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

Senturk and Secretary, Department of Social Services (Social services second review) [2020] AATA 2950 (14 August 2020)
Division:GENERAL DIVISION
File Number: 2019/2207
Re:Ms Songul Senturk
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna E Burke AO, Member
Date:14 August 2020
Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
.................[sgd].............................................
Ms Anna E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – from fibromyalgia, Raynaud’s disease and anxiety/depression – whether impairment attracts rating of 20 points or more under Impairment Tables – whether exemption to having undertaken program of support – whether continuing inability to work – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna Burke AO, Member
14 August 2020
INTRODUCTION

Ms Songul Senturk (the Applicant) is seeking a second-tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for Services Australia (formerly the Department of Human Services).
Ms Senturk lodged a claim for DSP on 6 June 2018. On 6 September 2018 an employee of Centrelink decided that Ms Senturk was not entitled to the DSP as she did not meet the requirements of the Act. On 26 November 2018, an Authorised Review Officer (ARO) of Centrelink affirmed the decision made. Ms Senturk sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 28 February 2019.
The application was heard via telephone on 1 May 2020 and 2 June 2020. Ms Senturk was self-represented and Ms Cailin Farrell, solicitor of Sparke Helmore Lawyers, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Farrell.
THE ISSUES IN CONTENTION
The issue in contention is whether Ms Senturk was qualified for DSP from the date of her claim to a date 13 weeks thereafter, that being 6 June 2018 to 5 September 2018 (the qualifying period). This is in accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Ms Senturk had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which result 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 (the Impairment Tables); and
(c)a continuing inability to work.
BACKGROUND
Ms Senturk is 42 years of age, divorced and lives with her adult son. Ms Senturk completed year 11, undertook six months of a hairdressing apprenticeship and has never worked in paid employment.
On 6 June 2018 Ms Senturk made an application for DSP, citing her medical conditions as fibromyalgia, Raynaud’s disease and anxiety/depression.
On 3 September 2018, Centrelink conducted a face to face job capacity assessment (JCA) with Ms Senturk. The JCA assigned a total impairment rating of 10 points based on her claimed conditions:
(a) fibromyalgia – 10 points awarded under Table 1;
(b) lower limb deficiencies – no recommendation provided; and
(c) psychol/psychiatric disorder – not assessed as fully diagnosed but considered not fully treated and stabilised under Table 5.
The JCA report stated that Ms Senturk had a baseline work capacity of 15 to 22 hours per week within two years with intervention.
On 26 November 2018, on internal review, an ARO affirmed the earlier Centrelink decision that Ms Senturk’s total impairment rating was 10 points, comprising of fibromyalgia and Raynaud’s disease. The ARO did not assess her anxiety/depression as it could not be considered permanent. The ARO stated:
The medical report completed by Ms Sturrock (Clinical Psychologist) confirms she has been treating you for psychological symptoms as a result of Major Depressive Disorder, Generalised Anxiety and Post Traumatic Stress Disorder since January 2018 and ceased in April 2018. The report indicates symptoms of low mood, irritability, social withdrawal, anxious thoughts, fearfulness, panic symptoms, insomnia and feelings of helplessness. According to the information you provided to the assessors, you have recently been prescribed with antidepressant medication and having it closely monitored by your GP. Given that you have recently engaged in treatment through medication and counselling which is reasonable and may lead to significant functional improvement, these conditions cannot be considered fully treated and stabilised during the relevant period. Accordingly, an impairment rating was correctly not assigned.
On 28 February 2019, the Tier 1 affirmed the decision of the ARO to reject Ms Senturk’s DSP claim. The Tier 1 assigned Ms Senturk an impairment rating of 10 points, as she experienced a moderate functional impact as a result of her fibromyalgia and Raynaud’s disease. Tier 1 considered that her anxiety and depression had been fully diagnosed but had not been fully treated and stabilised at the date of her claim. As Ms Senturk did not satisfy s 94(1)(b) of the Act the Member did not address her continuing inability to work.
On 23 April 2019, Ms Senturk sought a review of the Tier 1 decision by this division of the Tribunal, stating in her application:
I believe that my disability which is arthritis is permanent, and there is no cure. I know and have heard from many doctors and specialists that my illness is permanent and it can lead to a disability, and is going to get worse as I get older and my bones & cartilage in my joints in my legs will get weaker and you could even end up in a wheelchair for life. Also my mental illness & depression is something I have dealing with most of my life as well.
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;
…
Section 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Section 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 requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Section 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.
Section 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 s 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 determinative issue in this review is whether, during the qualifying period, Ms Senturk suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
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 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).
Section 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 can do for the person.
Section 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.
It is necessary, therefore, 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) sets out a number of exemptions to the general requirements 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.
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.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Ms Senturk.
DOES MS SENTURK HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Ms Senturk is suffering from fibromyalgia, Raynaud’s disease and anxiety/depression. The Tribunal finds that Ms Senturk was living with impairments during the qualifying period and therefore meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS SENTURK HAVE MEDICAL CONDITIONS THAT CAN BE RATED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Fibromyalgia and Raynaud’s disease
The Northern Hospital progress note dated 23 September 2015 recorded a recent diagnosis of Raynaud’s disease bilateral with symptoms of painful, pale hands and digits precipitated by cold.
A medical certificate from Dr A Mohtaji, general practitioner, dated 27 September 2015 diagnosed Raynaud’s phenomenon as a permanent condition.
Ms Katie van der Kraan, podiatrist, in a report dated 27 October 2015 to Ms Senturk’s general practitioner observed:
Songul was referred to PVCH podiatry in September 2014 after discharge from the High Risk Foot Service at The Northern Hospital following tissue breakdown to the L2-3 toes with suspect erythema pernio and raynaud’s phenomenon. Songul has since attended a podiatry service for advice and skin care given the risk for tissue breakdown with a history of ruptured chilblains/ erythema pernio.
Dr Talib Tahir, consultant rheumatologist and physician, in a medical report dated 25 May 2017 to Ms Senturk’s general practitioner noted problems of fibromyalgia, Raynaud’s disease and elevated antinuclear antibody. In his report he observed:
Her other major problem is Raynaud’s disease and fibromyalgia pain. Lifestyle modification, pain management and gentle exercise might help this lady pain management considering that she has significant psychosocial issue.
Dr Mohtaji, Ms Senturk’s general practitioner for many years, observed in a support letter for Ms Senturk’s DSP application dated 31 May 2018 that:
She suffers from Fibromyalgia and Raynaud’s disease. These have been diagnosed by specialist Dr Tahir. She has been given a number of medications with limited effect. These are permanent conditions and I am not aware of any other treatment that can help her.
She gets pain and swelling in her hands and feet. Also, she gets back pain and joint pain. She also gets cold hands and numbness frequently due to Raynaud’s disease. According to the patient, she suffers from pain on a daily basis and as a result she is unable to walk, drive or to do her activities of daily living.
Apparently her condition is worsening, and her prognosis is poor.
Ms Senturk advised the Tribunal that in 2014 she came down with symptoms of vascular disease and her left toe had changed colour (similar to gangrene). Her family doctor didn’t know what was causing the condition and after a while she went to Northern Hospital and they diagnosed Raynaud’s disease. She explained to the Tribunal that around this time she had completed eight months of an early childhood course and was close to finishing having almost completed 120 hours of placement in a childcare centre near her house. She explained her condition to the supervising teacher who spoke to the Centre manager and Ms Senturk was subsequently told to leave. Ms Senturk assumed the teacher had thought it was contagious, but she had been advised by the doctors at Northern Hospital that it was not contagious. Ms Senturk advised the Tribunal this had really hurt her, as she had loved working at the kindergarten, finding the experience very depressing. Ms Senturk explained that she had not completed the course as she could not finish her placement hours. She never returned to the childcare centre due to fibromyalgia, as she cannot lift heavy things, explaining that she could not even lift one or two kilograms and as the childcare centre requires lifting, it would be too dangerous for her to even consider undertaking such work.
The Respondent accepted that Ms Senturk’s fibromyalgia and Raynaud’s disease were fully diagnosed, treated and stabilised during the qualifying period as confirmed by her treating podiatrist and her consultant rheumatologist and physician. The Respondent also accepted that Ms Senturk has been managing her symptoms with conservative treatment—primarily medication, exercise and ongoing review with her general practitioner for many years.
The Respondent contended that the evidence corroborates a moderate functional impairment, which could be assessed under Table 1 and assigned 10 points. The Respondent submitted that during the qualifying period, Ms Senturk experienced symptoms of fatigue, pain and shortness of breath and, due to these symptoms, she had difficulty performing some day to day household activities (in particular, heavier household tasks such as changing the sheets and vacuuming). The Respondent submitted that the Applicant is otherwise able to use public transport and walk around a supermarket in addition to being able to do work-related sedentary tasks (that is, tasks that do not require any significant physical exertion).
Ms Senturk advised the Tribunal that during the qualification period:
·particularly in the morning, she was in a great deal of pain with swelling in her joints and some numbness in her hands and feet.
·she had low energy levels, which may have been due to her iron levels as Fibromyalgia takes energy out of people. She explained that she had difficulty doing household duties including changing sheets, vacuuming, washing and folding laundry. She said that she could not pick up a laundry basket as it was too heavy, and her son carried it for her. Her son also folded the washing as it caused pain in her whole arm.
·she relied on her son to assist her with many things and her son still helps her a lot now. She said she was ashamed about this as she should be helping him and not the other way around, particularly as he was turning 21 in two weeks.
·when she goes out to local community, say to do the grocery shopping, she would only go if her son was with her, she does not go by herself as she is too scared, that she needed someone with her at most times; her son carries the groceries, she cannot lift the bags or push the trolley; that after 15-20 minutes of walking she has to lean on her son for support; she leans on him to get to and from the shopping centre and around the shops; she relies upon him as she gets tired, her legs hurt and she worries about falling, she knows her son would help if she fell.
·she could attend appointments with her treating practitioners if they were not too far away, otherwise her son or brother would take her.
·she had travelled to Turkey in September 2017 for a month with her mother and son where she had undertaken some natural treatment for her conditions but could only go as she had her son’s support.
·she did not use public transport as she would be scared that she would get lost or fall over and there would be no one to help her. She described it as too risky.
·she could drive but only drove very short distances to places she knew such as a shopping centre two minutes away. For long car trips she said her son would drive.

At the hearing, Ms Senturk was asked why she would not go shopping without her son. She said she could not lift the shopping bags or push the trolley and her son does the things she cannot do. She said she also felt secure with him there because if she fell down her son would be there to look after her. She said her legs hurt while shopping and she had to lean on her son within 15 to 20 minutes of walking. She confirmed that on most trips she had to lean on him. When asked if she had spoken to her doctor about a walking stick, she said she had not as she could not use one because of the pain in her hands, and the walking stick would also be hard emotionally.
The Respondent observed that whilst Dr Mohtaji noted Ms Senturk reported being unable to walk, this is inconsistent with what she told the JCA and her evidence to Tier 1. Accordingly, the Respondent contended that Dr Mohtaji’s report should be given little weight when assessing the Applicant’s functional capacity at the qualification period.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Senturk’s long standing conditions of fibromyalgia and Raynaud’s disease were fully diagnosed, treated and stabilised during the qualifying period, noting that she had been under the care of a rheumatologist for many years.
The Tribunal finds that Ms Senturk’s conditions of fibromyalgia and Raynaud’s disease were having a moderate impact on her functionality during the qualification period. She self-reported and as corroborated by her treating medical practitioners, that she had difficulties walking far outside of her home or around a shopping centre, performing household activities or undertaking any strenuous activity. The Tribunal assigns 10 points under Table 1 – Functions requiring Physical Exertion and Stamina.
Anxiety and Depression
A JCA report dated 3 September 2007 stated in the interview requirements section that:
customer has personal issues and anxiety due to history of domestic violence. has a life long interventio [sic] order agianst [sic] her ex-husband, which he has breached and caused major upset for her son. Both are seeing psychologists on a regular basis.
The report went on to state:
Ms Senturk stated she had been the victim of a violent marriage which has left her suffering from depression and anxiety for the past seven years. Current reported symptoms include anxiety, low self esteem, trust issues and poor concentration. Ms Senturk stated she has experienced many negative situations involving men and now feels unsafe and anxious in social situations. She expressed a desire to do work or training but strongly prefers to work in a female dominated environment such as hairdressing. Ms Senturk stated she had been seeing a psychologist regularly for counselling and is taking medication to reduce anxiety.
Ms Senturk’s psychologist Ms Sezen Ildiri confirmed by phone these reported symptoms. She also confirmed Ms Senturk has been receiving counselling for the past 18 months but has only recently become more regular. Ms Ildiri stated Ms Senturk is still in a fragile state of mind and needs more counselling before will be able to cope with a work environment. Ms Ildiri also stated she believes Ms Senturk may have a mild learning disability which is indicated by a poor memory and ability to retain new concepts.
Ms Maria Fruhwirth, personal support worker, Support Link in a housing support letter dated July 2009 advises:
Songul Senturk was referred to the Personal Support Program (PSP) the 5 June 2008 from Centrelink. The Personal Support Program is funded by the Federal Government to provide support for clients deemed to have multiple barriers to employment and therefore need time out from job searching.
…
I have seen Songul on several occasions and it is quite clear that Songul is determined to overcome her many barriers and move on with her life, unfortunately her conditions are being exacerbated by her present extremely unsafe housing position. Several years ago Songul had refused to give a false alibi for her husband and friend who was involved in a murder charge and was then convicted. That person is to be released from jail and Songul is in fear of both her and her son’s lives. Her husband has kept in touch with his friend while in jail and knows where Songul is staying, therefore she is fearful that her husband’s friend will locate her and seek revenge. She is presently suffering from severe panic attacks and unable to sleep which exacerbate her depression as she feels fearful and unsafe in her home.
Ms Sezen Ildiri, psychologist, in a support letter for Ms Senturk’s priority housing application dated 14 September 2009 advised:
Songul Senturk was referred to counselling due to her traumatic past. She is currently living in the house that most of her physical and emotional abuse occurred.
…
Songul has been diagnosed with Depression, anxiety, post traumatic stress disorder and panic attacks. She has the following symptoms:
·fatigue and sweating and trembling of her body.
·irregularities to her heartbeat where heart is beating real fast and uncontrollable. She is apathetic, and has difficulty sleeping.
·she is having difficulty concentrating and has the symptoms of anxiety syndrome/panic attacks. She is constantly anxious and stressed.
·she has severe memory issues that cause her many difficulties in her life.
·she does not handle stress and pressure very well and breaks down under this pressure.
·she struggles with constant thoughts of the abuse and is concerned her son is affected by this also.
Ms Meg Walter (provisional psychologist) and Dr Kylie Henderson (managing director and clinical psychologist) of Back2Work – Health Specialists, observed in a progress report of 26 May 2015 that:
Sonja has experienced an exacerbation in her anxious and depressive symptoms recently due to health concerns. Her ongoing distress and attempts to address her health concerns is negatively impacting his psychological condition, leading her to feel helpless and withdrawn. It is recommended that Sonja engages in regular psychological intervention to help her to reduce her anxious and depressive symptoms, as well as to provide support and encouragement while she addresses her health concerns and develops better management strategies.
Ms Holly Monaghan, counsellor, in a report dated 28 August 2017 confirmed Ms Senturk had been referred to Pure Insights Counselling Service due to her current personal, physical and psychological concerns, which were impacting her ability to gain employment. She advised that Ms Senturk had attended each appointment and presented as cooperative and engaging throughout the service.
Dr Bonnie Sturrock, clinical psychologist, in a support letter for Ms Senturk’s DSP application dated 6 April 2018, assessed her as suffering from major depressive disorder, generalised anxiety disorder, somatic symptom disorder and post-traumatic stress disorder (PTSD).
Ms Elizabeth Cutajar, psychologist, in a support letter for Ms Senturk’s DSP application dated the 29 August 2019 noted:
Ms Senturk was referred to me through her job active Provider, MatchWorks after she reported symptoms of anxiety, lowered confidence, and health concerns. She was referred in order to gain strategies to manage her symptoms and secure employment.
…
I write to confirm that Ms Senturk has attended my office on three occasions for initial assessment and subsequent counselling sessions. During our sessions, Ms Senturk disclosed experiencing longstanding depression and anxiety after being exposed to a physically abusive relationship. She also disclosed frequent nicotine use. Reported symptoms included:
·Anger
·Ruminative thoughts
·Lowered motivation
·Sleep difficulties
·Reduced appetite; limited meals and limited physical activity
Ms Senturk was provided with a self-report mood questionnaire, which indicated she was experiencing moderate levels of stress and depression, and severe levels of anxiety.
Ms Senturk, without going into detail, advised the Tribunal that her mental health issues had a lot to do with her past history of abuse involving her ex-husband where she experienced significant physical and verbal violence.
The Respondent accepted that Ms Senturk’s mental health conditions, specifically major depressive disorder, generalised anxiety disorder and PTSD were fully diagnosed, during the qualifying period. The Respondent relied specifically on the report of Dr Sturrock, clinical psychologist, dated 6 April 2018 and accepted this report satisfied the requirements set out in the introduction to Table 5. The Respondent in their Statement of Issues, Facts and Contentions asserted there was evidence Ms Senturk had been experiencing mental health issues since 2015.
The Respondent however contended that that Ms Senturk’s mental health could not be considered fully treated or stabilised during the qualification period relying upon the following evidence:
(a)a report of Ms Meg Walter, psychologist, and Dr Kylie Henderson, clinical psychologist, dated 26 May 2015 which stated that Ms Senturk had an exacerbation of symptoms due to health concerns and this had been partially addressed through psychological intervention, but she would require ongoing treatment.
(b)A report of Dr Mohtaji, general practitioner, dated 1 June 2015 which said Ms Senturk would benefit from having more psychotherapy.
(c)A report of Dr Talib Tahir, consultant rheumatologist and physician, dated 25 May 2017 which recommended Ms Senturk would benefit from seeing a psychologist or psychiatrist.
(d)A report of Ms Holly Monaghan, counsellor, dated 28 August 2017 reported that Ms Senturk commenced psychological treatment and had attended each appointment.
(e)Ms Senturk reported to the assessor at the Employment Services Assessment on 10 November 2017 that she had attended 10 sessions with Ms Monaghan since August 2017 but had not taken anti-depressant medication.
(f)A report of Dr Sturrock, clinical psychologist, dated 6 April 2018 reported that she had seen Ms Senturk for treatment since January 2018.
(g)Ms Senturk reported to the assessor at the JCA on 3 September 2018 that she had commenced taking anti-depressant medication (Seroquel), for the first time, three days prior to that assessment.
The Respondent contended that as Ms Senturk had only commenced medication for her mental health condition at the end of the qualification period, she had therefore not undertaken reasonable treatment for her condition. The Respondent argued that the further treatment which was planned or continuing could reasonably be expected to result in functional improvement within two years of the qualification period. The Respondent argued the Tribunal could not be satisfied that Ms Senturk had undertaken all reasonable treatment during the qualification period, and that her condition cannot be considered fully treated or fully stabilised.
Ms Senturk disputed her long-term mental health condition was not fully treated or stabilised and said that she had been seeing a psychologist on and off for many years and had trialled antidepressants in the past. She said that she had not started medication for the first time during the qualification period but had been undertaking all avenues to assist with her mental health issues and none had improved her condition. She told the Tribunal she talks to her psychologist about everything and by the end of the session she is generally angry.
Ms Senturk advised the Tribunal that she had originally not wanted to take medication as she had seen her sister’s personality change when she had taken antidepressants and she needed to be able to look after her son. She said she told her psychologist the antidepressants made things worse including making her feel like a zombie, dizzy and very down. She said it also stopped her thinking too much and slowed her down. She said she could not leave the house when she was on the medication.
The Respondent contended that if the Tribunal found Ms Senturk’s mental health was fully diagnosed, treated and stabilised (which is not conceded), the evidence regarding the impact of the Applicant’s mental health condition corroborates that she had moderate difficulties with self-care and independent living, social/recreational activities and travel, behaviour, planning and decision-making and work/training capacity. The Respondent therefore contended that this condition could be assigned an impairment rating of 10 points, at most, under Table 5. The Respondent noted there was insufficient evidence for the Tribunal to be satisfied that the Applicant had severe difficulties with at least four of the six descriptors in Table 5, such that it could not be found that she had a severe impairment during the qualification period.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Ms Senturk’s mental health condition, with a focus on whether or not she has a moderate impairment.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self-care and independent living;
Example: The person needs some support (that is, an occasional visit                   by or assistance from a family member or support worker) to live    independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively                   involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar    environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or    sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer    tasks for more than 30 minutes (such as reading a chapter from a   book).
Example 2: The person finds it difficult to follow complex instructions    (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving    stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood    difficulties (such as temper outbursts, depression, withdrawal or poor   judgement).
Example 3: The person’s activity levels are noticeably increased or    reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work,    education or training that require intervention by supervisors,   managers or teachers or changes in placement or groupings.
Ms Senturk gave evidence on each of the descriptors in Table 5 during the qualification period:
·Self-care: Ms Senturk said she took quick showers as she could not handle hot or cold water. She could not wash her hair but could dress herself.
·Social/recreational activities and travel: Ms Senturk said she did not go out without her son because of her anxiety and she felt more secure with him there. She said “If I fell down I know my son would look after me, I lean on him, within 15-20 minutes of walking”.
·Interpersonal relationships: Ms Senturk said she had almost no friends or people she could speak to, just her mum and best friend. She spoke to her mum every day and that kept her happy at times. She had no friends and said they did not look at her the same anymore. She explained that in 2018, her normal day would look very boring. She said “I wasn’t socialising then either, been inside for a few years. Not much has changed, have more confidence, doing more normal things slightly compared to now”. When asked if she caught up with friends, she said “No, haven’t been social for a few years. Dr Sturrock talks to me about it, recommends going out there and doing so. I don’t feel comfortable, embarrassed by my disability, scared of judgment.”
·Concentration: Ms Senturk said her concentration was not the best, even though she used to have a good memory. She said she does not even remember what she ate last week. When shopping, she had to write down things she needed on a paper. She said her doctor tells her to write things down and her specialist tells her she will lose her memory a lot.
·Behaviour, planning, decision making: Ms Senturk said her memory was “not good at all” and that she had a “bad memory”. She said Dr Sturrock had told her to do puzzles to help with her memory. She told the Tribunal that she had problems controlling her mind and Dr Sturrock had helped her with this in 2018, but it had come back and she needed help. She said her sleeping pattern was all over the place and she now takes panadeine forte. She said that her condition was overwhelming, there was too much happening and she could not understand what arthritis or Reynaud’s disease was and how it worked until years later.
·Work/training capacity: Ms Senturk said she did not think she could work or train because of the medication she was taking and her anxiety.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Senturk’s long standing mental health conditions described as major depressive disorder, generalised anxiety disorder, somatic symptom disorder and PTSD was fully diagnosed, treated and stabilised during the qualifying period. The Tribunal notes that Centrelink’s earliest record of Ms Senturk’s mental health disorder was a diagnosis in early 2005 by Ms Ildiri, a psychologist, who observed Ms Senturk had been receiving counselling for over 18 months in respect of her domestic violence abuse. The Tribunal relies upon the reports of Dr Henderson, Ms Monaghan and Dr Sturrock who all reported Ms Senturk had been undertaking treatment. The Tribunal puts significant weight on the most recent report of Ms Cutajar, whom Ms Senturk was referred to by her job provider. Ms Cutajar observed that Ms Senturk was suffering from stress, depression and severe levels of anxiety and had attended her services on three occasions. The Tribunal notes medical reports and Centrelink records indicate that from 2005 until present, Ms Senturk has been undertaking psychological and pharmacological treatment. The Tribunal does not concur with the Respondent’s view that Ms Senturk had only commenced medication for her mental health condition at the end of the qualification period, and had therefore not undertaken reasonable treatment for her condition and further planned treatment could reasonably be expected to result in functional improvement within two years of the qualification period. Ms Senturk’s mental health condition has not improved since her JCA in 2018, with her psychologist Dr Sturrock noting in 2020 that she has presented back for therapy recently and still experiences persistent severe mental health disorders. The Tribunal notes Ms Cutajar’s report of 2019 also shows that Ms Senturk’s severe mental health disorders persisted, indicating pharmacological treatment had not made her functionally capable of undertaking work or training.
The Tribunal finds that Ms Senturk’s mental health condition was having a moderate impact on her functionality during the qualifying period as she self-reported and as corroborated by her treating medical practitioners, had difficulties with self-care, social activities/travel, interpersonal relations, behaviour/decision making, concentration, planning and work/training. The Tribunal therefore assigns 10 points under Table 5 for this condition.
IMPAIRMENT RATING
The Tribunal finds that Ms Senturk has an overall impairment rating of 20 points comprising of 10 points allocated under Table 1 (Functions Requiring Physical Exertion and Stamina) and 10 points allocated under Table 5 (Mental Health Function). Therefore, Ms Senturk satisfies s 94(1)(b) of the Act.
DOES MS SENTURK HAVE A CONTINUING INABILITY TO WORK?

To qualify for the DSP Ms Senturk must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work. Ms Senturk would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of subsection 94(3C) of the Act prior to her claim for DSP, and her impairment is of itself sufficient to prevent her from improving her 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 program of support requirement, finding that no power exists to dispense it with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
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 not found that Ms Senturk has a severe impairment that is assigned 20 points or more under a single Impairment Table, she is required to have participated in a program of support.
The Respondent contended Ms Senturk did not satisfy s 94(2)(aa) of the Act during the qualification period as her Centrelink records indicated that she had completed 305 days in the POS period, and this was less than the required 18 months in accordance with requirements of s 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Ms Senturk had completed a POS that was less than 18 months (in accordance with s 7(3)) or that her participation was terminated (in accordance with s 7(4)). Additionally, the Respondent argued there was insufficient evidence that Ms Senturk was prevented solely due to her impairments from improving her capacity to prepare for, find or maintain work through continued participation (in accordance with s 7(5)).
The Tribunal considering the nature and the severity of Ms Senturk’s long standing complex conditions and their impact on her physical and mental functions, finds that they alone would prevent her from benefiting from a program of support, as the program would not improve her capacity to prepare for or find work. The Tribunal finds that Ms Senturk, in accordance with s 7(5) of the POS Determination, is a person who was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program.
The Respondent contended that Ms Senturk had a continuing ability to work with a work capacity of greater than 15 hours per week and relies on the JCA report dated 6 September 2018 which found the Applicant had a baseline work capacity of 15 to 22 hours per week in light semi-skilled work. The Respondent submitted that the Tribunal should accept the conclusion of the JCA as the assessor has specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity and their assessment should be preferred.
The JCA report dated 6 September 2018 noted:
Attempts were made to contact treating health professionals to confirm if there is difficulty with sustained work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours, however attempts were unsuccessful.
…
Client has a reduced functional capacity due to an exacerbation of 8 -14 hours of work per week for 6 months due to an exacerbation of Fibromyalgia, inflammatory arthritis and mental health issues as she has experienced episodic fluctuations and has a reduced ability to sustain activities.
…
Loss of exercise tolerance is experienced that can restrict capacity for heavy exertion tasks, and may result in increased fatigue impacts affecting stamina, endurance. Loss of exercise tolerance may restrict mobility affecting use of steps/inclines. Work capacity is assessed at 15-22 hours per week to allow for shorter shifts at work and rest periods between shifts for physical recovery.
With continued access to treating GP and intervention for a Disability Employment Service provider to assist with identifying suitable work role/environments, developing suitable duties plans (i.e. task assigned and rostered days), providing work experience programs to increase work conditioning, providing workplace assessments and making appropriate workplace modifications, and providing post placement support, it is anticipated that the client would better manage their capacity for work and be able to sustain performing 15-22 hours per week.
At the conclusion of the hearing, Ms Senturk was asked to provide any information she could in respect of having undertaken the program support. She provided the following information:
I Songul Senturk have been fighting this Program of Support matter for almost a year against centrelink and for the last 2 weeks l have been calling and talking to so many different people when u call up the Centrelink call centre everyone l spoke about Program of Support they all said that its a Voluntary program ,its not compulsory. I was and still am shocked ,confused, seriuolsy angry and the stress has affected my mental health so much to the point that when l spoke to centrelink l got so bad on the phone call they recommend that l speak to a social worker and so l did , Sarah The Social Worker tried to calm me down and wanted to make sure that not to stay alone at home with the state lm ,l told her my son lives with me and cares for me .l hope l will be ok.The social worker had told that she will call matchworks, my old providers and find out why isnt anyone responding to my calls and she will try to sought it out and call me back the next day.l spoke to Sarah The Social Worker and she didnt say much and didnt get far at all and apologised. Then l called up Des Department of Social security and spoke about the Program of Support and they told me that its a Voluntary program, its not compulsory again and centrelink are aware that you have been with a provider for more than over 6 years ,so they would know that been with a provider for so long .l also got told to make a complaint against matchworks and l did and gave me some useful numbers to call,Commonwealth Ambusman but l dont have enough time for a matter that never was compulsory in the first place. After many calls and confusion l knew that l need speak to someone in person in the centrelink office in Greensborough. As of yesterday l saw someone in the Greensborough Centrelink office l noticed as l was explaining why l need a letter that the Program of Support is voluntary and l need it for my Dsp Claim,and she responded that claim got rejected in 2018 ,there is no Dsp Claim .l was lost and didnt understand why she said that and l replyed no thats not right when my claim for Dsp in 2018 got rejected l then took it to the tribunal and still 2 and half years and lm still fighting for dsp and centrelink has private lawyer's going against me on my own .The centrelink worker was shocked and asked me to show proof of the tribunal ,due to theres nothing about me in the computer system that shows any Dsp claim or tribunal matter .So l showed her the last tribunal date in May and the Sparkle Helmore lawyers papers and she was shocked and within seconds she apologised and called her manager and he arrived and she explained the tribunal and is he aware of the matter because its not on her files,he repield no and was shocked and lost for words and wanted to see proof of the tribunal letter and the lawyers going against me, so l gave him what he asked for and he didnt understand how could this happen,the manager got angry and asked me how long has this been going on for and l replied 2 and half years,he repield no way l feel so sorry for you l couldnt imagine what stress and pain it would put on your health and mental state.The manager then gave me the forms for dsp and told me to fill it out and drop it in the office and he will deal with the claim.l cried and broke down and didnt understand why is this happening to me the tribunal and my Dsp claim is being kept hidden and thats the reason why l cant get any letters from anywhere about the Program of Support so when l explain about why l need it the other person no one didnt understand what l was talking about ,so when l call up centrelink there is no tribunal record or applying for dsp in the system or in my files.This matter is being hidden and lm dont understand how could this happen and why is this happening it dosent make sense to me at all,so l wont to know why did the Respondent Centrelink hidden the matter and which it has affected me from getting any letter about Program of Support . I need this matter to be investigated and the Respondent needs to explain why the matter is hidden from centrelink system or my files and why centrelink kept arguing that the Program of Support is compulsory , l have to finish the program ,thats the not the truth.l need the truth ,just like l have been throughout this tribunal . I need this matter to be investigated asap and l need answers please. Thank you
The Respondent disagreed with Ms Senturk’s assertions in this letter, particularly her assertion that her application before the Tribunal had been kept hidden from Centrelink as the documents clearly indicate Centrelink was aware of her appeal. In any event, the Respondent submitted this was not relevant to the issues before the Tribunal as they contended Ms Senturk has not met the program of support requirements nor was there evidence to support that she was prevented solely due to her impairment from improving her capacity to prepare for, find or maintain work through continued participation. The Respondent relied upon the report of Ms Walter and Dr Henderson which recommended the Applicant engage in regular psychological intervention to help reduce her symptoms, and to reduce her working capacity to two days for three to five months while she addressed these health concerns.
Ms Senturk provided the following reports which addressed her continuing inability to work. Dr Tahir observed in a letter dated 25 May 2017:
I support this lady application for any sort of pension to help with her finances as well, clearly she is not able to manage with any long hours of physical demanding job.
Dr Sturrock observed in a letter of support dated 29 May 2020:
I write this letter in support of Songul’s application for Disability Support, and she has provided me with consent to communicate with you regarding her needs.
Songul has presented back for therapy recently and still experiences persistent:
(1)       Major Depressive Disorder, severe.
(2)       Generalised Anxiety Disorder.
(3)       Somatic Symptom Disorder with predominant pain, persistent, severe.
(4)       Post-Traumatic Stress Disorder- diagnosed previously with another    practitioner.
Due to her current mental state and multiple comorbid mental health conditions, she will struggle to initiate and maintain employment at the current time (or any work related/job-network appointments) until she is in remission from ongoing psychological and psychiatric treatment. There is significant impairment sleep and concentration, social functioning, physical mobility, and basic self-care. Her mental health is being perpetuated by the extensive administrative process in her case.         It is in her best interests that this be quickly resolved.
The Tribunal finds that Ms Senturk satisfies s 94(2) of the Act as she has a continuing inability to work. In reaching this conclusion, the Tribunal relies upon the assessment of Ms Senturk’s specialist and psychologist and notes the findings of the JCA report dated 6 September 2018. These reports determined that Ms Senturk had a reduced work capacity and listed many impediments to her finding work and a number of measures required to place her in any form of employment. The Tribunal also notes Ms Senturk had been engaged with a disability employment service provider for many years and to date their intervention has not resulted in her being work ready or in any form of employment.
Given all these factors, the Tribunal is therefore satisfied that Ms Senturk has a continuing inability to work for the purposes of s 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Ms Senturk was qualified to receive the DSP as her impairments attracted 20 impairment points under the Impairment Tables, and she was prevented solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in a program of support. Additionally, she satisfies s 94(1)(c) of the Act in that she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Act.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

...........[sgd]............................
Associate
Dated: 14 August 2020

Dates of hearing:
1 May 2020 & 2 June 2020

Date final submission: 28 July 2020

Applicant: By telephone

Advocate for the Respondent: Ms Cailin Farrell

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 2950

14 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction

Dates of hearing:	1 May 2020 & 2 June 2020
Date final submission:	28 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms Cailin Farrell
Solicitors for the Respondent:	Sparke Helmore Lawyers