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

David and Secretary, Department of Social Services (Social services second review) [2020] AATA 687 (31 March 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7267
Re:Jack David
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:31 March 2020
Place:Sydney

The decision under review is set aside and in substitution it is determined that Mr David qualified for unlimited portability of his disability support pension as at the date of his claim, being 14 April 2018.
.........................[sgd]............................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application for unlimited portability – whether applicant has a severe impairment – 20 points or more under a single Impairment Table – whether applicant will have a severe impairment for the next five years – capacity to work independently of a program of support – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 1215, 1217, 1218AAA
Social Security Administration Act 1999 (Cth)
CASES
Morton and Secretary, Department of Social Services [2014] AATA 949
WMKR and Secretary Department of Social Services [2015] AATA 483
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S Evans, Member
31 March 2020

Jack David is the Applicant in this matter (“the Applicant”). He seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”), which affirmed a decision made by the Department of Social Services (“the Secretary” or “the Respondent”) on 28 November 2018 not to grant Mr David unlimited portability of his disability support pension (“DSP”).
For the reasons which follow the reviewable decision is set aside and substituted with a decision to grant Mr David unlimited portability of his disability support pension.
BACKGROUND
In January 2013 Mr David was 21 years old, living in Tasmania and studying at university. He was travelling in his car when he was hit from behind by another vehicle.
Following the accident Mr David was taken to hospital where he was admitted for a short period prior to being released. Two days after being discharged Mr David returned to hospital reporting neck pain and confusion. Following the accident Mr David experienced memory and attention difficulties which affected his ability to continue with his university studies. Mr David continued to work part-time in hospitality and re-enrolled in university but he subsequently withdrew as he was experiencing cognitive difficulties and was unable to cope with academic requirements.
Following an assessment in April 2014 clinical neuropsychologist Dr Janine Martin determined that Mr David had memory and attention difficulties as a result of the motor vehicle accident.
Applications for disability support pension and portability
In June 2015 Mr David applied for the disability support pension. In August of that year Mr David attended a job capacity assessment (“JCA”) which assessed his impairments as being five points for spinal function impairment (Table 4) and 10 points for traumatic brain injury (Table 7).
In September 2015 Mr David was assessed by psychiatrist Dr Philip Reid who diagnosed him with “Major Depressive Disorder secondary to his acquired brain injury”. Mr David attended another JCA and on that occasion he was assessed as eligible for 5 points for spinal function impairment, 10 points for his traumatic brain injury and an additional 5 points for his depression under Table 5, Mental Health Function.
As Mr David was assessed as not having a severe impairment, he was deemed ineligible for DSP at that time as he had not completed a Program of Support (“POS”).
In January 2016 a government contracted doctor, Dr Jose Arnel Polong, determined that Mr David should be allocated 20 points for his traumatic brain injury under Table 7 because “there are sufficient medical evidence [sic] to support the customer’s daily struggle with his working memory & cognitive impairment indicating the customer’s need for at least once a day support or assistance”.
Following Dr Polong’s report, Mr David was granted DSP backdated to 16 June 2015.
DSP recipients are entitled to apply for unlimited portability. For practical purposes this enables an applicant to spend in excess of 28 days each year outside Australia without detriment to pension payments.
Mr David applied for unlimited portability on 14 April 2018. DSP recipients applying for portability on the basis of a permanent and severe impairment are required to undergo an assessment of their impairment and future work capacity. A JCA report was completed on 15 June 2018 (“the 2018 JCA”) and the assessor concluded that Mr David was eligible for 10 points for his traumatic brain injury and 10 points for his mental health function. As he was assessed as not having a “severe” impairment, Mr David was deemed ineligible for indefinite portability.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in the Social Security Act 1991 (Cth) (“the Act”), the Social Security Administration Act 1999 (Cth) (“the Administration Act”), and the Social Security (Tables for the Assessment for Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).
Portability for DSP recipients
Section 94(1)(e)(i) of the Act generally requires that DSP recipients are Australian residents in order to qualify.
Section 1215 of the Act provides that a person in receipt of a social security payment may continue to be paid during a portability period for their payment, but will cease to be paid for absences from Australia which occur after the end of the person’s portability period.
Section 1217 of the Act provides that typically, a person receiving DSP can be paid for a total portability period of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose within a 12 month rolling period. Section 1217 also details a number of situations wherein a person receiving DSP may travel outside Australia for extended periods. Item 2A indicates that DSP is portable for an unlimited period if the person receiving DSP is a “severely impaired disability support pensioner”.
Section 1218AAA provides the qualifying circumstances for a “severely impaired disability support pensioner” to be eligible for an unlimited period of portability. It requires:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) within the next 5 years.
A “severe impairment” is defined in section 94(3B) of the Act. A person’s impairment is severe if it is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Accordingly, in order to qualify for unlimited portability of DSP, Mr David must have a severe impairment that will extend over the next five years, and prevent him from performing any work independent of a program of support within the next 5 years.
The Impairment Tables
Subsection 94(1) of the Act provides in part:
A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work ……
The Impairment Tables are used to determine if a person is qualified for DSP. Applying the Impairment Tables can also answer the question of whether a person has 20 or more points under a single Table, and hence has a “severe impairment” in accordance with section 94(3B).
The rules for applying the Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination of 2011 (“the Impairment Tables”).
Paragraph 5(2) of the Impairment Tables clarifies that they are designed to assign ratings to determine the level of functional impact of an impairment(s), and not to assess conditions. The Impairment Tables also provide that an impairment rating cannot be assigned unless a condition is assessed as permanent in that it has been diagnosed, fully treated and stabilised.
Relevantly, an impairment is defined in paragraph 3 of the Impairment Tables to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. Subparagraph 6(1) provides that an assessment of any impairment must be based on what a person can do, not what the person chooses to do or what others could do for them. Subparagraph 6(8) provides that the presence of a diagnosed condition does not necessarily mean that there will be functional impact to which an impairment rating may be assigned. Subparagraph 8(1) provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence, examples of which are set out in each Table. Subparagraph 11(1)(c) provides that if an impairment falls between two ratings, the lower of the two ratings is to be assigned.
The relevant period
When making a determination under section 1218AAA the Tribunal is required to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision (Morton and Secretary, Department of Social Services [2014] AATA 949). Consistent with WMKR and Secretary Department of Social Services [2015] AATA 483, the Tribunal seeks to determine Mr David’s eligibility as at the date of claim, 14 April 2018. If the evidence indicates that circumstances have changed subsequent to the application, the Tribunal may consider this if necessary to do so.
ISSUES FOR THE TRIBUNAL
As the Applicant is a recipient of DSP and is seeking unlimited portability of that pension, the questions for the Tribunal are:
(a)Does the Applicant have a severe impairment within the meaning of subsection 94(3B); and if so
(b)will he have that severe impairment for the next five years; and
(c)if he were in Australia, would the severe impairment prevent him from performing any work independently of a program of support within the next five years.
EVIDENCE
The hearing took place over two days with approximately three months between in order to enable detailed questioning of expert witnesses who were called to testify as to Mr David’s medical conditions.
The Tribunal has before it documents relating to Mr David’s medical treatment following his accident. In addition, Dr Himalee Abeya and Dr Richa Rastogi provided evidence to the Tribunal by telephone. Evidence was also provided by the Centrelink officer who wrote the 2018 JCA.
Mr David was represented by a solicitor. He attended the hearings and provided evidence under questioning. I found him to be a reliable witness who endeavoured to do the best he could to assist the Tribunal by answering all questions put to him.
Mr David
Since being granted disability support pension Mr David moved to Sydney where he resides with his grandmother. Whilst they live in the same premises Mr David reports that they live largely independent of each other.
Mr David’s parents still live in Tasmania but they visit Mr David in Sydney about three times a year and Mr David also visits them in Tasmania. Whilst he has extended family in Sydney Mr David rarely sees them.
Mr David is able to groom, dress and shower himself but he requires assistance in the form of prompting by his mother. He attended the hearing wearing a suit and tie and told the Tribunal that his mother helped him get dressed. Mr David often eats only one meal a day. Sometimes his food is provided by his grandmother and other times he will walk to the shops which are about 400 metres away from his house and get something himself. His grandmother has a housekeeper who makes his bed once a week. He says that he does not do any housework but is reliant on the housekeeper to do things such as put his clothes away.
Mr David passes time watching videos on YouTube on his phone and listening to music. He told the Tribunal that he has no regular sleep pattern or routine since the accident. He reports that his sleep is always irregular and some days he can sleep for 16 or 17 hours and other times he cannot sleep at all. His sporadic sleep is in part due to nightmares which wake him at night and he finds it difficult to sleep after.
Mr David has been under the care of a family member, be it his brother, mother or grandmother since the accident. Mr David moved to Sydney because his father, who is a pilot, had been offered a job with an international airline which would be based in Hong Kong. In anticipation of his parents moving overseas, Mr David said it was decided that his grandmother could provide better care for him than his brother with whom he was living at the time.
Mr David is concerned that he is a burden to his family. He told the Tribunal that in addition to being a potential burden on his brother, he felt he was currently a burden on his grandmother. He told the Tribunal that “I know how unhappy I am here, and, like, it is either this or… I just don’t think I can stay for much longer… I just feel like a burden here in Sydney”.
Medical evidence
Dr Janine Martin is a neuropsychologist and her report dated 14 April 2014 identifies Mr David’s “primary deficit is attentional” and specifically related to his “working memory”.
Dr Philip Reid is a psychiatrist who diagnosed “Major Depressive Disorder” in September 2015. Dr Reid specifically notes that Mr David was “anxious and disorganised” and that “cognitive problems remain an ongoing issue”.
Dr Himalee Abeya is currently Mr David’s treating psychiatrist and has been since 2016. She has diagnosed Mr David with chronic post-traumatic stress disorder, traumatic brain injury and subsequent chronic major depressive disorder.
Dr Richa Rastogi is a consultant psychiatrist who provided a report on Mr David’s condition in September 2019. Dr Rastogi confirms a diagnosis of traumatic brain injury, chronic major depressive disorder and post-traumatic stress disorder.
CONSIDERATION
Does Mr David have a ‘severe impairment’?
I will consider both of Mr David’s impairments, being his permanent mental health condition and permanent brain injury, separately, though as noted by the Applicant, there is some overlap between the conditions and resulting impairments. As per the Impairment Tables, where multiple conditions cause a common or combined impairment, I am required to provide a single rating in relation to that combined impairment under a single Table.
Mental health condition – Table 5 (Mental Health Function)
The Secretary accepts that this condition is permanent as it was fully diagnosed, fully treated and fully stabilised during the relevant period. The Secretary argues that the impairment rating should be 10 points under Table 5.
In her report of November 2018 Dr Abeya confirms Mr David has a diagnosis of major depressive disorder and post-traumatic stress disorder. Both conditions she diagnoses as chronic.
Table 5 contains six descriptors which determine the appropriate level of impairment. Mr David is required to meet four of the six descriptors in order to qualify for the rating to which they are assigned. In determining which rating should be assigned to Mr David’s impairment, it is necessary for each of these factors to be considered:
(a)self-care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making; and
(f)work/training capacity.
The Secretary submits that it accepts Mr David only has a severe difficulty in relation to (b) social/recreational activities and travel.
Dr Abeya writes that “in terms of self-care and independent living, [Mr David] needs very regular prompting and only manages reasonably when he is with his mother”. Under cross examination she maintained that whilst Mr David has the capacity to shower and dress himself on “good days”, he does not have the capacity to attend to either of these tasks consistently. As noted, he also has his clothes washed and room cleaned by his grandmother’s cleaner once a week.
Mr David maintains that he “cannot tolerate social gatherings, even if it is only family”. He has few friends and almost no social interaction. His grandmother with whom he lives writes:
Jack is very polite and usually good mannered. He has changed completely since the accident. He has withdrawn into his own world. He hardly ever goes out. He does not appear to have any social life.
Concentration and task completion is difficult for Mr David. Dr Rastogi reports that he has “poor complex decision making capacity, poor multitasking and limited comprehension, can do basic financial transactions but unable to make decisions”. Later in her report she writes that Mr David has difficulty with task initiation and completion.
Mr David’s mother has written that he is easily frustrated, often confused and is forgetful. His grandmother’s statement says that he will “occasionally snap” at her. Dr Abeya writes in her report of November 2018 that Mr David’s decision-making capacity and ability to plan have been “severely negatively” impacted by the “ongoing depressive symptoms and background PTSD”.
Dr Rastogi reports that “due to his poor concentration, poor retention and working memory loss and amotivation, poor planning and problem solving tasks and social isolation with issues of trust” Mr David has “no work capacity”.
Whilst Mr David does have ‘severe difficulty’ with some of the activities listed in Table 5, specifically in regards to self-care and independent living, interpersonal relationships and concentration and task completion, he does not have with ‘most’. On balance, weighing all the evidence, I find that Mr David’s mental health function is appropriately rated 10 points under Table 5.
Traumatic Brain Injury – Table 7 (Brain Function)
The Secretary accepts that Mr David’s traumatic brain injury is fully diagnosed, treated and stabilised. The Secretary argues that Mr David’s impairment produces a moderate functional impact and 10 impairment points is the appropriate rating under Table 7 (Brain Function), which provides in part:
10 points - There is a moderate functional impact resulting from a neurological or cognitive condition.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j) self-awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
20 points - There is a severe functional impact resulting from a neurological or cognitive condition.
(1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a) memory;
Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places.
(b) attention and concentration;
Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.
(c) problem solving;
Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.
(d) planning;
Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).
(e) decision making;
Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.
(g) visuo-spatial function;
Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).
(h) behavioural regulation;
Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
(j) self-awareness.
Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.

Mr David is consistently prompted to perform basic, daily functions by others, primarily his mother. His mother calls him daily to remind him to eat and to shower. He has on occasion left the house without shoes and often wears his clothes inside out. Unless prompted to dress, he is known to spend the day in his robe.
Dr Rastogi reports that Mr David has a severe difficulty with his memory including with routines and remembering things without prompting. She told the Tribunal that his attention and concentration is impaired to such an extent that his attention span is limited to 10 minutes. Dr Abeya also confirmed that Mr David struggled when required to concentrate on tasks for more than 10 minutes. She told the Tribunal that having treated Mr David over a number of years and seeing him for appointments which typically last at least half an hour and up to 40 minutes, she knows that by the end of these appointments Mr David is struggling. She said that she can see when Mr David’s attention is wavering and she will change the topic regularly during their sessions to keep him focussed. Dr Abeya maintained her position that Mr David had difficulty concentrating on any task or conversation for more than 10 minutes under intense questioning by the Respondent.
Following her assessment of Mr David in April 2014, neuropsychologist Dr Martin wrote:
The test results suggest that [Mr David’s] primary deficit is attentional or more specifically a reduction in working memory capacity, which is affecting his ability to multi-task (e.g. take notes while listening to a lecture), to efficiently encode and consolidate new information (forgetfulness), to follow a conversation or keep track of the context of what he’s reading (comprehension), to control his emotional reactions (increased frustration and irritability) and to efficiently perform any problem solving or mental calculations. Working memory is a key cognitive function that can be described as active attention. It is necessary for daily activities such as new learning, remembering instructions and the sequence of activities, time management, listening and responding appropriately in social situations, and monitoring impulses.
This was confirmed as a current consideration by Dr Rastogi who writes in her report of September 2019 that Mr David has “working memory loss”. Mr David told the Tribunal that his “executive memory” was a lot better than his working memory, which he described as being “not so good”. In contrast, what he called his executive memory, which he indicated consisted of habits, knowledge and skills which he learned before the accident, was better. He attributes his knowledge of these concepts to Dr Martin, who he saw for a number of years.
Dr Rastogi provided additional insight into Mr David’s memory which was more nuanced than Mr David’s description. She described working memory as being related to planning and problem-solving. She indicated that Mr David having poor working memory makes it difficult to take multiple decisions, make complex financial decisions, to change tasks or undertake more than one task. She said Mr David can do simple tasks of day-to-day living like cooking or cleaning or other very basic tasks but complex tasks or those which require decision making can be significantly affected.
Dr Rastogi also performed the Montreal Cognitive Assessment (“MoCA test”) on Mr David. The test was the same as the one that had been performed by Dr Martin in 2014 when his score was 24/30, with 30 being the optimal result. Mr David scored 22/30 in the more recent test, indicating a deterioration in his condition. Dr Rastogi opined that the decrease in Mr David’s MoCA test results indicates further cognitive impairment. In the context of the MoCA test Dr Rastogi later told the Tribunal:
…his [Mr David’s] ability to sustain tasks and maintain tasks is going to be a big issue for him… his consistency to do things, even the basic household chores, is very poor, leave along going to work, which requires a lot more planning.
The Secretary submits that aspects of Mr David’s abilities make him ineligible for any more than a moderate impairment, that is 10 points each, under both Table 5 and Table 7. In particular the Secretary cites Mr David’s ability to travel alone, his ability to drive and his ability to concentrate throughout the hearing as being incompatible with a severe impairment.
Ability to travel to Thailand
Both Dr Rastogi and Dr Abeya testified that Mr David’s memory is severely impaired. Whilst Mr David is travelling alone, so-called “working memory” functions, such as planning, decision making and problem solving are effectively delegated to his mother. Whilst he travels alone, his mother identified a suitable location, made the booking and checked if the arrangements would be suitable for his condition and capabilities. She monitors his flights, arrival and departures in real time via the internet and, just as she does in Australia, provides instructions, prompting and assistance over the phone. She is available on the phone if Mr David is in a situation which calls upon decision making or other skills beyond his capability. For practical purposes this is not dissimilar to the situation in Australia where Mr David is dependent on his mother who is usually in a different city.
Mr David also has a familiarity with airports on account of his frequent independent travel from a young age. I accept Mr David’s evidence that this has afforded him a familiarity with airports and travel which puts it within what he terms “executive memory” and that consequently this has placed the task of travel within the scope of what he is capable of. His regular travel to visit his parents in Tasmania supports this.
Mr David told the hearing that his mother assisted with his travel. “She [Mr David’s mother] does everything”, he said, “she called up the hotel and made sure they had like room service and laundry needs and she did a bunch of like checks to make sure that I’d be supervised”.
Mr David told the Tribunal that he paid the quoted rate for everything whilst in Thailand. I accept that such behaviour avoids him engaging in complex decision making and weighing options under pressure.
I note also that the recommendation to travel came from Mr David’s neuropsychologist Dr Martin. Mr David testified that he experiences fewer “bad days” when he is in Thailand which he in part attributes to feeling like “less of a burden” on his family and being more active when he is there.
Any therapeutic benefits which may arise from Mr David’s travel are not considerations for the Tribunal in determining an appropriate impairment rating. Nor should the Tribunal be prejudiced in deciding Mr David’s impairment rating because he has followed the instructions of a treating medical specialist. As the concept of “pushing himself” by considering independent travel originated from his neuropsychologist, it supports a finding that Mr David is almost entirely dependent on his family and treating doctors to make complex or higher order decisions on his behalf. Dr Abeya writes in her report of November 2018:
His [Mr David’s] visit overseas was entirely planned and orchestrated by his mother. When there, he informed me that the hotel looked after his washing and drying and he had meals downstairs delivered to his room. He stayed in the same familiar hotel and the drive to the airport was 10 minutes from home making it possible.
Consistency of Mr David’s conditions
The Impairment Tables allow for the fact that an applicant’s conditions may vary. When assessing conditions which fluctuate the rating which reflects the “overall functional impacts of those impairments” must be assigned.
Both Dr Abeya and Dr Rastogi confirmed that Mr David has “good days and bad days”. Dr Rastogi testified that Mr David’s ability to sustain and maintain tasks is a significant challenge for Mr David because he struggles with his “consistency” to do things.
The Secretary points out that Mr David was observed to maintain concentration throughout the hearing both in the general division and his initial review in the first tier of the Tribunal. The Secretary also opines that Mr David’s answers to questions put by the Tribunal were responsive and detailed and that he was able to recall information spontaneously from memory, whilst acknowledging the comments of the SSCSD which noted his recollection was “somewhat delayed” on occasion.
The Secretary draws the Tribunal’s attention to the fact that Mr David had access to his phone during the hearing to review notes that he had made earlier. The Secretary also considers that Mr David understands the purpose of the hearing and the concept of portability and the associated requirements. It is also noted that Mr David is able to remember routines, regular tasks and instructions but acknowledges he has difficulty in this regard.
In light of this it is submitted by the Secretary that Mr David is able to concentrate for more than 10 minutes and that he is able to solve routine day-to-day problems but he has difficulty doing so. Mr David is able to drive from Balmain to Eastwood and plan trips in Sydney. Pertinently the Secretary considers that Mr David’s driving trips in Sydney and his lifestyle in Thailand is inconsistent with 20 points under Table 7.
Mr David told the Tribunal that he was having a “good day” when he attended the hearings. Describing his time in Thailand he said that for the first few days he was there he didn’t leave his room as he was anxious and overwhelmed. He said that the staff, including the cleaners and manager, were aware of his condition and when he needed extra assistance they would come in and make sure he had food, clean his room or do his laundry. He said he ate in his room three times a day and the staff came in and checked on him. He said he spoke to his mum regularly whilst he was in Thailand. He said hotel staff directed him to the beach which was a very simple walk and he was not at risk of getting lost.
At the hearing it was put to Mr David that he had been concentrating for more than 30 minutes during questioning. He told the Tribunal:
I haven’t really… my mind has been jumbled even when you’re talking, like I lose track of what you’re saying and like I haven’t been concentrating.
The evidence supports a finding that Mr David suffers from conditions which lead to a variance in his impairment. The combination of depression, anxiety and the specific nature of his impaired memory function result in impairments which vary or are, as Mr David confirmed, influenced by factors such as his environment.
2018 JCA Report
The 2018 JCA was written by a Centrelink officer who has assessed written and verbal reports from treating medical professionals with input from a registered psychologist.
The role of the Tribunal in a review such as this is to determine for itself what is the correct and preferable decision, ‘to do over again’ what the original decision maker did. This being the case I have considered the 2018 JCA but given it limited weight.
In Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642, it was noted:
The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity.
The 2018 JCA relies in part on the evidence of Dr Norville, who is Mr David’s General Practitioner. The Tribunal heard evidence that in determining the appropriate impairment rating under Table 7 was 10 points, the decline in Mr David’s MoCA test score was not considered by the assessor. In an “Additional Medical Evidence” form, Dr Norville provides a prognosis of Mr David’s traumatic brain injury which is “moderate to severe”, but “severe” is neither reported nor addressed in the subsequent JCA report. The 2018 JCA states that the Applicant is not taking any medication for his mental health condition. Mr David’s evidence at the hearing is that he is currently taking medication and that he has tried “seven to ten” different medications for his anxiety and depression over time.
The Secretary contends that the 2018 JCA is particularly important given it was completed shortly after the relevant period, but this is not accepted by the Tribunal given the totality of considerations detailed above.
It is the Tribunal’s finding that based on the evidence set out above and for the reasons set out above, Mr David’s traumatic brain injury results in a severe functional impact on activities involving brain function consistent with the criteria which must be present under Table 7 to attract 20 impairment points.
I have considered carefully if Mr David’s ability to travel independently, and particularly his trips to Thailand, is consistent with a ‘moderate’ rather than ‘severe’ level of impairment and I have concluded that in his circumstances it is not. Mr David is fully supported throughout his travels and the nature of his condition is such that he can perform rudimentary tasks, particularly those which are incorporated into his “executive” memory. He is not able to perform more complex decision making, but nor is he required to.
Based on the totality of the evidence, I am satisfied that Mr David has a severe impairment that will exist for at least the next 5 years. Mr David therefore satisfies the requirements of section 1218AAA(1)(a)-(c).
Portability
Having found that Mr David satisfies the requirements of section 1218AAA(1)(a)-(c) of the Act, the Tribunal must now consider section 1218AAA(1)(d). This section requires the Secretary to be satisfied that, due to his impairment, Mr David would be unable to perform any work independently of a program of support within the next 5 years.
In reference to section 1218AAA(1)(d) of the Act, the Secretary contends that what is at issue for the purposes of unlimited portability is whether an applicant’s severe impairment would prevent the person from performing ‘any’ work independently of a program of support. The Secretary submits the 2018 JCA found that Mr David has a baseline work capacity of 0-7 hours per week and a future work capacity of 8-14 hours per week within 2 years with appropriate interventions. The Secretary contends that this is evidence that Mr David does not meet the requirement.
It is the Tribunal’s view that the Applicant’s capacity to perform work is most relevantly addressed by Dr Abeya who has provided opinion on his work capacity over a number of years. In a document she completed in February 2017 she writes:
Whilst [the Applicant] understands that being gainfully employed would be very beneficial for his emotional state he is unable to either train or present for an interview let alone regularly for employment owing to the deficits he experiences as part of his symptoms
…
Even with further treatment I am of the opinion that he is likely to continue to experience ongoing symptoms of his illnesses and his prognosis is guarded.
Under the heading “will the patient ever be able to perform a job for which they are reasonably suited for by education, training and experience?” Dr Abeya writes:
No…his chronic post traumatic stress disorder symptoms and depressive symptoms would be a barrier to his ability to train or present for a reasonable occupation.
In a medical report from May 2018 Dr Abeya writes “I believe his [Mr David’s] condition has reached a chronic stage. Despite his young age I am doubtful there will be significant improvement”.
Dr Abeya opines in July 2018:
In terms of work/training capacity, [Mr David] does not have the capacity to attend any form of educational or training activity owing to the cognitive deficits and ongoing symptoms of depression or posttraumatic stress disorder. It also significantly impairs his capacity to consider any form of reasonable gainful employment, as he will not have the capacity to consistently attend to tasks.
In November 2018 she is more categorical, writing:
[Mr David] is unable to attend either work or training owing to his ongoing depressive condition. He would not have the capacity to consistently present himself or engage in any such required task owing to his difficulties with planning, decision-making, poor concentration and inability to interact appropriately without anxiety.
When asked if Mr David would be able to work for “just one or two hours a week” she told the Tribunal:
I don’t think it’s something that he would consistently be able to do. I mean … I don’t know if he was in a really good place on a certain day and tried to get out to do something that would be I think a different story, but to commit to be able to do something consistently a number of hours, even if it’s one or two every week I think it’s going to be a struggle. What you’d end up with is essentially absenteeism because of the stress and strain of actually getting there, being present, and being able to be consistently well in order to try and 5 do it. I really don’t think that’s possible from a practical point of view or clinical for that matter.
In circumstances where Dr Abeya has been Mr David’s treating specialist for a period of over three years I find this evidence should be given significant weight. It is not a one-off analysis or opinion, but a series of determinations over an extended period of time about a condition which has proven to be relatively consistent.
Further, Dr Abeya’s findings are supported by Dr Rastogi, who writes “due to his poor concentration, poor retention and working memory loss and amotivation, poor planning and problem solving tasks and social isolation with issues of trust he has no work capacity and has had no capacity since 2015”.
Having regard to the evidence before me, I am satisfied that Mr David is unable to perform any work independently of a program of support within the next 5 years.
CONCLUSION
It is the Tribunal’s finding that, on the basis of the medical evidence referred to above, and for the reasons set out above, Mr David is suffering a severe impairment within the meaning of section 94(3B) of the Act; the impairment will persist for at least 5 years (and in all probability indefinitely); and the impairment will in all probability prevent him from performing any work independently of a program of support within the next 5 years.
DECISION
The decision under review is set aside and in substitution it is determined that Mr David qualified for unlimited portability of his disability support pension as at the date of his claim, being 14 April 2018.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

............................[sgd].........................................
Associate
Dated: 31 March 2020

Dates of hearing: 9 October 2019 & 14 January 2020

Solicitors for the Applicant: Mr S Hodges, Hodges Legal

Solicitors for the Respondent: Dr S Thompson, Services Australia

[2020] AATA 687

31 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Appeal

Dates of hearing:	9 October 2019 & 14 January 2020
Solicitors for the Applicant:	Mr S Hodges, Hodges Legal
Solicitors for the Respondent:	Dr S Thompson, Services Australia