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

[2023] AATA 514

BJFP and Secretary, Department of Social Services (Social services second review) [2023] AATA 514 (27 March 2023)

Division:GENERAL DIVISION

File Number:          2022/5202

Re:BJFP

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:27 March 2023

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that on and from 7 November 2021 the Applicant satisfies the requirements of s 94(1) of the Social Security Act 1991 for a disability support pension in respect of her condition of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis.

................................[SGD]........................................

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis – whether condition fully treated and stabilised in the qualification period – whether impairment attracts rating of 20 points or more under Impairment Tables – whether continuous inability to work – decision set aside and matter remitted for reconsideration with direction that Applicant qualifies for DSP.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Covenden and Secretary, Department of Social Services [2018] AATA 353

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

27 March 2023

1.       This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 8 June 2022 affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (DSP).

2.       The relevant history of the matter is as follows:

(a)The Applicant made her original application for DSP on 7 November 2021.[1]

(b)The application was assessed and refused on 15 December 2021[2] (Initial Decision).

(c)An authorised review officer (ARO) affirmed the Initial Decision on 22 January 2022[3] (ARO Decision).

(d)A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 8 June 2022.[4]

(e)The Applicant applied for a Second Tier Review on 20 June 2022.[5]

[1] T10 at pp.115-119.

[2] T25 at p.227.

[3] T3.

[4] T2 at pp.6-15.

[5] T1.

HEARING

3.       A hearing in relation to the Second Tier Review was held by teleconference on 13 February 2023.  The Applicant was self-represented.  The Respondent was represented by Ms Rapson, a solicitor.

4.       In conducting the Second Tier Review, the Tribunal has had regard to:

(a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents);

(b)the oral evidence of:

(i)the Applicant; and

(ii)Dr Chris Minogue;

(c)the following documents lodged by the Respondent as attachments to its Statement of Facts Issues and Contentions:

(i)medical certificate of Dr Shelina Kiyani of 26 September 2022 (Exhibit R1); and

(ii)the Health Professional Advisory Unit Report of 30 September 2022 (Exhibit R2);

(d)the following documents lodged by the Applicant:

(i)report of Myriam Westcott, dated 29 August 2022 (Exhibit A1);

(ii)the Applicant’s Response to Health Professional Advisory Unit Report, dated 2 November 2022 (Exhibit A2); and

(iii)letter from Dr Eric Levi, dated 5 February 2023 (Exhibit A3).

LEGISLATION

5.       The Tribunal has had regard to the following relevant legislation and determinations in making its decision:

(a)Social Security Act 1991 (the Act);

(b)Social Security (Administration) Act 1999 (the Administration Act);

(c)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s 26(1) of the Act;

(d)Social Security (Active Participation for Disability Support Pension) Determination 2014; and

(e)Administrative Appeals Tribunal Act 1975.

QUALIFICATION PERIOD

6.       A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[6]

[6] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7.       In this case, the qualification period commenced on 7 November 2021 and ended on 6 February 2022.

8.       In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[7]

[7] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in s 94(1) of the Act, as assessed during the qualification period.

10. In essence, s 94(1) of the Act requires that:

(a)the Applicant have a physical, intellectual or psychiatric impairment; and

(b)the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

(c)the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

(d)the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

CONSIDERATION OF ISSUES

13.     The Applicant confirmed at the outset of the hearing that her claim, as considered in the First Tier Review, related to the following conditions:

(a)right ear sensorineural hearing loss;

(b)bilateral tinnitus; and

(c)left ear hyperacusis.

Background

14.     The Applicant is 43 years old.  She is a qualified pharmacist and worked as a pharmacist for 15 years full time, including 11 years overseas. She is currently not registered as a pharmacist in Australia. In 2019, she was completing a course in Nutrition and Personal Training and working full time as call centre operator for Australia Post.

15.     She reported that shortly prior to December 2019, she had experienced ringing in her right ear on two occasions.  She said that on 2 December 2019, she noticed ringing in her right ear during her shift which became progressively worse and continued after her shift.  She said that when she awoke on 3 December 2019, she could not hear in her right ear, had continuous ringing in the ear and she could not balance properly.  She attended her local doctor and was referred to the Eye and Ear Hospital for auditory testing.  Dr Jon Stokes, who examined her, noted that she appeared to have suffered a sudden sensorineural hearing loss.[8]

[8] T20 at p.154.

16.     On 13 March 2020, the Applicant was evaluated by Ms Myriam Westcott, an audiologist who reported:

On 19/2/20, (the Applicant) woke up with left sided tinnitus. The tinnitus has persisted, is mild and constant. The development and persistence of tinnitus, along with hyperacusis, in her unaffected left ear has caused high levels of anxiety….Since the onset of her left-sided hyperacusis, tinnitus and sound-induced aural pain, (the Applicant) reported frequent left sided aural symptoms of a sensation of vibration and a sensation of clicking when eating and drinking. She has a history of bruxism and has worn a mouth splint at night since she was in year 12. (The Applicant) reported no symptoms of ear infection. Tonic tensor tympani syndrome (TTTS) has been proposed as the physiological mechanism underlying acoustic shock disorder. TTTS symptoms are also seen in many tinnitus patients and in most hyperacusis patients. With TTTS in these patients, an involuntary myoclonus (spasm) appears to develop in the tensor tympani muscle in the middle ear from a central nociceptive ‘protective’ response to sounds (or other stimuli) subconsciously perceived as potentially uncomfortable, threatening or damaging to the ear/hearing.[9]

[9] T18 at p.149.

Is the Condition fully diagnosed, treated and stabilised?

17.     The Respondent accepted that the Applicant’s condition of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis was fully diagnosed during the qualification period but asserted that it could not be considered fully treated and fully stabilised as there were reasonable treatments available for her condition which the Applicant had not undertaken during the qualification period which may have resulted in functional improvement enabling the Applicant to undertake work in the next two years. The principal grounds relied on by the Respondent were as stated by Dr Chris Minogue of the Health Professional Advisory Unit (HPAU) who conducted a file review and detailed analysis of the available medical and other evidence held by the Respondent regarding the Applicant’s DSP claim.  Dr Chris prepared a report dated 30 September 2022[10] (HPAU Report) and gave oral evidence at the hearing.

[10] Exhibit R2.

18.     Dr Chris had regard to the report of Myriam Westcott, an audiologist, who had seen the Applicant on 13 March 2020 for evaluation and therapy for her tinnitus and hyperacusis.[11]  Ms Westcott noted in her report that the Applicant had developed a sudden right-sided hearing loss with right-sided tinnitus and hyperacusis towards sounds in her left ear on 3 December 2019.  Dr Westcott noted:

Treatment carried out included steroid treatment, both orally and intratympanically via a grommet tube, and hyperbaric oxygen therapy. There was an improvement in right hearing thresholds, with (the Applicant’s) most recent results showing low frequency hearing thresholds within normal limits, sloping to a severe mid frequency sensorineural hearing loss and a profound high frequency sensorineural hearing loss. An MRI was clear of retrocochlear involvement.

[11] T18 at pp.148-151.

19.     She noted that a sudden onset hearing loss had been highly traumatic and the Applicant had expressed anxiety about possible aetiology and of the status and resilience of the hearing in her left ear.  She noted also that the Applicant had struggled to cope with her hyperacusis.  She recorded that she discussed with the Applicant a self-managed process for tinnitus habituation and hyperacusis/TTTS desensitisation and recommended:

Using a CBT,^[[12]^] acceptance and commitment therapy and mindfulness approach, distraction strategies were recommended to reduce tinnitus awareness/auditory vigilance and to discourage environmental sound monitoring. Sound enrichment strategies were recommended to support tinnitus habituation and hyperacusis desensitisation. Stress and sleep management strategies were discussed.

[12] Cognitive behavioural therapy.

20.     The Applicant gave evidence that she had undertaken all available treatment for her condition as recommended but she had not found it necessary to undertake CBT or take psychotropic medication as she was able to deal with her anxiety through her increasing understanding of her condition and the factors affecting its symptomatology.  She accepted that, at the beginning of her condition, CBT and or medication may have assisted her but by the qualification period she was able to self-manage her anxiety using the techniques she had developed. 

21.     Dr Eric Levi, a specialist Otolaryngologist head and neck surgeon who treated the Applicant in December 2019, recorded in his letter of 5 February 2023 that:

Her condition has been fully diagnosed, fully treated and fully stabilised. We are more than 3 years now since the date of the diagnosis confirmed with audiogram and MRI. She has had oral prednisolone, betahistine and aspirin, steroid eardrops, 5 intratympanic dexamethasone injections through a grommet, 1 month of hyperbaric oxygen therapy at the Alfred hospital, physiotherapy on the neck and jaw, acupuncture, chiropractic treatments, hyperacusis and tinnitus habituation therapy with Myriam Wescott, and transcendental meditation therapy. She has had every possible treatment available given to her. Her condition have had very little improvement since diagnosis in December 2019.[13]

[13] Exhibit A3.

22.     Ms Westcott noted in her subsequent report of 29 August 2022[14] that the Applicant continued to suffer from disrupted sleep and fatigue but she did not make any further reference to CBT, only that the Applicant had been recommended a self-managed process for tinnitus habituation.

[14] Exhibit A1.

23.     In the HPAU Report, Dr Chris stated that:

…[the Applicant’s] persisting symptoms of hyperacusis and tinnitus appear to have resulted in pronounced disability, partly related to secondary effects such as anxiety and fatigue. The available medical evidence provided to date does not show that Ms Westcott’s initial recommendations for these conditions have been adequately followed through, i.e: “Using a CBT, acceptance and commitment therapy and mindfulness approach, distraction strategies were recommended to reduce tinnitus awareness/auditory vigilance and to discourage environmental sound monitoring. Sound enrichment strategies were recommended to support tinnitus habituation and hyperacusis desensitisation. Stress and sleep management strategies were discussed.” (See p.3 of her report at T18.)

A reasonable conclusion from the above observations would be that [the Applicant’s] persisting auditory problems as a whole are still not FDTS,^[[15]^] and that significant improvement within a 2-year timeframe remains feasible with further specialist medical and allied health management. There is no current evidence that her condition has been reviewed by a treating ear, nose and throat specialist (ENT surgeon) since around February 2020 (Dr E Levi) and such follow-up would definitely be worthwhile, in my opinion.

[15] Fully diagnosed, treated and stabilised.

24.     He added at p.7:

In my opinion Ms Westcott’s initial recommendations should also be followed through before the auditory conditions can be deemed FDTS, including assessment by a clinical psychologist with such therapy as may be indicated. Prescribed anti-anxiety and/or sedative medication, including to assist with sleep disturbance, could also be of benefit in [BJFP]’s medical management.

25.     The report of Dr Levi of February 2023[16] indicates that further treatment by an ENT specialist was not warranted.  The Tribunal notes that the recommendations by Ms Westcott for CBT upon which Dr Chris relied were not treatment for the right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis condition itself, but rather the Applicant’s adverse psychological reaction to the condition.  Ms Westcott is an audiologist and not a psychologist.  Properly construed, her recommendations were in the nature of suggestions as part of a strategy of self-management by the Applicant.  In any event, they were made some 18 months prior to the qualification period.  The Applicant gave evidence that, in applying Ms Westcott’s self-management strategy, she was able to control her anxiety so that CBT and anti-anxiety and/or sedative medication were not necessary in order to manage her anxiety by the qualification period.  The report of Dr Levi documents the range of treatment the Applicant had received for her actual condition and concludes that she has had every possible treatment available given to her.

[16] Exhibit A3.

26.     On the basis of the medical evidence as a whole, the Tribunal is satisfied that the Applicant’s conditions of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis were fully diagnosed, fully treated and fully stabilised during the qualification period.

Impairment Rating

27.     The appropriate Impairment Table for assessing the functional impact of the Applicant’s conditions of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis is Table 11 – Hearing and Other Functions of the Ear.   In order to warrant a rating of 20 points as a severe functional impact under Table 11, the condition must meet either each of the criteria stated in paragraph (1) or one of the criteria stated in paragraph (2) in the relevant part of the Table.  In the Applicant’s case the appropriate criteria are those in paragraph (2), which provides that there is a severe functional impact on activities involving hearing function or other functions of the ear if the person:

…has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Miniere’s disease or tinnitus).[17]

[17] Impairment Tables, Table 11 (emphasis added).

28.     The evidence is clear that during the qualification period the Applicant suffered and still suffers from continual ringing in the ears due to the medically diagnosed disorder of tinnitus.  Dr Chris readily accepted in his oral evidence that her conditions, if accepted as fully treated and fully stabilised, met the criteria for a severe impairment under paragraph (2) of Table 11.

29.     The Tribunal therefore finds that the functional impact of the Applicant’s conditions of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis attracts a rating of 20 points under Table 11 of the Impairment Tables and is a severe impairment.

Inability to Work

30. As the Applicant suffers from a severe impairment within the meaning of s 94(3B) of the Act the Tribunal is not required to consider whether the Applicant has participated in a program of support as required by s 94(2)(aa). The sole remaining question is whether the Applicant has a continuing inability to work as prescribed by s 94(1)(c) of the Act.

31. Sub-section 94(2) provides:

A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa)…

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.

32.     A Job Capacity Assessment for the Applicant was conducted on 6 December 2021 by a Social Worker via telephone.  The Assessor concluded in relation to work capacity as follows:

The client has ongoing sensory difficulties due to hearing loss, tinnitus and hyperacusis. She experiences difficulty with communication and concentration with significant difficulties in loud environments, or environments with multiple noises. The client reported she experiences a constant level of discomfort due to tinnitus, which causes fatigue and can greatly limit the amount of time she is able to remain task focused. A baseline work capacity of 15-22 hours per week is recommended. Disability specific intervention will assist in identifying an appropriate workplace environment and role and will also assist in sustaining current work capacity over the next 2 years.[18]

[18] T11 at pp.124-130.

33.     In her written statement of 16 March 2022,[19] the Applicant described the effects of her condition on her ability to work during the qualification period as follows:

…Although my condition has improved, it is still largely debilitating. I have Tonic Tensor Tympani Syndrome (TTTS) in my left (good) ear. I also have tinnitus in both ears, not just one. The tinnitus in my (right) hearing loss ear is reactive and increases in volume as the environmental noise increases. The tinnitus in my (left) good ear is constant. I also have pulsatile tinnitus that developed in my right ear in June 2020. It occurs almost every night (separate to and on top of the standard tinnitus in both my ears) and really affects the quality and amount of my sleep. I very rarely sleep a full night. This has a significant impact on my mood and mental health during the day, and therefore my ability to work. The constant tinnitus creates a great deal of anxiety for me. ….My audiologist advised me not to obtain any antidepressants or sleep medications. I am not one to take medication (I was a pharmacist for fifteen years before losing my hearing), so I deal with my immense anxiety through exercise and meditation. I can only use a speaker phone to communicate with people (over the phone) as the concentrated sound of a phone against my ear causes me pain (due to my TTTS and hyperacusis). But I am very limited in the length of time I can withstand speaking on a phone due to the fact that my tinnitus is reactive and it gets louder as environmental noise increases. When I speak on the phone, it is a real struggle for me, because as I speak and listen to the person on the other end of the call, my tinnitus in my right ear is raging and escalating in volume. As my tinnitus escalates, my anxiety escalates. …The escalating tinnitus in my ears is constantly competing with the hearing in my good ear. If there is any background noise whatsoever, I can barely hear a thing. I can no longer filter sound out. Listening to anyone talking, whether it be in person, or on a podcast etc., is mentally exhausting for me. And again, these challenges impact my ability to work….right now, and for the next two years, my hearing loss and the associated side effects will not allow me to work at least 15 hours per week. I have improved significantly since my diagnosis (I was genuinely suicidal the first year following my diagnosis), but I still have a long way to go……and I’m still not at a point where I feel I have the capacity to return to work. As a health professional, I feel I am qualified to make this observation.

[19] T26 at pp.231-232. 

34.     Dr Chris commented on this statement in the HPAU Report and opined that a continuing inability to work (CITW) had not been established.

35.     He noted the aggravating effects of environmental noise on the Applicant’s tinnitus and hyperacusis, and the impact of sleep disturbance on her mood and mental health. He suggested that with more focussed medical management including psychotropic medications, a Disability Employment Service – Employment Support Service (DES-ESS) program (or similar) could potentially assist the Applicant to find and sustain medically suitable work for at least 15 hours per week within a 2-year timeframe, independently of further employment service support.

36.     He opined further that the Applicant is:

capable of engaging in a suitable (low noise environment) training activity which would not be unlikely (because of impairment) to enable her to do any work independently of a program of support within 2 years of the qualification period. That is, a suitable training activity is considered feasible and reasonable, but may not be necessary within a Program of Support due to her tertiary education and prior employment as a pharmacist.

37.     He stated that it is quite possible that the Applicant could return to her former profession as a pharmacist in suitable settings such as a quieter hospital pharmacy and suggested that she enquire as to what steps she needs to take to regain her registration as a pharmacist in Australia.

38.     In his oral evidence, Dr Chris noted that the Applicant was coping adequately in her home environment and this may enable her to undertake home-based training courses or to undertake employment on a work from home basis.  He acknowledged that whether or not these options were feasible would depend on an assessment and possibly a trial.

39.     The Applicant responded to Dr Chris’ comments in her written submission, saying she is unable to work as a pharmacist or in healthcare generally considering the risk to patient safety because she:

(a)is not vaccinated against COVID because of the risk of SSHL and /or tinnitus;

(b)doesn’t have the focus/concentration she used to and if there is any background noise (even if it’s just someone speaking), the tinnitus in her right ear flares and it’s very difficult for her to maintain focus and concentration; and

(c)doesn’t always sleep well due to her pulsatile tinnitus, which exacerbates her already low energy levels.

40.     The Applicant added in her oral evidence that, three months after her hearing loss she worked briefly at the Royal Children’s Hospital as a pharmacist three days per week in a quiet environment, but her tinnitus flared up and she was forced to resign.  She said that she had tried different environments but she experienced problems with her focus and concentration.  She said she had worked as a personal trainer prior to her hearing loss but was not able to continue with that because the noisy gym environment and outside noise (such as music and loud instruction) aggravated her condition.

41.     The Applicant’s general practitioner has certified the Applicant as unfit for all work and study during, and at all times since, the qualification period[20] and previously.[21]

[20] T23 at pp.184-185.

[21] See T22 at pp.176-183.

42.     On 5 February 2023, Dr Levi opined that the Applicant’s condition has had very little improvement since December 2019 and I do not think that her condition will significantly improve.[22] 

[22] Exhibit A3.

43.     Ms Westcott noted in her report of 29 August 2022 that the Applicant had developed an additional right-sided tinnitus in June 2020, which is heard as pulsatile coinciding with sensations of vibration which develops each evening and is heard through the night and is highly distressing, causing significant sleep disruption and consequent high levels of fatigue.  Ms Westcott commented:

[The Applicant] has not been able to return to work since the onset of her hearing loss, hyperacusis and tinnitus.  Her fatigue and stress levels since the onset of the pulsatile/vibrational tinnitus have set her back further and constitutes a significant additional level of disability.[23]

[23] Exhibit A1.

44. The Tribunal must be satisfied that the Applicant has a continuing inability to work (s 94(1)(c)(i)), which means the impairment is of itself sufficient to prevent the Applicant from doing any work independent of a program of support within the next two years, that is between 7 November 2021 and 7 November 2023 (s 94(2)(a) of the Act) and either the impairment is of itself sufficient to prevent the Applicant from undertaking a training activity during the next two years or such training activity is unlikely (because of the impairment) to enable the Applicant to do work independent of a program of support within the next two years (s 94(2)(b)). The term work means work 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 (s 94(5)).

45.     In the Applicant’s case, these requirements can be assessed having regard to three questions.

Is the Applicant’s impairment resulting from her condition of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis, of itself, sufficient to prevent her from doing at least 15 hours work per week in the period 7 November 2021 to 7 November 2023?

46.     The Applicant’s evidence is that her impairment has prevented her since 7 November 2021 from doing any work and will continue to prevent her from doing at least 15 hours work per week.  Her evidence is supported by the medical certificates of her treating doctor to date which state that she has been unfit for all work and study since before 7 November 2021 and continuing.  The Applicant’s assertion is also supported by the assessment of both Ms Westcott, her treating audiologist and Dr Levi, her ENT specialist.  They each say that the Applicant’s condition is not expected to improve in the future.

47.     The evidence of Dr Chris is that the Applicant’s impairment is not sufficient to prevent her from working at least 15 hours per week in the period 7 November 2021 to 7 November 2023.  His assessment is based only on a review of the relevant documented medical evidence.  The Tribunal accepts that Dr Chris is an experienced and well-qualified assessor but his opinion is limited by the information in the documents. He did not have the benefit of interviewing or examining the Applicant nor was he able to discuss her condition directly with her treating doctor, Ms Westcott or Dr Levi.  The opinion of Dr Chris was conditioned in part by the assumption that it may be possible for the Applicant to establish an environment in which the effects of her condition could be reduced sufficiently to enable her to study or perform work.  The Tribunal does not accept that such an assumption can be reliably made without at least a discussion with the Applicant and her treating practitioners.  For this reason, the Tribunal gives limited weight to the opinion of Dr Chris and, on the basis of the Applicant’s evidence and her supporting medical reports, the Tribunal finds that the impairment resulting from the Applicant’s condition of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis, is of itself, sufficient to prevent her from doing at least 15 hours work per week in the period 7 November 2021 to 7 November 2023

If so, is her impairment, of itself, sufficient to prevent the Applicant from undertaking a training activity during the period 7 November 2021 to 7 November 2023?

48.     The term training activity is broadly defined in s 94(5). The evidence regarding the Applicant’s ability to perform work also applies to her ability to undertake training in that her sensitivity to noise, her inability to concentrate and her fatigue due to interrupted sleep are all matters which affect her ability to undertake training. The Applicant’s medical certificates state that she is unfit to undertake work or study. The Applicant’s inability to perform work is largely due to environmental factors and the Respondent did not identify any particular training activity that the Applicant could undertake to address her inability to work. The Respondent merely suggested that she was amenable to on-line training at home. The Applicant conceded in her oral evidence that it may not be impossible for her to undertake an on-line course at home but that it would not be of any use as her condition would prevent her from working in any event.

49.     In final submissions, the Respondent made the general assertion that a DSP is a last resort and that an applicant must have tried any reasonable work or training before being eligible.  The Tribunal does not accept necessarily that a DSP is a last resort. A person’s right to access the DSP depends on them meeting the eligibility criteria in s 94 of the Act. The Tribunal does accept, however, that the training requirements included in s 94 carry with them a requirement of reasonableness. The definition of training activity in s 94(5) is confined to training for work. Paragraphs (b)-(e) of the definition refer to pre-vocational, vocational and work-related activities. Applying the ejusdem generis rule, the general expression education in paragraph (a) is to be read in this context as education related to an applicant’s ability to perform work. 

50.     While the Tribunal is not satisfied that the Applicant is prevented by her condition from undertaking some unspecified on-line course, it is satisfied that her condition would prevent her from undertaking meaningful vocational training during the relevant period.

Alternatively, would such training activity be unlikely (because of the impairment) to enable the Applicant to do at least 15 hours of work per week within the period 7 November 2021 to 7 November 2023?

51.     The Tribunal is not satisfied that any training activity would enable the Applicant to perform at least 15 hours of work per week within the specified period.  Accordingly, the answer to this question is ‘Yes’.

CONCLUSION

52.     For the reasons discussed, the Tribunal is satisfied that the Applicant’s condition of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis is a physical, intellectual or psychiatric impairment which attracts a rating of 20 points under Table 11 of the Impairment Tables and that the Applicant has a continuing inability to work as required by s 94(1) of the Act. Accordingly, the Applicant was qualified for a DSP at the date of her claim.

DECISION

53. The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that on and from 7 November 2021 the Applicant satisfies the requirements of s 94(1) of the Social Security Act 1991 for a disability support pension in respect of her condition of right ear sensorineural hearing loss, bilateral tinnitus and left ear hyperacusis.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member R West

...........................[SGD].............................................

Associate

Dated: 27 March 2023

Date of hearing:	13 February 2023
Applicant:	In person
Advocate for the Respondent:	Jade Rapson
Solicitors for the Respondent:	Legal Services Division, Services Australia