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

Gosney and Secretary, Department of Social Services (Social services second review) [2020] AATA 4721 (26 November 2020)
Division:GENERAL DIVISION
File Number: 2019/7775
Re:Garry Gosney
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:26 November 2020
Place:Perth

The Reviewable Decision, being the decision of an authorised review officer dated
4 September 2019 as affirmed by the AAT1 on 15 November 2019, is affirmed.
................[Sgd]........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension (DSP) – unlimited portability – whether Applicant qualifies for unlimited portability of DSP – whether Applicant has a severe impairment of 20 points or more under a single impairment table – assessment of conditions and impairments – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 42C(1)
Social Security Act 1991 (Cth) – ss 94(1)(ea), 94(3B), 1212, 1215(1), 1217, 1218AAA, 1218AAA(1)(b)
Social Security (Administration Act) 1999 (Cth) – s 179(2)(a)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(4), 6(5), 6(6), 10, 11, 11(1)(c), Table 2, Table 4, Table 5, Table 7

CASES
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
WMKR and Secretary of Department of Social Services [2015] AATA 483

SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide – 7.1.2.10
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
26 November 2020
THE APPLICATION

The Applicant is a 65-year-old man who is seeking review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of the Administrative Appeals Tribunal (Tribunal).
He has been in receipt of a disability support pension (DSP) since 16 June 1994
(T87/524).
The Applicant requested unlimited portability of his DSP on 3 June 2016 (T87/472). However, on 21 February 2017 following a medical review, an officer of the Department of Human Services (Centrelink) decided that the Applicant was no longer medically qualified to receive a DSP because he was assessed as having an impairment rating of less than 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) (T54/313). This meant that the Applicant’s request for unlimited portability was also refused (T87/486).
The decision of 21 February 2017 to cancel the Applicant’s DSP was reviewed by an Authorised Review Officer (ARO) of Centrelink (T56/316). However, on 1 March 2017 the ARO affirmed the decision (T56/316). The Applicant sought review of this decision in the AAT1, however on 21 June 2017 the AAT1 affirmed the ARO decision of 1 March 2017 (T63/351).
The Applicant sought review of the AAT1 decision of 21 June 2017 in the AAT2. By consent of the parties, on 20 December 2017 the AAT2 decided pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 (Cth) that the Applicant met the qualification criteria for a DSP (T68/385). As a result, the Applicant was paid a DSP again.
On 19 November 2018, the Applicant made a further request for unlimited portability of his DSP (T83/456; T87/512). Centrelink refused this request on 8 August 2019 (T82/454).
The Applicant sought review of the 8 August 2019 decision, but on 4 September 2019 an ARO affirmed the decision on the basis that the Applicant did not have a severe impairment because he did not have an impairment rating of 20 points or more under a single table of the Impairment Tables (T83/455; 457) (ARO Decision).
The Applicant sought review of the ARO Decision in the AAT1, however on
15 November 2019 the AAT1 affirmed the decision (T2/5) (AAT1 Decision).
On 27 November 2019 the Applicant sought review of the AAT1 Decision in the AAT2 (T1/1).
The ARO Decision dated 4 September 2019, as affirmed in the AAT1 Decision dated
15 November 2019, is the Reviewable Decision that is currently before the AAT2
(s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth)).
ISSUE
The issue before the Tribunal is whether the Applicant should be granted an unlimited portability period for his DSP pursuant to s 1218AAA of the Social Security Act 1991 (Cth) (the Act).
This involves a consideration of whether the requirements set out in s 1218AAA of the Act are satisfied. Specifically, these are whether the Tribunal is satisfied that the Applicant:
(a)is receiving a DSP;
(b)has a severe impairment within the meaning of subsection 94(3B) of the Act;
(c)will have that severe impairment for at least the next five years; and
(d)would be prevented by the severe impairment from performing any work independently of a program of support, within the meaning of subsection 94(4) of the Act, within the next five years if he were in Australia.
As the Applicant was at all relevant times in receipt of a DSP (paragraphs [5] and [6] above; transcript/14), the Tribunal will start by considering whether the Applicant has a “severe impairment”.
At the AAT2 hearing, there was some misunderstanding on the part of the Applicant as to the scope of the Tribunal’s review. The Applicant stated his view that he already had unlimited portability of his DSP. He stated that “I can go to any pension-treaty country, but I cannot go to Asia or the Philippines” (transcript/7) and “all I have to do is just say I’m going and I can go, because I’ve already got my indefinite portability to any pension-treaty country...” (transcript/8). The Tribunal explained to the Applicant that the Tribunal was not deciding where he could go, but rather whether he could get unlimited portability which would allow him to be paid a DSP if he was overseas for more than 28 days (transcript/6-9).
LEGISLATIVE AND POLICY FRAMEWORK
The applicable legislation is:
(a)the Act; and
(b)the Impairment Tables.
The applicable policy is the Guides to Social Policy Law: Social Security Guide (Guide).
Portability of DSP
Section 94(1)(ea) of the Act generally provides that a person must be an Australian resident to be qualified for a DSP. Section 94(1)(ea) contains an exception when “the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1)”.
Section 1215(1) of the Act provides that some payments will be portable during a portability period:
(1) If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
(a)throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
(b)throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.
Note:Section 1217 defines the person’s maximum portability period and portability period for the payment.
(Emphasis in original.)
Section 1217 of the Act, amongst other things, defines a “portability period” with reference to a table at the end of the section. Typically, a person is able to receive a DSP when they are absent from Australia for “[a] total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension” (s 1217, Item 2 of table, column 5).
The table to s 1217 of the Act also sets out circumstances where a person in receipt of a DSP may travel outside of Australia for extended periods whilst still being qualified to receive a DSP. The relevant circumstance which requires consideration in the Applicant’s case is item 2A. Under this item a person who is a “[s]everely impaired disability support pensioner” may be absent from Australia for an “[u]nlimited period” and still be paid a DSP. That is, they have “unlimited” portability of their DSP.
Relevantly, s 1212 defines a “severely impaired disability support pensioner” to mean “a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1)”.
Section 1218AAA of the Act provides:
(1)   The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2)   The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
(i)     a serious accident involving the person;
(ii)    the hospitalisation of the person; and
(b)the person’s portability period for disability support pension had not ended at the time the event occurred.
(3)   The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4)   A determination under subsection (1) is not a legislative instrument.
(5) In this section:
“work” means work:
(a)that is on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
(Emphasis in original.)
The Guide provides a further explanation of the general rules of portability in part [7.1.2.10]. Under the heading, “Indefinite portability of DSP – severely impaired disability support pensioner” the Guide states:
From 1 July 2012 DSP recipients with a permanent and severe impairment and no future capacity to work are eligible for indefinite portability of their pension. DSP recipients applying for portability under these provisions are required to undergo an assessment of their impairment and their future work capacity (JCA).
To be eligible for indefinite portability under these rules, a DSP recipient must:
·have a severe impairment (1.1.S.127) which will persist at this level for at least the next 5 years (i.e. no significant improvement is expected to the level of impairment within this period), and
·have no future work capacity, that is be prevented by their impairment from performing any work independently of a program of support within the next 5 years, or
·be assessed as manifestly eligible for DSP under the current (post December 2002) manifest criteria.
A DSP recipient is accepted as being prevented from performing any work if, because of their impairment, they are deemed unlikely to have any capacity to undertake work in the open employment market in the next 5 years, even with interventions.
…
Severe impairment
Section 1218AAA(1)(b) of the Act specifies that one of the qualification requirements for unlimited portability is that the Secretary must be satisfied that the person’s impairment is a severe impairment within the meaning of s 94(3B). Section 94(3B) of the Act defines a “severe impairment” as:
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.
(Emphasis in original.)
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6 of the Impairment Tables states:
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.
…
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
…
(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.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… 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
…
(c)the condition has been fully stabilised; and
…
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
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.
Section 10 of the Impairment Tables sets out how to select the table to apply when assessing impairments. It provides:
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.
“Table 2 – Upper Limb Function”; “Table 4 – Spinal Function”; “Table 5 – Mental Health Function”; and “Table 7 – Brain Function” are the Impairment Tables relevant to the Applicant’s claim for a DSP and are discussed in more detail below.
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
Section 11 of the Impairment Tables states:
(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 …
The timing of the evidence that the Tribunal can consider
In WMKR and Secretary, Department of Social Services [2015] AATA 483 (WMKR) at [31] Member Webb stated:
I think that the correct construction is that the question of eligibility must be determined at the date of claim, applying the legislation then in force and subsequently as circumstances demand. There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.
In WMKR Member Webb further stated, at [33], that:
As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) – see s 11 of the Social Security (Administration) Act 1999 and related provisions of this Act dealing with start date rules.

The Tribunal agrees that the starting point should be to consider the Applicant’s eligibility as at the date of his request for unlimited portability, which was 19 November 2019. However, the Tribunal can consider all evidence up to the date of the Tribunal’s decision, including evidence that was not before the original decision maker (Shi v Migration Agents Registration Authority (2008) 235 CLR 286). Given the beneficial nature of the legislation, in some circumstances (for example where there has been a change to the functional impact of an applicant’s medical conditions), it may be appropriate to consider evidence subsequent to the unlimited portability request. The Tribunal has indicated below when it has done this.
DOES THE APPLICANT HAVE A SEVERE IMPAIRMENT?
Neck condition
The Applicant has been diagnosed with degenerative changes in his neck which are more accurately described as “moderate cervical spondylosis” (T80/433; T81/438). This diagnosis was stated in a medical report from the Applicant’s general practitioner dated

21 March 2019 (T80/433). There is minimal information before the Tribunal about this condition.
A medical report form signed by the Applicant on 1 April 2019 stated that he was awaiting surgical evaluation of his cervical spine (T80/423). A job capacity assessment (JCA) report with a submitted date of 5 June 2019 also noted that the Applicant’s general practitioner had referred him for a specialist surgical opinion regarding this condition (T81/438-9). This evidence suggests that whilst the Applicant’s neck condition was fully diagnosed in approximately March 2019, it had not been fully treated and stabilised as at this date, or at the date of his request for unlimited portability. Consequently, the Tribunal cannot assign an impairment rating for this condition.
Spinal condition
The Secretary accepts that the Applicant was diagnosed with a lower back condition which was fully diagnosed, fully treated and fully stabilised at the date of his claim (R1, [39]). The Tribunal agrees that the medical evidence supports such a finding. This includes disability assessment application forms dated 28 November 2018 (T73/391) and 16 June 2020 (Exhibit A1) completed by the Applicant’s general practitioner which confirm that the Applicant’s spinal condition was fully diagnosed, treated and stabilised.
A report from an orthopaedic surgeon to the Applicant’s general practitioner dated

29 November 2017 (in Exhibit A1) stated that the Applicant “still has difficulty reaching overhead but is able to perform almost all of the day to day activities without much difficulty”.
A JCA report with a submitted date of 28 September 2017 (T64) noted a medical form from the Applicant’s general practitioner which confirmed that he suffered from:
chronic lower back pain, poor flexion, and restricted mobility. At this assessment the Assessor observed Mr Gosney was able to reach forward to knee height. Mr Gosney reports being independent in his own self care, cooking, cleaning, shopping, and is able to drive 1 1/2 hours. Mr Gosney also reports that he can walk – 10-20 minutes, sit 15 minutes, stand – 15 minutes, bend with difficulty, and to lift light items eg shopping bag.
Mr Gosney also reports being independent in home tasks… Home activities include – computer use, walking dog, watching TV, listening to music, tends to small vegetable garden occasionally. In regard to gardening he reports that he can water twice daily and sits on stool to garden. Mr Gosney also reports being able to change a tyre on car with a rattle gun to undo hub nuts. …
This assessment from the JCA report of 28 September 2017 was accepted as a current assessment of function by a JCA assessor in June 2019, with a rating of 10 points being assigned for the Applicant’s spinal function (T81/447).
In a disability assessment application form dated 28 November 2018, the Applicant’s general practitioner noted that the impact of the Applicant’s back condition was that he could only walk for half an hour and was “lying down most of [the] day” (T73/391).
The Applicant’s evidence to the AAT1 on 15 November 2019 included that he “is able to drive to Perth [which this Tribunal notes exceeds 30 minutes] and is able to drive the shorter distance of 15 kilometres to do his shopping however he is able to do so because he takes morphine for pain relief”. The AAT1 also noted that the Applicant (T2/8):
told the Tribunal he can ‘one quarter move’ his head to look left and can ‘half move’ his head to look right. He can sustain overhead activities with his right hand only. He is unable to reach overhead with his left hand however that is because of his shoulder condition and not his spinal disorder. Mr Gosney said he can bend forward to pick up a light object at waist height and at knee height.
In a more recent report from the Applicant’s general practitioner dated 16 June 2020 (Exhibit A1) it was reported that the Applicant could:
bend down and pick up light object from floor, turn trunck [sic] from side to side, turn head from side to side and up-and-down, some difficulty in looking up at activities over head height, bending to knee level and straighten out without difficulty, some difficulty turning head side to side and up and down, unable to sit in a car for 30 min, unable to sustain overhead activities, difficulty moving head in all directions
To be afforded a moderate rating of 10 points under Table 4 – Spinal Function of the Impairment Tables, a person must be able to sit or drive a car for at least 30 minutes, plus one of the other functional impacts on activities listed in that part of the table should apply. To be afforded a “severe” functional impact of 20 points under Table 4, the person must be unable to: perform any overhead activities; turn their head, or bend their neck, without moving their trunk; bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.
In the Applicant’s case, the earlier evidence from the JCA reports of 28 September 2017 and June 2019 (referred to in paragraphs [41] and [42] above) suggest that he was able to drive for up to one hour and 30 minutes, whereas the general practitioner’s report of

16 June 2020 (referred to in paragraph [45] above), states that the Applicant was unable to sit in a car for 30 minutes. The Tribunal finds that it is appropriate to consider the more recent report of 16 June 2020 to give the Applicant the benefit of any change in his condition.
However, even if the Tribunal accepts that the Applicant is unable to sit in a car for 30 minutes, the Tribunal is of the opinion that a moderate rating should nevertheless apply because the Applicant’s functional abilities do not meet the criteria in the “severe” range of the table. This is because, although the Applicant has difficulty performing or sustaining overhead activities and moving his head and neck, he was not unable to do so. Also, the evidence suggests that the Applicant could bend forward to pick up a light object and could remain seated for more than 10 minutes. Again, to have a “severe” rating, the Applicant would need to be unable to perform those activities.
Thus, the Applicant’s functional abilities could be characterised as falling between the two impairment ratings of “moderate” and “severe”. He did not, for the reasons just explained, meet the “severe” rating. However, he exceeded the “moderate” rating by being unable to drive for 30 minutes, although he met the other criteria for a moderate rating of being unable to sustain overhead activities and also having difficulty turning his head to look in all directions. Applying s 11(1)(c) of the Impairment Tables, where the impairment can be considered as falling between two tables, the lower of the two ratings should be assigned because all the descriptors of the higher rating are not satisfied. Therefore, the Tribunal finds that the functional impact of the Applicant’s spinal condition is “moderate” and should be assigned 10 points.
Upper limb conditions
The Secretary accepts that the Applicant has been diagnosed with multiple conditions affecting his left shoulder that were fully diagnosed, treated and stabilised as at the date of his request for unlimited portability (R1, [46]). These left shoulder conditions include a frozen left shoulder, a tear of the long head of the biceps tendon and supraspinatus tendinopathy.
Further, the Applicant has been diagnosed with chronic pain and limited movement in his right wrist, and carpal tunnel in his left wrist. The Secretary also accepts that these wrist conditions were fully diagnosed, treated and stabilised as at the date of the Applicant’s request (R1, [47]).
The Tribunal agrees that the Applicant’s left shoulder and wrist conditions were fully diagnosed, treated and stabilised at the date of his unlimited portability request. This conclusion is based on the medical evidence before the Tribunal including the two disability assessment application forms dated: 28 November 2018 (T73/391) which refers to the Applicant’s left shoulder and right hand as “problem stable with very limited activity”; and

16 June 2020 (Exhibit A1) which refers to the Applicant’s “[u]pper limb” conditions as being fully diagnosed, treated and stabilised.
In a report dated 29 March 2017, the Applicant’s general practitioner listed “[j]ust had left shoulder surgery” under the heading of “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” (T60/345).
On 3 April 2017 the Applicant was referred to an orthopaedic surgeon for “opinion and management” and an evaluation of his “left shoulder/biceps”. The referral letter from the Applicant’s general practitioner noted (T61/347):
Shoulder movement since operation is good. Pain in shoulder has settled well. Biceps on the other hand is now giving trouble of cramping – ? incomplete long head biceps tendon rupture.
The JCA report submitted on 28 September 2017 recorded medical evidence from the Applicant’s general practitioner on 29 March 2017 that the Applicant had (T64/359):
Chronic pain in right wrist as well as weak/poor grip strength, poor pronation/supination. As a result Mr Gosney tends to drop objects he is holding.
The same JCA report also noted medical evidence from the Applicant’s general practitioner on 29 July 2016 of the Applicant having “left shoulder chronic pain, particularly when sleeping and lifting shoulder to about 35-40 degrees” (T64/360). The report also noted that the Applicant was able to “self-administer insulin injections” (T64/361).
In a letter dated 18 June 2018 an orthopaedic surgeon confirmed a diagnosis for the Applicant of “[l]eft carpal tunnel decompression and left cubital tunnel decompression” as well as “[m]ild right carpal tunnel syndrome and right cubital tunnel syndrome” (Exhibit A1). This letter noted that two of the fingers on his left hand are “a little numb”, that the Applicant had “some difficulty with fine motor skills”, mild muscle wasting in his right hand and “[d]ecreased sensation on the nerve distribution” in his right hand.
In the disability assessment application form dated 28 November 2018, the Applicant’s general practitioner noted (T73/391):
Left shoulder surgery for supraspinatus tear. Tear long head of left biceps. Difficulty wiping bottom with left hand. Left shoulder only about 45 degrees abduction. Right wrist surgery – chronic pain, limited wrist movement, wasting of hand muscles right hand. Strenght [sic] right hand about 4/5.
The impact was described as (T73/391):
difficulty picking up small objects like coins, difficulty doing up buttons, difficulty unscrewing a lid on a soft drink bottle. Dificulty [sic] wiping bottom with left hand. Difficulty dressing due to painfull [sic] limitation of shoulder
In the medical report dated 21 March 2019, the Applicant’s general practitioner listed “carpal tunnel (is left handed)” under the heading of “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” (T60/433).
In the JCA report submitted on 5 June 2019, it was noted that the Applicant “confirmed that the condition is chronic, well-managed and has no/minimal impact on function” (T81/441). This JCA report further reported that (T81/447):
Client is left dominant – able to write with left hand, manipulate small objects. Client reports able to hold a cup, prepare a simple meal. Client reports to self adminsiter [sic] insulin injections.
The AAT1 recorded that at the hearing on 15 November 2019, the Applicant stated that he could not use his left hand due to shoulder surgery and wrist pain, and that he could use his right hand to drive but needed to wear a wrist brace (T2/9). The Applicant further told the AAT1 that (T2/10):
he can manage most daily activities using his hands and arms. He reported having some difficulty doing up buttons however he is able to hold and use a pen or a knife and fork, use a standard keyboard or phone and pick up a 2 litre carton of juice or milk. He also self-administers his insulin injections twice a day.
In the disability assessment application form dated 16 June 2020 (Exhibit A1), the Applicant’s general practitioner noted that the Applicant had:
difficulty picking up 2 L milk/ carry shopping bag, difficulty picking up small objects like coins, difficulty doing up buttons, difficulty reaching up and out to pick up objects, difficulty picking up light but bulky object; need 2 hands, difficulty holding and using a pen/pencil, difficulty doing up buttons or tie shoe laces, difficulty unscrewing a lid on a soft drink bottle
The relevant impairment table is Table 2 – Upper Limb Function. The medical evidence outlined above is somewhat inconsistent in that it ranges from evidence suggesting that the functional impact of these conditions is minimal, through to the more recent evidence which suggests a moderate impact. This suggests that there may have been some change in the Applicant’s condition. This, in the Tribunal’s opinion, warrants the Tribunal considering the more recent evidence of 16 June 2020 from the Applicant’s general practitioner. Based on this medical evidence, the Tribunal is of the opinion that the functional impacts of the Applicant’s upper limb conditions, namely his left shoulder conditions and wrist conditions, are most accurately categorised as having a “moderate” functional impact and should therefore be afforded 10 points. That is because, as described in the table, the Applicant had “difficulty” with most of the listed activities using hands or arms. These included having difficulty picking up a one litre carton full of liquid, holding and using a pen or pencil, doing up buttons and unscrewing a lid on a soft drink bottle.
Dyslexia condition
The Secretary also accepts that the Applicant’s dyslexia was fully diagnosed, treated and stabilised at the time of his request for unlimited portability (R1, [52]). The Tribunal agrees with this conclusion, noting that it is supported by the medical evidence which shows that the Applicant has had the condition since childhood and was formally diagnosed by a psychologist in November 2017 (T67). In the disability assessment application form dated 28 November 2018 (T73/392), the Applicant’s general practitioner confirmed that his dyslexia condition was fully diagnosed, treated and stabilised.
In a medical report dated 29 March 2017 the Applicant’s general practitioner noted the diagnosis of dyslexia for the Applicant, noting that the Applicant had “always” had the condition (T60/339). The Applicant’s general practitioner noted that (T60/339):
Still has great difficulty with writing and reading – pending the need every thing written has to be checked by second person with capability. Presently problem will stay unresolved.
When the Applicant was diagnosed by the registered psychologist in November 2017, the psychologist also noted that the Applicant was in the average range of cognitive ability and performance IQ. However, his reading and spelling ability was equivalent to that of a

nine-year-old child (T67/379-380).
In the disability assessment application form dated 28 November 2018, the Applicant’s general practitioner noted that the Applicant had suffered from (T73/392):
dyslexia since childhood – landed in a lot of trouble with school teachers – did finish school but had to endure a lot of abuse from teachers for it. Never could evolve in academic discipline and was restricted to labour worke [sic] form of mostly sheering…
In a medical report dated 21 March 2019 in support of the Applicant’s review for portability, the Applicant’s general practitioner reported that the Applicant’s current symptoms were “[l]imited writing and reading ability as evaluated and supported by psychologist evaluation report” (T80/428).
At the AAT1 hearing the Applicant’s evidence was (T2/11):
He said all his life he has required assistance to complete forms. Mr Gosney said this condition affects his memory insofar as it takes him longer than others to memorise information.
Table 7 – Brain Function is the table most relevant to the Applicant’s dyslexia condition. In the Tribunal’s opinion, the symptoms described above can be most accurately assigned as having no functional impact and an impairment rating of zero points. No functional impact is defined by Table 7 as:
The person has no significant problems with memory, attention, concentration, problem solving, vizuo–spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.
Thus, although the Applicant has difficulty with his reading and writing ability, the medical evidence does not indicate that he suffers from the other functional impacts listed in the table that needed to be established to achieve a higher impairment rating. These include difficulties with attention and concentration, problem solving, planning, decision-making and comprehension. Although the Applicant described having difficulties with his memory, there is no reference to his memory being impacted in any of the medical evidence before the Tribunal. This is problematic for the Applicant because the Impairment Tables require corroborating medical evidence of the person’s impairment.
Mental health conditions
A letter from a psychologist dated 25 January 2019 stated that the Applicant had been diagnosed with post-traumatic stress disorder and recommended “[o]ngoing trauma-informed counselling over 24 months constituting approximately 20-25 sessions” (T79/421).
In a letter dated 7 April 2020, a psychiatrist diagnosed the Applicant with “Complex Post Traumatic Stress Disorder”, “Major Depressive Disorder” and “Alcohol Use Disorder of significant severity” (pages 10-11 of report in Exhibit A1) (Mental Health Conditions). The psychiatrist’s opinion was that the Applicant “requires extensive psychological treatment for his complex clinical state, including specialist rehabilitation services.”
The psychiatrist recommended treatment including (pages 12-13 of report in Exhibit A1):
(a)“referral to an experienced Clinical Psychologist for an initial 20 sessions of therapy, with a review at the conclusion of this period to determine ongoing treatment requirements”;
(b)that a consultant psychiatrist conduct a thorough pharmacological review to “calibrate his medication regime, which does not appear to be effectively controlling his depressive symptoms”; and
(c)“engagement with specialised rehabilitation services to address his alcohol abuse”, which the psychiatrist stated may require in-patient treatment.
This information indicates that the Applicant’s Mental Health Conditions were fully diagnosed but were not fully treated and stabilised at the time of his request for unlimited portability, and, based on the evidence before the Tribunal, are yet to be fully treated and stabilised. This means that the Tribunal is unable to assign an Impairment Rating for the Applicant’s Mental Health Conditions.
Other conditions

A medical report completed by the Applicant’s general practitioner on 29 March 2017 in support of his review for portability (T60/345) confirms that the Applicant was diagnosed with other conditions including diabetes, atrial fibrillation and hypertension. The Secretary accepts that these conditions were fully diagnosed, treated and stabilised as at the date of the Applicant’s request for unlimited portability (R1, [62]).
Regarding the functional impact of the Applicant’s diabetes, atrial fibrillation and hypertension, these conditions were listed under the heading of “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” (T60/345). The Applicant’s diabetes was similarly listed in the more recent report of his general practitioner dated 21 March 2019 (T80/433). The JCA report submitted on

5 June 2019 reported that the Applicant confirmed that his hypertension condition “is chronic, well-managed and has no/minimal impact on function” (T81/442). This was also confirmed by the Applicant at the AAT1 hearing (T2/12). The evidence suggests that these conditions have no, or a minimal, functional impact which means that they should not attract any points under the Impairment Tables.
A letter dated 2 February 2017 indicates that the Applicant was referred to a specialist by his general practitioner for “an opinion and management” of “long standing chronic constipation” (T53/311). However, there is minimal evidence before the Tribunal regarding this condition and consequently it is unclear whether this condition was fully treated and stabilised at the time the Applicant made his request for unlimited portability. Even if the condition was fully diagnosed, treated and stabilised at that time, there is insufficient evidence before the Tribunal of any functional impact which would preclude the Tribunal from assigning an impairment rating.
CONCLUSION
The Applicant did not meet the qualifying circumstances for portability of his DSP for an unlimited period in s 1218AAA(1)(b) of the Act. This subsection requires the Tribunal to be satisfied that the Applicant had a “severe impairment” within the meaning of s 94(3B) of the Act. However, the Tribunal has found that the Applicant did not have a “severe impairment” because he did not have a rating of 20 points or more under a single impairment table.
It is therefore unnecessary for the Tribunal to consider the remaining qualifying circumstances in s 1218AAA(1)(c) and (d) of the Act. These are whether the Applicant will have a severe impairment for at least the next five years and whether he would be prevented by the severe impairment from performing any work independently of a program of support within the next five years if he were in Australia.
Fortunately, although the Applicant did not meet the qualifying circumstances for portability of his DSP, he continues to receive a DSP because his conditions attract more than 20 points across more than one table.
DECISION
The Reviewable Decision, being the decision of an authorised review officer dated
4 September 2019 as affirmed by the AAT1 on 15 November 2019, is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........[Sgd].............................................................
Associate
Dated: 26 November 2020

Date of hearing: 30 September 2020

Applicant: Self-represented

Representative for the Respondent: Mr K Defranciscis, Services Australia

[2020] AATA 4721

26 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Date of hearing:	30 September 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr K Defranciscis, Services Australia