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

[2021] AATA 4607

Caelho and Secretary, Department of Social Services (Social services second review) [2021] AATA 4607 (13 December 2021)

Division:GENERAL DIVISION

File Numbers:         2021/2019 and 2021/2785

Re:Jose Coelho

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B. Pola

Date:13 December 2021

Place:Brisbane

1.Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 24 March 2021, with respect to the Applicant’s claim for the Disability Support Pension.

2.Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 27 April 2021, with respect to the Applicant’s claim for a mobility allowance.

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

Senior Member B. Pola

Catchwords

SOCIAL SECURITY – pensions, benefits, and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, fully treated, and fully stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant participated in a program of support – no participation exemption established – decision affirmed

SOCIAL SECURITY – mobility allowance – whether applicant unable to use public transport without substantial assistance – whether applicant engaged in voluntary work for at least 15 hours per week on a continuing basis or was undertaking job search activities – contradictory medical evidence regarding ability to use public transport – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration Act) 1999 (Cth)

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Senior Member B. Pola

13 December 2021

BACKGROUND

2021/2019 – Review of claim for the Disability Support Pension

1.       On 6 October 2020, the Applicant, Mr Jose Coelho, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency’)[1].

[1]     Exhibit R1, Section 37 T Documents (2021/2019), T53, pages 145 to 159.

2.       On 13 November 2020, the Agency sent a letter to the Applicant advising him that his application for the DSP had been rejected[2].

[2]     Ibid, T59, pages 180 to 181.

3.       A decision to reject the Applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on  15 January 2021[3].

[3]     Ibid, T68, pages 205 to 209.

4.       The Applicant applied to the to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) to review the ARO’s decision to reject the Applicant’s claim for the DSP. On         24 March 2021, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[4].

[4]     Ibid, T2, pages 6 to 10.

5.       The Applicant applied to the General Division of the Tribunal for a second review of this decision on 29 March 2021[5].

[5]     Ibid, T1, pages 1 to 5.

2021/2785 – Review of claim for a mobility allowance

6.       On 20 November 2020, the Applicant, Mr Jose Coelho, lodged a claim for a mobility allowance with the Agency[6].

[6]     Exhibit R6, Section 37 T Documents (2021/2785), T17, pages 89 to 101.

7.       On 23 November 2020, the Agency sent a letter to the Applicant advising them that his application for the DSP had been rejected[7].

[7]     Ibid, T18, pages 102 to 103.

8.       A decision to reject the Applicant’s claim for the DSP was affirmed by an ARO after an internal review by the Agency on 22 February 2021[8].

[8]     Ibid, T26, pages 117 to 122.

9.       The Applicant applied to the to the SSCSD of the Tribunal to review the ARO’s decision to reject the Applicant’s claim for the DSP. On 27 April 2021, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[9].

[9]     Ibid, T2, pages 8 to 13.

10.     The Applicant applied to the General Division of the Tribunal for a second review of this decision on 3 May 2021[10].

[10]    Ibid, T1, pages 1 to 7.

11.     The Tribunal will review both the Applicant’s claim for the DSP made on 6 October 2020 and his claim for the mobility allowance on 20 November 2020 in this decision.

JURISDICTION

2021/2019 – Review of claim for the Disability Support Pension

12.     This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.

13.     The Applicant’s claim of 6 October 2020 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO.

14.     The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published reasons on 29 March 2021.

15.     In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to review the Applicant’s DSP claim of 6 October 2021. 

2021/2785 – Review of claim for a mobility allowance

16.     This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for a mobility allowance.

17.     The Applicant’s claim of 20 November 2020 has been reviewed in accordance with section 135 of the Administration Act by an ARO.

18.     The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published reasons on 27 April 2021.

19.     In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s mobility allowance claim of 20 November 2020.

ISSUES

2021/2019 – Review of claim for the Disability Support Pension

20.     The issue before the Tribunal is whether the Applicant was qualified to receive the DSP in relation to his claim lodged on 6 October 2020, with the relevant qualification period ending 13 weeks later, on 5 January 2021[11]. The issues for the Tribunal to resolve in respect of the Applicant’s claim for the DSP are:

(a)Whether the Applicant had impairments during the Qualification Period, in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as ‘the Act’)?

(b)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (herein referred to as ‘the Determination’) within the Qualification Period, for the purpose of section 94(1)(b) of the Act? 

(i)If so, did the Applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of satisfying section 94(1)(c) of the Act?

[11]    The Qualification Period is discussed in later paragraphs of this Decision.

2021/2785 – Review of claim for a mobility allowance

21.     The issue before the Tribunal with respect to the review of the Applicant’s claim for a mobility allowance is whether the Applicant met the relevant requirements, pursuant to sections 1035 and 1035A of the Act.

RELEVANT LEGISLATIVE PROVISIONS

Disability Support Pension

22.     The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

94      Qualification for disability support pension

(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;

(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

…

23.     To be medically qualified for a DSP, a person must therefore have a physical, intellectual, or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables and a continuing inability to work which, in some circumstances, includes participation in a program of support (herein referred to as ‘PoS’).

24.     Section 26(1) of the Act provides that, “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

25.     It is the Tribunal’s role to stand in the shoes of the original decision-maker[12] and determine whether the decision was the correct or preferable one based on the material before it[13].

[12]    Faulkner and Comcare [2007] AATA 1541 at [27].

[13]    Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

26.     Given this, the Tribunal must make its decision in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (herein referred to as the “Determination”) which came into effect on        1 January 2012. The following paragraphs outline key sections of the Determination.

27.     Section 6 of the Determination provides that, “[t]he impairment of a person must 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”[14]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[15].

[14]    Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, section 6(1).

[15] Ibid, section 6(2).

28.     An Impairment Rating may only be assigned to an impairment if[16]:

(a)the person’s condition causing the impairment is permanent; and

(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

[16] Ibid, section 6(3).

29. Further, for a condition to be considered permanent, pursuant section 6(3)(a) of the Determination, the condition must also[17]:

(a)be fully diagnosed by an appropriately qualified medical practitioner; and

(b)be fully treated; and

(c)be fully stabilised; and

(d)be more likely than not, in light of available evidence, to persist for more than two years.

[17] Ibid, section 6(4).

30.     When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[18]:

(a) whether there is corroborating evidence of the condition; and

(b)what treatment or rehabilitation has occurred in relation to the condition; and

(c)whether treatment is continuing or is planned in the next two years.

[18] Ibid, section 6(5).

31.     A condition is considered fully stabilised if[19]:

(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

(b)the person has not undertaken reasonable treatment for the condition and:

(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

[19] Ibid, section 6(6).

32.     Reasonable treatment is a treatment that[20]:

(a)is available at a location reasonably accessible to the person; and

(b)is at a reasonable cost; and

(c)can reliably be expected to result in a substantial improvement in functional           capacity; and

(d)is regularly undertaken or performed; and

(e)has a high success rate; and

(f)carries a low risk to the person.

[20] Ibid, section 6(7).

33.     Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

34.     Sections 7 to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.

35.     In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

36.     While section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

Continuing inability to work

37.     As previously detailed in paragraph 22 of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act requires that:

(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—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.

[Bolding in original]

38.     A severe impairment is defined in section 94(3B) of the Act:

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.

[Bolding in original]

39.     Section 94(3C) of the Act states that:

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.

[Bolding in original]

40.     The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the “Participation Determination”) came into effect on 3 January 2015 and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a PoS.

Mobility Allowance

41.     With respect to the relevant legislation stipulating the requirements for a person to be eligible for a mobility allowance, the Tribunal has relevantly transposed sections 1035A(1) and (6) of the Act, which provide:

General principle

(1)A person is qualified for a mobility allowance at the rate specified in subsection 1044(1A) if:

(a)the person is a handicapped person; and

(b)the Secretary is of the opinion that the person is unable to use public transport without substantial assistance (either permanently or for an extended period) due to the person’s physical or mental disability; and

(c)the person is an Australian resident; and

(d)the person satisfies one or more of subsections (2) to (9).

…

Jobseeker payment, youth allowance or parenting payment recipients

(6)A person satisfies this subsection if:

(a)the person:

(i)is receiving jobseeker payment; or

(ii)is receiving youth allowance, but is not undertaking full‑time study and is not a new apprentice; or

(iii)is receiving parenting payment; and

(b)one or both of the following applies to the person:

(i)the person is working for at least 15 hours per week on wages that are at or above the relevant minimum wage;

(ii)the person is undertaking job search activities under an agreement between the Secretary and the person, or an employment pathway plan that is in force in relation to the person, for work of at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(c)if the person is working as mentioned in subparagraph (b)(i)—the person is required to travel to and from the person’s home for the purpose of performing the work; and

(d)if the person is undertaking job search activities as mentioned in subparagraph (b)(ii)—the person is required to travel to and from the person’s home for the purpose of undertaking those activities.

Note 1:For undertaking full‑time study see section 541B.

Note 2:For new apprentice see subsection 23(1). …

42.     Section 1046 of the Act provides that in certain circumstances a person will be paid a mobility allowance for a grace period of 12 weeks after they have ceased the specified activities.

43.     Relevant policy is contained in the Guide to Social Security Law (herein referred to as the ‘Guide’) which should be followed unless there is a cogent reason to depart from stated policy[21].

[21]    Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419.

Disability Support Pension – Qualification Period

44.     Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[22].

[22]    Social Security (Administration Act) 1999 (Cth), Part 2, clause 4(1)(d).

45.     For the purposes of this decision, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 6 October 2020[23], and concluded 13 weeks after that day on     5 January 2021.

[23]    Exhibit R1, Section 37 T Documents (2021/2019), T53, pages 145 to 159.

46.     This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, only if it is referrable to the Applicant’s condition during the Qualification Period[24].

[24]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

CONSIDERATION  

47.     The application was heard in Brisbane via telephone on 28 October 2021, the Applicant was self-represented and the Respondent was represented by Mr Andrew Summers from Services Australia. All parties appeared via telephone. The Tribunal has given consideration to submitted evidence entered into the Exhibit Register at the commencement of the hearing (refer to Annexure 1 at the end of these reasons), in addition to oral evidence from the Applicant, and the Respondent.

48.     The Tribunal also observes that some evidenced filed with respect to the Applicant’s mobility allowance also relates to the Applicant’s claim for the DSP. The Tribunal raised this issue with the Respondent during the course of the hearing, and the Respondent did not object to the Tribunal relying on evidence submitted with respect to the Applicant’s claim for the mobility allowance being used against both the applications[25].

[25]   Transcript 28 October 2021, page 40, lines 10 to 21.

49.     The Tribunal makes a general observation that a with respect to self-reported evidence of the Applicant; the introduction to each Impairment Table within the Determination stipulates that, “self-reported symptoms alone is insufficient”; and that, “there must be corroborative evidence of the person’s impairment”. Further, sub-paragraph 8(1) of the Determination states that, “… Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence…”.

2021/2019 – Review of claim for the Disability Support Pension

Section 94(1)(a) of the Act (Did the person have an impairment prior to or during the Qualification Period?)

50. Upon reflection of the medical evidence, the Tribunal is of the view the Applicant had impairments prior to the Qualification Period of this application, and therefore satisfies section 94(1)(a) of the Act. The Tribunal observes the Respondent was also of this view[26]. The Tribunal identifies the following relevant impairments to this application:

(a)Shoulder and upper arm disorders;

(b)Spinal disorder;

(c)Visual impairment;

(d)Bilateral hearing loss; and

(e)Adjustment disorder.

[26]    Exhibit R2, Respondent Statement of Facts, Issues and Contentions, pages 7 to 8, paragraph 35.

Section 94(1)(b) of the Act (Is the person’s impairment 20 points or more under the Impairment Tables?)

51.     The Tribunal will now consider each impairment identified, with respect to the application of section 94(1)(b) of the Act and whether they meet the relevant provisions contained within the Determination.

(a) Shoulder and upper arm disorders

52.     With respect to the Applicant’s shoulder and upper arm disorders, the Tribunal observes the Applicant was involved in a work-related accident in December 2016, when the Applicant was travelling to work on his bicycle. An independent medico-legal report from August 2019 describes the accident where the Applicant had sought to brake to avoid a collision. The report, authored by Dr Michael Fan (consultant general and colorectal surgeon) states his brakes had locked up his wheels and caused the bicycle to flip forward with the Applicant landing heavily on the ground with outstretched hands and elbows, injuring his right shoulder as a result[27].

[27]    Exhibit R1, Section 37 T Documents (2021/2019), T33, page 100.

53.     This report states that the Applicant’s injuries (diagnosed in this report as, “Rockwood Grade 3 acromioclavicular dislocation/disruption”) were initially treated with physiotherapy, however as there was no improvement, an orthopaedic surgeon recommended surgery. The Report states surgery was undertaken in February 2017 under a workers compensation claim. The Applicant’s surgery was described as, “… an open reduction and internal fixation of distal clavicle as well as excision of the distal clavicle to restore the joint”[28].

[28]    Ibid.

54.     Following surgery and rehabilitation, this report states the Applicant developed a secondary bilateral wrist tendonitis and left elbow tendonitis, with a recovery complicated by bilateral hand swelling and pain, as well as elbow pain. The Tribunal observes that the opinion contained in this report was diagnosed from clinical findings, including x-ray confirmation at the time of the injury, and an MRI report[29]. Further, this report provided an opinion as to the assessed functional impairment of the Applicant as follows[30]:

[29]    Ibid, page 103.

[30]    Ibid, page 109.

Injury/Condition	Percentage of whole person impairment attributable to the injury/condition
Right elbow	6%
Right shoulder	8%
Right hand	14%
Left hand	7%
Scarring	1%

55.     The Tribunal observes that medical imaging reports were included as part of the evidence, with respect to the Applicant’s shoulder and upper arm disorders from August 2019, which support the medico-legal report from August 2019, with the following findings[31]:

[31]    Exhibit R1, Section 37 T Documents (2021/2019), T34, page 110.

… FINDINGS:

Metal artefact from previous AC joint reconstruction.

lnsertional tendinosis at the supraspinatus-infrasplnatus interface.

Possible minor bursal surtace fraying at the critical zone.

No high-grade cuff tear.

No cuff muscle oedema or atrophy.

Long head of bleeps tendon is satisfactorily positioned in the bicipital groove and attaches to the supraglenoid tubercle/superior labrum.

No discrete labral tear, glenohumeral joint effusion or high-grade chondropathy.

No significant thickening or fluid in the subacromial/subdeltoid bursa…

56.     A letter from a consultant orthopaedic surgeon, dated 13 August 2019, diagnosed the Applicant with, “… Right shoulder subacrornial impingement. Previous right ACJ reconstruction which remains intact. Recent MRI right shoulder confirms some lateral impingement but completely intact rotator cuff…”[32]. The consultant orthopaedic surgeon recommended the following treatment for the Applicant, “… Please help with a rotator cuff and deltoid muscle strengthening programme with capsular stretches and scapular stabilisation, of the right shoulder…”.

[32]    Ibid, T37, page 117.

57.     A further letter from the same consultant orthopaedic surgeon dated 16 September 2019, recommended ongoing physiotherapy for the Applicant’s right shoulder. The letter further stated that the Applicant continued to suffer, “flexor tendon tenosynovitis in several of the fingers of his hands”, and that if his fingers continued to catch or get stuck, the Applicant may require a surgical procedure to release the tendon to treat this condition. The consultant orthopaedic surgeon stated that if the condition continued, the Applicant should go back to his clinic for a further consultation to discuss surgery for his hands[33].

[33]    Ibid, T41, page 121.

58.     There is a letter from a specialist sport and exercise physician dated 16 August 2019, which describes the treatment they had been assisting the Applicant. The letter states the following with respect to the Applicant’s treatment and pain, “… Jose is troubled by high-grade chronic right elbow common extensor and left elbow common flaxor origin tendinopathies. They are causing right bilateral and left medial elbow pain respectively. Jose’s pain has flared over the last 2 days requiring the use of a simple analgesic and non-steroidal anti-inflammatory medication. This may make repetitive lifting for work and day to day purposes difficult…”[34].

[34]    Ibid, T38, page 118.

59.     The Tribunal is satisfied that the Applicant’s shoulder and upper arm disorders were fully diagnosed as at the Qualification Period for this application, based on the diagnosis outlined in the above reasons, supported by the medical imaging undertaken.

60.     In assessing whether the Applicant’s condition would be considered fully treated and fully stabilised at the time of the Qualification Period, the Tribunal observes a Health Professional Advisory Unit Report, dated 21 July 2021, undertaken by a suitably qualified medical advisor. The Tribunal notes this advisor did not personally examine or interview the Applicant but reviewed the available medical evidence with respect to the Applicant conditions as at the date of claim for the DSP, with reference to the Qualification Period. The Tribunal notes the advisor’s findings with respect to the Applicant’s shoulder and upper arm disorders[35]:

Further treatment of either condition was considered unlikely to result in a significant improvement in symptoms of pain and loss of range of movement (ST1). It follows therefore in my opinion that as of the date of DSP application (6/10/2020) that Mr Coelho’s upper limb condition could be considered Fully, Diagnosed, Treated and Stabilised (FDTS). This is because as of that date further treatment of this condition within 2 years of the DSP claim was unlikely to result in a significant improvement in impairment from that condition. An impairment rating of 5 points Table 2 (Upper Limb function) can be allocated.

[35]    Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Attachment A, page 2.

61.     The Tribunal accepts the opinion expressed by the advisor in the Health Professional Advisory Unit Report, dated 21 July 2021, with respect to the Applicant’s condition being fully treated and fully stabilised at the time of the Applicant’s claim. Additionally, there is supporting evidence to suggest the Applicant has engaged in appropriate treatment (with respect to physiotherapy undertaken).

62.     Given that the condition is considered permanent, it is appropriate to assess the functional impact with regard to the relevant Impairment Table in the Determination – Table 2 – Upper Limb Function. With respect to the available corroborative medical evidence of the Applicant’s impairment, the Tribunal notes the following:

(a)A letter from the Applicant’s treating General Practitioner (herein referred to as ‘Dr G’), dated 5 July 2019, who stated, “… He has persistent pain in both elbows. L>R esp when keyboarding and lifting luggage (frequent work-related travel). He had a workcover injury [sic]in 2016 and has reports from same.. He has ongoing issues with both arms…”[36].

(b)A letter from the Applicant’s treating sport and exercise physician, dated  15 November 2019, which states, “… Jose is finding his work duties, including typing and lifting bags, are flaring up his right and left elbow pains and interfering with his ability to adequately rehabilitate his injuries. Jose is going to benefit from a reduction in his work duties including reducing the amount of lifting and typing he is performing…”[37].

(c)A medical certificate from Dr G, dated 24 June 2020, which described the Applicant’s symptoms in relation to this condition as, “… Persistent pain in R shoulder permanent reduction mvt [movement] range…”[Tribunal insertion][38]. Dr G further stated, “… Retrain for work not involving bending, lifting, above shoulder work or prolonged computer keying or repetitive hand movement…”.

(d)A medical certificate from Dr G, dated 25 August 2020, which described the Applicant’s symptoms in relation to this condition as, “… Persistent pain [in] R shoulder permanent reduction mvt [movement] range…”[Tribunal insertion][39].

[36]    Exhibit R1, Section 37 T Documents (2021/2019), T70, page 217.

[37]    Ibid, T42, page 122.

[38]    Ibid, T47, pages 128 to 129.

[39]    Ibid, T49, page 136.

63.     The Tribunal accepts that there is a level of functional impairment suffered by the Applicant as a result of his shoulder and upper arm disorders, and when reflecting on the corroborative medical evidence and Table 2 – Upper Limb Function; the Tribunal is of the view that the Applicant’s condition meets the descriptors for a mild functional impact, which the Tribunal transposes:

Points

Descriptors

5

There is a mild functional impact on activities using hands or arms.

(1)   The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)     handling very small objects (e.g. coins);

(c)     doing up buttons;

(d)    reaching up or out to pick up objects.

64.     The corroborative medical evidence before the Tribunal suggests the Applicant has difficulty in carrying luggage (per descriptor (a)) and has difficulty lifting above his shoulder (per descriptor (d)). The Tribunal notes that during the course of the hearing, the Applicant stated that he felt the questions asked of him by relevant assessors, particularly that during a Job Capacity Assessment report of 2 November 2020, did not give context to what he described as his ‘functional abilities’. The Tribunal observes the Applicant told the assessor in this report that[40]:

… The client reported typing results in nodules, and fingers become inflamed and become more tender; has tolerance for about 45 minutes of keyboard use and his maximum limit is about 2 hours of computer use; unable to lift his arm above shoulder height and has to lower his head to his hands for dressing and showering due to movement restriction; can have difficulty with fine motor dexterity (eg, doing up buttons and shoelaces) if he has exacerbated his symptoms with repetitive or sustained typing…

[40]    Ibid, T58, page 174.

65.     During the course of the hearing, the Applicant told the Tribunal that he could manage typing with the use of pain killers, and that he used the assistance of a speech recognition system that converted his speech to text[41]. With respect to the Applicant’s use of pain medication, the Tribunal observes that the Applicant’s Pharmaceutical Benefit Scheme patient summary for the period of March 2017 to October 2020 does not indicate that he had been prescribed any pain medication[42]. The Tribunal observes the introduction to the Impairment Tables is clear, that, “Self-report of symptoms alone is insufficient…There must be corroborating evidence of the person’s impairment…”. The Tribunal is of the view that the available corroborative medical evidence supports a mild functional impact on activities using hands or arms. 

[41]    Transcript (28 October 2021), page 23, lines 7 to 18.

[42]    Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Attachment B, pages 59 to 61.

66.     The Tribunal is not satisfied that the corroborative medical evidence indicates the Applicant has a moderate functional impact, in accordance with the relevant descriptors in the next category of functional impact. The Tribunal is of the view that the Applicant’s self-reported functional ability, recorded in the Job Capacity Assessment report of 2 November 2020, supports such a finding.

67.     The Tribunal finds that the appropriate Impairment Rating in accordance with Table 2 – Upper Limb Function, would be a mild Impairment Rating, attracting 5 points.

(b) Spinal disorder

68.     With respect to the Applicant’s spinal disorder condition, the Tribunal notes the following corroborative medical evidence:

(a)An MRI report from 19 October 2020 undertaken by a radiologist which made the following finding with respect to the Applicant, “… No significant disc bulge or annular tear is identified to account for the patient’s radiculopathy. Mild facet arthropathy at L4/L5 and L5/S1…”[43]. The Tribunal notes that similar findings were made in imaging undertaken on the Applicant on 27 October 2020, which found, “… The previously demonstrated radiolucent lesion within the sacrum on the left at the S3 level is stable in appearance. Features of a large geode. Lumbar spondylosis with disc pathology and facet arthropathy at several levels as described. Left posterolateral building disc at the L4/L5 level contacting the exiting left L4 nerve root. Posterior disc protrusion at the L5/S1 level and contacting the traversing S1 nerve roots”[44].

(b)A Job Capacity Assessment Report from 12 November 2020 stated that the Applicant reported consulting with a neurosurgeon, and reports that following from the Applicant, “… Dr David Johnson who recommended spinal injection and he experienced reaction to this; advised that spinal fusion may be a treatment option however the client indicated that Dr Johnson also indicated that it would be unlikely to resolve all his symptoms due to multi-level degeneration. As a result, the client indicated he has not pursued any further specialist intervention/s; Dr Johnson had recommended engagement in functional movement program run at his clinic…”[45].

(c)There are several medical certificates and a questionnaire from the Applicant’s treating General Practitioner, Dr G, which the Tribunal refers:

(i)A Medical Certificate from 24 June 2020 which diagnosed the Applicant with, “lumbar spondylosis facet arthropathy disc protrusion”, with an onset from 2017. It noted the Applicant was suffering from, “pain poor sleep due to pain restricted lifting capacity”, with past, current, and planned treatment including, “physiotherapy and analgesia”[46].

(ii)A Medical Certificate from 25 August 2020 which diagnosed the Applicant with, “lumbar spondylosis facet arthropathy disc protrusion”, with an onset from 2017. It also noted the Applicant was suffering from, “pain poor sleep due to pain restricted lifting”, with past, current, and planned treatment including, “physio/analgesia”[47].

(iii)A questionnaire completed on 10 December 2020, which stated, “… pain in R leg caused by lower back pathology impairs his ability to walk further than 400 meters due to pain. Only able to sit for 45 minutes and standing restriction is 45 minutes…He drives for maximum of 45 minutes before stopping…This condition has been present since 2016 with symptoms persisting despite adequate therapies…”[48].

[43]    Exhibit R1, Section 37 T Documents (2021/2019), T55, pages 163 to 164.

[44]    Ibid, T57, page 167.

[45]    Ibid, T58, page 170.

[46]     Ibid, T47, page 128.

[47]    Ibid, T49, page 136.

[48]    Ibid, T65, page 194 to 195.

69.     The Tribunal observes that Dr G submitted a report, dated 9 March 2021, which post-dates the Qualification Period for this application but is referrable to the Applicant’s condition prior to the Qualification Period. Dr G gave the following assessment of the Applicant’s functional capacity as of 6 October 2020 (which the Tribunal observes contradicts the earlier opinion provided in the questionnaire from 10 December 2020)[49]:

… is unable to sit for > 10 mins without significant increase in lower back pain. See attached Medical Report dated 19 November 2020. This places him in a severe functional impact category (Social Security Tables) 20 points impairment…

[49]    Ibid, T76, page 261.

70.     The Tribunal is reluctant to accept the contradictory opinion of Dr G offered in the report of 9 March 2021 and affords this evidence little weight. The evidence of this report stands in contrast to the earlier questionnaire of 10 December 2020 completed by Dr G, and does not accord with the Applicant’s reported evidence by the Job Capacity Assessor contained in the Job Capacity Assessment Report of 12 November 2020, where the Applicant is recorded as stating:

… The client reported symptoms are exacerbated by travelling in the car for greater than 1 hour which then impacts on his sleep; has to use a cushion to support his lower back when sitting on certain chairs; able to manage laundry task by using hangers; can ride his bicycle to the shops if less than 1km and can undertake small amounts of grocery shopping…

71.     The Tribunal accepts the Applicant’s spinal disorder was fully diagnosed as at the time of their claim for the DSP, based on the diagnosis offered by Dr G in medical certificates of 24 June 2020, and 25 August 2020, supported by the diagnostic imaging undertaken in October 2020. Further, the Tribunal accepts that the Applicant’s spinal disorder was fully treated and fully stabilised at the time of his claim for the DSP, with reference to the Applicant’s efforts to undergo physiotherapy and analgesic pain management.

72.     Additionally, the Tribunal observes the Applicant has obtained advice from a neurosurgeon with respect to surgical treatments, noting that the recommended treatment the Applicant reported is consistent with the medical certificates of Dr G dated 24 June 2020 and                 25 August 2020, respectively. Further, to support the contention that the Applicant’s spinal disorder is considered fully treated and fully stabilised, the opinion of Dr G in the questionnaire of 10 December 2020 stated that the Applicant continued to experience the symptoms associated with his spinal disorder, despite adequate therapies.

73.     The Tribunal is satisfied the Applicant’s spinal disorder is a permanent condition and is likely to affect the Applicant for more than two years (supported by the opinion of Dr G in her medical certificates dated 24 June 2020 and 25 August 2020). As such, it is appropriate to assess the level of functional impairment under the appropriate impairment table which is Table 4 – Spinal Function within the Determination. The Tribunal is of the view that the that the corroborative medical evidence indicates the Applicant meets the descriptors for a mild functional impact, which the Tribunal transposes:

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1)    The person has some difficulty in:

(a)   activities over head height (e.g. activities requiring the person to look upwards); or

(b)     bending to knee level and straightening up again without difficulty; or

(c)     turning their trunk or moving their head (e.g. to look to the sides or upwards).

74.     The Tribunal is of the view that the corroborative medical evidence of Dr G in the medical certificates dated 24 June 2020 and 25 August 2020 indicate the Applicant had a restricted lifting capacity and should retrain for work which requires the Applicant not to bend. The Tribunal is satisfied the Applicant met descriptor 1(b) in the above Impairment Table.

75.     The Tribunal is not satisfied that the corroborative medical evidence indicates the Applicant has a moderate functional impact, in accordance with the relevant descriptors in the next category of functional impact.

76.     The Tribunal finds that the appropriate Impairment Rating in accordance with Table 4 – Spinal Function, would be a mild Impairment Rating, attracting 5 points.

(c) Visual impairment

77.     Corroborative medical evidence before the Tribunal has been submitted from two optometrists. The first letter, dated 20 November 2020, stated that the Applicant[50]:

… has had keratoconus since childhood which is an eye disease that affects vision and progresses with age until around the age of 40. Jose has had no change in his keratoconus but has become slightly more longsighted today which is causing him to have eyestrain and fatigue within 30 minutes of computer use and 1 hour of driving. With updated spectacles this should be mostly improved but he will continue to suffer from eyestrain and fatigue when typing on computers and driving…

… Jose passes the driving standard for a private licence (spectacles must be worn) but not a commercial licence as his weaker eye is seeing slightly worse than 6/18. He is able to read N6 which includes almost everything except very fine print. Jose seems to have adequate binocular vision function but may be fatiguing quicker when doing long periods of intense visual activities. I plan to review Jose in 12 months for another comprehensive eye examination… 

[50]    Ibid, T62, page 187.

78.     The second letter is dated 9 December 2020, and diagnosed the Applicant with, “… Right eye irregular astigmatism? keratoconus… Both eyes amblyopia… High hyperopia and astigmatism… Spectacle corrected visual acuity right eye 6/18, left eye 6/6-…”[51]. The letter went on to state that the Applicant’s conditions with respect to his eyes appear stable, that he met driving standards for a private licence, and that his vision should be adequate for most activities. The letter stated that the Applicant had complained that he found his vision fatigues after using a computer or driving for more than an hour, however the optometrist undertaking the assessment stated, “… I do not have a good explanation for this but I have told him to use lubricant drops as needed to see if that helps…”.

[51]    Ibid, T64, page 193.

79.     The Tribunal is satisfied the Applicant’s visual impairment was fully diagnosed, fully treated and fully stabilised at the time of his claim for the DSP. As the condition is considered permanent, it is appropriate to assess the level of functional impairment under the appropriate impairment table which is Table 12 – Visual Function within the Determination. The Tribunal is of the view that the submitted corroborative medical evidence referred to above is consistent with the descriptors for no functional impact, which the Tribunal transposes:

Points

Descriptors

0

There is no functional impact on activities involving visual function.

(1)   The person has no difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn and all of the following apply:

(a)     the person has no difficulties seeing the print in a newspaper

       or magazine;

(b)    the person has no difficulties seeing road signs, street signs

       or bus numbers;

(c)    the person has a full field of vision, that is, they do not have

       any problems with peripheral vision (being aware of objects

       or movement to the sides, above or below, when looking     

    straight ahead) and no patches or areas of lost vision;

(d)    the person can usually perform all day to day functions

       involving the eyes without discomfort (e.g. no watering of the

       eyes, difficulty opening the eyes, or difficulty moving the    
       eyes) and is able to tolerate normal light levels.

80.     The corroborative medical evidence outlined by the Tribunal confirms the Applicant’s vision has been corrected with glasses which, “includes almost everything except very fine print” and that he meets the standard to be able to drive on a private licence (not commercial). With respect to whether the Applicant meets the mild descriptor in the next category of functional impact, the Tribunal concurs with the assessment of the Health Professional Advisory Unit Report, dated 21 July 2021, which found the following with respect to the Applicant’s visual impairment[52]:

…There is no mention in the records reviewed that Mr Coelho has difficulty seeing fine print in newspapers or magazines. Optometrist Mr Chan on 20/11/2020 (i.e. within the qualification period) found that with correction of vision with glasses, Mr Coelho was able to read N6 (i.e. near vision) (T62). This means he can read normal near vision of small fine print in newspapers or magazines. He therefore does not fulfil descriptor (a) for 5 points Table 12. He also does not fulfil descriptor (b) as he is noted to have corrected vision in both eyes of 6/7.5 which is well within the acceptable vision limits to drive a vehicle (usually considered to be 6/12). There is no record of any visual field defect to prevent Mr Coelho from having difficulty seeing objects to the side or centre of his field of vision. Descriptor (c) is therefore not met for 5 points Table 12. Whilst Mr Coelho complains of some fatigue after driving for 30 minutes it is of note that the Ophthalmologist (Dr McKee) was unsure why this was happening(T64). In my opinion even if it was considered fatigue was due to ongoing eye strain, this could not be considered to be ongoing eye discomfort when performing day to day activities and so descriptor (d) is not met. Descriptor (e) is not met for 5 points Table 12 as although Mr Coelho does have decreased vision in his right eye, he still does have functional vision of 6/18 in this eye…

[52]    Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Attachment A, page 9.

81.     Accordingly, the Tribunal finds that the appropriate Impairment Rating in accordance with Table 12 – Visual Function, would be no functional impact, which attracts an Impairment Rating of 0 points.

(d) Bilateral hearing loss

82.     Corroborative medical evidence from an audiologist, in a letter dated 9 December 2020, confirms the Applicant presented with, “…mild to moderate sensorial hearing loss in his left ear and a mild to severe sensorial loss in his right ear…”[53]. The audiologist further confirmed that the Applicant had been fitted with a receiver in the canal hearing aid for his right ear, and the audiologist reported that, “…With amplification, his hearing has improved and his condition is now stable… The results also showed that he still has limitations in terms of effective communication because of his limited hearing abilities particularly with regards to high frequency sounds (which make speech clearer) evident in group conversations, understanding speech on the TV clearly and noisy environments…”.

[53]    Exhibit R1, Section 37 T Documents (2021/2019), T69, page 211.

83.     The Tribunal is satisfied that the Applicant’s bilateral hearing loss was fully diagnosed, fully treated, and fully stabilised at the time of his application for the DSP, as there is corroborative medical evidence from an audiologist confirming the diagnosed condition is now treated and stabilised. As the condition is considered permanent, it is appropriate to assess the level of functional impairment under the appropriate Impairment Table, which is Table 11 – Hearing and other Functions of the Ear within the Determination. The Tribunal is of the view that the audiologist’s opinion in the letter of 9 December 2020 meets the descriptors for a mild functional impact, which the Tribunal transposes:

Points

Descriptors

5

There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.

(1)   The person:

(a)   has some difficulty hearing a conversation at an average  

      volume in a room with background noise (e.g. other people talking quietly in the background); and

(b)   may use a hearing aid, cochlear implant or other device; and

(c)   has difficulty hearing conversations when using a standard

      telephone, particularly in a room with background noise; or

(2)   The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere's disease, or tinnitus).

84.     The Tribunal is of the view that the audiologist’s opinion in the letter of 9 December 2020 (transposed in the above reasons), is consistent with the descriptors in (1)(a), (b) and (c) in the transposed impairment table. The Tribunal is not satisfied that the corroborative medical evidence indicates the Applicant has a moderate functional impact, in accordance with the relevant descriptors in the next category of functional impact.

85.     The Tribunal finds that the appropriate Impairment Rating in accordance with Table 11 – Hearing and other Functions of the Ear, would be a mild Impairment Rating, attracting 5 points.

(e) Adjustment disorder 

86.     There is a report (dated 25 January 2019) before the Tribunal, undertaken by the Medical Assessment Tribunal (Queensland), with respect to the Applicant having suffered psychological impairments as a result of a workplace accident which occurred in early 2016[54]. The Tribunal notes the author of this report is a psychiatrist (Dr J Matthew). The report gave the following opinion after a clinical evaluation[55]:

… The tribunal accepts that in the aftermath of the work related injury, Mr Coelho developed an Adjustment Disorder. The tribunal considers that the more appropriate diagnosis is an Adjustment Disorder with Mixed Anxiety and Depressed Mood, reflecting the claimant's report of his progress…

[54]    Ibid, T29, pages 85 to 93.

[55]    Ibid, page 89.

87.     There is a letter before the Tribunal from a clinical psychologist and clinical neuropsychologist, Dr Libera, dated 24 November 2019, which confirms the Applicant had been a patient since early 2016[56]. The Pharmaceutical Benefits Scheme Patient Summary records of the Applicant confirm that between March 2019 to September 2020, the Applicant has been regularly prescribed Sertraline (or Zoloft)[57].

[56]    Ibid, T43, page 123.

[57]    Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Attachment B, pages 59 to 60.

88.     The Job Capacity Assessment Report of 12 November 2020 assessed the Applicant’s Adjustment Disorder as, “… permanent and fully diagnosed, treated and stabilised. There is evidence of diagnosis by a psychiatrist, and engagement in psychotherapy and medication treatment. It is anticipated that ongoing functional impacts are likely to persist beyond 2 years despite treatment…”.

89.     The Tribunal concurs with the above assessment reflected in the Job Capacity Assessment Report and considers the Applicant’s Adjustment Disorder to be fully diagnosed (as there is evidence of a diagnoses from a psychiatrist), fully treated (given confirmation of long-standing treatment from Dr Libera) and fully stabilised (supported by the pharmaceutical records of the Applicant) at the time of his claim for the DSP. As the condition is considered permanent, it is appropriate to assess the level of functional impairment under the appropriate impairment table, which is Table 5 – Mental Health Function within the Determination. The Tribunal is of the view that the submitted corroborative medical evidence referred to above is consistent with the descriptors for a mild functional impact, which the Tribunal transposes:

Points

Descriptors

5

90.     There is a mild functional impact on activities involving mental health function.

91.      

(1)   The person has mild difficulties with most of the following:

92.      

(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.

93.     The January 2019 assessment by the Medical Assessment Tribunal (Queensland) found the Applicant had a mild impairment with respect to[58]:

(a) Self-care and personal hygiene;

(b) Social and recreational activities;

(c)Social functioning; and

(d)Concentration, persistence and pace.

[58]    Exhibit R1, Section 37 T Documents (2021/2019), T29, pages 90 to 91.

94.     The Tribunal is of the view that the above corroborative evidence suggests the Applicant meets most of the descriptors for a mild functional impairment. The Tribunal is not satisfied that the corroborative medical evidence indicates the Applicant has a moderate functional impact, in accordance with the relevant descriptors in the next category of functional impact.

95.     The Tribunal finds that the appropriate Impairment Rating in accordance with Table 5 – Mental Health Function, would be a mild Impairment Rating, attracting 5 points.

Summary – Section 94(1)(b) of the Act

96.     The Tribunal has found the Applicant has acquired 20 points across the following Impairment Tables: Table 2 – Upper Limb Function; Table 4 – Spinal Function; Table 12 – Visual Function; Table 11 – Hearing and other Functions of the Ear; and Table 5 – Mental Health Function. The Tribunal notes that it has not found any of the Applicant’s impairments were rated as severe, in accordance with the relevant Impairment Tables.

97.     The Tribunal is of the view the Applicant has satisfied section 94(1)(b) of the Act, as they have acquired 20 Impairment Points.

Section 94(1)(c) of the Act (Did the person have a continuing inability to work as defined in s94(2) of the Act for the purpose of s94(1)(c) of the Act?)

98.     Section 94(2) of the Act sets out the requirements that must be met for a person to have a continuing inability to work for the purposes of satisfying section 94(1)(c) of the Act, which provides:

…Continuing inability to work

(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—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.

Note: For work see subsection (5)…

99.     As the Tribunal has found that none of the Applicant’s impairments were rated as severe, in accordance with the relevant Impairment Tables, the Applicant must therefore meet the requirements of sections 94(2)(aa), (a) and (b) of the Act, in order to satisfy the relevant continuing inability to work requirements.

100.    With respect to the Applicant satisfying the relevant PoS requirements (referred to in section 94(2)(aa) of the Act), the Tribunal observes that this has been strictly enforced.

101.    As detailed in earlier reasons of this decision, section 94(3C) of the Act states that:

“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.”

[Bolding in original]

102.    The Participation Determination, as referred to in earlier reasons of this decision, came into effect on 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a PoS. The Participation Determination requires applicants to have participated in and complied with the requirements of a PoS during the 36 months immediately prior to the day on which the claim for the DSP was made (herein referred to as the ‘relevant period’)[59]. Active participation in a PoS requires an applicant to have participated in a PoS for 18 months in the relevant period[60].

[59]    Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, section 7(1).

[60] Ibid, sections 7(1) to (2).

103.    In the present matter, this means the Applicant must have participated and complied with the requirements of a PoS during the 36 months immediately prior to 6 October 2020, the date on which the Applicant applied for the DSP. Evidence before the Tribunal indicates the Applicant participated in a PoS for 35 days, which is well short of the required 18 months stipulated by the Participation Determination in the relevant period.

104.    The Tribunal has considered whether the Applicant meets any of the exemptions to this requirement in the Participation Determination, and is satisfied that none of these exemptions apply to the Applicant as:

(a) there is no evidence before the Tribunal that the Applicant completed a PoS which was less than 18 months (pursuant to section 7(3) of the Participation Determination);

(b)the participation records before the Tribunal confirm the Applicant exited his PoS on 27 August 2020, and the Tribunal is satisfied the evidence does not support an exemption pursuant to section 7(4) of the Participation Determination[61]; and

(c)there is no evidence before the Tribunal to demonstrate that the Applicant was participating in a PoS at the end of the relevant period, being 5 October 2020, and accordingly, the Tribunal is satisfied the evidence does not support an exemption pursuant to section 7(5) of the Participation Determination.

[61]    Exhibit R1, Section 37 T Documents (2021/2785), T78, page 298.

105.    As the Tribunal has found the Applicant did not satisfy the active participation in a PoS requirements, the Tribunal has in turn found the Applicant did not satisfy section 94(2)(aa) of the Act. As this limb is requisite to satisfy section 94(1)(c), the Tribunal in turn finds that the Applicant did not meet the continuing inability to work requirements for the purposes of satisfying section 94(1)(c) of the Act.

Summary: 2021/2019 – Review of claim for the Disability Support Pension

106.    The Tribunal has found the Applicant did not meet the PoS requirements, as required by section 94(2)(aa) of the Act, and therefore does not satisfy section 94(1)(c) of the Act.

107. As the Tribunal has found the Applicant does not satisfy section 94(1)(c) of the Act, this means that his application for the DSP of 6 October 2020 is not successful, as he is required to satisfy section 94(1)(a), (b) and (c) of the Act.

2021/2785 – Review of claim for a mobility allowance

CONSIDERATION

108.    Relevant to the present application, the qualification requirements, pursuant to section 1035A (1) and (6) of the Act, require the following to be met for the Applicant to be eligible to receive a mobility allowance:

(a)the person is a handicapped person (pursuant to section 19 of the Act);

(b)the person is unable to use public transport without substantial assistance (either permanently or for an extended period) due to the person’s physical or mental disability;

(c)the person is an Australian resident;

(d)the person is receiving jobseeker payment;

(e)the person is either working for at least 15 hours per week on wages that are at or above the relevant minimum wage; and or the person is undertaking job search activities under an agreement between the Secretary and the person, or an employment pathway plan that is in force in relation to the person, for work of at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(f)the person is required to travel to and from the person’s home for the purpose of performing the work.

109.    The Tribunal is satisfied the Applicant met the requirements in paragraphs (a), (c), (d), (e) and (f) above, on the basis that[62]:

(a)the Applicant is, for the purposes of section 19 of the Act, a handicapped person (a point which was not contested by the Respondent);

(b)the Applicant is an Australian resident;

(c)at the time the Applicant claimed mobility allowance on 20 November 2020, he was in receipt of the jobseeker payment; and

(d)the Social Security Guide states that it is accepted that recipients of jobseeker undertaking job search activities will be undertaking travel in relation to their job search activities[63].

[62]    Exhibit R7, Respondent Statement of Facts, Issues and Contentions (2021/2785), page 3, paragraph 17.

[63]    Social Security Guide at [3.6.6.60]. See also Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

110.    With respect to whether the Applicant was unable to use public transport without substantial assistance (either permanently or for an extended period) due to the person’s physical or mental disability, the Tribunal observes the following corroborative medical evidence:

(a)A medical report, completed on 19 November 2020 by the Applicant’s treating General Practitioner Dr G, which stated the Applicant had the following level of difficulty with the listed activities[64]:

[64]    Exhibit R6, Section 37 T Documents (2021/2785), T16, page 86.

(i)No difficulty walking 400 metres;

(ii)Minor difficulty standing on public transport;

(iii)Serious difficulty sitting in public transport;

(iv)No difficulty crossing streets and negotiating kerbs;

(v)Minor difficulty negotiating steps in or out of public transport; and

(vi)Moderate difficulty when negotiating a large flight of steps.

(b)A questionnaire completed on 10 December 2020 by Dr G, which stated that with respect to the Applicant’s lower limb impairment, “… pain in R leg caused by lower back pathology impairs his ability to walk further than 400 meters due to pain. Only able to sit for 45 minutes and standing restriction is 45 minutes…He drives for maximum of 45 minutes before stopping…This condition has been present since 2016 with symptoms persisting despite adequate therapies…”[65].

(c)A Medical Assessment Tribunal Decision (Queensland) with respect to the Applicant reported in January 2019 that, “… with respect to travel, Mr Coelho reports no problems with driving. He can use public transport and can catch a plane if he needs to...”[66].

[65]    Ibid, T19, pages 104 to 105.

[66]    Ibid, T8, page 56.

111.    The Tribunal observes that Dr G’s opinion in the questionnaire, with respect to the Applicant tolerating sitting for 45 minutes, contrasts with the opinion given in the medical report, dated 19 November 2020, that the Applicant had serious difficulty sitting in public transport. The Tribunal gives Dr G’s opinion of 19 November 2020 little weight, as it contradicts the opinion given in the 10 December 2020 questionnaire.

112.    The Tribunal in earlier reasons has referred to the self-reported evidence of the Applicant recorded by a Job Capacity Assessor in the Job Capacity Assessment Report, dated                 12 November 2020. which recorded the Applicant as stating:

… The client reported symptoms are exacerbated by travelling in the car for greater than 1 hour which then impacts on his sleep; has to use a cushion to support his lower back when sitting on certain chairs; able to manage laundry task by using hangers; can ride his bicycle to the shops if less than 1km and can undertake small amounts of grocery shopping…

113.    During the course of the hearing, the Applicant denied reporting the above to the Job Capacity Assessor[67]. The Tribunal affords limited weight to the Applicant’s denial, as the available evidence suggests that whilst the Applicant was handicapped for the purposes of satisfying section 19 of the Act, the corroborative medical evidence suggests that the Applicant was able to use public transport without substantial assistance (either permanently, or for an extended period) despite his physical / mental disability.

[67]    Transcript (28 October 2021), pages 19 to 20.

114.    Further supporting the above view is the Applicant’s evidence to the SSCSD of the Tribunal, where it was recorded that the Applicant gave evidence suggesting that he had difficulty climbing the stairs into a bus and that because he is not in a wheelchair, drivers were reluctant to use the lift[68].

[68]    Exhibit R6, Section 37 T Documents (2021/2785), T2, page 12, paragraph 19.

115.    The Tribunal is of the view that the Applicant did not satisfy the requirement of section 1035A(1)(b) of the Act.

Summary: 2021/2785 – Review of claim for a mobility allowance

116.    As the Tribunal has found the Applicant did not satisfy section 1035A(1)(b) of the Act, this means that his application for a mobility allowance made on 20 November 2020 was not successful.

DECISION

117. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 24 March 2021, with respect to the Applicant’s claim for the Disability Support Pension.

118. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 27 April 2021, with respect to the Applicant’s claim for a mobility allowance.

I certify that the preceding 118 (one-hundred-and-eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

………….[SGD]……………

Associate

Dated: 13 December 2021

Date of hearing:  28 October 2021

Applicant:  Mr Jose Coelho (self-represented)

Solicitor for Respondent:       Mr Andrew Summers (Services Australia)

Annexure 1 – Exhibit Register

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
R1	Section 37 T Documents (2021/2019) (pages 1 to 342)	R	05 May 2021	05 May 2021
R2	Supplementary Section 38AA ST Documents (2021/2019) (ST1 – ST9) (pages 1 to 108)	R	8 June 2021	8 June 2021
R3	Supplementary Section 38AA ST Documents (2021/2019) (ST10 – ST13) (pages 109 to 130)	R	24 June 2021	24 June 2021
R4	Health Professional Advisory Unit Report (pages 1 to 41) Note – same report tendered by Applicant as an Exhibit on 25/08/2021	R	21 July 2021	2 August 2021
R5	Respondent’s Statement of Facts, Issues and Contentions (2021/2019) (pages 1 to 19) Attachments A – B (pages 1 to 61)	R	29 September 2021	29 September 2021
R6	Section 37 T Documents (2021/2785) (pages 1 to 167)	R	1 June 2021	1 June 2021
R7	Respondent Statement of Facts, Issues and Contentions (2021/2785) (pages 1 to 4)	R	29 September 2021	29 September 2021
A1	Applicant Submission (a)    Medical Report – Mobility Allowance (b)    Letter from Dr G & Medical Report – Mobility Allowance	A	19 November 2020 + 9 March 2021	12 May 2021
A2	Applicant Submission – Various Medical Documents (pages 1 to 37)	A	Various dates	11 June 2021
A3	Applicant Submission – Various Medical Documents (a)    Job Capacity Assessment Report (pages 1 to 15) (b)    Disability Medical Assessment (pages 1 to 8) (c)    Written Submission (email) (pages 1 to 12) (d)    Public Enquiry on Disability Support Pension Administration (Audit Report – November 2016) (pages 1 to 6)	A	Various dates	25 August 2021
A4	Updated Medical Report – Mobility Allowance	A	04 August 2021	21 September 2021
T1	Tribunal Direction	T	7 June 2021	7 June 2021
T2	Tribunal Direction	T	18 August 2021	18 August 2021