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

[2020] AATA 1350

Hamdan and Secretary, Department of Social Services (Social services second review) [2020] AATA 1350 (18 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/0111

Re:Kadhem Hamdan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:18 May 2020

Place:Sydney

The decision under review is affirmed.

..............................[sgd]..............................

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether conditions fully diagnosed, treated, stabilised – spinal condition – left shoulder and left hand conditions – depression and anxiety – respiratory condition – thyroid condition – whether impairment attracts 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth) Sch 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 11, Tables 1, 2, 4, 5

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Shi v Migration Agents Registration Authority [2008] HCA 31

Yazdari and Secretary, Department of Social Services [2014] AATA 34

REASONS FOR DECISION

Chris Puplick AM, Senior Member

18 May 2020

HISTORY OF THE APPLICATION

1. This is an application by Mr Kadhem Hamdan (Applicant) for a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 6 December 2018. That decision affirmed a decision made by an Authorised Review Officer (ARO) of the Department (Respondent) on 27 June 2018 to uphold an original decision to deny the Applicant’s claim for payment of the Disability Support Pension (DSP). That original departmental decision was made on 20 January 2018.

2. The Applicant’s application for review before the General Division of this Tribunal (AAT2) was made on 8 January 2019 and the matter was heard on 17 April 2020. The hearing was conducted under the restrictions imposed as a result of the COVID-19 pandemic and all parties appeared by telephone. The Applicant was assisted by an interpreter of the Arabic language.

   THE DSP SCHEME

3. In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (Act). Section 94(1) includes three distinct limbs:

   94 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;

4. In essence, these requirements or criteria amount to this:

   (a)the person has a physical, intellectual or psychiatric condition;

   (b)the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;

   (c)the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;

   (d)the person has turned 16; and

   (e)the person is an eligible citizen or qualifying resident.

5. Failure to meet any one of these requirements is fatal to a claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.

6. In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:

   (a)fully diagnosed and documented;

   (b)fully treated; and

   (c)fully stabilised.

7. These important terms are defined in the Impairment Tables[1] as follows:

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) s 6.

   ...

   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.

   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

   (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.

   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.

8. Each of these criteria must be met before any points under the Impairment Tables can be considered or awarded.

9. A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:

   (a)… doing any work independently of a program of support within the next 2 years; and

   (b)… 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.

10. Applications for DSP must also be considered within a time frame which is laid down in legislation. It provides that an applicant must be qualified for DSP payment within a 13-week period from the date of the application being submitted[2] – this is referred to as the “qualification period”. In this case, the original application for DSP was submitted on 11 December 2017. As a result, the qualification period runs from 11 December 2017 to 12 March 2018.

    [2] Social Security (Administration) Act 1999 (Cth) Sch 2 s 4(1).

    THE ROLE OF THE TRIBUNAL

11. In most instances, when making its decision, the Tribunal must consider all the evidence placed before it up until the time of its actual hearing, including evidence which may not have been before the original decision-maker.[3]

    [3] Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J.

12. However, in DSP applications, the evidence before the Tribunal is confined to that which was available during the qualification period or, if it is subsequent evidence, it must relate directly to the condition of the applicant during that qualification period.[4] Evidence of the applicant’s condition post the qualification period is acceptable only to the extent that it so relates. No subsequent progression or deterioration of any condition is to be taken into account.[5]

    [4] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].

    [5] Yazdari and Secretary, Department of Social Services [2014] AATA 34, [35].

13. It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case. It is also important to note that the Tribunal must consider each case de novo regardless of how many times the same matter may have been considered previously. While it may be necessary to refer to such earlier decisions, the Tribunal is not bound by them and must come to its own independent decision based on the relevant evidence.

14. Nevertheless, the Tribunal understands the Applicant’s frustration over the fact that his impairments have been rated differently on differing occasions. At one stage his overall impairment rating was determined to be as high as 20 points[6] and on another as low as 5.[7]

    [6] Section 37 documents (T documents) at 147, 259-266 and 307-308.

    [7] Ibid at 17-20.

    CLAIMED IMPAIRMENTS

15. Extensive reports from a number of doctors, therapists and surgeons, together with numerous reports by Job Capacity Assessors (JCA), establish that the Applicant suffers from a number of conditions or impairments, especially related to his spine. He thus meets the first requirement set out under section 94(1)(a) of the Act.

16. The Applicant has claimed that his impairments relate to his:

    (a)spinal condition,

    (b)upper limb condition – left shoulder and arm,

    (c)depression,

    (d)respiratory condition, and

    (e)thyroid condition.

17. It will be necessary to consider each impairment in turn and to assign them a rating under the relevant Impairment Tables.

    CONSIDERATION OF THE EVIDENCE

    Thyroid condition

18. The Respondent accepts that this condition was, during the qualification period, fully diagnosed, treated and stabilised.

19. This condition requires assessment under Table 1 (Functions requiring Physical Exertion and Stamina). Table 1 provides, inter alia:

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

1)    The person:

a.    is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

b.    has no difficulty completing physically active tasks around their home and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

1)    The person:

a.    experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

  i.    walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

                   ii.    performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

b.    is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

1)    The person:

a.    experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

  i.    is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

                   ii.    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

b.    is able to:

  i.    use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

                   ii.    perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

1. The medical report of Dr Al-Hobaish makes reference to this condition under the heading “other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”.[8] Three reports by JCAs dated 17 March 2015, 22 July 2015 and 23 June 2016[9] also all find that this condition causes no functional impact upon the Applicant.

   [8] T documents at 219. Emphasis in original document.

   [9] Ibid at 204-205, 225 and 228, and 266, respectively.

2. On this basis the Tribunal can only assign a nil rating for this condition.

   Respiratory condition

3. The Applicant suffers from a variety of sinus conditions, nasal obstructions and a deviated septum. The AAT1 noted that in 2010 the Applicant was involved in a motor vehicle accident which resulted in his nose being fractured while at the same time he suffered injury to his teeth and spine.[10]

   [10] Ibid at 19.

4. There are a number of medical reports dealing with this condition.[11] The Applicant has also had nasal surgery performed in 2012, although this does not appear to have been successful.[12]

   [11] T documents at 161 (report from Dr Tan), 191 (MRI scan report from Dr Johnston), 193 (GP mental health treatment plan prepared by Dr Elarif, noting an examination of the Applicant conducted by Dr Ghabrial in 2010), 219 (report from Dr Al-Hobaish), 241 (report from Dr Potgieter) and 247 (report from Dr Alsayed).

   [12] Ibid at 202.

5. There are three JCA reports which conclude that this condition is temporary.[13] Moreover, it was found that further treatment could lead to significant improvement over the next two years.[14]

   [13] Ibid at 146 (dated 6 October 2010), 202 (dated 17 March 2015) and 262 (dated 23 June 2016).

   [14] Ibid at 226.

6. An MRI scan report noted that there was nothing remarkable about the Applicants’ sinus and adjacent structures, and Dr Al-Hobaish listed this condition as one which was generally well managed and caused minimal or limited impact on any ability to function.[15] Although some mucosal thickening was detected in the sinuses, there was no evidence of chronic sinusitis.[16]

   [15] Ibid at 219.

   [16] Ibid at 241.

7. The Tribunal accepts that this condition is fully diagnosed, and that the Applicant suffers from some degree of discomfort due to breathing difficulties. However, there is insufficient evidence to find that the condition is fully treated and stabilised. It may be that further surgical intervention is indicated or that the use of appropriate medication (Claratyne tablets and Rhinocort nasal spray) will result in improvement of the symptoms and that the condition is, indeed, a temporary one. In any event, the condition does not impact upon the Applicant’s functional abilities.

8. As a result, no impairment rating can be assigned.

   Depression

9. Conditions such as depression are assessed under Table 5 (Mental Health Function) under which it is provided that:

   The 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).[17]

   [17] Impairment Tables, Table 5 – Mental Health Function, Introduction to Table 5.

10. There are a number of medical reports which suggest that the Applicant does indeed suffer from depression induced by a number of factors including his inability to return to live in Darwin[18] and resulting from his extended lack of contact with his children. Although he appears to live a socially isolated life, he was nevertheless able to visit his family in Iraq in 2014.[19]

    [18] T documents at 20.

    [19] Ibid and 343 (travel record).

11. In a report dated 17 September 2010, Dr Alsayed made a diagnosis of depression and anxiety but did not specify the severity of such conditions or the date of their onset. He noted the Applicant was taking Avanza and Lexipro and undergoing psychotherapy to manage his condition.[20] In a subsequent report he suggested that this condition is not expected to undergo any significant improvement but that it was generally well managed and caused minimal or limited impact on the Applicant’s ability to function.[21] Dr Alsayed has the following qualifications and accreditations: MB, AMC, Medical Registrar, FARCGP (sic) and Diploma of Microbiology.[22] As Dr Alsayed is not a psychiatrist, his diagnosis is not determinative because there is no reference or evidence from “a clinical psychologist” accompanying the report, as required under the Impairment Table.

    [20] Ibid at 139.

    [21] Ibid at 255.

    [22] Ibid at 257.

12. Dr Alsayed does refer, in his 2016 and 2018 reports, to the Applicant having been:

    referred to a psychiatrist who prescribed him antidepressants and he is seen by a psychologist for CBT.[23]

    [23] Ibid at 249 and 323.

13. In his evidence to the Tribunal the Applicant confirmed that he had seen a psychiatrist and had been prescribed medication. Unfortunately, however, he could not remember the details of the psychiatrist or the prescribed medication, and also said he was unable to continue with such consultations for financial reasons.

14. The Tribunal also notes that a JCA report and a DSP Medical Assessment Recommendation accepted evidence to the effect that the Applicant’s mental health condition should be assigned an impairment rating of 10 points on the basis that it was fully diagnosed, treated and stabilised. This conclusion was supported by references to the Applicant’s mental health condition being “confirmed by a [p]sychiatrist” or “diagnosis by psychiatrist”.[24]

    [24] T documents at 261 and 308.

15. Whilst the evidence before the Tribunal indicates that the psychiatrist which the Applicant had seen (but was unable to recall the name of) was likely Dr Monir Younan as indicated in the report of Dr Al-Hobaish,[25] it is unfortunate because evidence of Dr Younan’s report (and diagnosis) is not available before the Tribunal. It also appears that the Applicant had seen Dr Younan over 7 years prior to the qualification period and there has been no contemporaneous or recent diagnosis by a psychiatrist or corroborating evidence from a clinical psychologist before the Tribunal.[26] On the other hand, several reports from Dr Al-Hobaish clearly suggest that this condition is temporary and that a variety of planned treatments are in prospect.[27] Dr Mohammed (an Occupational Therapist and Mental Health Clinician) also opines that the Applicant’s mental health condition is related to his stresses arising from the uncertainty of his medical condition and would likely “be responsive to a change of circumstances”.[28]

    [25] Ibid at 216-217.

    [26] Ibid.

    [27] Ibid at 209 (dated 8 April 2015), 216-217 (dated 5 June 2015) and 233 (dated 28 September 2015).

    [28] Ibid at 244.

16. JCA reports also suggest that this condition is amenable to further treatment and that this could result in reduced symptomatology and increased functional capacity.[29] Dr Elarif also indicates that this condition is generally well managed and caused minimal or limited impact on the Applicant’s ability to function.[30]

    [29] Ibid at 201 (dated 17 March 2015) and 223 (dated 22 July 2015).

    [30] Ibid at 183 (dated 5 February 2015).

1. Given the absence of relevant medical evidence from an “appropriately qualified medical practitioner” or a “clinical psychologist”, and given the weight of evidence to the effect that this condition is not permanent and is amenable to further treatment with the prospect of improvement, the Tribunal cannot find that the condition is fully diagnosed, treated and stabilised.

2. This is an unfortunate outcome as the weight of evidence from those General Practitioners with most experience in dealing with and treating the Applicant, plus the evidence given before the Tribunal at the hearing, would be strongly supportive of a diagnosis of depression, verging on severe. However, this conclusion cannot be reached in the absence of meeting the formal evidence requirements prescribed by the relevant Impairment Table.

3. As this condition is not fully diagnosed, treated and stabilised it cannot be accorded any rating under the relevant Impairment Table.

   Upper limb condition

4. The Applicant states that he suffers from considerable pain in his left shoulder and that more recently he has had problems with the clawing of the digits in his left hand.

   Left hand

5. The clawing problem with the Applicant’s left hand appears to have been of recent origin (within the qualification period) and so was still the subject of ongoing investigation at the relevant time. Dr Kahil (a Consultant Orthopaedic Surgeon) described it as “a very strange condition that I have never seen before” and noted that the Applicant was sent to Bankstown-Lidcombe Hospital “for further assessment, opinion and management”.[31]

   [31] T documents at 271.

6. As such, the Tribunal agrees with the DSP Medical Assessment Recommendation[32] that the left hand condition cannot be counted as being fully diagnosed, treated and stabilised during the qualification period.

   [32] Ibid at 307.

   Left shoulder

7. Reports by Dr Kahil, Dr Habib and Dr Maniam all indicate that they could find nothing in their examinations of the Applicant’s left shoulder that was unusual or remarkable.[33] Dr Elarif found that the condition was generally well managed and causing minimal functional impairment.[34]

   [33] T documents at 133 (dated 17 August 2010), 156 (dated 5 May 2011) and 245 (dated 19 April 2016), respectively.

   [34] Ibid at 183.

8. Dr Alsayed noted that the Applicant was referred to physiotherapy and provided an injection as treatment, which “provided minimal improvement”,[35] and also noted that surgery may be required although he was awaiting further advice from an MRI report.[36]

   [35] Ibid at 248.

   [36] Ibid at 253.

9. Dr Chew and Dr Potgieter both diagnosed some degree of bursitis being evident and accounting for the Applicant’s symptoms.[37]

   [37] Ibid at 164 and 240, respectively.

10. JCA reports suggest that this condition was generally being well managed.[38] A JCA report of 23 June 2016 accepted the condition as fully diagnosed, treated and stabilised but found that there was no functional impairment associated with it.[39]

    [38] Ibid at 204 and 228.

    [39] Ibid at 260 and 265.

11. The Tribunal accepts the conclusion of the JCA report of 23 June 2016 that the left shoulder condition was fully diagnosed, treated and stabilised. As such, an assessment should be made against the descriptors set out in Table 2 (Upper Limb Function). This provides, inter alia:

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

1)    The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

1)    The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

a.    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

b.    handling very small objects (e.g. coins);

c.     doing up buttons;

d.    reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

1)    The person has difficulty with most of the following:

a.    picking up a 1 litre carton full of liquid;

b.    picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

c.     holding and using a pen or pencil;

d.    doing up buttons or tying shoelaces;

e.    using a standard computer keyboard;

f.   unscrewing a lid on a soft-drink bottle.

1. The Applicant’s evidence was to the effect that many of the routine picking up and manipulating tasks described in the 0 points descriptor can be undertaken but with a degree of difficulty, resulting, in part from him being naturally left-handed.[40] The Applicant’s evidence was also to the effect that he has problems carrying a weight greater than 1 or 1.5 kilos or picking up very small objects. He has difficulty with some of the items in the 10 point category but can use a computer keyboard, pick up a light bulky object and use a pen or pencil. He expressed some difficulties with being able to get dressed which the Tribunal equates with the difficulty of doing up buttons, although this was not put to him specifically. The Tribunal noted that the Applicant said, in response to questions from the Respondent, that his capacity to undertake these various tasks varied from time to time and was often dependent upon his general state of health and wellbeing on a day-to-day basis.

   [40] The AAT1 stated that the Applicant was right-handed but this appears to be in error and resulted from a misunderstanding of what the Applicant told AAT1 during that hearing: see T documents at 19.

2. The Tribunal notes the requirement of section 11(4) of the Impairment Tables to reflect the overall functional impact of the impairments where they may be episodic in character.

3. Taking all the Applicant’s evidence on this matter the Tribunal would assign a rating of 5 points under this Table.

   Spinal condition

4. The Respondent accepts that the Applicant’s spinal condition was fully diagnosed, treated and stabilised during the qualification period. There are at least a dozen medical reports, from at least eight separate doctors, which confirm the diagnosis as do several JCA reports. It is not necessary for the Tribunal to refer to them in detail as they are well summarised in the Respondent’s statement of facts, issues and contentions at paragraph 36.

5. The question is therefore the extent of impairment to be assessed under Table 4 (Spinal Function).

6. The relevant sections of that Table provide:

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

1)    The person can:

a.    bend down to pick a light object off the floor (e.g. a piece of paper); and

b.    turn their trunk from side to side; and

c.     turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

1)    The person has some difficulty in:

a.    activities over head height (e.g. activities requiring the person to look upwards); or

b.    bending to knee level and straightening up again without difficulty; or

c.     turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

1)    The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

a.    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

b.    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

c.     the person is unable to bend forward to pick up a light object placed at knee height; or

d.    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

1)    The person is unable to:

a.    perform any overhead activities; or

b.    turn their head, or bend their neck, without moving their trunk; or

c.     bend forward to pick up a light object from a desk or table; or

d.    remain seated for at least 10 minutes.

1. The AAT1 had the benefit of seeing the Applicant in person and observing what he was and was not able to do in terms of his movements and his general mobility, particularly in proximity to the qualification period. In large part, it based its assessment on those observations.[41]

   [41] T documents at 19 – AAT1 decision at [18].

2. A 2010 JCA report assigns the impairment a rating of 20 points,[42] two 2015 JCA reports assign the impairment a rating of 5 points,[43] while a 2016 JCA report assigns 10 points.[44] The AAT1 rated it at 5 points and the Secretary in her final submission to the Tribunal conceded that it is rated 10 points.[45]

   [42] Ibid at 147.

   [43] Ibid at 203 and 227.

   [44] Ibid at 264.

   [45] Respondent’s statement of facts, issues and contentions dated 30 January 2020 at [35].

3. In evidence to the Tribunal the Applicant indicated that he was able – during the qualification period – albeit with some difficulty, to:

   (a)perform overhead activities such as removing a cup from an overhead cupboard;

   (b)turn his head, but only to the right;

   (c)bend forward, although not bend down, to pick up an object; and

   (d)to remain seated for at least 10 minutes.

4. This means that the Applicant does not fulfil the requirements set out for severe functional impairment (20 points). The rating of 10 points is correct. The Tribunal notes that since the qualification period a number of these requirements could now likely be met by the Applicant.

   DISCUSSION

5. The combined rating of the Applicant’s impairment is 15 points which is less than the 20 points required under section 94(1)(b) of the Act. As a result, it is not necessary for the Tribunal to consider the issue of any continuing inability to work under section 94(1)(c).

6. Since the Applicant has not satisfied all three limbs of section 94 he cannot qualify for the DSP on the basis of his DSP claim made in December 2017 which is currently under review by this Tribunal.

7. The evidence before the Tribunal in 2020 points to a major deterioration of the Applicant’s condition since the end of the qualification period. He is now unable to perform many of the tasks which he could then undertake and, in addition, he appears to have developed a problem with incontinence which was not part of the original DSP claim.

8. The Applicant is still hopeful that surgical intervention might assist him. However, while he claims to have been on a surgical waiting list since 2012 there is no evidence to confirm this and in any case the prospects of immediate relief by such an intervention is qualified by not only there being long waiting lists for elective surgery but also by the suspension of such procedures during the COVID-19 pandemic restrictions.

9. For now, the Applicant’s best course of action would be to submit a new DSP claim and, in particular, obtain a formal diagnosis of his mental health condition from an appropriately qualified medical practitioner.

10. The Tribunal could not but be struck by the sincerity of the Applicant and be sympathetic to his description of his current state of health as being “a torture” and the quality of his life as being severely compromised. However, the Tribunal is bound to make its findings only on the basis of the application of the legislation and the Impairment Tables.

    DECISION

11. The decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd]...............................

Associate

Dated: 18 May 2020

Date(s) of hearing:	17 April 2020
Applicant:	In person (by telephone)
Solicitors for the Respondent:	Dr S Thompson, Services Australia