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

Brown and Secretary, Department of Social Services (Social services second review) [2020] AATA 1652 (9 June 2020)
Division:GENERAL DIVISION
File Number: 2019/6590
Re:Kerry Brown
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:9 June 2020
Place:Perth

The decision under review is affirmed.
..............[Sgd]..........................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant has 20 impairment points – whether applicant has severe impairment – fibromyalgia condition – osteoarthritis condition – chronic fatigue syndrome – mental health condition – whether applicant has continuing ability to work – whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(3)–(5)
Social Security (Administration) Act 1999 (Cth) – cl 4(1) of sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 1, Table 3, Table 4, Table 5, ss 3, 5(2), 6(1), 6(3), 6(4)–(7), 6(8), 10(5)

CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Flenady and Secretary, Department of Social Services [2019] AATA 2478
Larkin and Secretary, Department of Social Services [2018] AATA 342
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – part 3.6.3
Guide to Social Security Law, Services Australia
REASONS FOR DECISION
Member L M Gallagher
9 June 2020
BACKGROUND

On 3 July 2018,[1] Mr Brown lodged an application for Disability Support Pension (DSP) with the (then) Department of Human Services (the Department) (R1, T43). Mr Brown’s application related to a number of claimed conditions, including (R1, T43, pages 215–217):
(a)severe depression;
(b)chronic fatigue syndrome;
(c)fibromyalgia;
(d)irritable bowel syndrome;
(e)chronic pain in neck and cervical/thoracic spine;
(f)insomnia;
(g)moderate arthritis in joints/spine; and
(h)pain in both knees, hands, left thumb and hips.
[1] The parties’ submissions regarding the date of claim and the Tribunal’s finding in this regard are discussed further at paragraphs [23] to [27] below.
On 5 October 2018, a Job Capacity Assessment (JCA) (face to face) was undertaken by a Registered Occupational Therapist and a report was produced on 23 January 2019

(R1, T56). The JCA reported that:
(a)
Mr Brown’s fibromyalgia was fully diagnosed, fully treated and fully stabilised (FDTS) and achieved a rating of 10 impairment points under Table 1 of the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

(the Determination), being for Functions Requiring Physical Exertion and Stamina;
(b)Mr Brown’s osteoarthritis was FDTS and his related functional impairment was accounted for within his impairment rating for his fibromyalgia; and
(c)Mr Brown’s depression condition was fully diagnosed, but not fully treated or stabilised and therefore could not be assigned an impairment rating.
The JCA report dated 23 January 2019 also noted that:
(a)Mr Brown’s baseline work capacity and his capacity for work within two years with intervention were both 15 to 22 hours per week (R1, T56, pages 292 and 293);
(b)Mr Brown had a temporary work capacity of zero to seven hours per week with an end date of 1 November 2019 (R1, T56, page 293); and
(c)Mr Brown’s personal factors had a high impact on his ability to work, obtain work or look for work (R1, T56, page 295).
The JCA report dated 23 January 2019 recommended that Mr Brown be referred to an Employment Service (R1, T56, page 295).
On 29 January 2019, the Department rejected Mr Brown’s claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables

(R1, T57).
An electronic record of the Department indicates Mr Brown requested an internal review of the Department’s decision dated 29 January 2019 on the same date (R1, T67, page 437).
On 10 July 2019, an Authorised Review Officer of the Department (ARO) affirmed the Department’s decision dated 29 January 2019 (R1, T61). The ARO found that:
(a)Mr Brown’s depression condition was permanent, that is, it was FDTS, was likely to continue for at least two years and was unlikely to significantly improve within that time. The ARO assigned 10 points under Table 5 of the Impairment Tables (being for Mental Health Function).
(b)Mr Brown’s other conditions, being fibromyalgia, osteoarthritis, and chronic fatigue syndrome, could not be considered permanent. The ARO considered that therefore, an impairment rating could not be assigned to these conditions at that time.
(c)Additionally, the impact of Mr Brown’s osteoarthritis was affected by his fibromyalgia.
On 25 July 2019, Mr Brown applied to the Administrative Appeals Tribunal (the Tribunal) for a first review of the ARO decision dated 10 July 2019 (R1, T2, page 8).
On 2 October 2019, the Tribunal’s Social Services & Child Support Division (AAT1) affirmed the ARO decision dated 10 July 2019 (R1, T2) on the basis that:
(a)Mr Brown’s conditions that gave rise to widespread pain (spinal problems and degenerative disturbances in the spine, degenerative osteoarthritic abnormalities, fibromyalgia, fatigue, knee pain) were not FDTS and therefore could not be assigned a rating under the Impairment Tables.
(b)Mr Brown’s mental health condition was fully diagnosed, however it could not be considered fully treated and fully stabilised. Therefore, Mr Brown’s mental health condition could not be assigned a rating under the Impairment Tables.
(c)Mr Brown’s medical conditions therefore did not have a total rating of 20 impairment points or more.
On 15 October 2019, Mr Brown applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 2 October 2019, claiming that the decision is wrong because (T1, page 4):
… at my job Capacity assessment I got 10 points for fibromyalgia, I didn’t know I needed a letter from my clinical psychologist to say treatment had finish [sic] and stabilised with no improvement in the next two years.
So I filed for Centrelink internal review, I then received 10 points for depression and my fibromyalgia 10 points was removed.
I then filed with the Administration [sic] Appeals Tribunal for a T1 hearing, now I have no points at all.
3 [sic] different people all with a different medical opinion, apart from the words “Decision Affirmed” on documents nothing [sic] the same outcome.
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to Mr Brown’s application are contained in the

Social Security Act 1991 (Cth)
(the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The Guide to Social Security Law, Services Australia (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645).
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Part 3.6.3 of the Guide).
Qualification criteria

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

In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mr Brown’s eligibility for DSP on the date the claim was lodged.[2]
[2] The Tribunal’s rationale and findings regarding the date Mr Brown’s claim was lodged is set out at paragraphs [23] to [27] below.
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3 of the Determination). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions (s 5(2) of the Determination).
Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination, refer also to

ss 6(4) to 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination).
Section 10(5) of the Determination requires that where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Impairment Table.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention. Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
In relation to s 94(2) of the Act, extracted at paragraph [20] above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[3]
(b)a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table (s 94(3B) of the Act);
(c)a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection (s 94(3C) of the Act); and
(d)work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5) of the Act).
[3] See Larkin and Secretary, Department of Social Services [2018] AATA 342, [57] in which the Secretary referred to a number of authorities to this effect.
With regard to participation in a program of support (POS), the POS Determination relevantly provides the following guidance:
(a)the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person (s 5 of the POS Determination); and
(b)the requirements for active participation in a POS are contained in s 7 of the POS Determination. The Tribunal notes that ss 7(3) to 7(5) of the POS Determination relate to situations where a person can participate in a program of support for less than 18 months and still satisfy the program of support requirement (provided that person had commenced in a program of support prior to lodging their claim for DSP).[4]
PRELIMINARY ISSUE
[4] See Budisa and Secretary, Department of Social Services [2014] AATA 79, [33].
Date of claim
Mr Brown claims that he lodged his claim for DSP on 5 June 2018, which is the date entered by him on his claim form (R1, T43, pages 214; A4, pages 1 and 2). At the hearing, Mr Brown stated that the present application was his second application for DSP, and with his first application, the date of claim was taken to be the date on the form. Mr Brown said that he posted his present application after he signed it and if the processing of that document had been delayed at Centrelink in Canberra, then that was ‘out of [his] hands’ (transcript, page 14 [10]).
The Secretary’s understanding is that while Mr Brown did contact the agency regarding his claim on 5 June 2018, the claim itself was not received by the agency until 3 July 2018 (transcript, page 13 [35]). At hearing, Ms Hinwood elaborated further that:
I suppose as a matter of course in a situation like this, our general position would be to take the latest dates where there are possibly multiple dates that could be taken, because that tends to be the most beneficial for an applicant as it provides them with more time to get their evidence together by, sort of, pushing the qualification period back a little bit…
… But in any event, certainly the records that we have in front of us are that there was contact on 5 June, but the claim wasn’t lodged until almost a month later. And for the date of first contact to be accepted as the date of claim, the claim itself would have needed to be lodged within 14 days of first contact and that didn’t occur in this case.
(transcript, page 13 [40]–[41])
Centrelink records indicate that Mr Brown first contacted Centrelink regarding his claim for DSP on 5 June 2018 (R1, T66, page 426; T67, page 430). On the same date, Centrelink wrote to Mr Brown informing him that to make sure that he receives his payment from the earliest date possible, he must lodge his claim and all his supporting documents at the same time (R1, T44, page 227).
Centrelink records also refer to:
(a)
Mr Brown’s claim for DSP lodged on 3 July 2018 (R1, T67, pages 431–433,

435–436); and
(b)Mr Brown’s advice on 3 July 2018 that he would obtain a letter about his completed treatment at the pain clinic (R1, T67, page 432).
Having considered the parties’ submissions along with the available Centrelink records set out at paragraphs [23] to [26] above, the Tribunal has formed the view that:
(a)while Mr Brown’s claim form indicates he completed that form on 5 June 2018, as at that date, medical evidence regarding the claimed conditions was yet to be provided;
(a)as at 3 July 2018, Mr Brown was having discussions with Centrelink regarding the medical evidence relating to his claim; therefore
(b)Mr Brown’s claim, being the claim form plus the required supporting medical evidence, was not lodged in its entirety on 5 June 2018; and
(c)it is reasonable for the Tribunal to accept the Secretary’s submission that Mr Brown lodged his claim for DSP on 3 July 2020 (the Qualification Date).
ISSUES FOR REVIEW
The issues which arise in this matter are whether, at the date of Mr Brown’s claim for DSP:
(a)Mr Brown suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)Mr Brown’s impairments receive an impairment rating of 20 points or more under the Impairment Tables; and if so,
(i)whether those 20 impairment points are achieved under a single Impairment Table such that Mr Brown has a severe impairment;
(c)Mr Brown has a CITW, which includes:
(i)that he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)if, and only if, Mr Brown does not have a severe impairment, Mr Brown has actively participated in a program of support.
EVIDENCE
The matter was heard in Perth on 13 May 2020. Mr Brown was self-represented.

The Secretary was represented by Ms Laura Hinwood, Seconded Lawyer. The parties and Mr Brown’s witness, Ms Dowley, appeared at the hearing via telephone.[5] The Tribunal acknowledges Mr Brown’s considerable efforts in preparing his written submissions in his own handwriting and in attending the hearing of several hours’ duration notwithstanding his current health issues.
[5] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday, 26 March 2020.
At the hearing, the Tribunal admitted the following documents into evidence:
(a)Applicant’s submission dated 1 July 2018 (A1);
(b)Applicant’s letter dated 1 November 2019 (A2);
(c)
letter and medical certificate from Mundaring GP Super Clinic dated

11 November 2019 (A3);
(d)Applicant’s submission dated 14 February 2020 and bundle of related attachments (A4);
(e)statement of Ms Sylvia Dowley dated 21 February 2020 (A5);
(f)Applicant’s medical documents received by the Tribunal on 29 April 2020 (A6), being;
(i)Letter and medical certificate from Mundaring GP Super Clinic dated 29 April 2020;
(ii)CT Arthrogram left knee reported 11 March 2020; and
(iii)Centrelink Medical Certificate dated 29 April 2020;
(g)T documents (T1 – T67, 443 pages) (R1);
(h)Secretary’s Statement of Facts, Issues and Contentions dated 22 January 2020 (R2a);
(i)Secretary’s list of authorities received by the Tribunal on 22 January 2020 (R2b); and
(j)Annexure A to R2a, received by the Tribunal on 22 January 2020 (R2c).
Mr Brown’s evidence regarding his claimed conditions is extensive, spanning back to 2003. The Tribunal has, and rightly so in its view, focussed its consideration on Mr Brown’s evidence that is referable to his claimed conditions as at the Qualification Date. While this material may of itself pre-date and postdate the date of claim, the Tribunal has regard to it insofar as it relates to whether Mr Brown was qualified for DSP on that date.

Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Mr Brown’s evidence
Mr Brown gave the following evidence at hearing, including during cross-examination by

Ms Hinwood:
(a)His fibromyalgia is the condition that causes him the most problems, taking into consideration that it is tied in with his irritable bowel syndrome, chronic fatigue and insomnia.
(b)He was originally diagnosed with fibromyalgia in January 2017 by a general practitioner. He was then sent to the Royal Perth pain clinic on 26 October 2018, but was not satisfied with the treatment he received. He then started seeing Dr Corbett (general practitioner) who has taken over his treatment.
(c)He considers that his fibromyalgia was FDTS after he completed the education course at the pain clinic because there was no benefit in seeing the Royal Perth pain specialist.
(d)His fibromyalgia has become much worse since his diagnosis was first made.
(e)When he attended the pain clinic on 26 October 2018 (refer to R1, T51), that was the first time he saw a pain specialist for his fibromyalgia.
(f)He did not attend a pain specialist regarding his fibromyalgia any sooner because there was a long waiting list.
(g)He has been suffering from arthritis for many years. Since his fibromyalgia diagnosis, he cannot really feel the arthritis anymore.
(h)He was on a waiting list for about 18 months to see a rheumatologist for his osteoarthritis. The hospital cancelled his appointment because he said that he could not tell the difference between his osteoarthritis and his fibromyalgia because he was in pain all the time. He has not seen a rheumatologist.
(i)At the time he lodged his claim for DSP in 2018 he was experiencing a lot of pain relating to his fibromyalgia, but at that time his arthritis was not specifically causing him any real separate problems.
(j)Since he lodged his claim for DSP in 2018:
(i)some of his fibromyalgia symptoms have worsened, but he has found it easier to manage his pain at least during the day. The change in weather makes him ill and some days are a lot worse than others;
(ii)his chronic fatigue and insomnia are not constant, rather they come and go;
(iii)the fibromyalgia has ‘taken over everything’ and pain travels around his body;
(iv)virtually every night he is in pain and needs to take painkillers; and
(v)he seems to be able to ‘sort of’ control the pain the best he possibly can with his medication.
Mr Brown said that:
… the weather with fibromyalgia would be the worst followed by the pain with fibromyalgia then you’ve got … chronic fatigue before insomnia and then irritable bowel would be the same between there or probably last.
(transcript, page 24 [20])
Mr Brown said that his mental health symptoms worsen when his pain is worse. Mr Brown said that in relation to his depression, he tries to block everything out, so as not to cause undue pain, but as soon as he gets stressed or as his stress levels rise, he is instantly in pain. Mr Brown said that within seconds (of being stressed) his back will start knotting up and something around his body will hurt.
Ms Hinwood then took Mr Brown to Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina). When asked by Ms Hinwood, Mr Brown indicated he understood that Table 1 is used for conditions like fibromyalgia that have a widespread effect on the body. Ms Hinwood asked Mr Brown a series of questions regarding his functional capabilities. From these questions, Mr Brown confirmed that, at the Qualification Date:
(a)He was able to walk in a shopping centre or supermarket using a walking stick. He would purchase what he needs but not walk around the entire centre.
(b)He could get on and off of a bus with the use of a walking stick but chooses not to do so because of his irritable bowel.
(c)His ability to perform light household duties would depend how bad his fibromyalgia or chronic fatigue were at the time.
Ms Hinwood then referred to Mr Brown’s claimed knee pain and took him to Table 3 of the Impairment Tables (Lower Limb Function). Ms Hinwood asked Mr Brown a series of questions regarding his functional capabilities. From these questions, Mr Brown confirmed that, at the Qualification Date:
(a)He would be able to walk around a supermarket and from the carpark into a shopping centre. Sometimes he would need to use a walking stick.
(b)Again, he would be able to get on and off of a bus but chose not to as his bowel condition is unpredictable.
(c)If he were sitting down in a chair, he would be able to stand up again unaided.
Turning to Table 4 of the Impairment Tables (Spinal Function), Ms Hinwood asked Mr Brown a series of questions regarding his functional capabilities as they relate to his spinal pain. From these questions, Mr Brown confirmed that, at the Qualification Date:
(a)to perform overhead activities, he could lift his arms above his head, but it would hurt;
(b)head movement would be in the range of a ‘10 to 2 [o’clock]’ movement;
(c)he could move his neck to a certain point, although his movement was restricted;
(d)he could pick up an item from a table from a standing position, however bending over would hurt; and
(e)as a general rule, he would be able to sit down for at least 10 minutes at a time.
Turning to Table 5 of the Impairment Tables (Mental Health Function), Ms Hinwood asked Mr Brown a series of questions regarding his functional capabilities as they relate to his mental health condition. From these questions, Mr Brown confirmed that, at the Qualification Date:
(a)He was able to maintain his own self-care and independent living.
(b)He did not socialise with anybody or have social contact with anyone other than his mother and stepfather. He finds that after everything that has happened to him it is easier to stay away from people.
(c)He had difficulties concentrating or completing a task.
(d)Since he was diagnosed with fibromyalgia and given that he is homeless ‘and all the rest of it’, he keeps to himself and has a dog for company and security.
(e)He hardly sees anybody and is even more withdrawn now than he used to be.
(f)He cannot work because of his fibromyalgia and because he no longer trusts anybody.
(g)It is impossible for him to make decisions or plans, given that he is homeless and has lived on $40 a week for the last three years.
Mr Brown said that he has not commenced a POS because he has been too ill (transcript, page 19 [30]).
Ms Dowley’s evidence
Ms Dowley gave the following evidence at hearing, including during cross-examination by Ms Hinwood, of her personal observations on Mr Brown:
(a)The stress that Mr Brown experiences in his day to day struggles with Centrelink is making him ill.
(b)Mr Brown’s fibromyalgia is never stable, it keeps getting worse and his related problems, such as his irritable bowel, are very distressing for him.
(c)She does not understand why a decision-maker would award impairment points to Mr Brown for a condition and then a later decision-maker would not award points for the same condition.
(d)Mr Brown’s illness puts him under immense mental and physical pressure. He does not cope with this pressure and stress, he spends a lot of time sleeping and prefers to live his life away from other people. Mr Brown has become worse over the years in these respects.
(e)Mr Brown is not capable of work and she cannot understand why Centrelink will not accept this.
Ms Dowley also said that Mr Brown tells her on the telephone that his nights are ‘terrible’ and that following a bad night he will spend most of the next day sleeping. Ms Dowley said that this had been going on for quite a few years and is getting worse with the fibromyalgia.
Ms Dowley said that about two years ago Mr Brown’s ability to function was very poor and he was not well at all. Ms Dowley said that this has worsened quite a lot since then.
CONSIDERATION
Whether Mr Brown suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute that Mr Brown has suffered from impairments, and the Tribunal finds on the evidence that at the Qualification Date, Mr Brown suffered from widespread pain and a psychological condition, which impaired his ability to function. The Tribunal notes the available medical reports, letters, medical certificates, radiological reports and related correspondence in this regard as well as Mr Brown’s oral and written evidence.[6]
[6] Refer to A1, A2, A3, A4, A6 and R1, T1.
As such, the Tribunal finds that Mr Brown satisfies s 94(1)(a) of the Act.
Whether Mr Brown’s impairments receive an impairment rating of 20 points or more
It is not in dispute that Mr Brown has not participated in, and is yet to commence, a POS (refer to R2c and paragraph [40] above). Further, Mr Brown has not claimed, nor is there any evidence to suggest, that he has been specifically exempted from this requirement (refer to paragraph [20] above).
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of Mr Brown’s claimed conditions attracts 20 impairment points for that single condition. That is, the Tribunal must find that Mr Brown suffers from a severe impairment (refer to paragraphs [20] and [21](b) above).
Before considering whether Mr Brown suffers from a severe impairment, the Tribunal must first determine whether any of Mr Brown’s claimed conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
The Secretary’s position is that:
(a)Mr Brown’s mental health condition was FDTS as at the Qualification Date and ought to be assigned 10 points from Table 5 of the Impairment Tables. At the hearing the Secretary made additional comments that one may wish to consider whether in fact Mr Brown’s mental health condition was permanent at the Qualification Date, given Mr Brown’s insistence that all his conditions be considered part and parcel of his fibromyalgia. However, it did not resile from its position regarding the 10-point rating.[7]
(b)Mr Brown’s fibromyalgia and osteoarthritis conditions are fully diagnosed, but as at the Qualification Date, were not fully treated and fully stabilised. Therefore, these conditions cannot be assigned any impairment points.
(c)Based on Mr Brown’s evidence at hearing,[8] chronic fatigue syndrome is better considered as a symptom of his fibromyalgia and ought not to be addressed as a separate condition.[9]
(d)As a result of the above considerations, Mr Brown does not meet the second qualification criteria under s 94(1)(b) of the Act, that a person’s impairment is of 20 points or more under the Impairment Tables, and his application cannot succeed.
(e)In the alternative, if the Tribunal were to find Mr Brown achieved 20 impairment points, and if those points were assigned over more than one table, Mr Brown’s application fails in any event, as he did not have a CITW because:
(i)he has not completed at least 18 months in a POS in the three years prior to lodging his claim; and
(ii)the available JCA report indicates he is able to work at least 15 hours per week in suitable employment on a long-term basis (R1, T56, page 293).
[7] See transcript page 54 [45] and page 55 [5].
[8] The Tribunal presumes the Secretary is referring to Mr Brown’s evidence that his pain experience is widespread, and his conditions overlap in this regard. Refer to paragraphs [33](a) and [34] above and transcript, page 21 [30].
[9] See transcript, page 55 [25]. In its written submissions filed prior to the hearing, the Secretary had addressed Mr Brown’s chronic fatigue syndrome as a separate condition, albeit one where it was not reasonably possible to distinguish the degree to which it caused the reported functional impairment in and of itself (Refer to R2a, paragraph [48]).
Mr Brown’s position is essentially that he does not understand why:
(a)he was initially awarded 10 points for his fibromyalgia condition and zero points for his other conditions;
(b)upon review he was then awarded zero points for his fibromyalgia condition, 10 points for his mental health condition and zero points for his other conditions; and
(c)upon further review he was not assigned any impairment points at all.
Mr Brown’s main submission, as the Tribunal understands it, is that his claim is now mainly about his fibromyalgia and its associated symptoms. Mr Brown believes his functional impairment is such that he should be assigned 20 impairment points under the one table (being Table 1)[10] and ‘[w]ith fibromyalgia… and chronic fatigue, insomnia, irritable bowel disease, it’s all attached to the one disease’.[11]
[10] Transcript, page 20 and page 21 [20].
[11] Transcript, page 21 [45].
Fibromyalgia, osteoarthritis condition and chronic fatigue syndrome
The Centrelink medical certificate dated 31 January 2017 by Dr Reza Amirtouri, GP at Mundaring GP Super Clinic, refers to Mr Brown’s fibromyalgia condition as having an onset date of 1 January 2016 and being secondary to his osteoarthritis (R1, T12, page 123).
As to Mr Brown’s fibromyalgia condition, the report dated 26 October 2018 by Dr Jonitha Nadarajah, Pain Fellow at Royal Perth Hospital refers to his:
…underlying diagnosis of fibromyalgia… [h]e reports to have had this diagnosis for many years although how he came about this diagnosis it [sic] is quite unclear as he has not been seen by a previous pain specialist…
(R1, T51, page 276.)
The Introduction to Table 1 of the Impairment Tables states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner and that

self-report of symptoms alone is insufficient. The Introduction to Table 1 does not however, expressly require that the diagnosis be made by a medical specialist.
The Tribunal considers that the matters at paragraphs [52] to [54] above, when read together with Mr Brown’s evidence at paragraph [33](b) above, lead to the conclusion that Mr Brown’s fibromyalgia was fully diagnosed at the Qualification Date.
However, Mr Brown is yet to attend a pain clinic other than his initial consultation with

Dr Nadarajah on 26 October 2018, which was reportedly brief and for the purpose of devising a management plan for the future.
There is no evidence that Mr Brown ever participated in the plan devised by Dr Nadarajah, but rather Mr Brown gave evidence he was not satisfied with his visit (refer to paragraph [33](b) above) and did not explore the recommended treatment options. The Tribunal considers that it would have been reasonable for Mr Brown to have done so.[12] The Tribunal also considers that it would have been reasonable for Mr Brown to see a rheumatologist (understanding also that, on Mr Brown’s evidence, the hospital cancelled his appointment). In any event, his consultation with Dr Nadarajah took place several months after the Qualification Date.
[12] The Tribunal notes that generally, for a condition to be considered fully stabilised, a person is required to have undergone reasonable treatment, as defined (refer to ss 6(6) and 6(7) of the Determination).
Mr Brown then decided on his own accord to see Dr Corbett, who then took over his pain management, which from Mr Brown’s evidence appears to consist of analgesic medication.
Based on the matters at paragraphs [52] to [58] above, there is no basis upon which the Tribunal can find that Mr Brown’s fibromyalgia condition was fully treated and fully stabilised at the Qualification Date. Therefore, Mr Brown’s fibromyalgia condition is not permanent and cannot attract a rating under the Impairment Tables.
For completeness only, if Mr Brown’s fibromyalgia condition had been permanent at the Qualification Date, on the basis of Mr Brown’s evidence regarding his functional capabilities at the date of claim,[13] the condition would not have achieved a 20-point rating under a single table. Therefore, Mr Brown’s fibromyalgia would not be considered a severe impairment, nor would he satisfy the POS requirement in the Act.
[13] Refer to paragraph [36] above.
As to Mr Brown’s osteoarthritis, the Tribunal notes the available radiological reports evidencing degenerative osteoarthritic abnormalities involving his shoulders, hands, knees, left thumb and right hip (R1, T9, T11, T24–7, T37, T53, T60) and accepts, broadly, Mr Brown’s osteoarthritis diagnosis. The Tribunal accepts that Mr Brown has been suffering from osteoarthritis for many years.
The Tribunal notes Mr Brown’s evidence that he has never seen a rheumatologist, the main symptom resulting from his osteoarthritis is pain and that he cannot really distinguish between the pain caused by his fibromyalgia and the pain caused by his osteoarthritis as these two conditions overlap (refer to footnote 8 and paragraph [33](b) above).
Mr Brown’s main symptom of his osteoarthritis is widespread pain, which by his own evidence is indistinguishable from, and has been subsumed by, his overlapping fibromyalgia symptoms that he suffers. Therefore, for the same reasons as for Mr Brown’s fibromyalgia condition, his osteoarthritis condition cannot be considered fully treated or fully stabilised at the Qualification Date.[14]
[14] The Tribunal also refers to the authorities relied upon by the Secretary in R2a, paragraph [40], being Pignat and Secretary, Department of Social Services [2017] AATA 2745 and Flenady and Secretary, Department of Social Services [2019] AATA 2478.
For completeness, even if Mr Brown’s osteoarthritic condition was fully treated and fully stabilised at the Qualification Date, the fact that pain is the main symptom of both Mr Brown’s fibromyalgia and osteoarthritis means that it would be unreasonable (and unworkable) for the Tribunal to attempt to separate the functional impairment resulting from each respective condition.
There is limited medical information regarding Mr Brown’s chronic fatigue syndrome.
In a medical certificate dated 27 February 2017, Dr Srdjan Ilic (GP) stated that Mr Brown ‘[h]as been attending this practice complaining of Chronic Fatigue. He had blood tests done last time in 2014, and they were normal, and before it in 2010 and 2013…’ (T14).
In his letter dated 19 September 2018 (T49; A4), Dr Corbett states that Mr Brown’s fibromyalgia, chronic fatigue syndrome and anxiety and depression ‘effect [sic] his ability to function by causing pain and fatigue’ and ‘whilst these illnesses can be seen as discrete entities there can often be considerable overlap between them and it is not unusual for them to occur together’.
Again, for the same reasons as for Mr Brown’s fibromyalgia and osteoarthritis conditions, the Tribunal finds:
(a)Mr Brown’s chronic fatigue syndrome was not FDTS at the relevant date; and
(b)in any event, the Tribunal is unable to distinguish the degree to which Mr Brown’s chronic fatigue syndrome, of itself, causes the pain and other functional impairments that Mr Brown has reported.
Mental health condition
In relation to Mr Brown’s depression, the Secretary accepts that this condition was FDTS at the Qualification Date and ought to be assigned 10 points (and no more) under Table 5 of the Impairment Tables. At the hearing, the Secretary invited the Tribunal to consider whether Mr Brown’s mental health condition was in fact permanent at the Qualification Date given that:
(a)Mr Brown’s oral evidence indicated that there is a very clear relationship between his fibromyalgia and his mental health; and
(b)there is a possibility that Mr Brown’s mental health could significantly improve with treatment of his other physical conditions.
(Transcript, page 54 [35]–[45] and 55 [5]).

Having regard to the available medical evidence from his GP and clinical psychologist regarding diagnosis and symptoms (refer to R1, T13, T30 and T48), the Tribunal is satisfied that Mr Brown’s depression is permanent and attracts 10 impairment points under Table 5. For completeness, the Tribunal also finds that Mr Brown’s evidence regarding his ability to complete the activities listed as requirements for 20 points under Table 5 was such that the criteria was not met at the Qualification Date or at any other time (refer to paragraph [39] above).
In light of the Tribunal’s findings at paragraphs [46] to [70] above, it allocates a total of 10 impairment points to Mr Brown’s functional impairments. Therefore, Mr Brown fails to satisfy s 94(1)(b) of the Act and fails to qualify for the DSP.
Whether Mr Brown has a continuing inability to work
Based on paragraphs [46] to [70] above, the Tribunal finds that Mr Brown has 10 impairment points under Table 5 of the Impairment Tables and therefore fails to satisfy s 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Mr Brown had, at the Qualification Date, a CITW in order to satisfy s 94(1)(c)(i) of the Act.
For completeness only, if Mr Brown’s functional impairment ratings had been 20 points or more, across more than one impairment table,[15] for Mr Brown to be found to have a CITW he must have actively participated in a POS for a total of 18 months in the 36 months preceding the Qualification Date as well as be found unable to work at least 15 hours per week at the Qualification Date.
[15] Given that the Tribunal is of the view that there is no basis upon which it could find that Mr Brown could achieve 20 points under a single impairment table and hence be deemed to have a severe impairment.
The evidence before the Tribunal is that Mr Brown has never completed, or ever commenced participation in a POS (refer to R2c and paragraph [40] above).
As such, the Tribunal finds that Mr Brown has not met the POS requirement. The Tribunal also finds that, given that Mr Brown is yet to commence a POS, none of the exceptions set out in the POS Determination (at ss 7(3), 7(4) and 7(5)) apply to his circumstances.
Finally, the Tribunal notes the evidence that Mr Brown was assessed by the JCA as having a work capacity of 15 to 22 hours per week within two years with intervention (refer to paragraph [3] above). Therefore, Mr Brown’s claim would have failed regardless of whether he had met the POS requirement.
CONCLUSION
The Tribunal accepts that at the Qualification Date, Mr Brown suffered from medical conditions impacting on his health such that he satisfies s 94(1)(a) of the Act. However, the Tribunal has found that, while his mental health condition was permanent at the relevant date and attracts 10 impairment points, there is insufficient evidence to establish that his remaining claimed conditions were permanent at this time. Hence, none of Mr Brown’s remaining claimed conditions can be assigned any impairment points.
As Mr Brown’s claimed conditions do not achieve a total of 20 impairment points, he fails to satisfy the second qualification criteria under s 94(1)(b) of the Act and in turn fails to qualify for the DSP.
DECISION
The decision of the AAT1 dated 2 October 2019, which affirmed a decision of the Department dated 10 July 2019 to reject Mr Brown’s application for DSP lodged on 3 July 2018, is affirmed.

I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.........[Sgd]...............................................................
Associate
Dated: 9 June 2020

Date(s) of hearing: 13 May 2020

Applicant: By telephone

Counsel for the Respondent: Laura Hinwood

Solicitors for the Respondent: Services Australia

[2020] AATA 1652

9 June 2020

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Administrative Law

Statutory Interpretation

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Appeal

Judicial Review

Procedural Fairness

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Date(s) of hearing:	13 May 2020
Applicant:	By telephone
Counsel for the Respondent:	Laura Hinwood
Solicitors for the Respondent:	Services Australia