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

[2024] AATA 546

Adams and Secretary, Department of Social Services (Social services second review) [2024] AATA 546 (28 March 2024)

Division:GENERAL DIVISION

File Number:2023/5203          

Re:Mr Shane Adams  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:28 March 2024

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 19 June 2023, to decline the applicant’s claim for the Disability Support Pension.

...............................[SGD].........................................

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – Appeal of decision of Social Services and Child Support Division – where purported impairments related to spinal condition – where competing evidence exists with respect to whether condition is fully diagnosed – where Tribunal considered report from Health Professional Advisory Unit – condition not fully diagnosed – section 94(1)(b) of Social Security Act 1991 (Cth) not satisfied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration Act) 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security Act 1991 (Cth)

CASES

Alicier and Secretary, Department of Social Services (Social services second review) [2017] AATA 538 (26 April 2017)

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA  404
Ljubovic and Secretary, Department of Social Services [2015] AATA 1025

REASONS FOR DECISION

Senior Member B. Pola

28 March 2024

BACKGROUND

1. On 11 August 2022, the applicant, Mr Shane Adams, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency)[1].

   [1] Exhibit TR1, T16, pages 100 to 130.

2. On 18 August 2022, the applicant was advised by the Agency that his claim for the DSP was rejected[2].  

   [2] Exhibit TR1, T18, pages 134 and 135.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on     9 February 2023[3].

   [3] Exhibit TR1, T24, pages 148 to 153.

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review the Agency’s decision to reject his claim for the DSP.

5. On 19 June 2023, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[4].

   [4] Exhibit TR1, T2, pages 5 to 39.

6. The applicant applied to the General Division of the Tribunal for a second review of this decision on 12 July 2023[5].

   [5] Exhibit TR1, T1, pages 1 to 4.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

8. The applicant’s claim of 11 August 2022 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, per their decision dated 9 February 2023. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on 19 June 2023.

9. In accordance with section 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 11 August 2022.

   ISSUES

10. The issues before the Tribunal for consideration are whether the applicant was medically qualified to receive the DSP in relation to his claim lodged on 11 August 2022 and ending 13 weeks later, on 10 November 2022 (herein referred to as the ‘Qualification Period’)[6], that is:

    (a)Whether the applicant had impairment(s) during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’)?

    (b)Whether the applicant’s impairment(s) attract 20 points or more under the Impairment Tables, contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)[7] (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

    (i)If so, did the applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    [6] The Qualification Period is discussed in later paragraphs of this decision.

    [7] The Tribunal notes a new Determination took effect from 1 April 2023, but for the purposes of the present

    RELEVANT LEGISLATIVE FRAMEWORK

11. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system

12. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of 20 points or more under one (or several) Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as ‘POS’).

13. Section 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[8] and determine whether the decision was the correct or preferable one based on the material before it[9].

    [8] Faulkner and Comcare [2007] AATA 1541 at [27].

    [9] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per

15. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

16. Section 6 of the Determination provides that, “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[10]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[11].

    [10] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)

    [11]  Ibid, section 6(2).

17. An Impairment Rating may only be assigned to an impairment if[12]:

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

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

    [12]  Ibid, section 6(3).

18. Further, for a condition to be considered permanent pursuant section 6(3)(a) of the Determination, the condition must also[13]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [13]  Ibid, section 6(4).

19. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[14]:

    (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 two years.

    [14]  Ibid, section 6(5).

20. A condition is considered fully stabilised if[15]:

    (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 two 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 two 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.

    [15]  Ibid, section 6(6).

21. Reasonable treatment is a treatment that[16]:

    (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.

    [16] Ibid, section 6(7).

22. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

23. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence and how to assign Impairment Ratings.

24. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

25. Meanwhile section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “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”.

    Continuing inability to work

26. As previously detailed in earlier reasons of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act stipulates that:

    (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.

27. A “severe impairment” is defined in section 94(3B) of the Act:

    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.

28. Section 94(3C) of the Act states that:

    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.

29. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on   3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate they have actively participated in a POS.

    QUALIFICATION PERIOD

30. Schedule 2, Part 2, section 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[17].

    [17] Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

31. For the purposes of this decision, the day which the applicant’s claim for the DSP was lodged with Centrelink was 11 August 2022[18] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 10 November 2022.

    [18] Exhibit TR1, T16, pages 100 to 130.

32. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[19].

    [19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012]   

    CONSIDERATION

33. The application was heard in Brisbane on 28 February 2024 with all parties appearing by telephone as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant was self-represented, and the respondent was represented by Mr Chris West of Sparke Helmore. The Tribunal considered oral submissions made by the applicant and respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

34. At the commencement of the hearing, the applicant stated that he had concerns with respect to material which he had provided the Tribunal containing information which he had not intended to submit, which the Tribunal collated and paginated at Exhibit A1. At the conclusion of the hearing the applicant proceeded to walk back his stated concerns, insisting he had not raised such issues at the commencement of the hearing. Nevertheless, at the conclusion of the hearing the Tribunal issued orders providing the applicant with an opportunity to remove material from his submissions that he did not intend to rely, by providing the Tribunal with notice of these references to Exhibit A1 by close of business on 13 March 2024. On the evening of 28 February 2024 the applicant responded by email to the Tribunal stating that upon having reviewed the Exhibit he no longer wished to remove submitted material.

35. Further, throughout the history of these proceedings, the applicant raised concerns with the additional time sought by the respondent in filing their material. Relevantly, the Tribunal refers to the following chronology stipulating the extension of time requests received by the Tribunal, and the action the Tribunal had taken with respect to the same:

    (a)On 18 December 2023, the respondent requested an extension of time to comply with a Direction issued by the Tribunal on 17 October 2023, citing the need for more time to obtain a Health Professional Advisory Unit report (herein referred to as an “HPAU report”);

    (b)On 19 December 2023, the applicant objected to the respondent’s request;

    (c)On 5 January 2024, the Tribunal issued a Direction granting the respondent an extension of time to file their statement of facts, issues and contentions and evidentiary material by 7 February 2024, and the applicant a commensurate extension to file any material in reply by 21 February 2024.

    (d)On 18 January 2024, the respondent requested a further extension of time to comply with the Direction of 5 January 2024, citing delays in obtaining the HPAU report.

    (e)On 25 January 2024, the applicant objected to the extension of time being granted.

    (f)On 29 January 2024, the Tribunal issued a Direction granting the respondent an extension of time to file their statement of facts, issues and contentions and evidentiary material by 16 February 2024, and the applicant a commensurate extension to file any material in reply by 26 February 2024.

36. In granting each of the requests for an extension of time, the Tribunal was of the view that it was reasonable to do so in the circumstances, particularly given the applicant had filed additional medical evidence, and the respondent was considering this evidence in formulating their submissions. Further, the Tribunal is of the view that procedural fairness was afforded to the applicant in circumstances where commensurate extensions of time were provided in order to respond to the submissions of the respondent.

37. The Tribunal notes the applicant has made many extraneous submissions to the Tribunal with respect to the conduct of the respondent, the respondent’s representative(s), and the Agency. The Tribunal makes no comment or findings with respect to such submissions of the applicant and notes the review of this application is limited to whether or not the applicant met the relevant legislative requirements with respect to his application for the DSP, with reference to the stated issues outlined in earlier reasons of this decision.

    Section 94(1)(a) of the Act (physical, intellectual, or psychiatric impairment)

38. It is not in contention that the applicant suffers from an impairment relevant to this application with respect to his medical eligibility for the DSP[20]. The Tribunal finds the impairment relevant to the application relates to the applicant’s spinal condition.

    [20] Exhibit R1, page 6, paragraph 4.25.

39. The Tribunal notes that there is some limited evidence with respect to the applicant’s mental health which the Tribunal queried as to the relevance of this condition to the applicant’s application at the hearing[21]. The applicant told the Tribunal that he did not seek to rely on this condition as part of his application.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

    [21] Exhibit A1, pages 125 and 127; and Exhibit TR1, T11, page 93.

40. The Tribunal will now consider the applicant’s spinal condition with respect to the application of section 94(1)(b) of the Act, and whether it meets the relevant provisions contained within the Determination.

41. In submissions before the Tribunal, the applicant stated that he has a decades long history of lower back pain, following an incident where he first injured his back in late 1990 during military service at the age of 17[22]. There is evidence before the Tribunal confirming the applicant’s service with the Royal Australian Air Force[23]. The applicant submitted his application for the DSP on 11 August 2022, and listed the following in the medical details section[24]:

    “… Scoliosis of the back

    Grade 1 spondylolytic spondylolisthesis L5 on S1 with a 9mm anterior shift and bilateral L5 spondylolytic defects…”

    [22] Exhibit TR1, T19, page 136.

    [23] Exhibit A1, page 3.

    [24] Exhibit TR1, T16, page 124.

1. With respect to the applicant’s submissions that he had a decades long history of lower back pain related to his spinal condition, there are letters before the Tribunal from 2011 and 2013 from the applicant’s treating chiropractor Rob Allan, which states the applicant had difficulty sustaining stability for his limbo/pelvic and cervico thoracic spine and this has impacted the applicant’s ability to undertake work[25].

   [25] Exhibit A1, pages 4 and 5.

2. A verification of medical condition(s) form completed by Dr S Vure (General Practitioner) on 14 October 2013 states the applicant had a permanent condition with a date of onset of                 1 August 2006 and diagnosed the applicant with Mechanical back pain (upper and lower).  Dr Vure further stated the applicant had symptoms of intermittent neck pain and lower back pain – severe, and that the applicant had been seeing a chiropractor every four to six weeks[26].

   [26] Exhibit TR1, T9, pages 86 and 87.

3. Medical imaging undertaken on 2 November 2021 confirms the following findings from X-ray imaging of the applicant’s spine[27]:

   “… Mild moderate thoracolumbar curvature convex left with slight curvature mid thoracic spine convex right. Grade 1 spondylolytic spondylolisthesis L5 on S1 with 9 mm anterior shift. Bilateral L5 spondylolytic defects noted.

   Vertebral body height preserved. Disc height preserved.

   No other osseous lesion identified. Paravertebral soft tissues normal appearance….”

   [27] Exhibit TR1, T12, pages 94 and 95.

4. A patient health summary printed on 20 June 2022, records a patient history by the applicant’s treating General Practitioner (herein referred to as “GP”). The record states the following from Dr Aye[28]:

   “… Mr Shane have chronic recurrent back pain and neck pain due to degenerative spine disease with aboved comfirmned diagnosis with Radiology report need regular Chiropractor services mainly for his cheronic back and neck pain to support his DSP application…”

   [sic]

   [28] Exhibit TR1, T13, page 96.

5. A letter from the applicant’s treating chiropractor dated 4 August 2022 provides a summary of the applicant’s spinal condition which he had been receiving treatment for, to which the Tribunal refers[29]:

   “… The radiologist report dated 02/11/2021 returned a diagnosis of a Grade 1 spondylolytic spondylolisthesis L5 on S1 with a 9 mm anterior shift and bilateral L5 spondylolytic defects (report attached). The condition accelerates early degenerative changes in the lower back and in most cases has symptoms of moderate to severe pain and at times instability. The described condition has flare ups of severe pain and usually always a steady state of moderate pain with bouts of severe pain and immobility.

   Shane has received 11 treatments since October 2021 to help manage his lower back pain and has reportedly received monthly Chiropractic adjustments since February 2007…”

   [29] Exhibit TR1, T15, pages 98 and 99.

6. The Tribunal observes that further medical evidence in the Exhibit Register has been submitted which post-dates the Qualification Period for this application, with reference to:

   (a)A medical certificate from Dr Gaafer (GP) dated 23 November 2022[30];

   (b)A letter from the applicant’s chiropractor Dr B. Loadsman dated 24 November 2022[31];

   (c)A form from the applicant’s GP Dr Mahmood dated 16 December 2022[32];

   (d)A referral letter from Dr Mahmood to Dr Scott-Young (Orthopaedic Surgeon) dated   23 February 2023[33];

   (e)A referral letter from Dr I McCausland to Neurosurgical Outpatients Clinic at the Gold Coast University Hospital dated 7 March 2023[34];

   (f)A letter from D Hardy (Osteopath) dated 10 March 2023[35];

   (g)A letter from E McDonald (Physiotherapist) dated 25 May 2023[36];

   (h)A letter from chiropractor B Loadsman dated 23 July 2023[37];

   (i)A letter from chiropractor T Hedley dated 23 August 2023[38]; and

   (j)A letter from Dr Hung (GP) dated 9 November 2023[39].

   [30] Exhibit TR1, T20, page 143.

   [31] Exhibit TR1, T21, page 144.

   [32] Exhibit TR1, T22, page 145.

   [33] Exhibit A1, page 121-123.

   [34] Exhibit A1, page 127.

   [35] Exhibit TR1, T25, page 154.

   [36] Exhibit A1, page 219.

   [37] Exhibit A1, page 321.

   [38] Exhibit A1, page 410.

   [39] Exhibit A1, page 435.

7. As transposed in earlier reasons, the Determination states that for a condition to be considered permanent pursuant to section 6(4) of the Determination, the condition must also be fully diagnosed by an appropriately qualified medical practitioner (amongst other listed conditions)[40].

   [40] Section 6(4) of the Determination.

8. Section 3 of the Determination provides that, “… appropriately qualified medical practitioner means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition…”.

9. The Tribunal will first consider whether the applicant’s spinal condition was considered fully diagnosed at the qualification period for this application.

10. The Tribunal is of the view that Dr Aye’s diagnosis of 20 June 2022, which was made following confirmation of the applicant’s condition by medical imaging conducted on               2 November 2021[41], fulfills the requirement of a diagnosis from an appropriately qualified medical practitioner. Whilst the Tribunal concurs with the reasons of the SSCSD of the Tribunal, which found that General Practitioners are appropriately qualified medical practitioners and are familiar with conditions such as scoliosis and spondylolisthesis, and are appropriately qualified to correlate the clinical history and examination findings with observed findings on imaging studies to establish the diagnoses[42]; it is clear on review of the submissions before the Tribunal there are differing clinical opinions as to the correct diagnosis of the applicant’s spinal condition.

    [41] Exhibit TR1, T12, page 94-95.

    [42] Exhibit TR1, T2, page 16, paragraph 40.

11. The Tribunal has before it an HPAU report undertaken by Dr Sandra (MB BCh BAO Grad Dip Pub Hlth) on 6 February 2024, which has been provided by the respondent[43]. With respect to Dr Sandra’s qualifications, it states the following:

    “… I obtained my medical degree in 1983, and have some 40 years’ experience as a medical practitioner. I completed GP training in the UK and was a vocationally registered GP. I worked in general practice here and in the UK for a number of years. I then worked as a medical officer in a specialist community mental health service in Australia for 15 years. I managed outpatients with serious psychiatric conditions, such as severe depression, schizophrenia and bipolar disorder. I also admitted patients to hospital and/or applied for community treatment orders, as necessary. I have been employed by Services Australia (formerly the Department of Human Services) in the HPAU since August 2010 to provide medical professional opinions. I obtained a Graduate Diploma in Public Health in January 2015…”

    [43] Exhibit R2.

12. The Tribunal is satisfied that Dr Sandra is appropriately qualified to provide an assessment as to the applicant’s spinal condition with reference to her stated qualifications in the HPAU report of 6 February 2024, with particular reference to their experience as a General Practitioner.

13. In preparing this report, Dr Sandra provided the following declaration and disclaimer:

    “… Declaration

    I have read the Guidelines for Persons Giving Expert and Opinion Evidence issued by the Administrative Appeals Tribunal (the Tribunal). I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal. No matters of significance have been withheld from the Tribunal.

    …

    … The opinion provided in this report is based on a file review and detailed analysis of the referenced documents, and, when applicable, discussions with treating health professional(s) (THPs). The author has not personally interviewed or examined the applicant…”.

14. The Tribunal has had regard to the reasons of Deputy President Alpins in Alicier and Secretary, Department of Social Services[44], where consideration was given to the inclusion of a report from the Health Professional Advisory Unit as evidence. The Tribunal is of the view that the report of Dr Sandra can be validly considered as part of the evidence to determine the current application. The fact that the opinion of Dr Sandra was provided by the respondent does not preclude this Tribunal from taking this evidence into consideration. Dr Sandra has appropriately qualified their opinion, noting that this has come from an examination of clinical evidence which is also before the Tribunal, and importantly, they have declared that they have not personally interviewed the applicant nor examined him.

    [44] Alicier and Secretary, Department of Social Services (Social services second review) [2017] AATA 538 (26

15. In considering the evidence of Dr Sandra within the HPAU report, the Tribunal has considered the applicant’s submissions with respect to this report[45]. The Tribunal does not agree with the applicant’s characterisation of Dr Sandra’s experience and suitability to provide an opinion as to the applicant’s spinal condition and is of the view that the opinion of Dr Sandra is valid in terms of considering the application of the corroborative medical evidence to the relevant legislative considerations in the application before the Tribunal.

    [45] Refer to Exhibit A3.

16. In applying weight to the report of Dr Sandra, the Tribunal has had regard to the rigour of Dr Sandra’s reasoning, and the derivative nature of their opinion in the absence of clinical examination of the applicant.

17. Dr Sandra was of the opinion that on review of the medical history and evidence currently before the Tribunal with respect to the applicant’s spinal condition, this condition was not considered fully diagnosed. Specifically, the Tribunal refers to the following[46]:

    “… As these spinal conditions are related and are all associated with similar symptoms, I consider it is appropriate to discuss them collectively. I consider that Mr Adam’s spinal conditions may not be fully diagnosed, as of the qualification period, as some of his symptoms are not entirely consistent with the spinal conditions found on X-ray. Mr Adams reports early morning back pain and stiffness waking him from sleep, which eases somewhat with a period of rest, although it is also exacerbated by activities such as bending and sitting. This could be keeping with an inflammatory arthritis such as ankylosing spondylitis, which would require further diagnostic testing and assessment by a rheumatologist. The severity of his pain also appears to be somewhat out of keeping with the relatively mild X-ray changes, also suggesting that other issues may be present. Furthermore, it seems that the only imaging he has had is the 3/11/21 plain thoracic and lumbosacral spine X-ray. The evidence from T Hedley expresses concerns about the instability of Mr Adam’s spondylolisthesis, but this has not been assessed with dynamic X-rays or CT. Instability seems unlikely given that he has mild/grade 1 spondylolisthesis. He has also not had an MRI which could assess the presence of spinal canal stenosis and/or nerve root impingement. If Mr Adams did have spinal canal stenosis and/or nerve root impingement, this could be the cause of his more severe symptoms and different treatment options would be available…”  

    [Tribunal bolding for emphasis]

    [46] Exhibit R2, pages 3 and 4.

18. The Tribunal is of the view the clinical opinion detailed by Dr Sandra is persuasive in circumstances where the competing opinion of Dr Aye in the patient health summary of              20 June 2022 is extremely brief and does not detail (for example) how recommended therapies such as chiropractic treatment optimally treat the applicant’s spinal condition, nor does it corroborate the reported pain levels the applicant states that he experiences against the findings from medical imaging undertaken by the applicant on 2 November 2021[47]. It is for these reasons the Tribunal prefers the opinion of Dr Sandra in their report of  6 February 2024.

    [47] Exhibit TR1, T12, pages 94 and 95.

19. The respondent has contended that in circumstances where there is clear clinical evidence that the applicant has not exhausted all relevant investigations to establish the diagnosis of his spinal impairment, that the applicant’s spinal impairment can not be considered fully diagnosed[48]. The Tribunal concurs and is not satisfied the applicant’s spinal condition is considered fully diagnosed in accordance with the Determination when considering the differing clinical opinion put forward in the HPAU report by Dr Sandra.

    [48] Exhibit R1, page 7, paragraph 4.29.

20. The Tribunal is of the view the applicant’s spinal condition is not considered fully diagnosed in accordance with the Determination, in circumstances where there are differing opinions from appropriately qualified medical practitioners regarding a diagnosis. In turn, the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act.

    Summary

21. The Tribunal has found the applicant’s spinal condition was not able to be assigned an Impairment Rating under section 94(1)(b) of the Act.

22. As the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

23. Although the Tribunal has found the applicant was not successful in his application for the DSP in the instant case, the Tribunal notes that this decision does not prevent the applicant from making a new claim for the DSP.

    DECISION

24. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 19 June 2023, to decline the applicant’s claim for the Disability Support Pension.

    I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ……………[SGD]….……………

    Associate

    Dated: 28 March 2024

    Date of hearing:  28 February 2024

    Applicant:  Mr Shane Adams (self-represented)

    Solicitor for Respondent:                  Mr Chris West (Sparke Helmore)

    Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1.	Respondent Statement of Facts, Issues and Contentions (total 13 pages)	R	16.02.2024
R2.	HPAU report (total 10 pages)		16.02.2024
Tr1.	Section 37 T-Documents (T1-T34, total 224 pages)	-	-	15.08.2023
A1.	Applicant Collated Bundle of Materials (total 435 pages)	A	-
A2.	Submissions regarding Tier 1 Decision (8 pages)		25/02/2024	26/02/2024
A3.	Submission regarding HPAU report (41 pages)		19/02/2024
A4.	Response to Respondent Statement of Facts, Issues and Contentions (20 pages)		26/02/2024

   application, the earlier Determination was in force during the Qualification Period for this application.

   Bowen CJ and Deane J).

    Determination 2011 (Cth), section 6(1).

   AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA  
   404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at
[31].

    April 2017) at [127] to [132]; and inter alia Ljubovic and Secretary, Department of Social Services [2015]  
    AATA 1025.