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

Ward and Secretary, Department of Social Services (Social services second review) [2017] AATA 179 (15 February 2017)
Division:GENERAL DIVISION
File Number: 2016/4605
Re:Christine Ward
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:15 February 2017
Place:Brisbane

The Tribunal sets aside the decision under review.
...........................[Sgd].............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether mental health condition fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review set aside.
LEGISLATION
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)
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
15 February 2017
INTRODUCTION

On 5 November 2015 Ms Ward lodged a claim for Disability Support Pension (“DSP”) referring to medical certificates completed by Dr Adam Gaudry, Ms Ward’s General Practitioner in 2015, for the particulars of her medical conditions.[1]
[1] Exhibit 1, T Documents, T12, pages 55-84, at 80, Ms Ward’s Claim for DSP dated 5 November 2015.
Medical Certificates and letters provided by Dr Gaudry in October and November 2015 report that Ms Ward suffers from anxiety and depression, and post-traumatic stress disorder resulting from several traumatic events.[2]
[2] Exhibit 1, T Documents, T10, page 53, Medical Certificate provided by Dr Gaudry dated 30 October 2015; T11,
page 54, Letter from Dr Gaudry to Centrelink dated 3 November 2015.
On 15 December 2015 Ms Ward’s application for counselling under the Victims Rights and Support Act 2013 was approved.[3]
[3]Exhibit 1, T Documents, T17, page 91, Letter from Ms Krishna, Commissioner of Victims Rights dated 15 December 2015.
On 8 January 2016 a Job Capacity Assessment (“JCA”) was conducted by video conference with Ms Ward by a Registered Psychologist and Registered Occupational Therapist. The JCA concluded that Ms Ward’s medical conditions were not fully diagnosed, treated and stabilised.[4]
[4] Exhibit 1, T Documents, T19, pages 94-98, JCA Reported dated 12 January 2016.
As a result of the JCA report Centrelink rejected Ms Ward’s claim for DSP on 12 January 2016.[5]
[5] Exhibit 1, T Documents, T20, pages 99-100, Letter from Centrelink dated 12 January 2016.
Claim History
Ms Ward sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Ward’s medical conditions were not fully diagnosed, treated and stabilised.[6]
[6] Exhibit 1, T Documents, T21, pages 101-107, Decision of ARO dated 29 January 2016.
Ms Ward lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Ms Ward’s claim and affirmed the ARO’s decision on 4 August 2016.[7]
[7] Exhibit 1, T Documents, T2, pages 3-5, SSCSD’s Decision and Reasons for Decision dated 4 August 2016.
Ms Ward has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1-2, Ms Ward’s Application for Review dated 31 August 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Ward must have a physical, intellectual or psychiatric impairment;
(b)Ms Ward’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[9]
(c)Ms Ward must have a continuing inability to work.
[9] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Ward meets the Section 94 Requirements is the date of the claim (in this instance as at 5 November 2015), unless Ms Ward becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[10] Therefore, in order to qualify for DSP Ms Ward must have met the Section 94 Requirements between 5 November 2015 and 5 February 2016 (“Qualification Period”).
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Ward’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[11]
DID MS WARD HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[11] 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; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination 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” as “a medical condition”.[12]
[12] Determination, s 3.
Ms Ward’s medical conditions
In October 2011 Ms McPhee-Allan, Psychologist, reported that Ms Ward was suffering from “severe stress and severe depressive and anxiety symptoms, such as would warrant clinical and pharmacological treatment”.[13]
[13] Exhibit 1, T Documents, T5, page 45, Letter from Ms McPhee-Allan dated 25 October 2011.
A medical certificate completed by Dr Edias Shumba, General Practitioner, on 28 October 2011 noted that Ms Ward had been assessed by a clinical psychologist and was found to be suffering from a medical condition that had affected Ms Ward’s capacity to work.[14]
[14] Exhibit 1, T Documents, T6, page 46, Medical Certificate completed by Dr Shumba dated 28 October 2011
In October 2015 a mental health assessment recorded Ms Ward’s diagnosis as “homeless”, “PTSD – subjected to Domestic and Police Violence” and “Anxiety/Depression”.[15]
[15] Exhibit 1, T Documents, T8, page 49, Mental Health Assessment dated 9 October 2015.
Dr Gaudry reported on 26 October 2015 that Ms Ward’s “fragile mental health state” was significantly deteriorating due to her living so close to family members of previous attackers and that she was seeking further counselling.[16]
[16] Exhibit 1, T Documents, T9, page 51, Letter from Dr Gaudry dated 26 October 2015.
In November 2015 Dr Gaudry reported that Ms Ward may benefit from having a psychiatric evaluation and that she was no longer capable of working.[17]
[17] Exhibit 1, T Documents, T11, page 54, Letter from Dr Gaudry to Centrelink dated 3 November 2015.
Ms Ward was referred to Ms Danielle Muller, Psychologist, who confirmed on 12 November 2015 that Ms Ward presented with “significant symptoms of post traumatic stress, depression and anxiety”.[18] Other medical reports provided by Ms Ward in support of her DSP application also confirmed she suffers from post traumatic stress, depression and anxiety.[19]
[18] Exhibit 1, T Documents, T13, page 85, Letter from Ms Muller dated 12 November 2015.
[19] Exhibit 1, T Documents T14, page 87, Letter from Dr Bilsen dated 20 November 2015; T15, page 88, Letter from
Ms Wood, Domestic Violence Service Management dated 23 November 2015; T18, page 92, Letter from Dr M A A Khan, Eleanor Duncan Aboriginal Health Centre dated 29 December 2015.
The JCA concluded on 12 January 2016 reported that Ms Ward had commenced psychological intervention with Ms Muller in November 2015 but had ceased. Ms Ward told the JCA she was in the process of finding a psychologist in her local area.[20] In or around January 2016 Ms Ward then commenced attending counselling, through the Victims Services Counselling Scheme, with Ms Rowena Henderson, Counsellor.[21] Ms Ward was also then engaged in Partners in Recovery Program which is a program “which offers long-term support to people with severe and persistent mental health with other complex needs”.[22]
[20]          Exhibit 1, T Documents, T19, page 95, JCA Report dated 12 January 2016.
[21]         Exhibit 1, T Documents, T23, page 116, Letter from Ms Henderson dated 1 February 2016.
[22]         Exhibit 1, T Documents, T24, page 117, Letter from Ms Alison Sly, Support Facilitator Partners in Recovery dated
17 February 2016
On 25 August 2016 Ms Ward had a consultation with Ms Margo Crowther, Clinical Psychologist. Ms Crowther confirmed that Ms Ward was referred to her under Mental Health Care Plan for psychological treatment of symptoms of post-traumatic stress disorder.[23] Ms Crowther’s progress notes record that self-report responses to the Beck Anxiety Inventory indicated “severe depression” and the Beck Depression Inventory indicated “severe mood disruption”.[24]
[23] Exhibit 1, T Documents, T30, page 136, Letter from Margo Crowther dated 31 August 2016.
[24] Exhibit 1, T Documents, T31, pages 137-140, Progress notes completed by Ms Margo Crowther for period 25
August 2015 to 31 August 2015.
The Respondent accepts that Ms Ward suffers from a mental health condition for the purposes of section 94(1)(a) as at the Qualification Period.[25]
[25] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 6 December 2016, page 6, para 4.28.
Conclusion on Impairment
In light of the above medical evidence I find that during the Qualification Period Ms Ward suffered a psychiatric Impairment, namely anxiety and depression, for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
DOES MS WARD’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[26] They are function based[27] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[28]
[26] Determination, s 4(2) and 5(2)(a).
[27] Determination, s 5(2)(b) and (c).
[28] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[29]
(a)Ms Ward’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[29] Determination, see s 6(3).
Ms Ward’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[30]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Determination, see 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[31] the following must be considered:[32]
(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.
[31] For the purposes of ss 6(4)(a) and (b) of the Determination.
[32] Determination, see s 6(5).
A condition is fully stabilised[33] if:[34]
(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[35]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[33] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[34] Determination, see s 6(6).
[35] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Ms Ward’s mental health condition permanent and likely to persist for at least 2 years?
Ms Ward was clearly experiencing a severe degree of notable anxiety and depression during the Qualification Period.
However, Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Without such evidence no Impairment Rating can be assigned.
The JCA concluded that Ms Ward’s mental health condition was not fully diagnosed, fully treated and fully stabilised because the diagnosis had not been verified by a psychiatrist or clinical psychologist.[36]
[36] Exhibit 1, T Documents, T19, page 95, Job Capacity Assessment dated 12 January 2015.
The Respondent contends that while Ms Ward had been supported by counsellors and psychologists, the evidence indicates that Ms Ward was not seen by a clinical psychologist until August 2016 which is 6 months outside the Qualification Period.[37] The Respondent submits that because Ms Ward was not diagnosed by a “clinical” psychologist in the Qualification Period her medical condition has not been fully diagnosed.
[37] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 6 December 2016, paras 4.16-4.18.
In October 2011 Ms McPhee-Allan, Registered Psychologist, diagnosed Ms Ward as suffering from “severe stress and severe depressive and anxiety symptoms”.[38] The Respondent says there is no indication that Ms McPhee is a “clinical” psychologist. Ms Ward explained that Ms McPhee-Allan is now retired but that she had always been of the understanding that she was being treated by clinical psychologists. I note that Ms McPhee-Allan’s letterhead refers to a clinical qualification but it is not clear that this is the total requirement to be registered as a “clinical” psychologist under the APA Guidelines. The Respondent undertook searches but as she has retired Ms McPhee-Allan’s professional details are no longer available.
[38] Exhibit 1, T Documents, T5, page 45, Letter from Ms McPhee-Allan dated 25 October 2011.
However, I note, and the Respondent accepted, that Ms McPhee-Allan used a psychometric diagnostic tool (DASS 21 – Depression, Anxiety and Stress Scale) such as that which would be used by a clinical psychologist to arrive at his diagnosis. Further, Ms Ward was seen by a Clinical Psychologist, Ms Crowther in August 2016 who diagnosed Ms Ward, also using psychometric tools, as having “severe anxiety” and “severe mood disruption”.[39] The medical evidence indicates and the Respondent does not dispute, that Ms Ward has been suffering from these psychological conditions for a long period of time.[40] It is fair to say therefore that the subsequent confirmation by Ms Crowther of the diagnosis in existence during, and prior to, the Qualification Period, means that Ms Ward’s medical condition was fully diagnosed by psychologists (who may or may not have been clinical psychologists) with subsequent confirmation by a clinical psychologist, Ms Crowther (as required by Table 5 of the Determination).
[39] Exhibit 1, T Documents, T31, pages 137-140, Progress notes completed by Ms Margo Crowther for period 25
August 2015 to 31 August 2015.
[40] For example, see Exhibit 1, T Documents, T5, page 45, Letter from Ms McPhee-Allan dated 25 October 2011 and
T11, Letter from Dr Gaudry dated 3 November 2015. Ms Crowther reported an initial diagnosis of PTSD in 1999, see T31, page 137, Progress notes completed by Ms Margo Crowther for period 25 August 2015 to 31 August 2015.
The next issue to be determined is whether or not Ms Ward’s psychological conditions are fully treated and fully stabilised. The Respondent contends that they are not because there is evidence that her condition had deteriorated in November 2015, at the time of making the DSP claim, and because in the Qualification period there is no evidence that the conditions had stabilised.[41] Ms Ward acknowledged that her condition had deteriorated because she had recently seen one of her attackers who had sexually assaulted her as a 14 year old. Ms Ward says she began having night terrors and felt under threat. Ms Ward says she was already dealing with being homeless[42] and her father’s stroke and that, as a result she had again sought psychological treatment.[43] Ms Ward says Dr Bilsen prescribed Temazepam in or around late October/early November 2015 and in December 2015 Dr Khan prescribed Citalopram.[44] Counselling and treatment by Ms Crowther is ongoing.[45] Ms Ward says she has been taking the prescribed medication now for over a year.[46]
[41]Exhibit 2, Respondent’s Statement of Facts and Contentions dated 6 December 2016, page 8, para 4.16.
[42]This is supported by letters from Dr Gaudry, Dr Bilsen and Dr Khan – Exhibit 1, T Documents, T11, page 54, Letter from Dr Gaudry dated 3 November 2015; T14, page 87, Letter from Dr Bilsen dated 20 November 2015; T18, page 92, Letter from Dr Khan dated 29 December 2015.
[43]This is supported by Dr Gaudry – Exhibit 1, T Documents, T11, page 54, Letter from Dr Gaudry dated 3 November 2015.
[44]         Exhibit 1, T Documents, T18, page 93, Letter from Dr Khan dated 29 December 2015.
[45]         Exhibit 1, T Documents, T30, page 136, Letter from Ms Crowther dated 31 August 2016.
[46]         Report from Dr Hudson, General Practitioner Sundale Medical to Ms Crowther dated 16 January 2017. Ms Ward,
with no objection by the Respondent, provided a copy of this report to the Tribunal after the hearing.
The difficulty with psychological conditions is that the signs and symptoms may vary and fluctuate. This is recognised in the introduction to Table 5 of the Determination (see paragraph 57 below). There is no dispute that Ms Ward suffers from psychological impairments and that during the Qualification Period Ms Ward’s symptoms may have been more severe than usual.
I find that during the Qualification Period:
(a)there was corroborating evidence of Ms Ward’s condition;
(b)Ms Ward was receiving reasonable treatment in the form of medication and counselling; and
(c)The treatments are continuing.
Therefore, I find that Ms Ward’s mental health Impairment was fully treated as defined in section 6(5) of the Determination.

Ms Ward was, and is still, receiving reasonable treatment for her condition. The question is whether the continued treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years such that it can be said her condition is fully stabilised.[47]
[47] For the purposes of ss 6(4)(c) and 11(4) of the Determination; see also Determination, see s 6(6).
This is a long term condition, however, Ms Ward was working until her set back in November 2015. Therefore, it is clear that when she is not having to deal with being homeless and PTSD triggers, Ms Ward is capable of working. However, it is unclear how long it will take for Ms Ward to get back to a position of confidence and work capability again.
The JCA in January 2016 noted that the “chronicity of the condition indicates a prognosis of over 24 months”.[48]
[48] Exhibit 1, T Documents T19, page 95, Job Capacity Assessment Report dated 12 January 2016.
A Housing Pathways Medical Assessment was conducted on 8 October 2015 by Dr Lawrence Loh, General Practitioner. For some reason, which is unexplained, the copy of this assessment in the T Documents (Exhibit 1, T25, pages 124-129) was redacted almost in full. However, Ms Ward was able, with no objection by the Respondent, to provide an unredacted copy to the Tribunal after the hearing.
Dr Loh in the Housing Pathways Medical Assessment reported that Ms Ward’s condition was likely to last for 2 to 5 years.[49] This supports a finding that Ms Ward’s Impairment meets the definition of fully stabilised”.
[49] Housing Pathways Medical Assessment was conducted on 8 October 2015.
Therefore, I find that during the Qualification Period Ms Ward’s mental health Impairment was permanent for the purpose of the Act and likely to persist for at least 2 years. An Impairment Rating using the Impairment Tables can now be assigned.
USING THE IMPAIRMENT TABLES
I have to assess the level of impact of Ms Ward’s mental health impairment against the descriptors[50] (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).[51]
[50] Determination, see ss 3 and 5(3).
[51] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
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.[52]
[52] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[53]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[53] Determination, see s 7.
I must not take into account the following information in applying the Tables:[54]
(a)symptoms reported by Ms Ward in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Ward’s local community.
[54] Determination, see s 8.
Which Tables are appropriate are determined by:[55]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[55] Determination, see s 10(1).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[56]
[56] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[57]
[57] Determination, see s 11(3).
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.[58]
[58] Determination, see s 11(5).
RELEVANT IMPAIRMENT TABLE AND IMPAIRMENT RATING
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·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, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health 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 of the episodes or fluctuations as appropriate.
The JCA did not assign an Impairment Rating as it concluded that Ms Ward’s condition was not permanent.[59]
[59] Exhibit 1, T Documents, T19, pages 94-98, Job Capacity Assessment report dated 12 January 2016.
For Ms Ward to obtain the DSP, her condition would have to attract an Impairment Rating of 20 points. This is because her condition is being assessed under one single Impairment Table and would need to be a “severe impairment” as defined in section 94(3B) of the Act.
The Respondent submits there is no evidence to support a claim of 20 points alone under a single Table.[60]
[60] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 6 December 2016, page 10, para 4.25.
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
EVIDENCE IDENTIFYING THE LOSS OF FUNCTION
The JCA in January 2016 noted that Ms Ward’s “current functional impacts (anxiety, depressed mood, stress, reduced motivation, confidence, memory and concentration)…impacts on her ability to engage in services to assist with return to work.”[61]
[61] Exhibit 1, T Documents T19, page 95, Job Capacity Assessment Report dated 12 January 2016.
The JCA reported that Ms Ward confirmed that “she is reliant on her son for transport and accompanying her to appointments and the local shops. She reported being ‘hyper vigilant, hyper sensitive, dysfunctional’ and ‘can’t deal with other people’.[62]
[62] Exhibit 1, T Documents T19, page 95, Job Capacity Assessment Report dated 12 January 2016.
In a statement provided by Ms Ward she states:[63]
I have been living in constant fear, suffering from a nervous breakdown, informed complex traumas…I’m constantly fearing the worst…I am struggling on many levels to see ahead clearly, to a point where I can return to work and feel safe.
[63] Exhibit 5, Statement of Ms Ward dated 29 January 2017.
At the hearing before me Ms Ward gave evidence that as at the Qualification Date:-
·She was living with her son who receives a full-time carer’s pension to care for her.
·She does not socialise because she is fearful of leaving the house on her own, other than to go to the doctor which is very close by
·She does not engage in any kind of social activity
·She feels completely vulnerable and unsafe
·She cannot get into a routine and has lost all her confidence
At a Medical Health Assessment conducted on 9 October 2015 the following was reported about Ms Ward’s mental health status:[64]
Mood/Affect - Angry, not depressed/concentrating
Thinking – tangential, flight of ideas
Perception – nil abnormal
Cognition – occasionally confused about chronology
Attention – intensely concentrating on ‘telling her story’, reluctant to stop or allow others to speak
Memory – not tested
Cultural Factors - feels threatened by Aboriginal family group supporting her ex partner
Insight – unable to assess accurately
[64] Exhibit 1, T Documents T8, pages 49-50, Mental Health Assessment dated 9 October 2015.
Ms Muller reported in November 2015 that Ms Ward’s symptoms “have become more debilitating and she has been unable to be left alone without the care of her son”.[65]
[65] Exhibit 1, T Documents, T13, pages 85-86, Letter from Ms Muller dated 12 November 2015.
In February 2016 Partners in Recovery reported that Ms Ward “feels unable to be in social and community situations on her own”.[66]
[66] Exhibit 1, T Documents, T24, page 117, Letter from Ms Alison Sly, Support Facilitator Partners in Recovery dated
17 February 2016
Dr Loh in the Housing Pathways Medical Assessment reported that Ms Ward had a “fear of leaving home”, “generalised anxiety”, “fear/anxiety about personal safety” and was “hypervigilant”.[67]
[67] Housing Pathways Medical Assessment was conducted on 8 October 2015.
Ms Crowther described Ms Ward in August 2016 as being in “fear for her life” in “survival mode” and “‘on the run’ trying to survive”.[68]
[68] Exhibit 1, T Documents, T31, pages 137-140, Progress notes completed by Ms Margo Crowther for period 25
August 2015 to 31 August 2015.
The question therefore is what the relevant Table to be considered is and what, if any, Impairment Rating should be assigned.
Based on the medical evidence set out in paragraphs 63 to 71 above and the evidence given by Ms Ward I find that Ms Ward’s mental health- impairment is having a “severe” functional impact on activities as at the Qualification Period. Therefore, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is 20 points.
DID MS WARD HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Ms Ward’s Impairment was permanent therefore it is necessary for me to consider whether Ms Ward had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Ms Ward’s Impairment has attracted 20 points under one single Impairment Table (i.e. it is a “severe impairments” as defined in s 94(3B)).
In the case of a severe impairment a person has a continuing inability to work pursuant to section 94(2) if:
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)(the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Dr Loh in the Housing Pathways Medical Assessment reported that Ms Ward’s condition was likely to last for 2 to 5 years.[69]
[69] Housing Pathways Medical Assessment was conducted on 8 October 2015.
Dr Bilsen reported in November 2015 that Ms Ward “cannot work as she needs to attend to her health issues”.[70]
[70] Exhibit 1, T Documents, T14, page 87, Letter from Dr Bilsen dated 20 November 2015.
Dr Khan reported in December 2015 that:[71]
Given the facts that she had quite traumatic life experiences and Severe Anxiety with PTSD for few years, it will take long time to get her better and stable enough to do some suitable work or job.
[71] Exhibit 1, T Documents, T18, page 92, Letter from Dr Khan dated 29 December 2015.
The JCA concluded that the current functional impacts resulted in a “temporary work capacity of 0-7 hours per week” and that the “chronicity of the condition indicates a prognosis of over 24 months”.[72]
[72] Exhibit 1, T Documents T19, page 95, Job Capacity Assessment Report dated 12 January 2016.
It is now the end of January 2017, 15 months since Ms Ward lodged her claim for DSP. The medical evidence referred to in this decision demonstrates that it is taking her a long time to get better and this accords with the evidence in paragraphs 76 to 79 above.
Therefore, I find that as at the Qualification Period Ms Ward had a continuing inability to work under section 94(1)(c)(i).
CONCLUSION
Ms Ward satisfied the Section 94 Requirement and therefore qualified for DSP at the date of her claim.
The decision under review is set aside.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 15 February 2017

Date of hearing: 30 January 2017

Applicant: In person

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of human Services

[2017] AATA 179

15 February 2017

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	30 January 2017
Applicant:	In person
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of human Services