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

Townsend and Secretary, Department of Social Services (Social services second review) [2022] AATA 2233 (13 July 2022)
Division:GENERAL DIVISION
File Number: 2021/5111
Re:Christy Townsend

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:13 July 2022
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 21 July 2021, which affirmed a decision of a delegate of the Respondent, made on 20 May 2021, to reject the Applicant’s claim for disability support pension, is affirmed.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the applicant met eligibility requirement for disability support pension – qualification period – assigning impairment ratings – whether the applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables – whether conditions are fully diagnosed, fully treated and fully stabilised – continuing inability to work – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991(Cth) – ss 92, 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(5), 94(3B)
Social Security (Administration) Act 1999(Cth) – s Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 6, 6(4), 6(5), 6(6), 23(1), 26
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
13 July 2022
INTRODUCTION

Ms Townsend seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1), dated 21 July 2021 (Reviewable Decision). The Reviewable Decision affirmed a decision of an Authorised Review Officer (ARO) of Services Australia (Centrelink), dated 20 May 2021, which rejected Ms Townsend’s claim for Disability Support Pension (DSP) lodged on 15 February 2021.
The application was heard by the Tribunal on 8 June 2022. The parties appeared via video conferencing. Ms Townsend was self-represented, and the Respondent was represented by Mr James Bernasconi of Services Australia. Ms Townsend gave oral evidence at the hearing.
BACKGROUND
On 15 February 2021, Ms Townsend lodged a claim for DSP with Centrelink, in respect of her recurrent depressive disorder, anxiety disorder and post-traumatic stress disorder (T14/159).
On 22 February 2021, a “Disability Support Pension Medical Eligibility Assessment Recommendation” was made. The recommendation states that Ms Townsend’s conditions were not fully diagnosed, treated and stabilised and explains further (T16/168):
Medical Certificate completed by Dr Oluwafolabomi Omowo (22/10/2020) reports of severe depression, but does not list an onset/diagnosis date. Dr Omowo informs of the temporary nature, and that the current functional impacts are expected to persist for 3-12 months. Whilst Dr Omowo reports of a psychiatric review, no reports have been provided with a clear diagnosis and opinion on treatment options, including pharmacological therapies. Little verified medical information has been provided on past/current/future treatments, with no reports provided in relation to any psychotherapy (commencement/duration/modality/compliance/progress). Full engagement with appropriate treatment has the potential to improve function.
On the same day, Centrelink rejected Ms Townsend’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more during the Qualification Period, as required by s 94(1)(b) of the Social Security Act1991 (Cth) (the Act) (T17/169).
On 19 April 2021, a Job Capacity Assessment (JCA) Report recorded Ms Townsend’s Psychol/Psychiatric Disorder as “permanent, fully diagnosed by a psychiatrist, but not fully treated and stabilised” (T22/177).
Ms Townsend requested a review of Centrelink’s decision and on 20 May 2021, the decision was affirmed by the ARO, who found that Ms Townsend’s conditions were not fully treated and stabilised during the Qualification Period and, therefore, could not be assigned an impairment rating (T25/184).
On 31 May 2021, Ms Townsend applied for review to the AAT1 (T27/191), and on 21 July 2021 the AAT1 affirmed the ARO decision. However, the AAT1 found that Ms Townsend’s mental health condition was fully diagnosed, treated and stabilised, but only attracted an impairment rating of 10 points under Table 5 – Mental Health Function (T2/5–10).
On 29 July 2021, Ms Townsend lodged an application for review of the AAT1 decision with this Tribunal (T1/1). In the application Ms Townsend provided the following reason for claiming the decision was wrong (T1/4):
I’m asking for a review to go on a disability support pension I believe that the decision to deny this is wrong I am unfit for work I have specialist reports that say this and I have had this condition for over 10 years I do believe the wrong decision has been made and I’m asking for another review thank you.
ISSUE
The Tribunal must decide whether Ms Townsend was qualified for the DSP on the day she lodged her claim or within 13 weeks thereafter. The claim for DSP was lodged with Centrelink on 15 February 2021, and consequently the period for assessing Ms Townsend’s eligibility is from 15 February 2021 until 17 May 2021 (the Qualification Period).
The Tribunal’s consideration requires the assessment of whether Ms Townsend suffered from a physical, intellectual or psychiatric impairment or impairments; if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and whether Ms Townsend had a continuing inability to work (CITW) in accordance with s 94(1)(c) of the Act.
LEGISLATIVE FRAMEWORK
The Tribunal is required to consider the provisions of the Act; the Social Security (Administration) Act 1999 (Cth) (the Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Tribunal must also have regard to the relevant policy contained in the guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).
Section 94 of the Act contained the qualification criteria for DSP and states in part:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)     the person has a continuing inability to work;
(ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis; notes omitted.)
The term “severe impairment” is defined under s 94(3B) of the Act as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Original emphasis; notes omitted.)
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(e)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(f)the condition has been fully treated; and
(g)the condition has been fully stabilised; and
(h)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)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:
(i)whether there is corroborating evidence of the condition; and
(j)what treatment or rehabilitation has occurred in relation to the condition; and
(k)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(l)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
(m)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.
(Notes omitted.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim and states in part:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
It follows that Ms Townsend’s claim for DSP must be assessed on the basis of her medical conditions as at the date of claim, or within 13 weeks of that date (see para 10 above). In relation to the importance of the Qualification Period, the Respondent relevantly cites authorities which affirm the principles that “medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period”, and that should circumstances have changed subsequent to the qualification period, a fresh DSP claim may be appropriate (Exhibit R1, paras 5.5–5.7).
EVIDENCE
The Tribunal had the following material before it:
·the “T-Documents” (T1-T30, pp 1-239);
·letter by Dr Raj Sekhon (Psychiatrist), dated 28 October 2021 (Exhibit A1);
·Secretary’s Statement of Issues, Facts and Contentions dated 18 March 2022 (Exhibit R1); and
·the Applicant’s oral evidence.
Ms Townsend did not provide any additional medical evidence in her limited oral evidence.
Ms Townsend told the Tribunal that she was a little confused about impairment points and the meaning of the qualification period, but these matters had become a little clearer during the hearing (Transcript/11–12). Ms Townsend further told the Tribunal that she had seen Dr Paul Skeritt about ten years ago, but he has since retired and Centrelink advised her that she did not need to include material from that period in her claim because “[i]t was too old and it wasn’t important, it wasn’t relevant because it was too old” (Transcript/12).
The Respondent contends that Ms Townsend was not qualified for the DSP during the Qualification Period because she did not have an impairment rating of at least 20 points and did not have a CITW (Exhibit R1, para 5.1).
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?
The Respondent accepts that Ms Townsend had impairments during the Qualification Period, that Ms Townsend was impaired by her psychological conditions, and that s 94(1)(a) of the Act was satisfied (Exhibit R1, para 5.20). Having regard to the material before it, the Tribunal agrees.
Do the Applicant’s impairments receive an impairment rating of 20 or more?
The Respondent contends that it is open to find that Ms Townsend’s psychological conditions were diagnosed during the Qualification Period. However, the Respondent further contends that the available evidence does not indicate that her conditions were fully treated or stabilised, as the evidence does not show that Ms Townsend had exhausted all available treatments at the time of her claim and accordingly, the functional impairment from these conditions does not attract any impairment points (Exhibit R1, paras 5.21–5.22).
Having regard to the evidence, including the “Disability Support Pension Medical Eligibility Assessment Recommendation” dated 30 March 2021 (T21/174–175) and the JCA Report dated 19 April 2021 (T22/177), the Tribunal finds that Ms Townsend’s mental health conditions were fully diagnosed as at the Qualification Period.
At the outset, the Tribunal addresses the medical evidence provided by Dr Raj Sekhon, consultant psychiatrist, after the Qualification Period, being a medical certificate dated 2 June 2021 (T26/190) and a letter dated 28 October 2021 (Exhibit A1). Neither of these documents speaks to Ms Townsend’s conditions during the Qualification Period, and in the letter, Dr Sekhon described a deterioration in Ms Townsend’s condition as follows (Exhibit A1/3):
I was concerned when I reviewed Ms Townsend in my rooms on the 28^th of October 2021, that she had acutely deteriorated with worsening depressed and anxious mood, increased panic episodes, increased somatic features of anxiety, suicidal ideation but without a plan or intent and the deterrent being the impact on her daughter, impaired self-worth, helplessness and hopelessness.
Noting paragraph [24] above, the Tribunal is unable to include these documents in its present consideration.
In a letter, dated 8 January 2020, Dr Sekhon states that he has been treating Ms Townsend since 13 March 2020 and that he last reviewed her on 8 January 2021 (T10/127). The Tribunal concurs with the Respondent’s observation that this letter has been mis-dated, however accepts it, assuming that it was not written any earlier than, and likely on, 8 January 2021.
In the letter Dr Sekhon reports that “[p]revious attempts at psychotherapy have not produced benefits in regard to her [Ms Townsend's] psychological health due to the permanency and entrenched symptoms of her conditions” (T10/128). Medical certificate provided by Dr James Setiawan, general practitioner, dated 12 August 2011 (T6/118) and 14 October 2011 (T7/119), indicate that Ms Townsend’s depression and tiredness were under the care of specialist Dr Paul Skeritt. Dr Setiawan’s certificates refer to treatment undertaken more than nine years prior to this DSP claim and there is no evidence regarding the nature, duration or efficacy of Ms Townsend’s consultations with Dr Skeritt.
Dr Sekhon also reports that Ms Townsend’s management at the time the letter was written included psychotherapy via the Women’s Link Counselling Service (T10/128). Assuming that Dr Sekhon’s letter was written on 8 January 2021 (see para 34 above), this psychotherapy was being undertaken after Ms Townsend came under Dr Sekhon’s care on 13 March 2020 and before the submission of her DSP claim on 15 February 2021. However, there is no documentary evidence before the Tribunal indicating the nature and extent of the psychotherapy, how compliant Ms Townsend was with any recommended treatment regimens, or what impact this treatment had on Ms Townsend’s condition as at the Qualification Period.

On 19 April 2021, a JCA assessed Ms Townsend’s condition as “fully diagnosed by a psychiatrist, but not fully treated and stabilised” on the basis of the following (T22/177):
Previous Esat 2011 noted onset of depression… relationship breakdown.
Client today reports she saw a psychiatrist around that time for about a year.
She had no further intervention until seeing her current psychiatrist.
She reports this was when she was first told she had post traumatic stress disorder.
Client reports she has been seeing her current psychiatrist since March 2020.
She reports she attends every 3 to 5 months.
She is also taking medication.
She reports also seeing a counsellor every few weeks at the women’s link service.
Even at 3 monthly appointments this would be about 4 to 5 sessions with the psychiatrist.
This is not sufficient to call the condition treatment resistant or fully treated.
If the client is not making progress with the current counselling service a referral to a psychologist for a course of regular therapy would still be considered reasonable and evidenced based intervention, particularly given the mixed diagnoses and history of trauma.
The evidence indicates that Ms Townsend consulted with a psychiatrist for “about a year” after her relationship breakdown but then did not undertake further mental health treatment with any other mental health specialist until her engagement with her current psychiatrist, Dr Sekhon, some nine years later. The Tribunal notes Dr Sekhon’s statement that he had been managing Ms Townsend since 13 March 2020 (T10/127) and his opinion that “[h]er disabilities and impairments are fully diagnosed, fully treated and fully stabilised” (T10/129). The Tribunal also notes that in her claim for DSP, Ms Townsend wrote “8/1/2021” in response to the question “When did you receive treatment(s)?” (T14/160) and that this date is only five weeks prior to the lodgement of the DSP claim on 15 February 2021.
With respect to Dr Sekhon’s opinion stated in the preceding paragraph, the Respondent contends that Ms Townsend “had not attended enough consultations with Dr Sekhon as at the day it was provided for this statement to have considerable weight” (Exhibit R1, para 5.31). As the Tribunal has found that Ms Townsend’s conditions are fully diagnosed, it is necessary for the Tribunal to consider this contention having regard to the available relevant evidence and the legislative provisions pertaining to whether a condition is fully treated and fully stabilised.
From the evidence, it is unclear how often Dr Sekhon saw Ms Townsend. Dr Sekhon stated that he has only conducted “3-6 monthly reviews” with Ms Townsend since 13 March 2020, with the most recent review taking place on 8 January 2021 (T10/127–128). The Respondent contends that this statement is worded ambiguously (Exhibit R1, para 5.33), and the Tribunal agrees. It is unclear as to whether Ms Townsend consulted Dr Sekhon at intervals of three to six months during the period, or whether Dr Sekhon saw her between three and six times per month throughout this period.
Reference to other evidence before the Tribunal provides little clarity. On 1 February 2021 in her DSP claim, Ms Townsend detailed she attended “psychiatrist appointments every 3-6 months” (T14/160). On 19 April 2021, the JCA remarked that Ms Townsend reported attending psychiatrist appointments “every 3 to 5 months” (T22/177; see para 37 above). Furthermore, on 21 July 2021, the AAT1 decision included statements that Ms Townsend “is being treated with three to six monthly reviews by her psychiatrist” and medication and “has been attending her psychiatrist for about 18 months seeing him every three to four months” (T2/8).
On the basis of the evidence cited in the preceding paragraphs, the Tribunal agrees with the Respondent’s contention, noting that the Tribunal has found already that Ms Townsend’s psychological conditions were fully diagnosed, that (Exhibit R1, para 5.35):
…even if the Applicant attended psychiatry appointments every 3 months as of March 2020, she could have only attended, at maximum, 5 psychiatry appointments prior to the end of the qualification period. This does not indicate that the Applicant attended a sufficient amount of psychiatry appointments to justify a finding that her psychological conditions were fully diagnosed, treated and stabilised during the qualification period.
Dr Sekhon advised that Ms Townsend’s management included daily medication (T10/128), and the AAT1 suggested that these medications were subject to review (see para 41 above). However, no further evidence has been provided regarding the appropriateness, suitability or effect of these medications, or whether any further medicinal or other treatments remain available to Ms Townsend and what outcomes might be expected of such treatments.
In determining whether a condition is fully treated and stabilised, the Tribunal must establish that current and past treatment has comprehensively exhausted all options and that no further treatment or investigation is planned or required. The evidence before the Tribunal is not sufficient to allow the Tribunal to determine that by the end of the Qualification Period, Ms Townsend had exhausted all available treatment options.
Overall impairment rating
It follows from all the above that Ms Townsend’s conditions are not fully treated and stabilised, and therefore cannot be assessed for impairment points under the Impairment Tables and attract an overall rating of 0 points. Accordingly, Ms Townsend did not satisfy s 94(1)(b) of the Act during the Qualification Period.
Continuing inability to work
The Respondent contends that Ms Townsend did not have a CITW as defined in ss 94(2) or 94(5) of the Act, and provides detailed submissions in support of that contention (Exhibit R1, paras 5.48–5.69).
As the Tribunal has found that Ms Townsend did not have an impairment rating of 20 points or more as at the Qualification Period and did not satisfy s 94(1)(b) of the Act, it is not necessary for the Tribunal to consider whether Ms Townsend has a CITW pursuant to s 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that Ms Townsend did not satisfy s 94(1)(b) of the Act during the Qualification Period, and that the decision to reject her claim for DSP was correct.
This review is of course de novo, however it is appropriate and relevant to echo the view of the ARO that this conclusion does not mean that Ms Townsend is not affected by her conditions, but rather that the level of evidence and treatment does not meet that required by the DSP rules (T25/185).
DECISION
The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 21 July 2021, which affirmed a decision of a delegate of the Respondent, made on 20 May 2021, to reject the Applicant’s claim for disability support pension, is affirmed.

I certify that the preceding fifty paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member

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Associate
Dated: 13 July 2022

Date of hearing: 8 June 2022

Applicant:

Counsel for the Respondent:

Self-represented

James Bernasconi

Solicitors for the Respondent: Services Australia

[2022] AATA 2233

13 July 2022

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