XHGB and Secretary, Department of Social Services

[2015] AATA 205

DECISION AND REASONS FOR DECISION [2015] AATA 205

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )        No: 2013/4947
GENERAL ADMINISTRATIVE DIVISION                )

Re: “XHGB”
Applicant

And: Secretary, Department of Social Services
Respondent

CORRIGENDUM TO DECISION NO. [2015] AATA 205

TRIBUNAL:              Senior Member R W Dunne

DATE:   7 April 2015

PLACE:                   Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting the extract from Exhibit A8, page 11 of 17 in paragraph 31 of the reasons and inserting the following:

“The applicant asked me if I would support her in an application for a DSP.  I told her that while I would support her for a Centrelink Sick Certificate I could not support her for a DSP because she is too bright and talented and I would not want her to be discriminated against in the future.  She accepted this explanation.”

..........................[Sgd]...........................

R W DUNNE

(Senior Member)

[2015] AATA  205

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4947
Re	"XHGB"
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	2 April 2015
Place	Adelaide

The Tribunal affirms the decision under review.

......................[Sgd]..................................................

Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a "continuing inability to work" – reports of psychiatrist, treating doctor and psychologists considered – Job Capacity Assessment conducted – claim for disability support pension rejected – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), Clause 4 of Schedule 2, when read with s 42

CASES

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Fanning v Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member R W Dunne

2 April 2015

INTRODUCTION

1. For confidentiality reasons, the applicant in this case is referred to as “XHGB”.  The applicant applied to the respondent for a Disability Support Pension (“DSP”) on 4 September 2012.  With the application came a medical report of the applicant’s treating doctor (Dr Geoffrey White) dated 4 September 2012.  Following a Job Capacity Assessment the application was rejected by the respondent and affirmed by the Social Security Appeals Tribunal (“SSAT”).  The applicant has applied to this Tribunal for review of the decision of the SSAT. 

2. At the hearing, the applicant was represented by Ms Amanda Tsoundarou (from The Welfare Rights Centre) and the respondent was represented by Mr C Visser (from the Program Litigation and Review Branch, Department of Human Services).  I admitted into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

   [1] Exhibit R1.

   ·a bundle of summonsed documents received from Dr S Litt, Ms Jillian Scott and the Western Community Mental Health Team;[2]

   ·a copy of a letter from the applicant’s father dated 25 December 2014;[3]

   ·a copy of a letter from Mr Jonathan Thrippleton, Interwork, dated 5 February 2015;[4]

   ·copy of a report from Dr Rohan Dhillon, Psychiatrist, dated 19 June 2009;[5]

   ·a copy of a letter from Ms Susan Glennon, Nurse Practitioner Candidate, dated 14 January 2011;[6]

   ·a copy of a letter from Ms Jillian Scott, Registered Psychologist, dated 12 January 2009;[7]

   ·a copy of a Job Capacity Assessment report dated 12 February 2014;[8]

   ·a copy of a CBIS Consumer Summary (17 pages) from Western Acute Crisis and Intervention Service printed on 3 September 2014;[9]

   ·a copy of a letter from Dr Geoffrey White dated 14 October 2013;[10] and

   ·a copy of a letter from Ms Lina Sohner, Psychologist (Western Wellbeing), dated 19 December 2012.[11]

   [2] Exhibit A1.

   [3] Exhibit A2.

   [4] Exhibit A3.

   [5] Exhibit A4.

   [6] Exhibit A5.

   [7] Exhibit A6.

   [8] Exhibit A7.

   [9] Exhibit A8.

   [10] Exhibit A9.

   [11] Exhibit R2.

   ISSUE FOR THE TRIBUNAL

3. The legislation that mainly applies in this case is s 94 of the Social Security Act 1991 (“Act”). The issue for the Tribunal, in relevantly considering s 94 is whether the applicant was qualified to receive DSP on the date of her claim, being 4 September 2012, or within 13 weeks thereafter, that is by 4 December 2012 (“Claim Period”).

4. In respect of the Claim Period, the respondent accepted that the applicant had a physical, intellectual or psychiatric impairment.  The respondent did not accept:

   (a)that the impairment attracted an impairment rating of at least 20 points under s 94(1)(b) of the Act; and

   (b)that the applicant had a “continuing inability to work”, because of her impairment, within the meaning of s 94(1)(c)(i) and ss 94(2), (3B), (4) and (5) of the Act.

   LEGISLATION

5. The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:

   “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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d) the person has turned 16; and

   (da) in a case where the following apply: 

   (i) the person is under 35 years of age;

   (ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii) if the person has one or more dependent children–-the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e) the person either: 

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

   (A) is not an Australian resident; and

   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea) one of the following applies: 

   (i)    the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.

   (2)  Continuing inability to work

   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: 

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) -- the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)   in all cases --either: 

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:  For work see subsection (5).

   (3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

   (a)   the availability to the person of a training activity; or

   (b)the availability to the person of work in the person's locally accessible labour market.

   ...

   (3B)     Severe impairment

   A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table.  The person has a severe impairment.

   Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table.  The person has a severe impairment.

   Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables.  The person does not have a severe impairment.  

   (3C)Active participation in a program of support

   A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   (4)Doing work independently of a program of support

   A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person: 

   (a) is unlikely to need a program of support; or
   (b) is likely to need a program of support provided occasionally; or
   (c) is likely to need such a program of support that is not ongoing.

   (5)       Other definitions

   In this section: 

   …

   program of support means a program that:

   (a)is designed to assist persons to prepare for, find and maintain work; and

   (b)either;

   (i)is funded(wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

   (a) education;

   (b) pre-vocational training;

   (c) vocational training;

   (d) vocational rehabilitation;

   (e) work-related training (including on-the-job training).

   work means work: 

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person's locally accessible labour market.

   …”

6. Also relevant in these proceedings is clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“Administration Act”), (when read with s 42 of the Administration Act), which clause reads:

   “4  Start day—early claim

   (1)  If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

   …”

   SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)

7. The Impairment Tables were previously set out in Schedule 1B to the Act. The rules for applying the Tables are now contained in Part 2 of the Determination, which relevantly reads:

   “6.      Applying the Tables

   Assessing functional capacity

   (1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   Note:For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3)An impairment rating can only be assigned to an impairment if:

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

   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.

   Permanency of conditions 

   (4)For the purposes of paragraph 6(3)(a) 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 fully 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. 

   Fully diagnosed and fully treated 

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (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.

   Fully stabilised 

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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).

   Reasonable treatment

   (7)For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a)     is available at a location reasonably accessible to the person; and

   (b)     is at a reasonable cost; and

   (c)   can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)     is regularly undertaken or performed; and

   (e)   has a high success rate; and

   (f)   carries a low risk to the person.

   …”

   BACKGROUND

8. When the applicant lodged the claim for DSP, the accompanying medical report from her treating doctor listed obsessive compulsive disorder as the condition that had a significant impact on the applicant’s ability to function.  Dr White left blank the question in the report that listed a second medical condition.  Instead, he noted that the applicant’s condition of GORD was generally well managed and caused minimal or limited impact on ability to function.  A Job Capacity Assessment was conducted on 10 September 2012.[12]  The assessor considered the applicant’s obsessive compulsive disorder to be fully diagnosed, but not fully treated and stabilised.  Thus, no impairment points could be assigned under the Impairment Tables.  The applicant’s GORD was fully diagnosed, treated and stabilised, but 0 impairment points were assigned.  The applicant’s capacity to work within two years with intervention would be 15-22 hours per week.  The assessor noted that he had discussed the applicant’s obsessive compulsive disorder with Dr White who reported that a Medicare Mental Health Care Plan had been developed and the applicant had been referred to Ms Lina Sohner, psychologist, with Health First Network.

   [12] Exhibit R1, T9 pages 79-85.

9. The applicant was diagnosed with obsessive compulsive disorder in 2008.  Particulars relating to the diagnosis were not available, but it was confirmed by a psychiatrist (Dr Rohan Dhillon) in 2009.  In his report, Dr Dhillon stated:[13]

   “…

   I agree with the diagnosis that the applicant was suffering from an Obsessive Compulsive Disorder, (OCD) which was an Anxiety Disorder.  There was also the possibility she has a comorbid Major Depressive Disorder.  I suspect the applicant was both psychologically and biologically vulnerable to develop mental health problems, as highlighted previously.  The culmination of stressors in her life, especially since returning back from her overseas trip likely served as major life events, which culminated in her developing her Anxiety and Mood Disorder.

   …”

   [13] Exhibit A4.

10. Since the confirmation of her mental health condition, the applicant has seen several psychologists and mental health practitioners.  These include Ms Jillian Scott, registered psychologist, for at least eight sessions under a mental health plan, and Dr Sandy Litt, psychologist, for at least six sessions under a mental health plan.[14] 

    [14] Exhibit R1, T15 page 176

11. On 28 June 2013 after the applicant’s DSP claim had been rejected, an Authorised Review Officer (“ARO”) of the respondent reviewed and affirmed the rejection decision.  On 18 September 2013, the SSAT reviewed and affirmed the decision under review.

    EVIDENCE

    Evidence of the Applicant

12. It was the applicant’s evidence that she had undertaken a traineeship with a florist and in 2009 had been made redundant.  She said she found the work a lot harder and different to what she expected.  In 2012, her medication consisted of Paroxetine, and then later Valproate.  She had lived with her mother for a period and then with her father.  She also lived with a friend (Mr Sam Squires) but, for financial reasons, they had to separate.  She said her obsessive compulsive disorder (“OCD”) was quite stressful and was often caused by triggers, such as repetitive tasks, concentration and reading problems.  She was especially distressed by her thought patterns, more-so than the triggers that occurred.  Her OCD was stressful all the time and was something she could not ignore.  The condition at present was what her OCD was like in 2012. 

1. The applicant said that there were times when she did not want to go to work and would talk through her problems with her mother or father.  In 2010 and 2011 she obtained assistance from various medical sources, including Western ACIS and Nurse Practitioner candidate Susan Glennon.  She said she also obtained assistance for a lengthy period from Interwork and Mr Jonathan Thrippleton.  She took part in the NEIS program through Centrelink and was involved in art work, in making and attempting to sell T‑shirts.  This undertaking was unsuccessful because she had social problems in dealing with potential customers.  She said she had a few friends, but the friendships she developed were limited because she found she was unable to talk to people when she was by herself and her social skills depended on how stressed she was.

2. The applicant was supported by her father, who provided her with accommodation.  She did work around the house, such as painting the walls and looking after plants.  When her father was away, her mother provided support and assisted her in attempting to undertake potential work commitments, such as at Bunnings Warehouse.  When she was asked why she wanted DSP, she said it was for financial reasons and was less stressful.  She preferred not having to look for work and wanted a rest.  She said she felt hopeless and wanted to get rid of her OCD symptoms, and in dealing with the condition she was doing the best she could.

3. In cross-examination by Mr Visser, the applicant said that she had been involved in the organisation of an enterprise called “South Orient”, which had been part of her NEIS program.  Other people had assisted her in the program, but she was proud of her own achievements.  She said she was able to organise her involvement in the NEIS program, but fell down when deadlines in it were involved.  She said she also tried to work in pizza deliveries and she stuck through it for as long as she could.  However, ultimately she was only able to continue for one day in the work.  When asked about her medication, she said she had taken Abilify, but more recently her medication had been Paroxetine and Valproate.  She said she felt Paroxetine and Valproate had been the best combination of medication for her.  Another option had been Prozac, but she had been unable to take this medication at an acceptable level. 

4. In re-examination by Ms Tsoundarou, the applicant said that her involvement in the NEIS program had been for as often as she was able to.  She used the other people to help her and she paid them for their services.  In relation to her medication, she said that she would take it when her doctors suggested that she do so, and where there were changes in medication there would also be changes in the practitioners she attended.

   Evidence of Mr Squires

5. It was Mr Squires’ evidence that he had known the applicant for about ten years.  They had become engaged in 2011.  For a time, he lived with the applicant at her father’s home, then elsewhere together in shared accommodation for about ten months.  He said that when the applicant experienced mental health problems, he would talk through things with her until her condition improved.  He said he would have to do this a lot of the time, but he had his own problems and would often become distressed himself.  He was able to go with the applicant into public places, but not to parties where there were other people.  He said the applicant was shattered after she attempted to work.  She would initially be excited, but after a few days she would struggle and could see that the work was not going to happen.  She was often in tears when thoughts came back to her.  She had one or two friends, but she had strange relationships with them.  He said that he and the applicant did not have joint friends.  In relation to the OCD, he said there had been some changes in her condition.  However, with her OCD her thoughts often involved nasty images and ideas. 

6. In cross-examination by Mr Visser, Mr Squires said there had been little improvement in the applicant’s self-esteem and that she had lost weight between 2010/2011 and the present.  He said he had an on-off relationship with her.  It was on again in September 2012, but then ended in 2013.  He said at one stage he had caught up with her on the OASIS dating website.  Socially, he said that he was with the applicant every couple of weeks.  However, he had his own problems and he could not be with her any more.  When he shared a house with the applicant, there were about five people involved.  They were in their twenties and one was about 35.  In relation to the applicant’s social environment, he said that nothing came to mind between September and December 2012.  He said he did not like drinking with the applicant as she would walk off and have arguments with other people.  

   Evidence of the Applicant’s Mother

7. In giving her evidence, the applicant’s mother said that her daughter had lived with her for a while, when finishing her Masters Degree and when she worked at the florist.  She said this was in 2009.  Around that time, the applicant was 24 years of age and her mother had been overseas.  She noticed that the applicant had been overly stressed by her studies and then when she tried to work at the florist.  She said that, after work, the applicant was exhausted at night and people could tell that she wasn’t coping.  The applicant’s symptoms now were more severe than when she worked at the florist. 

8. The applicant’s mother said the applicant had lived with her at Prospect and she had been trying to work out her daughter’s problems.  However, the applicant became angry with her and she moved to live with her father, and then with Mr Squires.  She said that there was a significant change in the applicant while she lived with her.  She was capable of looking after herself, but she had to rest.  She had trouble on public transport, could not read strangers’ behaviours and became frightened and anxious.  She found difficulty in travelling to unfamiliar places, which depended on whether she was anxious at the time.  As to the applicant’s concentration in 2012, she said this depended on her level of anxiety at the time.  As to the applicant’s NEIS business, the mother said that her daughter became frustrated because she could not sell it.  This was because of the amount of debt involved.  This process took a long time, at the end of the applicant’s study.

9. In cross-examination, the applicant’s mother said that her daughter had travelled to Sydney to attend a family wedding.  However, it had been necessary for her to remain in a quiet, dark room there.  She said that, when living with Mr Squires, the applicant was losing her self-esteem and could not cope in working with a group.  She said that things would set her daughter off, such as having to go somewhere with a stranger. 

   Evidence of the Applicant’s Father

10. It was the father’s evidence that when the applicant returned from overseas her parents were divorcing and she suffered a breakdown.  She had been fruit-picking interstate and had worked with others in Turkey.  After this, the applicant was helping him at home.  He was getting over his own problems at the time.  He said that, in 2008, the applicant was aggressive and he did not recognise her as his daughter.  She was inward, but she still performed some tasks at home, like painting the fence.  She did not like doing dishes and would stock-pile them.  Nor did she turn off electric lights and the big jobs at home were left to him.  The father said that when his daughter suffered OCD episodes, she would go to her bedroom and he would help her go through them.  He said that his daughter was dysfunctional and did not socialise.  She had no friends as most of them were married.  He said she was aware of her condition and there was “covering up”.  She attempted to work, but no one would employ her.  When she became depressed she would go to bed and spend time there.  In referring to his witness statement, he said that he had helped his daughter and the help was reciprocal.  In relation to the NEIS scheme, he told his daughter that she should not do it.  Nevertheless, she struggled on and had help in doing the work.  He said his daughter’s work ethic was good – she acted in a professional way, but at her own pace. 

11. In cross-examination by Mr Visser, the father said that his daughter was living with him in 2012.  He said she helped him around the house as much as she was able to.  When he worked at home, he would ask his daughter to watch him, but she did not watch for long.  He said his daughter got on very well with the psychologist, Ms Lina Sohner, and that there had been improvement in her condition. 

    CONSIDERATION

    Is the applicant qualified to receive DSP during the Claim Period from 4 September 2012 to 4 December 2012?

12. In order to qualify for DSP, the applicant must satisfy the relevant requirements of s 94 of the Act. In the case of DSP, it is implicit in clause 4(1) of Schedule 2 to the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports that relate to the period before the claim period or which come into being after the claim period might still be relevant, but only insofar as they are referable to an applicant’s condition(s) during the claim period. This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations.[15]  The learned Judge stated (in paragraph 1) that, as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.” Thus, the primary question in the present case is whether the applicant satisfied the relevant criteria in s 94 of the Act at any time during the Claim Period, rather than whether those criteria existed prior to or after the Claim Period (see Fanning v Secretary, Department of Social Services at [31]).[16] 

    [15] [2007] FCA 404.

    [16] [2014] AATA 447.

13. One of the relevant criteria for DSP is whether the applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see s 94 (1)(b) of the Act). In this regard, the rules for applying the Impairment Tables in Part 2 of the Determination are relevant. Subsection 6(3) to subsection 6(6) of Part 2 relevantly require that:

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

    (b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and

    (c)the condition is fully stabilised if 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 two years.

14. As part of her DSP claim, the applicant lodged a medical report that was completed by her treating doctor (Dr Geoffrey White).  The report listed obsessive compulsive disorder as a condition that had significant impact on the applicant’s ability to function.[17]  Dr White indicated that the applicant had been suffering from this condition since 2009, and although the details were unavailable it appears it was diagnosed as such in 2008.  Dr White also noted that the applicant’s condition of GORD was generally well-managed and caused minimal or limited impact on ability to function.

    [17] Exhibit R1, T7 p 71.

15. In the Job Capacity Assessment report dated 10 September 2012 the assessor assessed the applicant’s obsessive compulsive disorder as fully diagnosed, but not yet optimally treated or stabilised.  The applicant had been referred for further psychological treatment/intervention.  The assessor reported:[18]

    “… In telephone discussion with Dr White (12/9/12) he reports the client experienced a psychotic episode in February 2011, she was admitted into a psychiatric ward (but did not know which hospital) where she was diagnosed with Obsessive Compulsive Disorder.

    Treatment:  Treating Medical Report by Dr White (4/9/12) reports the client is currently prescribed Paroxetine (anti-depressants, anti-anxiety agents). Dr White (4/9/12) further reports client received psychiatric treatment through Western ACIS.

    In telephone discussion with Dr White (12/9/12) he reports a Medicare Mental Health Care Plan was developed and the client has been referred to Ms Lena Sohner,[sic] Psychologist with Health First Network.  The client’s first appointment with Ms Sohner was scheduled for the 12/9/12. …”

    [18] Exhibit R1, T9 p 80.

16. I note that in reviewing the decision to reject the applicant’s claim for DSP, the ARO found that the applicant’s condition of OCD could not be considered permanent.  The OCD was not fully treated and stabilised at the time of the applicant’s claim for DSP and therefore could not be assigned an impairment rating.  The ARO agreed with the original assessment for the applicant’s GORD and that the condition should be assigned 0 impairment rating points under Table 10.

17. In reviewing the applicant’s claim, the SSAT had much to say in its decision about her illness and about her changed medication.  Ultimately, what the SSAT said included the following:[19]

    “… At the date of claim the Tribunal also notes that the applicant had been referred for psychological counselling, which she had not yet attended.  The applicant told the Tribunal she then only attended a single session because she felt it would not be of any benefit to her as she had been through numerous psychological therapies in the past.  Dr White in his letter dated 11 September 2013 said that the applicant had attended 12 visits to a psychologist and the Tribunal is uncertain whether Dr White is referring to previous treatments rather than the referral to the psychologist he organised in 2012.  The Tribunal is required to make a decision on the applicant’s eligibility for DSP on 4 September 2012 and it agrees with the JCA that at that time the applicant was awaiting further psychological counselling.  The Tribunal also notes that she had not yet been prescribed Valproate, so there existed the possibility of further improvements within the following two years with both these modalities of treatment.  The most recent letter from Dr White, dated 11 September 2013, confirms that psychological treatment is now completed, the applicant is maintained on Paroxetine and Valproate, she has now completed all therapy, her condition has been maximally treated and she remains unable to work.  Therefore the Tribunal is of the opinion that at the current time the applicant’s condition is fully treated and fully stabilised but this was not the case at the time of her claim for DSP on 4 September 2012.  The applicant may therefore choose to retest her eligibility with a new claim for DSP.  [Emphasis added]

    …”

    [19] Exhibit R1, T2 p 20-21.

18. Ms Tsoundarou submitted that the applicant’s condition of OCD had been reasonably treated.  She had seen three different psychologists under mental health care plans and through Western Mental Health Services.  She had seen Nurse Practitioner Glennon, she had seen Dr Litt and she had seen Ms Scott.  She had also undertaken a long period of time where she had been on psychological interventions, she had undertaken hypnosis, cognitive behavioural therapy, and she had tried neuropathy.  Ms Tsoundarou further submitted that the applicant was being reasonable treated even before 4 September 2012.  It may be that, even before the date of her claim, the applicant’s condition of OCD was being reasonably treated.  In paragraph 34 of her statement of facts, issues and contentions, Ms Tsoundarou analysed the functional impact on activities involving a persons mental health function.  As the applicant had been diagnosed with a “fairly severe obsessive compulsive disorder” by Ms Jillian Scott and given how she had presented to her various treating professionals, Ms Tsoundarou submitted that all this warranted a rating of 20 points under Impairment Table 5.  However, in my view on the evidence, this is not equivalent to a severe impairment under that Table and, as submitted for the respondent, a rating of 10 points may be more appropriate.  As was said by the SSAT:[20]

    “…

    In summary, the Tribunal has considered the evidence and finds that the applicant’s OCP [sic] was not fully treated and fully stabilised on 4 September 2012 at the date of her application for DSP and so it could not consider the allocation of points from Impairment Table 5, mental health function.  Despite this, the Tribunal considers that the applicant would not meet the criteria for 20 points for a severe functional impairment under Impairment Table 5, mental health function.

    …”

    [20] Exhibit R1, T2 p 21.

19. Mr Visser suggested that none of the applicant’s treating professionals had supported her claim for DSP.  He pointed to the fact that Dr White, Dr Litt and Ms Scott were not willing (or able) to give evidence.  He referred to Nurse Practitioner Glennon when she said:[21]

    “The applicant asked me if I would support her in an application for a DSP.  I told her that while I would support her for a Centrelink Sick Certificate I could not support her for a DSP because she is too bright and talented and I would not want her to be discriminated against in the future.  She accepted this explanation.”

    Ms Tsoundarou submitted that Mr Visser’s suggestion was incorrect.  The applicant’s treating professionals were too busy to attend the hearing and Nurse Practitioner Glennon’s comment was designed to help the applicant to stay positive and for her not to suffer discrimination in the future.  Given my experience, where the evidence of treating professionals is involved and having regard to the circumstances of Nurse Practitioner Glennon’s comment, I agree with Ms Tsoundarou’s submission. 

    [21] Exhibit A8, page 11 of 17.

20. In relation to the evidence of other treating professionals, I note that Dr White had provided support to the applicant in relation to her DSP claim. He did this in a letter dated 11 September 2013,[22] and later in a further letter dated 14 October 2013.[23]  Although it appears that Dr White was seeking to support the applicant’s DSP claim, his letters were significantly later than the Claim Period and were of little relevance.  Moreover, in his report dated 19 June 2009, Dr Dhillon suggested other SSRI anti-depressants that could be effective for the applicant’s OCD if Paroxetine was not effective in achieving a complete remission.  For her own reasons, the applicant was not willing to experience some of these other options.

    [22] Exhibit R1, T10 p 86.

    [23] Exhibit A9.

21. Although the applicant had undertaken some treatment prior to claiming DSP, during the Claim Period her medications had been changed and she had been recommended to undertake an intensive course of counselling.  Of particular importance was the treatment given by Ms Lina Sohner, psychologist.  In her report dated 19 December 2012, Ms Sohner said:[24]

    “… Throughout therapy we have been able to work on the above issues and the applicant has reported being empowered to end her relationship with her partner of 18 months and place boundaries with her family.  Further to this we have worked on trust issues and ability to protect herself so as she no longer experiences feelings of helplessness.

    The applicant has reported that all of her OCD symptoms have been alleviated and she has not engaged in ritual behaviours associate with this for the past 8 weeks or so.  She reports that she believes that the OCD is no longer an issue for her.  She also reports that her Depression has been alleviated and she no longer has any suicidal thoughts and has a positive outlook for the future.  Her K10 results reflect her alleviation of her distress levels from high moderate levels to low mild levels…”

    [24] Exhibit R2.

    Analysis of the Evidence at the Hearing

1. In appearing before me, the applicant was initially very reserved and lacked confidence in giving her evidence.  As one would expect, she was nervous and had difficulty in answering questions clearly. Eye contact with the questioner was often poor.  After a lengthy break out of the hearing room and before being cross-examined, her demeanour changed and she found it easier to respond.  She acknowledged that she had had obsessive thoughts about wanting to harm someone or wanting to trip them up when passing in the street, but she said now she would not do this.  It was obvious to me that OCD was still an issue for her now.  However, there was material before me which suggested that between September and December 2012 her OCD symptoms had reduced or been alleviated.           

2. Mr Squires said he would talk through the applicant’s mental health problems with her, but as he had his own problems at the time he became distressed himself.  The inference was that his help might have been limited.  He said that there had been some changes in the applicant’s OCD, but he was unable to explain when these changes took place.  He had an on-off relationship with her – it was on in September 2012 and then ended in 2013.  He wasn’t able to say what her condition was like between September and December 2012.     

3. The applicant’s mother had difficulty in remembering dates.  She had no memory of what her daughter’s OCD was like between September and December 2012.  She said her daughter had difficulty travelling and she would be “set off” if she had to go somewhere with a stranger.  Overall, the mother’s evidence was of little assistance to the applicant’s case. 

4. The applicant’s father also had difficulty in remembering dates.  He could not remember what his daughter’s OCD was like between September and December 2012.  He said she was inward, but still helped him around the home.  He did say that she got on very well with Ms Lina Sohner, psychologist and that there had been improvement in his daughter’s condition.  Overall, the father’s evidence was also of little assistance to the applicant’s case.  

   CONCLUSION

5. On the evidence, the applicant’s OCD was not fully treated and stabilised during the Claim Period.  In these circumstances, it cannot be accorded an impairment rating under the Impairment Tables.  Ms Tsoundarou submitted that, for the reasons outlined in paragraph 30 above, the applicant’s OCD condition warranted a rating of 20 points under Impairment Table 5.  As I have said, the condition is not equivalent to a severe impairment under Impairment Table 5 and a rating of 10 points may be more appropriate. 

6. The applicant’s present claim cannot succeed. She is not qualified to receive DSP because she did not satisfy s 94(1)(b) of the Act during the Claim Period.

7. Having so decided, it is not necessary for me to consider whether she also had a continuing inability to work.

   DECISION

8. For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

.....................[Sgd]...................................................

Administrative Assistant

Dated 2 April 2015

Date(s) of hearing	5 and 6 March 2015
Advocate for the Applicant	Ms A Tsoundarou
Solicitors for the Applicant	Welfare Rights Centre (SA) Inc
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services