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

[2024] AATA 15

Emery and Secretary, Department of Social Services (Social services second review) [2024] AATA 15 (11 January 2024)

Division:GENERAL DIVISION

File Number(s):     2023/1876

Re:Daniel Emery

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Professor Ann O'Connell

Date:11 January 2024

Place:Melbourne

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 1 March 2023 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 6 June 2022.

.............................[sgd]...........................................

Senior Member Professor Ann O'Connell

Catchwords
SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – whether the impairments rated 20 points or more under a single heading of the Impairment Tables – whether there was a continuing inability to work – decision under review set aside and substituted with decision that the Applicant met eligibility requirements.

Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4

Cases
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023

REASONS FOR DECISION

Senior Member Professor Ann O'Connell

11 January 2024

INTRODUCTION

1. This case involved an application for a Disability Support Pension (‘DSP’) by the Applicant, Mr Daniel Emery. Mr Emery lodged a claim for a DSP on 6 June 2022, in which he referred to several medical conditions that impacted his ability to work. The claim was rejected by Centrelink on 16 September 2022, and, on 29 November 2022, this decision was affirmed by an Authorised Review Officer (‘ARO decision’) at Centrelink. Mr Emery’s appeal to the Social Services and Child Support Division of this Tribunal (‘AAT1’) was heard on 1 March 2023 and was unsuccessful. On 21 March 2023, the Applicant lodged a further appeal with the General Division of this Tribunal.

2. The hearing was conducted on 13 December 2023 by telephone. Mr Emery was self-represented and gave evidence under affirmation. The Respondent (Secretary) was represented by Ms Kathryn Lieschke of Sparke Helmore Lawyers.  

3. For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’) and was qualified for DSP at the date of his claim on 6 June 2022.

   BACKGROUND

4. The Applicant, Mr Emery, is 49 years old.[1] He currently lives with his ex-partner and their child who is aged 1 or 2. He has two other teenaged children from a previous relationship. He has recently relocated from Victoria to Queensland. He gave evidence that he last worked as a security guard about 10 years ago although an Employment Services Assessment Report dated 21 February 2020[2] stated that he had worked in the previous 2 years. Mr Emery stated that he can shower himself with the assistance of a walking frame. He is reliant on his ex-partner for daily living. Mr Emery appeared frustrated during the hearing and became quite upset. He did not appear to understand the process or the concepts relating to eligibility for the DSP. When asked if he had read the previous decision (AAT1 decision) he replied that he was illiterate. However, the Tribunal notes that according to an Employment Services Assessment Report dated 2 February 2022 (T20, 74) he had completed Year 10 and an earlier Employment Services Assessment Report, dated 5 September 2013 (T5, 46) states he completed Year 8.

   [1]T docs, 10.

   [2] The assessment was carried out as a ‘file assessment’ as Mr Emery did not attend the face-to-face appointment (T19, 68).

   LEGISLATIVE FRAMEWORK

5. The qualifying requirements for DSP are set out at s 94(1) of the Act. It must be established, inter alia, that:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)…

   (i)the person has a continuing inability to work;

6. Under s 94(2) a person has a ‘continuing inability to work’ if the Secretary is satisfied that:

   (aa) where the impairment is not a severe impairment, the person has actively participated in a program of support (POS);

   (a)the impairment is of itself sufficient to prevent the person from doing any work independently of a POS within the next two years; and

   (b)the impairment is of itself sufficient to prevent the person undertaking a training activity during the next two years; or if the impairment does not prevent the person undertaking a training activity, such activity is unlikely to enable the person to do any work independently of a POS within the next two years.

   ‘Work’ is defined in s 94(5) as work:

   (a)that is for at least 15 hours per week 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

7. Under s 94(3B) of the Act, a person has a severe impairment if the impairment is 20 points or more under a single Impairment Table. Where a person has a severe impairment under a single Impairment Table, it is still necessary to consider if they have an inability to work for at least 15 hours per week due to their impairment. Where a person does not have a severe impairment under a single Impairment Table, they must have an inability to work and have actively participated in a POS under s 94(3C) of the Act.

8. Mr Emery satisfies the age requirement for a DSP (s 94(1)(d)) being over 16 years of age, and as he is not under 35 years of age, he was not required to meet the participation requirements in s 94(1)(da). Mr Emery also satisfies the residency requirements (s 94(1)(e) and (ea)) – as he was born in Australia.

9. The Impairment Tables referred to in s 94(1)(b) of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination).[3] The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Section 6(3) of the 2011 Determination states that an impairment rating can only be assigned if a condition causing an impairment is ‘permanent’ (s 6(3)(a)) and the impairment is ‘more likely than not, in light of available evidence, to persist for more than two years’ (s 6(3)(b)).

   [3]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 came into force on 1 April 2023, but it was accepted that the 2011 Determination was the applicable Determination to deal with the Applicant’s claim.

10. Subsection 6(4) further states that a condition is permanent if the condition has been ‘fully diagnosed by an appropriately qualified medical practitioner’, has been ‘fully treated’, has been ‘fully stabilised’ and ‘is more likely than not, in light of available evidence, to persist for more than two years’.

11. In relation to whether an impairment is ‘fully diagnosed and fully treated’ and ‘fully stabilised’, s 6 of the 2011 Determination relevantly states:

    Fully diagnosed and fully treated

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (a)whether there is corroborating evidence of the condition; and

    (b)     what treatment or rehabilitation has occurred in relation to the condition; and

    (c)     whether treatment is continuing or is planned in the next 2 years.

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    Note:   For reasonable treatment see subsection 6(7).

    Reasonable treatment

    (7)For the purposes of subsection 6(6), reasonable treatment is treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    EVIDENCE

12. The Tribunal took into evidence documents lodged by the Secretary numbering 258 pages; 8 documents lodged by Mr Emery that included two  letters from his GP, Dr Jabbarpour dated 17 March 2023 and 18 May 2023, and a discharge summary from the Royal Melbourne Hospital (RMH) dated 1 March 2023; and 3 documents lodged by the Respondent including a Health Professional Advisory Unit Report dated 7 September 2023. The Tribunal also considered oral evidence given by Mr Emery at the hearing. 

13. The Tribunal considered the medical evidence provided which included the following:

    ·A referral from Dr Ahmed, GP to Mr Gerry Egan, psychologist dated 10 July 2013 (T4);

    ·A referral from Dr Ruan, GP documenting asthma, back pain, hernia, pneumonia and depression addressed to ‘To whom it may concern’ dated 14 December 2015 (T6);

    ·Medical certificates from Dr Jabbarpour dated 22 June 2016 (T7), 25 June 2016 (T8), 8 August 2016 (T9), 1 March 2018 (T11) some of which refer to issues of depression/anxiety;

    ·A referral from Dr Jabbarpour to Dr Proctor, psychiatrist dated 31 October 2016 (T10);

    ·Medical certificate from Dr Jabbarpour dated 7 February 2019 (T13) referring to mental health issues;

    ·A referral from Dr Jabbarpour to Dr Chaudhary, cardiologist dated 4 July 2019 (T14);

    ·A letter from Ms Livingston, psychologist to Magistrates Court, Ballarat dated 24 July 2019 detailing assessment and planned treatment (T16);

    ·A referral from Dr Jabbarpour to Royal Melbourne Hospital dated 28 November 2019 referring to cardiac issues following surgery and self-discharge (T17);

    ·Appointment notice at Ballarat Heath Services cardiology dated 31 May 2022 (T21)[4];

    [4] The same notice appears as T22.

    ·Report from Dr Jabbarpour documenting various medical conditions dated 3 June 2022 (T23);

    ·A radiology report dated 7 June 2022 for ultrasound of right hand and wrist documenting features compatible with carpel tunnel syndrome (T26);

    ·An appointment notice dated 14 June 2022 for cardiology review (T27);

    ·An appointment notice for myocardial test at Ballarat Health Services dated 22 June 2022 (T29);

    ·An appointment notice for heart ultrasound at Ballarat Health Services dated 27 June 2022 (T31);

    ·Request for ultrasound of right wrist dated 4 July 2022 (T32);

    ·Letter from Dr Jabbarpour to Services Australia dated 4 November 2022 (partially illegible) (T34);

    ·Radiology report (brain and cervical spine) from Dr Gardiarachchi dated 7 November 2022 (T37);

    ·Appointment notices for orthopaedics review at Ballarat Health Services dated 21 November 2022 (T38) and 20 December 2022 (T40);

    ·An appointment notice for MRI of spine at Ballarat Health Services dated 22 December 2022 (T41);

    ·Report from Mr Sheriff, physiotherapist documenting assessment and proposed treatment dated 29 December 2022 (T42);

    ·Letter from Dr Jabbarpour dated 6 January 2023 (T43);

    ·Discharge summary Royal Melbourne Hospital dated 18 February 2023 (T45)[5];

    [5] The same document appears as T47.

    ·Notice of planned spinal surgery from Royal Melbourne Hospital 20 February 2023 (T47);

    ·Medical certificates from Dr Jabbarpour dated 25 October 2018; 6 February 2020; 13 February 2023 (T49);

    ·Report from Dr Jabbarpour and referral for management plan dated 17 March 2023 (A1 and A2);

    ·Report from Dr Jabbarpour dated 18 May 2023 (A4);

    ·Discharge summary dated 16 August 2023 (A6);

    ·Record of spinal surgery dated 1 March 2023 (A7);

    ·Health Professional Advisory Unit Report (HPAU Report) dated 10 October 2023 (R4).
     

    The Tribunal also considered:

    ·Employment Services Assessment Reports (ESARs) dated 5 September 2013 (T5), 21 February 2020 (T19) and 2 February 2022 (T20);

    ·A Medical Eligibility Assessment Report dated 13 December 2019 (T18);

    ·Job Capacity Assessment Reports (JCARs) dated 3 August 2010 (T3) and 13 September 2022 (T33).

    ISSUES

14. The issues for the Tribunal to determine are:

    (i)the relevant period for Mr Emery’s claim;

    (ii)whether Mr Emery has a physical, intellectual or psychiatric impairment under s 94(1)(a) of the Act; and, if so,

    (iii)whether Mr Emery has a physical, intellectual or psychiatric impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and, if so,

    (iv)whether Mr Emery also has a ‘continuing inability to work’ as defined in the Act as required by s 94(1)(c) of the Act.

    (i) The relevant period

15. The Social Security (Administration) Act 1999 (‘Administration Act’) relevantly provides, at cl 4(1) of sch 2:

    (1) If:

    (a)a person … makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment (emphasis added).

16. As the date of Mr Emery’s claim is 6 June 2022, the period for assessing the Applicant’s entitlement to DSP is, therefore, the 13-week period from that date until 11 September 2022 (the relevant period).

17. In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle as discussed in Re Fanning and Secretary, Department of Social Services [2014] AATA 447, and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 that medical reports that come into being after the relevant period will only be relevant to the extent that they refer to a person’s condition during the qualification period. In the case of Mr Emery there are some conditions that were only diagnosed after the relevant period eg the spinal condition and the Carpel Tunnel Syndrome. However, there are a number of reports, particularly those written by Mr Emery’s GP, Dr Jabbarpour, after the relevant period but relate to his conditions during the relevant period.

    (ii)Does Mr Emery have a physical, intellectual or psychiatric impairment?

18. Mr Emery has a number of medical conditions. In his application for a DSP, he listed the following:

    ·Ischaemic heart disease,

    ·COPD (Chronic Obstructive Pulmonary Disease),

    ·Depression/anxiety,

    ·Asthma,

    ·A number of other physical conditions, namely:

    oFacet arthritis,

    oBilateral knee pain,

    oBilateral finger paresthesia [sic], and

    oAdductor tendinosis [sic].

19. The application for a DSP was refused on 16 September 2022 and on 29 November 2022, an ARO affirmed the original decision (T39, 115). The ARO found that Mr Emery had the following conditions:

    ·Ischaemic heart disease and COPD (referred to as COAD) but that the conditions were not fully treated and stabilised and so could not be assigned an impairment rating;

    ·Bilateral knee and low back pain (facet joint arthritis) and Carpal Tunnel Syndrome but these conditions were still being treated and so could not be assigned an impairment rating; and

    ·Anxiety and depression which had not been fully diagnosed as there was no evidence that Mr Emery had been seen by a psychiatrist or clinical psychologist (as required by the Impairment Table dealing with Mental Health Function) and therefore no impairment rating could be assigned.

    The ARO concluded that Mr Emery was not eligible for a DSP as he did not have an impairment rating of 20 points or more under the Impairment Tables.

20. On 1 March 2023, the AAT1 affirmed the ARO decision (T2, 25). The following medical conditions were referred to:

    ·     Cervical spine disturbance – the Tribunal noted that Mr Emery had recently had surgery but the Tribunal could not find any evidence that this condition had been diagnosed at the time of the original application for a DSP and so no impairment rating could be assigned;

    ·     Ischaemic heart disease – the Tribunal accepted that Mr Emery had suffered a heart attack in 2018 but concluded that in the absence of any specialist cardiac advice it was not possible to say that this was contributing to ongoing chest pain. The absence of specialist advice meant that the condition was not fully diagnosed, treated and stabilised;

    ·     Respiratory disorder – the Tribunal noted that Mr Emery had had asthma since childhood and the diagnosis by his GP of COPD based on radiological evidence, but noted that he had not seen a respiratory specialist and so the condition could not be considered fully treated and stabilised;

    ·     Psychological disturbance – the Tribunal noted that that there was no evidence that Mr Emery had seen a psychiatrist or clinical psychologist (as required under the Impairment Tables) and so could not be assigned an impairment rating.

    The Tribunal concluded that Mr Emery’s medical conditions attracted an impairment rating of 0 points under the Impairment Tables. The Tribunal did note that Mr Emery could reapply for a DSP with further up to date medical evidence in particular relating to his cervical spine condition and respiratory disorder.  

21. The Secretary accepts that Mr Emery’s spinal condition, ischaemic heart disease, COPD and asthma, and mental health conditions are impairments. The Tribunal finds that those conditions, and the other physical conditions (facet arthritis, bilateral knee pain, bilateral finger paraesthesia and abductor tendinosis) are impairments and that s 94(1)(a) of the Act is satisfied.

    (iii)Does Mr Emery have an impairment rating of 20 or more points under the Impairment Tables?

22. Under s 94(1)(b) of the Act, Mr Emery’s medical conditions must attract an impairment rating of at least 20 points according to the Impairment Tables set out in the 2011 Determination.

1. As noted above, to apply the Impairment Tables, s 6(3) of the 2011 Determination provides that the condition must be considered ‘permanent’ and more likely than not, in light of available evidence, to persist for more than 2 years. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised (ss 6(4), (5) and (6) of the 2011 Determination) during the relevant period.

2. It is necessary to consider each of Mr Emery’s medical conditions and then consider which, if any, Tables apply. It is then necessary to assess the level of functional impact under the relevant Table.

   Spinal condition

3. Mr Emery underwent spinal surgery around the time of the AAT1 hearing. There is a reference to ‘low back pain’ in a medical certificate from Dr Jabbarpour dated 8 August 2016 (T9, 51). A medical certificate from Dr Jabbarpour dated 3 June 2022 (T23, 77) noted ‘a history of Low back pain. A recent CT scan has show [sic] facet arthritis, Foraminal narrowing and canal stenosis’. There is no record of the CT scan referred to by Dr Jabbarpour. A CT scan dated 7 November 2022, does document a cervical spine condition although this is several months after the relevant period. A discharge summary from the Royal Melbourne Hospital (RMH) dated 18 February 2023 notes that Mr Emery presented with acute neck pain and that an MRI demonstrated ‘C3/4 disc herniation with signal change in cord’(T45, 10-131). It also noted that Mr Emery was insistent on being discharged to return to Ballarat to care for his young child. It appears that he was readmitted about a week later for surgery. A discharge summary from the RMH dated 1 March 2023 documents ‘C3/4 and C5/6 +/- C4/5 Anterior Cervical Discectomy and Fusion’ (A7).

4. A report prepared by the HPAU dated 7 September 2023 for Services Australia notes that Mr Emery may well have had cervical spine issue prior to the end of the qualification period but as this had not been indicated in the available medical evidence the condition could not be treated as fully diagnosed during the relevant period. The author of the report notes that attempt were made to obtain additional information from Dr Jabbarpour but that phone calls and fax requests had not been answered. The Tribunal notes that the incomplete nature of the medical records is unfortunate. 

5. In the absence of evidence about the onset of this condition, The Tribunal must find, reluctantly, that the spinal condition was not fully diagnosed during the qualification period. It is therefore not possible to assign a rating under the Impairment Tables.  

   Heart disease

6. The medical certificate from Dr Jabbarpour dated 3 June 2022 documents ‘an AMI [heart attack] in 2018 resulting in hospital presentation….. I understand that he is still symptomatic and awaiting cardiologist review’ (T23, 77). The Tribunal finds and the Secretary accepts that Mr Emery did have ischaemic heart disease at the relevant time.

7. The next issue is whether this condition is fully treated and fully stabilised. In order to assess whether a condition is fully diagnosed, treated and stabilised, it is necessary to consider: what treatment or rehabilitation has occurred (s 6(5)(b) of the 2011 Determination); whether treatment is still continuing or is planned in the near future (s 6(5)(c) of the 2011 Determination); and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years (s 6(6)(a) of the 2011 Determination).

8. In that same medical certificate and in relation to treatment that has occurred, Dr Jabbarpour notes that Mr Emery has been prescribed various medications – Statin, B-blocker, GTN and anti-platelet. In a letter dated 6 January 2023 to Services Australia, Dr Jabbarpour states ‘I understand he is still symptomatic with recurrent chest pains and I have referred him to and advised him to see the cardiologist. This condition definitely limits his ability to sustain work’ (T43, 124).

9. The evidence relating to cardiology treatment is patchy. There are no reports from cardiologists although there is a referral from Dr Jabbarpour to Dr Chaudhary, cardiologist dated 4 July 2019 (T14, 56) that notes that Mr Emery ‘has not had very constant cardiology follow up’ since his heart attack. The report by HPAU (R4) also refers to details from the Ballarat Hospital cardiology clinic referring to a letter by Dr Natarajan, cardiologist dated 12 March 2019 (not included in the Tribunal documents) that stated it was challenging to determine the nature of the reported chest pain. The HPAU report also refers to refers to a phone appointment with Dr Zeitsen on 14 June 2022 and a subsequent stress myocardial perfusion study, although the outcome is not included in the medical history. The HPAU report notes that according to the Ballarat Hospital notes, Mr Emery failed to attend several clinic and echocardiogram appointments, and was not contactable by phone.

10. The evidence relating to treatment for the heart condition suggests that further treatment ie cardiologist review, has been recommended by his GP – referred to in the medical certificate dated 3 June 2022 (T23, 77) and again in the latter dated 6 January 2023 (T43,124). The report by the HPAU (R4) also indicates that Mr Emery has not been very compliant with his cardiac medications. It seems likely that both his failure to attend specialist appointments and his lack of compliance with medicines are due, in part, to his mental health issues.

11. In any event, even if it could be said that the heart condition was fully treated and stabilised, it is not clear that the heart condition impacts his functionality. According to the HPAU report, the Ballarat Hospital notes indicate that Mr Emery’s chest pain was not likely to be cardiac in origin. It notes that ‘The myocardial perfusion study did not show any ischaemic changes and his stress ECG and left ventricular post-stress systolic function was normal’ (R4, 3). On that basis the Tribunal finds that no points can be assigned under the Impairment Tables for Mr Emery’s heart condition.   

    COPD and asthma

12. Mr Emery gave evidence in AAT1 that he had had asthma since childhood (T2, 32). A report from Dr Ruan dated 14 December 2015 (T6, 47) documents asthma with an onset date given as 2010 and states that Mr Emery was not suitable to work in dust environment. The medical certificate from Dr Jabbarpour dated 3 June 2022 (T23, 77) and letter dated 6 January 2023 (T43,124) refer to a history of asthma ‘and recently diagnosed COPD’. The HPAU report refers to a chest scan on 19 May 2022 that had shown a severe degree of COPD (R4, 4). It seems to have been accepted by Dr Jabbarpour and the author of the HPAU report that Mr Emery’s asthma and his COPD are related, or at least that they both impact his functionality. The Secretary accepts and the Tribunal finds that Mr Emery’s conditions relating to his respiratory function are fully diagnosed during the relevant period.

13. It is therefore necessary to consider whether the two conditions have been fully treated and stabilised. In relation to treatment, Dr Jabbarpour has prescribed a range of inhalers: ICS/LABA (inhaled corticosteroid/long-acting beta agonist combination), SABA (short acting beta agonist) and LAMA (long-acting anticholinergic/muscarinic receptor antagonist) inhalers. However, according to the HPAU report Mr Emery’s PBS records indicate that he had not been very compliant in accessing the medications (R4, 4).  

14. The HPAU report notes that Mr Emery’s Medical Benefit Scheme (MBS) records do not show any appointments with respiratory specialists, although it is noted that appointments through a public hospital might not be recorded in the history (R4, 4). The Secretary also notes that, according to Mr Emery’s own evidence at the AAT1 hearing, he has never seen a respiratory specialist (SFIC, 10).

15. There is no evidence that Mr Emery’s GP, Dr Jabbarpour had referred him to a respiratory specialist during or before the relevant period. Presumably, Dr Jabbarpour believed that the condition could be controlled by the medications he prescribed. Mr Emery’s poor compliance with the care plan devised by his GP is problematic, but it is not clear that a respiratory specialist would be able to do much more than prescribe inhalers that his GP could and did prescribe. The Tribunal also notes that Dr Jabbarpour states that ‘The shortness of breath will limit his ability to work and I don’t see him recovering from these in the foreseeable future’ (T43, 124). On that basis it can be said that any additional treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next 2 years. The Tribunal therefore finds that the asthma and COPD conditions can be regarded as fully treated and stabilised. It should be noted that Dr Jabbarpour has now referred Mr Emery to a respiratory specialist (letter dated 18 May 2023) at the RMH (A6) but this does not alter the fact that the conditions are unlikely to improve to a significant degree.

16. It is therefore necessary to consider the Impairment Tables. The most appropriate Table is Table 1 – Functions requiring Physical Exertion and Stamina. Table 1 of the Impairment Tables, like the other Tables, lists 5 possibilities:

    (a)     No functional impact (0 points);

    (b)     Mild functional impact (5 points);

    (c)      Moderate functional impact (10 points);

    (d)     Severe functional impact (20 points); and

    (e)     Extreme functional impact (30 points).

17. The item dealing with severe functional impact seems most appropriate:

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 evidence relating to the functional impact of these conditions comes from Dr Jabbarpour, who appears to have been Mr Emery’s primary health carer since 2016. Dr Jabbarpour has written at least five reports in support of Mr Emery’s application for a DSP. The first, dated 3 June 2022 (T23) notes the various conditions and, in respect of the asthma and recently diagnosed COPD, notes that these conditions cause dyspnoea on exertion. The report also notes significant unintentional weight loss over the preceding year and states that ‘he is quiet (sic) emaciated and gaunt at the moment’. The report also states ‘altogether, I don’t think Mr Emery will be able to return to gainful employment at the moment and I believe he would be eligible for DSP’ (T23, 77-78). The second report is in a letter written following the rejection of Mr Emery’s application, dated 4 November 2022 (T34,109). It notes that he is suffering from multiple medical conditions. It also notes that ‘he needs significant help with his daily life, care cleaning and meal preparation’ and that ‘he is unable to look after himself plus cannot afford medications with the lack of support’. It concludes that he is unable to work ‘at the moment and for the foreseeable future’ and Dr Jabbarpour hopes the DSP will be approved (T34, 109). Although this letter is written after the relevant period it is not suggested that the asthma and COPD conditions have changed. The third report is also a letter to Services Australia dated 6 January 2023 again responding for a request for more medical information (T43). In relation to asthma and COPD, Dr Jabbarpour notes: ‘The shortness of breath will limit [Mr Emery’s] ability to work and I don’t see him recovering from these in the foreseeable future’. He also refers again to the significant unintended weight loss. The letter refers to future review by a specialist but notes ‘I don’t see it resolving anytime in the foreseeable future and it will limit his ability to do physical work’. Dr Jabbarpour concludes ‘Mr Emery has had many issues for more than 18 months and in my opinion he may not recover from these over the next 24 months’ (T43, 124-5). The fourth report is also a letter to Services Australia dated 17 March 2023 re the DSP application (A5). It notes that a chest CT scan regarding the unexplained weight loss indicated severe COPD suggesting that the two conditions are linked. Dr Jabbarpour notes that this limits his abilities further and he concludes that he does not see him returning to gainful employment.  The fifth report is also a letter to Services Australia dated 18 May 2023 (A8). This letter largely repeats the situation of each of the conditions noted in the original medical certificate dated 3 June 2022. Dr Jabbarpour concludes: ‘Altogether and generally speaking, I don [sic] not believe that Mr Emery will improved [sic] significantly for the foreseeable future (including the next 2 years) and I do not believe he will be able to hold gainful employment; therefore I support him being granted the disability pension’ (A8).   

2. The Secretary relies on assessments carried out by Services Australia in relation to the DSP application – a JCAR dated 13 September 2022 (T33,100), as well as an ESAR dated 2 February 2022 (T20, 70). It is noted that both of these assessments were carried out as file assessments as Mr Emery did not attend or make himself available by telephone. The JCAR notes that attempts to contact Mr Emery by telephone were unsuccessful. The ESAR report notes that Mr Emery was not happy about proceeding with the assessment and ‘became quickly agitated’. There are other aspects of these reports that are of concern. The ESAR report states that Mr Emery has an education level of year 10 and that the client had been ‘working in the past two years less than 8 hpw’. An earlier face to face assessment (5 September 2013 – T5, 42) recorded an education level of Year 8. Mr Emery gave evidence to the Tribunal that he had not worked for many years. He told the Tribunal that he last worked as a security guard, but the reports indicate he has also worked in garbage and recycling.

3. The JCAR notes:

   The client has permanent conditions which impact on his endurance, mobility and ability to perform physical tasks, also his motivation, mood and ability to cope with stressors. A work capacity of 8-14 hours per week is recommended due to the implications on obtaining and sustaining employment.

   The report does go on to say that this may improve to 15-22 hours in the future. The ESAR notes that Mr Emery’s ‘permanent medical conditions are likely to have a continuing impact on his work capacity… due to limitations in endurance, confidence and concentration levels, and capacity to engage in physical activities’. Both reports suggest his capacity for work is very limited.

4. Mr Emery gave evidence about what he can and cannot do. He said he can shower on his own using a walking frame but is unable to do other tasks relating to daily living, such as cooking or housework. He can drive to the local supermarket which is 5 minutes away but has trouble driving for more than 10-15 minutes. Mr Emery gave evidence that he had recently relocated to Queensland (with his ex-partner and child) but said he managed this by stopping frequently to complete the trip. He gave evidence to AAT1 that he is unable to hold his infant son. Although some of Mr Emery’s evidence was unsatisfactory and often self-serving, the evidence of his GP, Dr Jabbarpour is sufficient for the Tribunal to find that he usually experiences symptoms (e.g. shortness of breath) when performing light physical activities and, due to these symptoms, he is unable to perform light day to day household activities; and 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. The appropriate rating for this condition is therefore severe – 20 points.  

   Mental health conditions

5. There is documentary evidence of mental health conditions dating back as far as 2010. A medical certificate from Dr Z Ahmed, GP dated 10 July 2013, indicated Mr Emery suffered from depression and PTSD (post-traumatic stress syndrome) and had been referred to Mr G Egan a psychologist (T4, 41). There is no evidence that Mr Emery attended Mr G Egan. A letter from Dr L Ruan, GP dated 14 December 2015, reported he had had depression since 2010 (T6, 47). Dr Jabbarpour his long-term GP referred him to a psychiatrist, Dr Proctor on 31 October 2016 (T10, 52) but there is no evidence that he attended Dr Proctor. The HPAU report (R4) notes that Mr Emery’s MBS history does not show any claims for attendances with a psychiatrist or clinical psychologist during the period from 1 July 2012 to 21 June 2023 although it notes that if these were performed through a public hospital they might not be indicated in this history. A letter from Ms Livingston, psychologist written to the Magistrates Court dated 24 July 2019 (T16, 59) stated that Mr Emery had significant health and mental health symptoms as a result of personal stressors and that she had seen him on two occasions. The purpose of the consultations was to assist in finding employment, presumably following incarceration. The HPAU report also notes that Mr Emery’s Ballarat Hospital notes indicate that he was seen by a psychiatrist when he wanted to discharge himself after his heart attack in October 2018, but no further details were provided (R4, 5). The report also refers to a letter from Dr Natarajan dated 12 March 2019, that refers to ‘past and present unacceptable behaviour towards healthcare providers’ (R4, 5) but this letter is not included in the documents available to the Tribunal. Mr Emery gave evidence that he had seen a psychiatrist, Dr Cranage, in Ballarat but this was not corroborated by any documents.

6. There is no clear record of Mr Emery being prescribed antidepressants and antianxiety medications but according to the HPAU report referring to his Pharmaceutical Benefits Scheme (PBS) history indicates that his use of such medications had been spasmodic (R4, 5).

7. There is no doubt that Mr Emery suffers from mental health conditions, and that he has had significant trauma in his life including the violent death of a housemate (which he referred to in oral evidence), the sudden death of his father (noted in the ESAR dated 5 September 2013 (T5)) and a period of incarceration that included a prison riot (HPAU report (R4, 4) referring to a letter dated 29 April 2016 from the Court Integrated Services Program).  However, in order to assign a rating under the Impairment Tables, Table 5 relating to Mental Health Function requires that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). In the absence of evidence by an appropriately qualified psychiatrist or clinical psychologist, it is not possible to assign a rating under Table 5 for this condition.

   Other physical conditions

8. Mr Emery suffers from a number of other physical conditions, namely bilateral knee pain; bilateral finger paraesthesia; abductor tendinosis; facet arthritis and unexplained weight loss.

9. In relation to knee pain, in the report dated 3 June 2022, Dr Jabbarpour documents that Mr Emery had pain in both knees and that x-rays had shown bilateral degenerative changes (T23, 77). Letters written after the qualifying period confirm the diagnosis. A letter from Dr Jabbarpour dated 4 November 2022 (partially illegible) states that Mr Emery had chronic pain in his legs due to osteoarthritis (T34, 109). A letter dated 6 January 2023 from Dr Jabbarpour confirms the bilateral knee pain (T43, 124). The Secretary accepts and the Tribunal finds that the knee condition is fully diagnosed.

1. In relation to treatment, the letter from Dr Jabbarpour dated 4 November 2022 states that his arm and legs conditions have been refractory to treatment, but that he was awaiting specialist review perhaps referring to the wrist condition (T34, 109). It is not clear what treatments (if any) have been suggested for the knee pain. In his letter dated 6 January 2023, Dr Jabbarpour notes that his knees condition ‘will further limit his ability to work and I don’t see him recovering any time soon from this pain’ (T43, 124). Even if the condition is accepted to be fully treated and stabilised it is not clear that the knees condition causes any additional functional impact over and above the impact of his COPD. Therefore, no additional rating will be assigned as a result of the knees condition.

2. In relation to bilateral finger paraesthesia, Dr Jabbarpour noted in the report dated 3 June 2022, that it was suggestive of carpal tunnel syndrome (‘CTS’) (T23, 77). An ultrasound of the right wrist on 7 June 2022 showed thickening of the median nerve with features consistent with CTS (T26, 92). A letter from Dr Jabbarpour dated 6 January 2023 (T34, 109) noted CTS but also possible radicular symptoms from the cervical spine and that he had been referred to a specialist. A medical certificate from Dr Jabbarpour dated 13 February 2023 (T49, 142[6]) reported a diagnosis of CTS and noted that referrals for surgery, physiotherapy and pain management had been made. This indicates that at the relevant time the condition had not been fully diagnosed, treated and stabilised. No points can be assigned under the Impairment Tables.

   [6] The same medical certificate without the Applicants Customer Reference Number is included at T49, 143.

3. In relation to adductor tendinosis, the report dated 3 June 2022 from Dr Jabbarpour documents chronic right hip/groin pain which had recently been diagnosed as abductor tendinosis (T23, 77). A letter dated 29 December 2022 from A Sheriff noted constant pain affecting the majority of his body as well as weight loss. He referred to the need for ‘a multidisciplinary approach with more pharmacological management, psychological support regarding his beliefs and fear avoidance and long-term physiotherapy to develop general strength and conditioning’ (T42, 123). There is no evidence to indicate that any of these plans had been put in place. On that basis, the Tribunal accepts that the condition of adductor tendinosis is fully diagnosed but not fully treated or stabilised at the relevant time. No points can be assigned under the Impairment Tables.

4. In relation to facet arthritis the report by Dr Jabbarpour dated 3 June 2022 (T23, 77) states that Mr Emery had a history of low back pain. He notes that ‘a recent CT scan has show [sic] facet arthritis, Foraminal narrowing and canal stenosis’. In his letter dated 6 January 2023 (T43, 124), Dr Jabbarpour notes that Mr Emery has been referred to physiotherapy under a chronic disease management plan. No further evidence of this condition is available although as noted above, Mr Emery underwent spinal surgery in early 2023. This indicates that at the relevant time the condition relating to the back and neck pain was not fully diagnosed. No points can be assigned under the Impairment Tables.

5. In relation to Mr Emery’s unexplained weight loss, the report by Dr Jabbarpour dated 3 June 2022 (T23, 77) stated that Mr Emery had significant weight loss, and looked emaciated and gaunt. The ARO decision dated 29 November 2022 indicates that Mr Emery told the officer that he had lost 24 kgs since his heart attack in 2018 (T39, 119). A GP management plan prepared by Dr Jabbarpour dated 17 March 2023 indicates Mr Emery is 166cm in height, weighs 50.4 kgs and has a BMI of 18.3 (A2). A letter from Dr Jabbarpour dated 17 March 2023 (A1) also refers to a chest CT scan regarding the weight loss which indicated severe COPD suggesting that the two conditions may be related. This indicates that at the qualifying period the weight loss condition was not fully diagnosed. No additional points can be assigned to this condition.

   Total Impairment Rating

6. The Tribunal determines that Mr Emery has the following impairment ratings:

   ·     20 points under Table 1 for the COPD condition.

   This gives a total rating of 20 points. This means that Mr Emery has satisfied the requirements of s 94(1)(b).

   iv. Does Mr Emery also have a ‘continuing inability to work’?

7. Under s 94(1)(c) Mr Emery must have a ‘continuing inability to work’ because of the impairments. Under s 94(2) the test differs depending on whether the person has a ‘severe impairment’. Under s 94(3B) a ‘severe impairment’ means an impairment of 20 points or more under a single Impairment Table. The requirements are:

   ·     In cases where the person’s impairment is not a ‘severe impairment’ the person must have actively participated in a POS (s 94(2)(aa)); and

   ·     in all cases, the impairment must prevent the person from doing any work independently of a POS whether skilled or unskilled within the next two years (s 94(2)(a)); and

   ·     in all cases, the impairment must also prevent the person from undertaking a training activity during the next two years (s 94(2)(b)).

   As noted above, ‘work’ means work that is of at least 15 hours per week at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5)).

8. Mr Emery does have an impairment rating of 20 points under a single Table. This means it is not strictly necessary to consider whether Mr Emery has actively participated in a POS as required by s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The requirement is that the person must have actively participated in a POS for at least 18 months within the period of 36 months ending immediately before the day on which the claim for a DSP is made. However, for completeness, it is noted that Mr Emery would have satisfied this requirement. As Mr Emery lodged his claim for DSP on 6 June 2022, he would have had to have participated in a POS for at least 18 months (547 days) in the period 5 June 2019 to 5 June 2022. According to the POS calculation (T50, 144), Mr Emery had 822 days of active participation in that period, and so would have satisfied s 94(2)(aa).

9. In relation to the continuing inability to work requirement under s 94(2)(a) and (b), the Tribunal must be satisfied that Mr Emery’s impairments prevent him from doing any work, or training activity independently of a POS whether skilled or unskilled within the next two years. The JCAR dated 13 September 2022 (T33,100) (completed as a file assessment) concludes that ‘a work capacity of 8-14 hours per week is recommended due to the implications on obtaining and sustaining employment’, although it notes that with interventions, ‘it is anticipated that the client may better manage his capacity for work and be able to sustain performing 15-22 hours.

10. However, the person who has had most contact with Mr Emery is less optimistic. Dr Jabbarpour wrote on 3 June 2022 (T23, 77): ‘Altogether I don’t think that Mr Emery will be able to return to gainful employment at the moment’ and he believed he should be eligible for the DSP. In his letter dated 4 November 2022 (T34, 109), he wrote that Mr Emery ‘is unable to work at the moment and for the foreseeable future’ and said he would appreciate if Mr Emery could be approved for the DSP. In the letter dated 6 January 2023 (T43, 124) Dr Jabbarpour refers to Mr Emery’s inability to do physical work but also more generally refers to an ‘inability to sustain work’. He concludes that Mr Emery has had many issues for more than 18 months and in his opinion may not recover over the next 24 months. In his letter dated 17 March 2023 (A1), he writes: ‘As stated before, I do not see him returning to gainful employment’.  In the letter dated 18 May 2023 (A4), he writes: Altogether and generally speaking, I don [sic] not believe that Mr Emery will improved (sic) significantly for the foreseeable future (including the next 2 years) and I do not believe he will be able to hold gainful employment’. There is clearly an exasperation that he has had to write the same letter on numerous occasions. The Tribunal accepts the evidence of Mr Emery’s GP that he is unlikely to work again.

11. The Tribunal finds that Mr Emery’s impairments prevent him from doing any work of at least 15 hours per week for the next two years. Mr Emery has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

    CONCLUSION

12. The Tribunal finds that Mr Emery did satisfy ss 94(1)(a), (b) and (c) of the Act during the relevant period. As a result, Mr Emery did meet the qualification requirements for DSP at the date of claim on 6 June 2022.

    DECISION

13. The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 1 March 2023 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 6 June 2022.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Professor O’Connell

.................[sgd].......................................................

Associate

Dated: 11 January 2024

Date(s) of hearing:	13 December 2023
Applicant:	Self-represented
Advocate for the Respondent	Ms Kathryn Lieschke of Sparke Helmore Lawyers