Coutsournas and Secretary, Department of Social Services (Social services second review) - [2024] AATA 3433

Coutsournas and Secretary, Department of Social Services (Social services second review) [2024] AATA 3433 (30 September 2024)
Division:GENERAL DIVISION
File Number: 2023/6581
Re:Peter Coutsournas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:30 September 2024
Place:Hobart

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the decision of the Social Services and Child Support Division dated 22 August 2023 is affirmed. That means that the Applicant is not eligible for Disability Support Pension in relation to his claim made on 21 March 2023.
...................................[signed].....................................
Senior Member D. J. Morris
Catchwords
SOCIAL SECURITY – pensions, benefits and entitlements – where applicant applied for disability support pension – where respondent rejected claim – where authorised review officer confirmed rejection decision – where applicant sought review – where first review by Tribunal affirmed the rejection decision – where applicant sought second review by Tribunal – consideration of legislative requirements – decision under review is affirmed
PRACTICE AND PROCEDURE – where applicant applied for disability support pension – where qualification period commences on date of lodgement and ends thirteen weeks later – where minister had made new impairment tables determination on 28 February 2023 – where new determination commenced on 1 April 2023 – where new determination commences during qualification period – which determination should be applied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security and Other Legislation Amendment Act 2011 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth)
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs; Re: [2013] AATA 558
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jensen [2008] FCAFC 48
REASONS FOR DECISION
Senior Member D. J. Morris
30 September 2024

On 21 March 2023 the Applicant, Mr Peter Coutsournas, made a claim for Disability Support Pension (‘DSP’) to Centrelink (‘the Agency’), which is part of the Respondent’s Department. He cited several medical conditions: hip pain, severe; right leg and knee pain; emphysema; tinnitus; thalassemia minor; previous nervous breakdown; hernias; and bladder control.
On 2 April 2023, the Agency rejected the Applicant’s DSP claim on the basis that he did not have 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the 2011 Impairment Tables Determination’), as required by s 94(1)(b) of the Social Security Act 1991 (‘the Act’).
On 5 July 2023, an authorised review officer (‘ARO’), who is an officer of the Agency not involved in the original decision, affirmed the rejection decision. The ARO determined that Mr Coutsournas’s bilateral hip osteoarthritis was diagnosed but not fully treated and fully stabilised as the Applicant was awaiting right hip replacement surgery. The ARO determined that the Applicant’s emphysema was diagnosed but not fully treated or fully stabilised because there was no evidence that he had undertaken reasonable treatment. The ARO determined that the Applicant’s anxiety and depression conditions were not fully diagnosed, fully treated or fully stabilised because there was no evidence of a diagnosis by a psychiatrist or a corroborating diagnosis from a clinical psychologist. In respect of the Applicant’s tinnitus and thalassemia minor conditions, the ARO determined these were not fully diagnosed, fully treated and fully stabilised because there was no evidence of diagnosis from a specialist, evidence about treatment, prognosis or functional impacts of these conditions.
The Applicant asked the Tribunal to review the ARO’s decision. On 22 August 2023, the Social Services and Child Support Division of the Tribunal affirmed the rejection decision. This will be called the first review.
The first review found there was no evidence of a diagnosis of Mr Coutsournas’s mental health conditions by a clinical psychologist or a psychiatrist. In respect of the Applicant’s hip osteoarthritis and gluteal tendinopathy, the first review accepted these conditions were fully diagnosed but not that they had been fully treated and fully stabilised as Mr Coutsournas was awaiting hip surgery. In respect of the emphysema/COAD condition, the first review accepted this condition was fully diagnosed but not that it was fully treated or fully stabilised because there was insufficient evidence that the Applicant had undergone reasonable treatment.
On 5 September 2023, Mr Coutsournas, as he is entitled to do, sought second review by the Tribunal, in the General Division.
HEARING
A hearing was conducted by telephone under s 33A of the Administrative Appeals TribunalAct 1975 (‘the AAT Act’) on 5 September 2024. Mr Coutsournas represented himself, made submissions and gave evidence. He was cross-examined by Ms Stefana Doslo, a solicitor of Services Australia (part of the Department).
The Tribunal took into evidence the following documents:
(a) Volume of (‘TD’) documents lodged under s 37 of the AAT Act (Exhibit R1);
(b)Volume of (‘STD’) supplementary documents lodged under s 38AA of the AAT Act (Exhibit R2)
(c)Volume of (‘FSTD’) further supplementary documents (Exhibit R3);
(d)       Applicant’s evidence bundle, lodged 26 June 2024 (Exhibit A1);
(e)       Email from Applicant describing evidence bundle (Exhibit A2)
(f)       Impairment report of Dr Swapnil Acharekar dated 12 July 2024 (Exhibit A3);
The Applicant also lodged a document titled Further Statement of Facts, dated 27 August 2024, and a document titled Answers to the Respondent’s points of objection, lodged on 4 September 2024. The Respondent lodged a Statement of Facts, Issues and Contentions dated 27 August 2024.
At the conclusion of the hearing, the Tribunal asked the Respondent to provide a short additional submission on its contentions about which determination should be applied in this matter, the 2011 Impairment Tables Determination or the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (‘the 2023 Impairment Tables Determination’) should be applied in this matter. That was provided on 12 September 2024, after which the Tribunal’s decision was reserved. On 17 September 2024, the Applicant provided a short submission relating to which Determination he contended should be applied in relation to his application. Although leave was not given for a further submission, the Tribunal has decided to take it into account.
THE LEGISLATIVE SCHEME
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under s 94(1) of the Act and the qualification criteria for DSP must be satisfied. It must be established that:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d)…
It is important to note that s 94 of the Act is conjunctive: each of the requirements in ss 91(1)(a), (b) and (c) must be met.
In terms of the criteria under s 94(1)(c) of the Act, no contention was made that the Applicant had participated in the supported wage system. He was therefore required to establish a ‘continuing inability to work’. Relevantly, s 94(2) of the Act provides that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Section 94(3B) of the Act provides that:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Therefore, if a person claiming DSP is assigned 20 points under the Impairment Tables, but does not have a ‘severe impairment’ for the purposes of s 94(3B) of the Act, then the Secretary of the Department must be satisfied that he or she has met the requirements of having ‘actively participated in a program of support’ as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 (‘Administration Act’) provides, at cl 4(1) of sch 2, as follows:
(2)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(c)the person is not, on the day on which the claim is made, qualified for the payment; and
(d)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(e)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Item 5 in the table of s 36(1) of the Acts Interpretation Act 1901 (‘AIA’) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. It provides that if the period of time is expressed to begin from a specified day, it does not include that day.
Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider if Mr Coutsournas was qualified for DSP on the date he lodged his claim, 21 March 2023. If not, the Tribunal must then consider, applying the provisions of cl 4(1) of sch 2 of the Administration Act and the AIA, whether he became qualified on a day in the succeeding 13-week period. The 13-week qualification period therefore started on the day after the claim was lodged, 22 March 2023, and ended on 20 June 2023.
Which Impairment Table Determination should apply?
However, in this case there is a new consideration. On 28 February 2023, the Minister for Social Services made a new determination relating to qualification for DSP: the 2023 Impairment Tables Determination. This Determination must be applied to all claims made for DSP after 1 April 2023.
Section 27 of the Act addresses this matter. It relevantly states:
Application of Impairment Tables
Claims for disability support pension
(1)If a person makes a claim, or is taken to have made a claim, for disability support pension, the Secretary, in determining the claim, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made.
Note: Sections 12, 13 and 15 of the Administration Act and clause 4 of Schedule 2 to that Act deal with claims for disability support pension that are taken to have been made.
(2)If:
(a)The Secretary makes a decision (the original decision) relating to a claim referred to in subsection (1); and
(b)the Secretary or the AAT is reviewing the original decision or a later decision arising out of the original decision;
the Secretary or the AAT, in making a decision on the review, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made.
Note: The effect of this subsection is that any change to the instrument under section 26 from the making of the claim to the making of a decision on the review must be disregarded.
The Respondent submitted that s 27 of the Act makes clear that the relevant Impairment Tables Determination to apply when assessing a DSP claim is the Determination that was in place on the day the claim was made or ‘taken to have been made’. The Respondent submitted that the Note to s 27(1) of the Act means that cl 4 of Sch 2 of the Administration Act is therefore relevant to determining whether a claim is ‘taken to have been made’ on a different date from when it was lodged with the Agency, and the applicable Determination that was in place at that time.
The Respondent submitted that the commencement of the 2023 Impairment Tables Determination (on 1 April 2023) can be considered an ‘occurrence or event’ for the purposes of the early claim provisions in cl 4 of Sch 2 of the Administration Act. The Respondent further submitted that the effect is that, if Mr Coutsournas does not satisfy the criteria under s 94(1)(b) of the Act to qualify under the 2011 Impairment Tables Determination, but would become qualified because of the commencement of the 2023 Determination, his claim for DSP can be taken to have been made on the first day he became qualified, i.e. after 1 April 2023.
The Respondent noted that this approach was accepted by the Tribunal in Re: Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558. In that case, Mrs Eid had made inquiry about applying for DSP on 19 December 2011 and then lodged a formal claim. The thirteen-week period in relation to her application started on 20 December 2011 and ended on 19 March 2012. During this qualification period, the 2011 Impairment Tables Determination commenced. The Tribunal effectively found that the period of qualification commenced on 19 December 2011 and ended on 19 March 2012, and that the 2011 Impairment Tables Determination was applicable from 1 January to 19 March 2012.
Mr Coutsournas submitted, in his late submission, that whichever Impairment Table Determination that would be more beneficial to him should be the one that is applied in relation to his claim. The Tribunal understands the philosophy behind his submission because the Courts have generally found that, where there is a lack of clarity about a provision in the Act, the provision should be interpreted beneficially, because that is the basis of the legislative regime. However, in this case the Tribunal must take account of the explicit provisions in s 27 of the Act and Sch 2 of the Administration Act.
The Tribunal accepts the submissions of the Respondent that the inclusion of the words ‘or taken to have been made’ in s 27(1) means, in this case, that Mr Coutsournas’s application should be considered in two parts. The qualification period, as stated above, commenced on 21 March 2023 and ended on 20 June 2023 – but the 2011 Impairment Tables Determination should be applied for the period from 21 March 2023 to 1 April 2023 and the 2023 Impairment Tables Determination is the one to apply from 1 April 2023 to 20 June 2023.
Therefore, the Tribunal finds that if it were to find that a condition or conditions of the Applicant would not have met 20 or more points under the 2011 Impairment Tables in the qualification period but would if the 2023 Impairment Tables were applied in the qualification period, then the date on which that would have been achieved would be taken to be the date of claim that would satisfy the requirements of s 94(1)(b) of the Act.
ORAL SUBMISSIONS OF THE RESPONDENT
Ms Doslo conceded that the Applicant satisfies s 91(1)(a) of the Act. It was not in contest that Mr Coutsournas has a physical, intellectual or psychiatric impairment. However, the Respondent contended that the Applicant does not satisfy ss 94(1)(b) or (c) in the qualification period, because he did not have 20 impairment points under either the 2011 or 2023 Impairment Tables.
In respect of the Applicant’s bilateral hip osteoarthritis, the Respondent submitted this condition was not fully treated or fully stabilised because it may further improve in the next two years following surgery. In the alternative, the Respondent submitted this condition would attract at most 10 points under Table 3 – Lower Limb Function, or 10 points under Table 4 – Spinal Function.
In respect of the Applicant’s emphysema/COPD conditions, the Respondent accepted this condition was fully diagnosed and fully treated, and contended that if the Tribunal finds it is also fully stabilised, it could be allocated at most five points under Table 1 – Functions requiring Physical Exertion and Stamina.
In respect of Mr Coutsournas’s tinnitus condition, the Respondent submitted that it was not fully treated and fully stabilised and, if the Tribunal disagreed, this condition would at most merit the allocation of five points under Table 1 – Hearing and other Functions of the Ear.
In respect of the mental health conditions put forward by the Applicant, Ms Doslo submitted that there was no corroborative diagnosis by a clinical psychologist, as required by the 2011 Impairment Tables, or a registered psychologist, as required by the 2023 Impairment Tables, therefore no points could be allocated.
ORAL SUBMISSIONS OF THE APPLICANT
Mr Coutsournas told the Tribunal he first applied for DSP in 2021 but did not, at that time, have specialist reports. He said he had emphysema and tinnitus. Subsequently, his hip problem was discovered, which he said was work-related.
Mr Coutsournas said he made a fresh application for DSP, including his hip condition. He said that since then he has seen specialists including psychiatrists. He said one told him not to have an operation, and recommended physiotherapy and hydrotherapy. He said he was scared of a hip replacement because it was major surgery, so he went down the therapy path. He said that this doctor advised him to get a walking stick and ‘not to have surgery because he was too young’. He said his doctor’s view was that this sort of operation should only be performed once on a person. He said he decided to undertake hydro- and physiotherapy. The Applicant said his main argument is that he has been waiting for three and a half years for specialist appointments.
ORAL SUBMISSIONS IN REPLY OF THE RESPONDENT
Ms Doslo reiterated the Respondent’s submissions that Mr Coutsournas did not attract sufficient Impairment Points on either Determination. She noted that in the further supplementary submissions there was evidence that the Applicant had been referred for hip surgery at the Mercy Hospital and this was expected to show functional improvement in two years. Ms Doslo said the further evidence confirmed that the Applicant was referred to a waiting list and was to contact the hospital to arrange a date, and submitted that Mr Coutsournas had not undertaken reasonable treatment.
Ms Doslo submitted that rule 6(6) of the Determination provides, in respect of whether a condition is ‘fully stabilised’, that either a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to enable a person to undertake work in the next two years, or the person has not undertaken reasonable treatment and either significant functional improvement in two years is not expected to result, even if the person does have reasonable treatment, or ‘there is a medical or other compelling reason for the person not to undertake reasonable treatment’ (see rule 6(6)(b)(ii) of the Determination).
CONSIDERATION
Bilateral hip condition

The relevant Impairment Table is Table 3 – Lower Limb Function. The Tribunal accepts on the medical evidence that this condition was fully diagnosed. In the FSTD before the Tribunal was an email from the Mercy Hospital at Werribee dated 26 August 2024. It confirmed that the Applicant was referred for right total hip replacement therapy on 4 May 2023 as a ‘category 3’ patient. In response to the query about the anticipated timeframe for the surgery, the Elective Surgery Access Manager of the Mercy Hospital responded:
Pt [patient] has deferred himself from 22.05.2024 to 30.11.2024 as he is trying alternative therapies. I spoke to the patient myself on the 22.05.2024. We will be contacting him in November for an update and will arrange a surgery date then if he wishes to proceed.
Mr Coutsournas, in his own submissions to the Tribunal, confirmed that this information was correct. He told the Tribunal that the WorkCover specialist he had seen was warning him about the dangers of the surgery and that he ‘told me to do the therapies so that it is fully treated’. The Applicant said he does need help with tasks such as putting socks on, and has a lot of pain standing up. He said he uses a makeshift walking stick and that hydrotherapy had been some help because he can exercise with no pressure on the bone. He said, ‘I am scared of the operation; I don’t want to find out in seven years that I need another one’.
The Tribunal accepts the evidence of the Applicant about the impact on his daily life and that his hip problem is a major impediment to him. Without suggesting that he has been untruthful about what he has said in his submissions, regarding what his specialist told him about the deferral of the hip replacement surgery and trying alternative therapies, there is no medical correspondence that corroborates that. If the specialist did say that, it was clearly not communicated to the Mercy Hospital, because they contacted the Applicant in May this year to arrange a surgery date, and he deferred them, to revisit that question in November.
The Tribunal cannot find that the Applicant’s hip condition is fully stabilised because Mr Coutsournas had not, in the qualification period, undertaken reasonable treatment within the terms of rule 6(6)(b)(ii) of either the 2011 or 2023 Determination. I am not satisfied on the evidence before me that there is a medical or other compelling reason for the Applicant not to undertake reasonable treatment. If I had before me, for example, a letter from Mr Coutsournas’s surgeon or physician advising that he had been recommended not to have the surgery and that he should instead try alternative therapies, I could consider that, but there is no such material in the papers.
Ms Doslo drew the Tribunal’s attention to the decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 in which the Full Federal Court (Gyles, Stone and Buchanan JJ) relevantly said about equivalent wording in an earlier iteration of the Impairment Points Determination, at [38]:
…whether the person’s reason for refusing treatment is compelling is to be determined by the relevant medical officer. When the Introduction refers to functional improvement not being expected or there being “a medical or other compelling reason” for the person not undergoing further treatment, it does not contemplate separate decision makers. It is the medical officer who must assign impairment rating and it is he or she who must decide if the reason for the person not undertaking treatment falls within the circumstances identified in the Introduction.
What this means, in short, is that a person’s independent decision not to undertake reasonable recommended medical treatment does not fall within the category of a ‘compelling reason’ for the person not to undertake the treatment in the terms of the Tribunal deciding whether the condition can be regarded as fully stabilised and can then go on to assign impairment points, according to the functional impact.
The Tribunal finds that no impairment points are assignable to Mr Coutsournas’s bilateral hip condition in the qualification period.
Emphysema/COPD condition
The Respondent conceded that the Applicant’s emphysema/COPD was fully diagnosed as at the qualification period. The relevant table is Table 1 – Functions requiring Physical Exertion and Stamina.
Before the Tribunal was a certificate from the Applicant’s treatment general practitioner, Dr Neil Acharekar, dated 23 July 2021 (TD, p 200). Dr Acharekar states that Mr Coutsournas has had Emphysema/COPD since 2014, and then says:
He has stopped smoking and has been doing breathing exercises in the past and is till [sic] continuing. He is unable to walk long distances and gets short of breath going up and down stairs. He is unable to lift anything heavy or move at a faster pace. He is currently on inhalers and we are monitoring his functionality. He has not been referred to a respiratory physician as they will not be able to assist him. He will continue with this treatment and will be monitored for the future.
Dr Acharekar in a subsequent letter (TD, p 201) states that ‘there is noting [sic] more that needs to be done in terms of investigation regarding his COPD’. There is a subsequent referral to Dr Ann Marie Southcott, who is a respiratory and sleep disorder physician, dated March 2023. The clinical note relating to this referral states:
We would appreciate if you could see this gentleman who has presented to us with Emphysema. He has tried inhalers but nothing has worked for him. He has been advised to get a specialist check-up. His lung function tests showed emphysema, but this was gone 4 years back. We value your expert opinion.
The Applicant stated that a specialist appointment has been booked for him for 5 December 2024.
The Respondent submitted that there is insufficient evidence that Mr Coutsournas has undertaken reasonable treatment and that further treatment was expected to result in significant functional improvement within the next two years.
The Tribunal rejects this position of the Respondent. Unless the Respondent knows something that medical science does not, the Tribunal’s understanding is that emphysema is a chronic and incurable disease. It is clear on the medical history that Mr Coutsournas has had emphysema since perhaps 2014 and at least since 2021. The fact that he had been referred to Dr Southcott for further specialist advice does not, in the Tribunal’s mind, mean in a case whether he had, on the objective evidence, tried inhalers and other recommended treatments, that this condition could not be said to have fully stabilised. New drugs and subsequent clinical assessments are frequently recommended to persons with long-term complaints, and I do not understand how the Respondent can assert that there will be a functional improvement within two years.
The Tribunal does agree with the Respondent that it would be open, on the medical evidence, to assign impairment points under either the 2011 or 2013 Impairment Tables Determination. The Tribunal finds that there is sufficient evidence to assign 5 impairment points for Mr Coutsournas’s emphysema/COPD condition. There is some evidence that might support the assignment of 10 points, but under rule 11(1)(c) of the 2011 Determination, if an impairment is considered as falling between two ratings, the lower is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. The wording in rule 13 of the 2023 Determination is slightly different, but still requires all the descriptors to be met when assigning a rating.
The Tribunal finds that 5 impairment points should be assigned to the Applicant under Table 1.
Tinnitus condition
The relevant table for this condition is Table 11 – Hearing and other Functions of the Ear. Dr Archarekar referred, in a letter dated 29 July 2021, to the fact that the Applicant suffers from tinnitus ‘which is very bad and there is nothing more to do to help him with it’. There is reference to the Applicant having had the condition since he was aged seven.
In his oral evidence, Mr Coutsournas said he saw doctors in relation to this condition when he was aged 20 (which would be around 1983). He said the condition is more apparent at night and when he is stressed or exposed to the rhythms of machinery. In response to a direct question from the Tribunal as to how it affects his daily life, the Applicant said his tinnitus prevents him doing floor leg exercises because of dizziness.
The Respondent noted that, at TD p 253, there is a referral by Western Health dated 22 March 2023 for Mr Coutsournas to see Mr Simon Ellul, an ear, nose and throat surgeon.
The introduction to Table 11 in the 2012 Determination states:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist, or Ear, Nose and Throat (ENT) specialist. Self-report of symptoms alone is insufficient.
The introduction to Table 11 in the 2023 Determination states:
The diagnosis of the condition causing the impediment must be made by an appropriately qualified medical practitioner with corroborating evidence from an audiologist, neurosurgeon, neurologist or East, Nose and Throat (ENT) surgeon. There must be corroborating evidence of the person’s impairment. Self-report of symptoms must be supported by corroborating medical evidence.
The Tribunal accepts Dr Acharekar’s diagnosis fulfils part of this requirement in both Determinations, but there is no other evidence of a corroborating diagnosis from any specialist in the other categories stipulated. The fact that the Applicant is to see Mr Ellul in the future would be likely to fulfil the need for a corroborating diagnosis.
However, in the absence of that evidence, the Tribunal finds it is unable to assign impairment points for this condition in the qualification period.
Mental health conditions
The relevant Table is Table 5 – Mental Health Function. Dr Acharekar refers in several letters to the Applicant having PTSD and, in some correspondence, also having anxiety and depression.
The introduction to Table 5 in the 2012 Determination states:
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).
The introduction to Table 5 in the new 2023 Determination lowers the bar in terms of a qualifying diagnosis. It states:
The diagnosis of the condition causing the impairment must be made by an appropriately qualified medical practitioner (such a general practitioner or a psychiatrist) with evidence from a registered psychologist (if the diagnosis has not been made by a psychiatrist).
The Tribunal accepts Dr Acharekar’s diagnosis, but there is no evidence of a corroborating diagnosis that would satisfy the requirements of either the 2011 or 2023 Determinations. The Tribunal is therefore unable to assign impairment points for this condition of the Applicant.
The Applicant also cites a condition of Thalassemia minor which is an inherited blood disorder leading to a deficiency of haemoglobin. The Tribunal directly asked the Applicant whether the condition led to fatigue, which he confirmed, but noted he also submitted it affected his mental health. Mr Coutsournas said it can cause mood swings and depression – highs and lows – from euphoria to depression. There is insufficient evidence in the papers before the Tribunal about the functional affects on the Applicant in relation to this specific condition to be able to consider it for the assignment of impairment points.
The Tribunal finds that zero impairment points can be assigned for the mental health conditions.
Bladder condition
Mr Coutsournas submitted that he had a bladder condition. In his additional submission of 27 August 2024, the Applicant said he has bladder leakage and is unable to empty the bladder fully, which can lead to embarrassment, especially if he is in a public place. He said that he has to get up three to five times at night to use the lavatory.
The relevant Table to consider such a condition is Table 13 – Continence Function. From the evidence of the Applicant, it is possible that five impairment points could be assigned, because the Tribunal considers the evidence meets descriptor (1)(a) in both Determinations, but the difficulty for the Applicant is that there must be corroborating evidence, and such is not before the Tribunal. Therefore the Tribunal finds that no impairment points can be assigned.
Eyesight
In response to direct questions from the Tribunal, Mr Coutsournas said he has difficulties reading small print. He said he has two sets of spectacles, including a set for driving which he keeps in his car. He says he carries a magnifying glass.
The relevant impairment table is Table 12 – Visual Function. The introduction to that table in the 2023 Determination states:
The diagnosis of the condition causing the impairment must be made by an appropriately qualified medical practitioner with corroborating evidence from an ophthalmologist, optometrist, neurosurgeon or neurologist.
The Tribunal accepts Mr Coutsournas’s evidence that he uses prescription lenses, so would imagine he would be able to obtain corroborating evidence from one of the medical professionals listed in this part of the Determination. However, there was no evidence before me, so the Tribunal finds no impairment points can be assigned for this condition.
CONCLUSION
The Tribunal has found that the Applicant should be assigned a total of five impairment points in the qualification period. While, as mentioned above, he satisfied s 94(1)(a) of the Act in the qualification period, he does not satisfy s 94(1)(b) in having 20 or more points assigned for his medical conditions under either Determination. Section 94 is a conjunctive provision – all parts of it must be met for a person to qualify for DSP. As Mr Courtsournas’s claim falls at the second hurdle, as it were, in this section, it is not necessary for the Tribunal to go on to consider whether he has a continuing inability to work, which is the third part of s 94 (s 94(1)(c))..
The Tribunal will therefore affirm the decision under review. It is open to the Applicant to lodge a fresh application for DSP. If he does so, he should amass the best medical evidence he can on his treatment and how various medical conditions affect his functional ability to undertake work.
DECISION
The decision under review is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................................[signed]......................................
Associate
Dated: 30 September 2024

Date of hearing: 5 September 2024

Applicant: Self-represented

Advocate for the Respondent: Ms Stefana Doslo

Solicitors for the Respondent: Services Australia

Date of hearing:	5 September 2024
Applicant:	Self-represented
Advocate for the Respondent:	Ms Stefana Doslo
Solicitors for the Respondent:	Services Australia