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

Early and Secretary, Department of Social Services (Social services second review) [2021] AATA 139 (8 February 2021)
Division:GENERAL DIVISION
File Number: 2019/6961
Re:Reginald Early
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:8 February 2021
Place:Brisbane

The Tribunal sets aside the decision under review and replaces it with a decision that the Applicant qualified for the disability support pension during the qualification period.
..............[SGD]..........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical condition fully diagnosed, fully treated and fully stabilised – whether severe impairment - decision under review set aside
LEGISLATION
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
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Prahauser v Administrative Appeals Tribunal [2020] FCA 1658
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Secretary, Department of Social Security v “SRA” (1993) 43 FCR 299
Sesalim v Secretary, Department of Social Services [2018] FCA 1159
SECONDARY MATERIALS
Guide to Social Security Law Version 1.277 (2021)
Macquarie Dictionary (online 4 February 2020)
REASONS FOR DECISION
Member D K Grigg
8 February 2021
INTRODUCTION & CLAIM HISTORY

On 15 February 2018, Mr Reginald Early (“Mr Early”) lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as:[1]
·bilateral hearing loss
oR – mild steeply sloping to ear profound sensorineural hearing loss
oL – profound sensorineural ear hearing loss
·balance issues
·lethargy
·removal of brain tumour acoustic neuroma/vestibular schwannoma[2]
[1] Exhibit 1, T Documents, T 8, pages 81 – 113, Mr Early’s Claim for DSP, dated 7 February 2018 and received by Centrelink on 15 February 2018.
[2] Exhibit 1, T Documents, T 8, page 108, Mr Early’s Claim for DSP, dated 7 February 2018 and received by Centrelink on 15 February 2018.
In April 2018, the Department of Human Services (“Centrelink”) arranged for Mr Early to be assessed by a psychologist to ascertain Mr Early’s eligibility for the DSP. The psychologist reported that Mr Early’s medical conditions were not fully diagnosed, treated and stabilised given that he was scheduled to trial a new hearing device.[3]
[3] Exhibit 1, T Documents, T 14, pages 149 – 150, DSP Medical Assessment Recommendation Report, dated 3 April 2018.
Based on the psychologist’s assessment, Centrelink rejected Mr Early’s claim for DSP on 5 July 2018.[4]
[4] Exhibit 1, T Documents, T 18, pages 162 – 163, Letter from Centrelink, dated 5, July 2018.
Mr Early sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”) and provided Centrelink with some additional medical reports including:
(a)a report from Dr James Bowman, Ear Nose and Throat Surgeon, dated 17 July 2018 confirming that:
(i)Mr Early had undertaken all current treatments and that his condition was fully stabilised;
(ii)Mr Early would not improve in terms of his hearing and balance;[5]
(b)a report of Dr Ken Purdie, General Practitioner, dated 16 August 2018 which provided that Mr Early’s conditions were fully diagnosed treated and stable and that no other treatment was available;[6] and
(c)his own statement detailing the impact his conditions were having on his ability to function (see paragraph 69 below).[7]
[5]     Exhibit 1, T Documents, T 19, page 171, Report of Dr Bowman, dated 17 July 2018.
[6]     Exhibit 1, T Documents, T 19, page 172, Report of Dr Purdie, dated 16 August 2018.
[7]     Exhibit 1, T Documents, T 19, pages 167 – 170, Mr Early's Statement, (undated).
Based on the additional medical information, a DSP medical assessor recommended that Mr Early be referred for a job capacity assessment (“JCA”).[8]
[8] Exhibit 1, T Documents, T 20, pages 173 – 174, DSP Medical Eligibility Assessment Recommendation, dated 26 April 2019.
A JCA was conducted face-to-face on 6 June 2019 with Mr Early by a registered Occupational Therapist (“the Assessor”). Mr Early reported to the JCA Assessor that following surgery:[9]
(a)he developed cognitive impairment;
(b)he had short-term memory loss;
(c)he was having difficulties retaining information;
(d)he was being forgetful and inattentive; and
(e)he was feeling depressed.
[9] Exhibit 1, T Documents, T 22, pages 177 – 185, JCA Report, dated 18 June 2019.
Mr Early’s wife reported to the JCA Asessor that:[10]
(a)given Mr Early’s cognition and the risk of falling, she does not like to leave Mr Early alone for safety reasons; and
(b)Mr Early requires frequent reminders for daily activities.
[10] Exhibit 1, T Documents, T 22, pages 177 – 185, JCA Report, dated 18 June 2019.
Ms Andrea Storan, Audiologist, reported to the JCA Assessor that Mr Early’s functional impact was as follows:[11]
·          in a quiet environment he was able to hear on the right side and front only;
·          he is unable to hear from the left side or behind;
·          he is unable to hear if background noise or noisy environment;
·          he is unable to determine the direction of sound;
·          he is partially reliant on lip reading;
·          he requires the use of caption television;
·          he would benefit from a caption telephone;
·          he is likely to have difficulty using the telephone especially with accents or quiet    speakers; and
·          he is unable to hear warning shouts, sirens or alarms.
[11]    Exhibit 1, T Documents, T 22, pages 177 – 185, JCA Report, dated 18 June 2019.
The JCA Assessor reported that:[12]
(a)Mr Early’s hearing condition was fully diagnosed, treated and stabilised;
(b)Mr Early’s cognitive condition could not be considered as part of the JCA as he has not yet had a neuropsychological assessment;
(c)Dr Bowman confirmed that Mr Early has balance disturbance but that he could not comment on the degree of imbalance and recommended that Mr Early be engaged with the vestibular physiotherapist; and
(d)Mr Early’s hearing impairment warranted an Impairment Rating of 10 points under Table 11 of the Impairment Tables[13] as it was having a moderate functional impact on activities involving hearing.
[12] Exhibit 1, T Documents, T 22, pages 177 – 185, JCA Report, dated 18 June 2019.
[13] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), Part 3.
On 12 June 2019, Dr Bowman recorded that in relation to Mr Early’s cognitive impairment, Dr Damian Amato, Mr Early’s Neurosurgeon, had sent him for neuropsychological review.[14]
[14] Exhibit 1, T Documents, T 24, page 191, Report of Dr Bowman, dated 12 June 2019.
On 1 July 2019, Dr Purdie reported that:[15]
[15]    Exhibit 1, T Documents, T 27, pages 195 – 196, Report of Dr Purdie, dated 1 July 2019.
(a)Mr Early’s hearing loss has caused him significant disability in that:
·       he has great difficulty understanding conversations as he has to attempt to lip read and face the person directly;
·       he is unable to hear alarms, vehicle horns or engine noises;
·         he has had a few instances of near accidents when he did not hear approaching vehicles;
·         he requires the use of captions to watch television;
·         his unable to attend the cinema and unable to use a caption telephone;
·         due to his age, it is unreasonable to expect him to learn Auslan or similar     sign language;
·         he relies on his wife to make his appointments and attend the appointments            with him;
·         “His tumour and subsequent surgery has caused a permanent balance        problems. This is not amenable to treatment”.[16] Any changes in posture or          head movement must be done with care and slowly;
·         “He often relies on supports e.g. chairs, walls etc so that he feels safe         walking around”;[17]
·         his “constant imbalance leaves him feeling with [a] clouded, foggy sensation           most of the time”;[18]
(b)Mr Early has shown a decline in cognitive function characterised by “poor concentration, memory loss, lack of organisational abilities, problems comprehending and completing documents and difficulties adding up e.g. handling money etc”; and
(c)Mr Early displays some features of depression and anxiety - Mr Early is socially withdrawn, has a low attention span, irritability and low mood.
[16]    Exhibit 1, T Documents, T 27, page 195, Report of Dr Purdie, dated 1 July 2019.
[17]    Exhibit 1, T Documents, T 27, page 195, Report of Dr Purdie, dated 1 July 2019.
[18]    Exhibit 1, T Documents, T 27, page 195, Report of Dr Purdie, dated 1 July 2019.
The review by the ARO was unsuccessful on the grounds that the ARO determined that

Mr Early’s condition did not attract a 20-point Impairment Rating under the Impairment Tables.[19]
[19] Exhibit 1, T Documents, T 29, pages 200 – 205, Decision of ARO and Notes, dated 1 July 2019.
Mr Early then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[20] The SSCSD concluded that Mr Early's hearing condition was fully diagnosed, treated and stabilised and caused a moderate impairment attracting a rating of 10 points under Table 11 of the Impairment Tables, but that his other reported conditions of cognitive impairment, arthritis and depression could not be considered fully treated, diagnosed and stabilised due to lack of medical evidence regarding treatment, and that therefore Mr Early did not qualify for the DSP.[21]
[20] Exhibit 1, T Documents, T 30, pages 206 – 207, Request for Statement, dated 15 July 2019.
[21] Exhibit 1, T Documents, T 2, pages 16 – 22, SSCSD Decision, dated 1 October 2019.
Mr Early has sought a review of the SSCSD decision by this Tribunal.[22]
[22] Exhibit 1, T Documents, T 1, pages 1 – 15, Application for Review of Decision, dated 27 October 2019.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth)
(“the Act”).
Section 94(1)(a) – (c) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Early must have a physical, intellectual or psychiatric impairment;
(b)Mr Early’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”); and[23]
(c)Mr Early must have a continuing inability to work.
[23] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Early meets the Section 94 Requirements is the date of the claim (in this instance as at 15 February 2018), unless Mr Early becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[24] Therefore, in order to qualify for DSP Mr Early must have met the
[24] See s 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
Section 94 Requirements between 15 February 2018 and 17 May 2018 (“Qualification Period”).
Medical evidence concerning the functional impact of Mr Early’s impairments after the Qualification Period can be considered if it “cast[s] light on” the functional impact of the impairments during the Qualification Period.[25]
[25] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[26] They are function based[27] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[28]
[26] Determination, ss 4(2) and 5(2)(a).
[27] Determination, ss 5(2)(b) and (c).
[28] Determination, ss 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[29]
(a)Mr Early’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, considering available evidence, to persist for more than 2 years.
[29] Determination, see ss 6(3).
Mr Early’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[30]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Determination, see ss 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[31] the following must be considered:[32]
(a)whether there is corroborating evidence of the condition;
(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.
[31] For the purposes of ss 6(4)(a) and (b) of the Determination.
[32] Determination, see ss 6(5).
A condition is fully stabilised[33] if:[34]
(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;[35] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[33] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[34] Determination, see s 6.
[35] Determination, see ss 6(7).
“Reasonable treatment” is treatment that:[36]
(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.
[36] Determination, see s 6(7).
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least

2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
DID MR EARLY HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT(S) DURING THE QUALIFICATION PERIOD: SUBSECTION 94(1)(A) OF THE ACT?
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[37]
[37] Determination, s 3.
Mr Early’s Medical Conditions – Medical Evidence
Brain Tumour/Hearing Loss
On 15 March 2018, Dr Ken Purdie, General Practitioner reported that Mr Early was being assessed for a new hearing aid.[38]
[38] Exhibit 1, T Documents, T 12, pages 137 – 143, Medical Report of Dr Purdie, dated 15 March 2018.
In April 2018 Dr Bowman reported that:[39]
(a)Mr Early had been fitted with a BiCROS hearing aid;
(b)following surgery Mr Early had been left with residual imbalance which will be “life long and permanent”;
(c)Mr Early’s current hearing thresholds on the left are non-recoverable and he has a permanent profound hearing loss on the left-hand side;
(d)Mr Early has some hearing on the right-hand side, but he could not comment on the future progression of his right hearing loss as it could be quite variable over time;
(e)Mr Early’s medical conditions render him unable and ineligible to perform his existing duties as a truck driver; and
(f)Mr Early will require further MRI scans in the future to watch for any residual tumour growth.
[39] Exhibit 1, T Documents, T 15, pages 152 – 153, Report of Dr Bowman, dated 16 April 2018.
On 1 May 2018, Dr Purdie reported that Mr Early’s prognosis in relation to his hearing loss and balance problems was uncertain.[40]
[40] Exhibit 1, T Documents, T 16, page 155, Medical Certificate of Dr Purdie, dated 1 May 2018.
On 14 May 2018, Mr Early was assessed by a registered Occupational Therapist from the Department of Human Services. Mr Early reported to the Assessor that:[41]
[41]    Exhibit 1, T Documents, T 17, pages 156 – 161, Employment Services Assessment Report, dated 14 May 2018.
(a)he was able to hear one-on-one communication if it was face-to-face and there       was no background noise;
(b)      he hears female voices as a lisp;
(c)        he is unable to determine the direction of sound;
(d)      he has difficulty using a telephone;
(e)      he is unable to communicate with any background noise;
(f)         he has balance difficulties in his head - feels like a fishbowl;
(g)      he becomes fatigued with prolonged standing or walking or repetitive head           movements and has difficulties with stairs and kerbs; and
(h)      he has a numb feeling in his left eye.
Balance Issues
In his application for review, Mr Early advised that due to his balance issues:[42]
(a)he must be assisted by his wife;
(b)he uses a walking stick when leaving his home, especially in unfamiliar/uneven environments; and
(c)he struggles on public transport.
[42] Exhibit 1, T Documents, T 1, page 3, Application for Review of Decision, dated 27 October 2019.
On 12 June 2019, Dr Bowman reiterated that Mr Early’s balance issues were consistent with his surgery and would be “permanent and lifelong”. Dr Bowman suggested to the JCA Assessor that if they required further information about his balance condition, a vestibular physiotherapist could be engaged to conduct a formal assessment.[43]
[43] Exhibit 1, T Documents, T 24, page 191, Report of Dr Bowman, dated 12 June 2019.
Mr Early began vestibular and balance rehabilitation with Joshua Manteufel, Physiotherapist, on 18 November 2019.[44]
Cognitive Impairment
[44] Exhibit 2, ST Documents ST 6, page 18, Report of Joshua Manteufel, dated 3 January 2020.
On 6 March 2018, Mr Early reported that he was unable to write legibly, had poor writing skills and poor comprehension skills.[45]
Depression
[45] Exhibit 1, T Documents, T 12, pages 132 – 136, Personal and Medical Review Sickness Allowance form, signed 6 March 2018.
Mr Early says that he has had depressive symptoms following his surgery.
Dr Purdie reported in March 2020 that Mr Early was awaiting psychological therapy.[46]
[46] Exhibit 2, ST Documents, ST 9, page 38, Report of Dr Purdie, dated 5 March 2020.
Conclusion on Impairment

The above medical evidence has led the Tribunal to find that during the Qualification Period Mr Early suffered a hearing and balance impairment and that the requirement in

section 94(1)(a) of the Act has been met. This is not disputed by the Secretary.[47]
[47] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 April 2020, para 37.
Mr Early had not been diagnosed or treated for depression by the Qualification Period, and therefore, this condition cannot be considered for the purposes of this application. In relation to Mr Early’s reported cognitive impairment, there is no medical evidence of a proper assessment having been made of this condition prior to or during the Qualification Period. Therefore, it cannot be considered for the purposes of this application. Mrs Early, who represented her husband at the hearing, confirmed that Mr Early was not relying on his cognitive impairment or depression in support of this application.
DOES MR EARLY’S HEARING AND BALANCE IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
Are Mr Early’s Hearing and Balance Conditions Permanent and Likely to Persist for at Least 2 Years?
Hearing
There is no dispute that the medical evidence demonstrates that Mr Early’s hearing condition was fully diagnosed, fully treated and fully stabilised during the Qualification Period and that therefore an Impairment Rating can be assigned.[48]
Balance
[48] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 April 2020, para 45.
The Respondent contended, in written submissions provided in advance of the hearing, that Mr Early’s balance impairment had not been fully treated as at the Qualification Period.[49]
[49] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 April 2020, para 54.
At the hearing the Tribunal was informed that Mr Early is now receiving the DSP, as a result of a subsequent DSP application. The Tribunal asked the Respondent what differences existed between May 2018 and now that had resulted in Mr Early being accepted as qualified for the DSP. Mr McQuinlan said the key difference was the level of vestibular therapy treatment which Mr Early had received for his balance condition. Mr McQuinlan referred to the fact that Mr Early began vestibular therapy treatment with Mr Manteufel in November 2019, after the Qualification Period.
The balance condition arose as a direct result of Mr Early’s tumour removal surgery.[50] The issue is whether Mr Early had had all reasonable treatment for the balance condition as at the Qualification Period and whether it can be considered permanent as at that date.
[50] Exhibit 1, T Documents, T 10, page 119, Report of Dr Bowman, dated 8 February 2018.
At the hearing Mrs Early confirmed that Mr Early had commenced balance therapy (otherwise known as vestibular therapy) while an inpatient at the hospital one day after the surgery. She said the hospital would not allow Mr Early to leave until this treatment had been undertaken. There is evidence before the Tribunal that Mr Early undertook post-operative care at the Neuroscience Centre of the hospital on 15 January 2018.[51]
[51] Exhibit 1, T Documents, T 1, page 13, Post-opérative Care Pamphlet.
Mr Early provided the following corroborating evidence:
(a)a brochure given to him at the hospital by his treating specialist which contained exercises for him to perform[52] and which instructed him to follow his physiotherapist’s instructions. Mr Early says this confirms he had been seeing a physiotherapist following surgery;[53] and
(b)hospital progress notes which indicate that Mr Early attended physiotherapy treatment for mobility and balance on at least 7 occasions prior to his discharge from hospital.[54]
[52]    Exhibit 2, ST Documents, ST 6, pages 26 – 27, Active Rehabilitation Physiotherapy Pamphlet.
[53]    Exhibit 1, T Documents, T 13; pages 145 – 146, Report of Andrea Storan and Tom Garwood, dated 22 January 2018; Exhibit 2, ST Documents, ST 6, pages 26 – 27, Active Rehabilitation Physiotherapy Pamphlet.
[54]    Exhibit 2, ST Documents, ST 4, Progress Notes from Mater Hospital, dated 5 December 2017 to 11 December 2017.
Mrs Early also said that the physiotherapist continued to check on Mr Early by telephone (through Mrs Early) once he was home to ensure he was doing his exercises and that he was ok.
In July 2018 Dr Bowman confirmed that following surgery Mr Early had “exhausted” all treatments and that his hearing and balance would not improve.[55] This report was provided only 6 weeks after the Qualification Period. In Dr Bowman’s February 2018 and July 2018 reports there is no mention of any further treatment being available or required for Mr Early’s balance issues. Rather, Dr Bowman confirms there is no additional reasonable treatment that Mr Early could undertake.
[55] Exhibit 1, T Documents, T 14, Report of Dr Bowman, dated 17 July 2018.
Dr Bowman confirmed again in April 2018 that Mr Early’s imbalance, resulting from the surgery, would be permanent and lifelong.[56]
[56] Exhibit 1, T Documents, T 15, pages 152-153, Report of Dr Bowman, dated 16 April 2018.
Mr Early had further vestibular therapy in 2019/2020. Mrs Early explained that they had gone to a physiotherapist following Mr Early having prostate surgery. After they told the physiotherapist Mr Early’s entire medical history, he decided to conduct some further vestibular exercises. Mr Early had some vestibular rehabilitation treatment with a physiotherapy between November 2019 and February 2020. This treatment resulting in no improvement. The physiotherapist reported it was difficult to believe the outcome from vestibular rehabilitation would have been any different if it had been undertaken immediately following surgery.[57]
[57] Exhibit 2, ST Documents, ST 7, page 36, Report of Joshua Manteufel, dated 21 February 2020.
The reference by Dr Bowman in his June 2019 report to Mr Early being assessed by a vestibular therapist was not for the purpose of treatment but solely for the purpose of the Respondent independently verifying the extent of Mr Early’s condition. Dr Bowman’s reporting is consistent with a finding that Mr Early has suffered balance issues as a result of his tumour surgery and that this condition is permanent and has been permanent since surgery.
At the hearing Mr McQuinlan conceded that Dr Bowman’s report would support the view that Mr Early’s balance condition was fully treated as at the Qualification Period.
Based on the above evidence, in particular that of Dr Bowman, the Tribunal is satisfied that Mr Early’s balance condition can be considered permanent as at the Qualification Period and that an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Early’s Impairment has to be assessed against the descriptors[58] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[59]
[58] Determination, see ss 3 and 5(3).
[59] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed based on what the person can, or could do, not based on what the person chooses to do or what others do for the person.[60]
[60] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[61]
(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.
[61] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[62]
(a)symptoms reported by Mr Early in relation to his condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Early’s local community.
[62] Determination, see s 8.
Which Tables are appropriate are determined by:[63]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[63] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[64]
[64] Determination, see s 10(3).
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.[65]
[65] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[66]
[66] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[67]
[67] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The relevant table is Table 11 of the Determination, which deals with hearing and other functions of the ear. Table 11 is also the appropriate table to use when considering Mr Early’s balance condition. The Tribunal was provided with excerpts from the Guide to Social Security Law (“the Guide”) which is used by Centrelink to ensure consistency in the application of the Act. The Tribunal is not bound to apply the Guide, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[68]
[68] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
The Guide provides in paragraph 3.6.3.110 that for a 10- or 20-point rating under Table 11, point (1) of the descriptors relates to hearing and point (2) of the descriptor relates to difficulty with balance or ringing in the ears.
Rating under Table 11
The Introduction to Table 11 provides that:

Introduction to Table 11

·     Table 11 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving hearing (communication) function or other functions of the ear (e.g. balance).

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist.

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist (e.g. an ENT specialist or neurologist) confirming diagnosis of conditions associated with hearing impairment or other impaired function of the ear (e.g. congenital deafness, presbyacusis, acoustic neuroma, side-effects of medication, Meniere's disease or neurological conditions including Multiple Sclerosis);

results of audiological assessment undertaken by a fully qualified audiologist or ENT specialist.

·     Table 11 should be applied with the person using any prescribed hearing aid, cochlear implant or other assistive listening device that they usually use.

·     If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11.

Mr Early contends that his hearing condition is causing a severe impairment. The Secretary contends that Mr Early’s condition is causing a moderate impairment.
To assign an Impairment Rating of 10 points (for a moderate impairment) the corroborative evidence would need to show that the following applies:[69]
[69] Determination, Table 11.
2The person:
(a)has difficulty hearing a conversation at average volume in a room with no background noise; and
(b)the person has to use a telephone with a T switch and has occasional difficulty with some words; and
(c)is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip‑read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or
3The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
To assign an Impairment Rating of 20 points (for a severe impairment) the corroborative evidence would need to show that:[70]
[70] Determination, Table11.
1The person:
(a)has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’)); and
(b)is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and
(c)is reliant on captions to follow a television program or movie; and
(d)needs to use a captioned telephone; and
(e)is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non verbal communication method (e.g. note taking) to converse with others; or
2The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
A 10- or 20-point Impairment Rating can be applied even when person uses a hearing aid or other assisted listening device.
Functional Impact
Mr Early described the impact of his hearing and balance issues on his ability to function as follows:[71]
[71] Exhibit 1, T Documents, T 19, pages 167 – 170, Applicant Submission, (undated).
How my condition affects my day to day activities and my work capacity.
Hearing Loss [original emphasis] – I have permanent hearing loss in my left ear after surgery for an Acoustic Neuroma/ Vestibular Schwanoma partial removal and severe to profound loss in the right ear. On a daily basis I must wear hearing aids to have any hope of hearing any sounds at all and I have a Phonac Cros aid that is a hearing aid for the right ear and a transmitted in the left. They are amplified as much as possible and cannot be optimised any further. I cannot wear the hearing aids in the right and must remove them to shower.
In my home environment my wife and family need to be sitting very close to me or on my right side but preferable in front of me to have any type of conversation. If they are sitting in front of me I quite often read their lips and pick up some words to interpret what they are saying. If they are further away they tend to raise the voices communicate with me but this does not help as I cannot understand the words and what they are saying. I also have no directional awareness of where sound is coming from. I might be aware that someone is talking behind me but without seeing them or their lips moving I cannot judge where they are or what they are saying. My hearing aid does not put clarity in the speech/words. If there is any background noise I cannot hear. In the house I did not hear our smoke alarm go off, I leave taps running and have flooded the bathroom and laundry room a few times. I have left the car running in the garage. I have left the fans on all night. I have left exhaust fans on. I do not hear the kettle boiling. I have left hoses running. I do not hear the alarm clock. My wife must be aware of what I am doing during the day to check if I have left anything on. She is constantly reminding me to do things or she just does them for me. I do not hear people knocking on our door.
One of the main issues I have with my hearing loss is the amount of miscommunication I have experienced. I tend to try and guess what someone is saying instead of having to ask them to repeat themselves, and this has lead [sic] to many mistakes on my behalf. I rely a lot on my wife to assist me in these situations. I also have trouble remembering many important details in a conversation and being able to concentrate fully on what the other person is saying. My wife will often have to remind me about what was said in a conversation. My wife often asked me “did you hear that?”
I am continually asking my granddaughter to look at me when she speaks so I can hear her but because she is young and she forgets. When I have to ask her to come close and repeat what she has said she gets upset/angry and says ‘it doesn’t matter’ and she walks away disappointed. This upsets me very much.
I rely on captions to watch the television. I lose concentration with the television after about ½ and [sic] hour as having to read all the word is very tiring. I cannot hear the radio in the house or in my car so I miss listening to music, talk back radio and sports commentary.
My wife uses a lot of gestures when communicating with me. I am always saying to her “what did you say?” so she often has to repeat herself two or three times. If she speaks to me while walking away from me I give up and just say “don’t bother I can’t hear you”. Our relationship suffers because of this.
I do not hear my phone ring. My wife must answer it. We put it on loud speaker but if the caller has an accent I cannot understand them. We explain to all callers that my hearing is severely impaired and I ask them to speak in a loud voice. If there is any background noise I cannot hear them. My wife usually speaks on my behalf and takes notes for me.
When I do leave the house for appointments or social activities I rely on my wife’s assistance. I have nearly been hit by a small truck and a car twice while at the shopping centre and when my wife yelled ‘look out’ I did not hear her. I did not hear the motors or the horns of the vehicles. I was not aware they were that close. I cannot converse with people in small or large groups it just sounds like everyone is talking over each other or all at once. I have a lot of trouble hearing people at receptions, check outs and salespeople. I cannot go to the theatre or movies as I cannot hear the dialogue. I rely on my wife for assistance. If I do have a conversation with someone I am constantly asking them to repeat themselves. This generally annoys other people and they walk away. I have lost many work colleagues, friends and some family members because of my hearing loss.
I lack confidence in my communication with others so I mostly avoid public areas such as sport and recreation areas, restaurants, theatres and family gatherings unless it is really important. It is challenging for me in these environments to hear and this puts a drain on my brain as it has to work harder to hear leading to tiredness and lethargy. I am also quite stressed in social situations and have a low self esteem as communicating is very difficult.
Balance and dizziness [original emphasis] – I had some physiotherapy in hospital after my operation for balance issues. I still so [sic] these exercises at home each day but I find I have continual difficulty with balance especially when walking on uneven surfaces, up and down stairs or steps (I must use the handrail), up and down my driveway. I feel like I am going to fall and my head feels like it is in a permanent fish bowl or washing machine. If I am lying down or sitting down I must stabilise [sic] my feet consciously before standing up and walking. If I don’t need the wall or rail to hold on to.
Walking in the dark is impossible without a light on. I get up two to three times a night to go to the toilet and must put the light on. I get out of bed slowly as to not lose my balance. If I tilt my head or move it around quickly I get a feeling of dizziness.
I cannot walk longer than about 15 minutes before becoming too dizzy and I have to sit down or hold onto something.
I suffer from fatigue, lethargy and tiredness still after any form of physical activity and need to sit down. I need to take rests/naps on a daily basis.
I cannot play sport anymore like tennis. I did enjoy rock fishing but this is impossible as the rocks are uneven and my balance is affected. I enjoyed camping and caravanning but I have not as yet attempted setting this up.

In addition to the medical evidence outlined in paragraphs 27 -33 above, the Tribunal also notes that Ms Storan reported shortly after the surgery that Mr Early struggles to hear if there is any background noise and has binaural hearing loss of around 70%.[72]
[72] Exhibit 1, T Documents, T 10, page 127; Report of Andrea Storan, dated 5 February 2018; Exhibit 1, T Documents, T 13, pages 145 – 148, Report of Andrea Storan and Tom Garwood, dated 22 January 2018.
Mrs Early says Mr Early has constant dizziness and that there has been no change since his surgery. Mr Early has fallen half a dozen times.
Appropriate Impairment Rating
The difference primarily between a 10-point and 20-point rating, with respect to balance, is whether a person is having frequent difficulty or continual difficulty with balance.
Dr Purdie was Mr Early’s treating General Practitioner prior to and subsequent to the surgery. Dr Purdie gave evidence at the hearing via telephone. Dr Purdie said:
·          Mr Early has permanent balance problems resulting from the surgery. His acoustic          nerve was damaged which causes permanent balance problems;
·          Mr Early “feels unsteady at all times…like being spun around and around and      around and then stopping”;
·          Mr Early has a perception all the time that he will fall over;
·          vestibular treatment is unlikely to make any difference because his acoustic         verve was damaged;
·          Mr Early’s hearing is severely impacted even with hearing aids;
·          Mr Early has reported continual problems with balance which is not unreasonable           given his surgery;
·          he has “significant” hearing difficulties even in a quiet room – quite often during     his visits with Mr Early, it is obvious Mr Early is not following the conversation; and
·          in March 2018 he completed a medical certificate which said that Mr Early was     likely to have significant improvement in two years. He was referring to his    recovery from the surgery, not the conditions themselves.
The Tribunal informed Dr Purdie of the descriptors for a 20-point rating. Dr Purdie accepted that these descriptors (excluding whether Mr Early used captions for the television and telephone) described the impacts Mr Early’s conditions were having on his ability to function since 2018.
He accepted the proposition that Mr Early had continual difficulty with balance, which meets the example in point (2) of the 20-point descriptor. Dr Purdie said Mr Early had severe difficulty hearing. In an earlier report Dr Purdie reported Mr Early’s imbalance condition as “constant”. “Constant” is defined in the Macquarie Dictionary Online as meaning “continuing without intermission”.[73]
[73] Macquarie Dictionary (online 4 February 2020) (adj 2).
At the hearing Mr McQuinlan conceded that Mr Early has continual difficultly with balance but contended that it is not a severe impairment.
Mr McQuinlan says not only do the descriptors for a 20-point rating have to be met but the impairment must also be considered “severe”. The Tribunal accepts that proposition and refers to the Federal Court decision of Bromberg J in Sesalim v Secretary, Department of Social Services [2018] FCA 1159 where Bromberg J noted that:
18. …the adjectival words used to describe each rating or level of functional impairment are not merely labels. The ordinary meaning of the words “no”, “mild”, “moderate”, etc, is intended to have application but their meaning is to be further informed and clarified by the structure of Table 5 and the examples and other information given by each descriptor. I note in that respect that, as s 5(3)(b) and the defined meaning of “descriptor” provide, the examples and other information contained in each rating or level of the Impairment Tables form part of the descriptor for that rating.
19. The structure of the scaling exercise provided for by Table 5 is to provide for five ratings or levels - “no”, “mild”, “moderate”, “severe” or “extreme”. Where one level ends another begins. Therefore there is a relative relationship between levels in which the content of one level necessarily informs the content and coverage of the neighbouring level. This structure requires that, in performing its assessment task, the Tribunal make a comparison of the descriptors in each level. Such a comparison is expressly required by s 11(2). As I said in Negri v Secretary, Department of Social Services [2016] FCA 879 at [40] by reference to the terms of s 11(2) of the Determination, “[d]eciding a level of functional impact requires comparison of the relative descriptors for each impairment rating in the Table …”.
20. As I also said in Negri at [41] by reference to s 5(3)(b) of the Determination, functional impact is to be assessed “by reference to the particular examples” appearing under the first line of the descriptor. The examples are not definitional but are illustrative in the sense they provide examples of the extent of the functional difficulties that a person who falls within that particular rating may be expected to have in relation to the activities exemplified. The particular exemplified activities may not be directly relevant to the person being assessed but they nevertheless throw light upon the degree of impairment intended to fall within the particular rating or level in which the example is found. The assistance provided by the examples may be particularly evident when the examples given under one descriptor are compared with the examples given for a neighbouring and related descriptor. In Negri at [43] I said this:
Ms Negri’s submission treats each of the functional activities, abilities, symptoms and limitations as though they were conditions of eligibility for the particular impairment level. They are not that. The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
21. In my view, in the task of assigning a rating, the Determination exhorts assessors to compare and contrast between descriptors having considered the content of the relative descriptors including to the examples (if any) given in each.
22. However, none of that analysis is intended to suggest that the words “no”, “mild”, “moderate”, “severe” and “extreme” used in Table 5 (in both the first and second lines of each descriptor) have no work to do in the rating exercise which the Determination requires. Table 5 does not utilise a grading system based upon the distribution of the population of persons impaired by percentile according to the severity of the person’s impairment. For example, the criteria for the “severe” level of impairment is not that the person falls within the 50^th to 75^th percentile of the population of functionally impaired persons due to a mental health condition. The word “severe” cannot be replaced by a number. It is not merely a label, it is part of the essence of the criteria for the third level or grade in Table 5. The ordinary meaning of that word, and that of each of its counterparts, is intended to have application informed by the exercise of comparing and contrasting the levels required by the Determination.
(Emphasis added)
The approach of Bromberg J was agreed to in the recent decision of Prahauser v Administrative Appeals Tribunal [2020] FCA 1658. In that matter White J said:
36. As Bromberg J noted, the assessment of a person’s functional impairment in accordance with the Tables is not a mechanical task amenable to a precise answer, at [17]. It is instead a task which involves a broad evaluative judgment on which reasonable minds may differ, and perhaps substantially so, at [17]. Further, it is appropriate for the decision‑maker to have regard to the structure of the Tables as a whole as each rating is located on a spectrum of the severity of an impairment. The examples given for each rating are not to be understood as definitional. Instead they are illustrative in the sense that they provide examples of the extent of the functional difficulties which a person who falls within that particular rating may be expected to have in relation to the stated activities, at [20].
The ordinary meaning of the word “severe” is defined in Macquarie Dictionary Online relevantly as follows:[74]
severe
adjective (severer, severest)
1.      harsh; …
2.      serious; …
3.      grave: a severe illness.
[74]    Macquarie Dictionary (online 4 February 2021) (Adj 1 – 3).
There is no doubt on the medical evidence that Mr Early’s hearing and balance impairments are grave conditions indeed. The Tribunal finds that they meet the definition of a severe impairment in accordance with those terms’ ordinary meaning informed by the illustrative examples set out in the 20-point descriptors.
Mr Early was accepted as being qualified for the DSP, pursuant to a subsequent DSP application, in December 2019. The Respondent now accepts that Mr Early has continual difficulties with balance. There is nothing to indicate that the functional impacts of Mr Early’s conditions are any different from what they were as at the Qualification Period.
The Tribunal is satisfied on the evidence available that Mr Early has continual difficulty with balance and continual dizziness. As a result, the Tribunal finds that Mr Early meets the descriptors for a severe 20-point impairment rating. The Tribunal finds that as at the Qualification Period an Impairment Rating of 20 points under Table 11 is appropriate for Mr Early’s hearing and balance conditions.
DID MR EARLY HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I) OF THE ACT?
The Tribunal has found that Mr Early’s Impairment was permanent therefore it is necessary to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at the Qualification Period.
Mr Early’s Impairment has attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)).
In the case of a severe impairment a person has a continuing inability to work pursuant to section 94(2) if:
(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.
At the hearing the Respondent conceded that if the Tribunal found there was a severe impairment, that it would be open to the Tribunal to find that Mr Early had a continuing inability to work. It is trite to say that the Act is considered beneficial legislation and “being remedial legislation should not receive a narrow or pedantic construction”: Black CJ said in Secretary, Department of Social Security v “SRA” ; (1993) 43 FCR 299 at 303.
There is no evidence that Mr Early could undertake any training activity which would enable him to work independently and his conditions prevent him from engaging in any work independently.
The Tribunal finds that, as at the Qualification Period, Mr Early had a continuing inability to work.
CONCLUSION
Mr Early satisfied the Section 94 Requirements during the Qualification Period and therefore did qualify for DSP at the date of his claim.
DECISION
The decision under review is set aside and substituted with a decision that Mr Early qualified for the DSP during the Qualification Period.

91. I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............[SGD]..........................................................
Associate
Dated: 8 February 2021

Date of hearing: 21 December 2020

Advocate for the Applicant: Mrs J Early

Advocate for the Respondent: Mr R McQuinlan

Solicitors for the Respondent: Services Australia

[2021] AATA 139

8 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	21 December 2020
Advocate for the Applicant:	Mrs J Early
Advocate for the Respondent:	Mr R McQuinlan
Solicitors for the Respondent:	Services Australia