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

De Bartolo and Secretary, Department of Social Services (Social services second review) [2020] AATA 3748 (25 September 2020)
Division:GENERAL DIVISION
File Number: 2019/6229
Re:Gino De Bartolo
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:25 September 2020
Place:Melbourne

The decision that the Applicant was not eligible for Disability Support Pension in relation to his claim made on 18 January 2018 is affirmed.
.........[sgd]...............................................................
Senior Member D. J. Morris
SOCIAL SERVICES – Benefits, payments and allowances – Disability Support Pension (DSP) – review of Social Services and Child Support Division decision – whether person qualified – whether impairments fully diagnosed, fully treated and fully stabilised – eye condition – right shoulder condition – conditions found to be permanent – allocation of points to impairments – decision under review affirmed
Legislation
Acts Interpretation Act 1901, s 36(1)
Administrative Appeals Tribunal Act 1975, s 33A
Social Security Act 1991, ss 94(1), 94(5)
Social Security Administration Act 1999, Sch 2, cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
Miller and Secretary, Department of Social Services [2019] AATA 1531
REASONS FOR DECISION
Senior Member D. J. Morris
25 September 2020
BACKGROUND

Mr Gino De Bartolo brings to the Tribunal an application for a review of a decision of the Social Services and Child Support Division of the Tribunal (called in these reasons AAT1) dated 29 August 2019 which affirmed an earlier decision that he was not eligible for Disability Support Pension (DSP).
The Applicant lodged a claim for DSP on 18 January 2018. An officer of the Department of Human Services (the Department), having considered the application, rejected it on
25 May 2018. This is the original decision.
Mr De Bartolo requested a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. The ARO affirmed the original decision to reject the claim on 20 June 2019. The Applicant then sought a review by AAT1, which affirmed the original decision. Mr De Bartolo received the decision by AAT1 on 4 September 2019 and applied for review by the General Division of the Tribunal on 23 September 2019.
The hearing was held by telephone, under section 33A of the Administrative AppealsTribunal Act 1975, on 16 September 2020. Mr De Bartolo made submissions and gave evidence. Mr Brian Sparkes, a lawyer with the Department, appeared for the Respondent, and made submissions. The Tribunal admitted into evidence a volume of documents (‘T’ documents) totalling 184 pages lodged by the Respondent (Exhibit R1), and a medical report of Dr Harry Djumas, the Applicant’s general practitioner, dated 17 January 2020 (Exhibit A1). The Tribunal also had regard for a written Statement of Facts, Issues and Contentions with attachments lodged by the Respondent. At the conclusion of the hearing, the Tribunal reserved its decision and advised the parties it would provide a decision promptly, accompanied by written reasons for that decision.
APPLICABLE LAW
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under section 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)…
In terms of the criteria under section 94(1)(c) of the Act, no contention was made that Mr De Bartolo had participated in the supported wage system. He was therefore required to establish a ‘continuing inability to work’. Relevantly, section 94(2) of the Act provides that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Section 94(3B) of the Act provides that:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table
Therefore, if the claimant is assigned 20 points under the Impairment Tables but does not have a ‘severe impairment’ for the purposes of section 94(3B) of the Act, then the Secretary must be satisfied that he 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. If Mr De Bartolo does have a ‘severe impairment’, he is only required to satisfy sections 94(2)(a) and 94(2)(b) of the Act.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 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.
Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.
Therefore, there are two questions for the Tribunal to consider. First, the Tribunal must consider whether Mr De Bartolo was qualified for DSP on the date he lodged his claim, 18 January 2018. If not, the Tribunal must then consider, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, whether he became qualified on a day in the succeeding 13-week period, starting on 19 January 2018 and ending on 19 April 2018.
Claims made after 31 December 2011 are assessed by applying the Impairment Tables which came into force on 1 January 2012 under the Social Security (Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Tribunal Member at the first-tier review was satisfied that a total impairment rating of 15 points can be allocated in relation to Mr De Bartolo’s medical conditions in the claim period and, because the conditions did not attract an allocation of 20 or more impairment points and the Applicant had not undertaken a program of support, his claim did not succeed.
THE HEARING
The Secretary in written submissions did not dispute that Mr De Bartolo had impairments in the claim period and submitted that he satisfied section 94(1)(a) of the Act.
The Tribunal considered the medical evidence in the T-documents and, in particular, two Job Capacity Assessment (JCA) reports, the most recent dated 22 March 2019 which had considered various medical conditions cited by Mr De Bartolo and corroborated by medical evidence. I have reviewed the medical evidence, including medical reports from Mr Douglas Li, orthopaedic surgeon, dated 13 August 2014 and 18 February 2015, and from Dr Thomas Hardy, ophthalmic surgeon, dated 25 August 2016. Based on this material, I am satisfied that at the time of Mr De Bartolo’s claim he suffered from an upper limb condition (specifically a shoulder condition), and a condition affecting his right eye.
Based on the medical evidence before the Tribunal, I find that the Applicant satisfied section 94(1)(a) of the Act in having a physical or psychological impairment as at the date he made his claim for DSP.
Should the person’s impairment be allocated 20 points or more in the claim period?
At the hearing, both parties submitted that the Tribunal should concentrate on the question of whether Mr De Bartolo’s shoulder condition should be allocated 20 points in the Impairment Tables. Mr De Bartolo submitted to the Tribunal that he did not contest the original decision to allocate 5 points in relation to his eye condition.
The Tribunal must nevertheless consider both claimed conditions to determine whether each of these conditions is ‘permanent’ within the meaning of that term stipulated in the Determination and, secondly, whether each is able to be considered for the allocation of points under the Impairment Tables.
What does ‘permanency of conditions’ mean?
The Determination requires, at section 6(4), that a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and the condition has been fully treated, and the condition has been fully stabilised and the condition is more likely than not, in the light of available evidence, to persist for more than two years. Section 6 of the Determination goes on to set out what must be considered by a decision-maker as he or she considers whether a condition can be assigned points under the Impairment Tables:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully Stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Consideration of the Applicant’s medical conditions
Eye condition
Before the Tribunal were medical reports from Dr Thomas Hardy which indicated that Dr Hardy performed surgery on Mr De Bartolo on 25 August 2016, namely the removal of a right orbital cavernous hemangioma (i.e. a benign fibrous vascular tumour). Dr Hardy cited a date of onset of the condition as being ‘September 2015’. On medical review of

Mr De Bartolo on 31 May 2018, Dr Hardy wrote:
…there hasn’t been a significant degree of improvement since my last letter in November [2017] and things may not improve any further.
The ARO considered that Mr De Bartolo’s eye condition was longstanding, diagnosed by a specialist and had been treated and stabilised. The Tribunal, having reviewed the medical evidence in the reports before it, comes to the same conclusion in relation to this condition. At the time Mr De Bartolo lodged his DSP claim, there had been a significant period since surgery had been performed but the professional specialist opinion was that there was unlikely to be any significant improvement.
The relevant Impairment Table for the assessment of this condition is Table 12 – Visual Function. The introduction to that table requires that a diagnosis have supporting evidence from an ophthalmologist. That requirement is met.
On the medical evidence before the Tribunal, in the claim period Mr De Bartolo said he could drive, read road signs and newspapers, but was affected by diplopia (double vision) when looking from certain angles, and was somewhat affected by pain from this condition. He told a JCA in February 2018 that he could see with normal spectacles, could read road signs and newspapers, could tolerate normal light and experienced some watering from the eye. He also remarked that he had tried prism spectacles without particular success.
The Tribunal concludes on this evidence that the Applicant does not meet the descriptors in the matrix for a moderate functional impact on activities involving visual function set out in Table 12 because he does not, on his evidence, meet the descriptions in (1)(a), (b), (c) or (d), all of which must be satisfied. However, the impact on his activities does meet the description in (1)(d) in the part of the table relating to mild functional impact, in relation to watering of the eye, and, with this, added to the double vision he experiences when looking other than straight ahead, which is corroborated by his eye surgeon, a reasonable conclusion merits the allocation of 5 impairment points under this Table.
The Tribunal finds that the correct allocation in relation to the Applicant’s eye function in the claim period is 5 points under Table 12.
Shoulder condition
Mr Douglas Li diagnosed a rotator cuff injury in relation to Mr De Bartolo’s right shoulder, with a date of onset of 2013. Mr Li operated on the right shoulder on 17 July 2013 and undertook a medical review of the Applicant on 13 August 2014, reporting ‘no improvement’. He undertook a further review in 2015 and again reported there was no significant improvement after eighteen months since surgical intervention, with Mr De Bartolo experiencing ongoing pain and limited flexion, abduction and rotation to L5, with his rotator cuff ‘weak’. Mr Li’s opinion was that the shoulder condition was unlikely to improve.
The JCA recommended that this condition be regarded as permanent in terms of the Act, in that it had been diagnosed by a specialist, treated, and the professional opinion was that, after a significant period after surgical repair, it had stabilised, and an assessment of the functional impact was therefore possible.
Mr Sparkes in his submissions conceded that Mr De Bartolo was unable to undertake his previous trade, which was as a plasterer and renderer, owing to this shoulder condition, but submitted that he does have capacity in other fields. In relation to the medical report of Dr Djumas of 17 January 2020, which the Applicant had submitted, Mr Sparkes noted that it was written two years after the claim period but conceded that it referred to permanent medical conditions of the Applicant within the claim period and therefore could be taken into account by the Tribunal. However, the Respondent noted that Dr Djumas, in setting out the functional limitations on Mr De Bartolo, refers only to the effect on use of his right arm, and that the Applicant’s left arm functionality was not affected by any conditions.
In answer to direct questions from the Tribunal, Mr De Bartolo agreed that he did not have any difficulties with his left arm, but submitted that he should be allocated more than 10 points under Table 2 – Upper Limb Function, in relation to the functional impact on him. He told the Tribunal that, in the claim period (and today) he could not open the lid of a screw-top bottle, had difficulty doing up all the buttons on his shirt, could not easily hold a pen or pencil and could not lift anything more than, say, a light mug with his right arm.
Mr De Bartolo submitted that he met all the descriptions in the part of Table 2 relating to a severe functional impact, except for part of (1)(a) in that he had not had an amputation.
Mr Sparkes drew the Tribunal’s attention to a recent decision of Senior Member Illingworth in Miller and Secretary, Department of Social Services [2019] AATA 1531, where at [101] the Tribunal said:
However, the purpose of the legislative scheme, and in particular Table 2 – Upper Limb Function, is to provide the descriptors that identifies the functional impact a condition has on activities using hands or arms. The Table is not used, unless otherwise specified, as an assessment of the loss of function of a limb in isolation. It is not in the nature of a compensatory assessment for loss of function of that limb. It is to be used as an assessment in determining the functional impact a condition has on the Applicant’s ability to perform functions from a whole of person perspective by reference to the specified functions referred to in the Table. This is then referable to the Applicant’s capacity to engage in employment or, alternatively, the Applicant’s entitlement to the DSP. Hence, the Table specifies mild, moderate, severe, and extreme functional impacts and gives a point assessment for each.
With respect, the Tribunal agrees with this statement by the learned Senior Member.

The descriptors in the part of the matrix in Table 2 relating to severe functional impact refer explicitly to “…a severe functional impact on activities using hands and arms”. In my view, properly interpreted, this part of the matrix in Table 2 does not require a person to have equal functional difficulties with both hands or arms, but it contemplates that in a case where, like the Applicant, there is a permanent condition affecting one arm, that condition must functionally affect the person with severe difficulty with at least three of these descriptors: limited movement or coordination in both hands or arms, or an amputation rendering a hand or arm non-functional ((1)(a)); handling, moving or carrying most objects, even with a prosthesis or assistive device ((1)(b)); using a computer keyboard, even if adapted ((1)(c)); using a pen or pencil ((1)(d)); or turning the pages of a book without assistance ((1)(e)). I accept that there is moderate difficulty for Mr De Bartolo which satisfy the descriptions in the previous box of the matrix, but while he no doubt may be challenged by undertaking several of the tasks outlined, he is able to carry them out with full use of his left arm and limited use of his right arm.

By way of analogy, if a person had one arm or hand amputated, the person might nonetheless not attract 20 impairment points under Table 2. It would depend on the medical evidence in relation to the functional effect on the person generally and whether his or her remaining arm or hand was fully usable. The logic of interpreting the Table 2 in this way is because the basis of the Determination is to assess functional impact of permanent medical conditions in relation to work-related impairment, so it requires a holistic assessment of how a permanent condition affects a person’s ability to work.
The Tribunal accepts Mr De Bartolo’s evidence at the hearing that his rotator cuff injury has had a major impact on how he uses his right arm and on his daily living, but also accepts his evidence that, although limited, he has some use of his right arm, and that he has retained full use of his left arm.
The conclusion that the Tribunal comes to is that the correct allocation of impairment points in relation to Mr De Bartolo’s shoulder condition is 10 points under Table 2. I am satisfied on the JCA material, the medical reports and on his own evidence, that he does have difficulty with most of the descriptors in (1)(a) to (f) in the part of the matrix relating to moderate functional impact.
Other conditions
There were two other medical conditions of the Applicant referred to in the evidence.

Mr De Bartolo told AAT1 that he started experiencing tinnitus “about three months ago”, i.e. around June 2019, and that his general practitioner was considering whether to prescribe a hearing aid. Mr De Bartolo also told AAT1 that he started experiencing chronic left leg pain “six or seven months ago”, i.e. around February 2019, and that his general practitioner was having difficulty identifying a cause.
Both these conditions fall outside the claim period and I am not satisfied that there is enough medical evidence for them to be referrable to functional impact on the Applicant in relation to this DSP claim, so the Tribunal does not consider them further. I emphasise that I am not suggesting they are not truthfully reported by the Applicant, but they may not be taken into account as being present at the time of his DSP claim or in the claim period. No impairment points can be allocated in relation to these other conditions.
CONCLUSION
The Tribunal has found that the Applicant should be allocated a total of 15 impairment points in the claim period. As section 94(1)(b) requires that a person’s impairment must be allocated 20 points or more under the Impairment Tables, Mr De Bartolo’s DSP claim made on 18 January 2018 cannot succeed. Given that section 94 is a conjunctive section of the Act, all parts of it must be satisfied in relation to a DSP claim. Having failed in terms of the statutory requirements in section 94(1)(b), in this circumstance, it is not necessary for the Tribunal to go on to the next step, to consider whether the Applicant had a continuing inability to work at the time of his claim.
The Tribunal notes Mr De Bartolo’s evidence at the hearing that on 16 May 2020 he transferred to age pension, having reached the age of entitlement for consideration for that benefit. The Tribunal further notes that the rate of age pension matches that of DSP.
DECISION
The decision of the Social Services and Child Support Division of the Tribunal dated 29 August 2019 that the Applicant was not eligible for DSP in relation to his

18 January 2018 claim was the correct decision and it is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

[sgd]……………………………………
Associate
Dated: 25 September 2020

Date of hearing by telephone:

16 September 2020

Applicant:

By telephone

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Brian Sparkes

Services Australia

[2020] AATA 3748

25 September 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing