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

Griffith and Secretary, Department of Social Services (Social services second review) [2020] AATA 1515 (29 May 2020)
Division:GENERAL DIVISION
File Number: 2019/6871
Re:Alan Griffith
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:29 May 2020
Place:Perth

The Tribunal affirms the decision under review.
................[sgd]........................................................
Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – date of cancellation – whether Applicant’s conditions were fully diagnosed, fully treated and fully stabilised at the date of cancellation – whether Applicant’s impairments attract 20 points under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 23, 94
Social Security (Administration) Act 1999 (Cth) – ss 63, 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(4), Tables 2, 5 and 11
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Freeman v Secretary Department of Social Security (1988) 19 FCR 342
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Miller and Secretary, Department of Social Services [2019] AATA 1531
Sabeei and Secretary, Department of Social Services [2014] AATA 815
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.248
REASONS FOR DECISION
Brigadier A G Warner, Member
29 May 2020
INTRODUCTION

Mr Griffith seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 11 October 2019 that affirmed a decision made by Services Australia (the Agency) to cancel Mr Griffith’s disability support pension (DSP) from 28 August 2018.
The hearing was conducted by telephone conference and Mr Griffith gave evidence on affirmation.
Ms D Jones-Bolla of Sparke Helmore Lawyers represented the Respondent.
BACKGROUND
Mr Griffith is 42 years of age and was granted DSP from April 2010 (T52/291).
On 5 January 2018, the Agency issued Mr Griffith with a notice under s 63 of the

Social Security (Administration) Act 1999
(Cth) (the Administration Act) that advised his medical eligibility for DSP would be reviewed and requested that he provide further medical evidence from his treating health professionals (T35).
On 20 April 2018, the completed form was returned to the Agency (T35/187–209).
On 30 July 2018, a face to face assessment with a Job Capacity Assessor (JCA) was undertaken (T38). The JCA’s report dated 23 August 2018 recommended that Mr Griffith’s shoulder condition was fully diagnosed, treated and stabilised (FDTS) and the resulting impairment rated 10 points under Table 2 – Upper Limb Function of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (T38/217). The JCA also found that Mr Griffith’s hearing loss condition was FDTS and the resulting impairment rated 0 points under Table 11 – Hearing and other Functions of the Ear (T38/218).
On 28 August 2018, Mr Griffith’s DSP was cancelled on the basis that he no longer met the medical eligibility criteria under s 94 of the Social Security Act 1991 (Cth) (the Act) (T48/269, T53/297).
On 5 October 2018, Mr Griffith requested a review of this decision (T40/225–226) and lodged further evidence (T41 to T44). Mr Griffith was paid DSP pending review of the decision (T53/295).
On 28 March 2019, a DSP medical assessment was undertaken by an occupational therapist who recommended a further JCA based on new evidence available during the progressing of the appeal (T45/252–253).
On 2 April 2019, a file assessment was undertaken (T46/255). In the report dated

5 April 2019, the JCA again recommended that Mr Griffith’s shoulder condition was FTDS and the resulting impairment rated 10 points under Table 2 – Upper Limb Function, and also found that Mr Griffith’s hearing loss condition was FTDS and the resulting impairment rated 0 points under Table 11 – Hearing and other Functions of the Ear (T46/262–263).
On 25 July 2019, an Authorised Review Officer (ARO) affirmed the original decision. The ARO made findings in line with the recommendations of the JCA and found that Mr Griffith had an impairment rating of 10 points (T48/269–274).
Mr Griffith sought further review and provided further material to the AAT1 (ST1). On

11 October 2019, the AAT1 affirmed the decision to cancel Mr Griffith’s DSP. The AAT1 made the following findings in relation to Mr Griffith’s medical and psychological conditions:
·the right shoulder condition was FDTS and the resulting impairment rated 10 points under Table 2 – Upper Limb Function;
·the psychological condition was fully diagnosed but not fully treated and stabilised;
·the gastrointestinal dysfunction condition was not fully diagnosed, treated and stabilised;
·the hearing loss condition was not fully diagnosed, treated and stabilised; and
·the left knee condition was not fully diagnosed, treated and stabilised (T2/6–14).
On 24 October 2019 Mr Griffith lodged an application for review of the AAT1 decision with the General Division of the Administrative Appeals Tribunal (the Tribunal). Mr Griffith claims the AAT1 decision is wrong on the following basis:
Correct interpretation of the legislation wasn’t applied to my appeal to reinstate the DSP. I was already injured with several injuries that was [sic] fully diagnosed, treated and stabilised as permanent disability, before my DSP review was initiated by Centrelink in January/February 2018. However, only one of these injuries (shoulder) was allowed for points, which only received 10 point. All other injuries were not even given a chance to be reviewed for points eligibility – these injuries were already fully diagnosed, treated and stabilised as permanent disability (T1/4).
ISSUES
The Tribunal must decide whether Mr Griffith was qualified for DSP, in accordance with

s 94 of the Act, on 28 August 2018 (the cancellation date). This requires consideration of whether, as at the cancellation date:
(a)Mr Griffith had a physical, intellectual or psychiatric impairment(s); and if so
(b)Mr Griffith’s impairment(s) attracted an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and if so
(c)Mr Griffith had a continuing inability to work.
LEGAL AND POLICY FRAMEWORK
The legislation applicable in this matter is contained in:
(a)the Act;
(b)the Administration Act; and
(c)the Impairment Tables.
Policy guidance contained in the Guide to Social Security Law (the Guide) is also relevant.[1] To ensure consistency in decision making, the Tribunal should follow the relevant policy in the Guide unless there are cogent reasons to depart from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645).
[1] Guide to Social Security Law, Department of Social Services, version 1.248.
The relevant statutory and policy provisions are laid out comprehensively in the Respondent’s Statement of Issues, Facts and Contentions dated 27 March 2020

(Exhibit R1, paras 5.13–5.34). The qualification criteria for DSP can be summarised as follows:
(a)Section 94 of the Act sets out the first requirement for qualification for DSP, and that is that a person had an impairment at the time they lodged their claim (or in this matter, at the time DSP was cancelled). The Respondent accepts (Exhibit R1,

para 5.35), and the Tribunal is satisfied, that Mr Griffith meets this requirement as it is agreed that he had conditions when his DSP was cancelled.
(b)The second requirement for DSP is also in s 94 of the Act and provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the relevant time. To apply the Impairment Tables, the condition or impairment must be considered permanent. In the Impairment Tables, the word ‘permanent’ does not have its usual meaning. For DSP purposes, for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner, have been fully treated and fully stabilised, and is more likely than not to last for more than two years (s 6(4) of the Impairment Tables).
(c)There is also a requirement that an applicant for DSP must have a continuing inability to work (CITW). For DSP eligibility, both the minimum qualification impairment threshold of 20 points and the CITW criteria must be met and they are of equal importance.
EVIDENCE
The Tribunal had before it the following evidence:
·the ‘T-Documents’ (T1–T53, pp 1–307);
·the ‘Supplementary T-Documents’ (ST1–ST13, pp 308–328);
·the Application for Review of Decision dated 24 October 2019 (Exhibit A1);
·the medical report by Dr Shane Guerinoni dated 8 May 2020 (Exhibit A2);
·the Respondent’s Statement of Issues, Facts and Contentions dated 27 March 2020 (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
Relevant time
Pursuant to s 80 of the Administration Act, the Secretary may cancel a person’s social security payment if that person is not qualified for the social security payment. DSP is defined as a social security payment in s 23 of the Act, and on 28 August 2018 the Agency cancelled Mr Griffith’s DSP after finding that he did not satisfy s 94 of the Act.
The Federal Court in Freeman v Secretary, Department of Social Security

(1988) 19 FCR 342, 345 stated:
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit… However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim…
In the case of Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, 6–7 [25]–[29], the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period.
As the present decision under review is a DSP cancellation decision, Mr Griffith’s qualification for DSP must be assessed as at the cancellation date, that being

28 August 2018, and at no other time. Any subsequent change to conditions or later entitlement must be the subject of a further claim.
Whether Mr Griffith’s impairments attract 20 points or more under the Impairment Tables
The Respondent accepts that Mr Griffith had impairments at the cancellation date, and therefore satisfied s 94(1)(a) of the Act (Exhibit R1, para 5.35). However, the Respondent contends that Mr Griffith’s impairments did not attract 20 points or more under the Impairment Tables at the cancellation date and therefore he did not meet the requirements of s 94(1)(b) of the Act (Exhibit R1, para 5.36). The Respondent also contends that

Mr Griffith did not have a continuing inability to work (Exhibit R1, para 5.37(f)). This review is de novo, and the Tribunal turns to its consideration of Mr Griffith’s eligibility for DSP.
Mr Griffith’s oral evidence
Mr Griffith presented as an articulate and informed witness. On several occasions, he asked the Respondent to speak louder to assist his hearing.
The crux of Mr Griffith’s testimony was that he considered that previous decision-makers had been inconsistent in the assessment of his conditions. Mr Griffith submitted that despite medical opinion that he required surgery for his right shoulder condition, the condition has been assessed as FDTS and impairment points awarded under the Impairment Tables. He submitted that similar circumstances applied with respect to his hearing loss and his gastroenterological condition/continence function and coeliac disease, and that they too should be eligible for assessment and impairment points under the Impairment Tables.
Right shoulder condition
The Respondent contends that Mr Griffith’s right shoulder condition was FDTS and the resulting impairment rated 10 points under Table 2 – Upper Limb Function (Exhibit R1,

para 5.37(a)).
The JCA assessed this condition as FDTS (T46/255), and noted with respect to treatment, a letter dated 27 February 2018 from Dr Peter Campbell, orthopaedic surgeon, which states:
I was of the opinion that if his pain did not settle he would require surgery… Alan then subsequently did go to the public hospital system and as far as he knows was placed on a waiting list but he has never been contacted by the public hospital system for a further follow up review or definitive treatment… still requires surgery in the form of a subacromial decompression to rectify this (T31/181).
Dr Margaret Soe, general practitioner, noted in a medical certificate dated 15 February 2010 that surgery in the form of subacromial decompression was not readily available for a public patient (T22/145). Mr Griffith told the Tribunal that the surgery would cost over $20,000 and be a two and a half or three-year process with no guarantee that his shoulder would be fixed (Transcript p 18).
Having regard to the definitions of ‘permanency’ and ‘reasonable treatment’ (which includes being available at a reasonably accessible location, having a high success rate, is available at a reasonable cost, is regularly undertaken and reliably expected to result in a substantial improvement) contained in the Rules for applying the Impairment Tables, the Tribunal is satisfied that Mr Griffith’s right shoulder condition was FDTS at the date of cancellation.
In assessing the impairment under Table 2 – Upper Limb Function, the Tribunal has regard to the following:
(a)In a medical report dated 19 April 2018, Dr S Guerinoni, general practitioner, stated that Mr Griffith experienced constant pain in his right shoulder and this affected his sleep, and he could not hold his right arm above shoulder height or lift weights heavier than one kilogram with that arm (T36/195).
(b)The JCA report dated 23 August 2018 (T38/217–218) found that there was a moderate functional impact on activities using hands or arms and recommended 10 impairment points. The JCA assessed that Mr Griffith did not satisfy the descriptors for a 20-point rating.
(c)Mr Griffith told the AAT1 that he drives to the shops and his own appointments and accepted that he could only be granted 10 points under Table 2, stating that his shoulder condition did not warrant a higher rating (T2/10).
(d)In Sabeei and Secretary, Department of Social Services [2014] AATA 815 [15] the Tribunal had regard to the 10 and 20 point descriptors under Table 2 and concluded that:
[a] 20 point score, which is the score attributable to “severe functional impact” on upper limb function under Table 2 of the Impairment Tables, simply cannot be derived from consideration of functional impairments that affect only one upper limb.
(e)
In the case of Miller and Secretary, Department of Social Services

[2019] AATA 1531, cited by the Respondent (Exhibit R1, paras 5.43–5.44) in which the applicant had full use of his left hand (although right hand dominant), the Tribunal did not accept that he could meet most of the descriptors for a 20 point rating, finding that:
he lacks the dexterity to be able to turn the page of the book with ease, and cannot satisfactorily use a computer keyboard with his right hand. However, these limitations are only with respect to the Applicant’s right hand. He can otherwise perform most of those functions using his left hand.
The Tribunal finds that Mr Griffith’s right shoulder condition attracts 10 impairment points.
Lower limb condition
The Respondent contends that Mr Griffith’s lower limb condition was not FDTS (Exhibit R1, para 5.37(b)).
The Tribunal has regard to the following evidence relating to this condition:
(a)On 6 March 2018, Mr Griffith underwent a CT scan of his left knee and the corresponding report concluded ‘no significant abnormality’ (T31/182). There is no evidence that this report was reviewed by a specialist.
(b)On 6 August 2019 (a year after the cancellation date), Mr Simon Rosser, senior physiotherapist, reported that treatment included a strength program, pain management and education. Mr Rosser recorded that Mr Griffith was aware that he ‘needs to undertake a long term rehab program for his knee, attending a commercial gym 2-3 times weekly for a prolonged period of time (6-12 months)’ (ST11).

Mr Rosser also recorded that Mr Griffith had reported ‘slight improvement in left lower limb strength and a general increase in confidence using the left lower limb’ (ST11).
(c)On 18 October 2018 (two months after the cancellation date) Dr Guerinoni referred Mr Griffith to an orthopaedic surgeon for assessment of chronic knee pain (ST8/316).
There is no corroborating evidence that at the cancellation date even with reasonable treatment, significant functional improvement was not expected within the next two years. Further, before the Tribunal Mr Griffith stated:
Now, in terms of the knee injury, I accept it – I accept the – the previous tribunal’s decision because the knee injury I am still ongoing with treatment and I’m still doing physiotherapy. So, we can completely skip the knee injury part (Transcript p 7).
The Tribunal finds that Mr Griffith’s knee condition was not FDTS at the cancellation date and consequently cannot be assessed under the Impairment Tables.
Gastroenterological condition/continence function and coeliac disease
The Respondent contends that Mr Griffith’s gastroenterological condition and continence function condition was not FDTS (Exhibit R1, para 5.37(c)).
The evidence suggests that this is a complex condition and the Tribunal has regard to the following material:
(a)On 21 March 2016, Mr Griffith underwent surgery for excision of an anterior haemorrhoid. In a report subsequent to the procedure, Mr James Kent, general surgeon and endoscopist reported that the wounds were well-healed (ST4).
(b)
On 19 February 2018, Mr Griffith was referred to Mr Kent by his general practitioner, and on the same day he was prescribed ‘gastrostop’ (T29/179). On 6 March 2018, Mr Kent reviewed Mr Griffith and recommended ‘coeliac serology to investigate the cause of the underlying bowel disturbance and also an endo-anal ultrasound’.

Mr Kent also reported that Mr Griffith would likely benefit from pelvic floor physiotherapy (ST7).
(c)On 6 March 2018, Mr Griffith underwent a pathology test for coeliac disease associated autoantibodies. The subsequent report dated 16 March 2018 stated ‘high specificity for coeliac disease although small bowel biopsy is recommended to confirm the diagnosis… [i]f there is a strong clinical suspicion, small bowel biopsy whilst on gluten-containing diet is diagnostic’ (T34/185).
(d)
In a report dated 19 April 2018, Dr Guerinoni reported with respect to treatment that the coeliac serology was ‘done’ and that an endo-anal ultrasound and pelvic floor physiotherapy were needed and pending (T36/200). In the same report,

Dr Guerinoni recorded ‘no squeeze pressure in rectum – nerve loss from surgery’ (T36/201).
(e)Mr Griffith reported to the JCA on 30 July 2018 that he had the blood tests but had not undertaken the ultrasound or attended for pelvic floor physiotherapy due to financial constraints (T38/214). A later JCA report dated 5 April 2019 noted that there had been no pelvic floor physiotherapy to that date (T46/258).
(f)On 22 October 2018 (two months after the cancellation date), Mr Griffith underwent an endo-anal ultrasound and the report following the examination noted ‘no physical abnormality. No intervention apart from Immodium at this stage’ (ST10/319).
(g)In a medical report dated 21 February 2019, Dr Guerinoni reported a diagnosis of ‘faecal incontinence/leakage’ with a date of diagnosis of 22 October 2018 (two months after the cancellation date) and that Mr Kent had ‘completed all tests needed so far’ (T43/247–248). Dr Guerinoni also reported a diagnosis of ‘bloated abdomen after eating’ (T43/243).
(h)In March 2019, the Applicant underwent an excision of a perineal cyst (ST12). Mr Griffith told the Tribunal that this procedure removed a benign cyst on the surface of the skin and was not relevant to this condition (Transcript p 19).
(i)On 5 April 2019, the JCA, a registered nurse reported that other reasonable treatment, including incontinence pads and support from a dietician, had not yet been pursued and that these treatments may improve function, management and stability of symptoms within the next 24 months (T46/258).
(j)Mr Griffith told the Tribunal that he participated in pelvic floor physiotherapy in 2019, and this is confirmed in the AAT1 decision (T2/12). On 19 August 2019, Mr Kent reported that pelvic floor physiotherapy had not alleviated Mr Griffith’s problems with continence and opined that the symptoms were not related to the earlier procedures and that a strong psychogenic component may be involved (ST12).
(k)The JCA found that ‘Mr Griffith does not satisfy the medical eligibility for fully diagnosed, treated and stabilised at the date of the appeal’ on the basis:
The condition had been reviewed by Gastroenterologist, Dr Kent and GP

Dr Shane Guerinoni, 21.2.2019. Mr Griffiths [sic] had participated in medical investigations and some treatments.
Whilst the available medical evidence confirms permanency and diagnosis, the criteria for optimally treated and stabilised are not met. Gastroenterologist, Dr Kent indicated Mr Griffiths [sic] may benefit from pelvic floor physiotherapy. The symptom of incontinence and urgency however has not been fully treated as there was a referral for pelvic floor physiotherapy with no therapy to date. Also other reasonable treatments not yet pursued including but not limited to continence aids and support from dietician that may improve function, management and stability of symptoms within the next 24 months. It was confirmed Mr Griffiths [sic] did access allied health for another condition (Depression and Anxiety) where his GP wrote him a referral to access treatment through a care plan. Given Mr Griffith had accessed this program for one health condition, it was feasible he could access it for physiotherapy with a medicare rebate or even bulk billed services, limiting the financial burden for Mr Griffiths [sic].
It is difficult to assess Mr Griffith’s current level of functioning as fully stabilised whilst further treatment was indicated. Further time may allow this to be more clearly determined (T46/258).

The evidence is that the faecal incontinence condition was diagnosed on 22 October 2018, two months after the cancellation date, and there is no clear opinion as to whether the condition is a symptom of the undiagnosed coeliac disease or a separate condition. There is no evidence that at the date of cancellation Mr Griffith had undertaken the small bowel biopsy recommended on 6 March 2018 (paragraph 38(c) above refers) to confirm the coeliac diagnosis.
The Tribunal accepts the JCA’s rationale (see paragraph 38(k) above) for concluding that Mr Griffith’s condition was not FDTS. While Mr Griffith and Mr Kent reported that the pelvic floor physiotherapy had not been helpful (ST12), this was not the opinion of the medical practitioners who had recommended the treatment and the likely outcome of treatment as at the cancellation date. Relevantly, on 6 March 2018, Mr Kent reported that Mr Griffith would ‘benefit from pelvic floor physiotherapy’ (ST7).
The Tribunal finds that Mr Griffith’s gastroenterological condition/continence function and coeliac disease was not FDTS at the cancellation date and consequently cannot be assessed under the Impairment Tables.
Hearing loss
The Respondent contends that Mr Griffith’s hearing loss condition was fully diagnosed but not fully treated and stabilised (Exhibit R1, para 5.37(e)).
The Tribunal has regard to the following evidence relating to this condition:
(a)In a report dated 21 February 2018, Dr Amrita Gupta, audiologist, stated:
Pure tone audiometry showed a bilateral borderline normal hearing sloping to moderate high frequency sensorineural hearing loss above 2 kHz. Speech discrimination scores at appropriate levels of amplification were excellent and consistent with the audiogram.
Dr Gupta reported that she discussed amplification with Mr Griffith, but that it was not at that time warranted. Dr Gupta recommended a hearing review in 12 months (T30/180).
(b)In a very recent medical report dated 8 May 2020 and addressing only Mr Griffith’s hearing condition, Dr Guerinoni reports current symptoms as ‘15% hearing loss above 2kHz, poor balance, ringing’ and indicates 10 points under Table 11.

Dr Guerinoni’s report references Dr Gupta’s report of 21 February 2018 and does not record any further consultation (Exhibit A2).
(c)Mr Griffith told the Tribunal that he underwent the recommended further hearing test in 2019, but did not have a report. He did not see Dr Guerinoni about his hearing until May this year when Dr Guerinoni provided the report mentioned in the preceding paragraph.
The Tribunal notes that Mr Griffith told the AAT1 that he experiences imbalance when moving quickly (T2/13 at [32]), and Dr Guerinoni included a symptom of poor balance in his recent report (see paragraph 43(b) above). However, the Tribunal has no corroborative medical evidence of any diagnosed inner ear condition affecting Mr Griffith’s balance, and can take this issue no further in the present DSP consideration.
The evidence is that at the cancellation date, Mr Griffith was still awaiting the follow-up review recommended by Dr Gupta in February 2018 and Dr Guerinoni in April 2018. Although Mr Griffith claims to have participated in a review in 2019, after the cancellation date, that claim is not corroborated by medical evidence. In these circumstances, the hearing condition cannot be considered fully treated and fully stabilised.
The Tribunal finds that Mr Griffith’s hearing loss condition was not FDTS at the cancellation date and consequently cannot be assessed under the Impairment Tables.
Psychological condition
The Respondent contends that Mr Griffith’s psychological condition was not fully diagnosed at the date of cancellation (Exhibit R1, para 5.61).
The Tribunal has regard to the following evidence relating to this condition:
(a)On 19 April 2018, Dr Guerinoni, general practitioner, reported ‘mental health/anxiety’ (with symptoms of anxiety and depression) as one of Mr Griffith’s conditions.

Dr Guerinoni recorded that this condition was not supported by further specialist opinion (T36/196–197).
(b)On 26 July 2018, Mr AE Ates, clinical psychologist, produced a report which stated that Mr Griffith had attended the Cannington Medical Centre Psychology Clinic that day and that his ‘CBT treatment program is actively ongoing’. However, Mr Ates did not provide any diagnosis of a mental health condition in his report (T37/210).
(c)In relation to Mr Griffith’s attendance with Mr Ates, the AAT1 decision states:
Following a referral from his general practitioner Mr Griffith saw Mr Ates in July 2018 for counselling and CBT sessions but he has not found these sessions helpful either. His doctor prescribed some antidepressant medication but he discontinued these after a short trial because he found they just ‘numbed his mind’ (T2/11).
(d)Before the Tribunal, Mr Griffith said that he accepted the previous tribunal’s decision with respect to his mental health because he was still seeing the clinical psychologist and ‘cannot be considered to be fully diagnosed, treated and – and permanent’ (Transcript p 7–8).
The Tribunal notes and accepts the Respondent’s acknowledgement and submission with respect to reported blackouts suffered by Mr Griffith, to the effect:
The Secretary acknowledges that Dr Guerinoni reported the Applicant has ‘regular black outs in the eyes (sight) especially when driving or standing for long periods’ (T36/198). The Secretary submits that it is unclear how a psychological condition causes “regular black outs” and in circumstances where there is no evidence of a neurological review or assessment the Tribunal cannot be satisfied that a “blackout” is a result of any psychological condition (Exhibit R1, para 5.71).
The Introduction to Table 5 – Mental Health Function states: ‘[t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’. There is no evidence of a diagnosis by a clinical psychologist or psychiatrist as at the cancellation date and accordingly the Tribunal finds that Mr Griffith’s psychological condition was not fully diagnosed. The Tribunal is also satisfied that the psychological condition was not fully treated and stabilised at the cancellation date as Mr Griffith had not received reasonable treatment, which would include a sustained period of psychological counselling relevant to his diagnosis and symptoms and compliance with any prescribed pharmacological intervention.
The Tribunal finds that Mr Griffith’s psychological condition was not FDTS at the cancellation date and consequently cannot be assessed under the Impairment Tables.
CONCLUSION
Having carefully considered the evidence, the Tribunal finds that Mr Griffith’s right shoulder condition attracts 10 impairment points. Mr Griffith’s lower limb condition, gastroenterological condition/continence function and coeliac disease, psychological condition and hearing loss could not be assessed under the Rules for applying the Impairment Tables. This means that Mr Griffith has an overall impairment rating of 10 points at the cancellation date, and does not satisfy s 94(1)(b) of the Act.
Having found that Mr Griffith does not qualify for DSP, there is no requirement for the Tribunal to address, and it has not addressed, the issue of whether Mr Griffith has a CITW pursuant to s 94(1)(c) of the Act.
DECISION
It follows from all of the above that the decision to cancel Mr Griffith’s DSP was the correct or preferable decision, and therefore the Tribunal affirms the decision under review, that being the decision of the Social Services & Child Support Division of the AAT dated

11 October 2019.

I certify that the preceding fifty -four (54) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

......[sgd]................................................................
Associate
Dated: 29 May 2020

Date(s) of hearing: 12 May 2020

Applicant: By phone

Counsel for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 1515

29 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	12 May 2020
Applicant:	By phone
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers