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

Bozic and Secretary, Department of Social Services (Social services second review) [2020] AATA 2652 (6 August 2020)
Division:GENERAL DIVISION
File Number:2019/7600
Re:Jelisija Bozic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:6 August 2020
Place:Perth

The decision of the Authorised Review Officer dated 18 June 2019, as affirmed by the AAT1 on 23 October 2019, is affirmed.
This is because the Tribunal has decided that the Applicant did not meet the eligibility criteria for a disability support pension under s 94(1) of the Social Security Act 1991 (Cth) during the Qualification Period (5 June 2018 to 4 September 2018).
This means that the Applicant has been unsuccessful in this review. However, as detailed in the final paragraph of these reasons, the Tribunal has requested that Services Australia assist the Applicant to make a new claim for DSP, including directly liaising with his medical practitioners so they can give Services Australia an accurate summation, based on current medical evidence, of the Applicant’s current impairments and functional ability against the relevant Impairment Tables.
................[sgd].......................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – Applicant previously in receipt of DSP from approximately 2008 to 2018 – whether the Applicant met the eligibility requirements for disability support pension – qualification period – whether the Applicant’s conditions were fully diagnosed, treated and stabilised – whether the Applicant had an impairment rating of 20 points or more – Impairment Tables – mental health conditions, chronic motor axonopathy, osteoarthritis, fatty liver/ mild hepatomegaly – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – ss 94(1), 94(1)(a), s 94(1)(c)(i)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 6(3), 6(4), Table 3, Table 5
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
6 August 2020
OVERVIEW

The Applicant is a 65-year-old man who is seeking review of a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) in the General Division of the Tribunal (AAT2).
The Applicant initially lodged a claim for a disability support pension (DSP) on 5 June 2018 (T49/294).
However, his claim was rejected by Centrelink on 25 June 2018 (T53) (Original Decision).
The Applicant requested an internal departmental review of the Original Decision on

10 October 2018 (T76, 373). However, on 18 June 2019, an Authorised Review Officer (ARO) of Centrelink affirmed the Original Decision to reject the Applicant’s claim for a DSP (T67) (ARO Decision).
The Applicant then sought review of the ARO Decision in the AAT1. The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 23 October 2019 (T2).
The ARO Decision of 18 June 2019, as affirmed by the AAT1 decision of

23 October 2019, is the Reviewable Decision that is currently before the AAT2.
On 18 November 2019, the Applicant lodged an application seeking review of the Reviewable Decision in the AAT2 (T1).
In his application to the AAT2, the Applicant stated that he had previously been in receipt of a DSP from 2008 to 2018. This was confirmed in a review outcome letter from Centrelink dated 8 January 2018 which stated that the Applicant had been in receipt of DSP since

15 August 2008. The letter further stated that the Applicant wanted to go overseas for more than four weeks, which would require a medical review. This review resulted in the Applicant only being assigned five impairment points under the Impairment Tables and his DSP being cancelled (T44/248).
The Tribunal acknowledges that it can be frustrating and difficult for applicants to understand when they are refused a DSP after having received it during a past period. However, from the commencement of 2012, the Impairment Tables changed to focus on the extent to which a person’s impairment prevented them from working (that is, a person’s functional impairment) rather than the diagnosis of a disabling condition.[1] The consequence of these changes made it more difficult for persons to be eligible for a DSP.
[1] Dr Luke Buckmaster, ‘Changes to Disability Support Pension’ (Research Paper Series 2014-15, Parliamentary Library, Parliament of Australia, May 2014) <>
The Tribunal hopes that these reasons will help the Applicant understand why the Tribunal has reached its decision and reiterates that it is open to him to make a new application for a DSP. If the Applicant makes a new DSP application the decision-maker will be able to consider his up to date medical evidence and additional medical conditions.
ISSUE
The overall issue for determination by this Tribunal is whether the Applicant met the qualification criteria for a DSP contained within s 94(1) of the Social Security Act 1991 (Cth) (the Act).
Section 94(1) of the Act states:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; …
Section 6(3) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) provides that an impairment rating can only be assigned to an impairment if the condition is “permanent” and if the impairment that results from the condition is more likely than not to persist for more than two years.
“Permanent” is defined in s 6(4) of the Impairment Tables as being permanent if the condition has been fully diagnosed, treated and stabilised by an appropriately qualified medical practitioner, and is more likely than not, in light of the available evidence, to persist for more than two years.
Therefore, the issues are:
(a)whether the Applicant suffered from physical, intellectual or psychiatric impairments during the Qualification Period;
(b)if so, whether these impairments were permanent (that is, whether they were fully diagnosed, treated and stabilised) during the Qualification Period;
(c)if so, whether these impairments attracted a rating of 20 points or more under at least one Impairment Table; and
(d)whether the Applicant had “a continuing inability to work”.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from physical impairments during the Qualification Period?
An applicant has a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility. The Applicant lodged his claim for a DSP on 5 June 2018.
Consequently, the relevant qualification period is 5 June 2018 to 4 September 2018 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period (Gallacher v Secretary, Department of Social Services (2015)

68 AAR 1 (Gallacher); Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133).
The Tribunal notes that it has now been over two years since the start of the Qualification Period. At the hearing, the Applicant indicated that his medical conditions had worsened, and that he was recently diagnosed with liver cancer. The Tribunal asked the Applicant if he had made a more recent application for a DSP because the decision-maker would be able to consider his up to date medical information and any further medical conditions. The Applicant stated that he had not made a new application for DSP, but that he had continued to provide Centrelink with medical information. The Applicant indicated that he did not want to make a new application, and he wanted the Tribunal to decide the current application in his favour.
The Respondent accepted that the Applicant had physical impairments during the Qualification Period, and therefore satisfied s 94(1)(a) of the Act. The Tribunal agrees that the medical evidence before the Tribunal (including in the Administrative Appeals Tribunal Act 1975 (Cth) s 37 documents (T-Documents)) supports a finding that the Applicant suffered from impairments during the Qualification Period due to his Mental Health Conditions, and his condition of chronic motor axonopathy. There is also evidence that the Applicant suffered from other conditions including osteoarthritis of the knees and a fatty liver/mild hepatomegaly (T39 and T45).
Were the Applicant’s impairments permanent, and if so, what impairment rating should be assigned to them?
Before the Tribunal can assign an impairment rating for each condition, the Tribunal must consider whether, on the medical evidence, the Applicant’s medical conditions were permanent (s 6(3) Impairment Tables). That is, whether the conditions were fully diagnosed, treated and stabilised at the time of the Qualification Period and likely to persist for more than two years (s 6(4) Impairment Tables).
Mental health conditions
With respect to the Applicant’s post-traumatic stress disorder (PTSD), depression and anxiety (Mental Health Conditions), the Tribunal notes that these conditions are longstanding and have been diagnosed since approximately 2006 (T4/122; T14/164).
The medical evidence before the Tribunal indicates that during the period of 2006 to 2011 the Applicant was being treated with anti-depressant medications and counselling (T7/138, T14/164, T28/212–13).
There is very little medical evidence regarding the treatment of the Applicant’s medical conditions between 2013 and 2017, except for two appointments with his psychiatrist,

Dr Perica, on 23 March 2015 and 4 May 2015 (Exhibit R1, Annexure B) and a prescription for an antidepressant being filled on 26 July 2017 (Exhibit R1, Annexure A). At the hearing, the Applicant’s evidence was that he had taken the medication Effexor for the last eight years.
On 20 April 2017, the Applicant’s general practitioner, Dr Panicker, wrote that “[b]ecause of his medical and psychiatric conditions he is unable to seek paid employment” (T40/227).
In an undated medical report written in approximately June 2017, Dr Panicker noted a diagnosis of “depression/anxiety” and PTSD for the Applicant (T41/230).
In a letter dated 13 June 2018, Dr Panicker stated that the Applicant’s “main psychological condition is depression for which he has been seeing a psychiatrist, Dr John Perica” (T52/298).
On 20 September 2018, shortly after the Qualification Period, Dr Panicker referred the Applicant to another psychiatrist, Dr Kostov, who wrote back to decline the referral (T58/308).
In a medical certificate dated 21 January 2019, Dr Panicker stated a diagnosis of depression for the Applicant and stated that the condition was temporary and would last for three to 12 months (T59/309).
A report dated 8 May 2019 from another psychiatrist, Dr Sixsmith, noted that the Applicant had “some elevated anxiety relating to several psychosocial issues, [but] these are not in keeping with a primary anxiety disorder”. She noted that the Applicant described symptoms of chronic dysthymia and that he has been diagnosed with PTSD in the past (T63/313).

Dr Sixsmith recommended recommencing an anti-depressant medication Venlafaxine (a type of Effexor, the medication that the Applicant gave evidence that he had been taking for eight years), and also recommended referring the Applicant to a psychologist.
The Secretary conceded that the Applicant’s Mental Health Conditions had been fully diagnosed, but that they had not been fully treated and stabilised at the Qualification Period (Exhibit R1, para [45]). In support of this submission the Secretary referred to the Applicant having minimal mental health treatment in the five years preceding his claim for a DSP, and the Applicant being referred to another psychiatrist on 20 September 2018, shortly after the Qualification Period. The Secretary also noted Dr Panicker’s statement in a medical certificate approximately four months after the Qualification Period (on 21 January 2019) that the Applicant’s condition was “temporary” and would last three to 12 months. Additionally, the Secretary noted that psychiatrist Dr Sixsmith recommended recommencing his medication and that the Applicant should see a psychologist approximately eight months after the Qualification Period. The Secretary submitted that this evidence supported a conclusion that the Applicant’s Mental Health Conditions were not fully treated.
On the other hand, the Tribunal notes that the Applicant’s mental health issues were diagnosed as early as 2006, with their diagnoses being constant from this period. In 2008, Dr de Tissera, a consultant psychiatrist, certified that the Applicant’s PTSD was likely to continue “indefinitely” but may “fluctuate” over the next two years (T17/175 and 179). In a certificate of medical condition dated 17 June 2011, Dr Perica stated “[p]atient is severely, psychiatrically disabled & requires lifelong psychiatric care & medications to treat Depression, Grief, PTSD, Anxiety; Social and Cultural Isolation” (T29/216). The Tribunal is of the opinion that the nature of a mental health condition is that it can fluctuate over a period of years and, as stated by Dr Perica, may nevertheless be lifelong and span many years.
Also, patients with mental health issues may see different specialists for different reasons. For example, the Tribunal notes a letter from Dr Panicker dated 10 September 2010 confirming that Dr de Tissera had retired (T19/189), and an undated letter from Dr Perica (in Exhibit A1) stating that he was closing his clinic from 12 July 2019. Dr Panicker also retired in approximately early 2019 (T62/312). The Tribunal accepts the Applicant’s evidence that he tried to see other psychologists and psychiatrists in the five years preceding his application but could not afford them. As noted by the AAT1 (T2/36, [13]), this included the psychiatrist Dr Loke to whom the Applicant was referred by Dr Perica when he ceased treating the Applicant.
Additionally, persons suffering from mental illness sometimes cease taking their medication for periods of time. They may try different medications over the years as their effectiveness diminishes or as newer medications become available. Thus, given the nature of the Applicant’s Mental Health Conditions, which have persisted from at least 2006 or earlier, and confirmation from two of the Applicant’s psychiatrists that these are lifelong conditions, on balance, the Tribunal accepts that the Applicant’s Mental Health Conditions were fully diagnosed, treated and stabilised during the Qualification Period.
The Tribunal is therefore able to consider whether to assign an impairment rating, based on the functional impact of the Applicant’s Mental Health Conditions during the Qualification Period, which will now be considered. The relevant table is Table 5 of the Impairment Tables which concerns “Mental Health Function”.
A Job Capacity Report dated 17 August 2017, prepared following a face to face assessment of the Applicant (T42/242) recorded that the Applicant: had been living independently in government housing for the past nine years and did not need any assistance with self-care; travelled by bus from West Perth to Mirrabooka six days a week to meet friends and read Serbian newspapers; and was able to “perform daily routines and arrange overseas travel” noting that he last travelled to Serbia in June 2013.
At the hearing, the Applicant confirmed that he had lived alone since 2008 following a separation from his wife. He stated that he received help with cooking and other household duties from a friend and her daughter “a lot”, but he could not remember how many occasions a week they helped him. He stated that he would buy meat already prepared, and that he avoided cooking. This was because he had left milk on the stove while he had gone out for a walk on two previous occasions, which resulted in the milk catching on fire and the fire brigade being called. He also stated that he did not catch the bus to meet friends six days per week, as recorded by the Job Capacity Assessor. He clarified that he would catch the bus to read the papers and meet friends every Tuesday, and every second Wednesday and Thursday. The Applicant’s evidence was that he was able to catch the bus unassisted but used the handrails to help stand from being seated. The Applicant also stated that he was able to go for a one kilometre walk and could catch the bus to the shop, which was a short walk from the bus stop. He also described needing assistance when he went grocery shopping because he would make a list, but then forget what to buy.
Under the Impairment Tables, an applicant’s evidence regarding his or her functional ability during the Qualification Period needs to be corroborated by medical evidence, for example from their treating doctor (see introduction to Impairment Table 5 at T3/68). The Tribunal will now outline the corroborating medical evidence relating to the functional impact of the Applicant’s Mental Health Conditions, noting that this evidence is limited.
Sometime before the Qualification Period, on 15 August 2008, Dr de Tissera (T17/175) noted that an impact of the Applicant’s Mental Health Conditions was that the Applicant could not speak English and his concentration, motivation, confidence, stress tolerance and learning were reduced (indicated by the use of the symbol “↓”). In a medical certificate dated

20 June 2008, Dr de Tissera had also noted symptoms including insomnia, nightmares and “impaired concentration, motivation, stress tolerance” (in Exhibit A2 and T14/164).
In 2010 Dr Perica referred to the Applicant suffering from insomnia (T20/190). As noted above, in a letter dated 20 April 2017 (T40/227), Dr Panicker stated that “[b]ecause of his medical and psychiatric conditions he is unable to seek paid employment”.
In an undated report submitted to Centrelink in approximately June 2017, Dr Panicker stated the Applicant’s symptoms as “feelings of isolation” and a desire “to return to Serbia”, and stated the impact on his “ability to function” as effect on “his behaviour and social isolation” (T41/231–2).
In a letter dated 22 September 2018, Dr Panicker stated that the Applicant “has psychiatric issues and is unable to get paid employment” (T56/303). In a medical certificate dated

21 January 2019, Dr Panicker noted that the Applicant had “low moods/anxiety” (T59/309).
Given that there is very little evidence before the Tribunal of the functional impact of his Mental Health Conditions during the Qualification Period, it is very difficult for the Tribunal to assign an impairment rating. This is because there is insufficient evidence regarding some of the activities set out in Table 5. For the purpose of illustration, a mild functional impact under Table 5, which would attract five points, is defined in Table 5 as follows:
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
(Original emphasis.)

A moderate functional impact under Table 5, which would attract 10 points, is defined in Table 5 as follows:
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.
(Original emphasis.)
There is limited evidence regarding how the following activities are impacted by the Applicant’s Mental Health Conditions: interpersonal relationships; concentration and task completion and behaviour; planning and decision making; and work/training capacity. Based on the limited information before the Tribunal, including that the Applicant lived independently with some assistance, could travel on the bus, could go for a walk, could arrange overseas travel, and could go shopping with some assistance, his impairment rating is likely to fall within the mild to moderate range. Even if the functional impact of the Applicant’s Mental Health Conditions was in the moderate range during the Qualification Period, it would only attract an impairment rating of 10 points.
Chronic motor axonopathy
The Applicant has been diagnosed with a condition called chronic motor axonopathy. Letters from Sir Charles Gairdner Hospital to Dr Panicker dated 12 November 2012 (T34/221), 9 January 2013 (T35/222), 23 September 2013 (T36/223) and 13 January 2014 (T37/224) show that the Applicant was being investigated and treated at the neurology outpatient clinic. The history of this condition was summarised in the latter of these letters which states, “he has been complaining for several years of numbness and neuropathic type pain in his legs and feet” (T37/224). This letter indicates that the Applicant’s condition was not fully treated and stabilised, referring to recent blood test results and to “[t]he medications so far prescribed … have not been effective”. The letter concluded by stating that the Applicant “was not keen to try any further medication regimen to try and control his pain” and that the Applicant “preferred to not be seen again in the Neurology Outpatient Clinic” and continues to state that, “[a]s such I have discharged him back to your
[Dr Panicker’s] care”.
In the undated report (referred to above) submitted to Centrelink in approximately June 2017, Dr Panicker stated that the Applicant had been diagnosed with chronic motor axonopathy and with respect to the Applicant’s “impact on ability to function”, stated, “pain and numbness in leg” (T41/235). She noted “nil” past treatment and “no specific [current] treatment” (T41/233-234), but noted that the Applicant had seen Dr Daniels, a neurologist, in January 2013 (T41/234). The Applicant did, however, fill prescriptions for

anti-inflammatory and pain medications in May 2016, July 2017 and January 2018 (Annexure A to Exhibit R2). This information suggests that the Applicant had been diagnosed, and although he had filled some prescriptions, he was not undergoing any specific treatment for his condition, indicating that it may not have been fully treated and stabilised.
In a medical certificate dated 7 May 2018, Dr Panicker stated the diagnosis of chronic motor axonopathy with the symptoms described as “abnormal sensations in legs” (T48/263). The past treatment was described as “medication/specialist review” and the planned treatment described “as above”. This tends to indicate that treatment was still ongoing during the Qualification Period.
In a letter dated 13 June 2018 (T52/298), Dr Panicker stated that the Applicant:
has a physical condition that causes numbness in his legs. He has been referred to a neurologist at Sir Charles Gairdner Hospital. He has been diagnosed as having axonal neuropathy of unknown cause. He has been treated for this condition with medications but unfortunately these have not improved his condition.
This letter indicates that around the time of the Qualification Period, the Applicant’s chronic motor axonopathy had not yet been stabilised.
Approximately six months after the Qualification Period, on 24 April 2019, the Applicant’s new general practitioner, Dr Rehman, stated the diagnosis of chronic motor axonopathy under the heading of, “past history”. The Applicant’s current medications were listed as including a pain medication to be taken daily (T62/312). A subsequent patient health summary dated 15 October 2019 (in Exhibit A2) noted the condition of chronic motor axonopathy as part of the Applicant’s “active past history”, as well as the same daily pain medication, which indicates that the condition persisted well after the Qualification Period.
In summary, the evidence suggests that prior to the Qualification Period, the Applicant had undergone some treatment under the care of a specialist in the period 2012 to 2014, but that he had disengaged from specialist treatment in January 2014. Although the Applicant had filled some prescriptions for pain medication on three occasions in 2016, 2017 and 2018, he did not undertake any further treatment which may have stabilised his condition. At the beginning of the Qualification Period, Dr Panicker indicated that the Applicant had been treated with medication but had not improved his condition, indicating that it had not yet been stabilised. Based on the above medical evidence, the Tribunal finds that the Applicant’s chronic motor axonopathy was fully diagnosed at the Qualification Period but was not fully treated and stabilised. Consequently, an impairment rating cannot be assigned for the Applicant’s chronic motor axonopathy condition.
For completeness, even if the Applicant’s chronic motor axonopathy was fully diagnosed, treated and stabilised at the Qualification Period, there is insufficient evidence regarding the functional impact of the condition for an impairment rating to be assigned to it. As outlined above, several of the medical documents before the Tribunal refer to this condition causing pain and numbness in the Applicant’s legs but there is little other evidence of functional impact such as whether he was able to walk on different terrains and at different speeds, stand unaided for at least 10 minutes or use stairs.
The Tribunal also notes the Applicant’s evidence that he was able to go for a walk of approximately one kilometre at the time of the Qualification Period. His evidence was that he was able to catch public transport and that he could walk a short distance from the bus stop to the shop to get groceries and walk around the grocery store. The Tribunal also notes the Applicant’s evidence that he could stand up from a seating position on the bus with the assistance of handrails, but that he did not need another person to help him to stand. Thus, even if the Tribunal was able to base its assessment solely on the evidence of the Applicant, that evidence tends to suggest that there was at most a mild functional impact under the relevant Impairment Table, “Table 3 - Lower Limb Function” of the Applicant’s chronic motor axonopathy condition during the Qualification Period, which would attract five points.
Other conditions
The Applicant was also diagnosed with fatty infiltration of the liver and mild hepatomegaly in March 2014 (T39/226). However, it is unclear as to whether this condition was fully diagnosed, treated and stabilised at the time of the Qualification Period, and the functional impacts of this condition are not stated in any of the materials before the Tribunal.
The Tribunal also notes numerous ultrasound and test results in Exhibit A1 between

26 September 2018 and 19 November 2019, some of which relate to the Applicant’s liver and lesions on his liver. As noted above, at the hearing, the Applicant also stated that he had recently been diagnosed with liver cancer. If the Applicant makes a new application for a DSP, the decision-maker would be able to consider up-to-date information from his general practitioner or specialist about any diagnoses following these test results, as well as the functional impacts of any diagnosed conditions.
The Tribunal also notes that a medical certificate from the Applicant’s general practitioner, Dr Panicker dated 5 February 2018 stated a diagnosis of “osteoarthritis of knees” with the symptoms including, “[p]ain in knees/impaired mobility” (T45/254). However, Dr Panicker also stated that this medical condition was “temporary”. In the absence of further evidence regarding this condition, the Tribunal is not able to determine whether it was fully diagnosed, treated and stabilised at the time of the Qualification Period, or whether there were any functional impacts.
CONCLUSION
For the reasons set out above, during the Qualification Period the Applicant was not eligible to receive a DSP.
As the Applicant’s conditions did not attract the required 20 points under the Impairment Tables, it is unnecessary to consider whether the Applicant had “a continuing inability to work” under s 94(1)(c)(i) of the Act.
As explained by the Tribunal to the Applicant at the hearing, this Tribunal is limited to being able to consider the Applicant’s eligibility during the Qualification Period over two years ago. The Tribunal cannot consider the Applicant’s current medical conditions and cannot consider the worsening of any conditions the Applicant suffered from after the Qualification Period. The Applicant can make a new claim for a DSP, and he is encouraged to do so. In any new claim, he would be able to put forward additional, and more up to date, medical evidence regarding the functional impacts of his conditions, and his additional medical conditions that were not able to be considered in this application.
Given the existing mental health issues and language barriers that the Applicant is experiencing, and the distress that he displayed at the AAT2 hearing, the Tribunal requests that Services Australia assist the Applicant with a new claim for DSP. This should include providing the relevant Impairment Tables and application forms directly to the Applicant’s general practitioner, and any other relevant specialists. This will enable these medical practitioners to compile and assess the Applicant’s current medical information against the relevant Impairment Tables to give Services Australia an accurate summation of the Applicant’s current impairments and functional ability.
DECISION
For the reasons set out above, the Applicant did not meet the eligibility requirements for a DSP during the Qualification Period. Consequently, the Reviewable Decision is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.........[sgd]............................................................
Associate
Dated: 6 August 2020

Date of hearing: 3 August 2020

Applicant: Self-represented

Representative for the Respondent: Ms S Dinkha, Services Australia

[2020] AATA 2652

6 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	3 August 2020
Applicant:	Self-represented
Representative for the Respondent:	Ms S Dinkha, Services Australia