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

[2019] AATA 5296

Twining; Secretary, Department of Social Services and (Social services second review) [2019] AATA 5296 (11 December 2019)

Division:GENERAL DIVISION

File Number:           2017/5111

Re:Secretary, Department of Social Services  

APPLICANT

Elizabeth TwiningAnd  

RESPONDENT

DECISION

Tribunal: Damien Cremean, Senior Member

Date:11 December 2019

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Respondent did not satisfy the requirements of paragraph 94(1)(b) of the Social Security Act 1991 as at the date the claim was lodged.

.....[sgd]........................................................

Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – mental health conditions – migraines  whether fully diagnosed, treated and stabilised – whether impairment attracts rating of 20 points or more under the Impairment Tables – whether Respondent has a continuing inability to work – decision set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Damien Cremean, Senior Member

11 December 2019

1. The Respondent (Ms Elizabeth Twining) applied to Centrelink for disability support pension (‘DSP’) under the Social Security Act1991 (Cth) (‘the Act’) on 3 February 2016. Her application was rejected by the original decision-maker on 16 September 2016, because her impairments did not attract a total of 20 impairment points and she did not have a continuing inability to work.

2. Ms Twining was not therefore qualified for payment of DSP considering the terms of section 94 of the Act. She then sought an internal review of that decision on 5 October 2016 which was subsequently affirmed by a Centrelink authorised review officer (‘ARO’) on 16 January 2017.

3. Ms Twining then sought review of the ARO’s decision by the Social Services & Child Support Division (‘Tier 1’) of this Tribunal. Tier 1 made a decision in favour of Ms Twining on 25 July 2017, setting aside the ARO’s decision and remitting the matter to Centrelink for reconsideration with the Direction that she satisfies the provisions of paragraphs 94(1)(a), (b) and (c) of the Act. Centrelink is the service provider for the Department of Social Services.

4. The Applicant (the Secretary, Department of Social Services) now seeks review of the Tier 1 decision made on 25 July 2017.  

5. The Applicant submits that the Tier 1 decision should itself be set aside and that DSP is not payable to the Respondent. This is opposed by the Respondent who submits, in effect, that the Tier 1 decision is correct and that the decision to set aside the original decision should be affirmed.

6. The hearing in this matter took place over two separate days on 20 and 21 June 2019. The Applicant was represented by Mr Nacion of Sparke Helmore Lawyers. The Respondent was represented by Ms Dhanji of Counsel, instructed by Ms Chowdhry of Victoria Legal Aid. 

7. Prior to the hearing, on 14 June 2019, I declined an application for an adjournment made by the Applicant to enable the Secretary to obtain specialist neurological evidence. I did so for the reasons I gave on that occasion which were primarily that the Applicant’s application was very late in the piece and was contrary to the Tribunal’s objective as set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).

8. The Tribunal heard evidence from the following witnesses at the hearing:

   ·The Respondent, Ms Twining;

   ·Dr Anthony Cidoni, Consultant Psychiatrist (by telephone);

   ·Dr Anthony Michaelson, General Practitioner (by telephone); and

   ·Dr Gregor Schutz, Consultant Psychiatrist.

9. The Respondent attended the hearing on the first day with her husband but he was not called to give evidence. Neither she nor her husband attended the hearing on the second day as it was claimed the Respondent was unwell. At the hearing, the parties made oral closing submissions which were followed later by submissions in writing. I have found the submissions of both parties generally helpful.

   STATUTORY PROVISIONS

10. Section 94(1) of the Act governs disability support pension and provides:

    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…

11. The Impairment Tables (‘Tables’) mentioned in section 94(1)(b) refers to the Tables set out in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth).

12. Clause 6(3) of the Tables provides that, in applying the Tables, an impairment rating can only be assigned to an impairment if:

    (a) the person’s condition causing that impairment is permanent; and

    Note: For permanent see subsection 6(4).

    (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.

    Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

13. Clause 6(4) of the Tables provides that, for the purposes of clause 6(3)(a) of the Tables, a condition is permanent if:

    (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note: For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note: For stabilised see subsection 6(6).

    (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

14. For the purposes of clauses 6(4)(a) and (b) of the Tables, in determining whether a condition has been fully diagnosed and treated, clause 6(5) of the Tables states that the following factors are to be considered:

    (a) whether there is corroborating evidence of the condition; and

    (b) what treatment or rehabilitation has occurred in relation to the condition; and

    (c) whether treatment is continuing or is planned in the next 2 years.

15. For the purposes of clause 6(4)(c) of the Tables, in determining whether a condition has fully stabilised, clause 6(6) of the Tables provides that a condition is fully stabilised if:

    (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b) the person has not undertaken reasonable treatment for the condition and:

    (i)  significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)  there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    Note: For reasonable treatment see subsection 6(7).

16. Table 5 of the Tables, relating to mental health function, is the Table of relevance in this matter although mention was also made of Table 7 which relates to brain function. Table 5 sets out the degrees of functional impact brought about by loss of mental health function. The relevant rating in this matter is the 20 point rating which deals with severe functional impact due to a mental health condition.

    CONTENTIONS OF THE PARTIES

17. It is not in issue that the Respondent satisfies section 94(1)(a) of the Act in that she suffers from a physical, intellectual or psychiatric impairment, namely, a mental health condition. The Applicant accepts in its Statement of Facts, Issues and Contentions (‘ASFIC’) that the Respondent satisfieed [sic] paragraph 94(1)(a) of the Act at the date of the claim, as she suffers from impairments arising from a mental health condition and migraines.

18. In the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) it is said that the Tribunal can be satisfied on balance that Ms Twining has a psychiatric and physical impairment, and therefore satisfies the requirements of s 94(1)(a) of the [Act]… The conditions suffered by her are stated as anxiety, depression, chronic migraines, osteoarthritis of her right knee, bilateral pedal oedema, lumber lordosis and hyperhidrosis.

19. The, qualification period set by or under the Act is in this case the period between 3 February 2016 to 4 May 2016 (‘the qualification period’). The question for me to determine is whether the Respondent’s impairments attracted an impairment rating under the Tables, in particular under Table 5, of 20 points or more during the qualification period, and if so, whether she had a continuing inability to work.

20. I regard the requirements of section 94(1)(a), (b) and (c) as cumulative. If a person fails to meet one of them, then no entitlement to DSP can arise. The Respondent contends that she satisfies all such requirements. However, having regard to the evidence, the Applicant denies this is so.

    ANALYSIS

    Section 94(1)(a)

21. As stated above, the parties agree, and the Tribunal accepts and finds, that the Respondent satisfies section 94(1)(a) of the Act, namely that she suffers impairment(s) arising from her conditions which include; anxiety, depression, migraines, osteoarthritis of the right knee, bilateral pedal oedema, lumbar lordosis and hyperhidrosis.

    Section 94(1)(b)

22. The primary issue in this matter is whether the Respondent satisfies section 94(1)(b) of the Act. That is, whether it should be found that she has an impairment rating of 20 points or more under the Tables. I am required to determine whether, on the evidence, I am satisfied that the Respondent’s conditions are permanent, that is whether they have been fully diagnosed, treated and stabilised and are likely to persist for more than two years.

23. If the Respondent’s conditions are found to be permanent, it is then a matter of considering the appropriate impairment rating to be given, particularly under Table 5. Subsequently, if an impairment rating is assigned, I must then consider whether the Respondent satisfies section 94(1)(c) of the Act.

    Evidence

    Evidence of Ms Twining

24. There was no witness statement prepared on behalf of the Respondent, her evidence is what she said in the witness box. The Tribunal would have been assisted by such a statement having been prepared. Ms Twining gave sworn evidence which was quite hard to follow at times, due to some vagueness or confusion and reticence in answering some questions.

25. She gave evidence that she is a married woman and mother of six children ranging in ages from 14 to 28. She lives at home in Macleod with her husband. Her only source of income has been Centrelink benefits. She last worked in about 1993 for a television rental company.  

26. She said her treating GP is Dr Anthony Michaelson and she first went to see him in maybe 2008 or 2009; initially for migraines she was suffering from but also for a sore knee and about my mental health issues. She said she considered him rather gruff… very short and to the point.

27. She said she recalled her first migraine at about age 15 or 16 but she said she has never seen a specialist about her migraine problem and, despite trying a whole heap of different medications… nothing has worked. She was referred to a Dr Peppard, a neurologist, for Botox treatment but could not afford to see him—as she was advised she would have to see him every three months. She was told he was the only one that did it. She recalled she was still affected by migraines at the time of her claim for DSP at an average of about two a week. During these episodes, which last about two days, she said she would go to bed and turn the lights off. She said she cannot tolerate light or noise on these occasions. When she has a migraine she says I can’t do anything. She added: even to take myself to the bathroom can be a problem—meaning more how I get to the bathroom.

28. The Respondent said she recalls speaking to Dr Michaelson about depression in about 2009 or 2010. She recalls that he diagnosed her with depression in consultation with his mental health nurse. She spent some time with the mental health nurse going through a whole heap of tables and other things for her depression and anxiety. She had seen Dr MacLeod, who she thinks was a clinical psychologist, about both conditions. She indicated she was not sure that her sessions with him were of benefit but they may probably have done her a little good. She thought she had last seen him in 2011 or maybe earlier.

29. Ms Twining said she was always discussing depression/anxiety with Dr Michaelson but could not recall or did not know whether he had diagnosed her with anxiety or social phobia. She stated that he never discussed depression separately to anxiety with her—not with me anyway she said. At the time of her claim for DSP she said she was affected by it most days.

30. The Respondent said she had seen Dr Michaelson also about her knee and took glucosamine each day for it. She could not recall seeing any other doctors or nurses about her knee pain but she thought that once she had had some x-rays taken but could not remember offhand. She thought the x-rays were taken at a place in Bundoora. She said that she was still affected by knee pain every day at the time she claimed for DSP.

31. As regards the Respondent’s foot oedema, she knew the first time she suffered from that was 20 February 2005 because it was her son’s fifth birthday. She had seen Dr Michaelson about this but could not remember specifically when. The condition is one she said that has a mind of its own. She said it normally just comes up and down of its own accord sometimes lasting a week, sometimes a day only, and comes up probably once a week but maybe once a fortnight.

32. Asked about whether her knee and foot conditions made it difficult to walk on different terrains she said [y]es and no, that is I can but not for very far. She said she walks at only one speed. She couldn’t specifically recall speaking to other doctors or nurses about her foot oedema. However, she did remember seeing a specialist about it. She could not remember who it was but that he was a cardiologist.

33. In relation to how depression/anxiety affected her, the Respondent said she was okay with day-to-day living and that this was so at the time she made her DSP claim. The depression/anxiety did not affect her socially or recreationally because: I don’t do that sort of thing. I don’t go out; I don’t have friends, at home most of the time. When asked why she did not go out she said: I just—I’ve always been like that. She said she was always a shy kid but that this had got worse. She said coming to the Tribunal was horrible and that was why her husband was with her.

34. Asked some further questions about social and recreational activities, the Respondent said: [w]e’ve got the school things with the kids, but she said I’ll sort of hide in the back corner and pretend I’m not there. At such functions she said she does not talk to anyone or interact with anyone. She said she finds the darkest corner and sit[s] there. As regards travel, she said the only travelling she does is to the doctor’s maybe. Asked if she took public transport she said not really. She stated this was the case at the time when she made her DSP claim. She said she did not leave home much.

35. The Respondent was asked about her powers of concentration. She was asked if she could concentrate for periods of time and her answer was sometimes, sometimes not. Asked how long she could concentrate for she said: I don’t know, it depends on the situation, yes. Her concentration, she said, was about the same now as it was when she claimed DSP. Her concentration is affected, she said, by her depression/anxiety: I’m a bit all over the place, you know, I don’t really concentrate on things. She said: even simple things like watching telly I lose track of things.

36. The Respondent said she does make sure her children do their homework. However, she finds her depression/anxiety affects her decision‑making and decisions would be made by her husband when she’s not feeling well. She said she did not cope with stress, and she said, in terms of it affecting her working or going back to work, I don’t know.

37. In cross examination, the Respondent agreed that she had seen Dr MacLeod about an issue with her young son but that after seeing him for about 18 months, her depression/anxiety had improved to some respect in that she then felt even. She undertook some CAE studies for six months or so and travelled there by train but she said I wasn’t coping, so I stopped. However, between 2011 and 2016 she agreed she had had no subsequent counselling. She admitted she had seen Ms Karen McAlear and when it was put to her that this was recorded in Dr Cidoni’s report as therapy for two years ending about six months before, being between 2016 and 2018, she said: I could be wrong with the dates. She repeated she had definitely seen her but that she was wearing different sort of hats. That is, sometimes she was acting as the mental health nurse, and also sometimes she was acting as the clinical psychologist. 

38. It was put to Ms Twining that she told Tier 1 of the Tribunal a number of things about her powers of concentration. Namely, that she relied on her husband to ensure she ate and showered each day and that she struggled talking with people. It was then put to her that these matters did not appear in Dr Michaelson’s notes to which she replied: I can’t control what Dr Michaelson wrote on his notes. She answered that she had now changed GPs because Dr Michaelson quite often scolds me if I ask him more than one thing. However, later she said: like he wasn’t nasty, he was very polite, but he did scold me... She said she now goes to the Summerhill Medical Clinic, consulting Dr Sood, but that: I don’t know exactly how many times I’ve seen her and that: there’s a number of doctors at that clinic that I’ve seen.

39. At one point in cross examination Ms Twining said I would’ve told Dr Michaelson of her low mood and lack of motivation but that I don’t remember what he said in response to that. When it was pointed out to her that the records did not indicate that she had seen Ms McAlear from 2011 to 2016, she was asked had she in fact seen her and replied: I don’t remember. Dates aren’t my strong point I‘m sorry.

40. As to having counselling, Ms Twining said: counselling’s awful. When asked why she said this, she said I don’t know, I just—I freeze up and I—I can’t talk about things. When asked, she said felt embarrassed and shy—humiliated.

41. In answer to further questions, Ms Twining said that her migraines and her depression exacerbate each other. However, she said when she lodged her DSP claim: it was what I’d call even then.  

42. Ms Twining mentioned the hip condition of her son as a stressor and she said her husband, who has himself been on DSP for possibly five years, had been unwell. She mentioned, amongst other things, his alcoholism.

43. As to interests or hobbies, Ms Twining indicated she does some knitting and occasional painting and reads books. She said that: sometimes I am able to watch television shows, but that at other times I can [get] halfway through a show and forget what I’m watching.

44. Ms Twining agreed she had said to a job capacity assessor that: my migraines are what affect my day to day more than the depression and anxiety. She described them as horrible and later as really horrible. She agreed she had told Dr Schutz that she is able to enjoy things, which I took to mean doing things, and she agreed that, aside for a few days here and there, her mood has been entirely normal: for me, yes.

1. In re-examination, Ms Twining agreed she had never asked Dr Michaelson to see a specific specialist for a specific treatment but she explained: I don’t know who the specialists are. That’s his job to send me to the right person. When asked about a note by Dr Schutz that she felt normal, she said she meant not curled up in the corner, able to get out of bed. She then added that: depression and the anxiety for me is not being able to, and not being able to get out of bed.

   Evidence of Dr Cidoni

2. Dr Anthony Cidoni, in affirmed evidence, gave his occupation as forensic psychiatrist. He confirmed as true and correct the contents of his report dated 15 November 2018.

3. He agreed that in his report he had diagnosed Ms Twining as suffering from a major depressive disorder which is a condition, he said, characterised by low mood associated with other symptoms. In Ms Twining’s case, he said she had the stipulated four symptoms of: lack of motivation, poor concentration, low energy and low self-esteem. He said he considered her symptoms had been present since 2008. He agreed that it is possible for a GP to diagnose depression and that most depression and anxiety would be managed by GPs. Indeed he said: a general practitioner is perfectly able to prescribe medications for depression without any other opinion or authorisation.

4. Dr Cidoni also said that in addition to major depression Ms Twining also suffers social anxiety. He said social anxiety is the same as social phobia. That is, a condition primarily driven by how one might present oneself to others: that you’re going to behave in a way that’s going to draw attention to yourself. He said social phobia is a type of anxiety and that, in his opinion, it is possible for a GP to diagnose anxiety and/or social phobia. Depression and anxiety can, and frequently do, both co-occur.

5. Dr Cidoni said he did not regard Ms Twining’s depression, anxiety or social phobia as in remission. As regards her migraines, he said those come under neurological disorder rather than under mental health conditions for the purposes of the Tables. He said migraine is obviously a very difficult condition but that there can be quite a strong interaction with psychological factors and psychological stress. But for the purpose of his assessment, that is her mental health functioning, he said: migraine isn’t part of that, but he added: I’m not a neurologist.

6. In relation to the Tables, Dr Cidoni said he considered that Ms Twining should be rated at 20 points under Table 5. That is, that she would meet the threshold for an overall severe rating.

7. In cross examination, Dr Cidoni agreed that Ms Twining was showing signs consistent with social anxiety disorder which, he agreed, is a separate condition from major depressive disorder. However, he said at the same time that: it can be quite difficult to be able to disentangle them from each other. He agreed that she suffers from both conditions: both conditions are present, both are enduring, she has had treatment for both of the conditions, and they’re causing severe impairment in the majority of the domains in table 5.

8. Dr Cidoni was asked whether as at 3 February 2016, any further treatment [given to Ms Twining] was likely to result in significant functional improvement. He said he believed that as of the qualification period [her] conditions were stabilised and were going to be enduring, have an enduring effect on her functioning. No further treatments he said were likely to cause a significant enough improvement for her to be able to work.

   Evidence of Dr Schutz

9. Dr Schutz gave affirmed evidence that he is a consultant psychiatrist and he confirmed that the contents of his report dated 20 December 2018 are true and correct.

10. Dr Schutz said in preparing his report he had concerns about the history provided in terms of its reliability. He said he noted that Ms Twining was significantly inconsistent and provided differing accounts, in differing contexts. He also said he was concerned about possible secondary… issues in terms of obtaining benefits and entrenchment in the sick role. In terms of mental state examination he said: other than her appearing mildly anxious, there were no substantial abnormalities. Lastly he said what was lacking was being under the regular care of a psychologist since 2010. At that time her psychologist had reported significant gains and her GP records indicated no depressive symptoms between 2011 and 2016 and this would not appear consistent with her having a severe or significant depression during that time period. He said also that: it was unclear whether Ms McAlear, the psychologist, was acting as a treating psychologist. He added that he did not regard Ms Twining’s self-report of symptoms as reliable.

11. In that regard, Dr Schutz said when he saw Ms Twining she specifically stated to me that she did not have ongoing symptoms of depression and I conducted a full systems inquiry based on the DSM criteria of depression.

12. In conclusion, he said, in relation to depression: there was insufficient evidence that [Ms Twining] had any ongoing major depression subsequent to 2011 or, at the time she applied for the claim or, on the available evidence, within the three months after that. Therefore, he said: there is insufficient evidence to justify [that] as a[n] ongoing diagnosis.   However, while Ms Twining did provide a description of symptoms suggestive of social anxiety disorder, social anxiety disorder is a distinct condition from major depression. He said: they can co-exist, but they are distinct. Moreover, he said: anxiety is not a psychiatric diagnosis, it is a general term.

13. Dr Schutz said he strongly disagreed with the opinion given by Dr Cidoni. In his view he said: there is a reasonable probability that [Ms Twining] would have had a clinically significant response with an improvement in functioning if offered evidence based psychological treatment for social anxiety disorder. Such treatment would have been available to her during the qualification period. He indicated though that he could not comment on her migraines, family stressors or work capacity.

14. Asked whether there was any causal connection between Ms Twining’s history of migraine and alleged depression, Dr Schutz said: in this particular case, there is no evidence of such a connection.

15. As regards an impairment rating under the Tables, Dr Schutz said at the qualification period he would give Ms Twining a zero. It was his view that she would not have been prevented from work within two years of the qualification period.

16. In cross examination Dr Schutz said in asking Ms Twining about her progress from 2011 to 2016, he noted she described her mental health as even (which I took to mean normal) with no depressive symptoms, although with anxiety. But he reported that Ms Twining said she saw her depression and her anxiety as separate phenomena.

17. Dr Schutz acknowledged that Ms Twining had been prescribed Lexapro which is an antidepressant but denied that prescribing it indicates that she had ongoing depressive symptoms.

    Evidence of Dr Michaelson

18. Dr Michaelson, in affirmed evidence, agreed he was Ms Twining’s GP over some years. She had a few things going on, he said. He mentioned depression, anxiety, back pain, sweating and migraines. He repeated migraines.

19. He agreed he had diagnosed Ms Twining with depression and anxiety and said he considered it possible for a GP to do so but that he did get his mental health nurse who became a psychologist to see her. He said he considered that depression and anxiety often go hand in hand. He said anxiety is a symptom of depression.

20. In response to the question of whether Ms Twining still suffered depression and anxiety at the time of her DSP application in 2016, Dr Michaelson responded: I’d say she still suffered from it.

21. Dr Michaelson agreed that he had also treated Ms Twining for migraines with several medications. He agreed also that he had referred her to a neurologist, Dr Peppard, but arrangements fell by the wayside due to cost which he said was a pity.

22. He agreed he had also treated Ms Twining for knee pain by use of anti-inflammatories and he also said he had dealt with her condition of oedema by referring her to a cardiologist but it wasn’t a serious thing.

23. Dr Michaelson said Ms Twining was definitely suffering depression and anxiety at the time of her DSP application but that he had never actually seen her with a bad migraine. However, he agreed that at that time she was suffering from migraines, knee pain and [a]bsolutely from oedema, as well as from sweating.

24. In cross examination, Dr Michaelson agreed he had referred the Respondent to a number of specialists including weight loss specialists which he said she didn’t go to. He commented on her motivation regarding migraines in only coming to see him every two months whereas others might see him every day.

25. Dr Michaelson said he could not remember any occasion of telling her off or scolding her but he admitted he could have been cross with her for not going to a weight loss clinic or something like that.

26. Dr Michaelson said it was hard for him to sort of generalise about Ms Twining because he only saw her briefly, you know, every couple of months.

    CONSIDERATION

27. In reaching a decision in this matter I have taken into account the evidence of each of the witnesses summarised above.

28. I have also taken into account:

    ·the materials in the T-documents;

    ·the various exhibits tendered at the hearing;

    ·the Statement of Facts, Issues and Contentions lodged by each party; and

    ·the submissions of the parties provided both orally at the conclusion of the hearing and in writing after the hearing.

29. As stated above, for the purposes of section 94(1)(b) of the Act, an impairment rating can only be assigned where, during the qualification period, the condition causing the impairment is permanent and is more likely than not to persist for more than two years.

30. In this regard, I took the opinion of Dr Schutz to be that Ms Twining is suffering anxiety rather than ongoing or continuing depression. My view is that there is value in seeing and hearing from an expert in person.  That does not mean, however, that an expert’s opinion must be accepted merely because it is given in person

31. In this matter, as it happens, I agree with both Drs Cidoni and Michaelson as regards the Respondent’s depression and also with them, and Dr Schutz, as regards her anxiety. I am quite satisfied that a GP is capable of diagnosing depression and anxiety as well as migraines and a myriad other conditions.

32. I consider that upon the evidence given by Ms Twining, it is reasonable for me to find that over a long period of time, well before the qualification period started, she was suffering the conditions in question, namely depression, anxiety and migraines. In respect of migraines I accept her evidence that her condition goes back to her young adult years.

33. I agree also with Drs Cidoni and Michaelson and find that Ms Twining was suffering from depression, anxiety and migraines during the qualification period.

34. However, this last point needs to be qualified because, before I can be satisfied that Ms Twining qualifies for impairment points under the Tables, there are certain threshold and other matters which need to be met.

35. The Respondent submits that anxiety is a symptom of depression and this also was the evidence of Dr Michaelson. However, Dr Michaelson is not a trained psychiatrist and it was the opinion of Dr Cidoni, who is a trained psychiatrist, that in addition to suffering major depression Ms Twining has also been suffering social anxiety. I regard social anxiety I should say as the same as social phobia for present purposes.

36. It is plain to me that Dr Cidoni regarded depression and anxiety as two separate conditions although he said they can be quite difficult to disentangle from one another.

37. Dr Schutz in evidence also said they are separate conditions although they can co-exist.  He even went so far to say that anxiety is not a psychiatric diagnosis but is merely a general term.

38. In my view, the balance of expert opinion, including expert opinion called on behalf of Ms Twining, is to the effect that the two conditions are separate and therefore I do not accept the submission that one is only a symptom of the other. In fact, accepting what Dr Schutz reported her as saying, it was even Ms Twining’s view that her depression and anxiety are separate.

39. That being the case, I do not regard the Respondent’s symptoms of anxiety as symptoms of her depression. Therein I consider is a failing in the presentation of the case for the Respondent.

40. The Respondent submitted that Table 5 of the Tables was satisfied based in particular on the evidence of Dr Cidoni. But that was so, it is clear, by reference to a range of factors all or many of which, in my view, are indicative of anxiety not depression, or are indicative of both but not each separately.  

41. I appreciate that Dr Cidoni said that both of Ms Twining’s conditions are present and enduring  and that together they are causing severe impairment in the majority of domains in table 5, but this does not assist because of his other evidence that the two conditions are separate.

42. So, having maintained the two conditions are separate, Dr Cidoni then goes on to treat them together, as if one, for the purpose of Table 5. This means he has only assessed them together but not separately. In turn, this means, relying upon the opinion he himself gave, I find I cannot rely on his evidence, as regards impairment rating points, in respect of each condition separately.

43. I consider this is significant. If I exclude his assessment under Table 5, the only other evidence in the matter in favour of the Respondent could be that given by Dr Michaelson but I do not regard his evidence as directly addressing the Tables. Moreover, I consider he was quite casual in some of his observations about the Respondent’s various health conditions. Even the accuracy of some of his observations in that regard, I must doubt. He said, for instance, it is hard for him to sort of generalise about her health because he only saw her briefly every two months. This is not a strong basis for the Tribunal to make findings.

44. This means I do not have separate assessment given under Table 5 for depression or for anxiety but only for both combined yet the evidence from Dr Cidoni and Dr Schutz is that they are separate conditions and were and are even regarded that way by Ms Twining herself.

45. As regards her anxiety, I agree with the Applicant that no basis exists for me to find that it is permanent under cl 6(3)(a) of the Tables as detailed in cl 6(4), that it is fully diagnosed, treated and stabilised as required. Although, Ms Twining is taking Lexapro which deals with depression, but it can be taken for anxiety. Furthermore, it is apparent on the evidence that there are yet a number of things which could be done by Ms Twining to relieve or reduce her anxiety and some of these were canvassed by Dr Schutz in his evidence. I accept his evidence on that point which was convincing and telling.

46. If however, I should accept that Ms Twining’s depression and anxiety can be considered together under Table 5, I could not be satisfied therefore that a component of her single condition was fully diagnosed, treated and stabilised. That means she fails to achieve a threshold issue in the application of the Tables even on the most generous view of Dr Cidoni’s evidence.

47. Moreover, on the evidence I cannot be satisfied that Ms Twining would satisfy a majority, if any, of the descriptors set out in Table 5. She even gave evidence, which I accept, that she was okay with day-to-day living at the time of her DSP application as regards her depression and anxiety. During the qualification period, I consider that it has not been demonstrated sufficiently that she had severe difficulties with self-care, independent living, interpersonal relationships or with concentration and task completion. I would agree though that in these areas her conditions or one of them could or would have made life a little more difficult for her, but that is all.

48. As regards her migraines which I accept are debilitating, I could not be satisfied that she could qualify under Table 7 of the Tables because I find her condition is not fully diagnosed, treated or stabilised. I refer to the prospect of having neurological assessment. The opportunity of Botox assistance from Dr Peppard was not taken up due, it seems, to the costs involved and I note Dr Michaelson’s comment that this was a pity.

49. Neither Dr Cidoni nor Dr Schutz was prepared to express any expert opinion on Ms Twining’s migraines.

50. The other conditions raised by the Respondent including a knee issue, oedema and hyperhidrosis did not figure prominently in the evidence and seem to be under control.

51. Because the Respondent has not attained a 20 impairment point rating under the Tables, she does not satisfy section 94(1)(b) of the Act. I accept and find that she has not met the program of support active participation requirement prescribed by section 94(2)(aa) of the Act.

52. It is unnecessary to consider whether Ms Twining satisfies section 94(1)(c) as the question does not arise in the circumstances. But I should indicate my view that after the qualification period and for a period of two years she probably was capable of working but was possibly disinclined to do so for one reason or another. In any event, Ms Twining indicated in evidence that it was her migraines rather than her depression and anxiety which affected her day-to-day living.

    CONCLUSION

53. For the reasons I have given I am satisfied that the decision under review cannot stand and must be set aside.

54. Accordingly, the decision of Tier 1 of this Tribunal is set aside meaning that the original decision that Ms Twining was not qualified for DSP must stand as she does not satisfy the requirements of s 94(1)(b) of the Act.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for the written reasons herein of Damien Cremean, Senior Member.

.....[sgd]................................................

Associate

Dated: 11 December 2019

Dates of hearing:	20-21 June 2019
Date final submission received:	20 August 2019
Solicitor for the Applicant:	Mr Pietro Nacion Sparke Helmore Lawyers
Solicitor for the Respondent:	Ms Rehana Chowdhry Victoria Legal Aid
Counsel for the Respondent:	Ms Sheeana Dhanji