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

Chaplin and Secretary, Department of Social Services (Social services second review) [2017] AATA 1809 (20 October 2017)
Division:General Division
File Number(s): 2016/3203
Re:Mrs Dianne Chaplin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:20 October 2017
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Ms Anna Burke, Member
SOCIAL SECURITY – disability support pension – whether applicant qualified during claim period – anxiety/depression, lumbar spine disorder, osteoarthritis (knees), restless leg syndrome, toe condition, osteoarthritis (feet), ankle tendinopathy and plantar fasciitis, osteoarthritis (hands), finger condition, carpal tunnel syndrome, shoulder condition, fibromyalgia, peripheral vascular disease and claudication, hypertension, asthma, morbid obesity, diabetes, insomnia, hypercholesterolemia and reflux oesophagitis – whether conditions fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under impairment tables – whether program of support has been completed – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975; s 37
Social Security Act 1991; ss 94(1)(a)-(c), 94(2), 94(3C)
Social Security (Administration) Act 1999; Schedule 2 Cl 4(1)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms Anna Burke, Member
20 October 2017
INTRODUCTION

Mrs Chaplin (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse her application for Disability Support Pension (DSP).
On 11 November 2015 Centrelink found that Mrs Chaplin was not entitled to DSP as she did not meet the qualifying requirements pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Social Services.
The application was heard on 31 August 2017 via telephone. Mrs Chaplin was self-represented and Mr Pietro Nacion, a solicitor from Sparke Helmore appeared for the Respondent.
ISSUES FOR THE TRIBUNAL
The Tribunal must determine whether Mrs Chaplin was qualified for DSP at the time of her claim and accordingly establish whether:
(a)she had a physical, intellectual or psychiatric impairment;
(b)the diagnosed condition or conditions which caused her impairment had been fully diagnosed, treated and stabilised and were likely to continue for at least two years;
(c)she had a level of impairment which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)she has a continuing inability to work.
BACKGROUND
Mrs Chaplin, who is now 61 years of age, lives with her nine year old grandson who is currently in her care after a protracted child protection matter in Perth. Mrs Chaplin completed her schooling in year nine; her previous work experience was in factory work and sales and she had for the past 23 years combined parenting duties for eight children with running a small family business. Mrs Chaplin ceased work in 2013 as a result of ill health and the breakdown of her marriage.
On 26 August 2015 Mrs Chaplin made an application for DSP, citing her medical conditions as: high levels of stress and anxiety, chest pain, severe restless leg and arm syndrome, osteoarthritis to both knees, spine, feet and hands, osteoarthritis and tendinopathy in ankles and feet, plantar fasciitis and swelling to the Achilles tendon, clawed toes, weight gain, pre diabetes, low/high blood pressure, high cholesterol, asthma, insomnia, reflux, hiatus hernia, cysts to the pancreas and benign tumour on the spine causing back pain.
On 10 November 2015 Centrelink conducted a job capacity assessment (JCA) on Mrs Chaplin. The JCA report found that:
·Anxiety and depression was permanent and had been diagnosed but not stabilised as Mrs Chaplin had not been on medication on a regular basis or seeing a psychologist.
·Osteoarthritis was considered permanent and diagnosed but not stabilised as she was awaiting surgery.
·Hypertension was considered chronic but well managed and has limited impact.
·Asthma had insufficient medical evidence to be considered fully diagnosed, treated and stabilised.
·The gastroenterological condition had insufficient medical evidence to be considered fully diagnosed, treated and stabilised.
·Morbid obesity had insufficient medical evidence to be considered fully diagnosed, treated and stabilised.
·Fibromyalgia was considered permanent and diagnosed but not fully treated or stabilised as Mrs Chaplin had not undergone any pain management treatment.
·Peripheral vascular disease is permanent but not considered fully diagnosed, treated and stabilised as the condition was still under medical investigation.
·Ms Chaplin was assessed as having no work capacity at present as she is awaiting surgery and a baseline work capacity of 8 – 14 hours per week due to the symptoms of her conditions and a work capacity of 15-22 hours per week in two years with intervention.
On 11 November 2015 Centrelink wrote to Mrs Chaplin to inform her that her application for DSP had been refused as she did not have an impairment rating of 20 points or more under the Impairment Tables.
On 24 November 2015, on internal review, a departmental Authorised Review Officer (ARO) found that Mrs Chaplin’s total impairment rating was nil points as her conditions of anxiety & depression, osteoarthritis of cervical lumbar spine and knees, restless leg syndrome, asthma, hypercholesterolemia, reflux oesophagitis, overweight, fibromyalgia and peripheral vascular disease were not accepted as being permanent as they have not been fully diagnosed, treated and stabilised. They also found that Mrs Chaplin had not met the program of support requirements because she had not actively participated in a program of support for 18 months in the last 36 months.
On 1 March 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Mrs Chaplin’s DSP claim but awarded 10 points for her conditions as outlined below:
·nil points for anxiety and depression as no psychiatric treatment had been required or undertaken.
·nil points for restless leg syndrome as this condition was considered well managed.
·nil points for hypertension, asthma, overweight, insomnia, hypercholestrolaemia, reflux oesophagitis as these conditions were considered well managed.
·nil points for chest pain as this was not considered fully diagnosed, treated or stabilised.
·5 points under Impairment Table 4 - Spinal Functions as the most appropriate for the assessment of her condition of thoracic – lumbar spine.
·5 points under Impairment Table 3 - Lower Limb Function, finding the conditions of the lower limb dysfunction is overall greater than mild.
·did not make a finding in respect of undertaking a program of support
On 17 June 2016 Mrs Chaplin sought a review of the AAT1 decision by this division of the Tribunal, as she believes that numerous specialist doctors reports she provided were not taken into account and that she was not really listened to by the various review officers and her conditions had not been fully understood.
In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) Mrs Chaplin’s qualification for DSP is to be determined from the date of her claim to a date within the 13 week period thereafter ending on 26 November 2015.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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
(d)…
It is agreed that, at the time of application Mrs Chaplin suffered from anxiety and depression, spinal condition, osteoarthritis (knees), restless leg syndrome, toe condition, osteoarthritis (feet), ankle tendinopathy and plantar fasciitis, osteoarthritis (hands), finger condition, carpal tunnel syndrome, shoulder condition, fibromyalgia, peripheral vascular disease and claudication, hypertension, asthma, morbid obesity, diabetes, insomnia, hypercholesterolemia and reflux oesophagitis conditions that caused impairment and she therefore satisfied section 94(1)(a) of the Act.
Section 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Section 6(4) of the Impairment Tables state that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
….
(c)the condition has been fully stabilised; and
…
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table states that “self-report of symptoms alone is insufficient” and requires that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
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.
Section 6(6) states the requirements for a condition to be considered “fully stabilised” under s 6(4):
(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.
For the purposes of s 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.
The determinative issue in this review is whether, at the time of her application, Mrs Chaplin had an impairment rating of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal comprised documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and additional medical reports provided by Mrs Chaplin.
DOES MRS CHAPLIN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that in order to qualify for DSP, in the first instance, a person must suffer from an impairment.
The parties accept that Mrs Chaplin is suffering from anxiety and depression, spinal condition, osteoarthritis (knees), restless leg syndrome, toe condition, osteoarthritis (feet), ankle tendinopathy and plantar fasciitis, osteoarthritis (hands), finger condition , carpal tunnel syndrome, shoulder condition, fibromyalgia, peripheral vascular disease and claudication, hypertension, asthma, morbid obesity, diabetes, insomnia, hypercholesterolemia and reflux oesophagitis conditions. Accordingly, the Tribunal finds that Mrs Chaplin is suffering from these conditions and meets the requirements of s 94(1)(a) of the Act.
DOES MRS CHAPLIN HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables. The Tribunal must therefore consider the conditions listed by Mrs Chaplin, whether they can be assigned an impairment rating and then determine what the appropriate rating is for each.
Mental health conditions - anxiety and depression
Dr Caroline Hardy, general practitioner, provided a medical report for Mrs Chaplin’s prior DSP claim dated 9 July 2014, which stated that Mrs Chaplin had been her patient since 2005. It said she had been diagnosed with anxiety and depression for many years and had been seeing clinical psychologist Elizabeth Macmillan (who has supported the diagnosis by Dr Hardy) for counselling and initiating self-help strategies and had been taking antidepressant medication (Zoloft) since 2006. Dr Hardy described Mrs Chaplin’s symptoms as difficulty in concentrating and intermittent low mood. She observed that Mrs Chaplin’s mental health issues had arisen as a result of significant family problems including the breakdown of her long-standing relationship with her partner from whom she had separated, a custody battle for her grandchildren and the substance abuse of her child.
In referral letters to Mr Ash Gardner of 5 August 2015, Dr Gregory Szto of 26 August 2015 and Mr Yew-Ming Kuan of 4 September 2015 Dr Hardy listed Mrs Chaplin’s current medications including the antidepressant Pristiq which she notes as being prescribed for one tablet daily.
In a report dated 24 February 2016 Ms Macmillian described Mrs Chaplin’s depression as being resistant to treatment and unlikely to show significant change over the next 24 months and considered the condition to be fully diagnosed, treated and stabilised.
Dr Alex Chau, Mrs Chaplin’s current general practitioner since Dr Hardy has moved interstate, provided a report to the Tribunal for this hearing in which he notes that Mrs Chaplin’s medical records indicate that she has been on antidepressant medication since 2014.
A JCA report dated 10 November 2015, undertaken by a qualified social worker with contribution by a registered psychologist found that Mrs Chaplin’s mental health condition was diagnosed, but not fully treated and stabilised as she had not been on medication on a regular basis and was not seeing a psychologist or psychiatrist at present. They noted Mrs Chaplin had reported occasional low mood and stress and anxiety due to family issues but was still able to look after herself and attend her appointments independently.
The Respondent contended that Mrs Chaplin’s mental health condition is not fully treated and stabilised based on the inconsistent evidence regarding the treatment of the condition and the use of antidepressant medication. At the hearing Mrs Chaplin confirmed she had been taking antidepressants consistently for many years to deal with her stressful family situation which has not resolved. She advised the Tribunal that she had seen a psychiatrist subsequent to the AAT1 hearing but had not submitted this report to these proceedings as the Respondent had advised it was not relevant to this claim period. Mrs Chaplin also advised she had been consistently seeking her general practitioner’s counsel in respect of her anxiety and depression.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables was explored in respect of the functional impact of Mrs Chaplin’s anxiety and depression, particularly regarding whether a severe impairment could be found according to the relevant descriptors.
There is a severe functional impact on activities involving mental health function.
(1)       The person has severe difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)       social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mrs Chaplin asserted that she had difficulty with many daily activities as a result of her physical and mental conditions. She stated that her mental health goes up and down and she found it extremely difficult to cope with daily life as a result of a spinal condition and obesity. This impacted on her mental state as she could not reconcile having once been an independent, active and social person to now being reliant on others and housebound due to her various conditions. She described herself as a strong character who had bottled a lot up inside and had benefited greatly from finding a doctor who understood her.
The respondent took Mrs Chaplin to the JCA report of 10 November 2015 which stated: “customer reported occasional low mood, stress and anxiety due to family issues but is still able to look after herself and able to attend her appointment independently.” Mrs Chaplin said she could look after herself but that she found many situations very difficult and had learnt to deal with each situation on a case-by-case basis.

Mrs Chaplin reported:
·that she struggled to manage day-to-day activities, was unable to maintain household duties and only attended the local shops for small shopping.
·that she did undertake social activities, predominantly socialising at home with long-time friends.
·that she was cut off from many members of her family, including her ex-partner, stepchildren, her daughter who has a drug addiction, and her elder son and his children, as he did not want his children associating with his sister or her children. She maintained contact with her youngest son who provided her with assistance around the house and in the garden. She was the carer of her nine-year-old grandson and undertook social activities to ensure he maintained a normal childhood. She told the tribunal she drove her grandson to school and sporting events and that this was awkward and presented numerous problems, including embarrassment such as on one occasion when she had to be assisted up a flight of stairs to attend his football presentation.
·that she had great difficulty concentrating and completing tasks but was able to make decisions as had been demonstrated by her recent prolonged interaction with child-support in W.A. in respect of the custody issues over her grandson.
·that she was completely incapable of undertaking any work or training activity and had been for many years.
The Tribunal is satisfied that Mrs Chaplin’s anxiety and depressive disorder is fully diagnosed, treated and stabilised as she has undertaken all reasonable medical treatment to stabilise the condition including counselling and medication and the medical evidence indicates the condition has stabilised. The Tribunal found the only inconsistency in respect of her treatment and in particular her medication was the recording in the JCA report of 10 November 2015.
The Tribunal did not find Mrs Chaplin’s mental health condition resulted in a severe impairment at the time of her claim as she was still capable of self-care/independent living, social/recreational activities and decision making without severe difficulty. The Tribunal awarded 5 points under Table 5 as it found that her anxiety and depression was having a mild impact on her ability to function based on her own evidence and that of Dr Hardy.
Spinal condition,
Dr Bob Dempster provided an MRI report of 20 April 2011 which found moderate facetal arthropathy noted in the lower lumbar spine, with associated mild T4-5 and S1 foraminal narrowing and multiple incidental haemangiomas noted in the spine. He concluded that degenerative spinal changes are described.
Dr Hardy’s report of 9 July 2014 stated that Mrs Chaplin suffered from osteoarthritis which resulted in pain in the lumbar spine and both knees, hands and feet and that she wakes up stiff and painful. The pain also wakes her at night. She has undertaken physiotherapy, hydrotherapy, acupuncture and anti-inflammatory medication to deal with the chronic pain.
Dr Juan Aw, rheumatologist, in a report dated 4 May 2015 confirmed that Mrs Chaplin has diffuse osteoarthritis in her spine which causes her a lot of pain. A subsequent report of 24 February 2016 described her symptoms as multifaceted; she has a known history of fibromyalgia and depression, she is also obese and has severe generalised osteoarthritis. Scans indicated that she has quite severe thoracic spine degeneration with marked narrowing of multiple intervertebral disc spaces with associated osteophyte formation. The CT scan of her lumbosacral spine revealed multilevel moderate to severe facet joint arthropathy, with the most severe levels being in her lower lumbar segments which have very severe degenerative changes. There is also a broad disc bulge at L4-5 level which is compromising both L5 nerve roots. These changes are consistent with her symptoms of chronic lower back pain and lower limb pain. She has difficulty with prolonged standing, walking or sitting due to pain in the lower back and she also reports chronic tingling and pain in her legs suggestive of lower lumbar radiculopathy.
Dr Chau reported that Mrs Chaplin has ongoing problems with functions that require physical exertion and stamina. She has had, and still has, bilateral knee pain, plantar fasciitis, fibromyalgia, degenerative spine disease, and L4-5 disc bulge impinging both adjacent nerve roots. All these physical issues reduce her exercise tolerance significantly. They have all been managed appropriately and will not improve with time. He states that she is unable to do gardening, or take public transport unassisted.
At the hearing the Tribunal took Mrs Chaplin to Table 4 - Spinal Function to assess her functional capacity under the Impairment Tables.
Mrs Chaplin gave evidence that :
·she is unable to undertake any overhead activities and no longer utilises the clothes line.
·she is sometimes able to turn her head, but she often has great difficulty turning her head or bending her neck without moving her trunk, and she relies heavily upon her side mirrors when driving.
·that she is unable to bend forward to pick up light objects from a desk or table and has to lean forward and edge towards the front of the couch to pick a coffee cup up from the coffee table.
·she has great difficulty remaining seated for any length of time, she feels like she has ‘ants in her pants’ and must constantly move to find a comfortable position. She advised during the hearing that she was standing up, sitting down and moving around to manage the pain.
The Respondent contended that Mrs Chaplin’s spinal condition could not be considered fully diagnosed treated and stabilised during the qualifying period as there was insufficient corroborating medical evidence about its impact upon her functional ability and whether she had undertaken all treatment options to stabilise the condition. Mrs Chaplin advised that her condition was managed with medication, physiotherapy, stretching and exercise which she now undertakes in a hydrotherapy pool as she is struggling with walking and now has to use a walking stick. She stated that she saw her rheumatologist regularly and followed the advice of her treating specialist in respect to her numerous conditions.
The Respondent queried Mrs Chaplin in respect of overseas travel taken during the qualifying period. Mrs Chaplin advised she and her then partner had travelled to Thailand which had been a gift for her 60^th birthday. She advised she had found the plane travel and walking around Thailand extremely difficult and had relied heavily upon her partner at all times.
The Respondent then queried Mrs Chaplin in respect of her recent trip to Perth to collect her grandson following the outcome of custody proceedings. Mrs Chaplin advised child protection services had requested she travel to Perth to collect her grandson. She had travelled over one day and back the next, had been assisted to and from the airport and had found the entire experience draining and painful, but stated that she had no other option in respect of securing the safety of her grandson.
The Tribunal was satisfied that Mrs Chaplin’s spinal condition was fully diagnosed, treated and stabilised during the qualifying period as the medical evidence indicated that improvement is unlikely given the degenerative nature of the condition and symptoms have persisted despite Mrs Chaplin’s adherence to a broad range of treatment options. The Tribunal found there was a lack of independent evidence to corroborate Mrs Chaplin’s description of the difficulties she faces in performing daily tasks and was therefore unable to find a severe functional impairment resulting from the condition. It was satisfied that it was having a mild impact upon her functionality and therefore awarded 5 points under Table 4. It further notes that this condition has subsequently deteriorated since the qualifying period.
Osteoarthritis (knees), toe condition, osteoarthritis (feet), ankle tendinopathy and plantar fasciitis,
Dr Nigel Broughton, orthopaedic surgeon, in a report dated 15 April 2011 opined that Mrs Chaplin has some tearing of the medial meniscus, with significant osteoarthritic change which warrants arthroscopic investigation. He observed she had had an open meniscectomy on this knee when she was 20 years of age.
Dr Gerald Bourke, orthopaedic surgeon, in a report dated 13 August 2013 stated that Mrs Chaplin presented with bilateral foot pain, originally in the second and third toes. On examination she has obvious clawing of her second toes with bruising in both nail beds indicating the presence of third sit in slight dorsal flexion, but which are not clawed. Mrs Chaplin appears to have suffered second and third MTP joint synovitis which has resolved, leaving her with some residual symptoms which may warrant surgical intervention or cortisone injections.
In another report dated 6 September 2013 Dr Bourke opined that an MRI had shown Mrs Chaplin has severe plantar fasciitis, especially on the left foot, with no other major pathology. He advised Mrs Chaplin about how to conservatively manage the condition and indicated that if pain still persisted in four weeks he would inject the heel with local anaesthetic and cortisone.
Dr Aw reported on 4 September 2014 that Mrs Chaplin was complaining of increasingly severe chronic pain in both her feet and knees, especially the left side, and in both hips and spine. He opined that the symptoms appear to be mechanical in nature and are frequently exacerbated by prolonged weight bearing activities. He observed Mrs Chaplin is unable to stand or walk for any prolonged period of time. He noted that she had weight bearing x-rays of both knees in early 2013 which revealed osteoarthritis of modest severity on her right and severe on the left, and there was also some degenerative changes in her hip. MRIs of both feet revealed moderate to severe changes due to plantar fasciitis. He opined that she had moderate to severe osteoarthritis of the knee joints and he suspected similar problems in the hip and her back. He opined she had clinical features of bilateral plantar fasciitis with collapsed foot arches and subluxed metatarsal heads.
Dr Hardy’s 9 July 2014 report stated that Mrs Chaplin had been in a road traffic accident when she was 19 years of age and subsequently had surgery to her left knee which has now resulted in severe osteoarthritis which has progressively developed elsewhere in her body over time: into her lumbar cervical spine, knees, feet and hands. For this condition Mrs Chaplin has been prescribed medication and has undertaken physiotherapy, hydrotherapy and acupuncture. Future surgery on her feet and knees was planned.
Dr Chau reported that Mrs Chaplin had an arthroscopy to both her knees on 24 November 2014 and it was noted by the surgeon that she had grade 3 to 4 chondromalacia in both knees, observing that both will deteriorate with time. She is unable to walk far outside of home and needs to drive to get to local shops or community facilities.
As outlined in paragraph 45, Dr Chau confirmed a diagnosis of bilateral knee pain and plantar fasciitis in a document tabled in these proceedings. He reported that Mrs Chaplin has had cortisone injections to both plantar fascias at this time, that no surgery was planned, and that she had only benefited from temporary improvement of this condition.
Mrs Chaplin advised the Tribunal she had had numerous cortisone injections into her feet and hips and that this gave her relief for some time but that the pain returns. She advised her feet were always stiff and she required massaging regularly. Her feet sometimes caused her extreme pain, especially when she was driving. She said that to undertake any long car trip she planned ahead to take many breaks to deal with her chronic pain.
In assessing all the evidence before the Tribunal a decision has to be reached about whether Mrs Chaplin has an accepted diagnosis of osteoarthritis (knees), toe condition, osteoarthritis (feet), ankle tendinopathy and plantar fasciitis resulting in a severe functional impact on activities using her lower limbs. These conditions are long-standing and have been extensively treated and the Tribunal concurs with the Respondent who considers the condition as being fully diagnosed, treated and stabilised. The Respondent accepts, and the Tribunal agrees, that while surgery has been recommended for this condition it will not occur within the next two years under the public health system.
At the hearing the Respondent took Mrs Chaplin to Table 3 - Lower Limb Function to assess her functional activities under the Impairment Tables.
Mrs Chaplin advised hearing that;
·she had great difficulty walking around a shopping centre and only undertook small shopping trips and that when shopping she utilises a trolley to lean on to give her balance. She also advised she could no longer access her clothes line as she could no longer navigate the stairs in her backyard to reach it.
·that she had a great deal of difficulty walking from the carpark into a shopping centre and had been relying upon her mother’s disability parking permit to access parking as close as possible to the shopping centre. She advised the Tribunal that she had recently been granted her own disability parking permit and that she only went to local small shopping centres and could not navigate a large shopping centre.
·that she was unable to move from a sitting position to standing without assistance.
·that she could not utilise buses and required assistance if using public transport.
The Respondent took Mrs Chaplin to the JCA report dated 10^th of November 2015 where it reported “that she is able to walk around without assistance, can drive without any issues, and is able to live independently without support.” Mrs Chaplin advised she would not have reported that at the time of the interview and that it was certainly not the case. She said had a great deal of difficulty getting up and down and was indeed embarrassed in public because of a lack of mobility.
Whilst the Tribunal found that Mrs Chaplin had difficulty with her mobility, it was not satisfied that the impairment from these conditions was extensive enough to award 20 points for a severe impairment under Table 3 as she was still able to walk and drive her car. The Tribunal found the condition caused moderate impairment and awarded 10 points accordingly.
Restless leg syndrome
Dr Hardy stated that Mrs Chaplin suffered from restless legs syndrome and was being treated with medication in her 9 July 2014 report.
Dr Chau reported that Mrs Chaplin has been diagnosed and treated for restless legs syndrome under the care of Dr E Butler and had been on Sifrol and Clonazepam since at least 2003, however the condition still causes her to be awoken at least one to two times per night.
Mrs Chaplin advised the Tribunal that her restless legs syndrome bothered her both day and night, she found it difficult to sit in one position for any length of time and it caused her to have pins and needles and numbness in her legs and woke her often during the night. The result was that she was often fatigued in the morning and found sitting for any length of time to be very difficult. The Respondent accepted that this condition was fully diagnosed, treated and stabilised but found it did not of itself result in additional impact on her lower limb function.
The Tribunal accepts that Mrs Chaplin’s restless legs syndrome is fully diagnosed, treated and stabilised and is impacting upon her functional activity but this has been captured in points awarded under Table 3 - Lower Limb Function. In accordance with s 10(5) and (6) of the Impairment Tables, where two or more conditions cause a common or combined impairment, a single rating should be assigned under one table in relation to the impairment. The Tribunal therefore cannot award any points for this condition.
Osteoarthritis (hands), finger condition, carpal tunnel syndrome, shoulder condition
Dr Hardy stated that Mrs Chaplin suffered from osteoarthritis in her feet and hands relating to the previous road accident she was involved in, as outlined in paragraph 56 of this decision.
Dr Chau reported that Mrs Chaplin has had bilateral carpal tunnel syndrome and a right shoulder rotator cuff tear and that she can only write or use a keyboard for a few minutes before her hand goes numb. She has difficulty dressing, for example doing up her bra and has difficulty opening bottle tops.
At the hearing Mrs Chaplin advised she had carpal tunnel syndrome for many years and that it was treated conservatively with exercise. She stated that she had had numerous x-rays on her shoulders and may undergo cortisone injections, but she was still being monitored in respect of this. She said she has difficulty using a computer and resorts to handwriting most of her correspondence, but as could be observed from the material she presented to the Tribunal, she had difficulty with this as well. She stated that she had constant pins and needles in her hands and that her middle finger had been crushed between two rocks, resulting in a deformity and caused severe pain. She stated she had difficulty lifting or carrying anything heavy or holding even a small lightweight object. Again she advised all her conditions were being treated by medication and in accordance with treatments recommended by her treating specialist.
In assessing all the evidence before the Tribunal a decision has to be reached about whether Mrs Chaplin has an accepted diagnosis of osteoarthritis (hands), finger condition, carpal tunnel syndrome, shoulder condition resulting in a severe functional impact on activities using her upper limbs. This condition is long-standing and has been extensively treated and the Tribunal accepts it is fully diagnosed, treated and stabilised.
The Tribunal could not find corroborating medical evidence that Mrs Chaplin had difficulties with performing activities requiring use of her hands and arms and as such awarded nil points under Table 2 – Upper Limb Functions.
Fibromyalgia
Dr Aw’s report of 31 March 2008 stated that Mrs Chaplin is troubled by paraesthesia in her hands and feet and she is also generally aching and stiff. He opined that, in the absence of any other underlying abnormalities on her screening blood tests and her lack of response to Plaquenil, fibromyalgia is probably the cause of these ongoing symptoms.
As outlined in paragraph 45 of these reasons Dr Chau recorded a diagnosis of fibromyalgia in a document tabled in these proceedings.
Mrs Chaplin advised the Tribunal that she has constant pain throughout her body that often presents as pins and needles. She stated that she is constantly fatigued, suffers spasms and that she had a great deal of trouble sitting, standing, and walking for any length of time. In the last 12 months she has resorted to using a walking stick and continues to take pain medication and anti-inflammatories daily to alleviate symptoms. She disputed the Respondent’s contention that she had not undertaken a pain management course as she was complying with all recommendations of her various treating doctors. She further advised the Tribunal under questioning from the Respondent that she had recently suffered numerous falls through losses of balance; that her legs give way and that she has experienced spasms in the spine. Mrs Chaplin described that she had great difficulty getting up and even referred to herself as “like a beached whale rolling over to right herself”.
The Tribunal accepts that Mrs Chaplin’s fibromyalgia is fully diagnosed, treated and stabilised and is impacting upon her functional activity. However, it considers that the associated impairment also results from her lower limb and spinal conditions which have already been assessed under Table 3 and Table 4 respectively. The rules under s 10(5) and (6) of the Impairment Tables relating to two or more conditions causing a common impairment therefore apply and the Tribunal does not grant any points for this condition.
Peripheral vascular disease and claudication,

Mr Yew-Ming Kuan, vascular and endovascular surgeon, in a report of 27 October 2015 opined that Mrs Chaplin then had mild peripheral vascular disease, which appeared to be relatively stable and she was probably better served with conservative management at that time. He recommended she undertake a regular walking exercise program to improve her level of activity and noted she had given up smoking.
Mrs Chaplin advised the Tribunal that she had undertaken the walking program for some time but other conditions such as the issues with her feet and back and her obesity impacted upon her ability to persist with the program. She had instead undertaken hydrotherapy, either at the local pool or at the beach, however she explained walking along the sand caused her excruciating pain and she was often fatigued after the exercise.
The Respondent accepts that this condition was fully diagnosed, treated and stabilised during the qualifying period but that it was causing minimal impact upon her functional ability.
The Tribunal was satisfied that this condition was fully diagnosed, treated and stabilised and that Mrs Chaplin has ongoing problems with her functional activities that require physical exertion and stamina. However there was insufficient medical evidence to establish that Mrs Chaplin suffered a level of impairment from the condition which would allow the assignment of points under Table 1 - Functions requiring Physical Exertion and Stamina. The Tribunal finds that the condition had a limited or minimal functional impact and does not award any points for it.
Hypertension, asthma, morbid obesity, diabetes, insomnia, hypercholesterolemia and reflux oesophagitis
Dr Hardy’s July 2014 report listed hypertension, asthma, overweight, insomnia, hypercholesterolemia and reflux oesophagitis as conditions which had minimal or limited impact on Mrs Chaplin’s ability to function and for which she was being treated with various medications.
Dr Chau reported that Mrs Chaplin has been on Seretide and Ventolin for her asthma which is generally well controlled and although she does get breathless, this may be due to her weight and level of fitness.
The Respondent accepts that these conditions were fully diagnosed during the qualifying period but contends that there was insufficient medical evidence to conclude that they were fully treated and stabilised.
Mrs Chaplin observed that as the hearing was being conducted by telephone the Tribunal and Respondent were not in a position to assess her obesity. She stated her current weight, which has ballooned following an infection post-surgery many years ago, causes great distress, embarrassment and restriction on her ability to look after herself. Mrs Chaplin advised the Tribunal her current weight would be a great impairment to her returning to the workforce in either a part-time or full-time capacity. She has found ways around the situation, such as sitting on the toilet to get dressed. She stated that she walks “like a penguin”, is unable to go up and down stairs, has difficulty standing from a sitting position, can’t use buses, finds using public transport very difficult and seeks assistance from her grandson, son and friends to undertake many activities around the house.
The Tribunal was satisfied that each condition was fully diagnosed during the qualifying period, however there was a lack of evidence to indicate that each was fully treated and stabilised. Dr Hardy’s and Dr Chau’s reports do not indicate any specialist intervention or treatment beyond the prescription of medication. Furthermore, whilst the Tribunal accepts Mrs Chaplin’s evidence regarding the difficulties she has with her weight, the resulting impairment is associated with walking and performing physical activities which again have been previously considered under Table 3 - Lower Limb Function and Table 4 – Spinal Function. As noted, a single impairment resulting from multiple conditions cannot be counted twice in respect of awarding points and therefore nil points are awarded by the Tribunal for these conditions.
TOTAL IMPAIRMENT POINTS
The Tribunal finds that Mrs Chaplin is allocated a total of 20 points for her impairments during the qualifying period. This total was comprised of 5 points under Table 5 – Mental Health Function, 5 points under Table 4 – Spinal Function and 10 points under Table 3 – Lower Limb Function. She therefore satisfied s 94(1)(b) of the Act.
DOES MRS CHAPLIN HAVE A CONTINUING INABILITY TO WORK?
As Mrs Chaplin satisfied the requirement that she has an impairment rating of 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work under s 94(1)(c)(i) of the Act. Under s 94(2)(aa) Mrs Chaplin would be considered to have a continuing inability to work if she does not have a severe impairment and has actively participated in a program of support within the meaning of s 94(3C). Mrs Chaplin does not have a severe impairment as defined s 94(3B) as the Tribunal did not allocate 20 points under a single table and therefore the program of support requirements apply to her. She must have participated in a program of support for at least 18 of the 36 months prior to her DSP claim and her impairment must of itself be sufficient to prevent her from doing any work independently of such a program.
Mrs Chaplin advised the hearing that she had attended a disability support provider but had been advised that they could not help her in any way because of her numerous medical conditions and it was pointless for her to attend any further sessions. They did not provide her with an exit certificate, but suggested she approach the Ombudsman. She has attended all sessions as requested by Centrelink but has always had medical exemption. Mrs Chaplin was not aware that this would not exempt her from the requirement to undertake the program of support.
Mrs Chaplin has provided numerous medical reports from various specialists which all conclude she has no capacity to undertake employment. Mrs Chaplin advised the tribunal that she believes she is completely at a standstill and she has no capacity to work 15 to 22 hours a week and cannot agree with the JCA report that made this finding. The Tribunal however must strictly enforce the program of support requirements when they are applicable and finds that no power exists to dispense with their operation. It is irrelevant whether an applicant was aware of the requirements or not.
As Mrs Chaplin has not completed a program of support she does not satisfy s 94(3C) of the Act. She therefore does not have a continuing inability to work under s 94(2)(aa) and does not satisfy s 94(1)(c)(i). Without meeting all the requirements of s 94(1)(c) her application cannot succeed.
CONCLUSION
Having carefully considered all the available evidence, the Tribunal finds that at the time of her original application for DSP on 26 August 2015 Mrs Chaplin met the requirement of having 20 points under the Impairment Table to satisfy s 94(1)(b) of the Act. However as she did not have a severe impairment and had not completed a program of support in accordance with s 94(3C) of the Act, she did not have a continuing inability to work as per s 94(1)(c)(i) and hence did not satisfy all the criteria under s 94(1). Mrs Chaplin therefore did not qualify for DSP at the date of her application or within the qualifying period.
DECISION
The decision under review is affirmed.

I certify that the preceding 93 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

...........................[sgd].............................................
Dated: 20 October 2017

Date of hearing: 31 August 2017

Applicant: Self-represented

Advocate for the Respondent:
Pietro Nacion

Solicitors for the Respondent: Sparke Helmore

[2017] AATA 1809

20 October 2017

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Administrative Law

Statutory Interpretation

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Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	31 August 2017
Applicant:	Self-represented
Advocate for the Respondent:	Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore