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

Chilton and Secretary, Department of Social Services (Social services second review) [2020] AATA 130 (6 February 2020)
Division:GENERAL DIVISION
File Number: 2019/0918
Re:Mrs Maggie Chilton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:6 February 2020
Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
.............[sgd]...................................................
Ms Anna Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – from spinal condition, osteoarthritis of the knees, bipolar disorder, lupus, right shoulder arthritis and conjunctival irritation – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna Burke AO, Member
6 February 2020
INTRODUCTION

Mrs Maggie Chilton (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Human Services.
Mrs Chilton lodged a claim for DSP on 3 August 2017. On 21 March 2018 an employee of Centrelink decided that Mrs Chilton was not entitled to a DSP as she did not meet the requirements of the Act. On 23 October 2018, an Authorised Review Officer (ARO) of Centrelink affirmed the decision made. Mrs Chilton sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 30 January 2019.
The application was heard via telephone on 15 January 2020. Mrs Chilton was self-represented and Ms Anneliese Massey, solicitor of Sparke Helmore Lawyers, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Massey.
THE ISSUES IN CONTENTION
The issues in contention are whether Mrs Chilton:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a fully diagnosed, treated and stabilised condition or conditions which result in impairments attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)has a continuing inability to work.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999, Mrs Chilton’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 16 August 2017 to 15 November 2017 (the qualifying period).
BACKGROUND
Mrs Chilton is 47 years of age and lives with her husband and 2 adult daughters from her previous marriage. Mrs Chilton completed year 12 and for a short time worked in retail and child care; she last worked some 20 years ago.
Mrs Chilton was previously in receipt of the DSP from 2008 until January 2017, for her bipolar disorder, carpal tunnel syndrome and cervical spondylosis. Her DSP was then cancelled due to exceeding the income threshold under the income test.
On 16 August 2017 Mrs Chilton made an application for DSP, citing her medical conditions as lupus, major depression (bipolar), nerves in knees, back problems, arthritis and hypertension.
On 15 March 2018 Centrelink conducted a face to face job capacity assessment (JCA) with Mrs Chilton. The JCA assigned a total impairment rating of 20 points based on her claimed conditions:
(a) bipolar affective disorder – Table 5 – 5 points;
(b) spinal disorder – Table 4 – 5 points;
(c) lupus – Table 1 – 10 points; and
(d) osteoarthritis – Table 3 – nil points.
The JCA summarised the supporting reasons for a total impairment rating of 20 points as follows:
Previously (2008) the customer was assessed with a 10 point rating for depression, a 10 point rating for carpal tunnel syndrome and a 5 point rating for a neck disorder. Currently there is a mild rating due to bipolar, a mild rating due to the customers lumbar spine function, a moderate rating for lupus and no impact on lower limb function due to her knee osteoarthritis. These changes are in line with the current impairment tables and current medical evidence.
Previously work capacity was assessed at 0 to 7 hours per week baseline and with intervention. Currently the customer is assessed with an 8-14 hours per week baseline work capacity of 15-22 hours per week with intervention work capacity. As the customer has not participated in a Program of support prior to assessment, this changes in line with current Social Security Legislation.
On 26 July 2018 an additional face to face JCA was conducted, following Mrs Chilton’s appeal of the refusal of her DSP claim. The JCA assigned a total impairment rating of 25 points based on:
(a)bipolar affective disorder – Table 5 – 5 points;
(b)spinal disorder – Table 4 – 5 points;
(c)lupus – Table 1 – 10 points;
(d)osteoarthritis – Table 3 – 5 points;
(e)diverticular disease – Table 10 – nil points; and
(f)shoulder and upper arm disorder – Table 2 – nil points.
The JCA summarised the supporting reasons for a total impairment rating of 25 points as follows:
The current assessments of bipolar, spinal function (lumbar/cervical), lupus, lymphedema are assessed as they were previously (20/3/18). Knee osteoarthritis is now assessed with a mild impact on Lower limb function, which fits better with current evidence. Work capacity is assessed as it was previously.
On 23 October 2018 the Health Professional Advisory Unit (HPAU), comprised of a qualified nurse, provided an opinion on an impairment rating relating to overall pain, following additional medical advice Mrs Chilton had provided to the ARO in relation to her functional capacity of the spine. The HPAU assigned her a total impairment rating of 20 points based on:
(a)spinal disorder – Table 4 – 10 points;
(b)lupus – Table 1 – 10 points;
(c)osteoarthritis – Table 3 – nil points as lower limb difficulties had been already considered in functional impact under Table 1 and impairment could not be counted twice; and
(d)shoulder and upper arm – Table 2 – nil points.
On 23 October 2018, on internal review, an ARO of the department affirmed the earlier Centrelink decision that Mrs Chilton’s total impairment rating was 30 points, comprising:
(a)bipolar affective disorder – Table 5 – 5 points;
(b)spinal disorder – Table 4 – 10 points;
(c)lupus – Table 1 – 10 points;
(d)osteoarthritis – Table 3 – 5 points;
(e)diverticular disease – Table 10 – nil points; and
(f)right shoulder disorder– Table 2 – nil points.
The ARO stated:
Your total impairment rating is therefore 30 points.
To qualify for Disability Support Pension, you also need to have a continuing inability to work.
To demonstrate a continuing inability to work, you must have a severe impairment, which is an impairment that has been given 20 points or more under a single Impairment Table, or you must have actively participated in a program of support in the 36 months prior to your claim being lodged on 16 August 2017.
As none of your conditions have been assigned an impairment rating of 20 points under a single table, I have found you do not have a severe impairment.
A program of support is a program designed to help you to prepare for, and find or maintain work, taking into account your medical conditions, level of impairment and individual needs. The government usually funds these programs.
On 30 January 2019 the Tier 1 affirmed the decision of the ARO to reject Mrs Chilton’s DSP claim. The Tier 1 assigned Mrs Chilton an impairment rating of 20 impairment points, comprising:
(a)bipolar affective disorder – Table 5 – 5 points;
(b)spinal disorder – Table 4 – 5 points;
(c)osteoarthritis – Table 3 – 5 points; and
(d)visual function – Table 12 – 5 points.
. The Tribunal noted:
The view of the Tribunal is that the allocation of impairment ratings is particularly complex in matters such as this, where there are multiple conditions associated with symptoms which may cause overlapping functional impairment. The tribunal also considers there is some lack of clarity and consistency in some of the supporting clinical documentation. However, the tribunal notes that each of the prior assignments finds that the impairment rating is 20 points or greater, and the tribunal was satisfied that Mrs Chilton has an impairment rating of at least 20 points.
…
Mrs Chilton does not have a severe impairment, as an impairment rating of 20 points or greater has not been assigned under one specific impairment table.
The tribunal finds that, in regard to this application, there is no evidence of participation in a program of support prior to the date of claim for disability support pension.
On 13 February 2019, Mrs Chilton sought a review of the Tier 1 decision by this division of the Tribunal, stating in her application: As I previously tried to explain due to financial circumstances I had the disability support pension taken from me. As my health has deteriorated we are now suffering financial hardship and mental anguish.
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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states 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 requires that “self-report of symptoms alone is insufficient” and 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) of the Impairment Tables states:
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.
For the purposes of s 6(7) of the Impairment Tables, 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, during the qualifying period, Mrs Chilton suffered an impairment(s) that can be assigned 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. They 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.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 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 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.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS determination) sets out a number of exemptions to the general requirements that a person must participate for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) The program of support was terminated before the end of the relevant period; and
(b) The program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Mrs Chilton.
DOES MRS CHILTON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Mrs Chilton is suffering from a spinal condition, osteoarthritis of the knees, bipolar disorder, lupus, right shoulder arthritis and conjunctival irritation. The Tribunal finds that Mrs Chilton was living with impairments during the qualifying period and therefore meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MRS CHILTON HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Spinal condition
Dr V I Karlov, consultant physician, in an assessment of Mrs Chilton’s medical status dated 16 August 2017 opines:
(iii) I have been treating her for back pain and she underwent an MRI of her lumbar spine which showed annular disc bulges at L3/4 and L5/S1 with fissuring at L2/3 and L5/S1. At L3/4 disc could be in contact with the L2/3 nerve roots. In actual fact she gets pain down the leg consistent with this and the nerves are being contacted. At L3/4 the disc is in contact with the existing L4 nerve without compression.
Thus she has an unstable back with multiple discs and these are causing leg symptoms.
(iv) She complained of not being able to feel her legs and underwent a Nerve Conduction Study. This showed a lower limb sensory neuropathy which seems to be progressing and I have ordered a further NCS.
…
(vi) She also suffers from bilateral lymphoedema of her legs which makes her legs heavy and slows her mobility.
With all this pathology she has limited ability to maintain posture, difficulty in sitting, and tendencies for the knees to go weak when she stands up, numbness of the legs, back pain and leg pain from a lumbar disc lesions additionally she has had a melanoma in the past and would appear that she has recurrences.
Dr Nidham Oda, general practitioner, in a letter of support for Mrs Chilton’s DSP claim dated 23 August 2017 opines:
Multi-level disc bulges at L3/L4, L5/S1.
Diagnosed in 2016
Treatment: pain killers… physiotherapy for long years
Dr Oda identifies the symptoms and functional impact as constant pain, severe, restricted movements, poor sleep, unstable back and leg symptoms.
Dr Oda provided additional medical evidence to Centrelink via phone on 19 March 2018 in support of Mrs Chilton’s DSP claim in which he identified that Mrs Chilton’s musculoskeletal issues were her biggest problem. Dr Oda stated multiple lumbar disc bulges and degenerative changes were present and agreed Mrs Chilton would have difficulty bending to knee height. He described the symptoms as: flares of joint pain, affects different areas during flares, affects her ability with domestic tasks and exacerbates other physical conditions.
Dr Oda’s report of 1 June 2018 opines:
L5 nerve root compression causing a lot of symptoms in both lower limbs and lower back. She has disc bluges[sic] at L3/L4, L5/S1 and fissuring at L2/L3, L5/S1.
This preclude any lifting, bending or sweeping motions can result in serious nerve root lesion, further deterioration is highly expected in those areas as per the medical report from a treating physician, Dr Karlov.
Dr Karlov’s written reply to the HPAU received on the 19 September 2018 states:
Maggie has very significant musculoskeletal health … with deterioration and no hope of improvement.
Can Maggie reliably perform an overhead activity? She has lumbar disc lesions… Over head activity difficult
Does Maggie have any difficulties moving her head to look up or over her shoulder? Has facet joint… in neck which limits neck movements in general
Does Maggie have any difficulties turning her trunk? Disc lesions again limit back movement
Can Maggie reliably bend to retrieve a light item placed at knee level or waist height? Yes
How long can Maggie reliably remain seated in a regular chair? 5 minutes

Dr Oda, Mrs Chilton’s general practitioner since 2012, in a report compiled for this hearing dated 27 August 2019, states that she has been suffering from multiple chronic medical conditions and his report was based on her conditions as they were in August 2017. Dr Oda opines:
Back problems, date of diagnosis 9/07/2010; Symptoms: back pain, stiffness, pain in both legs, difficulty in maintaining posture especially while sitting or during prolonged walking. Frequency: symptoms happen on a daily basis. Maggie stated that her symptoms have further worsened over the last few months. According to Maggie, she is now quite restricted in bending forward or sitting for longer than 10 minutes. Treatment: pain killers, encourage mobility, stretching and physiotherapy. Maggie is on continuous pain killers.
As Maggie has multiple degenerative changes in her spine including L5 nerve root compression that causes a lot of symptoms in both lower limbs and lower back. Maggie also has disc bulges at L3/L4, L5/S1 and fissuring at L2/L3, L5/S1, and unfortunately there is little to offer in terms of curative treatment.
Impairment rating: In my opinion, as Maggie claims that she has deteriorated, her impairment rating for a back problem is currently 20.
Mrs Chilton advised the Tribunal that the situation was extremely difficult and she just could not understand why it was so hard to be placed back on the DSP which she had been entitled to for a considerable period of time. She was perplexed as her DSP had been cancelled not because she was medically ineligible but because her husband had assets in excess of the cut off limit, and indeed her conditions were deteriorating and she was worse now than when she had first been eligible for the DSP in 2008. She stated that her condition and functionality now, although deteriorating, was as bad in August 2017 when she reapplied for the DSP. Mrs Chilton argued that Dr Oda’s opinion of 27 August 2019 reflected her functionality and condition as it was in August 2017. Mrs Chilton agreed that she was able to look after her personal hygiene and perform some light tasks around the home but this varied from day to day particularly depending on her pain levels and depression.
In her oral evidence before the Tribunal, Mrs Chilton emphasised that her financial and health position was very difficult; that money was very tight and because of her numerous conditions everything was incredibly difficult. She also stated that some of her illnesses can stabilise for a while but then they re-occur, particularly the lupus (which had been fine for a while but then she had been rushed to emergency because of a blood infection). She argued that it was extremely hard to say if her conditions, such as lupus, had stabilised as her condition changes from day-to-day; however she is not getting better. Most days she is too ill to get out of bed and in the morning she is particularly scared to take her first step. Mrs Chilton said that she does not feel confident driving, going to the shops or indeed being home on her own. She also stated that she is scared, depressed, cut off from the world and fundamentally cannot cope. She no longer drives, relying on her husband to take her shopping and to her numerous medical appointments. During the qualifying period she had several falls, having collapsed when her knees had given way underneath her. She said she feels like a complete burden on her husband and daughters, feeling she has failed her children as they have to carry the burden of the house work and she is no longer able to be a real mother to them. She feels her daughters have been particularly affected by her medical condition. Fundamentally, she feels she is being punished for being sick.
The Tribunal considered Dr Oda’s comments to Centrelink when providing additional medical advice in support of Mrs Chilton’s disability claim via phone on 19 March 2018, I that musculoskeletal issues were her biggest problem with the impact of multiple lumbar disc bulges and degenerative changes.
The Tribunal also had regard to the HPAU report, which stated:
I was unable to speak directly with Dr Karlov. On request, Dr Karlov provided a report to HPAU on 02.10.2018. The report confirms Mrs Chilton has difficulty with overhead activities in the context of her lumbar disc lesions, noting she is also confirmed to have peripheral neuropathy and vasovagal episodes, which affects this. Dr Karlov confirmed facet joint disease limits neck movements in general, whilst disc lesions limit her general ability to turn her trunk. He indicated that Mrs Chilton can reliably retrieve a light item from knee and waist height, and can stand from a seated position with neck pain. Dr Karlov confirmed that Mrs Chilton’s capacity to sit on a regular chair is limited to 5 minutes. Dr Karlov noted that her condition has significantly changed in 12 months and additionally advised that her combined musculoskeletal health issues will deteriorate with no chance of improvement.
…
The new evidence provided by Mrs Chilton to the ARO appears to correlate with Dr Karlov’s report to HPAU, which notes in the past 12 months that she has deteriorated. This also seems to be consistent with the June 2018 report from Dr Oda, which indicates there was a change in analgesia from Tramadol and Panadol osteo (as needed) to Panadeine Forte four times a day and Voltaren as needed.
This evidence of a change in her condition is outside of the claim period; however, it may have relevance for future DSP claims. As noted in Dr Karlov’s report to HPAU Mrs Chilton has general difficulties accessing overhead items, turning her neck and trunk, and sitting for 5 minutes. I note that Dr Oda in June 2018 also noted that to avoid risk of future damage she should avoid lifting, bending and sweeping.
During the hearing, the Tribunal explored the functional impact of Mrs Chilton’s spinal impairment under Table 4 of the Impairment Tables because her accepted condition of lumbar/cervical spine primarily impacts on her spine’s functionality. In particular, the Tribunal explored her capacity in respect of a severe functional impact. Table 4 states:
Table 4 – Spinal Function – 20 points
There is a severe functional impact on activities involving spinal function.
(1)       The person is unable to:
(a)       perform any overhead activities; or
(b)       turn their head, or bend their neck, without moving their 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.
Mrs Chilton gave evidence that during the qualifying period:
·she was unable to perform overhead activities; she could not lift her arms above her head to wash or brush her hair and indeed did neither as she has curly hair; further she explained that she could not hang washing on the line; and emphasised she had explained this at the original JCA but it was like talking to a brick wall
·she could not turn her head or neck; she was getting sharp pains in her neck; she had trouble moving side to side and up and down, and explained that this movement placed great pressure on her neck and down her back; she did not have to deal with blind spots while driving as she no longer drove because she found sitting for long periods of time too difficult and was too scared to drive because of all her underlying health conditions
·she would have found it difficult to pick up a light object from a desk or table, but it always depended on the amount of pain she is in at the time; she had difficulty with putting on shoes and lives in her thongs as she is able to slip them on and off without bending forward
·she could remain seated for 10 minutes, but sitting caused pain in her back and undertaking activities such as standing to cook dinner hurt a great deal, and she would sit and stand; but both sitting and standing were too painful so she was constantly moving; she no longer drove and relied upon her husband to take her places; when she was a passenger in the car she often suffered a great deal of discomfort
The Respondent accepts that Mrs Chilton’s spinal condition was fully treated and stabilised during the qualifying period, noting her spinal condition had been treated with medication and physiotherapy for several years. They accepted that at the qualifying period there was no suggestion that any further treatment was planned for her spinal condition.
The Respondent submitted that the medical evidence supports a moderate functional impairment under Table 4 during the qualifying period, and 10 points should be assigned to this condition. They contended there was corroborative evidence during the qualifying period that Mrs Chilton was able to at least sit for 30 minutes and was able to sustain activities over head height.
The Respondent did not concur with the 20 point rating of Mrs Chilton’s general practitioner Dr Oda as his report indicates that Mrs Chilton had reported her condition had deteriorated in recent months.
The Tribunal noted the Tier 1 decision had assigned five points under Table 4 for Mrs Chilton spinal condition, finding:
… Mrs Chilton has difficulty with spinal movement such as turning her trunk or moving her head. The tribunal is mindful of the conflicting evidence in regard to capacity to bend forward to pick up a light object placed at knee height. While there is evidence to support the higher rating on this basis, the tribunal has been hesitant to disregard the evidence of the treating rheumatologist in reply to the Health Professional Advisory Unit received on 19 August 2018, in which Dr Karlov states that Mrs Chilton can reliably bend to retrieve a light object placed at knee height.
Having considered all the evidence before it, the Tribunal is satisfied that Mrs Chilton’s long standing spinal condition was fully diagnosed, treated and stabilised during the qualifying period, relying upon MRI investigation and reports of treating doctors.
The Tribunal concurred with the view expressed by the Member in the Tier 1 decision when they reflected it was difficult to allocate an impairment rating in particularly complex matters such as this, where an individual has numerous medical issues resulting in multiple conditions, which can be associated with symptoms causing overlapping functional impairment. The Tier 1 also noted this was compounded by the lack of clarity and consistency in some of the medical evidence. The Tribunal noted there was also conflicting interpretation of the medical evidence by the various assessors.
The Tribunal finds that Mrs Chilton’s spinal condition was having a severe impact on her functionality during the qualifying period as she had self-reported, and as corroborated by her treating medical practitioners, as she could not perform overhead activities, turn her head or bend her neck, bend forward to pick up a light object or remain seated for a least 10 minutes. The Tribunal relied upon the medical evidence of Dr Oda who had advised that Mrs Chilton’s musculoskeletal issues were her biggest problem and were caused by the impact of her multiple lumbar disc bulges and degenerative changes. Dr Oda has opined consistently that Mrs Chilton would have difficulty bending to knee height. Whilst the Tribunal notes that Dr Oda’s report confirms Mrs Chilton’s condition has deteriorated in the past 12 months, her report is premised on the basis of Mrs Chilton’s functionality as at August 2017. The Tribunal notes that the HPAU assigned 10 points under Impairment Table 4 on the basis Mrs Chilton: could not bend to knee level as reported by Dr Oda; had difficulty performing overhead activities as reported by Dr Karlov; had difficulty remaining seated for five minutes as reported by Dr Karlov; and had limited neck movement as reported by Dr Karlov. The Tribunal therefore assigned 20 points under Table 4 – Spinal Function for this condition.
Osteoarthritis of the knees
Dr Karlov’s report of 16 August 2017 opines:
(v) She has osteoarthritis of both knees. The knees tend to “give way” she gets up from a sitting position. There is tenderness over the joint line.
Dr Oda’s report of 27 August 2019 opines:
Arthritis in both knees
Date of diagnosis 2010.
Symptoms: knee pains, stiffness, clicking, locking and occasional knees giving way. Unable to stand or walk for long time without having to rest.
Frequency: daily symptoms.
Treatment: symptomatic management of pain, previously tried physiotherapy and rheumatologist care as the knee issues are multifactorial. Maggie is not a candidate for knee surgery at this time. Maggie is currently on maximum medical treatment. Knee replacement is preserved for advanced arthritis.
Impairment rating: in my opinion, Maggie’s impairment rating for her knee arthritis is 10.
Mrs Chilton advised the Tribunal that she had a great deal of difficulty walking any distance and that she would always attend the supermarket with her husband. She advised that she has a disability sticker for the car so they park very close to the entrance where she grabs a trolley and leans on it to do the shopping. She said that once upon a time she was a keen shopper but was no longer capable. She informed the Tribunal that she has limited standing tolerance; cannot sit for long periods of time; moves from sitting to standing to deal with pain; and is capable of standing from a sitting position without assistance. Mrs Chilton advised the Tribunal that she cannot use steps – she does not go up steps at all. Mrs Chilton indicated that she has minimal reflexes in her knees and suffers considerably from swelling of her knees. She has to elevate her legs at least four times a week to reduce the swelling. Often she has no feeling in her knees, and has literally fallen flat on her face on numerous occasions when her knees have given way. Mrs Chilton did not indicate her ability to utilise public transport but did comment she was no longer able to leave her home without the assistance of her husband.
The Respondent accepts that Mrs Chilton’s osteoarthritis was fully diagnosed, treated and stabilised during the qualifying period, noting that her condition was treated with analgesia and lifestyle changes, and the medical report indicating the condition was not severe enough to require a knee replacement or walking aids.
The Respondent noted that while the medical evidence corroborated that Mrs Chilton had difficulty with long standing and walking, this had not been quantified in terms of time or distance. They submitted that a nil rating should be assigned for this condition under Table 3.
Having considered all the evidence before it, the Tribunal is satisfied that Mrs Chilton’s long standing arthritis in both knees was fully diagnosed, treated and stabilised during the qualifying period, relying upon radiological investigation and reports of treating doctors.
The Tribunal finds that Mrs Chilton’s condition of osteoarthritis of the knees was having a moderate impact on her functionality during the qualifying period as she self-reported and as corroborated by her treating medical practitioners, as she had difficulties with walking far outside the home or around a shopping centre, using stairs, performing household activities or undertaking any strenuous activity. The Tribunal therefore assigned 10 points under Table 3 - Lower Limb Function for this condition.
Bipolar disorder
Dr Karlov’s report of 16 August 2017 opines:
She suffers from bipolar disorder with depression the current predominant symptom. She is under the active care of a psychiatrist who is monitoring her medication which has recently required a change.
Dr Oda’s report of 23 August 2017 opines:
Bipolar disorder with current depression
Diagnosed 2011
Treatment: medications… psychology counselling
Was under the care of consultant psychiatrist
Dr Oda identifies the symptoms and functional impact as depressed mood, poor concentration, no energy levels and fluctuating mood.
Dr Oda on 19 March 2018 confirmed a diagnosis of bipolar, indicating symptoms and functional impact as:
may have issues with socialising and travelling in the community but he wasn’t sure, does not have a lot of friends, but is a personable friendly person, did not think she had other social issues. difficulty concentrating for an hour, difficulty coping at the moment due to family issues, which impacts on her mood, causing ups and downs.
Dr Oda’s report of 27 August 2019 opines:
Mental health: bipolar disorder with current depression
Date of diagnosis: 2013.
Symptoms: depressed mood, loss of interest, poor sleep, poor concentration, tiredness, no energy, feelings of guilt, weight loss, negative thoughts and anger.
Frequency: symptoms fluctuate in severity but occur on daily basis.
Treatment: antidepressants and mood stabilisers mainly followed up by her GP as initial diagnosis by a psychiatrist was quite some time ago. She is currently on maximum treatment; symptoms can be unpredictable with relapses and remissions.
Impairment rating: in my opinion, Maggie’s impairment rating for a mental health is 5.
Mrs Chilton advised the Tribunal that her bipolar disorder causes her a great deal of concern. She said that she used to have friends, and now she no longer sees anyone including her family. She relies heavily upon her husband and did not even see her parents at Christmas time. She has no urge to do anything at all and this condition affects every aspect of her life.
Mrs Chilton advised the Tribunal she has no ability to concentrate, she cannot register anything, she forgets things, she cannot read or watch TV as she does not remember anything, and she simply loses sight of all things. Mrs Chilton advised the Tribunal that her normal day consists of getting up, not eating during the day, wandering around the house sitting and standing to be comfortable, waiting for her husband to come home and then forcing herself to eat dinner. Mrs Chilton advised the Tribunal that her husband had sold his business and was now running a Jim’s Mowing Service so he could work around her needs. However, he has only been able to take on very little work as her needs are increasing. She stated she lives a very boring life, not listening to the radio or watching TV. She feels she is a burden and that her children are losing out because of her condition, and feels they have been scarred after witnessing her nearly dying in front of them.
The Respondent accepts that Mrs Chilton’s mental health condition was fully diagnosed, treated and stabilised during the qualifying period as she had been under the active care of a psychiatrist in relation to management of this condition, and it was being treated with medication and psychological counselling.
The Respondent contended that the available medical evidence indicated that Mrs Chilton’s bipolar disorder resulted in a mild functional impairment and should be assigned five points under Table 5 as she had mild difficulties with social/recreational activities and travel; concentration and task completion; behaviour, planning and decision-making; and capacity to work.
Having considered all the evidence before it, the Tribunal is satisfied that Mrs Chilton’s long standing mental health condition described as bipolar with current depression was fully diagnosed, treated and stabilised during the qualifying period, noting she had been under the care of a psychiatrist for many years and had been continuously treated with medication.
The Tribunal finds that Mrs Chilton’s mental health condition was having a mild impact on her functionality during the qualifying period as she self-reported and as corroborated by her treating medical practitioners, as she had difficulties with independent living, social activities/travel, concentration and planning. The Tribunal therefore assigned five points under Table 5 - Mental Health Function for this condition.
Lupus
Dr Oda’s report of 23 August 2017 opines:
Lupus
Diagnosed 2015
Treatment: pain killers, physiotherapy and consultant care of Dr Karlov,
Symptoms and functional impact: constant pain, severe, restricted movement, poor sleep, unstable back, leg symptoms.

Dr Oda’s report of 27 August 2019 opines:
Lupus
Date of diagnosis: 2011
Symptoms: Maggie is currently in remission as per her rheumatologist, Dr Karlov. When symptomatic, she experiences several symptoms including joint pains and stiffness, fatigue, weakness, skin rashes, weight loss, swallowing issues. When active these can occur daily.
Treatment: she is currently on in immune modifying agents and is under the care of Dr Karlov. Maggie is currently on maximum medical treatment
Impairment rating: in my opinion, Maggie’s impairment rating for her Lupus is 5.
Mrs Chilton advised the Tribunal that her Lupus leaves her stiff, sore, and very uncomfortable; and because it is an immune deficiency disorder it impacts all aspects of her health. She informed the Tribunal that her children were present when her specialist had advised that one day the condition would leave her wheelchair bound, and this had broken everyone’s heart. She said that whilst one doctor had reported it was in remission, this was not the case. She had recently been hospitalised with a blood disorder which had flared up the condition and she had spent time in emergency receiving intravenous antibiotics.
The Respondent accepts that Mrs Chilton’s Lupus condition was fully diagnosed, treated and stabilised during the qualifying period as confirmed by her treating doctor and evidence that the condition had been treated with medication and physiotherapy.
The Respondent contended that the evidence corroborates a moderate functional impairment, which could be assessed under Table 1 and assigned 10 points. They submitted that during the qualifying period Mrs Chilton experienced frequent symptoms, that she had difficulty performing day-to-day household tasks but was able to use public transport and walk around a shopping centre without assistance.
Having considered all the evidence before it, the Tribunal is satisfied that Mrs Chilton’s long standing condition of Lupus was fully diagnosed, treated and stabilised during the qualifying period, noting she had been under the care of a rheumatologist for many years.
The Tribunal finds that Mrs Chilton’s condition of Lupus was having a moderate impact on her functionality during the qualifying period as she self-reported and as corroborated by her treating medical practitioners, as she had difficulties with walking far outside the home or around a shopping centre, using stairs, performing household activities or undertaking any strenuous activity. The Tribunal assigned nil points under Table 1 – Functions Requiring Physical Exertion and Stamina for this condition, as the impact of this condition had been considered in respect of her functional impairment under Table 3 – Lower Limb Function. The Tribunal does this in accordance with the clear statement of the Impairment Tables Determination that when two or more conditions cause a common or combined impairment, a single rating should be assigned.
Right shoulder arthritis
Dr Oda’s report of 1 June 2018 opines:
Right shoulder arthritis
Started as rotator cuff tear, bursitis and impingement diagnosed 03/08/2007.
Treatment:
Had arthroscopic shoulder reconstruction by Melbourne Orthopedic Group on 14/03/2008.
Had a second arthroscopic soldier reconstruction by Melbourne Orthopedic Group on 20/11/2009.
Had epidural steroid injection at Austin Hospital 2009.
Painkillers: Panadeine forte.
Had physiotherapy for long years.
Symptoms and functional impact: constant pain, sever[e], restricted movements, poor sleep, secondary mood changes ability to stand walk for some time, affecting showering and toileting.
Prognosis: not very favourable.
Mrs Chilton advised the Tribunal that she had a rotator cuff tear in the past and surgery on her right shoulder, which gave her ongoing pain. Many of the symptoms and functional impact with her shoulder were also those noted in respect of her spinal condition.
The Respondent accepts that Mrs Chilton’s right shoulder arthritis was fully diagnosed, treated and stabilised during the qualifying period as it was a long-standing condition for which she had undergone numerous treatments. However, they contended there is insufficient corroborating evidence to assign any impairment rating under Table 2 for this condition as the evidence did not support a finding that Mrs Chilton had difficulty picking up heavy objects, handling very small objects, doing up buttons or reaching up or out to pick up objects.
Having considered all the evidence before it, the Tribunal is satisfied that Mrs Chilton’s long-standing right shoulder arthritis was fully diagnosed, treated and stabilised during the qualifying period, noting she had undergone extensive surgery in 2008 and 2009 and continues to experience pain and functional impact of the condition as noted by her general practitioner Dr Oda.
The Tribunal finds that Mrs Chilton’s right shoulder arthritis was impacting upon her activities of daily living during the qualifying period, particularly as raising her right arm above head height resulted in some functional difficulty. However, the Tribunal assigned nil points under Table 2 – Upper Limb Function, as the condition was not impacting on her ability to perform tasks with her arms or hands as she could rely upon her left hand and arm to perform most activities. Additionally, the Tribunal noted the impact of this condition had been considered in respect of her functional impairment under Table 4 in relation to her spinal condition. The Tribunal does this in accordance with the clear statement of the Impairment Tables Determination that when two or more conditions cause a common or combined impairment, a single rating should be assigned.
Conjunctival irritation
Dr Karlov’s report of 16 August 2017 opines:
(ii) She had a melanoma and they found two more ocular lesions likely to be further melanomas for which she is currently being investigated.
Dr Oda’s report of 23 August 2017 opines:
Melanoma right eye,
Diagnosed 2003
Dr Oda outlines treatment as yearly check-ups and surgery in 2003, and describes symptoms and functional impact to include blurry vision and watery eyes.
Mrs Chilton advised the Tribunal that she had undergone surgery twice to remove a melanoma in her right eye, as the growth is at the back of the eye it is hard to detect. She said she sees her ophthalmologist yearly and the condition causes irritation in the eyes, constantly leaving her with blurred vision.
The Respondent accepts that Mrs Chilton’s conjunctive irritation was fully diagnosed, treated and stabilised during the qualifying period, noting she had undergone surgery to remove a melanoma in her right eye in 2003. They contended that Mrs Chilton’s eye condition could be assigned an impairment rating of five points under Table 12 as she experienced discomfort and blurry vision during the qualifying period.
Having considered all the evidence before it, the Tribunal is satisfied that Mrs Chilton’s long standing visual condition was fully diagnosed, treated and stabilised during the qualifying period, having required surgery for removal of a melanoma from her eye in 2003. The condition continues to impact her visual function, causing blurriness and watery eyes as self-reported and corroborated by her treating medical practitioners.
The Tribunal finds that Mrs Chilton’s visual difficulties were having a mild functional impact upon her during the qualifying period when performing day-to-day activities, and as such has assigned five impairment points under Table 12 – Visual Function.
IMPAIRMENT RATING
The Tribunal noted that anyone looking at Mrs Chilton’s impairment assessment history for her conditions over the years as undertaken by various decision makers would be right to conclude this is not a precise science. The Tribunal determined Mrs Chilton’s overall impairment rating based on the oral evidence she provided at the Tribunal, corroborating evidence from her treating doctors, the findings of numerous JCA assessments, the HPAU assessment, the determination of the ARO and the Tier 1 decision.
The Tribunal has found that Mrs Chilton has an overall impairment rating of 40 points:
(a)20 points allocated under Table 4 (Spinal Function);
(b)10 points allocated under Table 3 (Lower Limb Function);
(c)5 points allocated under Table 5 (Mental Health Function);
(d)nil points allocated under Table 1 (Functions Requiring Physical Exertion and Stamina);
(e)nil points allocated under Table 2 (Upper Limb Function); and
(f)5 points allocated under Table 12 (Visual Function).
Therefore Mrs Chilton satisfies s 94(1)(b) of the Act.
DOES MRS CHILTON HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mrs Chilton must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work. Mrs Chilton would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of subsection 94(3C) of the Act prior to her claim for DSP, and her impairment is of itself sufficient to prevent her from improving her capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
The POS Determination requires that an applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. Mrs Chilton has not actively participated in a program of support at all during the relevant period.
As the Tribunal has found that Mrs Chilton has a severe impairment that is assigned 20 points under a single Impairment Table, she is not required to have participated in a program of support and therefore satisfies subsection 94(3C) of the Act. Additionally, in considering the nature and the severity of Mrs Chilton’s complex conditions and their impact on her physical and mental functions, the Tribunal found that they alone would prevent her from benefiting from a program of support, as the program would not improve her capacity to prepare for or find work. The Tribunal found that Mrs Chilton, in accordance with s 7(5) of the POS Determination, is a person who was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program.
The Respondent contends that Mrs Chilton had a continuing ability to work with a work capacity of greater than 15 hours per week. They relied upon the recommendations in the JCA report of 20 March 2018 and 2 August 2018, noting the reports indicate that with target intervention Mrs Chilton will be able to undertake a training activity that would equip her to work at least 15 hours per week within two years.
The JCA report of 27 February 2008 in respect of Mrs Chilton’s previous DSP entitlement noted:
Based on the assessment Mrs Misfud’s (as she then was) condition of depression has attracted an impairment rating of 10 points. The chronic back pain-discogenic did not draw an impairment rating as the TDR states the cause is unknown. Therefore the condition cannot be regarded as fully diagnosed. The radiculopathy of the neck and left shoulder pain have attracted a combined impairment rating of 5 points. The osteoarthritis and carpal tunnel syndrome have attracted a combined impairment rating of 10 points due to difficulty in separate the symptoms and functional impairment.
Given the above Mrs Misfud has a work capacity of 0-7 hours per week. No PAGES referrals were discussed or recommended due to limited work capacity.
The client’s personal factors have high impact on their ability to work, obtain work or look for work.
Health issues assessed as part of work capacity.
…
The client would not benefit from participation in any programme.
The JCA report of 2 August 2018 provided the following rationale for work capacity:
The claimant’s psychological, spinal, auto immune, osteoarthritis and leg lymphoedema are expected to limit endurance, postural tolerances, physical capacity, coping with stress, interacting with others and remaining task focused. The claimant continues to be independent in daily activities. A baseline work capacity of 8 to 14 hours per week has been recommended, due to the implications of obtaining and sustaining employment. With continued access to treating health professionals and intervention from a Disability Employment Service/Employment Support Services (DES-ESS) provider to assist with identifying suitable work roles/environments, develop suitable duties plans (i.e. task assigned and rostered days), providing work experience programs to increase work conditioning, providing workplace assessments and making appropriate workplace modifications, and providing post-placement support, it is anticipated that the claimant would better manage their capacity for work and be able to undertake 15 to 22 hours per week.
…
The ESS referral was discussed. Centrelink will need to action the referral as required.
The Tier 1 determination of 30 January 2019 noted:
The report by the job capacity assessor on 20 March 2018 states that there had not been participation in a program of support in the three years preceding the application, and Mrs Chilton confirmed this at the hearing. She said that she had been previously advised that she was not required to participate in such a program. The job assessor recommended referral to a disability employment service, and the later job capacity assessment on 18 July 2018 also recommended referral to a disability service provider. There is no record of referral being arranged.
Dr Karlov’s report of 16 August 2017 opines:
She had been on a disability pension for quite some time and since then the situation has only deteriorated.
I can’t see any prospect of her ever being involved in gainful employment.
Dr Oda’s report of 27 August 2019 opines:
As I have explained above, I disagree with several of the impairment ratings that were given in the Job capacity Assessment report that you provided. In my opinion, due to the above explained issues, Maggie’s impairment is such that she is unable to work or undertake any training activities. Her condition is likely to deteriorate further with time and her prognosis is not quite predictable.
The Tribunal notes that there seems to be no uniform preference in decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred, for the purpose of assessing a continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
The Tribunal concludes that Mrs Chilton satisfies s 94(2) of the Act as she has a continuing inability to work. In reaching this conclusion, the Tribunal relied upon the assessment of Mrs Chilton’s treating doctors and notes the findings of the JCA report of 11 February 2008, which determined that Mrs Chilton had a limited work capacity and would not benefit from a referral to an employment service provided. Additionally, the JCA report of 26 July 2018 lists Mrs Chilton’s many impediments to finding work and notes a raft of measures required to place her in any form of employment. The Tribunal also notes that Centrelink had not acted on its own recommendation to refer Mrs Chilton to an employment provider as noted in the JCA report of 26 July 2018.
Given all these factors, the Tribunal is therefore satisfied that Mrs Chilton has a continuing inability to work for the purposes of s 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Mrs Chilton was qualified to receive the DSP as her impairments attracted 40 impairment points under the Impairment Tables with a severe functional impact from her spinal condition. Additionally, she satisfies s 94(1)(c) of the Act in that she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

....[sgd].....................................
Associate
Dated: 6 February 2020

Date of hearing: 15 January 2020

Applicant: Self-represented, by telephone

Advocate for the Respondent: Ms Anneliese Massey

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 130

6 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	15 January 2020
Applicant:	Self-represented, by telephone
Advocate for the Respondent:	Ms Anneliese Massey
Solicitors for the Respondent:	Sparke Helmore Lawyers