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

Van Duren and Secretary, Department of Social Services (Social services second review) [2024] AATA 3156 (30 August 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9475
Re:Concepcion Susana Van Duren
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member

Date: 30 August 2024
Place:Melbourne

The Tribunal affirms the reviewable decision pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.................................[sgd].......................................
R Cameron, Senior Member.
Catchwords
SOCIAL SECURITY – Disability Support Pension – determination that the applicant was not eligible for pension – whether the applicant had a medical impairment rating of at least (20) points under the Impairment Tables – whether the applicant had a continuing inability to work – applicant had medical conditions with (10) impairment points under the Impairment Tables – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Secondary Materials
Department of Social Services, Social Security Guide (Guides to Social Policy Law, version 1.319, 12 August 2024)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
R Cameron, Senior Member.
INTRODUCTION

The applicant seeks review of a decision made by a member of the Social Services & Child Support Division of this Tribunal on 14 November 2023 which upheld a decision made previously by an authorised review officer ('ARO’) of Services Australia which found that she did not meet the eligibility criteria entitling her to receive a Disability Support Pension (‘DSP’). During the applicable qualifying period from 28 February 2023 to 29 May 2023.
At the hearing of this application there was both oral evidence given by the applicant on affirmation and documentary evidence. The applicant was cross examined. The documentary evidence included the “T” documents and a Joint Tribunal Book prepared by the parties which comprised of documents extracted from the T documents and various further documents provided by the applicant to the Tribunal and the respondent in June and July of this year.
BACKGROUND
The applicant is presently 61 years of age. She resides on her own in an apartment in Airport West. She has six children. Unfortunately, her contact with her children is confined to one daughter. She presented as a pleasant lady, who has had to endure several personal challenges over recent years.
Unfortunately, on 8 September 2020 whilst attending the premises of VicRoads in Broadmeadows, whilst standing on uneven pavement, she lost balance fell sideways onto a right hip, shoulder and right ankle. She heard a distinct noise and experienced immediate pain in the ankle. Subsequent medical diagnosis established that she had sustained a right ankle fracture, amongst other things. On the material before the Tribunal, it is apparent that the fracture has not properly healed. She has been unable to work for some time.
The applicant made a claim for the DSP on 28 February 2023. In the online claim form completed by the applicant on that day she identified three separate disabilities and medical conditions. Her description of those disabilities and conditions were described as, ‘chronic’, ‘permanent’ and ‘permanent injuries’.
As is common with DSP claims, a “Disability Support Pension Medical Eligibility Assessment Recommendation” was completed on 9 March 2023. The process adopted was to conduct an assessment of the applicant’s DSP eligibility and make a recommendation. The assessment was undertaken by a psychologist. When undertaking such an assessment the assessor considered evidence furnished by the applicant which consisted of a Job Capacity Assessment dated 20 July 2022, a letter from the applicant’s treating physiotherapist Ms Rizk dated 14 February 2023, together with six medical certificates completed by her treating general practitioner Dr Panos made between 11 July 2022 and 21 February 2023.
Three conditions were assessed. They were lower limb deficiencies which were found to be permanent, diabetes-non-insulin-dependent, which was also found to be permanent and depression, which was found to be temporary. For reasons articulated in the Eligibility Assessment Recommendation, the assessor concluded that the application should be rejected based on a current and valid assessment. The “Recommendation rationale” which explained why the assessor made the recommendation she did are contained in that document and need not be reproduced for the purposes of these reasons.
The applicant was provided with a letter dated 31 July 2023 formally advising that her claim for the DSP had been rejected. She sought a review of this decision.
The review was conducted by an ARO, as noted above. The ARO affirmed the decision to reject the applicant’s claim for a DSP. The key findings made by the ARO which led to the decision to reject her claim for a DSP were as follows:
(a)Her conditions a non-healing fractured fibula (right ankle) and diabetes mellitus (type II) are permanent;
(b)Her condition of depression was not fully diagnosed, treated and stabilised;
(c)Her condition of vertigo and chronic cholecystitis are temporary;
(d)Her impairment rating was 10 points; and
(e)Her claim was rejected because she did not have an impairment rating of 20 points.
As previously noted, a Member of the Social Services & Child Support Division of this Tribunal on 14 November 2023 affirmed the decision of the ARO made on 26 September 2023. It is from this decision that the applicant seeks review by the General Division of this Tribunal.
THE ISSUES FOR DETERMINATION BY THE TRIBUNAL
The issues for determination by the Tribunal in this application are not controversial, and invariably arise in these applications, as follows:
(a)Whether, as at 28 February 2023, the date of her claim for the DSP, (or within 13 weeks of that date, “the qualifying period”), the applicant had physical, intellectual or psychiatric impairments;[1] and
(b)If so, whether the applicant’s impairments attracted 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 (‘2011 Impairment Tables’) or Social Security (Tables for the Assessment of Work -related Impairment for Disability Support Pension) Determination 2023 (‘2023 Impairment Tables’); and
(c)If so, whether the applicant had a continuing inability to work.
[1] Social Security (Administration) Act 1999 (Cth) sch 2 s 4(1).
It is appropriate to observe at this stage of these reasons that the 2023 Impairment Tables commenced operation, and had effect from, 1 April 2023.
HOW TO QUALIFY FOR THE DSP
Section 94(1) of the Social Security Act 1991 (Cth) (‘the Act’) specifies the requirements that a person must satisfy to qualify for the DSP. Those requirements are:
(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.
As it is self-evident from an examination of s 94(1) of the Act, those requirements are conjunctive and each one must be satisfied by an applicant in order to qualify for the DSP.
One other matter that should be mentioned relates to the qualifying period. The Social Security (Administration) Act 1999 - Schedule 2 - Rules for working out start day, Clause 4, prescribes that a person’s qualification for the DSP is to be determined during the period of 13 weeks after the day on which the claim for such a benefit is made. In this case, as noted above, it is the 13-week period between 28 February 2023 to 30 May 2023 inclusive.[2]
[2] This timespan is hereinafter referred to as the ‘qualification period’.
THE IMPAIRMENT TABLES
Some brief comments should be made concerning the application of the impairment tables. It is not necessary for the purposes of these reasons to reproduce much of them in detail. However, they are referred to in their entirety, for their full force and effect.
The respondent submitted, and the Tribunal agrees, that it is necessary, in order to determine the issues requiring resolution in this application for both the 2011 Impairment Tables and 2023 Impairment Tables to be applied in determining whether the applicant qualifies for the DSP. In reaching this conclusion, reference was made, amongst other things to the provisions of Instruction 3.6.3 of the Social Security Guide. That section of the guide provides that the 2023 Impairment Tables are used for the assessment of new DSP claims lodged on or after the date of commencement, namely 1 April 2023, and for reviews commencing on or after that date regardless of a recipient’s start date on the DSP.
Clause 5(2)(b) of the 2011 Impairment Tables provides that they are function based rather than diagnosis based.
Clause 6(1) of the 2011 Impairment Tables provides that 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.
In addition to a condition being permanent, Clauses 6(4), (5) and (6) of the 2011 Impairment Tables require the condition to be fully diagnosed, fully treated and fully stabilised.
Similarly, Clause 7(2)(b) of the 2023 Impairment Tables, provides that they are function based rather than diagnosis based.
Also, under clause 8(1) of the 2023 Impairment Tables 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.
In addition to any impairment being permanent, clauses 8(4), (5), (6) and (7) of the 2023 Impairment Tables provide that an impairment rating can only be assigned to the impairment if the condition has been diagnosed by an appropriately qualified medical practitioner as reasonably treated and stabilised.
THE APPLICANT’S CLAIMED IMPAIRMENTS
Right ankle condition
At the outset in considering this claimed impairment, it should be recorded that the respondent has conceded that her right ankle condition was fully diagnosed, fully treated, and fully stabilised, or diagnosed, reasonably treated and stabilised.[3]
[3] This concession is made at paragraph 4.28 of the Respondent’s Statement of Issues, Facts, and Contentions lodged on 24 June 2024.
It is contended on behalf of the respondent that whether the 2011 or 2023 Impairment Tables apply, the applicant’s right ankle condition warrants a rating under those tables of either 5 or a maximum of 10 points under Table 3 -Lower Limb Function.
Unfortunately, there is little evidence before the Tribunal concerning this impairment. There is little evidence that it is both connected with the qualification period or accurately details the functional impact or functional manifestations of such impairment.
When in the witness box, the applicant attempted to describe her conditions as she experienced during the qualifying period commencing in February 2023. She explained that due to her ankle injury she ceased driving and did not drive for approximately three years. She stated that she has only recently commenced driving. If she needs to, she is able to drive to a nearby shopping centre which is only a five minute drive. It was explained by her that she does not need to purchase much in the way of groceries because she is assisted in the provision of meals both from her daughter and a charitable organisation known as “Helping Hand”. The meals provided by both her daughter and Helping Hand are usually precooked and frozen so that all she needs to do is heat them up in a microwave oven. When she does go shopping, she stated that she mostly buys cat food and cat litter for her pet.
Presently, the applicant undergoes treatment with a physiotherapist approximately once a fortnight. As for her mobility, her evidence in the witness box was that she tries to walk for approximately half an hour a day around the block. The distance that she covers in the time it takes, particularly at this time of the year, is understandably weather dependent.
During the years, when she was not driving following the accident which caused her ankle injury, the applicant stated she regularly used public transport which did not pose any difficulties for her. She explained in her evidence that her apartment is close to both a tramline and a bus route.
There is a report of 14 February 2023 from Ms Rizk, the applicant’s treating physiotherapist. There are several aspects of that report that warrant mention.
In the section of her report concerning prognosis, Ms Rizk expresses the opinion that the applicant will never return to her preinjury job, or functioning level due not only to the fracture but also due to the complication of the healing process which has as she described it, caused ‘chronic issues’.
Another section of Ms Rizk’s report describes the applicant’s “Maximum Functional Ability” concerning this impairment. It does so in the following terms:
(a)Sitting: over 2 hours unrestricted with usual breaks;
(b)Standing: 30 minutes, able to stand in the kitchen to prepare a meal;
(c)Walking: 30 minutes, unable to walk around a supermarket to perform a weekly shop;
(d)Lifting: 8-12kg, able to lift a vacuum cleaner or one case of 24 cans of drink. She can physically carry that load but given her instability and challenged balance, this task is not recommended repeatedly.
(e)Driving: Over 2 hours, unrestricted with usual breaks. Swelling of her ankle should be taken into consideration.
There were some other medical reports concerning the applicant’s right ankle condition that should be referred to which were prepared after clinical assessments were undertaken by the practitioners concerned. Those reports regrettably were well before the qualification period and therefore, are of more limited value. Nonetheless, they do touch on the applicant’s functional capacity with respect to this impairment. Those reports were also considered by the assessors who prepared a Job Capacity Assessment report concerning the applicant on 20 July 2022.[4] Those assessors were a registered psychologist and a registered occupational therapist.
[4] See also the Job Capacity Assessment Report of 20 July 2022, which is document T20, 180-187.
The first of those medical reports was prepared by Dr David Kennedy a Sports and Industrial physician who conducted a clinical assessment of the applicant on 14 October 2021.[5] Dr Kennedy in that report stated the applicant, as a consequence of an incident on 8 September 2020, sustained a significant injury to her right ankle and hindfoot, with a fracture to the lateral malleolus in conjunction with myofascial injuries, particularly to the anterolateral aspect of the right ankle and subtalar joint.
[5] T11, 145-152.
As a result of undertaking a clinical assessment of the applicant’s right ankle and hindfoot, Dr Kennedy recorded there was an asymmetrical, mild to moderate loss of active range of motion of the right foot at the ankle and hindfoot, particularly on extension and eversion and to a lesser extent flexion and inversion.
Dr Kennedy also observed when conducting his clinical assessment of the applicant, that there were also restricted movements in the right hip and knee joint, particularly in the hip joint with restrictions on abduction and internal and external rotation.
Dr King, an orthopaedic surgeon, reviewed the applicant on 16 March 2022. He also reviewed medical images of the applicant’s right ankle. Dr King recorded the applicant informing him that she continues to experience right ankle symptoms including aching and pinching which comes and goes. Such pain she informed him, is aggravated by walking more than one hour, and she cannot walk or stand for more than one hour. Her ankle can swell, and it feels weak. This is associated with a numb feeling. An examination revealed the applicant to have a normal gait. Dr King also recorded a mild tenderness at the tip of the lateral malleolus. There was no other tenderness recorded.
The x-rays examined by Dr King showed fibrous union of an avulsion fragment from the tip of the right lateral malleolus. An ultrasound demonstrated an ankle infusion, and an injury to the anterior talofibular ligament.
The question then becomes what impairment rating the Tribunal should attach to this condition applying both the 2011 Impairment Tables and the 2023 Impairment Tables.
As for the 2011 Impairment Tables, the Tribunal is not satisfied that with respect to Table 3 -Lower Limb Function that a 20-point rating (being a severe functional impact on activities using lower limbs) is applicable. To attract a 20-point rating under this descriptor an applicant for the DSP must establish that:
(a)they are unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance;
(ii)walk from the car park into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b)require assistance to use public transport.
Neither the reports of the physiotherapist Ms Rizk, or indeed Dr Kennedy or Dr King provide any evidence of the applicant’s right ankle condition having a severe functional impact on any of those activities identified in Table 3 of the 2011 Impairment Tables, with respect to lower limb function. Quite to the contrary, it will be recalled that Ms Rizk’s report revealed that the applicant was able to undertake each of those activities, albeit with some restriction.
Dr Kennedy’s report in the section entitled “Current Complaints and Capabilities” identified that the applicant experienced persistent pain in the right ankle region.[6] He also recorded from his clinical examination of her that she has restricted movements of the right foot at the ankle joint and the hindfoot. He did not however identify the applicant as experiencing a severe functional impact on any of the activities using the lower limbs that are identified in Table 3 -Lower Limb Function of the 2011 Impairment Tables, that attract a 20-point rating.
[6] T11,148.
As for Dr King’s report there was no reference to a functional impact in any sense whatsoever, let alone a severe functional impact on activities using the lower limbs that would otherwise attract a 20-point impairment rating of the 2011 Impairment Tables.
The respondent submitted it would be open to the Tribunal to find that the applicant satisfied descriptors (1)(a), (b) and (2) to attract a 10-point rating in Table 3 -Lower Limb Function. To attract a 10-point rating there must be a moderate functional impact on activities using the lower limbs as follows:
(1)At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance;
(c) or the person is unable to stand for more than 5 minutes; and
(d) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
There is no evidence that indicates that the applicant’s impairment is even as described to attract a 10-point rating under Table 3, of the 2011 Impairment Tables. Once again, reference is made to Ms Rizk’s report which indicates, amongst other things, that the applicant is able to stand for 30 minutes, able to walk for 30 minutes, including walking around a supermarket to perform a weekly shop. She is also able to lift 8-12kgs and able to drive for two hours unrestricted. With respect to the remaining functions, there is just no evidence.

One now turns to Table 3 - Lower Limb Function of the 2023 Impairment Tables. Some observations should be made about the preamble or introduction to Tables 3 of the 2023 Impairment Tables. It is prescribed, amongst other things, that the diagnosis of the condition causing the impairment must be made by an appropriately qualified medical practitioner and that there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence for the purposes of this Table include, but are not limited to, a report from the person’s treating doctor, a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment or a report from an allied health practitioner such as a physiotherapist or occupational therapist confirming the functional impairment.
A 20-point rating under Table 3-Lower Limb Function of the 2023 Impairment Tables requires the applicant for a DSP to establish a severe functional impact on activities using lower limbs. The person must:
(a)have severe difficulty undertaking any of the following without assistance:
(i)standing up from a sitting position in a standard chair;
(ii)remaining standing independently;
(iii)walking around their home and in the community; and
(b)requires assistance to use public transport.
Once again, the Tribunal was not satisfied that there is any evidence demonstrating that the applicant’s impairment has such a severe functional impact as described in this section of the 2023 Impairment Tables relating to lower limb function. The observations referred to concerning the application of Table 3 - Lower Limb Function of the 2011 Impairment Tables are repeated. In particular, the report of the applicant’s treating physiotherapist, Ms Rizk does not bear this out. Quite the contrary, both her reports and that of Dr Kennedy indicate that she is able to undertake these tasks, although in a way that is more restricted than someone who does not suffer from the injury to the right ankle.
To attract a 10-point rating which is a moderate functional impact on activities using the lower limbs several criteria must be satisfied as follows:
(a)At least one of the following applies:
(i)the person has moderate difficulty walking on slopes or uneven ground; or
(ii)the person has moderate difficulty using stairs or steps without assistance or without using alternative methods; or
(iii)the person has moderate difficulty standing for short periods of time; or
(iv)the person has moderate difficulty kneeling or squatting and requires support of a stable object to stand again; and
(b)The person is able to use public transport or a motor vehicle and walk on level ground.
Several examples are included in this part of Table 3 - Lower Limb Function of the 2023 Impairment Tables. Those examples are instructive in terms of identifying characteristics or features of an applicant’s impairments so as to determine whether there is a moderate functional impact on those activities so as to attract a 10-point rating.
Whilst it is unquestionable that the applicant has suffered some impairment as a result of her right ankle injury, neither the report of Ms Rizk nor Dr Kennedy even goes so far as to definitively conclude that the criteria enumerated in Table 3 of the 2023 Impairment Tables are satisfied.
For these reasons, which ever Impairment Tables are applied be they the 2011 or 2023 version, the Tribunal can only conclude given the paucity of evidence on this impairment, that only a 5-point rating can be applied. This is a mild functional impact on activities using the lower limbs. There is no doubt that the applicant’s capacity to use her right ankle has been affected. There has been a mild to moderate loss of active range of motion of the right foot at the ankle and hindfoot as identified by Dr Kennedy. The boundaries of the applicant’s functional capacity caused by their loss of active range of motion was helpfully summarised in Ms Rizk’s report. Notwithstanding the impairment she experiences, there is still a significant range of motion.
Finally, with respect to this impairment another matter is relied upon by the respondent to contend that the Tribunal should not attach a 20-point rating to her lower limb condition. Apparently, the applicant has volunteered with the Salvation Army for approximately 15 hours per week.[7] This volunteer work is of necessity limited and largely involves her carrying out her duties sitting down.
[7] See, eg, the applicant completed a form on 7 March 2023 for Centrelink known as "Voluntary Work-Verification of voluntary work”, (SU 462) which she signed. The form verified she was then undertaking 30 hours per fortnight. This document is T26, 205. There was also in evidence a letter from an officer of the Salvation Army confirming that she undertook voluntary work for 15 days per week but was on very limited duties mostly sitting down and chatting to people. There was nothing that required lifting, reaching, or walking. That letter was document T36, 225.
When in the witness box the applicant stated that she had not been volunteering at the Salvation Army for quite some time as she had not been feeling well and had a doctor’s certificate to that effect. Of course, this relates to more recent times and does not reflect what was occurring during the qualification period. Which is the time span with which the Tribunal’s concern for the purposes of this application. She also acknowledged that when she went there, she spent some time frequently as the correspondence stated chatting to people often from relatively early in the morning when she had breakfast at the Salvation Army premises.
Whilst one can understand this contention advanced by the respondent and the reason why it was made, it seems that it has comparatively limited bearing on making a determination about what is the appropriate point rating to apply to the impairment relating to the applicant’s right ankle condition. However, the Tribunal acknowledges the force in the contention that because the applicant was able to physically undertake volunteer work with the Salvation Army for approximately 15 hours per week during the qualification. As indicated, whether the 2011 Impairment Tables or the 2023 Impairment Tables are applied such activities are inconsistent with there being a severe functional impact on her activities by reason of this impairment, namely the right ankle condition.
Diabetes
With respect to this claimed impairment, the respondent also conceded that it was fully diagnosed, treated and stabilised, or diagnosed reasonably treated and stabilised.[8]
[8] Respondent's Statement of Facts, Issues and Contentions of 24 June 2024, 12 [4.38]
In the witness box, the applicant stated that she has suffered from this condition since she was pregnant with one of her children more than 20 years ago. She takes a medication known as “Diabex”, 2000mg daily for the condition.[9]
[9] See, a certificate from the applicant's general practitioner, revealed that she is prescribed a 1000 mg dose of Diabex twice per day. This is at T39, 229.
In terms of what impact the condition has on her daily life, the only matters that the applicant could point to in her evidence arise when sometimes she forgets to take her medication. When this occurs, she experiences what she described as ‘forgetfulness’. Other times she described an experience of having a ‘hollow head’, or ‘sometimes a massive headache like a migraine’. She could not point to any other impairments or restrictions caused by the condition.
As for assigning an impairment rating, the respondent submits that there is simply no or insufficient evidence, to enable an impairment rating under Table 1- Functions Requiring Physical Exertion and Stamina as contemplated by either the 2011 or 2023 Impairment Tables. The grounds relied upon by the respondent in making such submissions are that there is no evidence before the Tribunal identifying or accurately describing any other functional impact upon the applicant by reason of such condition. The Tribunal accepts this submission because the applicant was, particularly when in the witness box, save for fairly limited evidence which has been touched on above, unable to direct it to any evidence that might link the condition which she suffers from namely type 2 diabetes and any discernible impairment identified in any of those tables.
Another matter that was drawn to the Tribunal’s attention concerning the issue of diabetes is that the medical evidence, such as it is, discounts any suggestion of that condition impairing the applicant’s visual function. There was in evidence a report from Dr Francesca Falleti following an examination she conducted on the applicant by 20 April 2024. That report recorded, ‘[n]o signs of diabetic retinopathy were noted in either eye. Intraocular pressures were within normal limits’.
For these reasons, the Tribunal concludes that there is no evidence before it that enables a conclusion to be reached that there is a functional impairment as required by Table 1-Functions Requiring Physical Exertion and Stamina under either the 2011 or 2023 Impairment Tables.
Vertigo
Once again, the material before the Tribunal concerning this condition is quite limited. There was a Discharge Summary from the Mater Hospital in Brisbane. The Discharge Summary revealed that the applicant was admitted to that hospital on 16 April 2022 and discharged on 20 April 2022. Her principal diagnosis was described as ‘vertigo’. The reason for the presentation was described as “Covid + 14/4/22 and Vertigo”. In the witness box the applicant stated that she was in hospital in Brisbane with Covid when she was also diagnosed with vertigo, which is consistent with the entries recorded in the Discharge Summary.
The nursing notes in the Discharge Summary revealed that the applicant was nursed for mild Covid and dizziness. There was also a Functional Assessment recorded which showed with respect to mobility, activities of daily living and diet that she was independent. There were no other symptoms of this condition recorded in the Discharge Summary.
In the witness box, the applicant gave some evidence concerning her experiences with this condition. She said that ‘it comes and goes. One minute whole world is turning around. The whole world is turning upside down. It will last between 15-30 minutes.’ Further, it was stated by her that the onset of the condition tends to arise more frequently if she has not had any sleep or, experienced poor sleep patterns. She explained that she was taking some medication for the condition but did not identify what the medication was. However, in the Discharge Summary from the Mater Hospital in Brisbane in a section headed “Plan” it was recorded that the applicant would continue to take Stemetil and Amlodipine with a follow-up consultation with her general practitioner in approximately 1 or 2 weeks. Her evidence was that she has regularly consulted her general practitioner who has prescribed medication for this condition. Additionally, the applicant stated that she had not seen a specialist for it.
In evidence were medical certificates signed by Dr Panos, a general practitioner, who has treated the applicant on dates such as 31 January 2023, 10 February 2023, and 21 February 2023, which covered most of the qualification period. In those medical certificates no reference was made to the applicant’s condition of vertigo. This is surprising given that the medical certificates were made after the applicant was admitted to the Mater Hospital in Brisbane for treatment of this condition, which it should be noted, was recorded in the Discharge Summary from that hospital as the “Principal Diagnosis”.
The Tribunal is concerned that there is limited evidence concerning this condition. This includes the fact that the applicant’s treating general practitioner when issuing several medical certificates concerning her conditions during the qualification period did not identify vertigo as either a primary or secondary condition. Also, she has not consulted a specialist concerning the condition. By reason of these matters the Tribunal concludes that this condition cannot be considered to be fully treated and stabilised, or reasonably treated and stabilised as required by either the 2011 or the 2023 Impairment Tables.
Depression
Once again, the evidence before the Tribunal with respect to this condition is quite limited concerning this condition during the qualification period.
In the witness box the applicant stated that she had been experiencing protracted periods when she felt quite sad. The reasons for her sadness, included the fact that although she has 6 children, she only has contact with one daughter. Additionally, she was placed under further stress by reason of getting ready to retire and now having had significant periods when she hasn’t worked. The applicant stated that her daughter did suggest to her that she needed to seek professional help. This is all quite understandable.
There are several medical certificates in evidence before the Tribunal which record the applicant as suffering from this condition. Specific reference to depression or the applicant being depressed is contained in several medical certificates that were in evidence. Such medical certificates were signed by the applicant’s treating general practitioner from time to time. They are dated 17 January 2020, 21 September 2022, 21 February 2023, 15 August 2023, 18 September 2023, and 5 October 2023.
The description or diagnosis of the general practitioner in each of the medical certificates in evidence was fairly limited. For instance, in the medical certificate of 17 January 2020, the applicant was said to be ‘depressed’ and such condition was said to be ‘temporary’. Similarly, in a medical certificate of 21 September 2022, the condition was described as ‘anxiety and depression which was also said to be ‘temporary.
When in the witness box, the applicant stated that up until February of 2023 she had not seen a psychologist or sought other professional help beyond that available to her from consulting her general practitioner. At various times she stated that she had been prescribed medication for her depression by the general practitioner. However, unfortunately such medication is to be of little assistance to her. She explained that when she did take the medication prescribed for depression it actually made her ‘more sick’. The manifestations of this problem were that she could not get out of bed. She described it as if she was drunk. She did try a different medication, which she could not remember the name of, and it just did not agree with her. The total time that she spent on medication for her depression was approximately one month. Her evidence was that the medication ‘didn’t agree with me. I felt more normal when not taking it’.
The applicant gave evidence from the witness box that she saw a psychologist twice, only a few months ago. Unfortunately, she was unable to continue consultations with that psychologist because it was too expensive for her. This is understandable given that the applicant is clearly living in straitened financial circumstances.
The Tribunal acknowledges that the applicant has provided a very brief letter of 10 June 2024 from Ms Hall, a psychologist whom she recently attended. Ms Hall described the applicant’s level of depressive symptoms, anxiety, and stress in the severe to extremely severe range. (DASS: 22/24/30). The report also recounts the applicant informing Ms Hall of her history of depression and an inability to engage in previously enjoyed activities due to her ankle injury being a major contributor to her current condition.
The respondent contends and the Tribunal agrees that this brief report from Ms Hall is problematic in several respects. Firstly, it does not purport to express a professional opinion concerning what depressive illness or other diagnosed mental health condition the applicant suffered from during the qualification period. Secondly, in any event it does not provide a recognised or definitive diagnosis of such disorders of the mind which might confirm the diagnoses made by the general practitioners during that qualification period.
Reference should also be made to the provisions of Table 5 - Mental Health Function in both the 2011 and 2023 Impairment Tables. Both those tables require the diagnosis of the condition causing the impairment to be made by an appropriately qualified medical practitioner (such as a general practitioner or a psychiatrist) with evidence from a registered psychologist (if the diagnosis has not been made by a psychiatrist). Additionally, the diagnosis and evidence should make appropriate reference to the diagnostic tool used. There is a requirement of corroborating evidence of the persons impairment. Regrettably, for the applicant these requirements of Table 5 - Mental Health Function in both the 2011 and 2023 Impairment Tables have not been met.
In the absence of an appropriate diagnosis as described, the Tribunal cannot conclude that this condition has been fully treated and stabilised, or reasonably treated and stabilised. For such a conclusion to be reached the Tribunal concludes that it would be necessary for the applicant to have undertaken a reasonable treatment program recommended by a psychologist or psychiatrist prior to the qualification period. More likely than not, it does require a consultation with an experienced psychiatrist who is able to make an accurate diagnosis of the mental health conditions from which the applicant suffers and recommend an appropriate course of pharmacological intervention, which may require significant alteration over some time span to determine the correct medication and levels of dosage to adequately treat such conditions. Invariably, this would also be coupled with regular face-to-face counselling sessions.
Hypertension and blood pressure
There is also limited material before the Tribunal concerning this condition. In the witness box, the applicant stated that when she was diagnosed with Covid, which required her admission to the Mater Hospital in Brisbane in April 2022, she was then diagnosed with blood pressure or hypertension. Her evidence was that she is prescribed Perindopril for this condition. She takes this medication morning and night. She also stated from the witness box that this course of medication had not really controlled her blood pressure. She felt that she would need to consult her general practitioner to have her medication changed to more properly address this condition. There was also in evidence a clinical history apparently prepared by a general practitioner who has treated her over some time confirming that she has been prescribed Perindopril.[10]
[10] T39, 229.
Beyond that evidence, there was a brief letter of 7 July 2023 from a cardiologist, Dr Wang. Amongst other things, that letter records that the applicant was referred to Dr Wang for a cardiac assessment, and that she was also concerned regarding her possible hypertension. Dr Wang recorded that he had organised a number of investigations to assess the applicant’s heart, as well as her blood pressure, including a 24-hour blood pressure monitor, which showed that she was actually normotensive with average blood pressure. Further, he recorded no significant cardiac symptoms and a 24-hour blood pressure showing she is normotensive. Therefore, he made no changes to her medications. One has to observe that these findings made by a highly qualified specialist Dr Wang are firstly, inconsistent with the stated condition causing her any impairment, and secondly, are also inconsistent with her indeed suffering such a condition. At the very least it does appear that the applicant’s existing treatment regime for blood pressure and hypertension is working.
Assessing all this evidence, as best the Tribunal can, it concludes that this condition has not been fully diagnosed, fully treated and fully stabilised or diagnosed, reasonably treated and stabilised as required by either the 2011 or 2023 Impairment Tables. In any event, the medical report of Dr Wang which is reasonably close to the qualifying period does not indicate that this condition has caused the applicant and impairment which is captured by any of the provisions of those 2011 or 2023 Impairment Tables.
CONCLUSION

By reason of the foregoing matters the Tribunal is unable to conclude that the applicant’s impairment is of 20-points or more under both the 2011 and 2023 Impairment Tables. Accordingly, it is not necessary for the Tribunal to consider whether the applicant has a continuing inability to work.
It was mentioned to the applicant at the conclusion of the hearing, that if this application were unsuccessful, it is nonetheless open to her to make a further application for the DSP if her circumstances have changed so as to render her now eligible for such a benefit.
Therefore, by reason of the foregoing matters, the Tribunal affirms the reviewable decision of the Member of the Social Services & Child Support of this Tribunal, made 14 November 2023, pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 82 (eighty- two) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

........................[sgd].............................
Associate
Dated: 30 August 2024

Date of hearing:
20 August 2024

Applicant:

Self-represented

Solicitor for the Respondent: Ms Kathryn Lieschke, Services Australia

[2024] AATA 3156

30 August 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	20 August 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Kathryn Lieschke, Services Australia