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

Haygarth and Secretary, Department of Social Services (Social services second review) [2021] AATA 3242 (9 September 2021)
Division:GENERAL DIVISION
File Number: 2020/2454
Re:Darren Haygarth
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:9 September 2021
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes it with a decision that the Applicant is entitled to Disability Support Pension under the Social Security Act1991 (Cth) with effect from 24 December 2019.
............................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – several conditions including cancer of the oesophagus – whether fully diagnosed, treated and stabilised – whether 20 points for depression and anxiety should be allocated – decision under review set aside and substituted.
Legislation
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)
Cases
Fanning and Secretary, Department of Social Services [2014] AATA 447
Muir and Secretary Department of Employment and Workplace Relations [2005] AATA 902
Uebergang and Secretary Department of Families Housing Community Services and Indigenous Affairs [2011] AATA 642
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
9 September 2021

The Applicant, Mr Darren Haygarth, seeks a review of the decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) on 25 March 2020 to affirm a decision made by an authorised review officer (“ARO”) of Services Australia, dated 3 January 2020. The ARO’s decision affirmed a decision rejecting the Applicant’s claim for Disability Support Pension (“DSP”), which the Applicant had made on 24 December 2019.
The hearing in this matter was conducted on 27 January, 7 May and 2 July 2021 by telephone. The Applicant was self-represented. The Respondent was represented by Mr Quanchi, a lawyer representing Services Australia.
The Applicant gave affirmed evidence, as did Ms Tracy James, Dr Ebrahim Heydari and Dr Paul Grech. Each was cross-examined. No witnesses were called by or on behalf of the Respondent.
Legislation
Eligibility for DSP is governed by s 94 of the Social Security Act 1991 (Cth) (“Act”) which relevantly provides:
(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;
…
ISSUES
It is not in dispute that the Applicant satisfies s 94(1)(a) of the Act.
It is in dispute however, whether the Applicant satisfies s 94(1)(b) of the Act. This raises the sub-issues of whether, during the qualification period (which was from 2 September 2019 to 2 December 2019), the Applicant’s conditions were:
(a)fully diagnosed, treated and stabilised; and
(b)whether they attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth) (“Impairment Tables”).
The requirement that any of his conditions must be fully diagnosed, treated and stabilised

– that is, that they must be permanent – arises under paragraphs 6(3) to (7) of the Impairment Tables.
The Tier 1 assessment of this matter found that the Applicant’s cancer of the oesophagus was permanent within the statutory meaning of the Act and was therefore fully diagnosed, treated and stabilised. However, Tier 1 found that the Applicant’s anxiety, although fully diagnosed, was not fully treated or stabilised.
The next issue before this Tribunal is whether, should the Applicant satisfy s 94(1)(b) of the Act, he also satisfies s 94(1)(c) of the Act.
The decision under review must be affirmed if the Applicant does not satisfy

ss 94(1)(b) and/or (1)(c) of the Act.
CONTENTIONS
The Applicant contends that he is seeking a review of the decision of Tier 1 “after discussions with my psychologist” and contends that the decision under review should be set aside. Psychological matters are therefore in issue from the outset.
The Respondent contends that the Applicant does not satisfy s 94(1)(b) of the Act.
In particular, the Respondent contends, contrary to the findings of Tier 1, that the Applicant’s gastroenterological conditions, being Dumping Syndrome and GORD (after oesophageal surgery), were fully diagnosed at the time of the qualification period but that they were not fully treated and stabilised.
With respect to anxiety, the Respondent contends, also contrary to the findings of Tier 1, that the Applicant’s condition was not fully diagnosed, treated or stabilised.
The Respondent further contends that even if the Applicant does satisfy s 94(1)(b), he does not satisfy s 94(1)(c) of the Act.
The Respondent contends, therefore, that the decision under review should be affirmed.
EVIDENCE
Mr Haygarth
I provide a summary only of the evidence of the Applicant.
The Applicant, Mr Haygarth, gave evidence that he was born in 1964 and lives near Ararat in Victoria. He said he is a single man with a daughter who lives with her mother.
The Applicant said that he left school in 1981 having completed Year 11.
After leaving school he worked as a storeman/packer and then for 10 years worked for a local council, first as a garbage collector and then in road maintenance.
After this he went to work on the wharves where he worked as foreman on the shifts and driving a straddle crane.
In 2016 he had an oesophagostomy. He was off work for 12 months after the surgery but did go back to work on normal duties and was given lighter tasks to do. He said he “was looked after by my workmates and my manager”. [1]
[1] Transcript of Proceedings 7 [35].
Mr Haygarth then said he stopped working altogether in July 2019.
He had surgery to his oesophagus after being diagnosed with cancer of the oesophagus.
Over many years beforehand, he had suffered indigestion and reflux but an examination by camera revealed he suffered from Barrett’s Oesophagitis. He was then diagnosed with cancer resulting in the removal of most of his oesophagus and part of his stomach.
Since that time, he has managed to get by without most of his oesophagus.
The remainder of his evidence addressed the issue of the Impairment Tables.
Ms Tracy James
Ms James gave affirmed evidence that she knew the Applicant and had cared for him when he went into a coma and “right through the nursing”.[2]
[2] Transcript of Proceedings 18 [35].
She said the Applicant “when [he] was very ill…was able to try and go back to work because he wanted to work, he’s always worked all his life …”.[3]
[3] Transcript of Proceedings 18 [10].
She said the Applicant would take “pureed fruit and things like that to work”. But she said, “if he ate, he found himself very ill and had to then run to the toilet”. She said the Applicant “is too embarrassed to tell you this but he has soiled his pants at work on several occasions”.[4]
[4] Transcript of Proceedings 18 [10].
Ms James said the Applicant has “got no oesophagus” so he “must sleep upright when he’s in bed, because he’s got no flap”.[5] Because of that she said “all the acids come up”. This causes him, she said, “horrendous pain”.[6] As a result, she said, the Applicant “hates to sleep”.[7]
[5] Transcript of Proceedings 18 [20].
[6] Transcript of Proceeding 18 [20].
[7] Transcript of Proceeding 15 [19].
Ms James explained that “because of the dumping syndrome, because of his mental health, he couldn’t work any longer”.[8]
[8] Transcript of Proceedings 18 [35].
During the qualification period she said the Applicant “was constantly worried about soiling himself” and got “so thin… because he was too frightened to eat”.[9]
CONSIDERATION
[9] Transcript of Proceedings 19 [35].
Section 94(1)(a)
I have noted it is not in issue that the Applicant satisfies s 94(1)(a) of the Act and am satisfied that it is properly not in issue.
Section 94(1)(b)
I am satisfied that the Applicant meets the requirement in s 94(1)(b) of the Act. That is to say, I am satisfied that the Applicant’s conditions are fully diagnosed, treated and stabilised.
The Respondent’s contention that his conditions were fully diagnosed but not fully treated and stabilised by the end of the qualification period is therefore rejected.
I find further that the Applicant should be assigned 20 points under Table 10 of the Impairment Tables with respect to his digestive condition and also under Table 5 of the Impairment Tables with respect to his mental health condition.
In reaching my decision I have carefully considered the written Submissions filed by the Respondent.
I note that there was little or no cross-examination of the Applicant by the Respondent but that could be by way of oversight due to the making of arrangements for the medical evidence and I make nothing of it in any event.
Permanence
(a) Gastroenterological conditions
I am not in any doubt that the Applicant has suffered greatly because of his gastroenterological conditions.
I regard those conditions as best described as GORD and Dumping Syndrome.
I agree with Tier 1 that his conditions (which Tier 1 placed under the single heading—Cancer of the Oesophagus) are both fully diagnosed and fully treated and stabilised.
This accords with the medical evidence with respect to the qualification period which Tier 1 must have had in mind when reaching its decision.
In this particular instance, as a matter of regularity, I would doubt that the Applicant’s conditions could be regarded as fully diagnosed by medical persons, as is conceded, but not at the same time, given the nature of the conditions, be fully stabilised or, if fully stabilised, be not, at the same time, also fully treated. I do not base my decision on this proposition, however.
Stating that a condition is fully diagnosed, treated and stabilised at one point of a qualification period is not to say that at some later point, treatment might not alter or that it may no longer be fully stabilised in consequence. Indeed, at that point, it might even be diagnosed differently.
But at the critical time of the qualification period in this matter I consider it can quite reasonably be said that the Applicant’s conditions were fully diagnosed, fully treated and stabilised.
A Medical Certificate completed by Mr Hai T Bui Upper GI surgeon on 27 August 2019, just a few days before the start of the qualification period, actually specifies that the Applicant suffers from oesophageal cancer, GORD and Dumping Syndrome. It records that he had previously reported the oesophageal cancer as stabilised with previous surgery. Treatment is reported as medication and monitoring. As regards GORD and Dumping Syndrome, treatment is reported as medication and lifestyle modifications.
Reading this Certificate reasonably, I regard it as showing that the Applicant’s conditions are not only fully diagnosed but are also fully treated and stabilised. The treatment indicated may be open-ended and short on specifics but no other treatment is indicated. Indicating the general nature of treatment to be followed in relation to a condition does not mean the condition is not fully treated. Especially if nothing else of a specific nature is specified.
If it were otherwise, some applicants could never qualify for DSP until it became known whether some recommended treatment had been successful or not and that might take years to be known—especially perhaps in cancer cases. It is clear to me that Parliament would not intend someone to qualify for DSP only after it was known whether a treatment had worked or not on some perhaps quite distant future date.
Nor is authority cited to me to show that a condition is only fully treated after the specifics of the treatment are actually undertaken or the result of treatment is known.
If the Respondent was not satisfied about whether the Applicant’s conditions were fully treated and stabilised — although conceded as fully diagnosed — it was open to the Respondent to call Mr Bui to give evidence and to be examined in the matter. The Respondent, however, did not do this and nothing was explained to me as to why that was not done.
Going further, a medical report completed by Dr Heydari, general practitioner, dated 1 December 2019 — within the qualification period —states that at that date, the Applicant suffered from Barrett’s Oesophagus and Dumping Syndrome. A further medical report by Mr Bui dated 22 January 2020 — 6 weeks or so after the qualification period — records the Applicant as having “dumping syndrome, diarrhoea post his oesophagostomy operation for oesophageal cancer in 2016”.
There is no suggestion in any of these references that the Applicant’s conditions are not fully stabilised or fully treated.
These are professional medical persons caring for the Applicant and, in my view, if the Applicant’s conditions were not fully stabilised or were not fully treated, they would have said so. They would say they are getting worse or better as the case may be or that some other treatment should be tried. But they do not say this.
On the balance of probabilities, therefore, I find the Applicant’s conditions were fully stabilised and treated as well as being -- by concession – fully diagnosed.
In any event, if I understand the position correctly, the Respondent contends that the Applicant’s conditions — although conceded as fully diagnosed — are not fully treated and stabilised because of a recommendation by Mr Bui made on 22 January 2020 that he be given “nutritional guidance” by a dietician — one Leanne Azzopardi at Nutrition Health & Wellbeing. Subsequently a dietician, not Ms Azzopardi but a Julia Villani, reports back not to Mr Bui but to Dr Heydari on 23 January 2020.
The Respondent contended that the report back “holds significant weight”. It is said this is a report back of a “medical specialist” – meaning that the Applicant thus had not undergone “all reasonable treatment prior to the end of the qualification period”.
I have never heard yet of a dietician being referred to as a “medical specialist”. A medical specialist is in my view one who has medical qualifications of a specialist nature. I am not told whether the dietician in this matter had medical – or indeed any – qualifications. I also note that dieticians are not nominated as “allied health professionals” in the Impairment Tables.
Moreover, I do not consider I was given evidence to show that referral to the dietician in this matter could constitute “reasonable treatment” under s 6(6) of the Impairment Tables, particularly having regard to s 6(7) which provides guidance to the term’s meaning. I doubt whether “treatment” of a condition extends to dietary advice or “nutritional guidance”. If it does, I have no actual evidence — as opposed to a mere assertion or speculation — that such advice could reliably be expected to result in any improved functional capacity for the Applicant in any “substantial” or “significant” way. I have no idea of the success rate of the dietary advice or its cost, or indeed even whether Julia Villani is qualified as a dietician.
Further, there is nothing to say why Leanne Azzopardi herself did not report back or why Julia Villani (assuming she was qualified) reported back to Dr Heydari and not Mr Bui who was the referring medical practitioner.
In view of these factors, I have significant misgivings about the so-called “weight” of the (alleged) dietician’s views and about the regularity of the process leading to those views. I also cannot be confident about what may have gone on in the background which has not been made known. For example, I am not informed as to whether Ms Azzopardi left her employment for some reason or other and was replaced by Ms Villani. That may not have happened at all but I am not informed about it.
In any event, the referral made by Mr Bui occurs outside the qualification period and cannot on that or any other basis be relied on by the Respondent in my view to say that the Applicant’s conditions were not fully treated or stabilised during that period.
I note I am saying this about a fresh referral after the qualification period is over, which is to be distinguished from a medical report prepared after a qualification period which relates to health conditions before or during that period.
(b) Anxiety/depression
Tier 1 regarded the Applicant’s anxiety as fully diagnosed but not as fully treated or stabilised.
The Respondent goes further and contends that the Applicant’s anxiety was not fully diagnosed or fully treated or stabilised.
I am firmly of the view, however, and find that the Applicant’s condition was not only fully diagnosed but was also fully treated and stabilised as at the qualification period.
In that regard I rely upon the evidence of Dr Paul Grech, consultant clinical psychologist.
In his report dated 17 June 2020, Dr Grech mentions that the Applicant was referred to him by Mr Bui on 11 December 2019 “for psychological [treatment] in relation to severe depression (prescribed antidepressant medication), anxiety and the secondary effects of medical ill-health following his oesophageal cancer”.
This must also have been Mr Bui’s view at that time. There is no reason why in all the circumstances I should not regard that as Mr Bui’s view even before that time. Given that he was the treating surgeon I think I may safely assume his view did not suddenly occur to him on 11 December 2019 and therefore consider I should take it into account.
Dr Grech writes in his report (in bold) that “Mr Haygarth continues to suffer from severe depression despite his condition being fully stabilised and treated”.
Dr Grech continues that it is his observation that the Applicant has “experienced recurrent, severe anxiety and depressive episodes” and that “his level of clinical depression remains severe”.
In affirmed evidence, Dr Grech repeated his professional views. Dr Grech said that when he first saw the Applicant “he was clinically depressed, severely clinically depressed, according to my observations and his descriptions…”.[10] He said that during his consultations with the Applicant, his treatment has been “primarily cognitive behaviour therapy and supportive therapy”.[11]
[10] Transcript of Proceedings 50 [25].
[11] Transcript of Proceedings 53 [20].
Dr Grech said that when he first saw him, Mr Haygarth was taking antidepressant medication.
Referring now to the affirmed evidence of Dr Heydari, the Applicant was prescribed antidepressant medication (Endep) continuingly on 1 December 2019 which was during the qualification period for “Generalised Anxiety Disorder”. But by then he had been taking Endep for a substantial period of time — perhaps since February 2016 or if not then, at least since March 2019 after being prescribed it by another doctor at the Scott Street Medical Centre. Dr Heydari also recalled seeing the Applicant on 13 November 2019 — which was also during the qualification period —about abdominal pain.
Dr Heydari said that in 2019 the Applicant presented “mainly about anxiety” but that it is “hard to differentiate” between depression and anxiety. He did say however, that the Applicant said at the time “I’ve got tummy pain, whatever, I had operation and I’ve got anxiety”.[12]
[12] Transcript of Proceeding 67 [40].
However, the exact dosage of Endep had increased from 10 mg in March 2019 to 25 mg in December 2019 and possibly from 13 November 2019.
I therefore reject the Respondent’s assertion that the Applicant had only just commenced taking antidepressants or had not been on them for very long.
I note that this is an increase in dosage, and it is consistent with worsening mental health as the qualification period either approaches or has begun. Dr Heydari says in evidence that “[i]ncreasing Endep can help on anxiety and depression…”.[13]
[13] Transcript of Proceeding 66 [25].

Endep is a known antidepressant and it is likely what the Applicant was taking at the time when he first saw Dr Grech because Dr Grech said that the Applicant “certainly was taking Endep for a significant period of 2020”. [14]
[14] Transcript of Proceeding 54 [40].
Dr Grech’s observations of the Applicant occur after the qualification period is over (he saw him he said in late 2019). However, he is a qualified clinical psychologist and when asked whether he would have any reason to expect the Applicant’s mental state — the conditions of depression, anxiety — would have been any different during the three months of the qualification period he said “Absolutely not”.[15]
[15] Transcript of Proceeding 53 [10].
It is important to note that on this last point Dr Grech’s evidence was not challenged in any serious way. No evidence to the contrary — stating he could not reasonably form such a view — was ever called. I consider the statement is one from a person of informed expert opinion.
I therefore accept that Dr Grech’s opinion about the Applicant’s condition during the qualification period is one I should accept and rely upon as the opinion of an expert clinical psychologist appropriately informed. I do so also being of the view that Dr Grech was an impressive witness of truth.
The position then is that Dr Grech regards the Applicant as suffering severe depression –fully treated and stabilised – during the time he was under his care. Although this is shortly after the end of the qualification period, Dr Grech has “absolutely” no reason to think the Applicant’s condition was any different during that period. I see that latter aspect overcoming any difficulties arising from the (often misunderstood) decision in Fanning and Secretary, Department of Social Services [2014] AATA 447.
During the qualification period, the Applicant has been taking Endep, which is medication prescribed for anxiety and depression on an increasing dosage.
Based then on the evidence of Dr Grech, supplemented by that of Dr Heydari, I am satisfied to the required degree that during the qualification period, the Applicant was suffering anxiety and depression and that his condition was not only fully diagnosed but also fully treated and stabilised.
There was some suggestion during the cross examination of Dr Heydari that cognitive behaviour therapy or something else should have been explored more. This point was mentioned in the Respondent’s Statement of Facts, Issues and Contentions but nothing came of this, with no evidence called by the Respondent during the hearing. I therefore doubt it is rationally maintainable – particularly considering the evidence of Dr Heydari about prescribing certain medications — that Dr Heydari or another Clinic member did not turn their mind to counselling or at least offer some in the way of guidance.
Impairment Points
(a) Gastroenterological conditions
Tier 1 assigned the Applicant 10 points under each of Tables 1 and 10 of the Impairment Tables.
The Respondent contends that no points can be assigned but only because the conditions were not fully diagnosed or treated — a position I have now rejected.
(i)Table 1
Table 1 relates to Functions requiring Physical Exertion and Stamina.
I am not in any doubt that the Applicant’s conditions do diminish his capacity to carry out many or most physical activities and thus impact on functions requiring physical exertion and stamina.
I formed this view particularly after hearing from Ms James.
However, I do not have sufficient detail in the evidence to be confident that the 10 points assigned by Tier 1 is or is not correct or whether that figure should be higher or lower. I was not assisted by the Respondent who did not address this issue.
In the circumstances, I shall not depart from the decision of Tier 1 on this point and I assign 10 points for moderate functional impact.
(ii) Table 10
Table 10 relates to Digestive and Reproductive Functions.
Tier 1 assigned 10 points according to this Table as I have mentioned already. That was on the basis of a moderate function impairment.
I was offered no assistance by the Respondent on this allocation at a time when the Respondent was able to be heard. This was due to the position adopted by the Respondent as to whether the conditions were fully diagnosed, treated and stabilised.
I am not satisfied on the evidence that only moderate functional impairment is appropriate and my view is that 20 points should be assigned for severe functional impairment.
(1)(a) —attention and concentration
I am satisfied on the evidence that the Applicant’s attention and concentration on a task during the qualification period were continually interrupted or reduced by pain, other symptoms or care needs associated with his digestive symptom conditions, particularly having regard to the constant presence of those symptoms.
The evidence is that during the qualification period the Applicant was, according to Ms James, “constantly worried about soiling himself”.[16] So much so that he became frightened to eat. I note the word “constantly”. The Applicant himself said in evidence on this point, “I was always stressed and worried about [my condition of] dumping syndrome”.[17] I note here the word “always”.
[16] Transcript of Proceedings 19 [35].
[17] Transcript of Proceedings 16 [25].
This evidence is consistent only with someone, in this case the Applicant, having their attention and concentration continually interrupted (or reduced) by a symptom associated with a digestive condition. Digestive conditions include diseases affecting the oesophagus, intestines and rectum or anus.
(1)(b) — sustaining work activity
I am satisfied on the evidence that the Applicant during the qualification period was unable to sustain work activity or other tasks for more than one hour without a break due to symptoms of his digestive condition.
When specifically directed to the time of the qualification period, the Applicant gave evidence that his Dumping Syndrome meant that after having any meal, “[he has] got to rush to the toilet”. The example he gave was of breakfast, where he said, “if I have breakfast, within 15 minutes to half an hour after …I’ll be rushing to the toilet”. He also said “I get stomach cramps and then I’ve just got to go”.[18]
[18] Transcript of Proceedings 16 [35].
This seems plainly to justify a finding that the Applicant clearly satisfies (1)(b). Particularly when taken together with the fact (as I find) that during the qualification period the Applicant’s attention and concentration are constantly or always interrupted or reduced doing a task at hand.
In all such circumstances, the Applicant could not reasonably sustain the work activity contemplated by (1)(b).
(1)(c) — co-workers
I am satisfied that the nature of the Applicant’s condition during the qualification period was likely to affect co-workers adversely.
If the Applicant had had co-workers during those times when he was “rushing to the toilet” a short time after eating a meal, this would be very distracting or disturbing or even distressing for them to witness. In any case, they would be adversely affected whether by being distracted, disturbed or distressed.
(1)(d) — ability to attend work etc activities
The Applicant was not working during the qualification period, but I am satisfied that during that time he would rarely have been able to attend education or training activities due to his digestive condition.
This I consider emerges from my previous findings on the evidence. The Applicant was constantly or always stressed by his Dumping Syndrome. Only rarely would he in my view be able to attend education or training activities. If he could attend, he might barely be an active participant or listener because of the pressing need to visit the toilet. As well because his attention and concentration were continually interrupted by his condition he would be disinclined to attend – except only rarely – because education or training activities would have little (if any) value for him. Also, he would be disinclined to attend because he would disturb or distract others who were attending.
I am satisfied therefore that the Applicant meets the requirements in Table 10 for severe functional impairment.
Only two of the paragraphs need to be satisfied but I consider he meets all four.
(b) Anxiety/depression.
Tier 1 assigned the Applicant no points at all under the Impairment Tables for anxiety/depression on the basis that his condition was not fully treated and stabilised.
The Respondent likewise contends that the Applicant’s condition was not fully diagnosed but if it was, it was not fully treated and stabilised. As a result, the Respondent offered no assistance and made no submissions on the Impairment Tables relating to the Applicant’s condition. This was presumably due to the Respondent taking the view that I would agree with its arguments on this point.
However, I have found above that his condition was fully diagnosed, treated and stabilised as required.
Accordingly, Table 5 (Mental Health Function) of the Impairment Tables applies and in light of the evidence I heard, it is appropriate to consider whether the Applicant falls under the heading of severe functional impact.
In this task I was greatly assisted by Dr Grech who indicated he was aware of the Impairment Tables.
Based on this evidence, I am satisfied only severe or extreme functional impacts can apply.
At one point, Dr Grech was inclined to favour the latter, but after hearing from the Applicant himself and Ms James, I am of the view that his condition does not reach that level of extreme functional impact. On the other hand, his level of functional impact by reason of his condition in my view extends well beyond mild or moderate. I therefore find it is appropriately within the category of severe.
(1)(a) — self-care and independent living
I accept the evidence of Dr Grech that during the qualification period the Applicant falls within (1)(a). His evidence was that the Applicant had “extreme difficulty” during appointments. Dr Grech on this point may have been referring to a time post the qualification period. However, he also said the Applicant “was constantly interrupted because of his condition in terms of being able to leave the house and move from place to place with the dumping syndrome”.[19]
[19] Transcript of Proceedings 51 [20].
I also rely on the evidence of Ms James who provided nursing care or assistance to the Applicant when he was at his most ill, demonstrated ongoing concern for his health and welfare, and had knowledge of his eating needs and sleeping difficulties. This however was not said by her specifically with reference to the qualification period.
s (1)(b) —social/ recreational activities and travel
On this point I accept the evidence of Dr Grech. He referred to the “anticipatory anxiety and actual anxiety associated with knowing [his need] to be close enough to a toilet” and the “constant fear and – reality of losing control of his …bowels”. [20] This anxiety and this fear would seriously hinder or prevent many if not most social and recreational activities as well as travel.
[20] Transcript of Proceedings 51 [40].
I note there is reference to the Applicant having gone to Darwin shortly before or during the qualification period but the account given by Dr Heydari indicates this was not very successful as the Applicant ended up in hospital while there where he had “a couple of things” done to him.[21] And he appears to have returned complaining of abdominal pain in any event.
(1)(c) — interpersonal relationships
[21] Transcript of Proceedings 68 [45].
As regards (c) again, I accept the evidence of Dr Grech. He said that the Applicant’s condition “has had a diabolical impact on his relationships”.[22] He referred to the Applicant’s history of working on the wharves where he built up some lifelong friendships amongst fellow workers. He regarded the Applicant now as having developed notions where he was “less of a man in many ways …in terms of being unable to perform …a whole range of physical tasks”.[23] He also commented “he’s a shell of the person who used to be physically very active and strong and healthy”.[24]
[22] Transcript of Proceedings 51 [45].
[23] Transcript of Proceedings 52 [5].
[24] Transcript of Proceedings 51 [20].
I have no reason to doubt that this is true of the Applicant during the qualification period.
Indeed during that period, the stress of and anxiety about his condition and a need to be near a toilet because of his Dumping Syndrome I would think would have ruled out many if not all social relationships. Further, from the evidence, there would be the issue of needing to go to a toilet shortly after eating anything at all.
(1)(d) — concentration and task completion
My remarks above apply with equal force here.[25]
(1)(e)—behaviour, planning and decision-making
[25] See [105]-[108].
Dr Grech addressed this in his evidence but I would add that during the qualification period the Applicant’s behaviour, thoughts and (likely) conversation were significantly and frequently disturbed. I refer to my remarks in the above but would add reference to the Applicant’s constant worry and anxiety over soiling, eating or mealtimes, of having to be near a toilet, or having to sleep seated up in bed. I am satisfied that worries and concerns of this nature would have affected the Applicant’s behaviour.
(1)(f) — work/training capacity
My findings above apply with equal force here.[26] I am satisfied that the Applicant’s worry and concern over his Dumping Syndrome would have prevented him from engaging on a regular basis over a lengthy period in education or training due to his anxiety/depression.
[26] See [115]-[116].
I am satisfied therefore that the Applicant meets the requirements under Table 5 for severe functional impairment of mental health.
Only “most “of the paragraphs need be satisfied for him to qualify, but I am satisfied he meets them all.
Corroboration
Corroboration is an issue arising under the Impairment Tables.
The Respondent however has not distinctly raised this issue at all from what I can tell.
But I am satisfied that with respect to several conditions, the Applicant was not merely self-reporting but is adequately supported by way of corroboration in the evidence of Dr Heydari and Dr Grech and other medical persons including Mr Bui as well as by Ms James.
As to the evidence of Ms James, the Impairment Tables speak inclusively on this point and do not exclude corroboration from non-medical persons.
Section 94(1)(c)
The Applicant meets the requirements of both s 94(1)(a) and s 94(1)(b).
It is submitted by the Respondent that he does not also meet the requirements of s 94(1)(c).
I reject that submission.
I am satisfied that the Applicant meets the requirements of s 94(1)(c) whether by reason of his gastroenterological conditions or because of his anxiety/depression or both in that he has, and has had throughout the qualification period, a continuing inability to work.
I exclude from consideration any questions arising about programs of support because the Applicant on my findings has a severe impairment.
I am quite satisfied that the Applicant’s conditions of themselves have prevented and continue to prevent him from doing any work independent of a program of support.
In my view, the Applicant’s conditions as such are, and have been, very debilitating. He is at risk of soiling himself and in need of being near a toilet and these are understandable sources of worry and concern. The physical needs he has and the risks he faces, and has faced, plainly result on the evidence in his severe anxiety and depression in my view. I am unable to think of any work activity he could undertake or could have undertaken during the qualification period – even disregarding his skillset, local market or economic conditions as well as geographical considerations.
Any position the Applicant took on or could have taken on would be constantly interrupted by his pressing need to go to the toilet throughout the day but particularly after eating anything. It would therefore be doubtful in my view that the Applicant could have the energy to be able to undertake any kind of work. In that respect, I refer to the evidence of Ms James that he has become so thin out of refraining from eating because he is “too frightened to eat”.[27]
[27] Transcript of Proceedings 19 [35].
Frequent visits to the toilet in any occupation or calling would and must have been disruptive to his schedule and to that of his employer and co-workers. It thus could well be disruptive to any workplace that might be mentioned.
I note that in a report dated 17 June 2020 – within two years of the start of the qualification period — Dr Grech placed in bold his view of the Applicant in this regard: “There is no employment capacity at present or at any stage in the foreseeable future”. In an exemption certificate for program of support dated 10 August 2020, Dr Grech says simply, “Unable to work”. This seems to adequately summarise the situation.
I regard that expression of his opinion as entirely in accord with the findings I make.
Job Capacity Assessment Report
There is a Job Capacity Assessment Report (“JCA”) on file dated 23 December 2019 after the end of the qualification period.
The JCA Report is prepared by “Vicki” and “Sue”, one of whom is a qualified nurse. I do not know who Vicki and Sue are or which of the two is a qualified nurse or whether the other has any qualifications at all. This is most unsatisfactory in a report advanced as one I should be relying on.
Should they wish to do so, a party has no idea whom they might wish to summons to give evidence relating to the accuracy or worth of a JCA report. In other words, part of the case against that party is apparently untestable. This should not be the case. And why should I accept — I ask rhetorically — that either Vicki or Sue is a qualified nurse? What information have I been given to verify that? The answer appears to be none.
This raises the question whether I should entertain the JCA Report at all. I am not bound by the rulings in Muir and Secretary Department of Employment and Workplace Relations [2005] AATA 902 or Uebergang and Secretary Department of Families Housing Community Services and Indigenous Affairs [2011] AATA 642. But insofar as they would purport to require me to adopt the unsatisfactory JCA Report in this case, despite the evidence I have heard, I decline to apply them.
If, however, I go past this point and into the detail of the JCA Report, I also find the assessment of the Applicant’s position to be unsatisfactory. I have not been informed as to what any of the following, which are described as “Barriers” in the report mean:HO7;HO4;HO6;MOD;UO2.[28] These are or could appear to be key elements in the Report but they are entirely unexplained. I assume, although I was not told, that they feed into the Report’s recommendations in some fashion. This is unhelpful unless their meaning and significance are explained.
[28] T-Documents T8/88.
If I were to consider the Report’s assessment as to the Applicant’s working capacity, I would consider the Report as woefully understating or under considering the effects of Dumping Syndrome and resultant anxiety. This could be because Vicki and Sue — whoever they are — did not have the proper expertise to seriously consider the Applicant’s position. Probably or possibly only someone with special experience in bowel disorders could express an opinion about the Applicant which might be worthwhile.
In these circumstances, I give the JCA Report little or no weight.
CONCLUSION
For the reasons set out above, I find that the Applicant satisfies s 94(1)(a), (b) and (c) of the Act.
DECISION
The decision under review is set aside and substituted with a decision that the Applicant is entitled to Disability Support Pension under the Social Security Act1991 (Cth) with effect from 24 December 2019.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of
Dr Damien Cremean, Senior Member

...........................[sgd]............................................
Associate
Dated: 9 September 2021

Date of hearing: 27 January, 7 May and 2 July 2021

Applicant: Self-represented

Solicitor for the Respondent: Allan Quanchi of Services Australia

[2021] AATA 3242

9 September 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	27 January, 7 May and 2 July 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Allan Quanchi of Services Australia