Bourke and Secretary, Department of Social Services (Social services second review) - [2019] AATA 2365

Bourke and Secretary, Department of Social Services (Social services second review) [2019] AATA 2365 (5 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5988
Re:Ms Kelly Bourke
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:5 August 2019
Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
.........................[sgd]..........................................
Ms Anna Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – from cervical degeneration, bilateral hip condition, bowel cancer, chronic major depressive disorder, and hypothyroidism - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Arman and Secretary, Department of Social Services (Social services second review) [2019] AATA 678
Millington and Secretary, Department of Family and Community Services [2005] AATA 251
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna Burke AO, Member
5 August 2019
INTRODUCTION

Ms Kelly Bourke (the Applicant) is seeking a Second Tier review of the decision made by Centrelink to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Human Services.
Ms Bourke lodged a claim for DSP on 3 April 2018. On 22 May 2018 Centrelink decided that Ms Bourke was not entitled to a DSP as she did not meet the requirements of the Act. On 18 July 2018, an Authorised Review Officer (ARO) of Centrelink affirmed the decision made. Ms Bourke sought review of the decision by the ARO to the Social Security and Child Services Division of this Tribunal (Tier 1 which affirmed the decision on 21 September 2018. It is the decision of the Tier 1 which is under review by this Tribunal.
The application was heard on 24 May 2019. Ms Bourke was self-represented and supported by her daughter-in-law, Ms Alisha Bell. Mr Pietro Nacion, Solicitor of Sparke Helmore, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Mr Nacion.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Bourke:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a fully diagnosed, treated and stabilised condition or conditions which result in impairments attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)has a continuing inability to work.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999, Ms Bourke’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 3 April 2018 – 3 July 2018 (the qualifying period).
BACKGROUND
Ms Bourke is 56 years of age. She lives in shared accommodation in the outer suburbs to be close to family support, but had previously lived for a considerable time on the Mornington? Peninsula. Ms Bourke was described in medical reports as having a quite adverse background and a strong family history of affected illness, addiction and suicide. It was also reported that she had prior dysfunctional relationships with episodes of domestic violence. She has 4 biological adult children and two stepchildren, whom she has raised. Ms Bourke undertook a dry-cleaning apprenticeship and worked as a dry cleaner for 35 years, leaving her business in 2000 due to health problems. She has subsequently worked in various dry cleaning and laundry services, discontinuing work in May 2016 when she dislocated her left hip and suffered tendon damage, limiting her ability to continue in physical work. Ms Bourke reported that she had previously been living in a caravan, subsequently suffered periods of homelessness living in her car, and now, with the support of her family, is in shared rental accommodation.
Ms Bourke has made several DSP claims prior to the current claim.
On 21 May 2018 Centrelink conducted a Disability Support Pension - Medical Assessment Recommendation (MAR) on Ms Bourke’s current claim based on medical evidence provided by Ms Bourke, a previous MAR of 9 October 2017 and findings from the Authorised Review Officer on 14 March 2018. It found Ms Bourke was manifestly medically ineligible as none of her conditions were fully diagnosed, treated or stabilised.
On 16 July 2018 Centrelink conducted a face-to-face job capacity assessment (JCA) on Ms Bourke, as she had sought review of the rejection of her DSP claim. The JCA report awarded her five points under the Impairment Tables, having found the following:
·Her osteoarthritis was considered fully diagnosed, treated and stabilised and was having a mild functional impact on activities of the lower limbs. The JCA awarded five points under Table 3;
·Her bowel cancer was considered fully diagnosed, treated and stabilised but was having no functional impact on maintaining continence of the bladder and bowel as Ms Bourke did not meet the frequency of at least monthly episodes of faecal incontinence. Therefore, nil points were assigned under Table 13;
·her hypothyroidism was considered fully diagnosed but not fully treated and stabilised as GPs were adjusting her thyroid medication and optimal treatment may result in significant functional gain;
·her depression was not considered fully diagnosed, treated or stabilised as the condition had not been appropriately diagnosed by a clinical psychologist or psychiatrist and in any event Ms Bourke had not undertaken or completed reasonable treatment for the condition;
·her spinal disorder was considered permanent and fully diagnosed based on the medical evidence but not fully treated and stabilised as Ms Bourke has not undertaken or completed reasonable treatment for the condition; and
·That Ms Bourke had a baseline work capacity of 8 to 14 hours per week due to the serious functional impact of her permanent medical conditions. It was envisaged that within two years, with intervention, she could reach a 15 to 22 hours per week work capacity.
On 18 July 2018, on internal review, an ARO of the department affirmed the earlier Centrelink decision that Ms Bourke’s total impairment rating was five points; comprising five points for lower limb function. The ARO made no comment on Ms Bourke’s continuing ability to work. The ARO stated:
I have found your conditions of chronic sciatica of left hip and bowel cancer are permanent and can be assigned ratings under the Impairment Tables.
I have decided that a rating of 5 points can be assigned under impairment Table 3 - Lower Limb, as there is a mild functional impact on activity using lower limbs.
The report provided by Dr Ledger dated 29 May 2018, confirms the diagnosis of bowel cancer. He stated you have regular colonoscopies to monitor and manage polyps in the colon. Dr Ledger indicated that you have intimate bowel obstructions, however the condition is stable.
As a result, I can confirm your bowel cancer is a permanent condition and can be given a 0 rating under the impairment Table 13 – Continence Function. It is important to note that a zero rating does not indicate there are no functional impacts, but rather the impacts are not severe enough to warrant a higher rating.
I have found your conditions of hypothyroidism, depression, degenerative cervical disc and lower cervical spondylosis cannot be considered permanent.
For the condition of depression … As no information has been provided from either a clinical psychologist or psychiatrist to confirm your diagnosis, I do not consider that your condition is fully diagnosed treated and stabilised.
Dr Ledger reported on 29 May 2018 that your conditions of degenerative cervical disc and lower cervical spondylosis cause you to have severe pain, headaches and loss of feeling if you sit for more than 20 to 30 minutes … However there is no evidence that you have fully explored interventional options or engaged in a program such as pain management and hydrotherapy which may result in improvement of the functional impacts of your degenerative cervical disc and lower cervical spondylosis. Hence I am unable to consider that this condition has been fully treated and cannot assign impairment rating at this time.
On 21 September 2018 the Tier 1 affirmed the decision of the ARO to reject Ms Bourke’s DSP claim. The Tier 1 awarded Ms Bourke an impairment rating of nil impairment points, in respect of her neck pain, osteoarthritis of both hips, bowel cancer, hypothyroidism, Liddle’s disease, depression and sciatica, as it concluded that these conditions had not been fully treated and stabilised during the qualification period. The Tier 1 did not address the issue of whether Ms Bourke had a continuing inability to work as she did not have the requisite 20 impairment points.
On 17 October 2018, Ms Bourke sought a review of the Tier 1 decision by this division of the Tribunal, stating in her application:
I feel the decision to reject my application for DSP is incorrect. The member from the first hearing did not consider all the information available to make a decision about my DSP. I have a number of well documented medical conditions all of which have been fully diagnosed and treated. The member did not assign any impairment ratings which is find extremely unfair and contradictory to previous Centrelink decisions. Previous JCA reports have assigned an impairment rating of 15, I’m unsure how my rating could have dropped to 0 when none of my conditions are better, and in fact they are much worse. The member did not consider all the information available and has made an unfavourable decision. All required information will be provided at the next hearing and I expect that the 100’s of pages medical information is considered.
Relevant Legislation and Issues
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;
…
The Impairment Tables require that an impairment rating can 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; section 6(3)(a)
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.
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”.
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
(b)     What treatment or rehabilitation has occurred in relation to the condition; and
(c)     Whether treatment is continuing or is planned in the next 2 years.
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.
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
(c)Can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      Is regularly undertaken or performed; and
(e)      Has a high success rate; and
(f)       Carries a low risk to the person.
The determinative issue in this review is whether, during the qualifying period, Ms Bourke suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
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.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2, section 5(2))
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
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.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the program of support (POS) determination sets out a number of exemptions to the general requirements and that a person must participate for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) The program of support was terminated before the end of the relevant period; and
(b) The program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents, and images from Ms Bourke’s Facebook page. Additional medical reports, submissions and statements were lodged by Ms Bourke.
DOES MS BOURKE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1) (a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accept that Ms Bourke is suffering from cervical degeneration, bilateral hip condition, bowel cancer, chronic major depressive disorder, and hypothyroidism. Accordingly, the Tribunal finds that Ms Bourke meets the requirements of s94 (1) (a) of the Act.
As noted above, s 94(1) (b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS BOURKE HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Ms Bourke advised the Tribunal that she can attend to her personal care, she can wash her hair with difficulty but can’t blow-dry or straighten it any longer; that she cooks one large meal a week and splits it into portions; that she utilises an electric fry pan as she has had numerous burns from trying to utilise the stove. She does small amounts of shopping as she can’t carry a load of shopping. She can walk to the milk bar or drive the short distance to the local Coles if she wants a few things, but on the whole she relies upon her family for assistance with shopping. She can’t vacuum or mop or hang clothes on the clothes line, so she utilises a clothes horse for drying and can bend slightly to get washing into her front loader washing machine. Her sitting and standing ability are relevant to how medicated she is; and she observed that she had taken significant amounts of pain relief to get her through her son’s wedding recently. She had been involved in a serious car accident in the past which had left her in a lot of pain and with ongoing health consequences.
The Respondent took Ms Bourke to numerous Facebook posts of her attending numerous events: her son’s wedding, an outing at the races for a daughter-in-law’s ‘hen’s party’, an overseas trip to Sri Lanka, and camping at Crescent Heads. Ms Bourke indicated that she had taken a significant amount of painkillers to get through both her son’s wedding and her daughter-in-law’s hen’s party. Both events had left her exhausted for days afterwards. The trip to Crescent Heads was an annual event with friends; she drove to the location but this was taken before the qualification period and she has not been able to attend this camping holiday since May 2017. She explained that the trip to Sri Lanka was organised by her daughter, and that again she had taken an enormous amount of medication to get through the trip and was completely reliant upon her daughter and granddaughter throughout the trip. She explained the trip was a birthday present so that she could seek alternative treatment to deal with her numerous complaints.
Cervical degeneration
Doctor John Hough, Ms Bourke’s General practitioner at South Coast Medical since 2003, in a Centrelink verification of medical conditions certificate of 23 September 2013 diagnosed cervical spondylosis with onset in August 2011. He assessed the condition as permanent, described symptoms such as chronic neck pain and stiffness. The stated treatment was analgesia. In relation to her work capacity, he indicated Ms Bourke would benefit from a supportive environment, flexible hours, ongoing supportive physiotherapy and consideration of a pain management program through a multifactorial clinic.

Dr Hough, in a Centrelink medical report for an assessor dated 18 June 2015, diagnosed the Applicant with a degenerative cervical disc and lower cervical spondylosis which had also been diagnosed by Dr Greg Harris, a musculoskeletal physician. Ms Bourke had undergone an intravenous steroid injection into C6, was taking analgesia and had been recommended to see a neurologist. The current symptoms were described as occipital headaches which are constant (especially on the right side), bilateral paraesthesia in both hands, vertigo bending forward, burning pain down the spine from head to mid thorax, upper limbs feeling heavy when raised to shoulder level, perception of altered power to lower limbs and constant pain across shoulders.
Doctor Duncan Ledger, general practitioner (in response to a request for additional information from Centrelink) described Ms Bourke’s various conditions in a report dated 4 December 2018. He opined that Ms Bourke suffered from spondylosis which resulted in neck pain and stiffness with a reduced range of movement. He noted Ms Bourke has chronic neck pain and bilateral arm symptoms (pain, weakness, reduce grip strength), observing that imaging showed advanced degenerative narrowing at C5-6 with incomplete osteophyte complex formation. Further, that she had the pathology of C5-6 investigated by a musculoskeletal physician, who performed a steroid injection. The symptoms did not respond, are continuing and are well-established. He opined it is not expected that there will be any improvement in the symptoms; indeed, they will continue to impact her dexterity and manual hand/arm control. He opined the level of impairment is considered to be moderate to severe as Ms Bourke cannot flex or extend her neck more than 50% and has approximately 50 to 60% reduction in neck rotation in both directions. She cannot lift her arms above her head and cannot look up effectively because of the restriction in extension. She becomes dizzy with neck movements towards the limits of tolerance. She needs to use a walking stick at times. She has difficulty sitting in one position for more than 10-15 minutes. And surgery was not appropriate for these symptoms, which are stabilised and chronic.
Ms Bourke argued that spondylosis is the condition that is having the highest functional impact on her day-to-day living. She experiences severe dizziness when she moves too much and relies heavily on pain medication to alleviate the symptoms. She strongly argued that her functionality was greatly impacted by the heavy doses of medication she was taking, indicating that these pain medications were not only highly addictive but the side-effects affected her decision-making ability and caused drowsiness. She argued that she would be a risk to any employer.
The Tribunal explored the functional impact of Ms Bourke’s impairment under Table 4 of the Impairment Tables because her accepted condition of lumber/cervical spine primarily impacts on her spine’s functionality. In particular, the Tribunal explored her capacity in respect of a moderate functional impact. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
(1)       The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)     the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)   the person is unable to bend forward to pick up a light object placed at knee height; or
(d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair
Ms Bourke gave evidence that during the qualification period:
·she was unable to drive due to a neck condition;
·she found it difficult to walk great distances and utilise public transport;
·she could not sit for long periods of time (the Tribunal observed Ms Bourke constantly stood during the hearing, apparently to alleviate pain);
·she could not lift her arms above her head;
·she could not turn her head and needed to twist her hold trunk to look over a shoulder;
·she could not look up, as this cause severe pain and dizziness; and
·she had difficulty bending.
The Respondent accepts that Ms Bourke’s neck and arm symptoms related to cervical degeneration and were fully diagnosed during the qualification period; but contended they were not fully treated and stabilised as Ms Bourke had not undertaken recommended treatment.
The Respondent contended that further treatment could improve her functionality, as recommended by Dr Hough; particularly consideration of a pain management program through a multifactorial clinic. The Respondent drew the Tribunal’s attention to the fact both the Tier 1 and the ARO had found that Ms Bourke had not engaged in such a pain management program, nor explored other surgical options which may improve her current pain and functionality
Ms Bourke indicated her frustration with the process, stating that at no stage had anyone advised her that her DSP claim was contingent upon undertaking a pain management program. She had engaged with a pain management specialist at the time she was living in the caravan park, but following her eviction and homelessness her life was in such a chaotic mess that she had missed letters and appointments and as a result had not proceeded with the treatment. Ms Bourke told the Tribunal her general practitioner had never subsequently inquired about the program or recommended she undertake such a program.
Ms Bourke strongly contended that she did not believe a pain management program would assist in any way as the specialists would recommend medication and she had been attempting to wean herself off all medications because of the overwhelming nature of the side-effects she experiences. Additionally, she argued that to function at work or training she has to take heavy medication so she could deal with the pain, but this left her impaired and unable to concentrate. She argued this would present a danger to herself and any employer. Ms Bourke indicated that her condition is as stable as it is going to be and drew the Tribunal’s attention to Dr Ledger’s report of 4 December 2018 in which he opined that the condition is well-managed, would not benefit from surgery and he does not perceive there will be any improvement over time. Ms Bourke indicated that she had undergone the right hip replacement in an effort to satisfy the requirements to obtain a DSP and was frustrated with the entire process.
The Respondent indicated that, if the Tribunal found that Ms Bourke’s neck and arm symptoms related to her cervical degeneration and were fully diagnosed, treated and stabilised during the qualification period, they contended she could not be assigned more than five points under Table 4 for her spinal condition.
The Tribunal, based upon the extensive medical evidence and treatment taken over many years, is satisfied that Ms Bourke’s cervical spine condition was fully diagnosed, treated and stabilised during the qualifying period; and that the condition was having a moderate impact upon her functionality. The Tribunal is satisfied that Ms Bourke had undergone all reasonable treatment during the qualifying period to address her cervical condition, which was impacting her neck and arms. The expectation that Ms Bourke undertake a pain management program did not appear to be supported by her current treating general practitioner. And, in accordance with s 6(7) of the Act, it did not appear to be available at a location reasonably accessible to her, at a reasonable cost. Nor would be it reliably be expected to result in a substantial improvement in Ms Bourke’s functional capacity.
As Ms Bourke reported, she had moderate difficulties with sitting, bending, and significant difficulties with overhead activities. This was corroborated by her treating general practitioner. The Tribunal therefore awards this condition 10 points under Table 4, as this best reflects the functional impact of this condition during the qualifying period.
Bilateral hip condition
Dr Hough’s medical report of 23 September 2013 diagnosed severe osteoarthritis of both hips with onset in 2010. He assessed the condition as permanent, describing symptoms of bilateral hip pain with restricted mobility/standing and walking distances. Treatment was episodic narcotic pain relief and eventually a bilateral hip joint replacement.
Mr Ian Young, orthopaedic surgeon, in a post-surgery follow-up letter dated 30 September 2014, observed that Ms Bourke had a total left hip replacement on 14 August 2014.
Dr Hough’s medical report of 18 June 2015 detailed the total left hip replacement completed on 14 August 2014. Current treatment was intermediate use of a walking stick for support, but Ms Bourke was usually independently mobile, with some pain after prolonged walking. Current symptoms were noted as some residual left hip aching and altered sensation in the left foot, knee, and hip. The condition restricted Ms Bourke’s ability to stand or walk for long periods and resulted in an inability to crouch.
A handwritten note from Dr Ledger of 29 May 2018 notes that Ms Bourke has had a total right hip replacement on 7 March 2018, that she has experienced some pain and mobility issues as a result, and that these are expected to continue long-term.
Ms Bourke advised the hearing that during the qualifying period she had recovered fully from her right hip replacement and that her left hip replacement continues to cause her trouble. She experiences severe sciatic nerve pain as a result of the hip slipping due to instability. She stated that this can happen from simple movements such as getting out of a chair.
The Respondent accepts that Ms Bourke’s left hip condition was fully diagnosed, treated and stabilised in the qualification period as she had undergone left hip replacement surgery in 2014. The Respondent further accepts that Ms Bourke’s right hip condition was fully diagnosed during the qualification period. But it maintains that it was not fully treated and stabilised as she had only undergone a total right hip replacement a month before the qualification period. Mr Nacion argued that Ms Bourke was still recovering from major surgery in the qualification period and as such the condition could not be considered fully treated or stabilised.
The Respondent contended that Ms Bourke’s bilateral hip condition could not be assessed under the Impairment Tables as it was difficult to ascertain the functionality impact of this condition a month after she had had major surgery. Emphasising that Ms Bourke had been able to return to work after her left hip replacement.
The Respondent further contended that it was unlikely that Ms Bourke’s lower limb impairment was due solely to a left hip complaint; but if this was the case, it resulted in a moderate impairment of 10 points under Table 3 of the Impairment Tables. This is because there was no corroborating evidence to support a finding that Ms Bourke required assistance from another person in order to move around a shopping centre or to stand from a seated position.
The Tribunal is satisfied that Ms Bourke’s long-standing bilateral hip condition was fully diagnosed, treated and stabilised during the qualifying period; and that it was having a moderate impact upon her functionality, as she did have some difficulty with walking and climbing stairs. The Tribunal is satisfied that Ms Bourke had undergone all reasonable treatment during the qualifying period to address her right hip condition, as she reported, and this was corroborated by her treating general practitioner. The Tribunal finds the impact of her surgical intervention from her left hip replacement, which had been performed some 4 years before the qualifying period, was the cause of Ms Bourke’s functional impairment. The Tribunal concurs with the Respondent that it was too early to assess the impact of the right hip replacement during the qualifying period. The Tribunal therefore awards this condition 10 points under Table 3, as Ms Bourke is restricted in walking and standing, and this best reflects the functional impact of this condition.
Bowel cancer
Dr Ledger’s medical report dated 4 December 2018 noted that Ms Bourke had a hemicolectomy for bowel cancer in 2000 and is still subject to intermittent bowel obstructions over the years, requiring hospital admissions on approximately 12 occasions. She experiences severe explosive diarrhoea episodes, which can last 2 to 3 days and come on very suddenly without warning. Because of this condition, Ms Bourke is reluctant to leave the house. This has been a large impediment to employment and has caused prolonged absences from work since 2000. Dr Ledger opined that this condition is established, stabilised and not likely to improve. Additionally, the condition is not amenable to surgery or other intervention; it needs to be managed with symptom control medications. He opined that the functional impact was moderate.
Ms Bourke’s statement to the Tribunal outlined the impact her bowel cancer continues to have on her, she stated that:
I recovered from bowel cancer in 2000. This has left me with intermittent bowel obstructions. Most of which I managed at home with medication. Unfortunately, it also means that I can experience sudden and uncontrollable bowel movements. This is not only highly embarrassing but also unpredictable and can often occur in the most inconvenient places. When I’m trying to treat an obstruction, I don’t leave the house due to the possibility of having an accident.
The Respondent accepts that Ms Bourke’s bowel cancer was fully diagnosed, treated and stabilised during the qualification period, but contends there was no functional impact on maintaining continence of the bladder and bowel and therefore argues that nil points should be awarded under Table 13.
The Tribunal is satisfied that Ms Bourke’s bowel cancer was fully diagnosed, treated and stabilised during the qualifying period, and that it was having a mild functional impact on her daily activities but awards nil points for this condition as the functional impact (inability to leave the house) has been considered in respect of her numerous other conditions and rated under other Tables. The Impairment Tables Determination clearly states that when two or more conditions cause a common or combined impairment, a single rating should be assigned.
Chronic major depressive disorder
Dr Hough reported, as part of a verification of medical condition form completed on 23 September 2013, a diagnosis of recurrent reactive depression with onset in September 2013. He stated the prognosis was unclear, describing symptoms of acute flare-up and distress with tearfulness, disorganised thought and erratic behaviour. Treatment in the past had been serial counselling and ongoing antidepressant medication. Current treatment was ongoing antidepressant medication and counselling.
Dr Hough, in a letter of 20 August 2015, opines that Ms Bourke has multiple medical problems, including chronic anxiety and depression with relapsing exacerbations. She has complex social and family issues which at times impact on her ability to function in a cohesive manner.
Doctor Geoffrey Hogan, consultant psychiatrist, in a medical report of 12 August 2018 opined that Ms Bourke had a chronic major depressive disorder and suggested an increase in the dosage of her antidepressant medication. He noted recent symptoms of “insomnia, poor appetite with marked weight loss, low energy and interest, panic attacks, agoraphobia, social withdrawal, impaired concentration and memory, excessive tension and irritability and a degree of depression of mood and tearfulness “with evening worsening but less suicidal thoughts”. He also noted there had been a history of two overdoses.
Dr Ledger’s medical report of 4 December 2018 noted that Ms Bourke had been treated for reactive depression and anxiety since her teenage years, having experienced the volatile mood of her father, the turbulence of her parents’ relationship, and abuse from her former husband. Dr Ledger noted that Ms Bourke had resultant problems with alcohol, but has now managed to control her consumption. She has ongoing symptoms, still takes antidepressants and has seen a psychologist intermittently over the years. He opined that Ms Bourke had elements of post-traumatic stress disorder, which can result in volatile mood swings under stress. He opined her level of impairment was moderate to severe and not likely to improve in the future, noting she is now withdrawn from most social situations, depends on family to facilitate shopping trips, has only one friend whom she feels close to, does not leave the house often and reports a degree of anhedonia. Additionally, she has trouble controlling her mood, can have extreme reactions to stress, has been actively suicidal during the last year, and has poor concentration and planning capacity.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Mrs Bourke’s mental health condition, with a focus on whether or not she has a moderate impairment.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self-care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Ms Bourke gave evidence that during the qualification period:
·that on the whole she could manage her self-care, but on some days she could not;
·that she tends to stay in familiar areas, she mainly stays at home, often in her own room, for most the day and struggles with spontaneous requests;
·that she really had only one friend but that they no longer communicate;
·that her concentration depends on the task; when she is out she tends to get confused, when she’s at home she attempts memory games, but her decision-making was non-existent, citing her inability to even determine what to wear to her son’s wedding; and
·that she did not believe she could undertake any working or training from a physical perspective and mentally would be unable to make decisions or concentrate on tasks.

Ms Bourke’s statement to the Tribunal outlined the impact of her long-term mental health condition on her functionality, she stated:
I have suffered from anxiety and reactive depression for over 40 years. I have suffered from post-traumatic stress disorder for many years due to an extremely violent and dangerous marriage. This paired with a turbulent upbringing has hindered my coping mechanisms and my anxiety and depression continues to impact my life. When I am physically unwell it impacts my mental health. I struggle to leave the house; my personal hygiene is not prioritised, and I withdraw from social interactions. I feel a sense of hopelessness and even the smallest of problems seem too big to manage. I rely heavily on my family to assist me to make any big decisions and require them to assist me with anything that requires remembering things.
The Respondent accepts the long-standing nature of Ms Bourke’s symptoms related to her depressive disorder and, having regard to the decision in Eid and Secretary Department of Families Housing Community Service And Indigenous Affairs [2013] AATA 558, accepts that she was suffering from chronic major depressive disorder diagnosed by Dr Hogan outside the qualification period. However, the Respondent contends that Ms Bourke’s mental health condition was not fully treated and stabilised in the qualification period as there was limited medical evidence regarding her engagement in psychological counselling. As such, the Respondent argued that nil impairment ratings could be assigned under Table 5 for the condition.
The Respondent contended that, if the Tribunal found that Ms Bourke’s mental health condition was fully diagnosed, treated and stabilised during the qualification period, there was no contemporaneous evidence of the functional impact; and as such nil points should be assigned under Table 5.
The Tribunal, relying upon Deputy President Forgie’s reasoning in Eid, accordingly, finds that Ms Bourke’s mental health condition was fully diagnosed, treated and stabilised during the qualifying period, having been assessed by numerous appropriately qualified medical practitioners during the qualification period, including Dr Hough and other specialists. Dr Hough’s assessments being corroborated by a physchartrist, Dr Hogan outside the qualification period.
The Tribunal finds that Ms Bourke had undertaken and continued to take appropriate and reasonable treatment for her mental health condition, as she has been undertaking counselling over many years and been under the care of her GP who has prescribed appropriate medication. The Tribunal finds that this condition was having a mild impact upon her functionality. As she reported, she had moderate difficulties with social activities, interpersonal relationships, concentration and task completion, behaviour planning, decision-making and work training capacity. This was corroborated by her treating general practitioner. The Tribunal therefore awards this condition 5 points under Table 5 as this best reflects the functional impact of this condition during the qualifying period.
Hypothyroidism
Ms Bourke’s numerous medical referrals all describe a past history of Hashimoto’s thyroiditis and primary hypothyroidism first diagnosed in 1998.
The Respondent accepts that Ms Bourke’s hypothyroidism was fully diagnosed, treated and stabilised at the qualification period, but contends that there was no evidence of functional impact of this condition in respect of her ability to perform activities requiring physical exertional stamina. Therefore, nil points could be assigned under Table 1.
The Tribunal is satisfied that Ms Bourke’s hypothyroidism was fully diagnosed, treated and stabilised during the qualifying period. However, it finds that it was not having a functional impact on her daily activities and therefore awards nil points to this condition.
DOES MS BOURKE HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Ms Bourke must not only satisfy the requirement that she has impairment with a rating of 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work. Ms Bourke would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to her claim for DSP and her impairment is of itself sufficient to prevent her from improving her capacity to prepare for, find or maintain work through continued participation in the program. 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.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act It is irrelevant whether an applicant was aware of the requirement.
Ms Bourke has not been found to have a severe impairment attracting 20 points under a single Table. Therefore, she must have participated in a program of support for the requisite 18 months prior to her claim. Ms Bourke has not completed a program of support.
The Respondent contended that Ms Bourke had not completed a POS as she had only actively participated in the POS for 458 days during the relevant period, having first engaged with the service on 6 March 2014.
Information tendered by the Respondent from the ORS group where Ms Bourke attended for employment services advised she first commenced with ORS on 6 March 2014. Liz Trickey, National Performance and Quality Manager of ORS, in an email of 18 January 2019 advised that ORS was not providing Ms Bourke with POS services but were providing services under the Disability Employment Service contract. In answer to requests for an opinion whether Ms Bourke was, solely because of her impairments, unable to improve her capacity to prepare for, find or maintain work through continued participation in a program provided by the agency, Ms Trickey responded: I am unable to provide an accurate response to this as I was not involved in Kelly’s case and the staff who were are no longer with ORS due to ORS no longer providing Disability Employment Services assistance.
Ms Bourke advised the Tribunal she had been with the ORS group from March 2014 to June 2015; and that they had assisted her with finding work with Towel Exchange, which she subsequently had to leave because of her medical conditions. She had been attending Wise Employment Services for approximately 12 months and had had numerous medical exemptions, most recently to undergo her right hip replacement. Wise had suggested to her that she be exited from the program but she had declined this offer, as she thought it would affect her Newstart payments.
Ms Bourke’s statement to the Tribunal addressed her inability to work, where she stated:
Based on all these conditions I feel it would be very difficult for me to commit to any employment. I challenge any government department to find an employer who would be prepared to take on someone who has as many conditions as me and will be as unreliable as I would be. It is a double-edged sword. I could work while heavily medicated and be at risk of hurting myself or others. Or, I could work unmedicated and be in so much pain that I would not be able to continue work. This being a pattern I have dealt with for many many years. I am unable to drive due to my neck control and find it difficult to walk great distance for public transport.
The Tribunal noted the decision of Millington and Secretary, Department of Family and Community Services [2005] AATA 251 where Senior Member McCabe (as he then was) found Mr Millington had a continuing inability to work because of the effects of his medication for pain relief on his functionality, stating at [15]:
Did the applicant have a continuing inability to work in the sense intended by the legislation? After considering all of the evidence, I think he was unable to work even if one does not have regard to the effect of the headaches. He suffered chronic debilitating pain from his back and (to a lesser extent) his knees during the relevant period and beyond. He could not sit still for long and he certainly could not do any lifting or physical work. The painkillers he took for the pain made him drowsy and affected his ability to concentrate. He could not have returned to his former occupation or anything like it which required him to do any physical work; he would have had serious difficulty holding down a desk job or other sedentary work given the difficulties with his concentration and drowsiness. The combined effects of the pain and medication would also have been an obstacle – probably insurmountable – to retraining in any event. I am satisfied the evidence suggests this man was basically unemployable after the end of 2002.
Mr Nacion argued that no exemptions under section 7(4) or (5) of the POS Determination applied to Ms Bourke as she had not been terminated from the POS, and was not unable, solely due to her impairment, to improve her capacity to prepare for, find or maintain work through continued participation in a POS. Mr Nacion took the Tribunal to a recent AAT decision of Arman and Secretary, Department of Social Services [2019] AATA 678 where Member Parker found, at [183]:
Mr Arman’s evidence at the hearing, upon questioning by the Tribunal, about his involvement in the various programs of support he participated in during the relevant 36-month period, suggested that it was considered by the employment service providers that not much could be done to assist him. Instead, Mr Arman said he was told that it would difficult to fit him into a job and eventually, they told him that he need not attend. In the absence of any other evidence from the employment service providers, the Tribunal accepts Mr Arman’s evidence about his experiences in participating in those programs. Mr Arman was medically exempted from participation in the program for significant periods of time as detailed above in paragraph [178], reflective that his medical condition and resulting impairments were such that he was not considered fit for any work or participation in a program of support during that time.
In consideration of the combined effect of Mr Arman’s impairments to his mental health function and his lower limb function, the Tribunal is satisfied that in the years prior to 9 June 2017, he was unlikely to have benefited from a program of support unless it was specifically tailored to meet his needs and his significant physical and psychological limitations. It was not clear from the evidence presented in this case that any meaningful efforts were made by the employment service providers to build a customised program for Mr Arman that accommodated his impairments. Without this, the Tribunal accepts Mr Arman’s evidence, and the supporting medical evidence, that his impairments rendered him unable to work (or study) in any capacity.
For these reasons, the Tribunal finds that Mr Arman was prevented, solely because of his physical and psychological impairments, from improving his capacity to find, gain, or remain in employment through continued participation in the program that he was participating in at the end of the relevant 36-month period.
This means that the Tribunal would have found in his favour that he had met the “program of support” requirements by reason of meeting the requirements of s 7(5), however, it could not do so because Mr Arman was under a “temporary medical exemption” on 8 June 2017 and consequently not participating in a program of support on the last day of the relevant 36-month period.
Regrettably (on account of Mr Arman meeting all other requirements for eligibility for the DSP), the Tribunal concludes that at the Qualification Period, the requirements of s 7(5) of the Participation Determination were not met in Mr Arman’s case and therefore, the Tribunal is unable to conclude that he had met the “continuing inability to work” requirements.
The JCA assessment conducted on Ms Bourke on 16 July 2018, after her DSP claim had been rejected, provided the following detailed assessment of her work capacity:
Baseline work capacity is reduced to 8-14 hours due to the serious functional impact of the customers permanent medical condition. Lower limb condition results in significant reduced mobility, reduce capacity to negotiate steps/inclines and abstain weight-bearing for prolonged periods with pain component affecting endurance, concentration and efficiency restriction capacity for work requiring sustained standing or use of steps. Restrictions may affect capacity to crouch and knell affecting capacity for lower-level work. Instability may place at risk of falls. Next condition results in episodic pain affecting concentration, endurance and may result in reduced range of movement with neck function and reduced tolerance for activities involving frequent turning of head and may have associated impact upon arm function, including sustained lifting, pushing or pulling and may result in change sensation in fingers affecting fine motor dexterity or reduce group functions at times. Any associated headaches may result in impacts upon reliability at times depending upon severity. Systematic impacts from this condition result in significant reduced endurance, persistent fatigue and reduced stamina that affect capacity to persist with work-related tasks may require frequent rest, with likely loss in efficiency and some difficulties with sustained concentration and cognition when experiencing high fatigue. Mental health impacts may result in some reduction in concentration, recall, efficiency in task completion and demotivation that may affect endurance. Impacts may affect social interact within vocational context impacting upon capacity to develop and maintain effective workplace relationships, and may affect capacity for working with customers’ or in high stress contexts. Gastrointestinal condition results in episodic pain, fluctuations and need to be near toilet facilities to enable management of personal care effectively. Pain may affect endurance and efficiency and need to be need toilet facility may affect capacity to undertake some types of work. At times of severe fluctuations reliability may be affected and endurance may be affected at times of high pain or malabsorption.
The Tribunal has considered the nature and the severity of Ms Burke’s complex conditions and their impact on her physical and mental functions. It finds that they alone would prevent her from benefiting from a POS, as the program would not improve her capacity to prepare for or find work. The Tribunal relies upon the assessment of the JCA assessor (who is considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity) of 16 July 2018, quoted above, who identifies serious functional impacts of Ms Bourke’s numerous medical conditions, which they identify present complex barriers and restrictions on her ability to work. Therefore, the Tribunal finds that Ms Bourke, in accordance with section 7(5) of the POS determination, is a person who was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program; and that she subsequently satisfies s 94(3C) of the Act.
The Tribunal, noting the decision of Arman, did not find it applied to Ms Bourke, as it would appear from Ms Bourke’s employment service history that she was engaged with her service provider in the period of 36 months ending immediately before her claim and was not under an exemption from the program on the day she lodged her claim.
Dr Ledger’s medical report of 16 January 2019 concluded:
During the qualification period Ms Bourke has had a variety of other medical conditions impacting on her health and capacity to work and therefor the condition cannot be considered in isolation. The bowel condition by nature is intermittent and highly unpredictable and therefore can lead to dramatic incontinence without warning, hence its impact on her work capacity. As an overall assessment of her medical condition, she is not capable of 15 hours working or training per week and her conditions are not expected to improve over the next 2 years or the foreseeable future.
The JCA assessment identified serious barriers to Ms Bourke’s capacity to work. Additionally, Disability Employment Services found Ms Bourke was not “work ready” as she may need medical assistance and time to grieve, and did not recommend recommencement in the program.
Given all these factors, the Tribunal is therefore satisfied that Ms Bourke has a continuing inability to work for the purposes of s 94(1)(c)(i).
CONCLUSION
The Tribunal is satisfied that, at the date of application, Ms Bourke was qualified to receive the DSP as her impairments attracted 25 impairment points under the Impairment Tables based on her cervical degeneration attracting 10 points under Table 4 - Spinal Function, her bilateral hip condition attracting 10 points under Table 3 - Lower limb function, and her chronic major depressive disorder attracting 5 points under Table 5 –mental health function. Additionally, she satisfies s 94(1)(c) of the Act in that she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

..............[sgd]...............................
Associate
Dated: 5 August 2019

Date of hearing: 24 May 2019

Applicant: Self-Represented

Advocate for the Respondent: Mr Pietro Nacion

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	24 May 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore