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

Trzcinski and Secretary, Department of Social Services (Social services second review) [2022] AATA 2262 (14 July 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1752
Re:Ms Sherri Trzcinski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B Cullen
Date:14 July 2022
Place:Brisbane

The Applicant’s claim fails because her impairments did not attract 20 or more points under the Impairment Tables, therefore, she did not qualify for DSP during the ‘Qualification Period’ as required under section 94(1)(b) of the Act.
The decision under review is affirmed.
...........................[SGD].............................................
Senior Member B Cullen

Catchwords
SOCIAL SECURITY – whether applicant qualifies for disability support pension – whether conditions fully diagnosed, treated and stabilised during the qualification period – whether impairments were of 20 points or more under s 94(1)(b) – decision affirmed
Legislation
Social Security Act 1991 (Cth).
Social Security (Administration) Act 1999 (Cth).
Cases
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.
Social Security (Active Participation for Disability Support Pension) Determination 2014.
Guide to Social Security Law.
REASONS FOR DECISION
Senior Member B Cullen
14 July 2022
EVENT HISTORY/ BACKGROUND/ FACTS:

On 11 September 2019, Ms Trzcinski (‘the Applicant’), lodged a claim for disability support pension (‘DSP’) with the Respondent[1], in respect of “eye sight, comprehension, depression, anxiety, brain injury, use of left hand, fine motor skills”.[2]
[1] Exhibit 1, T Documents, T2, page 5, ‘Decision of the Social Services & Child Support Division’.
[2] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 1, [4]. Exhibit 1, T11, pages 120 and 143, ‘Claim for Disability Support Pension and Consent to Disclose Medical Information’.
On 23 October 2019, the Applicant’s DSP claim and file was assessed by a rehabilitation counsellor for the purposes of a DSP Medical Eligibility Assessment Recommendation. This assessment determined that a Job Capacity Assessment Report was required. [3]
[3] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [5]. Exhibit 1, T11, page 166, ‘Claim for Disability Support Pension and Consent to Disclose Medical Information’.
On 2 December 2019, the Applicant underwent a face-to-face assessment with a registered psychologist for the purposes of a Job Capacity Assessment Report[4]. This report, dated
19 December 2019, determined that:
(a)
The Applicant’s traumatic brain injury was fully diagnosed, fully treated, and fully stabilised, and the impairment stemming from this condition could be rated with

0 points under Table 12; and
(b)The Applicant’s mental health condition was fully diagnosed as a ‘chronic adjustment disorder with anxiety and depressive features’; but was not fully treated or fully stabilised.[5]
[4] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [6]. Exhibit 1, T14, page 168, ‘Job Capacity Assessment Report’.
[5] Ibid.
On 19 December 2019, the Applicant’s claim for the DSP was rejected by Centrelink[6] on the basis the Applicant did not have an impairment rating of 20 points or more.[7]
[6] Exhibit 1, T Documents, T20, page 199, ‘Letter from Centrelink to Applicant’.
[7] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [7]. Exhibit 1, T15, page 179, ‘Rejection of Claim for Disability Support Pension’.
On 5 May 2022, the Applicant lodged further medical information with the Agency, which was considered in a further DSP Medical Eligibility Assessment Recommendation. This assessment determined that a Job Capacity Assessment Report was required.[8]
[8] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [8]. Exhibit 1, T18, page 185, ‘Disability Support Pension Medical Eligibility Assessment Recommendation’.
On 8 June 2020, a registered psychologist conducted a file assessment of the available medical evidence for the purposes of a Job Capacity Assessment report.[9] This report, also dated 8 June 2020, determined that:
a)The Applicant’s traumatic brain injury was fully diagnosed, fully treated, and fully stabilised and that the impairment stemming from this condition could be rated with 0 points under Table 2, 0 points under Table 7, and 5 points under Table 12; and
b)The Applicant’s mental health condition was fully diagnosed as a chronic adjustment disorder with anxiety and depressive features; but was not fully treated and stabilised.[10]
[9] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [9]. Exhibit 1, T19, page 187, ‘Job Capacity Assessment Report’.
[10] Ibid.
On 9 June 2020, Centrelink confirmed to the Applicant that her previous request for a review had been allocated to an Authorised Review Officer (‘ARO’).[11]
[11] Exhibit 1, T Documents, T20, page 199, ‘Letter from Centrelink to Applicant’.
On 1 October 2020, the Applicant was informed that the ARO “… found the decision was correct. This was because you do not have an impairment rating of 20 points”.[12]
[12] Exhibit 1, T Documents, T21, page 200, ‘Decision and Notes of Authorised Review Officer’.
The ARO’s ‘Key findings’ were: “Your impairment is 5 points under the Impairment Tables”.[13] The ARO also stated: “I can only consider whether you were qualified for Disability Support Pension at the time of your claim, or within the following 13 weeks”.[14]
[13] Ibid.
[14] Exhibit 1, T Documents, T21, page 200, ‘Decision and Notes of Authorised Review Officer’.
The ‘Reasons for the outcome’ were:
“To qualify for Disability Support Pension you must have medical conditions with a total impairment rating of 20 points. Impairment ratings assessed under the Impairment Tables apply to conditions that are fully diagnosed, treated and stabilised.
Your hypoxic brain injury secondary to an out of hospital cardiac event is fully diagnosed, treated and stabilised and has a total impairment rating of 5 points.
Your hypoxic brain injury secondary to an out of hospital cardiac event causes minimal to mild functional impairment under 3 different Impairment Tables. This means your impairment rating is 5 points.
Your depression is diagnosed but not fully treated and stabilised. This means there is no impairment rating.
As you do not have an impairment rating of 20 points, you are not qualified for Disability Support Pension. This means the decision to reject your claim for Disability Support Pension was correct. …”[15]
[15] Exhibit 1, T Documents, T21, page 201, ‘Decision and Notes of Authorised Review Officer’.
The ‘Legislation and policy considered in this formal review’ were:[16]
·Section 94 of the Social Security Act 1991 (Cth).
·The Social Security (Tables for the Assessment of Work-Related Impairment forDisability Support Pension) Determination 2011.
·Section 36 of the Social Security (Administration) Act 1999 (Cth).
[16] Ibid, page 202.
The ARO’s notes state the following:
“ARO called customer at … at 12.07pm on 30/09/2020. ARO discussed eligibility for Disability Support Pension, the outcome of customers assessment and the decision to affirm the decision to reject the Disability Support Pension application.
‘Reasons for decision’
Job capacity assessment (JCA) was completed on 19/12/2019 which assessed her hypoxic brain injury as fully diagnosed, treated and stabilised and a combined impairment rating of 5 points was applied on Tables 2, 7 and 10. Her depression was assessed as diagnosed although not fully treated and stabilised.
New medical information was provided for her appeal.
Appeal JCA was completed on 08/06/2020 with the same outcome as JCA dated 19/12/2019.
No further medical information has been provided to support the appeal.
During discussion with customer on 30/09/2020 she reported having ongoing difficulties she has not reported to her GP. She noted it is unlikely she will be able to get any additional medical information to confirm these difficulties. As there is no further information available to indicate she meets a higher impairment rating, the assessment completed in her JCA’s and associated impairment rating remains accurate.”[17]
[17] Exhibit 1, T Documents, T21, page 203, ‘Decision and Notes of Authorised Review Officer’.
On 19 November 2020, the Applicant lodged an application for review of the decision of the Respondent dated 19 December 2019, with the Tribunal.[18]
[18] Exhibit 1, T Documents, T22, page 204, ‘Request for Statement’. (Matter number 2020/B156333).
On 25 January 2021, the Tribunal (‘the AAT1’) decided that “the decision under review is affirmed”.[19]
[19] Exhibit 1, T Documents, T2, page 13, ‘Decision of the Social Services & Child Support Division’.
The AAT1 found the following[20]:
a)The Applicant’s traumatic brain injury was fully diagnosed, fully treated and fully stabilised and the impairment stemming from this condition could be rated with
5 points under 2, 0 points under Table 7 and 5 points under Table 12; and
b)The Applicant’s mental health condition was fully diagnosed, treated and stabilised and the impairment stemming from this condition could be assigned an impairment rating of 5 points under Table 5.
[20] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [12]. Exhibit 1, T2, page 4, ‘Decision of the Social Services & Child Support Division’.
On 24 March 2021, the Applicant requested a second review of the decision of the AAT1 dated 25 January 2021.[21]
[21] Exhibit 1, T Documents, T1, pages 1 -3, ‘Application for Review’.
Along with her review application, the Applicant lodged a written statement in response to Section 3 of the Tribunal’s application for review form, stating the following:
“In June 2017 I lost consciousness and stopped breathing while in a car with my daughter. (Applicant’s daughter) had to perform CPR until the paramedics arrived. My brain was deprived of oxygen as a result I have sustained brain damage which has affected my mental health my eye sight and balance and as a result I’m unable to hold a drivers licence there for I have to rely on family and friends to drive me around. Since the accident all of my doctors including my Neurologist and Cycoligest (sic) have informed me that my condition will not improve. As a result I now suffer from anxiety depression. I’m unable to drive a car unable to work as a machinist my eye sight is blurry so I would not be able to hold any job. …”[22]
[22] Ibid, page 3.
Decision under review
The decision under review is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) dated 25 January 2021, which affirmed a decision of Services Australia (‘the Agency’) to reject the Applicant’s claim for the Disability Support Pension (‘DSP’) lodged on 11 September 2019.[23]
[23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 1, [1].
Issues:
Whether, at the date of claim of 11 September 2019, or within 13 weeks thereafter, the Applicant had a physical, intellectual or psychiatrist impairment(s) for the purpose of section 94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’); and
If so, whether the Applicant's condition(s) were fully diagnosed, fully treated and fully stabilised (‘FDTS’) and caused impairment(s) which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) for the purpose of section 94(1)(b) of the Act; and
If so, whether the Applicant had a 'continuing inability to work' as defined in section 94(2) of the Act for the purpose of 94(1)(c) of the Act.[24]
Relevant Legislation[25]:
·Social Security Act 1991 (Cth).[26]
·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.[27]
·Social Security (Administration) Act 1999 (Cth).[28]
·Social Security (Active Participation for Disability Support Pension)
Determination 2014.[29]
·Guide to Social Security Law.[30]
[24]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 1, [2].
[25]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 3, [15].
[26]    Act No. 46 of 1991, C2022C00165, registered 11 May 2022.
[27]    F2011L02716, registered 16 December 2011.
[28]    Act No. 191 of 1999, C2022C00161, registered 2 May 2022.
[29]    F2015L00001, registered 2 January 2015.
[30]    Refer to Exhibit 2, Refer to Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 3, [16].
The date for determining whether the Applicant meets the Section 94 Requirements is the date of her claim (11 September 2019), unless the Applicant becomes qualified within

13 weeks of lodging the claim, in which case, her start date is the day she becomes qualified.[31] Therefore, in order to qualify for DSP, the Applicant must have met the Section 94 Requirements between 11 September 2019 and 11 December 2019 (‘Qualification Period’).
[31] See ss 41 and 42, and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
When making a decision about whether the Applicant meets the Section 94 Requirements, the Tribunal can only consider medical evidence that relates to the functional impact of the Applicant’s impairments after the Qualification Period to the extent that it “may cast light on” the functional impact of the impairments within the Qualification Period.[32]
DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[32] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1], and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination[33] contains the rules for applying the Impairment Tables and defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” to mean “a medical condition”.[34]
[33] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘Determination’).
[34] Determination, s 3, ‘Interpretation’.
Conclusion on Impairments
At the hearing, and in its Statement of Facts and Contentions, the Respondent accepted that the Applicant had a traumatic brain injury, and an adjustment disorder, which satisfied section 94(1)(a) of the Act during the Qualification Period.[35]
[35] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 7, [37].
Considering the above evidence, the Tribunal finds that during the Qualification Period, the Applicant had a traumatic brain injury, and an adjustment disorder which are impairments for the purposes of the Act. Therefore, the requirements in section 94(1)(a) of the Act have been met.
DO THE APPLICANT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) of the Act?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act.[36] They are function based,[37] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[38]
[36] Determination, ss 4(2) and 5(2)(a).
[37] Determination, s 5(2)(b) and (c).
[38] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[39]
·the condition causing that impairment is “permanent”; and
·the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.
[39] Determination, s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[40]
[40] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 at [12].
The Applicant’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[41]
·The condition has been fully diagnosed by an appropriately qualified medical practitioner;
·The condition has been fully treated;
·The condition has been fully stabilised; and
·The condition is more likely than not, in light of the available evidence, to persist for more than 2 years.
[41] Determination, s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”,[42] the following is to be considered:[43]
·Whether there is corroborating evidence for the condition;
·What treatment or rehabilitation has occurred in relation to the condition; and
·Whether treatment is continuing, or is planned, in the next 2 years.
[42] For the purposes of ss 6(4)(a) and (b) of the Determination.
[43] Determination, s 6(5).
A condition is “fully stabilised”[44] if:[45]
(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;[46] or
(ii)There is a medical or other compelling reason for the person not to undertake reasonable treatment.
[44] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[45] Determination, s 6(6).
[46] For “reasonable treatment”, see s 6(7) of the Determination.
In relation to the Applicant’s impairments, the Respondent’s position at hearing was that:
·The traumatic brain injury was fully diagnosed, treated, and stabilised in the qualification period, and attracted an overall impairment rating of 5 points under Table 12, and therefore did not satisfy section 94(1)(b) of the Act; and
·The adjustment disorder was not fully diagnosed, treated, and stabilised during the Qualification Period, and therefore should not be assigned an Impairment Rating using the Impairment Tables.
The Applicant’s Medical Conditions
Application of the Impairment Tables to the Applicant’s traumatic brain injury
The Tribunal must assess the level of impact of the Applicant’s traumatic brain injury against the descriptors (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
·The impairment of a person must be assessed on the basis of what the person can, or could do, and not on the basis of what the person chooses to do, or what others may do for the person.
·The Tribunal is obliged by the Determination to take the following information into account when applying the Tables:
othe information provided by the health professionals specified in the relevant Table; and
oany additional medical or work capacity information that may be available; and
oany information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

The Tribunal must not take into account, when applying the Tables, symptoms reported by the Applicant in relation to her condition if there is no corroborating evidence.[47]
[47] See s 8 of the Determination.
Which Tables are appropriate is a matter to be determined by[48]:
·identifying the loss of function; then
·referring to the Table related to the function affected; then
·identifying the correct impairment rating.
·Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
·If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
·The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis, and not only once, or rarely.
·Where a person's diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
[48] See s 10 of the Determination.
The Respondent assessed the Applicant’s traumatic brain injury under Tables 2, 7 and 12, for the reason that the medical evidence indicated impacts on the Applicant’s upper limb, brain, and visual functions[49].
[49] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, [9]. Exhibit 1, T19, page 187, ‘Job Capacity Assessment Report’.
Table 2 rating – Upper Limb Function
Table 2 of the Determination, which deals with upper limb function, provides (relevantly) that[50]:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms, alone, is insufficient.
·There must be corroborating evidence of the person's impairment.
[50] Refer to Part 3 of the Determination; ‘The Tables’.
The Respondent contends that the Applicant’s traumatic brain injury causes nil impairment for the purposes of Table 2 of the Impairment Tables, and therefore attracts an impairment rating of 0 points under Table 2. In its Statement of Facts, Issues and Contentions, the Respondent outlined the evidence it relies on in relation to the Table 2 assessment. That evidence consists of the following:[51]
[51]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 7, [40].
·‘The Job Capacity Assessment Report, which outlines the concerns reported to the assessor by the Applicant and her sister:[52]
oNo difficulties with dressing;
oAble to handle money; do zips up; use a knife and fork; undertake all personal care; use utensils; and put away shopping, at home;
oDifficulty with some tighter buttons; bottle tops yet could still open these, at a much slower pace’.
·Post assessment findings by occupational therapist; Ms K van Wyk after conducting an occupational therapy driving assessment - Applicant’s ‘bilateral upper limb range of motion, strength, coordination and sensation assessed as adequate for driving’;[53]
·Report of neurology registrar Dr D Truong on 2 May 2019 – noting that the Applicant and ‘her sister feel that she is managing well at home and that her visual impairment does not stop her from living an independent active lifestyle, apart from her driving restriction’;[54] and
·Dr G Wright NDIS access request report dated 21 January 2020 recording that Applicant ‘did not need assistance with mobility, self-care or self-management because of her impairments stemming from her traumatic brain injury’.[55]
[52]    Ibid. Referring to Exhibit 1, T Documents, T14, page 170, ‘Job Capacity Assessment Report’.
[53]    Ibid, n 47. Referring to Exhibit 1, T Documents, T12, page 155, ‘Letter from Ms K van Wyk (Occupational Therapist dated 17/10/2018)’.
[54]    Ibid, n 47. Referring to Exhibit 1, T Documents, T12, page 160, ‘Letter from Dr D Truong (Neurology Registrar dated 03/06/2019)’.
[55]    Ibid, n 47. Referring to Exhibit 1, T Documents, T24, page 212, ‘NDIS Access Request – Support Evidence Form’.
At the hearing, the Applicant was asked whether the Job Capacity Assessment Report correctly reflected what she and her sister had told the assessor. The Applicant replied:
“I said yes to everything, but I don’t know why I did. Because everything I do is difficult. Like, I can’t ‑ unless I’m wearing a shirt with no zips or buttons on it, I can’t put it on. I don’t ‑ I think I said yes to everything, because I didn’t want to be ‑ I didn’t want to be like this, but I am. I said I could do ‑ I could do everything, but I couldn’t. And I know that ‑ I don’t understand ‑ ‑ ‑ I’m ‑ like from this everything’s difficult. I told everyone I could do everything, because I didn’t want to be like this. So, I told everyone. I sugar‑coated everything. But everything I do is difficult. And I have to wear slip on pants because I can’t do the zips up. I can’t do buttons up. I can’t make me bed. I can’t put doona covers on. I can’t do none of that. But I’ve got somebody who can now. But it’s so hard, because I didn’t want anyone to know. But that’s my fault. I know it is. But when I ‑ my daughter moved out, she fell pregnant, and now she’s got a baby and I want so much to look after him for her, but I can’t, and it’s hard. Everything I do is hard. You don’t realise what it’s like, so everyone tells you, but that’s my fault, because I told everyone that I was fine, but I’m not”.[56]
[56] Hearing Transcript, page 12, Lines 4 – 32.
The Applicant provided the Tribunal with a report from her General Practitioner, Dr G Wright, dated 24 February 2021[57]. Relevant to upper limb function, Dr Wright’s report notes that the Applicant has “severe problems” with:
·Manual dexterity;
·Unable to use public transport;
·Unable to do housework; and
·Unable to complete official forms.
[57] Exhibit 3, ‘Photograph of Letter of Dr S Drake (dated 16 June 2021), and Briefing letter of Dr J Wright (dated 24 February 2021)’.
According to Dr Wright, the “level of impairment is significant and permanent”[58]. Dr Wright does not set out the basis for his opinion, which appears to be based upon reports made to him, by the Applicant. The report does not refer to the Qualification Period, and is dated well outside the Qualification Period, which had ended on 11 December 2019.
[58] Ibid.
In making a decision about the Applicant’s level of impairment, the Tribunal has had regard to the descriptors for 0 points and 5 points as set out in Table 2 – ‘Upper Limb Function’:

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)        The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1)        The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)        picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)        handling very small objects (e.g. coins);

(c)        doing up buttons;

(d)        reaching up or out to pick up objects.

In conducting merits review, the Tribunal must consider the evidence afresh and must in the process form an independent view. In this respect, it is not relevant that the AAT-1 Tribunal found that the Applicant suffered “intermittent wiring issues with her upper limbs causing her to sometimes drop things”[59].
[59] Exhibit 1, T Documents, T2, page 12, [27], ‘Decision of the Social Services & Child Support Division’.
This Tribunal, cognisant that it cannot rely on self-reporting alone, and noting that the applicant’s evidence from Dr Wright does not refer to the Qualification Period, finds that the best evidence before it consists of the Job Capacity Assessment Report[60]; the report of Occupational Therapist Ms van Wyk[61]; the report of Dr Truong[62]; and Dr Wright’s NDIS access request report[63].
[60]    Exhibit 1, T Documents, T14, pages 168 – 178, ‘Job Capacity Assessment Report’.
[61]    Exhibit 1, T Documents, T12, pages 152 – 159, ‘Letter from Ms K van Wyk (Occupational Therapist dated 17/10/2018)’.
[62]    Exhibit 1, T Documents, T12, page 160, Letter from Dr D Truong (Neurology Registrar dated 03/06/2019)’.
[63]    Exhibit 1, T Documents, T24, pages 212 – 218, ‘NDIS Access Request – Support Evidence Form’.
Collectively, this evidence indicates that the Applicant could - on her own evidence as reported to the health care practitioners - perform all tasks with the exception of buttons and bottle tops. However, her own evidence was that she could still undertake these tasks, with a bit more time. The system relies on Applicants reporting in an accurate, and timely manner their concerns in relation to functional capacity. The Tribunal understands that the Applicant is presently distressed, and also accepts that she may be having medical difficulties, as specified by Dr Wright. However, the Tribunal is required to have specific regard to the available evidence that relates to the Qualification Period.
On this basis, the Tribunal is not able to find that the Applicant has difficulty with most of the descriptors under “mild impairment” in the table. Therefore, the Tribunal finds that the Table 2 impairment rating is 0 points.
Table 7 rating – Brain function
Table 7 of the Determination, which deals with brain function, provides (relevantly) that:
·Table 7 is to be used where the person has a permanent condition resulting in a functional impairment relating to neurological or cognitive function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person's impairment.
·For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person's overall functional ability must be applied, taking into account the severity, duration and frequency.
The Respondent contends that the Applicant’s traumatic brain injury causes nil impairment for the purposes of Table 7 of the Impairment Tables, and therefore attracts an impairment rating of 0 points under Table 7[64].
[64] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 8 to 9, [43] – [45].
In its Statement of Facts, Issues and Contentions, the Respondent outlined the evidence it relies on in relation to the Table 7 assessment. That evidence consists of the following:[65]
[65] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 8 - 9, [43].
·The Job Capacity Assessment Report, which outlines the information reported to the assessor by the Applicant and her sister:[66]
[66] Referring to Exhibit 1, T Documents, T14, page 170, ‘Job Capacity Assessment report’.
oHad a good memory;
oCould hold a conversation, and could watch television and tell someone details of the plot afterwards;
oHad fine problem solving and decision making skills;
oOkay with planning and good with organising what she needed from shops;
oHas no difficulty with talking to people;
oHas some difficulty filing out complication forms;
oDoesn’t get lost when out and about;
oConsider she has good self-awareness; and
·Post assessment findings by occupational therapist Ms K van Wyk after conducting an occupational therapy driving assessment – Applicant ‘demonstrated the ability to comprehend verbal and written information and demonstrated sound ability to apply herself to the tasks requested. Ms Trzcinski demonstrated appropriate new learning ability to the items presented and demonstrated the ability to maintain and sustain attention and concentration for the duration of the assessment period’.[67]
[67] Exhibit 1, T Documents, T12, page 155, ‘Letter from Ms K van Wyk (Occupational Therapist dated 17/10/2018)’.
In relation to brain function, the 24 February 2021 letter from the Applicant’s General Practitioner, Dr Wright, notes that the applicant has “severe problems” with cognition and memory[68]. However, as discussed above, Dr Wright does not set out the basis for his opinion, nor does Dr Wright refer to the Qualification Period. The 24 February 2021 report, which appears to be based on self-reporting by the Applicant, is also dated well outside the Qualification Period, which ended on 11 December 2019.
[68] Exhibit 3, ‘Photograph of Letter of Dr S Drake (dated 16 June 2021), and Briefing letter of Dr J Wright (dated 24 February 2021)’.
In making a decision about the Applicant’s level of impairment, the Tribunal has had regard to the descriptors for 0 points and 5 points as set out in Table 7 – ‘Brain Function’.

Points

Descriptors

0

There is no functional impact resulting from a neurological or cognitive condition.

(1)        The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self-awareness or behavioural regulation.

5

There is a mild functional impact resulting from a neurological or cognitive condition.

(1)        The person is able to complete most day-to-day activities without assistance and has mild difficulties in at least one of the following:

(a)        memory;

Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.

(b)        attention and concentration;

Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.

(c)        problem solving;

Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2: The person shows a lack of awareness of problems in some situations.

(d)        planning;

Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).

(e)        decision making;

Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.

(f)         comprehension.

Example: The person has some difficulty in understanding complex instructions involving multiple steps.

The evidence before the Tribunal, other than the Applicant’s self-reporting at the hearing and Dr Wright’s evidence based on self-reporting well outside the qualification period, indicates that the Applicant is able to complete most day-to-day activities.
The report of Occupational Therapist; Ms van Wyk, which was based upon a driving assessment, concluded that the Applicant had sound ability, and demonstrated new learning ability, as well as the ability to pay attention and concentrate[69]. There are no areas where the Tribunal considers that the evidence supports a finding that the Applicant has ‘mild’ difficulties with at least one area contained in the descriptors for mild impairment, under Table 7.
[69] Exhibit 1, To Documents, T24, paged 224, ‘Letter from K van Wyk (Occupational Therapist) (dated 17/10/2018)’.
On this basis, the Tribunal is not able to find that the Applicant has difficulty with most of the descriptors under “mild impairment” in the Table. Therefore, the Tribunal finds that the Table 7 impairment rating is 0 points.
Table 12 rating – Visual function
Table 12 of the Determination, which deals with visual function, provides (relevantly) that:
·Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Table 12 should be applied with the person using any visual aids the person usually uses (e.g. spectacles or contact lenses).
The Respondent contends that the Applicant’s traumatic brain injury causes ‘mild’ impairment for the purposes of Table 12 of the Impairment Tables, and therefore attracts an impairment rating of 5 points under Table 12’.[70]
[70] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 9, [46].
In its Statement of Facts, Issues and Contentions, the Respondent outlined the evidence it relies on in relation to the Table 12 assessment. That evidence consists of the following:[71]
[71] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 8 - 9, [43].
·The Job Capacity Assessment Report, which outlines the information reported to the assessor by the Applicant and her sister:[72]
oHad difficulty with peripheral vision generally;
oWas able to watch TV with no difficulty and could see the Job Capacity Assessor clearly;
oWas okay with going to the post office and paying bills;
oWas okay with catching taxi home independently;
oWas okay with booking the community bus and going out on her own to familiar places; and
oWas able to negotiate stairs but needed to be mindful about where she puts her feet due to some vision and depth perception difficulties; and
·Report of neurology registrar Dr Truong on 2 May 2019 – noting that Applicant had been referred ‘to neuro-ophthalmology given her issues with depth perception’. Further, Dr Truong records that the Applicant and ‘her sister feel that she is managing well at home and that her visual impairment does not stop her from living an independent active lifestyle, apart from her driving restriction’;[73] and further that upon examination, the Applicant ‘had no obvious visual field deficits on confrontation testing and she had normal extraocular movements’.
[72] Ibid, n 58, T14, page 170.
[73] Ibid, n 55, T12, page 160.
In relation to visual function, the 24 February 2021 letter from the Applicant’s General Practitioner, Dr Wright, notes that the applicant has “severe problems” with visual perception[74].
[74] Ibid, n 68.
When making a decision about the Applicant’s level of impairment, the Tribunal has had regard to the descriptors for 0 points and 5 points as set out in Table 12 – Visual Function.

Points

Descriptors

0

There is no functional impact on activities involving visual function.

(1)        The person has no difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn and all of the following apply:

(a)        the person has no difficulties seeing the print in a newspaper or magazine;

(b)        the person has no difficulties seeing road signs, street signs or bus numbers;

(c)        the person has a full field of vision, that is, they do not have any problems with peripheral vision (being aware of objects or movement to the sides, above or below, when looking straight ahead) and no patches or areas of lost vision;

(d)        the person can usually perform all day to day functions involving the eyes without discomfort (e.g. no watering of the eyes, difficulty opening the eyes, or difficulty moving the eyes) and is able to tolerate normal light levels.

5

There is a mild functional impact on activities involving visual function.

(1)        The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:

(a)        the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);

(b)        the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;

(c)        when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;

(d)        the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);

(e)        the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.

On the basis that the evidence before the Tribunal supports a finding that the Applicant has vision and depth perception difficulties, but could otherwise live an independent active lifestyle, the Tribunal finds that the appropriate impairment rating under Table 12 is 5 points. Although Dr Wright refers to the Applicant being unable to use public transport, as discussed above, this appears to be based on the Applicant’s own self-reporting, and is also well outside the Qualification Period.
The Applicant’s Adjustment Disorder
The Tribunal must consider the Applicant’s medical history, and the evidence given by her at the Tribunal hearing, in order to make a decision about whether her adjustment disorder was fully treated and stabilised.
The Respondent accepts that the Applicant’s chronic adjustment disorder with anxiety and depressive features was fully diagnosed during the Qualification Period, but asserts that it was not fully treated and stabilised[75].
[75] Exhibit 2, Respondent’s SFIC, pages 10 to 11, [49] – [59].
In support of its argument, the Respondent cites the 3 June 2019 report of Dr C Theresiana, wherein Dr Theresiana says that:
‘further treatment is needed to continue her progress’[76]; and
‘continuation of treatment is recommended to further support … (the Applicant)’.[77]
[76] Exhibit 1, T Documents, T12, pages 160-161, ‘Medical reports: Dr C Theresiana (Consultant Psychologist dated 03/06/2019 – 17/07/2019)’.
[77] Ibid, page 163.
Further, the Respondent refers to Dr Theresiana’s 17 July 2019 report, where she says that the Applicant:
‘attended 14 sessions of CBT and the Acceptance and Commitment Therapy’ and ‘reported that therapy has been helpful in processing and regulate her emotions and slowly came to an acceptance of her medical conditions’.[78]
[78] Ibid, n 63, page 165.
The Respondent asserts that this evidence supports a finding by the Tribunal that the Applicant’s mental health condition was receptive to further treatment. The Respondent also asserts that, as the reports from Dr Theresiana are prior to the Qualification Period

(11 September 2019 to 11 December 2019), that there is no evidence before the Tribunal indicating that the mental health condition was fully treated and stabilised during the Qualification Period.[79]
[79] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 10, [52].
The Tribunal acknowledges the 27 October 2020 report of Dr S Drake, Clinical Psychologist, which opines that the Applicant’s mental health condition was stable and stationary as at the date of the report.[80] How, and I believe that report is from October 2020. However,

27 October 2020 is approximately 11-months following the conclusion of the Qualification Period.
[80] Ibid, [53]. Referring to Exhibit 1, T Documents, T24, page 210, ‘Medical report: Dr S Drake (Clinical Psychologist).
A further letter dated 16 June 2021 from Dr Drake concludes that the Applicant is “suffering from a primary provisional diagnosis of 296.33 Major Depressive Disorder, Recurrent and Severe without Psychotic Features with a secondary and co morbid diagnosis of 300.02 Generalised Anxiety Disorder with a history of panic attacks (DSM5,2013)”.[81] As with

Dr Wright’s report dated 24 February 2021, diagnosing the Applicant with agoraphobia and depressed mood, there is no reference in Dr Drake’s report to the Qualification Period.[82]
[81] Exhibit 3, ‘Photograph of Letter of Dr S Drake (dated 16 June 2021), and Briefing letter of Dr J Wright (dated 24 February 2021)’.
[82] Ibid.
Accordingly, while the Tribunal understands that, whilst the Applicant is struggling and has experienced a traumatic event in her life, the Tribunal is unable to find that the mental health condition was fully treated and stabilised during the Qualification Period (Tribunal’s emphasis).
The Tribunal considers that adherence to the treatment recommended by Dr Theresiana could result in significant functional improvement of the Applicant’s mental health condition[83].
[83] Exhibit 1, T Documents, T12, pages 161 – 165 and T24, pages 208 – 209, ‘Letter form D Truong (Neurology Registrar) (dated 03/06/2019)’.
For this reason, the Tribunal finds that the Applicant’s mental health condition was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the mental health condition under the Impairment Tables.
CONCLUSION
The Tribunal appreciates that the relevance of the anchoring effect of the “Qualification Period” is not a factor that is always necessarily obvious to an Applicant who is simultaneously in the process of doing their very best to get on with life, in challenging circumstances. There is nothing precluding the Applicant from making a further application for DSP, based upon her current circumstances, in which case the assessment of her eligibility will be based on a different and more recent Qualification Period, depending on the date of lodgement of any future application by her.
DECISION
The Applicant’s claim fails because her impairments did not attract 20 or more points under the Impairment Tables, therefore, she did not qualify for DSP during the ‘Qualification Period’ as required under section 94(1)(b) of the Act.
The decision under review is affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

..............[SGD]..........................................................
Associate
Dated: 14 July 2022

Date(s) of hearing: 8 November 2021

Date final submissions received: 2 November 2021

Applicant:

Friend/ Advocate for the Applicant:

In Person

Mr Ross Butler

Solicitors for the Respondent:

Mr Andrew Summers
(Services Australia)

[2022] AATA 2262

14 July 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	8 November 2021
Date final submissions received:	2 November 2021
Applicant: Friend/ Advocate for the Applicant:	In Person Mr Ross Butler
Solicitors for the Respondent:	Mr Andrew Summers (Services Australia)