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

Barrett and Secretary, Department of Social Services (Social services second review) [2021] AATA 3400 (22 September 2021)
Division:GENERAL DIVISION
File Number: 2020/5204
Re:Marianne Barrett
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:22 September 2021
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension in accordance with the Social Security Act1991(Cth) with effect from 10 October 2019 in respect of her bowel condition.
.........................[sgd]...............................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – several conditions including diverticular disease – whether fully diagnosed, treated and stabilised –degree of impairment-corroboration—JCA Report-- decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
22 September 2021

The Applicant, Ms Marianne Barrett, seeks a review of the decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) on 28 July 2020 to affirm a decision made by an authorised review officer (“ARO”) of Services Australia, dated 3 June 2020. The ARO’s decision affirmed a decision rejecting the Applicant’s claim for Disability Support Pension (“DSP”), which the Applicant had made on 10 October 2019.
The hearing in this matter was conducted on 30 April 2021 by audio link. The Applicant was self-represented. The Respondent was represented by Ms E Ulrick and Mr M Burnham, lawyers from Services Australia.
The Applicant gave affirmed evidence and was cross-examined.
Legislation
Eligibility for DSP is governed by s 94(1) of the Social Security Act 1991 (Cth) (“Act”) which relevantly provides:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
Other provisions of relevance include:
Continuing inability to work
(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.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market…
Doing work independently of a program of support
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
ISSUES
It is not in dispute that the Applicant satisfies s 94(1)(a) of the Act.
It is in dispute however, that the Applicant satisfies s 94(1)(b) of the Act. This raises sub-issues of whether, during the qualification period (the 13-week period from the date the application was lodged, which was from 10 October 2019 to 9 January 2020), the Applicant’s conditions were fully diagnosed, treated and stabilised; and whether they attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth) (“Impairment Tables”).
The requirement that any condition must be fully diagnosed, treated and stabilised

– that is, must be permanent – arises under paragraphs 6(3) to (7) of the Impairment Tables.
Paragraph 6(3)(a) of the Impairment Tables provides that an impairment rating

(for the purposes of s 94(1)(b) of the Act) can only be assigned if the condition causing that impairment is permanent. Pursuant to paragraph 6(3)(b) of the Impairment Tables, it must also be a condition that is more likely than not to persist for more than two years.
The next issue is whether, if the Applicant satisfies s 94(1)(b) of the Act, she also satisfies

s 94(1)(c) of the Act.
The decision under review must be affirmed if the Applicant does not satisfy

ss 94(1)(b) and/or (1) (c) of the Act.
CONTENTIONS
The Applicant in her application, dated 27 August 2020, says “I have genuine health issues…ongoing” and says she believes the member who constituted Tier 1 “was…not listening to my issues”. She gave in evidence a long history of various serious medical conditions which include diverticular disease, for which she has had surgery.
She contends that the decision under review should be set aside.
The Respondent contends that the Applicant does not satisfy s 94(1)(b) of the Act or, even if she does, does not satisfy s 94(1)(c) of the Act.
The Respondent contends therefore, that the decision under review should be affirmed.
APPLICANT’S EVIDENCE
I provide hereunder a summary of the Applicant’s evidence. Further matters, traversed in the course of her evidence, are discussed under the heading Consideration.
The Applicant gave evidence from her mother’s residence (her mother being aged 92 years) and said that she (the Applicant) is aged 61 years.
The Applicant said she visits her mother regularly. Her mother is a widow and her late father was a police officer in Victoria for 35 years. He died of lung cancer and bone cancer.
The Applicant said that she first qualified as a nurse but then became an international flight attendant, having first worked on domestic routes for a local airline.
She worked as a flight attendant from 1989 until 2011. After leaving there she worked in a fashion boutique.
The Applicant said she had been married but was now divorced. She said she is single and living with a housemate who formerly was her life partner.
She said she has an adult daughter from her former marriage.
The Applicant said she has had an unfortunate history and has suffered from various conditions over a long period of time necessitating several hospital stays over the years. Previously, she endured both a colostomy bag and an ileostomy bag with two stomas.
Many of her conditions the Applicant indicated are related to bowel and bladder issues. Diarrhoea is a constant problem—at one point she said it occurs “all the time” and is “full on”—accompanied or followed by passage of wind.
Urinary incontinence has also been a constant problem for her.
The Applicant said she also suffers from lower back issues (following a fall before going to hospital in August 2020) together with issues relating to her feet and ankles. As well, there has been an issue now concerning her right breast.
Under cross-examination, the Applicant said she understood that on the review it was only the state of her health during the qualification period which was of concern. Nevertheless, she indicated the present state of her various medical conditions.
The Applicant said that during the qualification period she did not visit her mother at all. One reason for this which she gave was ---“I was a lot sicker than what I am now”. But her evidence was a little unclear on this point.
She said that at this time she was experiencing “issues …with my bowels”. Also, she said she was not needed by her mother at the time.
The Applicant agreed she had her final stoma removed in August 2018 but she added that after this she developed an infection (C.Diff infection). At one point she appeared confused over dates or years. A C Diff infection apparently can arise in hospital due to a patient being on several or numerous antibiotics.
She agreed with the view expressed by Mr Wong, her colorectal surgeon, who said it would take until December 2018 for her to recover from her surgeries. But she said during the qualification period she was still experiencing diarrhoea –leading to embarrassing incidents of incontinence--for which she took Gastro Stop (Loperamide) which would wear off normally after three days or so.
In answer to a question the Applicant said faecal leakage occurred between about one and three times a week during the qualification period.
During this period the Applicant also suffered several bowel blockages.
As well, she had experienced during this time a painful back condition. She attributed this to her work as a flight attendant and said the pain had started after she left her employment as such.
However, during the qualification period the Applicant said that while she suffered plantar fasciitis in both feet she did not have Haglund’s deformity --which she also suffers from-- and which she said “started to come up from all my walking”.

CONSIDERATION
Section 94(1)(a)

I have noted it is not in issue that the Applicant satisfies s 94(1)(a) of the Act.
I am satisfied that is quite properly not in issue.
Section 94(1)(b)
In indicating my views on whether the Applicant meets the requirement in s 94(1)(b) of the Act I shall deal with her conditions separately and in the order followed by Tier 1. In doing so, I must indicate I have considered carefully the various submissions of the Respondent contained in the Statement of Facts, Issues and Contentions.
I have also considered the various expressions of medical opinion in the reports sent by the Applicant. I should indicate at the outset that I regard the Applicant as a witness of truth. Cross-examination of her did not alter my view about that in any way.
(A) Bowel Condition
I am not in any doubt that the Applicant has suffered greatly because of her various conditions but particularly because of her bowel condition.
The Respondent regards this condition as an instance of “diverticular disease”; and as such concedes that it was fully diagnosed, treated and stabilised during the qualification period.
The Respondent contends however that the condition can only be assigned a total of 10 points under two of the Impairment Tables—Tables 10 (Digestive and Reproductive Function) and 13 (Continence Function).
I agree that an applicant for DSP can fall under more than one of the Impairment Tables.
Tier 1 assigned no points under the Impairment Tables for the Applicant’s bowel condition and treated the Applicant’s diarrhoea as a separate condition with no known or reported cause which as a result could not be found to be fully diagnosed, treated and stabilised.
However, Tier 1 decided that the Applicant’s diverticular disease could be regarded as fully diagnosed, treated and stabilised.
I consider that the Respondent has rightly conceded that the Applicant’s bowel condition was fully diagnosed, treated and stabilised during the qualification period. I include in this the Applicant’s diarrhoea—not however as a separate condition as decided by Tier 1.
That is to say that the Applicant’s bowel condition is permanent in the statutory sense.
But I do not agree with the Respondent’s assignment of points for this condition.
That assignment of points is consistent only with a mild (or moderate) functional impact.
Having heard the evidence of the Applicant, I consider that assignment of points by the Respondent is wrong in significantly understating the true nature and effect of her condition.
I am quite satisfied based on her evidence that the Applicant should be assigned points appropriate to severe functional impact.
Digestive and Reproductive Function
In my view the Applicant should be assigned 20 points under Table 10 of the Impairment Tables, as appropriate to severe functional impact.
I must indicate however my view that the Applicant’s diarrhoea during the qualification period was not a separate condition as Tier 1 decided. Table 10 relates to digestive conditions and they include diseases of the intestines (small or large). But under that Table a symptom of a digestive condition includes diarrhoea.
I therefore cannot see why Tier 1 regarded the Applicant’s diarrhoea as a separate condition which was not fully diagnosed treated and stabilised but found her diverticular disease – a disease of the intestines with a symptom of diarrhoea —was fully diagnosed treated and stabilised.
I consider also that the Applicant’s bowel condition is best described by Mr Wong in his report dated 17 February 2021 as including “diverticular disease and abdominal adhesions which cause frequent diarrhoea”.
This report is dated, of course, I agree, long after the end of the qualification period; but it is prepared by the Applicant’s specialist practitioner who is a colorectal surgeon and he describes her condition as “chronic”. He would be aware at the time that some years back, before the beginning of the qualification period, he had operated on her to treat the condition.
Because Mr Wong regards the condition as “chronic” it is fair to say it is a condition of long standing. I regard his assessment as one relating back to a time which includes the qualification period.
I note that Mr Wong says the chronic issues of the Applicant’s bowel condition “include” diarrhoea. This is to the same effect as the Instructions to use Table 10.
In the course of her evidence I went through Table 10, focusing on 20 points for severe functional impairment because of her lead in evidence as well as the information contained in the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 – the T documents.
I am quite satisfied and find that the Applicant satisfies criteria (a) (b) and (c) of subsection (1) of Table 10 appropriate to 20 points.
The Applicant is only required to satisfy two of criteria (a) (b) (c) or (d). I discuss the issue of corroboration below. During the qualification period the Applicant was not working so (d), relating to absence of work, does not arise.
There is no basis for a finding that the Applicant’s diverticular disease had nil functional impact or that it is not permanent in the statutory sense.
(a) attention and concentration
As regards criterion (a) of subsection (1), I find that during the qualification period the Applicant’s “attention and concentration at a task [was] frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition”.
Based on her evidence I am satisfied also that her attention and concentration were frequently interrupted or reduced by the chronic bouts of diarrhoea she suffered during this time. When she was asked whether during the qualification period she was hindered doing things, she answered that she was, and said it was due to chronic diarrhoea.
In that regard the Applicant said during the period she suffered bouts of diarrhoea “probably 10 times a day”. She reported several mishaps including leakages during this time.
The Applicant said her attention and concentration were interrupted during the period “[a]ll the time”. She said this was because “it stinks”.
I can well understand how going to the toilet probably 10 times a day during this period out of a sense of urgency—with mishaps—would significantly distract the Applicant in whatever she may have been doing and thus would disrupt her concentration.
Moreover, it is not just the duration of the visits to the toilet themselves which would be distracting. There would be a preparatory period of build-up and there would be times afterwards settling down or perhaps cleaning up.
There would then be the remaining odour between toilet visits too.
So although it was probably 10 visits per day, the times between each visit were occupied by other things relating to those visits.
And between visits the Applicant would be concerned to look for the signs of the need to visit the toilet again.
Away from the toilet, this could or would have been her focus during the period.
In such circumstances, I am satisfied --and make the finding-- that the Applicant’s attention and concentration would have been interrupted by the symptoms of her digestive disorder –in one way or another—at least once every hour each day during the qualification period.
(b) inability to sustain work activity or other tasks
As regards criterion (b) of subsection (1), I find that during the qualification period the Applicant was “unable to sustain work activity or other tasks for a total of more than 3 hours a day ,even with regular breaks ,due to symptoms of the digestive or reproductive system condition”.
Based on her evidence, I am satisfied the Applicant’s chronic diarrhoea during the qualification period meant she was unable during that time to sustain any work activity or other tasks for a total of more than three hours a day even with regular breaks.
The evidence is the Applicant would have probably 10 episodes of diarrhoea every day during the period and she was disturbed in her attention and concentration (as I find) “[a]ll the time” by reason of this.
As I have indicated above, it is not merely a matter of looking at the number of toilet visits as if before or after a visit her bowel condition was not or would not be bothering the Applicant. During the times between visits, the Applicant would or could have been focussed on looking for signs of the need to visit the toilet again.
That is in the very nature of a chronic bowel condition with diarrhoea as one of its symptoms.
These considerations would have prevented her from undertaking work activities for more than a total of three hours a day.
The Applicant’s diarrhoea seems to be characterised often enough by urgency and frequency because her condition is chronic. Urgency is suggested by the mishaps she mentioned in evidence.
Although the Applicant was not working during the qualification period she was in my view –and as I find-- unable to sustain work activity of any kind reasonably open to her in any event.
This indicates to me that as regards the alternative “other tasks” in (b) during the period the Applicant was likely unable to sustain doing many or any other tasks at all.
(c) affect others
As regards criterion (c) of subsection (1), I am satisfied the Applicant’s condition was one during the qualification period which “may affect the comfort or attention of co-workers”.
Although she was not working during the period, had she been working her chronic diarrhoea would have seriously affected the comfort or attention of co-workers. The Applicant throughout the day would be rushing to the toilet which would disturb nearby co -workers.
Further, the Applicant mentioned mishaps and odours and these I am satisfied would significantly disturb co -workers also.

All of these factors would make life very difficult for co-workers trying to do their job.
(ii) Continence Function
In my view the Applicant should also be assigned 20 points under Table 13 of the Impairment Tables for severe functional impact on maintaining continence of bowel.
I am satisfied that the Applicant meets the requirements of subsection (3) of Table 13 appropriate to 20 impairment points.
As I have indicated the lead in evidence of the Applicant and the information contained in the T Documents led me to consider whether the Applicant suffered severe functional impact rather than mild or moderate.
Much of the above discussion relating to Table 10 applies with equal force here –although Table 10 does not deal with bladder issues.
I am satisfied on the evidence that the Applicant has severe functional impact of the bowel as regards continence during the qualification period.
The Applicant’s evidence supported by medical opinion can lead me to no other conclusion reasonably open—although again there are elements in the Applicant’s case of extreme functional impact.
(a) co-workers
As regards criterion (a) I am satisfied that if she were working during the qualification period the Applicant’s bowel condition would have affected the comfort or attention of co-workers.
There is, as I have said, evidence of frequency and urgency regarding her bowel issues as well as malodours. Co-workers would be considerably disturbed and it would be uncomfortable for them, as I said above.
In any event, criteria(a) (b) and (c) in subsection (3) are alternatives and only one need be satisfied for the assignment of 20 points.
(b) daily leakage
As regards criterion (b) I am satisfied on the evidence that during the qualification period the Applicant had (at the least) “minor” leakage from her bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) probably every day.
When focused directly upon the qualification period, the Applicant said in evidence that “I made a few …lots of messes in the toilet” and said that she had “just recarpeted”. She said “I always wear a pad to bed and then it got to the stage where I put towels in my bed and the smell—you know, the smell is disgusting”.
During that period the Applicant as I have noted visited the toilet “probably 10 times” each day.
This evidence indicates to me the high probability that the Applicant was experiencing during that period leakage from her bowel—which possibly was not “minor”--enough to soil a continence pad – indeed possibly enough to soil outer clothes and that this was a daily occurrence because whenever she went to bed at night — a daily event — she would wear a pad and use towels.
I refer to and rely upon the report of Dr Brian Dunn, General Practitioner, dated 27 December 2019—which is a date during the qualification period—where he mentions that the Applicant “still has issues of occasional bowel blockages, and at times ,embarrassing incontinence”. In the same report he says the “condition may recur at any time and she has to take great care with her diet”.
This strongly suggests that during the qualification period both frequency and urgency were of serious concern -which in turn suggests they were of daily concern.
(c) weekly leakages
As regards criterion (c) I am satisfied on the evidence that during the qualification period the Applicant would have experienced “major” leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly.
The Applicant’s evidence leads to the finding that during the qualification period she certainly experienced leakages.
I would regard those as “major” because pads had to be supplemented by towels at night while in bed.
Obviously if so, pads were not sufficient protection-- meaning they would be fully soiled due to leakages.
I would regard those as “major” because of the mention of “messes in the toilet”. This suggests that there was spillage in the toilet as a room of the house—indeed the Applicant spoke of her toilet being in the ensuite—rather than in the receptacle of the toilet bowl. I consider that would be a major leakage.
These things occurred frequently at least weekly if not more frequently. Indeed in evidence the Applicant even said that she ”absolutely” had major leakages at least weekly. In any event, it would be absurd to say that weekly leakages are not shown if leakages more frequent than weekly are shown.
On any of the 10 or so occasions each day when the Applicant went to the toilet due to the diarrhoea the “messes in the toilet” could have occurred. She was not going to the toilet only weekly – but definitely daily and many times during a day at that --thus in all probability the major leakages occurred at least weekly if not very much more often. As I have said she even said she “absolutely” had major leakages at least weekly.
As regards frequency and urgency I refer to the report of Dr Brian Dunn mentioned above which suggests an issue of daily concern but sustains a view of at least weekly concern.
(iii) Corroboration
There is a need for so - called ‘corroboration’ in applying Tables 10 and 13 of the Impairment Tables.
I am satisfied that corroboration sufficiently exists in this case.
I do not consider that corroboration requires me to be satisfied that each of the visits of the Applicant to the toilet or each of the mishaps was witnessed or tabulated or timed by someone or was reported in some way.
The Impairment Tables must be read more reasonably than that in my view - considering the underlying purpose of the Act (under which the Impairment Tables are made) and considering also the objectives of the Tribunal set out in s 2A of the Administrative Appeals Tribunal Act1975 (Cth), especially the reference to “justice” which I do not regard as merely aspirational.
In the first place, however, I refer to and rely upon the report of Mr Wong dated 8 December 2020. It is true that the report is dated after the qualification period –as I have said--but he refers to her “multiple episodes of small bowel obstruction…which is ongoing” saying “she may require surgery” if they “continue to cause her significant symptoms, as they have over the last year”.
That takes his reference to her “significant symptoms” to a time in about December 2019—which is during the qualification period.
I also refer to and rely upon the report of Dr Brian Dunn referred to above –dated during the qualification period—mentioning the Applicant’s “embarrassing incontinence” at times.
In any event, I should add that I am in doubt that it is open to the Respondent to raise an argument about corroboration after conceding that the Applicant has a fully diagnosed, treated and stabilised condition for which points should be assigned under the Impairment Tables.
The Respondent would not have adopted that position, I would think, if satisfied that no points should be assigned because the Applicant fails to meet the requirement of corroboration.
(B) Lower Back Pain
Tier 1 found that the Applicant’s lower back pain was fully diagnosed during the qualification period but not fully treated or stabilised.
The condition is conceded by the Respondent to be L5/S1 disc prolapse with compression of the left S1 root, and as fully diagnosed but similarly not fully treated or stabilised.
I agree with this analysis and with Tier 1.
Before the qualification period, the Applicant last saw Mr McMahon, neurosurgeon, in 2013. Mr McMahon recommended further review by a specialist.
After that, and after she had been in hospital for bowel surgery in August 2018, she was recommended on 31 July 2019 for chiropractic treatment.
However, the Applicant did not have the further review and did not follow up with the chiropractor.
Indeed the observation was made by Dr Dunn in his report dated 27 December 2019, that the Applicant “has been able to avoid an operation for the time being” with respect to her disc problem.
In such circumstances, I am unable to find that the Applicant’s condition by or during the qualification period was either fully treated or fully stabilised.
From this it follows that nil points can be assigned under the Impairment Tables.
(C)Depression
Tier 1 found that the Applicant’s depression was not fully diagnosed.
This is also still the position of the Respondent.
I accept that the Applicant’s various sufferings could well make a person clinically depressed or aggravate an existing state of depression but I am not satisfied I may find that her condition has been properly diagnosed by the appropriate professional—psychiatrist or clinical psychologist.
The referral to the Cairnmillar Institute on 14 April 2020 for assessment by a Clinical Psychologist is well outside the qualification period and cannot be considered.
I therefore find that nil points only can be assigned under the Impairment Tables.
(D) Foot Pain
Tier 1 found that the Applicant suffers from three separate foot conditions leading to her pain and that her condition was fully diagnosed but not fully treated or stabilised.
The Respondent adopts the same position, describing her foot condition more particularly as bilateral plantar fasciitis and Haglund’s disorder of both Achilles tendons.
Activity to treat the foot condition only took place in 2019 and 2020. Purchase of orthotic inserts only took place in July 2019. Referrals to orthopaedic surgeons only occurred in August 2020.
These efforts are well outside the qualification period.
I therefore find that nil points only can be assigned under the Impairment Tables.
(E) Hepatitis C
Tier 1 was not clear about the findings it made with respect to the Applicant’s Hepatitis C.
The Respondent however concedes that this condition was fully diagnosed, treated and stabilised during the qualification period.
I accept that that is so but I am unable to identify any functional impact on the evidence.
Accordingly, I find that nil points only can be assigned under the Impairment Tables.
(F) Shoulder Pain
Tier 1 found that the Applicant’s right shoulder pain--rotator cuff tear—was not fully diagnosed, treated or stabilised during the qualification period.
The Respondent concedes, however, that the condition was indeed fully diagnosed but maintains during that time that it was not fully treated or stabilised.
I am of the view that the Respondent’s position is correct and that there is no evidence that the Applicant sought any treatment for her shoulder during the qualification period.
Therefore, I find that nil points only can be assigned under the Impairment Tables in respect of the shoulder condition.
(G) Urinary incontinence
Tier 1 found the Applicant’s long standing urinary incontinence was not fully diagnosed, treated or stabilised during the qualification period.
The Respondent concedes that the condition was fully diagnosed but maintains it not fully treated or stabilised during that period.
There was substantial evidence given to me by the Applicant about her condition including urinating in the swimming pool without control while she is swimming.
At the same time there is evidence that the Applicant did not ask her medical practitioners to have her urinary incontinence investigated or ask to see a specialist about it.
There is nothing in the materials to satisfy me that I should find the condition was fully treated or fully stabilised during the qualification period.
Accordingly, I find that nil points only can be assigned under the Impairment Tables in respect of her condition, which no doubt has been very troubling for her.
Section 94(1)(c)
I have indicated my view that the Applicant satisfies s 94(1)(b) of the Act having also satisfied s 94(1)(a).
Unless, however, the Applicant also satisfies s 94(1)(c) of the Act, the decision under review must be affirmed.
But I am satisfied to the required degree that the Applicant does satisfy s 94(1)(c) in that I am satisfied she has a continuing inability to work of the kind required by the Act by reason of her bowel condition.
Because her bowel condition is in the nature of a severe impairment the Applicant is not required by the Act (see s 94(2)(aa)) to demonstrate she has actively participated in a program of support.
In forming my view under s 94(1)((c), I have considered whether the Applicant satisfies s 94(2)(a) and (b)(i) of the Act, and I am satisfied that she does. As regards s 94(2) (b), only (i) or (ii) need be satisfied because they are alternatives.
I quote again Dr Dunn’s report dated 27 December 2019 – the Applicant “still has issues of occasional bowel blockages, and at times, embarrassing incontinence”: this “condition may recur at any time and she has to take great care with her diet”. His conclusion is that he does not consider that she is capable of working. However in saying this he takes into account other conditions the Applicant suffers from which, in my view, either are not fully diagnosed, treated or stabilised; or if fully diagnosed, are not fully treated or fully stabilised.
I also refer to the reports of Mr Wong; in particular his report dated 17 February 2021 which is within two years after the start of the qualification period. As I have noted he says the Applicant “has chronic issues with her bowel that include diverticular disease and abnormal adhesions which cause frequent diarrhoea”. He says she requires “intermittent admission to hospital” for her abdominal pain. He says that diverticular disease “is a chronic condition that is likely to persist” and that the Applicant “will require ongoing management of her symptoms into the future”.
As to the last point made by Mr Wong, there is no basis in the evidence for me to make a finding that within or even after the two years in question the Applicant’s bowel condition will abate or terminate or has abated.
Mr Wong’s expression of opinion about her recovery after her operation on 30 January 2018 for perforated sigmoid diverticulitis (see his report dated 22 June 2018) was too hopeful and has not eventuated.
The evidence of the Applicant is that she still suffers diarrhoea, for which she regularly takes Gastro Stop. The medical evidence is that she has an ongoing chronic bowel complaint still within two years after the start of the qualification period.
I am satisfied during this time she has or had –or was going to have--persistent and ongoing bowel symptoms and bouts of diarrhoea occurring without warning and resulting in mishaps from time to time and “messes” accompanied by unpleasant odours.
In such circumstances, I am satisfied (as under s 94(2)(a)) that the Applicant’s impairment is of itself sufficient to prevent her from doing any work independently of a program of support within the next two years. The Act does not make it clear when the “next two years” runs from—the beginning or the end of the qualification period? But I consider the Applicant satisfies s 94(2)(a), whichever time frame is adopted.
In forming my view, I have taken into account the requirements of s 94(3) and also the requirements in the notion of “work” as specified in the definition of that word under s 94(4).
The nature of the Applicant’s condition is such that it would impair her capacity to work wherever she was in Australia, even if not within her locally accessible labour market. A bowel complaint of this chronic nature I would think travels with the sufferer wherever the sufferer may be.
And I am satisfied her condition –by its very nature--of itself would be (or is) sufficient to prevent her from doing any work independently of a program of support within the mentioned two years.
The Applicant would be an unattractive proposition to any employer in probably any field because of the needs she has arising from her condition (proximity of toilets, frequent toilet breaks and so on) and because she could not promise or guarantee regular uninterrupted work attendance or regular start or finish times.
As well, the Applicant could or would be a source of disturbance or distraction to any co-workers nearby. Their dissatisfaction could in turn adversely affect the Applicant’s ability to work, or her attitude to work or to her co-workers, which could then lead to difficult workplace relations and an unhappy workforce.
No program of support I would think would or could assist the Applicant to overcome these problems.
But even if the Applicant was working from home (or online) there would still be the serious problem of her concentration and attention being frequently interrupted solely because of the chronic nature of her condition.
This would or could mean the Applicant’s ability to sustain any work activity at all is completely compromised.
I am plainly of the view and I find that no program of support –which has been described in evidence given to me --could overcome her problems of concentration and attention and inability to sustain work activity.
No training or education or vocational counselling that I was given evidence of could, in my view, help the Applicant to achieve the concentration and attention skills needed for work so as to enable her to engage in work in a sustained or uninterrupted fashion.
I am satisfied therefore that by reason of these considerations, separately or together, the Applicant meets the criteria in both s 94 (2) (a) and (2) (b) (i).
Which raises the issue of the Job Capacity Assessment(“JCA”) Report dated 9 April 2020. This is a report completed three months after the end of the qualification period. I raise the issue—without deciding it—whether JCA reports completed after the end of a qualification period should be able to be relied on if medical reports similarly so completed generally cannot be relied on by applicants.
I do not consider I am bound to accept the findings of or recommendations in a JCA report.
Particularly, I am reluctant to follow findings or recommendations in a JCA report which is completed after the end of the qualification period, even though it is within the two year period afterwards.
The JCA report in this matter is completed by a registered nurse and a psychologist. I am not informed whether either of them has any, and if so what, experience dealing with cases of diverticular disease. Or whether either has any experience with those suffering chronic bowel conditions. For instance, merely being a registered nurse may not be sufficient in considering bowel issues where a stoma is or has been involved, unless that nurse has special experience with stoma patients. It is well known that there are specialist nurses—psychiatric nurses or paediatric nurses for example--in sub-sets of the nursing profession. One such sub-set is stoma nurses. But I am not informed whether the authors of the report –even the psychologist--have had any experience in stoma cases.
I have no evidence and I am not informed about whether either author has any training in colorectal or gastroenterological matters.
Both such persons may have sufficient knowledge or experience to be able to meaningfully comment on the Applicant’s other conditions—a matter I do not need to make any findings about—but those other conditions of the Applicant are not conditions which I consider satisfy s 94(1)(b) of the Act. Strictly, they are irrelevant.
Further, to claim the Applicant could return to nursing—having been a nurse over 30 years ago—ignores the fact that since the Applicant was a nurse there have been numerous advances in nursing and in medicine, for which the Applicant may not have trained. Indeed, her nursing qualifications could now be completely out of date and unable to be used if hazards to patients are to be avoided.
The claim that the Applicant could return to nursing ignores the reality moreover of the true nature and effect of her bowel condition. Her incontinence could mean that while treating a patient –perhaps in the middle of some procedure—she would need to leave for the toilet urgently and there might be no one standing by to take over.
As well, given that the Applicant’s health in question relates to her bowel with frequent daily visits to the toilet, there would be a risk of infection to patients under her care or being in the vicinity of sick or infirm persons if carrying out other nursing-associated duties.

There would be a serious risk of infection to any others in a hospital—but particularly to patients—should the Applicant, while nursing, experience a bowel mishap on floors or carpets.
Lastly, I see no evidence for the claim advanced in the JCA Report that the Applicant could work either 0-7(temporary work capacity) or 15-22 hours a week (work capacity with intervention).
How either is calculated is not made apparent, and no explanation was given to me in evidence.
Moreover, these do not seem to be figures which take into account the considerable amount of time each week when the Applicant would be either out of action altogether, or only partly in action, due to having to visit the toilet because of her bowel condition or to clean up “messes” or to be anxious about her condition in between toilet visits .
I consider I am unable to rely on the JCA Report to demonstrate anything of relevance about whether the Applicant has a continuing inability to work or not.
Conclusion
The conclusion I have reached is that the Applicant satisfies not only s 94(1) (a) and (b) but satisfies also s 94(1)(c) of the Act.
In consequence, the decision under review cannot stand and must be set aside.
I venture to suggest that the Respondent should have given consideration to settling this matter at an early point instead of requiring the Applicant to prove her case.
Decision
The decision under review is set aside and a decision substituted that the Applicant is entitled by law to DSP with effect from the date of her claim in respect of her bowel condition.
I make no decision or findings regarding any of the Applicant’s other health conditions, except as I have indicated.

I certify that the preceding 192 (one hundred and ninety – two) paragraphs are a true copy of the reasons for the decision herein of
Dr Damien Cremean, Senior Member

.........[sgd]..............................................................
Associate
Dated: 22 September 2021

Date of hearing: 30 April 2021

Applicant:
Self-represented

Advocate for the Respondent: Ms E Ulrick

Solicitor for the Respondent: Services Australia

[2021] AATA 3400

22 September 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	30 April 2021
Applicant:	Self-represented
Advocate for the Respondent:	Ms E Ulrick
Solicitor for the Respondent:	Services Australia