Levandovskaya and Secretary, Department of Social Services (Social services second review) [2020] AATA 4477 (6 November 2020)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

1. The Applicant, Miss Veronika Levandovskaya, seeks review of a decision of the Social Services and Child Support Division of this Tribunal ("Tier 1") made on 10 January 2018. That decision affirmed a decision of the Respondent (a delegate of the Secretary of the Department of Social Services) made on 4 August 2017 rejecting her claim for Disability Support Pension ("DSP") which was also affirmed by an Authorised Review Officer ("ARO") on 22 August 2017.
2. The Applicant's claim for DSP was made on 30 January 2017 for the following conditions (as set out by Tier 1): mental health conditions; left shoulder upper back pain; and other conditions including gastro oesophageal reflux disorder, high blood pressure and osteoporosis.
3. The Applicant's application to Tier 1 of this Tribunal dated 2 October 2017 was unsuccessful.
4. The Applicant then made an application to this Division of the Tribunal dated 22 January 2018 and in her application she mentions that the "condition" has been stabilised for the last five years without saying precisely which condition she is referring to.
5. A hearing by telephone was conducted in this matter over two days on 15 January 2020 and 28 May 2020. The second day was necessary to enable me to hear from Dr Paul Brown, consultant psychiatrist. This unfortunately did not happen.
6. At the hearing the Applicant was self-represented and the Respondent was represented by Ms M Underhill, lawyer at Services Australia.
7. Affirmed evidence was given by telephone by the Applicant. She was cross examined by Ms Underhill. The Respondent called no witnesses.
8. At the conclusion of the adjourned hearing I reserved my decision and indicated that it would be delivered in due course.
9. These are now the Reasons I give for the decision I have made to affirm the decision under review.

1. Qualification for DSP is governed by the Social Security Act 1991 (Cth) ("Act").
2. Section 94(1) of the Act as far as relevant provides:

94 Qualification for disability support pension

(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

...

1. The Impairment Tables referred to in s 94(1)(b) of the Act are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ("Tables"). A points impairment rating under the Tables is arrived at by assigning points according to the appropriate Table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.
2. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent. In order for a condition to be considered permanent, it must be fully diagnosed, treated and stabilised. Another of the criteria is that the condition must be corroborated. Further, each of subsections 94(1) (a), (b) and (c) of the Act must be separately satisfied.

1. It was found by Tier 1 that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act. Those conditions were stated as "major depression, post-traumatic stress disorder and left shoulder and upper back pain".
2. Tier 1 found as regards all such conditions that they were not fully diagnosed, fully treated and fully stabilised. Accordingly, Tier 1's decision was that the Applicant did not satisfy s 94(1)(b) of the Act and therefore could not be assigned any points under the Tables. Tier 1 therefore affirmed the decision under review which was to reject the Applicant's claim.
3. During the course of the hearing before me it became quite clear that the real issue is whether the Applicant satisfies subsections 94(1)(b) and (c) of the Act in respect of her mental health condition, although she does suffer other conditions.
4. That is, whether in respect of that condition the Applicant qualifies for an impairment rating of 20 points or more under Table 5 of the Tables. She argues that she does. The Respondent argues that the Applicant's conditions are not fully treated and stabilised, and cannot be assigned any impairment rating at all.
5. If I should find that the Applicant's conditions are permanent and that she does qualify for 20 points under Table 5, assuming corroboration, the issue then is whether she also satisfies s 94(1)(c) of the Act.
6. Pursuant to cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) these are all matters I must consider as at the date of his claim or within 13 weeks afterwards - that is, from 30 January 2017 until 30 April 2017. This is called the "qualification period".
7. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.
8. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter and I must proceed according to the civil standard of proof - that is, on the balance of probabilities. That means my findings must be made according to whether something is more likely than not to be so.
9. The Applicant contends that the decision under review should be set aside and that she has satisfied all the requirements of s 94(1) of the Act so far as they apply to her. It was clear to me, as I have indicated, that the focus of the hearing was on the Applicant's mental health condition.
10. The Respondent, on the other hand, contends that the Applicant does not satisfy s 94(1)(b) of the Act but that, if she does, she does not satisfy s 94(1)(c) of the Act and, accordingly, the decision under review is correct and must be affirmed. The Respondent also raises an issue of corroboration which, in effect, is one prior to the issue of s 94(1)(b).

1. The only evidence I heard was given by the Applicant herself. It is unnecessary to set out verbatim what was said by the Applicant and I shall, instead, summarise the main points.
2. The Applicant said that she was born in Russia in 1981 and came to Australia with her parents and older sister as a child.
3. She lives in Springvale, Victoria in a caravan, a "tiny, tiny place", in a "little" caravan park along with maybe 20 or 30 other caravans. She lives with a roommate who is not her partner. They have known each other for some time. They share expenses in a "mutual kind of arrangement". She said she feels claustrophobic and keeps the windows open a lot. She is not married, used to have a partner for some 12 years, and has no children.
4. The Applicant was educated to Year 11 standard and has a Diploma in Advertising and another in Music. She used to work as an admissions officer at The Avenue, a private hospital in Melbourne. She has also worked in medical reception and in real estate. For a while she was a singer. She has not worked for the past seven years but she has been a carer for her mother who has dementia who is now residing in a nursing home.
5. The Applicant said that on the day she applied for DSP she was "extremely depressed". She said this was because of "the whole situation...Everything combined".
6. The Applicant mentioned the depression related to "lack of work". She said she "needed to have some money" but "realised that I hadn't obtained any work and I realised that I couldn't really work in the state that I was in".
7. The Applicant said she has experienced depression for 10 or more years. When asked if she suffered depression, she answered - "Post Traumatic Stress Disorder, Major Depressive Disorder and Osteoarthritis".
8. The Applicant attributed her depression also to her back condition. She said, "I've had a very sore back" and she has suffered from this for 10 years or so. She said the pain from it "has gotten worse and worse over the years". She finds the pain "has a huge impact" on her life, describing "headaches and everything else".
9. The Applicant said that the breakup with her partner of 12 years had "absolutely" contributed to her depression. However, she said she was depressed before that happened.
10. In the background the Applicant also referred to some other disturbing things. She told me she had been "homeless" a couple of times, stating "I was on the street pretty much", and had also lived in her car. She said she had been evicted from her parents' house on a couple of occasions. When homeless she had stayed on one or two occasions at Launch Housing in Southbank in Melbourne.
11. The Applicant also stated that she said had been incarcerated for two months. It was difficult to make out quite what was the history here, but it seems it was for breach of a restraining order and assaulting police. She had also lost her driver's licence either then or subsequently, for 24 months. She said prison "was the worst time of [her] life".
12. I gathered from the Applicant's evidence that the restraining order or orders related to her parents' premises. On one occasion, the "big incident" she called it, when asked to leave, her father and her sister had slapped her across the face.
13. The Applicant said she has not been in contact with her parents for some time or "with any friends or anyone for many years".
14. The Applicant said she had been seeing Dr Boris Goloub, a psychologist, since November 2015 and is "still a patient of his currently now". It was Dr Goloub who had "established [the] diagnosis of adjustment disorder with anxiety and depression".
15. Previously the Applicant was prescribed Zoloft, an anti-depressant, but she said she stopped taking this. She said she used to smoke marijuana "to ease the pain". Indeed, she said she had started smoking marijuana when she "was quite young actually".
16. The Applicant then gave further evidence in answer to questions by me relevant to the Tables.
17. In cross examination, the Applicant agreed the only prescribed medication for her mental health condition she had taken was Zoloft and that she was not taking this at the qualification period. She said she had only taken it for "maybe two weeks".
18. She agreed she had been taking Mobic for her osteoarthritis as well as some natural products such as vitamins.
19. The Applicant agreed she had told her treating physicians that she was smoking marijuana and they had told her that it causes paranoia. However, she stated, "but I did tell them that obviously I have severe back pain in my left shoulder and in my back, so that is what I'd been using kind of as a relaxation for the pain". She said, "it really didn't bother me about the paranoia, it bothered me about the pain". She added "And I believe that it doesn't cause paranoia to such an extent as some people believe". But she agreed that one of her mental health characteristics is stated to be paranoia and she said "I would suggest that that probably is from using marijuana".
20. The Applicant agreed therefore with Counsel that during the qualification period she was doing things that potentially were worsening her mental health. Part of her response was though: "but I wasn't smoking marijuana all the time".
21. The Applicant agreed she had seen Ms Louise Sellenger, psychologist, who did a "very thorough" assessment of her. She agreed Ms Sellenger had recommended regular sessions of further treatment, but she said she only had the regulated five sessions. Ms Sellenger had also recommended "a medical review" and the Applicant said she had gone on to see Dr Goloub for cognitive behaviour therapy.
22. The Applicant also agreed she had seen Dr Brown, who had prescribed Seroquel, an anti-depressant, but she had never taken it and she had not been prescribed it on any earlier occasion. She said he knew "I don't like pills...I don't like being tranquilised". She said she knew it was a "major tranquiliser" and that she had "seen a lot of people die from taking tablets".
23. The Applicant said she believed she did have "some marijuana" while at Launch Housing during the qualification period - "some people were walking around with marijuana and I hadn't smoked for a period of maybe a year or two and there was a lot of people there just offering smoke and I was, you know, in a very bad state...". Some days while there she said she "was so heavily depressed" that she "just didn't want to get out of bed".
24. At the resumed hearing, the Applicant advised she had now qualified for DSP with respect to both her mental health condition and her osteoarthritis from 7 February 2020 and that therefore she was now concerned only with recovering payments for the period from 30 January 2017 until that date.

1. In order to qualify for DSP, the Applicant must satisfy each of the paragraphs of s 94(1) of the Act as far as relevant.

Section 94(1)(a)

1. The Respondent concedes in its Statement of Facts, Issues and Contentions ("SFIC") that the Applicant satisfies the requirement in s 94(1)(a) of the Act. That is in respect of her "mental health conditions". The plural "conditions" was used to reflect the components which make up generally the Applicant's mental health.
2. I consider that concession is well founded on the evidence. I have a view based on the Applicant's own evidence that she has or may have contributed to the severity of her conditions by her frequent use of marijuana over a long period of time.
3. No such concession is made by the Respondent as regards the Applicant's osteoarthritis, but on the evidence before me, I am satisfied the Applicant does satisfy s 94(1)(a) of the Act with respect to that condition.

Section 94(1)(b)

1. The first issue is whether the Applicant satisfies the requirement that her conditions (mental health and osteoarthritis) be permanent. If I find they are permanent it is then a matter of deciding what points rating she should be assigned under the Tables.
2. If I find the Applicant does satisfy s 94(1)(b), assuming corroboration, I must then decide whether she also satisfies s 94(1)(c) of the Act or not.
3. To be satisfied that the Applicant's conditions were permanent during the qualification period, I must be satisfied that they were fully diagnosed, fully treated and fully stabilised.

Fully diagnosed - (a) mental health conditions

1. Firstly, I find the Applicant's mental health condition was or is fully diagnosed.
2. I rely upon the concession of the Respondent in its SFIC. The concession made is one that during the qualification period, the Applicant was suffering mental health conditions. I have said I consider this concession to be one properly made and fully justified.

1. I am somewhat more doubtful about the Applicant's osteoarthritis, but I consider on balance the evidence supports a finding that the condition is one that has been fully diagnosed. I consider the Applicant's evidence is sufficiently to this effect, and also I refer to Dr Vasily Lebedev's certification for this condition in May 2018.

1. The SFIC makes it clear that the Respondent does not concede that the Applicant's mental health conditions at the qualification period was fully treated.
2. Further, the SFIC makes no mention of concessions in this regard in relation to the Applicant's osteoarthritis.
3. Paragraph 6(5) of the Tables stipulates that in determining whether a condition is fully diagnosed and fully treated (the former not arising except as regards the Applicant's osteoarthritis) for the purpose of paragraphs 6 (4)(a) and (b) of the Tables the Tribunal must consider:

(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.

1. I have considered each of the matters specified in para 6(5) and having done so I make the finding that the Applicant's mental health conditions were not fully treated at the qualification period.
2. It is quite evident to me that on the Applicant's own evidence, there were reasonable treatments open to her, and recommended to her, which she simply did not follow. In particular, I refer to her discontinuance of Zoloft after only two weeks and to the recommendation of Dr Brown (consultant psychiatrist) who prescribed Seroquel which she never got made up and thus never took.
3. The Applicant's explanation for not taking such medications - that she does not like taking tablets - I found unconvincing. This is especially so since she has been prepared to take vitamins and Mobic tablets and smoke marijuana, despite being told it may contribute to her paranoia.
4. But other things might be said. The Applicant, as I say, was told her marijuana smoking was implicated in her paranoia yet she did not immediately cease the product altogether. Indeed, her evidence was that she smoked it during the qualification period at Launch Housing. It is no excuse that it was freely available and she was feeling "in a very bad state".
5. This means by her own actions the Applicant was not helping her mental health conditions to stabilise but possibly or probably was worsening them.
6. Further, the Applicant was advised to have regular therapy sessions by Ms Sellenger (clinical psychologist), but seems never to have gone beyond the regulation number with apparently not much thought given to doing more than that.
7. In the circumstances, I cannot accept at all the Applicant's statement that "I believe that I've done all of the necessary medical treatments that were available".

1. I learned that the Applicant is taking Mobic to treat her osteoarthritis condition.
2. However, I do not consider that I am sufficiently placed to say whether she should be taking something else or should be having a course of injections or should be doing a range of special exercises.
3. I note that of recent times the Applicant may have taken up some exercising if I understand correctly what she meant by saying "I've gotten some medical equipment now, so I'm starting to do a little bit of medical work myself at home, so I am feeling a teeny little bit better". She also mentioned that she had commenced going to physiotherapy sessions.
4. I consider that because the Applicant has recently started receiving physiotherapy to treat her osteoarthritis, I cannot find that this condition was fully treated as at the qualification period.

Fully stabilised - (a) mental health conditions

1. The Respondent's SFIC also makes it clear that it is not conceded that the Applicant's mental health conditions as at the qualification period are fully stabilised
2. In determining whether I should find that the Applicant's conditions were fully stabilised at the time, I must again have regard to the matters set out in para 6(5) of the Tables and also to para 6(6) of the Tables which states:
   1. 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.

1. Having duly considered both the matters set out in para 6(5) and the stipulations contained in para 6(6), I have formed the view and find that the Applicant's mental health conditions at the qualification period were not fully stabilised.
2. To some extent I have dealt with this above. Inevitably there is some expected overlap between being "fully treated" and "fully stabilised".
3. If a person's condition has been fully treated, usually their condition will be fully stabilised. On the other hand, if a person's condition has not been fully treated, usually their condition will not have fully stabilised.
4. In any event, but separately though, I find the Applicant's mental health conditions were not fully stabilised at the qualification period.
5. There is insufficient evidence for a finding that as at the qualification period the Applicant's conditions had levelled out.
6. Indeed, the evidence I do have demonstrates that during this time, the Applicant was smoking marijuana at Launch Housing which, based on what she had been told, contributes to paranoia. So during that time it is in my view, as the question of Counsel suggested, the Applicant was doing something which could well be worsening her mental health or that component of her mental health relating to her paranoia.

1. I am unable to identify anything sufficiently to satisfy me that during the qualification period the Applicant's osteoarthritis had fully stabilised.

1. Having formed the view that the Applicant's conditions (mental health and osteoarthritis) do not meet the criteria of being fully treated and fully stabilised, I am unable to assign points in this matter under the Tables.
2. Having said that I acknowledge that the Applicant's has suffered serious back and/or neck pain for many years and has had serious mental health issues also for many years.
3. The Tables however are function based and do not operate upon the basis of the degree of pain (mental or physical) a person suffers. It is a pre-condition to assigning points under the Tables that a condition (mental or physical) be fully treated and stabilised and this condition is not met in the Applicant's case with respect to her conditions (mental health and osteoarthritis).

Section 94(1)(c)

1. As the Applicant does not meet the requirements in s 94(1)(b) of the Act, no occasion arises to consider whether s 94(1)(c) is met in her case.

1. I am satisfied the Applicant fails to meet meets all the criteria in s 94(1) of the Act.
2. Accordingly, the Tribunal affirms the decision under review.
3. This means the Applicant is not entitled to receive any payment of DSP from 30 January 2017.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

[sgd]........................................................................