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

Carmody and Secretary, Department of Social Services (Social services second review) [2021] AATA 334 (2 March 2021)
Division:GENERAL DIVISION
File Number: 2020/1761
Re:John Carmody
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D.J. Morris
Date:2 March 2021
Place:Melbourne

The decision of the Social Services and Child Support Division of the Tribunal dated 18 February 2020, that the Applicant was not eligible for Disability Support Pension in relation to his 5 April 2018 claim, is affirmed.
.....[sgd].................................................................
Senior Member D.J. Morris
SOCIAL SERVICES – Benefits, payments and allowances – Disability Support Pension (DSP) – review of Social Services and Child Support Division decision – person previously held DSP – DSP suspended and then cancelled – whether person has impairment – single impairment being fully diagnosed, fully treated and fully stabilised at time of claim not in dispute – functional effect of impairment – whether person has continuing inability to work – allocation of points to impairment – allocation of points does not meet threshold for claim to progress – decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth) s 36(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 38AA, 43(2A), 33A
Social Security Act 1991 (Cth), ss 94(1), 94(5)
Social Security Administration Act 1999 (Cth), Sch 2, cl 4(1)
Secondary materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
REASONS FOR DECISION
2 March 2021
BACKGROUND

Mr John Carmody has brought to the Tribunal an application for a review of a decision of the Social Services and Child Support Division of the Tribunal dated 18 February 2020, which affirmed an earlier decision that he was not eligible for Disability Support Pension (DSP).
Mr Carmody lodged a claim for DSP on 5 April 2018. An authorised officer of the then Department of Human Services (now Services Australia) (the Department), having considered the application, rejected it on 24 July 2018. This is the original decision.
Mr Carmody requested a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. The ARO affirmed the original decision to reject the claim on 20 August 2018. The Applicant then sought a review by the Social Services and Child Support Division of the Tribunal. On 21 November 2018, a Member in that Division of the Tribunal set aside the decision and remitted the matter to the Respondent with a direction that a new cognitive function assessment be arranged.
On 7 February 2019 a psychological assessment report was completed by Ms Lynette Minter, a psychologist employed by the Department. On 14 March 2019 an officer of the Department advised the Applicant that his claim for DSP remained rejected as he has been assessed as having an impairment rating of 10 points under Table 7 – Brain Function of the relevant ministerial determination. That decision was referred to an ARO and on 13 November 2019 the ARO affirmed the decision.
Mr Carmody sought review of the 13 November 2019 decision by the Tribunal and on 18 February 2020 a Member in the Social Services and Child Support Division of the Tribunal affirmed the decision, concluding that the acquired brain injury of Mr Carmody was fully diagnosed, treated and stabilised and that this condition attracted an allocation of 10 points under Table 7 in the ministerial determination. As a consequence of this finding, the Tribunal affirmed that Mr Carmody was not qualified for DSP in relation to his claim.
On 23 March 2020 Mr Carmody sought review by the General Division of the Tribunal. The hearing was held on 9 February 2021 by telephone, under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mrs XG, the Applicant’s mother, represented Mr Carmody and made submissions on his behalf. Ms Olivia Hicks, a legal officer with The Australian Government Solicitor, represented the Secretary of the Department of Social Services, and made submissions.
The Tribunal admitted into evidence the following documents:
·A volume of ‘T’ (‘TD’) documents lodged by the Respondent in compliance with section 37 of the AAT Act (Exhibit R1);
·A volume of Supplementary ‘T’ (‘STD’) documents lodged by the Respondent in compliance with section 38AA of the AAT Act (Exhibit R2);
·Letter from Clare Waldron, HR Manager at Anglicare Victoria, dated 17 August 2020 (Exhibit R3);
·Job Capacity Assessment report, dated 10 November 2020 (Exhibit R4);
·Email from the Applicant, dated 6 July 2020 (Exhibit A1);
·Neuropsychology report by Dr Fiona Fisher, dated 15 June 2020 (Exhibit A2).
The Tribunal also had regard to a written Statement of Facts, Issues and Contentions lodged by the Respondent on 25 January 2021.
At the conclusion of the hearing the Respondent offered to provide written submissions to the Tribunal on the Secretary’s view of how fluctuating conditions should be considered, in terms of the ministerial determination relating to eligibility for a grant of DSP. The Tribunal advised parties that it would await those submissions, to be provided by the end of 12 February 2021, and would reserve its decision on receipt of those submissions.
Shortly after the Tribunal adjourned, Mrs XG contacted the Tribunal and asked if her daughter-in-law, the Applicant’s wife, could make an oral submission to the Tribunal. As the Tribunal had advised it would not reserve its decision until after the Respondent provided written submissions, the hearing had adjourned, but had not concluded. The Respondent did not object to the hearing resuming. The Tribunal gave leave for the hearing to reconvene.
Later the same day, the hearing resumed, and the Tribunal heard evidence from Mr Carmody’s wife, Ms XK. Ms Hicks then advised she was in a position to make oral submissions on the Respondent’s view on fluctuating conditions, which she did. At the conclusion of those submissions, the Tribunal concluded the hearing.
APPLICABLE LAW
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied. It must be established, among other things, that:
(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
…
In terms of the criteria under section 94(1)(c) of the Act, no contention was made that Mr Carmody had participated in the supported wage system. He was therefore required to establish a ‘continuing inability to work’. Relevantly, section 94(2) of the Act provides 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) 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.
Section 94(3B) of the Act provides that:
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.
Therefore, if the claimant is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that he has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Determination). If Mr Carmody is found to have a ‘severe impairment’, he is only required to satisfy sections 94(2)(a) and 94(2)(b) of the Act.
More simply put, if a person has an impairment that has no functional impact, the Determination provides (at Rule 11(5)) that the impairment must be assigned zero points. If a person has an impairment that has a mild functional impact, on the basis of the descriptors in the relevant impairment table in the Determination, a rating of 5 points is assigned. If a person has an impairment that has a moderate functional impact, again on the basis of the descriptors in the Determination, a rating of 10 points is assigned. If a person’s impairment has a severe functional impact, a rating of 20 points is assigned, and if a person’s impairment has an extreme functional impact, a rating of 30 points is assigned.
So, a person who might have more than one impairment, or an impairment which has a functional impact upon more than one part of his or her body, may be able to be assigned ratings under two or more impairment tables, and thereby accumulate 20 or more points. However, as provided for in section 94(3B) of the Act, in that case the person must have participated in a program of support, or have been exempted from so participating.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.
Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider whether Mr Carmody was qualified for DSP on the date he lodged his claim, 5 April 2018. If he was not, the Tribunal must then consider, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and section 36 (1) of the Interpretation Act, whether he became qualified on a day in the succeeding 13-week period, starting on 6 April 2018 and ending on 5 July 2018.
Claims for DSP made after 31 December 2011 are assessed by applying the ministerial determination (or ‘Impairment Tables’) which came into force on 1 January 2012 under the Social Security (Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Tribunal Member at the first-tier review was satisfied that a total impairment rating of 10 points could be allocated in relation to Mr Carmody’s medical condition in the claim period and, because the conditions did not attract an allocation of 20 or more impairment points and the Applicant had not undertaken a program of support, his claim at that time did not succeed.
RELEVANT EVIDENCE FROM THE HEARING AND THE DOCUMENTS BEFORE THE TRIBUNAL
Does the person have a physical or psychological impairment?
The Secretary in written submissions did not dispute that Mr Carmody had an impairment in the claim period and submits that he satisfied section 94(1)(a) of the Act.
The background to Mr Carmody’s medical situation is that in June 2002 he was involved in a motor vehicle accident and sustained a ‘closed head injury and myocardial contusion’ (TD, p 23). He spent just over two months in hospital and at the Townsville Hospital Rehabilitation Unit. On 4 September 2002 an occupational therapist reported that the Applicant “sustained high level cognitive deficits”. At the time, Mr Carmody was hoping to commence a university course in the academic year 2003. The occupational therapist recorded:
John’s ability to study was functionally assessed during his rehabilitation unit admission. The following cognitive deficits were observed when John attempted taking notes and recalling information from a text book; difficulty attending to important information, difficulty successfully remembering new information, difficulty implementing alternative memory strategy techniques and difficulty independently organising a daily timetable.
Therefore, it is anticipated that John will require further cognitive intervention either by a private Occupational Therapist or Psychologist to assess his high level cognitive skills for university entry, and to assist him to develop high level cognitive skills in order to learn new information. John will also require a private Functional Driving Assessment by a trained Occupational Therapist, to assess his physical and cognitive ability to return to driving after the appropriate waiting time.
Mr Carmody was granted a DSP in November 2002, having been allocated 20 impairment points on the Impairment Tables then in force and being assessed at that time as being unable to perform his usual work for more than 30 hours per week within the next two years.
In March 2005 Mr Carmody saw a clinical neuropsychologist, Dr J. A. Ewing. Dr Ewing recorded details of the aftermath of the motor vehicle accident relayed to him by Applicant and the Applicant’s mother, Mrs XG, including Mr Carmody spending three weeks in the ICU at Townsville Base Hospital and a further period in the high dependency ward. Dr Ewing recorded that an “initial CT scan revealed findings consistent with a diffuse axonal injury” and a subsequent scan indicated findings “consistent with a resolving diffuse axonal brain injury”. Dr Ewing wrote: “These various findings indicate Mr Carmody sustained a very severe closed head injury.”
In December 2013 Dr Ivan Vasquez, general practitioner, recorded that Mr Carmody had “a well-documented acquired brain injury due to a MVA in 2002” (TD, p 81).
Based on the medical evidence before the Tribunal, I find that the Applicant satisfied section 94(1)(a) of the Act in having a physical and psychological impairment as at the date he made his claim for DSP.
Should the person’s impairment be allocated 20 points or more in the claim period?
The Tribunal must consider the claimed condition to determine whether it is ‘permanent’ within the meaning of that term stipulated in the Determination and, secondly, whether the condition is able to be considered for the allocation of points under the Impairment Tables.
What does ‘permanency of conditions’ mean?
The Determination provides, at Rule 6(4), that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and the condition has been fully treated and fully stabilised and the condition is more likely than not, in light of available evidence, to persist for more than two years. Rule 6 of the Determination goes on to set out what must be considered by a decision-maker as he or she considers whether a condition can be assigned points under the Impairment Tables. Rule 6 relevantly states:
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Fully Stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)     either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)     the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)     is available at a location reasonably accessible to the person; and
(b)     is at a reasonable cost; and
(c)     can reliably be expected to result in a substantial improvement in functional capacity; and
(d)     is regularly undertaken or performed; and
(e)     has a high success rate; and
(f)      carries a low risk to the person.
What is the correct Impairment Table to consider the Applicant’s medical condition?
Apart from the medical reports referred to above, in the DSP Medical Assessment Recommendation dated 19 May 2018 (TD p 164) the Departmental officer recorded:
Traumatic Brain Injury is confirmed by GP and Neuropsychologist. There is evidence of diagnosis, engagement in reasonable treatments and ongoing functional impairment. There are other multiple conditions listed within the body of the medical evidence that may or may not meet medical eligibility criteria. A JCA [Job Capacity Assessment] is recommended to further assess medical eligibility and apply an impairment rating/s if appropriate.
Mr Carmody subsequently underwent a JCA conducted by a registered occupational therapist on 23 July 2018. The assessor relevantly recorded (TD, p 169):
Customer reports ongoing impacts from TBI. Recipient lives with his wife and three-month-old baby, he reports he is independent with all personal care and childcare requiring prompting occasionally from his wife to change the baby’s nappy before putting the baby to sleep et cetera. He stated he is independent with all household tasks such as meal preparation, house cleaning and gardening. He is reliant on lists for food and is reliant on strategies such as putting his keys and wallet in the same place to compensate for memory difficulties. He is reliant on his wife, for financial management and to assist with more difficult decision-making, this is because he feels overwhelmed with too many options. He stated that he is impulsive with spending at times and this results in minor household issues. He stated he is reliant on his wife to remind him with minor household tasks such as putting the bin out and taking frozen meat out of the freezer for dinner that night. He stated that he is easily stressed or overwhelmed with too many tasks and is fatigued easily. ..He worked full-time in Port Melbourne for two years and until 2016, undertaking administrative tasks he then worked on a permanent part-time basis from 2016 to 2018 as a youth worker. He stated he left because he felt overwhelmed with his work due to his TBI. However he stated that his workmates did not know that he had a traumatic brain injury and that he was able to compensate for his difficulties with memory and attention using strategies as detailed above.

And at TD, p 170:
Recipient’s report of significant fatigue is consistent with previous neuropsychological assessments.
The JCA assessor considered that the appropriate Impairment Table in the Determination to assess Mr Carmody’s condition was Table 7 – Brain Function and recommended that 10 impairment points be allocated for this condition. The assessor further recommended that the Applicant has a baseline work capacity, with intervention, of between 15 and 22 hours per week, in light semi-skilled work (TD, p 173). The JCA assessor noted that Mr Carmody’s work capacity is recommended to be reduced owing to the functional impact of his permanent condition, its affect on concentration, recall and executive functioning, and that he may become easily fatigued or frustrated with complex tasks.
Submissions of Mrs XG, mother of the Applicant
Mrs XG told the Tribunal that the recent work Mr Carmody did for Anglicare as a youth worker affected him. She said that while he undertook training for that job, he now remembers, in her words, ‘nothing’ of that training, owing to his memory deficits. She said that her son is a hard worker but is hampered by his mental capacity.
Mrs XG told the Tribunal that Mr Carmody worked looking after vulnerable children in a group house but always was working with a partner whom he relied upon because of his memory problems. She said that he had an ambition to become a teacher before his motor vehicle accident.
Mrs XG confirmed that Mr Carmody was married and that his son will shortly turn 3 years of age. She said the Applicant has no difficulty driving and can undertake routine chores such as grocery shopping so long as he has a list. She said if Mr Carmody is given a number of things to do, he will invariably forget some of them, unless they are written down. Mrs XG said that Mr Carmody successfully completed a university degree in sport and exercise science “which he doesn’t know anything about”.
Mrs XG said that her son is very fit and exercises but has to rest after any mental activity, or after working for a few hours. She said he sometimes has emotional outbursts which is why he did not want to give evidence at the hearing, because on reading some of the material relating to the hearing, he had become upset.
Evidence of Ms XK, wife of the Applicant
Ms XK was cross-examined by Ms Hicks, the lawyer representing the Secretary. Ms XK agreed that Mr Carmody worked for Anglicare from 2015 to 2018 in a permanent part-time position.
Ms XK said that initially it took a long time for Mr Carmody to gain confidence. She said he was able to carry out tasks at work but would come home quite frustrated. She said during the period he was working for Anglicare, Mr Carmody had been stood down on a couple of occasions for failing to follow established protocols at the group house.
Ms XK said that her knowledge was observational, because she was not with her husband at work. She gave evidence that he would often be “flustered trying to engage with the protocols” and when the children in his care would change, he would struggle. She commented “it was almost like when he went into a new job”.
Ms XK said that she would have discussions with Mr Carmody and he sometimes would have no recollection of something they had previously talked about. She said he would “always forget chores like putting the bins out”.
In terms of misplacing items, Ms XK said that if the Applicant had put down something in another place, and was trying to find it, he did not have the capacity to undertake a ‘back process’, i.e. to retrace his steps. She said he simply is unable to do that.
Ms XK said it was accurate to say that Mr Carmody could concentrate for 30 minutes if he was interested in something, like, for example, a television programme.
Asked if the Applicant has difficulty focussing on a task if there is some other activity going on at the same time, Ms XK responded: “Definitely. I see it in a social situation. It gets too much. If he needs to send an email, he has to close the door to concentrate. If he is interrupted, he has trouble in going back to a task.”
Ms Hicks asked if Mr Carmody would be able to solve a routine household problem, such as if the toaster broke down. Ms XK said: “He would need assistance. If there is something broken it will stay that way until friends help. He can’t show initiative.”
Ms Hicks asked whether the Applicant could solve problems in a work context. Ms XK responded: “Even now when he was working, he could maintain a job role. When he comes home, he is so exhausted. He couldn’t say what he wanted for dinner. He’d watch t.v, that’s all he could do. Last Friday he worked for five hours but on Saturday he barely left the couch. A few years ago, it wasn’t an issue.”
In response to a direct question from the Tribunal about whether Ms XK thought Mr Carmody’s condition had declined, Ms XK responded: “It is more prominent now because of more demands on our lifestyle. I think his brain injury has been consistent.”
Asked if Mr Carmody could plan things if he wasn’t tired, Ms XK said “I don’t think things have changed. He recently organised a surprise birthday dinner for me. The organisation was too much for him and by the time we had the dinner, he was so exhausted. He retreats and becomes frustrated and angry. One-word answers and things like that.”
In terms of responsibility for household finances, Ms XK said she had been in charge for a while. She said that the Applicant has “no bigger picture on how much he is spending. He will spend here and there and not realize and has no idea of what is essential.”
Asked for example about the Applicant bringing their son to the park, Ms XK emphasised that Mr Carmody is “amazing with our son”. She said if they went to the park, for instance, “he might forget to pack nappies or a water bottle, but our son would be safe.”
Ms Hicks asked Ms XK whether Mr Carmody would be able to understand basic instructions but would need assistance with more complex things. Ms XK responded “Yes, very much one at a time. Three errands would be a lot. There would always be something forgotten. He would forget to put fuel in the car. Nothing major, just little things.”
Asked if the Applicant would lose his temper or become physically aggressive, Ms XK said “No; definitely not. He would sometimes lose his temper and be quite short. If he didn’t want to talk about work, I’d leave him alone.”
Asked whether she thought Mr Carmody lacked self-awareness about his limitations, Ms XK said she thought that “he knew that work was too much for him. He knew he was pushed to his limits.” She agreed that when working for Anglicare, Mr Carmody was working around 35 hours a week, but said it was on a rotating roster, some days and some nights.
Ms Hicks asked Ms XK about the information from Anglicare that Mr Carmody took quite a bit of leave and whether that was owing to fatigue or another reason. Ms XK responded: “I think definitely towards the end it was him just being fatigued. On his days off he’d just use it for recovery.”
Respondent’s closing submissions
Ms Hicks submitted that in terms of Rule 11(4) of the Determination, where a person has a fluctuating condition, the overall functional impact of the impairment or impairments must be assessed. Ms Hicks contended that this is a factual assessment. She said if the Tribunal finds that Mr Carmody’s condition is fluctuating, it is probably appropriate to consider this finding in relation to the Applicant’s ability to sustain work.
Ms Hicks said that nothing in the evidence given by Ms XK altered the Secretary’s submission that the appropriate allocation of points in the Determination is 10 points under Table 7.
In terms of Mr Carmody’s continuing ability to work, it is the Secretary’s contention that the Applicant had clearly been exceeding his cognitive ability. The Respondent relied on the most recent JCA report recommending that Mr Carmody was able to work 15 hours a week.
CONSIDERATION
Table 7 – Brain Function of the Determination is to be used where the person has a permanent condition resulting in a functional impairment relating to neurological or cognitive function (p 31 of the Determination). Rule 11(4) of the Determination states:
When assessing impairment caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
In relation to fluctuating neurological or cognitive conditions, Table 7 of the Determination relevantly provides:
For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency…
The Tribunal had regard to a 15 June 2020 report from Dr Fiona Fisher, clinical neuropsychologist, who examined Mr Carmody in the presence of Ms XK. Dr Fisher reported on her assessment of the Applicant with reference to the descriptors in Table 7 of the Determination.
Memory
Dr Fisher concluded that Mr Carmody is heavily reliant on memory aids and, without regular reminders and prompting, forgets conversations and appointments. She concluded that as a direct result of the traumatic brain injury, the Applicant experiences a moderate impact on day to day brain functioning. She found that this “has been demonstrated on recent neuropsychological assessment with findings consistent with multiple previous cognitive assessments.”
Attention and concentration
Dr Fisher concluded that Mr Carmody is easily distracted from any task and has severe difficulties with multi-tasking. She reported that he faces difficulty planning and organising novel activities.
Problem solving
Dr Fisher reported that the Applicant has difficulty with problem solving, particularly when faced with new or complex problems. Both Mrs XG and Ms XK told the Tribunal that new processes could become very challenging for Mr Carmody. Mrs XG said that even though he had successfully completed a degree, her view was that he had forgotten much of what he had learnt, because he had difficulties drawing down the memories. In this, the Tribunal understood Mrs XG to mean that while Mr Carmody had, to his great credit given that the serious injuries sustained in the car accident were incurred just before he was to commence university studies, nevertheless completed a degree course, because of his difficulties in recollection, a lot of what he learned in that course could not be brought by him to mind.
Planning and organisation
Dr Fisher reported that Mr Carmody faces difficulty planning and organising novel activities. The Tribunal notes Ms XK’s evidence that her husband organised a surprise birthday party for her and a few friends, but that the process of organising it taxed his energy so much that, when the celebration took place, he was so tired that he could not enjoy it as he would have wished.
Decision making
Dr Fisher said Mr Carmody’s difficulties in this area are evident in his poor financial management which is such that Ms XK manages household finances.
Behavioural regulation
Ms XK said that her husband never displayed physical aggression but would become frustrated and, in her words, ‘retreat’ and give one-word answers when he became overwhelmed.
Considering the Applicant’s condition against the criteria for ‘severe’ functional impact
In terms of the Descriptors for a ‘severe’ functional impact resulting from a neurological or cognitive condition (p 34 of the Determination), a person must require frequent, at least once a day, assistance and supervision as well as having severe difficulties with one of the following:
Memory – the person is unable to remember routines, regular tasks and instructions; the person has difficulty recalling events of the past few days; the person easily gets lost in unfamiliar places.
On the medical and oral evidence, these descriptors do not apply to Mr Carmody. He is able to drive reasonable distances, undertake independent personal care and recall recent events, if sometimes forgetting some details. There was no evidence that he easily gets lost.
Attention and concentration – the person is unable to concentrate on a task, even a task that interests the person, for more than 10 minutes. The person is easily distracted from any task.
Ms XK confirmed that Mr Carmody could watch a television programme for 30 minutes without difficulty. While Dr Fisher recorded that Mr Carmody was easily distracted from any task, Ms XK ’s evidence was that he deployed strategies to combat this, especially given that there is a young child in the house. She said that if Mr Carmody needed to concentrate, for instance when sending emails, he would close the door to avoid distractions. However, if interrupted she said her husband would find it hard to pick up where he left off. There was no evidence that he had an attention span of only 10 minutes.
Problem solving – the person is unable to solve routine problems and needs regular assistance and advice.
Ms XK was asked by Ms Hicks what her husband would do if, for instance, the toaster broke down. She said he would wait until a friend came around to fix it. I do not consider that meets this descriptor, because while he may have difficulty coping with routine problems, on the evidence Mr Carmody does not need regular assistance and advice. It is also relevant that he was able to cope with routine tasks when he worked for Anglicare, albeit with memory aids. Although Mrs XG emphasised that Mr Carmody was assisted in his duties at the group house because he worked with a partner, it would appear from Ms Waldren’s letter, that his colleagues in that workplace did not know of his traumatic brain injury. In fact, in an email attached to Ms Waldren’s letter from Mr Carmody, he did refer to having a neurological injury in the context of having time off, but attributed that to an assault he sustained from one of the children in the group house during an incident there.
Planning – the person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip)
The evidence of Ms XK was that the Applicant was able to go alone to the supermarket and obtain a list of items, provided he has a list. He could also undertake other errands but would often forget something if he did not have it written down.
Based on this evidence, and equivalent submissions from Mrs XG, I do not find that Mr Carmody meets this descriptor. He can independently organise routine daily activities such as grocery shopping or taking his son to the park.
Decision-making – the person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others
Ms XK gave evidence about difficulties Mr Carmody would face with certain tasks without memory prompts. There was no evidence before the Tribunal that he often displayed poor judgement. I note Ms XK’s evidence and the other evidence in the documents that he was not good with spending money, which is why she handles household expenses. However, the evidence was that he would buy items that weren’t essential, without thinking, not that he was especially careless or blasé about expenditure.
Of particular relevance is Ms XK’s emphatic evidence, which I accept, that she had no concerns about Mr Carmody’s care for their son. I do not find this descriptor is met.
Comprehension – the person is unable to understand basic instructions and needs regular prompts to complete tasks
The evidence points away from this. Mr Carmody was employed by Anglicare in a responsible position for around three years, albeit often working with a partner. He could understand basic instructions and complete tasks, noting he was often forgetful. He was able to function in the workplace with colleagues who did not know he had a traumatic brain injury. I do note, as mentioned above, the evidence that he used memory aids such as wall charts to help him.
Behavioural regulation – the person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression
Ms XK was adamant that her husband was never aggressive or threatening. She did say he would get frustrated and irritable, and sometimes she would leave him alone when he was in such a situation. I do not find on the evidence before me that this descriptor is met. Mr Carmody appears to be able to regulate his behaviour, is not abusive or aggressive, but sometimes ‘retreats’ when he finds it hard to cope.
CONCLUSION
The Tribunal finds on this evidence that the Applicant meets the descriptors in the matrix for a moderate functional impact on activities involving brain function set out in Table 7. This means that Mr Carmody is correctly allocated 10 points under the Determination for his accepted impairment.
Although the descriptors for assessing a ‘moderate’ functional impact on Table 7 require at least one of the elements to be met, I believe on the evidence, almost all of them are met except for the elements relating to visuo-spatial function or self-awareness, which do not seem to be relevant in Mr Carmody’s case.
My assessment overall is that Mr Carmody’s condition is not a fluctuating or episodic condition. Ms XK’s evidence essentially was that things were easier, and more manageable, when they were just a couple, but now that they have started a family and have a wider range of responsibilities, Mr Carmody’s permanent condition is having a greater impact. I did not take her evidence to be that she was of the view that there had been a recent decline. I also note that Mr Carmody was able to continue in a job at Anglicare from January 2015 to January 2018 where he was working over that period, an average of some 30.5 hours a week, on a rotational basis, although I note Ms Waldron’s advice, which is reflected in the leave data attached to her letter, that he did take frequent periods of paid and unpaid leave during his time with them.
Having found that Mr Carmody is correctly allocated 10 points under the Determination, the regrettable reality is that his application for DSP fails under section 94(1)(b) of the Act. He has only one assessable condition and it is a requirement for the grant of DSP for a person to be allocated 20 or more impairment points under one Table, or a combination of 20 or more points under more than one Table in the Determination. If the latter, then a person must have undertaken a program of support. Having not satisfied section 94(1)(b) of the Act, Mr Carmody’s DSP application fails at that point.
I note that the submissions of Mrs XG and the evidence of Ms XK were straightforward and honest. I acknowledge the frustrations that are visited on Mr Carmody day to day, and on those he loves, by his condition. The severe injury that Mr Carmody sustained has a continuing effect. I also understand that, given Mr Carmody was granted a DSP on previous rules, it must be to some extent confounding for him that his return to work led, first, to suspension of that DSP and then cancellation. The legal reality is that new claims for DSP must be assessed against the law and the Determination now applying.
The outcome of my consideration of all the medical and oral evidence and submissions is that the decision to refuse Mr Carmody’s DSP application made on 18 February 2020 was correct.
DECISION
The decision of the Social Services and Child Support Division of the Tribunal dated 18 February 2020, that the Applicant was not eligible for Disability Support Pension in relation to his 5 April 2018 claim, is affirmed.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris

.........[sgd]...............................................................

Associate
Dated: 2 March 2021

Date(s) of hearing: 9 February 2021

Applicant: Represented by family member

Solicitors for the Respondent: Ms Olivia Hicks,
The Australian Government Solicitor

[2021] AATA 334

2 March 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	9 February 2021
Applicant:	Represented by family member
Solicitors for the Respondent:	Ms Olivia Hicks, The Australian Government Solicitor