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

[2023] AATA 1326

Crerar and Secretary, Department of Social Services (Social services second review) [2023] AATA 1326 (23 May 2023)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/6799
General Division	)

Re: David Crerar
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  Senior Member D. J. Morris

DATE OF CORRIGENDUM:            24 May 2023

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

In paragraph 28, the word “four” is omitted and in its place the word “five” is substituted.

..................................[SGD].................................
Senior Member

Division:GENERAL DIVISION

File Number:          2022/6799

Re:David Crerar

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:23 May 2023

Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm the decision under review.

...........................[SGD].............................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – pensions, benefits and entitlements – where applicant applied for disability support pension – where application rejected – where authorised review officer affirmed rejection – where First Review affirmed rejection of claim – applicant applied for Second Review – provisions of legislation – qualification for disability support pension – whether applicant has physical, intellectual or psychiatric impairment – if so, whether applicant’s impairment is of 20 points or more under the Impairment Tables determination – if not 20 points or more under one Table, whether applicant has continuing inability to work – consideration of medical evidence – applicant found to have impairment – application of Impairment Tables – applicant found not to have attained 20 points or more – question of continuing inability to work – decision under review is affirmed

Legislation

Acts Interpretation Act 1901, s 36
Administrative Appeals Tribunal Act 1975, ss 33A, 37, 38AA
Social Security Act 1991, ss 23, 94
Social Security (Administration) Act 1999, s 4
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023

REASONS FOR DECISION

Senior Member D. J. Morris

23 May 2023

BACKGROUND

1. Mr David Crerar is a gentleman of 51 years of age. He has worked as a carpenter and, more recently, as a hospital theatre technician, until he gave up work because of physical ailments.

2. On 13 February 2022 Mr Crerar lodged an application for Disability Support Pension (‘DSP’) with the Department of Social Services (in its identity as Centrelink). His claim was rejected. He asked for the rejection decision to be reviewed by an authorised review officer (‘ARO’), who is an officer of the Department not involved in the original decision.

3. On 23 April 2022 the ARO affirmed the rejection of Mr Crerar’s claim. He then sought review by the Social Services and Child Support Division of this Tribunal (‘First Review’). On 21 July 2022 the First Review decided to affirm the ARO’s decision.

4. On 19 August 2022 Mr Crerar brought this matter to the Tribunal for a Second Review by the General Division. In this matter, it should be kept in mind that the Tribunal is reviewing the ARO’s decision, not the First Review, although it may have regard for observations and findings made at First Review.

   HEARING

5. On 27 April 2023 the Tribunal conducted a hearing by video-link, as is allowed under s 33A of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’). Mr Crerar spoke for himself, made submissions, and gave oral evidence. The Respondent was represented by Ms Kathryn Lieschke, solicitor, of Sparke Helmore Lawyers, who also made oral submissions and cross-examined the Applicant.

6. The Tribunal had regard for a Statement of Facts, Issues and Contentions dated 28 March 2023 lodged by the Respondent (‘RSFIC’).

7. The Tribunal admitted into evidence the following documents: 

   (a) Documents submitted under s 37 of the AAT Act (‘T’ documents) – Exhibit R1

   (b) Supplementary documents submitted under s 38AA of the AAT Act (‘ST’ documents) – Exhibit R2

   (c)       Letter from Secretary’s lawyers to Applicant’s treating medical practitioner dated 22 December 2022 – Exhibit R3

   (d)       Extract from Impairment Tables Instrument (Tables 1 and 14) – Exhibit R4

   (e)       Letter from Dr Graham Stephens, Healesville Medical Clinic, dated 10 January 2023       (in response to R3 above) – Exhibit R5.

   THE LEGISLATIVE SCHEME

   Qualification for DSP under the Act

8. In order to qualify for DSP, a person’s claim must be assessed under s 94(1) of the Social Security Act 1991 (‘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)…

9. It is important to note that s 94 is conjunctive; each of the requirements in s 94(1)(a), (b) and (c) must be established.

10. In terms of the criteria under s 94(1)(c) of the Act, no contention was made that Mr Crerar 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

    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.

11. 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.

12. 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 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?

13. The Social Security (Administration) Act 1999 (‘Administration Act’) provides, at cl 4(1) of sch 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)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

    (d)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.

14. Item 5 in the table of section 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.

15. Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider whether Mr Crerar was qualified for DSP on the date he lodged his claim, 13 February 2022. 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.

16. The 13-week period therefore started on the day after the claim was lodged, 14 February 2022, and ended on 15 May 2022. The Tribunal notified to the Respondent during the hearing that it did not accept the calculation of the 13-week period contended by the Secretary, but that nothing particular would turn on this unless a dispute arose about when a particular condition could be said to be within the qualification period.

17. On 28 February 2023 the Minister for Social Services made a new determination relating to qualification for DSP, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023. This Determination must be applied to all claims made for DSP after 1 April 2023. However, for claims lodged before that date, such as Mr Crerar’s claim, the correct determination to apply is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) 2011 (called in these reasons ‘the Impairment Tables’), because the 2011 determination is preserved in relation to his claim by force of the provisions of s 27(2) of the Act.

18. The Tribunal at First Review was satisfied that a total impairment rating of 10 impairment points can be allocated by applying the Impairment Tables in relation to Mr Crerar’s medical conditions in the qualification period and decided that, because his conditions did not attract 20 or more points, and Mr Crerar had not completed a program of support, his claim for DSP did not succeed.

    The Applicant’s submissions

19. Mr Crerar in his opening submissions said that the main issue in contest is whether his conditions were fully diagnosed, fully treated, and fully stabilised in the qualification period. He noted the Respondent’s submissions and said he disagreed with them and that he felt he had plenty of documents that prove otherwise, especially in relation to his prolapsed disc and the severe arthritis in his neck.

20. In terms of his back condition, he said that he had extensive physiotherapy and submitted that the condition was stabilised. He said both his treating general practitioner and his physiotherapist were of the opinion that the condition does not warrant surgery but does prevent him from working.

21. In terms of his depression condition, Mr Crerar said that he accepted that this condition was not diagnosed in the qualification period. He said that he had been given a referral by his general practitioner to see a psychiatrist but did not go. He accepted this condition was not fully diagnosed and therefore was not relevant to his DSP claim.

22. In terms of abdominal pain, Mr Crerar told the Tribunal that he accepted that it cannot be assigned points under the Impairment Tables in the qualification period. In response to a direct query from the Tribunal, he said this condition had improved. He said that he has had an MRI, a CT scan, and an ultrasound, but the precise cause had not been identified.

23. However, he submitted that his back and neck pain condition is completely relevant to this claim, and referred to a 31 May 2022 letter from Dr Graham Stephens, his treating general practitioner. Dr Stephens in this letter suggested an assignment of 10 points under Table 1, 10 points under Table 2 and 20 points under Table 14.

24. The letter was before the Tribunal (ST, p 6). Relevantly, Dr Stephens wrote:

    David has

    -degenerative cervical spine

    -lumbar disc prolapses at L2/3, L3/4 and L4/5

    -to take immune suppression medication following his kidney transplant

    On Table 1 there is a moderate functional impact on activities requiring physical exertion or stamina (10 points). He has difficulty performing day to day activities around the home and community due to neck and back pain and stiffness and due to fatigue caused by his kidney medications.

    On Table 4 ther[e] is moderate functional impact on activities involving spinal function (10 points). He has difficulty moving his head to look in all directions which particularly affects him when driving.

    On Table 14 there is a severe functional impact on activities requiring healthy undamaged skin (20 points). He has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight due to his immune suppressant medication and is at increased risk of skin cancer and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing.

    The Respondent’s submissions

25. The Secretary in written submissions did not dispute that Mr Crerar had an impairment or impairments in the claim period and that he satisfied s 94(1)(a) of the Act (RSFIC, para 4.19).

26. The Secretary accepted that the Applicant’s cervical and lumbar spine conditions were fully diagnosed in the claim period. This was based on a report from Dr Stephens recording that Mr Crerar presented with these conditions on 10 April 2018 (TD, p 99) following a lumbar disc prolapse. In addition, an x-ray report dated 15 June 2021 (TD, p 115) and an MRI report dated 11 September 2021 (TD, p 115) revealed multilevel spondylosis and facet joint arthropathy, including a mild central canal stenosis at C5/6 and several bilateral foraminal stenoses.

27. The Secretary however contended that the cervical and spine conditions were not fully treated or fully stabilised during the claim period. This contention was based, among other things, on Dr Stephens noting on 11 March 2020 that Mr Crerar was planning to see a physiotherapist but that he expected Mr Crerar to return to normal duties and work hours in April 2020. In his letter dated 10 January 2023 (R5), Dr Stephens advises that the Applicant has been referred to Mr David de la Harpe, orthopaedic surgeon, for an opinion about management of his spinal condition.

28. The Secretary submitted that an assessment by a specialist is reasonable treatment having regard to rule 6(7) of the Impairment Tables. The Secretary further submitted that, if the Tribunal finds that Mr Crerar’s cervical and lumbar spine conditions are fully diagnosed, fully treated, and fully stabilised, an allocation of four impairment points under Table 4 would be appropriate, noting the Applicant has some difficulty turning his head in all directions when driving.

29. In respect to Mr Crerar’s renal disease condition, the Secretary accepted it was fully diagnosed, fully treated, and fully stabilised based on a report from Dr Elroy Schroeder who examined the Applicant in May 2012 and diagnosed him with severe renal failure and a candidate for dialysis. More relevantly, Dr Stephens noted that Mr Crerar had a kidney transplant in January 2014, and that fact was accepted by the parties at this hearing. In answer to a direct question from the Tribunal, Mr Crerar said that the new kidney he received is functional, but both of his original kidneys had failed.

30. The Secretary submitted that the most relevant parts of the Impairment Table determination to assess impairments resulting from the renal disease condition are Table 1 – Functions requiring physical exertion and stamina and Table 14 – Functions of the skin. The latter is relevant because it was uncontested that a direct concomitant of the immunosuppressant drugs Mr Crerar must take following the transplant is a heightened insensitivity to sunlight.

31. The Secretary submitted that an allocation of five impairment points under Table 1 and five impairment points under Table 14 would be appropriate, for the impairment resulting from Mr Crerar’s renal disease condition.

32. In terms of the mental health condition (depression) submitted by Mr Crerar, the Tribunal need not examine the Respondent’s submissions because the Applicant in his opening submissions accepted that this condition was not fully diagnosed, fully treated, and fully stabilised in the claim period, and so he was not persisting with that part of his claim.

33. Finally, in terms of whether Mr Crerar had actively participated in a program of support within the meaning of s 94(3C) of the Act prior to making his claim for DSP, the Secretary submitted that, in the 36-month period before he lodged his claim, Mr Crerar must have actively participated in a program of support for at least 18 months, and that Department records confirm he has participated for around 16 months.

    CONSIDERATION

34. The Tribunal is satisfied on the medical evidence before it that in the claim period the Applicant had physical impairments resulting from his renal condition, his neck and back condition and his skin condition. The Tribunal notes Mr Crerar has also mentioned a mental health condition and abdominal pain, but that he concedes these are not assessable in regard to this DSP claim.

    Renal condition

35. It was verified by the medical evidence and accepted by the Secretary that Mr Crerar had a kidney transplant in January 2014. The Tribunal accepts that as a consequence of this surgery, as explained by Dr Stephens in his report of January 2023, the immunosuppressant medication Mr Crerar must take for life following the transplant causes fatigue. This medication also has an iatrogenic effect in causing a person taking it to be more sensitive to sunlight and prone to skin cancers. It was not contested by the Secretary and is accepted by the Tribunal that two consequences of the medication for Mr Crerar are fatigue and a susceptibility to cancers of the skin.

36. Under rule 10(3) of the Impairment Tables, where a single condition causes multiple impairments, each impairment should be assessed under the relevant table. The Secretary submitted that the relevant tables for Mr Crerar’s renal condition are Table 1 – Functions requiring physical exertion and stamina and Table 14 – Functions of the Skin.

37. The Secretary, appropriately in the Tribunal’s view, conceded that Mr Crerar’s fatigue fulfilled the requirement under rule 6(3)(b) of the Impairment Tables that it was likely to persist for more than two years. The Tribunal accepted that the Applicant is unable to stand for more than two hours.

38. The Tribunal is satisfied that Mr Crerar’s renal condition is assessable under Table 1 because the requirements in the introduction to Table 1 are met – the renal condition is permanent, there has been a diagnosis by an appropriately qualified medical practitioner and there is corroborating evidence of the person’s impairment. The Tribunal further accepts on his oral evidence and the corroborative medical reports that the fatigue Mr Crerar experiences is continual.

39. Mr Crerar’s evidence is that he lives alone, and is able to perform most household chores without significant difficulty. He told the Tribunal he had installed a dishwasher machine because he found manually washing dishes while standing made him tired. He said he used to have to have breaks when washing a pile of dishes. He said he can bend to stack the dishwasher, but “it hurts a bit”.

1. He said that he cooks for himself, but usually has a “cooking day” each week, and then freezes meals for later days in the week, to be warmed up. He said he vacuums ‘every now and then’ but that his cabin is not large.

2. The Applicant said he lives in a small cabin adjacent to a house his mother and sister occupy, and they share six acres of land. Four acres are paddocks which are kept down by agisted sheep. The land around the houses he estimated is two acres mainly of lawns but with some garden. He told the Tribunal that he used to mow the lawns but in 2020 he got a contractor in. He said, “I have done a bit with a ride-on mower, I can’t use a push mower.” He told the Tribunal that he does his own washing and can put clothes on the line because the line comes down low, so he does not have to stretch.

3. Mr Crerar said he can drive up to 30 minutes. He lives around 20 minutes’ drive from a local town where he buys groceries from the supermarket and where his general practitioner is also located. He also visits there for physiotherapy. In regard to grocery shopping, Mr Crerar said he usually does ‘click and collect’, so his order is waiting for him, and he avoids having to walk around the aisles to select items.

4. He said that he occasionally does yard work, “not that often, maybe once a week. If I’m having a good day, I can do light pruning of shrubs and tidy the shed, not heavy stuff.” He said the pruning he does is at eye-level, and he would need a break after an hour. He said he used to do more in the garden and stack firewood, but has not been able to do that since he injured his back.

5. Ms Lieschke noted that Dr Stephens said Mr Crerar does not use aids or equipment, which he confirmed. Dr Stephens also said that the Applicant has difficulty moving his head, especially when driving, which he also confirmed.

6. Examining the descriptors in Table 1, the Tribunal finds that the correct assignment of impairment points is 10 impairment points. Although the Applicant said he can vacuum (occasionally), he no longer mows lawns. He also estimated that he can do light pruning for around an hour whilst standing and avoiding bending over. Overall, I am satisfied that the Applicant has difficulty in performing day to day household activities, and that he experiences fatigue frequently – not occasionally. Although the reason Mr Crerar drives to the local shops rather than walks is because of where he lives, I am satisfied on all the evidence that, were he to live on the town, he would still need to drive to the supermarket because of his inability to walk anything more than short distances without resting.

7. As mentioned previously, Table 14 – Functions of the Skin is relevant because the medication Mr Crerar must take as a result of his kidney transplant renders him more vulnerable to skin cancers. He told the Tribunal he had had several cancers removed from his face, hands, and arms and back, and attends the dermatology clinic at Box Hill Hospital for treatment. The Respondent conceded an allocation of five impairment points under Table 14 is warranted.

8. The Tribunal accepts Mr Crerar’s evidence that, when he is in the garden he must wear protective clothing, long sleeves, gloves and a hat, and apply sunblock, which fulfils the requirements in para (1)(a) of the second descriptor matrix in Table 14 and is corroborated by the reports of Dr Stephens.

9. The most applicable part of Table 14 referring to a ‘moderate’ functional impact on activities requiring healthy, undamaged skin is para (1)(d) under the third descriptor matrix. The preceding descriptors refer to difficulties using hands and limbs, which was not asserted by Mr Crerar. Paragraph (1)(d) states:

   The person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).

   (Emphasis added.)

10. It was not in dispute that the medications have led to Mr Crerar having a heightened sensitivity to sunlight and the Respondent did not dispute his evidence about having various skin cancers removed. However, there was no evidence proffered by the Applicant that he must wear sunscreen at all times. The Tribunal notes that this descriptor has been altered in the new determination recently made by the Minister.

11. The Tribunal notes Dr Stephens’ opinion that Mr Crerar merited the allocation of 20 impairment points under Table 14. However, it should be noted that in the descriptors for Table 14, at least one of the descriptors must apply to functional impact in the parts of the matrix for the allocation of five points and 10 points, but for the allocation of 20 points (i.e., a ‘severe’ functional impact), the Impairment Tables require that at least two of the descriptors applies to the person. There is no evidence before the Tribunal that two descriptors apply to Mr Crerar.

12. Accordingly, the Tribunal finds that the correct allocation of impairment points under Table 14 is five points. There is a mild functional impact on activities requiring healthy, undamaged skin.

    Neck and back condition

13. It was not in dispute before the Tribunal that Mr Crerar has cervical and lumbar spine conditions which were fully diagnosed. However, in Dr Stephens’ letter of 10 January 2023 (Exhibit R5), after summarising symptoms, he expresses the opinion that the impacts are likely to persist for more than two years, and that the Applicant has had physiotherapy and takes Panadeine Forte for pain relief. However, Dr Stephens also states that Mr Crerar has been referred ‘recently’ to Mr David de la Harpe, orthopaedic surgeon, for opinion about management. Dr Stephens remarks that he does not expect surgery to be recommended.

14. Mr Crerar said in his oral evidence that he did not go to see Mr de la Harpe, and noted that as the referral occurred only ‘a few months ago’ it would not have been relevant to the claim period. The Tribunal accepts this evidence. However, it thereby presents an insurmountable problem in assigning points under the Impairment Tables because of rule 6(5)(c), given that ‘treatment’, in the sense of an examination by an orthopaedic surgeon, has not yet occurred. Examination by an orthopaedic surgeon, as referred by a person’s general practitioner, is reasonable treatment and, while Dr Stephens may be ultimately correct in his view that surgery may not be recommended, whether that is so is not known, because Mr de la Harpe, who is a specialist in relation to spinal treatment, has not examined Mr Crerar or provided his opinion. Therefore, the answer to whether treatment is continuing or planned in the next two years (as posed in rule 6(5)(c) of the Impairment Tables), is that it is.

15. I do note, and accept, that Mr Crerar has been compliant with treatment recommended by his general practitioner and has been undertaking physiotherapy regularly, as has also been recommended. He is clearly attentive to his condition and wanting it to improve, or at least do co-operate as much as he can in minimising its effect and managing it.

16. However, I find that the back and neck conditions were not fully treated in the claim period, and therefore cannot be assigned impairment points under the Impairment Tables. 

17. Accordingly, the Tribunal finds that the Applicant should be assigned 15 impairment points, 10 points from Table 1 and five points from Table 14. As he has not been assigned 20 or more impairment points in a single table, he does not satisfy s 94(1)(b) of the Act.

18. Because Mr Crerar has not been found to be assigned 20 or more impairment points, it is not necessary for the Tribunal to consider whether he has a continuing inability to work because, as is set out earlier in these reasons, s 94 of the Act is conjunctive – all parts of it must be satisfied for a person to be eligible for DSP.

19. However, for completeness, the Tribunal notes that where a person has not been allocated 20 points under a single Impairment Table, s 94(2)(aa) of the Act provides that the person will be required to have actively participated in a program of support, as defined in s 94(5) of the Act. The Secretary submitted, and Mr Crerar did not dispute, that Department records show that he participated in a program of support for around 16 months, which is below the 18 months in the 36-month timeframe ending on the day before he lodged his DSP claim, in this case the period from 12 February 2019 to 12 February 2022.

20. The Secretary noted that Mr Crerar did undertake some casual employment, sometimes amounting to fulltime hours, until around February 2020.

    CONCLUSION

21. The DSP claim does not succeed. The Tribunal found Mr Crerar a frank and honest witness who I assess was truthful about the scope of the effect of his medical conditions on his daily activities and what he can and cannot do, and what he once was able to do, but no longer can.

22. The Tribunal notes particularly that it is significantly to Mr Crerar’s credit that, having had a long career as a carpenter involving a lot of outside work, he accepted a complete career change after his major kidney transplant, undertook vocational re-training and then worked productively as a hospital theatre technician until he injured himself at home. The Tribunal accepts that the Applicant faces certain debility and, while it cannot speculate, it may be that a fresh claim for DSP could lead to a higher assignment of impairment points once he has a surgeon’s assessment of his established lumbar and cervical conditions. In the absence of being allocated 20 or more points under one Table, he would also have to complete a program of support or be certified as medically unfit to do so.

    DECISION

23. Pursuant to s 43(1)(a) of the AAT Act, the Tribunal decides to affirm the decision under review.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........[sgd]............................

Associate

Dated: 23 May 2023

Date of hearing:	27 April 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Kathryn Lieschke
Solicitors for the Respondent:	Sparke Helmore Lawyers