Cox and Secretary, Department of Social Services (Social services second review) - [2017] AATA 1550

Cox and Secretary, Department of Social Services (Social services second review) [2017] AATA 1550 (27 September 2017)
Division:GENERAL DIVISION
File Number: 2017/0643

Re:Terry Cox
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:27 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
...............................[Sgd].........................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – lumbar fusion - lumbar spondylosis – cervical spondylosis – compression fracture of T 12- hip condition – shoulder condition - inguinal hernia - whether impairments are of 20 points or more under the Impairment Tables – Applicant has a continuing inability to work. - decision under review affirmed
LEGISLATION
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth), Schedule 2, part 1, s 13
Social Security Act 1991 (Cth), ss 27, 94
Social Security (Administration) Act 1999 (Cth), ss 63, 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), ss 5, 6, 8, 10
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
McDonald v Director-General of Social Security (1984) 6 ALD 6
Natalizi and Secretary, Department of Social Services [2014] AATA 803
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member A C Cotter
27 September 2017
INTRODUCTION

Mr Terry Cox was a long term recipient of Disability Support Pension.
Following a review of his ongoing qualification for that pension, he was informed by the Department of Human Services that he no longer qualified, as he did not have an impairment rating of 20 points or more under the Impairment Tables. His pension was therefore cancelled.
Mr Cox unsuccessfully sought a review of that decision, first by an Authorised Review Officer, and then by way of a first tier review by this Tribunal. Dissatisfied with the result, he has sought a second tier review of the cancellation decision by the General Division of the Tribunal.
For the reasons outlined below, I consider that the decision to cancel his DSP was correct, and should be affirmed.
BACKGROUND
Mr Cox was granted Disability Support Pension (“DSP”) with effect from 19 July 1990 for a spinal fusion.[1]
[1] Exhibit 1, T Documents, T 26, page 130, letter, Authorised Review Officer to Mr Cox dated 10 October 2016.
On 12 April 2016, Mr Cox was issued with a medical review form for the purpose of reviewing his ongoing qualification for DSP.[2]
[2]
In the form completed by him, Mr Cox listed his disabilities, illnesses and injuries as: spinal fusion L4/L5; total hip replacement; problem with right shoulder/arm; and osteoarthritis throughout his spine.[3]
[3] Exhibit 1, T Documents, T 16, page 95, Mr Cox’s Medical Report – Disability Support Pension Review form dated 26 April 2016.
Mr Cox’s general practitioner, Dr John Potter, also completed a review form. He nominated spinal fusion L4-L5 and lumbar spondylosis as the condition having most impact on Mr Cox’s ability to function.[4] Right total hip replacement was also listed as a condition having a significant impact on Mr Cox’s ability to function.[5] Dr Potter noted that Mr Cox also suffered calcific tendinosis in the right shoulder, but rated that condition as generally well managed and one which caused minimal or limited impact on Mr Cox’s ability to function.[6]
[4]
[5] Ibid, page 103.
[6] Ibid, page 106.
In late May 2016, Mr Cox attended a face to face assessment with a Job Capacity Assessor (“JCA”). The JCA thought that Mr Cox’s spinal condition had a moderate functional impact, and recommended that 10 impairment points be assigned under Table 4 (Spinal Function) of the Impairment Tables.[7] However, the JCA was not satisfied that the hip condition was fully stabilised.[8] As such, no points were recommended in respect of that condition. Nor were any points assigned in respect of the shoulder condition.[9] The JCA assessed Mr Cox’s baseline work capacity as between 15 and 22 hours per week. His capacity for work within two years, with intervention, was assessed as between 23 and 29 hours per week.[10]
[7] Exhibit 1, T Documents, T 20, page 112, Job Capacity Assessment Report dated 31 May 2016.
[8] Ibid, page 111.
[9] Ibid, page 112.
[10] Ibid, pages 113-114.
On 9 June 2016, a decision was made to cancel Mr Cox’s DSP on the basis that he did not have 20 points or more under the Impairment Tables.[11]
[11] Exhibit 1, T Documents, T 33, page 151, Departmental file notes.
Mr Cox sought a review of that decision by an Authorised Review Officer (“ARO”).[12]
[12] Ibid, page 152.
In the meantime, on 21 September 2016, a member of the Department’s Assessment Services Team contacted Dr Potter to obtain further information. The officer noted the following:
Dr Potter stated the client’s back and neck conditions are longstanding due to a history of labouring work. He stated the client may benefit from hydrotherapy treatment, however resources in the area are limited. He stated the conditions are not likely to improve even with treatment. Dr Potter stated the client’s hip condition has stabilised. He stated the client does not use a walking stick and he thinks the client would be able to stand for more than 10 minutes. He stated he may refer the client to a physiotherapist or a specialist for his shoulder condition. He confirmed there has been no treatment to date. Dr Potter stated the client is not significantly disabled and has the capacity for work but lacks motivation.[13]
[13] Exhibit 1, T Documents, T 24, page 121, Additional Medical Evidence for Disability Support Pension Record dated 21 September 2016.
Following that discussion, a JCA conducted a file assessment. They concluded that both the spinal and hip conditions were fully diagnosed, treated and stabilised.[14] It was recommended that 10 points be assigned in respect of the spinal condition.[15] Zero points were recommended in respect of the hip condition as Mr Cox was not thought to have satisfied the criteria for five points under Table 3 (Lower Limb Function).[16] Mr Cox’s shoulder condition was considered fully diagnosed but not fully treated and stabilised, and so attracted no points.[17] The work capacity assessment remained unchanged.[18]
[14] Exhibit 1, T Documents, T 25, pages 122-124, Job Capacity Assessment Report dated 27 September 2016.
[15] Ibid, page 125.
[16] Ibid.
[17] Ibid, page 124.
[18] Ibid, page 125.
In October 2016, the ARO affirmed the decision to cancel Mr Cox’s DSP.[19]
[19] Exhibit 1, T Documents, T 26, pages 129-136, letter from Authorised Review Officer (and notes) to Mr Cox dated 10 October 2016.
Mr Cox subsequently sought a review of the ARO’s decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal. That was unsuccessful, with the SSCSD affirming the ARO’s decision.[20]
[20] Exhibit 1, T Documents, T 2, pages 3-8, Social Services & Child Support Division decision and reasons for decision dated 12 January 2017.
Dissatisfied with the SSCSD’s decision, Mr Cox has sought a review of it by the Tribunal’s General Division.[21]
[21] Exhibit 1, T Documents, T 1, pages 1-2, Mr Cox’s application for review dated 3 February 2017.
THE LEGISLATIVE FRAMEWORK
Under s 80(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[22] In this case, that is 9 June 2016. It is irrelevant that a person may later again fulfil the requirements for a grant.[23]
[22] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[23] See Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674.
Section 94 of the Social Security Act 1991 (Cth) (“SS Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.
The documents sent to Mr Cox relating to the review of his eligibility for DSP constituted a notice under s 63(2) of the Administration Act.[24] Under s 27(3) of the SS Act, if a person is receiving DSP and receives a notice under s 63(2) of the Administration Act, the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[25] At that time (12 April 2016), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), whereas Mr Cox’s original grant of DSP had been assessed under different requirements.
[24] Exhibit 1, T Documents, T 16, page 94, Medical Report – Disability Support Pension Review form dated 12 April 2016.
[25] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803 at [3].
The Impairment Tables under the Determination are function based, rather than diagnostic based,[26] and describe functional activities, abilities, symptoms and limitations.[27] They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.[28]
[26] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2)(b).
[27] Ibid, s 5(2)(c).
[28] Ibid, s 5(2)(d).
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[29] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[30]
[29] Ibid, s 6(3).
[30] See ibid, s 6(4).
The following factors are to be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[31]
[31] See ibid, s 6(5).
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.[32]
[32] Ibid, s 6(6).
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[33]
[33] See ibid, s 6(7).
The presence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[34]
[34] See ibid, s 6(8).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[35]
[35] See ibid, s 8(1).
ISSUES FOR THE TRIBUNAL
The central issue for my determination is whether, as at the date of cancellation

(9 June 2016), Mr Cox was qualified for DSP. That in turn leads to a consideration of each of the requirements in s 94(1) of the SS Act.
The Secretary accepts that, at the date of cancellation, Mr Cox suffered from physical impairments.[36] Having regard to the material before me, I believe that is an appropriate concession to make. Consequently, there is no dispute that Mr Cox satisfied the first of the requirements in s 94(1) of the SS Act, namely that at the relevant time he had physical, intellectual or psychiatric impairments.
[36] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, [34].
It is also accepted by the Secretary that Mr Cox has a continuing inability to work for the purpose of s 94(1)(c)(i) of the SS Act.[37] Again, I consider that concession to be reasonable and appropriate, having regard to the relevant requirement which existed at the time of the original grant, the terms of the relevant amending legislation which preserved that requirement for pre-1 July 2006 recipients like Mr Cox[38], and the JCA’s most recent assessment of work capacity.[39] I therefore accept that Mr Cox would satisfy the third of the requirements for DSP, relating to continuing inability to work.
[37] Ibid, [52].
[38] See ibid, [50]-[52] and Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth), Schedule 2, part 1, s 13.
[39] See Exhibit 1, T Documents, T 25, page 126, Job Capacity Assessment Report dated 27 September 2016.
Consequently, the only issue that remains for my consideration is whether, at the relevant time, Mr Cox’s impairments attracted a total of 20 points or more under the Impairment Tables made under the Determination.
CONSIDERATION
Having identified the issues which remain outstanding, I turn to consider what, if any, impairment points should be assigned in respect of each of the conditions from which Mr Cox suffers.
The spinal conditions
The spinal conditions and the parties’ contentions
In his report prepared for the purpose of the review, Dr Potter identified lumbar spondylosis and lumbar fusion as the conditions having the most significant impact on Mr Cox’s functional ability. At that stage, there was no mention of neck and thoracic spine conditions. However, an X-ray of Mr Cox’s cervical spine and thoracic spine in July 2016 showed minor cervical spondylosis and a severe osteoporotic compression fracture of T 12.[40] In a subsequent medical certificate, Dr Potter recorded the condition T 12 compression fracture, together with the lumbar spine conditions, as permanent.[41]
[40] Exhibit 1, T Documents, T 23, page 119, medical report of Dr J Coombe (Fraser Coast Radiology) dated 13 July 2016.
[41] Exhibit 1, T Documents, T 29, page 141, medical certificate of Dr John L Potter dated 19 October 2016.
Based on the available evidence, the SSCSD accepted that Mr Cox has a permanent spinal condition with lumbar spondylosis and lumbar fusion, mild cervical spondylosis and a thoracic crush fracture.[42] Having reviewed the medical evidence before the Tribunal, I agree with, and accept, that description of Mr Cox’s spinal conditions.
[42] Exhibit 1, T Documents, T 2, page 7, Social Services & Child Support Division decision and reasons for decision dated 12 January 2017, [25].
The Secretary concedes that Mr Cox’s spinal conditions were fully diagnosed, treated and stabilised as at the date of cancellation.[43] Again, having regard to the medical evidence, I believe that is an appropriate concession to make.
[43] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, [35].
As to the impairment rating to be assigned, the Secretary agrees with the findings of the JCA, the ARO and the SSCSD, that the conditions attracted 10 impairment points under Table 4 (Spinal Function) of the Impairment Tables.[44] Mr Cox relied on Dr Potter’s assessment of a 20 point impairment for the lower limbs and a 15 point impairment for the upper limbs.[45]
[44] Ibid, [36].
[45] Exhibit 2, medical report of Dr John L Potter dated 15 May 2017.
Before I deal with the impairment points to be assigned in respect of the spinal conditions, it is opportune to address a number of points raised by Mr Cox.
Mr Cox’s submissions
At the hearing before me, Mr Cox questioned several aspects of the approach adopted by the Secretary. Some of them are not exclusive to the spinal conditions and are equally applicable to the other conditions from which Mr Cox suffers. For convenience, I deal with them here.
The failure to recognise the thoracic compression fracture
Mr Cox questioned why the assessment of his spinal conditions ignored his thoracic compression fracture, saying that there ought to have been an additional allocation of impairment points in respect of that particular condition.
As already mentioned, following receipt of the x-ray of the cervical spine and the thoracic spine, the thoracic compression fracture, as well as the mild cervical spondylosis, were added to the broad description of his spinal conditions. The SSCSD proceeded on that basis. At the hearing before me, the Secretary likewise followed that course.[46]
[46] See Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, page 5.
When reference is made to the Impairment Tables, the table specific to the impairment rating being considered must always be applied to that impairment, unless the instructions in a table specify otherwise.[47] In Mr Cox’s case, the table specific to the impairment is Table 4 (Spinal Function). The Introduction to that table states that in using the table, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2 (Upper Limb Function).[48] That is consistent with the approach being adopted in the present case, with Mr Cox’s spinal conditions being assessed separately from his shoulder condition.
[47] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 10(2).
[48] Ibid, page 20, Introduction to Table 4.
Where, as here, two or more conditions cause a common or combined impairment, the rules for applying the tables provide that a single rating should be assigned in relation to that common or combined impairment under a single table.[49] In that way, “double dipping” is avoided.
[49] Ibid, s 10(5).
It follows from what I have said that the impairment of Mr Cox’s spinal function is to be assessed under a single table, Table 4, from which a single rating is to be assigned.
Improvement of condition and the applicable rules for assessment
Mr Cox took issue with a particular comment made in the SSCSD’s reasons for decision.
The presiding member noted when Mr Cox was first granted a pension in 1990, he was allocated a rating of 35 percent. However, when his eligibility was reviewed seven years later, he was allocated a rating of 24 percent. That led the member to comment that it indicated an improvement in Mr Cox’s range of movement since 1990.[50] Mr Cox questioned how such a remark could be made when his condition at the date of cancellation had deteriorated.
[50] Exhibit 1, T Documents, T 2, page 6, Social Services & Child Support Division decision and reasons for decision dated 12 January 2017, [21].
With respect to Mr Cox, I believe that the member was, in passing, simply comparing historical data from two decades ago. As far as I am concerned, it has no bearing on the present assessment.

That leads me to another point raised by Mr Cox. During his submissions, he submitted that his impairments should be assessed and rated according to the guidelines that existed at the time of his initial grant in 1990. That is not correct. As I mentioned earlier, if a person is receiving DSP and receives a notice under s 63(2) of the Administration Act (as Mr Cox did, when he was sent the DSP review forms for completion by him and

Dr Potter), the Secretary, in assessing the person’s qualification for pension, must apply the Impairment Tables in force at the time the notice is given. In this case, they are the tables in force as at 12 April 2016, namely those made under the Determination.[51]
[51] See Social Security Act 1991 (Cth), s 27(3); and paragraph 19 above.
It is important that the DSP system should not remain static or be immune from change; it is desirable to have regard to contemporary assessments of function rather than rely on dated assessments. As Woodward J observed in McDonald v Director-General of Social Security:
It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvements in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.[52]
[52] (1984) 6 ALD 6, [13].
The alleged telephone call with Dr Potter
Mr Cox was highly critical of the records made by an officer of the Department during the course of his requests for review of the cancellation decision. The officer (whom I shall call “D”) was a member of the Department’s Assessment Services Team, and prepared the note of the telephone conversation with Dr Potter set out in paragraph 12 above. As he strongly disputed the statement attributed to Dr Potter, Mr Cox said that he and his carer “confronted” Dr Potter about it, in February 2017. Mr Cox said that Dr Potter denied making any statements to the effect contained in D’s note.[53] At the hearing, Mr Cox went further, contending that Dr Potter denied that there had been a telephone conversation at all; in other words, it was alleged that D’s note was a total fabrication as the conversation never took place. Mr Cox therefore submitted that I should completely disregard the statement attributed to Dr Potter in D’s note. As D also assumed the role of ARO, Mr Cox also challenged the accuracy of some of the notes D recorded following the discussion with Mr Cox in October 2016.[54]
[53] See Exhibit 5, Mr Cox’s response in support of claim dated 4 July 2017, page 1.
[54] See Exhibit 1, T Documents, T 26, page 135, D’s notes of conversation with Mr Cox.
Neither Dr Potter nor D were called to give evidence at the hearing. Mr Cox told me that he had asked Dr Potter to put something in writing, but he refused. Mr Cox said, however, that the doctor’s denial that the conversation took place was corroborated by his carer,

Ms Tara Deo-Singh (“Ms Singh”) who has a high government security clearance, and who was present at all doctors’ appointments.
Given the gravity of the allegation against D, I would only be prepared to exclude D’s evidence if there were clear and cogent evidence to support the allegations attributed to Dr Potter.[55]
[55] The standard of proof will vary in accordance with the seriousness or importance of the issue in question: Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
The evidence falls far short of that standard. There is no direct evidence from Dr Potter on this subject. Indeed, he refused Mr Cox’s request to commit his allegation to paper. One can only speculate as to his reasons for not cooperating with his patient when he has been otherwise willing to offer support. Mr Cox relayed Dr Potter’s reaction to D’s statement, but that is only Mr Cox’s account of what Dr Potter said after being “confronted” by him and Ms Singh. Although Ms Singh gave evidence at the hearing, it is curious that she was not asked at all by Mr Cox about their discussion with Dr Potter. Moreover, I do not think the fact that Dr Potter had no telephone call with D while Ms Singh was present is conclusive of the fact that a telephone conversation did not occur. For those reasons, I am not persuaded that D’s notes of the telephone conversation with Dr Potter are fabricated. I therefore do not consider there to be any basis to exclude D’s evidence of the telephone conversation with Dr Potter.
As to D’s telephone conversation with Mr Cox, there is no basis to globally exclude the notes of that discussion. However, some comments recorded may need to be corrected, qualified or explained. To the extent that it is relevant, I address that later.
Inconsistency of Department’s decisions
Mr Cox submitted that the attitude of the Department was inconsistent, in that while it was cancelling his DSP, Ms Singh continued to receive Carer Allowance as his carer on a 24/7 basis. While I understand Mr Cox’s point, I do not think that argument advances the present matter. Eligibility for DSP and Carer Allowance is determined on their own respective and discrete bases. It is beyond the scope of this application to consider the question of Ms Singh’s entitlement to Carer Allowance.
JCA complaints
Mr Cox had a number of complaints concerning JCAs and the comments recorded by them - incorrectly, he says, to his disadvantage.
He complained that when he attended his face to face interview with the JCA, the latter refused to take account of his other injuries as the information was on a CD. However, it seems that material was later received by the ARO on about 18 July 2016.[56]
[56] Exhibit 1, T Documents, T 26, page 134, Authorised Review Officer notes dated 14 and 18 July 2016.
Mr Cox also questioned the credibility of the second JCA report of 27 September 2016 when he was not present at that assessment. While it is true that the assessment was by file review, the report appears to have simply updated the earlier report. Absent a specific complaint, I do not believe that compromises the report’s credibility.
A major concern of Mr Cox was the incorrect reporting of the frequency with which he attends social activities. He attends his Pool Association on Tuesday evenings for about three hours and usually plays several games, which can vary in duration between 30 seconds and five minutes. He would play for up to 30 minutes in total, socialising for the rest of the night. To play a shot, he said that he stands up, slightly bent (about 10 degrees). He is in the Association’s lowest grade. Mr Cox said that he also goes one night a week to a local hotel or club to listen to music. He will shuffle around the dance floor if the music is slow. He estimated that he might have one to three dances over four hours.
What impairment points should be assigned under Table 4?
It is not in dispute that Mr Cox’s spinal conditions attracted at least 10 impairment points (moderate functional impact). That was on the basis that he was able to sit in, or drive, a car for at least 30 minutes, but was unable to pick up a light object placed at knee height, satisfying descriptor (1)(c) of the 10 point rating.[57]
[57] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, [36].
In response to a question from the Secretary’s lawyer, Mr Cox said that in June 2016, he would have been able to drive on average between 10 and 15 minutes on a bad day and between 15 and 30 minutes on a good day. Ms Singh told the hearing that she would drive Mr Cox from Hervey Bay to Brisbane for his doctors’ appointments. A trip that would normally take about four and a half hours would take five to six hours due to the six or seven breaks that Mr Cox needed to take every 15 to 20 minutes. On my calculations, the breaks would have been less frequent than Ms Singh suggested, and more in the range of between 40 to 50 minutes. Based on that evidence, I am satisfied that Mr Cox was able to sit in a car for at least 30 minutes.
As to Mr Cox’s ability to pick up a light object placed at knee height, I note that he told the JCA that he could not reach beyond his knees due to poor back flexion.[58]
[58] Exhibit 1, T Documents, T 20, page 111, Job Capacity Assessment Report dated 31 May 2016.
Given that Mr Cox met the descriptor for at least 10 points, the question arises as to whether he could meet the descriptor for 20 points (severe functional impact). Based on the evidence before me, I do not believe that he could satisfy that descriptor as at the date of cancellation.
The descriptor for 20 points requires the person to be unable to: perform any overhead activities; turn their head, or bend their neck, without moving their trunk; bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.
The JCA report of September 2016 noted that Mr Cox had reported no restrictions with neck movement or overhead activities.[59] In May 2016, the JCA observed him to have “good range of neck rotation to the left and right”.[60] He told the ARO in a conversation in October 2016 that he could pick something light off a dining table.[61] At the hearing, he confirmed that to be the case, saying that he could pick up a ball off a pool table provided it was near the edge of the table. As I have already found, Mr Cox could sit in a car for at least 30 minutes. In the May 2016 report, the JCA observed that Mr Cox was able to sit for approximately 30 minutes.[62] Although Mr Cox explained that he was shifting in his chair during the interview and did not stand because he did not want to be discourteous by standing over a lady, the fact remains that he was able to remain seated for at least 10 minutes.
[59] Exhibit 1, T Documents, T 25, page 125, Job Capacity Assessment Report dated 27 September 2016.
[60] Exhibit 1, T Documents, T 20, page 111, Job Capacity Assessment Report dated 31 May 2016.
[61] Exhibit 1, T Documents, T 26, page 135, Authorised Review Officer notes dated 6 October 2016; and Exhibit 5, page 2, Mr Cox’s response in support of claim dated 4 July 2017.
[62] Exhibit 1, T Documents, T 20, page 112, Job Capacity Assessment Report dated 31 May 2016.
Based on that evidence, I do not consider that the descriptor for 20 points is satisfied.
Finally, as I mentioned earlier, Dr Potter rated Mr Cox’s impairments as 20 points for the lower limbs and 15 points for the upper limbs. For some reason, he failed to make an assessment under Table 4, which is the table specific to the impairment under consideration. I therefore do not think his report assists in this assessment.
Consequently, I find that as at the date of cancellation, Mr Cox’s spinal conditions attracted 10 impairment points under Table 4.
Right hip condition
The Secretary also concedes that Mr Cox’s right hip condition was fully diagnosed, treated and stabilised as at the date of cancellation.[63] Again, I believe that is an appropriate concession to make.
[63] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, [38].
It is contended by the Secretary that, consistent with the findings of the JCA, the ARO and the SSCSD, the condition attracts no impairment points under Table 3 (Lower Limb Function). That is on the basis that Mr Cox is unable to satisfy paragraphs (2)(a) or (b) of the descriptor for the five point rating under Table 3. They require that the person is unable to stand for more than 10 minutes or the person can mobilise effectively, but needs to use a lower limb prosthesis or a walking stick.[64]
[64] Ibid, [39].
During the May interview, the JCA observed Mr Cox stand for 10 minutes after he had remained seated for approximately 30 minutes.[65] Dr Potter told D in September that he thought that Mr Cox would be able to stand for more than 10 minutes.[66] On the same occasion, Dr Potter said that Mr Cox did not use a walking stick.[67] In a statement lodged with the Tribunal, Ms Rachael Brynard of Mission Australia stated that Mr Cox uses a walking stick to walk in and out of his appointments.[68]However, I place little weight on that evidence as Ms Brynard only commenced seeing Mr Cox in May 2017, almost a year after the date of cancellation.
[65] Exhibit 1, T Documents, T 20, page 112, Job Capacity Assessment Report dated 31 May 2016.
[66] Exhibit 1, T Documents, T 24, page 121, Additional Medical Evidence for Disability Support Pension Record dated 21 September 2016.
[67] Ibid.
[68] Exhibit 4(e), statement of Ms Rachael Brynard dated 3 July 2017.
Having regard to the above evidence, I am not satisfied that Mr Cox was able to meet paragraphs (2)(a) and (b) of the descriptor for five points.
As mentioned earlier, in a report in February this year, Dr Potter assessed Mr Cox’s impairment rating for lower limb function at 20 points.[69] However, I attach little weight to that report, for several reasons. First, it is dated some 11 months after the date of cancellation and is not expressed to be referable to that time. Second, it fails to explain, or adequately explain, the basis on which the assessment was arrived. In particular, it is unclear whether the assessment relates only to the hip condition or whether it purports to include an assessment of the impairment caused by the inguinal hernia condition discussed below.
[69] Exhibit 2, medical report of Dr John L Potter dated 15 May 2017.
In summary, I do not consider that Mr Cox was able to satisfy the descriptor for five points (mild functional ability) under Table 3. Accordingly, the hip condition attracted zero points under the table.
Calcific Tendinosis
The Secretary contends that Mr Cox’s shoulder condition was fully diagnosed, but not fully treated or stabilised as at the date of cancellation. As such, it is said that no impairment rating can be assigned in respect of it.[70]
[70] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, [43].
In support of that contention, the Secretary relies on Dr Potter’s comments of

21 September 2016, that Mr Cox had received no treatment for this condition at that time. However, Dr Potter said that “he may refer (Mr Cox) to a physiotherapist or a specialist”.[71] Consistent with that, Mr Cox told the SSCSD in January 2017 that he had only started physiotherapy for his shoulder about a month earlier[72] (that is about six months after the date of cancellation).
[71] Exhibit 1, T Documents, T 24, page 121, Additional Medical Evidence for Disability Support Pension Record dated 21 September 2016.
[72] Exhibit 1, T Documents, T 2. Page 8, Social Services & Child Support Division decision and reasons for decision dated 12 January 2017, [29].
Based on that evidence, I find that Mr Cox’s shoulder condition was not fully treated and stabilised as at the date of cancellation, such that no impairment points can be assigned in respect of it.
Even if, contrary to my view, Mr Cox’s shoulder condition could attract impairment points, I would assign zero points to it under Table 2 (Upper Limb Function). That is based on

Dr Potter’s medical report of 3 May 2016, that he considered the condition to have been generally well managed and that it caused minimal or limited impact on Mr Cox’s ability to function.[73]
[73]
For those reasons, no points are assigned in respect of this condition.
Right Inguinal Hernia
The Secretary contends that Mr Cox’s inguinal hernia was not fully diagnosed, treated or stabilised at the date of cancellation.[74] Mr Cox likewise conceded at the hearing that the condition was a new matter and not one for consideration in this application
[74] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 26 June 2017, [46].
I agree with the Secretary and Mr Cox. There is no evidence of any treatment having been undertaken by Mr Cox for this condition prior to cancellation. Nor is there any evidence of prognosis were he to undertake reasonable treatment.
Consequently, no impairment points can be assigned in respect of this condition.
Overview- total impairment points
To summarise, as at the date of cancellation, Mr Cox’s impairments attracted a total of 10 impairment points. Those points were assigned under Table 4 (Spinal Function). Zero points were assigned in respect of the hip condition. The shoulder condition was not fully treated and stabilised at the relevant time, while the inguinal hernia was not fully diagnosed, treated and stabilised (meaning that neither condition attracted impairment points).
Consequently, I find that as at the date of cancellation, Mr Cox did not have 20 or more impairment points under the Impairment Tables. He therefore did not satisfy the requirement in s 94(1)(b) of the SS Act.
CONCLUSION
As Mr Cox did not have 20 points or more under the Impairment Tables as at the date of cancellation, he did not qualify for DSP at that date. The decision to cancel his DSP was therefore correct and should be affirmed.
I appreciate that this decision will be both distressing and frustrating for Mr Cox. However, it should not discourage him from lodging a fresh claim for DSP in the future.

I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

................................[Sgd]........................................
Associate
Dated: 27 September 2017

Date of hearing: 1 September 2017

Applicant: By phone

Solicitors for the Respondent: Ms Claire Campbell
Department of Human Services

Exhibit 1, T Documents, T 16, page 94, Medical Report – Disability Support Pension Review form dated
12 April 2016.

Exhibit 1, T Documents, T 17, page 100, Medical Report – Disability Support Pension Review form by
Dr John Potter dated 3 May 2016.

Exhibit 1, T Documents, T 17, page 106, Medical Report-Disability Support Pension Review form by
Dr John Potter dated 3 May 2016.

Date of hearing:	1 September 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Claire Campbell Department of Human Services