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

[2020] AATA 2100

Harrison and Secretary, Department of Social Services (Social services second review) [2020] AATA 2100 (6 July 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6320

2019/6321

Re:Gary Harrison

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member

Date:6 July 2020

Place:Brisbane

The decision under review in relation to the application for unlimited portability of the Disability Support Pension is affirmed.

The decision under review in relation to the suspension of the Disability Support Pension on 3 February 2019 is affirmed.

..........................[SGD]......................................

Senior Member B. Pola

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – portability - DSP suspended - whether applicant qualifies for unlimited portability of DSP – whether applicant has a severe impairment of 20 points or more – applicant does not have a severe impairment under impairment tables – maximum portability period exceeded in the last 12 months – decisions under review affirmed

LEGISLATION

Public Governance, Performance and Accountability Act 2013 (Cth)

Social Security Act 1991 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination2014 (Cth)

Social Security (Administration Act) 1999 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Faulkner and Comcare [2007] AATA 1541

Morton and Secretary, Department of Social Services [2014] AATA 949

Re Goksu and Secretary, Department of Social Services [2014] AATA 752

Re HMLS and Secretary, Department of Social Services [2014] AATA 693

Re Jones and Secretary, Department of Social Services [2014] AATA 885

Re Sukkar and Secretary, Department of Social Services [2014] AATA 480

Re Udrzal and Secretary, Department of Social Services [2014] AATA 232

Scrivener and Secretary, Department of Social Services [2014] AATA 537

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 103 ALD 467

WMKR and Secretary of Department of Social Services [2015] AATA 483

SECONDARY MATERIALS

Guides to Social Policy Law: Social Security Guide, Department of Social Services, Version1.270 released 1 July 2020

REASONS FOR DECISION

Belinda Pola, Senior Member

6 July 2020

BACKGROUND

1. The Applicant, Mr Gary Harrison, has been in receipt of the Disability Support Pension (or ‘DSP’) since 2006.

2. There are two decisions which the Applicant is seeking a second review from the Administrative Appeals Tribunal (or ‘Tribunal’).

   First decision – The portability decision

3. On 14 April 2018[1] the Applicant applied to the Department of Human Services, now known as Services Australia (or the ‘Agency’) for unlimited portability of his DSP.

   [1] Exhibit 1, T56, page 341.

4. On 11 July 2018[2], the Applicant was advised by the Agency that their application for unlimited portability of their DSP was rejected.

   [2]. Exhibit 1, T56, page 348.

5. The Applicant sought review of this decision and on 27 November 2018[3], an Authorised Review Officer (or ‘ARO’) reviewed and affirmed the decision to reject the Applicant’s request for unlimited portability of their DSP.

   [3] Exhibit 1, T47, pages 301 to 305.

6. The Applicant sought review of the decision to reject his claim for unlimited portability of their DSP with the Social Services and Child Support Division (‘SSCSD’) of the Tribunal and on 29 August 2019[4] the Tribunal affirmed the decision to reject the Applicant’s claim for unlimited portability of their DSP.

   [4] Exhibit 1, T2, pages 6 to 10.

7. The Applicant applied to this Tribunal for a second review of the portability decision on 30 September 2019[5].

   [5] Exhibit 1, T1, pages 1 to 5.

   Second decision – The suspension decision

8. On 3 February 2019[6] the Applicant departed Australia. The Agency suspended the Applicant’s DSP payment immediately on the basis that the Applicant had reached the maximum portability period of 28 days in the previous 12 month period.

   [6] Exhibit 1, T50, page 311.

9. The Applicant sought review of this decision and on 25 February 2019[7], an ARO reviewed and affirmed the decision to suspend the Applicant’s DSP payment.

   [7] Exhibit 1, T52, pages 314 to 319.

10. The Applicant sought review of the decision to suspend their DSP payment with the SSCSD of the Tribunal, and on 29 August 2019[8] the Tribunal affirmed the decision under review.

    [8] Exhibit 1, T3, pages 11 to 17.

11. The Applicant applied to this Tribunal for a second review of the suspension decision on  30 September 2019[9].

    [9] Exhibit 1, T1, pages 1 to 5.

    JURISDICTION

12. This is an Application to review two decisions of the SSCSD of the Tribunal which affirmed decisions to:

    (a)Reject the Applicant’s claim for unlimited portability of their DSP; and

    (b)Suspend the Applicant’s DSP payment immediately on the basis that the Applicant had reached the maximum portability period of 28 days in the previous 12 months.

13. Both of the Applicant’s claims have been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO[10]. Additionally, both were then reviewed by the SSCSD of the Tribunal[11].

    [10] (1) Exhibit 1, T47, pages 301 to 305; and (2) Exhibit 1, T52, pages 314 to 319.

    [11] (1) Exhibit 1, T2, pages 6 to 10; and (2) Exhibit 1, T3 pages 11 to 17.

14. In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear both applications for review.

    ISSUES

15. The two issues before the Tribunal for consideration is:

    (a)Whether the Applicant:  

    (i)was in receipt of a DSP (in accordance with s1218AAA(1)(a) of the Social Security Act 1991 (Cth) (or “the Act”))?

    (ii)had a severe impairment (in accordance with s1218AAA(1)(b) of the Act)?

    ·         If so, was the severe impairment expected to continue for at least   five years (in accordance with s1218AAA(1)(c) of the Act)?

    · If so, does the severe impairment prevent the Applicant from performing work independently from a Program of Support (‘PoS’)[12] within the next five years (in accordance with s1218AAA(1)(d) of the Act)?

    (b)Whether the Applicant’s DSP should have been suspended on 3 February 2019?

    RELEVANT LEGISLATIVE PROVISIONS

    [12] In accordance with the Social Security (Active Participation for Disability Support Pension) Determination 2014 (or the ‘PoS Determination’).

    Overseas Portability of a DSP

16. Whilst s94 of the Act sets out the qualification criteria for the DSP and generally requires that a recipient must be an Australian resident in order to be qualified, there is an exception for a person absent from Australia, and to whom the Secretary has made a determination in accordance with s1218AAA(1) of the Act:

    1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner

    (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.

17. Section 1215 of the Act provides that a person in receipt of a DSP payment may continue to be paid that payment during a portability period, but the payment will cease to be paid at the end of that person’s portability period:

    1215 Some payments generally portable with time limit

    (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.

    (2) This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.

18. Section 1216 of the Act outlines amounts which are not to be added to the person’s rate during their period of absence from Australia:

    1216 Amounts added to rate

    During the period of absence, rent assistance, incentive allowance and pharmaceutical allowance are not to be added to the person’s rate under Chapter 3 after whichever of the following times applies:

    (a) if the person’s maximum portability period for the payment is an unlimited

    period—26 weeks after the period of absence commenced;

    (b) otherwise—the end of the person’s portability period for the payment.

19. Section 1217 of the Act provides for the maximum period for which a person in receipt of the DSP is able to travel overseas, or the ‘maximum portability period’. Typically, a person in receipt of DSP is able to travel overseas for a total of 28 days within a 12-month period.  

    1217 Meaning of maximum portability period, allowable absence and portability period

    Meaning of maximum portability period

    (1) The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

    (a) the payment (as specified in column 2 of the table); and

    (b) the class of persons to which the person belongs (as specified in column 3 of the table).

    Meaning of allowable absence

    (2) The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:

    (a) it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and

    (b) except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B applies, the absence does not:

    (i) exceed the period specified in column 5 of that item; or

    (ii) in the case of item 2—cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with that item.

    Meaning of portability period if unlimited maximum portability period

    (3) If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.

    Meaning of portability period if maximum portability period limited

    (4) If the person’s maximum portability period for the payment is not an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is the period:

    (a) beginning at the commencement of the period of absence; and

    (b) ending at the earlier of the following times:

    (i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

    (ii) the end of the period that is the person’s maximum portability period for the payment.

    Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.

20. As per s1217 of the Act above, a person receiving DSP who is a “severely impaired disability support pensioner” is able to travel overseas for an “Unlimited period” in accordance with item 2A:

    …

Portability of Social Security
Column 1 Item	Column 2 Payment	Column 3 Person	Column 4 Absence	Column 5 Maximum portability period
2A	Disability support pension	Severely impaired disability support pensioner	Any absence	Unlimited period

…

1. A “severely impaired disability support pensioner” is defined in s1212 of the Act as being “a person in respect of whom the Secretary has made a determination under s1218AAA(1)”.

2. Section 94(3B) of the Act defines a severe impairment as an impairment, “of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.

3. The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Social Security Act 1991 (or the ‘Act’):

   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; and

   …

4. To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.

5. Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

6. It is the Tribunal’s role to stand in the shoes of the original decision-maker[13] and determine whether the decision was the correct or preferable one on the material before the Tribunal[14]. Given this, the Tribunal must make its decision in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (or the “Determination”) which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

   [13]    Faulkner and Comcare [2007] AATA 1541 [27].

   [14]    Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 69 per Bowen CJ and Deane J.

7. Section 6 of the Determination provides that “[t]he 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”[15]. Further, the Impairment Tables in the Determination 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[16].

   [15]    Section 6(1) of the Determination.

   [16]    Section 6(2) of the Determination.

8. An Impairment Rating may only be assigned to an impairment if[17]:

   (a)the person’s condition causing the impairment is permanent; and

   (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.

   [17]    Section 6(3) of the Determination.

9. Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[18]:

   ·be fully diagnosed by an appropriately qualified medical practitioner; and

   ·be fully treated; and

   ·be fully stabilised; and

   ·be more likely than not, in light of available evidence, to persist for more than 2 years.

   [18]    Section 6(4) of the Determination.

10. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[19]:

    (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.

    [19]    Section 6(5) of the Determination.

11. A condition is considered fully stabilised if[20]:

    (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.

    [20]    Section 6(6) of the Determination.

12. Reasonable treatment is a treatment that[21]:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional  capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    [21]    Section 6(7) of the Determination.

13. Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

14. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.

15. In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”. (Tribunal emphasis added)

16. While s11(1)(c) of the Determination provides that, in assigning an Impairment Rating, “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”.

    Severe Impairment

17. In order to qualify for unlimited portability of a DSP, the person must have a severe impairment, that will extend over the next five years, and prevent that person from performing any work independently of a Program of Support (or ‘PoS’).

18. A severe impairment is defined in s94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Program of Support (PoS)

19. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

20. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the ‘Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).

    CONSIDERATION

1. The Application was heard in Brisbane on 19 May 2020, with the Applicant (who was self-represented) and the Respondent (represented by Mr Chris Murphy) both appearing by telephone. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).

   (1)(a) Was the Applicant in receipt of DSP (in accordance with s1218AAA(1)(a))?

2. The Respondent has made the following relevant submission in relation to whether the Applicant was in receipt of DSP, as per the requirement of s1218AAA(1)(a) of the Act[22]:

   “There is no dispute that on 14 April 2018 when the Applicant applied to the agency for unlimited portability he was in receipt of DSP. As a result, the Secretary accepts the Applicant satisfies paragraph 1218AAA(1)(a) of the Act.”

   [22] Exhibit 3, page 6, paragraph 43.

3. Evidence before the Tribunal confirms the Applicant was indeed in receipt of the DSP at the time of the dispute as required by s1218AAA(1)(a) of the Act[23], therefore this requirement of the legislative test is met.

   (1)(b) Whether the Applicant had a severe impairment (in accordance with s1218AAA(1)(b))?

   [23] Exhibit 1, T13, pages 95 to 97; T14, pages 98 to 99; and T15 pages 100 to 101.

   Timing of assessments and medical evidence

4. A preliminary consideration needs to be undertaken regarding the timing of when an assessment should take effect for the application before the Tribunal: (1) is it at the time the request for unlimited portability was made by the Applicant? Or, (2) does it include evidence and assessments up to the date of this decision?

5. The Respondent has submitted the following contention[24]:

   “The Secretary contends the preferred approach that should be taken is that a Determination for unlimited portability should take effect at the date of claim, or the date a person requests such a Determination.

   This approach is in line with the way claims in social security law are generally decided. Examples of this approach would be DSP claims (i.e. the date of claim plus 13 weeks) and Special Benefit (i.e. the date the claim is made).

   If a person’s situation materially changes since the date a request for unlimited portability was made (sometimes over a year later by the time the matter reaches the AAT), the person is always at liberty to make a new claim to permit the original decision maker to make a fresh decision based on the more recent medical evidence. The point to be made is that there must be some point in time to assess qualification for payment, as opposed to some undefined or unlimited period. The latter approach is generally inconsistent with the way claims for payment are assessed under social security law.”

   [24] Exhibit 3, page 6, paragraphs 40 to 42.

6. The Respondent has brought to the attention of the Tribunal two previous decisions of the Tribunal which depart from the Secretary’s preferred approach. In Morton and Secretary, Department of Social Services [2014] AATA 949, the Senior Member CR Walsh of the Tribunal at paragraph 48 stated:

   “The Secretary contends that the relevant date for the purposes of s 1218AAA(1) of the SSA is the date on which Mr Morton advised Centrelink that he was considering travelling overseas, namely 30 January 2013. This contention is based on what the Tribunal said in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6]. I do not accept with this contention. There is nothing in s 1218AAA of the SSA, the other provisions of the SSA, associated legislation or relevant extrinsic materials to support this proposition. As the High Court made clear in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467; BC200806838, subject to any indication to the contrary, the task of the AAT is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.”

7. The second decision can be found in WMKR and Secretary of Department of Social Services [2015] AATA 483, where Mr S. Webb, Member at paragraphs 31 to 34 stated:

   “Thus, 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.

   This construction is consistent with several recent decisions of the Tribunal that bear to varying degrees on this point; see Re Scrivener and Secretary, Department of Social Services [2014] AATA 537, Re Goksu and Secretary, Department of Social Services [2014] AATA 752, Re Jones and Secretary, Department of Social Services 2014 [AATA] 885, Re Udrzal and Secretary, Department of Social Services 2014 [AATA] 232, Re Sukkar and Secretary, Department of Social Services 2014 [AATA] 480 and Re HMLS and Secretary, Department of Social Services 2014 [AATA] 693, for example.

   As to the proposition tentatively advanced at hearing by the Secretary’s representative that the correct date to assess eligibility for indefinite portability is the date when the primary determination of claim was made, I do not agree. I see no reason why this should be so. 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.

   Thus, in the present case, the Applicant’s request for indefinite portability must be determined on the day the request was made, and subsequently, in view of changing circumstances, if it is necessary to do so.”

8. The Respondent observed in submissions before the Tribunal that[25]:

   “In line with Morton, the AAT in WMKR permits a decision maker to consider materials that were not before the original or intermediate decision makers. Such an approach is consistent with the High Court decision in Shi v Migration Agents Registration Authority [2008] 235 CLR 286.”

   [25] Exhibit 3, page 6, paragraph 6.

9. The Tribunal refers to Shi v Migration Agents Registration Authority (2008] 235 CLR 286; 103 ALD 467. The High Court in Shi generally established that in the absence of a statutory basis for restricting what the Tribunal can consider at the time of the initial decision; the Tribunal should take into account additional material(s) and event(s) which transpired after the initial decision under review. Any limitation(s) as to what the Tribunal should consider can be found in the legislation which empowers the primary decision maker. Justice Kiefel, as she was then, stated at paragraph 119:

   “The principal question on this appeal concerns the review by the Administrative Appeals Tribunal ("the Tribunal") of a decision of the Migration Agents Registration Authority ("the Authority") to cancel the appellant's registration as a migration agent. The question is whether, on that review, the Tribunal is restricted to a consideration of facts and events which had occurred at the time of the Authority's decision. The answer to it lies in the identification of the powers which are to be exercised by the Tribunal and the specific decision to which they are addressed.”

10. In the present application, the Tribunal will follow the principles established in WMKR and Shi, and will not only consider the earlier evidence before the decision makers at the time their decisions were made, but if the evidence subsequent to this indicates circumstances may have changed, the Tribunal may consider this if it is necessary.

    Impairments

11. Evidence before the Tribunal is that the Applicant was involved in an accident on 13 July 2004. Whilst riding a dirt bike at 70 kilometres per hour, the Applicant came off the bike and was thrown approximately five meters in the air and landed on his back and buttocks. This accident resulted in the Applicant sustaining a range of injuries[26].

    [26] Exhibit 1, T41, page 281.

12. A range of Impairments are identified in the submissions before the Tribunal, some of which the Tribunal does not consider are able to be considered as part of this application, as they do not meet the relevant legislative requirements. The Tribunal has listed these impairments and briefly stated its reasons below:

    (a)Chronic Fatigue: was not considered diagnosed by the Tribunal as submitted materials do not confirm a diagnosis as required by the Determination[27].

    (b)Upper Limbs Function: the Tribunal considered this impairment to still be under investigation, with reference to relevant submissions[28].

    (c)Hyperthyroidism: the Tribunal considered there to be insufficient medical evidence to determine this impairment[29].

    (d)Opiate dependency: the Tribunal considered there to be insufficient medical evidence to determine this impairment[30].

    [27] Exhibit 1, T29, page 152; T30, page 154; and T32, page 170.

    [28] Exhibit 1, T20, page 120; T21, page 128; and T29, page 152.

    [29] Exhibit 1, T29, page 152; and T30, pages 154.

    [30] Exhibit 1, T30, page 154.

13. For the purposes of this application, and after review of the evidence before it, the Tribunal is satisfied the following impairments are relevant:

    (a)Spinal condition;

    (b)Continence conditions; and

    (c)Mental health condition.

14. The Tribunal will consider each impairment identified in the above paragraph of this decision in accordance with s1218AAA(b) of the Act, in particular whether the impairment meets the relevant provisions to be deemed a “severe impairment” in accordance with the Act and Determination.

15. The Tribunal notes that a large range of historical medical reports, diagnostic images, and medical letters were submitted for consideration by the Applicant. Some of these reports date as far back as 2004 (at the time of the Applicant’s motor bike accident)[31]. The Tribunal has considered these documents, and where relevant referred to them in the following review of the identified impairments which follow in these reasons.

    [31] Refer to range of documents at Exhibit 1, T40 – T42, pages 187 to 288.

    Spinal condition

16. Submissions before the Tribunal confirm the Applicant has suffered injuries to their spine following a motor bike accidence in 2004. This single condition has caused multiple impairments for the Applicant, with reference to the submissions before the Tribunal.

17. The Tribunal considers the Applicant’s spinal condition to be permanent, as it is fully diagnosed, fully treated, and fully stabilised in accordance with the Determination. This is with reference to the Medical Certificate from Dr Ralph Stanford, Orthopaedic and Spine Surgeon of 13 May 2020, which states[32]:

    [32] Exhibit 4.

    “I have assessed [the Applicant] based on functional tables for the assessment of work-related impairment for disability support pension.

    In summary [the Applicant’s] conditions are listed below.

    ·Severe burst fracture of the L2 vertebra resulting in incomplete paraplegia with a neurological level of L1, 2004.

    ·Complex surgery to stabilise the L2 vertebra and fuse the upper part of the lumbar spine, 2004.

    ·Severe neuropathic pain of the right lower limb because of spinal nerve injury due to L2 burst fracture, 2004.

    ·Disc degeneration of the lumbar spine at L5/S1 requiring fusion surgery in 2011.

    ·Complete avulsion of the right hamstring muscles from the ischial tuberosity in 2016.

    ·Rapid, advanced disc degeneration of the lumbar spine at L4/5 with severe mechanical back pain leading to immobility and significant disability.

    Table 1 – Functions requiring physical exertion and stamina.

    20 points – there is severe functional impact on activities by mechanical low back pain and right lower limb neuropathic pain and weakness. The neuropathic pain and weakness are the result of spinal nerve injury suffered in a severe fracture of the L2 vertebra in 2004. This pain has deteriorated over time and has not responded to maximal therapy with pain relieving medications or other treatment provided by specialist pain management and spinal injury rehabilitation at Prince of Wales Hospital. The back pain is due to severe degenerative change in the L4/5 intervertebral disc with bone to bone contact and abnormal movement between vertebrae.

    Table 3 – Lower Limb function.

    20 points – there is severe functional impact on activities due to right lower limb neuropathic pain and weakness. The neuropathic pain and weakness are the result of spinal nerve injury suffered in a severe fracture of the L2 vertebra in 2004. This pain has deteriorated over time and has not responded to maximal therapy with pain relieving medications or other treatment provided by specialist pain management and spinal injury rehabilitation at Prince of Wales Hospital. There is additional right lower limb weakness and disability due to complete rupture of the hamstring muscles where they were attached to the ischial tuberosity.

    Table 4 – Spinal function.

    10 points – there is moderate functional impact on activities due to previous spinal fusions to treat severe injury and advanced disc degeneration. Spinal fusion was performed in 2004 between L1 and L3 to treat a severe fracture of L2. Fusion was performed in 2011 to treat disc degeneration at L5/S1. These fusions have left only two remaining mobile disks between L3 and L5, thus resulting in significant limitation of lumbosacral movement. There is now also advanced degeneration at the L4/5 level with bone to bone contact and unstable movement, resulting in severe back pain with most activities.

    [The Applicant] has a severe impairment due to mechanical back pain and neuropathic right lower limb pain. He is unstable to perform work independently of a program of support. His condition is permanent and this pain levels are deteriorating over time. His condition will not improve in the next 5 years or any time thereafter.”

    [Tribunal insertions for clarity]

18. The Tribunal is required to assess the functional impact of the Applicant’s spinal condition against the Impairment Tables as set out in the Determination, in order to determine an Impairment Rating for the Applicant’s spinal condition.

19. Section 10(3) of the Determination provides:

    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.

20. Therefore, the Tribunal is required to assess each impairment associated with the Applicant’s spinal condition under the relevant table, but is not able to assign an Impairment Rating under more than one table.

21. With regards to the neuropathic pain suffered by the Applicant which Dr Stanford mentions in his Medical Certificate of 13 May 2020, s6(9) of the Determination requires the following:

    Assessing functional impact of pain

    (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

    (a)  acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)  chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    …

22. Before looking at each of the abovementioned Impairment Tables in detail, the Tribunal notes that the Determination specifically requires that any reported symptoms by the Applicant in relation to their condition, must only be taken into account when there is corroborating evidence, as per s8(1) of the Determination:

    Information that must not be taken into account in applying the Tables

    (1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

23. Further, s9 of the Determination requires the Tribunal to assess the Applicant’s impairment when they are using any aids, equipment or assistive technology that the person has and usually uses:

    Use of aids, equipment and assistive technology

    A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.

    Submitted evidence relating to spinal condition

24. Key submissions before the Tribunal with reference to the Applicant’s impairments from treating professionals include:

    (a)A Medical Certificate from Dr Ralph Stanford, Orthopaedic and Spine Surgeon of 13 May 2020, referenced in earlier paragraphs of these reasons[33].

    [33] Exhibit 4.

    (b)A Health Professional Advisory Unit Opinion dated 8 November 2018, which states[34]:

    [34] Exhibit 1, T42, pages290-91.

    “[The Applicant] reported at the JCA of 4/6/18 that he drives, is restoring a house, he likes to work on cars, and as a form of therapy he swims and surfs. The evidence notes that he is reporting capacity to perform many activities of daily living (ADLs) independent of assistance, as well as engaging in some activities such as water sports. He is able to drive, work on restoring a car and home and travel independently, however he must self-pace this activity and utilises distraction as a mode of pain relief. Dr Halliday stated that he does these activities through determination despite pain and risk… Dr Lee stated that physical activity such as water activity has been encouraged as a form of therapy, both physical and psychological.”

    (c)A letter of 20 August 2018 from Tim Jones, the Applicant’s treating Physiotherapist, stating[35]:

    [35] Exhibit 1, T38, page 184; repeated at Exhibit 1, T41, page 283.

    “I write this report as [the Applicant’s] current treating physiotherapist, and I have worked with him on and off since 2012.

    As you would know, [the Applicant] sustained a severe spinal cord injury back in 2004 from a motorbike accident, with resultant major lumbar spine surgery. He has permanent bladder and bowel dysfunction, requiring self-catheterising. He has totally lost all right lower limb sensation, so is at extreme risk of burns and pressure sores, with no hot-cold pin prick sensation. His right lower limb has enough active muscle control to function, but [the Applicant] walks with an obvious limp and fatigues rapidly. He requires walking poles for any distance over 500 metres and cannot tolerate more than 1km walk without severe increased pain. Despite no sensation in his right leg, [the Applicant] experiences constant pain and frequent tightness, especially in his quads, hamstrings and foot. He is prone to falling over from tripping due to lack of control and awareness of his right foot.

    [The Applicant] also suffers from chronic cervical and thoracic pain now too, with known disc bulge issues. He relies on physio for relief of pain and tightness but unfortunately its only temporary relief. His symptoms are gradually deteriorating and future further spinal surgery is a possible outcome. His right hamstring has chronic, permanent issues from severe muscle tearing and atrophy…”.

    [Tribunal insertions for clarity]

    (d)A letter from Dr Ralph Stanford, Orthopaedic Spine Surgeon, dated 8 August 2018, which states[36]:

    [36] Exhibit 1, T41, page 275.

    “At present [the Applicant’s] function is limited because of a number of reasons but most importantly because of neuropathic pain. He is unable to perform any particular task for more than 15 minutes, whether this be sitting, standing or walking. His employment prospects are very limited under the circumstances. There is no surgical procedure that would improve his condition because it is fundamentally a result of the old injury from 2004.”

    [Tribunal insertions for clarity]

    (e)A form from Centrelink (Additional Medical Evidence for Disability Support Pension Record) completed by a staff member on 13 June 2018 recorded comments from Dr B Lee, a Spinal Cord Injury Medicine Specialist, in relation to the Applicant’s spinal condition. In relation to the Applicant’s paraplegia, it reports the Applicant, “… advised Dr Lee his condition has worsened in the last year”. The report recorded the following prognosis from Dr Lee, “Medication side effects/impacts – some medication makes him a little bit drowsy. Pain impacts – ‘pain affects ability to perform housework; feels tired most of the time”. With regard to functional impacts, the following is reported from Dr Lee, “Spinal – Bending and turning trunk limited by spasticity. Bneding also limited by torn hamstring; poses safety issue; needs to avoid bending or stooping… has to stand a lot of the time; gets pain and works out how to manage it; manages driving and travel postural breaks; stands for most of the time during appointments with Dr Lee”[37]. [sic]

    [37] Exhibit 1, T29, pages 151 and 152.

    (f)A Job Capacity Assessment Report of 19 June 2018, completed by a Registered Nurse and contributed to by a Registered Occupational Therapist, with the following comments[38]:

    [38] Exhibit 1, T32, pages 165 and 166.

    “The client reports: He lives alone in his own home, for the last 18 months. It is on the side of the hill. There are stairs which he can avoid by entering the side. Going down the steps is easier to manage. He is independent with all daily hygiene routines, manages his own chores, shopping, meals and laundry. He has applied for assistance with NDIS and hopes to get help with some of these chores. Today the client presented with a walking stick. The client reports he does not use it all the time. The client reports he has a car and he currently drives to Sydney on a fortnightly basis to attend treatment with Dr Lee at the spinal rehabilitation clinic. He is hoping that with NDIS support he would be able to be transported to Sydney, or at least have his accommodation funded to stay overnight for treatment… he drives to Queensland to visit his daughters about x3 times per year. He also travelled by train to Queensland. He travels overseas regularly, by himself, independently. Over the last 5 years, about x3 to Sumatra, where his friend has a surf camp and he is able to stay at very little expense. He also travelled to Bali earlier this year and is booked to go there again later this month to visit his girlfriend. (Department records show that the client travelled overseas multiple times over the years, more recently in 2012, 2014, 2015, 2016 and 2018.)… He has pot plants and would do light gardening. Art – painting at home. Likes to drive to the beach at the Surf Club and watch the sea. Yesterday walked for about 1km. It is difficult to do prolonged walking and bending. He loves paddling in the surf but has not been able to do much of this over the last year. He tried riding a push bike (Christmas 2017) but finds it too hard to do. He has a recreational boat licence and owns a 14 foot tinnie which he purchased in 2017, but has not used to date. He reports he is unable to use it by himself. At the end of the interview the client explained a few points to note: He is looking for funding to participate in a medicinal cannabis trial. The NDIS has been approved. He appealed, to access increased financial support regarding equipment used for his bladder condition. Some of his treatments is postponed, such as physiotherapy and botox (for bladder, thigh and foot) – the latter to take place simultaneously, review of cervical spine (new upper limb symptoms were reported), until this return from his pending trip to Bali”.

    …

    Dr Lee (Spinal Cord Specialist) noted in a telephone conversation… that the client takes ‘some medications which makes him a little bit drowsy’. That the client’s pain affects his ability to perform housework and that he feels tired most of the time. The client’s self-reported activities – travelling requires some level of stamina and endurance – are indicative that he could perform some work-related tasks which do not involve heavy manual labour. There is evidence as per some departmental records (declared earnings) that the client has been able to perform some work-related tasks”.

    (g)The Prince of Wales Hospital Discharge Summary, dated 27 July 2017, stating[39]:

    [39] Exhibit 1, T9, pages 83 to 88.

    “History of Presenting Illness:

    …

    In context of chronic neuropathic pain usually well controlled with distraction, exercise, Lyrica

    Hamstring injury while hiking in PNG 16 months ago

    Subsequent reduction in ability to surf, work, ride bicycle and thus no pain control

    Sharp incident thigh and hip pain on top of usual burning / shooting pain

    …

    OCCUPATIONAL THERAPY SUMMARY

    …

    [The Applicant] is independent with ADLs, mobility and drives a standard vehicle. He reported he does not use any assistive equipment to maintain his independence. [The Applicant] has been independent with self-care on the ward.”

    [Tribunal insertions for clarity]

1. The Tribunal observes the Applicant’s reported comments in the Job Capacity Assessment Report of 19 June 2018, where they refer to undertaking activities such as driving to Queensland (from his residence in New South Wales), travelling overseas, light gardening, painting at home, and paddling in the surf[40]. Further, the Tribunal observes an earlier hospital discharge summary dated 27 July 2017 stating that the Applicant suffered a hamstring injury “while hiking in PNG”.

   [40] Exhibit 1, T32, page 165.

2. It is these reported activities of the Applicant which seem inconsistent with the limitations of the Applicant as described in Dr Stanford’s letter of 8 August 2018 where he stated, “function is limited because of a number of reasons but most importantly because of neuropathic pain. He is unable to perform any particular task for more than 15 minutes, whether this be sitting, standing or walking”[41].

   [41] Exhibit 1, T45, page 275

3. This point was also identified in the Health Professional Advisory Unit Opinion of 11 November 2018, where the assessor noted[42]:

   “The evidence notes that he is reporting capacity to perform many activities of daily living (ADLs) independent of assistance, as well as engaging in some activities such as water sports. He is able to drive, work, on restoring a car and home and travel independently, however he must self-pace this activity and utilises distraction as a mode of pain relief. Dr Halliday stated that he does these activities through determination despite pain and risk… Dr Lee stated that physical activity such as water activity has been encouraged as a form of therapy, both physical and psychological”.

   [42] Exhibit 1, T42, page 291.

4. This issue was further addressed by the Applicant under cross-examination at the hearing[43]. The Tribunal has transposed relevant exchanges:

   [43] Transcript dated 19 May 2020, page 14, lines 41 to 47; page 15, lines 1 to 19; and page 16, lines 1 to 41.

   Respondent:  So, this is the Job Capacity Assessment that was undertaken.  About halfway down there’s a subheading called ‘Additional Information’ and below that is all the things you reported to the assessor?

   Applicant: Yes, yes.

   Respondent: On the third line down, it says you’re independent with all daily routines including shopping.  So, I mean that evidence there is sort of a little bit contradictory in some way to what you’ve just said.  I’m just seeking to clarify - - -?

   Applicant: No, it’s not - it’s not - that’s not in contradiction to anything.  I told you, I’ve had to look after myself because my NDIS plan was not being executed properly and I have spent the last couple of years since I’ve had my NDIS plan trying to get it to work for me.  So, even though you might have an NDIS plan, if you can’t access the help that you need, what can you do?  You know, I have no choice but to go and do my own shopping, otherwise I starve, unless I can get help and I - I don’t have family around me.  Sometimes I’ve got - if there’s friends that can help, I’ll use them but I had to - I’ve had to live alone and look after myself, otherwise you die and it’s not that I shouldn’t - - -

   Respondent:  No, I understand.  Merely what I was - - - ?  

   Applicant: I shouldn’t be - and I shouldn’t be living like that and that’s what we’ve - we’ve been trying to correct now for years and if you were to bother to look at my NDIS issues and problems, I’m not getting the help that I need and want.  But what do I do? Do I just - do I roll over and die?  It’s difficult and I scream in pain sometimes and people are not around to see that and if it does happen in public it scares people.  If I get a big spasm, you know, in public, people run.  You know, it’s not nice.

   …

   Respondent:  And, again, to April 2018, what sort of hobbies were you into at that time?  I see you told the assessor that you did like gardening and painting at home; is that right? 

   Applicant: I - I love gardening, I love painting, I love cleaning, I love doing things, I love restoring old cars.  I used to make surfboards.  I love all of that.  Can I do it?  No, I’ve had to get rid - you know, my - my old car collection is all but gone because I can’t do anything.  So, you know, painting, I haven’t really done - like painting I do, as in art painting, yes.  Painting as in painting houses, one of the reasons I had to sell my house is I could not keep up with the maintenance, I couldn’t do it.  So, that’s the other issue - - -

   Respondent:  And in April 2018, so were you doing that art of painting and the light gardening then and was it sort of a situation similar to when you go shopping, that is, if the pain allows you, you would do but otherwise you wouldn’t?  

   Applicant: The best - the best form of medication I have for pain at the moment is distraction.  I have to constantly find things that I can do in - in order to distract me from my pain. Doing artwork, fantastic.

   Respondent:  Yes, I know?  

   Applicant: Light - light gardening, yes, it’s got to be set up properly because I can’t bend down. I can’t lift things up but I can potter around and I can water things when I feel up to it.  When I don’t feel like it, I can’t do anything.  When I have a - if I have - what I call an event, if I do something and it’s - and I’ve overdone it and I get pain, sometimes that can last for two or three days, so what do I get?  I get two or three days in bed before I can, you know, start doing things again and I have to remember that I have a - I have limitations.

   Respondent:  Okay.  And also around that time I see there you reported to the - there’s a note almost at the bottom there saying yesterday walked for about one kilometre and that you used to go and watch the sea.  So, in April 2018, was that something you also used to do, sort of go on these short walks if you could?  

   Applicant: No, that was a - that was a - that was a test, that walk, to see if I could do it and I walked about a kilometre and, yes, it hurts.  It doesn’t hurt at the time, six or eight hours later it will come through and - and my neuropathic pain is - is horrible but I have to - I’m trying to work with my - I’ve just had more surgery, I’m only freshly out of hospital now.  Only - I’ve only been out for three weeks.  I’m working with my physio at the moment to work out what I can and can’t do and how far I can walk and what I - you know, what my capabilities really are, so we’re trying to measure that.  I’m trying desperately to stay out of a wheelchair because my environment does not - at the moment is not suited for a wheelchair and - and so being upright is very important to me and I’m fighting like hell to maintain that.         

5. The Applicant in oral submissions to the Tribunal further stated that they:

   (a)Are currently working on a plan for National Disability Insurance Scheme (or ‘NDIS’) funding to assist with fixing their home to make it more liveable for them given their limitations[44].

   (b)Are able to undertake their own shopping, with the assistance of a walking frame or trolley, the use of a disabled parking spot, but that they did have difficulties getting the groceries from their car to their kitchen after such trips. The Applicant qualified this evidence by saying that they had been struggling with these shopping trips and had been paying someone to assist them, and are hoping that once their NDIS funding is established that they can acquire more assistance[45]. Further, they submitted that they keep well stocked cupboards, as there are times they are not able to get to the shops as they may not be up to going out due to pain[46].

   (c)Have moved closer to their children so their children can travel to them without having to drive to Queensland. The Applicant stated that they have driven themselves to Sydney for specialist appointments, but do not do this regularly as they require rest stops, rely on cruise control (from hamstring injury) and rely on mirror checks due to not having rotation to perform shoulder checks[47].

   (d)They rely on assistance when they travel overseas, which involves getting a wheelchair onto the plane, with assistance through to a taxi on the other end. When on the plane they need to stand and sit constantly and take medication such as Endone[48].

   (e)Currently have an Occupational Therapist assisting with fixing their home and living environment in order to reduce the need to bend. In addition, the Applicant has a cleaner, and is currently seeking to get someone into his home a couple of nights a week to assist with meal preparation[49].

   [44] Transcript dated 19 May 2020, page 12, lines 30 to 43.

   [45] Transcript dated 19 May 2020, page 13, lines 1 to 40.

   [46] Transcript dated 19 May 2020, page 13, lines 42 to 47; and page 14, lines 1 to 16.

   [47] Transcript dated 19 May 2020, page 18, lines 43 to 47; and page 19, lines 1 to 13.

   [48] Transcript dated 19 May 2020, page 19, lines 40 to 47; and page 20, lines 1 to 13.

   [49] Transcript dated 19 May 2020, page 13, lines 20 to 35.

6. Based on the submissions before the Tribunal, the Tribunal considers that the relevant Impairment Tables to assess the Applicant’s spinal condition are:

   (a)Table 1 - Functions requiring Physical Exertion and Stamina[50];

   (b)Table 3 – Lower Limb Function[51]; and

   (c)Table 4 – Spinal Function[52].

   [50] The Determination, pages 12 to 14.

   [51] The Determination, pages 17 to 19.

   [52] The Determination, pages 20 and 21.

   Table 1 – Functions requiring Physical Exertion and Stamina

7. The introduction to Table 1 – Functions requiring Physical Exertion and Stamina, stipulates the following requirements before assessment of an Impairment Rating (Tribunal underlining for emphasis)[53]:

   [53] The Determination, pages 12 to 14.

   “Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

   Self-report of symptoms alone is insufficient.

   There must be corroborating evidence of the person’s impairment.

   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   ·a report from the person’s treating doctor;

   ·a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);

   ·a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);

   ·results of exercise, cardiac stress or treadmill testing.

   [Tribunal underline for emphasis]

8. The Tribunal notes that Dr Stanford’s assessment in his Medical Certificate of 13 May 2020 that the Applicant met the “severe” Impairment Rating in accordance with Table 1 – Functions requiring Physical Exertion and Stamina. The commentary offered by Dr Stanford does not specifically address the criteria required to be met to in order to qualify for that particular Impairment Rating[54].

   [54] Exhibit 4.

9. To qualify for a “severe” Impairment Rating of 20 points under Table 1 – Functions requiring Physical Exertion and Stamina, the Applicant must satisfy one of the descriptors listed in Item(1)(a) of the Table in the Determination, and also in Item (1)(b)[55]. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

   [55] The Determination, page 14.

Points

Descriptors

20

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

(1) The person:

(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii) use public transport without assistance; or

(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

[Tribunal underlining for emphasis]

1. In assessing whether the descriptors for a “severe” Impairment Rating apply to the Applicant, the Tribunal is required to assume the Applicant uses a walking aid in accordance with s9 of the Determination, as evidence before the Tribunal is that the Applicant sometimes relies on this to undertake tasks[56].

   [56] Exhibit 1, T32, pages 165 and 166.

2. The Social Security Guide[57] provides the following clarification in relation to the term “assistance” as used in the descriptor for Table 1 – Functions requiring Physical Exertion and Stamina:

   [57] Guides to Social Policy Law: Social Security Guide, Chapter 3.6.3.05, ‘Guidelines to the Rules for Applying the Impairment Tables’ <

   Use of the term 'assistance' within the Tables

   The term assistance is used in numerous descriptors within various Impairment Tables. In all of these cases assistance means from another person, rather than any aids, equipment or assistive technology the person has and usually uses.

   Given that a person's impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology they have and usually use, any further assistance would be from another person.

   Example 1: Table 1 - Functions requiring Physical Exertion and Stamina uses the term assistance in the 20- and 30-point descriptors. To meet these descriptors a person would require assistance from another person to undertake the activities listed in the descriptors, even while using a wheelchair or other mobility device they have and usually use.

   …

   [Tribunal underlining for emphasis]

3. The Tribunal refers to the oral submissions of the Applicant and written submissions before the Tribunal, which indicate that the Applicant has:

   (a)undertaken grocery shopping without the assistance of another person[58];

   (b)mobilised themselves from a carpark to a shopping centre or supermarket without the assistance of another person[59];

   (c)travelled by train to Queensland[60]; and

   (d)undertaken light day to day household activities such as light gardening[61].

   [58] Transcript dated 19 May 2020, page 15, lines 27 to 31.

   [59] Transcript dated 19 May 2020, page 12, lines 46 and 47; and page 13, lines 1 to 18.

   [60] Exhibit 1, T32, pages 165 and 166.

   [61] Transcript dated 19 May 2020, page 16, lines 11 to 25.

4. The Applicant’s submissions to the Tribunal is that they have performed tasks such shopping without assistance from another person, albeit they would benefit from assistance of another person for such tasks due to their neuropathic pain.

5. Based on the evidence before the Tribunal, the Tribunal is not satisfied that the Applicant has met any of the descriptors in Item (1)(a) of the “severe” Impairment Rating for Table 1 – Functions requiring Physical Exertion and Stamina.

6. Accordingly, the Tribunal is not satisfied the Applicant has met the requirements of a “severe” Impairment Rating as per the description outlined in Table 1 – Functions requiring Physical Exertion and Stamina in the Determination.

7. Based on the corroborating evidence before the Tribunal, the Tribunal finds that the appropriate Impairment Rating in accordance with Table 1 – Functions requiring Physical Exertion and Stamina, would be a “moderate” Impairment Rating, attracting 10 points[62].

   [62] The Determination, page 13.

8. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

Points

Descriptors

10

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

83.      

84.     (1) The person:

85.      

(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

86.      

(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).

[Tribunal underlining for emphasis]

Table 3 – Lower Limb Function

1. The introduction to Table 3 – Lower Limb Function, stipulates the following requirements before assessment of an Impairment Rating (Tribunal underlining for emphasis):

   “Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

   Self-report of symptoms alone is insufficient.

   There must be corroborating evidence of the person’s impairment.

   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   ·a report from the person’s treating doctor;

   ·a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

   ·a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

   ·results of diagnostic tests (e.g. X-Rays or other imagery);

   ·results of physical tests or assessments showing impaired function of the lower limbs.

   For the purposes of this Table lower limbs extend from the hips to the toes.

2. The Tribunal notes that Dr Stanford’s assessment in his Medical Certificate of 13 May 2020 that the Applicant met the “severe” Impairment Rating in accordance with Table 3 – Lower Limb Function. The commentary offered by Dr Stanford does not specifically address the criteria required to be met to in order to qualify for that particular Impairment Rating[63].

   [63] Exhibit 4.

3. To qualify for a “severe” Impairment Rating of 20 points under Table 3 – Lower Limb Function, the Applicant must satisfy all the descriptors in Item 1(a) and (b) of the table in the Determination. Additionally, they must satisfy one of the descriptors in Item 2(a) or (b)[64]. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

   [64] The Determination, page 19.

Points

Descriptors

20

There is a severe functional impact on activities using lower limbs.

(1) The person:

(a) is unable to do any of the following:

(i) walk around a shopping centre or supermarket without assistance;

(ii) walk from the carpark into a shopping centre or supermarket without assistance;

(iii) stand up from a sitting position without assistance; and

(b) requires assistance to use public transport.

(2) This impairment rating level includes a person who requires assistance to:

(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b) move around using walking aids (e.g. a quad stick, crutches or walking frame)i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

1. Clearly the reference to “per calendar year” on the first page of the letter is incorrect, as Item 2 in s1217 of the Act states that absences outside of Australia are, “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”.

2. The third page of the same letter from the ARO to the Applicant of 27 November 2018, then goes on to state[101]:

   “A person receiving Disability Support Pension can continue to receive the payment for up to 28 days in a 12 month period while outside Australia.

   …

   As you are not assigned an impairment rating of at least 20 points under a single impairment table, you do not have a severe impairment and you cannot be paid Disability Support Pension for more than 28 days in a 12 month period while outside Australia.”

   [101] Exhibit 1, T47, page 303.

3. Whilst the Tribunal is sympathetic that on reading the content of the letter of 27 November 2018, the Applicant may have formed the view that the application of the 28 day period of absence from Australia was on a calendar basis and not a rolling period, communications made by the Agency to the Applicant are not within the purview of this Tribunal’s jurisdiction.

4. The Tribunal notes that it is open to the Applicant, should they still feel aggrieved, to consider applying to the Scheme for Compensation for Detriment caused by Defective Administration (or the “CDDA Scheme”), established under the Public Governance, Performance and Accountability Act 2013 (Cth). The Tribunal qualifies this observation on the basis that the Tribunal has no jurisdiction to make such an award under the CDDA Scheme; and the Tribunal makes no findings in these reasons as to the Applicants’ prospects of success if any application for such relief were to be put forward.

5. In the present application, the circumstances in which a maximum portability period may be extended are only those circumstances listed in sections 1218C(1) and 1218AAA(1).

6. As none of these circumstances apply to the Applicant, the decision to suspend the Applicant’s DSP on 3 February 2019 was correct, as the DSP was not payable to the Applicant due to his absence from Australia in accordance with s1217 of the Act.

   Conclusion: Whether the Applicant’s DSP should have been suspended on 3 February 2019?

7. The decision under review is affirmed.

   DECISION

8. The decision under review in relation to the application for unlimited portability of the Disability Support Pension is affirmed.

9. The decision under review in relation to the suspension of the Disability Support Pension on 3 February 2019 is affirmed.

   I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola

   ……………[SGD]………………

   Associate

   Dated: 6 July 2020

   Date of hearing:  19 May 2020

   Applicant:  Mr Gary Harrison (self-represented)

   Solicitor for Respondent:       Mr Chris Murphy, Services Australia

   “ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit

Number

Description

1

Section 37 T-Documents, received 1 November 2019, pages 1 to 381.

2

Respondent’s Statement of Issues, received 1 November 2019, page 1.

3

Respondent’s Statement of Facts and Contentions, received 27 March 2020, pages 1 to 13.

  4

Letter from Dr Ralph Stanford, dated 13 May 2020, received 19 May 2020, pages 1 to 3.