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

Cassell and Secretary, Department of Social Services (Social services second review) [2020] AATA 3010 (19 August 2020)
Division:GENERAL DIVISION
File Number: 2019/6214
Re:John Cassell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:19 August 2020
Place:Perth

The reviewable decision, being the AAT1 decision dated 3 September 2019, is affirmed.
....................[sgd]....................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s conditions fully diagnosed, fully treated and fully stabilised – whether applicant has severe impairment – spinal condition – mental health condition – whether applicant has continuing ability to work – whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(2), 7(3)–(5)
Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Tables 2-5, ss 3, 5(2), 6(1), 6(3), 6(4)–(7), 6(8),f 8(1), 8(2), 10(1)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Guide to Social Policy Law: Social Security Guide – Chapter 3
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – Section 3.6.3, topic 3.6.3.05
REASONS FOR DECISION
L M Gallagher, Member
19 August 2020
BACKGROUND

On 24 January 2018, Mr Cassell lodged an application for Disability Support Pension (DSP) with the (then) Department of Human Services (now, the Agency)[1] (R1, T25, page 143 and T61, page 265).
On 15 May 2018, a Job Capacity Assessment (JCA) was undertaken face to face by a Registered Occupational Therapist and a Registered Psychologist and a report was produced on 22 May 2018 (R1, T30, page 179). The JCA reported that:
(a)Mr Cassell’s spinal disorder was fully diagnosed, fully treated and fully stabilised (FDTS) and recommended a 10-point impairment rating be assigned under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (the Impairment Tables), being for Spinal Function.
(b)Mr Cassell’s osteoarthritis in his right knee and his severe adjustment disorder were both fully diagnosed, but not fully treated and fully stabilised and therefore could not be assigned an impairment rating.
In addition, the JCA dated 22 May 2018 (R1, T30, pages 184, 185 and 187):
(a)
Noted that Mr Cassell’s baseline work capacity was eight to 14 hours per week and his capacity for work within two years with intervention was

15 to 22 hours per week.
(b)Recommended that Mr Cassell be referred to an Employment Service.
On 22 May 2018, the Agency rejected Mr Cassell’s claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (R1, T31, page 188).
On 13 June 2018, Mr Cassell requested an internal review of the Agency’s decision

dated 22 May 2018 (R1, T61, page 272).
On 9 October 2018, an Authorised Review Officer (ARO) of the Agency affirmed the Agency’s decision dated 22 May 2018 (R1, T41, page 210). The ARO found that:
(a)Mr Cassell’s spinal disorder was FDTS and that the 10-point impairment under Table 4 of the Impairment Tables, being for Spinal Function, was appropriate.
(b)Mr Cassell’s osteoarthritis in his right knee and his severe adjustment disorder were both fully diagnosed, but not fully treated and fully stabilised and therefore could not be assigned an impairment rating.
On 7 June 2019, Mr Cassell applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the ARO’s Decision dated 9 October 2018.
On 3 September 2019, the Tribunal’s Social Services & Child Support Division (AAT1) affirmed the ARO’s decision dated 9 October 2018 (R1, T2) on the basis that:
(a)Mr Cassell achieved a rating of 10 impairment points under Table 4 of the Impairment Tables for his spinal disorder.
(b)Mr Cassell’s problem of knee pain was fully diagnosed, but not fully treated or fully stabilised and therefore could not be assigned an impairment rating.
(c)Mr Cassell’s mental health problems were not fully diagnosed and therefore could not be assigned an impairment rating.
On 27 September 2019, Mr Cassell applied to the Tribunal’s General Division for a review of the AAT1 decision dated 3 September 2019 (R1, T1).
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to Mr Cassell’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The Guide to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645).
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Section 3.6.3 of the Guide).
Qualification criteria

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

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance (Topic 3.6.3.05 of the Guide).
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mr Cassell’s eligibility for DSP on 24 January 2018, the date the claim was lodged.[2]
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3 of the Determination). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions
(s 5(2) of the Determination).
Section 6 of the Impairment Tables set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables,
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination, refer also to
ss 6(4) to 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (s 8(1) of the Determination). Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account (s 8(2) of the Determination).
To select the applicable Impairment Table, one must take the following steps
(s 10(1) of the Determination):
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention. Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)…
the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity -- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
In relation to s 94(2) of the Act, extracted at paragraph [22] above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[3]
(b)a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table (s 94(3B) of the Act);
(c)a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection (s 94(3C) of the Act); and
(d)work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5) of the Act).
With regards to participation in a program of support (POS), the POS Determination relevantly provides the following guidance:
(a)
the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person (s 5 of the

POS Determination); and
(b)
the requirements for active participation in a POS are contained in s 7 of the POS Determination. Generally, a person must have participated in the POS for at least 18 months during the relevant period (s7(2) of the

POS Determination). The Tribunal notes that ss 7(3) to 7(5) of the

POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement

(provided that person had commenced in a POS prior to lodging their claim for DSP).[4]
ISSUES FOR DETERMINATION
The issues which arise in this matter are whether, at the date of Mr Cassell’s claim for DSP:
(a)Mr Cassell suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)Mr Cassell’s impairments receive an impairment rating of 20 points or more under the Impairment Tables; and if so,
(i)whether those 20 impairment points are achieved under a single Impairment Table such that Mr Cassell has a severe impairment; and
(c)Mr Cassell has a CITW, which includes:
(i) that he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)if, and only if, Mr Cassell does not have a severe impairment,
Mr Cassell has actively participated in a program of support.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 22 July 2020. Mr Cassell was represented by

Ms Tanya Beard from Advocacy WA. Mrs Debbie Cassell was in attendance as

Mr Cassell’s support person and a student with Advocacy WA attended the hearing as a learning exercise. The Secretary was represented by Mr Ashley Burgess from

Sparke Helmore Lawyers. The parties appeared at the hearing via telephone.[5]
At hearing, the Tribunal admitted the following documents into evidence:
(a)Applicant’s submissions with attachments (A1);
(b)Applicant’s response to the Secretary’s Statement of Facts, Issues and Contentions (SFIC) with Annexures A to D (A2);
(c)
Report by Mr Zish Rosenbach-Ziembinski, Clinical Psychologist,

dated 20 February 2020 (A3);
(d)T documents (277 pages) (T1 – T61) (R1);
(e)Secretary’s Statement of Facts, Issues and Contentions
dated 30 January 2020, with Annexures A to F and
the Secretary’s List of Authorities (R2); and
(f)Secretary’s calculation of Applicant’s POS information (R3).
At the hearing, Mr Cassell made submissions, gave evidence and was cross-examined.

At the opening of the hearing, Mr Cassell confirmed for the Tribunal that:
(a)He was no longer pursuing the claim in relation to his right knee condition.
(b)His claim before the Tribunal was in relation to spinal condition and his mental health condition.
(transcript, page 2 [30]-[35].)
Mr Cassell also called Mr Rosenbach-Ziembinski to give evidence in support of his application, which took place by telephone. Mr Rosenbach-Ziembinski’s available medical reports in relation to Mr Cassell are:
(a)Report dated 14 May 2018 (R1, T29);
(b)Report dated 29 March 2019 (R1, T48);
(c)Report dated 16 December 2019 (A1); and
(d)Report dated 20 February 2020 (A3).
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Mr Cassell’s evidence
Mr Cassell said that in 2017, about seven months before Mr Cassell lodged his claim for DSP, he travelled by aeroplane to the United Kingdom (transcript, page 25 [10]).

Mr Cassell said that on the flights:
…[he] was that annoying passenger that was constantly up and walking the stairs and down around the back…[and he] was drugged to the eyeballs too
…it was extremely difficult (indistinct). If it wasn’t for how much I love my wife and that I hadn’t even met her family yet, and that I’d also received an inheritance that made the trip possible, and there were some times while we were on this trip that I stayed home and stay [sic] in bed while she went out on trips. Like, it was not an easy trip, it was an education, and I’ve never had a trip like it, and I’ve never had a trip again like that, but it was very difficult, and I would have to hire gophers, like a mechanical cast, to look assessors [sic] at anything. And the - and when the activities - I often hired these buggies and mobility assist devices while I travelled

…Long distance walking was a big problem, and anything over a hundred metres was a problem back then.
(transcript, page 25 [10]-[15] and [30]-[45])
Mr Cassell told the Tribunal that he has a custom-built mobility scooter with mirrors on it so he did not have to turn his head to look around (transcript, page 20 [30] and page 23 [35]).
Mr Cassell said that his mobility scooter enabled him to travel the 150 metres[6] from his house to the beach and within a short walking distance from the water’s edge in order to swim and do physiotherapy or hydrotherapy (A1,[7] transcript, page 20 [20]-[25], page 21 [5] and page 23 [15]). Mr Cassell said that his swimming involved performing seven strokes of breast stroke and then swimming under the water to try and make his spine “flex”,

a method he adopted under the direction of his exercise physiologist (transcript, page 21 [40] and page 22 [5]).[8] Mr Cassell said that he also performed various basic exercises with one on one support from his exercise physiologist (transcript, page 22 [35] and page 23 [10]).
Mr Cassell said that if he was going to the beach to surf, someone would help him carry his board to and back from the edge of the water (transcript, page 21 [5]).[9] Mr Cassell said that he was using an eight-foot surf board with someone carrying the back end of it and him carrying the front (transcript, page 37 [30]). Mr Cassell said that once the board was in the water, he could lay on it and would try to use his arms to paddle the board. Mr Cassell said that he was able to catch small waves at knee to waist height. Mr Cassell said that the surfing was very rare. Mr Cassell said that by January 2018 he was lucky if he got in the water with his surfboard once a week with help (transcript page 21, [20]-[35] and page 37 [20] and [35]).[10]
Mr Cassell told the Tribunal that at around the time of his claim for DSP, he was attending one on one Pilates classes, where he performed “very low impact” exercises, predominantly while laying down on a mat on the floor (transcript, page 24 [5]-[25]).
As to his medication, Mr Cassell said that he had participated in a government ordered medicinal cannabis trial, that this medication had worked for him and he no longer uses pharmaceutical painkillers (transcript, page 26 [10]-[15]).
Regarding Mr Cassell having spoken with his general practitioner (GP), Dr John Collis,

in order to try and clarify a consultation note,[11] Mr Cassell said:
APPLICANT: As someone who didn’t understand any kind of legal writing or wording that had to be presented, the word “swimming” is a very broad overview of any kind of swimming, so [Dr Collis] was asked to clarify what I was doing, and I was only doing this light breaststroke and stretching to try and get relief from the pain…I raised with

[Dr Collis]
that he’d been questioned about changing these words, and he was disgusted to think that why would a doctor, who’s at retiring age, want to sell his name for a dirt changing testimony;

just clarifying the question.
MS BEARD: So he wasn’t changing his case note because you asked him, he was clarifying?
APPLICANT: ‑‑‑That’s correct.
(transcript, page 26 [20]-[35])
As to the record in the JCA report that Mr Cassell could work for 15 to 22 hours per week,[12] Mr Cassell said that it was interesting that that was reported after it had been specified on his medical certificate by his GP that he could only work up to eight hours per week[13] (transcript, page 27 [15]-[25]). Mr Cassell also said that at the time he was engaging in the POS, he could never have worked eight hours per week, let alone 15 hours per week (transcript, page 27 [30]).

During cross-examination by Mr Burgess, Mr Cassell said that he had no idea why he had indicated in his written submissions that he attended weekly group Pilates classes as well as his tailored Pilates classes when he only attended weekly one on one tailored Pilates classes[14] (transcript, page 30 [5]-[45] and page 31 [5]-[15]).
Mr Cassell said that in early 2018 he travelled Perth to attend an appointment. Mr Cassell said that his wife would usually drive, if he drove it would be for a very short distance and there was many stops (to rest)[15] (transcript, page 31 [30]-[35]).
When asked by Mr Burgess, Mr Cassell confirmed that in April 2018 he had told the job capacity assessor that he could sit for 30 minutes[16] but also that he did not accept that that was the case (transcript, page 32 [10] and page 33 [5]). In this context, Mr Cassell said:
If that’s what I’ve said, that’s what I’ve said, and if you’re claiming they’re my words that I’ve put together, I’m just beside myself…
(transcript, page 34 [10])
Mr Cassell said that he did not know how it was written in the JCA report that he could sit in a vehicle for an hour and that this had never been possible as he would need to have a break every five to 10 minutes (transcript, page 32 [15]-[35]).
Mr Cassell said that in early 2018, he was able to perform up to an hour of regular house duties per day, consisting of small tasks spread throughout the day in tiny little increments (transcript, page 27 [5] and page 36 [25]).
Mr Cassell said that on occasion in early 2018, he would travel into Margaret River town by himself but he could not travel to Busselton without his wife’s help with the driving (transcript, page 38 [40] and page 39 [5]-[10].
Mr Rosenbach-Ziembinski’s evidence
Mr Rosenbach-Ziembinski told the Tribunal that he first saw Mr Cassell on 23 January 2018 and that he had five further sessions with Mr Cassell in the three months that followed (transcript, page 45 [15] and [25]).[17]
Mr Rosenbach-Ziembinski said that when Mr Cassell first came to see him, Mr Cassell was clearly depressed (transcript, page 45 [35]). Mr Rosenbach-Ziembinski said his diagnosis of Mr Cassell at the time of their first five sessions was severe depression as a response to his chronic ongoing severe pain and that there was no form of treatment that would alleviate Mr Cassell’s symptoms (transcript, page 46 [40]-[45] and page 47 [35]-[45]).
When asked by Ms Beard, Mr Rosenbach-Ziembinski confirmed that he assessed

Mr Cassell as having a severe impairment under Table 5 of the Impairment Tables for the majority of the 20-point criteria listed in that table (transcript, page 48 [5]-[20]).[18]
During cross-examination by Mr Burgess, Mr Rosenbach-Ziembinski confirmed that the statement in his report dated 14 May 2018 (R1, T29) that Mr Cassell had been referred to him on 23 January 2018 by Dr Collis with a severe adjustment disorder was representative of Dr Collis’ opinion as to diagnosis, not his own (transcript, page 49 [10]-[25]).

Mr Rosenbach-Ziembinski confirmed that he had not offered a diagnosis of his own in his report of 14 May 2018 (transcript, page 50 [5]), but, had he been asked, he was of the view that Mr Cassell was suffering from major depressive disorder at that time (transcript,

page 50 [35]).
When asked by Mr Burgess, Mr Rosenbach-Ziembinski said that prescribing medication is not within his area of expertise and that a psychiatrist would be best placed to give advice about medication, including in cases like Mr Cassell’s where there is hypersensitivity and has been past reaction to medications (transcript, page 50 [40]-[45] and page 51 [10]-[15]). Mr Rosenbach-Ziembinski said that as far as he knew, Mr Cassell was not referred to a psychiatrist in early 2018.
As to his assessments of Mr Cassell under Table 5 of the Impairment Tables in his report dated 16 December 2019,[19] Mr Rosenbach-Ziembinski said, under cross-examination, that:
(a)the impairments listed under the heading “(a) Self-Care and Independent Living (Severe Impact – 20 Points)” [20] arising from Mr Cassell’s reported pain experiences are all physical impairments (transcript, page 52 [10]-[25]);
(b)the impairments listed under the heading “(b) Social/Recreational Activities and Travel (Severe Impact – 20 Points)” [21] are again because of the pain he experiences from his back condition (transcript, page 52, [30]-[40]); and
(c)the impairments listed under the heading “(c) Interpersonal Relationships
(Severe Impact – 20 Points)”[22] have a psychological aspect. Mr Rosenbach-Ziembinski said, however he did not suggest in his report, that Mr Cassell could not do those things because of his psychological condition on its own and rather, the physical disease and the psychological aspect are interconnected (transcript, page 53 [30]-[45] and page 54 [5]-[10]).
When asked by the Tribunal,
Mr Rosenbach-Ziembinski said that as a psychologist he considered himself appropriately qualified to give the answers that he did (in paragraph [50] above) (transcript, page 54 [35]) given the nature of those answers were as they related to Mr Cassell’s physical impairments resulting from his experience of back pain.

Mr Rosenbach-Ziembinski said that (in hindsight) he could have placed more emphasis that it was not just pain, it was a combination of ongoing pain and Mr Cassell’s emotional state that led him to give the impairment rating in his report dated 16 December 2019 (transcript,

page 55 [40]-[45] and page 56 [5]). When asked, Mr Rosenbach-Ziembinski confirmed that his source of information regarding Mr Cassell’s impairments was Mr Cassell’s

self-reporting (of symptoms) and from his own observations of Mr Cassell’s behaviours (transcript, page 56 [5]-[15]).
CONSIDERATION
Whether Mr Cassell suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute that Mr Cassell has suffered from impairments. The Tribunal finds on the evidence that at the date of claim, Mr Cassell suffered from various impairments resulting from his spinal disorder and mental health condition. The Tribunal notes the medical reports, medical certificates and radiological evidence in this regard (A1, A2, A3, R1, T4 to T10,

T12 to T16, T18 to T22, T24, T28 and T29 and R2 Annexures D and F).
As such, the Tribunal finds that Mr Cassell satisfies s 94(1)(a) of the Act.
Whether Mr Cassell’s impairments receive an impairment rating of 20 points or more
It is not in dispute that Mr Cassell has not participated in a POS for the required 18 months (refer to transcript, page 13 [25] and page 74 [40] , and also to paragraph [24] above and to R3).[23] Further, Mr Cassell has not claimed, nor is there any evidence to suggest, that he has been specifically exempted from this requirement.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of Mr Cassell’s claimed conditions attracts 20 points for that single condition. That is, the Tribunal must find that Mr Cassell suffers from a severe impairment (refer to paragraphs [22] and [23(b)] above).
Before considering whether Mr Cassell suffers from a severe impairment, the Tribunal must first determine whether any of Mr Cassell’s claimed conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
The Secretary’s position regarding the rating of Mr Cassell’s impairments under the Impairment Tables is that it accepts that Mr Cassell had a total rating of 10 impairment points at the date of claim on the basis that those points are achieved solely from Table 4 (Spinal Function) of the Impairment Tables.[24] The rationale for the Secretary’s view in this regard is essentially captured in paragraphs 5.5, 5.6 and 5.7 of its Statement of Facts, Issues and Contentions, as follows:
5.5The Secretary contends that the functional impairment arising from the spinal condition should be assessed under Table 4 – spinal function of the Impairment Tables. The Secretary contends that the appropriate impairment rating under Table 4 is 10 points, noting that:
·     Dr Collis, general practitioner, noted in a consultation on 16 May 2017 (approximately 8 months before the claim for DSP) that the Applicant was doing Pilates, art of motion, swimming 200m almost daily and surfing 2-3 times per week. [T24, p 140]
·     The Applicant travelled overseas from 29 June 2017 to 5 September 2017 [Annexure A – RSIM screen) [sic]. The Applicant travelled to the UK, Montreal and then drive to New York. [T24, p 140]
·     Dr Andrew Taylor, rheumatologist, stated in his report dated 5 January 2018 that the Applicant cannot sit for more than 15 minutes. [T21, p 132]
·     The Applicant reported to the job capacity assessor on 15 May 2018 that he had restricted range of motion (could not repetitively forward flex to knee height), could sit for 30 minutes and up to 1 hour in a vehicle and was unable to sustain overhead activities. [T30, p 138]
·     Amy Smith, exercise physiologist, stated in a report dated 26 June 2018 that the Applicant swims on most days and also carries out his rehabilitation/Pilates exercises daily. Ms Smith noted that the Applicant has daily constant pain of 4/10 which worsens to 8/10 pain with aggravations such as sitting for prolonged periods and lifting loads.
5.6The Secretary contends that the Applicant’s impairment as at the qualification period cannot be assigned a severe impairment rating because there is no evidence that the Applicant was unable to:
a) perform any overhead activities; or
b) turn his head, or bend his neck, without moving his trunk; or
c) bend forward to pick up a light object from a desk or table; or
d) remain seated for at least 10 minutes.
5.7Given the Applicant was still surfing (albeit at a reduced frequency), riding a motorised bike to the beach, able to sit in a car for up to 60 minutes and was undertaking pilates [sic] and swimming, the Secretary contends that he cannot be assigned a severe impairment rating under Table 4.
(Original emphasis.)
As to Mr Cassell’s mental health condition, the Secretary is of the view that while this condition was fully diagnosed[25] at the date of claim, it was not fully treated and fully stabilised and therefore it cannot be assigned an impairment rating.[26] The Secretary submitted that while Mr Cassell had commenced treatment in early 2018

(being four appointments and no medication),[27] there is no evidence regarding what psychological therapy actually occurred, what further treatment was planned and the prognosis (R2, paragraph 5.37 to 5.38).
Mr Cassell’s opinion, however, is that he achieves a total impairment rating of 40 points at the date of claim on the basis of his spinal condition (20 points under Table 4) and his

mental health condition (20 points under Table 5) (transcript, page 9 [40], page 10 [25]-[35],

page 12 [20] and page 67 [40]). Mr Cassell relies primarily upon his self-reported symptoms and Mr Rosenbach-Ziembinski’s evidence in this regard (refer to paragraph [50] above).
Having regard to the available evidence and the JCA addressing Mr Cassell’s various levels of functioning, the Tribunal is satisfied that Mr Cassell’s spinal condition was FDTS at the date of the claim and attracts 10 points under Table 4 of the Impairment Tables.

The Tribunal relies upon the available documentary evidence in this regard (at R1, T21, T24, T30 and A2, Annexure A), Mr Cassell’s evidence at hearing (refer to paragraphs [31], [33], [34], [35], [41], [43] and [44] above) and the contemporaneous consultation notes by Dr Collis (refer to footnote 10 and paragraph [37] above).
For completeness, the Tribunal cannot be satisfied that Mr Cassell achieves a higher points rating under Table 4 because there is no evidence to corroborate Mr Cassell’s claim at hearing that he was unable to do the functional activities that are described in the 20-point descriptors in Table 4.
In relation to Mr Cassell’s mental health condition, having regard to the available medical evidence from Dr Collis and Mr Rosenbach-Ziembinski regarding diagnosis and symptoms (refer to paragraphs [29] and [45]-[51] above, A1, fifth attachment and throughout R1),

the Tribunal is satisfied that Mr Cassell’s mental health condition was fully diagnosed at the date of claim, but not fully treated and fully stabilised and therefore cannot be assigned an impairment rating. While there is evidence Mr Cassell has been diagnosed with an adjustment disorder in 2012 (R1, T4), dysthymia from 2015 (R1, T8, T9, T13 to T16) and then major depressive disorder in 2019 (A1, third attachment), Mr Cassell did not commence appointments with Mr Rosenbach-Ziembinski until 5 February 2018
,

after his claim for DSP had been lodged. There is also little information on the treatment actually provided to Mr Cassell, or why Mr Cassell had not been trialled on a course of antidepressant medication.[28]
In light of the matters addressed and findings made at paragraphs [54] to [62] above,
the Tribunal allocates a total of 10 impairment points to Mr Cassell’s functional impairments and he fails to satisfy s 94(1)(b) of the Act.
Whether Mr Cassell has a continuing inability to work
Based on paragraphs [54] to [62] above, the Tribunal finds that Mr Cassell has

10 impairment points and fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Mr Cassell had, at the date of claim,

a CITW in satisfaction of subsection 94(1)(c) of the Act.
In this regard, and for completeness only, the Tribunal notes that:
(a)Mr Cassell’s participation in a POS of 457 days falls short of the 18-month requirement (refer to paragraphs [24(a)] and [54] above).
(b)None of the relevant exceptions apply (refer to paragraph [24(b)] above).
(c)
In any event, Mr Cassell concedes he failed to complete a POS in accordance with the relevant requirements (transcript, page 13 [25] and

page 74 [40]).
(d)Mr Cassell was assessed by the JCA as being able to work for 15 to 22 hours per week within two years with intervention (refer to paragraph [3(a)] above).
Therefore, on the available evidence Mr Cassell’s application is likely to have failed regardless of whether 20 impairment points, accumulatively, were assigned.
CONCLUSION
The Tribunal accepts that, at the date of claim, Mr Cassell suffered from medical conditions impacting on his health such that he satisfies s 94(1)(a) of the Act. However, the Tribunal has found that, while his spinal condition was permanent at the relevant date and attracts 10 impairment points, there is insufficient evidence to establish that his mental health condition was permanent at this time and hence it cannot be assigned any impairment points.
As Mr Cassell’s claimed conditions do not achieve a total of 20 impairment points, he fails to satisfy the second qualification criteria under s 94(1)(b) of the Act and in turn fails to qualify for the DSP.
DECISION
The decision of the AAT1 dated 3 September 2019, which affirmed a decision of the Agency dated 9 October 2018 to reject Mr Cassell’s application for DSP lodged on 24 January 2018, is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

..........................[sgd]..............................................
Associate
Dated: 19 August 2020

Date of hearing: 22 July 2020

Advocate for the Applicant: Ms Tanya Beard

Representatives for the Applicant: Advocacy WA

Counsel for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[1] The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.

but only insofar as they are referable to the applicant’s condition during the relevant period
(Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley
at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Department of Social Services
[2015] FCA 1123 at [27]-[28]).

[3] See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.

[4] See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].

[5] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday 26 March 2020.

Mr Cassell has also indicated that the distance from his home to the beach is 300 metres

(A1, fourth attachment).

[7] Refer to the second attachment to A1, being the letter from Electric Bikes Margaret River.

Refer to R1, T34 and to A2, Annexure A, being the letters from Amy Smith, Exercise Physiologist,

dated 26 June 2018 and 26 February 2020, respectively.

[9] Refer also to A1, fourth attachment.

In his written statement, Mr Cassell indicated that he had not surfed since July 2018 (A1, fourth attachment). The consultation record of Dr Collis dated 17 December 2019 indicates that Mr Cassell had ceased surfing as at 16 May 2017 (A1, fifth attachment). However, this record also notes that Dr Collis’ earlier consultation note dated 16 May 2017 indicates Mr Cassell was surfing two to three times a week as at that date, as does the earlier note itself (A1, fifth attachment and R1, T24, pages 139 and 140). The Tribunal notes that Dr Collis did not give evidence at the hearing and hence did not have the opportunity to be cross-examined regarding the change to his written evidence. In these circumstances, the Tribunal prefers the contemporaneous notes of

Dr Collis regarding Mr Cassell’s level of impairment.

[11] Refer to footnote 10 above.

[12] Refer to paragraph [3(a)] above.

[13]
Refer to various medical certificates issued by Dr John Collis GP, dated between 16 January 2018 and

¹⁰
December 2019 (A1, first attachment). These certificates indicate a “No” answer to the question,

“Can the patient do any other work for 8 hours or more per week?”

[14] Refer to A2, page 3, paragraph 5.5 beginning “Dot point 5.”

[15] Refer to A2, page 3, paragraph 5.5 beginning “Dot point 4.”

[16] Refer to A2, page 3, paragraph 5.5 beginning “Dot point 4.”

[17]
Also refer to, for example, Mr Rosenbach-Ziembinski’s report dated 16 December 2019 in

A1, third attachment.

[18] Refer to Mr Rosenbach-Ziembinski’s report dated 16 December 2019 in A1, third attachment.

[19] A1, third attachment.

[20] For example, Mr Cassell being unable to lift or reach items, carry shopping, get out of bed and reach down to put on socks or shoes.

[21] For example, Mr Cassell’s claims that he rarely socialises and that long-distance travel is not possible.

[22] For example, Mr Cassell’s reported increased social isolation and difficulties in starting or sustaining relationships and friendships.

[23]
The Agency’s calculation of the number of days Mr Cassell actively participated in a POS is 457 days,

or approximately 15 months, which falls short of the required 18 months in the three-year period prior to the date of claim.

[24] R2, paragraphs 5.4 and 5.5.

[25] R2, paragraph 5.36. Or at the least, the Secretary’s view at hearing was that Mr Cassell’s mental health condition “may have been fully diagnosed” at the date of claim (transcript, page 64 [15]).

[26] R2, paragraph 5.37 and 5.39 and transcript, page 64 [25]).

[27] The Tribunal notes the report of Dr Fabrizio Goria, Psychiatrist, dated 24 September 2019 that states psychotropic medications would not be required at that point, but that this would be revisited if the psychological interventions were unsuccessful (A1, fourth attachment).

[28] The Tribunal appreciates that Mr Cassell has expressed his sensitivity to traditional medications (for example, refer to paragraph [49] above and to transcript, page 68 [15]), however the Tribunal takes the view that there is no evidence that this was ever fully explored in relation to his mental health condition.

[2020] AATA 3010

19 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Natural Justice

Appeal

Date of hearing:	22 July 2020
Advocate for the Applicant:	Ms Tanya Beard
Representatives for the Applicant:	Advocacy WA
Counsel for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers