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

[2021] AATA 2874

Edwards and Secretary, Department of Social Services (Social services second review) [2021] AATA 2874 (16 August 2021)

Division:GENERAL DIVISION

File Number:          2021/0235

Re:MICHAEL JOHN EDWARDS

APPLICANT

SECRETARY, DEPARTMENT OF SOCIAL SERVICESAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:16 August 2021

Place:Brisbane

The decision under review is affirmed.

...............................[SGD]....................................

Senior Member Katter

Catchwords

SOCIAL SECURITY – disability support pension – whether applicant has severe impairment – unlimited portability – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member Katter

16 August 2021

1. The Applicant seeks a review of the decision of the Social Services & Child Support Division of the Tribunal (“SSCSD”) made on 19 November 2020[1]. The SSCSD on 19 November 2020 affirmed a review decision of 30 June 2020[2]. The decision of 30 June 2020 reviewed the decision of 26 May 2020[3] not to ‘grant indefinite portability of the Applicant’s disability support pension’[4].

   [1]           Exhibit 1, T1, page 1.

   [2]           Exhibit 1, T10, page 74.

   [3]           Exhibit 1, T19, pages 108 and 120.

   [4]           Exhibit 1, T10, page 74.

   BACKGROUND

2. The Applicant made a claim on 11 May 2020 for urgent finalisation of extended portability overseas, stating at that time that it is ’hard only seeing his wife and children 28 days in a year’[5].   

   [5]           Exhibit 1, T8, page 70.

3. The original decision made on 26 May 2020 did not grant indefinite portability of the Applicant’s Disability Support Pension[6]. Prior to the decision on 26 May 2020 there were medical reports provided by the Applicant on 15 January 2020 and a Job Capacity Assessment report dated 31 March 2020[7].

   [6]           Exhibit 1, T10, page 74.

   [7]           Exhibit 1, T10, page 75.

4. The review decision made on 30 June 2020 relevantly stated[8]:

   [8]           Exhibit 1, T10, pages 75-76.

   Reasons for Decision

   A person receiving Disability Support Pension can continue to receive the payment for up to 28 days in a 12 month period while outside Australia.

   A person is allowed indefinite portability of Disability Support Pension only under specific conditions, the person is either:

   ·assessed in Australia as having a severe impairment, with the level of impairment likely to remain for at least 5 years and no future work capacity independent of an ongoing program of support with this level likely to remain for at least 5 years

   or

   ·assessed as manifestly qualified for DSP under the current manifest guidelines.

   A severe impairment is an impairment that has been assigned 20 points or more under a single impairment table.

   An impairment rating can only be assigned for a permanent condition. A permanent condition is one that is fully diagnosed, treated and stabilised, is likely to continue for at least 2 years and it is unlikely that there will be any significant functional improvement within that time.

   Your conditions of Osteoarthritis and Chronic Obstructive Airways Disease were assigned a rating of 10 points each based on the evidence you supplied.

   As you are not assigned an impairment rating of at least 20 points under a single impairment table, you do [sic] meet the provisions to qualify as having a severe impairment and therefore you cannot be paid Disability Support Pension for more than 28 days in a 12 month period while outside Australia.

   The Job Capacity Assessor indicated your current work capacity is 0-7 hour [sic] per week and 8-14 hours per week, with intervention over the next 2 years.

   I accept the types of work appropriate to you may be more limited due to your conditions. However, based on the available evidence, I consider you have the capacity to undertake work independently of a program of support within the next 5 years.

5. On 13 July 2020 the Applicant lodged an application for review of the decision with the SSCSD[9].

   [9]           Exhibit 1, T11, page 79.

6. The SSCSD affirmed the decision under review, being the decision of 30 June 2020[10], on 19 November 2020[11].

   [10]          Exhibit 1, T10, pages 75-76.

   [11]          Exhibit 1, T2, pages 3-8.

7. On 12 January 2021 the Applicant sought this review of the decision of the SSCSD of 19 November 2020[12].

   [12]          Exhibit 1, T1, page 1.

   LEGISLATION

8. Section 1217 of the Social Security Act 1991 (Cth) (“the Act”) relevantly states:

   1217 Meaning of maximum portability period, allowable absence and portability period

   Meaning of maximum portability period

   1The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

   (a)the payment (as specified in column 2 of the table); and

   (b)the class of persons to which the person belongs (as specified in column 3 of the table).

   Meaning of allowable absence

   2The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:

   (a)it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and

   (b)except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B applies, the absence does not:

   (i)     exceed the period specified in column 5 of that item; or

   (ii)    in the case of item 2—cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with that item.

   Meaning of portability periodif unlimited maximum portability period

   3If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.

   Meaning of portability periodif maximum portability period limited

   4If the person’s maximum portability period for the payment is not an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is the period:

   (a)beginning at the commencement of the period of absence; and

   (b)ending at the earlier of the following times:

   (i)     the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

   (ii)    the end of the period that is the person’s maximum portability period for the payment.

   Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.

Portability of social security payments
Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
…
2	Disability support pension	Australian resident disability support pensioner	Any temporary absence, except for any of the following purposes: (a) to seek eligible medical treatment; (b) to attend to an acute family crisis; (c) for a humanitarian purpose	A total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)
2A	Disability support pension	Severely impaired disability support pensioner	Any absence	Unlimited period

…

1. Section 1218AAA of the Act relevantly states:

   1The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

   (a)the person is receiving disability support pension;

   (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

   (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

   (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

   2The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

   (a)     the person is unable to return to Australia because of either of the following events:

   (i)     a serious accident involving the person;

   (ii)    the hospitalisation of the person; and

   (b)the person’s portability period for disability support pension had not ended at the time the event occurred.

   …

   4A determination under subsection (1) is not a legislative instrument.

   5In this section:

   work means work:

   (a)that is on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible labour market.

2. Section 94 of the Act relevantly states:

   …

   Severe impairment

   3BA person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

   Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

   Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

   …

   Doing work independently of a program of support

   4A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

   (a)is unlikely to need a program of support; or

   (b)is likely to need a program of support provided occasionally; or

   (c)is likely to need a program of support that is not ongoing.

3. The definitions in section 23 of the Act define the phrase “Impairment Tables”:

   Impairment Tables means the tables determined by an instrument under subsection 26(1) by reference to section 26(1) of the Act.

4. Section 26 of the Act states:

   26 Impairment Tables and rules for applying them

   Impairment Tables

   1The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.

   2An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.

   Rules for applying Impairment Tables

   3The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).

   4An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.

5. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”)[13] states relevantly:

   [13]    F2011L02716, pursuant to the Social Security Act 1991 (Cth), commencing immediately after the commencement of Schedule 3 of the Social Security and other Legislation Amendment Act 2011 (Cth). Dated 6 December 2011, Registered 16 December 2011, Tabled in House of Representatives 07 February 2012, Tabled in the Senate 07 February 2012.

   6    Applying the Tables …

   Permanency of conditions

   4For 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

   5In 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

   6For 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).

   ISSUE

6. There is no contention between the parties that the issue is whether the Applicant can receive the Disability Support Pension for an unlimited period when out of Australia[14]. The Applicant did not contend that sections other than 1217, 1218AAA and 94(3B) of the Act are applicable as to that contention between the parties as to ‘unlimited portability’[15]. The parties did not contend that there was in the alternative a limited ‘manifest qualification’ in accordance with any applicable manifest guidelines[16], additional to sections 1217, 1218 and 94(3B) of the Act.

   [14]          Transcript, 11 June 2021, P-11, lines 3-8 (Applicant) and P-11, lines 40-46 and P-12-14 (Respondent). 

   [15]          Transcript, 11 June 2021, P-18, lines 5-30.

   [16]          Exhibit 1, T Documents, Reasons for Decisions dated 30 June 2020, T10 page 75

   CONSIDERATION

7. The Respondent submits that the impairment of the Applicant is to be assessed at the date of request (26 November 2019[17]) and subsequently as circumstances demand up to the date of the Tribunal decision[18].

   [17]          Exhibit 1, T Documents, T19, page 110.

   [18]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.23-4.30.

8. In accordance with section 1218AAA(1)(a) of the Act, the Applicant is receiving a Disability Support Pension[19].

   [19]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.2.

9. As to whether the Applicant’s impairment is a ‘severe impairment’ within the meaning of sub-section 94(3B) of the Act as stated in section 1218AAA(1)(a), sub-section 94(3B) states that a person’s impairment is a ‘severe impairment’ if the person’s impairment is of 20 points or more under the Impairment Tables in the Determination. The Applicant has the following accepted medical conditions: Osteoarthritis, chronic obstructive airways disease and shoulder and upper arm disorder[20].

   [20]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.2.

10. On 15 January 2020 the Applicant submitted medical documents, including a medical report: Disability support pension review for portability form with Section A completed by the Applicant on 3 December 2019 and Section B completed by a general practitioner, Dr Araba on 23 December 2019[21].

    [21]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.4.

    Chronic obstructive airways disease

11. The Respondent submitted that the Applicant’s chronic obstructive airways disease (as accepted by the Respondent) is fully treated and fully stabilised and likely to persist for more than two years in accordance with sub-sections 6(3) and (6) of the Determination and should be assigned an impairment rating under Table 1 – Functions requiring Physical Exertion and Stamina[22].

    [22]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.5.

12. Table 1 of the Determination states:

    Table 1 - Functions requiring Physical Exertion and Stamina

Introduction to Table 1

·           Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

·           The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·           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:

o    a report from the person’s treating doctor;

o    a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);

o    a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);

o    results of exercise, cardiac stress or treadmill testing.

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)    has no difficulty completing physically active tasks around their home and community.

5

…

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)     is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)    is able to:

(i)    use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)    perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)     walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)     walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)    use public transport without assistance; or

(iv)    perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)    has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

1. The Job Capability Assessment Report identified a recommended rating of 10 for this condition as to the Applicant[23].

   [23]          Exhibit 1, T7, page 63.

2. On 22 November 2019 Dr Araba stated that the symptoms of the Applicant’s chronic obstructive airways disease were increasing shortness of breath, cough and fatigue[24]. On 23 December 2019 Dr Araba stated that the symptoms of the chronic obstructive pulmonary disease were shortness of breath on exertion, easy fatiguability and chronic cough, with the impact on the Applicant’s functions being poor endurance due to shortness of breath[25].

   [24]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.40(a).

   [25]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.40(b).

3. On 31 March 2020 the Job Capability Assessment Report stated[26]:

   [The Applicant] reported that he can struggle with walking for long distances. He reported that he walks to the train station and back again or to the shopping centre and carry his groceries home [sic]. He reported to walk for fifteen minutes at a time when he walks to the train station. He reported to walk around the shops in order to complete his shopping. He reported independence with washing, and that he pulls weeds each day and other light gardening tasks. He reported to wash and change his sheets when required. He reported this condition is most worrying to him due to a family history of this condition which can lead to degeneration.

   [26]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.40(c).

4. The Applicant stated, as part of the Job Capability Assessment Report, that he uses public transport when necessary[27].

   [27]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.40(d).

5. In the submissions provided by the Applicant on 31 July 2021 the Applicant referred particularly to a Respiratory Function Report dated 19 September 2019 which described the obstruction as ‘severe’.

6. The Applicant gave oral evidence at the hearing on 11 June 2021[28]. The Applicant stated that he had walked around a supermarket without assistance[29]: ‘I can pick up things like cordial and one kilo or half a kilo of sugar or something like that, yes, I can do that’. The Applicant did not state that he needed assistance to walk from the car park into or out of the shopping centre or supermarket[30]: ‘I just walk straight into the shops, I pick up a small basket’. The Applicant stated that he had ‘hopped’ on a train when he was living in Ipswich[31]. The Applicant is able to perform light day to day household activities, and referred to going to the laundromat with all of his washing in the car and then taking it out and putting it in the washing machine at the laundromat[32].

   [28]          Transcript, P-19-41.

   [29]          Transcript, P-33, lines 45-47 and P-34, lines 1-2.

   [30]          Transcript, P-23, line 31.

   [31]          Transcript, P-36, lines 40-44.

   [32]          Transcript, P-23, lines 18-21.

7. The Applicant’s functional impact is not in accordance with the descriptors in sub-paragraph 1(a)(i)-(iv) as to 20 points in Table 1. Sub-paragraph (1)(b) as to 20 points in Table 1 is in addition to sub-paragraph 1(a) (“and”). It is therefore found that the functional impact in Table 1 is not 20 or more points.

   Shoulder and Upper Arm Disorder

8. The Respondent submitted that the Applicant’s shoulder and upper arm disorder (as accepted by the Respondent) is fully treated and fully stabilised and likely to persist for more than two years in accordance with sub-sections 6(3) and (6) of the Determination and should be assigned an impairment rating under Table 2 – Upper Limb Function[33].

   [33]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.40.

9. Table 2 of the Determination states:

   Table 2 – Upper Limb Function

Introduction to Table 2

·           Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

·           The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·           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:

o    a report from the person’s treating doctor;

o    a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);

o    a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

o    results of diagnostic tests (e.g. X-Rays or other imagery);

o    results of physical tests or assessments.

·           For the purposes of this Table upper limbs extend from the shoulder to the fingers.

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)    The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

…

10

There is a moderate functional impact on activities using hands or arms.

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

(a)    picking up a 1 litre carton full of liquid;

(b)    picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)    holding and using a pen or pencil;

(d)    doing up buttons or tying shoelaces;

(e)    using a standard computer keyboard;

(f)     unscrewing a lid on a soft-drink bottle.

20

There is a severe functional impact on activities using hands or arms.

(1)    Most of the following apply to the person:

(a)    the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)    the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c)    the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)    the person has severe difficulty using a pen or pencil;

(e)    the person has severe difficulty turning the pages of a book without assistance.

1. The Job Capability Assessment Report identified a recommended rating of 0 for this condition as to the Applicant[34].

   [34]          Exhibit 1, T7, page 64.

2. The Applicant stated that he is able to brush his own hair[35]. As referred to above, the Applicant stated that he can pick up things[36]: ‘like cordial and one kilo or half a kilo of sugar or something like that, yes, I can do that’. The Applicant stated that he is able to dial the numbers on the mobile phone and use the phone himself[37]. There was no indication that the Applicant had severe or any difficulty using a pen or pencil or that the Applicant could not turn the pages of a book without assistance[38].

   [35]          Transcript, P-28, line 36.

   [36]          Transcript, P-33, lines 45-47 and P-34, lines 1-2.

   [37]          Transcript, P-34, lines 23-26.

   [38]          See Transcript, P-39, lines 38-41.

3. The Applicant’s functional impact is not in accordance with the descriptors in sub-paragraph 1(a)-(e) as to 20 points in Table 2. It is therefore found that the functional impact in Table 2 is not 20 or more points.

   Osteoarthritis

4. The Respondent submitted that the Applicant’s osteoarthritis of the spine (as accepted by the Respondent) is fully treated and fully stabilised and likely to persist for more than two years in accordance with sub-sections 6(3) and (6) of the Determination and should be assigned an impairment rating under Table 4 – Spinal Function[39].

   [39]          Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 4.42.

5. Table 4 of the Determination states:

   Table 4 – Spinal Function

Introduction to Table 4

·           Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·           The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·           Self-report of symptoms alone is insufficient.

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

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

o    a report from the person’s treating doctor;

o    a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

o    a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·           In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)    The person can:

(a)    bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)    turn their trunk from side to side; and

(c)    turn their head to look to the sides or upwards.

5

…

10

There is a moderate functional impact on activities involving spinal function.

(1)    The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)    the person is unable to bend forward to pick up a light object placed at knee height; or

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)    The person is unable to:

(a)    perform any overhead activities; or

(b)    turn their head, or bend their neck, without moving their trunk; or

(c)    bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

1. The Job Capability Assessment Report identified a recommended rating of 10 for this condition as to the Applicant[40].

   [40]          Exhibit 1, T7, page 63.

2. As referred to above, the Applicant stated that he is able to perform an overhead activity, in that he can brush his own hair[41]. The Applicant stated that he is able to turn his head with a pain to the left and right[42]. The Applicant stated that he is able to put his pants on and lift up one leg, but he does lose his balance and get a ‘bit wobbly’ on his feet on one side[43].  As to whether the Applicant can bend forward to pick up a light object from a desk or table, the Applicant stated that in the supermarket he can ‘get a bit of meat or go to the vegie section where you can probably get a couple of apples, bananas’[44]. As referred to above, the Applicant also stated that he can pick up things from supermarket shelves[45]: ‘like cordial and one kilo or half a kilo of sugar or something like that, yes, I can do that’. As to whether the Applicant is unable to remain seated for at least 10 minutes, the Applicant stated that when driving between Mackay and Townsville there would have been stops, roughly, every 20 to 30 minutes[46].

   [41]          Transcript, P-28, line 36.

   [42]          Transcript, P-32, lines 15-22.

   [43]          Transcript, P-33, lines 32-33.

   [44]          Transcript, P-28, lines 6-7.

   [45]          Transcript, P-33, lines 45-47 and P-34, lines 1-2.

   [46]          Transcript, P-36, lines 22-23.

3. The Applicant’s functional impact is not in accordance with the descriptors in sub-paragraph 1(a)-(d) as to 20 points in Table 4. It is therefore found that the functional impact in Table 4 is not 20 or more points.

   IMPAIRMENT RATINGS

4. Therefore, the Applicant’s impairment is not 20 points or more under any single Impairment Table and there is not a ‘severe impairment’ in accordance with section 94(3B) of the Act. Therefore, there is not satisfaction that the Applicant’s impairment is a severe impairment in accordance with section 1218AAA(1)(b) of the Act. As all of the circumstances (the qualifying circumstances) are to exist in accordance with section 1218AAA(1) of the Act, the Applicant’s maximum portability period for the Disability Support Pension is not an unlimited period. Therefore, the portability period is not the maximum portability period as referred to in section 1217(3), as it is not an unlimited period.

   DECISION

5. The decision under review is affirmed.

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

...................................[SGD].....................................

Associate

Dated: 16 August 2021

Date(s) of hearing:

11 June 2021

Date final submissions received:

30 July 2021

Applicant:

Appeared by telephone

Advocate for the Respondent:

Solicitors for the Respondent:

Ms G. Gehrke

Sparke Helmore