FEDERAL COURT OF AUSTRALIA Tisdell v Secretary, Department of Social Services [2017] FCA 351 Appeal from: Mark Tisdell and Secretary, Department of Social Services [2016] AATA 762 File number: NSD 1889 of 2016 Judge: ROBERTSON J Date of judgment: 11 April 2017 Catchwords: SOCIAL SECURITY – appeal on a question of law from decision of the Administrative Appeals Tribunal (Tribunal) – disability support pension – whether the applicant's impairment was of 20 points or more under the Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – whether conditions causing the impairment were permanent – whether applicant's condition of post-traumatic stress disorder (PTSD) permanent – whether the condition of PTSD fully treated – whether the condition of PTSD fully stabilised – whether applicant had undertaken reasonable treatment for the condition of PTSD – whether applicant's condition of depression permanent – whether the condition of depression fully treated – whether the condition of depression fully stabilised – whether applicant had undertaken reasonable treatment for the condition of depression – whether errors of law on the part of the Tribunal – whether decision of Tribunal legally unreasonable Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Social Security Act 1991 (Cth) ss 23, 26, 94 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 6, 7 Cases cited: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Date of hearing: 23 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 93 Counsel for the Applicant: Ms K Sant Solicitor for the Applicant: Legal Aid Commission of NSW Solicitor for the Respondent: Mr S Thompson of Sparke Helmore Lawyers ORDERS NSD 1889 of 2016 BETWEEN: MARK TISDELL Applicant AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent JUDGE: ROBERTSON J DATE OF ORDER: 11 APRIL 2017 THE COURT ORDERS THAT: 1. The application is dismissed. 2. Subject to order 3, the applicant pay the respondent's costs, as agreed or assessed. 3. If either party wishes to contend that order 2 should not be made, that party is to notify the associate to Robertson J and the other party on or before 19 April 2017, specifying the costs order for which he or she contends and the basis of that contention. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: Introduction 1 This appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 September 2016. The appeal is on and limited to a question of law: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [85]. 2 The Tribunal affirmed the decision under review, that decision being made by the Social Security and Child Support Division of the Tribunal on 24 June 2015. That decision affirmed the decision made by an officer of the Department of Social Services refusing Mr Tisdell's claim for a disability support pension which was made on 2 September 2014. The main statutory provisions 3 Mr Tisdell's claim for a disability support pension was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth). That provision was in the following terms: 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 … Section 94(1)(a) was not in issue as the Secretary accepted that Mr Tisdell suffered from post-traumatic stress disorder (PTSD) and depression during the relevant period. By s 23(1) of the Social Security Act, Impairment Tables means the tables determined by an instrument under s 26(1). 4 Section 26 provides: 26 Impairment Tables and rules for applying them Impairment Tables (1) The Minister may, by legislative instrument, determine tables relating to the assessment of work related impairment for disability support pension. (2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate. Rules for applying Impairment Tables (3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2). (4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate. 5 "Impairment" is defined in s 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination), to mean "a loss of functional capacity affecting a person's ability to work that results from the person's condition." 6 Under s 6(3) of the Determination, an impairment rating can only be assigned to an impairment if: (a) the person's condition causing that impairment is permanent; and (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. 7 Sections 6(4) to 6(7) of the Determination provide as follows: 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. 8 Section 10 of the Determination relevantly provided: Multiple conditions causing a common impairment (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table. (6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once. Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1. 9 Section 11 of the Determination provided: 11 Assigning an impairment rating (1) In assigning an impairment rating: (a) an impairment rating can only be assigned in accordance with the rating points in each Table; and (b) a rating cannot be assigned between consecutive impairment ratings; and Example: A rating of 15 cannot be assigned between 10 and 20. (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and (d) a rating cannot be assigned in excess of the maximum rating specified in each Table. (2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied. Descriptors involving performing activities (3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely. Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it. Episodic and fluctuating conditions (4) 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. No impairment resulting from a condition (5) To avoid doubt, where a person's diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned. 10 Table 5 of the Determination provided, in part: 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: o report from the person's treating doctor; o supporting letters, reports or assessments relating to the person's mental health or psychiatric illness; o 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. The Tribunal's findings 11 As I have said, the respondent Secretary accepted that Mr Tisdell suffered from PTSD and depression during the relevant period, which was 2 September 2014 to 2 December 2014. 12 The Tribunal said, at [6], that the issue for determination was whether PTSD and depression were fully diagnosed, treated and stabilised during the relevant period and, if so, what rating may be assigned for functional impairment in accordance with the Tables. 13 The Tribunal dealt separately, at [42]-[48], with the issue of Mr Tisdell's condition of borderline personality disorder but that issue does not arise on the present appeal. 14 The Tribunal said, at [17], that since Mr Tisdell's conditions were all mental health conditions, Table 5 (the Table) was the appropriate table to apply when assessing functional impairment. 15 The Tribunal found, at [18], that Mr Tisdell's long-standing psychiatric conditions of PTSD and depression were fully diagnosed during the relevant period. 16 The Tribunal identified, at [20], that the key issue before it was whether the conditions were fully treated and fully stabilised. This is a reference to ss 6(4)(b) and 6(4)(c) of the Determination. The Tribunal said that when addressing that issue, there were a number of questions which the Tribunal needed to consider and these were contained in s 6(6) of the Determination. 17 The first question, the Tribunal said, was whether Mr Tisdell had undertaken reasonable treatment. (I note that this is one of the alternatives for deciding whether a condition is permanent; which it is, relevantly, where it has been fully stabilised: see s 6(4)(c). One of the alternatives in s 6(6) is that the person has undertaken reasonable treatment for the condition. "Reasonable treatment" is in turn provided for in s 6(7). Other alternatives in s 6(6) are in s 6(6)(b), (i) that the person has not undertaken reasonable treatment for the condition and either: 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. I was told by counsel for the applicant that the latter provision, s 6(6)(b)(ii), had not been and was not relied on.) 18 At [21], the Tribunal noted a contention on behalf of Mr Tisdell that he had been on medication in the past with little effect, had had psychotherapy and cognitive behavioural strategies (CBT) and it was irrelevant that there may have been some treatment available that Mr Tisdell had not tried. This appears to be a reference to s 6(6)(b) of the Determination. 19 The Tribunal considered the written medical evidence. 20 The Tribunal referred at [22] to anger management and CBT treatment which, it appeared, Mr Tisdell had not undertaken. 21 The Tribunal referred, at [23], to medication which Mr Tisdell said he had decided himself was not working and he ceased that medication contrary to the advice of Dr Sukumaran, a clinical psychologist. 22 At [24], the Tribunal referred to a report of Dr Sukumaran dated 2 September 2014 to the effect that Mr Tisdell was referred to a psychiatrist. At the hearing Mr Tisdell advised that he saw that psychiatrist maybe once but for approximately 20 minutes. He said he could not recall seeing anyone else. Although Dr Sukumaran in that report recorded psychotherapy as current treatment for Mr Tisdell's depression, at hearing Mr Tisdell stated that he had "not taken up" the psychotherapy. 23 At [25], the Tribunal made findings as to the length of time Mr Tisdell had seen Dr Sukumaran. The Tribunal concluded it was probably for less than six months. 24 At [26], the Tribunal made findings as to Mr Tisdell appearing to have responded well to treatment but ceasing to see Dr Sukumaran, not because the treatment was ineffective, but because of his own personal views about his relationship with the treatment provider. The Tribunal found that Mr Tisdell was plainly responding well to the CBT strategies employed by Dr Sukumaran and this was a strong indication that completion of the treatment may have likely resulted in functional improvement. I take this to be a reference to s 6(6)(b)(i) of the Determination. 25 At [28], the Tribunal began its consideration of Dr Collins' written and oral evidence. She considered that the combination of counselling and medication undertaken was representative of reasonable attempted treatment. 26 At [29], the Tribunal accepted Dr Collins' evidence that trauma focused CBT was the most appropriate treatment, and that 8 to 12 sessions should be sufficient to tackle the traumatic experience suffered by Mr Tisdell. It restated this finding at [40]. 27 The Tribunal concluded, at [30], that trauma based CBT combined with prescription medication was reasonable treatment for Mr Tisdell's diagnosed PTSD and depression. The emphasis on the word "combined" is the Tribunal's. 28 At [31], the Tribunal said it did not accept Dr Collins' evidence that the combination of CBT and psychopharmacology attempted by Mr Tisdell meant that he had undertaken reasonable treatment. The Tribunal did not accept Dr Collins' evidence that Mr Tisdell completed an appropriate course of CBT. 29 At [32] and following, the Tribunal referred to the evidence as to medication. There is a reference to a 15 December 2015 report of Ms Schmutter, registered psychologist, stating that Mr Tisdell had said he ceased medications years ago and did not recommence during the period of consideration. 30 At [38], the Tribunal restated that it accepted Dr Collins' evidence that the mental health disorders suffered by Mr Tisdell coexisted. The Tribunal said: It follows that for me to be satisfied that Mr Tisdell's conditions are fully treated and stabilised, he must have undertaken CBT in combination with medication as prescribed. Undertaking one treatment but not another, is in my view, insufficient. Mr Tisdell has failed to complete or follow-up on any treatment commenced and instead has been self-medicating with cannabis. His evidence is that he ceased medication prescribed to him on his own volition. 31 At [39], the Tribunal said it was not satisfied that Mr Tisdell was unable to maintain any therapeutic relationships in the future. I take this to be a reference to s 6(6)(b)(ii) of the Determination. 32 At [40], the Tribunal referred to s 6(6) of the Determination and concluded that Mr Tisdell had not undertaken reasonable treatment. The Tribunal stated that there was no evidence that Mr Tisdell had resumed or undertaken trauma based CBT to completion, and referred again to Dr Collins' evidence that 8 to 12 sessions were required. 33 The Tribunal said, at [41], that it was not satisfied that Mr Tisdell's PTSD and depression were fully treated and fully stabilised during the relevant period. In light of the earlier reasons of the Tribunal, I take this to be an implicit reference to s 6(5)(b) and s 6(6)(a) and (b) as well as to s 6(7)(d). 34 The Tribunal then went on to consider the condition of borderline personality disorder. As I have said, this issue does not arise on the present appeal. For completeness, I note that the Tribunal found that that condition was fully diagnosed during the relevant period. The Tribunal found that borderline personality disorder is a distinct condition from PTSD, although there was overlap between the two disorders. The Tribunal referred, at [45], to the advice of Dr Collins in her report and at hearing that the most evidence-based treatment for the condition was dialectical behavioural therapy (DBT). The Tribunal found, at [46], that DBT was not reasonable treatment having regard to its accessibility and cost. 35 At [47], the Tribunal restated that it was not satisfied that Mr Tisdell had undertaken reasonable treatment as he had commenced trauma based CBT but he had not completed 8 to 12 sessions of the treatment, as recommended by Dr Collins. Accordingly the Tribunal was not satisfied that Mr Tisdell had undertaken reasonable treatment. 36 The Tribunal found, at [49], that Mr Tisdell's conditions were not permanent under the legislation. 37 The Tribunal affirmed the decision under review. The notice of appeal 38 The questions of law in the notice of appeal, as amended by leave, were stated as follows: 1. Whether the Tribunal failed to ask a question or asked itself a wrong question in determining whether the applicant had undertaken reasonable treatment for his medical conditions, being the psychiatric conditions of post-traumatic stress disorder ("PTSD") and/or depression? 2. Whether the Tribunal failed to ask a question it was required to ask in determining whether the applicant's PTSD was fully stabilised, being whether significant functional improvement to a level enabling him to undertake work in the next 2 years would be expected to result even if he undertook reasonable treatment or further reasonable treatment? 3. Whether the Tribunal failed to ask a question it was required to ask in determining whether the applicant's depression was fully stabilised, being whether significant functional improvement to a level enabling him to undertake work in the next 2 years would be expected to result even if he undertook reasonable treatment or further reasonable treatment? 4. Whether the Tribunal failed to deal with part of the claim made by the applicant, being the claim that his PTSD was fully treated and stabilised and was therefore a permanent condition within the meaning of the Social Security Act 1991 ("the Act")? 5. Whether the Tribunal failed to take into account relevant material in determining whether the applicant's medical condition of PTSD was permanent within the meaning of the Act? 6. Whether the Tribunal failed to make material findings of fact it was obliged to make or determine a question it was required to determine, being whether treatment with CBT for at least eight months was reasonable treatment for PTSD in terms of the Impairment Tables contained in Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination ("the Determination"))? 7. Whether the Tribunal came to a conclusion that the applicant had not had reasonable treatment for his PTSD and/or it was not fully treated and stabilised on a basis that was manifestly unreasonable and/or demonstrated that the Act and/or Determination had been misconstrued? 8. Whether, on the proper construction of s 6(6) of the Determination, the requirement of having undertaken reasonable treatment meant that the applicant had to demonstrate a level of commitment to the treatment and/or an intention to complete it or see it through. 39 The grounds in the notice of appeal were as follows: 1. The Tribunal found that the applicant's long-standing psychiatric conditions of PTSD and depression were not fully treated and stabilised during the relevant period. The PTSD and depression could not therefore be considered permanent within the meaning of the Act. 2. The Tribunal accepted the expert evidence of Dr Collins that trauma focused CBD was the most appropriate treatment for PTSD and that 8 to 12 sessions should be sufficient. 3. However, the Tribunal was not satisfied the applicant had completed an appropriate course of CBT, given the lack of evidence, including as to duration of therapy, from the treating psychologist, Dr Sukumaran, who had died before the hearing. 4. The Tribunal did not take into account the contemporaneous documentary evidence from Dr Sukumaran that he had treated the applicant for eight to ten months, which was medical information that must be taken into account in applying the impairment tables pursuant to clause 7 (1) of Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination ("the Determination"). 5. The Tribunal relied upon evidence that the applicant had probably seen Dr Sukumaran for less than six months. There was no such evidence. 6. The Tribunal's reasoning in finding the applicant had not completed CBT for his PTSD was so unreasonable as to give rise to error of law in circumstances where: (a) The applicant needed to have completed 8 to 12 sessions of CBT. (b) It did not take into account relevant contemporaneous documentary evidence from the treating practitioner that the treatment lasted at least eight or 10 months. (c) The unchallenged and uncontradicted evidence of the applicant was that he had attended weekly or fortnightly. (d) The Tribunal instead relied upon evidence that was not given that the treatment was probably for less than six months. (e) The reasoning of the Tribunal was illogical in that the conclusion that standard CBT of 8 to 12 sessions was not completed did not follow from a possibility, or even probability, that the treatment was for less than six months. 7. The Tribunal considered that the requirement of having undertaken reasonable treatment meant that the applicant had to demonstrate a level of commitment to the treatment and/or an intention to complete it or see it through. 8. The Tribunal further found that to be satisfied that the PTSD and depression were fully treated and stabilised, the applicant must have undertaken CBT in combination with antidepressant medication as prescribed and one treatment without the other was insufficient. 9. There is no requirement that every, or every psychiatric, condition be fully treated and stabilised. The Tribunal should have considered whether the applicant's PTSD was fully treated and stabilised on the basis of eight to ten months of CBT provided by Dr Sukumaran and did not do so. 40 As may be seen, grounds 1, 2, 3, 7 and 8 do not support a question or questions of law but are no more than statements of what the Tribunal found. The parties' submissions 41 The applicant submitted the key issue was whether Mr Tisdell's PTSD and/or depression were fully treated and fully stabilised at the relevant time. 42 In relation to PTSD, the applicant submitted his case was that standard treatment was CBT; a standard course of CBT was 8 to 12 sessions; and he had completed such treatment with Dr Sukumaran, a clinical psychologist. In relation to depression, he had been treated with antidepressants and counselling with little or no effect. 43 The applicant submitted that there was evidence that Mr Tisdell had received the standard course of 8 to 12 sessions of therapy. However, the Tribunal overlooked the evidence of Dr Sukumaran as to the duration of treatment. 44 The applicant submitted that to complete the process of dealing with Mr Tisdell's claim in relation to his PTSD, the Tribunal needed to determine what treatment he had had for his PTSD; decide whether his PTSD was fully treated and stabilised; and, if so, assign a rating under the Table in the Determination. 45 The applicant submitted that the Tribunal accepted Dr Collins' evidence that CBT was the most appropriate treatment and 8 to 12 sessions would be sufficient. However the Tribunal failed to find the applicant had completed 8 to 12 sessions and misconstrued the statutory requirements. 46 The applicant submitted that the Tribunal overlooked contemporaneous evidence from Dr Sukumaran that Mr Tisdell attended from December 2013 and was still attending as at October 2014. If accepted, this evidence, taken together with Mr Tisdell's evidence that he attended weekly or fortnightly, establish that he had received (at least) standard therapy of 8 to 12 sessions and, consequently, his PTSD was permanent and should be rated. The applicant submitted that s 7(1) of the Determination required the information provided by the health professionals specified in the relevant Table and any additional medical information that may be available to be taken into account in applying the Tables. The applicant submitted that the Tribunal had, thereby, erred in law. 47 The applicant submitted the Tribunal had also erred in deciding whether the applicant's PTSD was fully treated and stabilised. First, the Tribunal dealt with the two conditions of PTSD and depression together, as if they were one. The applicant submitted there was no requirement that a condition such as PTSD could not be considered permanent, including being considered fully treated and stabilised, unless another condition (in this case, depression) was considered fully treated, stabilised and/or permanent. The applicant could qualify for disability support pension on the basis of either or both conditions, he submitted. As there was evidence of sufficient treatment for PTSD, the Tribunal needed to deal with the applicant's claim in relation to his PTSD by considering whether it was fully treated and stabilised and could be rated, notwithstanding that the depression, a different condition, was not considered permanent. 48 The applicant also submitted that s 6(6)(b) meant that the condition could be considered fully stabilised even if the person had not undertaken reasonable treatment if significant functional improvement to a level enabling the person to undertake work in the next 2 years would not be expected even with reasonable treatment. That question, the applicant submitted, was raised squarely by Dr Collins' evidence that further treatment would not result in any significant functional improvement that would enable the applicant to work in the next 2 years. The legislation required this to be addressed separately in relation to each of his PTSD and depression, and it was not. 49 The applicant also submitted that the expression "the person has undertaken reasonable treatment for the condition" in s 6(6)(a) of the Determination was not a requirement as to the intentions of the person but was simply whether the person had received or undergone reasonable treatment. The applicant submitted that if he had not received reasonable treatment, that requirement would not be satisfied even if he promised to undertake the treatment or had a high level of commitment. Further, a person who had received standard therapy would satisfy the requirement even if he always had reservations or was never fully committed. The applicant submitted the Tribunal, at [40], misconstrued the legislative requirement. This point was the subject of the amendment to the notice of appeal, by leave, to add question of law 8, set out at [38] above. 50 The applicant also submitted that if the Tribunal did not make a finding that 8 to 12 sessions of CBT was the most appropriate treatment for PTSD, it should have done so and made further errors of law in failing to determine the matter. The applicant sought leave to add additional grounds and submit, in the alternative, that the Tribunal failed to ask a question it was required to ask and determine a material finding of fact in that respect. Since it was, or became, common ground that the Tribunal did make a finding that 8 to 12 sessions of CBT was the most appropriate treatment for PTSD, leave to amend in that respect was unnecessary. 51 The applicant also submitted that the Tribunal's conclusion that his PTSD was not permanent and could not be rated was legally unreasonable as its reasoning was irrational or illogical. A key part of the Tribunal's reasoning was its finding that there was "no evidence" that Mr Tisdell had undertaken the required trauma based CBT, being 8 to 12 sessions, to completion. That finding was wrong as there was such evidence, being the evidence of Dr Sukumaran and the applicant. 52 In this respect, the applicant submitted there were other factors as well: the Tribunal overlooked important evidence as to the duration of treatment; the Tribunal was wrong in saying that Mr Tisdell had stated his treatment with Dr Sukumaran was "probably for less than six months"; the Tribunal misconstrued the statute, approaching treatment for PTSD and depression as if they were one condition and requiring the applicant to demonstrate a level of commitment to treatment. The Tribunal's focus on what was required to treat both conditions distracted it from giving proper consideration to whether his primary condition of PTSD had been fully treated and stabilised; the Tribunal wrongly considered that the applicant had to have undertaken treatment for both conditions because they coexisted; requiring the applicant to have taken prescription medicines for PTSD for that condition to be considered fully treated and stabilised was irrational in the face of the evidence that the medicines were ineffective; and that requirement was not supported by any finding that such medicines were appropriate treatment for PTSD. 53 The respondent submitted that there appeared to be only four relevant grounds, being grounds 2, 4, 5 and 9. 54 As to ground 2, the respondent submitted it was based on a hypothetical situation that the PTSD was the applicant's only mental health condition. The reality was that the applicant suffered PTSD and depression, which were entangled disorders, and the optimal treatment was to treat them in combination. The Tribunal found that the applicant's PTSD and depression conditions required a treatment strategy (trauma focused CBT and prescribed medication) based on them being coexisting conditions. 55 As to ground 4, the respondent submitted there were three documents from Dr Sukumaran in evidence. The report dated 26 August 2014 did not mean that Dr Sukumaran had been treating the applicant with CBT between December 2013 and 26 August 2014. The letter dated 10 October 2014 and the fax dated 1 November 2015 shed no light on those matters of when the CBT commenced and the frequency of treatment. The Tribunal remarked on this paucity of evidence at [27] and [31]. The respondent submitted ground 4 was not sustainable. 56 As to ground 5, the respondent submitted there was evidence to support the Tribunal's finding at [25] that the applicant saw Dr Sukumaran "probably for less than six months". The respondent referred to transcript 22/1-18. The respondent also referred to the evidence from Dr Collins that she would have expected the relationship between the applicant and treating practitioner would deteriorate after three months. The respondent also referred to the evidence of Dr Philipos. The respondent submitted there was evidence to support the Tribunal's finding referred to in ground 5. 57 As to ground 9, the respondent accepted that if the applicant's diagnosed depression was not fully treated and stabilised but his diagnosed PTSD was considered as fully treated and stabilised, it would be appropriate to allocate points under the Tables for the impairment arising from his PTSD condition and vice versa. However, the respondent submitted, the Tribunal found that none of Mr Tisdell's conditions were fully treated and stabilised, and therefore none of the conditions could be regarded as permanent. Consequently, no impairments arising from those conditions were capable of being rated under the Tables. 58 The respondent submitted the Tribunal followed the correct process in arriving at its conclusion that Mr Tisdell's conditions were not fully treated and stabilised. 59 As to the applicant's contention that the Tribunal dealt with the two conditions of PTSD and depression together, as if they were one, the respondent submitted the issue for the Tribunal was whether Mr Tisdell had undergone reasonable treatment for his PTSD given that he also suffered from depression. It was not required that each condition have its own treatment program regardless of any other co-existing conditions and regardless of a treatment program for the combined conditions. In the present case, the Tribunal found that Mr Tisdell's PTSD and his depression conditions required a treatment program comprising CBT and prescription medication, based on them being co-existing conditions. This finding, the respondent submitted, was in accordance with the "reasonable treatment" requirement in s 6(6) and s 6(7) of the Determination. The respondent submitted the Tribunal considered Mr Tisdell's PTSD and depression conditions as separate "conditions" for the purpose of establishing whether each of those conditions could be regarded as permanent within the meaning of s 6(4) of the Tables and did not consider them as if they were one condition. The requirement in s 6(6)(a) that "the person has undertaken reasonable treatment for the condition" did not require the Tribunal to consider the requirement on the fiction, or an assumption, that it was the only condition afflicting the person. The reality was that Mr Tisdell suffered from the co-existing conditions of PTSD and depression. 60 The question for the Tribunal was what the "reasonable treatment" was for each of those conditions. The Tribunal's answer, in accordance with the medical evidence of Dr Collins, was a treatment program comprising trauma focused CBT and prescription medication. The Tribunal found that Mr Tisdell had not taken the relevant prescription medication for a sufficient period. He had discontinued the medication of his own volition. He had thereby not undertaken reasonable treatment for his condition of depression. The Tribunal also found at [31] that there was no evidence that Mr Tisdell completed an appropriate course of CBT. It could not therefore be said he had undertaken reasonable treatment for his PTSD. The process followed by the Tribunal was consistent with Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066; 49 AAR 157 at [54]. In the present case the Tribunal got no further than the first four steps described in Re Baum. Neither one of Mr Tisdell's conditions of PTSD and depression was permanent. 61 As to the applicant's contention that the Tribunal did not consider s 6(6)(b), the respondent submitted there was no evidence before the Tribunal that if Mr Tisdell had undertaken CBT during the relevant period significant functional improvement to a level enabling him to undertake work in the next 2 years was not expected to result. In any event, the respondent submitted, having concluded that Mr Tisdell's PTSD was not fully treated, there was no need for the Tribunal to consider whether it was fully stabilised as the requirements in s 6(4)(b) and (c), fully treated and fully stabilised, were cumulative or conjunctive. 62 As to the applicant's contention that the Tribunal considered that "reasonable treatment" implied or involved a particular level of commitment for seeing the treatment through, the respondent submitted that the Tribunal did not rely exclusively, or at all, on Mr Tisdell's commitment: Rather, the Tribunal found that Mr Tisdell did not see the treatment through, including the prescribed medication component of the treatment. The reason for Mr Tisdell not following through with the treatment was likely to have been a lack of commitment from the beginning, but relevantly he did not follow it through. 63 In reply, the applicant submitted that it did not follow from the two conditions of PTSD and depression coexisting that neither could be considered fully treated and stabilised unless Mr Tisdell had undertaken treatment for both. There was no requirement that a coexisting condition be permanent. The applicant submitted that if his diagnosed PTSD was fully treated and stabilised it would be appropriate to rate the impairment arising from the PTSD. It was incorrect that merely because the conditions coexisted, neither could be considered fully treated unless a treatment program to treat both had been implemented. There was no such requirement. The applicant submitted that the evidence of Dr Collins was that there could be a difficulty in disentangling which symptoms were caused by each condition when a person suffered from PTSD and depression. That evidence did not relate to treatment. At no point did the Tribunal find the PTSD could not be treated without treating the depression. In the absence of such a finding, the Tribunal needed to deal with the claim that the applicant's PTSD was fully treated and stabilised, rather than simply roll up the PTSD and depression as if they were one condition. 64 Referable next to ground 4, the applicant submitted that the Tribunal overlooked the medical report of Dr Sukumaran dated 26 August 2014 and his subsequent brief letter of 10 October 2014. The issue was duration of CBT treatment by Dr Sukumaran. In the same report as Dr Sukumaran stated that the applicant had been his patient since December 2013, he identified the current treatment as psychotherapy and CBT. The October 2014 letter stated that the applicant was undergoing "Psychology treatment for PTSD and Clinical Depression." 65 Next, referable to ground 5, the applicant submitted that the Tribunal's statement that "At hearing [Mr Tisdell] stated that it was probably for less than six months" that he saw Dr Sukumaran, was wrong. The applicant submitted that the Tribunal ignored the evidence from Dr Sukumaran as to duration of treatment and instead proceeded upon the basis of evidence from Mr Tisdell which he did not give. 66 Next, referable to ground 9, the applicant submitted there was no finding that the PTSD could not be treated unless the depression was treated or some treatment apart from CBT was required for the applicant's PTSD (as against fully treating his PTSD and depression). The applicant submitted that the Secretary was unable to point to anything in the decision of the Tribunal indicating that it considered whether the applicant's PTSD was fully treated and stabilised. 67 In conclusion, the applicant submitted that as there was no finding that his PTSD could not be treated without fully treating his depression, the issue was whether he had 8 to 12 sessions of CBT. That should have been determined, taking into account Dr Sukumaran's evidence as to duration of treatment. Consideration 68 In my opinion the following approach is necessary. 69 I first address which of the stated questions, and associated grounds, in the amended notice of appeal raise questions of law? Then, having identified any such questions, and associated grounds, I consider whether one or more of them is made out. 70 One question, which I will call the first question, which seems to me to be a question of law, is whether the Tribunal materially misunderstood its statutory task or the nature of the case it had to decide, on the ground that, first, it failed to decide whether the applicant's PTSD, of itself, was permanent or, second, failed to decide whether the applicant's depression, of itself, was permanent. The applicant's ground 9 may be seen as referable to this question. 71 A second question is whether the Tribunal did not take into account information provided by a health professional, being the duration of CBT treatment by Dr Sukumaran. This may give rise to a question of law, being whether the Tribunal failed to take into account information that it was required to take into account by s 7(1)(a) of the Determination. The applicant's ground 4 may be seen as referable to this question. 72 A third question I have identified is whether the Tribunal made a finding for which there was no evidence, being the finding that Mr Tisdell had (probably) seen Dr Sukumaran for less than six months. The applicant's ground 5 may be seen as referable to this question. 73 A fourth question is whether the Tribunal erred in its conclusion that standard CBT of 8 to 12 sessions was not completed. This is referred to in ground 6 and appears to be consequential on the second and third questions I have identified. 74 A fifth question is whether the Tribunal made a material error of law in not addressing the alternative in s 6(6)(b)(i), dealing with whether a condition has been fully stabilised. The applicant's question of law 3 may be seen as referable to this question. 75 A sixth question I have identified is whether the Tribunal misconstrued the expression "the person has undertaken reasonable treatment for the condition" in s 6(6)(a). The applicant's question of law 8, as added by amendment, may be seen as referable to this question. 76 The claimed ground of legal unreasonableness seems to me to do no more than put a different legal characterisation on the preceding questions. I consider it at [92] below. 77 I now turn to consider the first part of the first question I have identified at [70] above which is whether the Tribunal misunderstood its statutory task or misunderstood the nature of the case it had to decide, on the ground that it failed to decide whether the applicant's PTSD, of itself, was permanent. This turns on what the Tribunal said in its reasons, it being common ground in the submissions of the parties that if Mr Tisdell's diagnosed PTSD was considered as fully treated and stabilised it would be appropriate to allocate points under the Table for the impairment arising from his PTSD condition: see the respondent's written submissions at [6.2]. In my opinion, the Tribunal's approach was based on accepting the evidence of Dr Collins, which it set out at [29], which was that because Mr Tisdell suffered from both depression and PTSD, medication plus CBT was a good combination for treating both disorders. 78 In my opinion, at [31], in not accepting Dr Collins' evidence that Mr Tisdell completed an appropriate course of CBT, the Tribunal was addressing Mr Tisdell's condition of PTSD and doing so with reference to s 6(6)(a). Further, at [40], the Tribunal reverts to considering CBT and concludes that Mr Tisdell had not resumed or undertaken trauma based CBT to completion, that is, the 8 to 12 sessions of trauma based CBT which on the basis of the evidence of Dr Collins, the Tribunal accepted should be sufficient. 79 This leaves the second part of the first question I have identified at [70] above: did the Tribunal address itself to whether the condition of depression had been fully treated or fully stabilised? This aspect of the case received less emphasis in the submissions before me. 80 The conclusions of the Tribunal in this respect were largely stated at [38], where the Tribunal said that Mr Tisdell had failed to complete or follow-up on any treatment commenced and instead had been self-medicating with cannabis. Mr Tisdell's evidence was that he ceased medication prescribed to him on his own volition. This was against the Tribunal's statement of the evidence, at [23], that Mr Tisdell decided himself that certain prescribed medication was not working and he ceased medication even though Dr Sukumaran wanted him to continue on it and had suggested that the dosage be increased; and at [32] that he ceased medications years ago and did not recommence during the period of consideration. The Tribunal also concluded, at [34], that a later trial of medication fell outside the relevant period. 81 In my opinion, looking at the issue as a matter of the substance of the Tribunal's reasons, the Tribunal has considered the conditions of PTSD and depression and reached the requisite conclusions on the material before it as to the lack of permanency of each in the relevant period. 82 I find that both parts of this question should be determined in favour of the respondent. 83 As to the second question I have identified, at [71] above, the Tribunal referred to Dr Sukumaran's report dated 26 August 2014, but date stamped 2 September 2014, at [24]. I am not persuaded that that documentary evidence was overlooked. The Tribunal expressly set out some of the contents of that report. In my opinion the Tribunal reached its conclusion as to the duration of treatment by Dr Sukumaran in light of the applicant's evidence set out at [25] of the Tribunal's reasons. 84 Where a tribunal draws an available factual inference, its conclusion will not give rise to an error of law in fact-finding. In the present case, the Tribunal preferred the direct evidence given by Mr Tisdell as to the frequency and duration of the treatment for his PTSD, to indirect inferences, including as to the duration of Dr Sukumaran's CBT treatment of Mr Tisdell, from the documentary material which, because of his death, Dr Sukumaran could not amplify. Dr Sukumaran's written records did not disclose an answer to the question of frequency of current treatment. Neither did Dr Philipos answer the corresponding question in the report he supplied. Mr Tisdell's oral evidence was that he was seeing Dr Sukumaran for a short while and not that often. As between the available inferences, the choice made by the Tribunal was legally available. 85 I therefore do not accept the submissions on behalf of the applicant that the Tribunal did not deal with this part of the claim or that the Tribunal failed to consider the duration or the frequency of the CBT treatment or failed to take into account, as required by s 7 of the Determination, the information provided by the health professionals there specified. 86 Turning to that evidence, the third question I have identified, at [72] above, I do not accept that the Tribunal's finding that Mr Tisdell said that he saw Dr Sukumaran for probably less than six months makes out a "no evidence" ground. At page 22 of the transcript, in answer to questions as to him seeing Dr Sukumaran, the applicant said "it could've been less than six months." In answer to a question "probably less than six months?" the applicant answered "I can't recall but it could've been less than six." In my opinion, it was open to the Tribunal to conclude that the applicant saw Dr Sukumaran on the balance of probabilities for less than six months. Whether the Tribunal was referring to direct speech or its conclusion from direct speech does not give rise to legal error. This question should be answered in favour of the respondent. 87 The fourth question I have identified, at [73] above, is whether the Tribunal erred in its conclusion that standard CBT of 8 to 12 sessions was not completed. This seems to me to turn largely on the answers to the second and third questions I have identified. In my opinion it was open to the Tribunal to conclude, on the basis of the material referred to at [24]-[26] of its reasons, that Mr Tisdell had not completed standard CBT of 8 to 12 sessions. Mr Tisdell did not give evidence that he had completed standard CBT of 8 to 12 sessions. This question should be answered in favour of the respondent. 88 As to the fifth question I have identified, at [74] above, whether the Tribunal made a material error of law in not addressing the alternatives in s 6(6)(b), only s 6(6)(b)(i) is in issue, that is whether the Tribunal failed to consider whether, if Mr Tisdell had not undertaken reasonable treatment for the condition, significant functional improvement to a level enabling him to undertake work in the next 2 years was not expected to result even if he undertook reasonable treatment. In my opinion, the Tribunal did address s 6(6)(b)(i) of the Determination. The Tribunal referred, at [26], to the evidence as giving a strong indication that completion of the CBT treatment may have likely resulted in functional improvement. As to medication, the Tribunal said at [30] that there was no evidence as to why Mr Tisdell could not continue to take prescribed medication. Mr Tisdell's evidence was that he ceased medication prescribed to him on his own volition: see the reasons of the Tribunal at [38]. It was for the applicant to put forward material in these respects. I note, for completeness, that the Tribunal also addressed, at [39], what seems to have been raised as a compelling reason for Mr Tisdell not to undertake reasonable treatment for the purposes of s 6(6)(b)(ii) of the Determination, that is the claimed difficulty of Mr Tisdell maintaining any therapeutic relationship. The Tribunal stated it was not satisfied that Mr Tisdell was unable to maintain any therapeutic relationships in the future. This question should be answered in favour of the respondent. 89 As to the sixth question I have identified, at [75] above, whether the Tribunal misconstrued the expression "the person has undertaken reasonable treatment for the condition" in s 6(6)(a), this turns in part on what the Tribunal meant at [40] of its reasons. 90 Although I would not regard what the Tribunal said it was extracting from the Macquarie Dictionary as necessarily accurate or useful, in substance the Tribunal was not focusing on the state of mind of the applicant but on what he did or did not do by way of reasonable treatment for the condition. The Tribunal's approach was to say that Mr Tisdell had commenced forms of treatment but he had not been reviewed in order to assess any benefits or effect received as a result. Further, he had refused to follow doctors' recommendations and suggested strategies, most significantly failing to trial different doses of prescription medication and refusing or failing to undergo any psychiatric review/intervention. He had not resumed or undertaken trauma based CBT to completion. 91 In my opinion, there was no legal error on the part of the Tribunal in this respect. It was open to the Tribunal to conclude that Mr Tisdell had not undertaken reasonable treatment for the condition. The Tribunal did not ask itself the wrong question. 92 Because I have answered each of the individual questions in favour of the respondent, no question of legal unreasonableness remains. I reject the submission on behalf of the applicant, in reliance on Haritos at [216]-[217]; [2018]-[2019], that the Tribunal failed to deal with possibly significant evidence for a reason that had no evidential foundation or was sufficiently irrational or illogical as to be legally unreasonable. For the reasons set out above, I also reject the submissions that the Tribunal: overlooked important evidence as to the duration of treatment; erred in law in saying that Mr Tisdell had stated his treatment was "probably for less than six months"; and misconstrued the statute and was thereby distracted from giving proper consideration to whether Mr Tisdell's primary condition of PTSD had been fully treated and stabilised. I also note that for a person's condition causing an impairment to be permanent, the condition must be both fully treated and fully stabilised. I have found that there was no legal error on the part of the Tribunal in concluding that Mr Tisdell's conditions were not fully stabilised. Conclusion and orders 93 For these reasons, I find no error of law in the Tribunal's reasons, I dismiss the appeal. In relation to costs, my preliminary view is that the applicant should pay the respondent's costs, but if either party wishes to contend for some different result I will hear them. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 11 April 2017