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

Costello and Secretary, Department of Social Services (Social services second review) [2019] AATA 1052 (29 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5780
Re:Roger Costello
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:29 May 2019
Place:Perth

The decision under review is affirmed.
.................................[sgd].......................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – disability support pension – medical conditions – stroke – depression – diabetes – vision – irritable bowel syndrome – chronic pain – no program of support (POS) – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(3B), 94(3C)
Social Security (Administration) Act 1999 (Cth) – s 179(1), Sch 2 (cl 4(1))
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014 – ss 5, 7(1), 7(2)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 6(5), 6(6), 6(7), 7-11, 8(1), 11(1)(c), Table 1, Table 12.
Guide to Social Security Law, Department of Social Services, version 1.254.
REASONS FOR DECISION
Member C Edwardes
29 May 2019
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (the AAT1) made on 7 August 2018 (T2 5-15, R1). The AAT1 affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) which was lodged by the Applicant on 29 March 2017 (T6 107-137, R1).
INTRODUCTION
On 29 March 2017 the Applicant lodged a claim for DSP, detailing medical conditions of ‘stroke, chronic pain, diabetes – insulin dependent, loss of right eye, vision loss in good eye, leg injuries…’ [emphasis omitted] (T6 133, R1).
The claim was rejected by a Centrelink Officer, and the Applicant was advised of this rejection by letter dated 13 September 2017 (R2). The rejection of the claim was on the basis that the Applicant had been assessed as not having an impairment rating of

20 points or more.
The Applicant requested a review of the Centrelink Officer’s decision. The review was undertaken by an Authorised Review Officer (the ARO) and the Applicant received notification of the review outcome on 16 July 2018, which was to affirm the Centrelink Officer’s decision (T13 187-193, R1).
The ARO advised the Applicant of various key findings of fact (T13 188, R1):
·You have the following permanent medical conditions: chronic pain, diabetes and impaired vision.
·These conditions are accepted as being fully treated and stabilised.
·Impairment ratings totalling 15 points are assigned to their functional impact under Tables 1 and 12 of the Impairment Tables.
·Your conditions of depression, stroke and irritable bowel syndrome are not accepted as being fully treated and stabilised.
·For this reason no impairment ratings can be assigned.
·Your total impairment rating is 15 points.
·You did not participate in a program of support in the 3 years prior to claiming Disability Support Pension.
·
It has not been established that you have a continuing inability to work

15 hours per week or more because of your impairment.
The Applicant subsequently lodged an application with the AAT1 to review the decision on

23 July 2018 (T2 6, R1). The AAT1 affirmed the decision on 25 September 2018 (T2 5-12). In this decision, the AAT1 determined that the Applicant had generated an impairment rating of 15 points under the Impairment Tables.
In regards to the Applicant’s condition of ‘chronic pain’, the AAT1 determined that the condition was fully diagnosed, treated and stabilised (FDTS) and therefore generated a rating of 10 impairment points under Table 1. The condition of ‘previous stroke’ was not determined to be FDTS for lack of medical evidence to allow consideration of an impairment rating, and therefore did not generate any impairment points. The condition of ‘depression’ was determined to be fully diagnosed but not fully treated and stabilised and therefore generated a rating of 0 impairment points. The condition of ‘diabetes’ was determined to carry no ‘significant functional impact’ other than those which had already received an impairment rating and therefore generated a rating of 0 impairment points. The condition of ‘loss of vision in one eye’ was determined to be FDTS and therefore generated a rating of 5 impairment points.
The Applicant lodged an application for review of the AAT1’s decision with the

General Division of the Administrative Appeals Tribunal (the Tribunal) on 8 October 2018 (T1 1-4, R1).
With regards to his reasons for lodging an application for review, the Applicant submitted that ‘I think the decision was incorrect, relevant information was not taken into consideration and incorrect conclusions were drawn’.
The Tribunal has jurisdiction to hear this application pursuant to s 179(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which relevantly states that applications may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
RELEVANT LEGISLATION AND POLICY
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.
Section 94(1) of the Act provides the criteria for DSP, relevantly including that:
1.A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work…
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) made under subsection 26(1) of the Act. The tables contained within the Determination are referred to as the ‘Impairment Tables’.
Section 94(1)(b) of the Act obliges the Tribunal to determine whether the Applicant’s impairments are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] …The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, ie fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
(Original emphasis.)
Sections 6(5), 6(6), and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance on how the Impairment Tables should be use to assess information and evidence, and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that in assigning an impairment rating:
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied…
Continuing inability to work
As detailed above, s 94(1)(c)(i) of the Act specifies that in order to qualify for DSP, the person must meet the criterion of a ‘continuing inability to work’. Pursuant to s 94(2) of the Act:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
‘Severe impairment’ is defined in s 94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Original emphasis.)
Section 94(3C) of the Act states that a person has ‘actively participated’ in a program of support (POS) if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, ss 5, 7(1), and 7(2) of the Social Security(Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Participation Determination) generally require that a person is to participate in a POS for 18 months within the 36 months prior to the date of the relevant claim for DSP.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2, cl 4(1) of the

Administration Act. In accordance with the requirements in cl 4(1), there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the Tribunal finds the 13 week period is from the dates of 29 March 2017 to 28 June 2017 inclusive (the Qualification Period).
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim.

They may however be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1]).
The Tribunal also notes the policy contained in the Guide to Social Security Law (the Guide). The Tribunal is cognisant of the Tribunal’s position in relation to how it adopts the policy in the Guide, as stated by Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. His Honour stated (at 642):
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Brennan J further explained how the AAT might apply government policy when reviewing decisions, stating (at 645):
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
ISSUES
The key issue for the Tribunal to determine is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of s 94(1) of the Act.
This requires consideration of whether at the time of the Qualification Period:
(a)the Applicant had any physical, intellectual or psychiatric impairment;
(b)if so, whether these impairments attracted a combined rating of 20 points or greater under the Impairment Tables; and
(c)
if so, whether the Applicant had a ‘continuing inability to work’ as defined in

s 94(2) of the Act.
EVIDENCE
The application was heard in Perth on 10 May 2019. The Applicant appeared in person. The Respondent was represented by Mr Morris.
The Tribunal had the following evidence before it:
·Exhibit A1 – Medical report of Dr Syed dated 20 September 2018;
·Exhibit A2 – Medical report of Dr Fellows-Smith dated 11 April 2007;
·Exhibit A3 – Medical report of Dr Davis dated 10 April 2005;
·Exhibit A4 – Medical report of Dr Hossen dated 24 January 2005;
·Exhibit A5 – Medical report of Dr Syed dated 20 September 2018;
·Exhibit R1 – T documents (T1-T20);
·
Exhibit R2 – Secretary’s Statement of Facts, Issues and Contentions dated

4 March 2019 including Attachment A; and
·
Exhibit R3 – Program of Support Calculator report from 29 March 2014 to

29 March 2017, dated 22 October 2018.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent made the following contentions in respect to the medical conditions of the Applicant (R2):
Chronic Pain – Table 1 – Physical Exertion and Stamina
30.The Secretary concedes that the Applicant's chronic pain condition (diagnosed by Dr Syed, general practitioner, as polyarthritis with osteoarthritis features in hips and knees) was fully diagnosed, treated and stabilised during the qualification period.
31.In respect of the appropriate impairment rating, the Secretary contends that the impairment arising from the condition rated 10 points under Table 1 of the Impairment Tables. This is on the basis that the Applicant experienced frequent symptoms of fatigue when performing day to day activities around his home and community such that he was unable to walk far outside his home, needed to drive or get other transport to local shops and community facilities, and had difficulty performing day to day household activities during the qualification period. The Secretary relies on the following evidence:
(a)The report of Dr Syed dated 4 April 2017 that reported the Applicant to have "limited exercise tolerance. Able to walk <1km. Coping with all ADLs".
(b)The Applicant's self-reports to the JCA on 17 May 2017 of being largely confined to his home due to the impact of pain, fatigue and lack of stamina. He further reported to drive to the shops, rather than walk, and to use stairs slowly with the use of a handrail.
(c)The Treating Doctor's Report of Dr Syed dated 6 October 2017 that reported the Applicant to be "limited by pain – struggles with any activity, even light, beyond 1-3 hours". He reported the Applicant as being unable to walk to local facilities without stopping to rest and perform day to day household activities without difficulty.
32.The Secretary contends that there is no cogent evidence that would support a conclusion that the Applicant met any of the descriptors for a 20 point rating under Table 1 during the qualification period. In particular, the Applicant did not meet any of the descriptors in paragraph (1)(a) and (b) as there is no evidence to suggest he was unable to walk around a shopping centre/supermarket, to walk from a carpark into a shopping centre/supermarket or to use public transport during the qualification period. To the contrary:
(a)The Treating Doctor's Report of Dr Syed dated 6 October 2017 ticked 'yes' to the Applicant being capable of completing physically active tasks around his home and community without difficulty, walking to local facilities, walking from a carpark into a shopping centre and around the shopping centre without assistance, using public transport without assistance, performing light household activities (e.g. folding and putting away laundry), and moving around his home without assistance.
(b)The JCA report dated 4 July 2017 noted the Applicant's self-reports of being capable of using public transport and performing light household duties, including preparing meals and light cleaning.
(c)The AAT1 decision noted the Applicant's self-reports of being capable of walking for a few kilometres on a good day, driving a car, managing the flight of stairs in his apartment two or three times a day, cooking and sharing the housework with his daughter.
Diabetes – Table 1 – Physical Exertion and Stamina
33.The Secretary concedes that the Applicant's diabetes was fully diagnosed, treated and stabilised during the qualification period. However, as the condition causes fatigue and reduced endurance, being impairments consistent with the Applicant's chronic pain condition, the Secretary contends that the 10 point rating already assigned under Table 1 captures the impact of the condition on the Applicant's ability to function.
34.In accordance with paragraphs 10(5) and (6) of the Rules to the Impairment Tables, where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table. It is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessment [sic] more than once.
Right eye enucleation – Table 12 – Vision
35.The Secretary contends that the Applicant's right eye condition was fully diagnosed, treated and stabilised during the qualification period.
36.In respect of the appropriate impairment rating, the Secretary contends that the impairment arising from the condition rated 5 points under Table 12 of the Impairment Tables during the qualification period. This is on the basis that the Applicant has one eye, but is otherwise capable of performing most day to day activities involving vision, and has good vision in his remaining eye (descriptor (1)(e)).
37.The Secretary's contention is consistent with the Applicant's self-reports to the AAT1 that his right eye was removed, but "vision in his left eye is fine and he is approved to drive". There is no evidence to suggest the impairment arising from the condition satisfies any of the descriptors required for a 10 point rating.
Depression – Table 5 – Mental Health Function
38.The Secretary contends that the Applicant's mental health condition was not fully diagnosed, treated and stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.
39.In respect of the diagnosis, the Introduction to Table 5 of the Impairment Tables, being the Table used to assess mental health function, provides in part:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
40.In this instance, the most recent diagnosis from an appropriately qualified medical practitioner for the purpose of Table 5 was the one provided by Dr Fellows-Smith, psychiatrist, in his report of 11 April 2007. That is, almost 10 years prior to the Applicant's claim for DSP. Given the period of time that had elapsed, and noting the episodic and fluctuating nature of mental health conditions, the Secretary contends that the Applicant's condition could not be considered fully diagnosed during the qualification period. An updated diagnostic opinion from either a clinical psychologist or psychiatrist was required in order to determine the exact nature of the condition.
41.In any event, the extent of the Applicant's recent treatment at the time of the claim was limited to pharmacological intervention, with no evidence of psychological counselling for a number of years. The Secretary relies on the findings of the JCA and contends that, with further clinically recommended treatment, psychological counselling and social engagement, an improvement in the Applicant's function could be expected. The condition was not fully treated or stabilised during the qualification period.
Other conditions
42.In respect of the Applicant's other conditions, including irritable bowel syndrome and traumatic brain injury, the Secretary contends that the conditions were not fully diagnosed, treated and stabilised during the qualification period. On that basis, impairment ratings cannot be assigned.
43.There is no evidence of any treatment having been undertaken by the Applicant for these conditions prior to the qualification period, nor any evidence detailing his prognosis if he were to undertake reasonable treatment.
44.In any event, the Secretary contends that there is no medical evidence verifying the extent of any functional impairment arising from these conditions during the qualification period. Even if fully diagnosed, treated and stabilised (which is not conceded), the Secretary contends that the conditions caused minimal or no impact on functioning.
Overall Impairment Rating
45.The Secretary contends that the Applicant had a total impairment rating of 15 points under the Impairment Tables during the qualification period. He therefore fails to satisfy paragraph 94(1)(b) of the Act.
(Footnotes omitted and original emphasis.)
HEARING

During his oral evidence at the Tribunal hearing, the Applicant outlined a number of events in his life that have led to his current medical conditions. The Applicant’s evidence is viewed in aggregate with statements he made to AAT1.
The Applicant stated in his oral evidence that:
Mental health
·He suffered depression after he suffered a stroke in 2005.
·Between 2005 and 2009 he saw a psychiatrist at least 30 times.
·Between 2009 and 2017 he saw a psychologist 2-3 times.
·Between 2009 and 2017 he saw a psychiatrist, however only rarely.
·He was not sure that the psychiatrist or psychologist were of any help to him.
·He continues to take medication for the treatment of his mental health issues.
Visual condition
·He has only one eye, following an incident in the 1970’s which resulted in the removal of his right eye.
·He requires glasses, however stated that he only needs them for reading.
·He currently holds a driver’s licence, which is subject to a number of conditions.
Chronic Pain
·His average day comprises having breakfast, taking his daughter to university, attending to correspondence and phone calls, and resting in the afternoon.
·In the evening he picks up his daughter from university, either he or his daughter cooks, he reviews some of his daughter’s work, and goes to bed.
·He rarely uses public transport because of the balance issues which he suffers.
·He shares housework with his daughter. When he is tasked with the housework, he completes it in stages.
·He goes shopping with his daughter, and further attends to shopping once or twice a week on his own. When he is undertaking these tasks he drives to the shops and is able to walk around. He later confirmed that he is able to walk around the shops.
·He is able to use public transport, however stated that because of balance issues which he suffers he prefers not to.
·He can perform work-related tasks which do not require high levels of physical activity, however believes that he has not been able to work since 2005 as a result of his inability to discern emotions, caused by the stroke which he suffered. He confirmed that he has not participated in a POS to date.
·His irritation, impatience and pain triggers impeded his ability to work with others.
·He believed that the condition of chronic pain should be assessed against a separate Impairment Table.
The Tribunal found the Applicant to be a truthful witness.
CONSIDERATION
The Tribunal will now consider all the evidence before it, including the written and oral submissions made by both the Applicant and the Respondent.
Does the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?
The Tribunal accepts that the Applicant suffers from chronic pain, diabetes, right eye enucleation, depression, irritable bowel syndrome, and brain injury. In the Applicant’s DSP application (T6 133, R1) he states his claim is based on the following medical conditions:
‘stroke, chronic pain, diabetes – insulin dependent, loss of right eye, vision loss in good eye, leg injuries – 17 breaks, and ongoing skin problems’ [emphasis omitted].
The Tribunal notes the dated medical reports which attest to some of these conditions (A1-A4). The medical report of Dr Syed dated 20 September 2018 confirmed the Applicant’s conditions of depression and brain impairment, and notes the Applicant’s current history of ‘[c]va (thromboembolic caudate 2005. Unilateral paralysis’, ‘[d]epression – chronic’, and ‘[c]hronic pain – predominantly related to osteoarthritis, exacerbated by obesity’ (A1). The medical report of Dr Fellows-Smith dated 11 April 2007 confirmed the Applicant’s ‘Mood Disorder due to cerebral infraction presenting as a major depressive episode’ and agreed with the Applicant’s previous diagnosis of ‘Major Depressive Disorder’ (A2). The medical report of Dr Davis dated 10 April 2005 commented on the Applicant’s ‘small area of white matter ischaemic gliosis anterior to the right frontal horn and caudate head’ and ‘punctate focus in the right caudate body’, both of which may be ischaemic, however further commented that no other significant intracranial abnormality was found (A3). The medical report of Dr Hossen dated 24 January 2005 referred to the Applicant’s medical history including previous treatment for hypertension and depression and mild stroke, and continued treatment for depression and anxiety (A4).
The Tribunal considers the Applicant’s oral evidence to the AAT1 and to the Tribunal; the evidence provided by the Applicant in his DSP application; and the various medical reports provided by the Applicant to be consistent and truthful. The Tribunal therefore finds the Applicant does satisfy s 94(1)(a) of the Act, being that the Applicant has ‘a physical, intellectual or psychiatric impairment’ and therefore qualifies for DSP.
Do the Applicant’s impairments generate an impairment rating of 20 points or more under the Determination?
Chronic Pain
In the Applicant’s oral evidence to the AAT1, he stated that (T2 8-9, R1):
Condition 1 – chronic pain
…
·When he was about 11 or 12 years old he started to experience bad pains, especially in the muscles of his legs and thighs. He was in and out of hospital and had lots of tests, but nobody could find a cause.
·He was able to have a pretty normal childhood and play some sport.
·After school he started a university course in environmental science, but dropped that. He worked in a variety of jobs that involved computers, electronics and weapons systems. The pains bothered him and gradually got worse. Fortunately much of his work was sedentary. He learned to live with the pain but used to take a large number of powerful painkillers, such as Panadeine Forte. When he started seeing his current GP, Dr Syed, the dangers of this were pointed out and he was referred to the pain clinic at Fiona Stanley Hospital (FSH). He attended that clinic for three or four years, and participated in several group courses. He had lots more tests and saw a wide variety of specialists. These included psychologists and he was taught various techniques to manage his pain. Once again nobody could identify the cause but it was thought that possibly a rare viral infection in childhood might be responsible.
·He has now been discharged from the pain clinic. His treatment currently consists of weekly Norspan patches, recommended by FSH and prescribed by his GP.
·The pains mainly affect his legs and to some extent his arms and back. They are variable and unpredictable. Some days he can hardly get out of bed, on others he can walk for a few kilometres. Bending over is usually uncomfortable. He drives a car but needs a break after an hour or so.
·He lives in a two-storey apartment which he shares with his 20-year-old daughter. He can manage the stairs two or three times a day. He does the cooking and they share housework. They shop together and he can drive to the shops, park the car and do the shopping.
(Original emphasis.)
The Tribunal notes the Job Capacity Assessment Report (the JCA) dated 4 July 2017 (T8 146, R1) which states that in relation to his Musculo-skeletal Disorder the Applicant suffers frequent symptoms of shortness of breath and fatigue when undertaking physical activities including day to day activities around the home and community. The JCA records that due to these symptoms, the Applicant is unable to walk (or mobilise in a wheelchair) far outside the home (T8 146).
The ARO accepted that the Applicant had poor mobility, limited walking and sitting capacity (T8 146, R1). This impacted on his ability to travel any distance from his home, requiring him to drive or get other transport to local shops or community facilities. However the ARO later recorded that the Applicant is able to use public transport but usually drives to avoid walking (T8 146, R1).
The ARO further accepted that the Applicant would have difficulty performing household activities, however recorded that the Applicant is able to undertake light household duties such as preparing meals and doing light cleaning (T8 146, R1).
Finally, The ARO recorded that the Applicant is able to perform work related tasks of a clerical, sedentary or stationary nature, which do not require a high level of physical exertion, including re-skilling and vocational education on a part-time basis (T8 146, R1).
The Tribunal notes the JCA (T8 146, R1) assesses functional impact as ‘moderate’ which generates an impairment rating of 10 points.
The Tribunal finds that in consideration of the evidence before it, that pursuant to the Impairment Tables this condition is FDTS and moderate.
Stroke
In the Applicant’s oral evidence to the AAT1, he stated that (T2 10, R1):
Condition 2 – previous stroke
…
·In 2005 he was sitting down at home performing a minor chore when his he lost the use of his right arm and hand. He stood up and immediately fell over. He was taken to hospital where many investigations were performed. It was thought that he had suffered either a stroke, or had a transient ischaemic attack (TIA). It was never fully established which of these had occurred.
·From the physical point of view he made a full recovery regaining the use of his right side. However he was left with residual problems affecting his memory and his ability to interpret the meaning of other people’s words and actions. He could no longer ‘read’ other people’s emotions, and did not realise when he was upsetting people. This lead to conflicts at work and he eventually lost his job. He has not worked since then.
·He continues to have problems interpreting how other people respond to him. This has resulted, over several years, in a number of unsuccessful job interviews.
(Original emphasis.)
The JCA reported that the condition as fully diagnosed but not fully treated and stabilised (T8 145, R1).
The ARO (T13 190, R1) stated there was no neuropsychological assessment available to understand the functional impact of this condition, and that as such it could not be accepted as fully treated and stabilised. There is a medical report by Dr Syed (A1) which states in 2005 the Applicant sustained a cerebrovascular condition. Further, there is a report by Dr Hossen (A3) which refers to the Applicant having a ‘mild stroke’, requiring him to rest for eight weeks. The Tribunal accepts the reliability of the information presented in the medical reports relating to the Applicant’s stroke as being true. However, the Tribunal notes the lack of substantive assessment relating to impact on the Applicant’s functioning referenced in the medical reports; and further notes the substantial time which has passed between the date the medical reports were completed and the date of the Tribunal hearing, being approximately one year and 14 years respectively. The Tribunal does not consider the medical reports to be compelling corroborative evidence for these reasons. Therefore, the only assessment available to the Tribunal for consideration is the Applicant’s self-reporting of a number of functional impacts after the stroke event.
The Applicant did not provide any recent medical evidence outside his self-reported symptoms stated in his DSP application and oral evidence, and previous dated medical reports provided to the Tribunal.
The Tribunal is therefore unable to determine the level of functional impact on the evidence available to it as there is no corroborated evidence of current neuropsychological assessment before it. In lieu of such evidence, the Tribunal finds the condition to be diagnosed but not fully treated and stabilised, generating a rating of

0 impairment points pursuant to the Impairment Tables.
Depression
In the Applicant’s oral evidence to the AAT1, he stated that (T2 10-11, R1):
Condition 3 – depression
…
·After recovering from the stroke-like event in 2005, and subsequently losing his job, he became very depressed.
·He felt that the ‘stroke’ had been the result of the very stressful work he had been doing. As a result he made a claim on the workers compensation system and also on a personal insurance policy.
·As a result of these claims he had a great deal of contact with insurance companies and their medical assessors. He saw several psychiatrists and psychologists. He was treated with a wide range of antidepressant medications and takes a high dose (900 mg) of Aurorix on a daily basis. He has tried stopping this but when he does so he comes ‘crashing down’ after about two weeks.
·He was successful in his battle with the insurance companies and received significant financial pay-outs. At the time he was living with his wife, who is a clinical psychologist, generating a high income. He invested his funds in real estate but the market crashed and he has lost most of it. Around the time of lodging his claim in 2017 his marriage broke down. His wife had a violent episode and tried to kill him. He has a restraining order against her and there is no contact except in court during current divorce proceedings. Their only daughter lives with him by choice but he encourages her to stay in contact with her mother.
·His antidepressant tablets are prescribed by his GP. He does not have any current psychological counselling and last did so when he was attending the pain clinic at FSH.
·He has good days and bad days, and feels tearful at times. He has had suicidal thoughts but he knows he will do nothing because of his daughter.
·He has a small number of friends who he sees on an intermittent basis. He has little social life. He can cope with crowds in shopping centres and on public transport. He is able to manage his own financial affairs.
(Original emphasis.)
The JCA claims that there is no medical evidence available to indicate the condition was diagnosed and treated by medical specialists (T8 141-142, R1). The report by Dr Syed indicates that ‘the diagnosis has been previously documented and confirmed by

3 specialists psychiatrists’ (A1). The Tribunal therefore accepts that the Applicant may have in the past received information to indicate the condition was diagnosed and treated by medical specialists. However the Tribunal did not receive any such evidence and so cannot attribute any weight to it.
The Applicant was unable to provide more recent relevant medical specialists advice in oral evidence, and therefore whilst the Tribunal accepts the depression condition has been fully diagnosed, there is no recent compelling evidence to conclude it has been fully treated and stabilised.
Diabetes
In the Applicant’s oral evidence to the AAT1, he stated that (T2 11-12, R1):
Condition 4 – diabetes
·He was found to have diabetes about 30 years ago. Treatment was initially with tablets but insulin injections were eventually needed. He now takes a combination of tablets and injections. He self-monitors his sugar levels and the control is now quite good, especially since a new medication was introduced recently. He attends the clinic for diabetics at FSH about every three to six months. They seem happy with his progress.
·He can occasionally feel that this sugar level is bad and has to be careful with his diet.
(Original emphasis.)
The JCA records that this condition is FDTS, and that it is stable and not expected to deteriorate or improve over the next 2 years (T8 141, R1).
The ARO report accepted the Applicant was diagnosed with diabetes in 1980, and noted that the Applicant had reported fatigue and poor endurance, and limited function and fitness due to obesity (T13 189, R1). The ARO report assigned a rating of 10 impairment points to the Applicant’s condition of diabetes, and noted that the Applicant did not attract a rating of 20 impairment points because he was not unable to walk and was able to sustain light sedentary work for three hours at a time (T13 189, R1).
The Tribunal finds this condition as FDTS. Based on the Applicant’s oral evidence to the AAT1, the Tribunal is satisfied that the condition is managed through medication, exercise and diet. While the Tribunal accepts that the Applicant was impaired in his ability to complete certain tasks as a result of the condition, there is no compelling evidence before the Tribunal to suggest the functional impact of the Applicant’s condition resulted in the Applicant being unable to walk around the shops, or mobilise in a wheelchair, walk from the car park into the doctor’s surgery, use public transport without assistance, or sustain light sedentary work for three hours at a time.
Vision loss
In the Applicant’s oral evidence to the AAT1, he stated that (T2 12, R1):
Condition 5 – loss of vision in one eye
·He lost his right eye at the age of 13 years when playing with a friend who heated a bullet, which exploded. His eye was removed. Vision in his left eye is fine and he is approved to drive.
(Original emphasis.)
The Tribunal notes that the JCA (T8 143 and 147, R1) accepts this condition is FDTS. The JCA highlights the fact that the Applicant has functional vision in only his left eye, as his right eye has been removed. The JCA noted that the Applicant had reported impaired and patchy vision in his left eye (T8 143).
The ARO report assessed that the condition fits within the category of a mild condition, on the basis the Applicant could drive, prepare meals and undertake household tasks (T13 189).
The Tribunal determines this condition is FDTS and meets the criteria of Table 12 of the Impairment Tables as mild, therefore generating an impairment rating of 5 points.
Other Conditions (Irritable Bowel Syndrome)
The Tribunal notes that the medical report of Dr Syed lists the Applicant as having the condition of irritable bowel syndrome (T8 138, R1). The JCA reported this condition to be not FDTS, as there was no medical evidence to indicate the condition had been diagnosed by a medical specialist (T8 144).
The ARO report found there was no diagnosis and specialist intervention for the condition of irritable bowel syndrome. The ARO therefore determined that the condition could not be accepted as fully treated and stabilised, and that an impairment rating could not be assigned.
The Tribunal finds there is no compelling evidence available to determine that the condition is FDTS.
Does the Applicant have a continuing inability to work?
The Tribunal finds that the Applicant has 15 points under the Impairment Tables and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act and determine whether the Applicant has a continuing inability to work.
DECISION
For the reasons given above, the decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

....................................[sgd]....................................
Associate
Dated: 29 May 2019

Date(s) of hearing: 10 May 2019

Applicant: In person

Representative for the Respondent:
Department of Human Services

[2019] AATA 1052

29 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction

Appeal

Date(s) of hearing:	10 May 2019
Applicant:	In person
Representative for the Respondent:	Department of Human Services