Brinkley and Secretary, Department of Social Services (Social services second review) - [2024] AATA 2720

Brinkley and Secretary, Department of Social Services (Social services second review) [2024] AATA 2720 (5 August 2024)
Division:GENERAL DIVISION
File Number: 2024/0245
Re:Wayne Brinkley
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member P Ranson
Date:5 August 2024
Place:Brisbane

The Tribunal affirms the decision under review
..............................[SGD]................................
Member P Ranson
Catchwords
SOCIAL SECURITY– disability support pension – whether medical conditions are fully diagnosed, fully treated and fully stabilised – whether impairment attracts 20 points or more under the Impairment Tables during the Relevant Period – whether there has been participation in program of support – some treatments not proceeded with – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Member P Ranson
5 August 2024
BACKGROUND

Mr Brinkley was a carpenter. He undertook his trade in his teens and has been employed in his trade for most of his working life, other than a period when he was a full-time carer for his late mother. During his adult life, he has sustained several injuries, some of which have been employment related, and he says that has left him unable to work as a carpenter, or in any other vocation due to the pain he suffers and his physical limitations. He has been receiving Newstart allowance, now known as Jobseeker allowance, periodically since January 2017 and may qualify for the age pension in 2025.
He lodged a claim for disability support pension (DSP) on 7 July 2023 which was rejected as it was found he did not meet all the requirements to qualify. He sought a review of that decision, and an authorised review officer affirmed it in September 2023. He then sought a review with the Social Security Division of this Tribunal which also affirmed the decision, meaning his claim for DSP was still rejected. He then applied to the General Division of the Tribunal for a second review of the decision to refuse his claim for DSP.
To be successful with a DSP claim, the applicant must have impairments which attract 20 points or more under a set of tables designed for that purpose and have a continuing inability to work. The conditions identified must first be properly diagnosed and then fully treated and stabilised. The applicant must undertake all the treatment recommended by the doctors.
The issue in this case is whether the many medical conditions Mr Brinkley suffers from enable him to meet the requirements for DSP based on his claim in July 2023.
For the following reasons, the Tribunal affirms the decision under review. In other words, Mr Brinkley did not qualify for DSP based on his claim dated 6 July 2023.
THE LAW
The Secretary sets out in their Statement of Facts, Issues and Contentions (SFIC) the relevant laws to this decision, being the Social Security Act 1991 (Cth) (the Act), Social Security (Administration) Act 1999 (Cth) (the Administration Act), Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) (the Determination), and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
There is also the Social Security Guide (the Guide), which sets out the Secretary’s views on how the law should be applied to achieve consistency in decision making.
A note about policy
The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination. The Full Federal Court has found that where a policy exists to guide the decision maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it "makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[1]
[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420.
To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation.
Commencement and start day
Unless another provision says otherwise, a social security payment becomes payable to a person on the person’s start day for that payment, which is the day worked out in accordance with Schedule 2.[2] A person’s start day is the day on which the claim is made, unless they become qualified later within a 13-week period, in which case the start day is the day of qualification.[3]
[2] Social Security (Administration) Act 1999 (Cth) ss 41 and 42 and Schedule 2.
[3] Ibid Schedule 2, clause 4(1).
Qualification for DSP
A person is qualified for DSP if they have physical, intellectual or psychiatric impairments, which attract 20 points or more under the Impairment Tables, and (emphasis and underlining added) either the person has a continuing inability to work, or the Secretary is satisfied the person is participating in the program administered by the Commonwealth known as the supported wage system.[4]
[4] Social Security Act 1991 (Cth) s 94(1)(a) to (c).
It is important to note there are two tests set out above which must be considered. That is, impairments which attract 20 points or more under the tables and a continuing inability to work. Both tests must be satisfied for a DSP to be granted. If either or both tests fail, a DSP cannot be granted.
Impairments attracting 20 points or more
Impairment means a loss of functional capacity affecting a person’s ability to work which results from the person’s condition.[5] The assessed person’s impairment must be based on what the person can, or could do, and is not based on what the person chooses to do or what others do for the person.[6]
[5] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) s 5.
[6] Ibid s 8(1).
An impairment rating can only be assigned to an impairment if the condition has been diagnosed by an appropriately qualified medical practitioner, has been reasonably treated and stabilised, and the condition and the resulting impairment is more likely than not, considering all available evidence, to persist for more than two years.[7] Diagnosis by an appropriately qualified medical practitioner means there is corroborating evidence of the condition, as set out in the requirements of each Table.
[7] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) s 8(3).
As examples:
(a)Table 11 deals with hearing and other ear functions. It says the condition causing the impairment must be diagnosed by an appropriately qualified medical practitioner with corroborating evidence from an audiologist, neurosurgeon, neurologist or Ear, Nose and Throat (ENT) specialist.
(b)Table 12 deals with visual function. It says the condition causing the impairment must be diagnosed by an appropriately qualified medical practitioner with corroborating evidence from an ophthalmologist, optometrist, neurosurgeon or neurologist.
A condition has been reasonably treated if treatment or rehabilitation of it has occurred, the treatment is continuing or is planned in the next two years and is likely to result in significant functional improvement.[8]
[8] Ibid s 8(5).
A condition is stabilised if either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement, or the person has not undertaken reasonable treatment for the condition and significant functional improvement is not expected, even if they undertake reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.[9]
[9] Ibid s 8(6).
Degenerative conditions that result in progressive and irreversible loss of function, can be considered stabilised if reasonable treatment is not expected to result in significant functional improvement.[10]
[10] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) s 8(6).
Reasonable treatment must be available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a significant functional improvement, is regularly undertaken or performed, has a high success rate, and carries a low risk to the person.[11]
[11] Ibid s 8(7).
As pain is a major factor for Mr Brinkley, assessing the functional impact of pain is important in this decision and there is no Table which specifically deals with it. Acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body, and chronic pain may be a standalone diagnosis or a symptom of another condition. Where the condition has been diagnosed, reasonably treated and stabilised, any resulting impairment should be assessed using the Table relevant to the area of function affected.
Continuing inability to work
A continuing inability to work requires the DSP applicant to have actively participated in a program of support (POS) and their impairment is, of itself, sufficient to prevent them from doing any work independently of a POS, or undertaking a training activity, within the next two years.[12]
[12] Social Security Act 1991 (Cth) s 94(2).
An applicant with a severe impairment, that is, an impairment which attracts 20 points or more under a single impairment table,[13] is not required to actively participate in a POS, only that the impairment is, of itself, sufficient to prevent them from doing any work independently of a POS, or undertaking a training activity, within the next 2 years.[14]
[13] Ibid s 94(3B).
[14] Ibid s 94(2).
To have a severe impairment means one impairment alone attracts 20 or more points under the tables, that is, more than one impairment collectively attracting 20 or more points does not amount to a severe impairment.
CONSIDERATION OF CLAIMS AND EVIDENCE
The role of the Tribunal
The role of the Tribunal is to make findings of fact and apply the relevant law to those facts in arriving at a decision. The facts are found on the evidence before the Tribunal, including the documents presented and the oral evidence of the parties at the hearing. The law is determined by the Federal Parliament as interpreted by the courts.
The Tribunal can inform itself in any way it chooses. However, it is for the applicant and the respondent to prove their case, and by extension, for the applicant to disprove the case against them.
The DSP claim
Mr Brinkley applied for DSP on 7 July 2023, so the period in which he must become qualified is 7 July 2023 to 6 October 2023 (the qualification period). Case law has clearly established the Tribunal must look at the situation as it was during the qualification period, and medical reports which arise after the end of that period are only relevant to the decision if they cast light on the applicant’s condition during that period.[15]
[15] Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
In his DSP application, he specified the following impairments:[16]
[16] T-Documents, T25, pages 162 to 167.
·Chronic pain;
·Deafness in one ear;
·Tinnitus;
·Tendonitis;
·Hips (arthritis);
·Spinal disorder (back);
·Neck injury from scaffolding;
·Vertigo; and
·Anxiety and depression.
Following a Job Capacity Assessment (JCA) discussed below, the following additional impairments were identified:[17]
·Perianal fissure (rectal disorder)
·Visual impairment (visual loss – unspecified)
[17] T-Documents, T28, pages 180 to 185.
Medical practitioner reports
Dr Prajwal Das, general practitioner, undated and received by Centrelink on 7 July 2023, regarding housing assistance from the Queensland government. His report is summarised as follows:[18]
‘Medical conditions: Chronic pain syndrome – right shoulder and both elbows, perianal fistula treated and labyrinthitis.
Ability to obtain housing: patient is finding difficult to work with pain, unable to work and unable to rent as no earnings from work.
Timeframe of medical condition impacting housing: long term effect, permanent pain, needs long term housing support.
Issues with current accommodation: had mould in the home, not clean home – feels low mood, patient is unable to work with pain, cannot get money to pay rent.
How would accommodation improve capacity to function: patient will feel better in a tenant home rather than being homeless, his mood to be better to get pain free, needs a decent appropriate home.
How will housing assist: cannot drive long distance, [balance is unreadable].’
[18] T-Documents, T26, pages 171 to 173.
Dr Lewis Lam, ophthalmologist, dated 5 August 2022, regarding a previous eye socket fracture and subjective reduced vision in both eyes. His findings are summarised as follows:[19]
‘No obvious cause. Vision measures in well. Eyes are seeing well. Field of vision normal.’
[19] T-Documents, T12, pages 125 to 128.
Dr Adam Tonakie, radiologist, dated 23 August 2018, regarding shoulder pain. He found:[20]
‘The glenohumeral joint appears well preserved; but there is significant degenerative change in the AC joint. No rotator cuff calcification, but there is some subacromial spurring.’
[20] T-Documents, T13, page 130.
Dr Charlie Hsu, radiologist, dated 6 October 2022, regarding pain and tendonitis. He found:[21]
‘Right Hand: The palpable lump patient was indicating corresponded to the hook of hamate, the adjacent ulnar nerve and ulnar artery were imaged. No obvious abnormality seen on ultrasound.
Index Finger MCP joint: Mild vascularity seen within the joint capsule and mild synovitis. No joint effusion seen. The extensor and flexor tendons are unremarkable. No tenosynovitis. Mild bony irregularity of the dorsal radial aspect of the metatarsal head (degenerative change).’
[21] T-Documents, T16, page 145.
Dr Alison Hallett, orthopaedic surgeon, dated 25 October 2022, regarding multiple joint pains. She found:[22]
‘I don’t have access to any of his imaging. He is staying with a friend in Woodgate and all of his imaging has been done at Lumus on the Gold Coast. I'd be grateful if you could arrange for reports of the images to be sent through to me.
On examination, there's a prominent AC joint bilaterally, which is non tender. There's no wasting of the rotator cuff muscles he has a full range of movement on the left. On the right there's limited internal rotation to L4 and slight weakness of subscap but strength is well preserved in rest of the cuff. With regard to the elbows he is tender behind the medial epicondyle on the left. There's no swelling, wasting or bruising and he has a full range of movement on both sides and resisted action of the common flexure origin and the common extensor origin does not reproduce his symptoms. There is wasting of the first web space on the right hand but no sensory loss. He has very good range of movement lacking the last few degrees of flexion of the index MCPJ.
In summary, I can't find anything focal that I would be able to help wavne with and no evidence of significant pathology that should prevent him from working in the future. At this stage I haven't arranged to see him again but I will be in contact with you if this is required once, i’ve had the opportunity to see all of his previous imaging.’
[22] T-Documents, T17, pages 146 to 147.
Dr Michael Busby, ENT specialist, dated 20 December 2022, regarding ear problems. He found:[23]
‘…
Today he has fairly severe exostoses in his right ear from surfing, and I get a view of part of the drum which looks normal. His middle ear is aerated, he was able to equalise easily and the drum held pressure, suggesting that there is no perforation currently. His audiogram shows no useful hearing in his right ear.
He developed tinnitus that sounds like cicadas in his left ear at least four or five years ago. The tinnitus is always present but if he is distracted or if there is surrounding noise, then he doesn't tend to notice it. It becomes more bothersome at night when he is in a quiet environment.
He has also had some intermittent vertigo which is generally caused by lying down or turning his head to one side. He is not sure which side provokes this. If he stays still it tends to be brief. This would all be consistent with BPPV. It has been about three months since he had any symptoms.
I have given him some handouts with exercises to try for his vertigo if it returns. If that is not settling quickly, then I would suggest referral to a vestibular physiotherapist.
…
It would seem to me that Wayne's loss of hearing in his right ear may impact on his ability to do some jobs where directional hearing is important, but will probably not impact on his ability to do other jobs.’
[23] T-Documents, T18, pages 148 to 149.
Dr Roy Machasio, radiologist, (signed by Dr Hsu) dated 23 December 2022, regarding unexplained headaches and tinnitus. His findings summarised are as follows:[24]
[24] T-Documents, T20, pages 151 to 152.
‘MRI brain:
No intracranial space-occupying lesion. No cerebellopontine angle or internal auditory canal (IAC) lesion. Normal T2-weighted signal intensity of the labyrinthine structures. No superior semi-circular canal dehiscence. Vestibular aqueducts are not enlarged. No brainstem or posterior fossa lesion. Normal visualised Meckel's cave and cavernous sinus. Diffusion weighted imaging shows no acute restricting infarct. No chronic infarct or encephalomalacia. Few scattered subcortical and deep white matter FLAIR hyperintensities are present. Susceptibility weighted imaging shows no microbleed or cortical siderosis. No mass effect or midline shift. Normal ventricles. Both cerebellar tonsils are positioned above the foramen magnum. Normal orbits and visualised paranasal sinuses. No osseous signal abnormality.
IMPRESSIONS:
1. No internal auditory canal or intracranial space-occupying lesion.
2. Mild white matter chronic microangiopathic burden.
MRI cervical spine:
Straightening of the cervical spine but normal craniocervical junction and subaxial cervical spine alignment is maintained. Posterior disc-osteophyte complexes causing mild C3-C4 and moderate to severe C5-C6 spinal canal stenoses. There is ventral flattening of the cervical cord at the C5-C6 stenotic level without cord signal change. Combination of uncovertebral osteophytes and facet joint arthrosis contributing to severe right and moderate left C3-C4, severe right and mild left C4-C5, severe bilateral C5-C6, moderate right and severe left C6-C7 neural foraminal stenoses. No pre-vertebral or paraspinal soft tissue abnormality.
IMPRESSIONS:
1. Mild C3-C4 and moderate to severe C5-C6 spinal canal stenoses.
2. Ventral flattening of the cervical cord at the C5-C6 stenotic level without cord signal change.
3. Multilevel severe right and moderate left C3-C4, severe right and mild left C4-C5, severe bilateral C5-C6, moderate right and severe left C6-C7 neural foraminal stenoses - could contribute to bilateral lower cervical dermatome radiculopathy.’
Dr Busby, ENT specialist, dated 7 February 2023, regarding tinnitus. He found:[25]
‘…
The MRI scan did not show anything sinister intracranially and no obvious cause for his tinnitus. It did however show some changes in his cervical vertebrae which may be pushing on some of the nerves and may explain why he has had some neurological symptoms in his arms. He going to chat to you about that further when he is back on the Coast.
I haven't arranged to see him in my rooms again at this stage.’
[25] T-Documents, T21, page 153.

Dr Machasio (signed by Dr Hsu) dated 22 March 2023, regarding numbness in legs. He found:[26]
‘Five non-rib bearing lumbar vertebrae are present and the last lumbar motion segment is designated L5. Normal lumbar spine alignment. Minimal anterior wedging of L1 vertebral body (5% loss of height). Hypertrophic/degenerative facet joints and ligamentum flavum thickening contributing to minimal L3-L4 and L4-L5 spinal canal narrowings. Hypertrophic and degenerative from L2 to S1 levels. Mild right and moderate left L4-L5 and mild bilateral L5-S1 neural foraminal stenoses. There is fatty infiltration of the deep fibers of the lower erector spinae muscles. Scattered aortoiliac vessel wall calcifications. Degenerative appearance of the bilateral sacroiliac joints. Lower lobes emphysema. Sigmoid diverticulosis.
IMPRESSIONS:
1. Minimal anterior wedging of L1 vertebral body (5% loss of height).
2. Minimal L3-L4 and L4-L5 spinal canal narrowings.
3. Lumbar facet joint arthrosis.
4. Mild right and moderate left L4-L5 and mild bilateral L5-S1 neural foraminal stenoses.’
[26] T-Documents, T22, page 154.
Medical certificates
Dr Andrew Jackson, general practitioner, dated 26 April 2017, regarding perianal abscess. He reports the condition is temporary with symptoms lasting less than three months and incapacity to work for three months from 16 April 2017. The period of incapacity to work was extended to 7 July 2017 by Dr Jackson on 22 June 2017. Then on 20 July 2017, Dr Jackson notes a recent decline of the site and worsening of the condition and extends the time Mr Brinkley is unfit for work to 1 September 2017. On 28 August 2017, he again extends the time again to 14 October 2017, noting the prognosis for the symptoms to last is 3-12 months.[27]
[27] T-Documents, T33, pages 198 to 201.
Dr Das dated 16 April 2018, regarding anal fistula leaking. He reports Mr Brinkley is experiencing pain and leaking in the perianal area and is awaiting an operation rendering him unfit for work for one month to 16 May 2018. On 14 May 2018, he reports the symptoms continue and extends the time to 20 June 2018, and on 8 June 2018, he extends the time further to 20 July 2018. On 13 July 2018, the time was extended to 20 September 2018, and finally, on 13 September 2018, the time was extended to 25 October 2018.[28]
[28] T-Documents, T33, pages 202 to 206.
On 1 April 2022, Dr Das provides a certificate concerning tendinitis in both elbows and arthritis in Mr Brinkley’s right shoulder.[29] He assesses these conditions as permanent (likely to last for 2 or more years) and reports pain and stiffness, which is aggravated by manual work, and other conditions impacting his capacity to work such as labyrinthitis,[30] and dizzy spells. He cites treatment as physiotherapy, analgesics and self-exercise, and recommends training for non-manual work.
[29] T-Documents, T33, page 207.
[30] ‘Labyrinthitis is an inflammatory condition of your inner ear. An infection causes the labyrinth (a delicate structure deep inside your ear) to become inflamed. This can affect your hearing and balance.’ (See Labyrinthitis - symptoms, treatments and causes | healthdirect).
Dr Das completes a Centrelink medical certificate dealing with the shoulder and elbow pain, in which he states the condition is a temporary exacerbation of a permanent condition and is likely to persist for 2 years or more.[31] The prognosis for the incapacity was stated to last more than 24 months.
[31] T-Documents, T33, page 208.
On 25 November 2022, Dr Das reports again on Mr Brinkley’s chronic pain from arthritis. He says Mr Brinkley cannot work for eight or more hours per week due to the pain, and this will last for approximately 13 weeks up to 24 months, albeit the condition is not life threatening and not classified as a serious illness. He also reports adjustment disorder with depressed mood as a secondary condition expected to last 13 weeks to 24 months. Overall, he expected the incapacity to last from 13 November 2022 to 24 February 2023, which he extends to 22 May 2023 in a later report dated 22 February 2023, and then again on 24 May 2023, where he extended the incapacity time to 23 June 2023. On 23 June 2023, he extends the incapacity time to 22 September 2023. Finally, on 2 February 2024, Dr Das reduces the expected duration of the arthritis condition to less than 13 weeks and extends the incapacity time to 1 May 2024.[32]
[32] T-Documents, T33, pages 209 to 213.
Job capacity assessment
On 17 July 2023, Mr Brinkley was referred for a JCA. His eligibility was assessed on the reports from Drs Busby, Hallett and Das.[33] The report acknowledges the loss of hearing in the right ear and tinnitus in the left ear, consistent with the report from Dr Busby.[34]Some further comments from that report include[35]:
‘Letter from Dr Hallett[36],orthopaedic surgeon, 25/10/22 verified no significant pathology that would prevent him from working, however does have widespread pain. Report from Dr Das, GP, undated, noted chronic pain syndrome, treated perianal fistula and labyrinthitis. Customer reported no current or planned treatment. There is no indication he has consulted with a pain specialist, therefore cannot be considered reasonably treated or stabilised as yet.’
[33] T-Documents, T27, pages 174 to 175.
[34] See T-Documents, T18, pages 148 to 149 and T-Documents, T21, page 153.
[35] T-Documents, T27, page 175.
[36] See T-Documents, T17, pages 146 to 147.
The JCA was conducted by telephone on 13 September 2023.[37] It deals with the assessment of Mr Brinkley’s conditions as follows:
(a)Hearing loss – partial: Loss of hearing in right ear verified by medical evidence and diagnosed, reasonably treated and stabilised (5 points assigned). Dr Busby notes MRI results show no obvious cause for tinnitus and Mr Brinkley had not reported any episode of vertigo for about 12 months. No treatment needed (0 points assigned).
(b)Chronic pain: Diagnosed by Dr Das and arthritis diagnosed by Dr Sharab. The report of Dr Hallett is quoted and notes a non-tender prominent AC joint, no wasting of the rotator cuff muscles, full range of movement on the left and limited internal rotation to L4 with slight weakness of the subscapularis muscle, otherwise strength is well preserved. In terms of his elbows, she notes no swelling, wasting, or bruising and full range of movement. Importantly, Dr Hallett finds no evidence of significant pathology to prevent him from working, and she has no plan to see Mr Brinkley again unless she sees something in his imaging to suggest otherwise (0 points assigned).
(c)Psychiatric disorder: Diagnosed by Dr Das without specifying the symptoms or treatment. Limited information available and Mr Brinkley reported a family history of bipolar disease, noting he finds his symptoms manageable (0 points assigned).
(d)Rectal disorder: Diagnosed by Dr Das, who notes the condition is treated following surgery in hospital and managed with creams. No further treatment is planned (0 points assigned).
(e)Visual loss: Diagnosed by Dr Lam, who notes a previous left eye socket fracture with no obvious cause of claimed vision loss. Instead, he notes eyes are seeing well with assistance from glasses with normal field of vision. Mr Brinkley reported the condition had since deteriorated, requiring a fresh medical assessment from an appropriately qualified medical practitioner (0 points assigned).
[37] T-Documents, T28, page 177 to 185.
The JCA concludes by finding Mr Brinkley has a baseline work capacity of 8 to 14 hours per week, working in either light duties or sedentary work. It lists several barriers to Mr Brinkley obtaining work, such as limited support networks and job seeking skills, and acknowledges the limitations to him gaining employment, such as his mental health, the pain he experiences and his hearing loss. Nonetheless, it anticipates his work capacity could increase to 15 to 22 hours per week within 2 years with intervention, such as, anxiety management, job search skills, a pain management program and assistance with finding and retaining accommodation. Mr Brinkley is referred to Disability Employment Services for assistance in finding employment.
Do Mr Brinkley’s impairments attract 20 points or more?
It is obvious from the above, and the Secretary accepts, Mr Brinkley had numerous impairments, which have been assessed from the medical reports made during the period leading up to the time of his application. These are discussed below:
Perianal fistula: This was diagnosed and referred to several times in the medical certificates provided by Drs Jackson and Das, dated from 26 April 2017 to 13 September 2018. They refer to the condition as temporary and lasting less than three months with prescribed cream and regular dressings. Surgical review is planned, and debridement may be necessary.
At the hearing, Mr Brinkley described the medical interventions he had experienced so far, and advised he refused further surgery because of that experience. That means the condition is not reasonably treated and stabilised.
The Tribunal finds no points can be assigned to this condition under the tables of the Determination.
Hearing loss, vertigo and tinnitus: Dr Busby confirmed on 20 December 2022, the diagnosis of complete hearing loss in the right ear. Consistent with the findings of the Secretary, Mr Brinkley’s hearing loss is permanent, fully diagnosed, treated and stabilised.
His report says the vertigo is consistent with benign paroxysmal positional vertigo (BPPV). At the time of assessment, Mr Brinkley had been symptom free of vertigo for three months and was advised to undertake exercises. If the exercises did not assist with the symptoms, he would be referred to a vestibular physiotherapist. There is no evidence before the Tribunal to indicate such therapy has been undertaken or was necessary. At the hearing, Mr Brinkley said he had not visited a physio for this condition. That means this condition is not fully treated and stabilised.
The report suggests the tinnitus is self-reported, and Dr Busby suggested an MRI to ensure the tinnitus was not caused by acoustic neuroma. The MRI was conducted by Dr Machasio on 23 December 2022, who provided a detailed account of his findings and concluded there was no internal auditory canal or intracranial space occupying lesion. Dr Busby reports Mr Brinkley told him the tinnitus is always present albeit he does not notice it if he is distracted, and it bothers him at night when he is in a quiet environment.
At the hearing, he said this condition is getting louder now. However, the Tribunal must look at the evidence available during the qualification period and so relies on the report by Dr Busby to find this condition is not diagnosed, treated or stabilised.
The Tribunal finds Mr Brinkley’s right ear deafness, attracts 5 points under Table 11 of the Determination, and no points can be ascribed to his vertigo and tinnitus.
Vision impairment: Dr Lam wrote in October 2022 about Mr Brinkley’s vision. He found there was no obvious cause for his stated vision loss and that his vision measures well, that is, his eyes are seeing well with a normal field of vision. Accordingly, this condition is not diagnosed, treated or stabilised.
At the hearing, he said he now sees what looks like a big black spider web across his right eye. However, as previously stated, the Tribunal must look at the evidence available during the qualification period and so relies on the report by Dr Lam to find this condition is not diagnosed, treated or stabilised.
The Tribunal finds no points can be assigned to this condition under the tables of the Determination.
Chronic pain (hips, shoulders, neck and spine): Mr Brinkley remained standing throughout the hearing on 4 June 2024. He said he found that more comfortable than sitting for long periods due to the pain he suffers.
It is convenient to group these conditions together as they are largely reported on by Dr Hallett and the associated x-ray reports discussed above. She examined Mr Brinkley and reported her findings on 25 October 2022, and whilst she diagnoses conditions such as a AC joint bilaterally, limited internal rotation on the right side at L4 and slight weakness of the subscapularis, she also found on examination he had mostly good results, such as, no wasting of the rotator cuff muscles, full range of movement on the left, strength well preserved, no swelling, wasting or bruising and full range of movement of both elbows.
In summary, she said she couldn’t find anything focal to assist Mr Brinkley’s DSP claim and there was no evidence of significant pathology to prevent him from working in the future.
At the hearing, Mr Brinkley said he has been offered cortisone injections for the pain he experiences, which he has refused. The Tribunal must look at the evidence available during the qualification period and so relies on the report by Dr Hallett and the imaging to find this condition is not diagnosed, treated or stabilised.
The Tribunal finds no points can be assigned to this condition under the tables of the Determination.
Tendonitis: Dr Hsu reported his findings about this on 6 October 2022. He reported no obvious abnormality seen on the ultrasound, no joint effusion, unremarkable extensor and flexor tendons, no tenosynovitis and degenerative change to the dorsal radial aspect of the metatarsal head (bones in the feet). That means to the extent some conditions were diagnosed, they were not treated or stabilised.
The Tribunal finds no points can be assigned to this condition under the tables of the Determination.
Mental health: Dr Das comments on Mr Brinkley having a low mood and feelings of anxiety and depression. At the hearing, Mr Brinkley said he was applying self-help techniques to deal with this problem, and he had no issues prior to the time of applying for the DSP. He provided copies of exercises he was undertaking to improve his mental health and his health generally.[38] That means this condition was not diagnosed, treated or stabilised during the application period.
[38] Extract from the book ‘The brilliant whole health handbook’ by Dr Shakti Liz Elliott.
The Tribunal finds no points can be assigned to this condition under the tables of the Determination.
Accordingly, the Tribunal finds no single impairment attracts a rating of 20 points or more under the tables, which means Mr Brinkley does not have a severe impairment.
Does Mr Brinkley have a continuing inability to work?
Remembering a continuing inability to work requires Mr Brinkley to have actively participated in a POS and his impairment is, of itself, sufficient to prevent them from doing any work independently of a POS or undertaking a training activity within the next two years, or to have a severe impairment, it must be considered whether he meets this requirement.
The requirements for successful participation in a POS must be satisfied within 36 months (the three-year period) ending immediately before the DSP claim is made, that is, 7 July 2020 to 6 July 2023. Participation must be for at least 18 months unless the course was completed within that timeframe.[39]
[39] Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) Part 2.
According to the Jobseeker calculator, Mr Brinkley participated in a POS for 193 days during the relevant three-year period and there is no evidence before the Tribunal to indicate he completed a course in that time.[40]
[40] T-Documents, T36, page 280.
The Tribunal finds Mr Brinkley did not have a continuing inability to work during the qualification period because:
(a)He did not successfully participate in a POS during the relevant period,
(b)Dr Lam reported in August 2022 his eyes were seeing well,
(c)Dr Hallett could not find anything in October 2022 to prevent him from working in the future,
(d)Dr Busby found in December 2022, that while the loss of hearing in his right ear may impact his ability to undertake some jobs where directional hearing is important, it was unlikely to impact his ability to undertake other jobs, and
(e)The JCA found he could work 8 to 14 hours per week in light duties or a sedentary position at the time of assessment in August 2023, and 15 to 22 hours per week within two years with the appropriate intervention.
CONCLUSION
The Secretary and the Tribunal agree Mr Brinkley has a series of impairments, some of which are diagnosed and some of which are fully treated and stabilised. Not enough of his impairments meet all the requirements for a DSP claim in the qualification period. Instead, the evidence shows he had a continuing ability to work during the qualification period.
It may be if he applies again now the result may be more favourable if his conditions have worsened and he has exhausted all recommended treatment. Part of the reason he was not successful with this claim was his reluctance, and in some cases refusal, to fully complete the treatment identified for him by his doctors. Instead, he is at least partly relying on ‘the whole health handbook’ to improve his situation.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

..............................[SGD]..............................
Associate
Dated: 5 August 2024

Date of hearing: 4 June 2024

Representation for the Applicant: Self-represented litigant

Solicitor for the Respondent:
Ms Claire Campbell

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