XVYL and Secretary, Department of Social Services (Social services second review)
[2021] AATA 5294
•24 November 2021
XVYL and Secretary, Department of Social Services (Social services second review) [2021] AATA 5294 (24 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3436
Re:XVYL
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Member Dr J Henderson
Date:24 November 2021
Place:Perth
The Tribunal sets aside the decision under review and substitutes it with a decision that the Applicant satisfied the requirements of s 94 of the Social Security Act 1991 as at 20 August 2019.
.........[Sgd]...............................................................
Member Dr J Henderson
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification period – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – anorexia nervosa - whether Applicant has a continuing inability to work – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth) – s 94(1), 94(2)
Social Security (Administration) Act 1991 (Cth) – Sch 2, Part 2, Clause 4
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – rules 6, 10–11
CASES
Casey v Repatriation Commission [1995] FCA 1620
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
HGGJ and Comcare (Compensation) [2020] AATA 136
SECONDARY MATERIALS
C Emborg, ‘Mortality and Causes of Death in Eating Disorders in Denmark 1970-1993: a Case Register Study’ (1999) Int J Eat Disord 25
AS Guarda, ‘Treatment of Anorexia Nervosa: Insights and Obstacles’ (2008) Physiol Behav. 94
EC Harris and B Barraclough, ‘Excess Mortality of Mental Disorder’ (1999) Br J Psychiatry 173
B Herpertz-Dahlmann ‘Adolescent Eating Disorders: Definitions, Symptomatology, Epidemiology and Comorbidity (2009) Child Adolesc Psychiatr Clin N Am.18
PS Mehler and M Krantz, ‘Anorexia Nervosa Medical Issues’ (2003) J Womens Health 12
S Nielsen, ‘Epidemiology and Mortality of Eating Disorders’ (2001) Psychiatr Clin North Am. 24
PF Sullivan, ‘Mortality in Anorexia Nervosa’ (1995) Am J Psychiatry 152
Westmoreland et al, ‘Medical Complications of Anorexia Nervosa and Bulimia’ (2016) 129 American Journal of Medicine 30
REASONS FOR DECISION
Member Dr J Henderson
24 November 2021
INTRODUCTION
The decision under review is a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 6 May 2020 (the Reviewable Decision), to affirm the decision of Services Australia (the Agency) to reject the Applicant’s claim for disability support pension (DSP).
BACKGROUND
On 20 August 2019, the Applicant lodged a claim for DSP with the Agency (T24/162).
On 21 November 2019, a delegate of the Agency rejected the Applicant’s claim for DSP, on the basis that she did not have an impairment rating of 20 points or more, pursuant to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination) (the Original Decision) (T30/190).
The Applicant sought review of the Original Decision through the Agency. On 28 January 2020, an authorised review officer (ARO) affirmed the decision to reject the Applicant’s claim for DSP (T34/196). The ARO found that:
(a)The Applicant had two permanent conditions: “mental health disorder and autoimmune neutropenia”;
(b)The Applicant’s conditions of “osteoporosis, fractures and crush injuries, hyperthyroidism and irritable bowel syndrome” were not fully treated and stabilised;
(c)The Applicant did not have an impairment rating of 20 points or more.
6. On 8 March 2020, the Applicant lodged an application for review with the AAT1.
On 6 May 2020, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP (T2/21). The AAT1 found that:
(a)The Applicant’s ‘mental health problems including anorexia and depression’ resulted in a mild impairment of mental health function, warranting 5 points from Table 5;
(b)The Applicant’s autoimmune neutropenia had no significant functional impact and warranted no impairment points; and
(c)None of the Applicant’s other complaints, including osteoporosis, could be considered fully treated and fully stabilised, and therefore could not be considered for an impairment rating.
On 8 June 2020 the Applicant lodged an application for review with the Administrative Appeals Tribunal – General Division (T1).
ISSUE
The issue in this matter is whether the Applicant was qualified for DSP on the day she lodged her claim, 20 August 2019, or within 13 weeks thereafter, 19 November 2019 (the Qualification Period). This requires consideration of whether the requirements set out in s 94 of the Social Security Act 1991 (the Act) are met; in particular:
(a)whether the Applicant had any physical, intellectual or psychiatric impairments;
(b)if so, whether the Applicant’s impairment(s) were of 20 points or more under the Impairment Tables Determination; and
(c)if so, whether the Applicant had a continuing inability to work.
It is not in dispute that the Applicant suffered from impairments during the relevant period, and that s 94(1)(a) is satisfied.[1] The dispute between the parties is as to the quantum of impairment pursuant to the Impairment Tables Determination, and whether the Applicant is subject to Program of Support (POS) requirements, which would impact the Tribunal’s finding on whether she had a continuing inability to work, as defined.
[1]Respondent’s Closing Submissions [4.1]
LEGISLATION AND POLICY
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act); the Social Security (Administration) Act 1999 (the Administration Act); the Impairment Tables Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The relevant policy is contained in the Social Security Guide (the Guide). The Tribunal accepts that to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons for departing from it.[2]
[2]Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
A person qualifies for the DSP if the criteria in s 94 of the Act are satisfied. The relevant criteria for the purposes of the decision under review are that the person:
(a)has a ‘physical, intellectual or psychiatric impairment’ (s 94(1)(a));
(b)
has an impairment rating of 20 points or more under the Impairment Tables
(s 94(1)(b)); and
(c)has a continuing inability to work (s 94(1)(c)(i)).
The qualification criteria set out in ss 94(1) of the Act are conjunctive, and each element must be satisfied before a person can be accepted to be qualified for DSP.
THE HEARING AND EVIDENCE
The hearing was held at the Tribunal on 21 July 2021. The Applicant appeared in person, assisted by her mother (the Applicant’s Mother). The Respondent was represented by Ms L Hannigan, a seconded lawyer for the Agency who appeared by video conference via Microsoft Teams.
At the conclusion of the hearing, the Tribunal made Directions for the filing of written closing submissions. The Respondent filed submissions dated 9 August 2021 (Respondent’s Closing Submissions). The Applicant filed submissions dated 23 August 2021.
The Tribunal has before it the following:
·a report of Dr Hrehan Hakeem, Psychiatrist, to Dr Jing Li, General Practitioner (Dr Lin) dated 9 March 2020;[3]
[3]Exhibits A1 and R2
·a report of A/ Prof Chan Cheah, Haematologist dated 12 February 2020;[4]
[4]Exhibit A2
·a bundle of medical documents from the Applicant,[5] including:
[5]Exhibit A3
oDr Lin’s correspondence with regards to Centrelink dated 12 February 2021;
oDr Lin’s referral to Fremantle Alma St (Mental Health Clinic) dated 17 September 2020;
oDr Lin’s referral to Fiona Stanley Hospital dated 30 July 2020;
oMedical Certificate prepared by Dr Lin for Centrelink, dated 31 January 2020;
oFiona Stanley Hospital emergency summary dated 23 September 2019;
oMental Health Assessment Review of Dr Jeff Pelc (Dr Pelc) dated 28 August 2019;
oMental Health Care Plan (eating disorder) completed by Dr Lin dated 10 December 2020
oMental Health Assessment Review of Dr Pelc dated 30 October 2019;
oFremantle Hospital Mental Health Outpatient Clinic reports of Dr Pelc dated 25 February 2019 and 19 March 2019;
oDr Lin’s review notes from 1 August 2019 to 23 January 2020;
oInspire Psychology, Kessler Distress Scales dated 27 October 2017, 05 January 2018, 12 April 2018 and 22 September 2018;
oReport of Shelley Tipene, Registered Psychologist of Inspire Psychology, dated 27 October 2017.
oReport of Dr Zhu, Endocrinologist dated 29 November 2019;[6]
·the Respondent’s Statement of Facts Issues and Contentions; and
·Documents filed by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).[7]
[6]Exhibit R4
[7]Exhibit R1
The Applicant gave evidence during the hearing, as did the Applicant’s Mother.
The Respondent did not call any witnesses.
The Tribunal found both the Applicant and the Applicant’s Mother to be credible, forthright witnesses, who stood up well under cross examination. The Tribunal accepts their evidence to the extent that it comprises their observation and their experience of the Applicant’s medical condition and impairments.
Neither party called any of the treating practitioners to give evidence, although both relied on their written evidence. Neither party adduced evidence of any independent expert.
In the absence of any expert medical evidence, the Tribunal has informed itself on the Applicant’s anorexia nervosa by reference to expert articles published in peer-reviewed medical journals.[8] A complete list of the medical articles to which the Tribunal has had regard appears at the front of this decision.
[8]Casey v Repatriation Commission [1995] FCA 1620 p 38 (Hill J); HGGJ and Comcare (Compensation) [2020] AATA 136 [50].
The Respondent contends that, during the qualification period, the Applicant’s impairments did not attract a rating of 20 or more points under the Impairment Tables. The rationale for the Respondent’s contention is set out at [4.3]-[4.5] of the Respondent’s Closing Submissions in the following terms:
4.3Section 6(3) of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent; and the impairment that “results from” that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
4.4The terms ‘impairment’ and ‘condition’ are defined in section 3 of the Impairment Tables:
(a) ‘Impairment’ means ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’.
(b) ‘Condition’ means ‘a medical condition’.
4.5The medical evidence indicates the Applicant’s condition of anorexia nervosa has likely led to other conditions, including osteoporosis and neutropenia (Exhibit A3 – ‘Haematologist – Dr Chan Cheah’). However, it is important to note that ‘anorexia nervosa’, ‘osteoporosis’ and ‘neutropenia’ are all separate medical conditions. Whilst one condition may contribute or influence the severity of another condition, those conditions cannot be said to be merely symptoms of anorexia nervosa, they are stand-alone conditions which warrant their own separate diagnoses. This contention is supported by the fact the Applicant has attended different specialists for each condition (e.g. endocrinologist for osteoporosis and haematologist for neutropenia) and each condition requires different treatment regimes.
The Respondent also contends that none of the above assessments results in an impairment rating of 20 points and, in any event, no one table results in an impairment rating of 20 points, engaging the POS requirement. It is not in dispute that the Applicant has not fulfilled the POS requirement.
The Applicant was self-represented in the proceedings, and did not file a Statement of Facts, Issues and Contentions. The Applicant’s position at the hearing was that not enough weight has been given to the extent of the functional impact of her major health conditions, which are much greater than five points and include anorexia, depression, autoimmune neutropenia, and osteoporosis.
The Applicant submitted that the medical evidence before the Tribunal supported a finding that she met the medical requirements for a DSP. Implicit in the Applicant’s submissions was her view that all of her conditions should be considered, and that none of them should be regarded as impermanent.
CONSIDERATION
Qualification Period
The Applicant’s claim for DSP must be assessed on her medical conditions as at the date of claim, or within 13 weeks of that time (the Qualification Period). In this case, the Applicant’s qualification period is from 20 August 2019 to 19 November 2019.
The Applicant lodged her claim for DSP on 20 August 2019 (T24/162).
Schedule 2, Part 2, Clause 4 of the Administration Act provides:
4.(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.
Does the Applicant have a physical, intellectual or psychiatric impairment?
It is accepted that the Applicant has one or more physical, intellectual or psychiatric impairments for the purpose of s 94(1)(a), although the causation and characterisation of the impairments differ between the parties.
The Tribunal has considered each of the Applicant’s impairments below, in the context of the Impairment Tables.
Do the Applicant’s impairments attract 20 points or more under the Impairment Tables?
The Impairment Tables are found in Part 3 of the Impairment Tables Determination.
The Impairment Tables Determination provides that:
(a)impairment is based on an assessment of functional capacity (rule 6(1));
(b)the Tables may be applied following consideration of the person’s medical history (rule 6(2)); and
(c)a rating can only be applied to an impairment if the person’s condition is permanent (rule 6(3)(a)).
A condition is considered permanent if it is ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’, and ‘more likely than not, in the light of available evidence, to persist for more than
2 years’ (rule 6(4)(a)-(d)).The procedure for applying the Impairment Tables is clearly set out in the Impairment Tables Determination and includes:
(a)selecting Impairment Tables following the identification of a loss of function (rule 10(1));
(b)if a single condition causes multiple impairments, assessing each impairment under the relevant Impairment Table (rule 10(3); and
(c)not assigning an impairment rating for a particular impairment under more than one Impairment Table (rule 10(4)).
(d)The definition of stabilised (rule 6(6)) applies to the assessment of impairments ‘caused by conditions that have stabilised as episodic or fluctuating’ which must be assigned a rating based on their ‘overall functional impact’ (rule 11(4)).
Anorexia (anorexia nervosa)
It is not in dispute between the parties that the Applicant’s anorexia nervosa is fully diagnosed, treated and stabilised, and that position is supported by the medical evidence before the Tribunal. The Tribunal notes in particular the view of Dr Lin that the Applicant “has a very comprehensive advance [sic] eating disorder”,[9] which was first diagnosed in 2001.[10] The Tribunal further notes the record of the telephone interview between the Job Capacity Assessment (JCA) Assessor and Dr Lin, contained in the Job Capacity Assessment Report dated 20 November 2019 to the effect that the Applicant has engaged in all reasonable treatment and her condition has stabilised.[11]
[9]Record of surgery consultation with Dr Lin dated 10 October 2019 (GP review notes)
[10]Report of Dr Lin dated 29 November 2019 T1 p 7
[11]T29/180
The Impairment Tables are function-based, rather than diagnosis based, reflecting the intended purpose of assessing work-related impairment. The choice of which tables to use depends on determining what functional losses have occurred. A single medical condition may result in multiple functional impairments affecting different body systems.
The Tribunal considers that the appropriate tables within the Impairment Tables Determination for assessing impairments arising from the Applicant’s condition are Table 5, Mental Health Function and Table 10, Digestive and Reproductive Function.
Table 5 – Mental Health
The Secretary assessed the Applicant’s anorexia nervosa pursuant to Table 5. Table 5 is used where the person has a permanent condition “resulting in functional impairment due to a mental health condition”. Table 5 assessments are conducted by assigning a level of difficulty experienced in respect of “most of” the following:
(a)self-care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making; and
(f)work/training capacity.
Self-care and independent living:
(a)The Applicant was admitted to hospital on 5 November 2018 because she was suffering the effects of significant malnutrition in the context of her anorexia nervosa.[12] The admission was due to the intervention of the Applicant’s mother, who said:
[12]Fiona Stanley Hospital MDT & Treatment, Support & Discharge Plan for [the Applicant], dated 16 November 2018; T12/128
She was actually, when she was admitted, [her] body organs were failing and she was shutting down. So more or less, if it hadn’t have been for somebody to knock on her door and say we’re taking you to Fiona Stanley Hospital, she probably wouldn’t be sitting in the seat she is today, because that’s how far advanced she was. But that is anorexia nervosa. They cannot see it.[13]
[13]Transcript p 31
(b)The Applicant’s mother provided a photograph to the Tribunal of the Applicant’s appearance at the date of her 2018 admission.[14] It is strong corroborating evidence of how badly malnourished the Applicant was at that time. The Tribunal accepts the Applicant’s mother’s evidence that the Applicant was on the verge of death by starvation.
[14]Exhibit 4.
(c)The Applicant was treated at Fiona Stanley Hospital for 4 weeks. The treatment plan included bed rest, remaining seated in the shower and while brushing her teeth. During her admission, a nurse was required to monitor her intake and nasogastric tube at all times (including during showering and toileting).
(d)Prior to the Applicant breaking her leg in September 2019 (discussed further below), the Applicant’s parents were going to her home twice a week to check that she was eating, to check on her house and garden for her and to ensure that she had food.[15]
[15]Transcript p 33.
(e)The Tribunal finds that throughout 2019 the Applicant needed regular support to live independently with visits or assistance from her family at least twice per week. The functional impact of her mental illness on self-care and independent living was severe.
Social/recreational activities and travel:
(a)The Applicant’s evidence about her ability to engage with family, friends and the general public in 2019 was given in the following terms:
I’ll just give you what a good day versus a bad day looks like for me. My mind and mental state shifts up and down every day. I experience less anxiety and overwhelming fear when I am home and consider these as the good days. A bad day is heightened the day before and an appointment or commitment that I need to do attend to [sic] which gives me continuous state [sic] of feeling overwhelmed and feeling stressed.[16]
[16]Transcript p 15.
(b)The Applicant did not attend social events and was not able to sustain friendships.[17] Although she attributed this to her broken leg, the Tribunal finds that the cause of the Applicant’s social isolation was her mental health. In the Tribunal’s view, a broken leg does not prevent a mentally healthy adult from engaging in social interaction and friendship, although it might put some limitations on the types of social engagements that are available.
[17]Transcript pp 17-18.
(c)The Applicant described her anxiety to the Tribunal in the following terms:
My anxiety, I experienced great depths of anxiety on occasions like panic attacks prior to any engagements or social interactions. This includes medical appointments, social engagements, shopping, groceries and on every occasion before leaving my home I am constantly feeling misunderstood that results in my continual feeling of alienation and loneliness, leading to social isolation and lack of connection.[18]
[18]Transcript p 14.
(d)The Tribunal finds that the Applicant’s mental health condition had a severe functional impact on her ability to participate in social/recreational activities.
Interpersonal relationships
(a)The Applicant’s evidence at the hearing was that she had a very strong relationship with her parents and a close friend in 2019. She attracted the admiration of her lecturers at the floristry course.
(b)Although the Applicant’s mother described the Applicant as “stubborn”, she did not indicate any significant break down in their relationship as a result.
(c)The Tribunal finds that the effect of the Applicant’s mental health on her interpersonal relationships was that they were strained with occasional tension or arguments, imposing a mild functional impact.
Concentration and task completion
(a)The Applicant’s evidence during the hearing was that:
I don’t read novels. It would be a struggle to read one page before I just go off on a tangent and think of something else. So, yes, I find that my attention to detail, you know, just in concentration for long periods of time is really – I think my anorexia has really played a big part of that. Just the concentration levels. Yes. I – even – I – to do things at home, I’d set out a task but yet I would not complete that task. I’d start another one and then it might be a week later and I’d come back to the next – that task that I first originally started.[19]
[19]Transcript p 18.
(b)The Tribunal finds that the Applicant’s mental health condition has a severe functional impact on her ability to concentrate and complete tasks.
Behaviour, planning and decision making
(a)The Applicant’s evidence was that she had difficulties making decisions in relatively ordinary circumstances. She said:
So grocery shopping, I get heightened anxiety just getting there and making decisions.
You know, when I get – I get very confused and can’t make decisions and get in a state.
…
An example that recently happened was I get that confused about – in my shopping experience that I had to call my mum four times for her to – rationale. And it just helped me make a simple decision. Then I would get frustrated because, you know, it was such a simple task and, yes, I was that complicated and got my mind in a state of confusion and I get angry with myself, you know. I shouldn’t need to call my mum four times. It’s embarrassing really.
So yes, just a lot of things, making decisions. I just, you know, it’s not clear. It’s clouded…
(b)The Applicant was confident that this was a correct description of her state of mind during the Qualification Period, and not something that had come upon her since that date.
(c)The Tribunal finds that the Applicant’s mental health condition has a severe functional impact on her ability to make decisions or plan simple activities like meals.
Work/training capacity
(a)The Applicant enrolled in a floristry course in 2018. Her evidence about that course was given to the Tribunal at the hearing in the following terms:
For the first six months I was capable of doing but that’s all I would do. I wouldn’t be able to – I didn’t function in my house. It was just primarily – all I could do was self-hygiene, you know, personal care and do my assignments.[20]
[20]Transcript p 12.
(b)The Tribunal understands the Applicant to be saying that she was able to complete her floristry training by withdrawing from all other activities other than basic personal hygiene.
(c)The Tribunal concludes that if the Applicant had continued her usual personal routines she would not have been able to attend her education on a regular basis over a lengthy period because of her mental health condition.
(d)As it was, the Applicant only managed to complete 6 months of her floristry course before she deferred it.[21]
[21]Transcript p 24.
(e)The Applicant resumed her floristry in January 2019.[22] On 7 February 2019 Dr Lin provided an update to Fremantle Hospital that included that the Applicant’s weight was down to 47kg and that if she hit 45kg she would be involuntarily sent back to Fremantle Hospital by way of a community mental health order.[23]
[22]Transcript p 24.
[23]Report of Dr Lin dated 7 February 2019 T14/130
(f)The Applicant avoided an involuntary re-admission, but her evidence is that by June/July 2019 her health was deteriorating.[24] She nevertheless continued her studies.
[24]Transcript p 27.
(g)
In September 2019 the Applicant broke her leg. The Tribunal has dealt with the functional impact of her broken leg separately within the context of Table 10.
The loss of movement associated with the Applicant’s broken leg is not a mental health symptom and has been disregarded by the Tribunal in considering the impact of this Table.
(h)The broken leg complicates analysis of the functional impact of the Applicant’s mental health condition after September 2019.
(i)The Applicant was asked during the hearing how much of her difficulties after September 2019 were due to her broken leg, and how much was her mental health and she replied:
My leg was very painful. It was placed in the cast and it wasn’t healing. This impacted my mental health because I was a very physical person before then. A very active person and then to be – then stuck in a cast and not being able to do anything, you know, do my cooking from a chair. My functional capacity played a great part on my mental health to the point I was so depressed. I was so unhappy. I’d be crying every day. I’d be ringing mum every day.[25]
(j)The very severe impact of the broken leg on the Applicant’s mental health illustrates the extremity of the Applicant’s mental health condition. Without the aid of her mother, she was unable to mentally cope with a broken leg.
(k)Given the Applicant’s response to breaking her leg, the Tribunal has real doubts about her ability to manage everyday exigencies of the ordinary workplace or educational facility.
(l)The Tribunal finds that the Applicant’s mental health has a severe functional impact on her ability to engage in education.
[25]Transcript p 13.
The Tribunal finds that, following consideration of the above criteria, the Applicant’s mental impairment is consistent with an allocation of 20 points pursuant to Table 5.
Table 10 – Digestive and Reproductive Function
The Tribunal notes that anorexia nervosa is consistently reported as the psychiatric illness with the highest mortality rate.[26] The literature attributes the increased mortality rate to “the medical complications inherent to [anorexia nervosa]”.[27] The physical impact of anorexia nervosa on the body is responsible for the increased deaths, rather than there being a greater risk of suicide or risk associated behaviours.
[26][27]Westmoreland et al, Medical Complications of Anorexia Nervosa and Bulimia (2016) 129 American Journal of Medicine 30.
The primary physical impairments that the Applicant suffers are prolonged malnutrition and the effects of repeated purging of food from the body. The Applicant is described as suffering “chronic risk of complications secondary to malnourishment and low BMI”.[28]
The Applicant suffers (and has chronically suffered) severe vomiting and diarrhoea that are uncontrolled despite optimal medication, and which cause extreme weight loss. There is multi-organ involvement in the effects.[29]
[28]Report of Dr Hrehan Hakeem, Psychiatric Registrar, Fremantle Mental Health Service 9 March 2020 Annexure A1 to the Respondent’s SFIC.
[29]Record of surgery consultation 10/10/2019 (GP review notes).
Table 10 is to be used ‘where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions’ (emphasis added).
The introduction contains the following relevant statements:
•Digestive conditions may include diseases that affect the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus.
…
•Symptoms of digestive conditions include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue.
(emphasis added)
The Tribunal finds on the medical literature that anorexia nervosa is a disease that affects the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum and anus. It is distinguished from other mental health conditions, because it is a physically crippling disease.
The Tribunal gives significant weight to the medical literature in this regard, given the very consistent reporting of the physical impact of anorexia nervosa across all the peer-reviewed publications, the consistency with the evidence of the Applicant and her treating practitioners, and the absence of any expert evidence to the contrary.
It is clear from the Applicant’s medical notes that she has routinely presented with pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion and fatigue as a direct result of her anorexia nervosa.[30]
[30]See for example the report of Dr Zhu, Fiona Stanley Hospital, 29 November 2019 at Annexure A3 of the Respondent’s SFIC
The criteria for a 20-point rating pursuant to Table 10 is as follows:
There is a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least two of the following apply to the person:
(a)the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b)the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;
(c)the person’s condition may affect the comfort or attention of co-workers;
(d)the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.
The Tribunal considers that the symptoms and care needs associated with the Applicant’s chronic digestive issues expressly include the effects of osteoporosis, irritable bowel syndrome and autoimmune neutropenia.
The Tribunal notes the Respondent’s view that the use of different specialists to treat these different complications perhaps suggests that they are separate conditions. The Tribunal respectfully disagrees with that view. On 10 October 2019, Dr Lin recorded:[31]
[The Applicant] has a very comprehensive advance [sic] eating disorder with multi organ involvement
She has established osteoporosis/jyponatraemia/anaemia from the disease
Multi discipline approach is required
Recommend
-Disability pension
-Apply for NDIS
-Psychologist involvement is required (funding needed)
[31]Exhibit A3.
It is clear to the Tribunal that the different specialists to whom the Applicant was referred were part of a multi-disciplinary approach to treatment of a single disorder, being anorexia nervosa. The Tribunal finds that the Applicant’s osteoporosis, irritable bowel syndrome, and autoimmune neutropenia are symptoms that flow from her anorexia nervosa, because of the functional impact on the Applicant’s digestive system, and as such are appropriately taken into account in assessing the extent of the functional impact on the Applicant, pursuant to Table 10.
Osteoporosis
Osteoporosis is common in anorexia nervosa and is characterised in the medical literature as “the osteoporosis of anorexia nervosa”.[32] The exact etiologic factors involved in the loss of bone density in anorexia patients are unclear.[33] There are no treatments specifically approved for the osteoporosis of anorexia nervosa (compared with, for example, postmenopausal osteoporosis). Weight gain and resumption of menses are considered the primary treatments.[34]
[32]See Westmoreland et al (n 28).
[33]Ibid p 33.
[34]KK Miller, EE Lee, EA Lawson et al., ‘Determinants of skeletal loss and recovery in anorexia nervosa’ (2011) J Clin Endocrinol Metab. 91, 2931-2937.
According to the Oxford English Dictionary a symptom is “a (bodily or mental) phenomenon, circumstance, or change of condition arising from and accompanying a disease or affection, and constituting an indication or evidence of it; a characteristic sign of some particular disease.”[35] The osteoporosis associated with anorexia nervosa fits that definition. It is a symptom of prolonged anorexia nervosa.
[35]Oxford English Dictionary Online, accessed by the Tribunal on 11 October 2021.
Hormone replacement therapy (HRT) was considered as a possible treatment for the Applicant’s osteoporosis, on the basis that it might be linked to menopause, notwithstanding the test results suggesting the contrary.[36] However, the Tribunal accepts on the medical evidence that the Applicant’s osteoporosis is that of malnourishment associated with anorexia nervosa and not that of menopause.
[36]Ibid.
The Tribunal finds that the Applicant’s osteoporosis is a symptom of anorexia nervosa and, therefore, the care needs associated with it are care needs associated with anorexia nervosa. It follows that the impact of the Applicant’s occasional fractures on her ability to work are appropriately considered in assessing her impairment against the Table 10 criteria.
As of 29 November 2019, the Applicant was described as having had three fractures in the past twelve months, as a result of trips and/or falls.[37] On 23 September 2019 she suffered a break in her left lower leg (an undisplaced, comminuted proximal tibia fracture), not through a trip or fall, but by ‘just standing’.[38] Prevention of further fractures is clearly dependent on a very high level of caution by the Applicant, due to the increased risk of such injuries as a result of her osteoporosis.
[37]Report of Dr Zhu (n 31).
[38]Fiona Stanley Hospital Emergency Medicine Summary 23 September 2019; Referral from Dr Lin to Dr Ariadna Spatariu of Fiona Stanley Hospital, 30 July 2020.
The Applicant described the effect of her osteoporosis in the following terms:
…So my osteoporosis, this impacts my functional capacity stand for longer periods. My balance and stability is greatly compromised as I fall over easy [sic].
My bones ache and I suffer from inflammation which is under control with regular pain medication, with Celebrex and Panadol. I’m unable to lift anything heavy which is frustrating as I desperately need help in the garden and home maintenance. I’m very fatigued throughout my day due to the healing of my several fractures, that being of four already within two years [sic], and my functional capacity from my tibia fracture.
My osteoporosis is called a silent disease because there are typically no symptoms until a bone is broken or one or more vertebrae fractures, in this case, I have proven that in several fractures.[39]
[39]Transcript p 14 [10]–[20].
The Tribunal finds the Applicant’s osteoporosis is consistent with a 20-point rating pursuant to Table 10.
Irritable bowel syndrome
Similar reasoning applies to the Applicant’s irritable bowel syndrome, which results in daily diarrhoea and constipation, as well as urinary incontinence. The Tribunal accepts that these are symptoms of the Applicant’s anorexia nervosa, and that they have a significant impact on the Applicant’s ability to attend work, education or training activities.
The Tribunal finds the Applicant’s irritable bowel syndrome is consistent with a 20-point rating pursuant to Table 10.
Autoimmune neutropenia
The report completed by Dr Lin on 8 March 2019 listed the Applicant’s autoimmune neutropenia as a symptom of the Applicant’s eating disorder. The Tribunal understands it to flow from the physical gastrointestinal impairment, and therefore considers it a symptom for the purpose of assigning an impairment rating under Table 10.
Whilst the autoimmune neutropenia has limited symptoms, it has significant care needs associated with it. The Applicant’s evidence was that:
My blood disease is a critical concern and under great circumstances, I cannot be exposed to any viruses, common colds or bacterial infections. If so I do [sic] have enough – I don’t have enough white blood cells to fight any type of large infection and will require immediate admission to hospital. This condition makes me incredibly worried and I greatly experience anxiety going out with carrying this thought in the back of my mind.
I’m extremely cautious seeing my family, friends and just the general public.[40]
[40]Transcript p 15 [35].
The Tribunal finds the Applicant’s autoimmune neutropenia is consistent with a 20-point rating pursuant to Table 10.
The Tribunal considers that the physical impairments that the Applicant suffers with in relation to her anorexia nervosa are significant. The Tribunal finds that, following consideration of the above criteria, the Applicant’s physical impairment is consistent with an allocation of 20 points pursuant to Table 10.
Overall impairment rating
Applying the criteria in both Table 5 and Table 10, the Tribunal finds that the Applicant has an overall impairment rating of 40 points.
Continuing inability to work (CITW)
Due to the cumulative nature of s 94(1) of the Act, if, as the Tribunal has found, the Applicant has an impairment rating of 20 points, she has qualified for DSP and consequently there is a requirement for the Tribunal to consider whether or not the Applicant has a CITW for the purposes of s 94(1)(c)(i).
The Secretary contends that the Applicant did not have a CITW during the Qualification Period.[41]
[41]R1 [39].
CITW is defined in ss 94(2) of the Act, which states:
(2) 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) or the person is a reviewed 2008/2011 DSP starter who has had an opportunity to participate in a program of support —the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.
(Emphasis added).
The term ‘severe impairment’ is defined in ss 94(3B) of the Act, as follows:
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.
As noted at para [21], it is not in dispute that the Applicant did not complete a POS during the qualification period.
The POS Determination requires that an applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has found that the Applicant has a severe impairment that is assigned 20 points or more under a single Impairment Table, she is not required to have participated in a POS, and she accordingly satisfies section 94(2)(a) of the Act.
Given the Tribunal’s finding that the Applicant has impairments attracting 20 points pursuant to both Table 5 and Table 10, the Tribunal finds that the Applicant has severe impairments, and that the impairments will prevent her from doing any work independently of a POS within the foreseeable future.
The Tribunal finds that the Applicant’s anorexia nervosa does not prevent her from undertaking a training activity. However, due to her impairments, the completion of her floristry training or another training activity would not enable the Applicant to do any work independently of a POS within the next two years, and she accordingly satisfies section 94(2)(b)(ii) of the Act.
Therefore, the Tribunal finds that the Applicant did have a CITW during the Qualification Period.
CONCLUSION
As at 20 August 2019 and during the Qualification Period:
(a)The Applicant had both psychiatric and physical impairments;
(b)The Applicant’s psychiatric impairment attracts a rating of 20 points under the Impairment Tables;
(c)The Applicant’s physical impairments attract a rating of 20 points under the Impairment Tables; and
(d)the Applicant had a CITW.
As such, the Tribunal finds that the Applicant qualified for a DSP at the date of her application, being 20 August 2019.
DECISION
The Tribunal sets aside the decision under review and substitutes it with a decision that the Applicant satisfied the requirements of s 94 of the Social Security Act 1991 as at 20 August 2019.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member Dr J Henderson
..........[Sgd]...............................................
Associate
Dated: 24 November 2021
Date of hearing: 22 July 2021 Applicant: Self-represented Solicitor for the Respondent: Ms L Hannigan, Seconded Lawyer, Services Australia
See, for example: PF Sullivan, ‘Mortality in Anorexia Nervosa’ (1995) Am J Psychiatry 152,1073-1074;
EC Harris and B Barraclough, ‘Excess Mortality of Mental Disorder’ (1999) Br J Psychiatry 173,11-53;
C Emborg, ‘Mortality and Causes of Death in Eating Disorders in Denmark 1970-1993: a Case Register Study’ (1999) Int J Eat Disord 25, 243-251; S Nielsen, ‘Epidemiology and Mortality of Eating Disorders’ (2001) Psychiatr Clin North Am. 24, 201-214; PS Mehler and M Krantz, ‘Anorexia Nervosa Medical Issues’ (2003) J Womens Health 12, 331-340; AS Guarda, ‘Treatment of Anorexia Nervosa: Insights and Obstacles’ (2008) Physiol Behav. 94,113-120; B Herpertz-Dahlmann ‘Adolescent Eating Disorders: Definitions, Symptomatology, Epidemiology and Comorbidity (2009) Child Adolesc Psychiatr Clin N Am.18, 31-47.