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

Evans and Secretary, Department of Social Services (Social services second review) [2017] AATA 183 (16 February 2017)
Division:GENERAL DIVISION
File Number: 2016/4484
Re:Tammy Evans
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member R W Dunne
Date:16 February 2017
Place:Adelaide

The Tribunal affirms the decision under review.
.......................[Sgd]......................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions benefits and allowances – claim for disability support pension rejected – review of decision at first review requested – physical, intellectual or psychiatric impairment – whether an impairment rating of 20 points or more existed under the Impairment Tables – reports of treating doctor, pain management specialist and neurologists considered – Job Capacity Assessment report considered – whether continuing inability to work – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), Clause 4(1) of Schedule 2
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re 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 (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member R W Dunne
16 February 2017
INTRODUCTION

Tammy Evans is the applicant in this case. She lodged a claim for disability support pension (“DSP”) on 1 December 2015. The claim was rejected by the respondent (“Centrelink”) and a review by an authorised review officer (“ARO”) later affirmed the decision.
The applicant then applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) for review. When she said there was not enough evidence about her medical condition, the applicant subsequently applied to this Tribunal for review of the decision of the AAT1.
At the hearing before me, Ms Evans represented herself and the respondent was represented by Mr A Burgess from Sparke Helmore, Lawyers. I admitted into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·report from Professor Paul Rolan, Pain Management Specialist dated 21 October 2016;[2] and
·report from Dr Simon Vanlint, Treating Doctor dated 14 November 2016.[3]
[1] Exhibit R1.
[2] Exhibit R2.
[3] Exhibit R3.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are:
(a)Whether, as at the date of the applicant’s claim for DSP (or within 13 weeks of that date), the applicant had a physical, intellectual or psychiatric impairment.
(b)If so, whether the applicant’s impairment(s) attracted an impairment rating of at least 20 points under the Impairment Tables.
(c)If so, whether the applicant had a continuing inability to work.
LEGISLATION
The legislation relating to claims for DSP and the reference to the Impairment Tables is set out in the provisions of s 94 of the Social Security Act 1991 (“Act”), which relevantly reads:
“Qualification for Disability Support Pension
(1)    A person is qualified for disability support pension if:
(a)    the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)      one of the following applies:
(i)   the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d)    the person has turned 16; and
(da)    in a case where the following apply:
(i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e)    the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)   is not an Australian resident; and
(B)   is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea)    one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
(2)    Continuing inability to work
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)    the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)    If:
(a)    a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;and
(c)the person is not a reviewed 2008-2011 DSP starter;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
(3B)    Severe impairment
A 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.
(3C)    Active participation in a program of support
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
(4)    Doing work independently of a program of support
A 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 such a program of support provided occasionally; or
(c)      is likely to need such a program of support that is not ongoing.
(5)    Other definitions
In this section:
…
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)    is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)    education;
(b)    pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
work means 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.
…”
Also relevant in these proceedings is clause 4(1) of Schedule 2 to the Social Security (Administration) Act, 1999 (“Administration Act”), which reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained 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.”
The provisions in clause 4(1) of the Administration Act mean that the applicant’s qualification and impairment ratings must be determined as at the date of her claim, and the only exception is where she is not qualified at the date of claim but “will … become qualified” and “becomes so qualified” within 13 weeks of lodging her claim (see re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs;[4] re Harris v Secretary, Department of Employment and Workplace Relations[5]). In the present case, the start-day is the day the applicant became qualified. In applying clause 4(1), the applicant’s qualification for DSP is to be determined during the period 1 December 2015 to 1 March 2016 (“Relevant Period”).
[4] [2012] AATA 922.
[5] (2007) FCA 404.
IMPAIRMENT TABLES
Subsection 94(1)(b) of the Act refers to the Impairment Tables. The Impairment Tables themselves are contained in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination 2011”). This Determination 2011 has been made pursuant to s 26(1) of the Act and relevantly reads:
“6.     Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)    An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example:     A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)    the condition has been fully treated; and
Note:For fully diagnosed and fully treated see subsection 6(5).
(c)    the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)    whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)    whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)    significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:For reasonable treatment see subsection 6(7).
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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
7         Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
8         Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note:Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9         Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10       Selecting the applicable Table and assessing impairments
Selection steps
(1)       Table selection is to be made by applying the following steps:
(a)      identify the loss of function; then
(b)      refer to the Table related to the function affected; then
(c)      identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11       Assigning an impairment rating
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5)To avoid doubt, 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.
…”
PROGRAM OF SUPPORT

Subsection 94(2)(aa) of the Act refers to a program of support. The requirements for determining whether a person has actively participated in a program of support are contained in Social Security (Active Participation for Disability Support Pension) Determination 2014 (“Determination 2014”). This Determination 2014 relevantly reads:
“Part 1—Preliminary
1 Name
This is the Social Security (Active Participation for Disability Support Pension) Determination 2014.
2 Commencement
This instrument commences on the day after it is registered.
3 Authority
This instrument is made under subsections 94(3C) and (3E) of the Social Security Act 1991.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 Definitions
(1)      In this instrument:
Act means the Social Security Act 1991.
designated provider means any of the following:
(a)      a Job Services Australia provider;
(b)      a Disability Employment Services provider;
(c)      an Australian Disability Enterprise;
(d)any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
program of support has the meaning given by subsection 94(5) of the Act.
relevant period means:
(a)in relation to a person (other than a reviewed 2008-2011 DSP starter) whose impairment is not a severe impairment—the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person; or
(b)in relation to a person who is a reviewed 2008-2011 DSP starter and who:
(i)     is participating in a program of support at the time the person becomes a reviewed 2008-2011 DSP starter; or
(ii)    was participating in a program of support at any time during the period of 6 months before the person becomes a reviewed 2008-2011 DSP starter;
the period of 36 months starting on the day the person begins the program of support; or
(c)in relation to any other reviewed 2008-2011 DSP starter—the period of 36 months starting on the day the person is notified in writing that the person has become a reviewed 2008-2011 DSP starter.
reviewed 2008-2011 DSP starter has the meaning given by subsection 94(5) of the Act.
severe impairment has the meaning given by subsection 94(3B) of the Act.
(2)To avoid doubt, for the purposes of paragraph (b) of the definition of relevant period, a person may be participating in a program of support at a time:
(a)whether or not the person is actively participating in the program at that time in accordance with section 7 of this instrument; and
(b)even if the person is not participating in the program at that time as a result of an exemption, relief or suspension from the program.
6 Requirements and matters to be taken into account
(1) Part 2 specifies requirements for subsection 94(3C) of the Act.
Note 1:Subsection 94(3C) of the Act provides that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C).
Note 2:A person whose impairment is not a severe impairment and certain reviewed 2008‑2011 DSP starters are required to have actively participated in a program of support (see paragraph 94(2)(aa) of the Act).
(2)Part 3 sets out, for subsections 94(3D) and (3E) of the Act, matters that the Secretary must take into account in deciding whether he or she is satisfied that a person has actively participated in a program of support within the meaning of subsection 94(3C) of the Act.
Part 2—Requirements for active participation
7 Requirements for active participation
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i)       complied with the requirements of the program of support; and
(ii)       participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note:A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)         the duration of the program of support was less than 18 months; and
(b)         the person completed the entire program during the relevant period.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of support if:
(a)at the end of the relevant period, the person is participating in the program of support; and
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
Information required to be provided to the Secretary
(6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following information in relation to the program of support:
(a)the details of the designated provider of the program;
(b)the dates when the person started to participate in the program and, if applicable, ceased to participate in the program;
(c)the reason for ceasing to participate in the program (if any);
(d)any period during which the person did not participate in the program, including as a result of any exemption, relief or suspension from the program;
(e)the reason for any period during which the person did not participate in the program;
(f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g)the terms with which the person had to comply in order to satisfy the requirements of the program and the level of compliance with those terms;
(h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i)the frequency of contact that the person had with the designated provider of the program.
8 Periods of non participation not to count
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program.
Part 3—Matters to be taken into account in assessing active participation
9 Matters to be taken into account relating to the program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a)was provided by a designated provider; and
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work (including self-employed work); and
(d)       includes at least one of the following activities:
(i)       job search;
(ii)       job preparation;
(iii)      education and training;
(iv)      work experience;
(v)       employment;
(vi)      return to work;
(vii)     vocational or occupational rehabilitation;
(viii)    injury management;
(ix)an activity designed to assist the person to prepare for, find or maintain work.
10 Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must take into account any relevant material or document that:
(a)       relates to the person’s participation in a program of support; and
(b)      relates to a program of support participated in during the relevant period.”
MATERIAL FACTS
The material facts in the present case are largely not in dispute. For the most part, they have been extracted from the respondent’s statement of issues, facts and contentions (“SOFIC”). Nevertheless, I am satisfied of the material facts on the balance of probabilities.
On the material available, the applicant signed her claim form on 30 November 2015. There were no disabilities listed by the applicant in the claim form. A medical report in relation to her claim was signed by her treating doctor (Dr Simon Vanlint) on 29 May 2015.[6] The medical conditions set out in this report were hemiplegic migraine (as Condition 1) and chronic low back and hip pain – secondary to lumbar scoliosis (as Condition 2). The only other condition mentioned in the report was asthma, which was described as a condition generally well managed and that caused minimal or limited impact on ability to function.
[6] Exhibit R1 T24 p178-188.
In a Job Capacity Assessment completed on 27 January 2016,[7] the assessor considered the conditions of migraine, asthma, spinal disorder (scoliosis), depression and urinary incontinence. In relation to the applicant’s migraine condition, the assessor found this condition was permanent and fully diagnosed, but was not fully treated or stabilised due to insufficient corroborating evidence, and the applicant was awaiting further specialist review. The asthma was found to be permanent but, due to the lack of medical evidence, was not considered to be fully diagnosed, treated and stabilised. The applicant’s spinal condition was also considered to be permanent and fully diagnosed, but not fully treated and stabilised, due to insufficient corroborating evidence. As there was no evidence showing a diagnosis confirmed by a psychiatrist or clinical psychologist, the depression was not considered fully diagnosed, treated and stabilised. The assessor considered the applicant’s urinary incontinence to be a temporary condition.
[7] Exhibit R1 T25 p189-195.
On 2 March 2016, the applicant was notified of Centrelink’s decision that she did not have an impairment rating of 20 points or more. On 20 April 2016 the ARO affirmed the decision, essentially on the same bases reached by the Job Capacity assessor.
On 22 July 2016, the AAT1 reviewed and affirmed the ARO’s decision. In reaching its decision, the AAT1 found:
(a)It was not satisfied on the current evidence that the applicant’s condition involving hemiplegic migraines/headaches and associated neurological symptoms is fully diagnosed, fully treated and fully stabilised, or that it was in a position to make an assessment of the severity of the condition.
(b)The lumbar scoliosis condition is fully diagnosed, treated and stabilised. It was awarded 5 impairment points under Table 4, spinal function, based on the difficulty of bending to the knee level.
(c)Until the depression condition is confirmed by either a clinical psychologist or psychiatrist, and the probable effects of all reasonable treatments are known, an impairment rating cannot be given specifically under Table 5 for mental health function.
(d)The stress incontinence cannot be considered fully treated and stabilised and cannot be given an impairment rating.
The AAT1 found that the applicant’s total impairment rating was 5 impairment points under Table 4 of the Impairment Tables.
EVIDENCE
Evidence of Applicant
It was the applicant’s evidence that the most serious condition she had was a rare right-sided hemiplegic migraine, with stroke-like symptoms. With this condition she suffered temporary paralysis on one side of her body. With the paralysis she had muscle spasms. She could not move her arms and her fingers locked. She referred to an incident at the West Lakes shopping centre, where with her paralysis she found she was unable to move her legs, she had a migraine and could not speak or be understood. With her migraine headaches she was sensitive to loud noise, to loud music and to certain foods. She was taking and continued to take numerous tablets for her condition, but they were not doing any good.
She said she had undertaken personal research about migraine headaches, but there was not enough information available about the rare condition she suffered from. She said there are specialists in London and New York who can help, but they are expensive and they do not travel. Their treatment itself is also expensive and she is unable to bear the costs of travelling to see them. She suffers considerable tension in her neck and along the side of her body. She is often fatigued and has to sleep for long periods. She is becoming increasingly frustrated and depressed at having to live the way she has been for a number of years.
Evidence of Dr Vanlint
Dr Vanlint is the applicant’s treating doctor. It was his oral evidence that he was familiar with the concept of the Impairment Tables and the descriptors in them. He said he was not sure he had seen the decision of the AAT1 that I was reviewing. However, he knew the applicant’s DSP claim had been denied and that she was taking it to the next stage. He had been advised that conditions of the applicant had been reviewed by the AAT1 and what impairment points had been assigned to them.
What the AAT1 Member (Dr Swanson) had said about the applicant’s migraine condition was read to Dr Vanlint. The member said:
“Hemiplegic migraine is a rare condition where a person has weakness on one side of the body and sometimes other neurological symptoms associated with the headaches. The severity of any resulting impairment may vary greatly between individuals depending on the frequency and nature of the migraines in each individual. The condition of, hemiplegic migraines is one that may respond well to medication and avoidance of triggers.
Taking all of this into consideration the tribunal is not satisfied of the current evidence that Ms Evans’ condition involving headaches and associated neurological symptoms is fully diagnosed, fully treated and fully stabilised.
The tribunal considers there needs to be a specialist neurological report that gives a clear opinion on the diagnosis, whether all appropriate treatments have been tried the severity or otherwise of any resulting impairment, and the likely prognosis and effects on work capacity.”[8]
[8] Exhibit R1, T2 p 9.
Dr Vanlint was asked if he was able to help in relation to whether the applicant’s conditions were fully diagnosed, fully treated and fully stabilised. In response, in relation to her migraine:
(a)He said he thought being fully diagnosed is hard to sustain. He referred to the reports and diagnoses of Dr Boundy and Professor Koblar, who were reputable neurologists. He also referred to the recent report from Professor Rolan, a clinical pharmacologist, who has a particular interest in migraine and had labelled the applicant as having what is referred to as “complicated migraine”. He said the applicant also had an appointment pending at the Royal Adelaide Hospital with the Professor of neurology there, Professor Thompson. Dr Vanlint then said he was not certain that one could sustain the assertion that the applicant’s condition is not fully diagnosed.
(b)He said being fully treated is somewhat more difficult. The applicant had had a number of both acute and preventative treatments. One treatment was recommended by Professor Rolan in his most recent letter. It was called a Cefaly device. He agreed that specialist treatment or advice was costly to applicants generally and this had imposed undue financial hardship on the applicant. In terms of being fully treated, he thought it was difficult to assert one way or the other, but he said the applicant had been very extensively treated and a genuine trial of the things had been offered and attempted.
(c)He said the applicant’s condition has not fully stabilised. If that were the case, there would not have been the need to seek further opinions, nor would so many different options have been offered.
In cross-examination by Mr Burgess, Dr Vanlint agreed that there had been a number of recommendations that Dr Boundy had given in 2014, in particular the referral to a psychologist (Joanne Sperou) in around May 2015. Dr Boundy had made the referral because she felt the applicant had a major depressive disorder and that that disorder was being worsened by her migraine. He agreed that Dr Boundy had suggested there wasn’t any medication or surgery she could recommend that the applicant take, but that she should be referred to a psychologist.
When Mr Burgess referred him to new treatments in the pipeline alluded to by Professor Rolan, Dr Vanlint said that, on the balance of probabilities, he did not think that something would become available within the next two years which would radically alter the status quo for the applicant and would be reasonably accessible to her.
In further cross-examination, Mr Burgess referred Dr Vanlint to his own report to the applicant of 14 November 2016 regarding her migraine and back conditions during the Relevant Period. In the report in relation to the migraine and Table 15, he said:
“Your condition does not fit precisely with any of the point categories, but the closest match would be moderate functional impact which equates to 10 points.”[9]
Dr Vanlint said that he was still of that opinion.
[9] Exhibit R3.
Other Medical Evidence
The applicant also provided medical reports from other specialists, such as Dr Boundy, and Professor Koblar, neurologists and Professor Rolan, pain management specialist. In a promising report of Professor Rolan dated 21 October 2016, he said: [10]
“Recently, quite a large clinical benefit in patients with migraine has been demonstrated by the anti-inflammatory cocktail of simvastatin and vitamin D. Given that she has tried most other alternative migraine therapies, I have given her a prescription to try this as well as trying vitamin B2 with proven benefit in migraine as well as the Cefaly device.
… currently I see her state as being disabled with little likelihood of her being able to carry out gainful employment of most types. However, I do not think this is necessarily the case for the long-term as migraine can come under very good control, especially with some dramatically new treatments in the pipeline…”
[10] Exhibit R2.
CONSIDERATION
During the Relevant Period, did the applicant have a physical, intellectual or psychiatric impairment?
In paragraph 4.24 of the respondent’s SOFIC, the Secretary accepts that during the Relevant Period the applicant suffered from:
·Scoliosis,
·Migraine,
·Depression,
·Urinary incontinence,
·Asthma.
In paragraph 4.23 of the respondent’s SOFIC, the Secretary accepts that during the Relevant Period the applicant had physical, intellectual or psychiatric impairments and satisfied subsection 94(1)(a) of the Act. I agree with this assessment.
Did the applicant’s impairments attract an impairment rating of at least 20 points under the Impairment Tables?

For Ms Evans to qualify for DSP, she must satisfy the relevant requirements of s 94 of the Act. She must be qualified for DSP on the date of her claim or within the period of 13 weeks following. This means she has to satisfy the relevant criteria in s 94 at any time during the Relevant Period, that is, the period between 1 December 2015 and 1 March 2016. One of the relevant criteria is whether she suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see subs 94(1)(b) of the Act). In this regard, the Rules for applying the Impairment Tables in Part 2 of Determination 2011 are relevant. Section 6(3) to s 6(6) of Part 2 relevantly require that:
(a) the person’s condition causing that impairment is permanent;
(b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than 2 years; and
(c)a condition is fully stabilised if 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 two years.
A medical report in relation to the applicant’s claim was signed by her treating doctor (Dr Simon Vanlint) on 29 May 2015. The medical conditions set out in the report were hemiplegic migraine and chronic low back and hip pain – secondary to lumbar scoliosis. The only other condition in the report was asthma, which Dr Vanlint described as a condition generally well managed and that caused minimal or limited impact on ability to function.
A Job Capacity Assessment report was completed on 27 January 2016. The assessor considered the conditions of migraine, asthma, spinal disorder (scoliosis), depression and urinary incontinence. The applicant’s migraine, asthma and spinal disorder were all considered to be permanent, but were not all fully diagnosed, fully treated and fully stabilised. As there was no evidence showing a diagnosis that had been confirmed by a psychiatrist or clinical psychologist, the applicant’s depression was not considered fully diagnosed, fully treated and fully stabilised. The applicant’s urinary incontinence was considered to be a temporary condition. As a result, no impairment points were assigned by the assessor under the Impairment Tables in respect of the conditions.
In the AAT1, Dr Swanson was not satisfied that the exact diagnosis for the migraine was known and he found there were difficulties determining the severity of the resulting impairment. He considered there needed to be a specialist neurological report that gave a clear opinion on the diagnosis. In relation to the applicant’s low back pain, Dr Swanson found that the condition was fully diagnosed, fully treated and fully stabilised, but only 5 impairment points were assigned under Table 4, spinal condition. Thus, the applicant’s total impairment rating was 5 points under the Impairment Tables and Dr Swanson therefore found that the applicant does not satisfy paragraph 94(1)(b) of the Act and does not qualify for a DSP.
In giving his oral evidence, Dr Vanlint was asked whether he thought the applicant’s conditions were fully diagnosed, fully treated and fully stabilised. Having regard to the report of Professor Rolan and the reports and diagnoses of Dr Boundy and Professor Koblar, he said he was not certain that one could sustain the assertion that the applicant’s migraine condition is not fully diagnosed. He said it was difficult to assert one way or the other that the applicant’s migraine had been fully treated. However, he said the applicant’s migraine condition had not been fully stabilised. If it had, there would not have been the need to seek further opinions from specialists.
When Dr Vanlint was referred to his report of 14 November 2016,[11] he acknowledged that he had said to the applicant, when she asked for assessments under Table 4 (spinal function) and Table 15 (functions of consciousness), that she did not consult him about her spine during the Relevant Period. Nevertheless, he believed that the condition would be classified as mildly impaired, which would result in assigning 5 impairment points. I note that this rating is the same rating that Dr Swanson had reached under Table 4 in his decision. In relation to her migraine, Dr Vanlint said that her condition did not fit precisely within any of the specific rating categories, but that the closest match would be moderate functional impact equating to 10 impairment points under Table 15.
[11] Exhibit R3.
Summary
In summary, having regard to Dr Swanson’s decision in the AAT1 and to the oral evidence of Dr Vanlint, it is my view that the applicant’s total impairment rating under the Impairment Tables would be 15 impairment points (in combination) under Table 4 and Table 15. As the applicant’s impairment rating does not reach the threshold of 20 points or more under the Impairment Tables, it follows that she does not satisfy subsection 94(1)(b) of the Act.
Did the applicant have a continuing inability to work?
As the requirements of subsections 94(1)(b) and (c) must cumulatively apply for a person to qualify for DSP, it is strictly not necessary for me to consider whether the applicant has a continuing inability to work. She simply does not satisfy both of those provisions.
As the applicant does not have a “severe impairment” under subsection 94(3B), it is not necessary for me to consider whether she has, pursuant to Determination 2014, “actively participated” in a program of support within the meaning of s 94(3C) of the Act.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

.....................[Sgd]...........................................
Administrative Assistant
Dated: 16 February 2017

Date(s) of hearing: 24 January 2017

Applicant: In person

Advocate for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 183

16 February 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date(s) of hearing:	24 January 2017
Applicant:	In person
Advocate for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers