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

ZSYJ and Secretary, Department of Social Services (Social services second review) [2018] AATA 3969 (22 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3998
Re:ZSYJ
APPLICANT

Secretary, Department of Social Services And
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:22 October 2018
Place:Melbourne

The Tribunal sets aside the decision under review; and in substitution, decides that the Applicant, ZSYJ, was eligible to receive the disability support pension under the Social Security Act 1991 (Cth), from the date she made her claim on 30 May 2016.
[sgd]........................................................................
Member K. Parker
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – mixed anxiety disorder – borderline personality disorder – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised and likely to persist for longer than two years – whether mental health condition diagnosed by psychiatrist or clinical psychologist at the relevant time – whether applicant had undertaken reasonable medical treatment for her conditions – significance of absence of recommendation by treating practitioner that applicant take anti-depressants – whether anti-depressant medication was reasonable treatment in the circumstances – whether applicant had undertaken reasonable treatment in the form of counselling by psychologist or review by psychiatrist – decision set aside
Legislation
Administrative Appeals Act 1975 (Cth) – ss 35, 37
Social Security Act 1991 (Cth) – s 23, 26, 94
Social Security (Administration) Act 1999 (Cth) s 42 and Sch 2 – clause 4
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 – s 3, 6, 11
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Secondary Materials
The Guide to Social Security Law
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (DSM-5)
REASONS FOR DECISION
Member K. Parker
22 October 2018
INTRODUCTION

This application is about whether the Applicant, ZSYJ,[1] was entitled to receive the disability support pension under the Social Security Act 1991 (Act) on the date she made her DSP claim or within the 13-week period to follow.[2] Centrelink’s[3] records indicate that ZSYJ lodged a claim for DSP under the Act on 30 May 2016.[4] The relevant qualification period in this case is 30 May 2016 to 29 August 2016 (Qualification Period).[5]
[1] The Tribunal made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) prohibiting disclosure of information tending to reveal the identity of the Applicant in this application, because the Tribunal was satisfied that to do so may cause harm to the mental health of the Applicant; and because the Applicant had raised concerns about her privacy, in particular, in relation to her medical information. Pursuant to those orders, the pseudonym “ZSYJ” has been used in place of the Applicant’s name and elsewhere, other names of places, persons and treating medical and allied health practitioners have been de-identified or omitted. Some of the medical practitioners and medical facilities were named in order to indicate their field of practice, based on publically available information.
[2] In accordance with s 42 and cl 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), a person must qualify for the DSP on the date of their claim or within the following 13 weeks.
[3] Centrelink is the service delivery agency for the Department of Social Services.
[4] The Secretary, Department of Social Services, lodged a set of documents with the Tribunal on 11 August 2017, pursuant to its obligations under s 37 of the AAT ACT (T-Documents). Refer T-Documents T29/147.
[5] Refer T-Documents T29/147 showing the date ZSYJ’s DSP claim was lodged was 30 May 2016. At the hearing, the Tribunal requested that ZSYJ confine her contentions and evidence to the Qualification Period and explained that the assessment as to eligibility was required to be made by reference to that period only (and not as at the time of the hearing before this Tribunal).
ZSYJ’s DSP claim was rejected by Centrelink.[6] ZSYJ requested reconsideration by an authorised review officer (ARO) of Centrelink.[7] On 8 February 2017 the ARO affirmed the decision to reject ZSYJ’s DSP claim.[8]
[6] Refer T-Documents T15.
[7] Refer T-Documents T17.
[8] Refer T-Documents T20.
On 9 June 2017 the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) upheld Centrelink’s decision to reject ZSYJ’s DSP claim.[9] ZSYJ seeks review of this decision by the General Division of the Administrative Appeal Tribunal (this Tribunal).[10]
[9] Refer T-Documents T3.
[10] Refer T-Documents T1 – ZSYJ’s notice of application for review of decision.
ZSYJ is tertiary qualified, having completed a Bachelor of Arts (Honours) degree in 2003. ZSYJ previously worked in a number of roles, including as a registered nurse (part-time) for 10 years, and also in corporate administrative positions.[11] ZSYJ has been unemployed since 2011. ZSYJ has reported that she stopped work because her contract position ended; for medical reasons; and because at the time, she became homeless.
[11] Refer paragraph [52] of these Reasons for Decision.
At the time ZSYJ made her DSP claim, she was living in a room above a hotel in a suburb of Melbourne. ZSYJ subsequently moved to a public housing unit in another suburb of Melbourne, where she was living at the time of the hearing of this application. ZSYJ says she has experienced a high degree of conflict with her neighbours, which had made her fearful of her safety. ZSYJ said this situation had exacerbated her mental health conditions. After the conclusion of this hearing, the Tribunal was informed by ZSYJ that she had moved to alternative accommodation in a public housing unit in another suburb of Melbourne. Other issues have arisen for her with respect to this accommodation, which are referred to in detail below.
In effect, ZSYJ contends that during the Qualification Period she had permanent medical conditions that resulted in severe impairment to her mental health function.
The Secretary, Department of Social Services (Secretary) contends that ZSYJ’s mental health conditions were not permanent because they were not fully diagnosed, treated and stabilised as at the time of the Qualification Period. ZSYJ disagrees and says that she had received all reasonable treatment for her conditions and that the Tribunal should be satisfied on the evidence before it, that the requirements for her conditions to be permanent were met.
A hearing took place before this Tribunal at which ZSYJ appeared, self-represented. Following the hearing, further documentary evidence was lodged with the Tribunal and the parties were given the opportunity to file further submissions and documentary evidence. The Tribunal received correspondence and further documents from ZSYJ after the hearing, a copy of which was provided to the Secretary’s representative. The Secretary lodged further submissions in a letter dated 12 September 2018, a copy of which was provided to ZSYJ.
For the reasons set out in these Reasons for Decision, the Tribunal sets aside the decision under review and in substitution, decides that ZSYJ was eligible to receive the DSP under the Act, from the date she made her claim on 30 May 2016.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2:     For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(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.
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.
(3A)…
Severe impairment
(3B)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.
Active participation in a program of support
(3C)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).
Doing work independently of a program of support
(4)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 a program of support that is not ongoing.
Other defintions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or 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.
‘Impairment Tables’ is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact of each impairment. “Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
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.
Subsection 6(1) in Part 2 of the Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally and on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined are, as at the time of the Qualification Period:
(a)whether ZSYJ had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether ZSYJ had a continuing inability to work; and
(e)unless the Tribunal finds that ZSYJ had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), whether she had satisfied the program of support requirements.
CONSIDERATION
ZSYJ’s claim for DSP
16.ZSYJ signed a DSP claim form with Centrelink, claiming as follows:[12]
[12] Refer T-Documents T14.
(a)ZSYJ was born on 1 January 1972 (i.e. she was 44 years of age as at the time of the Qualification Period);
(b)her preferred spoken and written language is English;
(c)her “disabilities, illnesses or injuries” were listed as:
Panic Attacks
Anxiety
Depression
Paranoia
Hypervigilance
(d)she was receiving treatment in the form of “counselling, taking Valium, yoga and meditation”;
(e)the treatment affected her ability to work or study because she was unable to communicate and her physical condition was depleted;
(f)she has the following qualifications:
(i)State Enrolled Nurse;
(ii)Food Handlers Certificate;
(iii)Reiki Manager;
(iv)Bachelor of Arts (Honours);
(v)Certificate IV Small Business Management;
(vi)Certificate IV Group Fitness; and
(vii)Certificate IV Trainer & Assessor;
(g)when asked what work ZSYJ had done, she listed:
(i)asset manager for [a “temp” agency] from [March to November 2011]; and
(ii)paralegal secretary for [a patent and trade mark firm] from [March to November 2005]; and
(a)ZSYJ considered that she could do activities that would help prepare her for work in 12 to 24 months.
Secretary’s position
The Secretary lodged a Statement of Facts, Issues and Contentions with the Tribunal on 6 February 2018 (Secretary’s SFIC) and further submissions on 12 September 2018 (Secretary’s Further Submissions). The Secretary accepts that ZSYJ suffered from impairments arising from a mental health condition and that she satisfied the requirement under s 94(1)(a) of the Act.[13]
[13] Refer [4.20] of the Secretary’s SFIC.
The Secretary’s representative contends that ZSYJ’s condition was not fully diagnosed, treated or stabilised. Specifically, the Secretary’s representative contends that the diagnosis of “mixed anxiety disorder” was not confirmed by Dr MM, psychiatrist, until his examination of ZSYJ on or about 4 August 2017, which was more than 12 months after the Qualification Period; and that Dr MM did not treat ZSYJ during the Qualification Period.[14]
[14] Ibid at [4.42].

The Secretary’s representative acknowledges that there was a diagnosis of “anxiety disorder” noted on the ECATT (see paragraphs [24] and [25]) on 17 May 2016. However, it was unclear who had made that diagnosis. The Secretary’s representative also refers to the progress notes of Dr Veda Chang, psychiatrist, at The Royal Melbourne Hospital, but contends it was unclear whether Dr Chang considered that ZSYJ was suffering from “anxiety”, “major depression” or “bipolar”.[15] Finally, the Secretary’s representative acknowledges the notes and reports of Ms CL, ZSYJ’s treating clinical psychologist, but maintains that the condition did not become fully diagnosed until confirmation was provided by “a psychiatrist” on 4 August 2017.[16]
[15] Refer [4.43] of the Secretary’s SFIC and also [25] of these Reasons for Decision.
[16] Refer [4.44] of the Secretary’s SFIC.
The Secretary’s representative contends that even if the Tribunal was satisfied ZSYJ’s condition was fully diagnosed, it was not fully treated or stabilised because ZSYJ should undertake further reasonable treatment, including “psychological, psychiatric and anti-depressant medication”. Specifically, it was contended that there was insufficient corroborating evidence about whether ZSYJ had taken anti-depressant medication in the past and if so, what she had taken. It was acknowledged that ZSYJ had taken Diazepam (Valium), but it was contended that this was not “generally recognised” as “a long-term anti-depressant medication”.
The Secretary’s representative contends that ZSYJ was due to undergo further psychological counselling with Ms CL, as well as Dr MM, for treatment recommendations. It was contended that ZSYJ had been advised to commence on Lexapro and to undertake acceptance, commitment and behavioural therapy for personality issues. Finally, reliance was placed on the statements made by the JCA assessor in the JCA report dated 9 April 2015, that ZSYJ was likely to benefit from “psychological counselling, medication trials/review” and “regular use of appropriate medication”, as well as “psychiatric intervention”.[17]
[17] Ibid at [4.45].
The Secretary’s representative contends the Tribunal should not take into account the evidence of Dr MM, provided in his report dated 21 May 2018, to the effect that, “currently medication [was] not required”, because his opinion did not relate to ZSYJ’s condition as at the Qualification Period. Dr MM did not start treating ZSYJ until one year after the end of the Qualification Period, and there was no explanation provided by Dr MM as to why he had not maintained the recommendation given by him in his earlier report on 4 August 2017 that ZSYJ trial Lexapro.[18]
[18] Refer page 2 of Secretary’s Further Submissions.
The Secretary’s position was that there was insufficient evidence of the requisite diagnosis “reasonably proximate” to the Qualification Period and that her mental health condition was not fully diagnosed, treated and stabilised. For that reason, it was contended that no rating could be assigned under Table 5 of the Impairment Tables.
EVIDENCE BEFORE THE TRIBUNAL
Involuntary overnight admission at The Royal Melbourne Hospital in May 2016
ZSYJ was brought to The Royal Melbourne Hospital by the police and ambulance service at 10.11pm on 17 May 2016, two weeks before she made the DSP claim. The Hospital created an “ECATT Contact Sheet” which was lodged with the Tribunal.[19] This sheet reports that ZSYJ was reported as, “running down street distressed, claiming a bus nearly hit her, whilst on a bicycle with no bike in sight!” The “main reason(s) for referral” was stated as, “coping, anxiety, suicide assessment, behaviour”. The form states “Psychiatric Diagnosis (DSM IV – Clinical Assessment): Anxiety disorder F41 9” (emphasis added). The Tribunal infers from this record that a diagnosis was made by a psychiatrist that ZSYJ had the medical condition of “anxiety disorder”.
[19] Refer T-Documents T9/38&39.
The Summary from this ECATT contact sheet reports as follows, and includes progress notes recorded by Dr Veda Chang, psychiatrist, which were dated 18 May 2016 (the day after admission):[20]
[20] Refer T-Documents T9/39
44 year old separated female. no formal hx in mental health. [Brought in by] Police & MAS to the ED post behaving erratically. running down the middle of Sydney road Brunswick in a “hysterical manner” according to the MAS who were first on scene. Pt had reported she was nearly hit by a bus while riding her bicycle 7 this set off a panic attack. Pt needed to be handcuffed by police when they arrived & was placed on an ambulance trolley. Both police & MAS refer to pt as being uncooperative. In ED under the code 351 pt was uncooperative. Blaming police & MAS refer. splitting in her behaviours. On assessment while pt seemingly cooperative appeaed(sic) erratic, less than forthcoming with things like telephone number etc. Collateral tom pt mother seems pt presented quite atypically on the phone, in distress, histrionic, shouting etc which has also been the experience of pt’s brother in the last few weeks on the phone. Pt placed on an assessment order. Dr Walled said pt can come to the BAU.
…
Progress Note 4: … MAS allegedly said that she was paranoid, she agreed when in fact she does not have paranoid – no beliefs that she is to be attacked followed etc However she says she is often anxious and has panic attacks – Veda Chang
Progress Note 5: … Denies any thoughts of self harm or harm to others. Dismisses those thoughts and laughed (as if these thoughts were absurd) – Veda Chang
Progress Note 6: … No detected delusions of reference. No hallucinatory phenomena – Veda Chang
Progress Note 7: … Admits to long standing depression, anxiety and panic attacks for the last 14 years. Has been seeing Dr FY for five years. Insight that she is anxious and willing to see GP for treatment – Veda Chang.
Progress Note 8: … Spoke with mother re [ZSYJ’s] discharge. Gave centralised Triage no – Veda Chang
Progress Note 9: … Informed that [ZSYJ] has denied drug use to me although it was reported that she had used methamphetamine – Veda Chang
Progress Note 10: … [ZSYJ] now admitting to periods when she does not sleep much. Eg when she is sewing. Says that she could sleep if she wanted to but there are period when she has little sleep for days ? drug induced. Also fatuously said that she said she could – Veda Chang
Progress Note 11: … fly but did not mean this. She says she regrets saying this. All she meant was at times she works at the [council] as a fairy with Santa. Diagnosis Anxiety – panic attacks. Depressive episodes ? part of major depression or ?bipolar – Veda Chang
Progress Note 12: Diagnosis unclear but no requiring urgent mental health assessment. Has counsellor and GP – Veda Chang
Progress Note 13: 18/05/2016 @ 10:24: Revoked Assessment Order – Veda Chang
Attendance at the Western Health Emergency Department in July 2016
Two months later, on 6 July 2016, ZSYJ was brought to the Emergency Department of the Western Health Emergency Department by the police and ambulance service at 1.24pm.[21] The presenting problem was listed as “Mental state – Hallucinations PMH unknown”. The Nursing Assessment was entered as “Yelling at Scene. Hallucinating. Unsure of [whose] clothes she’s wearing. Unsure of why here. Bruising over arms. Scratches to face.” The treating doctor was listed as Dr Chris Paes, consultant emergency physician, and the “primary diagnosis” was listed as “psychotic episode”.
[21] Refer T-Documents T16/78-83 (part of the document was illegible).
The clinical notes dated 6 July 2016 recorded by Dr Louise Boyle, anaesthetic registrar in the Emergency Department (Dr Boyle’s specialty is listed as psychiatry), states the following:
44yo female [Brought in by ambulance] after police found her creating a public disturbance
HOPC
Police called ambulance after finding [patient] on the street screaming “lock me up”
Patient stated she was with her friends performing a skit
But no friends as per ambulance
Wearing a fari on her head
States she had someone else’s underwear on – not sure how that happened
Has had abdo pain recently and was going to ultrasound today
Has scratches on face and arms bruises on wrists, upper arms
States cannot remembers how these occurred, seems secretive about what has happened but denies assault
“I’ve been talking to my mum about it”.
Grandiose
Has worked for a nurse for ten years
-    Attended university and completed arts degree with triple major in film, politics, philosophy, writing
-    Working as head of corporates
-    Teaches philosophy at centre for adult education in city and sewing at a community centre
Refusing physical examination
Refusing investigations
Happy to stay to be assessed by ECATT
But keen to leave as needs to attend u/s app. call mum. attend 2 psychologists appointments today.
Phx
Depression – seeing a psychologist through “work” and another one (not through GP)
Anxiety
No Reg Meds
Shx:
Lives on own
Adult son and brother interstate
Denies drug use – tried marajuna(sic) once two years ago
MSE
Good [rapport] initially but not trusting of medical credentials
Dressed in jeans, puffer jacket, vest, scratches to skin on face and arms, bruises on jaw, wrists and upper arms
Intermittent eye contact, looking at floor, moving arms and feet frequently, packing in room before being asked to sit
Low mood this year, anxious attacks, poor sleeping
Denies perceptual disturbances
Confabulating, grandiose
Denies suicidal or homicidal thoughts
No insight
Imp
Psychotic
No insight
Likely to need admission
Plan
Needs ECATT
No insight
Currently refusing physical exam or investigations
Post ECATT attempt above
It appears from the clinical notes that Dr Boyle had recommended that ZSYJ was transferred to a “mental health or other hospital”.[22]
[22] Refer T-Documents T16/80.
In an open letter by ZSYJ dated 10 January 2017, she states:[23]
…
Please note that I was going to be [committed] but I agreed to ongoing treatment by my GP and TRIAG(sic). I have relocated and in Public Housing.
[23] Refer T-Documents T18/87.
Evidence from Dr MM, consultant psychiatrist
Dr MM, consultant psychiatrist and Honorary Fellow, Department of Psychiatry, The University of Melbourne, sent a letter to ZSYJ’s general practitioner on 4 August 2017 to report back about the consultation he had with ZSYJ, stating as follows:
(a)ZSYJ came from a difficult family background;
(b)her brother had multiple psychiatric issues including Autistic Spectrum Disorder and he had been a disruptive presence;
(c)her mother was described by ZSYJ as controlling and in many ways selfish and her father had been an alcoholic who died at age fifty;
(d)her father was not abusive and was described as a “happy drunk”; however, he was “generally absent” and it was hard for ZSYJ to get his attention
(e)ZSYJ had success at school where she was popular, and she also had some academic and professional success;
(f)her private life had been a series of “disastrous relationships”; and
(g)ZSYJ had one son and she is proud of him.
The Tribunal notes, and as the Secretary’s representative pointed out, Dr MM first saw ZSYJ approximately one year after the end of the Qualification Period.
Dr MM described ZSYJ as “shy, a worrier and a perfectionist”. He said that ZSYJ was someone “who liked to please” and she was “reward dependent”.
Dr MM’s diagnoses of ZSYJ included:
(a)“mixed anxiety disorder” (which he said she inherited) with features of “social and generalised anxiety”; and
(b)symptoms of “borderline personality disorder” with “obsessive-compulsory traits”.
In Dr MM’s letter dated 4 August 2017, he recommended the following treatment for ZSYJ:
My recommendation would be to give her a trial of an antidepressant such as Lexapro for her anxiety, not for her mood, she is unhappy that is not a depressive disorder and antidepressants are not anti unhappiness pills. For her anxiety and her personality issues she would benefit from learning some strategies such as those provided by Acceptance and Commitment therapy and were it possible Dialectical Behavioural Therapy…
In a subsequent letter by Dr MM dated 21 May 2018, he certified that ZSYJ had been his patient since 3 August 2017. Dr MM confirmed a diagnosis of “mixed anxiety disorder” with features of “social and generalised anxiety” and “borderline personality disorder” with “obsessive-compulsive personality traits”.[24] Dr MM states in this letter:
Currently medication is not required.
[24] Letter lodged with the Tribunal by ZSYJ on 4 June 2018, pursuant to Direction made by the Tribunal on 14 May 2018.
Evidence from Ms CL, clinical psychologist
Ms CL, clinical psychologist, provided a letter to Centrelink dated 2 October 2017. Ms CL states in her letter that she had provided counselling to ZSYJ since December 2011, in her capacity as a clinical psychologist. Ms CL states that ZSYJ had attended 30 sessions with her since December 2011. ZSYJ was referred to Ms CL by ZSYJ’s general practitioner, Dr FY.
In a separate letter dated 3 May 2017 from Ms CL to Dr FY, Ms CL indicates she had provided three sessions to ZSYJ since 6 March 2017 and that she had another appointment booked with her for 23 May 2017.
Ms CL states in her May 2017 letter that ZSYJ had reported a “longstanding pattern and history of depression and anxiety”. Ms CL also states in her October 2017 letter that ZSYJ has presented with “a longstanding pattern and history of trauma since adolescence”.
Ms CL referred to the diagnosis made in August 2017 by Dr MM
(as referred to in paragraph [33] above). Ms CL provided her professional opinion that those conditions existed prior to the diagnosis by Dr MM, based on Ms CL’s professional involvement with ZSYJ and her history.
In terms of treatment, Ms CL advised that she and ZSYJ had undertaken “empirically validated focused psychological strategies and treatment including cognitive-behavioural therapy, relationship counselling and problem solving”.
Ms CL states that ZSYJ had a limited capacity for social and employment participation. Ms CL said that her mental health symptoms were exacerbated by significant life stressors, including unsafe and unstable housing and financial problems.
Evidence of treating general practitioner, Dr FY
The Tribunal was provided with a number of medical certificates relating to ZSYJ signed by Dr FY (or where indicated, by Dr HG and Dr DL who are medical practitioners from the same clinic as Dr FY). The reports note that Dr FY has treated ZSYJ since 27 November 2010.
The information provided by Dr FY (or Dr HG and Dr DL), from these medical certificates is summarised in the table below:

Date of Certificate	Diagnosis	Temp or Perm	Prognosis	Capacity to work or study
23 November 2011[25]	Depression	Temporary	Likely to persist	Unfit Further reference made to “commencing medical treatment”
1 February 2012[26]	Depression	Temporary	Not specified	Unfit
12 April 2012[27]	Depression Current Treatment listed as “counselling” and “antidepressant”	Temporary	13-24 months	Unfit
23 December 2013 (issued by Dr HG) [28]	Depression Treatment listed as “psychologist review”	Exacerbation of existing condition	Likely to persist	Unfit
11 February 2014[29]	Depression/Anxiety	Temporary	Symptoms likely to affect ZSYJ’s capacity to work or study for longer than 24 months	Unfit to work or study or do any other work for longer than 8 hours.
25 July 2015[30]	Depression	Temporary Symptoms noted as “severely depressed”	Uncertain	Unfit
21 August 2015 (issued by Dr DL)[31]	Anxiety and depression (date of onset: 2010) Treatment was listed as “occasiona(sic) medication, psychological counselling”	Not specified	Not specified	Unfit
24 September 2015[32]	Severe depression and anxiety Treatment listed as “antidepressant and psychology treatment”	Temporary Symptoms noted as “panic attacks” and “depressed mood”	Likely to persist	Unfit
11 January 2016[33]	Depression and Anxiety Treatment listed as “antidepressant”	Temporary Symptoms noted as “depressed and anxiety”	Likely to persist Stabilised	Unfit
2 August 2016[34]	Depression and Anxiety Past treatment listed as “antidepressant”	Permanent (likely to persist for 2 years or more)	Symptoms will affect ZSYJ’s capacity to work or study for more than 24 months	Unfit
The following medical certificates post-date the Qualification Period
18 November 2016[35]	Depression and Anxiety Planned treatment listed as “antidepressant”	Not specified	Symptoms likely to affect ZSYJ’s capacity to work or study for more than 24 months	Unfit
10 January 2017[36]	Depression Planned treatment listed as “antidepressant”	Permanent Symptoms noted as “severe depression”	Symptoms likely to affect ZSYJ’s capacity to work or study for more than 24 months	Unfit
9 May 2017[37]	Depression and Anxiety Treatment listed as “psychiatry & psychology”	Permanent Onset listed as: 1 May 2007 Symptoms listed as: “Patient has severe Depression and Anxiety for years, She has some psychosis attacks in past”	Uncertain prognosis	Unfit. Loss of concentration noted as a factor that may impact on ZSYJ’s participation in work or study.
7 August 2017[38]	Depression and Anxiety No treatment listed	Permanent. Onset listed: 27/10/2010 Symptoms listed as “Depressed mood, panic attacks”.	Likely to persist	Unfit
10 April 2018[39]	Anxiety Disorder & Borderline Personality Disorder Past treatment: some support; Current treatment: psychotherapy; Planned: support [?] to workforce	Temporary exacerbation of a permanent condition Symptoms listed as anxiety and lethargy	Symptoms will affect ZSYJ’s capacity to work or study for 13-24 months	Unfit for usual work or study but fit for other work for 8 hours or more per week if provided with retraining, upskilling

[25] Refer T-Documents T28/126.

[26] Refer T-Documents T28/127.

[27] Refer T-Documents T28/128.

[28] Refer T-Documents T28/129.

[29] Refer T-Documents T28/130.

[30] Refer T-Documents T28/131.

[31] Refer T-Documents T28/132.

[32] Refer T-Documents T28/134.

[33] Refer T-Documents T28/135.

[34] Refer T-Documents T28/136.

[35] Refer T-Documents T28/137.

[36] Refer T-Documents T28/138.

[37] Refer T-Documents T28/139.

[38] Refer Medical Certificate lodged with the Tribunal on 10 November 2017.

[39] Refer Medical Certificate lodged with Tribunal on 8 October 2018.

Medicare report showing history of consultations with Dr MM, consultant psychiatrist

On 14 March 2018, the Secretary’s representatives lodged with the Tribunal ZSYJ’s Medicare and Pharmaceutical Benefits records.[40] Those records show that it was not until 3 August 2017 that ZSYJ first saw a consultant psychiatrist, Dr MM. The records show that ZSYJ saw Dr MM subsequently on 27 November 2017, 18 December 2017, 4 January 2018 and 17 January 2018 (the report period ended on 4 February 2018).
[40] Refer Exhibit “R1”.
This report also shows that during the period 1 March 2013 to 4 February 2018, ZSYJ was supplied with Diazepam (Valium) on 26 March 2015, 25 July 2015, 25 July 2015 and 12 January 2016.
Employment Services Assessment Report (ESA Report)
The Tribunal has considered the two ESA Reports issued in respect of ZSYJ.
First ESA Report
The first ESA Report is dated 23 April 2012.[41] It was carried out by a registered psychologist (as the assessor) by telephone. The report states that ZSYJ was suffering from a condition of “depression” and that this condition was “temporary”. The assessor made the following remarks (emphasis added):
Medical certificate reports client to be treated with counselling and anti-depressant medication for symptoms of depressed mood.
Client said she has had symptoms of depression for about ten years with diagnosis in late 2011. She said she has the following symptoms: is exhausted, nausea, somatic symptoms of physical pain, tearfulness and panic attacks (previously daily, now learning to manage with strategies learned with Psychologist) with jumbled thoughts and speech, racing heart, withdrawn and feeling of being unable to cope. She said her symptoms have no specific precipitant. She said she has been seeing a Psychologist since 2011 and has attended about nine sessions to date. She said she has never been treated with medication (contrary to content of medical certificate which reports treatment includes anti-depressants).
[41] Refer T-Documents T6/27-31.

In this report, the assessor lists a multitude of “barriers to be addressed” including ZSYJ’s psychological/psychiatric condition; mood disorder; financial problems; transport issues (she had a driver’s licence but no car and travelled by tram, bicycle or walked); endurance limitations; limited or no support network identified (no familial support but some limited friendship support); motivation and limited work goals.[42] It was noted that ZSYJ would require support to build her work capacity; complete job search activities; cope with work-related stress and pressure, and maintain sustainable employment.[43]
[42] Refer T-Documents T6/28.
[43] Refer T-Documents T6/29.
The assessor considered ZSYJ’s temporary work capacity at that time was 0 to 7 hours per week with an “end date” of 1 June 2012, based on the following rationale:
Limited capacity due to symptoms of depression as reported. However, is improving with psychological intervention.
The assessor considered ZSYJ’s baseline work capacity was “30+ hours per week” in a “light semi-skilled” role such as “admin, retail, health role”, based on the following rationale:
There are no medical conditions identified that would be expected to impact on client work capacity other than that reported in temporary work capacity.
The assessor considered that ZSYJ would require the following “intervention”: cognitive behavioural therapy; counselling; financial counselling/assistance; job matching; psychiatric services/treatment and psychological/cognitive assessment/intervention; self-improvement/personal development; self-help groups; stress management; support groups; vocational assessment/counselling; vocational rehabilitation and workplace assessment. The assessor provided a referral for ZSYJ to receive employment services from a disability management service (DES).
ZSYJ gave the assessor the following employment history and indication of her goals:
Client reports she attained her Bachelor of Arts (Honours) in 2003.
Client said she worked for ten years as a nurse. She said she has more recently worked – on and off – in corporate admin roles for eight years. She said she worked in a retail role – cosmetics – for nine months in 2010.
Client said her most recent work role was for about six months, ending in September 2011, in a temporary position in admin.
Client said she completed the NEIS programme about two years ago, setting up a holistic wellbeing business, however, was unable to manage to get the business running profitably. She said she has a business mentor and would like to better market her business.
Client said she has no current work goals due to her health concerns.
Second ESA Report
The second ESA Report is dated 16 October 2015.[44] It was carried out by a clinical psychologist (as the assessor) in a face-to-face interview. The report states that ZSYJ was suffering from a condition of “depression” and that this condition was “permanent”. The assessor made the following remarks (emphasis added):
Severe depression and anxiety
Verified by medical certificate, Dr FY, 24.09.15
Onset/Diagnosis: long-standing (over 10 years)
Symptoms/functional impacts: medical evidence verifies panic attacks and depressed mood; client reported poor concentration and difficulty coping with stress.
Treatment: psychological therapy ongoing; medication
Prognosis: Medical certificate dated 24.09.15 indicates condition is temporary. However, given the chronicity of this condition and the personal factors which are perpetuating the client’s symptoms, the functional impairment stemming from this condition is likely to persist for longer than 24 months.
[44] Refer T-Documents T7/32-35.
In this report, the assessor lists “barriers to be addressed” including ZSYJ’s psychological/psychiatric condition; financial; limited or no support network identified; and torture/trauma.
The assessor considered ZSYJ’s temporary work capacity at that time was 0-7 hours per week with an “end date” of 15 January 2016, based on the following rationale:
The client’s work capacity is temporarily reduced due to functional impairment resulting from verified medical condition, which limits concentration and emotional functioning and would impede the client’s capacity to cope with work-related stress or pressure, remain task-focussed and sustain productive working relationships.
The client will be unable to participate in employment-related activities or programs of vocational intervention during this time. This period of time will allow the client to access further treatment and improve functional capacity, before returning to job-seeking activities.
The assessor considered ZSYJ’s baseline work capacity was “15-22 hours per week” in a “light semi-skilled” role, based on the following rationale:
The client has a permanent condition which impacts on the client’s work capacity.
Functional impacts of mental health condition include a reduction in concentration, confidence, efficiency in task completion and motivation, which may affect endurance for work related tasks. Symptoms may affect social interaction within vocational contexts, impacting upon capacity for working with clients, or in high stress contexts.
A work capacity of 15/22 hrs/week has been recommended to account for the impact of stated functional impairment on client’s ability to sustain more than three 5 hour periods/shifts per week.
The assessor considered that ZSYJ would require the following interventions: psychological/cognitive assessment/intervention; self-improvement/personal development; stress management; support groups and vocational assessment/counselling.[45] The assessor made a referral of ZSYJ to receive Stream C employment services.[46] The assessor states that ZSYJ’s personal factors (described as “significant personal and relationship stressors”) had a “high impact” on her ability to work; obtain work; or look for work.[47]
[45] Refer T7/34.
[46] Refer T-Documents T7/35.
[47] Ibid.
The assessor recorded a similar employment history as recorded in the first ESA Report except for the following additional remarks (emphasis added):[48]
…
She has recently obtained a Certificate III in fitness.
ZSYJ reported that she would like to return to work in the next 2-3 months, once her mental health condition and personal stressors have further stabilised. She may be interested in work in the fitness industry.
…
Additional Comments:
Referral recommendations
The client is presenting with multiple pre-vocational barriers to employment, in addition to the impacts of assessed medical condition. Interventions aimed at addressing mental health concerns and impacts of personal factors are recommended. The client would benefit from Stream C support, to manage pre-vocational barriers to employment and to receive continued support and advocacy in managing any mental health concerns with ongoing counselling and social casework as needed.
The referral recommendation was discussed with the client and consent obtained. Centrelink is to action the referral on 15.01.16, following the period of exemption granted.
[48] Ibid.
Job Capacity Assessment Report (JCA Report)
The Tribunal has considered the JCA Report dated 3 February 2017 issued in respect of ZSYJ that was provided to the Tribunal.[49] It was carried out by a registered psychologist (as the assessor) by telephone. The report states that ZSYJ was suffering from a “permanent” condition of “depression”. The assessor made the following remarks (emphasis added):
Condition: Depression and anxiety (as recorded in Medical Certificate from GP Dr. F. FY, 18/11/16, 2/08/15 and 24/09/15). Also documented as Anxiety Disorder – but does not specify which anxiety disorder (in Mental Health Assessment from Registered Nurse, [name omitted], 17/05/15).
…
During this telephone interview, the client was not very [forthcoming] with information (unwilling to answer many of the assessor’s questions) and was aggressive/unfriendly (and she ended up terminating the call). As such, no further information was available.
[49] Refer T-Documents T18/88-93.
In this report, the assessor lists barriers to be addressed including ZSYJ’s psychological/psychiatric condition (noting that ZSYJ’s mental health issues and personal issues were likely to place demands on time and energy, and thereby impede her ability to consistently and reliably attend appointments, access services and participate in/benefit from employment intervention programs); torture/trauma and other multiple personal barriers (including untreated mental health issues, legal issues, financial issues and relationship issues).
The assessor considered ZSYJ’s baseline work capacity was “15-22 hours per week” in a “light semi-skilled” role, based on a rationale which was described in identical terms as the previous assessor in the second JCA report.
The assessor considered that this may increase to “23-29 hours per week” within the next two years. The assessor states that ZSYJ’s “FTSD work capacities” were “30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions”.
The assessor considered that ZSYJ would benefit from interventions that were aimed at managing any mental health concerns, with ongoing counselling and impact of personal factors to “increase her future work readiness”. The assessor listed the following recommended interventions: psychological/cognitive assessment/intervention (including commencement on psychotropic medication); self-improvement/personal development and other interventions (not specified) to address her personal barriers.[50] The assessor states that ZSYJ was “linked in” with a Stream C employment program through AMES.[51]
[50] Refer T-Documents T19/91.
[51] Refer T-Documents T19/92.
ZSYJ’s contentions
The Tribunal has considered ZSYJ’s oral submissions at the hearing before this Tribunal and her written submissions contained in her emails to the Secretary’s legal representative on 5 January 2017 and 6 March 2018.
CONSIDERATION
In taking into account the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at paragraph [1] (emphasis added):[52]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his 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.
[52] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
The requirement under this section requires the Tribunal to determine whether as at the time of the Qualification Period, ZSYJ had a physical, intellectual or psychiatric impairment. Impairment is defined by s 3 of the Determination as set out in paragraph [11]. The Tribunal is satisfied on the medical evidence, and in particular, the medical evidence of her treating clinical psychologist, Ms CL, before the Tribunal that ZSYJ met the requirement under s 94(1)(a) of the Act because her medical conditions resulted in a loss of functional capacity affecting ZSYJ’s ability to work (see paragraph [41]).
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that ZSYJ must meet is that her impairment is of 20 points or more as assessed under the Impairment Tables. Section 6(3) of the Determination 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 resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years. Under s 6(4) of the Determination, a condition is considered to be permanent if it was fully diagnosed, treated and stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
ZSYJ’s mental health conditions
Fully diagnosed
Two weeks prior to ZSYJ making her DSP claim, Dr Veda Chang, psychiatrist, at The Royal Melbourne Hospital assessed ZSYJ during an involuntary overnight admission to this hospital following a psychotic episode experienced by ZSYJ. The Secretary contends that Dr Chang was unclear about her diagnosis of ZSYJ’s medical conditions. The Tribunal disagrees with respect to the first diagnosis made by Dr Chang. In her notes, Dr Chang has entered “anxiety” clearly when stating her first diagnosis. Dr Chang did not place a question mark after the entry of “anxiety”, in the same way as she did when she listed other possible diagnoses for ZSYJ of “major depression” and/or “[bipolar adjustment disorder]”. The Tribunal finds that at the very least, it was clear that Dr Chang diagnosed ZSYJ with “anxiety” on 18 May 2016.
Two months later on 6 July 2016, which falls within the Qualification Period, ZSYJ was taken by ambulance into hospital following another psychotic episode, at which time Dr Louise Boyle, an anaesthetic registrar (specialising in psychiatry), notes “anxiety” and “depression” in her clinical notes and also recommended that ZSYJ be transferred to a mental health or other hospital. This did not ultimately take place. ZSYJ explained that she was not “committed” as she had agreed to ongoing treatment by her general practitioner and “triage”.
Subsequently, on 4 August 2017, Dr MM confirmed a diagnosis of “mixed anxiety disorder with features of social and generalised anxiety”. Then, on 21 May 2018 he confirmed a further diagnosis of “borderline personality disorder with obsession-compulsive personality traits”. Dr MM did not examine ZSYJ until one year after the end of the Qualification Period. However, his diagnosis is consistent with the diagnosis of “anxiety” made by Dr Chang on 18 May 2016 and by Dr Boyle on 6 July 2016.
Further Ms CL, clinical psychologist, who has been treating ZSYJ since December 2011 provided her professional opinion that the conditions as diagnosed by Dr MM had existed prior to the time of his diagnosis, based on her involvement with ZSYJ and her history.
Considering the evidence in paragraphs [68] to [71], the Tribunal finds that ZSYJ was fully diagnosed as at the time of the Qualification Period with the medical condition of “mixed anxiety disorder with features of social and generalised anxiety” and “borderline personality disorder with obsession-compulsive personality traits”.
Fully treated
The Secretary contends that the evidence suggested that ZSYJ had undertaken “minimal psychological counselling and psychiatric treatment” and “had not trialled anti-depressant medication”; that these were reasonable treatments available to her as at the time of the Qualification Period and were likely to result in significant functional improvement.[53]
[53] Refer [5] of Respondent’s Further Submissions.
The Tribunal does not agree that ZSYJ had undertaken “minimal psychological counselling” as at the time of the Qualification Period. There was evidence before the Tribunal that ZSYJ’s mental health conditions, had been treated by Ms CL, a clinical psychologist since 2011 and also by her treating general practitioner, Dr FY since 2010. There was no evidence before the Tribunal that ZSYJ had received a recommendation from either of them to attend a psychiatrist for treatment, in additional to the treatment she had received from Ms CL and Dr FY, before or during the Qualification Period. As referred to in paragraph [40], Ms CL has provided written confirmation that ZSYJ had undertaken “empirically validated psychological strategies and treatment” including “cognitive-behavioural therapy”.
Further, the Tribunal notes that ZSYJ gave evidence to the AAT1 (which was not disputed in the hearing before this Tribunal) that she also attended a counsellor from a religious community organisation for eight sessions during 2016 and into 2017. The Tribunal acknowledges that the precise dates of those sessions were not specified. However, at least some of them may have taken place before or during the Qualification Period.
The Medicare Report for the period from 1 March 2013 to 4 February 2018 tendered by the Secretary to the Tribunal at the hearing as Exhibit “R1”, records that ZSYJ saw Ms CL on 16 occasions during this five-year period: 23 April 2013; 15 October 2013; 22 October 2013; 12 November 2012; 19 November 2012; 17 December 2013; 6 March 2017; 16 March 2017; 3 May 2017; 14 August 2017; 22 August 2017; 5 September 2017; 2 October 2017; 1 November 2017; 22 November 2017; 24 January 2018. Relevant to this decision, this record indicates that ZSYJ saw Ms CL on six occasions before the end of the Qualification Period.
As referred to in paragraph [45], the Medicare Report also shows that ZSYJ was supplied with Diazepam (Valium) on four occasions in the 14-month period before submitting her DSP claim. Dr FY’s reports indicated that he had prescribed this medication to ZSYJ. Valium is used for “the management of anxiety disorders or for the short term relief of the symptoms of anxiety”.[54]
[54] Refer
There was no evidence before the Tribunal to indicate that ZSYJ had received a recommendation by Dr YF or Ms CL at any time before or during the Qualification Period that she should take any other type of psychotropic medication. The Tribunal considers that ZSYJ was entitled to rely on the treatment provided by her treating general practitioner and clinical psychologist in the years preceding the Qualification Period; and to rely upon the treatment provided by her treating general practitioner during the Qualification Period (noting that ZSYJ did not see Ms CL during this time).
The Tribunal acknowledges that Dr MM examined ZSYJ, and in his 2017 report suggested that she might trial Lexapro for her anxiety. It seems that Dr MM withdrew his recommendation in 2018, stating that ZSYJ did not require medication. However, the initial treatment recommendation by Dr MM for ZSYJ to take Lexapro, was made almost one year after the Qualification Period and is not relevant to the application before the Tribunal.[55] It also appears that this doctor was not steadfastly wedded to his recommendation, given that it was subsequently withdrawn and also did not appear as a planned treatment in the medical certificate issued by him in April 2018 (see last row in table at paragraph [43] of these Reasons for Decision).
[55] The Tribunal considered Dr MM’s opinion in relation to his diagnosis of ZSYJ’s conditions, even though he did not examine ZSYJ until after the Qualification Period, in light of the adoption of Dr MM’s formal diagnosis by ZSYJ’s treating clinical psychologist, Ms CL – see paragraph [70]. The same cannot be said for Dr MM’s opinion in relation to his treatment recommendations.
The Secretary states that the Tribunal should disregard the withdrawal of the recommendation because Dr MM had provided no explanation for doing so. In the absence of the Secretary presenting any evidence which disputes whether Lexapro (Escitalopram oxalate)[56] was an appropriate treatment for ZSYJ at that time, the Tribunal is inclined to accept Dr MM’s evidence at face value, that although in 2017 he considered a trial of Lexapro by ZSYJ might have been appropriate, by 2018 he did not consider this to be so. The Tribunal accepts this evidence because of the significant credentials and professional standing of this practitioner, being an Honorary Fellow of the Department of Psychiatry of the University of Melbourne and further, there was no medical evidence relied upon by the Secretary to dispute this evidence.
[56] In the Consumer Medicine Information publication issued for this drug, it states that Lexapro is used to treat depression. It may also be used to treat patients who have excessive anxiety and worry and to treat irrational fears or obsessional behaviour (obsessive-compulsive disorder) – refer Therapeutics Goods Administration (TGA) website type="1">
The point remains that Dr MM’s initial recommendation was made about one year after the end of the Qualification Period; and to that extent; his evidence was irrelevant to the Tribunal’s consideration of this application. There was no recommendation made to ZSYJ at the time of or at any time before the Qualification Period either by her treating general practitioner or her clinical psychologist that ZSYJ should trial Lexapro or indeed, any other type of psychotropic medication, apart from Valium (which as noted above, is intended only to provide short-term relief).
There were references in some of the medical certificates provided by Dr FY that treatment had included anti-depressants. It is unclear whether this was a reference to Valium. Valium is commonly known to relieve anxiety and not as an anti-depressant. However, the Tribunal acknowledges that some people use the term “anti-depressants” in a very broad sense of the word. ZSYJ’s evidence in this regard was inconsistent. It seemed that at times she had asserted that she not taken any anti-depressant medication in the past; and at other times, including at the hearing before this Tribunal, ZSYJ indicated that she had tried an unspecified anti-depressant but that she found that “the anti-depressants make you really lethargic”. She said it helped with her anxiety but she did not like feeling like she was turning into someone else. It is possible that ZSYJ was also referring here to the Valium and had described it generally, as an “anti-depressant”.
The Tribunal notes that the Medicare records for the relevant period state that ZSYJ was only ever dispensed Valium and no other psychotropic medication. On this basis, the Tribunal finds that ZSYJ has only ever taken Valium for her conditions and symptoms and no other psychotropic medication. Importantly, the Tribunal also finds that there is insufficiently clear evidence to make a finding that a recommendation was made by ZSYJ’s treating medical practitioners to take a particular type of medication which subsequently, she failed to comply with. It was open to the Secretary to have sought clear advice or confirmation from ZSYJ’s treating practitioners about any recommendations they may or may not have made, or to have caused a summons to be issued for production of their clinical notes (likely to have contained such information) and/or for their attendance to give oral evidence at the hearing, but this step was not taken.
In light of this, and in light of the evidence indicating that ZSYJ had received six sessions with a clinical psychologist and many other consultations with her general practitioner, the Tribunal is satisfied that as at the time of the Qualification Period, her conditions were fully treated.
Fully stabilised
As noted in paragraph [12], section 6(6) sets out the factors necessary to establish that a condition is fully stabilised.
The first factor is that the person has undertaken reasonable treatment for the condition or any further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the following two years. In summary, the Tribunal is satisfied that ZSLY has undertaken reasonable treatment by:
(a)attending regular consultations and taken advice from her treating general practitioner, Mr FY, in the years preceding and during the Qualification Period;
(b)attending six counselling sessions with and taken advice from Ms CL, her treating clinical psychologist, during which ZSYJ was provided with psychotherapy to assist her to develop strategies to help her cope; and
(c)taking Valium as prescribed by her general practitioner on occasion, as required to help relieve symptoms.
In relation to the Secretary’s contention that ZSYJ has not undertaken reasonable treatment because she should have undertaken “psychological, psychiatric and anti-depressant medication”, the Tribunal has taken into account the matters referred to above and its findings as set out in paragraphs [73] to [84]. In short, the Tribunal is satisfied that ZSYJ sought appropriate treatment to help her deal with her conditions by going on a mental health plan and consulting with her general practitioner and her clinical psychologist. Those two medical/health practitioners took up the care and management of ZSYJ’s condition. In the absence of any clear evidence that either of those practitioners had recommended, prior to or during the Qualification Period, that ZSYJ receive psychiatric care or that she commence taking a particular type of psychotropic medication or undergo a particular type of psychotherapy, and in the absence of any evidence that ZSYJ failed to comply with any such recommendations, the Tribunal is satisfied that ZSYJ had undertaken reasonable treatment as at the time of the Qualification Perion. Consequently, the Tribunal finds that ZSYJ had undertaken reasonable treatment for her conditions.
The Tribunal acknowledges that ZSYJ will continue to require ongoing medical and therapeutic care and preventative treatment for her significant mental health conditions as advised by her treating specialists. The Tribunal considers that this treatment is likely to be focussed on assisting ZSYJ to manage her debilitating conditions and to minimise any risk of her experiencing further psychotic episodes, such as those experienced in the past, and/or to prevent any involuntary admission of ZSYJ into a mental health care facility. However, the Tribunal does not consider that any further ongoing treatment provided to ZSYJ is likely to result in a significant functional improvement in ZSYJ to a level enabling her to work in the next two years or, given the longevity of those conditions (having existed for more than a decade) the Tribunal is not satisfied that this ongoing medical treatment is curative. The Tribunal considers this is reflected in the more recent opinion expressed by Dr MM that as at April 2017 and August 2017, that he did not recommend any further medication as a treatment of ZSYJ.
The second factor is not relevant as the Tribunal is satisfied that ZSYJ had undertaken reasonable treatment as at the time of the Qualification Period.
For the reasons set out above, the Tribunal finds that ZSYJ’s mental health condition was fully stabilised as at the time of the Qualifying Period.
Accordingly, the Tribunal is satisfied that ZSYJ’s conditions of “mixed anxiety disorder with features of social and generalised anxiety” and “borderline personality disorder with obsession-compulsive personality traits” were fully diagnosed, treated and stabilised as at the time of the Qualification Period. Given that ZSYJ had suffered from those conditions for a long period of time before and during the Qualification Period and that she had undertaken reasonable treatment for those conditions, the Tribunal finds that those conditions were likely to persist for a period of longer than two years. For these reasons, the Tribunal concludes that the two mental health conditions referred to in this paragraph are permanent conditions and as such, any impairment to her mental health function arising from those conditions will be assigned an impairment rating under Table 5 of the Impairment Tables.
Impairment rating under Table 5
The Introductory Notes to Table 5 set out as follows (among other things):
(a)Table 5 is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition;
(b)self-report of symptoms alone is insufficient;
(c)there must be corroborating evidence of the person’s impairment, for instance, treating doctors’ reports, assessment reports relating to the person’s mental health or psychiatric illness or information provided by the person’s carer(s); and
(d)it must be kept in mind that the person may not have a good self-awareness of their mental health condition.
The Secretary contends that if ZSYJ’s mental health condition(s) are found by the Tribunal to be permanent condition(s) as at the time of the Qualification Period, that they would attract an impairment rating under Table 5 of no more than 5 points on the basis that those condition(s) had a mild functional impact on activities involving her mental health function. ZSYJ’s application is based on the proposition that she is entitled to receive the DSP. Although ZSYJ did not expressly say so, by necessary implication, ZSYJ’s application is based on a contention that her mental health condition(s), which are the only condition(s) claimed, attracted at least a 20-point rating under Table 5, on the basis that those condition(s) had a severe functional impact on activities involving her mental health function. In between those two levels is a further level for a 10-point rating under Table 5, which will apply to a person if there is a moderate functional impact on activities involving mental health function.
Table 5 as prescribed by the Determination has been reproduced at Annexure A to these Reasons for Decision.
Whether or not a person’s condition is assessed as having a mild, moderate or severe functional impact on activities involving mental health function will depend on whether the person has a mild, moderate or severe level of difficulty in most of the following activities:
(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
Taking the first of those activities, self-care and independent living, an example of a person having mild difficulties with this activity is where “the person lives independently but may sometimes neglect self-care, grooming or meals”. An example of a person having moderate difficulties with this activity is where “the person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition”. An example of a person having severe difficulties with this activity is where “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”.
ZSYJ was recorded as being homeless between 12 August 2015 and 26 February 2016 in the “customer vulnerability” factors listed by AMES, who provided her with employment provider services following a referral by Centrelink.[57] At the time ZSYJ lodged her DSP claim, she was living in a room above a hotel in a suburb in Melbourne.
[57] Refer T-Documents T27/125.
ZSYJ was subsequently moved into a public housing unit in another suburb in Melbourne where she said she felt unsafe and was engaged in significant conflict with her neighbours. In about September 2018, the Tribunal was informed that ZSYJ had been moved to an alternative public housing unit in another suburb in Melbourne, where she is currently living. The correspondence provided to the Tribunal indicates that ZSYJ has continuing concerns about her new living arrangements, as she did with her previous living arrangements. ZSYJ is greatly disturbed by the rubbish left by others around the unit. ZSYJ’s considers the state of the new unit, like the previous unit, was “unliveable”. ZSYJ says she is also upset by the constant slamming of a nearby gate by the neighbours at the new unit.
At the hearing, ZSYJ gave evidence to the effect that she did not cook at home because she did not have a refrigerator and also because she did not feel safe (at that time she was living in the previous public housing unit). ZSYJ said that she ate her lunch at a local neighbourhood centre that provided meal services. At the hearing before the AAT1, ZSYJ gave evidence that she struggled to keep her home organised.
Based on the matters set out above, the Tribunal finds that as at the time of the Qualification Period, ZSYJ had severe difficulties living independently. At the time of her claim, as mentioned above, she was living in temporary room-only accommodation above a hotel. Although subsequently, ZSYJ was provided with opportunities to move into independent living arrangements through the public housing system, she has not done so with ease or established for herself what could characterised as independent, peaceful and effective day-to-day living arrangements. ZSYJ has not felt safe, has experienced continued issues with neighbours or about the state of the units provided to her and eats her meals at a place away from home where they can be prepared for and provided to her.
The Tribunal considers that all of those matters reflect the serious state of ZSYJ’s mental health condition(s). Although she is living on her own without care being provided to her, this is not working and she should be in receipt of regular in-home care to assist her. It appears though that the problem is that her family (i.e. her son or mother) or any other person or organisation, has not provided her with assistance to arrange for her to receive this care, or if those efforts have been made, that ZSYJ (again, most likely on account of her mental health issues) has been resistant to receiving the provision of such care (noting there was no evidence to this effect). Nevertheless, the Tribunal considers that such regular in-home care was needed by her, despite the fact that she was living alone, and for these reasons; the Tribunal concludes that ZSYJ has severe difficulties with self-care and independent living activities.
Social/recreational activities and travel and interpersonal relationships
ZSYJ leads a relatively isolated life. It appeared that relationships within her family were limited to the occasional visits she makes to see her son and grandchild in a regional town approximately 100km from Melbourne. Her mother and brother live on the west coast of Australia and the Tribunal did not gain an impression that she was close to those family members. ZSYJ has some contact with community services but there was no evidence that she had developed or maintained any friendships. ZSYJ’s previous relationship ended a number of years ago and the evidence disclosed that it caused her significant trauma. ZSYJ has not been able to develop positive relationships with her neighbours. To the contrary, the evidence revealed that she had experienced very significant conflict with her former neighbours when living in her previous public housing unit resulting in the issuing of apprehended violence orders.
ZSYJ has been able to maintain the practice of yoga which provides her with at least one avenue of recreational activity. ZSYJ does not travel, except to see her son and grandchild.
The Tribunal considers that ZSYJ’s conditions present a constant challenge to her developing and maintaining relationships and also to allow her to pursue and engage in social and recreational activities. The evidence suggests that ZSYJ is only able to do so to a limited extent. The Tribunal also gained an impression that ZSYJ only had the confidence to live and travel around familiar areas. This was evident in ZSYJ’s reluctance to move away from the place she has lived in and is familiar with, even though moving might provide her with a solution to some of the day-to-day difficulties as well as reducing her general cost of living (should she relocate away from more expensive inner-city living).
For these reasons, the Tribunal finds that ZSYJ had severe difficulties with social/recreational activities and travel and also with interpersonal relationships.
Concentration and task completion
The examples provided in Table 5 (as indicators that a person has severe difficulty with concentration and task completion) are that they have difficulty concentrating on any task or conversation for more than 10 minutes and/or they have slow movements or reaction time due to psychiatric illness or treatment effects. The second of those examples does not apply to ZSYJ but that is expected, given the particular type of mental health conditions she suffers. In relation to the first example, the difference between a person having a severe or moderate difficulty is whether they have difficulty concentrating for 10 minutes or 30 minutes respectively.
In the Second ESA Report, ZSYJ reported to the assessor that she had poor concentration (see paragraph [53]). The assessor listed her psychological/psychiatric condition as a barrier to be addressed and that her work capacity was reduced due to functional impairment resulting from her verified medical condition which the assessor stated, “limits concentration and emotional function and would impede the client’s capacity to cope with work-related stress or pressure, remain task-focussed and sustain productive work relationships”.
ZSYJ gave evidence to the AAT1 that she struggled to concentrate on a book for more than a page. At the hearing before this Tribunal, it was evident that ZSYJ experienced difficulty concentrating, although it was possible for her to remain reasonably focussed for the duration of the hearing.
Overall, there was limited evidence in relation to this particular activity. Based on the available evidence, the Tribunal is satisfied that ZSYJ has a moderate, and not severe, difficulty in the area of concentration and task completion. ZSYJ gave evidence that she had participating in yoga during the Qualification Period. For her to complete a class of yoga, the Tribunal considers that it would require that she had sufficient concentration and commitment to task completion to do so.
Behaviour, planning and decision-making
The evidence revealed that ZSYJ’s medical conditions had resulted in her behaving in a way that frequently fell outside of the bounds of normal behaviour. An example of such behaviour was the erratic conduct on 17 May 2016, which was of sufficient concern to prompt the police and ambulance to take her to hospital on an involuntary basis; to be admitted overnight and referred to the behavioural assessment unit at the hospital the following day, for assessment by a psychiatrist (see paragraphs [24] and [25] of these Reasons for Decision). This episode took place two months prior to ZSYJ making her DSP claim, i.e. immediately prior to the Qualification Period. A further psychotic episode took place two months later on 6 July 2016, falling within the Qualification Period, as outlined in paragraphs [26] to [29] of these Reasons for Decision.
The assessor who issued the Second ESA Report on 16 October 2015, i.e. seven months before the start of the Qualification Period, commented that ZSYJ had a permanent condition that impacts her work capacity and that functional impacts of the condition included (emphasis added), “a reduction in concentration, confidence, efficiency in task completion and motivation, which may affect endurance for work related tasks”. A further comment was made by the assessor, who was a clinical psychologist, that interventions aimed at addressing mental health concerns and “impacts of personal factors” were recommended (see paragraph [58] of these Reasons for Decision).
ZSYJ’s treating clinical psychologist, Ms CL, stated that she had a limited capacity for social or work engagement. Ms CL agreed with Dr MM’s diagnosis that ZSYJ suffered from “borderline personality disorder”. As described in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5), the essential feature of a borderline personality disorder is a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity that begins in early adulthood and is present in a variety of contexts.[58]
[58] Refer page 663 of DSM-5.
The Tribunal notes the recurring challenges that ZSYJ has faced for years, attempting to settle into a place to live that is free from conflict with neighbours or free from a perception on the part of ZSYJ that the residence is unsafe or not suitable for living purposes. It may be that ZSYJ’s perceptions are based on reasonable foundations. However, the Tribunal considers that ZSYJ’s response to those concerns and the way she has dealt with them, demonstrates her extreme, relentless and disinhibited behaviour toward others; which by the language she chooses to use, is bound to offend and potentially alienate those with whom she is dealing to try to address her concerns or to fix her problems.

Based on the matters set out in the above four paragraphs, the Tribunal is satisfied that ZSYJ’s conditions caused her to have had severe difficulty in her behaviour, planning and decision-making. The general impression gained by the Tribunal is that as at the time of the Qualification Period, this particular difficulty would, of itself, have prevented ZSYJ from being able to find and maintain any employment where she was required to interact with, or to be under the supervision of, other persons. This imposes significant limitations of the type of work ZSYJ would be able to do.
Work/training capacity
Upon consideration of the documentary evidence before the Tribunal and the oral evidence given by ZSYJ at the hearing, the Tribunal gained the impression that ZSYJ would like to be employed if she had the capacity to secure and maintain employment. ZSYJ struck the Tribunal as a person who was proud of her past academic achievements and work history and who would not hesitate to re-enter the workforce if she was given the opportunity to do so and it was feasible for her to do so. The Tribunal did not consider that ZSYJ preferred being unemployed. The Tribunal accepts ZSYJ’s evidence that she genuinely would like to improve her mental health (if this was possible), to a point that she was well enough to be able to work again.
However, ZSYJ has been out of the workforce for a long period of time, having last worked in 2011. The Tribunal considers that the multitude of identified barriers and required interventions, listed by the respective ESA and JCA assessors when they have assessed ZSYJ, reflected the significant impediments that she faced at the time of the Qualification Period in finding employment in the open market, while suffering from her two significant mental health conditions. For a number of years, she has struggled to even find a place where she can live in peace and it seems that this has consumed a good part of her daily existence.
Ms CL considers that ZSYJ has a limited capacity for employment participation. Mr FY has repeatedly certified ZSYJ unfit for work and study from November 2011 to the end of the Qualification Period (see table set out in paragraph [43]). The clinical psychologist who issued the second ESA report in October 2015 expressed a view that ZSYJ, at that time, was unable to participate in employment-related activities or programs of intervention.
In consideration of the above evidence, the Tribunal finds that as at the Qualification Period, ZSYJ was unable to attend work, education or training on a regular basis over a lengthy period due to her ongoing mental illness and consequently, had severe difficulties in respect of her work and training capacity.
Assignment of rating in consideration of the above
In conclusion, the Tribunal finds that ZSYJ had severe difficulty with almost all of the activities set out in paragraph [95]. For this reason, the Tribunal finds that there was a severe impact on ZSYJ’s activities requiring mental function; and consequently, her permanent conditions resulted in impairment as at the time of the Qualification Period that attracted 20 points under Table 5 of the Impairment Tables.
Is the second requirement under s 94(1)(c) of the Act met?
The third requirement under s 94(1)(c) of the Act to establish eligibility to receive the DSP is that the person had a continuing inability to work as at the time of the Qualification Period.
Continuing inability to work
The requirements necessary to establish whether a person has a continuing inability to work are set out in s 94(2) of the Act, as reproduced in paragraph [10] above.
The Tribunal has found that as at the time of the Qualification Period, ZSYJ had a severe impairment as defined in s 94(3B) of the Act, because her impairment attracted 20 points under a single table. Accordingly, ZSYJ is not required to establish that she actively participated in a program of support within the meaning of s 94(3C) of the Act or in other words, ZSYJ is not required to meet the requirement in s 94(2)(aa) of the Act.
The Tribunal notes that ZSYJ is tertiary educated, with a triple major in film, politics and indigenous studies (and Honours in cultural studies). ZSYJ also has considerable previous work experience, having worked as a state-registered nurse for a decade (part time) and subsequently, in contract administrative roles. However, ZSYJ has been out of the workforce now for a long time. ZSYJ has also been diagnosed with two significant mental health conditions. She has received treatment in the past, but the evidence would suggest that she has not responded to such treatment in any significant way. ZSYJ’s capacity for work, and seemingly also to provide basic care for herself, appeared to be deteriorating and not improving. The Tribunal is mindful that ZSYJ had two significant episodes immediate before and during the Qualification Period, requiring involuntary hospital attendance and admission. A psychiatrist at the Royal Melbourne Hospital had difficulty deciding whether or not she was prepared to release her. The anaesthetic registrar at the Western Health went one step further and recommended that ZSYJ be hospitalised. These are serious matters that the Tribunal is unable to ignore.
On balance, the Tribunal finds that, as at the time of the Qualification Period:
(a)ZSYJ’s impairment was, of itself, sufficient to prevent her from doing any work independently of a program of support within the two years to follow; and
(b)ZSYJ did not have the capacity to undertake a training activity in the two years to follow or to the extent that she could, that it was unlikely to have enabled her to work independently of a program of support within the two years to follow.
In conclusion, the Tribunal finds that the requirements under s 94(2)(a) and 94(2)(b) of the Act were met by ZSYJ as at the time of the Qualification Period. For these reasons, the Tribunal finds that ZSYJ had a continuing inability for work as at the time of the Qualification Period, for the purposes of s 94(1)(c) of the Act.
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that, as at the time of the Qualification Period:
(a)ZSYJ met the requirement under s 94(1)(a) of the Act as she had a psychiatric impairment;
(b)ZSYJ met the eligibility requirement as set out in s 94(1)(b) of the Act on account of the following:
(i)ZSYJ had two diagnosed conditions of “mixed anxiety disorder with features of social and generalised anxiety” and “borderline personality disorder with obsession-compulsive personality traits”;
(ii)those conditions were fully diagnosed, treated and stabilised and it was more likely than not that they would have persisted for more than two years. Therefore, those conditions were permanent within the meaning of s 6(4) of the Determination;
(iii)those two conditions had a severe impact on ZSYJ’s activities requiring mental function and the impairment resulting from those conditions attracted a rating of 20 points under Table 5 of the Impairment Tables;
(c)ZSYJ met the eligibility requirement as set out in s 94(1)(c) of the Act as she had a “continuing inability to work” on account of the following:
(i)ZSYJ was excluded from having to comply with the program of support requirements because she had a severe impairment;
(ii)ZSYJ’s impairment was, of itself, sufficient to prevent her from doing any work independently of a program of support within the two years to follow;
(iii)ZSYJ did not have the capacity to undertake a training activity in the two years to follow or to the extent that she could, that it was unlikely to have enabled her to work independently of a program of support within the two years to follow.
Accordingly, the Tribunal sets aside the decision of the AAT1 to reject her claim for the DSP and in substitution, decides that she was eligible to receive the DSP, from the date of her claim on 30 May 2016.

I certify that the preceding 127 (one-hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]......................................................................
Associate
Dated: 22 October 2018

Date of hearing:

Date final closing submissions received:

14 May 2018

12 September 2018

Representative for the Applicant:

Self-represented

Representative for the Respondent:
Mr Pietro Nacion, Lawyer
Sparke Helmore

ANNEXURE A

Extract from Impairment Tables prescribed under Social Security (Tables for the Assessment of Work-related Impairment for Disability Suppport Pension) Determination 2011

Table 5 – Mental Health Function

Introduction to Table 5

·   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:

a report from the person’s treating doctor;

supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

interviews 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.

Points

Descriptors

0

There is no functional impact on activities involving mental health function.

(1)      The person has no difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently and attends to all self care needs without support.

(b)      social/recreational activities and travel;

Example 1: The person goes out regularly to social and recreational events without support.

Example 2: The person is able to travel to and from unfamiliar environments independently.

(c)      interpersonal relationships;

Example: The person has no difficulty forming and sustaining relationships.

(d)      concentration and task completion;

Example 1: The person has no difficulties concentrating on most tasks.

Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.

(e)      behaviour, planning and decision-making;

Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.

(f)       work/training capacity.

Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.

5

There is a mild functional impact on activities involving mental health function.

(1)      The person has mild difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b)      social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d)      concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e)      behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f)       work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

10

There is a moderate functional impact on activities involving mental health function.

(1)      The person has moderate difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)      social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)      concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)      behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)       work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

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.

30

There is an extreme functional impact on activities involving mental health function.

(1)      The person has extreme difficulties with most of the following:

(a)      self care and independent living;

Example 1: The person needs continual support with daily activities and self care.

Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.

(b)      social/recreational activities and travel;

Example: The person is unable to travel away from own residence without a support person.

(c)      interpersonal relationships;

Example: The person has extreme difficulty interacting with other people and is socially isolated.

(d)      concentration and task completion;

Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.

Example 2: The person has extreme difficulty in completing tasks or following instructions.

(e)      behaviour, planning and decision-making;

Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.

Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training sessions other than for short periods of time.

[2018] AATA 3969

22 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Points	Descriptors
0	There is no functional impact on activities involving mental health function. (1) The person has no difficulties with most of the following: (a) self care and independent living; Example: The person lives independently and attends to all self care needs without support. (b) social/recreational activities and travel; Example 1: The person goes out regularly to social and recreational events without support. Example 2: The person is able to travel to and from unfamiliar environments independently. (c) interpersonal relationships; Example: The person has no difficulty forming and sustaining relationships. (d) concentration and task completion; Example 1: The person has no difficulties concentrating on most tasks. Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe. (e) behaviour, planning and decision-making; Example: There is no evidence of significant difficulties in behaviour, planning or decision-making. (f) work/training capacity. Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5	There is a mild* functional impact on activities involving mental health function. (1) The person has mild difficulties with most of the following: (a) self care and independent living; Example: The person lives independently but may sometimes neglect self-care, grooming or meals. (b) social/recreational activities and travel; Example 1: The person is not actively involved when attending social or recreational activities. Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments. (c) interpersonal relationships; Example: The person has interpersonal relationships that are strained with occasional tension or arguments. (d) concentration and task completion; Example 1: The person has difficulty focusing on complex tasks for more than 1 hour. Example 2: The person has some difficulties completing education or training. (e) behaviour, planning and decision-making; Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation. Example 2: The person has slight difficulties in planning and organising more complex activities. (f) work/training capacity. Example*: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10	There is a moderate* functional impact on activities involving mental health function. (1) The person has moderate difficulties with most of the following: (a) self care and independent living; Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition. (b) social/recreational activities and travel; Example 1: The person goes out alone infrequently and is not actively involved in social events. Example 2: The person will often refuse to travel alone to unfamiliar environments. (c) interpersonal relationships; Example: The person has difficulty making and keeping friends or sustaining relationships. (d) concentration and task completion; Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book). Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions). (e) behaviour, planning and decision-making; Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement). Example 3: The person’s activity levels are noticeably increased or reduced. (f) work/training capacity. Example*: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20	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.
30	There is an extreme* functional impact on activities involving mental health function. (1) The person has extreme difficulties with most of the following: (a) self care and independent living; Example 1: The person needs continual support with daily activities and self care. Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility. (b) social/recreational activities and travel; Example: The person is unable to travel away from own residence without a support person. (c) interpersonal relationships; Example: The person has extreme difficulty interacting with other people and is socially isolated. (d) concentration and task completion; Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes. Example 2: The person has extreme difficulty in completing tasks or following instructions. (e) behaviour, planning and decision-making; Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement. Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed. (f) work/training capacity. Example*: The person is unable to attend work, education or training sessions other than for short periods of time.