Slater and Department of Family and Community Services

[2001] AATA 203

DECISION AND REASONS FOR DECISION [2001] AATA 203

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/414

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      PETA SLATER      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Dr E K Christie, Member   

Date16 March 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that Peta Slater was qualified for Disability Support Pension from 2 November 1999.     
  .............(Signed)........................
  DR E K CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension refused – epilepsy – assessment of impairment – whether a continuing inability to work
Social Security Act 1991: ss.94
D'Ambrosio and Secretary, Department of Social Security (AAT No. A93/72, 17 June 1994)
Doolan and Department of Family and Community Services [2000] AATA 831

REASONS FOR DECISION

March 2001 Dr E K Christie, Member               

1. This is an application by Peta Slater for a review of the decision of the Social Security Appeals Tribunal ("the SSAT") made on 29 March 2000 to reject Ms Slater's claim for Disability Support Pension ("DSP").  The SSAT affirmed the decision of a Centrelink Authorised Review Officer made on 8 February 2000.

2. Miss Slater applied for DSP on 2 November 1999.  The SSAT decided that:

   "25.     The Tribunal agrees with the rating of 10 points on this table (Table 21.4) which means that Miss Slater does not satisfy section 94(1)(b) and consequently does not qualify for disability support pension.

   26.      The Tribunal did not make a determination regarding Miss Slater's continuing inability to work.  However, on the available evidence the Tribunal feels that given the right environment, Miss Slater would be capable of work."  (T2, Folio 7)

1. At the hearing, Miss Slater was represented by Mrs. H. Walker-Munro of Counsel.  The respondent was represented by Mr. P. Kanowski, a Departmental Advocate.  Evidence on behalf of the applicant was given by Miss Slater and her parents Gary Slater and Carol Slater and Ms. Helen Tinson (nee Fitchett) a neuro psychologist at Princess Alexandra Hospital.  The respondent called Dr. R. Boyle, neurologist at Princess Alexandra and Logan Hospitals.

2. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1) and the following exhibits:

• Exhibit 2 - Certificate of Appreciation, Southbank TAFE, Peta Slater, March, 1999

• Exhibit 3 – Letter Dr. Richard Boyle Re Peta Slater, 11 October 2000

• Exhibit 4 – Report of Helen Tinson (nee Fitchett) Neuropsychologist, 17.8.2000

• Exhibit 5 – Report of Louisa Watson, CRS, Australia, 30 November 2000

ISSUES BEFORE THE TRIBUNAL

1. The issues for the Tribunal to decide were:

• Whether Miss Slater's condition was a permanent impairment that attracted a rating of 20 points or more on the Impairment Tables;  and

• If this were the case, whether or not Miss Slater would be able to work for at least two years, or alternatively, whether she would be able to be retrained for work within two years.

FACTS

1. The SSAT made the following findings of fact:

   "(i)       Miss Slater claimed disability support pension on 3 November 1999.

   (ii)       Miss Slater suffers from temporal lobe epilepsy."  (T2, Folio 5)

EVIDENCE OF GARY SLATER (APPLICANT'S PARENT)

1. Mr. Slater described the seizure events of his daughter:

• That seizures commenced when his daughter, Peta, was 18 months old;

• That a typical seizure event would result in Peta falling asleep on average 15 – 20 minutes, then being drowsy as she recovered over a  four hour period;

• That for half the time, one seizure would be followed by another within three to four hours;

• That there was no regular pattern of seizure occurrence;  and

• That the pattern of occurrence was "chaos".

1. Mr. Slater described the effects of seizure events on Peta's daily life as follows:

• Seizures affected Peta's eating pattern, particularly if there were clusters of seizures;

• He had taken Peta to assist him in his trade work (a ceramic tiler).  He gave her simple tasks such as grouting and unpacking tiles.  Seizures had occurred at work.  However, Peta found it difficult to follow instructions, even written instructions, and became frustrated.  Based on his experience with Peta, she could not fulfil a work requirement of 30 hours per week because her medical condition was too severe a limitation;

• There were problems with Peta using public transport.  For example, she had a seizure whilst travelling on rail causing her to miss her stop;  and

• She had a limited short-term memory resulting in her being forgetful and losing personal items.

1. Mr. Slater stated that he had accompanied Peta to her consultations with Dr. Boyle for 60% to 70% of her appointments.  The average length of consultation was three minutes and the medication regime was the main focus of each consultation.  Mr. Slater disagreed with Dr. Boyle's conclusion in his report (Exhibit 3) that Peta had weekly seizures.

2. In response to a question during cross-examination, Mr. Slater said that the CRS Work Trial at Logan Hospital lasted about six weeks.  Peta worked for a maximum of five hours per day and no more than 25 hours per week.
   EVIDENCE OF CAROL SLATER (APPLICANT'S PARENT)

3. Ms. Slater further expanded on Peta's seizure events:

• Seizures occurred in clusters of three to four per day or one per day.  They could occur whilst Peta was sleeping;

• Following a cluster of seizures on any one day, Peta would be drowsy for most of the following day;  and

• That this pattern had been unchanged from the date of the DSP claim to the AAT hearing.

1. Ms. Slater said that Peta had undertaken an 8 to 12 week full-time TAFE course in March 1999.  However, problems associated with her medical condition, including a short period of hospitalisation, meant she could not complete the course and so be granted a certificate that listed subjects passed and grade achievements in the subjects studied (see Exhibit 2).  Furthermore, she said that the pattern of seizures during the period of attendance at the TAFE course was approximately the same as it is currently.

2. Ms. Slater stated that Peta was very keen to find work but all attempts to date had been unsuccessful.  Ms. Slater described five recent examples where Peta had been trialed for work (eg coffee shops, restaurant) but, in each case, employment ceased after one day, often without explanation.  In one of these examples, Peta had a seizure at work.  It was Ms. Slater's understanding that Peta always disclosed her epilepsy condition to potential employers before starting work. 

3. Ms. Slater said that Peta had a seizure, also, whilst working at the Logan Hospital on the CRS Work Trial.

4. Ms. Slater outlined some of the safety concerns they had experienced in Peta's daily life:

• A short walk home from a bus stop (300-400 metres) resulted in Peta once going to the wrong home;

• Concerns with safety in using electrical appliances;  and

• Concern with her capacity to carry out domestic tasks.  This necessitated all tasks to be carefully written out.  Peta could only carry out one direction at a time.

1. Ms. Slater stated that the "Treating Doctor's Report" (T12) was not completed by Dr. Boyle – Peta's treating doctor, but rather his Registrar, Dr. Walsh.  Ms. Slater was present at the consultation and observed Dr. Walsh seek Dr. Boyle's approval before preparing the report.
   EVIDENCE OF PETA SLATER (THE APPLICANT)

2. Peta Slater described the events leading to a seizure:

• Anxious feelings preceded a seizure;

• That she could not recall anything after a seizure including having the seizure;

• That she felt tired and drowsy for most of the day on recovering from a seizure;

• That there were no set pattern to her seizures;  and

• That over the past 12 months there had been little change in the frequency of seizures.

1. The applicant said her Year 11, 12 schooling had been adversely affected by her high medication regime causing her to miss a great deal of school work.  Her medical condition, together with hospitalisation, led to her "missing time" resulting in her not obtaining the standard certificate of completion given to students who had passed all subjects in Year 12 (see Exhibit 2).

2. In relation to the CRS Work Trial at Logan Hospital, the applicant said:

• That she had difficulties fulfilling this role and had to be assisted by others;

• That she had been told by staff that she had seizures working but could not recall the events;

• That she had now realised work in the catering/hospitality area would not be appropriate for her because of safety issues;  and

• That she found it difficult to work in a job with the general public.  She recalled the trauma, eventually breaking down, when she saw a patient collapse at the hospital.  She could not cope with similar problems in public.

1. Peta Slater said that her consultation time with Dr. Boyle was always very brief.  In response to Dr. Boyle's questions about the frequency of seizures, she could only respond by reference to the "anxious feelings", as she could not recall the seizures.  The applicant said that her parents' knowledge would be the most reliable source of the frequency of her seizures.

2. The applicant attended the SSAT hearing alone.  Her parents did not accompany her.  In response to the following evidence she gave to the SSAT:

   "When she has an epileptic seizure she usually remains conscious but blanks out for 3–4 minutes.  She then falls asleep for ½ to 1 hour and then is back to normal" (T2 Folio 4),

Peta Slater said that she disagreed with this statement.  However, she believed that if this answer were given to the SSAT, it was possibly because "she was trying to be positive".

1. In response to the following evidence given at the SSAT:

   "Miss Slater feels she would be able to work if there was suitable work."  (T2, Folio 4),

Peta Slater said that such a statement reflected her keenness to be able to work.

1. In response to her answer given in Question 7 ["Work Ability – Customer Information Form" (T5)] that she would be able to return to full-time work "now", Peta Slater said that her answer reflected her thoughts that if she could find a suitable job she could work for 20 hours full-time.
   EVIDENCE OF HELEN TINSON (nee FITCHETT) NEUROPSYCHOLOGIST

2. Ms. Tinson said she first saw the applicant in September 1999 and over the following 12 months had seen Miss Slater at least once every three to four weeks.  Consultations were for 50-60 minutes.

3. Ms. Tinson stated that she had also reviewed medical and hospital records from Princess Alexandra Hospital where contact with the applicant had been documented.  The frequency of seizures contained in these reports could be summarised as follows:

• February 1998    -         seizure free whilst commencing a new medication regime but then changing to four seizures per week

• March 1998        -          five seizures per week

• April 1998           -          four to five seizures per week

• June – Oct 1998 -          one to five seizures per week

• December 1998  -          increased frequency of seizures, however, no values given.

1. However, Ms. Tinson stated that there was little documentation on the frequency of seizures in 1999.

2. In relation to the "Neuropsychological Report" of Lynne Ridgway and Lynda Troy (T7), Ms. Tinson stated that the findings represented the "absolute best performance" for Miss Slater and in no way reflected a situation that reflected circumstances where there had been a seizure, including the recovery phase following a seizure.  At the time of these tests the frequency of the applicant's seizure was one per week, which was much less than usual.  Moreover, Ms. Tinson stated that the purpose of these tests was not to evaluate the applicant's ability to work, but rather her general cognitive functioning in relation to work and lifestyle.  Furthermore, the threshold standards used to evaluate the test criteria in T7, and so rate the applicant, were American standards and were not directly applied by all Australian neuropsychologists in assessing cognitive function.

3. In her report, (Exhibit 4), Ms. Tinson stated:

   "She is currently having 2 – 3 seizures per week.  According to the family, she loses consciousness on each occasion, sleeps for 30 – 45 minutes after cessation of the seizure, and remains drowsy and 'vague' for a further 2 – 4 hours.  Attentional and memory functioning may take 12- 24 hours to return to its baseline level after a single seizure.  Peta also tends to experience clusters of seizures, which have a cumulative effect on cognitive and memory functioning.  Under these conditions, it would be extremely unlikely that Peta could reliably work 30 or more hours per week.
   In summary, Peta has permanent cognitive and memory deficits that are currently relatively mild, but that are significant enough to impair occupational functioning.  These cognitive and memory deficits are exacerbated by seizures.  The deficits would appear to warrant an impairment rating of at least 10 points on the Impairment Tables.  Peta is also subject to ongoing stressors as a result of her epilepsy, meaning that some degree of psychosocial impairment is also likely to be permanent.  Finally, the frequency of seizures and the after-effects associated with them render it most unlikely that Peta could work 30 or more hours per week on an ongoing basis."

1. In her oral evidence, Ms. Tinson stated that the following cognitive and psychosocial difficulties contributed to the limitations in the applicant's inability to work:

• Very significant memory loss following a seizure;

• The high frequency of seizures of up to five per week;

• Difficulties performing new tasks in new situations, especially when the steps were not clearly defined;

• Large problems in concentration, not reflected in the Neuropsychological Report (T7) which resulted in inconsistency in absorbing information;

• Tiring easily over time which in turn impaired concentration;

• Defects in social skills and emotional maturity;

• Difficulty in focussing selectively on information from different sources as well as difficulty in having conversation with different people at the same time;  and

• Difficulty in understanding information in a 1:1 situation.

1. Ms. Tinson stated that impairments for each of the above elements were present in the applicant.  Regardless of the actual level they were assessed, the fact that they all occurred and linked together, meant that the synergystic effects of the combined effects were far greater than the individual effects.  As a result, it was unlikely that the applicant could work for 30 hours or more per week on an ongoing basis.

2. Ms. Tinson said that the applicant could not complete full-time study because of:

• The frequency of seizures and the length of the post-recovery period following a seizure when the applicant could not function;  and

• The problems associated with study as the applicant would have problems absorbing and retaining material in her memory.  This problem would be exacerbated if subjects completed were the foundation for the study of further subjects, such as pre-requisites.

EVIDENCE OF DR. RICHARD BOYLE  (NEUROLOGIST)

1. Dr. Boyle agreed with the conclusions in the Work Ability Information Form that he had completed (T4) that the applicant had the ability to work in jobs such as office work, shop work, a medical receptionist or a Woolworths secretary.

2. Dr. Boyle stated that the frequency of the applicant's seizures were one per week.

3. In relation to the applicant's cognitive functions, Dr. Boyle stated that generally speaking the applicant "functions quite well".

4. During cross-examination, Dr. Boyle was referred to the Work Ability Information Form (T4) he had completed.  Dr. Boyle said that he could not recall:

   (a)Whether he or his Registrar had seen the applicant;

   (b)The length of the appointment;  or

   (c)The questions asked.

In addition, he did not have a copy of the Neuropsychological Report (T7) when completing the "Work Ability Information Form" (T4).

1. Furthermore, Dr. Boyle could not recall any of the notations made in the Treating Doctor's Report (T12, Folio 78).

2. In response to a Tribunal question, Dr. Boyle stated he had made no formal assessment of the applicant under Table 8 (Neurological Function:  Memory, Problem Solving, Decision Making Abilities and Comprehension) using the Impairment Tables.

3. Dr. Boyle concluded by stating "All we do as doctors is to fill in the forms that are given to us and if the forms aren't adequate then its not our fault…. I think it reflects on the inadequacy of the forms we're given when these disputes arise" and "…..but I think the forms are inadequate that we are asked to fill out.  That is why these disputes arise on them."
   CONTENTIONS AND SUBMISSIONS OF THE PARTIES

4. Mr. Kanowski, for the respondent, outlined the following frequencies of seizures:

• Once per week, although they often occurred in clusters:  Troy Neuropsychological Report (T7, Folio 38);

• Number of seizures varies, once in last month, average once per week.  During seizure loses contact with surroundings for about a minute, fatigue for several hours afterwards:  Dr. McGrath (T14, Folio 85);

• Seizure occur approximately weekly:  Dr. Boyle Exhibit 3;

• Average of one to two seizures per week, currently two to three per week.  Sleeps for 30 – 45 minutes after cessation of the seizure and remains drowsy and vague for a further two to four hours:  Tinson Neuropsychological Report Exhibit 4.

1. The respondent submitted that the rating assigned by Dr. McGrath of 10 points under Table 21 (T14 Folio 87) was correct.  Dr. McGrath had assigned a rating under Table 21 on the following basis:  severity of level 3;  duration of medium (includes fatigue afterwards);  and frequency of 50+.  This leads to a rating of 10 points (T14 page 87).

2. The respondent submitted that the impairment rating of nil points assigned by Dr. McGrath under Table 8 of the Impairment Tables was correct.  Dr. McGrath's assessment of the applicant's cognitive functioning, for the purposes of the Impairment Tables, was as follows:  full scale IQ average,  language functioning normal;  good attention and concentration;  memory – average to low average (T14, Folio 86).  Dr. McGrath had concluded "minor difficulties with memory – testing in average to low average range".  (T14, Folio 67).

3. The respondent acknowledged that Ms. Tinson reported that in her opinion the applicant qualified for at least 10 points, under Table 8, in respect of her cognitive and memory deficits.  Ms. Tinson wrote that this assessment was based on the May 1999 assessment, discussions with the applicant and family as well as her own observations (Exhibit 4).

4. In further support of Dr. McGrath's rating of nil points under Table 8 as being correct, the respondent referred to the following evaluation of neurological functioning of the applicant:

• Memory impairment (mild);  other cognitive difficulties, fluctuating and permanent – Troy Neuropsycholoigcal Report (T6, Folio 32);  and

• Extensive neuropsychological testing undertaken at Princess Alexandra Hospital in May 1999 (T7) where a neuropsychological review was undertaken "to assess Peta's general cognitive functioning".  The respondent contended that the results of testing show that the applicant's abilities fall overwhelmingly within the average range.  Her neurological functioning could not be described as mildly impaired.  In addition it was not impaired to the extent contemplated in Table 8 for a ten point rating.

1. The respondent submitted that the applicant did not have a continuing inability to work because:

• The assessment contained in the Troy Neuropsychological Report (T7 Folio 41) that "If Peta decides to return to higher education to further her career prospects, I expect that she could perform adequately given some strategies for learning";

• The applicant worked as a tiler with her father, one day per week;

• The Work Ability Report of Lynda Troy (T61, Folio 34, 6 October 1999) where Ms. Troy's opinion was that the applicant could work for more than 30 hours per week – a view also expressed by Dr. Boyle (T4, Folio 21, 29 September 1999);

• Dr. Walsh's opinion (T12, Folio 78, 24 November 1999) that the applicant could commence full-time work within 6 – 12 months if stable;

• Dr. McGrath's opinion that the applicant's minor difficulties with memory would have minimal impact on her work capacity (T14, Folio 87);

• Ms. Tinson's professional opinion not being appropriate because it was based on the applicant's medical condition becoming more severe after the claim for DSP was lodged;

• The opinion of Louisa Watson of CRS Australia (Exhibit 5, 30 November 2000) in relation to the applicant's good performance in undertaking a work training trial in the food services department of a hospital, specifically, at page 2 of her report:

  "Peta performed well, and managed the tasks set for her quite well.  However there were reported incidents that related to her emotional immaturity, as well as her lack of ability to remember instructions and problem solve.  Peta's father and stepmother reported that she required a lot of support in maintaining her ability to use public transport, in order to get to and from the worksite";  and

  "[that it] would be a long time, if ever, before Peta would be able to sustain full-time employment.  This opinion is based directly on measuring Peta's ability to progress with her goals to improve herself, as well as monitoring the amount of seizure activity that she continues to suffer".  Ms. Watson refers to an "inability to work following a seizure (sometimes reported as much as 24-48 hours)"

1. The respondent submitted that the applicant's epilepsy and minor difficulties with memory, as at the time of claim, would not have prevented her from engaging in work for at least 30 hours per week.  The respondent further submitted that there were many types of job the applicant could perform, including receptionist, florist, domestic assistant, veterinary assistant and office worker.

2. Mrs. Walker-Munro for the applicant contended that it was difficult to place an average of Miss Slater's seizures because they occurred erratically and in clusters, at any time of the day or night.

3. In terms of assessing a rating under Table 8, Counsel for Miss Slater submitted that Ms. Tinson's oral evidence was relevant in that she identified all elements specified under the Table as being affected;  specifically,

   ·     Executive processing problems;

   ·     Cognitive processing problems

   ·     Fluctuating attention spans;

   ·     Difficulty remembering faces

1. Moreover, Counsel for Miss Slater submitted that there were limitations in the Troy Neuropsychological Report (T7) because the tests were undertaken in a "controlled environment" and so could not be directly extrapolated to the outside world situation.  Moreover, the threshold ranking system used to evaluate the tests undertaken in the Troy Report were based on American standards rather than Australian standards;  the standards in each case differed.

2. Counsel for Miss Slater contended that any assessment of all the evidence before the Tribunal in relation to Table 8 would indicate that Peta Slater did not have a minor – but rather a mild, memory impairment that impacted on her daily life;  that Peta Slater could only function by prompts and check lists from family and others who supported her.

3. In terms of ability to work, Counsel for Miss Slater submitted that the requirements imposed by the Social Security Act 1991 for work, could not be achieved because:

• Miss Slater could not carry out any task with sustained concentration;

• Miss Slater had significant problems with memory recall;

• Miss Slater had difficulties in problem solving;  and

• Miss Slater's pattern of seizures.

1. In terms of Peta Slater's ability to undertake full-time study, Counsel  contended that this was not feasible because of the restrictions imposed by limited memory recall, as well as the pattern of seizures which would create attendance problems.  The evidence before the Tribunal in relation to the TAFE course undertaken clearly illustrated this problem.

2. Mrs. Walker-Munro contended that my assessment of Peta Slater's ability to work should be based on a consideration of the linkage between all of the factors with respect to her ability to work and retrain.

3. With respect to the CRS Work Training Trial, Counsel submitted that this did not simulate real work because it involved not much greater than 15 hours work per week in a closely supervised situation.

4. Mrs. Walker-Munro concluded that any consideration of Peta Slater's ability to work would need to be based on the need for a supportive environment to work.  Given the applicant's impairments this would require a "benign employer".  The concept of a "benign employer" and ability to work had been considered by the Tribunal in decisions involving entitlement to DSP:  see Secretary, Department of Family and Community Services and Bell (AAT 13439, 10 November 1998;  Hamal and Secretary, Department of Social Security (AAT 8967, 6 September 1993).
   CONSIDERATION OF THE ISSUES

5. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.  The relevant legislation is the Social Security Act 1991 ("the Act").

6. Section 94 of the Act has provisions for Qualification for Disability Support Pension – Continuing Inability to Work.

   "94(1)  [Qualification – continuing inability to work]  A person is qualified for disability support pension if:
   (a)       the person has a physical, intellectual or psychiatric impairment;  and

   (b)the person's impairment is of 20% or more under the Impairment Tables;  and

   (c)because of the impairment the person has a continuing inability to work;  and

   (d)the person has turned 16;  and

   (e)the person either:

   (i)is an Australian resident at the time when the person first satisfied paragraph (c);  or

   94(2)  [Meaning of 'continuing inability to work']  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years;  and

   (b)either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking education or vocational training or on-the-job training during the next 2 years;  or

   (ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

   ……
             94(5)  [Interpretation] in this Section:
             …..
             'work' means  work:
             (a)       that is for at least 30 hours per week at award wages or above;  and

   (b)that exists in Australia, even if not within the person's locally accessible labour market"

1. In respect of Miss Slater's credibility and the veracity of her evidence, the SSAT concluded that the following finding of the SSAT "14.  The [Social Security Appeals] Tribunal appreciated the honest and direct way in which Miss Slater provided her evidence."  (T2, Folio 5), is a view that the Tribunal endorses.

2. In it's discussion of the evidence, the SSAT stated that:

   "17.  The Health Services Australia medical officer rated her disability as a severity level of three lasting more than four hours and occurring more than 50 times per year.  This equates to an impairment rating of 10 points."  (T2, Folio 5)

In addition, Dr. Boyle stated that Peta Slater was "on large doses of anticonvulsants and it is unlikely that the seizure activity will ever be completely abolished"  (Exhibit 3).

1. In assessing an impairment rating for DSP purposes, the Tribunal considers that the frequency of seizures is a very significant factor.  In cases decided by the Tribunal, where an applicant sought DSP for the medical condition of epilepsy, an impairment of 20 points was not granted where:

• The applicant had a seizure on average once every six months:  D'Ambrosio and Secretary, Department of Social Security (AAT Number A93/72, 17 June 1994);  and

• The applicant had only four seizures in 1998, less in the previous years:  Doolan and Department of Family and Community Services [2000] AATA 831.

1. Miss Slater's situation is clearly different from both these cases.  In contrast, Miss Slater's pattern of seizures is much more frequent than these two decided cases.  It is not in dispute that her seizures occurred in clusters.  Hospital records for 1998 indicate one to five seizures per week.  Ms. Tinson's oral evidence is that Miss Slater is currently having two to three seizures per week. Carol Slater's evidence was that following a cluster of seizures on any one day, Peta Slater would be drowsy for most of the following day (paragraph 10).  Peta Slater's evidence was that she felt tired and drowsy for most of the day on recovering from a seizure (paragraph 17).

2. The medical evidence for the respondent, on the other hand, gave a much lower frequency for seizures [viz – one per week (paragraph 39)] and response/recovery time following a seizure – 15 minutes to several hours (Exhibit 3;  T14, Folio 91).

3. In considering the frequency of seizures and the response/recovery time period following a seizure, the Tribunal prefers the evidence referred to by Ms. Tinson as contained in the Princess Alexandra Hospital records for 1998 (paragraph 25) and the oral evidence of Ms. Tinson (paragraph 29), Carol Slater (paragraph 11), Gary Slater (paragraph 7) and Peta Slater (paragraph 17).  The Tribunal has concerns that there are limitations in Dr. Boyle's reports given the brevity of consultation time, his comments made to the Tribunal on the adequacy of the forms for assessment purposes (see paragraph 38) as well as his understanding of the Work Ability Information Form and the Treating Doctor's Report (paragraphs 35, 36, 38).  In turn, these limitations would have affected the usefulness of the Treating Doctor's Report for Dr. McGrath's Medical Assessment Report (T14).

4. Based on these conclusions the Tribunal finds that, on the balance of probabilities, Peta Slater would have one to three seizures per week.  The response/recovery time following a seizure would be around two to four hours but could extend for much longer eg most of the following day, if there were a cluster of seizures.  In addition, the Tribunal accepts the evidence of Ms. Tinson and Carol Slater that the fluctuating pattern and frequency of seizures remained the same from the time the application for DSP was made to the time of the AAT hearing.

5. In assigning a rating under Table 21, the Tribunal agrees with the assessment of Dr. McGrath:

• A severity level of three under Table 21.1;  and

• A medium lasting duration under Table 21.3.

This assessment gives a "Severity Level" grade of "D" under Table 21.4.

1. Combining this grade (Table 21.3) with the average frequency of two to three episodes per week and the response recovery time (paragraph 63) then a rating of 20 points could be assigned under Table 21.4 because the number of affected days per year would exceed 100.

2. Moreover, the Tribunal considers that, on the balance of probabilities, a further rating could be made under Table 8.  In reaching this conclusion, the Tribunal prefers the evidence of Ms. Tinson to that of the neuropsychological review of Louisa Troy (T7) and Dr. McGrath's assessment (T14).  The Tribunal concludes that there are a number of areas of uncertainty which limits the value of the Troy reports in assessing Ms. Slater:

• The frequency of seizures of one per week used by Ms. Troy and Dr. McGrath in their evaluation (T7, Folio 38 andT14) as well as the effects of seizures on cognitive function;

• The limitations in the Troy Report in correctly reflecting the effects of seizure, including the response/recovery period following a seizure;  and

• Uncertainty whether the American threshold standards were directly  applicable standards appropriate to use in the assessment of cognitive function.

1. The Tribunal agrees with the conclusions of Ms. Tinson that Peta Walker qualifies for 10 points under Table 8 for her cognitive and memory deficits (Exhibit 4, pages 1, 2).

2. Based on these findings (paragraphs 65,67), the Tribunal concludes that Peta Slater should be assigned an impairment rating of 30 points under Tables 8 and 21. This means that ss.94(1)(a, b) of the Act is satisfied.

3. The Tribunal further finds that the weight of evidence before the Tribunal supports the conclusion that Peta Slater is unable to work for at least two years where "work" is consistent with the meaning in ss.94(5) of the Act. Furthermore, the Tribunal finds that Peta Slater would not be able to be retrained for work within two years.

4. In making these findings, the Tribunal concludes that:

• The evidence and conclusions of Ms. Tinson (paragraphs 28 – 31) provide the more accurate evaluation of Peta Slater's ability to work given they better reflect his seizure frequency, recovery/response reaction following a seizure as well as her cognitive and psychosocial difficulties;

• The problems and difficulty Peta Slater has encountered in work trials and working with her father (paragraphs 8, 10, 12, 13);

• The comments of Louisa Watson (paragraph 44 and Exhibit 5 page 2) that it would be a long time, if ever, before Peta would be able to sustain full-time employment;  and the limitations in assessments contained in reports of Dr. Boyle, Dr. McGrath and Louise Troy (T6, T7) discussed elsewhere in this decision.  In addition, limitations in the approach taken by Dr. Boyle in assessing work ability and neurological function of Peta Slater (see paragraphs 35, 37).

1. Based on all of the above findings, the Tribunal sets aside the decision under review and in substitution therefore decides that Peta Slater was qualified for Disability Support Pension at the time application was made on 3 November 1999.

   I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member

   Signed:         .....................................................................................
              B. Hitchcock, Secretary

   Date/s of Hearing  20 February 2001
   Date of Decision  16 March 2001
   Counsel for the Applicant        Mrs. Walker-Munro
   Solicitor for the Applicant         Welfare Rights Centre
   Respondent  Mr. P. Kanowski, Departmental Advocate