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

[2019] AATA 4375

Barrington and Secretary, Department of Social Services (Social services second review) [2019] AATA 4375 (29 October 2019)

Division:GENERAL DIVISION

File Number:2019/1223           

Re:Mr Bruce Barrington  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT     

DECISION

Tribunal:Ms Anna Burke AO, Member 

Date:29 October 2019

Place:Melbourne

The Tribunal affirms the decision under review.

.....................[sgd]...................................................

Ms Anna Burke AO, Member

Catchwords

SOCIAL SECURITY – application for disability support pension – whether qualified – Meniere’s disease, hearing loss, obesity, mental health condition - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Secondary Materials
Social Security Guide Version 1.257

REASONS FOR DECISION

Ms Anna Burke AO, Member

29 October 2019

INTRODUCTION

1. Mr Barrington (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).

2. On 6 July 2018 Centrelink found that Mr Barrington was not entitled to the DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.

3. The application was heard on 4 September 2019. Mr Barrington was self-represented and Ms Kellie Latta, of Sparke Helmore Lawyers, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Latta.

   THE ISSUES IN CONTENTION

4. The issues in contention are whether Mr Barrington:

   (a)has a physical, intellectual or psychiatric impairment;

   (b)has a  condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;

   (c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (d)has a continuing inability to work.

   BACKGROUND

5. Mr Barrington is 56 years of age, lives with his brother and has not worked since August 2017 due to ill health. He completed year nine schooling and withdrew during year 10 to pursue work. He has undertaken numerous roles including picking and packing in factories, glazing, labouring in construction, truck driving and working as a courier. He has predominantly worked full-time in these roles but most recently was undertaking work as a casual delivery driver.

6. On 30 April 2018, Mr Barrington made an application for DSP citing his medical conditions as:

   ·Obesity;

   ·type II diabetes;

   ·Meniere’s Triad disease;

   ·Hypertension; and

   ·depression.

7. On 21 June 2018 Centrelink had a job capacity assessment (JCA) conducted on Mr Barrington. The JCA report awarded him nil points under the Impairment Tables, having found the following:

   ·Meniere’s disease: whilst the condition has been verified by a medical practitioner, in the absence of recent medical evidence or input from a specialist, the condition is not considered fully diagnosed nor is it considered fully treated and stabilised at this time;

   ·Morbid obesity: considered fully diagnosed as the diagnosis has been confirmed by a medical practitioner but it is not considered fully treated and stabilised as it is considered that with further plan treatment (gastric surgery/partial gastrectomy), there may be significant improvement in functioning within the next two years;

   ·Hernia: considered fully diagnosed as the diagnosis has been confirmed by a medical practitioner but it is not considered fully treated and stabilised as it is considered that with further planned treatment (further surgery and specialist intervention), there may be significant improvement in functioning within the next two years;

   ·Hearing loss: considered fully diagnosed as the diagnosis has been confirmed by a medical practitioner and fully treated and stabilised but unable to assign a higher rating then zero as Mr Barrington does not use hearing aids, was able to communicate clearly in the assessment and reported he was able to hear what was said in the assessment though has more difficult with average background noise; and

   ·Temporary work capacity of 0 to 7 hours per week and with intervention capacity for work within two years of 15 to 22 hours per week.

8. In an internal review on 9 November 2018, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding. The ARO awarded Mr Barrington a total impairment rating of 0 points, stating the following:

   I have found your condition of hearing loss is permanent and can be assigned a rating under the Impairment Tables. According to the available evidence, there is no functional impact of your hearing loss.

   I have found your conditions of morbid obesity, hernia, lower limb deficiencies and depression cannot be considered permanent.

   A medical certificate dated 12 December 2017 noted Meniere’s disease. Treatment to date has consisted of medication for nausea and dizziness.

   Whilst the condition has been verified by a medical practitioner, in the absence of recent medical evidence of input from specialist… To confirm the diagnosis of Meniere’s disease, the condition is not considered fully diagnosed for the purposes of Disability Support Pension.

   The condition is not considered fully treated and stabilised at this time as it has been considered that there may be further improvement in functioning with specialist intervention who may identify alternative treatment options.

   Dr Glasby advised that you have morbid obesity in a medical certificate dated 9 March 2016.

   Whilst the condition is considered ongoing it is not considered fully treated and stabilised as it has been considered that with further plan treatment (gastric surgery/partial gastrectomy) there may be a significant improvement in functioning within the next two years.

   The medical certificate supplied by Dr Michael Glasby dated 9 March 2016 advised that you have depression.

   As this condition has not been fully treated and stabilised it cannot be assigned an impairment rating.

9. On 31 January 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Barrington’s DSP claim.  The AAT Tier 1 awarded Mr Barrington a total impairment rating of zero points, finding:

   ·obesity: had been fully diagnosed but could not be satisfied that it had been fully treated and fully stabilised;

   ·depression: unable to find that it had been fully diagnosed, treated or stabilised;

   ·Meniere’s disease: had not been fully diagnosed by an appropriately qualified medical practitioner at the date of claim;

   ·hearing loss: deafness in right ear is fully diagnosed but not fully treated or stabilised as he is not using hearing aids; and

   ·as Mr Barrington did not satisfy s 94(1)(b) of the Act the member did not address the question of whether he had a continuing inability to work.

10. On 14 February 2019, Mr Barrington sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in his application:

    I have a chronic disability which did not even mention. I will be getting more information on impairment tables I meet the 20 points disability table outlined in the legislation.

    This is why I’m launching my second appeal

    Meniere’s disease (20 points) on the impairment tables

    The person has continual difficulty with balance (e.g. this person has continual dizziness or has to sit down or hold on to a solid object/or continual ringing in the years that interferes with hearing due to medically diagnosed disorder of the inner ear) this has been fully diagnosed by a medical specialist. I’ve read the complete legislation and I do satisfy paragraph 94 (1) B of the Act.

    I’ve been back to my medical specialist ENT surgeon and given more information on my ability to work and the impairment I’m suffering.

    You state in your decision (letter sent back to me) that the ENT specialist did not provide a date that I was diagnosed with this autoimmune disease (there is no cure or hope for this all you can do is manage it). I launched my disability support claim on 26 April 2018 and I had to wait five months for Centrelink to make a decision to reject my claim that’s when I went to a medical specialist ENT and for the AAT make a decision to ignore medical specialist is completely unacceptable.

    The AAT told me they base all the decisions on medical evidence I’ve given you all the medical evidence you need I’ve read the job impairment criteria section 94 (1) B of the Act. I showed to my medical specialist ENT surgeon and he has given me more information on this on the job impairment tables and my ability to work and you’re 100% wrong assessment of my claim for disability support

    Do you understand what chronic ambulating and dizziness is and falling over 24/7 backed by medical evidence deafness, Meniere’s disease.

    Are you independent of Centrelink. Do you make fair and reasonable decisions based on medical evidence

11. In accordance with Schedule 2, s4(1) of the Social Security (Administration) Act 1999 (Administration Act), Mr Barrington’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 31 July 2018 (the qualifying period).

    Relevant Legislation and Issues

12. Section 94(1) of the Act provides that a person is qualified for a 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;

    …

13. The Impairment Tables require that an impairment rating  only be assigned if the condition causing that impairment is “permanent”.[1]

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 6(3)(a).

14. Section 6(4) of the Impairment Tables states that 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.

15. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.

16. Section 6(5) of the Impairment Tables states:

    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

    (ii)what treatment or rehabilitation has occurred in relation to the condition; and

    (b)      whether treatment is continuing or is planned in the next 2 years.

17. Section 6(6) of the Impairment Tables states:

    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.

18. For the purposes of section 6(7), reasonable treatment is treatment that:

    (a)      is available at a location reasonably accessible to the person; and

    (b)      is at a reasonable cost; and

    (iii)can reliably be expected to result in a substantial improvement in functional   capacity; and

    (c)      is regularly undertaken or performed; and

    (d)      has a high success rate; and

    (e)      carries a low risk to the person.

19. The determinative issue in this review is whether Mr Barrington suffered an impairment of 20 points or more under the Impairment Tables during the qualifying period and, if so, whether he had a continuing inability to work.

20. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2) of the Impairment Tables).

21. Section 6(1) of the Impairment Tables sets out that a person’s impairment must be assessed on the basis of what a person can, or could do when assessing functional capacity. It is not to be on the basis of what a person chooses to do or what others can do for the person.

22. Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.

23. It is therefore necessary, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

24. The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”), supplementary T documents, and additional medical reports provided by Mr Barrington.

    Does Mr Barrington have a physical, intellectual or psychiatric impairment?

25. Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance, a person must suffer from an impairment.

26. The Respondent accepts that Mr Barrington is suffering from Meniere’s disease, hearing loss, obesity, and a mental health condition. Accordingly, the Tribunal finds that Mr Barrington meets the requirements of section 94(1)(a) of the Act.

27. As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.

    Does Mr Barrington have medical conditions that can be rated at 20 points or more under the Impairment Tables?

    Meniere’s disease

28. Dr Glasby, in a Centrelink additional medical evidence record dated 4 July 2018, verified with the assessment services the diagnosis of Meniere’s disease. He reported no improvement was expected in the condition and confirmed that due to issues with balance and dizziness, Mr Barrington experiences continual difficulty and intermittent unexpected severe episodes which have an impact on his functionality.

29. On 20 December 2018 Mr Hurst, Ear Nose and Throat (ENT) Surgeon, opined:

    The MRI that I arranged on Bruce has failed to demonstrate any evidence of an acoustic neuroma. I can only assume that he is getting Meniere’s disease and so I have commenced him on Serc.

30. On 27 April 2019 Dr Michael Glasby, Mr Barrington’s General Practitioner since 2008, prepared a report for Mr Barrington stating:

    26/04/2018 Meniere’s triad diagnosis made by Mr Hurst

    On the hearing and other functions of the ear Table 11

    He has a severe functional impairment with continual difficulty with balance. He had an ENT opinion on tinnitus in 2013 and finally Mr Hurst diagnosed Meniere’s in 2018.

31. On 5 September 2019 Dr Liang advised:

    Bruce was prescribed Serc from 7 November 2018.

    An ENT review made a presumptive diagnosis of Meniere’s disease on 20 December 2018. This followed 6 months of dizziness and up to 5 years of hearing loss. He has a “dead” right ear with mild-moderate sensorineural hearing loss in the left ear as demonstrated in an audiogram done on 29 April 2014.

32. On 20 February 2019 Mr William Hurst, ENT Surgeon, prepared a report for Mr Barrington stating:

    Mr Barrington first consulted me on the 29th November, 2018. He gave a history of having developed dizziness 6 months previously. He also reported that he had been deaf in his right ear for about five years. The initial episode of dizziness was quite severe and lasted for about 12 hours. Now he tends to get dizziness that will last for about 10 minutes and occurs once or twice a day.

33. On 17 September 2019 Dr Joyce Liang, General practitioner at Tyabb Health, prepared a report for Mr Barrington stating:

    I write on behalf of Dr Michael Glasby who is on long leave.

    With his hearing, he has severe functional impairment with continual difficulty with his balance. He had an ENT opinion and has finally been diagnosed by Mr Hurst with Meniere’s disease in 2018.

34. Mr Barrington advised the Tribunal that his dizziness was severe and that on a day-to-day basis he could not do the following:

    ·climb ladders;

    ·do up shoelaces, because if he moves slightly to the left or right he loses his balance and falls over; or

    ·walk in a straight line.

    Mr Barrington also informed the Tribunal that he gets dizziness on a 24/7 basis which results in chronic ambulation, requiring him to utilise a walking stick and now Zimmer frame. He lives with his brother who does the majority of shopping and household cleaning for them both.

35. The Respondent contended that Mr Barrington was not diagnosed with Meniere’s disease until after the qualifying period. They contended this was a guarded diagnosis by                Mr Hurst, who advised on 20 December 2018 that he assumed Mr Hurst was getting Meniere’s disease. Further, they contended that the condition was not fully treated and stabilised during the qualifying period as Mr Barrington was not prescribed with Serc[2] until after the qualifying period.

    [2] National Prescribing Service (NPS) MedicineWise >

    The Respondent contended that the medical evidence indicated Mr Barrington’s Meniere’s disease caused minimal functional impact as he only experienced dizziness for 10 minutes twice a day. Mr Barrington was adamant this was not the case and that he suffered continually from the impacts of the Meniere’s disease. He stated that even the slightest movement of his head caused great distress.

36. Mr Barrington advised the Tribunal that his Meniere’s disease was the greatest cause of his functional impairment and the condition was so severe that he could not possibly work. He was adamant that his doctors advised him he was not capable of performing any work because of this condition.

37. Mr Barrington was adamant during the hearing that the diagnosis and treatment of his Meniere’s disease had occurred prior to the qualifying period. To resolve this issue, the Tribunal directed Mr Barrington to provide evidence from his general practitioner             Dr Glasby indicating that he had been prescribed Serc from May 2018. Subsequent to the hearing, Mr Barrington provided a letter from Dr Liang on behalf of Dr Glasby (as he was on  leave) indicating that Mr Barrington had been prescribed Serc from 7 November 2018.

1. The Tribunal found that Mr Barrington’s Meniere’s disease was now causing a severe functional impact on activities involving hearing, which included continual difficulty with balance as corroborated by his ENT specialist and general practitioner. However, the Meniere’s disease had not been fully diagnosed treated and stabilised during the qualifying period. Therefore, nil points could be awarded under Table 11 - Hearing and Other Functions of the Ear.

2. The Tribunal advised Mr Barrington that his best course of action was to submit a new claim for DSP as he now had evidence that the condition of Meniere’s disease could be considered fully diagnosed treated and stabilised. Mr Barrington advised the Tribunal that he had already submitted a new claim.

   Hearing loss

3. On 29 April 2014 Mr Brett Uren, ENT surgeon, prepared a report for Mr Barrington stating:

   Bruce has lost all of his hearing within the right ear over the last 3 to 6 months. The cause for this is unclear.

4. Dr Glasby, in a Centrelink medical report dated 5 June 2014, diagnosed Mr Barrington with deafness, onset unknown. He stated that Mr Barrington had undergone specialist consultation with Mr Uren and further treatment was to be advised.

5. Dr Uren, in an undated Centrelink medical report dated 9 March 2016, diagnosed            Mr Barrington with hearing loss, date of onset 14 May 2014. The report stated it resulted in complete loss of hearing in the right ear, an ‘inability to hear anything, only from the left ear’, and that there was no further treatment planned.

6. Dr Glasby, in a Centrelink additional medical evidence record dated 4 July 2018, verified with the assessment services the diagnosis of hearing loss and reported that                 Mr Barrington does not have hearing aids due to the cost.

7. On 20 February 2019 Mr William Hurst, ENT Surgeon, prepared a report for Mr Barrington stating:

   An audiogram performed on the 29th November 2018 showed that he had a profound hearing loss in his right ear with a moderate loss on the left side in the higher frequencies.

   Due to the severity of the hearing loss in Mr Barrington’s right ear I do not feel that a hearing aid would be all that effective. The fact that he is getting frequent episodes of dizziness certainly would prevent him from being employed as a truck driver. His hearing loss and dizziness will be a permanent feature, though it may be controlled to a certain degree with medication and exercises.

8. Mr Barrington advised the Tribunal that he was completely deaf in his right ear and that he was losing hearing in his left ear. He advised that he had difficulty understanding conversations when there was background noise present and at home he had to turn up the television and his mobile phone to ensure he could hear things appropriately. He also told the Tribunal that he had been advised it was pointless getting hearing aids as they would not assist with total hearing loss, which the Tribunal noted was corroborated by     Mr Hurst’s opinion of 20 February 2019.

9. The Respondent accepted that the evidence confirmed Mr Barrington had been suffering from hearing loss since 2014, but did not concede the condition was fully diagnosed, treated and stabilised during the qualifying period. This was because Mr Barrington had not seen a specialist since 2014 and had not trialled any hearing aids. Additionally, there was some indication that Mr Barrington’s hearing loss may be related to his Meniere’s disease, which was not fully diagnosed treated and stabilised during the qualifying period.

10. The Respondent contended that even if the Tribunal was satisfied that Mr Barrington’s hearing loss was fully diagnosed, treated and stabilised during the qualifying period, the condition was not causing him any functional impact and therefore nil points could be awarded under Table 11 of the Impairment Tables.

11. The Tribunal found Mr Barrington’s hearing loss was fully diagnosed, treated and stabilised during the qualifying period, relying upon the medical evidence of Mr Hurst dated 20 February 2019. It also found the hearing loss was having a mild impact on activities involving hearing and awarded 5 points under Table 11.

    Obesity

12. Dr Glasby, in a Centrelink medical report date 5 June 2014, diagnosed Mr Barrington with morbid obesity since 2000 which resulted in symptoms of fatigue. It reported that he was awaiting further treatment (gastric surgery).

13. Dr Glasby, in a Centrelink medical report dated 9 March 2016, diagnosed Mr Barrington with morbid obesity 29 October 2000 which resulted in symptoms of fatigue, reduced mobility, inability to bend down, difficulty maintaining own hygiene needs and chronic leg pain.

14. Dr Glasby’s letter of 27 April 2019 states:

    2008 Obesity, morbid

    29/10/2008 Hypertension

    Using Table 1 from the Disability Tables

    Functions requiring physical exertion and stamina

    Mr Barrington has severe limitation. His BMI at around 55, and has always been high since childhood. Limitation on function is increasing with his age and activity limitation due to his other major disability. He can walk 50 meters with some difficulty and could not use public transport.

15. Dr Liang’s letter of 17 September 2019 states:

    He has stated that Mr Barrington has severe limitation for functions requiring physical exertion and stamina. He has a BMI of 55 and is morbidly obese, ever since childhood.

    He can walk 50m with a walking stick and could not use public transport.

16. Mr Barrington advised the Tribunal that he has great difficulty walking and is now utilising a Zimmer frame to mobilise. Whilst he has a driver’s license, he is currently not driving, cannot utilise public transport and is reliant upon his brother for all transport needs.        Mr Barrington also stated that he does not undertake household activities or shopping and again is reliant on his brother for all daily activities. He advised the Tribunal that he had been driven to the hearing and would be picked up at the conclusion. The Tribunal noted Mr Barrington was utilising a Zimmer frame during the hearing. Mr Barrington relied upon the report of Dr Glasby of March 2016 which indicated the functional impacts of his obesity.

17. The Respondent accepts that Mr Barrington’s obesity was fully diagnosed during the qualifying period but not treated and stabilised. This is because it had been noted by      Dr Glasby that Mr Barrington was awaiting surgery in respect of a large incisional hernia and, following this procedure, there was consideration of the possible partial gastrectomy which may improve his functionality.

18. The Respondent additionally contended that Mr Barrington’s obesity was a long-standing issue which had not prevented him from being able to work full-time in a variety of roles including manual handling and most recently as a courier. Therefore, even if the Tribunal accepted the condition as fully diagnosed, treated and stabilised, nil points should be awarded under table one of the Impairment Tables.

19. The Tribunal found that Mr Barrington’s obesity was fully diagnosed during the qualifying period, but not fully treated and stabilised as treatment options were still being considered for this condition. Additionally, the Tribunal concurred with the contention of the Respondent that Mr Barrington had not been prevented from being gainfully employed for many years due to the functional impairment of his long standing obesity.

    Mental health condition

20. Dr Glasby, in a Centrelink medical report dated 5 June 2014, diagnosed Mr Barrington with chronic depression since 2000 which required counselling and SSRI (commonly prescribed anti-depressants). The reported symptoms included low mood and social phobia.

21. Dr Glasby, in a Centrelink medical report dated 9 March 2016, diagnosed Mr Barrington with depression since 2000 which resulted in symptoms of low mood, lack of motivation, inability to function properly on a daily basis and a lack of confidence. He opined that the functional condition of Mr Barrington’s depression resulted in him finding it hard to concentrate and having a lack of motivation and an inability to get up and out of bed. It also resulted in Mr Barrington not feeling like socialising and instead feeling like staying at home.

22. Mr Barrington advised the Tribunal that he has an inability to function properly on a daily basis as a result of his Meniere’s disease which leaves him feeling depressed.

23. The Respondent contended that Mr Barrington’s mental health condition could not be considered fully diagnosed, treated and stabilised during the qualifying period as the diagnosis had not been confirmed by an appropriately qualified medical practitioner such as a psychiatrist or clinical psychologist.

24. The Tribunal finds that Mr Barrington’s mental health condition, described as chronic depression, had not been fully diagnosed, treated, and stabilised during the qualifying period. The Tribunal considers this condition as having a moderate functional impact on his activities but, as it had not been diagnosed by an appropriately qualified medical practitioner in the qualifying period, the Tribunal awards nil points. The Tribunal finds that it is difficult to distinguish whether Mr Barrington’s inability to perform activities related to self-care, independent living, social activities, travel and concentration were caused by his physiological conditions, or whether it was a result of his mental health condition.

    Impairment Rating

25. The Tribunal found Mr Barrington had five impairment points under Table 11 of the Impairment Tables and not the requisite 20 points or more to satisfy section 94(1)(b) of the Act.

    Does Mr Barrington have a continuing inability to work?

26. To qualify for the DSP, Mr Barrington must not only have an impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate he has a continuing inability to work. Mr Barrington would be considered as have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP. Additionally, his impairment must be sufficient in and of itself to prevent him from doing any work independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.

27. The Tribunal has strictly applied the program of support requirement and finds that no power exists to dispense with the operation of section 94(2)(aa) of the Act. It is irrelevant whether an Applicant was aware of the requirement or not.

28. Mr Barrington has not been found to have a severe impairment of 20 points under a single table. Therefore, he must have participated in a program of support for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that Mr Barrington had completed such a program within the required timeframe and accepted that he satisfied section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly finds that Mr Barrington had completed a program of support and therefore does satisfy section 94(3C) of the Act.

29. Mr Hurst, ENT surgeon, provided a report on 20 December 2018 in which he opines:

    It appears that Mr Barrington has developed Meniere’s disease causing episodes of dizziness. He is also profoundly deaf in his right ear, presumably due to Meniere’s disease.

    At this stage, I feel that Mr Barrington would be unable to be employed as a truck driver.

30. The Respondent notes that the JCA dated 21 June 2018 found Mr Barrington had a continuing ability to work and anticipated that Mr Barrington will be able to sustain work for 15 to 22 hours per week. The JCA report noted:

    The claimant would benefit from a 0 to 7 hours/week work capacity for a six month period to allow his current symptoms to be fully diagnosed and to engage in a subsequent treatment plan. Participation requirements during this time may exacerbate his conditions and interfere with treatment and recovery.

    The claimant has permanent conditions which have a severe impact on their endurance, manual handling, mobility, concentration, motivation, mood, reliability, capacity to bend, push, pull, lift and carry/and ability to perform physical tasks. This limits the type of work he can effectively engage. A work capacity of 8 to14 hours per week has been recommended due to the implications on obtaining and sustaining employment of more than three 4-hour periods/shifts per week.

31. The Tribunal was unable to ascertain whether Mr Barrington had a continuing inability to work based on the assessment of his general practitioner Dr Glasby and the JCA report. Dr Glasby asserted that Mr Barrington’s functions were severely limited, resulting in physical exertion and stamina as result of his obesity and continual difficulty with balance due to his Meniere’s disease. The finding of Dr Glasby was echoed in the JCA report as noted above, which recognised significant functional impairments as barriers to              Mr Barrington’s to ability to perform work. While the JCA noted that intervention may assist, the Tribunal noted that to date intervention has not improved Mr Barrington’s work capacity.

    CONCLUSION

32. Having carefully considered all of the evidence, the Tribunal finds that at the time of his DSP application of 30 April 2018, Mr Barrington did not have the required 20 impairment points to satisfy section 94(1)(b) of the Act. Whilst the Tribunal did not need to consider whether Mr Barrington had a continuing inability to work as he did not have a severe impairment within the meaning of the Act, it was considered for completeness. Whilst Mr Barrington had undertaken a program of support; the Tribunal was unable to conclude if he had a continuing inability to work.

    DECISION

33. The Tribunal affirms the decision under review.

I certify that the preceding 71(seventy-one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

................[sgd].............................

Associate

Dated:    29 October 2019

Date of hearing:	4 September 2019
Date of final submission:	3 October 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Kellie Latta
Solicitors for the Respondent:	Sparke Helmore Lawyers

Serc is used to treat a disorder of your inner ear. This disorder may include one or more of the following symptoms, in one or both ears:

-ringing in the ears (tinnitus)

-loss of clear hearing

-problems with balance (vertigo)

These symptoms may also be associated with nausea, vomiting and headache. Often these symptoms together are referred to as Meniere's Syndrome.

Serc tablets contain the active ingredient betahistine dihydrochloride. Serc works by improving the blood flow of the inner ear and restoring it to normal. It also acts on the nerve endings in the inner ear to normalise the way in which the nerves respond to outside influences.