Doherty and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3311

Doherty and Secretary, Department of Social Services (Social services second review) [2020] AATA 3311 (31 August 2020)
Division:GENERAL DIVISION
File Number: 2019/2459
Re:James Doherty
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:31 August 2020
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 1 August 2018 in respect of his foot condition.
[sgd]...............................................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – several conditions including Charcot neuropathy due to diabetes – whether fully treated and diagnosed – qualification period – medical appointments etc after this period – self-reporting – effect of respondent’s concession – JCA report – severe functional impact – meaning of “assistance” – use of wheelchair or frame – DSP entitlement – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Arkell and Secretary Department of Social Services [2017] AATA 1987
Control Investments and Australian Broadcasting Tribunal [1980] AATA 78
Nelson and Secretary Department of Social Services [2016] AATA 721
Summers and Secretary, Department of Social Services [2014] AATA 165
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
31 August 2020
BACKGROUND

The Applicant, Mr James Doherty, seeks review of a decision made by the Social Services and Child Support Division of this Tribunal (“Tier 1”) dated 16 April 2019. The decision affirmed a decision made on 12 August 2018 by the Respondent, the Secretary of the Department of Social Services, to reject the Applicant’s claim for Disability Support Pension (“DSP”) lodged on 1 August 2018.
The Applicant is a 55-year-old single man who lives on his own in suburban Melbourne.
On 1 August 2018, the Applicant lodged a claim for DSP for “charcut [sic] foot, hypertension, right foot reconstructed, lack of feeling in both feet, diabetic, peripheral edema [sic], peripheral neuropathy”.
On 12 August 2018, the Applicant’s claim for DSP was rejected. On 21 January 2019, an Authorised Review Officer (“ARO”) of Centrelink affirmed the rejection decision on the basis that the Applicant did not have an impairment rating of 20 points or more under the SocialSecurity (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“Tables”). The ARO reached this conclusion as regards the Applicant’s foot condition which, although fully diagnosed, was not regarded as fully treated and stabilised. The ARO had, however, determined that the Applicant’s diabetic condition was fully diagnosed, treated and stabilised as was his renal impairment for which he was awarded 10 points and 5 points respectively.
HEARING
A hearing in this matter was conducted over two days on 30 January 2020 and

20 April 2020. The Applicant was self-represented and the Respondent was represented by Ms Farrell, a lawyer from Sparke Helmore.
The Applicant gave sworn evidence and Ms Farrell asked questions of him in cross examination. No witnesses were called on behalf of the Respondent and no other witnesses were called.
LEGISLATION
DSP is payable under the Social Security Act1991 (Cth) (“Act”) in accordance with s 94(1) which relevantly provides as follows:
94 Qualification for disability support pension
(1)      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 referred to are those mentioned in s 94(1)(b) of the Act and are set out in the SocialSecurity (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011. A points impairment rating under the Tables is arrived at by assigning points according to the appropriate table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function based rather than diagnosis based.
Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent. For the condition to be permanent, it must be fully diagnosed, treated and stabilised. Another criterion is that the condition must be corroborated by supporting evidence.
ISSUES
It was not in dispute before Tier 1 or before this Tribunal that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act. I am satisfied on the evidence that the Applicant satisfies s 94(1)(a) of the Act.
During the course of the hearing it became quite clear that the real issue is whether the Applicant satisfies s 94(1)(b) of the Act – that is, whether he qualifies for an impairment rating of 20 points or more under the Tables. If I find that he does, the issue is then whether he also satisfies s 94(1)(c) of the Act.
To be satisfied that the Applicant meets the requirements of s 94(1)(b) of the Act, I must be satisfied that his conditions (or any one of them) are permanent. In turn, this requires me to be satisfied that his conditions (or any one of them) are fully diagnosed, treated and stabilised, and that his conditions (or any one of them) are corroborated.
Pursuant to cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999, these are all matters I must consider as at the date of his application or within 13 weeks thereafter – that is, from 1 August 2018 until 31 October 2018. This is called the “qualification period”.
Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.
Considering the evidence before me, I must decide what is the correct or preferable decision in the matter and I proceed according to the civil standard of proof.
The Applicant contended that the decision under review should be set aside and that he has satisfied all the requirements of s 94(1) of the Act so far as it applies to him. It was clear to me that the focus of the hearing was on the Applicant’s foot condition.
The Respondent contended that the Applicant does not satisfy s 94(1)(b) of the Act, but if he does, he does not satisfy s 94(1)(c), and accordingly the decision under review should be affirmed.
APPLICANT’S EVIDENCE
It is unnecessary for me to set out verbatim what was said by the Applicant in evidence.

I shall, instead, summarise its main points.
The Applicant has sought review in this Tribunal because he says, in his Application (dated 6 May 2019):
“I claim the decision [of Tier1] is wrong because I know in myself the trauma I go through to go about doing day to day living sufficiently in everyday life, even the simple things are getting harder…”.
The Applicant in the Application says that:
“since the first review [by Tier 1] on the 16/04/2019, I had x rays on both my left and my right foot at Western Health, Footscray as being part of my outpatient appointment with my Orthopaedic Surgeon Mr Chis Harris and the x rays showed my left foot is now deteriorating to form a Charcot’s Foot”.
Accordingly, he says, a decision was made to expedite surgery on his right foot while his left foot could still give him mobility while his right foot was recovering.
The Applicant’s health conditions are better described by Dr Craig Smith, general practitioner (“GP”), in his report of 31 July 2018. Dr Smith says that the Applicant “has poorly controlled diabetes with the complications of peripheral neuropathy, hypertension and chronic renal impairment”.
Dr Smith says then of the Applicant’s foot condition:
“His main problem though is he has Charcot’s foot which means his right foot has collapsed. He has had extensive surgery on it but is unable to walk… His difficulties are lifelong and will not improve significantly to where he will be able to walk or stand without restrictions. He is thus unable to stand or walk or move around normally”.
The report of Mr Chris Harris, orthopaedic surgeon, dated 3 August 2018 gives similar detail and says the Applicant is “a chronic diabetic and, as a consequence of that, has neuropathy in his lower limbs. As a consequence of that, he’s had Charcot disease, which [has] culminated in deformity and ulceration of the right foot”.
I mention these medical reports at this point because the Applicant was not very forthcoming in his evidence about his conditions including his foot and it was, at times, quite difficult to understand what he was saying. He was not given to explaining things in great detail, and, in answer to questions, often wandered off into other matters qualifying what he was saying.
I was able to ascertain from the Applicant that the reason why his operation was brought on earlier was because the arch on his right foot “collapsed”. He had the operation on 9 July 2018. He said his mother—whom he lived with—died the next day. In fact, she passed away during his phone call to her when he rang up to say his operation had been a success.
The Applicant said that following the operation and during the qualification period he was unable to walk around a shopping centre unaided because he was in a wheelchair.

He was in a wheelchair for possibly eight weeks or more.
I should indicate that the Applicant only told the Tribunal of his time in a wheelchair towards the end of the first day of hearing, necessitating an adjournment.
The Applicant said that without a wheelchair he would not have been able to walk around. I assume he means by this move around. That is because, when not in a wheelchair, his “foot was in a frame” – an exterior fixator, it is called – and he still had pins in it. But he said if he was not in a wheelchair at this time, he was in a four-wheel mobile unit belonging to his late mother. This unit was not in the nature of a scooter but was a four-wheel manual walking frame.
At home during this period the Applicant said if he wanted to shower or go to the toilet, he would use a different kind of frame—“a…more solid one”—for balance. He also had a chair situated in the shower itself “for me to get up”. During the whole of the qualification period he was not able to bear weight on his feet, so if he did venture out he would be in the wheelchair or using the frame, but used the other frame at home when showering and toileting.
The Applicant was quite clear that walking from a car park into shops could not be done without assistance. Indeed, he said: “if I did go to the shopping centre, and I don’t think I did in that period, I would have stayed in the car”. In fact, he said, medical appointments were the only times he would leave home during the period.
At home, the Applicant said he could not get up from a seated position during the qualification period without assistance. For example, he could not get up from the toilet without assistance because “I had the frame in front of me”. He said he could get up on one foot but he would have no stability.
During the period he said he did manage to get to medical appointments with the help of a friend. The friend (Ms Rochelle Parkinson) would drive him there with the wheelchair in the back of the car and it would be taken out upon arrival. He said the car was his but he was not driving it. He would get down from his house to his car via a ramp. He would then execute a transfer from his wheelchair to the car. The same applied coming back from a medical appointment—being “able to transfer … was one of the conditions of actually leaving hospital”.
When asked if he could catch a tram to his medical appointments at Western Health, the Applicant’s answer was “definitely no”.
The Applicant was clear also that he could not now follow his occupation of fitter and turner which he had done for 30 years. He said: “Because it’s the standing it’s the, you know, being upright, that’s part of the job on the machine”. It was not in any event an occupation suited to sitting: “It’s … the standing up for seven hours a day on the machine”.
Returning to the time of the qualification period the Applicant said he could not have worked at his occupation during that time or for the two years after it. As regards any other work, he referred to the severe back pain which he was experiencing even during the hearing. He referred also to the problem with his feet: “Because my feet are uneven, like I’m walking on—like one foot’s bigger—longer than the other, one leg’s a bit longer than the other…I’m leaning on one side when I walk. I wouldn’t be able to stand up…”. He said: “I couldn’t see myself doing it” when asked about transportation to and from work.
During the qualification period the Applicant said he would fill in his day watching television. Food and other supplies would be brought over by his sisters. One of those is Ms Fran Horne. There is a statement on file from her. He said he would also get home grocery deliveries.
In cross-examination the Applicant agreed he developed diabetes around 2006 and he agreed that, because of that, he developed neuropathy in his lower limbs causing him to suffer Charcot’s disease leading to the collapse of his right foot arch. This took the form of deformities and ulceration.
The Applicant agreed that Mr Harris had done a number of surgeries on his right foot, three so far and a fourth one coming up. The operation in 2018 was his second one.

He said his right foot was the foot which was ulcerated and on which the arch had collapsed and “it turned into a Charcot’s foot virtually before 2018”.
As to his left foot the Applicant said he had no feeling in it either during the qualification period, but he was still “getting around on [it]”.
The Applicant said that after the operation on his right foot he was unable to weight-bear, so he was given a wheelchair to use while recovering. The wheelchair was “just for recovery” and it was returned “in around September 2018”. If not using the wheelchair, as I understood his evidence, he would use “the four wheeler frame”. That is, if he was going to leave his house for a walk: “like, more than—well, it used to be 10 minutes, now it’s gone down to 5 minutes”.
Sometimes, the Applicant agreed, he was “able to mobilise for short distances inside [his] house without the use of a frame” but then his answer becomes unclear: “It depends how, well, yes, well if I’m just in the home, I’ve still got to, sort of, around here, but just sometimes I put up with it, rather than have it in the house—like, you know, rather than use it”. Outside his house, however, he agreed he used his frame.
The Applicant agreed he could manage to do some “light shopping”: “I can go to a counter and have a few things with me and pay money, yes. I can do that.” But he then appeared to be uncertain whether he was being asked about the present day or about the qualification period.
The Applicant was then asked: “But when you didn’t have the frame on your foot, were you able to do light shopping. Is that right?” His answer was: “It’s – if I do it now … I have the frame, the four-wheeler”.
The Applicant was then asked about driving to the shops and answered—“can I ask what time period you’re looking at?”. He was obviously confused at this point and I found the need to intervene to clarify which period the questions were about. That, however, did not seem to help the Respondent’s representative, who varied her questions between the present day and the qualification period.
The Applicant agreed he had been diagnosed with stage 3b kidney disease secondary to his diabetes. He agreed also that the kidney disease causes fatigue and lethargy. But he agreed his difficulty with walking during the qualification period was due to his right foot operation.
The Applicant agreed he had also been diagnosed with hypertension and in January 2008 with haemochromatosis.
The Applicant also agreed that he had worked as a fitter and turner, but he was retrenched and then became a full time carer for his elderly mother.
The Applicant was asked about his capacity to return to work and the face-to-face Job Capacity Assessment (“JCA”) he attended on 16 January 2019 was mentioned to him.

He said he disagreed with an assessment made by Mr Harris that he could return to work in a sedentary position. He said he could not: “Not at all”. He explained “I can hardly get around now…I wouldn’t be able to do that because of me disabilities”.
FOOT CONDITION ANALYSIS
Section 94(1)(a)
I have already indicated that the Respondent concedes that the Applicant satisfies s 94(1)(a) of the Act and I have indicated my view that on the evidence that concession is rightly made.
It was apparent to me during the hearing that the Applicant in reality relies upon his right foot condition as the one justifying a finding being made in his favour. I must comment that, at times, I have found his evidence exceedingly difficult to follow.
Section 94(1)(b)
Permanency
I noted earlier that to be awarded points under the Tables a condition must be “permanent”.
In its Statement of Facts, Issues and Contentions (“SFIC”) the Respondent accepts that the Applicant’s diabetes with resulting peripheral neuropathy and Charcot collapse of his right foot satisfied the requirement of permanency during the qualification period.
This was confirmed to me by the Respondent’s representative during the hearing. I asked if it was right that it is accepted that the Applicant’s condition is “fully diagnosed, treated and stabilised” and Ms Farrell’s reply was: “Yes, that’s correct”.
I do not consider I am bound to accept concessions made by the Respondent in its SFIC or otherwise, however, on this occasion the concession is appropriate and justified.
Accordingly, I find the Applicant’s stated condition meets the requirement of permanency as being fully diagnosed, treated and stabilised.
I shall deal with the question of corroboration below.
Points rating
It then becomes a question of deciding the points to assign to the Applicant in respect of his condition using the appropriate Table. I am particularly concerned with the medical reports relating to his foot condition which Dr Smith, it will be recalled, considered will give him “lifelong” difficulties.
I agree with the Respondent that the appropriate Table in this case is Table 3 which deals with Lower Limb Function. I note that the Tables say that “lower limbs extend from the hips to the toes”.
It cannot reasonably be considered possible on the evidence that the functional impact of the Applicant’s condition is only worth nil points (no functional impact) or merely 5 points (mild functional impact).
This leaves open only three possibilities: 10 points (moderate functional impact); 20 points (severe functional impact); and 30 points (extreme functional impact).
Considering the serious nature of the Applicant’s condition, (and how incapacitating it has been especially during the qualification period and since), it would be nothing short of remarkable to find he qualified as only suffering moderate functional impairment. None of the evidence, in my view, could reasonably lead to that conclusion. This, however, was the rating which the Respondent submitted was “appropriate”. I have more to say about that submission below.
This of course is not a question to be answered in the abstract. It is a question which is to be resolved by reference to the descriptors appropriate to a moderate functional impairment reading of 10 points. But considering those descriptors, I am satisfied that the Applicant’s functional impairment falls well outside the 10 points category.

As regards descriptor (2) of Table 3 under “moderate”, I am not satisfied that either now, or during the qualification period, the Applicant is or was “able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket”. I rely upon his evidence in this regard, when he said that if he went shopping in his car he would stay in the car.
My view is one shared by Dr Smith in his report dated 26 August 2019 and also in the later report of 5 September 2019. It is as well one shared by Mr Harris in his report dated 5 July 2019. But I am able to state my findings without explicit need to rely upon their views.
It is argued unhelpfully that the report of Dr Smith cannot be relied upon in support because it does not refer to the Applicant’s condition during the qualification period.

The same is said of the report of Mr Harris.
I have, however, indicated I am able to form my view without first resort to, or immediate reliance on, their reports, although my view is one I consider shared by them or is consistent with theirs.
Moreover, Dr Smith and Mr Harris have been the Applicant’s treating doctors for a very long time and are well placed to speak accurately of his medical issues and physical capabilities. I note, in any event, that Dr Smith’s report of 5 September 2019, in assigning the Applicant 20 points, specifically says that this “has been done concerning the period August 1 2018 to 1 October 2018”.
I have difficulty, moreover, in this being the Respondent’s submission in its focus on time, when, at the same time, I am being asked by the Respondent to rely upon the JCA report of January 2019, which is dated months outside the qualification period.
If the Applicant fails to satisfy descriptor (2) of Table 3 under the 10-point rating,

I consider that he therefore cannot satisfy both descriptors (1) and (2) because they are separated by “and” and are not expressed as alternatives. If one of them is not satisfied, then neither are they both satisfied because they occur as a single item. In other words, a 10 point rating under Table 3 is contingent upon both (1) and (2) being satisfied such that if (1) or (2) is not satisfied, a 10 point rating cannot be assigned.
Descriptor (3) is differently expressed to descriptors (1) and (2) and is largely clarificatory of them without itself being a criterion to be met. It is not well drafted. Be that as it may,

I am satisfied that, on my analysis, the Applicant is not within the moderate function impairment category.
I thus reject the Respondent’s submission of 10 points as appropriate. That is not supportable as reasonable on the evidence or otherwise.
This means that if the Applicant falls within any category under Table 3 it must be either that his impairment warrants 20 points (severe functional impairment) or 30 points (extreme functional impact).
I do not consider that the evidence reasonably leads me to the conclusion that the Applicant’s functional impairment is extreme warranting 30 points. Within that category

I would need to be satisfied that the Applicant is or was “unable to mobilise independently”. Although there are some ambiguities in the evidence on this, I am not clearly satisfied that Mr Doherty plainly meets this test.
By a process of elimination almost, if the Applicant is within any category at all, he is within the category of 20 points (severe functional impairment).
Severe functional impairment
I leave aside for the moment discussion of “assistance” and a need for corroboration.
To assign 20 points, Table 3 provides:
There is a severe functional impact on activities using lower limbs.
1The person:
(a)is unable to do any of the following:
(i)     walk around a shopping centre or supermarket without assistance;
(ii)    walk from the carpark into a shopping centre or supermarket without assistance;
(iii)   stand up from a sitting position without assistance; and
(b)requires assistance to use public transport.
2This impairment rating level includes a person who requires assistance to:
(a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
I am satisfied on the balance of probabilities that the Applicant falls squarely within the 20 points rating for severe functional impairment and that this is more likely than not, given the seriousness of his condition both at the time of the qualification period and subsequently, to last more than two years. I note the reference to his condition being a “lifelong” one made by Dr Smith in his report of 31 July 2018.
I consider that the Applicant during the qualification period, and subsequently, meets the requirement in descriptor (1). In particular, I find that he has been “unable” to do any of the matters set out in (a). I find also, as regards (b), that the Applicant, had he used public transport, would have required assistance. I attribute this especially to his difficulties with balance and weight-bearing.
I am not satisfied that the word “any” in descriptor (1) (a) means all. That is, I consider an applicant satisfies descriptor (1)(a) if unable to do any one of (i), (ii) or (iii) but need not satisfy all (i), (ii) and (iii).
It is clear also that descriptors (1) and (2) are not cumulative. An applicant will succeed if satisfying descriptor (1) or descriptor (2) or both. Indeed, descriptor (2) is even more in the nature of being clarificatory or amplificatory of descriptor (1).
As regards descriptor (1)(a)(iii), I am satisfied the Applicant has been unable to “stand up from a seating position without assistance”. This is plainly the case given the Applicant’s evidence on his toileting. His evidence was clear that at the toilet he would use a frame. Otherwise he had no balance. In reference to the shower, and I consider the toilet too, he said “to actually [go] up and down I couldn’t weight-bear”. He said “I had to have the frame” for getting up from the toilet.
This suffices for the Applicant to have satisfied descriptor (1)(a) on the basis that the word “any” does not mean all.
But if the word “any” does mean all, I am satisfied, nonetheless, that the Applicant meets the criteria in both descriptor (1)(a)(i) and (1)(a)(ii). In other words that he wholly satisfies descriptor (1)(a).
As regards descriptor (1)(a)(i) I am satisfied that the Applicant was unable to “walk around a shopping centre or supermarket without assistance”. I have already dealt with this above in discussing descriptor (2) relating to moderate functional impairment. I referred there also to the views of Dr Smith and Mr Harris. It should not be forgotten that for eight weeks following his foot surgery the Applicant was wheelchair-bound. If not wheelchair-bound, then he was using a frame to move around. Others did his shopping for him.
As regards descriptor (1)(a)(ii) I am satisfied on the evidence that the Applicant could not “walk from the carpark into a shopping centre or supermarket without assistance”. This is clearly so based on his evidence. It seems also to follow as a natural consequence of my finding regarding descriptor (1)(a)(i) in that if he could not walk around a shopping centre, it is hard to see how he could walk from the car park to the shopping centre. In any event at the relevant times the Applicant barely left home.
Further I am satisfied that descriptor (2) also is satisfied by the Applicant—assuming it needs to be in addition and separately. I note that it uses the word “includes” and I am unclear about why that word is used.
As regards (2)(a), however, I am satisfied that the Applicant at all relevant times has required assistance to “move around in … a wheelchair” which is expressed as an alternative in descriptor (2)(a). On the occasions when he would go out in his car, his friend Ms Parkinson would pack his wheelchair in the boot of the vehicle. To move around in his wheelchair — to medical appointments, for instance — he therefore required another’s assistance. I expect though there could have been many times when he was pushed around in his wheelchair.
As regards the second alternative in descriptor (2)(a) equally I am satisfied there would have been times when the Applicant required assistance to “transfer to and from a wheelchair”. I would expect this would be so on those occasions when he would be driven to medical appointments by Ms Parkinson. She would get the wheelchair from him and put it in the boot of the car and then take it out, I assume, and, in the normal course, position it so that he could get into it from the car.
Descriptor (2)(b) is expressed as an alternative to descriptor (2)(a). As regards descriptor (2)(b) I am quite satisfied on the evidence that during all material times the Applicant would have required assistance to “move around using walking aids” The evidence is clear that when not in the wheelchair the Applicant would use a frame. A “walking aid” expressly includes a walking frame.
The “ie” in descriptor (2) is curious and unclear in meaning. I am satisfied the Applicant would not have been able to walk on some surfaces (uneven ones, for instance) without help from someone because of his weight-bearing and balance issues: these would be critical factors in him moving independently around a workplace or training facility even using his frame. A workplace or training facility could well have an uneven floor and he could, in his words, “overbalance”.
“Assistance”
A point has been taken by the Respondent concerning the meaning I should attach to the word “assistance” in the severe impairment category.
It is argued that the word means assistance from another person and not mechanical assistance (such as that obtained by use of a wheelchair or frame). Reference is made to the Social Security Guide (“Guide”) in this regard.
Reliance is placed upon a number of decisions including Nelson and Secretary Department of Social Services [2016] AATA 721 and Arkell and Secretary Department of Social Services [2017] AATA 1987.
The main decision in this area (which is referred to in both of those and other cases) is Summers and Secretary, Department of Social Services [2014] AATA 165 where at [17] the Member said that the “conclusion that ‘assistance’ refers to assistance from a person and not from an object or physical aid is inescapable”.
I consider this to be erroneous. It is not an “inescapable” conclusion at all that assistance means assistance from a person. The word “assistance” in descriptor (1)(a) is not qualified in any way. It means assistance of any kind. That includes assistance from a person and assistance “from an object or physical aid”. Had it been intended to mean assistance from a person only then that could have easily been specified. Compare, for example, descriptor (2)(b) which refers to a person needing “assistance from another person”.
The fact that some such expression was not used in descriptor (1)(a) means that “assistance” in that descriptor should not be read as if it did include some such expression.
I consider this is a reading of descriptor (1)(a) which is consonant with cl 9 of the Tables, by which a person’s impairment is “to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses” and with the remainder of the Tables. To say that descriptor (1)(a) means, because of this, that “assistance” in that descriptor means or includes only assistance from a person — as the Guide states — is to invert the effect of cl 9. If I was to assess the Applicant in accordance with that argument it would seem to follow from it that I must exclude assistance from a wheelchair or frame when doing so. This would be because assistance from a wheelchair or frame would be “superfluous”, so the Guide says. But this is wrong. By cl 9, I must include those items when doing so. The Respondent’s argument, therefore, far from showing that “assistance” in descriptor (1)(a) means assistance from a person only does not take account of the true effect of cl 9 and cannot be reconciled with it. I, therefore, reject the Respondent’s argument. The word “assistance” in descriptor (1)(a) means, as I say, any assistance including “from an object or physical aid” or from a person.
Normally, of course, the Guide’s analysis should be followed unless there are cogent reasons for not doing so but it remains true that I am not bound by the Guide and must not follow it if I consider it to be erroneous or lacking cogency. I do consider it to be erroneous and lacking cogency on this point. To follow it in such circumstances would be to abdicate my review function. See Control Investments and Australian Broadcasting Tribunal [1980] AATA 78.
If, however, my above analysis is wrong and “assistance” in descriptor (1)(a) means only assistance from a person, then I must indicate that I find on the evidence, on the balance of probabilities, that the Applicant did need assistance also from another person during the qualification period, and beyond. I refer to his evidence relating to his issues with weight-bearing, balance and the unevenness in his feet. I also refer to his evidence about waiting in the car, if going shopping, because of difficulties he would have in moving around a shopping centre or supermarket or getting to or from one.
The descriptor in (1)(a)(iii) raises special issues in this case discussed at [109] below. Nonetheless, I am satisfied, on the balance of probabilities, that it was by virtue of assistance from other persons that the Applicant was able to get up from a seated position on the toilet. I note, as before, that the word “assistance” is not defined in the descriptor. The Applicant, moreover, did not articulate this well—perhaps because it is such a personal issue—so there is no specific evidence given by him on this point. But he did give evidence of occupational therapists coming to his house after his time in hospital to make sure his house was “liveable” for him. I did not hear from them, but I would take it that his house would include its bathroom and toilet and it is likely he was given advice about using both—such as needing to have a chair placed in the shower, as was the case. Indeed, he indicated this in his evidence. He gave examples in this regard which have led me to my view—in making sure the house was liveable, he said “like if the shower was wide enough, if the doors-you know, and if I could cook or…get around the house”. I doubt they would have failed to advise him about the toilet, including sitting down on it and getting up from it safely, if they were considering the suitability or safety of the shower.
Likely knowing the Applicant’s condition, and the difficulties it presented for him, it is probable also, therefore, they assisted him with this advice – this advice may have included advice about balance by using a frame, which he did use. And, of course, he was given assistance of another kind altogether from another person by being afforded the use of the frame itself: namely, by his late mother, in having it available in the house for use in the first place even though it was used by her for her own purposes when alive.
Corroboration
A point also is taken by the Respondent regarding self-reporting. It is argued in paragraph 4.24 of the SFIC that corroboration of the Applicant’s symptoms is lacking at the level of a severe impairment rating.
I consider there is no substance in this point either and I disagree with it.
The Respondent concedes that the Applicant’s foot condition is permanent and submits that assigning 10 points under Table 3 is “appropriate”.
To make that submission the Respondent must have thought it not lacking legal justification. It cannot have been idly made. But that seems to me to mean the Respondent must have considered the issue of corroboration because that is one of the legal requirements. I am clear it would not have made the submission or concession if corroboration was in issue. From this I take it that corroboration from its perspective is not really in issue.
But corroboration is not something which is quantifiable. Something is either corroborated or not. Only symptoms giving rise to impairments then operate on a points rating basis. Corroboration is required of course but it in itself does not give rise to points ratings.
Hence, I regard the Respondent, by its submission or concession as conceding a rating of moderate impairment, also means that corroboration of the Applicant’s symptoms as such is not to be regarded as being in issue. The Respondent did not address this specific issue. I should add I would regard that concession of corroboration as one which is justified on the evidence.
But if this is not so, I am satisfied that the Applicant does have sufficient corroboration of the symptoms of his medical condition causing his impairment. I base my view on his oral evidence at the hearing, the statement of his sister, and on the medical evidence before me. I also base my view on his use of a wheelchair and frame, which physically corroborate his evidence. I note that Table 3 only gives examples of corroborating evidence and is not limited to them.
As regards descriptor (1)(a)(iii) I find there is corroborating evidence of the Applicant being unable to stand up from a seated position in the physical existence of the frame positioned by him. I am not clear as regards toileting that Table 3 can require more than that given ordinary standards of privacy and decency and respect for persons. I refer also to the need for a seat in the shower and the help needed to get up from that.
Section 94(1)(c)
I cannot see any reasonable basis for claiming that s 94(1)(c) of the Act, which in summary requires a continuing inability of two years to attend work, is not satisfied in this case.
The Respondent relies on the JCA report (prepared by an unnamed psychologist and an unnamed physiotherapist) which gives the Applicant a baseline work capacity assessed at 8–10 hours per week.
Given the evidence before me—medical and other—I reject that finding. I rely in particular on the opinion of Dr Smith in his report of 31 July 2018, that the Applicant has a “lifelong” condition and cannot stand, walk or move about normally. The Applicant’s own evidence is that his feet are uneven and he leans to one side. He said he could not even see himself getting to and from work.
In my view it is plain that the Applicant has a severe impairment rating of 20 points under Table 3 and had and continues to have a continuing incapacity for work within the meaning of s 94(1)(c) of the Act. That is to say, I am satisfied that the Applicant’s impairment is of itself sufficient to prevent him from doing any work independently of a program of support or undertaking any training activity within the next two years.
OTHER CONDITIONS
The main concern of the Applicant has been his foot condition.
Having made my findings regarding the Applicant’s foot condition, I find it unnecessary to express any view regarding his other conditions.
CONCLUSION
For the reasons I have given in the above I am satisfied that the Applicant satisfies s 94(1) of the Act in respect of his foot condition.
DECISION
Being so satisfied, the decision under review must be set aside and a decision substituted whereby the Applicant is entitled to DSP from the date of his claim in respect of his foot condition.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Dates of hearing: 30 January and 20 April 2020

The Applicant: In person

Advocate for the Respondent: Ms Cailin Farrell

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	30 January and 20 April 2020
The Applicant:	In person
Advocate for the Respondent:	Ms Cailin Farrell
Solicitors for the Respondent:	Sparke Helmore Lawyers