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

Farmer and Secretary, Department of Social Services (Social services second review) [2018] AATA 4124 (2 November 2018)
Division:GENERAL DIVISION
File Number: 2018/2293
Re:Michael Farmer
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:2 November 2018
Place:Perth

The decision under review is affirmed pursuant to s 43(1)(a) of the Administrative Appeals Act 1975 (Cth).
.......................[sgd].................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – disability support pension – mental illness – lower leg injury – tumour – mental illness and leg injury fully diagnosed, treated and stabilised – tumour fully diagnosed – 10 impairment points – continuing inability to work – no participation in program of support – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)(a)
Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)
Social Security Administration Act 1999 (Cth) – s 179, Sch 2 cl 4 (1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Active Participation for Disability Support Pension) Determination 2014 – s 7(1), s 7(2)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(6), s 6(7), s 7, s 8, s 8(1), s 10, s 11, s 11(1)(c), Table 3.
REASONS FOR DECISION
Member C Edwardes
2 November 2018
THE APPLICATION

This is an application for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) which affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP).
INTRODUCTION
On 5 October 2016, the Applicant lodged a claim for Disability Support Pension (T14, 162-90), involving medical conditions – “injury to right femur bone and jaw bone; and right leg shorter than left due to 8 operations” (T14, 186).
The Applicant provided further information with supporting medical evidence claiming additional conditions – “hypertension; bipolar affective disorder; lower limb deficiencies; and TCC (transitional cell carcinoma) of the bladder; and OSA (obstructive sleep apnoea)” (T16, 193-202).
The claim was rejected by a Centrelink officer and the Applicant was advised of this rejection by letter dated 15 May 2017 (T19, 215). The reason for rejection of the claim was on the basis that the Applicant had failed to attain an impairment rating of 20 points or more.
The Applicant requested a review of the Centrelink officer’s decision. The review was undertaken by an Authorised Review Officer (ARO), and the Applicant received notification of this decision on 27 November 2017 (T23, 228-233).
The ARO made the following findings:
·“You have the following permanent condition: right leg disability related to a fractured femur.
·Your conditions of bi polar affective disorder and transitional cell carcinoma of the bladder are not accepted as being permanent as they have not been fully treated and stabilised.
·Your total impairment rating is 10 points.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment” (T23, 229).
As a result of the ARO’s decision, the Applicant lodged an application with AAT1 on 5 February 2018 (T25, 237).
In a decision dated 3 April 2018, AAT1 determined that, whilst the Applicant did generate 20 impairment points across 2 Impairment Tables, he did not have a severe impairment under a single table. In addition, there was no evidence to show he had completed a program of support (POS) prior to his claim being lodged, which is required under the social security legislation (T2, 10-12).
AAT1 concluded:
41After carefully considering all the information before it… Mr Farmer’s medical conditions attracted a total impairment rating of 20 points: 10 points under Table 3 and 10 points under Table 5. In light of the above the tribunal is satisfied that Mr Farmer meets the criteria in paragraph 94(1)(b) of the Act.
…
45… Mr Farmer had not been enrolled in a program of support prior to lodging the current claim for disability support pension; this being 5 October 2016.
46The legislation makes it clear that Mr Farmer ought to have been enrolled in a program of support prior to lodging a claim for the pension and actively participated in the program for at least 18 months or been terminated from further attendance due to his impairments during the relevant period applying to him. Having taken all this into consideration… the requirements for active participation in a program of support had not been met at the time of lodgement of this claim. This means that as per the legislative requirements Mr Farmer does not meet the criteria set out in paragraph 94(1)(c) of the Act.”
On 1 May 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of AAT1’s decision (T1, 1-2).
In the Applicant’s application for second review of decision, the Applicant stated:
“1, Decision I believe is wrong
2, It appears that there are significant variance in the opinions stated through out (sic) the review process.
3, Could I respectfully ask that if a further review is granted it is set for a date post my receiving all information I have requested under the Freedom of Information Act” (T1, 2).
The Tribunal has jurisdiction to hear this matter pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act1991 (Cth) (the Act) and the Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
(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) person has a continuing inability to work;
(ii) …
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”
Section 94(1)(b) of the Act obliges the Tribunal to determine whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
5 … The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
6 The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Section 6(5), s 6(6) and s 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. These sections fall under the heading “Applying the Tables.” Section 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that “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.”
Continuing inability to work
As set out above in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:
2A 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. (emphasis added.)
“Severe impairment” is defined in s 94(3B) of the Act:
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. (original emphasis.)
Section 94(3C) of the Act states that a person has actively participated in a POS if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require, generally, that a person is to participate in a POS for 18 months in the 36 months prior to the date of the relevant claim for DSP.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Sch 2 cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2 cl 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was lodged with Centrelink, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 5 October 2016 2016 to 3 January 2017 inclusive, and is known as the “Qualification Period”.
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]).
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).
ISSUES
The key issue for the Tribunal to determine is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of s 94(1) of the Act.
This requires consideration of whether at the time of the Qualification Period:
(a)the Applicant had a physical, intellectual or psychiatric impairment;
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a “continuing inability to work” as defined in s 94(2) of the Act.
EVIDENCE
The Tribunal has the following evidence before it:
·the T documents (T1 to T30,1-276) and the Supplementary T documents (ST1 to ST11,1-24) (Exhibit R1);
·the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R2); and
·the Secretary’s list of authorities (Exhibit R3).
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material will be analysed and referred to below.
The Secretary made the following contentions in respect of the Applicant’s medical conditions:
“Psychological conditions – Table 5
5.24The Secretary accepts the Applicant’s bipolar affective disorder was fully diagnosed during the qualification period.
5.25The Secretary accepts that the Applicant has a history of bipolar affective disorder but contends the Applicant’s bipolar affective disorder was not fully treated and fully stabilised during the qualification period and relies on the following in support of this contention:
a)The Secretary acknowledges the period in October 2015 when the Applicant was an inpatient at Graylands and Joondalup Health Campus and contends that following this period of hospitalisations it was recommended that the Applicant follow up with the local mental health service (ST9/20).
b)In a letter dated 19 January 2017, Dr Whittaker (general practitioner) reported that the Applicant had not yet been linked into the local services (T16/193).
c)Dr Whittaker reported to the Department verbally on 7 March 2017 that the Applicant is compliant with his medication but is not engaged with local services. Dr Whittaker recommended that the Applicant be referred to his local South West Mental Health Services and Dr Whittaker planned to refer the Applicant at the earliest opportunity (T17/204).
d)The Secretary acknowledges that the Applicant first presented to Dr Whittaker in October 2016 but contends that even the presentations to his general practitioner are “irregular” as described by Dr Whittaker (T17/204).
e)Clinical Practice Guidelines for the treatment of bipolar affective disorder endorsed by the Royal Australian and New Zealand College of Psychiatrists recommends pharmacological treatment and psychological treatment in the long-term management of bipolar disorder.
f)The Clinical Practice Guidelines note that the evidence for efficacy of psychological interventions for bipolar disorder is of low quality due to the small number of studies amongst other factors but goes on to report that:
There is Level 1 evidence for the effectiveness of structured psychological interventions as a set (group, individual and family- based) in preventing relapse of any kind, with one meta-analysis suggesting a 40% reduction in relapse compared to standard treatment alone…
g)In summation the Clinical Practice Guidelines conclude that ‘evidence suggests that a structured psychological intervention should be part of long-term management of bipolar disorder, but does not determine which particular therapy to offer’.
5.26The Secretary contends that the Applicant’s bipolar affective disorder cannot be considered to be fully treated and fully stabilised as the Applicant has not undertaken treatment recommended by his treating practitioners namely referral to Mental Health Services.
5.27The Secretary contends that the recommended treatment is reasonable treatment. As defined in section 6(7) of the Impairment Tables. That is, it is readily available to the Applicant at a reasonable cost, has a high success rate and can reliably be expected to result in a substantial improvement in functional capacity if undertaken.
5.28Further, there is no medical evidence that suggests that if such treatment were undertaken by the Applicant, that significant functional improvement would be unlikely to result within two years. To the contrary there is evidence that when the Applicant is compliant with the recommended treatment he is able to engage in full time employment as outlined at 5.29. Further, by the very nature of the proposed referral to engage in Mental Health Services it is contended that the Applicant’s treating practitioners expect that the Applicant will derive some benefit from the treatment.
5.29Further, the Secretary submits that when the Applicant is compliant with the recommended treatment including engaging in psychological treatment the Applicant’s condition is significantly improved such that the Applicant can engage in full time employment. The Secretary relies on the following in support of this contention:
a)Dr Black, consultant psychiatrist reported on 9 October 2003, that the Applicant ‘appeared to gain some benefit by attending groups’ (ST1/3).
b)Dr Black in a report dated 16 January 2004, reported that the Applicant ‘feels that cognitive behavioural therapy has helped him handle his problems better’. Dr Black also reported that the Applicant ‘has gone back to full time work’ and noted that the Applicant reported that he is ‘enjoying this and is finding he is able to let things go more easily’. Dr Black was ‘hopeful’ that the ‘CBT skills that he has learnt will help him avoid becoming overwhelmed like he has in the past’ (ST2/4).
c)Dr Black in a report dated 16 April 2004, reported that the Applicant ‘is usually a pleasant and cooperative individual, but on this occasion, was non compliant with medications…’ (ST3/5).
d)On 23 January 2007, Dr Chester, psychiatric registrar reported that the Applicant was not taking his medications at the time. Dr Chester prescribed Quetiapine and it was reported that ‘on review one week later, his mental state was much improved and he was sleeping well’. Dr Chester also reported that the Applicant had commenced full time employment (ST7/12).
e)The discharge summary from Joondalup Health campus dated 3 November 2015 reported that the Applicant has been ‘well for many years but stopped taking his regular medication ~ 2 years ago’. It was noted that the Applicant reported recent stressors which contributed to his current admission (ST8/15).
f)The Applicant has been engaged in full time employment for a significant period of time with the most recent period of employment being from at least 3 December 2012 to 9 June 2015… when his employment was terminated (T9/151 and T14/187).
5.30In the alternative, if the Tribunal finds that the Applicant’s mental health conditions were fully diagnosed, fully treated and fully stabilised during the qualification period, which is not conceded, then the Secretary contends that the impairment resulting from these condition is appropriately rated under Table 5 of the Impairment Tables. Table 5 is to be used where a person has a condition resulting in functional impairment due to a mental health condition. The Applicant’s corroborative medical evidence indicates that there is nil functional impact on activities involving mental health function.
5.31The Secretary contends that there is limited evidence of functional impairment during the qualification period and the Applicant’s impairment from his psychological conditions rated 0 points under Table 5 of the Impairment Tables. The Secretary contends that there is no corroborative evidence that the Applicant has difficulty with most of the descriptors under Table 5. The Secretary acknowledges the Applicant’s evidence to the AAT1 but contends that self- reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. This is in line with the introduction to Table 5.
5.32The Secretary acknowledges that on 21 September 2010, Dr Croot reported that the Applicant has ‘poor concentration’ (T6/134) and ‘difficulties interacting with others, unable to cope with stress, deadlines etc, irritable & prone to anger’ (T6/135) but contends that this does not evidence that the Applicant has difficulties with most (4 or more) of the descriptors. In addition, this report was provided more than six years prior to the Applicant’s claim for DSP. The Secretary relies on the evidence outlined at 5.33 in support of this contention.
5.33The Secretary further contends that there is no evidence that the Applicant’s psychological condition results in a “severe impairment” and relies on the following in support of this contention:
a)There is no evidence that the Applicant has difficult concentrating on any task or conversation for more than 10 minutes and to the contrary the Applicant attended the AAT1 hearing and gave evidence.
b)There is no evidence that suggests that the Applicant has any difficulties with self-care and to the contrary the discharge summary from Joondalup Health Campus dated 3 November 2015 reported that the Applicant presented on admission as ‘well groomed’ (ST8/16).
c)There is no evidence that the Applicant cannot live independently and to the contrary the discharge summary from Joondalup Health Campus dated 3 November 2015 reported that the Applicant was living in rental accommodation alone prior to his admissions (ST8/15).
d)There is no evidence that suggests that the Applicant has any difficulties with interpersonal relationships and the Secretary notes that the Applicant has children and the Applicant’s son attended the Joondalup Health Campus with the Applicant (ST8)
e)The Applicant was engaged in full time employment from at least 3 December 2012 to 9 June 2015 (T9/151 and T14/187).
5.34Accordingly, the Secretary contends that the impairment arising from this condition (if the condition is permanent which is not conceded) rates 0 points under Table 5 of the Impairment Tables.
Lower limb condition – Table 3
5.35The Secretary accepts the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the qualification period.
5.36The Secretary rejects the contention that Table 1 is the appropriate Table to assess the Applicant’s lower limb impairment and contends that Table 1 is to be used when performing activities requiring physical exertion or stamina.
5.37The Secretary contends that the impairment resulting from this condition is appropriately rated under Table 3 of the Impairment Tables. Table 3 is to be used where a person has a condition resulting in functional impairment when performing activities requiring the use of legs or feet. The Applicant’s medical evidence indicates that there is moderate functional impact on activities involving lower limb function.
5.38The Secretary contends that during the qualification period the Applicant’s impairment from his lower limb condition attracted a maximum of 10 points under Table 3 of the Impairment Tables and relies on the following in support of this contention:
a)Dr Croot in a report dated 21 September 2010 reported that the Applicant was ‘unable to walk long distances or remain on feet for prolonged periods. Difficulty negotiating stairs (T6/136) and ‘reduced endurance for walking / standing / sitting. Chronic pain’ (T6/137).
b)Dr Whittaker in a report dated 19 January 2017 reports the Applicant ‘cannot wear safety shoes and cannot sit or stand for prolonged periods. He walks with a distinct limp and toe walks on the right leg’ (T16/193). The Secretary acknowledges that this report is outside the qualification period but given the longstanding nature of the lower limb condition and the fact that Dr Whittaker has been the Applicant’s treating practitioner since October 2016, accepts that this evidences the Applicant’s impairment during the qualification period.
c)The Applicant reported the following to the JCA on 14 February 2017:
i.       he can walk 10 to 15 minutes but has difficulty walking around a supermarket to do a larger shop;
ii.      he can sit in a vehicle for approximately 30 minutes; and
iii.     he can stand for 5 to 10 minutes.
5.39The Secretary accepts that the Applicant met at least one of the factors set out under the criteria for a moderate functional impact during the qualification period and accordingly, the Applicant’s lower limb condition attracted a maximum of 10 points under Table 3 of the Impairment Tables.
5.40The Secretary contends that the Applicant cannot be assessed as having an Impairment rating higher than 10 points under Table 3 on the basis that:
a)There is no evidence that the Applicant is unable to do any of the following as required by the 20 point criteria set out under the requirements of a severe functional impact:
i.       walk around a shopping centre or supermarket without assistance;
ii.      walk from the car park into a shopping centre or supermarket without assistance;
iii.     stand up from a sitting position without assistance; and …
b)Further, there is no evidence that in addition to being unable to do any of the above the Applicant requires assistance to use public transport. To the contrary the JCA assessor, a registered occupational therapist, reported in the JCA assessment dated 8 March 2017 that the Applicant was ‘able to use public transport/motor vehicle’ (T18/210).
5.41Accordingly, the Secretary contends that the impairment arising from this condition rates a maximum of 10 points under Table 3 of the Impairment Tables.
Other conditions
5.42The Secretary contends that the Applicant’s other conditions of transitional cell carcinoma of the bladder, infrequent episodes of asthma, sacroiliitis, hypertension and obstructive sleep apnoea are not fully diagnosed, fully treated and fully stabilised and do not attract an impairment rating under the Impairment Tables.
5.43In relation to the Sacroiliitis condition the Secretary contends that the date of onset of this condition was 21 January 2018 as reported by Dr Pillai (T24/235) and cannot be considered to be fully diagnosed, fully treated and fully stabilised during the qualification period.
5.44The Secretary contends that there is minimal corroborative medical evidence of the above conditions and further there is no corroborative evidence of the functional impact on the Applicant from these conditions. The Secretary also notes that the Applicant gave evidence to the AAT1 that he is not experiencing any symptoms due to the transitional cell carcinoma of the bladder and he is not troubled by the asthma condition (T2/10 at [38])” (R2).
HEARING

The application for review was heard in Perth on 15 October 2018. The Applicant appeared by telephone. The Respondent was represented by Ms Jones-Bolla from Sparke Helmore, who appeared in person.
The Tribunal would like to thank the parties for the assistance they provided during the hearing.
The Respondent opened by relying on its Statement of Facts, Issues and Contentions (R2), and contended that the relevant Qualification Period was 5 October 2016 to 3 January 2017.
The Respondent submitted that the Applicant had not completed a POS and therefore needed 20 impairment points from a single table to qualify for DSP.
The Respondent also contended that the Applicant has work capacity of 8 to 14 hours per week, and this capacity is not expected to change within two years with intervention (R2, 20).
The Respondent submitted the mental health condition was accepted as being fully diagnosed, but not fully treated and stabilised; the lower limb condition as fully diagnosed, treated and stabilised, with an impairment rating of 10 points and the other medical conditions as having minimal corroboration and therefore not fully diagnosed, treated and stabilised.
In cross-examination, the Applicant gave the following evidence in regards to the claimed psychological condition:
·He confirmed he has had a mental health condition for over 30 years.
·He agreed that his attendance of a cognitive behavioral therapy group had been of assistance.
·He confirmed that cognitive behavioral therapy had enabled him to deal with his issues in a better way and that it assisted him going back to work.
·He had been employed in the mining and oil industry.
·He confirmed the report from Dr Ancy (Consultant) Psychiatry in 2015 to his GP, Dr Hernaman, recommending that he needed ongoing care with the local community mental health services (ST9, 20).
·He confirmed that Dr Whittaker stated he had to be referred to South West Mental Health Services at the earliest opportunity.
·He said he did not undertake treatment from community mental health services because he felt he had been able to satisfactorily manage his cognitive behavior.
·He stated he had always been compliant with his treatment.
·He stated he lived independently on his own.
·He did his own shopping, did some voluntary work and used the community library.
·His concentration had more good periods than lapses.
·He is estranged from his ex-wife and three children.
The Applicant gave the following evidence in regards to his lower limb condition in his cross-examination:
·He agreed that during the Qualification Period he was able to drive his motor vehicle.
·He agreed again that during this period he was able to catch public transport.
·However, he did say that whilst he was able to catch public transport, he did so with emotional and physical difficulties.
The Tribunal found the Applicant to be a truthful witness who has experienced some trauma during his life.
CONSIDERATION
The Tribunal finds that the Qualification Period for the Applicant’s claim for DSP is for the period beginning 5 October 2016 and ending 3 January 2017.
The Tribunal will now consider all of the relevant evidence before it, both written and oral, from the Applicant and Respondent.
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
The Tribunal notes that it is not in dispute that the Applicant suffers from Bipolar Affective Disorder and functional impairment to his lower limb.
There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from the abovementioned conditions. The reports also detail what can be classed as “other conditions” suffered by the Applicant, such as transitional cell carcinoma of the bladder, asthma, sacroiliitis, hypertension, and obstructive sleep apnoea.
The Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Psychological Conditions
The Applicant told AAT1:
26.…that he had struggled with symptoms of the bipolar disorder for the past 30 years and these included periods of depression, periods of hypomanic behaviour, poor sleep and intense anxiety. He has… developed poor concentration, poor memory and difficulty following instructions. He has trouble absorbing new information and has difficulty with judgement and decision making processes. He avoids crowds because he has trouble interacting appropriately with people and he prefers to keep busy but has had trouble remaining in employment during the last few years. He has worked full time in the past in the mining and gas industry but this has been increasingly difficult recently due to the combination of his psychological and physical limitations (T2, 8).
On the basis of the evidence before it, the Tribunal accepts that the Applicant suffers from the condition of Bipolar Affective Disorder.
The Tribunal notes medical reports dating back to 2003 from Dr Black, a Consultant Psychiatrist, and reports from the Joondalup Health Campus and Graylands Hospital which state that the Applicant has a long history of mental illness, involving recurrent severe depressive illness, psychosis, bipolar disorder, delusion and suicidal thoughts (ST1-10, 1-22).
Additionally, the Tribunal notes the Applicant’s medical certificate from Dr Hernaman, dated 30 August 2010, stating the Applicant suffered from a permanent Bipolar Affective Disorder condition, displaying bouts of severe depression and irritability (T5, 132).
The Tribunal notes the medical report for DSP by Dr Croot, dated 21 September 2010, which states the Applicant had “past manic and depressive episodes, with brief psychosis” resulting in symptoms of “depressive episodes, anger and irritability, difficulties coping with stress, poor concentration and sleeping difficulties” (T6, 134). The report also stated the Applicant had “difficulties interacting with others, unable to cope with stress deadlines etc. Irritable and prone to anger”.
The Tribunal notes similar medical reports (T7), the Job Capacity Assessment Report of 15 October 2010 (T8) and T9, T10, T11, T12 and T16, which outline in detail symptoms suffered by the Applicant in respect of this condition. These documents reflect the symptoms detailed above.
The Tribunal notes the JCA Report of 8 March 2017 (T18, 206). It notes the condition had its genesis in 1984-1985. It states 5 hospital admissions have occurred over time and the Applicant is prone to “recurrent relapses”, which impact on his capacity for long term work. These relapses have resulted in hospitalisation.
The Tribunal notes that this is a long standing condition; however, the Applicant is not currently connected with local community mental health services. For this reason the JCA report determined that whilst the condition is permanent and fully diagnosed, it cannot be assessed as fully treated and stabilised (T18, 207). The JCA report of 13 June 2017 arrived at the same conclusion (T20, 219).
The Tribunal notes the ARO review outcome which stated: “Dr Whittaker indicated your future planned treatment would involve a referral to the local community mental health team” (T23, 230).
The Tribunal accepts that the Applicant has yet to connect with local community mental health services. The Applicant confirmed this and stated he could better manage this condition on his own. However, the Tribunal is of the view that this treatment is an important component to his better outcomes and notes the Applicant has stated that in the past he has felt much better having participated in such therapy.
Given the history of this condition, the Tribunal notes the Applicant has undergone decades of treatment for this medical condition. The Tribunal is of the view that the Applicant requires ongoing treatment with local community mental health services in order to improve his quality of life and potentially improve his employment prospects. The Tribunal notes Dr Whittaker proposes to refer the Applicant to the South West Mental Health services at the earliest opportunity (T17, 204).
The Tribunal is satisfied that this condition is fully diagnosed, but not that it is fully treated and stabilised.
Lower limb condition
The Tribunal notes the Respondent accepts this condition as fully diagnosed, treated and stabilised.
The Tribunal notes the Applicant told AAT1:
33.… the history of the injury and subsequent surgeries he underwent that has now resulted in his right leg being considerably shorter that his left. He cannot wear a prosthetic shoe and he walks on the toes of his right foot; this affects balance and mobility. He is unable to walk far and can only stand for about five minutes because he has difficulty with maintaining his balance. He can drive and does not use a walking aid or a wheelchair. He had been living in a backpacker’s hostel at the time he lodged the current claim for the pension and had been managing most activities of daily living on his own albeit with some difficulty (T2 9).
The Tribunal notes that on 30 August 2010, Dr Hernaman in Medical Certificate stated that the Applicant suffered from “chronic pain to malunion fo (sic) fractured right femur”. This was described as a permanent condition with symptoms of impact on gait and mobility, “[causing] disturbed sleep and lethargy” (T5, 132).
The Tribunal notes that in a report by Dr Croot, dated 21 September 2010, the condition was caused by the Applicant falling through a roof and fracturing his right femur in 1993. His treatments have included internal and external fixations, bone grafts, and the implant of a titanium shaft in 2001.
The Tribunal notes the report indicates that the Applicant suffers from hip and thigh pain, is unable to walk long distances and has difficulty climbing stairs or standing for long periods of time.
The Tribunal notes the JCA report concluded this condition was not expected to significantly improve (T8, 143).
The Tribunal notes the medical report of 19 January 2017 from Dr Whittaker stating: “Mick also has a significant right leg disability related to a # femur that resulted in surgery complicated by a leg length discrepancy. Last surgery related to this was in 2000 but he has about 8 separate surgeries for his right leg … He cannot wear safety shoes and cannot sit or stand for prolonged periods. He walks with a distinct limp and toe walks on his right leg” (T16, 193-4).
The JCA report of 8 March 2017 recommended the condition was fully diagnosed, treated and stabilised and generated an impairment rating of 10 points under Table 3 (T20, 220). This was also confirmed in the JCA report of 13 June 2017 (T18, 211).
The Tribunal notes the ARO report of 27 November 2017 confirmed the assessment of the JCA reports (T23, 230).
Having assessed all the medical and other evidence before it the Tribunal accepts this condition is fully diagnosed, treated and stabilised. The Tribunal notes the Respondent submits this condition is fully diagnosed, treated and stabilised and generates an impairment rating of 10 points.
The Tribunal determines this condition generates an impairment of 10 points under Table 3.
Other conditions
The Tribunal notes the Applicant also suffers from the following medical conditions:
·asthma;
·hypertension;
·transitional cell carcinoma (TCC) of the bladder;
·obstructive sleep apnoea (OSA); and
·sacroiliitis.
The Tribunal notes the asthma condition is described as infrequent and episodic with very little functional impact other than coughing, wheezing and shortness of breath (T6, 138).
The Tribunal notes the JCA report of 8 March 2017 which states the condition of TCC is permanent and fully diagnosed (T18, 208). It appears several surgeries occurred to remove the tumour. The report indicates the Applicant is unclear as to whether “he has the ‘all clear’ for this condition” as he had not returned for recommended specialist review (T18, 208).
The JCA report of 13 June 2017 confirmed the above view (T23, 230).
The Tribunal notes the condition of sacroiliitis and the date of onset being 21 January 2018 (T24, 235). The Tribunal determines this condition as outside the Qualification Period for the purpose of this application.
The Tribunal finds that, apart from the TCC condition, there is very little evidence to make a proper assessment of the remaining conditions. For this reason the Tribunal finds the conditions of asthma, hypertension and OSA as not fully diagnosed, treated and stabilised.
Whether the Applicant has a continuing inability to work
The Tribunal finds the Applicant has a total of 10 points under Impairment Table 3, and therefore, the Applicant fails to satisfy s 94(1)(b) of the Act.
Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act.
DECISION
For the reasons given above, the Applicant does not qualify for DSP. The decision of the AAT1 is affirmed.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.......................[sgd]................................................
Administrative Assistant - Legal
Dated: 2 November 2018

Date of hearing: 15 October 2018

Applicant: Self-Represented

Counsel for the Respondent: Ms Jones-Bolla

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 4124

2 November 2018

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	15 October 2018
Applicant:	Self-Represented
Counsel for the Respondent:	Ms Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore