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

Badita and Secretary, Department of Social Services (Social services second review) [2018] AATA 3884 (16 October 2018)
Division:GENERAL DIVISION
File Number: 2018/0087
Re:Alexia Badita
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:16 October 2018
Place:Perth

The Reviewable Decision is affirmed.
..............[sgd]..........................................................
Senior Member Dr M Evans
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the applicant has an impairment rating of 20 points or more under Impairment Table 12 – blindness in right eye – Wyburn Mason Syndrome – AAT Tier 1 decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 23(1), s 26, s, 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c),
s 94(1)(c)(i), s 94(2), s 94(2)(aa), s 94(3B), s 94(3C), s 94(5)
Social Security (Administration) Act 1999 (Cth) – Schedule 2, subclause 4(1)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 12, s 3, s 5(2), s 5(2)(b), s 5(2)(c),
s 6, s 6(3), s 6(4), s 11
REASONS FOR DECISION
Senior Member Dr M Evans
16 October 2018
BACKGROUND TO THE APPLICATION

The Applicant is a young woman who lodged a claim for a disability support pension (DSP) on 3 November 2016. The condition reported in this claim was Wyburn Mason Syndrome (a rare eye condition) with retinal arteriovenous malformation in her right eye (eye conditions).
A job capacity assessment (JCA) was undertaken by the Department of Human Services (the Department) on 17 January 2017 which gave the Applicant a total impairment rating of five points under Table 12 (T38). The Job Capacity Assessor assigned the Applicant a baseline work capacity of 23 to 29 hours per week (T38, page 156).
On 21 March 2017, the Department rejected the Applicant’s claim for a DSP on the basis that she was not eligible because she did not have an impairment rating of 20 points or more (T39, page 160). The Applicant requested a review of the decision of 21 March 2017 (T43). On 30 August 2017, an authorised review officer (ARO) from the Department affirmed the decision (T45, page 168).
On 10 October 2017, the Applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) for a review of the ARO’s decision of 30 August 2017 (T49).
On 7 December 2017, the AAT Tier 1 affirmed the 30 August 2017 decision of the ARO to reject the Applicant’s claim for a DSP (the Reviewable Decision) (T2).
The Applicant is now seeking review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal).
ISSUE
The overall issue for determination by this Tribunal is whether the Applicant met the criteria in s 94(1) of the Social Security Act 1991(Cth) (the Act) in order to qualify to receive a DSP.
The specific issues to be addressed to determine whether the Applicant met the criteria to be qualified for a DSP are:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment during the qualification period;
(b)if so, whether the impairment was fully diagnosed, treated and stabilised during the qualification period and attracted a rating of 20 points or more under Table 12 of the impairment tables; and
(c)whether the Applicant had “a continuing inability to work” under s 94(1)(c)(i) of the Act.
MATERIAL BEFORE TRIBUNAL
The application was heard by the Tribunal on 3 August 2018. The Applicant was self-represented and appeared with her mother who made submissions on her behalf and acted as her support person. The Respondent was represented by Ms Jones-Bolla from Sparke Helmore Lawyers who appeared in person. Oral submissions were made by both parties. The Applicant gave oral evidence to the Tribunal and was cross-examined.
The following documentary material was before the Tribunal and was admitted into evidence at the hearing:
(d)a letter from Professor Ian Constable, Ophthalmologist, Lions Eye Institute, dated 23 March 2018 (Exhibit A1);
(e)the Respondent’s s 37 documents, including documents T1 to T55 dated 5 February 2018 (Exhibit R1);
(f)the Respondent’s Statement of Facts, Issues and Contentions dated 1 June 2018 (Exhibit R2); and
(g)a letter from W H Morgan (Consultant Ophthalmologist) dated 13 November 2017 (Exhibit R3).
The Tribunal has considered all the material before it as well as the parties’ submissions and the oral evidence of the Applicant. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.

LEGISLATION
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(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; …
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26 Impairment Tables and rules for applying them
Impairment Tables
(1) The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1)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.
Applying the Tables
(2)The Tables 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.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years...
Subsection 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(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.
Sections 5 and 6 of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 11 of the Impairment Tables states:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied….
“Table 12 – Visual Function” is the table that is relevant to the Applicant’s claim for a DSP, and is discussed in more detail below under the heading “Impairment Rating”.
Subsection 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(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.
Subsection 94(3B) of the Act provides that “[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.”
Subsection 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Subsection 94(5) of the Act continues on to define “work” as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
Qualification Period
Schedule 2, s 4(1) of the Social Security (Administration) Act 1999(Cth) (the Administration Act) provides for a 13 week qualification period from the date of claim:
(1)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.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility. The Applicant lodged her claim for a DSP on 3 November 2016. Consequently, the relevant qualification period is 3 November 2016 until 2 February 2017 (the Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services [2015] FCA 1123 (Gallacher), Besanko J (at paras [26] and [28]) stated that he agreed with the following statement from the judgment of Gyles J (at [1]) in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at paras [27] and [28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466 at 473:
In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
Impairment rating
The “Introduction to Table 12” in the Impairment Tables states:
·Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (e.g. diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness);
oresults of vision assessments (e.g. from an optometrist).
·Table 12 should be applied with the person using any visual aids the person usually uses (e.g. spectacles or contact lenses).
·Where severe or extreme loss of visual function is evident or suspected, it is to be recommended that assessment by a qualified ophthalmologist occur to determine if the person meets the criteria for permanent blindness.
The Applicant’s current assessment under Table 12 of the Impairment Tables is a “mild” functional impairment of five points, which is defined as:
There is a mild functional impact on activities involving visual function.
(1)The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:
(a)the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);
(b)the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;
(c)when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;
(d)the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);
(e)the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.
A “moderate” functional impairment, which would attract 10 points, is defined by Table 12 of the Impairment Tables as:
There is a moderate functional impact on activities involving visual function.
(1)The person:
(a)has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and
(c)has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and
(d)has at least one of the following:
(i)     some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;
(ii)    moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);
(iii)    only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and
(2)The person:
(a)is able to function independently in familiar environments (that is, without regular assistance from other people); and
(b)is able to travel independently using public transport when using any assistive devices that they have and usually use.

Whereas, a “severe” functional impact under Table 12 of the Impairment Tables, which would attract 20 points, is defined as follows:
There is a severe functional impact on activities involving visual function.
(1)The person:
(a)has severe difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn; and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks; and
(c)has severe difficulty performing many day to day activities involving vision (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in the supermarket even when standing close to these); and
(d)either:
(i) is unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using any assistive devices or technology that they have; or
(ii) needs assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices that they have (e.g. a guide dog or cane); and
(e)is unable to move around independently in unfamiliar environments.
To determine the appropriate functional impact to be assigned to the Applicant’s eye conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) Impairment Tables) based on the medical evidence before the Tribunal.
THE APPLICANT’S CONDITION
The Applicant has been diagnosed with Wyburn Mason Syndrome, a rare condition, which has caused blindness in the Applicant’s right eye. The Applicant has normal vision in her left eye (T51).
The nature of the Applicant’s condition was further explained in a letter from Dr Bryan Tan from the Sir Charles Gairdner Hospital Eye Clinic dated 11 September 2017 as follows (T46):
She [the Applicant] has a history of Wyburn Mason syndrome which was initially diagnosed in 2006 after she developed a squint in the Right eye. The disease affects different parts of her body, but has unfortunately resulted in multiple ophthalmological problems and irreparable damage to her Right eye which currently no (sic) perception to light. The cause of this is multifactorial, resulting from; a vascular malformation impinging on the optic nerve, retinal bleeds, chronic glaucoma and severe cataracts. We would consider this condition irreversible and as such there is unfortunately no surgery or medication that will return her vision in the right eye. At this stage, any operation to the affected eye would pose too large a risk to vision in the good (left) eye, and as such we would not recommend any surgical intervention.
This condition causes many problems for Alexia who only has vision through 1 eye. She suffers severe debilitating headaches, blurring of vision and difficulty focussing in the left eye. This has impacted her ability to attend school, and likely her performance in exams.
The Applicant’s arteriovenous malformation is not a separate condition, but is part of the condition of Wyburn Mason Syndrome. Specifically, in a letter dated 12 September 2017, Dr Chris Pavlos noted that (T48, page 176):
… I write regarding Alexia’s Wyburn Mason Syndrome.
This is characterised by Arteriovenous Malformation affecting the retina, visual pathways and mid brain and facial structures.
QUALIFICATION CRITERIA FOR DSP
The Respondent accepts that during the Qualification Period the Applicant suffered from a physical impairment and consequently, s 94(1)(a) of the Act is satisfied (Exhibit R2, para [23]). Specifically, the Respondent accepts that during the Qualification Period the Applicant suffered from the impairment of blindness in her right eye as a consequence of Wyburn Mason Syndrome (Exhibit R2, para [32]). The Tribunal agrees. The Applicant has blindness in her right eye which would amount to “a loss of functional capacity affecting… [The Applicant’s] … ability to work…” pursuant to s 3 of the Impairment Tables.
Section 6(3) of the Impairment Tables, reproduced above, provides that an impairment rating can only be assigned for an impairment that arises from a condition that is “permanent”. Further, s 6(4) of the Impairment Tables provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised, and is more likely than not to persist for more than two years. The Tribunal accepts that the Applicant’s blindness was permanent during the Qualification Period. There is substantial medical evidence before the Tribunal which refers to the Applicant as suffering from Wyburn Mason Syndrome. The evidence includes the medical notes of ophthalmologist Dr G Lam in 2007 (medical notes of Dr G Lam at T5, T7, T8, T10), and correspondence from Dr Phillipa Lamont, a paediatric neurologist at the Department of Opthalmology, Princess Margaret Hospital (T11, T12, T13, T14). Additionally, correspondence from Dr Will McAuliffe dated 6 November 2014 refers to the Applicant being blind in her right eye (T18), as do ophthalmic notes from Princess Margaret Hospital for Children dated 3 February 2015 (T21).
The Tribunal further accepts the Applicant’s submission that the Applicant’s blindness was fully treated due to the fact that any further treatment to the right eye may pose a risk to the Applicant’s good left eye. This is supported by a letter from Dr Tim Phillips dated 5 December 2016 which recorded the discussions of a multi-disciplinary team of specialists at the State Arteriovenous Malformation Meeting who concluded that none of the three treatment modalities were appropriate for the Applicant (T37). Further, the letter from Dr Bryan Tan, which although written after the Qualification Period on 11 September 2017, refers to the condition being “irreversible” and that there is “no surgery or medication that will return her vision in the right eye” (T46). The Tribunal therefore concludes that the Applicant’s blindness in her right eye was fully diagnosed, treated and stabilised during the Qualification Period.
With respect to the Applicant’s pain, the medical evidence before the Tribunal confirms a diagnosis that the Applicant was suffering from eye pain in her right eye, particularly the letter from Professor Morgan consultant ophthalmologist dated 2 February 2015 (T20), which discusses various treatment options to relieve this pain. Ophthalmic notes from Princess Margaret Hospital dated 17 March 2016 also refer to right eye pain (T28).
However, although diagnosed, the evidence before the Tribunal indicates that the Applicant’s eye pain was not fully treated and stabilised during the Qualification Period. The evidence of the Applicant and the submissions of her mother at the hearing were that the Applicant’s eye pain had worsened since the Qualification Period. At the hearing, the Applicant gave evidence that she frequently experiences very sharp pain in her right eye, and has to “stop doing everything” when it occurs. She has been admitted to the hospital emergency department on several recent occasions due to having three to four times more than the normal pressure in her eye, and has had to stop her schooling.
Further, in his letter dated 12 September 2017, Professor Morgan, Consultant Ophthalmologist, discusses the Applicant’s pain in her right eye and various treatment options (T51). A letter from Professor Ian Constable dated 23 March 2018 states that “treatment with drops and tablets has had no effect” (Exhibit A1). This suggests that the Applicant’s pain is not fully treated and stabilised and treatment options are still being explored. Thus, the Tribunal cannot assign an impairment rating to the Applicant’s eye pain, because the evidence indicates that it worsened after the Qualification Period, and it was not fully treated and stabilised during the Qualification Period.
The medical documentation before the Tribunal also notes that the Applicant has been diagnosed with gross obesity. However, the evidence suggests that this diagnosis was made after the Qualification Period and that treatment options were still being explored (letter from Dr Chris Pavlos dated 12 September 2017, T48). Also, the Tribunal does not have any evidence before it about the functional impact of this condition.
The Tribunal must now consider the appropriate impairment rating which can be assigned to the Applicant’s blindness impairment under Table 12 of the Impairment Tables. The Applicant meets the criteria under paragraph (1)(e) of the “mild functional impact” rating in Table 12 of the Impairment Tables because she has functional vision in only one eye. The Tribunal notes the Applicant’s evidence and submissions given at the AAT Tier 1 hearing on 7 December 2017 that (T2, page 10-11):
She gets pain on most days. She frequently attends emergency departments because of this. She does not go out alone, but will often accompany her mother on a shopping trip. She goes for short walks and likes to play with her pet cat in the garden. Since leaving school she has lost contact with old friends and has no real social life. Attacks of pain are unpredictable and for that reason… [the Applicant’s mother] … cannot leave her at home alone…
Further, the JCA report dated 10 February 2017 noted “[t]he client reports she occasionally bumps into things on the right side and is learning to compensate. Depth perception is affected” (T38, page 155). However, in the documentary medical evidence before the Tribunal there is no other evidence regarding functionality in the Qualification Period. Consequently, the Tribunal does not have further evidence in order to increase the number of points that can be assigned to the Applicant under Table 12 of the Impairment Tables to a moderate or severe level of functional impact. This is because the Impairment Tables for these functional impacts contain a number of additional functional difficulties which must be demonstrated.
Consequently, because the Applicant’s impairment did not attract a rating of 20 points or more under Table 12 of the Impairment Tables during the Qualification Period, she did not satisfy the qualification criteria for a DSP under s 94(1)(b) of the Act. It is therefore unnecessary for the Tribunal to consider whether the Applicant had a continuing inability to work under s 94(1)(c) of the Act. However, the Tribunal notes that to satisfy the remaining eligibility criteria in s 94(1)(c) of the Act, the Applicant would need to actively participate in a program of support. As mentioned to the Applicant at the hearing, she may wish to discuss a program of support with the Department, as she stated that she was not aware of the program of support requirement at the time of the hearing.
CONCLUSION
The Tribunal understands that the Applicant will be disappointed by this decision. The Applicant can, however, make a new claim for a DSP in the future, in which further medical evidence regarding her eye pain and obesity could be considered.
DECISION
For the reasons set out above, the Applicant did not meet the eligibility requirements for a DSP during the Qualification Period. Consequently, the Reviewable Decision is affirmed.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

...............[sgd].........................................................
Administrative Assistant Legal
Dated: 16 October 2018

Date of hearing: 3 August 2018

Applicant: In person

Representative for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 3884

16 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Date of hearing:	3 August 2018
Applicant:	In person
Representative for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers