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

Austin and Secretary, Department of Social Services (Social services second review) [2023] AATA 2097 (18 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8815
Re:Karen Austin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:18 July 2023
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
....................[SGD]........................................
Member W Frost
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension –- eligibility for disability support pension – whether the applicant’s impairments are fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 43
Social Security Act 1991 ss 26, 27, 94
Social Security (Administration) Act 1999 Schedule 2
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Shi v Migration and Registration Authority [2008] HCA 31
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
REASONS FOR DECISION
Member W Frost
18 July 2023
INTRODUCTION

The Applicant, Ms Karen Austin, is 50 years old and lives in Parkes, New South Wales (NSW).[1] Ms Austin has multiple medical conditions that give rise to her claim for the Disability Support Pension (DSP), which was made in August 2021 and is the subject of this decision.[2]
[1] Exhibit 1, page 303.
[2] Ibid., pages 302-331.
Ms Austin’s claim for the DSP was rejected by Services Australia (referred to here as the Agency).[3] An Authorised Review Officer (ARO) affirmed the Agency’s decision to reject Ms Austin’s claim for the DSP and, in September 2022, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) also affirmed this rejection.[4] Ms Austin subsequently applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of the AAT1 decision.[5]
[3] Ibid., pages 347-348.
[4] Ibid., pages 4-16 and 357-366.
[5] Ibid., pages 1-3.
In summary, the Agency, on behalf of the Respondent, did not consider that Ms Austin was qualified for the DSP at the date of her claim in August 2021, or within the relevant 13 weeks thereafter, because it found that her conditions could not be assigned impairment ratings to meet the required 20 points in the impairment tables (Impairment Tables) set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Determination). The Agency also contended that Ms Austin did not have a continuing inability to work.
The Tribunal has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the parties’ submissions and the written statements and oral evidence provided in support of Ms Austin’s application.[6]
[6] Exhibits 2-4.
ISSUE
The issue before the Tribunal is whether Ms Austin was qualified to receive the DSP at the date of her claim on 5 August 2021 or within the following 13 weeks.
BACKGROUND
On 5 August 2021, Ms Austin lodged her DSP claim with the Agency.[7] In her claim form, Ms Austin listed ‘disabilities or medical conditions’, or that she was receiving treatment for conditions, which comprised depression, dyslexia, anxiety, Kienböck’s disease (described as an ‘interruption of the vascular supply to the bone’ leading to its death),[8] arthritis and high blood pressure.[9]
[7] Exhibit 1, pages 302-331.
[8] Ibid., page 181.
[9] Ibid., pages 325-326.
In September 2021, Ms Austin’s claim for the DSP was rejected by the Agency on the basis of its assessment that her conditions did not amount to an impairment rating of 20 points or more under the Impairment Tables.[10]
[10] Ibid., pages 347-348.
In April 2022, an ARO of the Agency affirmed the rejection of Ms Austin’s DSP claim.[11] The ARO found that Ms Austin’s Kienböck’s disease was permanent but assigned this condition 10 points under the Impairment Tables, because it ‘causes moderate functional impairment upon Upper Limb Function’.[12] The ARO also found that Ms Austin’s multiple joint osteoarthritis, diabetes and hypertension were ‘fully diagnosed’, but not ‘fully treated’ and ‘fully stabilised’.[13] Additionally, the ARO determined that Ms Austin’s learning disability and depression were not ‘fully diagnosed’.[14]
[11] Ibid., pages 357-361.
[12] Ibid., page 359.
[13] Ibid.
[14] Ibid.
On 5 September 2022, following Ms Austin’s application for review of the ARO decision,[15] the AAT1 affirmed the rejection of her DSP claim.[16] The AAT1 found that Ms Austin’s Kienböck’s disease, which it referred to as a ‘[w]rist and hand injury to the right upper limb’ (and which is described in this decision as Ms Austin’s right upper limb condition), was permanent and agreed with the ARO’s assessment that a 10 point impairment rating should be assigned.[17] The AAT1 also found that Ms Austin’s right knee osteoarthritis, diabetes, obesity, hypertension and heart murmur were ‘fully diagnosed’, but not ‘fully treated’ and ‘fully stabilised’.[18] Additionally, the AAT1 found there was insufficient information to determine whether Ms Austin’s anxiety and depression had been fully diagnosed, treated and stabilised and did not make any particular findings regarding her learning disability and bone fractures due to the apparent conflicting information in relation to the former and the latter’s temporary nature.[19] Accordingly, the AAT1 was satisfied that Ms Austin had a combined impairment rating of 10 points under the Impairment Tables and therefore did not meet the required 20 points or more pursuant to subsection 94(1)(b) of the Social Security Act 1991 (Act).[20]
[15] Ibid., page 367.
[16] Ibid., pages 4-16.
[17] Ibid., page 7.
[18] Ibid., pages 9-10.
[19] Ibid., pages 8-10.
[20] Ibid., page 10.
In February 2023, and following an extension of time granted by a differently constituted Tribunal, Ms Austin lodged an application to the Tribunal for review of the AAT1 decision, which application relevantly stated that:[21]
I believe the decision to reject my DSP is wrong. I have received the DSP in the past and my payment was changed when I had my daughter Dekodah. Services Australia had all medical supporting documentation. I have not worked for over 20 years due to my medical conditions. I also have developmental delay which causes difficulty with reading and writing and was in a supported class during my schooling. I also have further injuries to my back that impact my ability to work.
CONSIDERATION
[21] Ibid., pages 1-3 and 370-372.
What is the qualification period for assessment of eligibility for the DSP?
Clause 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment, as follows:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Pursuant to the above, the Tribunal is required to assess Ms Austin’s DSP claim based on her conditions as at the date her claim was made or within the following 13 weeks.[22] The ‘start day’ for Ms Austin’s claim for the DSP is the day she lodged that claim, which was 5 August 2021, and the 13 week qualification period therefore runs from that date until 4 November 2021. As explained to Ms Austin at the Tribunal hearing, in accordance with the legislative requirements, if there has been any deterioration or change to Ms Austin’s medical conditions suggesting that she may have become qualified for the DSP at a later time (that is, after the end of the qualification period in November 2021), it is irrelevant to the Tribunal’s consideration of her impairments during the qualification period for the purpose of her application before the Tribunal and she may seek to make a new claim for the DSP based on the current status of her conditions.[23]
[22] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]-[8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.
[23] Shi v Migration and Registration Authority [2008] HCA 31 at [144] – [145].
As the Tribunal stated in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned her or her mind to all the relevant issues). The point is important as it is quite frequently the case that appeals on DSP decisions arrive at the Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for the Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In this regard, the Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 endorsed the principle, discussed in Harris[24] and Fanning,[25] that medical reports prepared after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[26]
[24] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.
[25] Fanning and Secretary, Department of Social Services [2014] AATA 447.
[26] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
Accordingly, the Tribunal can only consider Ms Austin’s eligibility for the DSP within the qualification period commencing on 5 August 2021 and ending on 4 November 2021, assisted by medical information regarding her conditions as they were during that period, not following the end of that qualification period in November 2021.
What are the qualification criteria for the DSP?
Subsection 94(1) of the Act relevantly provides that a person is qualified for the DSP 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…
Plainly, from the terms of the above provision, each element of these qualification criteria must be satisfied for a person to qualify for the DSP.
The Impairment Tables for the DSP and the rules for their application (Rules) were made by legislative Determination pursuant to subsection 26(1) of the Act. In accordance with section 27 of the Act, the Impairment Tables to be applied by the Tribunal are contained in the Determination, which took effect from 1 January 2012.
As noted above in these reasons, under subsection 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in section 5 of the Rules, the Impairment Tables are: function based rather than diagnosis based; describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Section 6 of the Rules sets out how to apply the Impairment Tables when assessing functional capacity and assigning impairment ratings for a person. When applying the Impairment Tables, the impairment ‘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’ (subsection 6(1)). The Impairment Tables may only be applied after the person’s medical history has been considered and an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’ (subsections 6(2) and (3) of the Rules).
Subsection 6(4) of the Rules provides that a person’s condition is ‘permanent’ if each of the following criteria is met:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Subsection 6(5) of the Rules provides that the following is to be considered in determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b):
(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.
Under subsection 6(6) of the Rules, a person’s 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.
The Rules provide, at subsection 6(7), that ‘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.
Relevantly, the presence of a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if the condition has no functional impact on the person, including because there has been appropriate treatment for that condition (subsection 6(8) of the Rules).
Subsection 10(1) of the Rules states that table selection from the available Impairment Tables is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
When assigning an impairment rating, section 11 of the Rules provides that:
(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 (example: A rating of 15 cannot be assigned between 10 and 20); and
(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.
Was there a physical, intellectual or psychiatric impairment?
The Tribunal is satisfied, based on the evidence before it, including Ms Austin’s medical and related reports regarding her conditions, that Ms Austin had impairments during the qualification period that meet subsection 94(1)(a) of the Act, being that a person ‘has a physical, intellectual or psychiatric impairment’.
While the Respondent accepted that Ms Austin suffered impairments so as to satisfy this criterion for qualification for the DSP, the Respondent contended that during the qualification period Ms Austin’s conditions attracted no more than 10 points under the Impairment Tables, which accordingly did not satisfy subsection 94(1)(b) of the Act, being the requirement for a person to have an impairment ‘of 20 points or more under the Impairment Tables’. That issue is addressed directly below in these reasons.
Do Ms Austin’s conditions attract 20 points or more under the Impairment Tables?
The Tribunal considers Ms Austin’s impairments below and whether she can be assigned an impairment rating of 20 points or more in relation to those impairments such as to satisfy subsection 94(1)(b) of the Act.
Right upper limb condition
In relation to Ms Austin’s right upper limb condition, while the Tribunal accepts that it was ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ so as to be found to be a ‘permanent’ condition during the qualification period, as required by subsection 6(4) of the Rules, based on the available evidence, the Tribunal is not satisfied that this condition can be assigned an impairment rating any higher than 10 points under the Impairment Tables.
To this end, the Tribunal sets out the relevant documentary evidence in relation to Ms Austin’s right upper limb condition, as follows:
(a)In July 1996, Dr Adrian Gale performed an x-ray of Ms Austin’s right wrist and reported that there was no bone or joint abnormality, no evidence of a joint effusion and no fracture or dislocation identified.[27]
[27] Exhibit 1, page 150.
(b)On 3 September 1996, Dr Gordon Norris, General Practitioner, completed a medical certificate stating that Ms Austin was unable to work for one month due to a fractured scaphoid in her right wrist.[28]
[28] Ibid., page 407.
(c)On 8 November 1996, Dr Geoffrey Schembri relevantly reported that:[29]
[29] Ibid., page 161.
I note the apparent scaphoid fracture in September of this year and ongoing severe pain in the right wrist.
Three phase bone scans was performed. There was markedly increased vascularity to the right wrist diffusely with a more focal abnormality in the region of the lunate.
…
There are a number of findings present. Firstly there is diffuse increase in uptake throughout the right wrist joint in keeping with a diffuse synovitis.
There was focally increased tracer uptake in the right lunate suggestive of recent fracture. This appears to involve the adjacent portion of the distal right radius.
(d)On 27 November 1996, Dr Terry Kwong, Rheumatologist, reported that:[30]
[30] Ibid., page 162.
I suspect that she had a fracture in her lunate and therefore organised for her to have a CT scan of her right wrist. This was performed on the 22 November 1996 and showed a transverse fracture involving the dorsal aspect of her lunate, extending onto the articular margin with the adjacent capitate. A further small undisplaced fracture was also noted at the lateral aspect of the ventral surface of the lunate.
I have taken the liberty of referring her to the Fracture Clinic in Westmead hospital for further management.
(e)On 28 November 1996, Dr P. J. McGrath, Orthopaedic Surgeon at Westmead Hospital, relevantly reported to Dr Kwong that Ms Austin:[31]
[31] Ibid., page 163.
seems to be getting quite a lot of pain whenever she tries to do anything heavy and she said that the movements both of her wrist and fingers is restricted. She is left handed, and was working as a kitchen hand at the time of the accident.
She does appear to be tender over the dorsal aspect of the wrist joint. The anatomical snuff box is only mildly tender. All movements are restricted and painful, and there is not full movement of the fingers.
…
This is a difficult problem. I have suggested that she continue to gently mobilise the wrist, and protect it with a bandage. I have also suggested a second opinion from Dr David Yee, an orthopaedic surgeon trained in hands specifically.
(f)On 19 December 1996, Ms Austin underwent a ‘[c]urrettage and bone grafting to right lunate’.[32]
[32] Ibid., page 164.
(g)On 28 January 1997, Dr Yee, Hand Surgeon, wrote to Ms Austin’s general practitioner, Dr Norris, and stated that the surgery she underwent in December 1996 was ‘for exploration of cyst, curettage and possible bone graft’.[33] Dr Yee noted that specimens ‘were sent to histopathology which revealed bone and cartilage but insufficient tissue for diagnosis’.[34] He noted that a cyst was ‘still present’ with ‘probable healing’ and that he would assess Ms Austin again, including via x-ray, in 6 weeks’ time.[35]
[33] Ibid., page 165.
[34] Ibid.
[35] Ibid.
(h)On 28 January 1997, Dr Norris reported to the then Department of Social Security for its assessment of Ms Austin’s eligibility for an ‘Allowance/Pension’.[36] Dr Norris stated that Ms Austin had synovitis following right wrist fractures.[37] Dr Norris certified that Ms Austin was not fit for any work of at least 30 hours duration per week or for part-time work of at least eight hours per week.[38] Dr Norris opined that Ms Austin would be likely to be able to work for at least 30 hours per week in three to six months’ time.[39]
[36] Ibid., page 166.
[37] Ibid., page 167.
[38] Ibid., page 169.
[39] Ibid.
(i)In April 1997, Dr Yee relevantly reported that Ms Austin:[40]
[40] Ibid., page 177.
has a problem with her right wrist and has been diagnosed recently as having Keinbock’s [sic] disease. Because of the symptoms in her right wrist I believe it will be difficult to work in any capacity apart from clerical work with that wrist. This condition has a variable course and I would certify no use of any heavy work with her right wrist for a period of 3 months. She will be re-evaluated at that stage.
(j)In January 1998, Dr Yee reported that Ms Austin was awaiting surgery for ‘revascularisation of her lunate’.[41]
[41] Ibid., page 178.
(k)On 12 March 1998, Ms Austin underwent an operation for revascularisation of ‘right lunate and radial shortening’.[42]
[42] Ibid., page 179.
(l)On 25 May 1998, Dr David Bornstein, Orthopaedic Surgeon, reported that Ms Austin, then aged 25, ‘has a very tender right wrist especially over the lunate bone’ and ‘quite marked restriction of the range of movement in that wrist joint due primarily to pain’.[43] Dr Bornstein opined that with ‘the collapse of the lunate bone she may well develop osteoarthritis in the wrist…significant extent as well as being left with residual pain and stiffness in the joint which would restrict her grip strength and ability to earn’.[44] The prognosis at that stage was ‘relatively poor in the long run’.[45] Dr Bornstein further stated that Ms Austin ‘may ultimately require an arthrodesis of the wrist if the current treatment fails and she is left with pain’.[46] The arthrodesis would ‘leave her with a stiff wrist but at least hopefully pain free’.[47]
(m)On 15 October 2020, an x-ray was performed on Ms Austin’s right forearm and wrist by Dr E. Brecher, Radiologist, who noted that there ‘is intact orthopaedic hardware fusing the patient’s right wrist’, but ‘no evidence of loosening of the orthopaedic hardware’.[48]
(n)On 22 October 2020, a Patient Health Summary for Ms Austin, and certified by Dr Steven Scully, General Practitioner, recorded in relation to her ‘Right Wrist pain’ that she ‘slipped on floor’, had ‘chronic pain’ and was ‘unable to lift over 2kg’.[49]
(o)On 23 April 2021, Dr Emmanuel Udebunu, General Practitioner, reported that Ms Austin had been diagnosed with Kienböck’s disease, it ‘will not improve’ and she ‘is not able to do any work’.[50]
(p)On 1 September 2021, which was during the qualification period ending in November 2021, it was reported that Ms Austin told a job capacity assessor:[51]
she has muscle wastage in her right arm, she reported she is unable to bend her right wrist due to the wrist fusion. She reported she gets a lot of cramps and spasms in her right hand, she reported she is unable to use a computer keyboard, she reported she can hold a cup, however not for very long, she reported she can pick up objects with her left hand, however is unable to pick up objects that require the use of both hands. She reported she now writes with her left hand, she reported she doesn’t do up buttons and “steps into” her bra, she reported she would be unable to open a soft drink bottle and her daughter does this.
(q)On 2 December 2021, a Patient Health Summary for Ms Austin, and certified by Dr Scully, again recorded in relation to her ‘Right Wrist pain’ that she was ‘unable to lift over 2kg’.[52] Ms Austin told the Tribunal at the hearing that she agreed with this statement.
(r)On 5 September 2022, at the AAT1 hearing, Ms Austin confirmed the above details from the Job Capacity Assessment in September 2021.[53]
[43] Ibid., page 182.
[44] Ibid.
[45] Ibid., page 183.
[46] Ibid.
[47] Ibid.
[48] Ibid., page 252.
[49] Ibid., page 292.
[50] Ibid., page 295.
[51] Ibid., page 342.
[52] Ibid., page 350.
[53] Ibid., page 8.

An impairment rating of 10 in Table 2 of the Impairment Tables, for ‘Upper Limb Function’ where a person has ‘a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms’,[54] is where a person has a ‘moderate functional impact on activities using hands or arms’ due to ‘difficulty’ with most of the following: picking up a one litre carton full of liquid; picking up a light but bulky object requiring the use of two hands together; holding and using a pen or pencil; doing up buttons or tying shoelaces; using a standard computer keyboard; and unscrewing a lid on a soft-drink bottle.[55]
[54] Ibid., pages 52-53.
[55] Ibid., page 53.
An impairment rating of 20 in Table 2 of the Impairment Tables, being the next impairment rating level following the 10 point impairment rating level and which rating is required to be eligible for the DSP, is where a person has a ‘severe functional impact on activities using hands or arms’ and ‘most of the following apply to the person’:[56]
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)the person has severe difficulty using a pen or pencil;
(e)the person has severe difficulty turning the pages of a book without assistance.
[56] Ibid., page 53.
As set out above, in September 2021, Ms Austin relevantly told a job capacity assessor with the Agency that she is ‘unable to use a computer keyboard’, ‘can hold a cup, however not for very long’, ‘can pick up objects with her left hand, however is unable to pick up objects that require the use of both hands’ ‘doesn’t do up buttons’ and ‘would be unable to open a soft drink bottle’.[57] Ms Austin told the Tribunal at the hearing that she could not pick up a one litre carton of milk and that she drops ‘everything’. However, there was no evidence to corroborate Ms Austin’s contention and the only medical evidence regarding the functional impact of Ms Austin’s right upper limb condition from in or around the qualification period was from her general practitioner, Dr Scally, who stated in a Patient Health Summary from December 2021 that Ms Austin is ‘unable to lift over 2kg’.[58] This notation was unchanged from a Patient Health Summary certified by Dr Scally on 22 October 2020 and Ms Austin told the Tribunal she agreed with the statement that she cannot lift over two kilograms.[59]
[57] Ibid., page 342.
[58] Ibid., page 350.
[59] Ibid., page 292.
It is also noteworthy that, in her evidence to the Tribunal, Ms Austin said that her condition has deteriorated since the end of the qualification period in November 2021 and agreed that it had become much worse in the last two years. Ms Austin’s sister also told the Tribunal she agreed with this proposition. Relevantly for this proceeding, there was no corroborating evidence that Ms Austin’s right upper limb condition resulted in a ‘severe functional impact’ on activities using hands or arms, and specifically that most of the five descriptors for the 20 point impairment rating level in Table 2 of the Impairment Tables, set out above, were met during the qualification period. In this regard, the Tribunal notes that the introduction to Table 2 of the Impairment Tables states that self-report of symptoms alone is ‘insufficient’ and there ‘must be corroborating evidence of the person’s impairment’.[60]
[60] Ibid., page 52.
As a result of the above evidence, the Tribunal accepts that Ms Austin’s right upper limb condition was permanent during that period from 5 August 2021 to 4 November 2021. However, based on the lack of corroborating evidence regarding the functional impact of this condition during the qualification period, the Tribunal is not satisfied that Ms Austin’s right upper limb condition can be assigned any higher impairment rating than 10 points under Table 2 of the Impairment Tables. Accordingly, the Tribunal is satisfied that, during the qualification period from August to November 2021, the evidence demonstrates that Ms Austin’s right upper limb condition had a ‘moderate functional impact’ on activities using hands or arms, such that 10 points is the appropriate impairment rating for this condition under the Impairment Tables.
Right knee osteoarthritis
In relation to Ms Austin’s right knee osteoarthritis, the Tribunal is satisfied that it was ‘fully diagnosed’ during the qualification period in accordance with subsection 6(4)(a) of the Rules. However, based on the available evidence, the Tribunal is not satisfied that this condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period, as required by subsection 6(4)(b) and (c) of the Rules.
To this end, the Tribunal sets out the documentary evidence in relation to Ms Austin’s right knee osteoarthritis, as follows:
(a)In or around May 1992, Ms Austin was leaving the TAFE at Blacktown in NSW at night, the lights were not on in the carpark and she ‘tripped over a railway sleeper landing heavily on her right knee’, following which she was taken to Hospital.[61]
[61] Ibid., pages 180-181 and 198.
(b)On 27 May 1992, Ms Austin was certified as being ‘unable to attend work/school’ due to a ‘sprained knee’.[62]
[62] Ibid., page 408.
(c)In October 1992, Ms Austin underwent an arthroscopy of her right knee.[63]
[63] Ibid., page 199.
(d)On 7 June 1995, Dr Anthony Smith, Orthopaedic Surgeon, reported that Ms Austin, then aged 22, required the arthroscopy in 1992 due to a ‘defect from a crush injury on the medial femoral condyle’.[64] Dr Smith opined that he ‘would expect that to have healed’, but Ms Austin ‘has pain on compression of the patella and tenderness about the patella surface’, which he considered was ‘retropatella chondromalacia’.[65] Ms Austin was provided with an exercise regime and x-rays were suggested.[66] Later that month, and after reviewing the x-rays which showed ‘no anomaly apart from a small, highish patella’, Dr Smith considered that Ms Austin ‘may benefit with a lateral release procedure’.[67]
[64] Ibid., page 152.
[65] Ibid.
[66] Ibid.
[67] Ibid., page 153.
(e)In August 1995, Dr Smith recommended Ms Austin ‘undergo arthroscopy with a lateral relaease [sic]’.[68] In September 1995, Ms Austin had her second arthroscopy.[69]
[68] Ibid., page 155.
[69] Ibid., page 156.
(f)On 25 May 1998, Dr Bornstein, Orthopaedic Surgeon, reported that Ms Austin had by then had three arthroscopies, was found to have a ‘chondral defect on the medial femoral condyle the result of a crushing injury’ and opined that she ‘does have medial articular surface damage’ due to her injury in 1992 and the ‘knee is relatively unstable because of some muscle wasting’.[70] Dr Bornstein further noted that the prognosis for Ms Austin’s knee was ‘relatively poor’ and that:[71]
[70] Ibid., page 182.
[71] Ibid., page 183.
it is almost inevitable that she will develop medial compartment arthritis and in the fullness of time will require further surgical procedures initially osteotomies and subsequently a knee replacement which ought to be delayed as long as it is possible having regard to her age.
(g)In July 1999, Dr Bruce Caldwell, Orthopaedic Surgeon, examined Ms Austin and reported that the clinical and x-ray findings were ‘mild’, but her ‘arthroscopic photograph is impressive in that it shows a significant lesion on the medial femoral condyle that has been debrided down to bare bone’.[72] Dr Caldwell opined that it would ‘be usual for this type of lesion to remain symptomatic’, Ms Austin’s ‘complaints and disabilities are exaggerated’ and she ‘has a 20% impairment of the normal function of right leg at or above the knee including loss below the knee as a result of this accident’.[73]
(h)On 15 October 2020, an x-ray was performed on Ms Austin’s right knee by Dr E. Brecher, Radiologist, who noted that there is ‘minimal degenerative osteoarthritis of the lateral compartment of the right knee joint’.[74]
(i)On 22 October 2020, a Patient Health Summary for Ms Austin, and certified by Dr Scally, General Practitioner, recorded in relation to her ‘Right Knee pain’ that she had ‘mild/moderate OA [osteoarthritis], unable to stand long periods of time’.[75]
(j)On 23 April 2021, Dr Udebunu, General Practitioner, reported that Ms Austin had been diagnosed with ‘Chronic Osteoarthritis – Multiple joints’, which ‘will not improve’ and she ‘is not able to do any work’.[76]
(k)On 1 September 2021, which was during the qualification period ending in November 2021, it was reported that Ms Austin told a job capacity assessor:[77]
She now has osteoarthritis in both knees, she reported specialist recommended she have a total knee replacement (TKR), however she has not proceeded with this as her father reportedly passed away 1 week following a TKR. The client reported she uses a single point walking stick when outside the home, she reported she needs to stop for a rest when out at the shops. She reported she has a disability parking sticker due to her difficulties walking far. She reported she could walk for less than 1 kilometer. She reported difficulty climbing stairs and uses a rail to assist her. She reported she can stand for 15 to 20 minutes.
(l)On 2 December 2021, being after the end of the qualification period, a Patient Health Summary for Ms Austin certified by Dr Scally again recorded in relation to her ‘Right Knee pain’ that Ms Austin had ‘mild/moderate OA, unable to stand long periods of time’.[78]
[72] Ibid., page 200.
[73] Ibid.
[74] Ibid., pages 252-253.
[75] Ibid., page 291.
[76] Ibid., page 295.
[77] Ibid., page 339.
[78] Ibid., page 350.
On the available evidence, the Tribunal is not satisfied that, during the qualification period from 5 August 2021 to 4 November 2021, Ms Austin’s right knee osteoarthritis was ‘fully treated’ and ‘fully stabilised’, including because there was no evidence that she had completed all ‘reasonable treatment’ in accordance with subsections 6(6) and (7) of the Rules. As set out above, in 1998 Dr Bornstein reported that Ms Austin would require further surgical procedures and a knee replacement ‘ought to be delayed as long as it is at all possible having regard to her age’, noting that Ms Austin was then aged 25.[79] This report was made over 23 years before the qualification period in 2021. There was no evidence regarding the recommended treatment of Ms Austin’s right knee osteoarthritis during the qualification period, noting that there was no documentary evidence before the Tribunal from an Orthopaedic Surgeon after 1999.[80]
[79] Ibid., page 183.
[80] Ibid., pages 198-200.
In 2021, it was reported that Ms Austin told the job capacity assessor that a total knee replacement had been recommended, but she was reticent to undertake such a procedure in circumstances where her father had died one week after having his own knee replacement.[81] However, there was no medical evidence before the Tribunal of any genetic factors which present a risk to Ms Austin in undergoing a total knee replacement. While Ms Austin agreed, in her evidence to the Tribunal, that in 2021 she did not want to have a total knee replacement, she now wants to have this procedure because of the pain she is currently experiencing. Ms Austin further told the Tribunal she had been informed that she was not eligible for a total knee replacement, or one would not be performed, until she was 65 years old, noting again that she is presently 50.[82] However, there was no corroborating evidence to this effect and Ms Austin confirmed to the Tribunal that she did not have any such documentation; she was informed verbally in 1998 that a knee replacement would not be performed until she was 65, because this was ‘their timeframe to do a knee replacement’.
[81] Ibid., page 339.
[82] Exhibit 2.
For these reasons, the Tribunal is not satisfied that, during the qualification period from 5 August 2021 to 4 November 2021, Ms Austin’s right knee osteoarthritis was ‘fully treated’ and ‘fully stabilised’, including because she had not completed all ‘reasonable treatment’ in accordance with subsections 6(6) and (7) of the Rules. Accordingly, the Tribunal finds that Ms Austin’s right knee osteoarthritis was not ‘permanent’, as defined by subsections 6(3) and (4) of the Rules, during the qualification period and it therefore cannot be assigned an impairment rating under the Impairment Tables.
Learning disability
In relation to Ms Austin’s learning disability, the Tribunal is not satisfied that it was ‘fully diagnosed’ during the qualification period because the condition had not been diagnosed by an ‘appropriately qualified medical practitioner’, as required by subsection 6(4)(a) of the Rules, relevantly being an ‘appropriately qualified psychologist’ pursuant to Table 9 of the Impairment Tables regarding intellectual function.[83] To this end, the Tribunal sets out the documentary evidence in relation to Ms Austin’s learning disability, as follows:
(a)In or around 1989, aged 17, Ms Austin completed her schooling after obtaining a Year 10 Certificate from Grantham High School in NSW.[84] The school report provided to the Tribunal does not refer to Ms Austin requiring or receiving any form of learning assistance during her education or that Ms Austin was in what she referred to as ‘support classes’ throughout her schooling.[85]
(b)On 22 October 2020, a Patient Health Summary for Ms Austin, and certified by Dr Scally, General Practitioner, recorded in relation to her ‘Dyslexia’ that she had ‘difficulty with reading and writing’.[86]
(c)On 23 April 2021, Dr Udebunu, General Practitioner, reported that Ms Austin had been diagnosed with ‘Dyslexia’, which ‘will not improve’ and she ‘is not able to do any work’.[87]
(d)On 1 September 2021, which was during the qualification period ending in November 2021, it was reported that Ms Austin told a job capacity assessor she ‘was diagnosed with dyslexia at school and was in support classes all through school, she also reported she thought she might have a low IQ’.[88]
(e)On 2 December 2021, which was after the end of the qualification period, a Patient Health Summary for Ms Austin certified by Dr Scally again recorded in relation to her ‘Dyslexia’ that she had ‘difficulty with reading and writing’.[89]
(f)On 10 February 2023, in Ms Austin’s application for review lodged with the Tribunal she referred to having ‘developmental delay’ which ‘causes difficulty with reading and writing’ and that she was ‘in a supported class during my schooling’.[90]
[83] Exhibit 1, page 77.
[84] Ibid., pages 196 and 384-398.
[85] Ibid., pages 338 and 384-398.
[86] Ibid., page 292.
[87] Ibid., page 295.
[88] Ibid., page 338.
[89] Ibid., page 350.
[90] Ibid., page 2.
At the hearing of this proceeding, Ms Austin told the Tribunal that she had an assessment of her intellectual function when she commenced primary and secondary school and recalled having one performed when she first received a pension approximately over 30 years ago, but that she had not subsequently had such an assessment. Ms Austin did not have a copy of any reports from these assessments. Ms Austin’s sister, Ms Kerrie Austin, also told the Tribunal that her sister had lifelong learning difficulties, she was placed in a composite class in a ‘special education school’ and cannot ‘read or write properly’; Ms Austin’s sister assists her by conveying the content of documentation because she ‘doesn’t understand things’, although Ms Austin’s sister was uncertain whether this was due to her mental health condition.[91]
[91] See also Exhibit 3.
Based on the available evidence, the Tribunal is not satisfied that, as at the qualification period, Ms Austin’s learning disability had been assessed by an ‘appropriately qualified psychologist’, as required to apply Table 9 of the Impairment Tables in relation to intellectual function. There was no documentary evidence before the Tribunal to establish that such an assessment had occurred, including in or around the qualification period from 5 August 2021 to 4 November 2021. There was also no evidence regarding any treatment undertaken in relation to this condition or its prognosis. Accordingly, the Tribunal finds that this condition was not ‘permanent’, because it had not been ‘fully diagnosed’ by an appropriately qualified medical practitioner and, in accordance with subsections 6(3) and (4) of the Rules, the condition therefore cannot be assigned an impairment rating under the Impairment Tables.
Other conditions
Ms Austin referred to further conditions of diabetes, chronic pain, hypertension and heart murmur, anxiety and depression, an ankle fracture and a thoracic spine condition. Based on the available evidence, the Tribunal is not satisfied that any of these conditions were ‘permanent’ during the qualification period from 5 August 2021 to 4 November 2021, as required by subsections 6(3) and (4) of the Rules, in order to be assigned an impairment rating under the Impairment Tables. That is, these other conditions were not ‘fully diagnosed’ and ‘fully treated’ and ‘fully stabilised’ during the relevant time under review by the Tribunal. Therefore, the Tribunal does not assign any of these additional conditions any impairment rating under the Impairment Tables. For completeness, the Tribunal sets out below its consideration and findings regarding these other conditions.
Anxiety and depression
On 5 April 2019, Dr Scally, General Practitioner, stated that Ms Austin had been his patient for the previous five years and he had seen ‘absolutely no evidence of any mental health disorder’, although she had been ‘recently suffering an acute stress reaction’.[92] Dr Scally further stated that Ms Austin was ‘recovering from this acute stress reaction with support and counselling from a psychologist’.[93]
[92] Exhibit 1, page 203.
[93] Ibid.
On 22 October 2020, a Patient Health Summary for Ms Austin, and certified by Dr Scally, recorded ‘Anxiety/Depression’ under her ‘Active Past History’.[94] There was no information regarding any functional impairment as a result of this condition.
[94] Ibid., pages 291-292.
In Ms Austin’s claim for DSP lodged in August 2021, she referred to currently receiving treatment for anxiety and depression.[95]
[95] Ibid., page 326.
On 1 September 2021, which was during the qualification period ending in November 2021, it was reported by a job capacity assessor that Ms Austin stated that she takes Lovan for this condition and ‘saw a psychologist in the past, however her GP had advised her she didn’t need to continue seeing one because her condition was well managed’ and that she ‘sometimes gets depressed due to her pain’.[96]
[96] Ibid., page 340.
On 2 December 2021, which was after the end of the qualification period, a Patient Health Summary for Ms Austin, and certified by Dr Scally, again recorded ‘Anxiety/Depression’ under her ‘Active Past History’, however there was no further information regarding any functional impairment in relation to this condition.[97] The Tribunal also notes that Ms Austin’s sister gave evidence that Ms Austin’s mental health was ‘not good at times’, she ‘suffers from depression’ and had ‘been on medication for mental health’.
[97] Ibid., pages 349-350.
Despite this evidence, the introduction to Table 5 of the Impairment Tables, in relation to ‘Mental Health Function’, requires that 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)’.[98] There was no such evidence before the Tribunal. Accordingly, the Tribunal finds that this condition was not ‘fully diagnosed’ during the qualification period from 5 August 2021 to 4 November 2021, as required by subsection 6(4) of the Rules. Therefore, pursuant to subsection 6(3) of the Rules, Ms Austin’s anxiety and depression cannot be assigned any impairment rating under the Impairment Tables.
Hypertension and heart murmur
[98] Ibid., page 59.

On 5 April 2019, Dr Scally stated that he had been ‘regularly following-up’ with Ms Austin regarding her ‘high blood pressure’, or hypertension.[99]
[99] Ibid., page 203.
On 22 October 2020, a Patient Health Summary for Ms Austin, and certified by Dr Scally, recorded the following in relation to hypertension under Ms Austin’s ‘Active Past History’: ‘[f]ollow-up renal physician Dr Fisher in Sydney (discharged from follow-up May 14), also cardiologist review Dr Patel’.[100] The Patient Health Summary also recorded the following for heart murmur under Ms Austin’s ‘Active Past History’: ‘incidentally detected, echo pending, CXR NAD’.[101] A Patient Health Summary from 2 December 2021, being after the qualification period, again certified by Dr Scally, recorded the same information in relation to these conditions from the aforementioned summary produced in October 2020.[102]
[100] Ibid., page 291.
[101] Ibid., page 291.
[102] Ibid., page 349.
On 1 September 2021, which was during the qualification period ending in November 2021, it was reported by a job capacity assessor that Ms Austin stated that she ‘takes medication and has a follow up appointment with her cardiologist in October’.[103]
[103] Ibid., page 341.
Based on the available evidence, while the Tribunal accepts that Ms Austin’s hypertension and heart murmur were ‘fully diagnosed’ during the qualification period between August and November 2021, it is not satisfied that they were ‘fully treated’ and ‘fully stabilised’ during that time. The evidence indicated that Ms Austin was continuing to investigate treatment with a cardiologist during the qualification period.[104] Accordingly, the Tribunal finds that these conditions were not ‘permanent’, as required by subsection 6(3) of the Rules, in order to be assigned any impairment rating under the Impairment Tables.
Diabetes
[104] Ibid., page 341.
On 22 October 2020, a Patient Health Summary for Ms Austin, and certified by Dr Scally, recorded her as having ‘Diabetes Mellitus, Type 2’ with a date of 15 May 2020.[105] A Patient Health Summary from 2 December 2021, being after the end of the qualification period, again certified by Dr Scally, recorded the same information in relation to this condition from the aforementioned summary produced in October 2020.[106]
[105] Ibid., page 292.
[106] Ibid., page 350.
On 1 September 2021, which was during the qualification period ending in November 2021, it was reported that Ms Austin told a job capacity assessor this condition was ‘up and down’ and that she takes medication.[107] While the Tribunal accepts that Ms Austin’s diabetes was ‘fully diagnosed’ during the qualification period, there was insufficient evidence to demonstrate that it was ‘fully treated’ and ‘fully stabilised’ at that time, including in relation to the proposed treatment and prognosis for the condition. Accordingly, the Tribunal finds that this condition was not ‘permanent’, as required by subsection 6(3) of the Rules, in order to be assigned any impairment rating under the Impairment Tables.
Ankle fracture
[107] Ibid., page 339.
On 15 February 2021, Dr Udebunu, General Practitioner, certified that Ms Austin had an ‘avulsion fracture’ of her left ankle on 10 February 2021, which condition was reported to be temporary with a prognosis that it would affect her capacity to work or study for less than three months.[108]
[108] Ibid., page 410.
On 13 April 2021, Dr Udebunu again certified that Ms Austin’s ‘avulsion fracture’ was temporary and would affect her capacity to work or study for less than three months.[109] That is, until mid-July 2021, being before the commencement of the qualification period on 5 August 2021.[110]
[109] Ibid., page 411.
[110] Ibid.
On 2 December 2021, which was after the qualification period, a Patient Health Summary for Ms Austin, and certified by Dr Scally, recorded her as having a left ankle fracture from a ‘fall from eBike at 70kph’ in February 2021, which required a ‘cam boot’.[111]
[111] Ibid., page 349.
Having regard to the documentary evidence regarding the temporary nature of this condition, the Tribunal finds that it was not ‘permanent’ during the qualification period, as required by subsection 6(3) of the Rules, in order to be assigned any impairment rating under the Impairment Tables.
Chronic pain
On 15 July 2019, Dr Scally certified that Ms Austin had chronic pain related to low back pain and pain in the right arm and right knee.[112] Dr Scally opined that this condition was permanent and likely to persist for two years or more and that Ms Austin was unfit for study or work until mid-October 2019.[113] There was no further evidence regarding this condition, including from during the qualification period running from 5 August 2021 to 4 November 2021. Accordingly, based on the available evidence, the Tribunal is not satisfied that this condition was ‘permanent’, as required by subsection 6(3) of the Rules, in order to be assigned any impairment rating under the Impairment Tables.
Thoracic spine condition
[112] Ibid., page 409.
[113] Ibid.
On 4 January 2022, which was after the end of the qualification period running from August to November 2021, Dr Imran Khan, General Practitioner, certified that Ms Austin had a ‘T12 fracture’, which was reported to be temporary and rendered her unfit for work or study for one month, until 4 February 2022.[114]
[114] Ibid., page 412.
On 1 February 2022, Dr Khan certified that Ms Austin’s ‘[f]ractured thoracic spine’, said to have occurred on 17 December 2021, which was outside the qualification period ending on 4 November 2021, was temporary and would affect her capacity to work or study for ‘3-6 months’.[115]
[115] Ibid., page 414.
On 24 March 2022, Dr Scally certified that this condition was temporary, but would continue to affect Ms Austin’s capacity to work or study for ‘3-6 months’.[116]
[116] Ibid., page 415.
On 7 December 2022, Dr Scally certified that Ms Austin’s ‘lower and thoracic back pain’ is ‘stable and chronic in nature’, ‘not likely to improve’ and ‘precludes her from working in any capacity’.[117]
[117] Exhibit 6.
On 2 June 2023, Dr Scally certified that Ms Austin had ‘[c]hronic lumbar/thoracic pain, moderate/severe’, which was ‘[t]emporary, likely permanent’ and would affect her ability to work or study for ‘12-24 months’.[118]
[118] Exhibit 7.
In circumstances where the evidence before the Tribunal indicates that Ms Austin’s thoracic spine condition arose after the end of the qualification period for the purposes of this proceeding, that is, after 4 November 2021, the Tribunal cannot assign this condition any impairment rating under the Impairment Tables.
CONCLUSION
Ms Austin made her claim for the DSP the subject of this proceeding in August 2021. Although Ms Austin’s present circumstances are such that a different outcome may be reached if she lodged a new DSP claim with the Agency, for the purpose of the current review before the Tribunal, it must apply the terms of the Act and the Rules to her DSP application from August 2021 and throughout the qualification period ending over 18 months ago on 4 November 2021.
As a result, and based on the available evidence set out above in these reasons, the Tribunal finds that, during the qualification period from 5 August 2021 to 4 November 2021, Ms Austin’s conditions could not be assigned an impairment rating of 20 points or more under the Impairment Tables. Ms Austin’s claim for the DSP before the Tribunal therefore fails to satisfy subsection 94(1)(b) of the Act requiring an impairment rating of 20 points or more under the Impairment Tables.
Because the Tribunal has found that Ms Austin did not have a total impairment rating of 20 points or more under the Impairment Tables, given the conjunctive nature of subsection 94(1) of the Act, requiring each element to be met by an applicant, the Tribunal is not required to consider whether Ms Austin had a ‘continuing inability to work’ pursuant to subsection 94(1)(c), in order to determine whether she meets this subsequent element of the DSP qualification criteria.
Accordingly, for the foregoing reasons, Ms Austin’s application before the Tribunal is unsuccessful. This does not diminish the nature of the conditions suffered by Ms Austin, but rather is a finding by the Tribunal that the requisite legislative criteria has not been met during the relevant qualification period which ended in early November 2021. As the Tribunal has previously noted, including at the hearing, Ms Austin is at any time able to make a new claim for the DSP with the Agency, accompanied by contemporaneous evidence regarding her conditions and associated treatment.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................[SGD]................................................
Associate
Dated: 18 July 2023

Date of hearing: 6 July 2023

Applicant: By telephone

Solicitor for Respondent: Ms Cindy Huang, Services Australia

[2023] AATA 2097

18 July 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	6 July 2023
Applicant:	By telephone
Solicitor for Respondent:	Ms Cindy Huang, Services Australia