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

Tamay and Secretary, Department of Social Services (Social services second review) [2021] AATA 3559 (6 October 2021)
Division:GENERAL DIVISION
File Number: 2020/5587
Re:Ms Aydan Tamay
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO Member
Date:6 October 2021
Place:Melbourne

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
........................[sgd]................................................
Ms A E Burke AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified –whether severe – narrow dispute around descriptor (b) under table 5 mental health function – whether descriptor means person is unable or restricted in ability to undertake social/reactional activities or travel – whether applicant has continuing inability to work – where work is the trigger for applicants mental health condition - decision under review set aside.
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
Cases
Alicier and Secretary, Department of Social Services [2017] AATA 538
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Ljubovic and Secretary, Department of Social Services [2015] AATA 1025
Negri v Secretary, Department of Social Services (2016) 246 FCR 1
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO Member
6 October 2021
INTRODUCTION

Ms Aydan Tamay (the Applicant) is seeking a second tier review of the decision made by the Social Services and Child Support Division of this Tribunal ( AAT1) 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 section 94 of the Social Security Act 1991 (the Act).
Ms Tamay lodged a claim for the DSP on 20 November 2018. On 18 February 2019, Centrelink rejected Ms Tamay’s claim for the DSP, as she did not have an impairment rating of 20 points. On 18 June 2020, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Ms Tamay sought review of the decision by the ARO at AAT1, which affirmed the decision on 12 August 2020. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
At the hearing of this application on 20 August 2021 by video conference, Ms Tamay was represented by Ms Sheena Dhanji of Counsel, instructed by Ms Olympia Sarinikolau of Victorian Legal Aid. Ms Olivia Hicks of the Australian Government Solicitor appeared for the Respondent. Doctor Cidoni, psychiatrist, and Ms Baldacchino, clinical psychologist from the Health Profession Advisory Unit (HPAU) of Services Australia gave evidence under affirmation.
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, additional medical reports were lodged by Ms Tamay and the Respondent.
THE ISSUES IN CONTENTION
The issue in contention is whether Ms Tamay was qualified for a DSP from the date of her claim, 20 November 2018 to 18 February 2019 (the qualification 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 Ms Tamay 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 Tamay is a 39 nine-year-old woman of Turkish heritage who resides with her mother, disabled brother, and sister in suburban Melbourne. Ms Tamay has completed Year 12 and has a double degree in Business-Marketing and Psychology. Ms Tamay commenced a Master’s degree in Data Analytics in 2017, however she withdrew from the course due to the social interactions required of the degree such as group work, and difficulties she experienced with concentration and memory.
Ms Tamay has a significant work history. Her most recent employment was as a survey administrator/coordinator (2008-2016 full-time) at Victorian University. Ms Tamay ceased working in 2013, due to a workplace bullying. At first, she utilised sick leave, but her employment was eventually terminated when she was unable to return to work.
Ms Tamay previously worked at Myer, where she was promoted to the bridal registry section. She also worked for Optus for six years, eventually becoming a Store Manager. She also undertook work as a market research interviewer as she hoped to pursue this as her career.
On 20 November 2018, Ms Tamay made an application for a DSP, citing her medical conditions as “persisting moderately severe anxiety disorder, including but not limited to a panic attack disorder with agoraphobia”. Ms Tamay reported in her application that she becomes suicidal, especially when pressured to do activities that she can’t, and that she becomes stressed, depressed, panicked and moody.
On 7 February 2019, a face-to-face job capacity assessment (JCA) was undertaken by Centrelink. The JCA report dated 18 February 2019 assessed Ms Tamay’s impairments as mild, attracting five points under Table 5 – Mental Health Function (Table 5):
The medical documentation, in addition to the client's self~reports indicates there is a mild functional impact on activities involving mental health function.
(l) The person has mild difficulties with most of the following:
(a) self care and independent living.
"She describes a mundane and restricted life, big on routine and devoid of friendships. She rises and makes breakfast, drives to yoga class where she doesn't speak or make friends but just follows instructions she spends an hour there and then goes off for a walk in the botanic gardens for several kilometres then she goes home via one of a handful of grocery stores where she can pick up groceries. She cooks dinner, cleans up and then is in bed by 8.30- 9.30pm every night. The only other interruption to her daily routine is with medical and orthodontic appointments.
She watches movies and TV reads social media browses lnstagram and reads travel biogs" identified in letter by Psychiatrist Dr Stuart Wild dated 6/11/2018.
The client reported can manage self care and day to day living activities independently without prompting. The client reported showers regularly1 prepares meals and completes all household duties. The client reported attends yoga 4 times a week (1 hour) and walks regularly (daily).
(b) social/recreational activities and travel.
"She has developed a phobic anxiety around work, lives a somewhat restricted lifestyle that follows set of routines of home duties and exercise, but she maintains friendships and has travelled outside of Australia" identified in letter by Psychiatrist Dr Stuart Wild dated 19/1/2018. Her hope for travel was the only forward looking and non routine activity that she spoke about, but which is restricted because of her financial situation" identified in letter by Psychiatrist Dr Stuart Wild dated 6/11/2018.
The client reported travels independently frequently and can travel to unfamiliar areas however feels more comfortable with familiar areas. The client reported has travelled overseas to Cambodia alone (close to a month).
The client reported has attended social functions recently and will only interact with familiar people. The client reported due to finances and Centrelink requirements has been unable to travel
(c) interpersonal relationships.
"She feels sensitive, untrusting and gave the specific example of it taking ten months for her to feel comfortable in trusting her yoga class. She still enjoys some things in her life such as yoga, movies, reading and seeing her friends" identified in letter by Psychiatrist Dr Stuart Wild dated 19/1/2018.
The client reported a strained relationship with her mother, brother and her sister who has recently arrived from overseas. The client reported the family has engaged in more frequent arguments since her sister has arrived from overseas. The client reported has friends at yoga in which she is now having regular interactions with. The client reported has difficulty with making new friends due to trust issues.
(d) concentration and task completion.
"She watches movies and TV, reads social media1 browses lnstagram and reads travel biogs" identified in letter by Psychiatrist Dr Stuart Wild dated 6/11/2018.
The client reported always enjoyed reading and has only recently commenced reading again. The client reported concentration can vary and at times needs to re read chapters/pages because has been distracted. The client reported can maintain concentration and follow instructions at yoga for 1 hour.
(e) behaviour, planning and decision-making.
"Since leaving work she has suffered persistent depressive and anxiety symptoms, particularly anxiety and she has coped largely by avoidance, managing her anxiety with exercise and yoga. She has sleep difficulties, often with early insomnia and rumination and with broken sleep waking in panic. She does not feel great happiness or sadness, but lives in a neutral state. There was no indication of psychosis and she was not suicidal" identified in letter by Psychiatrist Dr Stuart Wild dated 19/1/2018.
The client reported persistent low mood, anxiousness with panic attacks (at least once a week) and regular suicidal thoughts. The client did not indicate a plan or intent when asked by the assessor.
(f) work/training capacity.
"When she spoke about work she was quite adamant that she felt broken, could not envisage ever returning to work because of risk of being bullied again. She said "if it means returning to work, I don't want to get better', preferring instead her current financially limited and restricted lifestyle" identified in letter by Psychiatrist Dr Stuart Wild dated 19/1/2018.
The client reported due to past experiences at work does not feel capable of ever returning to work. The client reported enrolled into a Masters Degree in 2018 however due to finances and not being able to afford texts required along with the requirement of group work withdrew from the course after 1 month.
Given the symptoms reported by the client and medical information provided, the client meets the criteria for 5 points. The client does not meet the criteria to allocate 10 points as the client does not require support to live independently and can maintain hygiene and nutrition, the client goes out alone frequently, the client can concentrate and complete activities for more than 30 minutes (attends yoga 4 times a week, watches movies, reads) and can manage completion of day to day activities without assistance.
On 18 June 2020, on internal review, An ARO affirmed the earlier Centrelink finding. The ARO confirmed the JCA review and awarded a total impairment rating of five points, stating:
You reported to the Job Capacity Assessor on 7 February 2019, that you manage activities of daily living, attend yoga classes.
Table 5 of the Impairment Tables is used to assess functional impairment due to mental health condition (including recurring episodes of mental health impairment). Based on the available evidence provided by your treating doctors, a rating of 5 points has been correctly assigned under Impairment Table 5.
During our discussion on 18 June 2020, you told me you do not wish to consult a specialist or a GP and undertake treatment for your conditions.
As you do not have an impairment rating of at least 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 12 August 2020, the AAT1 affirmed the decision of the ARO to reject Ms Tamay’s DSP claim. The AAT1 awarded Ms Tamay an impairment rating of five points under Table 5 and so found she was not eligible for the DSP. The Member stated at [13]-[14]:
In November 2018 when she made her claim, Ms Tamay was living with her mother and disabled brother. She had to help out at home and there were arguments about money. She helped her mother with cooking, cleaning and shopping. She drove and would go to the supermarket on her own, but only specific supermarkets where she felt comfortable. She managed her own activities of daily living and finances. She went to yoga classes twice per week and took part in fitness training once per week. She did a lot of walking. She reconnected with friends about that time and would meet them. She spent a lot of time on the internet. When reading she would sometimes have to read articles again as she could not remember what she had read. When watching television her concentration was poor. She has not attended a psychologist since 2019.
Ms Tamay has been suffering from anxiety and depression since being bullied at work in 2013. She has attended clinical psychologists and psychiatrists but does not accept that any treatment will help her. As noted above, to apply the Impairment Tables the condition must be considered permanent and the impairment that results from the condition must be more likely than not, in light of available evidence, to persist for more than two years. For a condition to be permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised and likely to last for more than two years. Table 5 of the Impairment Tables states that an appropriately qualified medical practitioner for this condition is a psychiatrist or clinical psychologist. As Ms Tamay does not accept that any treatment will help her, and she has been seen by appropriately qualified medical practitioners, the tribunal considers this condition to be fully diagnosed, treated and stabilised. The tribunal concludes there is a mild functional impact on activities involving mental health function, as Ms Tamay has limited concentration and has strained interpersonal relationships
On 14 September 2020, Ms Tamay sought a review of the AAT1 decision, by this division of the Tribunal (AAT2), as she disagreed with the decision, stating:
The outcome suggests I have a capacity to work. This is not the case and has been since I was last bullied in my workplace 27 September 2013. Medical reports and medical practitioners thus far are yet to report accurately on my condition. I have been left severely traumatised by the bullying in the work place I endured at Victoria University and have no ability nor capacity to be in spaces and among people within any workplace. I cannot fathom the idea of being in or near any such work place, next to or working under employers and employees. I have no place in the work place.
Throughout the years of going through the processes of receiving medical treatment and pressure to return to work has exhausted me, added to suicidal ideation and attempt. For the sake of managing my mental health, I cannot be made to return to work or treated and denied Centrelink payments, which I rely on to survive, It time, this is accepted and not denied, particularly during a recession and when there are more than 2 million Australians out of work and unemployed,
It is an unnecessary and juvenile task to try and force some one in my position to return to the work place under such conditions and threaten to be cut off Centrelink payments. I have had many family and domestic violence issues where I reside due to my incapacity to return to work, financial instability and due to the threats made by Centre link staff that my payments will get cut off if I cannot meet mutual obligations requirements, I'm exhausted by all the treatments I've had to undergo and pressure to receive more treatment and anti depressants by my GP to resolve the issue that is to do with Australian workplaces which are not conducive to my well being,
On 22 February 2021, Ms Baldacchino, clinical psychologist with the HPAU provided a report regarding Ms Tamay’s conditions for the purposes of this review, her synopsis of opinion stated:
Based on the available evidence, it is my opinion that Ms Tamay presented with an anxiety disorder including panic disorder with agoraphobia which was fully diagnosed, treated and stabilised during the qualification period. It is my opinion that Ms Tamay presented with a 5 point impairment rating on Table 5 – Mental Health Function. Such level of impairment would not have excluded all work or training within two years of the date of claim.
On 10 April 2021, Dr Cidoni on behalf of the Applicant, provided a medical opinion regarding Ms Tamay’s conditions for the purposes of this review, in which he stated:
I have noted above the specific examples in Table 5 that in my opinion apply to Ms Tamay in these two domains.
In terms of Ms Trisha’s overall rating of mild, whilst numerically correct, it is difficult to reconcile someone having severe impairment in interpersonal relationships, severe impairment in behaviour, planning and decision-making and work/training capacity as having mild impairment overall.
In my opinion, Ms Tamay has severe ratings in 4 of 6 domains.
Therefore, in terms of Ms Tamay’s mental health conditions considered as a whole under Table 5-Mental Health Functions, in my opinion, Ms Tamay has a severe impairment (20 points).
On 1 July 2021, Ms Baldacchino provided an addendum to her original report. Her synopsis of opinion stated:
Following consideration of the additional information, it is my opinion that at the time of her DSP application Ms Tamay presented with an impairment in functioning consistent with a 10 point rating on Table 5 – Mental Health Function. While the additional information has increased the overall impairment rating from 5 to 10 points, it falls short of a 20 point impairment rating. My opinion that Ms Tamay did not present with a continuing inability to work at the time of qualification remains unchanged.
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) of the Impairment Tables require 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 Impairment Table requires that “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 issue to be determined in this review is whether, during the qualifying period, Ms Tamay suffered an impairment that can be assigned 20 points or more under the Impairment Tables; and if so, whether she had a continuing inability to work.
Section 5(2) provides the purpose and general design principles of the Impairment Tales. 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 a condition.
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 can 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.
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.
Section 7 of The POS determination relevantly provides:
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
Does Ms Tamay 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 Ms Tamay is suffering from an anxiety disorder including panic disorder with agoraphobia. The Tribunal finds that Ms Tamay was living with these impairments during the qualification 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 requirement to qualify for the DSP is that the person’s impairment rate is 20 points or more under the Impairment Tables.
Does Ms Tamay have medical conditions that results in impairments that can be rated 20 points or more under the Impairment Tables?
The Respondent in their Statement of Facts, Issues and Contentions accepted that Ms Tamay’s mental health condition, which they described as an anxiety disorder, was fully diagnosed, treated and stabilised during the qualification period.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Tamay’s mental health condition was fully diagnosed, treated and stabilised at the qualification period. The Tribunal notes Ms Tamay had consulted numerous qualified medical practitioners, clinical psychologists, and psychiatrists since 2015 who had variously diagnosed her with anxiety, depression, dysthymia and panic disorder with agoraphobia. The Tribunal notes Ms Tamay has undertaken significant evidence-based treatment for her condition, including cognitive behavioural therapy, acceptance and commitment therapy, mindfulness based cognitive therapy, cognitive processing therapy, emotion focussed therapy and trauma specific therapies including EMDR.
Mental Health disorder
On 30 December 2015, Mr Milan Pekic, consulting psychologist, reported Ms Tamay had attended ten counselling sessions, following her general practitioner’s initial diagnosis of mixed anxiety and depression. Mr Pekic recorded that Ms Tamay reported experiencing unpleasant thoughts and emotions surrounding a "bullying incident" and observed her slow progress was a “reflection of Miss Tamay’s inferred motivation”.
On 30 November 2016 Dr Lily Amorous, clinical psychologist, provided a report in which she opined:
Aydan presented for sessions stating that she was bullied at work from 2009 to 2012 (end date?). Aydan presented with the following symptoms: poor focus and attention, low self-esteem, low motivation, suicidal thoughts, teariness, poor sleep, short-term memory issues, and social withdrawal.
Aydan had initially stated that she wished to return to work and study, therefore her goals were to prepare for this, and to learn how to 'protect' herself in the workplace. Sessions focused on CBT strategies such as healthy lifestyle behaviours (e.g., sleep, exercise, hobbies). routine, relaxation and breathing, cognitive restructuring, reality testing, psycho-education, and mindfulness.
Establishing a working rapport with Aydan was somewhat difficult as she would frequently revert into long. almost angry, rigid, monologues with self-entitled themes such as "it's not fair…
Of particular concern was the theme that Aydan expressed in multiple contexts and situations a substantial level of paranoia. Aydan was not open to seeing situations in rationale contexts and was adamant that people were against her. For example. she asserted that her previous GP was working with Victoria University to get rid of her in her job (and consequently recorded him and put in a complaint against him). She would assume that other individuals at her sailing club were meaning harm to her /thinking she was "an idiot" despite no words being exchanged, that conciliation “set me up to fail", that her ex-boyfriend was "punishing" her, and so forth. Certainly, these themes of entitlement and paranoia were to the extent that they were preventing Aydan from engaging in study and work plans, relationships, and life activities.
On 31 March 2017, Dr Meileen Tan, psychiatrist, provided a report in which she opined

Ms Tamay’s diagnosis was dysthymia, due to workplace bullying.
On 14 August 2017, Mr Urosevic, clinical psychologist, provided a report to Ms Tamay’s general practitioner in which he opined:
Consistent with your referral interviewing revealed symptoms consistent with mood dysregulation secondary to workplace bullying, Aydan's primary symptoms, although likely initiated by past bullying, appear to be presently perpetuated by inferences that Aydan has drawn about herself and her ability to deal with such events in the future. Additionally, Aydan’s ability to resolve her symptoms’ might be hinder by overly inflexible belief expectations about the world and external circumstances. When such beliefs are discrepant to the external environment or past events, they can hinder the ability of individuals to shift their attention away from such events and onto inner psychological states.
On 10 November 2017, Dr Damien Palioudakis, general practitioner, provided a letter to Centrelink in support of Ms Tamay’s earlier DSP claim, in which he advises:
I have only recently taken over her medical care. She: has been under the care of two of my medical colleagues since the 29/07/2016 for management or her mood and vocational issues which have been in the setting of significant psychological stressors and an alleged workplace bullying incident which took place In 2013 which failed to achieve adequate resolution.
…
Ms Tamay's main issues since this review are anxiety, panic, traumatisation and now restricted and avoidant type lifestyle behaviour regarding vocational issues.
On 6 November 2017, Mr Urosevic reported that Ms Tamay “presented with hypersensitivity to trauma-associated stimuli such as the possibility of vocational re-engagement, high levels of resistance to the possibility of overcoming trauma, and as identified by yourself, an avoidant coping style”.
On 23 October 2018, Dr Palioudakis referred Ms Tamay to Dr Wild for ongoing review and management. In his referral he states:
She continues to suffer from extreme anxiety with features of panic and traumatisation. This has been in the context of her past alleged workplace bullying and harassment issues and ongoing issues around her vocational capacity.
Her management has been complex to date as she continues to decline psycho-pharmacotherapy and clinical psychology. She states that she would like to best manage her symptoms through diet, yoga, exercise and self-directed meditation.
Aydan continues to state that she can not work in any capacity and continues to lead a restricted and avoidant type lifestyle.
Aydan's Newstart Allowance requires her to job-seek but she states she is unable to do so. Her recent application for a Disability Support Pension was unsuccessful as she did not meet Centrelink's qualification requirements for payment. Aydan applied to the Administrative Appeals Tribunal (AAT) for a review of Centre!ink's decision but this was also unsuccessful. Following this there has been a deterioration of her mood. She also has reported para-suicidal thoughts.
…
While I acknowledge Adyan's right to refuse advice and treatment for her condition, I have advised her that it is not on her best clinical interest to do so. At this stage her prognosis for meaningful rehabilitation with any capacity for future employment is guarded.
On 19 January 2018, Dr Stuart Wild, psychiatrist, provided a report for Ms Tamay’s general practitioner which includes a summary of the events leading up to the onset of Ms Tamay’s mental health condition:
While I have no independent factual report to support her claims, and frustratingly she did not keep a contemporaneous record of their behaviour or specific incidents, she can recall enough information and of sufficient richness of detail that I took her complaints as broadly factual. Had I seen her at the time of her leaving work I would have accepted her claim of bullying.
Behaviours described included exclusion, intimidation, verbal abuse, invasion of her physical space, efforts to startle her, and put-downs and eye-rolls in meetings to undermine her presentation. She engaged HR, who engaged an outside consultant, but as is typical in such cases, no blame could be found. She became increasingly worn-down, apprehensive, on-edge, anxious and depressed over time, had panic attacks, and during one panic attack just prior to leaving work she says she was verbally abused by her supervisor during a panic attack. Perhaps her performance and behaviour changed over the course of the protracted bullying, which would be unsurprising, and this provided more of a target for bullying, but the story of her gradual erosion and emotional decompensation in the face of bullying is typical.
By the time she left work she most likely had an Adjustment Disorder with depressed and anxious mood including panic attacks, but she may have had a Major Depression and separate Panic Disorder; it is difficult to tell in hindsight and given the time available to assess her.
She lodged a Workcover claim, but this was rejected on the basis of the IME (which she said did not reflect the history she believes she conveyed at interview), and her appeal at conciliation failed because she could not summon enough evidence and her sole possible witness would not back her up. This again is an unsurprising outcome; it is difficult to get bullying claims over the line without unequivocal evidence, and where at least three other parties are motivated to deny the problem. The problem with bullying is that it is often covert, with the perpetrators clever enough not to leave evidence. Much of her bullying followed this pattern of eye-rolls, posturing, invasion of space, noise making, un-recorded statements, exclusion and un-witnessed intimidation. Sadly, her treatment through the Workcover process has then further invalidated her and left her frightened that she would not be supported if similar events were to happen in the future.
Since leaving work she has suffered persistent depressive and anxiety symptoms, particularly anxiety, and she has coped largely by avoidance, managing her anxiety with exercise and yoga. She has developed a phobic anxiety around work, lives a somewhat restricted lifestyle that follows set routines of home duties and exercise, but she maintains friendships and has travelled outside of Australia. Specifically she has developed the view that a return to any form of work anywhere would be impossible for her because she could not control her environment and would be at risk. She has had some counselling, but this has been ineffective. She has sleep difficulties, often with early insomnia and rumination, and with broken sleep/'., and waking in panic. Her appetite is normal and her weight stable. She does not feel great happiness or sadness but lives in a neutral state. She feels "sensitive", untrusting, and gave the specific example of it taking ten months for her to feel comfortable in trusting her yoga class. She still enjoys some things in her life, such as yoga, movies, reading and seeing her friends.
At interview she presented as a lean and fit-looking woman in athletic wear. She was clearly anxious, and she came to tears easily and often talking about her experiences at work. She gave a credible history. There was no indication of psychosis, and she was not suicidal. When she spoke about work she was quite adamant that she felt broken, could not envisage ever retuning to work because of the risk of being bullied again. She said "if it means returning to work, I don't want to get better;" preferring instead her current financially limited and restricted lifestyle.
Diagnostically, I think Aydan has a persisting and moderately severe anxiety disorder involving features of panic, and largely compensated for by avoidance. She is self-managing some of her symptoms well, by lifestyle measures including exercise, but she has not greatly benefited from counselling.
She would benefit from pharmacological treatment, probably with an SSRI plus or minus a benzodiazepine, but she has strong negative views of psychopharmacology, based on her observations of people she has known including her mother, and no matter what I put to her, including escitalopram, starting at 1mg daily using the oral solution, she would not countenance any form of pharmacotherapy.
Aydan I think is now quite stuck. She has a potentially treatable disorder through a combination of pharmacotherapy and CBT, and this might return her to the workplace, but I think she is unlikely to apply herself to treatment and so is likely to continue in a disabled state for the foreseeable future.
On 16 October 2018, Dr Palioudakis provided another letter in support of Ms Tamay’s DSP claim:
Ms Tamay was reviewed by me today. She suffers from a persisting and moderately severe Anxiety Disorder with features of panic and traumatisation.
There has been a further deterioration to her mental health since my previous correspondence with you. Ms Tamay's mental health condition is severely impacting her personal and vocational functioning. She is now at high risk of suicide and homelessness. She is currently unemployed due to her mental health condition and has no form of income.
Based on my assessment today, Ms Tamay presents as totally disabled due to her mental health condition. Her prognosis for meaningful rehabilitation with any capacity for future employment is guarded. Further attempts for job-seeking are only exacerbating her mental health condition.
On 6 November 2018, Dr Wild provided an updated report to Ms Tamay’s general practitioner:
Aydan remains unwell, untreated, unemployed, disengaged from any prospect of rehabilitation, and maintains a fixed, irascibly-held and essentially false belief that she is broken, unfixable, unable ever to return to work and would rather kill herself than be forced to return to work.
Her outlook can be best set out in her words. She said, "I don't have a treatable disorder," "I can't go back to work” “the workplace has proven to be a dangerous place”, “I’m not safe in a workplace," it doesn't matter if my disorder is treatable”, “I won't be cooperative in the workplace," and “ I’d rather kill myself”. She described her efforts to avoid being "forced" back to work as "hysterical fits of resistance."
Exploring these statements, it was clear that Aydan maintains adamant and irrational views about work, all workplaces being essentially the same (even volunteer work, working from home and self-employment, where she would still see herself as being accountable to and therefore abusable by others), workplaces being excessively risky with no protections in place, and her incapacity to cope with any level of risk. No matter how I approached these subjects, Aydan gave absolutely no ground. Her one effort to return to study Aydan said was a "disappointment" and "hard to balance" work, exercise and finances. She said "I don't have the courage to try again."
…
Aydan isn't well, and her lifestyle reflects that. It's not as if she is avoiding work and living it up. Her lack of employment and earnings brings her into direct conflict with her mother, but even this has been insufficient to motivate her to receive treatment, rehabilitate and return to work in some form. She said, “I don't have it in me to try to recover”, "I’m done.”
She describes a mundane and restricted life, big on routine and devoid of friendships. She rises and makes breakfast for her mother and disabled brother, drives to yoga class where she doesn't speak or make friends but just follows the instructions, she spends an hour there and then goes for a walk in the botanic gardens for several kilometres, then she goes home via one of a handful of grocery stores where she can pick up groceries. She cooks dinner, cleans up and then is in bed by 8.30pm to 9.30pm every night.
She has persisting anxiety, widespread avoidance, fixed living routines, and has poor sleep marked by frequent wakening’s and sometimes panic. She said that apart from work she found some people "give off energy" that frightens her, and so she avoids anywhere that she thinks people like that might be, or where she predicts they might attend. Effectively, anywhere with uncertainty and where she can't control what happens is off limits. She said that she was "always thinking about places I should avoid."
The only other interruption to her daily routine is with medical and orthodontic appointments. She watches movies and TV, reads social media, browses lnstagram and reads travel biogs. Her hope of travel was the only forward-looking and non-routine activity that she spoke about, but which is restricted because of her financial situation.
Reflecting on my previous correspondence and diagnosis in light of this interview, my opinion is still that Aydan has a persisting, moderately severe anxiety disorder, including but not limited to a panic disorder with agoraphobia (avoidance of all situations that she believes may cause panic or anxiety) that is theoretically treatable but which will not be treated because of Aydan's fixed and essentially irrational views about herself, her illness, treatment and the threats she will face in the world. She sees the risks of work, and even of life outside of her safe zone, as likely to occur and severe in consequences, and she sees herself as broken, unfixable and unable to cope with even small challenges. These views are so strongly held in the face of reasonable contrary argument that they border on the delusional. She is anxious, and she is anxious about feeling anxious, which drives her avoidance and unwillingness to break from her protective routines.
My impression is that Aydan is genuinely unwell, rather than shirking and enjoying life by avoiding work, but her belief system holds her back from treatment and recovery. She is entitled to refuse treatment, but it is a tragedy that has allowed such an entrenched illness to take over her life. I don't believe there is any role for enforced treatment under the Mental Health Act.

On 22 February 2021, Ms Baldacchino, clinical psychologist with the HPAU, undertook a file review, including a detailed analysis of the previously referenced documents, and, when applicable, discussions with Ms Tamay’s treating health professionals. Ms Baldacchino did not personally interview or examine Ms Tamay.
On 1 July 2021, having reviewed Dr Cidon’s report, Ms Baldacchino provided an addendum. This is a combination of those reports’ findings:
Impairment rating
(a) self care and independent living
Ms Tamay confirmed at job capacity assessment that she could manage self care and day to day living activities independently without prompting, was showering regularly, preparing meals and completing all household duties.
On balance of the evidence available, the author of this opinion deems that the evidence falls short of meeting a severe rating and is more in line with a nil impairment for this criterion.
(b) social/recreational activities and travel
Dr Cidoni (10.4.21) opined that Ms Tamay demonstrated a severe impairment for this descriptor, noting that “She has no social life at all. She does not significantly interact with others during her recreation time and she has had only one overseas travel experience in a number of years.”
As outlined in the original opinion, Ms Tamay had previously travelled, and confirmed that further travel was restricted by her financial situation and not her mental health. Ms Tamay had disclosed at job capacity assessment (7.2.19) that she travelled independently frequently and could travel to unfamiliar areas, however felt more comfortable with familiar areas. While her ‘social’ activities may be restricted, she still demonstrated a range of other recreational activities including yoga, fitness training, movies, television, travel blogs and reading. Dr Cidoni’s report DOES change the rating for this descriptor, however only to a moderate level.
On balance of the evidence available, the author of this opinion deems that the evidence falls short of meeting a severe rating and is more in line with a moderate impairment for this criterion.
(c) interpersonal relationships;
Based on the available evidence, social interactions remain severely limited. Even if Ms Tamay had started to interact with some of her yoga friends, it took Ms Tamay a substantial amount of time to feel comfortable enough to do so.
The author of this opinion deems that Ms Tamay does meet a severe impairment for this criterion.
(d) concentration and task completion
Dr Wild (6.11.18) noted that Ms Tamay drove to yoga class and followed the instructions for the one hour class. She watched movies and TV, read social media, browsed Instagram and read travel blogs.
Ms Tamay at job capacity assessment (7.2.19) affirmed her ability to travel alone and her recommencement of reading. She described her concentration as variable, and at times needed to reread chapters/pages when distracted. She could maintain concentration for her one hour yoga class.
On balance of the evidence available, the author of this opinion deems that the evidence falls short of meeting a severe rating and is more in line with a mild impairment for this criterion.
(e) behaviour, planning and decision-making
Dr Cidoni (10.4.21) advised that Ms Tamay does not undertake any planning and struggles with decision-making. She is very avoidant of tasks. Dr Cidoni opined that Ms Tamay’s depression had a substantial bearing on the impairment in functioning. As stated previously, Dr Cidoni’s report relates to functioning more than two years post the end of the qualification period.
However, upon further review of the previously supplied medical documentation and consistent reports of anxiety symptoms over a number of years, the author considers that Ms Tamay’s behaviour, thoughts and conversations were significantly and frequently disturbed by her anxiety condition. Dr Wild (6.11.18) advised that Ms Tamay remained unwell and maintained adamant and irrational views about work and herself. She had persisting anxiety, widespread avoidance, fixed living routines and poor sleep. He opined that she continued to present with a persisting, moderately severe anxiety disorder. Her irrational views were so strongly held that they bordered on the delusional.
While Dr Cidoni’s report in isolation does not change the rating for this descriptor, when added to the previously supplied medical documentation, it DOES change the rating.
The author of this opinion deems that Ms Tamay does meet a severe impairment for this criterion.
(f) work/training capacity
Dr Wild (19.1.18) advised that Ms Tamay had developed a phobic anxiety around work and had stated ‘if it means returning to work, I don’t want to get better.’ Dr Wild (6.11.18) opined that Ms Tamay remained unwell, untreated, unemployed, disengaged from any prospect of rehabilitation and maintained a fixed, irascibly held and essentially false belief that she is unable to ever return to work. She maintained adamant and irrational views about work, all workplaces being essentially the same (even volunteer work, working from home and self-employment).
Given that Ms Tamay continues to hold strong beliefs about her reduced ability to cope and that the onset of her difficulties relate to a vocational environment, it is to be expected that some vocational environments will be a continued trigger for her anxiety and she is unlikely to manage an immediate return to work or study without support.
The author of this opinion deems that Ms Tamay does meet a severe impairment for this criterion.
On 10 April 2021, Dr Cidoni provided a report for the Tribunal, following an in-person assessment of Ms Tamay, in which he opined:
Impairment rating
In terms of self-care and independent living, in my opinion, whilst Ms Tamay reported a reduced speed of completion of household tasks, she is still able to complete them without any significant difficulty and as such, does not have impairment in this area.
In terms of social/recreational activities and travel, the example in the Severe table of “the person travels alone only in familiar areas (such as the local shops and other familiar venues)”, in my opinion, applies to Ms Tamay. She has no social life at all.
She does not significantly interact with others during her recreation time and she has had only one overseas travel experience in a number of years. In my opinion, the impairment is severe.
Her impairment in interpersonal relationships is, in my opinion, severe. The examples given in Severe section of the impairment table, “the person has very limited social contacts and involvement” and “the person often has difficulty interacting with other people” apply to her.
Her impairment in concentration and task completion is, in my opinion, mild. She has mild impairment on mental state examination and is able to focus on tasks up to an hour.
Her impairment in behaviour, planning and decision-making is, in my opinion, severe. She has significantly disturbed mental state which affects her behaviour in public and has thoughts significantly disturbed by depression, anxiety and paranoia.
The example in the severe section of Table 5, that the person’s behaviour, thoughts and conversation are significantly and frequently disturbed, applies to Ms Tamay.
Her work/training capacity is, in my opinion, severely disturbed and many professionals have noted her phobic anxiety about work. She was unable to continue study in 2017. The descriptor in the severe section of Table 5, that the person is unable to attend work, education or training on a regular basis over a lengthy period of time, applies to Ms Tamay.
In relation to the two areas of disagreement, in terms of social activities, in my opinion by virtue of the (agreed) severe impairment in interpersonal relationships, Ms Tamay has virtually no social life. The description of Dr Wild that Ms Trisha cites of a restricted life devoid of friendships is not consistent with mild impairment, in my opinion. She is able to participate in some recreational activities, no doubt, but this does not, in my opinion, compensate for the severe restriction in social activities in contributing to the overall rating. Ms Trisha gives the opinion that Ms Tamay has severely limited social interactions, which in my view, is not consistent with a finding of mild on the social/recreational/travel domain.
In relation to her behaviour, planning and decision-making, the significant findings on mental state examination by so many professionals in this matter, summarised by Ms Trisha, indicate a severe degree of impairment are not, in my opinion, consistent with a moderate impairment. She does not undertake any planning and struggles with decision-making. She is very avoidant of tasks.
Counsel for the Applicant argued that Ms Tamay’s mental health condition has a severe functional impact and warrants an impairment rating of 20 points under Table 5. Counsel for Ms Tamay submitted the Tribunal should prefer the opinion of Dr Cidoni, who found

Ms Tamay to be suffering from a severe mental health impairment based on a 70-minute in-person consultation with Ms Tamay and a review of her medical records.
The Respondent contended that based on all the evidence, the appropriate rating for

Ms Tamay’s resulting impairment would be no more than ten points under Table 5.
Counsel for Ms Tamay contended the Tribunal could be satisfied on the evidence that

Ms Tamay has severe difficulties with the descriptors in paragraphs (b), (c), (e) and (f) of Table 5. Therefore, as Ms Tamay has a severe difficulty with most of the activities set out in the severe category, being four out of six, she fulfils the requirement of section 94(b) of the Act.
The Respondent accepted that Ms Tamay has severe difficulties with the descriptors in paragraphs (c), (e) and (f) of Impairment Table 5. However, they argued that Ms Tamay only meets the descriptor for moderate difficulties with respect to social/recreational activities and travel in paragraph (b) of Table 5.
Counsel for Ms Tamay contended that in relation to the criteria in dispute;

(b) social/recreational activities and travel, the evidence indicated Ms Tamay’s functional impact in this area was severe. The Applicant relied upon the following:
(a)Ms Tamay’s oversea travel which was referred to by the Respondent occurred well before the qualification period. Ms Baldacchino’s conclusion in the HPAU report that Ms Tamay “demonstrated a capacity to travel not only to unfamiliar environments but also abroad independently” should be discounted as this travel was before the decline in Ms Tamay’s mental health and this application for a DSP.
(b)Since the qualification period, Ms Tamay had travelled to the Netherlands for a friend’s anniversary party, however the decision was a very difficult one and one which was not made lightly. She contemplated the trip for eight months and booked her travel at the last minute. It was undertaken to try to get some normality back into her life and to try to reconnect with her friend because she had lost all her friends in Australia. She found the flight overwhelming and very stressful and spent most of the flight in tears worrying about what could go wrong. She stayed with her friend who she had previously visited in her travels and who was, therefore, familiar. She found the party and crowd very overwhelming, did not interact with the other guests, stood alone and could not wait to leave. Overall, the trip was not enjoyable, she no longer gets what she should get out of an overseas trip, there is no longer any excitement for her, and everything has been “flattened” for her.
(c)Ms Tamay’s social and recreational activities are nearly non-existent, consisting only of her exercise regime as recommended by her psychologist Dr Amorous to manage her condition, and she travels alone only to places that are familiar to her.
(d)Her severe difficulties with social/recreational activities and travel are corroborated by Dr Wild’s report that “she describes a mundane and restricted life, big on routine and devoid of friendships”.
(e)Counsel for the Applicant argued that all this indicated that Ms Tamay’s travel was not normal and not reflective of moderate difficulties in social/recreational activities and travel, being “the person will often refuse to travel alone to unfamiliar environments”.
Counsel for the Applicant argued Ms Baldacchino had failed to consider Rule 11(3) for applying the impairment Tables:
Descriptors involving performing activities
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
The Respondent took the Tribunal to the following evidence in relation to each paragraph of Table 5:
(a)self-care and independent living
The HPAU Report indicates that the medical evidence in this matter is consistent with a rating of zero in relation to self-care and independent living. Dr Cidoni’s report of 10 April 2021 notes Ms Tamay stated, “she was able to complete activities of daily living at a reduced pace and was able to contribute to housework and meal preparation”. Dr Cidoni opined that

Ms Tamay did not have impairment in the area of self-care and independent living.
(b)social/recreational activities and travel
Dr Wild’s letter of 19 January 2018 noted that Ms Tamay had developed a phobic anxiety around work and lived a somewhat restricted lifestyle but maintained friendships and had travelled outside Australia. She still enjoyed some things such as yoga, movies, reading and seeing friends.
Dr Wild’s letter of 6 November 2018 reported that Ms Tamay described a mundane and restricted life, big on routine and devoid of friendships; that she participated in yoga, walks, watched movies and TV, browsed Instagram and read travel blogs, and her hope of travel was restricted by her financial situation.
The JCA on 7 February 2019 confirmed that Ms Tamay reported she attended yoga four times per week and walked daily. She travelled independently frequently and could travel to unfamiliar areas, however felt more comfortable with familiar areas. She mentioned travelling to Cambodia alone for close to a month, but she was currently unable to travel due to finances and Centrelink requirements. She reported she had always enjoyed reading and recently recommenced this activity.
The Respondent noted that Ms Tamay’s travel records indicate that she was overseas numerous times between 2011 and 2016. In particular, she was overseas from 4 July 2016 to 24 July 2016.
Dr Cidoni’s report of 10 April 2021 and his testimony at the Tribunal confirmed his opinion that the statement “the person travels alone only in familiar areas (such as the local shops and other familiar venues)” applied to Ms Tamay. Dr Cidoni reported that Ms Tamay states she has no social life at all, does not significantly interact with others during her recreation time and has had only one overseas travel experience in a number of years.
The HPAU addendum report concluded that Ms Tamay had moderate impairment for this criterion. In particular, Ms Baldacchino noted that Ms Tamay had previously travelled and confirmed that further travel was restricted by her financial situation and not her mental health. In particular, the HPAU Addendum Report notes that in the JCA the Applicant had said she travelled independently frequently, and could travel to unfamiliar areas, though she felt more comfortable with familiar areas.
(c)interpersonal relationships
The HPAU reports and Dr Cidoni both concluded that Ms Tamay had a severe impairment in respect of interpersonal relationships.
(d)concentration and task completion
The HPAU reports and Dr Cidon both concluded that Ms Tamay’s impairment in relation to concentration and task completion is mild.
(e)behaviour, planning and decision-making
Dr Cidoni’s report concludes that Ms Tamay’s impairment in behaviour, planning and decision making was severe, as she has a “significantly disturbed mental state which affects her behaviour in public and has thoughts significantly disturbed by depression, anxiety and paranoia”. The HPAU Addendum Report also concluded that Ms Tamay had a severe impairment in relation to behaviour, planning and decision-making.
(f)work/training capacity
The HPAU reports and Dr Cidoni both concluded that Ms Tamay had a severe impairment in respect of her work/training capacity noting her disturbed and phobic anxiety about work.
CONSIDERATION
There is no dispute between the parties that Ms Tamay’s mental health condition was fully diagnosed, stabilised and treated at the qualification period.
There is, however, a dispute about whether Ms Tamay’s mental health condition results in a severe or moderate impairment. The following table represents the views as expressed by Ms Baldacchino and Dr Cidoni:
The comparison of summary ratings is as follows:
Domain   Respondent              Applicant
Self-care & Independent Living   Nil   Nil
Social/Recreational Activities & Travel          Moderate                    Severe
Interpersonal Relationships   Severe   Severe
Concentration & Task Completion                 Mild   Mild
Behaviour, Planning & Decision-Making       Severe   Severe
Work/Training Capacity   Severe   Severe
Much of the hearing explored the functional impact of Ms Tamay’s mental health condition under descriptor (b) of Table 5 with a focus on whether she had a moderate or 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:
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
There was no dispute between the parties that for Ms Tamay to be found to have a severe functional impact under Table 5 she must meet most of the descriptors, being at least four of the six descriptors. The Guide to Social Security Law (the Guide) provides at 3.6.3.05:
Note 1: For the purpose of applying the Tables, most means more than 50%. For instance: if there are 3 examples in the descriptor, most means 2; if there are 4 examples, most means 3; if there are 6, most means 4 etc.
Based on the extensive medical evidence before the Tribunal, the expert testimony of both Ms Baldacchino and Dr Cidoni, and Ms Tamay’s oral evidence, the Tribunal found that

Ms Tamay mental health condition had:
(i)a nil impact on her self-care and independent living
(ii)a mild impairment for concentration and task completion
(iii)a severe impairment for interpersonal relationships, behaviour, planning and decision-making and work/training capacity.
In arriving at this determination, the Tribunal notes the decision of his Honour Justice Bromberg in the matter of Negri v Secretary, Department of Social Services (2016) 246 FCR 1 at 17 [43]-[45], where he found:
It is necessary here to reiterate the terms of item 5(3)(b). What that paragraph makes clear is that the impairment level is to be “identified by reference to the particular examples of functional activities, abilities, symptoms and limitations ...”. Ms Negri’s submission treats each of the functional activities, abilities, symptoms and limitations as though they were conditions of eligibility for the particular impairment level. They are not that. The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact—no, mild, moderate, severe, or extreme—applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.
I note, however, that where the impairment falls between two ratings it may be necessary to make express findings in relation to particular descriptors. That is because the tie-breaking mechanism in item 11(1)(c) precludes application of a higher rating unless all of its descriptors are satisfied. If, on consideration of the examples, it were clear that a claimant experienced something between moderate and severe functional impact, but that person did not have difficulty sustaining work-related tasks of a clerical, sedentary, or stationary nature for a continuous shift of three hours, the 20-point level could not apply and the 10-point level would necessarily apply. In practical terms, a finding that the person did not meet one or more of the descriptors in the 20-point level may be necessary in order for a court to be satisfied that the correct procedure had been followed.

The Tribunal had the benefit of hearing evidence from Dr Cidoni for Ms Tamay and

Ms Baldacchino for the Respondent. Dr Cidoni gave his opinion that Ms Tamay’s mental health condition merited a “severe” rating under Table 5, whilst Ms Baldacchino was of the opinion that the condition warranted a “moderate” rating. The difference between the medical experts was ‘paper thin’, differing only on Ms Tamay’s functional impairment for social/recreational activities and travel.
Dr Cidoni advised the Tribunal the following in respect of his findings from his examination of Ms Tamay:
Applicant’s Counsel: The particular descriptor that I would like to ask you some questions on is descriptor (b) in Impairment Table 5 of the determination and that’s to do with social and recreational activities and travel. Could you please describe for the Tribunal what your opinion was in relation to Ms Tamay’s capabilities in that descriptor?
Dr Cidoni: Sure. So, my overall assessment of that descriptor is that she is in severe rating. In terms of the different components of that rating. In terms of the social activities, she, as far as I’m aware, has no social life, she has very limited engagement with other people. So, in my view that falls more towards extreme, rather than severe. In terms of recreation activities, she does do some recreational activities like yoga but from my perspective she doesn’t really interact with others in those pursuits so they’re still solitary. They don’t involve any community engagement or engagement with others, so I would still see that as on the severe end. In terms of travel: she has had one recent overseas trip which had some challenges around it, but I think really a single trip which was for a defined purpose, meeting a friend overseas, I don’t regard that trip as significant travel. I think her travel has been quite severely curtailed as well. So, in my opinion overall, leads me to a severe rating. I think when you’re weighing up the different components of this domain, I think the social functioning, from my perspective in terms of overall disability, probably has a bigger weighting than the other components. I would put more emphasis on the social aspect and she very clearly falls into the severe range for this domain.
AC: Aydan gave some evidence this morning that she did attempt or rather did attend a small Christmas gathering in the end of 2018, were you aware of that before I just mentioned it?
C: No
AC: if you were to have had that information available to you at the time of the assessment, would that change your assessment rating in any way?
C: No. I think one of the challenges in these assessments is that we are talking about a degree of impairment, we’re not saying she is incapable of doing any of these activities, from my perspective that’s not the way that I look at these criteria. So when we are saying someone is severely impaired, we’re saying they are restricted in terms of their ability to do the activity, not that she has no capacity to engage in any of these activities, that’s not what the criteria is. So, from my perspective going to one function in 2018 does not indicate an adequate level of social functioning and I don’t think that would take her from being in a severe to a moderate rating.
…
Respondent’s Counsel: You spoke before about how that think that in the Impairment Tables that the social aspect ought to be given greater focus, can you elaborate on why you’re of that view?
C: Yes, I think that obviously there is discretion within the descriptors. From my perspective in this particular case, her restriction of social functioning is so severe that from my perspective, in terms of overall level of disability and overall level of functioning, that should be given more weight. There isn’t anything in the rules that says you’ve got to weigh one aspect more than other but from my perspective, the significant impairment with social functioning is so severe that in my opinion I would give that more weight. But I’m not suggesting I have some kind of formula for that, just the social impact so significant but problems interacting with others does effect not just her social life but also her recreation and travel. So those social deficits and anxiety associated with that is going to affect the other domains too, I’m not suggesting it’s just the social element of it.
RC: Obviously, social is a broader concept. Given there is the other interpersonal relationship factor, do you agree the social aspect is not necessarily one-on-one relationship but more broadly social activities that one partakes in?
C: I suppose inter-personal relationships incorporates friendships, which is pretty limited. In terms of intimacy, I’m not sure whether that friend that was referred to previously was anything to do with that. Her family relationships are pretty strained, strained by what’s happened I think, I think there’s quite strained family relationships as well. So I guess social is about the one to one but it is also about interaction with other community members, and as I said before even when she does things like yoga when she’s out and about in the community, she’s not interacting significantly with others. She can be around others but she’s not having those sorts of transactions with other people, even in a situation where there’s a group of people doing yoga, my understanding is she’s just doing her own thing away from other people and then just go home, there isn’t sort of any interaction in those settings . So again I’m not saying she can’t go out and she can’t do things but it’s really about the level of interaction, and I think one of the challenges is with these tables is there is also an extreme rating, a rating of 30. So sometimes we think severe is the end of the spectrum and it’s not. So, what I’m saying is, she can do some of these things, there are just very significant restrictions in the way that she conducts those activities.
RC: In the job capacity assessment report on 18 February, apparently it was reported that Aydan travelled independent frequently and could travel to unfamiliar areas but felt more comfortable in familiar areas. As you’re probably well aware that is the moderate category, what was your reason in light of that report which was during the qualification period, how did you take that into consideration or does that change your view at all?
C: Yeah, so in terms of using the descriptors, the descriptors are guides for individual impairment rating, but I think you need to combine the various domains within that descriptor. In terms of the travel, there is some aspects that she is able to do. I wouldn’t interpret that descriptor as being if she meets travel but, then she meets whole thing for moderate. That wouldn’t be the way that I would interpret the criteria. So, I would say that the overall impairment if you take the social, recreational and travel together, is severe. I don’t think you can take descriptor for one bit and take it to say she’s moderate for the whole domain because there is no way that she is moderate for social functioning, in fact she might be more on the extreme end than the severe end. That would be the way that I would interpret that criterion.
RC: Ok so you accept that in some ways she may fall into the moderate for say travel, but you weight more heavily the social and recreational aspect and that affects your overall conclusion?
C: Yeah but can I just add that travel is not just the ability to travel and I think she’s probably given some description of the challenges of being in a travel situation. It’s not just being able to go somewhere, for example the overseas trip. It’s the anxiety beforehand and the hesitancy about going in the first place and anxiety when she’s there and the need to leave early or kind of cut that short. It’s not just about getting to places but what happens when she’s there and how she’s able to manage those interactions with others and the expectations of others. So, I think not just where she goes but how she actually manages once she’s there.
Ms Baldacchino advised the Tribunal the following in respect of her file review of Ms Tamay:
Applicant Counsel: Ms Baldacchino are you aware that the primary difference between your report in terms of the impairment rating and Dr Cidoni’s report is in relation to the descriptor social/recreational activities and travel?
HPAU: That’s right, yes.
AC: Just to confirm Ms Baldacchino, you rated Aydan as having a moderate impairment for that criterion is that correct?
HPAU: Correct.
AC: Ms Baldacchino in your first report, is it correct to say you had rated that impairment as mild?
HPAU: That’s correct, yes.
AC: Ms Baldacchino is it correct to say that the change in your impairment rating was following a review of Dr Cidoni’s report?
HPAU: In combination of reviewing his report and going back over the original evidence in combination, yes. Looking at that I chose to increase, looking at the frequency of some of those limitations.
AC: It’s correct isn’t it that Dr Cidoni’s report provided some additional information to assist with that assessment?
HPAU: I had to take into consideration that Dr Cidoni’s report was actually done two years after the qualification period, so I placed more weight on information that was provided closer to the qualification period.
AC: On page 4 of the report, you stated in the second paragraph, as outlined in the original opinion, Ms Tamay had previously travelled, and confirmed that further travel was restricted by her financial situation and not her mental health. Aydan gave evidence before the Tribunal that her travel is primarily restricted and impacted by her mental health, and also acknowledged that is restricted by her financial situation, does that change your view of this impairment rating?
HPAU: No because I’ve looked on our Centrelink records and noticed in fact that Ms Tamay has actually travelled on a number of occasions, not only leaving her room, her house or her neighbourhood but the in fact leaving the country and going overseas on a number of occasions. No, it doesn’t change my opinion.
AC: Aydan gave evidence this morning that there was one trip in particular in 2019, an overseas trip. Aydan has given evidence that she experienced a lot of difficulties in relation to her mental health, in relation to booking the ticket, in relation to the travel overseas where she says she cried on the plane, and had anxiety about what may occur when she arrived, she said that she did not interact with people at the party and manoeuvred herself way to stay away from people at the party, and that she left early from the trip despite being invited to stay longer. does that level of detail assist with your assessment of her impairment rating for this criteria?
HPAU: It just further supports my level of rating.
AC: Now you said in the third sentence of that paragraph, while her social may be limited, she still demonstrated a range of other recreation activities including, yoga, fitness training, movies, television, travel blogs and reading. Aydan gave evidence before this Tribunal that when she attended yoga that she ensured when she was booking a mat that there was a free mat on either side of her, that her interaction to get her mat at the beginning of the class and move into the studio was very brief and that whilst people approached her after the class for a brief interaction, she did not socialise with them for an extended period after the class or outside of the class. Does that assist with your assessment of Aydan’s impairment rating?
AC: Well this highlight the difference between this descriptor, social/recreational activities and travel, and interpersonal relationships which is descriptor (c). What Ms Tamay has described is an ability to engage in social activities which might just require a superficial level of interaction, which is very different to the level of interaction someone would require if they were developing friendships or relationships. There are also recreation activities which are solo which we have listed there, which can still be completed and with regards to travel, you mentioned the trip in 2019 which is actually post the qualification period, but there have also been another five overseas trips which were conducted in 2014, 2015, 2016.
…
AC: When we are talking about social and recreational activities, is your evidence that the very fact that she can participate, even in solo social/recreation activity, in your opinion that places her in the moderate impairment rating?
HPAU: That is correct because to meet 20 points a person needs to be unable to do that. Even Dr Cidoni confirms that she was able to participate in some recreational activities, and as I just highlighted being able to attend is different to that next level of interpersonal relationships which is rated separately on the Tables.
AC: Ms Baldacchino I should clarify, when we are reading the descriptor for severe functional impact, the descriptor does say the person has severe difficulties, it doesn’t say the person is completely unable to. I think in fairness I ought to clarify, we are talking about a level of capability but one that is severely impacted Is your evidence that the fact that she can do these things places her in moderate rather than severe?
HPAU: When you look at moderate, we have person goes out alone infrequently and is not actively involved in social events, so she may infrequently go to yoga and not necessarily be involved, and the person will often refuse to travel alone to unfamiliar environments, whereas severe says person only travel to familiar environments, so indicating they are only going to familiar areas it’s indicating that they are unable to go to unfamiliar areas, whereas I think the 10 points is more indication, she may not like it but is still able to do it.
AC: And Ms Baldacchino you would be aware of rules for applying the Impairment Tables, referring specifically here to rule 11(3)
HPAU: Yes, but in this case, if we look at the actual Tables themselves, often the difference between the different ratings is one of frequency.
AC: If Ms Tamay’s evidence this morning was that she requires significant periods of time to contemplate travelling to an unfamiliar area, that she often finds doing so overwhelming and cannot do it and has very rarely done so, in your view isn’t that consistent with a severe impairment rating.
HPAU: Well that is the evidence which she has provided today, I would give more weight to the evidence of things she actually reported she was doing at the time of qualification. At the time of qualification, while she may not have been doing a lot of social things, there were some social activities which she was able to do.
AC: Which social activities are you relying on for that purpose, could you clarify that for me?
B: Yes, certainly, so going to yoga training, fitness training, she had mentioned she had some friends she had contact with I think in her own statement, she had said the main reason she doesn’t socialise is because she didn’t have friends in Melbourne and couldn’t afford it financially. So yes, certainly activities involving others, even at the Job Capacity Assessment I believe that while she said she did not like going to other supermarkets she could still go.
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Respondent Counsel: Ms Baldacchino you touched on the difference you see between the social and recreation activities and travel and the interpersonal relationship descriptors, it does appear between you and Dr Cidoni, you’ve almost given different weighting to the social element. Could you explain or elaborate upon why in your opinion, looking at social, recreation and travel, it’s more appropriate for the Applicant to have a moderate rather than severe rating?
RC: Yes, so certainly, as I mentioned earlier social activities are activities where you’re in contact with other people but you can do that at a fairly superficial level There are some recreation activities which are solo and never require contact with other people, they’re not always group situations, whereas the next item which is interpersonal relationships, where we’re forming friendships or having those more ongoing contacts, that’s a different level of interaction which is required, certainly I’m not disagreeing that Ms Tamay doesn’t have difficulties with that level of interaction with people but when we are purely looking at social activities, activities we do to pass the time, Ms Tamay would certainly demonstrate that. And even if it took her longer or it wasn’t as frequent as she would have liked, I don’t believe that she was not unable to do it.
Ms Tamay advised the Tribunal the following in respect of her functionality before and after the workplace incident in 2013:
Applicant’s Counsel: Aydan I would like for you to cast your mind back, if you can, to before 2013 so before the workplace incident, can you recall what your life was like then?
Applicant: Quite normal. If I could describe myself, I would say I was someone who was fun to be around, someone who was quick witted, and knew how to have a good time. As a result of my good traits I had a lot of social groups and I had a lot of friends and acquaintances and I had a very active social life, so I would go out at least three times a week, whether it be catching up with someone, going away with somebody, travelling with somebody, going out to bars and clubs, it was just normal. I was actually quite confident to do all of the things I wanted to do. I was always someone who liked to explore, I was curious, I had no limitations, there were no limits for me.
AC: Aydan, where were you living at that time, do you remember?
A: Before 2013, well for some time I actually lived with my ex-boyfriend in Hampton but prior to that I was living at home because family members would often go back and forth overseas, so at that time my sister was living overseas so I was here with my brother and my mum as support to them and I still was very independent though because I had my life and my own financial security.
AC: So were you studying at that time?
A: Before 2013 I had completed my studies by 2010, I went back to university in 2007 and between 2007 and 2010 I was working pat-time, but I would often slip into full-time hours.
AC: What were you studying at the time?
A: Studying Bachelor of Busines Marketing and Bachelor of Psychology which was a double degree.
AC: Do you remember where you were working at the time?
A:Well initially because I was trying to get into market research and so I was looking for avenues to get into working for market research companies so I started doing carrying out work as telephone research interviewer and I was working for Roberts Research. Yeah I was at the same time I was actually working with Myer in their bridal gifts registry section, I had accrued admin skills and they put me more in a role which was a cross between admin and sales, not many people got that opportunity but I was quite competent to be able to work in that area and very quickly, usually it takes a long time for people to actually start working that area. I also did voluntary work for Victoria University and then eventually ended up working on contract as facilitating research workshops where I had to guide and instruct people to take an online research test, so I was travelling from campus to campus, and meeting with groups who were allocated to take the tests. From that job led onto me applying for a survey support officer position whilst I was doing my studies and it was a part-time position and I ended up getting that position which happened to be in the surveys area of the university.
AC: Ok, Aydan do you remember what your hobbies were at the time or what you did for fun?
A: What I did for fun? Before 2013 I was always very active and fit, always went to the gym, went for walks, I spent a lot of time outdoors. I would go to wineries with friends, go away with friends, I was doing yoga several years ago back before I re-joined in 2016. I guess food culture is a huge part of my family, those were the things I was doing, obviously going to wineries and going out to dinners and so forth was a huge part of what I enjoyed doing.
AC: Aydan, it sounds like you had friends or groups of friends at the time, is that a fair way to describe that?
A: Yes, I had friends from many circles, whether it was work related, university related, family friends and acquaintances, people that I got to know through other people. Yeah, I was never, I never felt there was a time where I was lonely.
AC: And did you meet new people?
A: Yeah often. It wasn’t hard to do to meet people because I believe I had very good social skills, communicating with others, meeting new people and talking to people was never an issue for me.
AC: You used the words, being fairly independent, can you explain that to the Tribunal?
A: I never had to rely on anyone financially, I never had to rely on anyone for shelter, when the time came and I wanted to move out I did and I was able to afford it. I travelled; I had lived independently as soon as pretty much my first job which was when I worked at Optus World. I don’t recall needing to ask my family for money, nor could I because by a time my Mum became a single parent and we were basically adults, we had already gained a level of independence and were always working or studying or just working. When I travelled it was with my own money and even when I did have a boyfriend back then I never made my boyfriend pay for it because it wasn’t in my values to have my partner pay for things for me, I never got any luxury gifts from my boyfriend it was just something I did not allow and I was very independent I didn’t have to rely on anyone.
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AC: Can you tell me a little bit about what your life was like after the workplace incident?
A: Very different. I feel like I left a place of war. I was beaten to a pulp when I left Victoria University. I was physically and mentally ill. I was homebound most of the time. I sought refuge in my partner back then. If we did anything, we did it together. But in the main I was at home. Yeah, I was at home, I didn’t want to go out, I didn’t want to do anything. The only time I did do anything was with my boyfriend. I just couldn’t face, when my doctor said I needed to go on a mental health care plan, and seek a mental health professional, I just didn’t feel I was ready for it because I was in so much pain. I was really exhausted, and I just didn’t have it in me to actually see someone about it and I was afraid. I was paranoid but then eventually I started sessions. Yeah so now it’s just really limited and restricted, like I was homebound. I would only do things with my ex-boyfriend but then obviously eventually we ended up breaking up because he couldn’t handle the condition that I was in and that I couldn’t go back to work and yeah eventually now I’m just over the years, Dr Lily Amorous actually suggested that I go back to yoga so I try to. Obviously everything that I’ve done that she told me to do, was a very scary process for me to go and find a yoga studio to practice yoga in and I had to relearn because it had been a long time since the last time I practised it and yeah like all these experiences have become a real daunting experience for me, if I have to look for a place I need to do yoga or fitness. You know, I guess because of interaction with people is very limited, so that makes it really difficult for me to actually be in certain settings, so obviously that’s why I don’t socialise anymore. I keep to myself and so I built these routines for myself that are safe and protect me, that limit the levels of interaction that I have with people, hopefully none and yeah I don’t really go outside of that routine. I won’t venture out I won’t look for; you know I’ve been going to the same beach for past ten years and I don’t look for anything else because I’m so familiar with this beach. Yeah, I kind of struggle now when I have to think about if I want to travel, like I need to get out of here, when things get tough. I want to travel because that’s what I used to like doing but I can’t, because now I have to think about if I’m going to be safe, if anything dangerous is going to happen to me. I think about this nice place and I see like a secluded boutique hotel accommodation and I think it’s perfect for me, but by the time I think about all these things, I just get overwhelmed by all these thoughts, that experience is pretty much diminished because I constantly have to think about the dangers that I could possibly be in Like travelling for me has become really difficult because of the fact that I have to do everything within the limits I am in, I apply these limits to myself because I don’t want any danger towards me and I don’t want to have that level of interaction with people and so in Melbourne or when I’m overseas I move through like really quickly and swiftly so I’m not in a position where people want to engage in conversation with me or stop me. Whatever I do now, I try to make sure that I don’t have that people are not talking to me. When I used to go to my yoga class, once I was done I would pack up and just leave, I wouldn’t waste any time hanging around or socialising, which is what most of the yoga people actually do because there is a lounge in the studio so they would gather and socialised but I wouldn’t because these are the things I actually look for when I do look for a yoga studio or fitness studio. At my fitness studio they continuously announce social activities and I avoid them, I just go my classes and then leave, I don’t do any of the social activities that they announce constantly and once I was asked you should come, why don’t you come, and they asked if I was busy and I said no I’m not busy, I just can’t make it and they couldn’t really understand why, they didn’t push anymore after that. At my yoga studio they were aware that I needed space, like it became apparent to them that I liked space because of the way I booked my mat. I used to make sure that there was a free mat on either side of me so I was actually even more further away in the yoga class and they actually were accommodating to that and kind of figured out that it’s something I needed so they accommodated that.
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AC: Could you describe to Member Burke, in your own words, what you feel you are experiencing?
A: When I was seeing Dr Wild? The same things. I told him about you know what I was doing in my day to day living and how I avoided places and people. I was telling him about my two friends, that I’ve had trouble trying to maintain friendships with because of what has happened to me. I think I told him about how, because I’ve changed so much as a result of my condition, you know I’ve lost a lot of friends. I don’t have a social life because of the way my condition makes me feel and the way people view when they see my condition it is obvious to them that there is something not right, I’m not like what I was like before, about obviously my work and what I thought about work and how avoidant it was. How the idea of going back to work made me feel and what it felt like for me when the job services network providers pushed me towards mutual obligations and when I was threatened with Centrelink payment suspensions and so forth, you know how it made me feel. I relayed all information to him and I’m just trying to recall, like I said I would need to refer to Dr Wild’s reports.:

The Tribunal does not find that Ms Tamay’s extensive overseas travel outside of the qualification period was indicative of her ability to travel alone to unfamiliar places. As the Respondent argued, the Tribunal makes it clear in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] that it can only consider an applicant’s qualification for DSP within the qualification period:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
The Tribunal appreciates Ms Tamay stated her mental health condition commenced after the 2013 workplace incident and recognises she travelled overseas between that episode and her current claim for DSP. Additionally, the Tribunal appreciates Ms Tamay is relying on medical evidence prior to the qualification period which indicates a decline in her mental health condition as her irascibly held view of her situation solidified. Travel outside of the qualification period cannot be considered indicative of functional capacity at the time of qualification.
The Tribunal finds Ms Tamay’s overseas travel in the qualification period could be considered; however it finds Ms Tamay’s description of her travel experience as traumatic supported a finding that she was only able to undertake social activities and travel in familiar places. The Tribunal placed no weight on the reports that Ms Tamay had stated that her travel was limited by finances. The Tribunal was more persuaded by Ms Tamay’s testimony that “yes, finances are a factor” but the biggest factor stopping her from undertaking travel, an activity she otherwise loves, is her mental health condition.
It is not the Tribunal’s task to make a clinical assessment of a person’s illness or disability, as medical practitioners are required to do. The Tribunal’s task is to decide whether particular descriptors are satisfied as stipulated in the Impairment Tables. The grant of a DSP is not on the basis that a person has a particular diagnosed condition, but on an assessment of functional limitations a diagnosed condition has on an individual which results in them having a continuing inability to work. Therefore, the purpose of the Impairment Tables, which are a legislative instrument to which the Tribunal must have regard, is to assess that inability to work, which is done by setting out functional abilities. It may be accepted that this is not a perfect measure of a person’s functional impairment, but it is the one that the Tribunal is obliged to follow. Where a particular Impairment Table requires that “most” of the descriptors must be met for a rating to be assigned, that means that more than fifty percent of the descriptors must be satisfied. As the Tribunal has found Ms Tamay has a severe rating under descriptor (b) social/recreational activities and travel, she therefore has met the severe criteria as she has been found to have a severe rating for four out of six descriptors under Table 5.
IMPAIRMENT RATING
The Tribunal finds that Ms Tamay has an overall impairment rating of 20 points, comprising 20 points under Table 5. Therefore, Ms Tamay satisfies section 94(1)(b) of the Act.
Does Ms Tamay have a continuing inability to work?
To qualify for the DSP, Ms Tamay must not only satisfy the requirement of section 94(1)(b); but also demonstrate that she has a continuing inability to work. In order for a person to be considered to have a continuing inability to work, they must have actively participated in a program of support within the meaning of section 94(3C) of the Act prior to her claim for DSP, and show that their impairment itself is sufficient to prevent them from improving their capacity to prepare for, find or maintain work through continued participation in the program. However, 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 severe 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 with it within the operation of section 94(2)(aa) of the Act. It is irrelevant whether an Applicant was aware of the requirement.
Counsel for Ms Tamay contended that if the Tribunal accepted that Ms Tamay has a severe impairment under Table 5, it therefore follows that she satisfies section 94(1)(c) of the Act.
The Respondent contended Ms Tamay did not satisfy section 94(2)(aa) of the Act during the qualification period, as her Centrelink records indicated that she had completed zero days in a program of support.
As the Tribunal has found that Ms Tamay has a severe impairment that is assigned 20 points or more under a single Impairment Table (Table 5), she is not required to have participated in a program of support and accordingly satisfies section 94(2)(aa) of the Act.
Counsel for Ms Tamay argued that if the Tribunal accepts that the Applicant has a severe impairment under Table 5, including with work/training capacity, it follows that the Applicant satisfies section 94(1)(c) of the Act. Counsel argued that Ms Tamay has a continuing inability to work (being 15 hours per week) independently of a program of support because of her impairment. This is consistent with the opinions of Dr Palioudakis, her treating practitioner, who reported on 23 October 2018 that Ms Tamay’s mental health is “severely impacting her personal and vocational functioning” and that her “prognosis for meaningful rehabilitation with any capacity for future employment is guarded.”
Additionally, Counsel for Ms Tamay argued that she had almost continuously been certified unfit for work/study and granted temporary medical exemptions from Centrelink between 2017 and 2021 which further supports a finding that she has a continuing inability to work in accordance with section 94(1)(c) of the Act.
The Tribunal does not accept Counsel for Ms Tamay’s assertion that if an Applicant has a severe impairment under Table 5, including with work/training capacity, it follows that every applicant will satisfy section 94(1)(c) of the Act. The Tribunal notes the Guide at section 3.6.3.05 outlines the equal importance of impairment and continuing inability to work:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance.
Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied.
Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.
The Respondent accepted that Ms Tamay was unlikely to be able to immediately return to work or study without support. However, they submitted that Ms Tamay was not prevented from doing 15 hours of work per week, independently of a program of support, within two years of the date of claim. The Respondent contended that with a supported and gradual return to work, Ms Tamay would have capacity to engage in work in the next two years.
The Respondent relied upon the following evidence to support their contention that

Ms Tamay did not have a continuing inability to work. They asserted that:
(a)Ms Tamay had displayed a capacity to engage in activities such as yoga and care and these were areas of work which she could explore that are outside of the office environment which has proven to be anxiety inducing for her.
(b)Her psychiatrist had suggested voluntary work or self-employment opportunities, as these may be useful to rebuild her confidence and begin to dismantle her beliefs about work.
(c)While Ms Tamay had unsuccessfully attempted to study at the Master’s level, the Respondent argued a shorter or lower level course, in an area of her interest, would likely be able assist her transition back into study or work.
The JCA report of 18 February 2019 identified the following barriers and interventions required to return Ms Tamay to the workforce:
The client has been diagnosed with Anxiety disorder with features of panic and agoraphobia. Due to the symptom and daily functioning impairment that the client experiences due to the temporary exacerbation of the condition the client's work capacity is recommended to be 0-7 hours until 7/5/2019 to allow the client's symptoms to improve.
It is assessed that the symptoms and functioning impairments (persistent low mood anxiousness, poor concentration and memory and poor sleep) that the client experiences have an impact on daily functioning therefore the client's work capacity is recommended to be 15-22 hours per week. With ongoing medical intervention and Disability specific intervention including workplace modifications, training in suitable duties, consideration of hours of work and post placement support, the client's work capacity with intervention is likely to increase to 15-22 hours per week within 24 months.
On 22 February 2021, Ms Baldacchino, clinical psychologist with the HPAU, reported:
Ms Tamay’s anxiety condition is heightened by the prospect of vocational activities and her avoidance of such activities as a way of managing her anxiety has been noted. However, reduced motivation or fear is not the same as reduced capacity. Outside of the work environment, Ms Tamay has displayed a capacity to engage in other activities.
Ms Tamay will require a very gradual and supported return to work. She will need to explore a different work role to what she has engaged in previously, as any return to an office environment is likely to be too anxiety provoking for her. She may wish to explore areas more in line with her interests and experiences including travel, yoga and care roles. As suggested by her psychiatrist, voluntary work or self-employment opportunities may be a useful stepping stone to rebuild confidence and begin to dismantle her tightly held beliefs. Following such supported activities, Ms Tamay may have some capacity to engage in work within the next two years. That is, while Ms Tamay may require initial support, she is not prevented from doing 15 hours of work per week, independently of a program of support within two years of the date of claim.
Ms Tamay would not be prevented from undertaking a training activity within the next two years, however consideration will need to be given to the type and level of training. While Ms Tamay was previously unsuccessful at completing study at a Master’s level, a shorter or lower level certificate course may be a more appropriate stepping stone. Reducing other stressors such as travel, significant social interaction and reduced hours may also be of benefit and increase likelihood of success. Courses which may provide training in fitness, care or alternative medicine may facilitate a career change. Hence, within two years of the date of claim, this training activity is likely to enable her to do 15 hours of work per week, independently of a program of support.
The Respondent’s submissions outlined the following in relation to their acceptance that

Ms Tamay’s work/training capacity was severe:
(a)Dr Polioudakis’ medical certificate of 18 October 2017, noted Ms Tamay had symptoms of anxiety in relation to returning to work. On 16 October 2018 he advised of a further deterioration which was severely impacting the Applicant’s vocational functioning and opined Ms Tamay’s capacity for future employment was guarded and further attempts for job-seeking were only exacerbating her mental health condition.
(b)Mr Urosvic’s medical report of 14 August 2017 noted Ms Tamay’s “mood dysregulation secondary to workplace bullying” with primary symptoms perpetuated by inferences drawn about herself and her ability to deal with such events in the future.
(c)Mr Urosvic on 6 November 2017 noted Ms Tamay presented with a “hypersensitivity to trauma-associated stimuli such as the possibility of vocational reengagement, high levels of resistance to the possibility of overcoming trauma and… an avoidant coping style”.
(d)Dr Wild’s letter of 19 January 2018 noted that Ms Tamay had developed a phobic anxiety around work and reported that she had stated “if it means returning to work, I don’t want to get better”.
(e)Dr Wild’s letter of 6 November 2018 stated that Ms Tamay remained “unwell, untreated, unemployed, disengaged from any prospect of rehabilitation and maintained a fixed, irascibly held and essentially false belief that she is… unable to ever return to work” and that she maintained adamant and irrational views about work that all workplaces were essentially the same.
Ms Tamay provided a statement to the AAT1 dated 20 June 2018, which clearly articulates her firm belief that she has a continuing inability to work:
Everything I have done since I was last bullied on 27 September 2013 has amounted to being denied any right. This all reinforces why I am incapacitated and, in the condition,, I am in still. I have no trust in the workforce/workplace and the kinds of people that can be in them. I will not allow another person to manage me and I will never ever again work for anyone. I don't have the tolerance for the workplace. I am adamant and serious about preserving as much as my mental and physical health that I have tried to recoup. I will never allow another organisation/company/entity to compromise my mental and physical health to the extent they already have or any further.
…
I have learned I have no rights and I am supposed to suck it up and go back to work and put up a fight in this vicious cycle in order to live with some dignity.
Unfortunately, I don't have anything left in me to go back to the workplace and be a part of this vicious cycle. I will not take part. I don't have a way of viewing working places and people in them positively or suppressing the reality of my emotions. Since the final bullying event on 27 September 2013, I haven't actually been given a chance to recover, if recovery is even possible for someone who was brutally bullied. All that has happened for the last 5 years has hindered me further and my eventual desperation of access to a secure regular basic income has given me a hard blow on top of it all. I have lost much time through these processes. I can't construct a life in any other way and certainly not under oppression. I can't sustain my life or any kind of life if my application for a Disability Support Pension is not approved.
Dr Cidoni’s report of 10 April 2021 opined on Ms Tamya’s continuing inability to work:
In my opinion, Ms Tamay is unable to work for at least 15 hours a week for the next two years from the pension qualification period because of the impairment independent of a program support.
In my opinion, Ms Tamay is unable to undertake training activities as of the pension qualification period or within 2 years of that period because of the impairment.
Dr Cidoni advised the Tribunal the following in respect of his assessment of Ms Tamay’s ability to undertake work:
AC: I want to turn briefly now to your assessment in relation to the final descriptor work training and capacity, can you tell the Tribunal how you reached your conclusion on an assessment of severe for that descriptor please?
C: Sure, so she has shown an inability to return to work, I would say there’s almost a phobic component to it, I think she struggles to even discuss it as a potential option, so much is the trauma associated with her previous workplace. I would regard her as really having very limited possibility of returning to a workplace because of the triggering of the post-traumatic symptoms regardless of which workplace that is. Her capacity to manage that anxiety is just not there. I think, even to have a discussion about the prospect of returning to work, I don’t even think she’s capable of even having the conversation. I really don’t think she has the capacity to engage in work. In terms of training, the anxiety that those activities would provoke in her with the expectation that it might to lead to working towards employment is too significant. So, I think she’s in severe rating for that and I think the other assessor agreed with that.
AC: Dr Cidoni, I’d like to move briefly to the final paragraphs of your report on page 12 under the heading continuing inability to work, you stated there that it’s your opinion that Aydan does not have various capabilities set out in those paragraphs, are you able to elaborate on your opinion in those paragraphs please?
C: In terms of the reasons for her continuing inability to work, as I sort of canvassed, I think that because her particular disorder, PTSD is in specifically in relation to the workplace, I think that’s the most important factor in relation to inability to work. We know for people who have been traumatised, regardless of what that stressor or what that trauma was, there is going to be a very strong triggering of that trauma, being in situations that are similar to the traumatic situation So from my perspective, regardless of intervention she has had, there is still so much significant trauma, I would say in many ways in the ways she’s presented, she is still stuck in terms of the trauma that happened, there is a real sense that it happened yesterday rather than years ago and so I think it’s extraordinarily difficult for her to be able to fathom re-entering a workplace situation because of that, and I think training likewise. So, it’s really about the level of trauma and mental health disturbance that was triggered by that. I say in my report there is almost a level of paranoia about it as well, so I think that there’s so many cognitive barriers in terms of her thinking in relation to a workplace situation that I just don’t see that there’s any likelihood within two years of the qualification period that she would be capable of being able to do that. That’s consistent with the current severe impairment and I think the two things go together.
AC: What about different modes of work, for example working from home or running one’s own business?
C: I think working from home still requires the level of interaction with others that being in an office with others would, so I think whether it’s in person or across a screen, I’m not convinced that would significantly reduce her anxiety or her discomfort about interacting with other people in a workplace environment. So, from my perspective I don’t think it gives a better prospect. I’m not clear what you mean by running her own business, I’m not sure what sort of business that would be and her capabilities in terms of being organised, being motivated, about being able to have the sort of wherewithal, and she would have to have training which I think would be barrier, I’m really not clear, I’m not sure where that thought is coming from but to me that seems a really big stretch given her current level of symptoms and impairment and her current capabilities.

Ms Baldacchino advised the Tribunal the following in respect of her assessment of

Ms Tamay’s ability to undertake work:
M: The sticking point between both reports is this continuing ability to work. It does seem from every reports tabled, everyone says her absolute, almost phobic fear of returning to the workforce and her failed attempt at further study, is an indication that she probably actually meets the continuing inability work but you found not and I’m just wondering why?
HPAU: Sure, certainly, so severe impairment and continuing ability to work are two separate aspects, people can have severe impairment and still be capable of working, particularly may have substantial functional impact in work situation but depending on their circumstances, their coping mechanisms, and reasonable adjustments, they might still be able to do some work. So go back to my initial report that was done, and I give some descriptions as to why she did have some capacity to return. You mentioned training, she attempted training but it didn’t go well, what I could determine is that she attempted masters level, she had indicated that to do that course she was having to drive in traffic several hours a day, it was certainly quite an overwhelming experience for her, that’s not to say that if she were to do a different, she probably jumped quite high in her expectations there. I think a lower level course or an online course or something with reduced travel time, or social interaction or reduced hours even rather than going from full time hours, all would increase her level of success. So, yes while I recognise that last attempt wasn’t overly successful, I think you know when you’re trying to do all those things together it was quite a high expectation. In terms of the vocational stuff and return to work, while the prognosis provided has been guarded, Dr Wild himself said that her belief of not being able to work was actually essentially a false belief and a guarded prognosis, doesn’t necessarily mean a person can’t do it, it may certainly be difficult to do.
M: That’s what I’m getting to, just about every one of them says, it may be irrational belief, but you understand an irrational belief in someone like Ms Tamay, is completely held and she hasn’t vacillated from this that the thought of going back to work is so traumatic, she not going to even contemplate it. So, I’m just wondering what mechanism could you possibly put aound somebody to overcome that?
HPAU: We do have within our disability employment services, there are a number of programs that help people who have a disability, where their disability is their primary barrier to finding and maintaining employment and her anxiety and in particular that avoidance which is the predominant factor of her anxiety is a thing that is stopping her from employment. I see that it wasn’t until well after the qualification period that she was referred, or I don’t think she has been referred to an employment support service program, I think she was referred to a disability management program which is a lower level of support. I’m not saying it’s going to be an easy task, certainly an uphill battle, but I would certainly feel more confident if she had at least tried these services and failed, rather than just put their hand up and say well no I can’t. It seems like very early on the piece, she said she didn’t want to get better because that would mean going back to work.
Ms Tamay advised the Tribunal the following in respect of her ability to undertake work:
RCl: I think I only have only one more question for you. I know the social interaction element is really anxiety provoking for you in a work situation. Do you think a role working from home that involved very limited interaction with others is something you could see yourself doing?
A: No because the anxiety that I am filled with when it comes to having to liaise with someone, I don’t want any interaction with anybody. I don’t want to deal with anybody, if it means I have to work under or for someone, I don’t want to have to do that because these are all the conditions that really put me in a position where I can’t manage what happens with me. I have been trying to explain what has happened in my household recently, there was a fire, we had to call the fire brigade and I was left to feal with liaising with the fire brigade officers, and even though for most of the three hours they were attending to the fire and I was only being asked questions every now and again, that whole experience completely destroyed me, it was just too much having all these people in our house, all these people wandering around, there was commotion and it quickly tired me out, and after three hours when I finally got to sit down, I broke down, I couldn’t handle it and I didn’t like the fact that it happened and now I have to, I have been the main person trying to deal with the insurance company because I was the main contact on the day of the fire and it’s just been a real shitty experience for me and I don’t want to deal with them and I just want this whole insurance thing to be over and done with as quickly as possible because it’s really stressing me out. I just can’t seem to negotiate what needs to be done and obviously I’m being told constantly this is how insurance companies are, they try to limit as much liability as possible, so they’re always trying to cut corners and also I’m having trouble getting a proper job done or what the appropriate repairs should be to carry out the repairs, so going back and forth with that information has just become really stressful for me and I don’t want to deal with it and I have been trying to escape it as much as possible but until its sorted I can’t get the weight off of me. It’s a huge problem for me.
RC: Just my very final question. What if you weren’t working under someone but you were say a contractor?
A: I don’t want to be a contractor because a contractor still means you’re connected to somebody and you have to do something for somebody, and I don’t want that. I can’t deal with the responsibility of what that could mean, how that affects me and can affect me in the future. I don’t know what to expect, and I want to know what I’m going to be expecting and the way I see it, from where I am, I can’t foresee what could and could not happen and therefore I don’t feel protected and safe. I need to ensure my safety and that my conditions are not being exacerbated. The insurance is an example of that, I’m not having fun with that and it is adding to my anxiety.
The Tribunal also relied upon the report of Dr Wild of 19 January 2018, in which he opined on Ms Tamay’s continuing inability to work:
When she spoke about work she was quite adamant that she felt broken, could not envisage ever retuning to work because of the risk of being bullied again. She said "if it means returning to work, I don't want to get better;" preferring instead her current financially limited and restricted lifestyle.
Aydan I think is now quite stuck. She has a potentially treatable disorder through a combination of pharmacotherapy and CBT, and this might return her to the workplace, but I think she is unlikely to apply herself to treatment and so is likely to continue in a disabled state for the foreseeable future.
The Tribunal finds that Ms Tamay satisfies section 94(2) of the Act as she has a continuing inability to work. In reaching this conclusion, the Tribunal relies upon the findings of the JCA report and the HPAU report, 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. Both reports identified that

Ms Tamay’s anxiety condition is exacerbated by the prospect of vocational activities, that her avoidance of such activities is a way of managing her anxiety, and that her past experiences have an impact on daily functioning.
The Tribunal was not persuaded by Ms Baldacchino argument that just because Ms Tamay maintained an adamant and irrational view about work and that workplaces may trigger her anxiety, that did not mean she was incapable of work. Ms Baldacchino and the JCA contended that with support Ms Tamay may in two years be capable of performing 15 hours a week of work. The Tribunal considers that the evidence indicated that Ms Tamay’s mental health issues were a direct result of her negative workplace experience and that she had remained steadfastly resistant to any treatment which would result in her overcoming her anxiety to return to the workforce. The evidence and Ms Baldacchino’s statements all indicated Ms Tamay had a continuing inability to work:
The author opines that there is no further treatment considered appropriate for Ms Tamay to undertake.
The author opines that even if further treatment were undertaken, significant functional improvement would be unlikely to result. Ms Tamay has demonstrated persistent symptoms which have not responded to treatment as well as displaying a number of factors which limit treatment response.
Ms Tamay continues to hold strong beliefs about her reduced ability to cope and that the onset of her difficulties relate to a vocational environment, it is to be expected that some vocational environments will be a continued trigger for her anxiety.
The Tribunal was not persuaded that there were interventions that could be found to overcome Ms Tamay’s adamant view that she is incapable of returning to the workforce in any capacity. Under questioning by the Tribunal Ms Baldacchino was unable to suggest what avenues or programs which would assist Ms Tamay return to the workforce.
M: But this isn’t early, this is since 2013 she’s now been saying that her anxiety alone is preventing her from ever putting herself in a situation that she would contemplate putting herself in a position with someone telling her what to do, that she would contemplate being in a work environment, that is consistent in all the reports. So I’m just wondering, what mechanism would there be that you could overcome that level of concern, her terminology is about protection, and feeling vulnerable and putting herself in a safe place, so where could you find somewhere for somebody at that level to feel safe to try and engage in employment, given her firm belief that she holds onto, and everyone says its irrational, but that doesn’t mean it’s not real in her mind. Do you think there is something out there that could take someone like that and could get them back to work within two years?
HPAU: It’s possible, look we don’t push treatment on to people or anything like that, but she has made a choice to manage her condition as best as she can, but certainly there are opportunities, that if she was to, again within those requirements of obviously not an office environment that’s not going to work for her, we have to break down those fears or those beliefs before moving anywhere which is really tricky. As long as those beliefs are held, it is going to be tricky for her to even consider or contemplate or be open to anything further.
Ms Baldacchino did not persuade the Tribunal that “Ms Tamay may have some capacity to engage in work within the next two years. That is, while Ms Tamay may require initial support, she is not prevented from doing 15 hours of work per week, independently of a program of support within two years of the date of claim”. The Tribunal did not find that initial support would resolve Ms Tamay’s demonstrated persistent symptoms of fear of returning to the workforce, described by her treaters as:
(a)Beliefs discrepant to the external environment or past events, that hinder her ability to shift her attention away from her workplace incident;
(b)A developed view that a return to any form of work anywhere would be impossible for her because she could not control her environment;
(c)A belief that she would be at risk;
(d)That counselling had been ineffective; and
(e)She was unable to perceive how she would ‘protect' herself in the workplace.
The Tribunal was troubled by the possibility that these findings may reinforce Ms Tamay’s view that she is broken and has no capability for work, as she is obviously an intelligent, thoughtful, dedicated individual who would add great value to any workplace. However, the Tribunal, relying upon the medical evidence, determines that Ms Tamay’s anxiety and depression has a direct correlation with her continuing inability to work.
Given all these factors, the Tribunal is therefore satisfied that Ms Tamay has a continuing inability to work for the purposes of section 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Ms Tamay was qualified to receive the DSP as her impairments attracted 20 points under the Impairment Tables, and as such she was not required to undertake a program of support as her impairment was severe. Additionally, she satisfies section 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 section 94(1)(a), (b) and (c) of the Act.

I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

...........[sgd]...........................
Associate
Dated: 6 October 2021

Date of hearing: 20 August 2021

Advocate for the Applicant: Ms Sheena Dhanji

Solicitors for the Applicant: Ms Olympia Sarinikolau,
Victorian Legal Aid

Advocate for the Respondent: Ms Olivia Hicks

Solicitors for the Respondent: Australian Government Solicitor

[2021] AATA 3559

6 October 2021

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