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

Dyer and Secretary, Department of Social Services (Social services second review) [2019] AATA 5526 (20 December 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6822
Re:Bernard Dyer
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:20 December 2019
Place:Adelaide

The decision under review is affirmed.
..........[Sgnd]...............................................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant has completed program of support – whether applicant is exempt from completing the program of support - decision under review affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2002) FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011
REASONS FOR DECISION
Senior Member B J Illingworth
20 December 2019
INTRODUCTION

This is an application by Mr Bernard Dyer (“the Applicant”) for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 10 October 2017 rejecting his claim for Disability Support Pension (“DSP”).
At the hearing, the Applicant appeared unrepresented. The Respondent was represented by Mr Christian Visser from the Department of Human Services.
BACKGROUND
The Applicant was born in 1962 and is currently aged 57 years.
The Applicant’s injuries flow from two events, namely:
(a)A work-related incident which occurred in 2012 in NSW when the Applicant’s leg was wedged in a car during a flood in the course of his employment as a fly-in/fly-out pipe fitter; and
(b)An assault that occurred on New Year’s Eve at Glenelg Beach when the Applicant was “king hit”.
The Applicant was in receipt of workers compensation payments after unsuccessfully returning to work on light duties in 2012.
On 7 September 2016, the Applicant lodged a claim for DSP in respect to a visual impairment, left lower limb impairment, and mental health conditions. The provisions in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“the Administration Act”) mean that the Applicant’s qualification and impairment ratings must be determined as at the date of his claim. The only exception is where he is not qualified at the date of claim, but “will become qualified” and “becomes so qualified” within 13 weeks of lodging his claim (“the Qualification Period”).[1]
[1]Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404.
Hence, the Qualification Period for the purpose of assessing the claim was 7 September 2016 to 7 December 2016.
On 26 October 2016, an employee of Centrelink decided to reject the Applicant’s DSP claim (‘the original decision”). The Applicant then requested an internal review of the original decision.
On 6 July 2017, an Authorised Review Officer (“ARO”) affirmed the original decision, namely that the Applicant was not qualified to receive DSP.
The Applicant applied to the AAT1 for a review of the ARO’s decision.
On 10 October 2017, the AAT1 found that the Applicant:
(a)did not suffer from a fully diagnosed, treated and stabilised mental health condition;
(b)suffers from a fully diagnosed, treated and stabilised condition of the left knee and ankle and scores 5 points under Table 3; and
(c)suffers from a fully diagnosed, treated and stabilised vision condition and scores 5 points under Table 12;
and so was not qualified for DSP as he did not attract an impairment rating of at least 20 points.
By application dated 10 November 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (“AAT2”) for a review of the AAT1’s decision.
THE LEGISLATIVE FRAMEWORK
The legislation relating to qualification for DSP, and the reference to the Impairment Tables, is set out in the provisions of s 94(1) of the Social Security Act 1991 (“the Act”), which relevantly reads:
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;
(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.
…
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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – 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.
It follows that if the Applicant has a “severe impairment” within the meaning of s 94(3B) of the Act, namely, an impairment which attracts 20 points or more under a single Impairment Table pursuant to the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the Determination”), then he does not need to have participated in a Program of Support (“POS”).
If the Applicant is assigned 20 points under the Determination, but does not have a severe impairment as defined by s 94(3B) of the Act, then the Tribunal must be satisfied that the Applicant has met the requirements of the POS as provided in the Determination.
Section 94(1)(b) of the Act specifically refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination.
“Impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” is defined as “a medical condition” pursuant to s 3 of the Determination.
The Determination requires that for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of ss 6(4), (5) and (6) of the Determination:
6       Applying the Tables
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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).
Subsection 6(7) states that for the purposes of subsection 6(6), reasonable treatment is treatment that is:
(a)Available at a location reasonably accessible to the person;
(b)Is at a reasonable cost;
(c)Can reliably be expected to result in a substantial improvement in functional capacity;
(d)Is regularly undertaken or performed;
(e)Has a high success rate; and
(f)Carries a low risk to the person.
The information to be taken into account in applying the Impairment Tables are provided pursuant to s 7 of the Determination:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
Information that must not be taken into account is referred to in s 8 of the Determination:
8Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
It is important to note that in assessing any medical evidence concerning the functional impact of the Applicant’s impairments provided after the Qualification Period, the reports can only be considered if they “cast light on” the functional impact of the impairments as at the Qualification Period.[2]
[2] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
With respect to functional impact, one must appreciate the purpose of the Determination. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5], Senior Member Isenberg helpfully explains the operation of the Impairment Tables in that:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
It is also important to only assign a single rating for a common or combined functional impairment as prescribed by subsections 10(5) and (6) of the Determination:
10 Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
However, if a single condition causes multiple impairments, each impairment should be assigned a rating and assessed under the relevant Table.[3]
[3] The Determination, s 10(3).
In assigning an impairment rating, section 11(1) of the Determination provides:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
THE ISSUES BEFORE THE TRIBUNAL
The issues to be determined by the Tribunal are whether, during the Qualification Period, the Applicant had:
(a)A condition(s) that was fully diagnosed, treated and stabilised for the purpose of s 94(1)(a) of the Act;
(b)An impairment rating of at least 20 points for one or multiple conditions under the Determination for the purpose of s 94(1)(b) of the Act; and
(c)Completed a POS (where the Applicant does not have a severe impairment) and has a continuing inability to work for the purpose of s 94(1)(c) of the Act.
THE EVIDENCE
At the commencement of the hearing, the Tribunal explained to the Applicant how the DSP provisions operate and what evidence the Tribunal is permitted to take into account. The Tribunal particularised the requirements of conditions being fully diagnosed, treated and stabilised within the Qualification Period, how points are assigned under the Impairment Tables, and the POS requirements.
The Applicant confirmed he understood the DSP provisions as they related to his review. He understood that the he has not completed a POS and thus would need to satisfy the Tribunal that he either (1) has a severe impairment and continuing inability to work, or (2) has a total impairment rating of at least 20 points for his conditions but is exempt from completing the POS and has a continuing inability to work.
Mental health conditions
The Respondent accepts that the Applicant’s mental health conditions were fully diagnosed, however submits that they were not fully treated and stabilised in the Qualification Period and so cannot attract an impairment rating.
The Applicant stated that his mental health conditions commenced after the accident in 2012 referred to in paragraph 4(a) above; he started having nightmares. These issues were then exacerbated by the assault in 2013, his inability to return to work on light duties, and his physical injuries, and that is when the Applicant sought treatment.
The Applicant stated he has had admissions to hospital due to suicidal ideations, has tried to end his life on two separate occasions, his house is messy, he does not socialise, and has not had a partner in 10 years because he looks at where he is on the socio-economic scale and “wouldn’t do that to anyone.”
The Applicant has continued on the same medication for a number of years as he says it mostly works. He says that his suicidal ideation only occurs after a tragic event. He can get stressed when in an unstable or messy environment. He is able to function in between tragic events, but says he is “permanently depressed”. His consumption of alcohol during the Qualification Period was high and this has decreased mainly because he cannot afford it; however his Depression has also reduced as a result.
The Applicant sees clinical psychologist, Dr Sandra Pisaniello. He has never seen a psychiatrist because he did not see the need, he could not afford to, and it was never brought up.
Dr Bowler has been the Applicant’s general practitioner throughout the Qualification Period and referred him to Dr Pisaniello.
Dr Bowler gave evidence by telephone before the Tribunal in which he said he has been issuing the Applicant with mental health care plans since 2014 so that he can continue to see a psychologist. Dr Bowler has prescribed antidepressant medication to the Applicant and his medication has remained unchanged since January 2016.
Dr Bowler opined that there will be no significant improvement in the Applicant’s mental health conditions and does not believe a psychiatrist will assist, as the Applicant has seen psychiatrists during his hospital admissions and they have reaffirmed his current treatment regime.
Dr Pisaniello also gave evidence by telephone before the Tribunal. The Applicant has been consulting her regularly since February 2014, at which time she was a psychologist, under the mental health care plans and NSW WorkCover. She was endorsed as a clinical psychologist in September 2018, and her opinions as to the Applicant’s diagnoses remain unchanged. The Applicant travels to her clinic independently by public transport.
Dr Pisaniello confirmed the Applicant’s diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder. She also noted that he has presented with borderline personality features.
Since 2014, the Applicant has been treated for these conditions with antidepressant medication, cognitive behavioural therapy, trauma-focussed therapy, and stress reduction techniques. There have also been intermittent periods of admission into hospital during which time he was seen by psychiatrists. In her evidence, she clarified this to mean the improvement was from the end of 2016 to early 2017. She does not believe the Applicant’s condition will further improve, and his treatment is focussed on maintenance, although there are periods of exacerbation when the Applicant is stressed.
The Applicant’s mental health conditions are also heavily negatively affected by his physical conditions, which Dr Pisaniello is not confident will improve. She opined that the Applicant will never be able to return to full-time work. In cross-examination, she confirmed her opinion that the Applicant is only able to concentrate for 5 to 10 minutes at a time and that the Applicant’s alcohol misuse is a symptom, rather than a cause, of his mental health conditions.

The Applicant is of the view that his mental health has been stable, save for periods of exacerbation due to stress, during and since the Qualification Period, particularly as he has been on the same medication and therapy regime. He submits that his mental health conditions should attract 20 points.
The Respondent acknowledged that the Applicant has been seeing Dr Pisaniello regularly and for quite a long time, although submitted that Dr Pisaniello thought that the Applicant’s mental health conditions had plateaued in early 2017. This is close to, but just outside, the Qualification Period. The Applicant has had a number of mental health care plans which have enabled him to see Dr Pisaniello regularly and for quite a long time.
The Applicant said that his mental health issues commenced straight after his accident in 2012. He started to suffer nightmares. This condition became particularly bad by 2015 as it was exacerbated by the 2013 assault.
He said he copes with daily living badly and that his house is a mess. During the Qualification Period he had support from Anglicare helpers and mentors. He has acted upon suicidal ideations and was admitted to a psychiatric hospital in 2013. Since that time, he has had approximately 10 admissions to hospital. He was admitted to Glenside Hospital on 22 January 2016 and was subsequently supported by Western Community Mental Health Services. The Applicant referred to his last ambulance bill which was dated three months prior to the hearing. He tried to overdose twice in 2013 and 2014, and described his mental health condition as still bad in 2016 during the Qualification Period. Although not able to be specific about the dates, he referred to his admission to Cedars for about 3 to 4 days and to the old Royal Adelaide Hospital for his mental health issues.
The Applicant said that NSW WorkCover funded his psychological consultations. He was also involved in a coal mine disaster which further impacted upon his mental health.
As a result of his mental health condition, the Applicant said he does not socialise. Because of the assault, he is now not comfortable in crowds or if someone is behind him. He is hyper alert. He said he is not involved in a personal relationship and he “would not do that to anyone”. His last partner of any length is approximately 10 years ago.
In planning for the future, he is due to receive superannuation payments at age 58, and hopes he may then position to own his own home.
In cross–examination, the Applicant said that when admitted to Cedars he did see a psychiatrist but he fails to see the ongoing need to consult a psychiatrist. He has been seeing his psychologist for a number of years and she was New South Wales compliant in terms of the WorkCover requirements. Dr Bowler did not see the need for him to consult a psychiatrist and it has never been brought up in consultation. He is pleased with the treatment he has received from his psychologist, who is now a clinical psychologist, and his medication has not changed since he attempted suicide. He said his medication mostly worked, but he will suffer suicide ideation following significant events. He gave an example of a significant event when his daughter, who is aged 16 years, recently lived with him. In about November or December 2018, she used his bankcard to withdraw $20,000 from his account. He speaks with her but has not seen her since 27 December 2018.
The Applicant said that he can otherwise function but does not enjoy being in a room full of people because he is depressed.
The Applicant describing living in different houses. He was able to fund a private rental property in the Glenelg until WorkCover cut off his payments. He then lived in a boarding house at Glenelg. He has been in conflict with the owner. The Applicant said that he threatened to knock his lights out because he was abusing a person with cancer. The Applicant said that his housing is now much better. He lives in the city. He can get to his various medical appointments and catch a tram to Glenelg. He described himself as just functional. However, when he has a fall as a result of his leg condition he cannot take care of himself.
He said in cross-examination that during the Qualification Period he could do his shopping sometimes, but he would also have assistance from a social worker from Anglicare. He referred to Mind, who support mental health patients.
The Tribunal received reports from the Health Professional Advisory Unit dated 5 July 2017[4] and from Mind – supporting mental health recovery – dated 24 August 2017.[5] In the former report, it confirms the Applicant was seeing Dr Pisaniello every three weeks with periods on and off his medication. The author referenced a number of psychological issues, and that his treatment regime was working to reducing his symptoms of PTSD, with some improvement in function. It was reported that alcohol misuse was intermittent during times of stress. The author also reported Dr Pisaniello saying that the Applicant is motivated to return to work, however on balance he currently doesn’t have capacity for work. In relation to the latter report, it confirms the Applicant was engaged with services since 9 April 2017 receiving support for his mental health and associated difficulties. He was engaged in the Partners in Recovery program designed to support people experiencing severe and persistent mental illness.
[4] Exhibit A, T Documents, T46, pages 214 – 218.
[5] Ibid, T47, pages 219 - 200.
It is noteworthy the two reports referred to in paragraph 53 above are dated in 2017 and not within the Qualification Period, however the reported conditions the Tribunal accepts are the same conditions for which Applicant was diagnosed and being treated during and well before the Qualification Period.
The Applicant has more recently been receiving help from Ms MW from Personal Helpers and Mentors, who has assisted him to apply for the NDIA scheme and program supports.
The Applicant acknowledged that he had misused alcohol but his circumstances have improved since he has reduced his alcohol intake. He described his life when working in the desert “with 500 blokes - you drink”. He said that during the Qualification Period his alcohol consumption was reasonably high, but having reduced his alcohol intake his depression has reduced but his PTSD cannot change.
The Tribunal notes that when the matter was before the AAT1, there was no evidence from a psychiatrist or clinical psychologist corroborating the Applicant’s evidence. The Applicant’s treating psychologist Dr Pisaniello has since qualified as a clinical psychologist and her evidence corroborates the evidence of the Applicant and his treating medical practitioner. Counsel for the Respondent does not dispute that her early reports as a psychologist, which she has confirmed in evidence, should also be received as corroborative evidence in accordance with the Act. That was a concession properly made.
Accordingly, as there is corroborating evidence, the Tribunal has considered whether the Applicant’s psychological condition has been fully diagnosed, treated and stabilised. The Tribunal is satisfied that the Applicant’s mental health condition has been fully diagnosed and treated for a number of years and during the Qualification period. Further, he has undertaken reasonable treatment for the condition.
As referred to in paragraphs 39 and 40 above, Dr Pisaniello confirmed the diagnosis but noted the Applicant presented with borderline personality features predominantly caused by other conditions; and there has been some improvement in his interpersonal skills from the end of 2016 to early 2017. The Tribunal accepts Dr Pisaniello’s evidence. She is not here saying there was a change in his mental health condition. That has remained the same. Accordingly, the Tribunal finds that prior to, and indeed at the time of, his claim for DSP and during the Qualification Period, the Applicant’s condition was fully diagnosed, treated and stabilised. His treatment has predominantly remained unchanged, as has his mental condition for a number of years and will likely continue for the foreseeable future. The Tribunal has taken into account the slight improvement in the Applicant’s anger management in early 2017, but the Tribunal does not regard that as impacting upon the question of his mental health condition being fully diagnosed, treated and stabilised.
The question now to be considered is, whether and if so, to what extent the Applicant falls to be considered under the relevant tables, bearing in mind that pursuant to the Rules for applying the Impairment Tables and assigning an impairment rating, pursuant to Rule 11 (1)(b) and (c) of the Determination:
(b) a rating cannot be assigned between consecutive impairment ratings; and
(c) if and in permanent is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
In order to attract an impairment rating of 20 points, the Applicant must satisfy at least four out of the following six functional descriptors for severe functional impact in Table 5 below:

Points Descriptors

20
There is a severe functional impact on activities involving mental health function.

(1) The person has severe difficulties with most of the following:

(a)   self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker, or support worker.

(b)   social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)    interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)   concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)   behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)     work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

Having regard to the whole of the evidence, when assessed against the above Table, the Tribunal finds that the Applicant satisfies two out of the six criteria above, namely criteria (b) and (c). The Tribunal is satisfied that he has severe difficulties with each.
As to the balance of the criteria, the Tribunal is satisfied that the Applicant has difficulties with each of the criteria, but not to the level of severe difficulty as required. So, for example, in respect of criteria (a) the Applicant receives the benefit of assistance, but the Tribunal does not accept that it is to the level of assistance that meets the severe test. As for criteria (1)(d), the Tribunal does not accept that the Applicant satisfies a level of concentration impediment required. He was able to concentrate and give evidence for longer than 10 minutes during the course of the hearing. Further, as to criteria (1)(e), there was no evidence before the Tribunal from which it could be accepted that his behaviour, thoughts and conversations are significantly and frequently disturbed; and in respect of criteria (1)(f), although the Tribunal accepts that the Applicant has been on workers compensation payments for some time, the Tribunal is not satisfied that he is unable to attend training on a regular basis due to his ongoing mental illness alone.
In order to attract an impairment rating of 10 points, the Applicant must satisfy at least four out of the following six functional descriptors for severe functional impact in Table 5 below:

Points Descriptors

10
There is a moderate functional impact on activities involving mental health function.

(1) The person has moderate difficulties with most of the following:

(a)   self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)   social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)    interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)   concentration and task completion;

Example 1: The person finds it very difficult to concentrate on tasks for longer than 30 minutes (such as reading from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)   behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)     work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

Having regard to the evidence, the Tribunal finds that the Applicant satisfies all of the criteria of moderate functional impairment and which therefore attracts a rating of 10 points for this condition. Insofar as criteria (1)(f) is concerned, the Tribunal accepts that the Applicant has not undertaken work for some time; nor has he undertaken any training. Hence, his interpersonal relationships in such an environment are not explained by the evidence before the Tribunal. However, the Tribunal is satisfied nonetheless that to the extent interpersonal relationships have been identified before the Tribunal, for example his conflict with his landlord and also noting his demeanour with the Respondent has in the past been an issue of concern, this criteria is met.
The Tribunal has had regard to Rule 11(1)(b) and (c) of the Determination referred to in paragraph 59 above. The Applicants mental health condition falls between the two impairment ratings and accordingly the higher sever rating must not be assigned and for that reason and impairment rating of 10 points is given.
Left knee and ankle conditions
The Applicant’s left limb conditions arose out of his employment. He has seen an orthopaedic surgeon for his ankle condition at which time imaging was done and he was found to have inoperable tendonitis.
The Applicant gave evidence that, during the Qualification Period, he could only walk as far as 1 km, would push himself and put up with pain, would suffer falls, and could only stand for 10 or 15 minutes at a time placing all his weight on his right leg. The Applicant stated that it is not the pain that is his biggest problem; it is the risk of falling and breaking bones. He uses a walking stick to improve his stability when walking and minimise the consequence of any fall. This condition has remained since 2016.
The Applicant has had surgery on his knee. Dr Bowler commented that surgery to the Applicant’s knee did not improve that condition and that he had persisting pain, recurrent falls and will require a knee replacement ultimately. None of the therapies or surgeries have aided him.
The Applicant has only recently been diagnosed with a ruptured Anterior Cruciate Ligament (“ACL”) to his left knee approximately two months prior to the hearing. This ruptured ACL may have been misdiagnosed earlier or went undiagnosed. Unfortunately, despite this, the condition has not yet been treated or stabilised, and it was not diagnosed during the Qualification Period. In relation to this injury, the Applicant is still going through the legal processes to have the operation covered by WorkCover.
The Applicant submits that this condition should attract an impairment rating of at least 15 points. He says it is causal of everything, and has caused him to “smash three vertebrae” and suffer a broken coccyx as a result of a fall. In evidence, the Applicant said that there is no difference in this condition between the Qualification Period and now. He said during the Qualification Period he could walk approximately 1 km albeit he will then suffer pain. He walks slowly using a walking stick. He has to go to the shops and puts up with pain and hopes that he will not fall over. However, the next day he cannot go anywhere. Further, he said during the Qualification Period he had difficulty with stairs and his knee was painful and unstable and he has a constant concern that he will fall but he could “do stairs if I had to”. He said he could do 12 stairs to get to his unit.
The Applicant said that his walking time is approximately 15 minutes and he can stand for 15 minutes with his weight on his right leg. If evenly balanced, then he is only able to stand for less than five minutes. However, it is not just his knee but also an ankle issue which was also a consequence of his workplace injury. He has inoperable tendinitis. He said he can easily turn his ankle and under the arch of the foot it is painful with a stinging sensation. The Applicant said it is not so much the pain but the mobility that is the concern. He did not know whether it was the knee or the ankle or both which caused him to fall down but he will full down. He estimated he will fall once a week and it is getting worse since the Qualification Period.
The Respondent submits that this condition is not yet fully diagnosed, treated and stabilised as the new information as to the Applicant’s ACL suggests there is more work to be done.
The Tribunal accepts that the Applicant has undertaken reasonable treatment for this condition, however the fact that his left knee condition has been misdiagnosed and further treatment is likely to occur, on the evidence before the Tribunal, the Tribunal is not satisfied that such further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years.
Were it not for the misdiagnosis and the likelihood of further surgery, the Tribunal would have otherwise attributed 10 points to the Applicant’s lower limb function under Table 3. However, because of the new diagnosis and further treatment to be undertaken, the Tribunal agrees with the Respondent’s submission that this condition has not been fully diagnosed, treated and stabilised, and as such cannot be assigned any impairment points.
Vision condition
The Respondent concedes that this condition was fully diagnosed, treated and stabilised in the Qualification Period, but submits that it should be assigned 5 points under Table 12.
The Applicant stated that the vision condition was a result of the assault which left him with a “spastic pupil” in his left eye, meaning his pupil cannot contract properly when exposed to light (causing problems with glare), and no peripheral vision of the left eye. The Applicant said migraines are one of his biggest obstacles. The Applicant wears glasses which assist him with his vision; however they are not good for long periods of time because they can cause migraines. The Applicant only reads when he has to, and estimated this to be 15 minutes at a time at most. In using glasses, the Applicant still sees double and has blurry vision. The Applicant is able to see road signs and can read documents in front of him with glasses, albeit not for a lengthy period of time.

The Applicant said his eyes are not balanced, particularly because he has had a pterygium removed from his right eye which has left him with astigmatism; the right eye bothers him more than the left eye.
Dr Bowler confirmed that the Applicant had surgery to fix the fractured orbital following the assault, however that the Applicant is left with double vision and the hospital cannot do anything more for him. His last correspondence from the hospital was on 7 July 2014 following the surgery and there has been no improvement since that time.
The Applicant submits that his vision condition should attract 10 points, and that the AAT1 erred in assigning him 5 points. He submitted the AAT1 failed to also consider his right eye. The Applicant suffers from astigmatism in his right eye after having a pterygium removed. His right eye, in fact, bothers him more so than his left eye.
The Respondent accepts that this condition is fully diagnosed, treated and stabilised, however made no submission as to how the impairment points to be attributed to this condition.
In order to attract an impairment rating of 10 points, the Applicant must satisfy the descriptors as set out in Table 12 below:

Points Descriptors

10
There is a moderate functional impact on activities involving visual function.

(1) The person:

(a)   has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and

(b)   needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and

(c)    has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and

(d)   has at least one of the following:

(i)       some difficulty seeing routine workplace, educations or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;

(ii)      moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);

(iii)     only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and

(2) The person:

(a)   is able to function independently in familiar environments (that is, without regular assistance from other people); and

(b)   is able to travel independently using public transport when using any assistive devices that they have and usually use.

To satisfy the moderate functional impact the Applicant must satisfy (1)(a) – (c) inclusive and has at least one of (i) – (iii) inclusive, and also, further satisfies (2)(a) and (b).
Having regard to the whole of the evidence when assessed against the table above, the Tribunal accepts that the Applicant has difficult seeing things and needs to use vision aids, namely glasses for some tasks. His vision issues are substantially addressed by wearing glasses. Further, the Tribunal accepts that reading for extended periods of time will cause migraine headaches, however the Tribunal does not accept on the evidence that he satisfies (1)(a) and (c). There is no evidence that the Applicant satisfies (1)(d)(i), namely that he has difficulty seeing routine workplace, education or training information such as the examples referred to. He has not satisfied that Tribunal that he suffers the moderate discomfort referred to in (1)(d)(ii) and/or the examples referred to, and he does not satisfy (1)(d)(iii). The Applicant does satisfy (2)(a) and (b).
Hence, the Applicant does not satisfy the moderate functional impact on activities involving visual function.
In order to attract an impairment rating of 5 points, the Applicant must satisfy the descriptors as set out in Table 12 below:

Points Descriptors

5
There is a mild functional impact on activities involving visual function.

(1) The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:

(a)   the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);

(b)   the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;

(c)    when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;

(d)   the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);

(e)   the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.

Having regard to the evidence, the Tribunal finds that the Applicant satisfies at least one of the criteria in (1)(a) – (e) above. He is able to perform most day to day activities involving vision and wears glasses which assist him, albeit he is unable to wear glasses for long periods of time. The Applicant is able to read road signs, however has problems with glare. Nonetheless, the Applicant is able to travel and use public transport without assistance, as he independently uses the tram to attend his psychologist appointments. The Applicant suffers from double vision and has his pupil is unable to contract properly when exposed to light. He also has some difficulty with peripheral vision.
The Tribunal also notes that the Health Professional Advisory Unit recommended an impairment rating of 5 points, albeit that does not bind the Tribunal to a decision. It is to be given such weight that the Tribunal determines having regards to the evidence.
The ARO and AAT1 found the Applicant has vision impairment and scores 5 impairment points under Table 12 – Vision Function. The Tribunal agrees with the ARO and AAT1 and finds accordingly.
The Applicant therefore has a total impairment rating of 15 points. He does not satisfy the criteria for DSP. It is worth noting that had the Tribunal found that his left knee and ankle condition was fully diagnosed treated and stabilised the Applicant would have achieved 20 points however as he had not actively engaged in a POS pursuant to s 94(2)(aa) of the Act the Tribunal could not be satisfied that he had a continuing inability to work.
The Applicant acknowledged that he has not participated in a POS. There is also no evidence to suggest that the Applicant was granted any exemption from completing the POS, although the Applicant has provided a number of Centrelink medical certificates exempting him from undertaking job-seeking activities for the purposes of receiving Newstart Allowance.
As the Applicant has a total impairment rating of 15 points for his conditions and is unable to be assessed as having a continuing inability to work pursuant to s 94(1)(c) of the Act, the Applicant therefore does not qualify for the DSP.
DECISION
The decision under review is affirmed.

94. I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.........[Sgnd]............................................
Associate
Dated: 20 December 2019

Date of hearing: 23 August 2019 and 19 September 2019

Applicant: In person

Advocate for the Respondent: Mr Christian Visser, Department of Human Services

[2019] AATA 5526

20 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	23 August 2019 and 19 September 2019
Applicant:	In person
Advocate for the Respondent:	Mr Christian Visser, Department of Human Services