Akkok and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4137

Akkok and Secretary, Department of Social Services (Social services second review) [2021] AATA 4137 (8 November 2021)
Division:GENERAL DIVISION
File Number: 2021/0945
Re:Tugce Akkok
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member R West
Date:8 November 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Member R West
Catchwords
SOCIAL SECURITY – disability support pension – DSP refused - First Tier Review affirmed - s.147 Administration Act – liver disease - arthritis – Von Willebrand Disease - whether conditions fully diagnosed, treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services [2014] AATA 447
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
REASONS FOR DECISION
Member R West
8 November 2021
BACKGROUND

This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 5 February 2021, affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (DSP).
The relevant history of the matter is as follows:
(a)The Applicant made her original application for DSP on 5 February 2014.[1]
(b)The application was assessed and refused on 28 February 2014 (the Initial Decision)[2].
(c)An authorised review officer (ARO) affirmed this decision on 15 May 2014[3] (the ARO Decision).
(d)On 9 November 2020, the Applicant requested review of the ARO Decision.
(e)A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (the First Tier Review) and a decision affirming the ARO Decision was handed down on 5 February 2021.[4]
(f)The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 17 February 2021.[5]
[1] T documents (T3).
[2] T7.
[3] T16.
[4] T2.
[5] T1.
A hearing in relation to the Second Tier Review was held on 14 September 2021. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. The Tribunal determined pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) to conduct the hearing by telephone. The Applicant was self-represented. The Respondent was represented by Ms Vincci Chan, a solicitor with Services Australia.
LEGISLATION
The Tribunal has had regard to the following relevant legislation in making its decision:
(a)Social Security Act 1991 (the Act);
(b)Social Security (Administration) Act 1999 (the Administration Act);
(c)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;
(d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Active Participation Determination); and
(e)The AAT Act.
PRELIMINARY CONSIDERATION
The Respondent asserted at the hearing that there was no utility in the Tribunal determining the Second Tier Review by reason of the operation of Item 8 of s 147 of the Administration Act.
The Respondent asserted that by reason of Item 8 the ARO Decision was deemed to have taken effect on the date the Applicant applied for the AAT1 Review, namely 9 November 2020.[6] This had the effect that on the Second Tier Review the Tribunal could not determine that the Applicant receive the DSP earlier than the deemed date of the ARO Decision under s.43(6) of the AAT Act. The Applicant had by a separate decision been granted the DSP earlier on 23 March 2020[7]. Accordingly, the Respondent argued that the Tribunal could not alter the Applicant’s entitlement, even if satisfied that her claim on review was substantiated and there was no utility in making a determination on her claim.
[6] Supplementary T documents (ST4).
[7] ST6.
Item 8 of s.147 of the Administration Act relevantly provides that for the purpose of the First Tier Review s.43(6) of the AAT Act has effect as if the decision under review had taken effect on the day a person applied for AAT first review of the decision, if:
(a)the person is given written notice of the decision under the social security law; and
(b)the person applies for AAT first review more than 13 weeks after the notice was given; and
(c)on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the AAT's decision is:
(i)to grant the person's claim for a social security payment or a concession card; or
(ii)to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii)to increase the rate of the person's social security payment
In the Applicant’s case, all of the requirements of Item 8 are not satisfied. The AAT1 Decision did not vary the ARO Decision or set it aside. The AAT 1 Decision affirmed the ARO Decision.[8] Accordingly, the deeming provisions of Item 8 are not relevant to the Applicant’s case and it is appropriate for the determination of the Second Tier Review to proceed.
[8] T2 at p.5.
DSP QUALIFICATION
To qualify for a DSP, an Applicant must satisfy the requirements set out in s 94(1) of the Act, as assessed during the Qualification Period.
In essence, s 94(1) of the Act requires that:
(a)The Applicant have a physical, intellectual or psychiatric impairment; and
(b)The Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and
(c)The Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and
(d)The Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.
Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.
Section 7 of the Active Participation Determination provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.
EVIDENCE AND SUBMISSIONS
In conducting the Second Tier Review, the Tribunal had regard to the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act (T Documents and Supplementary T Documents) and the oral evidence of the Applicant.
CONDITIONS
The Applicant’s claim on review relates to the following conditions:
(a)Liver Disease;
(b)Arthritis; and
(c)Von Willebrand Disease.
The Applicant’s essential argument on review was that the extent of her impairment resulting from her conditions had not changed from the time she made her initial application for the DSP in 2014 until the time she was granted the DSP on 3 November 2020, starting from 23 March 2020. She asserted that the same considerations justifying her successful claim in 2020 should apply to her initial claim in 2014.
While the Tribunal acknowledges the logic of the Applicant’s assertion, a decision in relation to the granting of DSP must be made having regard to evidence of the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter (Qualification Period). Evidence of the Applicant’s condition subsequent to the Qualification Period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[9]
[9] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992, [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 144,[33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353, [7].
In this case, the Qualification Period commenced on 5 February 2014 and ended on
7 May 2014.
The first task for the Tribunal is to determine whether the Applicant suffered from a condition(s) causing physical, intellectual or psychiatric impairment during the Qualification Period. If it is established that the Applicant suffered from a condition during the Qualification Period, the Tribunal must assess the impairment resulting from that condition and be satisfied that the impairment is permanent. This requires the Tribunal to assign an impairment rating for the condition under the appropriate Impairment Tables. A rating can only be assigned if the Tribunal is satisfied that during the Qualification Period, the Applicant’s condition causing the impairment was fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[10]
[10] S 94(1) of the Act.
In assessing the evidence in this case two considerations are relevant. First, the introductions to each of the relevant Impairment Tables make it clear that the self-reporting of symptoms alone is insufficient and that there must be corroborating evidence. Secondly, because it is now over seven years since the date of the Applicant’s 2014 claim, care must be exercised in attributing the weight to be given to evidence of the Applicant’s conditions during the Qualification Period. In general, evidence based on observations made at or about the Qualification Period should be given greater weight than evidence based on later recollection.
ASSESSMENT
Liver Disease
The Respondent accepts that the Applicant’s liver disease was fully diagnosed, treated and stabilised during the Qualification Period, but asserts that the condition should be assigned nil points under the Impairment Tables.
That the Applicant had experienced liver failure as a child and required a liver transplant was confirmed in a medical report of Dr Jane Munro, a paediatric rheumatology, dated 7 February 2014.[11] Dr Munro stated that the Applicant had experienced liver failure requiring a liver transplant and immunosuppression and monitoring. This was confirmed in various medical reports included in the T documents.[12] The onset of the Applicant’s liver condition was from birth and she underwent surgery in 2002 when she was five years old.[13] She was treated with tacrolimus and methotrexate and regularly reviewed by gastroenterologists[14].
[11] T5 at p 33.
[12] T9, T11, T17, T23, T23, T26, and ST1.
[13] T9 at p.50-51.
[14] See T9 at pp 50-52, T13 at pp 65-88, T17 at p 106 and T23 at p 133.
The Tribunal is satisfied on the basis of this evidence that the Applicant’s liver condition was fully diagnosed, treated and stabilised during the Qualification Period and was expected to persist for more than 24 months.
The appropriate Impairment Table for assessing the functional impairment resulting from the Applicant’s liver condition is Table 1 – Functions Requiring Physical Exertion and Stamina.
The Applicant gave evidence that following the liver transplant and during the Qualification Period, her liver did not function properly and she had difficulty in digesting medication. She said she was immuno-compromised and the risk of infection prevented her from going outside the house so that she could not undertake exercise appropriate to her age. She also said that her medication caused her to be lethargic and fatigued which affected her cognitively and she suffered major depression. She said she was bed-bound as a result of her various medical conditions, although she specifically identified her arthritic condition as the principal source of her incapacity
The Applicant’s evidence regarding the effect of her liver condition is not corroborated by the medical opinion at or about the time she made her claim for the DSP.
First, there is no medical evidence to confirm the Applicant’s claim that she was suffering a depressive condition.
Secondly, her claim that her liver was not functioning properly is at odds with the medical opinion. In a report dated 13 March 2014[15] Dr Pavla Walsh noted that the Applicant’s condition was generally stable but requires periodic review with the potential for deterioration. Dr James stated in a report of 16 June 2014 that the Applicant had made excellent progress. Normal liver function and that there was limited impact on function.[16] Dr Chong also stated on 11 June 2014 that there was near normal liver function tests.[17]
[15] T23 at p.138-139.
[16] T9 at pp 51-52.
[17] T12 at p 78.
While the medical evidence does indicate that the Applicant was at some risk of infection following the transplant it does not corroborate the Applicant’s claim that she could not go outside or that she suffered lethargy and fatigue and was bed-ridden. Dr Munro stated in a report of 20 December 2014 that the Applicant’s liver condition had ‘little current impact on day to day basis.[18] She described the condition as generally well managed and causing minimal or limited impact.
[18] T13 at p 88.
Having considered the medical assessment at or about the Qualification Period the Tribunal is satisfied that the Applicant’s liver condition had not resulted in a functional impairment meeting the criteria for a mild, moderate, severe or extreme level of impairment. The medical evidence does not establish that during the relevant period the Applicant’s liver condition prevented her from undertaking exercise appropriate for her age for at least 30 minutes or that it caused her to have difficulty completing physical activities around her home and in the community. Accordingly, a rating of nil points under Table 1 is appropriate.
Arthritis
The Respondent accepts that the Applicant’s arthritis was fully diagnosed, treated and stabilised during the qualification period and had a mild impact on activities using her hands, arms and lower limbs and should be assigned a maximum of 5 points under Table 2 and 5 points under Table 3.
A diagnosis of juvenile arthritis (polyanticular) was noted by Dr Munro on 7 February 2014[19] and confirmed in various other medical reports provided to the Tribunal.[20] The reports confirm that the Applicant’s arthritis was treated with injections, steroids, physiotherapy, reviews, Methotrexate, Prednisolone and Naproxen and was expected to persist for more than 24 months.
[19] T5 at p 30.
[20] See reports of Dr Elliot, Dr James, Dr Catto-Smith, Dr Shyam, Dr Walsh, Dr Ferdiakbas and Dr Monagle at T5, T11, T12, T13, T17, T23, T26, and T36.
On the basis of this evidence, the Tribunal is satisfied that the Applicant’s arthritis was fully diagnosed, treated and stabilised during the Qualification Period.
The appropriate Impairment Tables for assessing the functional impairment resulting from the Applicant’s arthritic condition are Table 2 – Upper Limb Function and Table 3 – Lower Limb Function.
Table 2 – Upper Limb Function
The Applicant gave evidence that her arthritic condition had a serious effect on her upper limb functioning, and especially her right wrist during the qualification period. The Applicant said she was unable to attend school and had to receive individual tutoring from her teachers at her home. She said that she could not write with a pen or operate a computer keyboard, although she acknowledged that she could use a touch screen such as an iPad. The Applicant told the Tribunal she could not hold a book to read and required assistance to turn the pages. The Applicant also stated that she could not lift more than 1 kg or open screw tops or do up buttons. She said that she needed assistance from her mother to shower and wash her hair because of the pain in her wrists.
In her initial claim for the DSP dated 5 February 2014 the Applicant made no mention of any effect of her arthritis condition on her upper limb function.[21]
[21] T3.
A job capacity assessment report completed on 28 April 2014[22] assessed the effect of the Applicant’s arthritis on her lower limb function but made no mention of any effect on her upper limb function. The medical report of Dr James on 16 June 2014[23] noted knee and ankle pain but did not report any effect on the Applicant’s upper limb function. Similarly, an assessment of the Applicant’s medical condition given by Dr Baher on 12 March 2014[24], while mentioning each of the Applicant’s conditions, referred only to polyarthritis of the knees and ankles. It made no reference to upper limb function. In his report of 11 June 2014,[25] Dr Chong noted that the Applicant had complained to him of foot and knee pain but he also made no mention of any impairment to her upper limb function. A report by Dr Catto-Smith dated 30 June 2014[26] noted pain in the feet and ankles due to arthritis but made no mention of upper limb function. Similarly, a report by Dr Khot dated 31 July 2014[27] refers only to arthritic pain in the right ankle.
[22] T7 at p 41.
[23] T9 at p.53.
[24] T12 at p 76.
[25] T12 at p 79.
[26] T9 at p 73.
[27] T17 at p 112.
The first mention of upper limb function in the medical record is in the report of Dr Walsh of 10 October 2014[28] which refers to the Applicant having trouble with ankle pain for much of the year and more recently developed significant discomfort at the right wrist, which she said was exacerbated by prolonged writing tasks as a Year 11 student.
[28] T17 at p 106.
Dr Munro’s report of 28 November 2014[29] referred to the effect of arthritis on multiple joints since the onset of the condition and noted stiffness and joint swelling which impacts on the Applicant’s ability to write, sit or stand for prolonged periods. Dr Munro recommended that the Applicant be provided with a laptop in class and for exams due to her wrist pain and lack of finger, wrist and hand strength.
[29] T17 at p 103.
Wrist pain is also referred to in the report of Kathe Beyerie, a Liver & Transplant Clinical Nurse Consultant dated 31 July 2015.[30] She noted chronic arthritic pain in the Applicant’s knees, ankles and often wrist joints.
[30] T17 at p 101.
A job capacity assessment report (JCA) completed on 28 January 2016[31] noted the following in relation to the Applicant’s upper limb function:
Letter completed by Alex Hodgson on the 05/01/2016 confirms the client also experiences intermittent pain in both wrists, which can be exacerbated by prolonged use such as with writing tasks. Letter completed by Dr. Jane Munro indicates the client would be better off using a laptop for prolonged writing tasks. The client reported difficulty reaching behind her due to pain in wrists and hands and difficulty completing repetitive tasks such as cutting up fruit. The client stated that she was given a scribe during her school exams.
[31] T18 at p 116.
The JCA noted that the Applicant could manage most activities requiring the use of her hands and arms however she had difficulty with picking up heavier objects, handling small objects, and reaching up or out to pick up objects.

On the basis of the evidence, the Tribunal is not satisfied that an impairment rating above nil under Table 2 can be substantiated.
The medical evidence from the period prior to and during the Qualification Period does not corroborate the Applicant’s claims regarding the impairment to her upper limb function. It was not until October 2014, some five months after the Qualification Period, that any medical report acknowledged that there was any effect of the Applicant’s arthritis on her upper limb function. That acknowledgement came from Dr Walsh who noted that discomfort in the Applicant’s right wrist had recently developed.
Even putting aside the lack of corroboration during the Qualification Period, the Applicant’s claims are not supported by the medical evidence in many respects. While the medical reports in the period after the Qualification Period confirm some chronic pain in the Applicant’s wrists and hands, they do not support her claim that she was unable to write, operate a keyboard, read books or attend to her personal needs.
The medical evidence suggests that the impairment of the Applicant’s upper limbs may have degenerated over time after the Qualification Period. This, plus the lapse of time since 2014, makes it understandable that the Applicant’s current recollection of her circumstances during that specific period may not be entirely reliable. Accordingly, the Tribunal gives principal weight to the medical reports issued during the Qualification Period.
On the basis of this evidence, the Tribunal assigns a nil impairment rating under Table 2.
Table 3 – Lower Limb Function
The Applicant gave evidence that during the Qualification Period the arthritis in her lower limbs meant she often needed to use a wheelchair. She said that she had difficulty walking more than 100 metres and she could not stand for more than five minutes. However, she acknowledged in cross examination that she could walk for at least ten minutes during the Qualification Period as stated in the JCA report of 28 January 2016. She said that her mother took her to medical appointments and used a wheelchair to move her to the car and from the car to the medical facility. She said that she had tried to use public transport but was unable to do so. She said that the pain in her ankles and knees prevented her from squatting and kneeling and she could not climb stairs. She said that at home she mainly sat down and was attended to by her mother who used a wheelchair to move her within the house.
In her initial claim for the DSP dated 5 February 2014, the Applicant described the extent of her impairment as:
I cannot sit for long term cannot sleep at night. I have pains all the time and cannot walk comfortably.[32]
[32]T3 at p 16.
Dr Munro reported in 7 February 2014[33] that the Applicant’s arthritic condition caused pain, stiffness and swelling in joints, impaired mobility at times. Dr Munro further stated in the report that the Applicant had impaired mobility, difficulty with standing for long periods, needs to get up to move.[34] She said that she expected the effect of the condition to fluctuate over the next two years. A further report by Dr Munro dated 20 February 2014[35] noted pain in the feet and ankles when walking due to arthritis.
[33] T5 at pp 28-37.
[34] T5 at p 32.
[35] T13 at p 85.
Dr Shannon Elliott a junior doctor in the Emergency Department at the Royal Children’s Hospital reported on 27 March 2014 that the Applicant had presented with worsening arthritis pain in bilat knees and ankles.[36]
[36] T6 at p 38.
A JCA report completed on 28 April 2014[37] noted that the Applicant had presented with significant symptoms due to arthritis. The JCA noted that the Applicant claimed there are times when the condition flares up and a severe impairment is present, however better functioning was reported between episodes.[38] The JCA noted that there was insufficient medical evidence to determine if the flare ups happened regularly enough to warrant an assessment of a severe impairment.
[37] T7 at p 41.
[38] T7 at p 42.
The JCA reported that between flare ups the Applicant was able to attend high school, albeit with difficulty. She would need to go home early and would require regular breaks. The JCA noted that on those occasions the Applicant could not stand from a sitting position without assistance or be able to walk from a carpark to a supermarket or shopping centre. The JCA noted that the Applicant was able to attend the Ronald McDonald Learning Program when not able to attend school. Attendance records from Roxburgh College for the period 30 January to 20 May 2014 confirm that the Applicant attended between 48.50 % to 62.50% of her scheduled classes.[39]
[39] T10 at p 58.
In his report of 11 June 2014, Dr Chong noted that the Applicant had complained to him of bilateral foot pain more on the left foot at the Anterolateral aspect which she described as stiffness.[40] Dr Chong recorded that the Applicant was not playing any sport or doing any exercise at that time and that she used to do Step classes. He noted that the Applicant wondered if her knee and foot pain was aggravated by her twice per week Step class and increased gym attendance during first term. He noted that she had improved from when he saw her in the wards and was only in slight pain and said she was able to walk for four or five minutes before having pain. He noted that the Applicant reported crying because of severe pain and experienced pain at night for which she took clonidine.
[40] T12 at p 78.
The Applicant was questioned about her participation in Step classes during the Qualification Period. The Applicant acknowledged that she had undertaken Step and gym classes in an endeavour to be more active but said she was not able to do the exercises. She said she could not recall how many classes she had attended nor could she remember what activities had been involved.
Dr James reported on 16 June 2014[41] that the Applicant was experiencing knee and ankle pain but no synovitis on MRI due to her arthritis condition and noted that she had pain with walking but still able to mobilise without assistance. Dr James indicated that he expected this condition to improve over the next two years. He opined that the Applicant was generally well.[42]
[41] T9 at pp 54-55.
[42] T9 at p 56.
A report by Dr Catto-Smith dated 30 June 2014 noted that the Applicant’s arthritis had a very significant impact on mobility.[43]
[43] T9 at p 73.
The Centrelink Job Capacity Assessment Reports completed on 28 January 2016 and 14 July 2017 included the observation that the Applicant was able to independently stand and sit without assistance from an aid or another person.[44]
[44] See T18 at p 116 and T24 at p 154-155.
The contemporaneous medical evidence does not corroborate the Applicant’s claim that she often had to use a wheelchair during the Qualification Period.
The evidence indicates that the Applicant’s functioning was adversely affected by arthritis in her knees and ankles throughout the Qualification Period and that it flared up from time to time making the symptoms worse. The Introduction to the Impairment Tables provides at s 11(4) that:
When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The relevant medical reports do not indicate the severity, duration or frequency of the fluctuations in the Applicant’s symptoms. The JCA report of 28 April 2014 noted that the Applicant was able to attend school between flare ups. School records indicate that this was approximately 50-60% of the time. The JCA noted that there was insufficient medical evidence to determine if the flare ups happened regularly enough to warrant an assessment of a severe impairment. Based on this evidence, and in the absence of any more definitive evidence during the Qualification Period, the Tribunal accepts for the purpose of the assessment under Table 3 that the Applicant experienced more severe symptoms approximately 40% to 50% of the time due to fluctuations in her condition.
The evidence indicates that the Applicant had impaired mobility due to pain in her knees and ankles throughout the Qualification Period. Between flare ups, the Applicant was able to stand from a sitting position. She had difficulty standing for long periods but was able to stand for at least ten minutes. She could attend school and participate in some forms of physical activity. She experienced pain when walking but she was able to mobilise without assistance. She also had some difficulty climbing stairs, kneeling and squatting. During flare ups her mobility was less and the pain made it more difficult for her to stand for prolonged periods or to walk substantial distances.
The Applicant’s claim that she was unable to use public transport is not corroborated by the medical evidence. The level of impairment reported in the medical reports, at least between flare ups, is not inconsistent with the ability to use public transport. Section 11(3) of the Impairment Tables provides that a descriptor applies if the person can do an activity normally and on a repetitive or habitual basis and not only once or rarely.
On the basis of the medical evidence, during the Qualification Period the Applicant’s condition between flare ups would meet the definition of a moderate functional impact under Table 3 in that she was unable to walk far outside her home and needed to be driven to the local shops or community facilities, but she could use a motor vehicle or public transport and walk around a supermarket. When the Applicant’s condition flared up the evidence indicates that her functioning was more significantly impaired and may have caused a severe functional impact as defined in Table 3. Taking her condition as a whole and assessed in the context of the fluctuations in her symptoms, the overall functional impact of her arthritis falls between a moderate and severe functional impact. Section 11(1)(c) of the Introduction to the Impairment Tables states that:
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
On the basis of the medical evidence, none of the descriptors for a severe rating would apply to the Applicant for at least the majority of the time between flare ups.
Having regard to s 11(1)(c), the appropriate assessment is to assign a rating for a moderate functional impact for the Applicant’s arthritis condition and the Tribunal assigns a rating of 10 points under Table 3.
Von Willebrand Disease
The Respondent accepts that the Applicant’s Von Willebrand Disease was fully diagnosed during the Qualification Period but denies that the condition was fully treated and stabilised.
Dr Catto-Smith reported on 12 March 2014,[45] that the Applicant suffered from Menorrhagia but noted that the condition was generally well managed and caused minimal or limited impact. Dr Chong noted the condition in his report of 11 June 2014[46] and suggested that the Applicant be screened for Von Willebrand Disease. The Applicant agreed in her evidence that she was first diagnosed with Von Willebrand Disease by Professor Monagle in about May – November 2015.
[45] T11 at p 74.
[46] T12 at p 78.
The diagnosis of Von Willebrand Disease relates to the Applicant’s condition during the Qualification Period and is confirmed in reports by Drs Shyam, Ferdiakbas, Monagle, Catto-Smith and Mellor,[47] but the medical evidence does not provide sufficient information regarding the Applicant’s treatment and prognosis. The Applicant gave evidence that after her diagnosis she was treated with iron infusions and other medication but prior to the diagnosis she did not have much treatment.
[47] T11, T12, T17, T23, T26 and ST1.
On the basis of this evidence, the Tribunal is satisfied that the Applicant’s Von Willebrand Disease was fully diagnosed during the Qualification Period but, given that the diagnosis was not made until 12 months after the Qualification Period and in the absence of any evidence as to treatment, the Tribunal is not satisfied that the Applicant’s condition was fully treated or fully stabilised during the Qualification Period. Therefore, any functional impairment from the condition cannot be assessed under the Impairment Tables.
CONCLUSION
For the reasons discussed, the Tribunal is not satisfied that the Applicant has a physical, intellectual or psychiatric impairment which rates 20 points or more under the Impairment Tables as required by s 94(1) of the Act. Accordingly, the Applicant was not qualified for a DSP at the date of her claim or within the Qualification Period.
It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.
DECISION
The Tribunal affirms the decision under review.

1. I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the written reasons for the decision of Member R West

..........[sgd]........................
Associate
Dated: 8 November 2021

Date of hearing: 14 September 2021

Applicant: Ms Tugce Akkok

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Vincci Chan

Services Australia