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

Fishlock and Secretary, Department of Social Services (Social services second review) [2017] AATA 3041 (24 November 2017)
Division:GENERAL DIVISION
File Number: 2016/4462
Re:Gillian Fishlock
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member R W Dunne
Date:24 November 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 – physical, intellectual or psychiatric impairment – whether an impairment rating of 20 points or more under the Impairment Tables – medical reports – Job Capacity Assessment reports – whether continuing inability to work – whether applicant actively participated in a program of support – 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 2011 & Determination 2014
REASONS FOR DECISION
Senior Member R W Dunne
24 November 2017
INTRODUCTION

Gillian Fishlock is the applicant in this case. When she made a claim for disability support pension (“DSP”) and it was rejected by the Department of Social Services (“Centrelink”) she applied to the Administrative Appeals Tribunal (at first review)(the “AAT1”).
The AAT1 affirmed Centrelink’s decision to reject the claim, but in so doing assigned a total of 15 impairment points under the Impairment Tables.
The applicant applied to this Tribunal for review of the decision of the AAT1.
At the hearing before me by telephone, the applicant represented herself and was supported by her friend, Jenny Everett. Centrelink was represented by Ms E Moran from Sparke Helmore, Lawyers. I admitted into evidence the T Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975,[1] together with the following exhibits:
·medical report from Dr Susan Crail, consultant nephrologist, dated 3 November 2016;[2] and
·medical report of Dr Damian Ochigbo dated 13 November 2016.[3]
[1] Exhibit R1.
[2] Exhibit F1.
[3] Exhibit F2.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the AAT1’s decision, made on 20 July 2016 to affirm the decision of Centrelink, was the correct or preferable decision. The consideration of this issue involves the following questions:
(a)Whether the applicant had physical, intellectual or psychiatric impairments (see paragraph 94(1)(a) of the Social Security Act 1991 (“the Act”)). On the material available, it is clear that the applicant satisfies this question.
(b)Whether these impairments attracted an impairment rating of at least 20 points under the Impairment Tables (see paragraph 94(1)(b) of the Act).
(c)Whether the applicant had a continuing inability to work (see subparagraph 94(1)(c)(i) of the Act).
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 (the “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 (the “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 Schedule 2 to 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. As the applicant had contacted Centrelink regarding the making of a claim for DSP on 6 July 2015, s 13 of the Administration Act operated to deem the date of claim as 6 July 2015. In applying clause 4(1) of Schedule 2 to the Administration Act, the applicant’s qualification for DSP is to be determined during the period 6 July 2015 to 5 October 2015 (the “Qualification 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”). Determination 2011 has been made pursuant to s 26(1) of the Act and it 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”). 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 this 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.
The applicant signed her DSP claim form on 20 July 2015. As she had contacted Centrelink on 6 July 2015 about lodging her claim, she is deemed to make her claim on 6 July 2015. She listed disabilities of renal failure, due to polycystic kidneys, and asthma in question 83 of the claim form. A medical report in relation to her claim was signed by Dr Ochigbo on 22 July 2015. The medical condition set out in this report (as Condition 1) was end stage renal failure with clinical features of polycystic kidney disease and hypertension. The other medical conditions set out in the report that were generally well managed and caused minimal or limited impact on ability to function were hypertension, PTSD and COAD. Another medical report was provided by her renal physician, Dr Susan Crail. This appears to have been dated 23 July 2015 and similar disabilities were set out in the report.
Job Capacity Assessment reports were completed on 3 November 2015 and 4 December 2015. The first assessment was by telephone and the second assessment was by file. The first assessment report referred to a medical certificate completed by Dr Crail dated 27 October 2015 which verified that the applicant was diagnosed with polycystic kidney disease causing end stage renal failure needing dialysis. Another medical certificate completed by Dr Colombaarachchi dated 28 November 2014 confirmed that the applicant underwent a left nephrectomy in November 2014. The assessor indicated the applicant stated that she has been feeling improved since starting dialysis. She said she is able to drive and can do light shopping on her own, but needs a rest every afternoon. She also said she relies on her friends when she needs to do larger shopping and for gardening and some house cleaning.
In relation to the medical certificate completed by Dr Crail, the applicant’s condition of post-traumatic stress disorder was assessed as permanent. But the condition was not fully diagnosed, treated or stabilised as there was no corroborating evidence from a clinical psychologist or psychiatrist.
In the second assessment report the applicant’s kidney disorder was assessed as permanent and fully diagnosed, but not fully treated or stabilised. The applicant had commenced dialysis and further improvements in her functioning were expected. In relation to PTSD, the condition was assessed as permanent, but not fully diagnosed, treated or stabilised as there was no corroborating evidence from a clinical psychologist or psychiatrist. In relation to hypertension, the condition was assessed as permanent, but not fully diagnosed, treated or stabilised as there was insufficient medical evidence available.
On 7 January 2016, an Authorised Review Officer (“ARO”) advised the applicant that her claim for DSP had been rejected as she did not have an impairment rating of 20 points or more under the Impairment Tables. On 20 July 2016, the AAT1 reviewed and affirmed the ARO’s decision. In reaching its decision, the AAT1 found the following:
(a)In relation to the renal failure, this condition was considered to be fully diagnosed, treated and stabilised. Taking into account the functional impact on activities requiring physical exertion or stamina at the time the applicant made her claim, the AAT1 found that there was a moderate functional impact on activities and considered it appropriate to assign an impairment rating of 10 points under Table 1.
(b)In relation to depression and PTSD, at the time the applicant made her claim she managed looking after all aspects of household duties, including paying bills. She could concentrate and she would occasionally go out for coffee with friends. The AAT1 concluded that this condition had been fully treated and stabilised, and there was a mild functional impact on activities involving mental health function. The AAT1 considered it appropriate to award an impairment rating of 5 points under Table 5.
(c)In relation to COAD, the AAT1 noted in the medical report completed by Dr Ochigbo that this condition was well managed and caused minimal or limited ability to function. As the AAT1 had already awarded an impairment rating of 10 points under Table 1, this impairment rating also covered the functional impact of the COAD condition.
(d)In relation to back pain, the AAT1 concluded that this condition had not been fully treated and stabilised and therefore no impairment rating was able to be assigned under the Impairment Tables.
(e)In relation to hypertension, the AAT1 noted from the medical report completed by Dr Ochigbo that the condition was well managed and caused minimal or limited impact on ability to function. The AAT 1 concluded that it was not appropriate to consider this as a separate condition to the renal failure.
The AAT1 found that the applicant’s medical conditions attracted a total impairment rating of 15 points under Table 1 and Table 5 of the Impairment Tables. In these circumstances she did not satisfy s 94(1)(b) of the Act, which requires a minimum of 20 points. So, she was not qualified for DSP at the date of her claim.
EVIDENCE
Evidence of Ms Fishlock
In giving her evidence the applicant said that she thought Dr Crail’s letter dated 3 November 2016 would be enough for her to get the DSP. She said she believed that she would be assigned 20 points under the Impairment Tables. She said she lived in Ceduna and public transport there was unavailable. She could only walk 20 meters and would have to rest, even on a good day.
In looking at Table 1 on page 37 of the T documents, the applicant commented on the 20 point rating for severe functional impact. She said she could not walk into her supermarket and she could not perform light day-to-day household activities. In relation to her renal failure condition, the applicant noted that the AAT1 had assigned 10 points under Table 1. She said this rating was not enough. When referred to the report of Dr Ochigbo, she said that he did not know her as well as Dr Crail did. Dr Ochigbo had only brief glimpses of her polycystic kidney condition. Because of a cyst blockage, the whole of her kidney had been removed.
When referred again to the 20 point rating for Table 1 on page 37 of the T documents, the applicant said that she could walk around a shopping centre or supermarket without assistance. She said she would wait and then go in for one item at a time. She said she could not push a trolley in the supermarket, but could walk there without assistance. She would go in to the supermarket and then go back to her car. Then, in relation to paragraph (1)(a)(ii) of the 20 point rating, the applicant said she needed help to get into the supermarket. A friend would walk with her and hold her hand, in assistance. When asked if there was public transport available, she said that she could not use it.
The applicant was referred to the decision of the AAT1 at pages 10 and 11 of the T documents. In paragraph 14 on page 10, it is said that when she made her claim for DSP she could manage the basic household duties more effectively, although with difficulty. When questioned, the applicant said that she needed help with large jobs. She said she also needed help with smaller jobs, 10 to 20 percent of the time. She said her condition had deteriorated and her red blood cells needed stimulation.
In paragraph 17 on page 11 of the T documents, it is said that the applicant would occasionally go out for coffee with friends. In response to this, the applicant said that her friends came to her place for coffee.
The applicant said that she was training for dialysis independently in October 2015. She trained at the Royal Adelaide Hospital as an in-patient and as an out-patient. The training sessions went for about two hours initially, then 2 to 3 times a day. It would take her 30 to 45 minutes to set up the dialysis and it would take the same time to pack up the machine. She said she was a teacher for twenty years until 2012 and she stopped work in June 2015. She worked for Mission Australia from January 2015 to June 2015. Her health was not good enough, but she would have probable stayed longer.
Evidence of Dr Crail
When Dr Crail gave her evidence by telephone she was referred to her report dated 3 November 2016.[6] She was referred to parts of Table 1 and Table 5 of the Impairment Tables and was questioned about them. In answering, Dr Crail said that the Tables do not apply to individual patients very well. With the applicant, her medical problems had been accumulating for a long time. It was 16 October 2015 when the applicant had a catheter inserted for dialysis. She said the applicant had surgery in November 2015 and there was also removal of all of her kidney. She said that in July 2015 the applicant had end stage kidney disease, she was anaemic, had shortness of breath and was losing her strength. From July 2015 the applicant’s kidney function progressively worsened. She was on a 2 year waiting list for transplantation and Dr Crail did not know when this would occur.
[6] Exhibit F1.
When questioned further about the Impairment Tables, Dr Crail said that it was difficult to fit the applicant’s kidney medical condition into Table 1. When she was referred to the medical report of Dr Ochigbo that the applicant had moderate functional impact on activities, she said the impact that affected the applicant was more than moderate. Although she did not have Table 1 before her, she said that the worst time for the applicant was leading up to dialysis. It was difficult for the applicant with dialysis because it was ongoing, there were no breaks and it was life limiting. When Ms Moran asked her about any decline in the applicant’s level of functioning, Dr Crail said there were ups and downs in function changes. Dr Crail said that she came to Ceduna for consultation with the applicant, who travelled to the appointments herself. When asked whether there was some improvement in the applicant’s life since dialysis, Dr Crail said that if dialysis treatment had not started the applicant would be dead. She said that, more recently, the applicant could walk on her own to or around shopping centres, but this was not the case in July to October 2015. She said the applicant would or could drive to the supermarket and then walk in. In relation to training for dialysis, Dr Crail said that the applicant required manual dexterity and good eyesight.
Evidence of Ms Everett

In giving her evidence, Ms Everett said that she was not giving it as a psychologist, but as a friend and in support of the applicant’s claim. Her evidence was about what she had seen in relation to the applicant’s medical conditions. She said her evidence was as she had indicated in her witness statement. The applicant’s health had deteriorated for as long as her claim for DSP had progressed. The applicant had had the polycystic kidney diagnosed for many years, which then caused a range of medical problems that led to its removal. The remaining kidney began to deteriorate and it is now believed that her remaining kidney is working at about 1 percent capacity. She said there are a lot of other very debilitating issues that go with the kidney problem.
CONSIDERATION
Was the AAT1’s decision, made on 20 July 2016 to affirm the decision of Centrelink, the correct or preferable decision?
When lodging her application for review of the decision of the AAT1 in August 2016 Ms Fishlock said the reasons why she disagreed with the decision were because:
“All of my conditions were not accounted for because all information was based on 12 months ago. My circumstances have changed since then.”
As Ms Moran submitted, the issue before the Tribunal is whether the applicant was eligible for DSP during the Qualification Period, which was the period between 6 July 2015 and 5 October 2015. In making her claim Ms Fishlock suffered from a number of conditions. These include polycystic kidney disease, post-traumatic stress disorder, chronic obstructive airways disease, back pain and hypertension. In giving her evidence, it is clear that the applicant’s polycystic kidney disease and the resulting renal failure is the condition that most affects her daily life.
Ms Moran said that, as Ms Fishlock has not completed 18 months of active participation in a program of support, she has to be able to demonstrate that one of her conditions results in an impairment rating of at least 20 points under one Impairment Table. Ms Moran then contended that none of the applicant’s conditions sufficiently impact her functioning so as to attract that level of rating. On the material available, I agree with this contention.
Ms Moran then made the following specific submissions, on behalf of the Secretary, concerning each of the applicant’s conditions:
Kidney renal failure
(a)In relation to this condition, Centrelink initially considered it to be fully diagnosed, treated and stabilised. However, after hearing the expert evidence of Dr Crail, Ms Moran’s instructions are that Centrelink now takes the view that the condition was not fully treated and stabilised during the Qualification Period.
(b)Dr Crail’s evidence was that, in the lead-up to starting dialysis, Ms Fishlock was becoming increasingly anaemic. There was a build-up of toxins in her body and Dr Crail gave this evidence on the basis of blood tests she performed in July and September 2015. She said Ms Fishlock was becoming more tired, more unwell and that it was the escalation of these symptoms that lead to the commencement of dialysis. The commencement of dialysis was just after the end of the Qualification Period and it was Dr Crail’s view that the applicant’s kidney failure condition was not stable during the Qualification Period. On the basis of this evidence, Centrelink’s position is that the kidney disease was not fully treated and stabilised during the Qualification Period. The condition was deteriorating, it was unstable and the dialysis had not commenced. I agree that, on the evidence of Dr Crail, it cannot be said that Ms Fishlock’s kidney failure condition was fully stable during the Qualification Period.
(c)In the alternative, Centrelink’s position is that the condition was fully treated and stabilised, but that it attracted no more than 10 points under Table 1. In analysing Table 1, the applicant said that she can walk up to 200 meters before needing to stop and take a break. Her evidence was that she is able to drive, and does drive when necessary. She drives herself to the supermarket to purchase a single item and once she has parked outside the supermarket she sits in her car to rest, then walks to the shops to purchase one item which she carries back to her car before taking another break and then driving home. She also gave evidence that she is not able to go to the shops without a friend’s assistance because she is unable to push a trolley. In order for points to be allocated under Table 1, there needs to be corroborating medical evidence of Ms Fishlock’s level of impairment. There was evidence contained in two Job Capacity Assessment reports that Ms Fishlock was able to drive and do light shopping during the Qualification Period. Ms Moran submitted that the evidence Ms Fishlock gave about her ability to purchase a single item should be preferred, as it is corroborated by the evidence in the Job Capacity Assessment report. In relation to Ms Fishlock’s ability to perform her day to day household activities, she estimated that she could perform household activities some of the time, but she did not accept the information she had given to the Job Capacity Assessor that she was able to undertake some cleaning, but relied on her friends to do gardening for her. It was also her evidence to the AAT1 that she could manage the basic household duties. Centrelink accepts that Ms Fishlock certainly did have difficulty with her household activities during the Qualification Period, but it was not the case that she was unable to perform her household activities being the requirement to place her into the severe functional impact rating of 20 points. Ms Moran submitted that in view of the corroborating evidence and the Job Capacity Assessment report, a finding of 10 points under Table 1 for the kidney condition was appropriate. Although Ms Fishlock argued for a 20 point rating for this condition there will need to be corroborating evidence that Ms Fishlock requires the assistance of another person, and there really isn’t any, either from Dr Crail or from Dr Ochigbo. As I have agreed in (a) above that the kidney failure condition was not fully stable during the Qualification Period, it is not possible to assign any rating points under Table 1.
Post-traumatic Stress Disorder
(d)In relation to this condition, Centrelink’s position is that the condition was fully diagnosed, treated and stabilised during the Qualification Period. There is helpful evidence from the treating psychiatrist, Dr Fielke and from Dr Ochigbo. Dr Fielke says Ms Fishlock’s response to treatment has been excellent. Dr Ochigbo’s opinion (in his report) was that the Post-traumatic Stress Disorder is generally well managed and is a condition that causes minimal or limited impact. There was little evidence from the applicant in relation to Post-traumatic stress disorder, but there was evidence from her about her ability to manage the dialysis treatment. She undertook training to set up the dialysis machine independently and pack it away. She had to do this on a daily basis, before going to bed and when she got up in the morning. She has to troubleshoot sometimes with the dialysis machine and she requires frequent consultations with Dr Crail, both in Ceduna and in Adelaide. Ms Moran suggested that a person with a severe functional impact is someone who has difficulty concentrating on any task for more than 10 minutes, and has severe difficulty with planning and decision-making. Ms Moran submitted that the applicant’s ability to both undertake the training to commence dialysis and to set up the machine daily is not indicative of someone who is unable to concentrate on a task for at least 10 minutes. Moreover, Ms Fishlock had explained that she has a network of support and friends who have assisted her with her daily activities. Given the reports and evidence of Dr Fielke and Dr Ochigbo and the lack of evidence from the applicant, it is appropriate that an impairment rating of 5 points be assigned under Table 5.
Chronic obstructive airways disease
(e)In relation to this condition, there is no evidence of treatment for it or any evidence of prognosis. There was some evidence in the AAT1 that the applicant suffers from shortness of breath due to this condition. If there is any suggestion that this condition was fully diagnosed, treated and stabilised, Centrelink’s position is that any functional impact arising from this disease has already been accounted for under Table 1 in relation to the kidney condition, and it should not be double-counted. Given what is said in (a) above, I agree with Centrelink’s assessment that it is not appropriate to assign any rating points under Table 1 in respect of this condition.
Back pain
(f)In relation to this condition, it appears that its onset was not until after the applicant’s claim was lodged. Before the AAT1, the applicant gave evidence that her back pain started in about June 2016, which was almost a year after the claim was lodged. There is also no evidence from a GP in relation to treatment, diagnosis or prognosis.
Hypertension
(g)In relation to this condition, it has been diagnosed by Dr Ochigbo in his report, but there is no evidence of treatment of prognosis. Also, Dr Ochigbo refers to the condition as being one that is generally well managed and causes minimal or limited impact. Centrelink’s position is that this condition was not fully diagnosed, treated and stabilised during the Qualification Period. On all the material available, I agree with this position.
Having regard to the submissions made by Ms Moran in paragraph 30 above and my consideration of them, I am satisfied and confirm that the applicant had a total impairment rating of 5 points under the Impairment Tables in respect of her medical conditions.
To conclude her submissions, Ms Moran commented in relation to the weight, if any, that should be given to the opinion evidence of Ms Everett. She said that Ms Everett talked at length about Ms Fishlock’s kidney failure condition and the resulting side effects. She confirmed that her opinion was given only from the point of view of a support person, not in her professional capacity. In my view, I gained little assistance from Ms Everett’s opinion evidence and was unable to give any real weight to it in reaching my decision.
SUMMARY
As I mentioned in paragraph 27 above, the reasons why Ms Fishlock disagreed with the decision of the AAT 1 was because the consideration of her medical conditions in July 2015 (when her claim was made) and in July 2016 (when the AAT 1 hearing took place) was based on information that was 12 months old. In reading this, I reflected on decisions of tribunals and Courts dealing with an applicant’s qualification for DSP within what is often referred to the “qualification period”. This period commences at the date of an applicant’s claim and runs for 13 weeks thereafter. In Ms Fishlock’s case, the qualification period is the period between 6 July 2015 and 5 October 2015.
In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs the Tribunal there looked at the issue of an applicant’s qualification for DSP in the qualification period and said [at 34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and in the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decision arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Harris v Secretary, Department of Employment and Workplace Relations Gyles J of the Federal Court also dealt with the conditions for the grant of DSP in the qualification period. The learned Judge said:
This case concerns the application of s 94 of the Social Security Act 1991(Cth) which deals with the conditions for the grant of a disability support pension. …the applicant’s entitlement to the pension must be considered as at the date of her claim, namely 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
As can be seen from the decisions in both Bobera (supra) and Harris (supra), if a medical condition has progressed since the making of the original DSP claim and the evidence supporting the claim is out of date or not current, it is up to the applicant to make a new DSP claim with supporting evidence that covers and is relevant to the qualification period involved.
CONCLUSION
As the applicant’s impairments do not attract an impairment rating of at least 20 points under the Impairment Tables, she does not satisfy the requirements of paragraph 94(1)(b) of the Act, and as she has not actively participated in a program of support her DSP claim cannot succeed.
In these circumstances, it is not necessary for me to consider whether she had a continuing inability to work pursuant to subparagraph 94(1)(c)(i) of the Act.
DECISION
The Tribunal affirms the decision under review.

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

........................[Sgd]........................................
Administrative Assistant
Dated: 24 November 2017

Date(s) of hearing: 24 August 2017 and 1 September 2017

Applicant: In person

Advocate for the Respondent: Ms E Moran

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 3041

24 November 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	24 August 2017 and 1 September 2017
Applicant:	In person
Advocate for the Respondent:	Ms E Moran
Solicitors for the Respondent:	Sparke Helmore Lawyers