant were stated in Rajski v Scitec Corporation Pty Ltd [(unreported, NSWCA, Kirby, Samuels and Mahoney JJ, 16 June 1986)] in which Samuels JA relevantly said (at page 14):
“In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. …At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. …An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent. …”
The Tribunal considers that the approach outlined above by Samuels JA to apply in court proceedings applies similarly and to the same extent in proceedings of the Administrative Appeals Tribunal.
The respondent has further submitted (and the Tribunal is of the view) that there is no proper basis for any suggestion that the Tribunal (or the respondent) has failed to properly discharge their respective obligations to ensure the applicant was given a fair and just hearing having regard to his particular disadvantages as an unrepresented litigant who spoke limited English. Both the Tribunal and the respondent have made a number of attempts to assist the applicant including:
(a)the Tribunal constituting a two member panel that includes a medical member who is a professor and neurosurgeon with considerable medical expertise;
(b)arranging for the applicant’s treating general practitioner and clinical psychologist to be called to give oral evidence so they could explain their opinions in more detail than they expressed in the various letters and short reports submitted in support of the applicant’s DSP claim;
(c)arranging for an interpreter to be present on both days of the hearing and ensuring that the interpreter made it clear to the applicant that he could ask questions or make comments from the bar table at any time;
(d)explaining the processes and procedures that would need to be followed during the hearing as well as the issues that the Tribunal would need to consider; and
(e)arranging for the respondent’s closing submissions to be in written form, with time allowed for the applicant to obtain a translation and any legal advice he may wish to seek, rather than hearing the respondent’s oral submissions as is often the case in hearings before the Tribunal.
While s 32 of the AAT Act grants the applicant the right to bring a legal or other representative to the hearing if that is what he wanted to do, it does not impose any obligation on the Tribunal or the respondent to obtain legal representation for him or to ensure he was legally represented before the hearing proceeded.
The Applicant’s Position
The Tribunal has sympathy for the applicant’s position. As Dr Bianca said in his evidence, if he knew in 2011-2012 what he knows now he would have approached things differently and would have been more inclined to refer the applicant to STTARS and/or a psychiatrist. It seems clear from the available evidence and the circumstances surrounding his case that it is likely to be to the applicant’s advantage to lodge a further claim for DSP in which the known evidence of his treating general practitioner and clinical psychologist could well support such a claim.
SUMMARY
As has been outlined above, Mr Yazdari’s Claimed Conditions were not fully diagnosed, treated and stabilised when he lodged his claim for DSP and during the Claim Period. The requirements of the Impairment Tables Determination are not satisfied and it is not possible to assign an impairment rating under the Impairment Tables pursuant to s 94(1)(b) of the Act. Moreover, the Tribunal finds that he does not have a continuing inability to work and thus does not satisfy the requirements of s 94(1)(c)(i) of the Act.
It follows that Mr Yazdari was not qualified for DSP at the time he made his claim and during the Claim Period.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne, Member Professor P Reilly
............................[Sgd]............................................
Administrative Assistant
Dated 28 January 2014

Date(s) of hearing 24 & 25 October 2013

Date final submissions received 12 December 2013

Advocate for the Respondent Mr Andrew Schatz

Solicitors for the Respondent Department of Human Services

[2014] AATA 34

28 January 2014

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Continuing Inability to Work

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0297
Re	Mohammad Yazdari
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member R W Dunne Professor P L Reilly AO (Member)
Date	28 January 2014
Place	Adelaide

Date(s) of hearing	24 & 25 October 2013
Date final submissions received	12 December 2013
Advocate for the Respondent	Mr Andrew Schatz
Solicitors for the Respondent	Department of Human Services