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

Bassett and Secretary, Department of Social Services (Social services second review) (Social services second review) [2022] AATA 985 (29 April 2022)
Division:GENERAL DIVISION
File Number: 2020/1220
Re:William Bassett
APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:29 April 2022
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 11 February 2020, to reject Mr Bassett’s claim for the Disability Support Pension lodged on 20 May 2019, is affirmed.
.............[Sgd]...........................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s conditions
are fully diagnosed, fully treated and fully stabilised – whether applicant has severe impairment – brain aneurysm – mental health condition - cervical spondylosis – sleep apnoea – hearing loss – whether applicant has continuing ability to work – whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Administration) Act 1999 (Cth) – Sch 2 cl 4(1)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(2), 7(3)-(5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 6, 6(1), 6(3), 6(4)-6(7), 6(8), 8(1), 8(2), 10(1)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Dept of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Department of Social Services, ‘Guides to Social Policy Law’ Social Security Guide (online guide version 1.292, 21 March 2022) chapters 3.6.2, 3.6.3 <
Guidelines to the Tables for the Assessment of Work-related Impairment for DSP
REASONS FOR DECISION
L M Gallagher, Member
29 April 2022
BACKGROUND

On 20 May 2019, Mr Bassett lodged a claim for Disability Support Pension (DSP) with the (then) Department of Human Services (now, the Agency[1]), in relation to his aneurysm condition, cervical spondylosis, sleep apnoea, hearing loss and depression (together, the Claimed Conditions).[2]
[1]The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services.’
[2] R1, T29 p 169; T44 p 238.
Following an assessment of DSP medical eligibility on 2 July 2019, the Agency deemed that the medical conditions presented, being Mr Bassett’s:
(a)Right MCA stroke;
(b)Cognitive impairment post cerebral aneurysm; and
(c)Depression and anxiety,
did not appear to meet the eligibility criteria required on the basis that he was “manifestly medically ineligible.’[3] The assessor recommended Mr Bassett for an Employment Services Assessment (ESA) to review work capacity and employment services referrals.[4]
[3]R1, T30 p 174. Refer further to topic 3.6.2.20 of the Guides to Social Policy Law: Social Security Guide (the Guide) regarding manifest grants and rejections for DSP and reasons for manifest eligibility and ineligibility.
[4] R1, T30 p 175.
On 5 July 2019, the Agency rejected Mr Bassett’s claim for DSP on the basis that Mr Bassett did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (the Impairment Tables) (the Original Decision).[5]
[5] R1, T31.
On 15 July 2019, Mr Bassett requested an internal review of the Original Decision.[6]
[6] R1, T44 p 243.
On 12 July 2019, Mr Bassett was referred for an ESA, which took place on 25 July 2019.[7] The assessor considered Mr Bassett’s aneurysm which occurred following his stroke in 2016 and his depression and anxiety conditions. The assessor anticipated that with intervention, Mr Bassett’s work capacity would reach 15-22 hours per week within two years.[8]
[7] R1, T33.
[8] R1, T33 pp 184-185.
An Eligibility Assessment Recommendation (EAR) on 1 August 2019[9] recommended Mr Bassett undergo a Job Capacity Assessment (JCA).
[9] The EAR followed Mr Bassett’s further claim for DSP dated 24 July 2019. See R1, T32.
On 20 November 2019, a JCA report was submitted to the Agency, following a face-to-face assessment on 30 October 2019 by a Registered Psychologist.[10] The JCA assessor assessed Mr Bassett’s Claimed Conditions as well as his anxiety and emphysema.[11]
[10] R1, T35.
[11] R1, T35. Mr Bassett’s emphysema does not form part of his claim for DSP relating to these proceedings.
On 6 January 2020, an Authorised Review Officer (ARO) of the Agency affirmed the Original Decision (ARO Decision).[12] The ARO found the following:[13]
(a)Mr Bassett’s conditions of brain aneurysm and stroke are fully diagnosed, treated and stabilised, however, attract 0 points under Table 7 due to the lack of corroborating medical evidence;
(b)Mr Bassett’s conditions of depression and anxiety were not fully treated and stabilised; and
(c)Mr Bassett’s conditions of cervical spondylosis, hearing loss, and sleep apnoea were not fully treated and stabilised.
[12]R1, T39.
[13]R1, T39 pp 207-213.
On 16 January 2020, Mr Bassett applied to the Administrative Appeals Tribunal (Tribunal) for a review of the ARO Decision.[14]
[14] R1, T40.
On 11 February 2020, the Tribunal’s Social Services & Child Support Division (AAT1) affirmed the ARO Decision on the basis that his Claimed Conditions were either not fully diagnosed, fully treated or fully stabilised (FDTS) or were FDTS but did not cause the necessary functional impairment (the Reviewable Decision).[15] Specifically, the AAT1 found:
(a)Mr Bassett’s aneurysm condition was FDTS, however, attracts 0 points under Table 7 due to there being no documented physical impairments resulting from the condition;
(b)Mr Bassett’s mental health conditions are not FDTS and do not attract any impairment points; and
(c)Mr Bassett’s neck pain, sleep apnoea and hearing loss are not FDTS due to there being no evidence of specialist assessment or clinical confirmation.
[15] R1, T2.
On 3 March 2020, Mr Bassett applied to the Tribunal’s General Division for a review of the Reviewable Decision.[16]
[16] R1, T1.
RELEVANT LEGISLATION AND PRINCIPLES
The statutory principles relevant to Mr Bassett’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Guides to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so.[17]
[17]Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
The Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies.[18]
[18]Section 3.6.3 of the Guide.
Qualification criteria

15. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are that:
(a)The person has a physical, intellectual or psychiatric impairment[19];
(b)The person’s impairment is of 20 points or more under the Impairment Tables[20]; and
(c)The person has a continuing inability to work (CITW).[21]
[19]Section 94(1)(a) of the Act.
[20]Section 94(1)(b) of the Act.
[21]Section 94(1)(c)(i) of the Act.

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance.[22]
[22]Topic 3.6.3.05 of the Guide.
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mr Bassett’s eligibility for DSP on 20 May 2019, the date the claim was lodged.[23]
[23] Evidence, such as medical reports, that come into being after the relevant period may still be relevant,
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”[24]
[24]Section 3 of the Determination.
The Impairment Tables “describe functional activities, abilities, symptoms and limitations; and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions.”[25]
[25]Section 5(2) of the Determination.
Section 6 of the Impairment Tables set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment 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. To be given a rating under the Impairment Tables,
[26]Section 6(3) of the Determination. Refer also to ss 6(4) to 6(7) of the Determination.
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years.[26]
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[27]
[27]Section 6(8) of the Determination.
“Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.”[28] Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[29]
[28]Section 8(1) of the Determination.
[29]Section 8(2) of the Determination.
To select the applicable Impairment Table, one must take the following steps:[30]
(a)Identify the loss of function; then
(b)Refer to the Table related to the function affected; then
(c)Identify the correct impairment rating.
[30]Section 10(1) of the Determination.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
Section 94(2) of the Act is 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)… 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.
(Original emphasis.)
In relation to s 94(2) of the Act, extracted at para [26] above, relevantly:
(a)The Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[31]
(b)“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”;[32]
(c)“a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection”;[33] and
(d)Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[34]
[31]See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
[32]Section 94(3B) of the Act.
[33]Section 94(3C) of the Act.
[34]Section 94(5) of the Act.
With regards to participation in a program of support (POS), the POS Determination relevantly provides the following guidance:
(a)The relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person;[35] and
(b)The requirements for active participation in a POS are contained in s 7 of the POS Determination.
(i)Generally, a person must have participated in the POS for at least 18 months during the relevant period.[36]
(ii)Sections 7(3)-7(5) of the POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[37]
[35]Section 5 of the POS Determination.
[36]Section 7(2) of the POS Determination.
[37]See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
ISSUES FOR DETERMINATION
The issues which arise in this matter are whether, at the date of Mr Bassett’s claim for DSP:
(a)Mr Bassett suffered from a physical, intellectual, or psychiatric impairment or impairments; and if so,
(i)Whether Mr Bassett’s impairments receive an impairment rating of 20 points or more under the Impairment Tables; and if so,
(ii)Whether those 20 impairment points are achieved under a single Impairment Table such that Mr Bassett has a severe impairment; and
(b)Mr Bassett has a CITW, which includes:
(i)That he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)If, and only if, Mr Bassett does not have a severe impairment,
Mr Bassett has actively participated in a program of support.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 17 November 2021. Mr Bassett appeared in person with his wife and support person, Mrs Bassett. Mr Bassett was represented by Ms Idil Sudi of People With Disabilities, who appeared in person. The Agency was represented by Ms Amy Simpson, Principal Government Lawyer at Services Australia, who appeared by telephone.
At hearing, the Tribunal admitted the following documents into evidence:
(a)Report from Dr John Cunningham, Consultant Neurologist, dated 14 September 2020 (A1);
(b)Report from Dr John Cunningham, Consultant Neurologist, dated 17 July 2020 (A2);
(c)Letter of referral for Brain PET from Dr John Cunningham, Consultant Neurologist, to Imaging Department, Fiona Stanley Hospital, dated 17 July 2020 (A3);
(d)Medical Imaging Report dated 15 January 2017 on MRA conducted on 9 January 2017 (A4);
(e)Duplicate medical report from Dr John Cunningham, Consultant Neurologist, dated 17 July 2020 (A5);
(f)Statement by Mrs Julie Bassett dated 3 January 2021 (A6);
(g)Letter from City of Mandurah with record of Mr Bassett’s employment history, dated 5 January 2021 (A7);
(h)Email from City of Mandurah to Mrs Bassett dated 23 January 2021 (A8);
(i)Email from City of Mandurah to Mrs Bassett, undated (A9);
(j)Report from Mr Damien West, Clinical Psychologist, dated 31 December 2020 (A10);
(k)Submission by Mrs Julie Bassett dated 11 June 2021 in response to Secretary’s Supplementary Submissions, dated 18 May 2021[38] (A11);
(l)Section 37 T-Documents, labelled T1 – T45, consisting of pages 1 – 264, filed 31 March 2020 (R1);
(m)Secretary’s Statement of Issues, Facts and Contentions dated 10 December 2020, with:
(i)Secretary’s List of Authorities; and
(ii)Attachment A – Program of Support Calculations (R2); and
(n)Secretary’s Supplementary Submissions dated 18 May 2021, with Secretary’s List of Authorities (R3).
[38] Being R3.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Mr Bassett’s evidence at hearing
At hearing, Mr Bassett gave evidence in relation to his mental health condition, stating as follows:[39]
(a)He first saw Dr Ng in March 2017 after he suffered his aneurysm in 2016, so that he could obtain a report to present to his employer in his attempt to try to return to his job.
(b)He was so certain that he would get his job back after his aneurysm. He has worked for the City of Mandurah for 25 years.
(c)He vaguely recalled Dr Ng recommended he undertake some psychotherapy sessions.
(d)He didn’t see Dr Ng again because it was too costly.
(e)He has been seeing Mr West since 2016.
(f)He doesn’t know whether his having seen multiple doctors and psychologists has helped him.
(g)He believes he is still a burden on his family.
[39] Transcript, pp 21-23, 34-35.
Mrs Bassett’s evidence at hearing
At hearing Mrs Bassett gave evidence further to her written statements already provided[40], as follows[41]:
(a)Mr Bassett had seen Mr West for grief counselling after their grandson died. This was prior to Mr Bassett suffering his aneurysm in 2016.
(b)The main reason Mr Bassett’s anti-depressant medication was changed was because Mrs Bassett had actually said to their doctor that she wanted it changed because she had heard some “bad things” about Pristiq.
(c)For some reason, Mr Cunningham had reported on the effects of Mr Bassett’s aneurysm over the last two years, when Mrs Bassett had wanted Mr Cunningham to report on its effects right back from when Mr Bassett first suffered his aneurysm. Mrs Bassett wanted Mr Cunningham to provide a fully historical picture to help her understand her husband’s condition and related behaviour, so that she could better help him.[42]
(d)Nothing has changed since Mr Bassett suffered his aneurysm. Mr Bassett is still depressed.
CONSIDERATION
[40]     See A6 and A11.
[41]     Transcript, pp 23-30.
[42]In this context, the Tribunal notes Mrs Bassett’s comment in her statement that “the reports and the letters do not reflect the conversations we have had with the treating professionals” (A11, p 2).
Whether Mr Bassett suffered from a physical, intellectual, or psychiatric impairment or impairments

The Tribunal is required to assess the medical evidence concerning Mr Bassett’s functional ability resulting from his impairments as at the date of claim.
It is not in dispute that Mr Bassett suffers from impairments.[43] The Tribunal finds on the evidence that at the date of claim, Mr Bassett suffered from various impairments resulting from his Claimed Conditions. The Tribunal notes the medical evidence in this regard and Mr and Mrs Bassett’s evidence at hearing.[44]
[43] R2 [5.20].
[44]R1 T4-9; T11-19, T21-24; T26-29; T38. See also all the documents admitted into evidence at hearing at [31].
As such, the Tribunal finds that Mr Bassett satisfies s 94(1)(a) of the Act.
Whether Mr Bassett’s impairments receive an impairment rating of 20 points or more
It is not in dispute that Mr Bassett has not participated in a POS for the required 18 months.[45] Further, Ms Bassett has not claimed, nor is there any evidence to suggest, that he has specifically been exempted from this requirement.
[45] Transcript p 12, [5]-[15]; see R2 [5.52], Annexure A.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of the Claimed Conditions attracts 20 points for that single condition.[46]

That is, the Tribunal must find that Mr Bassett suffers from a severe impairment.[47]
[46]The Tribunal emphasises that this is in addition to the requirement that an applicant demonstrate that he or she is unable to work for 15 hours or more per week, within the next two years, with intervention.
[47]Refer to above paras [26]–[27].
Before considering whether Mr Bassett suffers from a severe impairment, the Tribunal must first determine whether any of the Claimed Conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
The Tribunal understands Mr Bassett’s position to be that each of the Claimed Conditions were FDTS at the relevant time and most relevantly, that he is severely impaired by his aneurysm and his depression.[48]
[48] See Transcript, p 16 [40]-[45] and p 17 [5]-[15].
The Tribunal also understands that Mr Bassett is of the view that although he has provided all the available evidence to the Tribunal, this evidence doesn’t sufficiently demonstrate how his aneurysm and his mental health condition impair his functionality in his everyday life.[49]
[49] Transcript, p 17 [20]-[45].
Mr Bassett has not made submissions as to how many impairment points each Claimed Condition should be afforded other than to submit that his aneurysm and mental health condition are severe impairments.[50]
[50]Transcript, p 16 [40]-[45], p 17 [5]-[15].
Rather, Ms Sudi (for Mr Bassett) has asked the Tribunal to take into consideration that at the time of Mr Bassett’s claim, there was “a lot going [on] behind the scenes,” in the sense that medical opinions on Mr Bassett’s conditions differed and some medications worked while others didn’t.[51] Ms Sudi also emphasised to the Tribunal that the medical evidence pertaining to the qualification date was obtained in the context of Mr Bassett’s intention and wish at that time that he would return to work on a full time basis, not that he would go on to apply for DSP.[52]
[51] Transcript, p 33 [15]-[20].
[52] Transcript, p 33 [25]-[35], [40].
The Agency, however, contended that Mr Bassett was not qualified for DSP at the relevant time as he did not have an impairment rating of at least 20 points and a CITW.[53] The Agency submitted that none of the Claimed Conditions, other than Mr Bassett’s aneurysm condition, were permanent and hence cannot attract an impairment rating.[54] Specifically, the Agency contended:
[53]R2 [5.1].
[54]     R2 [5.21], [5.32], [5.37], [5.40], [5.43], [5.44].
(a)Aneurysm Condition – Mr Bassett’s aneurysm condition, while permanent, does not attract impairment points under Table 7 of the Impairment Tables in any event, due to the lack of medical evidence to corroborate impairment resulting from it.[55]
[55]R2 [5.21], [5.23], [5.27]. The Agency does acknowledge that Mr Bassett has displayed some behavioural changes after the onset of his aneurysm condition (see R1, T2, p 12) however it contends there is no evidence to link the behavioural changes to the aneurysm and in any event, such behavioural changes do not fall within the relevant impairment descriptors under Table 7 (Brain Function) of the Impairment Tables (R2 [5.25]).
The Agency relies on the medical evidence of Dr TJ Singh (Neuroradiologist) and Associate Professor Euan Thompson in 2016 in submitting that Mr Bassett had made a complete neurological recovery following his aneurysm and that no abnormalities or dysfunction was detected.[56]
[56]R2 [5.24]. The Agency noted that Dr Cunningham’s most recent report dated 14 September 2020 (A1), while beyond the qualification date, further supports the submissions (R2 [5.25]).
(b)Mental Health Conditions – While it accepts Mr Bassett’s depression and anxiety were diagnosed as at the qualification date, the Agency considers, however, that his anxiety and depression were not fully treated and fully stabilised at that time.[57]
[57]     R2 [5.28]; R3 [2.2], [2.8].
The Agency relies on a body of medical evidence in making this submission, which it contends supports these conditions were diagnosed, but also demonstrates insufficient active treatment of these conditions at the qualification date:[58]
[58]     R2 [5.29]-[5.31].
(i)Dr Ng diagnosed Mr Bassett with depressive disorder and anxiety in March 2017, however the Applicant has not undertaken the psychotherapy sessions recommended by Dr Ng.[59]
[59]     R2 [5.29(a)].
(ii)Mr Cunningham reported that Mr Bassett had been taking antidepressant medication and queried whether the dosage and type was appropriate, suggesting that it may need to be change in order to be effective.[60] At hearing the Agency noted that Mr Cunningham’s report is beyond the qualification date in any event.[61]
[60]     R2 [5.30]-[5.31].
[61]     Transcript, p 28 [5]-[10].
(iii)Noting Mrs Bassett’s evidence at hearing, that Mr Bassett’s prescription was changed at her request,[62] the Agency submitted that even if the prescription was changed at the direction of Mrs Bassett, the dosage also increased.[63]
[62]     See [34(b)] above.
[63]Transcript, p 28 [25]-[30]. Dr Cunningham’s report of 14 September 2020 states that Mr Bassett’s dosage of Efexor was 75 milligrams (A1). Mr West’s report of 31 December 2020 states that Mr Bassett’s dosage of Venlafaxine (which the Tribunal understands is sold under the brand name Efexor) was 150 milligrams (A10).
(iv)Ms Sudi’s response to this was that the dosage increased but there was no change to the effect it had on Mr Bassett.[64]
(v)The Agency’s position is that, in any case there were various medications that were still being trialled beyond the qualification date, so regardless of whether they were within the same group of medications or whoever requested that change and for whatever the reason, it is still the case that those medications were still being trialled at the relevant time.[65]
(vi)The Agency also notes the Applicant’s evidence in the AAT1 that in the past he has only been treated by a psychologist for a couple of sessions.[66]
(c)Upper Spine and Neck Condition and Sleep Apnoea – Mr Bassett’s upper spine and neck condition and his sleep apnoea condition are fully diagnosed, but not fully treated and fully stabilised due to the absence of specialist treatment and review at the qualification date.[67] In particular:
(i)In relation to Mr Bassett’s upper spine and neck condition, consultation with a physiotherapist was recommended, however there is no evidence this took place or that any physiotherapeutic (or other form of) treatment was adhered to.[68]
(ii)In relation to Mr Bassett’s sleep apnoea, Mr Bassett reported to the AAT1 that he has been using a CPAP machine for 10 years, however there is no specialist medical evidence that corroborates this treatment or the efficacy of any other treatment for this condition.[69]
(d)Hearing Loss – Mr Bassett’s hearing loss is not fully diagnosed[70] Mr Paul Hackney, Audiologist,[71] suggests, but does not confirm the diagnosis, and there is no evidence relating to Mr Bassett’s hearing impairments in light of him wearing hearing aids.[72]
[64] Transcript, p 28 [35].
[65]Transcript, p 28 [40]); R3 [2.5] See Mr West’s report dated 31 December 2020 which notes that Mr Bassett was prescribed Effexor in September 2019, which is after the qualification date (A10, p 1).
[66]     R2 [5.29(b)]; R3 [2.7]. See R1, T2, p 13.
[67]     R2 [5.33], [5.34], [5.38], [5.39].
[68]     R2 [5.35], [5.36].
[69]     R2 [5.39]. See R1, T2, p 14.
[70]     R2 [5.41]
[71]     R2 [5.42].
[72]See R2 [5.43]. The Tribunal notes that in any event, Table 11 of the Impairment Tables (Hearing and other Functions of the Ear) requires diagnosis of the condition be made by an appropriately qualified medical practitioner with support evidence from an audiologist or Ear, Nose and Throat specialist and that Table 11 be applied with the person using any prescribed hearing aid that they usually use.
Having regard to the entirety of the available evidence:
(a)The Tribunal is satisfied that only Mr Bassett’s aneurysm condition was FDTS at the date of claim; and
(b)The Tribunal cannot be satisfied that Mr Bassett’s other Claimed Conditions were FDTS at the date of claim, for the following reasons:
(i)By Mr Bassett’s and Mrs Bassett’s own evidence, a number of treatment options are yet to be explored in relation to his anxiety and depression and his upper spine and neck condition.
(ii)While the Tribunal accepts Mr Bassett’s evidence that he has been using the CPAP machine for many years for his sleep apnoea, there is no medical evidence regarding the efficacy of this treatment and/or whether any other treatment for this condition ought to be undertaken.
(iii)The Tribunal considers that the suggestion of hearing loss reported by Mr Hackney falls short of the diagnostic requirements set out in Table 11 of the Impairment Tables.
While the Tribunal considers that Mr Bassett’s aneurysm condition was FDTS at the qualification date, there is no medical evidence before the Tribunal that this condition caused him any functional impairment at this time.[73] Therefore, no impairment points can be allocated to Mr Bassett’s aneurysm condition.
[73]See fn 56. The Tribunal acknowledges Mrs Bassett’s evidence that his functional impairment caused by his aneurysm has progressed in more recent times (A6, A11).
In light of the matters addressed and findings made at paras [36] to [47] above, the Tribunal is unable to allocate impairment points to Mr Bassett’s functional impairments and he fails to satisfy s 94(1)(b) of the Act.
Whether Mr Bassett has a continuing inability to work
Based on paras [38] to [47] above, the Tribunal finds that Mr Bassett’s Claimed Conditions are not FDTS, and she fails to satisfy s 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Mr Bassett had, at the date of claim, a CITW in satisfaction of s 94(1)(b) of the Act.
In this regard, and for completeness only, the Tribunal notes that:
(a)Mr Bassett does not claim to have completed a POS in accordance with the relevant requirements and the evidence demonstrates this to be the case.[74]
(b)The ESA and JCA reports further indicate that Mr Bassett would have the capacity to work 15 to 22 hours per week within two years, with intervention.[75]
[74] See para [38] above; Transcript p 12.
[75] See para [5] above; R1, T35, p 199; Transcript p 12.
Therefore, on the available evidence Mr Bassett’s application is likely to have failed:
(a)Regardless of whether any or all of the Claimed Conditions were FDTS; and
(b)If any or all of the Claimed Conditions had been found to be FDTS, regardless of whether 20 impairment points were assigned under a single condition, or cumulatively.
CONCLUSION
The Tribunal accepts that, at the date of claim, Mr Bassett suffered from medical conditions impacting on his health such that he satisfies s 94(1)(a) of the Act. However, the Tribunal has found that there is insufficient evidence to establish that any of the Claimed Conditions can be assigned any impairment points.
This being so, Mr Bassett fails to satisfy the second qualification criteria under s 94(1)(b) of the Act and in turn fails to qualify for DSP.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 11 February 2020, to reject Mr Bassett’s claim for the Disability Support Pension lodged on 20 May 2019, is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

............[Sgd]..........................................................
Associate
Dated: 29 April 2022

Date of hearing: 17 November 2021

Applicant’s Advocate: Ms Idil Sudi, People with Disabilities

Respondent’s Representative: Ms Amy Simpson, Services Australia

but only insofar as they are referable to Mr Bassett’s condition during the relevant period (Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Dept of Social Services [2015] FCA 1123 at [27]-[28].

[2022] AATA 985

29 April 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	17 November 2021
Applicant’s Advocate:	Ms Idil Sudi, People with Disabilities
Respondent’s Representative:	Ms Amy Simpson, Services Australia