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

Robertson and Secretary, Department of Social Services (Social services second review) [2022] AATA 828 (22 April 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3613
Re:Mr Dean Robertson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:22 April 2022
Place:Melbourne

The Tribunal affirms the decision under review.
............................[sgd]............................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – whether impairment attracts rating of 20 points or more under Impairment Tables –- where program of support had not been undertaken – decision on the papers – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Secondary Materials
Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder and Complex Posttraumatic Stress Disorder (Australian Clinical Practice Guidelines, 2020)
Guide to Social Security Law, Department of Social Services
‘Post-traumatic stress disorder (PTSD)’, Health Direct (Web Page, November 2020) <ttps:// Agreement on Social Security between the Government of Australia and the Government of New Zealand
REASONS FOR DECISION
Ms A E Burke AO, Member
22 April 2022
INTRODUCTION

Mr Robertson (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (Cth) (the Act).
Mr Robertson lodged a claim for DSP on 21 April 2020. On 30 June 2020, Centrelink rejected Mr Robertson’s claim for DSP, as he had failed to provide sufficient medical evidence. On 2 December 2020, a Centrelink Authorised Review Officer (ARO) affirmed that decision. Mr Robertson sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the decision on 20 April 2021. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard on the papers by consent on 23 November 2021. Mr Robertson was self-represented, and Mr Christian Visser, a Senior Government Lawyer in the Litigation and Information Release Branch at Services Australia, appeared for the Respondent.
As part of its review on the papers, the Tribunal put questions to Mr Robertson about his functional capacity, particularly in relation to his overseas travel. He provided written responses and the Respondent subsequently provided submissions.
THE ISSUES IN CONTENTION
The issue in contention is whether Mr Robertson was qualified for DSP from the date of his claim, 21 April 2020, to a date 13 weeks thereafter, 21 July 2020 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Mr Robertson had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which results in impairments attracting 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and
(c)a continuing inability to work.
BACKGROUND
Mr Robertson is 47 years of age and a New Zealand citizen residing in Australia on a subclass 444 (temporary) visa. He last worked in 2007 prior to a workplace injury.
On 28 May 2015, Mr Robertson received a settlement in the sum of $225,000 for pain and suffering and pecuniary loss damages from his former employer MSS Security.
On 21 April 2020, Mr Robertson lodged a claim for DSP stating that his ability to work was affected by severe Post Traumatic Stress Disorder (PTSD) and he was not currently receiving any treatment.
On 4 May 2020, Centrelink conducted a medical eligibility assessment for Mr Robertson’s DSP claim and determined there was insufficient evidence to assess his medical eligibility. The assessor noted:
The medical evidence provided is 2 pages of a psychiatric report written in 2013, the report is incomplete in that the diagnosis is not reported and neither is the information relating to treatment. Nonetheless this report would be too old to enable an assessment of the current status of the medical condition particularly the current functional impact.
The customer should be encouraged to provide the whole report in addition to any evidence form treating health professionals which is more recent particularly within the last 24 months.
On 10 July 2020, Centrelink determined Mr Robertson was manifestly medically ineligible for the DSP, the rationale for the decision states:
The initial claim was rejected because insufficient information (partial historical report) was available to assess the condition. Additional information provided is the same report as before, with additional pages available. The information provided is of a historical nature. In the report it was noted that treatment had been inadequate at the time - the claimant had never been treated with medication and was to commence treatment specific to his diagnosis. There is no current information to inform on mental illness. As such, the PTSD condition is considered not fully treated and stabilised.
For mental health conditions to be considered fully diagnosed, optimally treated and stable, current (within the past 2 years) medical evidence from a psychiatrist or clinical psychologist would be required outlining: diagnosis, prognosis, confirming all reasonable treatment has been undertaken - with no significant improvement in function expected in the next two years, combined with detailed functional loss.
On 2 December 2020, a departmental ARO affirmed the earlier Centrelink finding on internal review. The ARO reasons for the outcome state:
To qualify for Disability Support Pension you must have medical conditions with a total impairment rating of 20 points. Impairment ratings assessed under the Impairment Tables apply to conditions that are fully diagnosed, treated and stabilised.
Your post traumatic stress disorder is diagnosed but not fully treated and stabilised. This means there is no impairment rating.
As you do not have an impairment rating of 20 points, you are not qualified for Disability Support Pension. This means the decision to reject your claim for Disability Support Pension was correct.
On 20 April 2021, the AAT1 affirmed the ARO decision to reject Mr Robertson’s DSP claim. Based on the medical evidence, the AAT1 determined that Mr Robertson’s psychiatric condition could not be assessed as fully treated and stabilised. The Tribunal therefore did not allocate an impairment rating under the Impairment Tables.
On 1 June 2021, Mr Robertson sought a review of the AAT1decision by this division of the Tribunal as he disagreed with the decision. He stated in his application for review:
The AAT seems to say that I should have or be receiving treatment. I was treated for several years. As the common law settlement of my injury was settled, Worksafe stopped payment for treatment. I have no money to pay for this myself. Regardless, there is no effective treatment for severe PTSD. It is simply an upsetting waste of time that provides income for others.
I think the assessment I am below the 20 point threshold is not consistent with any medical evidence.
The AAT asked me a question about a treating doctor.. As it took me over a month to read this request, the tribunal made its decision without answering my question or explaining what it needed from me.
People with psychological disabilities often struggle with this type of process.. If you are asking me questions, ease appreciate that my condition means it may take me weeks to be able to read your question... This is simply the nature of my disability.
Its unfair to not give me the time I need, when there is no real rush. Other than perhaps arbitrary time limits...
In its submissions in response to the Applicant’s additional information, the Respondent notes that, to date, no decision maker has considered Mr Robertson’s residential qualification for the DSP. For completeness, the Tribunal has addressed this issue in this decision, so that Mr Robertson can be fully appraised of all the hurdles in qualifying for the DSP.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP 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;
Paragraph 6(3)(a) (the Impairment Tables establish that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’.
Paragraph 6(4) of the Impairment Tables states that 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.
The introduction to each relevant Impairment Table state ‘Self-report of symptoms alone is insufficient and There must be corroborating evidence of the person’s impairment’.
Paragraph 6(5) of the Impairment Tables states:
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.
Paragraph 6(6) of the Impairment Tables states:
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.
For the purposes of paragraph 6(7) of the Impairment Tables, ‘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.
The Impairment Tables are function-based, rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 5(2).
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment ‘must be assessed on the basis of what a person can or could do; not on the basis of what a person chooses to do or what others do for the person’.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
Therefore, it is necessary to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) lists a number of exemptions to the general requirement that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment.
The POS Determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)       This subsection is satisfied in relation to a person and a program of    support if:
(a)       the program of support was terminated before the end of the             relevant period; and
(b)       the program of support was terminated because the person   was unable, solely because of his or her impairment, to   improve his or her capacity to prepare for, find or maintain   work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of          support if:
(a)       At the end of the relevant period, the person is participating   in the program of support; and
(b)       The person is prevented, solely because of his or her    impairment, from improving his or her capacity to prepare for,                    find or maintain work through continued participation in the               program.
Section 94(1)(e) of the Act sets out residential qualification for DSP, and requires that:
(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…
Subsection 7(2) of the Act provides that an 'Australian resident' is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), referred to as the “T documents”. Mr Robertson lodged additional medical reports and several submissions.
Does Mr Robertson have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP, a person must suffer from an impairment.
The Respondent accepts that Mr Robertson suffers from an impairment due to his mental health condition. The Tribunal finds that Mr Robertson was living with these impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second DSP qualification requirement is that the person’s impairment rating is 20 points or more under the Impairment Tables.
Does Mr Robertson have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?
Mental Health Condition
Mr Robertson submitted a lengthy submission for his AAT1 hearing:
REASONS FOR MY DISAGREEMENT WITH THE CENTRELINK DECISION
I believe Centrelink should have used all information it had at the time of my application for a Disability Support Pension ('DSP'). This information proved my entitlement. Centrelink has been aware of my disability for over a decade. Centrelink was aware the condition is settled, fully treated to extent it can be, and stable.
I would like the AAT to change the decision rejecting my claim
If there was confusion, or a belief that they did not have sufficient information, then the department should have contacted me with these details and certainly responded to my specific requests to provide information and clarify their understanding.
I appreciate the COVID restrictions created extraordinary demand for their services, increased mental health problems for staff and clients, as well as making the practical aspects of providing services extremely difficult. I think my claim was entirely valid though and if communicating with the department had been easier I am sure we could have resolved this early in 2020.
What brief reasons for their decisions I have been given amounted to the initial rejection for 'insufficient medical evidence being provided' and on review an assertion that my condition is 'not fully treated or stabilised'.
The former statement is misleading in relation to how much information Centrelink had to make their decision, regardless of how much I was able to provide with my application (given the file upload capacity of the Department's website failed to even accept one seven page pdf Word file), and the latter statement is simply false.
'Medical information'
Due largely to the nature of the Workcover system, there is quite literally thousands of pages of 'medical information' related to my disability. My disability originated in 2007. I think Centrelink learned of it at least from me in early 2008 (but there appears to have been communication from the Victorian Workcover Authority(' VWA') before then) when I first applied for a Low Income Healthcare Card ('HCC'). One HCC renewal resulted in my appearance before the AAT in 2014. In the past 15 years there have probably been over a dozen assessments of my condition. So called 'Independent Medical Examiners', the Medical Panels, The Heidelberg Repatriation Hospital, my treating GP, psychologist and psychiatrists, as well as one independent examination for the Supreme Court Common Law claim.
Of all the words I would use to describe the outcome of this gravy train ride of excessive exploitive profiteering, it would not be 'insufficient medical information'.
Certainly Centrelink does not have full copies of all these reports, even if that was somehow possible using their upload facility. There should be no need for them to hold, or even read such repetitive deeply personal medical information. They are however quite familiar with the consistent findings of all these reports, and the process and outcome of the Supreme Court claim. I was happy to at least, and was eventually able to upload, one full independent report for my application.
The serious injury certificate, needed before the Common Law Supreme Court injury claim could proceed, requires the injury to be stabilised, and impairment determinations made around permanence and severity. My assessment passed the same twenty point test used by Centrelink, using the same 2011 tables they use.
My disability, its severity and its permanence, is not in dispute and there is an excessive amount of medical information related to that. Centrelink was quite aware of this prior to my application. If Centrelink believes something to the contrary, then I would like to see evidence in support of that belief. They certainly should have advised me of it prior to rejecting my claim, given the department has previously advised me that there is normally smooth transitions from Workcover to Centrelink payments.
Given the passage of time since I was 'on Workcover', Centrelink could have asked me to attend an independent doctor for further examination and a test of my eligibility. I agreed to such a test. I suggested though that they had sufficient information, more than a decade's worth in fact. I made several requests, during and after the DSP application stage, as to what more medical information, if any, might be required; as the application is quite vague (as were Centrelink’s initial requests for more information), I received no answer, and only requests to phone them.
'not fully treated or stabilised'
I was discharged from the Austin Repatriation Hospital trauma programme in 2014 I believe. The Supreme Court matter was settled in 2015. There has been no treatment of my disability or payment of any medical or like expenses in relation to my Workcover claim, from 2015.
I believe there has been no subsequent document produced by the VWA in the past half-decade disputing my condition or asserting that some cure has somehow materialised. There has been no further treatment attempt during his time. There has been no major change. Centrelink is aware of all of these events.
I find the language of 'not fully treated or stabilised’, deeply insulting.
I have a permanent disability, with no known cure. If Centrelink wishes to claim that my disability has not been 'fully treated' over the past 15 years, where is the evidence? What treatment does Centrelink believe should have occurred, or still be ongoing, that will 'treat' my disability? Should I have to spend five, ten or twenty more years being 'treated' before Centrelink believes I qualify?
The same argument for 'stabilised' applies. My condition was resolved prior to the Supreme Court claim. As is common, it worsened after appearing, and then stabilised at a consistent high level of symptoms.
A comment about this sort of disability and the context
The two recent reports by The Victorian Ombudsman into the Victorian Workcover system found ingrained abuse of vulnerable injured people. This is a system whose primary focus is to remove injured workers off its books, to reward insurance company employees for getting a 'termo’ or terminate entitlements. The focus is not to treat people or see them healthy and able to work.
When my treatment was blocked and all payments stopped, I became bankrupt, destitute and homeless. I developed sever viral pneumonia, nearly died due to lack of medical treatment. I amazingly survived this horrendous system. Many do not, and suicide is a regular occurrence. Like many, the system worsened my condition. The initial refusal to treat me, as well as the poverty, has had devastating consequences on my life.
A problem with psychological injury and conditions, is the lack of competent medical or academic level knowledge within the community. This corresponds with a wider ignorance of mental health generally within Australia. While there seems to be successful treatment for single event trauma (stabbing, car crash, drowning etc), multi event and prolonged event trauma that results in PTSD, has proven extremely difficult or impossible to treat. Prisoners of war or kidnap victims who live with fear of death for days, months or years will likely never recover. I am in that severe PTSD category, and I will always be.
Centrelink is aware of my disability, its permanence, severity, stability, and lack of available treatment. It had plenty of people to ask for information about my condition, and my consent to release medical information. Centrelink could have simply asked me. Refusing my claim was not the correct decision. I would like the AA T to change the decision rejecting my claim.

Mr Robertson submitted another lengthy submission on 26 March 2021, which outlines his self-reporting of his mental health condition:
I have always been quite intelligent, and I probably still score into the top 1% of any test of that intelligence. Intelligence is not just irrelevant though, given the overwhelming influence of my subconscious and how my brain processes memory. Intelligence is simply damaging. Very rarely to people grasp that. People believe a psychological illness should manifest in some dopey monosyllabic moron before them.
Given the thousands of hours of free time I have had, I have read many books and article on the subject of the mind and trauma, and stories from trauma victims. So I have a very high level of undertaking of the theories of how traumatic events effect human beings, and can look back on my own behaviour to see how it fits with the damage to my mind. Like most other PTSD sufferers though, I have little to no ability to not just permanently stop the behaviour but alter the simplest reflex or strong desire to run and hide in any given situation.
I would much prefer to lack the cognitive ability to analyse my own damaged brain and failings to fix it. Being dumber would also make the passage of time easier to fill, perhaps with more hours of television watching.
I think I have said that Workcover stopped paying for medical expenses in 2015. They don’t write to you and say this, like the Victorian Ombudsman discovered, they are more subtle. They have a legal obligation to pay my ‘medical and like expenses’ effectively indefinitely. So to stop paying they simply stop processing invoices. When they are chased up they promise to look into it, then they don’t. If you’re a doctor with a receptionist who can nag them, you might be successful, but I suspect not. There are conciliation service or court options, but how many people have the strength or can be bothered?
….
The unintended result, you explained on Tuesday, is not much paper for the past five years
Going to a doctors, be it a forced ‘independent’ insurance company gravy train rider, or one of my own, did give me purpose for a day and filled many hours as I walked many kilometres to some destination. To some extent I did enjoy at least some contact with the world that way.
The end result is I do not have any recent Workcover paper for Centrelink or for the AAT. I have said I think there is enough written about me, but I could organise something; have myself assessed and evaluated again. I think it is reasonable for Centrelink to want this given the newness of my application and the date of the one report. This would of course be an upsetting experience for me. I think any recent exam would show improvements in some areas, worsening in others, and so essentially the same with a different date on the piece paper. It’s a waste of time, that will hurt me.
In October 2013 I had severe viral pneumonia in both my lungs. In January of 2014 I gave my consent for my xrays to be used by Melbourne University for the teaching of young doctors. It seems not only were images of the severity so unusual in someone so young, but in someone who was still alive.
I think by now it is not hard for you to understand how someone like me could both contracted and not be treated for a serious medical condition. In October it had been 18 months without any weekly payments. I was declared bankrupt, had been served with an eviction notice and was days away from homelessness. That year I had been getting my one meal a day by walking the 7 kilometres into the Salvation Army restaurant on Bourke St. Even when I got sick in winter, regardless of the weather, I still had to keep walking in every day.
No money for food obviously meant no money for medicine or antibiotics. My GP tried giving me the free samples provided by the drug companies, but they proved not strong enough. I was advised that I should be admitted to hospital to allow for intravenous administering of stronger medication, and to also allow for the possible need for a ventilator. I was never going to be strapped into a hospital bed.
On October 8 I had walked slowly into the city, had my meal, and was at RMIT to try and apply for a scholarship to get some money. They even paid for a meal allowance. I was sitting up on level seven of the fancy new building 80 on the west side of Swanston, reading, and working up the courage to go across to the main building. As I was scared of the lift, I eventually took the stairs and escalators to get down. Pausing for a couple of minutes on each level to catch my breath.
….
This is a portion of one of the letters that with help I wrote to the ethical standards unit
‘One. On October 8 2013 I was struck by a cyclist, attacked by his wife and then attacked by a gang of youths. The gang attack involved, amongst other things; kicking, kneeing and punching. Both while I was standing and on the ground. Then I was attacked by security staff. Arriving Victoria Police were in addition advised I had pneumonia with what little ability I had to whisper. Despite being aware of this, at no time did Victoria Police officers ensure I received medical assistance prior to handcuffing, detaining for several hours, transporting and questioning.
On 29 August 2013, Dr Nicole Phillips, consultant psychiatrist, examined Mr Robertson at the request of CGU Workers Compensation for an independent medical examination. Dr Phillips opines:
1. In my clinical opinion, is the worker's current treatment appropriate?
No. The worker requires treatment by a psychiatrist, including the use of appropriate medications for post traumatic stress disorder. Due to the impending homelessness, he needs a social worker/case manager from, something like, a community mental health clinic. He has been grossly mismanaged both from a medical perspective and also because of what has happened through the WorkCover process.
2. If, in my clinical opinion, the worker's current treatment is appropriate how long should this treatment be prescribed? '
Please see answer to number one.
3. What does the worker consider are the benefits of the current treatment?
The worker does find regular appointments with his psychologist useful and is also looking forward to more specific treatment for post traumatic stress disorder at The Austin Hospital.
Austin Health confirmed Mr Robertson attended Community Episodes (weekly outpatient treatment) from 15 July 2013 to 29 August 2016.
On 16 March 2015, Mr Guy Coffey, clinical psychologist at Austin Health, provided Mr Robertson with a support letter for his victims of crime claim, in it he opined:
He was initially assessed here in September 2013. At that time he was diagnosed as suffering from Post Traumatic Stress Disorder, generalised anxiety and clinical depression. It was noted that prior to the injury he had been high functioning with a stable and successful career working in an organisational role with a security company. His functioning declined precipitously after the injury and has not returned to work.
I have provided Mr Robertson with psychological treatment since November 2013; he has generally attended fortnightly. There has been a gradual improvement in his level of anxiety and depression; he has been successfully undertaking studies; he is a little less reclusive; and although often anxious in public places, he is less prone to feelings of panic.
On 30 April 2015, Dr Andrew Davaris, general practitioner at the Burnley Street Medical Clinic, provided Mr Robertson with a support letter for his victims of crime claim, in it he opined:
Mr Dean Robinson is a 40-year-old man who has been a patient this clinic since October 2007. His main medical issues are those of a severe post-traumatic stress disorder and a major depressive disorder. Mr Robinson sustained the PTSD while working for Chubb, now MSS security in October 2007.
…
He is currently under the care of Austin health by Dr Guy Kofi, a clinical psychologist, he has also been seen by Dr Nicola Phillips at the request of CGU which confirms the above findings and has also been under the care of Dr Andrew Velakoulis.
Was Mr Robertson’s condition fully diagnosed, treated and stabilised as at the qualification period?
The Respondent contended that Mr Robertson’s mental health condition was not fully diagnosed, treated and stabilised during the qualification period. Whilst the Respondent acknowledged Mr Robertson had supplied numerous medical reports attesting to his condition, they submitted, however, due to their age, the reports were of little utility in determining whether Mr Robertson qualified for DSP in the qualification period.
The Respondent contended the most thorough report submitted by Mr Robertson was that of Dr Phillips which was written approximately seven years prior to the qualification period. In their Statement of Facts, Issues and Contentions, the Respondent drew attention to Dr Phillips' report which found that Mr Robertson 'requires treatment by a psychiatrist, including the use of appropriate medications for post traumatic stress disorder’, ‘requires much more intensive medical treatment and social support than he is currently receiving' and was finding 'regular appointments with his psychologist useful'. Furthermore, he 'needs substantially more in the way of treatment'. Accordingly, based on the findings of Dr Phillips, the Respondent contended that Mr Robertson’s mental health condition was not fully treated or fully stabilised at the time of her report.
The Respondent submitted the report of Mr Coffey, dated 16 March 2015, indicated that psychological treatment had improved Mr Robertson’s functioning:
There has been a gradual improvement in his level of anxiety and depression; he has been successfully undertaking his studies; he is a little less reclusive; although often anxious in public places, he is less prone to feelings of panic.
The Respondent submitted that Mr Robertson was not engaged with any treatment for his mental health condition in the qualification period, relying on the following evidence that Mr Robertson:
(a)indicated on his DSP claim that he was not currently receiving treatment; and
(b)advised the AAT1 hearing he was not currently taking any medication for his mental health condition, had not seen his GP for three or four years prior to a recent visit for an ankle problem, and the last specialist he saw was at the Austin Hospital in around 2015.
The Respondent submitted it concurred with the decision of the AAT1 which found:
The tribunal considers the predominant feature for the current matter are the indications of the need, if not imperative, for active treatment and further management. The tribunal considers this has not been undertaken and remains applicable. As a result of the foregoing, the tribunal decided Mr Robertson's psychological condition cannot be assessed as fully treated and stabilised.
The Respondent contended that there was no evidence to support a finding that section 6(6) of the rules for applying the Impairment Tables applies to the Applicant, indeed the report of Mr Coffey indicated that the Applicant's functioning improved with psychological treatment.
The Respondent contended that there was no corroborating evidence of the functional impairment of Mr Robertson’s mental health condition in the qualification period, as the only corroborative evidence of his functional impairment was contained within reports written in 2013 and 2015, several years prior to the qualification period.
The Respondent contended that whilst Mr Robertson has a diagnosed mental health condition, the condition was not fully treated and stabilised in the qualification period and therefore no impairment points can be assigned for this condition.
The Tribunal found itself in a difficult position as the parties had agreed to the application being determined on the papers and numerous questions which could have assisted the Tribunal in its deliberations were left unanswered. For this reason, the Tribunal requested additional information from the Applicant. The Tribunal also determined in accordance with section 33(1)(c) of the AAT Act to ‘inform itself on any matter in such manner as it thinks appropriate’.
The Tribunal reviewed the literature on PTSD to gauge an understanding of the symptoms of the condition, their functional impact, and reasonable treatment options. Health Direct, a government-funded service, which provides quality health information and advice online, describes PTSD:
What is PTSD?
Post-traumatic stress disorder (PTSD) is a treatable anxiety disorder affecting around 3 million Australians at some time in their lives.
It happens when fear, anxiety and memories of a traumatic event don't go away. The feelings last for a long time and interfere with how people cope with everyday life.
What are the symptoms of PTSD?
Everyone is affected differently by PTSD. Symptoms can range from subtle changes in day-to-day life, withdrawal and numbness, to distressing flashbacks or physical anxiety.
Symptoms of PTSD may appear in the month after the traumatic event, but sometimes they can stay dormant for years.
…
What causes PTSD?
PTSD can be caused by experiencing or witnessing a traumatic event — an event that was potentially life-threatening or involved serious injury or sexual violence. The kinds of experiences that can potentially cause PTSD are:
·serious accidents
·natural disasters such as bushfires, floods and earthquakes
·living in a war zone, as a victim of war or a soldier
·sexual assault or threatened sexual assault
·serious physical assault
·seeing people hurt or killed
Although a relationship break-up or losing a job can feel devastating, these are not the kinds of events that usually cause PTSD.
Anyone can develop PTSD, but some people are at greater risk. There is probably a mixture of reasons explaining why some people develop PTSD while others do not.
Risk factors for developing PTSD include:
·repeated trauma, such as living in a war zone for a long time
·having had a mental illness in the past, like anxiety or depression
·a history of trauma or abuse in early childhood
·experiencing very severe trauma
·not having enough support afterwards
·extra life stresses after the trauma, such as the loss of loved ones, a home or a job
·the type of traumatic event, with rape or sexual assault being more likely to lead to PTSD than other events
PTSD is not the only mental health disorder caused by experiencing traumatic events, and depression and anxiety disorders may be just as common. Depression, generalised anxiety, PTSD and agoraphobia are the most common disorders that can be caused by traumatic events.
When should I see my doctor?
If you or someone you know appears to be experiencing symptoms of PTSD for longer than 1 month after a traumatic event, it's important to talk to a doctor or other health professional.
How is PTSD diagnosed?
The doctor will do a mental health assessment. This means they will ask about current symptoms, past history and family history. They may do a physical examination to check that there are no other reasons for the symptoms.
The doctor may refer to a psychiatrist or psychologist. They will ask how long, how often and how intense the symptoms are, and what happened during the triggering event.
For PTSD to be diagnosed, the symptoms need to be severe enough to interfere with someone’s ability to function at work, socially or at home. A full diagnosis cannot be made until at least 6 months after the trauma.
Often a diagnosis can come as a relief for someone who has been suffering debilitating symptoms because it provides an explanation and a basis for beginning treatment.
How is PTSD treated?
Many people have some symptoms of PTSD in the first couple of weeks after a traumatic event, but most recover on their own or with the help of family and friends.
For people whose symptoms last longer, PTSD is treated with psychotherapy or sometimes medicine, or both. Everyone's PTSD is different, so if you have PTSD you might need to try a few different types of treatment before you find something that works for you.
Psychotherapy for PTSD
There are different types of therapy that can be given by a psychologist or psychiatrist. You will need a referral from a doctor.
Some treatments include:
·trauma-focused cognitive behaviour therapy (TF-CBT), which involves working through memories of the trauma in a safe and structured environment, trying to change unhelpful beliefs and thoughts, and gradual exposure to triggers that are being avoided
·eye movement desensitisation and reprocessing (EMDR), which involves working through memories of the trauma while going through a series of eye movements
It may take between 8 and 12 psychotherapy sessions to begin to get relief from symptoms. For some people, the condition may have become chronic and can take much longer to treat. The sooner treatment begins, the better.
It may take between 8 and 12 psychotherapy sessions to begin to get relief from symptoms. For some people, the condition may have become chronic and can take much longer to treat. The sooner treatment begins, the better.
Medicines for PTSD
Medicine for PTSD is usually not recommended unless symptoms last longer than 4 weeks, or unless the symptoms are so bad that psychological treatments aren't working. Generally, it's best to start with psychological treatment rather than use medicine as the first and only solution to the problem.
Antidepressant medication may be recommended if symptoms do not completely go away with psychotherapy, or the person is unable to have therapy for some reason. Antidepressants can reduce anxiety and fear, depression and anger.
It's important to be aware of the possible side effects and to maintain regular contact with a doctor or mental health practitioner while you're using the medications.
Supporting someone with PTSD
Research has shown that support from family and friends is important in helping someone overcome the debilitating effects of PTSD. Couples or family therapy can help to fix damaged relationships. In some cases, family members may need to seek support of their own.
Complications of PTSD
Up to 8 in 10 people with long-standing PTSD develop other anxiety disorders, depression and/or substance abuse. Coping by trying to block out the memories with substance abuse can lead to addictions.
PTSD can prevent people from performing properly at work and make them isolated from relatives and friends. It can put great stress on families. This is why early support and treatment is essential.
The Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder and Complex Posttraumatic Stress Disorder outlines the following:
Psychosocial rehabilitation
Effective intervention for individuals with PTSD should not be limited to reducing symptoms; attention to social and psychological functioning is crucial. Psychosocial interventions help an individual compensate for the negative effects of disability by reducing some of the problems associated with PTSD, such as lack of self-care/independent living skills, homelessness, high-risk behaviours, interactions with family or friends who do not understand PTSD, social inactivity, unemployment, and other barriers to receiving various forms of treatment or rehabilitation.
There should be a focus on psychosocial rehabilitation from the outset. The practitioner should assess immediate needs for practical, social and vocational support and provide education, advocacy and referrals accordingly.
Psychosocial rehabilitation (recommendations made in the Guidelines for the treatment of adults)
GPP62 There should be a focus on vocational, family, and social rehabilitation interventions from the beginning of treatment to prevent or reduce disability associated with the disorder, and to promote recovery, community integration and quality of life.
GPP63 In cases where people with PTSD have not benefited from a number of courses of evidence-based treatment, psychosocial rehabilitation interventions should be considered to prevent or reduce disability, and to promote recovery, community integration and quality of life.
GPP64 Health care and rehabilitation professionals should be aware of the potential benefits of psychosocial rehabilitation and promote practical advice on how to access appropriate information and services.
GPP65 In cases of work-related trauma, management of any return-to-work process needs to occur in the context of a thorough risk assessment of the potential for exposure to further stressors, balanced with the potential benefits of return to work.
RR9 In adults with PTSD the impact of psychosocial rehabilitation on PTSD and social and occupational functioning should be investigated.

The Tribunal finds that Mr Robertson has undertaken considerable reasonable treatment for his accepted condition of PTSD from the date of his injury in 2007 until Workcover ceased payment for medical treatment in 2015.
The Tribunal considers that Mr Robertson’s PTSD was fully treated at the date of claim. The Tribunal finds that Mr Robertson had received treatment for this condition prior to his DSP claim which had not improved his functionality sufficiently to enable him to return to any form of employment. The Tribunal relied upon the evidence of the Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder which recognises that often people suffering from PTSD will not benefit from a number of courses of evidence-based treatment. The Tribunal also considered the information from Health Direct, which stated: ‘It may take between 8 and 12 psychotherapy sessions to begin to get relief from symptoms. For some people, the condition may have become chronic and can take much longer to treat’. The Tribunal considers Mr Robertson had received more than eight to twelve sessions of treatment with no significant improvement in his condition. The Tribunal finds that based on the evidence, further treatment may assist in improving Mr Robertson’s quality of life but would not result in any functional improvement.
The Tribunal finds that Mr Robertson’s PTSD was stabilised during the relevant period as the evidence suggests that any further reasonable treatment would be unlikely to result in significant functional improvement to a level enabling him to undertake work in the next two years. The Tribunal relied upon the report of Dr Phillips which outlines clearly the chronicity of Mr Robertson’s condition. Dr Phillips’ recommendation for ongoing treatment was to prevent any further deterioration in Mr Robertson’s mental health and social circumstances of chronic debt and homelessness:
11. Based on my clinical examination has the worker's work related injury resolved and does not require ongoing treatment, or is the condition still materially contributing to any incapacity for work and need for services?
What has happened to Mr Robertson is a travesty of justice. He developed a severe post traumatic stress disorder, subsequent to workplace harassment in which his life was threatened and he was continually, over a period of months, a victim of verbal, physical and emotional aggression. He has not had appropriate treatment for this and his weekly entitlements were stopped subsequent to Dr lager's medical report. This has contributed a severe amount of secondary disability.
14. In my opinion, is the treatment provided essential for the work related injury and if he did not have the treatment his health would deteriorate?
His treatment is essential and is inadequate as it currently stands.
15. Based on my clinical examination and the evidence, have constitutional psychiatric conditions superseded the worker's claimed injury?
The worker does not have constitutional issues that have superseded the workplace issues.
This man developed a severe post {traumatic stress disorder, subsequent to workplace harassment. This was not taken seriously by management and subsequent to leaving work, he has had no appropriate treatment for post traumatic stress disorder He attempted a return to work as a concierge but his level of hypervigilance, irritability and other symptoms, prevented him from managing his job. Due to WorkCover ceasing his payments, he is now in debt and close to becoming homeless. The secondary complications of this degree of financial hardship, of course, make his psychiatric condition worse.
Based upon the extensive medical evidence and treatment taken over many years, the Tribunal is satisfied that Mr Robertson’s mental health condition was fully diagnosed, treated and stabilised during the qualifying period. The Tribunal is satisfied that whilst further treatment of Mr Robertson’s condition would be beneficial to his wellbeing, it would not be reliably expected to result in a substantial improvement in his functional capacity.
The Tribunal finds that Mr Robertson has undertaken reasonable treatment for the condition and any further reasonable treatment was unlikely to result in significant functional improvement to a level enabling him to undertake work in the next two years. In coming to this conclusion, the Tribunal relied on:
The evidence of Dr Phillips:
He was initially assessed here in September 2013. At that time he was diagnosed as suffering from post traumatic stress disorder, generalised anxiety and clinical depression. It was noted that prior to the injury he had been high functioning with a stable and successful career working in an organisational role with security company. His functioning declined precipitously after the injury and has not returned to work.
And the evidence of Mr Coffey who noted in his report of 2015:
4. What functional outcome measures demonstrate the improvements described?
I do not believe that there have been substantial functional improvements, however, the ongoing support of his psychologist may have prevented ongoing suicidal ideation or acting out on it. His circumstances do place him at a high risk of suicide.
As the Tribunal finds that further reasonable treatment would not result in significant functional improvement to a level enabling Mr Robertson to undertake work in the next two years, section 6(6)(b)(i) of the Impairment Tables applies.
What impairment rating can be assigned to Mr Robertson’s condition?
The Tribunal considered Mr Robertson’s condition of PTSD under, Table 5 – Mental Health Function of the Impairment Tables (Table 5) with a focus on whether he has a severe impairment.
Table 5 – Mental Health Function - 20 points
There is a severe functional impact on activities involving mental health function.
(1)       The person has severe difficulties with most of the following:
(a)       self-care and independent living;
Example: The person needs some support to live independently, that is, visits or assistance at least twice a week from a family member, friend, health worker or support worker
(b)       social/recreational activities and travel;
Example: The person travel alone only in familiar areas (such as the local shops or other familiar venues
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficult to concentrate on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behavioural, thoughts and conversations are significantly and frequently disturbed
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to mental illness
The Tribunal notes that the introduction to Table 5 states that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person's impairment’.
The Respondent submitted there was no corroborating evidence on the extent of the Applicant’s functional impairment from his mental health condition in the qualification period, nor was there sufficient corroborating evidence on which the Tribunal could be satisfied that Mr Robertson had a severe impairment in four or more of the descriptors for a 20-point rating under Table 5. Therefore, the Respondent contended he did not satisfy section 94(1)(b) of the Act.
The Tribunal did not have before it any corroborating evidence of Mr Robertson’s functional impairment at the qualification period. The medical evidence provided an indication of Mr Robertson’s functionality, but could not be solely relied upon as the reports were too old to be of probative value.
The evidence of Mr Robertson’s general practitioner, Dr Davaris in 2015, who had been treating Mr Robertson since 2007, stated that:
Prior to the injury he had been a high functioning, stable young man, working in an organisational role with security company managing a small workgroup. Because of the severe verbal abuse, verbal threats and actual physical assaults this man’s functioning deteriorated drastically to the point he has been unable to work since that time.
Mr Robinson symptoms have included severe anxiety and depression, inclusiveness, agitation, sleep disturbance, suicidal thoughts, fear being touch, fear of meeting people, hypervigilance and a strong startle response. He has had overwhelming sense of helplessness, reduction in cognitive functioning and find it extremely difficult to be in crowds and constantly overreacts in those situations.
The evidence of Dr Philips in 2013 stated that:
5. What self management and/or pain management strategies has the worker used?
How effective are these?
Mr Robertson is too unwell to consider self management strategies.
6. Would the worker be able to undertake the activities of daily living or would the worker's capacity to do so be reduced if the treatment was ceased?
His activities of daily living are substantially reduced as it is and he requires much more intensive medical treatment and social support than he is currently receiving.
7. Would the worker be able to return to, or stay at work, or would the worker's capacity to do so be reduced if the treatments were ceased?
He is not well enough to consider any paid employment.
8. Do you recommend any other treatment and if so, the reasons for these recommendations?
This worker has been let down by the system. He has not had the support and appropriate medical management of a psychiatrist or expertise of a post traumatic stress disorder program. He is severely unwell and is a direct response to the harassment both verbal, physical and emotional he received in the workplace, A lot of his mental torture secondary to his dire financial and social situation. This could have been prevented if the WorkCover payments had continued.
9. When can the treatments cease with a discharge to self management ?
These options are irrelevant/inappropriate.
The Tribunal placed weight on the recognised symptoms of PTSD as described by Health Direct:
Some symptoms of PTSD include:
·re-experiencing the trauma
·repetitive memories (or flashbacks) that are hard to control and intrude into everyday life
·nightmares
·extreme distress caused by reminders of the trauma
·memories or disturbing thoughts that can be prompted by smells, sounds, words or other triggers
Avoidance
·staying away from places, people or objects that may trigger memories of the traumatic event
·changing a normal routine to avoid triggering memories
not wanting to talk about or think about the event
·feeling numb
Negative thoughts and mood
·feeling a sense of hopelessness about the future
·negative beliefs about yourself or the world
·blaming yourself or others unreasonably
·intense worry, depression, anger or guilt
·not being able to remember the traumatic event
·no longer enjoying favourite activities
·becoming emotionally detached from others
·not being able to experience positive emotions
Increased arousal
·constant, excessive alertness
·scanning the environment for signs of danger
·being easily startled
·irritable or aggressive behaviour
·difficulty sleeping
·poor concentration
As this matter was conducted on the papers, the Tribunal also gave consideration to Mr Robertson’s written submissions and responses to the Tribunal questions in which he self-reported significant functional impairment:
(a)self-care and independent living;
Thank you for calling on Tuesday, I’m glad I was able to take your call. You will not appreciate how hard or rare it was. I think having a set time I knew about for weeks helped. Though it wasn’t easy and I inevitably didn’t sleep much that night. Some horrible nightmares woke me at 3am and I got up then. I will blame you for that as well.
There probably has not been ten people I have answered the phone to in the past decade, maybe five. There are related issues with mail and email. People often get very angry and abusive with me for not being able to contact me easily, and weeks or months of trying. I have found it a waste of time and just demeaning to try and explain. Thank you for not being angry or abusive.
I don’t think by anyone’s definition I am maintaining hygiene and nutrition, so that looks like not ‘moderate’, but I don’t get any help, so I don’t think I can be ‘severe’. It confuses me.
Is ‘needs’ the key word her, or does a person actually have to have been receiving help?
Maybe we say ‘severe’ as I probably need it, but don’t get it and don’t want it.
This question looks like another where living ‘independently’ is viewed as a positive. I live alone, as I struggle to live with people. For the first few years of my PTSD I had flatmates, they all ended with me causing some hysterical overreaction and not being able to cope with them being around. One said I was ‘crazy’ and pushed me down some stairs before he moved out, after one of my complaints about a need for silence. I’ve often started yelling and find it hard to stop.
I have had help previously from I think it was Co Health social workers……I think North Melbourne. These people visit the food halls where the homeless and very poor eat. They often approach you and try to see how they can help you. They are lovely caring people who want to help, but they terrify me n different to others.
I don’t shower or shave or change my clothes as often as I probably should. But I am physically able to do this and intellectually capable of the task. I just don’t care that much anymore. Sometimes though a shower calms me, so I might stand in it for half an hour….but then the door is very fogged up.
I haven’t had a haircut since 2019. My hairdresser retried and then COIVD happened. I can’t bring myself to find a new hairdresser. It is an overwhelming daunting prospect.
I accept it’s not as guaranteed a risk of pain as the dentist, having teeth removed or surgery on my ankles and hand, but there are several stages I tend to avoid even before the sitting in the chair thing. I’m too scared to walk into a hairdresser I have never been to and sit down in a chair in front of stranger. Even that apron thing makes me feel trapped.
I can’t handle easily having someone in my home. I just need to be alone to feel safe. At night time I have the light out as it’s safer.
(b)social/recreational activities and travel;
I got tired of arguing and found it more peaceful not to argue. It is also more peaceful not visiting a doctor or medical professional, who has helped me in some ways but can’t fix the bigger problems and an incurable condition. I just feel like a failure, every time, year after year, hoop after hoop I jump through
It is hard to place me here with you focus on being alone as a good thing….
I think I am ‘severe’ based on how little I travel at all…..
Though I walk a lot….really I am not going anywhere, just walking to keep moving and away from home until its dark when I feel safer…
I don’t feel safe at home for too long and go out to feel safer as I am moving. If someone was trying to get me I would see them and its harder for people to find me when I am moving.
The only travel is to my local set pattern. I strongly dislike going inside places and I don’t have social life. I have no ‘social media’ presence. That would expose me to too many people.
This question again seems to value being alone and going out alone is a good thing. I always go out alone. I need to be in motion to feel safe. When I am home I start to fell afraid. If I am moving, walking or running I feel safer. I can’t run now, but I still walk. Mostly the only people I talk to are brief pleasantries at some shop.
I only travel alone. I have caught up with friends’ maybe once every couple of years in strange situations. I have to sit in the corner so I can see everyone coming. In the past decade I can count on one hand those times. People stop calling. They stop texting. They stop emailing. It is very hard to concentrate on a person or person you are with, when the voices in your head are warning you of danger. Having people with me doesn’t make me feel safe.
……
I don’t really feel happiness or joy anymore. When I am away my days aren’t really filled with fun filled excitement and adventure. There aren’t thousands of photos of me on social media on cool tours, in famous locations. I don’t really remember going anywhere. There are no photos. I travelled to get away from my brain. My days are simpler when away. I don’t have to visit a supermarket or a scary homeless shelter. Food places are much much cheaper than Australia. Cheap Asian hotels might have a simple breakfast buffet of rice and vegetables. I am used to not eating much so that might be my only meal or I get something from a stall. Mostly I try just to be as still and quiet as possible. I am able to sit longer. There is probably admittedly some enjoyment around the reduced fear and the voices in my head are quieter and less frequent.
I might have spent between a hundred or two hundred so days away from my home over the PTSD years, out of over 5000 days of symptoms.
I never went anywhere exciting, didn’t see the pyramids or the statue of liberty. I just sat by a pool or a beach and experienced some rare peace. My psychologist said I couldn’t afford to run forever, but its nice to run away for a few days, especially when none of these people have ever provided a fix. I feel sad that I have done so little with my time, but I am so powerless to change anything.
For thousand of days and nights in Melbourne I have been terrified. I walk around each day in well concealed fear and paranoia. During that time I have experienced destitution as a result of system that set out to hold treatment and money from me, that that system was created to share. Being poor and afraid are two horrible ways of life.
(c)interpersonal relationships;
I appreciate that who I am now is not easy to interact with. I am not always at my best, and even my best these days is not very useful.
don’t really have any social contacts anymore….I’m not sure how that fits.
I talk to doctors, but not really in the last few years. There isn’t much point.
I once read that PTSD sufferers ‘bleed family and friends like water’…or something like that, maybe it was ‘sheds’ . We end up alone as we push people away or run away. I am not worth the effort now. Almost nobody texts me or calls me. Maybe a handful a year. I don’t reply.
(d)concentration and task completion
Please understand that I face quite extreme difficulties in interacting with people, like opening letters, emails and answering phones.
…
I think you are asking for more information from me and you wanted this by 12 November.
I am sorry I missed your deadline.
I don’t know what else I could do. I know it helps you if I contact doctors, make appointments, visit doctors and open their replies…. I had far too many years of that, and it is too hard for me now. I don’t feel safe interacting with them.
I emailed the social security legal help people your website suggests. They wrote back to me three months ago offering to help and today I read their email. They wanted to talk In September…..scary.
I have suggested I talk to them next week. But reading your email and theirs in one day and planning to talk next week, is probably too much……This is the problem, even the people who want to help and you shouldn’t be afraid of, scare you.
This is why Centrelink is too hard.
I am sorry this has taken so very long. I never imagined it would.(An email from Mr Robertson to the Tribunal dated 9 December 2021)
I think by that definition I am ‘severe’.
I struggle to concentrate on a book for sixty seconds….most of the time I think PTSD people use a modified definition of ‘concentration’ than you are using here. Thirty minutes sounds like an eternity of peace, even ten minutes. Your standard seems pretty high.
I am always aware of where I am, and where anybody is in relation to me. I am never really ‘concentrating’ on something. It’s too dangerous for me to take my mind off where I am for too long..
I can’t concentrate on a book for sixty seconds without briefly checking my surroundings. I usually lose my place and forget what I have read. If I am talking to someone I am always checking around. I regularly hear ‘What are you looking at/for?’ and I have to make up some lie ‘I thought I heard someone’. Sunglasses are good to hide your eyes. That’s why it’s easier to walk alone, rather than what your questions say about ‘independence’ being a virtue. It’s unfair and annoying for people (apart from me being afraid of them), to have someone checking and looking around all the time.
At home I am startled by noises, if trying to read. As I have said? I think, I don’t like staying at home, I prefer to be out walking as I can’t sit still. I have tried reading in parks and places like that. If I can find a large open space, where someone has to travel several hundreds of metres to get to me I can ‘concentrate’ and read a book. Or sometimes I will find a large space that has a large wall at one end where I can sit with my back against and see the large area in front of me. That way my peripheral vision will pick anybody up and won’t need to check as much.
(e) behaviour, planning and decision-making;
I simply avoid all situation where there might be stress. There isn’t really any planning in my life. I just get up each day and do much the same as I did the day before.
I’m not sure I know what disturbed thoughts are.
I think I might sound like ‘severe’, because the ‘moderate’ one seems not strong enough, but it confuses me a bit.
Every night, for thousands of nights now…..over 5000….scary to think there have been that many horrifying nights…… I wake with the idea that someone is in my room trying to kill me…Sometimes they are right next to me…centimetres from getting me……My heart beats so fast I can feel it…….It was over 200 once when I tried one of those fancy sleep tracker things… I sit up for several minutes afraid to move or try to turn on the lights. Even though this has happened thousands of times, every time it happens I am unable to tell myself for several minutes, that this has happened before and nobody has killed me. Every time it seems so real. I often fall asleep often exhausted just staying awake from fear.
It sounds like lunacy doesn’t it? I should be able to tell myself it is not real, it’s happened thousands of times before, it’s not real. I have tried this many times before going to sleep….Then minutes late I wake in terror. I hate myself. It makes me feel so stupid, such a failure.
But you want day time things don’t you?
Sometimes I might plan to open what looks like an important envelope or email and give my self a few days to prepare. But I get more and more anxious the closer I get. Then if I have planned to open it at a certain time, and I am sitting at the table with the envelope, I will find myself doing something else and feeling relieved. Then I will take a walk. When I return I will think it is too late to open the envelope so I will do it tomorrow, then it just gets pushed back into my mind
(f)work/training capacity
I think I’m ‘severe’ with this one.
It’s been well over a decade.
It’s IQ vs subconscious battle. I’m not stupid, but my mind is stuffed.

The Respondent contended that Mr Robertson’s frequent solo overseas travel and reported capacity to successfully undertake tertiary studies, precludes a finding that he had a severe impairment under descriptors (b), (d) and (e) in Table 5.
Further, the Respondent contended that the medical evidence did not support a finding that the Mr Robertson had a severe impairment in descriptor (a) self-care and independent living during the qualification period, and that Mr Robertson’s own self-reporting arguably points to a moderate rather than severe impairment.
Based on all the evidence before it, the Tribunal considers Mr Robertson had:
(a)moderated difficulty with self-care and independent living as he was living alone without support from others, though he obviously struggles with numerous tasks;
(b)moderate difficulty with social/recreational activities and travel, as he does not like being around people in unfamiliar places, but has managed to travel overseas some 32 times between November 2014 and January 2020;
(c)severe difficulty with interpersonal relationships based on his inability to interact with others, such as his doctors and Centrelink;
(d)severe difficulty with concentration and completing tasks, based on his interactions with the AAT;
(e)moderate difficulty with behaviour, planning and decision-making, as evidenced by his ability to pursue his Workcover claim, victims of crime claim and DSP claim without assistance; and
(f)severe difficulty with work/training capacity as he has been unable to work since 2007.
Based on all the evidence before it, the Tribunal considers Mr Robertson’s PTSD was having a moderate functional impact on his mental health function. The Tribunal did not consider Mr Robertson’s condition was severe during the qualification period as he was able to travel extensively overseas on his own. The Tribunal was very sympathetic to the difficult and complex situation in which Mr Robertson finds himself. However, without any relevant corroborating evidence to support Mr Robertson’s assertions about his functional capacity during the qualification period, the Tribunal is unable to verify that his condition was severe at the date of claim. Whilst the Tribunal appreciates Mr Robertson’s reluctance to seek medical intervention, a report from his general practitioner or psychologist into his current functional capacity would greatly assist him with any future DSP claim.
The Tribunal finds that Mr Robertson has an overall impairment rating of 10 points under the Impairment Tables. Therefore, Mr Robertson does not satisfy section 94(1)(b) of the Act.
Does Mr Robertson have a continuing inability to work?
To qualify for the DSP, Mr Robertson must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables; he must also demonstrate that he has a continuing inability to work. Mr Robertson would be considered to have a continuing inability to work if he has actively participated in a program of support (POS) within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find, or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the POS requirement, finding that no power exists to dispense with it under the operation of section 94(2)(aa) of the Act. It is irrelevant whether an Applicant was aware of the requirement.
The Respondent contended that Mr Robertson did not satisfy section 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had completed zero days in the POS period, which is less than the 18 months required under paragraph 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Mr Robertson had completed a POS that was less than 18 months (in accordance with paragraph 7(3)) or that his participation was terminated (in accordance with paragraph 7(4)).
The POS Determination requires that an Applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has found that Mr Robertson does not have a severe impairment that is assigned 20 points or more under a single Impairment Table, he is required to have participated in a program of support, and accordingly he does not satisfies section 94(2)(aa) of the Act.
The Respondent contended that Mr Robertson did not have a continuing inability to work during the qualification period.
The Tribunal did not have the benefit of either a Job Capacity Assessment (JCA) report nor a report from the Health Profession Advisory Unit (HPAU), who are both considered to have specialist knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity. As Centrelink had determined that Mr Robertson was manifestly medically ineligible for the DSP, they did not engage either the JCA or HPAU to review Mr Robertson’s claim. Given the chronicity of Mr Robertson’s condition, it would have been beneficial for Centrelink to have reviewed Mr Robertson’s claim for this hearing.
The Tribunal was unable to ascertain if Mr Robertson was currently in receipt of Job Seeker payments, and if so, if he had been exempted from the work activity requirements on medical grounds. Given Mr Robertson has not seen his general practitioner in many years, it stands to reason that he has not been receiving medical certificates declaring him unfit for work. However, the Tribunal assumed Mr Robertson was eligible for Job Seeker payments as it appears he would meet the 10-year residency rule and the exclusion period for his compensation payment has expired. The Tribunal appreciates that Centrelink has been stymied in its ability to assist Mr Robertson as he does not answer phone calls. This lack of information made it difficult to determine whether Mr Robertson had a continuing inability to work.
However, The Tribunal finds Mr Robertson had a continuing inability to work, considering the evidence of Dr Phillips, Mr Coffey and Dr Davaris which all indicate that Mr Robertson would struggle to undertake any work.
Residential qualification for DSP
Section 94(1)(e) of the Act provides that to qualify for DSP, a person must have 10 years qualifying Australian residence. Section 7(5) of the Act defines ‘qualifying Australian residence’ as:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Section 7(2) of the Act provides that an Australia resident is a person who resides in Australia and who is either a citizen, the holder of a permanent visa, or the holder of a Special Category Visa (SCV).
The Respondent contended that Mr Robertson did not satisfy the residential qualification criteria for the DSP set out in paragraph 94(1)(e) and therefore was not qualified for the DSP under the Act as he:
holds a subclass 444 (temporary) visa;
(b)is not an Australian resident as he is not an Australian citizen (he is a New Zealand citizen); does not hold a permanent visa, and is not a protected SCV holder;
(c)did not have 10 years qualifying Australian residence as required by sub-paragraph 94(1)(e)(ii) and defined by subsection 7(5) of the Act; and
(d)did not have a qualifying residence exemption under subparagraph 94(1)(e)(ii) as he is not a refugee, former refugee or family member of a former refugee.
The Tribunal finds that, as a New Zealand citizen, Mr Robertson did not qualify for the DSP under section 94(1)(e) of the Act as he does not hold a permanent visa or a protected SCV.
Whilst Mr Robertson does not satisfy section 94(1)(e) of the Act as a New Zealand citizen, consideration needs to be given as to whether he qualifies for DSP under application of the Agreement on Social Security between the Government of Australia and the Government of New Zealand (the New Zealand Agreement).
Article 2(2) of the New Zealand Agreement states:
For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid's benefit shall be limited to cases where:
(a) the person is severely disabled;
(b) the person was a resident of one of the Parties at the date they became severely disabled; and
(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
Article 5(1) of the New Zealand Agreement provides that the following factors must be considered in deciding whether a person is residing in Australia:
(a)the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person's employment, business or financial ties with Australia;
(d)the nature and extent of the person's assets located in Australia;
(e)the frequency and duration of the person's travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.
Article 1(m) of the New Zealand Agreement provides that 'severely disabled' means a person who:
(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(ii) to work for at least the next 2 years; and
(iii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(iv) is permanently blind.
The Respondent accepted that Mr Robertson was a New Zealand citizen lawfully residing in Australia during the qualification period and most likely had an aggregate of more than 10 years Working Age Residence in Australia and/or New Zealand. However, the Respondent submitted that Mr Robertson was not 'severely disabled' for the purposes of Article 2(2) of the Agreement and therefore did not meet the criteria to be eligible for payment of DSP under the New Zealand Agreement.
At face value it would appear that Mr Robertson would qualify for the DSP based on a limited reading of article 2(2), however the Tribunal adopts the approach taken by many before that the New Zealand Agreement cannot be interpreted to provide a complete and alternative set of eligibility criteria for DSP. To qualify for the DSP, the Tribunal considers Mr Robertson must be found to have a severe impairment under the Act and be unable to work in the next two years, or benefit from participating in a program of support within the next two years.
The Tribunal finds that Mr Robertson did not qualify for the DSP under the Agreement as he was not found to be severely disabled at the date of claim.
CONCLUSION
The Tribunal determines that at the date of application, Mr Robertson was not qualified to receive the DSP, as his impairments did not attract 20 points under the Impairment Tables, he did not meet the residency requirements of the Act or the Agreement, and he had not undertaken a POS.
DECISION
The Tribunal affirms the decision under review

I certify that the preceding 91(ninety-one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

...........[sgd]............................
Associate
Dated: 22 April 2022

Date of hearing: 23 November 2021

Applicant:
Self-represented

Advocate for the Respondent: Mr Christian Visser

Solicitors for the Respondent: Services Australia

[2022] AATA 828

22 April 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Natural Justice

Date of hearing:	23 November 2021
Applicant:	Self-represented
Advocate for the Respondent:	Mr Christian Visser
Solicitors for the Respondent:	Services Australia