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

[2020] AATA 3496

Taylor and Secretary, Department of Social Services (Social services second review) [2020] AATA 3496 (10 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/7130

Re:DELAHUNT, Taylor  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:10.09.2020

Date of written reasons:        10.09.2020

Place:Adelaide

The Tribunal affirms the decision under review.

................[sgnd]........................................................

Member I Thompson

Catchwords

SOCIAL SECURITY – Disability support pension – conditions not fully diagnosed, treated or stabilised – depression – anxiety – sleep disorder - decision under review is affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991

Social Security (Administration) Act 1999 (the Administration Act)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34];
Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]- [28]. 
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32];

Secondary Materials

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

REASONS FOR DECISION

Member I Thompson

10.09.2020

INTRODUCTION

1. The applicant Ms Taylor Delahunt lodged a claim for disability support pension (DSP) on 20 April 2018.  Centrelink rejected the claim in the first instance and Mr Delahunt requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Ms Delahunt requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  The decision under review was affirmed.  Ms Delahunt applied to the General Division of the Tribunal for a second review. 

2. The hearing took place on 7 August 2020.  Ms Delahunt attended the hearing by telephone. She was represented by her mother with support from her father, both of whom attended the hearing in person. Mr Cummings represented the respondent, the Secretary, Department of Social Services.

3. Ms Delahunt gave evidence by affirmation and called one witness, Professor Gradisar. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents which included articles and summaries of research into sleep-wake disorder.

4. Ms Delahunt is now 19 years old. She was 16 years old when she applied for the DSP. In the claim form she listed her disabilities and medical conditions as non-24-hour sleep wake rhythm disorder (N24SWD), anxiety, depression, chronic joint pain, migraine headaches, asthma, concentration issues, memory problems, stomach aches, shoulder and back pain and intrusive thoughts. She wrote in the form that she had been treated for 10 weeks at a sleep clinic at Flinders University in 2016. She wrote that the treatment was finished and it was a failure.[1]

   [1] T 9, p94–95.

   LEGISLATION AND ISSUES

5. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables.  The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The qualification period in this case is 20 April 2018 to 20 July 2018.

6. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”. 

7. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

8. Accordingly, Ms Delahunt will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that she has a continuing inability to work.

9. The Secretary accepted that Ms Delahunt suffers from an impairment and therefore satisfied s 94(1) (a) of the Act.

10. In the statement of facts and contentions,[2] the Secretary contended that Ms Delahunt’s sleep – wake rhythm disorder (N24SWD) was not fully diagnosed during the qualification period. In the alternative, if it was concluded that the condition was fully diagnosed, the Secretary contended that it was not fully treated and stabilised in the qualification period. Further, if it were found that the disorder was fully diagnosed, treated and stabilised, 10 points are the most that could be allocated under the Impairment Tables which is insufficient for a successful DSP claim. The Secretary contended that each of the other conditions was not fully diagnosed, treated and stabilised.

    [2] Exhibit 8.

11. Accordingly the Secretary contended that Mr Delahunt did not satisfy section 94 (1) (b) of the Act because on the most favourable interpretation for her, she could only be allocated 10 points and therefore she did not have a continuing inability to work under section 94 (1) (c) of the Act.

12. Ms Delahunt provided a comprehensive, informative  statement of issues and contentions (headed “Argument”)[3] in which she explained her reasons for disagreeing with the Secretary’s contentions which she characterised as containing: – “… a multitude of incorrect information, bias, misuse of website details, wrong websites used, nonmedical websites used and a total lack of evidence for many of the conclusions that have been drawn.”[4]

    [3] Exhibit 4.

    [4] Exhibit 4, paragraph 1.

13. Additionally in that statement , which was prepared with some assistance from her mother, Ms Delahunt wrote  that  N24SWD is a circadian rhythm disorder, not a sleep disorder, and it is only treated through the branch of sleep medicine, not by a general medical practitioner, a sleep respiratory clinic or by a neurologist. She noted that N24SWD is extremely rare in sighted persons and very little is known about the condition which is “under-investigated.” She submitted that Centrelink had accessed incorrect information from websites about the condition.  She provided a thorough analysis of the reasons why the condition should be confirmed as fully diagnosed, treated and stabilised with a rating of 20 points under Impairment Table 1 (functions requiring physical exertion and stamina).

14. In particular, Ms Delahunt contended that a diagnosis by a neurologist is neither necessary nor feasible as neurologists do not diagnose or treat N24SWD. It was contended that the condition was assessed at the Flinders University Child and Adolescent Sleep Clinic by a psychologist, Professor Gradisar who is a sleep specialist and the assessment was confirmed by her general medical practitioner. It was contended that treatment for the condition was available through the administration of melatonin and the use of light therapy and such treatment was completed 2 years and 8 months prior to the DSP claim. The treatment commenced on 6 May 2015 when she was aged 13 and the treatment ceased at the end of July 2015 at about the time she turned 14. She suggested that a psychiatrist whom she consulted, Dr Adams, was not a sleep specialist and his opinions about treatment for sleep – wake disorder were unacceptable.

15. Further, Ms Delahunt contended that she suffers extreme fatigue on a daily basis which affects her adversely in all aspects of her activities of daily living and enjoyment of life. With high levels of fatigue she is always tired, unable to set about domestic and other tasks or complete them, she cannot work, she cannot pursue further education or make any contribution to society. She concluded that she deserves “20 points in the stamina category.”[5]

    [5] Exhibit 4, paragraph 34.

16. The primary issue for determination is whether Ms Delahunt’s condition of N24SWD was fully diagnosed in the qualification period. If  the condition was diagnosed in accordance with the Rules for applying the Impairment Tables, the next questions would be whether the condition was fully treated and stabilised, whether the impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, whether she had a continuing inability to work.

    BACKGROUND

17. The Centrelink ARO wrote to Ms Delahunt on 29 August 2019 with details of the outcome of the review which Centrelink conducted. The key findings were that the N24SWD and mental health condition were not fully diagnosed, treated and stabilised. Therefore, impairment ratings under the applicable Impairment Tables could not be assigned. Without an impairment rating of 20 points or more the ARO confirmed the decision to reject the DSP claim.[6]

    [6] T13, p109.

18. In reaching the same decision as the ARO, namely the rejection of the DSP claim and affirmation of the decision under review, the AAT1 followed a different pathway. The AAT1 found that the condition of N24SWD was fully diagnosed because it was confirmed by a general medical practitioner, Dr Esfahani after receiving a report from Professor Gradisar. The AAT1 had misgivings about the extent of the treatment which Ms Delahunt had undertaken, noting that there was only one course of treatment in 2015 and there might be value in attempting further treatment, or the same treatment again. The AAT1 applied the criteria in Impairment Table 1 – functions requiring physical exertion and stamina – and considered that a rating of 10 points was appropriate for the N24SWD. The AAT1 found that Ms Delahunt’s depression and anxiety were not permanent. With less than the requisite total of 20 points under the Impairment Tables, the AAT1 affirmed the ARO’s decision.

19. The medical and allied health evidence before the Tribunal will be considered and discussed in further detail. At this point, however, it is important to note that there was no disagreement about the rarity of the condition of N24SWD in sighted persons and that it is more common in people who have severe difficulties with vision. There was no evidence to suggest that Ms Delahunt has a vision impairment.  Evidence provided to the Tribunal about the condition was thorough. Extensive documentary evidence about the condition  was provided which included excerpts from academic studies and research material.  A brief description is included in a report by Professor Gradisar who is presently a Professor of Clinical Child Psychology at the College of Education, Psychology and Social Work at Flinders University. He has carried out a significant amount of work in the research of this condition and the treatment of people who suffer from it. He wrote: –

    “the impact of sighted non-24 sleep – wake – rhythm disorder (Non-24) can have on a person is a complex issue and is unique to the individual. Non-24 is a rare and serious circadian rhythm disorder that delays a person’s sleep pattern on a perpetual basis. Non-24 consistently affects a person’s ability to fall asleep, stay asleep or even to wake up after adequate sleep. The pattern shifts forward 1 – 4 hours, daily or in sets of days, but people with non--24 can also experience delay phase jumps which are greater than four hours. Meaning their ability to fall asleep can suddenly delay several hours. The sleep pattern rarely goes backwards…”[7]

    EVIDENCE

    [7] Exhibit 3, p14.

    Ms Delahunt

20. Prior to the hearing Ms Delahunt provided a written statement in which she summarised her lived experience with N24SWD, mental health issues and associated impacts.[8] She gave evidence on affirmation about that experience. Her oral evidence to the Tribunal expanded upon the written statement regarding her sleep pattern. Her mother assisted her to write the statement.

    [8] Exhibit 3, p1.

21. Ms Delahunt told the Tribunal that there are occasions when she gets 8 to 10 hours sleep in a row. There are other occasions when she sleeps longer than 10 hours and it can be anywhere from 12 to 18 hours. After sleeping for that length of time she wakes up and feels just as tired as she was before she fell asleep. She said that sometimes she sleeps during the day for eight hours or longer, on occasions between 12 and 18 hours. Following a long sleep during the day she tends to stay up during the night. She told the Tribunal that her attempts at fixing a regular pattern of sleep have not succeeded and she said it was impossible to enforce a pattern of sleep. She explained that she has a forward shifting pattern of sleep which  means, for example, that if she goes to sleep at 4 AM on one night then the next night she will go to sleep at 6 AM and the cycle continues over the next few days. Sleep patterns have always been her biggest problem. She feels tired both emotionally and physically.

22. In evidence, Ms Delahunt said that she did not feel she had benefited from treatment for her sleep problems. The unpredictable pattern of sleeping remained after the course of treatment and continued in that way until the time she lodged her DSP claim and through to the present time.

23. Ms Delahunt wrote in her statement that she consistently suffers from non-restoratory sleep. She is consistently tired and her muscles and joints ache. Her bursts of energy are few and far between. In evidence she told the tribunal that her only form of physical exercise is the use of a cross trainer at home

24. Ms Delahunt wrote that her joints have been “very problematic.” She has problems with her back, knees, shoulders wrist and feet. She has difficulty doing menial tasks at home such as opening bottles and jars, folding clothes, doing dishes and tidying up. Any kind of physical exertion contributes to extreme fatigue. She drops things. She has difficulty with balance.

25. She wrote that a symptom of N24SWD is cognitive dysfunction. She has deficits in attention, learning, memory and organisational and motor skills. She told the Tribunal about problems she has with intrusive thoughts.  

26. Ms Delahunt has a limited history of employment. She tried to work at a fast food outlet. After the trial period, which lasted three months, the work came to an end in January 2018. She had missed some of the shifts because of her sleeping problems. When she was at work, she was clumsy, dropped dishes and fell over.

27. In evidence, Ms Delahunt said that she could work for 15 hours per week, however she could not sit at a computer throughout that time because she would suffer from back pain. She said that she has submitted her resume online, however she has not attended any interviews for a job. She did not participate in a program of support which has a focus on developing skills to prepare for and maintain employment.

28. Ms Delahunt confirmed that she saw a psychiatrist, Dr Adams. She also consulted a psychologist, Ms Anderson, to whom she was referred by her GP for assessment regarding intrusive thoughts. She wrote that she has panic attacks in public, obsessional style of thinking, depressive symptoms linked to anxiety, severe arachnophobia, difficulties with anger and a perspective about life which she described as empty, meaningless and worthless for her, with goals that are unachievable associated with self-esteem that is poor. Mirtazapine was prescribed for symptoms of anxiety and depression. She told the Tribunal that she stopped using the medication after four months as it was not helping.

29. In evidence, Ms Delahunt was referred to a report written by the psychiatrist, Dr Adams on 17 January 2019.[9] She said that she disagreed with a number of comments in the report. However, she agreed with Dr Adams comments about her lifestyle which included a community of close, Internet-based friends involving 14 members aged between 15 and 20 who had been communicating for the previous three years. She agreed with Dr Adams observation that she spent large amounts of time, at least 12 hours per day, in her room communicating with friends online. She told the Tribunal that these communications occur most of the time, “it happens when it happens”.

    [9] Exhibit 3, p9.

30. Ms Delahunt said that she travels into the city by bus. On average she travels into town twice per week by bus. She enjoys shopping and acknowledged that she had “shopaholic” tendencies which worsened a few months ago. She told the Tribunal about headaches and migraines which occur three times a week, problems with asthma and stomach aches and issues with anger as she has a quick temper and is easily irritated.

    Medical evidence

    Dr Adams

31. Two reports by the psychiatrist, Dr Adams, were received in evidence. He is a senior psychiatrist in a youth team in the SA Health, Eastern Community Mental Health Services. In a report dated 30 October 2018 Dr Adams confirmed that Ms Delahunt had significant depressive symptoms that were effectively treated with mirtazapine at that time. While Dr Adams noted a significant improvement in her depressed mood, he noted that she continued to report that there was no change in the long-term sleep disorder.[10]

    [10] T 20, p133.

32. In his second report dated 17 January 2019 Dr Adams assessed Ms Delahunt as having a complicated anxiety disorder with panic symptoms and social phobia together with some depressive symptoms which may have been linked to her problems with anxiety. He reported that the symptoms of anxiety and depression appeared to have improved significantly once Ms Delahunt was taking a reliable therapeutic dose of Mirtazapine. He did not diagnose a psychotic illness. Dr Adams observed: –

    “I had the impression of an intense mother-daughter belief symptom with an unusually high value being placed on the concept of an incurable sleep disorder. My further impression was that this was unintentionally “enabling” Taylor’s dysfunctional lifestyle. There was a very strong negative response to my attempt to engage with this sleep disorder issue, particularly in the setting of an international sleep expert insisting (according to the copy of his letter that I have read) that the sleep disorder cannot be changed but has to be accommodated into Taylor’s lifestyle.

    I also felt that Taylor had an obsessional style of thinking and in addition has a very entrenched set of personal routines and lifestyle which she finds comfortable.

    Beyond the treatment for her anxiety and depressive symptoms, neither Taylor nor her mother wish to participate in a treatment program which would or might enable her to function more successfully. This is despite the fact that she was allocated to our nurse practitioner who would have been able to offer a home based service.”[11]

    [11] Exhibit 3, p9.

33. Ms Delahunt does not agree that a treatment program was offered to her. However even if it was, she suggested that she probably would not have participated as she did not have a good rapport with Dr Adams.[12]

    [12] Exhibit 4, paragraph 27h.

    Dr Esfahani

34. Ms Delahunt’s general medical practitioner, Dr Esfahani, treated Ms Delahunt from February 2015 for problems with sleeping and sleep patterns which were apparently evident since childhood. Dr Esfahani made a referral to the Child and Adolescent Sleep Clinic at Flinders University and she recorded that melatonin was recommended by the sleep specialist.[13] Dr Esfahani was also aware of conditions for which Ms Delahunt was receiving psychiatric and psychological treatment. They included anxiety and depression, panic symptoms, stress, social phobia, and obsessional thoughts.[14] A mental health care plan was arranged.[15]

    [13] T 24, p142.

    [14] T 22, p135.

    [15] T 24, p142.

1. In October 2019 Dr Esfahani wrote to the Queen Elizabeth Hospital neurology department in relation to Ms Delahunt’s N24SWD. She sought advice about further management of the condition.[16] The response appears to be an acknowledgement from the hospital and a notification to Ms Delahunt that she was placed on the semi urgent waiting list to attend the respiratory clinic at the hospital.[17]

   [16] Exhibit 3, p11.

   [17] Exhibit 3, p12.

2. Dr Esfahani wrote once more  to the hospital on 17 April 2020 and in that letter she  queried the referral to the respiratory department and reinforced her request for an opinion from the hospital’s neurology department “to see if the specialist can provide the diagnosis or treatment of the circadian rhythm sleep disorder (CRSD) or not.”[18] Dr Esfahani’s request was  redirected  to the neurology outpatient department of the Modbury Hospital.

   [18] Exhibit 6, E 8/1.

3. On 12 May 2020 the Modbury Hospital advised that Ms Delahunt was not accepted for inclusion onto the waiting list of the neurology outpatient apartment.[19]  A staff neurologist explained the position in correspondence  as follows: – “suffice to say that here at Modbury we do not have any specialist clinics such as this and I must admit I am rather uncertain as to what advice I could give you to help with what appears to be a very unusual problem. I must admit I would have been inclined to refer on to a specific sleep physician and as such these usually now managed by the respiratory unit. There is a sleep disorder respiratory unit at the Lyell McEwin although I don’t think this is specifically a sleep disorder clinic. There are sleep disorder clinics at Burnside Hospital.”[20]

   Allied health evidence

   [19] Exhibit 6, E9.

   [20] Exhibit 6, E10.

   Professor Gradisar

4. Professor Gradisar is a Professor of Clinical Child Psychology and he is in charge of the child and adolescent sleep clinic at the Flinders University. He gave evidence at the hearing by telephone and he wrote several reports about Ms Delahunt’s condition. He confirmed that the role of the sleep clinic, which now also treats adults, is to provide research and evaluate treatment for people who have sleep problems through the provision of clinical and training facility staffed by both registered clinical psychologists and provisional psychologists who are undertaking training. The clinic was established in 2006.  Professor Gradisar has diagnosed and treated numerous people with sleep disorders since 2002 and at the clinic from 2006. He has conducted research into paediatric sleep, published papers and points out that he is considered a world expert in circadian rhythm sleep disorders in young people.[21]

   [21] T 16, p121.

5. Professor Gradisar confirmed that N24SWD is a rare condition in sighted people. In a report dated 19 April 2018 he wrote that he had only encountered six or so sighted people with that condition.  He acknowledged the limited international evidence base for research into the condition. He conceded that there is little evidence available about effective treatment to stabilise sleep times and bring them to a normal pattern. As a body of expert knowledge, it is still in its early stages.

6. In correspondence dated 26 October 2018, Professor Gradisar wrote that circadian rhythm disorders have a strong genetic and biological cause.[22] In a letter date 24 October 2019 he reported that the cause of the condition for sighted individuals, such as Ms Delahunt, is unknown.[23]  In evidence he was referred to commentary by the National Organisation for Rare Disorders in relation to in N24SWD in sighted people: – “the cause of the disorder in these cases is incompletely understood, but studies suggest melatonin levels play a role.”[24] That comment accorded with his understanding. He acknowledged that Ms Delahunt had not been part of any test for abnormal pineal melatonin secretion as such a test for an individual would be extremely expensive.

   [22] T 19, p132.

   [23] T 25, p143.

   [24] Exhibit 6, E11/1.

7. The clinical assessment of Ms Delahunt demonstrated a delay in her sleep timing each day with impairments which can be attributed to an instability in her sleep pattern which will continuously work its way around the clock. Or, as Professor Gradisar wrote: – “put another way, she was experiencing the first day of major transcontinental jetlag every day.”[25]

   [25] Exhibit 9.

8. Professor Gradisar’s diagnosis of Ms Delahunt was not recent. It occurred in 2015. Professor Gradisar wrote that Ms Delahunt: – “… Completed light therapy treatment in 2015. It had no effect. For 10 weeks she complied to the best of her ability with recording a sleep diary, caffeine avoidance, early morning sun exposure, darkened time after bed, and under my supervision she was prescribed a 100 ML bottle melatonin, 1 .5 mg/mi nocte 100 ml, which was prescribed by her doctor at the Blair Athol Medical clinic on 6 May 2015. She completed the whole course. This treatment was ineffective. It makes no difference when the treatment occurred or at what age the treatment is undertaken.”[26] In evidence Professor Gradisar stated that he had a brief memory of treating Ms Delahunt and thought that he would have seen her during four sessions of treatment.

   [26] T 25, p144.

9. At that point in 2015 Professor Gradisar regarded Ms Delahunt’s condition as fully diagnosed and fully treated. He reported that there is no effective treatment available for Ms Delahunt because he considers her condition is not treatable. He mentioned during his evidence that there may be some improvement with treatment later in life after some lapse in time of two to three decades.

10. Professor Gradisar’s evidence about treatment for N24SWD is that the rate of successful treatment is very low and relapse is very high. There are two types of treatment which can be attempted and they comprise bright light therapy and exogenous melatonin administration. In severe cases those two types of treatment can be applied at the same time. The combined treatment for Ms Delahunt was unsuccessful and therefore the only remaining option, according to Professor Gradisar, was to counsel Ms Delahunt to accept and adapt to her continuously changing sleep-wake pattern. He wrote: – “our research at the time, suggested that acceptance of this non--24-hour sleep-wake pattern would prevent further psychological damage, as evidenced by our online interviews with middle-aged adults (some of which had accepted their sleep pattern was misaligned with society’s 24-hour day-and those who had not). The latter group experienced more severe psychopathology.”[27]

    [27] Exhibit 9.

    Ms Anderson

11. A psychologist, Ms Anderson, was consulted by Ms Delahunt on nine occasions through a series of mental health care plans between 29 July 2017 and 29 May 2020. In a report dated 25 June 2020, Ms Anderson addressed issues  which were listed as  conditions of N24SWD, anxiety disorders including social anxiety disorder, sensory integrative difficulties and hypersensitivities, poor food intake, problems with emotional and behavioural regulation in the context of adolescent/emerging adult  issues.

12. Significantly, Ms Anderson reported that Ms Delahunt’s depression, anxiety and stress were assessed in the extremely severe range. Ms Anderson continued: – “during my last consult I screened Taylor for adult autism spectrum disorder using the RAADS – 14 where she screened positive for autism, warranting further investigation and full diagnostic consideration…Taylor’s presentation is unique, long-standing and complex and her prognosis is very difficult to predict.”[28]

    [28] Exhibit 6, E21.

    CONSIDERATION

13. Both the Tribunal and the Federal Court have concluded in a number of reported decisions that there is a requirement to look at a DSP applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the qualification period may be considered, however, only insofar as it is referable to an applicant’s condition during the relevant period. [29] As indicated previously, the qualification period in this case is 20 April 2018 to 20 July 2018.

    [29]  Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]- [28].

    Impairment Tables

14. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

15. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

16. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

17. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years. 

18. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

19. The applicable impairment rating, if any, for each of Ms Delahunt’s conditions will be considered in turn by reference to the Impairment Tables.

N24SWD – whether the condition was fully diagnosed, treated and stabilised

1. In a  letter dated 22 July 2019 Ms Delahunt’s GP,  Dr Esfahani, referred to Ms Delahunt’s anxiety, depression  and other symptoms and added: – “beside her mental health issues she is suffering from severe sleep disorder and has been diagnosed with non-24-hour sleep-wake rhythm disorder.”[30]

   [30] T 22, p135.

2. Dr Esfahani recorded a diagnosis of Ms Delahunt’s condition of N24SWD in in a letter to the Queen Elizabeth hospital on 19 October 2019 in this way: – “…  she was diagnosed with non--24-hour sleep-wake rhythm disorder by Professor Michael Gradisar on July 2019. In his letter he mentioned this condition is rare and extremely debilitating.”[31]

   [31] Exhibit 3, p11.

3. In another  letter also dated 19 October 2019 , Dr Esfahani referred to a diagnosis of the condition as follows: – “this is to certify Ms Taylor Delahunt, age 18 year is suffering from non-24-hour sleep-wake rhythm disorder according to Dr Michael Gradisar.”[32] Further  on in that letter she reiterates that :- “Prof Michael Gradisar diagnosed her with non-24-hour-sleep-wake-ryhthm disorder …”

   [32] T 24, p142.

4. Dr Rajapaksha is a general medical practitioner and a colleague of Dr Esfahani at the same  medical clinic. Dr Rajapaksha completed and signed a medical certificate on 13 December 2019 in which a diagnosis was recorded of N24SWD and depression.[33] This was a certificate for Centrelink and would appear to adopt and provide the requisite information in the absence of Dr Esfahani.

   [33] Exhibit 3, p13.

5. The psychologist, Ms Anderson, also referred to the diagnosis by Professor Gradisar. Specifically, Ms Anderson wrote that Ms Delahunt: – “has been diagnosed with a non-24-sleep-wake rhythm disorder by Professor Gradisar at Flinders University. He states that these disorders have a strong genetic and biological cause (i.e. meaning they are present from birth and are lifelong debilitating disorders).”[34]

   [34] Exhibit 6, E 21.

6. Professor Gradisar diagnosed Ms Delahunt with N24SWD. On his assessment she met criteria specified by application of the International Classification of Sleep Disorders, American Academy of Sleep Medicine. He reiterated the diagnosis in various reports and letters following evidence which Ms Delahunt had provided “via a semi-structured diagnostic interview and a sleep diary.”[35]

   [35] T 16, p121.

7. Professor Gradisar ruled out the need for diagnostic assessment and treatment by a medical doctor, a neurologist, a combined examination and assessment by a medical doctor and a neurologist, imaging, a formal sleep study, and the provision of cognitive behaviour therapy and sleep education and hygiene.[36] 

   [36] T 25, p143.

8. Professor Gradisar was cross-examined about diagnostic criteria for N24SWD. He was referred to a publication of the International Classification of Sleep Disorders which indicated that four diagnostic criteria  must be met inclusive of a history of excessive daytime sleepiness or insomnia, the persistence of symptoms over at least three months, sleep loss for at least 14 days showing a circadian period usually longer than 24 hours, and finally that: – ‘the sleep disturbance is not better explained by another current sleep disorder, medical or neurological disorder, mental disorder, medication use or substance use disorder.”[37] Professor Gradisar said that his testing of Ms Delahunt meet those diagnostic criteria.

   [37] T 29, p152.

9. In his  report dated 24 October 2019 Professor Gradisar referenced  the International Classification of Sleep Disorders, third edition (ICSD-3) as authority for the proposition that a diagnosis of the condition can be made clinically and with the use of a sleep diary, without the necessity for a diagnosis by medical doctors or neurologists. He contested a claim which he perceived that Centrelink was making that he did not have the required credentials to diagnose N24SWD. Indeed, he wrote that he is “an international expert who is fully qualified to diagnose” the condition.[38] He also contested a proposition which he thought Centrelink was making about N24SWD as a by-product of depression. He wrote: – “The evidence shows sleep disorders precede depression in young people.”[39] He considered that any notion that depression causes sleep problems and not the other way round is outdated. He reiterated his credentials to make that assertion :- “… not only am I considered a world expert on circadian rhythm disorders in young people, but also a world expert  on the link between sleep and depression in young people.”[40]

   [38] T 25, p143.

   [39] T 19 p132.

   [40] T 19, p132.

10. It may be that there was some misunderstanding between Professor Gradisar and Centrelink about the capacity of a psychologist to make a diagnosis of N24SWD. Professor Gradisar was concerned that Centrelink did not accept that he has the “required credentials” to make the diagnosis, despite the fact he is “fully qualified” to do so.[41]

    [41] T 25, p143.

11. In correspondence dated 3 August 2020 Professor Gradisar explained the reasoning for his diagnosis of Ms Delahunt’s condition. He wrote that she did not qualify for a diagnosis of delayed sleep-wake phase type because she did not express a stable sleep pattern. Next, she did not qualify for a primary diagnosis of depression and he noted that the history of problems with sleep proceeded any mental health issues in Ms Delahunt. His  diagnosis led to the conclusion that Ms Delahunt: – “met the criteria for a primary diagnosis of circadian rhythm sleep-wake disorder, non-24-hour sleep-wake type.”[42]

    [42] Exhibit 9.

12. It seems clear that Centrelink was questioning the lack of diagnosis by a medical practitioner, rather than querying  Professor Gradisar’s professional qualifications and expertise in this area of psychology. That much appears to emerge from a Job Capacity Assessment report[43] and from a report by the Health Professional Advisory Unit (HPAU).[44] Indeed, the HPAU report acknowledges Professor Gradisar as a clinical psychologist with extensive experience in the treatment of sleep disorders, while also noting that Ms Delahunt did not have medical or neurological evidence to support the diagnosis of the condition. And there lies the  critical issue in the Rules for applying the Impairment tables, namely whether there must be a diagnosis by a medical practitioner to support this DSP claim. 

    [43] T 18, p124.

    [44] T 23, p136.

13. Rule 6 (3) of the Rules for applying the Impairment Tables specifies that the person’s condition causing the impairment must be permanent. Rule 6(4) specifies that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner. Rule 3 provides definitions of medical practitioner and allied health practitioner in this way: –

    “appropriately qualified medical practitioner means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.”

    “allied health practitioner includes but is not limited to, a person who practices chiropractic, exercise physiology, physiotherapy, psychology, occupational therapy, osteopathy, pharmacy, podiatry or rehabilitation counselling.”[45]

    [45] T 4, p25.

14. The term ‘medical practitioner’ is defined by s 23(1) of the Social Security Act: –“medical practitioner means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.”

15. A clinical psychologist does not come within the definition of an “appropriately qualified medical practitioner’ as it appears in the Rules for applying the Impairment Tables unless the psychologist also has qualifications and registration as a medical practitioner.

16. Professor Gradisar is a clinical psychologist. His status in that regard is not in doubt. He has expertise in his profession and field of practice. However, he is not a medical practitioner and, moreover, does not claim to be.

17. The diagnosis of Ms Delahunt’s sleep disorder followed assessment and treatment at Professor Gradisar’s clinic. The diagnosis does not follow or arise out of medical assessment and medical diagnosis. Correspondence which has been summarised from Ms Delahunt’s general medical practitioner, Dr Esfahani, and from her colleague, Dr Rajapaksha, do not constitute a diagnosis of that condition by a medical practitioner. In relation to diagnosis, Dr Esfahani’s letters acknowledge in precise terms  and rely upon the diagnosis by Professor Gradisar. The psychologist, Ms Anderson, also reported in equally precise terms that Ms Delahunt’s condition of N24SWD was diagnosed by Prof Gradisar  at Flinders University.[46] It is  a diagnosis which was made by a clinical psychologist.

    [46] Exhibit 6, E21.

18. The definitions of qualified medical practitioner and allied health practitioner which are set out in the Rules for applying the Impairment Tables are clear. The delineation between them  is essential  to understanding the roles of health professionals in the application of the numerous components of the Impairment Tables.

19. With one exception, each one of the 15 Impairment Tables requires that the diagnosis of a condition must include a diagnosis by an appropriately qualified medical practitioner. The exception is in Impairment Table 9 where the assessment of the condition can be made by an appropriately qualified psychologist. However, that table is used for assessment of intellectual function to determine whether a person has a permanent condition which results in a low intellectual function which is specified as an IQ score of 70 to 85. On the basis of the evidence that has been provided, Impairment Table 9 is not relevant to this review.

20. Impairment Table 7 is used where the person has a permanent condition which results in a functional impairment that is related to a neurological or cognitive function. The introduction to Impairment Table 7 states that the diagnosis must be made by an appropriately qualified medical practitioner which may include, for example, a neurologist. Ms Delahunt has tried  recently to find out more about the possibility of a neurological assessment. It has not been pursued further at this time. Professor Gradisar does not think it is necessary, relevant or cost-effective. Ms Delahunt has not been successful in locating a neurologist who may be able to assist either at all or in a way that is cost-effective.

1. Impairment Table 7 provides that a person with autism spectrum disorder who does not have a low IQ should be assessed under this Table. While there is a recent suggestion through preliminary screening of Ms Delahunt which was conducted by the psychologist, Ms Anderson, the evidence at this time about a possible diagnosis of autism spectrum disorder is only indicative and by no means at all conclusive. Ms Anderson wrote that the screening results indicate that further investigation and full diagnostic consideration is warranted.

2. The credentials which Professor Gradisar has a clinical psychologist to make a diagnosis of a psychological condition and to provide treatment through psychology are not in doubt. He has expertise in a specialised area involving sleep disorders. The evidence suggests that he and his colleagues at the clinic are at the forefront of research into rare disorders such as N24SWD. However, in the context of a claim for a DSP  a diagnosis by a psychologist is not sufficient to meet the requirements of the Rules for applying the Impairment Tables in relation to this condition. Rule 6(4)(a) requires that the condition has been fully diagnosed by an appropriately qualified medical practitioner.

3. The Tribunal finds that Ms Delahunt’s condition of N24SWD is not fully diagnosed in relation to and for the purposes of her DSP claim. In those circumstances, the condition cannot be said to have been fully treated and fully stabilised in accordance with the Rules for applying the Impairment Tables.

   Anxiety and depression

4. Impairment Table 5 – mental health function, -is used where the person has a permanent condition resulting in functional impairment due to a mental health condition. The diagnosis must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

5. The psychiatric treatment by Dr Adams at the Eastern Community Mental Health Service did not commence prior to the DSP claim or in the qualification period. Dr Adams report written on 30 October 2018 refers to treatment of Ms Delahunt’s significant depressive symptoms from August 2018.[47] It was also noted that although Ms Delahunt was referred to that service in August 2017, attempts to contact her and her mother were not successful. In any event the initial psychiatric assessment did not occur until after the DSP qualification period.

   [47] T 20p 133

6. Ms Delahunt received psychology services from Ms Anderson commencing on 29 July 2017, before the DSP claim was initiated. In 2018 and prior to the first consultation with Dr Adams, Ms Anderson had supported a psychiatric referral to explore the possibility of OCD or the possibility of a psychotic condition.[48] The assessment by Dr Adams enabled Ms Anderson to note that the symptoms were not suggestive of a psychotic condition, however they did suggest she was sensitive to a range of sensory conditions, with a complicated anxiety disorder and perceptual difficulties. The treatment which Ms Anderson implemented was still in place at the time of writing a report on 25 June 2020, which is almost 2 years after the DSP qualification period.

   [48] Exhibit 6, E21.

7. At the time of Ms Delahunt’s DSP claim, her mental health function was not fully diagnosed by a psychiatrist or, alternatively, by her treating doctor together with evidence from a clinical psychologist. An impairment rating cannot be assigned to that condition.

   Other conditions

8. There was little evidence about the other conditions which were listed in the DSP claim. They were not relied upon in a substantive way to support the claim.

9. In a report dated 19 October 2019 Dr Esfahani mentioned asthma in Ms Delahunt’s medical history.[49] There is no further detail in the medical reports.

   [49] Exhibit 3, p11.

10. The evidence about concentration issues and memory problems emerges in consideration of Ms Delahunt’s N24SWD. They appear to be adverse effects arising out of the difficulty with sleeping patterns. Difficulties with intrusive thoughts are alluded to briefly in the evidence about mental health function. There is no evidence of a diagnosis in relation to joint pain, shoulder and back pain,  headaches and migraine.

11. The Tribunal is satisfied that none of the other conditions were fully diagnosed, treated and stabilised at the time of the DSP claim.

    Conclusion

12. Ms Delahunt’s N24SWD condition has adverse consequences for her. The condition is rare and the expert information about it is still emerging. She has provided evidence about problems with mental health, issues with fatigue and other difficulties which she is trying to address in accordance with medical advice and allied health support. 

13. At this time, however, Ms Delahunt’s DSP application was formulated  largely upon a consideration of matters set out in Impairment Table 1 which refers to functions requiring physical exertion and stamina with  impacts and  symptoms such as shortness of breath, cardiac pain and fatigue associated with mobility, performing day-to-day household activities and carrying out physically active tasks.

14. Further investigation into mental health function, neurological function and intellectual function may provide evidence that is relevant to any future consideration that Ms Delahunt may give to re-applying for the DSP.

    SUMMARY

15. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

16. Ms Delahunt’s N24SWD condition was not fully diagnosed, treated and stabilised during the qualification period and no rating can be assigned in respect of it.

17. Ms Delahunt’s condition of depression and anxiety was not fully diagnosed, treated and stabilised during the qualification period.  An impairment rating under the Impairment Tables cannot be given in relation to mental health condition.

18. With a total of zero impairment points, Ms Delahunt does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the qualification period. Therefore, she does not satisfy s 94(1)(b) of the Act.

19. In these circumstances it is not necessary to consider whether or not during the qualification period Ms Delahunt had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

20. As Ms Delahunt was not qualified for DSP at the time she lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review

    DECISION

21. The Tribunal affirms the decision under review.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Member Thompson   

………[sgnd]………………………….
Administrative Assistant Legal

Dated: 10.09.2020

Date of hearing:   7.08.2020

Applicant:Self-represented.

Respondent’s representative:   Mr Cummings of Sparke Helmore.