Hinton and Secretary, Department of Social Services (Social services second review) - [2023] AATA 51

Hinton and Secretary, Department of Social Services (Social services second review) [2023] AATA 51 (4 January 2023)
Division:GENERAL DIVISION
File Number: 2021/9230
Re:Colin Hinton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member Lee Benjamin
Date:4 January 2023
Date of written reasons: 25 January 2023
Place:Brisbane

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 16 November 2021 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for Disability Support Pension at the date of his claim on 20 April 2021.
..............................[SGD]...................................
Member Lee Benjamin

Catchwords
SOCIAL SECURITY – Disability Support Pension – Social Security Act – section 94 – whether there is a continuing inability to work – whether 20 points can be attracted under the impairment tables – decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Budisa and Secretary, Department of Social Services [2014] AATA 79
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769; [2007] AATA 1606
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Shi and Migration and Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Member Lee Benjamin
25 January 2023
The Decision under review

The decision under review was made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 16 November 2021. In that decision, the AAT1 affirmed Services Australia’s (the Agency) decision to reject the Application of Mr Colin Hinton (the Applicant) for disability support pension (DSP) made on 20 April 2021.
The issue for this tribunal
The issue to be decided by this Tribunal is whether the Applicant satisfied the qualification criteria for DSP as at the date of the claim (20 April 2021), or within 13 weeks thereafter (i.e., to 20 July 2021) (the qualification period). This requires consideration of whether the Applicant satisfied the criteria set out in section 94 of the Social Security Act 1991 (Cth) (the Act).
The Applicant contends that he satisfies section 94 of the Act and therefore meets the criteria for DSP. The Secretary of the Department of Social Services (Respondent or Secretary) contends that as the Applicant did not satisfy paragraphs 94(1)(b) and (c) of the Act as at the qualification period, the original decision to reject the Applicant’s claim for DSP was correct.
Background
On 16 March 2021, the Applicant lodged a claim for DSP (first DSP claim) (Exhibit 1, T9, p 115). On 26 March 2021, the Applicant’s first DSP claim was rejected because he did not have an impairment rating of 20 points or more under the Impairment Tables (Exhibit 1, T12, p 127). On 20 April 2021, the Applicant lodged a further DSP online claim (subsequent DSP claim) (Exhibit 1, T15, p 131). On 9 May 2021, the Applicant was notified his subsequent DSP claim had been rejected on the basis that he could not be assigned 20 points or more under the Impairment Tables (Exhibit 1, T17, p 137).
The chronology around the first DSP claim and subsequent DSP claim are set out below.
In a letter dated 9 February 2021 from Dr Bradley Pye (general practitioner) to Dr Ivor Hodgson (psychiatrist), Dr Pye referred the Applicant to Dr Hodgson for opinion and management of the Applicant. Dr Pye notes (Exhibit 1, T5, p 108):
(a)The Applicant has suffered from depression and poor anger management for years and he self-medicates with binge beer drinking (more than 12 stubbies at a time), three times per week.
(b)The Applicant’s past history (medical) includes:
(i)Perianal abscess from 19 October 2001;
(ii)Gastro-oesophageal Reflux Disease (GORD) from 12 May 2021;
(iii)Migraine prescriptions on 9 November 2012 and 24 August 2020; and
(iv)Hives on 29 August 2018.
(c)Current medications include:
(i)Imigran Nasal Spray (20mg/0.1mL) and Tablets (50mg) for migraine, with the last prescription on 3 February 2021;
(ii)Mersyndol Tablets (450mg/9.75mg/5mg) with dosage of 1-2 nocte, with the last prescription on 3 February 2021 (Exhibit 1, T5, p 109);
(iii)Prednisone Tablets (25mg) with dosage of 2 daily m.d.u. for hives, last prescribed 29 August 2018;
(iv)Pristiq MR Tablet (Desvenlafaxine) (50mg) with dosage of 1 daily m.d.u. for depression, last prescribed 3 February 2021; and
(v)Somac EC Tablet (Pantoprazole) (40mg) with dosage of 1 daily for GORD, prescribed 3 February 2021.
In a Health Summary Sheet from Dr Pye, he records the Applicant is married and lists “carer” as the Applicant’s occupation. Dr Pye notes the Applicant drinks 10 or more standard drinks 2-3 times per week, and that he smokes “3 Daily” (Exhibit 1, T8, p 113). Under the heading “Current active problems”, Dr Pye refers to the Applicant’s perianal abscess, depression, GORD, Migraine, Hives and poor anger management (Exhibit 1, T8, p 114).
On 16 March 2021, the Applicant lodged his first DSP claim (Exhibit 1, T9, p 115).
The Applicant declared the following in respect of his medical conditions and work participation:
(a)His ability to work is affected by the following conditions (Exhibit 1, T10, p 123):
(i)Depression, Anxiety, Agoraphobia and Anger Issues (since 1 December 2000); and
(ii)Perianal Abcess (since 1 January 2000).
(b)Current treatment includes psychological or psychiatric treatment and medication, while past treatment involved “Continuing Visits with General Practitioner Hospitalisation”, and future treatment was anticipated to include doctor visits and therapy with a psychiatrist beginning on 17 March 2021.
He has not participated in employment services in the last three years (Exhibit 1, T10, p 124).
He has not undertaken paid work in the last 12 months.
On 25 March 2021, a DSP Medical Eligibility Assessment (DMA) report was completed by a registered occupational therapist (the Assessor) (Exhibit 1, T11, p 125). The DMA report recommended that:
(a)the Applicant’s psychological disorder was not fully diagnosed, fully treated and fully stabilised (Exhibit 1, T11, p 126); and
(b)the Applicant’s Migraine and GORD conditions were fully diagnosed, but were not fully treated and fully stabilised (Exhibit 1, T11, p 126).
On 26 March 2021, the Applicant’s first DSP claim was rejected because he did not have an impairment rating of 20 points or more under the Impairment Tables (Exhibit 1, T12, p 127).
A medical certificate dated 30 March 2021 completed by Dr Katharine Graham (general practitioner) records (Exhibit 1, T13, p 129):
(a)The Applicant has depression/agoraphobia since 1 March 2019 and was experiencing a temporary exacerbation of a permanent condition, with an uncertain prognosis. The Applicant was experiencing poor concentration and an inability to make decisions. Past treatment is recorded as antidepressants and counselling, while current treatment is “medication and psychiatry review”, with future treatment anticipated to include psychiatric treatment;
(b)The Applicant experiences anxiety and poor anger management, with an onset date of 1 January 2018, and she considered this was a temporary exacerbation of a permanent condition with uncertain prognosis. Dr Graham records “extreme anxiety and social phobias”, and notes past, current and future anticipated treatment with medication and counselling; and
(c)Other medical conditions impacting on the Applicant’s capacity to work or study include sleep apnoea, perianal abscess and obesity.
On 13 April 2021, Dr Hodgson wrote that the Applicant has “a current working diagnosis of mood disorder, and increased alcohol use, in an attempt to control these symptoms”. In his opinion, the Applicant’s condition is fully diagnosed, is being treated, and is unlikely to significantly improve with or without treatment. He records the Applicant is currently receiving regular treatment, and that his medication includes (Exhibit 1, T14, p 130):
(a)Topiramate 50mg po nocte; and
(b)Desvenlafaxine 100mg.
On 20 April 2021, the Applicant lodged his subsequent DSP claim (Exhibit 1, T15, p 131). In it he discloses eight medical conditions impacting his ability to work, including:
(a)Depression (onset 1 July 2000);
(b)Anxiety (onset 1 July 2000);
(c)Anger management (onset 1 July 2000);
(d)Chronic fatigue (onset 1 July 2000);
(e)Agoraphobia (onset 1 July 2000);
(f)Sleep Apnoea (onset 1 July 2012) (T15, 132);
(g)Obesity (onset 1 July 2012); and
(h)Perianal abscess (onset 1 July 2005).
In a DMA report completed on 28 April 2021, the assessor opined that the Applicant was manifestly medically ineligible for DSP in respect of his claim dated 20 April 2021. In respect of the Applicant’s Anger/Depression conditions, the assessor and contributing assessor note (Exhibit 1, T16, p 134):
Available evidence indicate recent consultation with psychiatrist and modifications to medications. Whilst psychiatrist has indicated guarded prognosis, further interventions including optimisation of pharmacotherapy, engagement in sustained psychological treatment and co-treatment of alcohol misuse may potentially result in some functional improvement within next 24 months. Condition cannot be assessed fully treated and stabilised.
On 9 May 2021, the Applicant was notified his subsequent DSP claim had been rejected on the basis that he could not be assigned 20 points or more under the Impairment Tables (Exhibit 1, T17, p 137).
On 10 May 2021, the Applicant provided the Agency with written submissions, stating among other things that (Exhibit 1, T18, p 140):
(a)On 1 July 2000 his business was stolen from him. His partner left him around the same time and took his son away from him.
(b)He moved into shared rental accommodation at that this time, was in receipt of benefits payments, and his flatmate stole from him.
(c)A culmination of these things caused him “to snap” and he attempted suicide.
(d)Since that time, he has taken medications including anti-depressants (Luvox, Lexapro, Pristiq, Celexa and Paxil).
(e)He received unemployment benefits “until around 2005”, but was unfit to look for work.
(f)In 2005, he developed a perianal abscess, which causes him to feel as though he needs to go to the toilet constantly, and which can “burst at any moment”. As a result, he wears incontinence pads.
(g)He has cared for his elderly parents for the last 15 years. His father passed away in 2013, while his mother had a stroke and was under constant care until December 2020 when she passed away.
(h)His ability go out of the house has decreased and he now suffers from agoraphobia. He hates leaving the house unless he has been drinking.
(i)His doctor in Maclean constantly prescribed him anti-depressants for the last 20 years but “lacked the skill to help me get out of the place I am in”, and only now he has applied for DSP has the Applicant managed “to get some things done”.
(j)The Applicant now has a new doctor who he feels has more knowledge and understands him better. He writes that “I also have finally been forwarded to a psychiatrist who is working with me for my better health”.
A file note from the Agency records indicates that the Applicant was in contact with the Grafton Service Centre and indicated his intent to follow up with medical information to review/appeal the DSP rejection decision (Exhibit 1, T30, p 223).
On 20 May 2021, Dr Hodgson wrote a letter in support of the Applicant’s DSP claim in substantially similar terms to his correspondence of 13 April 2021 (Exhibit 1, T19, p 142).
On 3 June 2021, Dr Graham completed a medical certificate for the Applicant stating he had no work capacity for the period 1 June 2021 to 1 September 2021, noting his primary conditions as depression/agoraphobia, and secondary/related conditions as anxiety and poor anger control (Exhibit 1, T20, p 143).
On 21 June 2021, the Agency acknowledged the Applicant’s request for review of the decision made on 9 May 2021 to reject his subsequent DSP claim (Exhibit 1, T21, p 144).
In a DMA report dated 26 August 2021 (completed in respect of the subsequent claim), the assessor recommended a job capacity assessment (JCA) to assess the Applicant’s medical conditions against the DSP medical eligibility criteria (Exhibit 1, T22, p 147).
In a medical certificate completed by Dr Ramandeep Grewal (general practitioner) on 1 September 2021, he refers to the Applicant’s mood disorder as the primary condition affecting the Applicant’s capacity to work or study, and describes past treatment as including psychiatrist review, with current treatment comprising desvenlafaxine, and future treatment including ongoing psychiatrist reviews (Exhibit 1, T23, p 148).
On 14 September 2021, a JCA report was completed by an accredited exercise physiologist (with contributions from a registered psychologist) following an assessment with the Applicant on 13 September 2021 (Exhibit 1, T24, p 150). The subsequent JCA report recommends that the:
(a)mood disorder is fully diagnosed, however is not fully treated and fully stabilised;
(b)respiratory disorder (sleep apnoea) is fully diagnosed, however is not fully treated or fully stabilised (Exhibit 1, T24, p 151-152);
(c)perianal abscess condition is fully diagnosed, however is not fully treated and fully stabilised;
(d)GORD is fully diagnosed, however is not fully treated and fully stabilised;
(e)Migraine condition is not fully diagnosed, fully treated, or fully stabilised;
(f)Applicant’s work capacities are 30+ hours per week, as he is not assessed to have any permanent (fully diagnosed, fully treated and fully stabilised) medical conditions; and
(g)Applicant’s work capacity within two years with intervention 15 to 22 hours per week doing light, less-skilled work (e.g., as a ticket collector).
On 15 September 2021, an authorised review officer (ARO) reviewed and affirmed the original decision to reject the Applicant’s subsequent DSP claim. The ARO agreed with the recommendations of the subsequent JCA report (Exhibit 1, T25, p 158).
On 8 October 2021, Dr Hodgson prepared a medical report in respect of the Applicant’s mental illness and substance use disorders (Exhibit 1, T26, p 163). In his opinion, the Applicant should be assigned:
(h)10 points under Impairment Table 5 in respect of his depression diagnosis; and
(i)10 points under Impairment Table 6 in respect of his substance use disorders.
On 9 October 2021, the Applicant lodged an application for review of the Department’s decision to reject subsequent claim for DSP with the AAT1 (Exhibit 1, T27, p 165).
On 16 November 2021, the AAT1 conducted a hearing and affirmed the decision under review (Exhibit 1, T2, p 3).
On 29 November 2021, the Applicant lodged an application with the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the AAT1 decision (Exhibit 1, T1, p 1).
On 5 December 2021, the Applicant lodged a further report from Dr Hodgson dated 2 December 2021 in support of his application (Exhibit 4). In it, Dr Hodgson reports that he is the Applicant’s treating psychiatrist. He refers to having identified a medication that would be helpful for the Applicant as it would help him decrease his weight, however it is not available under the pharmaceutical benefits scheme (PBS).
On 10 January 2022, the AAT1 made a direction to alter the reasons for its decision of 16 November 2021, noting that text in paragraphs 2 and 19 of the written reasons ought to be altered to reflect that it was reviewing the subsequent DSP claim lodged 20 April 2021.
On 16 May 2022, the Applicant lodged further documentation in support of his review application to the Tribunal comprised of a letter of the same date from Dr John-Paul Kennedy (general practitioner) and surgical reports from Dr Muscio at Grafton Base Hospital dated 13 September 2005, and Dr Asquith also at Grafton Base Hospital dated 20 December 2007 (Exhibit 5).
In his supportive letter, Dr Kennedy writes:
(a)In respect of the Applicant’s perianal abscess:
(i)He has had surgical excision of the abscess on three occasions over the course of the last 20 years, however it has kept recurring;
(ii)The Applicant has not been informed by any surgeon that there is not a prospect for improvement, but his previous doctor did tell him this;
(iii)Long-course antibiotics has previously been successful in treating the condition;
(iv)He has not seen any dermatologists or other specialists in respect of the condition;
(v)The last flare-up of the condition was three weeks ago, and the Applicant self-treated it by cutting open the abscess himself due to not having easy access to a surgeon and preferring to avoid hospital;
(vi)During flare-ups, the Applicant’s sitting and standing tolerances are a maximum of 30 minutes, and he has to defecate frequently. The abscess is also foul-smelling. When not experiencing a flare-up, the Applicant’s sitting and standing tolerances are 1 hour;
(vii)The condition will require repeated incision and drainage in the future, and he is “not aware of any definitive treatment that can cure this problem”;
(viii)In his opinion, further treatment is unlikely to improve things, and this has “been highly suspected since his last operation by Dr Michael Muscio in 2007”; and
(ix)The condition was in flare-up for most of the period from 20 April 2021 to 20July 2021, and flares up once per month meaning the Applicant could only go to work three days per month.
(b)In respect of the Applicant’s depression:
(i)He is seeing a psychologist and psychiatrist, Dr Spencer Duke.
(c)In respect of functional impairment to the Applicant arising from his conditions:
(i)The abscess would be problematic for co-workers due the foul smell of the draining abscess, which was the case during the aforementioned period;
(ii)During flare-ups, the Applicant constantly has to go to the toilet to attend to his hygiene and toileting needs, and due to discomfort; and
(iii)In his opinion, this impairment would prevent the Applicant from preparing for, finding or keeping a job by engaging in a Program of Support delivered by an employment service or disability employment service provider.

On 23 August 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation. The Respondent was represented by Maleah Underhill of Services Australia, who appeared by telephone.
On 4 January 2023, this Tribunal pronounced its decision and now provides its written reasons.
Issues
The issue to be decided in this matter is whether the Applicant satisfied the qualification criteria for DSP as at the date of the claim or within the qualification period.
This requires consideration of whether the Applicant satisfied the criteria set out in section 94 of the Act. In particular, whether the Applicant had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)impairment(s) arising from medical conditions that were fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination); and
(c)a continuing inability to work (CITW).
Law
The legislation relevant to the determination of this application is contained in:
(a)the Act;
(b)the Social Security (Administration) Act 1999 (Cth) (the Administration Act);
(c)the Impairment Tables Determination; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
Policy advice contained in the Social Security Guide (the Guide) is also relevant, and ought to be applied unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
Applicant’s submissions and evidence
The Applicant’s review application contained, relevantly, the following reasons for the application (Exhibit 1, T1, p 2):
I…have a Perianal Abscess, this has been operated on 3 times but never gets better. It constantly leaks and can swell up and bust at any time. This would be considered a form of incontinence.
At the hearing, the Applicant told the Tribunal, relevantly, by way of submissions and/or under cross examination that:
·He developed a perianal abscess condition for around 20 years.
·His father also suffered from the same condition, which he put up with until the day he died, and he had several operations. His father’s last operation culminated in him getting staph which also, then turned into another operation to attack his bowel, which then turned into cancer, which eventually killed his father.
·He has had extensive treatment by medical professionals for the perianal abscess, including three operations - 26 October 2001, 13 September 2005, and 20 December 2007 - to stabilise the condition.
·He last saw a surgeon or a specialist about the perianal abscess at time of the most recent operation in 2007. Since then, the condition has been treated periodically with antibiotics and by self-interventions.
·He made the self-interventions in relation to perianal abscess for the following reasons:
“MS UNDERHILL: Mr Hinton, you’ve referred to undertaking – your doctor has referred to you undertaking your own interventions regarding the abscess, is that something you continue to do?
APPLICANT: Yes, it is, yes.
MS UNDERHILL: Yes. And can you tell the tribunal why you choose to do that yourself, rather than seeing the doctor to do that?
APPLICANT: Certainly. As I said earlier, my father had exactly the same condition and had, you know, three trips to the hospital himself to try and get it fixed. But it was, again, recurring and stuck with him for more than 40 years. Now I have undertaken the same surgeries hoping that it would fix the problem, again, it has not. And in, you know, in the end, on his last attempt at surgery for this, you know, the doctors ended up killing him one way or another. Now I had seen how my father treated this problem, as in, when it swells up you get like a really large lump in a rather uncomfortable position and it is a matter of just cutting it open with a scalpel. Everything drains out and then, the pain goes away for a month or so, before it recurs again. But you know, trying to have it stitched up, or anything like that, is just a waste of time, it just fills up again quicker. So it is best to leave it open and drain, which leaks a lot of muck and rubbish, which smells quite bad.
MS UNDERHILL: And referring to your evidence that it needs to be excised and drained?
APPLICANT: Yes
…
MEMBER: …why is it that you have sought to do this yourself, rather than have a doctor do it as and when it is necessary… Mr Hinton, why is it that you don’t see a doctor each time it needs to be drained?
APPLICANT: Yes, well, I think I have pretty much explained that. You know, as I said, I did watch my father treat himself for near 40 years and the last time he was treating in a hospital he got, what was it, the methicillin resistance, staph, they operated on him again, they cut a section of his bowel out, they sewed it back together incorrectly, that leaked into his stomach, that ended up causing cancer which killed him. So I can’t see how a hospital is any more sterile a place than my bathroom.” (Transcript, p 23, lines 42-47, p 23, lines 1-15, p 24, lines 43-47, p 25, lines 1-8).
·The perianal abscess is a problem every day:
MR HINTON: On that…point regarding daily leakage, of course there’s no exploding abscess every day but certainly it is every day that it is a problem. If it’s leaking, which is probably for a good two weeks after an episode, then after that it may seal itself up enough where it starts expanding again which means, you know, it’s impossible to sit down or relax or stand for long periods. It certainly is a daily problem, and I believe that Dr Kennedy has written that in his report. (Transcript, p 29, lines 7-13).
·Dr Kennedy’s report dated 16 May 2022 supports his DSP application:
“It appears that he will require repeated incision and drainage of this anal abscess in the future. I am not aware of any definitive treatment that can cure this problem.
I do not think that it is likely that Mr Hinton’s perianal abscess will improve significantly as he has had it for about 20 years and has had repeated incision and drainage by surgeons.
I think further treatment is unlikely to improve things and that this…has been highly suspected since his last operation by Dr Michael Muscio in 2007.
The perianal abscess flares up once per month and this means that he would only be able to go to work 3 days per month but his sitting and standing for longer than 1 hour would be uncomfortable even outside of flare-ups.
…
The condition was in flare-up for most of that period of April 20th 2021 to July 20 2021.
…
The perianal abscess would be very problematic for co-workers due to the foul smell of the draining abscess and this was also the case between April 20 2021 to July 20 2021.
When the abscess flares up he is constantly having to go to the toilet to attend to his hygiene and toileting needs, and this was also the case between 20 April 2021 and 20 July 2021.
He is unable to sustain work activity for more than 1 hour without a break due to the need to attend to personal [hygiene] and due to discomfort and this was also the case between 20 April 2021 and 20 July 2021.” (Exhibit 5, p 1-2)
·His ability to work is very limited:
“MEMBER: …And what is your ability to work, Mr Hinton, what would you say about that?
APPLICANT: Well, to – you know, to go to work you need to be able to work, …I am in a position where mainly – well, the perianal abscess stops me from sitting for too long, or standing for too long, or…I have got to constantly change positions.
I need to go to the toilet…ten times a day, because I don’t know whether I need to go to the toilet or not because the abscess presses up against the – I think the muscle which causes me to believe that I need to go to the toilet. When that swells up, that happens more frequently, when it explodes, it makes an absolute mess and stinks.
There is constant leakage from it which stinks, you know, it would be very… you know, you would not want to be sitting next to me for too long when something like that happens.” (Transcript, p 20, lines 10-27)
The Applicant did not make substantive submissions in relation to other medical conditions impacting his ability to work.
Respondent’s submissions and evidence
The Respondent contends that as the Applicant did not satisfy paragraphs 94(1)(b) and (c) of the Act as at the date of claim or during the qualification period, and that the original decision to reject his claim for DSP was correct.
The Respondent’s submissions to the Tribunal are set out below. (Exhibit 3, p 8 at [34] to p 21 at [106]).
Qualification period
Schedule 2, Part 2, Clause 4 of the Administration Act provides:
4(1) If:
(a) A person (other than a detained person) makes a claim for a relevant social security payment; and
(b) The person is not, on the day on which the claim is made, qualified for the payment; and
(c) Assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) The person becomes so qualified within that period;
The claim is taken to be made on the first day on which the person is qualified for the social security payment.
It follows that the Applicant’s claim for DSP must be assessed on his medical condition as at the actual date of lodgement of his written claim or within the qualification period.
As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the qualification period. If there has been any deterioration or change to his medical condition/s that suggests he may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of same and any resulting impairments at the qualification period (see Shi and Migration and Registration Authority [2008] HCA 31, [144] – [145]).
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Tribunal stated (at [34]):
31. In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances (emphasis added).
Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where Deputy President Handley made the following pertinent observations:
31.In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
33.The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision (emphasis added).
In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court of Australia affirmed the principle (as discussed in Fanning and Harris above) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
Qualification for disability support pension
The qualification criteria for DSP are set out in section 94 of the Act. Apart from the age and residency qualification criteria contained in paragraphs 94(1)(d), (e) and (ea), the primary requirements that must be met in order to qualify for DSP are that the Applicant has:
(a)a physical, intellectual or psychiatric impairment (subsection 94(1)(a)); and
(b)an impairment of 20 points or more under the Impairment Tables (subsection 94(1)(b)); and
(c)a CITW (subsection 94(1)(c)).
The qualification criteria for DSP are cumulative, and each element must be satisfied before a person can be accepted to be qualified for DSP. As noted in the Guide (at 3.6.3.05):
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance.
Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied.
Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.
Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
In accordance with section 27 of the Act, the tables to be applied are contained in the Impairment Tables Determination, which took effect from 1 January 2012.
The Impairment Tables Determination contains the rules for applying the Impairment Tables (the Rules). The Impairment Tables are function based rather than diagnosis based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings in respect of the level of functional impairment arising from permanent medical conditions, and not to assess the medical conditions themselves.
‘Impairment’ is defined to mean a loss of functional capacity affecting a person’s ability to work that result from the person’s permanent medical conditions. The Impairment Tables Determination provides that a person’s impairment is to be assessed on the basis of what the person can, or could, do, and not on the basis of what the person chooses to do or what others do for them (subsection 6(1) of the Rules).
The Impairment Tables Determination provides that the Impairment Tables may only be applied after the person’s medical history has been considered (subsection 6(2) of the Rules). An impairment rating can only be assigned if the condition causing that impairment is ‘permanent’; that is, it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years (subsections 6(3) – 6(6) of the Rules).
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)Whether there is corroborating evidence of the condition;
(b)What treatment or rehabilitation has occurred in relation to the condition; and
(c)Whether treatment is continuing or is planned in the next two years (subsection 6(5) of the Rules).
A medical condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition and either:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes the reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment (subsection 6(6) of the Rules).
‘Reasonable treatment’ is defined in subsection 6(7) of the Rules.
The existence of a diagnosed medical condition will not necessarily result in a rating being assigned under the Impairment Tables. Where an impairment has no functional impact, no rating will be assigned (subsection 6(8) of the Rules).
Does the Applicant suffer a physical, intellectual or psychiatric impairment pursuant to paragraph 94(1)(a) of the Act?
The Respondent accepts that the Applicant has impairments, and therefore satisfies paragraph 94(1)(a) of the Act.
Do the Applicant’s impairments attract 20 points or more under the Impairment Tables pursuant to paragraph 94(1)(b) of the Act?
Alcohol use disorder
The Applicant’s alcohol use is first referred to in the available medical evidence by Dr Pye in his report of 9 February 2021. In that report Dr Pye states “He self medicates with binge drinking, 3 times per week, > 12 stubbies a time. His wife feels he is more angry post drinking” (Exhibit 1, T5, p 108). The patient health summary provided by Dr Pye dated 15 March 2021 similarly references significant alcohol consumption of 10 or more standard drinks 2-3 times per week (Exhibit 1, T8, p 113). Neither of Dr Pye’s reports reference the Applicant’s alcohol use (or misuse) as a substance abuse disorder that is a discrete medical condition.

In April 2021, Dr Hodgson reported increased alcohol use in an attempt to control symptoms related to the Applicant’s mood disorder. He does not go on to diagnose the Applicant with a substance use disorder or discuss his excessive alcohol intake or note any prior or current treatment interventions to address it (Exhibit 1, T14, p 130).
Dr Hodgson refers to the Applicant as regularly using alcohol and experiencing difficulties performing physical or cognitive tasks as a result. He goes on to refer to the degree of functional impairment arising from the Applicant’s alcohol use, stating that he considers the Applicant’s impairment to be moderate and would assign 10 points under Impairment Table 6, which concerns Functioning related to Alcohol, Drug and Other Substance Use. In so doing, he notes that in assessing the Applicant’s impairment levels, the alcohol use assessment tool indicates the Applicant has alcohol dependence, however he does not go on to offer a discrete diagnosis (Exhibit 1, T26, p 163). The Secretary disagrees with the AAT1’s view that Dr Hodgson has diagnosed an alcohol use disorder (Exhibit 1, T2, p 7 at [25]). While noting the Applicant’s alcohol use, Dr Hodgson does not go so far as to diagnose the Applicant with a substance use disorder, and does not refer to any treatment undertaken by the Applicant in respect of such a condition, or indicate treatment is anticipated.
In his undated written submissions supplied to the Agency on 10 May 2021, the Applicant refers to hating to leave the house unless he has been drinking (Exhibit 1, T18, p 140). Despite both Drs Pye and Hodgson referring to his alcohol intake as excessive, the Applicant is recorded as having indicated to the AAT1 that he does not feel he has a problem with alcohol and has never sought or obtained any treatment in respect of it (Exhibit 1, T2, p 5 at [14]).
The Respondent submits that the Applicant’s alcohol use disorder was not fully diagnosed, fully treated and fully stabilised at the qualification period, and as such any impairment arising from that medical condition cannot be assigned an impairment rating under the Impairment Tables Determination.
The Respondent contends that should this Tribunal disagree with the Respondent in respect of the permanence of the Applicant’s alcohol use disorder (which is not conceded), the Respondent submits that the maximum rating able to be assigned under Impairment Table 6 is 10 points, having regard to the medical evidence provided by Dr Hodgson.
Mental health condition/s
The introduction to Impairment Table 5, which deals with mental health conditions, requires that diagnosis be made by a psychiatrist, or by a medical practitioner with evidence from a clinical psychologist (Exhibit 1, T3, p 49).
A review of the medical evidence identifies Dr Hodgson (psychiatrist) as an appropriately qualified medical practitioner. His evidence concerning diagnosis of the Applicant’s mental health condition/s is as follows:
(a)On 13 April 2021, his working diagnosis was that the Applicant had a mood disorder, and he goes on to describe the Applicant’s condition as fully diagnosed (Exhibit 1, T14, p130);
(b)On 20 May 2021, Dr Hodgson repeated that the Applicant has a current working diagnosis of mood disorder (Exhibit 1, T19, p 142); and
(c)On 8 October 2021, Dr Hodgson referred to the Applicant’s “diagnosis of Depression” (Exhibit 1, T26, p 163).
There is no other evidence from a psychiatrist or clinical psychologist concerning diagnosis of the Applicant’s mental health condition/s. The Respondent submits that while there are various references throughout the material before this Tribunal to the Applicant experiencing anxiety and/or agoraphobia (see, e.g., Exhibit 1, T10, p 123; T13, p 129; T15, p 131; T18, p 140), he has not been diagnosed with a specific anxiety disorder (including agoraphobia) for the purposes of assessing the degree of impairment to the Applicant’s function arising from such a condition under Impairment Table 5.
In respect of treatment of his mood disorder/depression, Dr Pye notes the Applicant has suffered for years and self-medicates with alcohol, while noting that as at 9 February 2021 he prescribed the Applicant Pristiq MR (Desvenlafaxine) 50mg for depression (Exhibit 1, T5, p 108).
In his first DSP claim, the Applicant refers to current psychological or psychiatric treatment, noting therapy with a psychiatrist was to begin the next day on 17 March 2021 (Exhibit 1, T10, p 123).
Dr Graham, in a medical certificate dated 30 March 2021, refers to the Applicant as having depression/agoraphobia since 1 March 2019, and anxiety and poor anger management since 1 January 2018. Past treatment with anti-depressants/medication and counselling is noted next to current treatment of “medication and psychiatry review” or counselling which was anticipated to continue into the future (Exhibit 1, T13, p 129).
In Dr Hodgson’s first report in respect of the Applicant, he says the Applicant is being treated for his mood disorder, and in his opinion the Applicant would be unlikely to significantly improve with or without treatment. Dr Hodgson notes the Applicant’s increased alcohol use to control his mental health symptoms but goes no further in terms of describing the possible effects of the Applicant’s drinking on the efficacy of any treatment regime. Dr Hodgson records an increased dosage of desvenlafaxine to 100mg (Exhibit 1, T14, p 130).
In the Applicant’s written submissions received 10 May 2021, he refers to taking anti-depressants including Luvox, Lexapro, Pristiq, Celexa and Paxil (Exhibit 1, T18, p 140).
Dr Grewal, in the medical certificate prepared 1 September 2021, again refers to past, present and future treatment of the Applicant’s mood disorder as including desvenlafaxine and ongoing psychiatrist review (Exhibit 1, T23, p 148).
In his supportive letter of 16 May 2022, Dr Kennedy refers to the Applicant as seeing a psychologist and psychiatrist, Dr Spencer Duke.
During the AAT1 hearing, the Applicant gave evidence that he was first diagnosed with depression by his treating general practitioner in 2003. He was prescribed a number of anti-depressant medications which mitigated his feelings of anger to some degree but did not help with his anxiety and agoraphobia. Psychiatric review was discussed in 2005 but did not eventuate (Exhibit 1, T2, p 5 at [10]). He first consulted with a psychiatrist (Dr Hodgson) in February of 2021 on referral by his treating doctor who had refused to write a supportive report for his DSP claim (Exhibit 1, T2, p 5 at [11]). The Applicant’s evidence was that he has consulted with Dr Hodgson several times since then via Telehealth. While Dr Hodgson changed his medication from Lexapro to Topiramate, he stopped taking this after two weeks because it made him feel angry and disoriented. He also ceased taking a subsequently prescribed drug that he could not recall the name of after two weeks due to chest pain. In June 2021, the Applicant commenced on Pristiq 50mg, which was doubled in July 2021 (Exhibit 1, T2, p 5 at [12]).
In the DMA report dated 28 April 2021, the assessor writes (Exhibit 1, T16, p 134):
Available evidence indicate recent consultation with psychiatrist and modifications to medications. Whilst psychiatrist has indicated guarded prognosis, further interventions including optimisation of pharmacotherapy, engagement in sustained psychological treatment and co-treatment of alcohol misuse may potentially result in some functional improvement within next 24 months. Condition cannot be assessed fully treated and stabilised.
The JCA report of 14 September 2021 notes Dr Hodgson’s opinion that the Applicant was unlikely to experience significant improvement – with or without treatment – however disagrees with this conclusion. The assessor refers to the complete absence of drug and alcohol interventions for the Applicant’s excessive drinking, which in turn is acknowledged by his treating doctors as impacting his mental health. The assessor notes that the Applicant has not engaged in structured psychological intervention for his mood disorder for his mood disorder and/or substance abuse, and such an intervention is reasonable, evidence-based and peer reviewed, regularly undertaken and accessible (Exhibit 1, T24, p 150-151).
Similarly, the AAT1 rejected Dr Hodgson’s opinion in circumstances where it is clear Dr Hodgson had only commenced a therapeutic relationship with the Applicant in February 2021 and had never actually met his patient face to face. The AAT1 noted the doubling of the Applicant’s Pristiq dosage from 50mg in June 2021 to 100mg in July 2021, and the absence of any psychological interventions throughout the entire of the Applicant’s mental illness, and the fact that the Applicant had never undergone any interventions in respect of his alcohol use as reasons why it could not accept that significant improvement could not be contemplated (Exhibit 1, T2, p 7 at [25]-[27]).
The Respondent agrees with the AAT1, the DMA assessor, and the JCA assessor’s (and contributing assessor’s) opinions that the Applicant’s mental health condition/s could not be considered fully treated and fully stabilised at the end of the qualification period.
The Respondent contends that if this Tribunal disagrees with that assessment (which is not conceded), the Respondent notes Dr Hodgson’s opinion in his letter of 8 October 2021 that the Applicant’s degree of impairment ought to be assigned 10 points under Impairment Table 5. The Respondent submits that there is no medical evidence to support any higher rating being assigned.
Perianal abscess
The JCA report from 9 November 2006 does not refer to the Applicant’s perianal abscess condition (Exhibit 1, T4, p 102).
Dr Pye records 19 October 2001 as the onset date of the condition, however provides no further details about the history of the condition including treatment interventions (Exhibit 1, T5, p 108). He listed the condition as a current and active condition in his subsequently produced Health Summary Sheet (Exhibit 1, T8, p 114).
Dr Graham refers to the Applicant’s perianal abscess as a condition which impacts on his capacity to work or study, however provides no further details about that condition in the medical certificates completed 30 March and 3 June 2021 (Exhibit 1, T13, p 129; T20, p 141).
The Applicant declared in his first DSP claim that he has had a perianal abscess since 1 January 2000, and this condition has affected his ability to work (Exhibit 1, T10, p 123). In his subsequent DSP claim (which is the subject of this application), the Applicant declares the onset date of this condition to be 1 July 2005 (Exhibit 1, T15, p 132).
In his undated written submissions received 10 May 2021, the Applicant refers to developing the abscess in “around 2005”, and describes the symptoms of the condition (Exhibit 1, T18, p 140). The Applicant reported to the assessor who completed the JCA report that there had been three surgical interventions, and that he used incontinence pads. He reported a cycle of his abscess bursting resulting in discharge, followed by a period of healing (Exhibit 1, T24, p 152).
The JCA assessor formed the view that the perianal abscess condition was not fully treated and fully stabilised, noting the lack of evidence around the Applicant’s medical management of the condition, its symptomology and functional limitations arising from it, and that the Applicant may benefit from additional medical management “to optimise treatment and management of symptoms” (Exhibit 1, T24, p 152).
In his supportive letter of 16 May 2022, Dr Kennedy reports that the Applicant has undergone surgical intervention on three occasions “over the last 20 years”, however the abscess has continued to recur. Dr Kennedy writes that the Applicant has not been informed by any surgeon that there is no prospect of improvement, however the Applicant’s former treating doctor did have this view. Dr Kennedy writes that long course antibiotics have been successful in treating the condition, and that the Applicant has not seen a dermatologist or other specialist in respect of the perianal abscess condition. Additionally, Dr Kennedy states the Applicant self-treats the abscess by excising it himself as he “cannot get easy access to a surgeon and the E.D. tend to admit him to hospital which he prefers to avoid”. The last noted incision and drainage procedure undertaken by the Applicant was performed by Dr Michael Muscio in 2007.
Given the reported severity and longevity of the condition, the Respondent submits that the Applicant ought reasonably to have engaged with a specialist and sought further medical opinion regarding ongoing management of his perianal abscess condition and resulting symptomology. In the absence of specialist review, the Respondent contends that this condition is not fully treated or fully stabilised at any time up to and including the qualification period.
The Respondent contends that if the Tribunal disagrees with the Respondent and considers this condition is permanent within the meaning of the Act (which is not conceded), the Secretary submits that Dr Kennedy’s evidence is that the abscess generally flares up once per month, and during flare-ups the Applicant has standing and sitting tolerances of no more than 30 minutes. He opines that the Applicant’s draining abscess would be problematic for his co-workers due to the foul smell.
Impairment Table 13 is used to assess functional impairment arising from conditions affecting continence of the bladder or bowel. To have a moderate impairment, a person would have to experience major leakage from the bowel in most weeks, and have difficulties that result in interruption to tasks, work or training on most days. For a severe impairment, the Applicant’s condition may affect the comfort or attention of co-workers, or they must experience minor leakage from the bowel every day, or have major leakage from the bowel at least weekly.
While Dr Kennedy has referred to the impact on the Applicant’s co-workers, his medical report indicates the Applicant’s perianal abscess condition does not result in daily bowel leakage, and there are days where the Applicant can work when his condition is not in flare-up. On balance, the Respondent considers the Applicant’s reported symptoms more closely align with a moderate impairment, and as such a maximum of 10 points could be assigned. The Respondent notes subsection 11(1)(c) of the Rules which requires that if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied.
Other conditions
The available evidence also refers to the Applicant’s medical history as including GORD, migraines, hives, chronic fatigue, sleep apnoea and obesity. The Respondent contends that there is a dearth of evidence before this Tribunal in relation to diagnosis and treatment of any of these noted conditions. In the circumstances, the Respondent submits that this Tribunal:
(a)ought not to be satisfied that any of the noted conditions is permanent within the meaning of the Act in respect of the Applicant’s subsequent DSP claim; and
(b)no impairment points can be assigned.
Overall impairment rating
The Respondent contends that the Applicant’s overall impairment rating for impairments arising from his fully diagnosed, treated and stabilised conditions is 0 points, and he therefore does not satisfy paragraph 94(1)(b) of the Act.
Does the Applicant have a continuing inability to work pursuant to section 94(1)(c) of the Act?
Due to the cumulative nature of section 94 of the Act if, as the Respondent contends, the Applicant does not have an impairment rating of 20 points or more under the Impairment Tables, he is not qualified for DSP. Consequently, there is no requirement to consider whether or not the Applicant has a CITW for the purposes of subparagraph 94(1)(c)(i) and subsection 94(2) of the Act.
However, the Respondent contends that if the Tribunal were to disagree with the Respondent’s contention and find that the Applicant had a total impairment rating of 20 points or more under the Impairment Tables (which is not conceded), the Tribunal would need to consider whether the Applicant had a CITW. In this respect, the Respondent contends that the Applicant did not have a CITW during the relevant period.
The term ‘continuing inability to work’ is defined in subsection 94(2) of the Act, which states:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and (b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The term ‘severe impairment’ is defined in subsection 94(3B) of the Act, as follows:
(3B) 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.
The Respondent contends that if this Tribunal accepts that the Applicant does not have a severe impairment but finds that the Applicant has a number of fully diagnosed, treated and stabilised conditions causing impairment to his work-related function, which cumulatively attract an impairment rating of at least 20 points (which the Respondent contends is not open on the evidence), then the Applicant must have actively participated in a program of support before he can be found to have a CITW.
A person has actively participated in a program of support if they meet the requirements set out in the POS Determination. The POS Determination applies to all claims for DSP made on or after 3 January 2015.
Part 2 of the POS Determination sets out the requirements for active participation. This requires that a person must actively participate in a program that:
·was provided by a ‘designated provider’;
·was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment;
·provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work; and
·includes at least one of the defined activities.
Section 5 of the POS Determination defines a designated provider, exclusively, as a Job Services Australia provider, a Disability Employment Services provider, an Australian Disability Enterprise, or any person who provides a program of support that is funded wholly or partly by the Commonwealth.
Part 2 section 7 of the POS Determination provides that a person has actively participated in a program of support if they have participated in, and complied with, the requirements of the program within the relevant period (defined by section 5 as the period of 36 months ending immediately before the day on which the person claimed DSP) and the person either:
(a)has participated in a program of support for at least 18 months within the three years period prior to the date of claim (subsection 7(2));
(b)has completed a program of support that was less than 18 months in duration prior to claiming DSP (subsection 7(3));
(c)was participating in a program of support that was terminated, prior to the person claiming DSP, because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work (subsection 7(4)); or
(d)was participating in the program at the end of the relevant period and is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation (subsection 7(5)).

Section 8 of the POS Determination makes it clear that periods where a person is not participating in a program, whether due to exemption, suspension or relief from the program, are not to be counted in calculating the length of time that a person has been participating in a program for the purposes of section 7.
The Respondent submits that the Applicant has not satisfied the requirement to have actively participated in a program of support for at least 18 months in the 36 months prior to his claim for DSP. According to the Respondent, the Applicant’s program of support calculation indicates that he had no periods of active participation at all within the three years ending immediately prior to the day of which the Applicant claimed DSP (Exhibit 3, Annexure A). On that basis, the Respondent submits that the Applicant has not actively participated in a POS for at least 18 months and does not satisfy subsection 7(2) of the POS Determination.
The Respondent further contends that none of the exceptions contained in subsections 7(3) – (5) of the POS Determination apply as the Applicant had not commenced a program of support during the qualification period and was not participating in a POS as at the day before he claimed DSP (see Budisa and Secretary, Department of Social Services [2014] AATA 79).
On the foregoing, the Respondent contends that the Applicant does not satisfy paragraph 94(2)(aa) of the Act, and as such he cannot be found to have to a CITW under paragraph 94(1)(c) of the Act.
In the alternative, the Respondent submits that if the Tribunal, contrary to the Respondent’s submissions, finds that the Applicant had a severe impairment and was not required to have actively participated in a program of support, it would then be necessary to consider his work or training capacity during the qualification period.
The term ‘work’ is defined in subsection 94(5) of the Act, as work:
a. that is for at least 15 hours per week 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.
In the process of determining whether a person has a continuing inability to work, the decision maker must disregard a number of factors, including:
·any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person’s locally accessible labour market (paragraph 94(3)(b));
·the availability to the person of a training activity (paragraph 94(3)(a));
·the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517).
In his reports dated 13 April and 20 May 2021, Dr Hodgson opines that the Applicant’s mental health condition would “impact on his ability to work for the foreseeable future” (Exhibit 1, T14, p 130) and “impact on his ability to do 8 hours or more a week for the next two years” (Exhibit 1, T19, p 142). The Respondent submits that Dr Hodgson has improperly had regard to the functional impact of conditions that are not fully treated and stabilised in reaching this conclusion, and his opinion in this respect should not be assigned any weight by the Tribunal.
The Secretary relies on the JCA report of 14 September 2021 in which the assessor opines that the Applicant’s fully diagnosed, fully treated, and fully stabilised conditions would not prevent him from performing any work for at least 15 hours per week within two years (Exhibit 1, T24, p 155). According to the Respondent, the assessor correctly notes that conditions not assessed as permanent within the meaning of the Act cannot be regarded when assessing a person’s work capacity, however notes that the Applicant has symptoms associated with his medical conditions that could improve with better management and disability specific interventions, including vocational assessment, retraining, work experience, intensive post-placement and ongoing support, such that his work capacity (having regard to his medical conditions) could increase to 15-22 hours per week from baseline levels of 8-14 hours per week (Exhibit 1, T24, p 156).
The Respondent contends that the opinion of the trained and qualified job capacity assessor employed by the Agency should be preferred in relation to the Applicant’s capacity to work. The Respondent’s position is that the job capacity assessor has specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations, enabling them to determine a person’s capacity to work. They have knowledge of labour market issues and experience in assessing the impact of medical conditions on a person’s ability to work, and are in the best position to properly determine the Applicant’s capacity to perform work or undertake education or vocational training (see Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642).
In summary, the Respondent submits that the Applicant did not meet the requirements of paragraphs 94(2)(a) or (b) of the Act during the qualification period, and he does not have a CITW under paragraph 94(1)(c).
Consideration AND Conclusion
In considering the issue before this Tribunal, I have had regard to the extensive evidence and submissions placed before it, in writing and made at the Hearing.
To determine the issue in this matter - whether the Applicant satisfied the qualification criteria for DSP as at the date of the claim, or within the qualification period - I must have regard to the criteria in section 94 of the Act (see paragraph 39 above) and set out below.
Does the Applicant suffer a physical, intellectual or psychiatric impairment pursuant to paragraph 94(1)(a) of the Act?
There is no dispute between the parties that the Applicant has impairments, and therefore satisfies paragraph 94(1)(a) of the Act. Accordingly, I find that the Applicant satisfies the requirements of paragraph 94(1)(a) of the Act in relation to impairments claimed.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant did not seriously propound a case in relation to the (i) alcohol use disorder, (ii) the mental health conditions and (iii) the “other” conditions, as categories of impairments under the Impairment Tables for the purpose of section 94(1)(b) of the Act. On my review of the evidence before this Tribunal, and taking into account the parties’ submissions on the same, I can safely make the following findings:
(a)the Applicant’s alcohol use disorder was not fully diagnosed, fully treated and fully stabilised during the qualification period;
(b)the totality of the Applicant’s mental health conditions were not fully treated and fully stabilised during the qualification period; and
(c)the Applicant’s “other” conditions cannot be regarded as permanent within the meaning of the Act.
It follows from the foregoing findings that any impairment arising from the three categories of medical conditions above cannot be assigned an impairment rating under the Impairment Tables Determination. That is the end of the matter in relation to these conditions for DSP purposes.
The position is different in relation to the Applicant’s perianal abscess condition.
The Respondent concedes (and I find) that the evidence supports a finding that that condition is fully diagnosed. The Respondent says that this Tribunal should not accept that, during the qualification period, the Applicant’s perianal abscess condition was fully treated and fully stabilised. The Respondent further contends that, in the absence of corroborating medical evidence, this Tribunal should not find that the condition is permanent, within the meaning of the Act. With due respect to the Respondent, I do not accept these submissions.
The lay and medical evidence (from Dr Kennedy) before this Tribunal, which I find to be credible and compelling, is sufficient to corroborate that:
(a)the Applicant has suffered from the perianal abscess condition for around 20 years;
(b)the Applicant has engaged with a surgeon and undergone medical procedures on multiple occasions to treat and stabilise the condition, most recently in 2007;
(c)the Applicant has self-treated the condition in the intervening period (including during the qualification period);
(d)
there is an apparent lack of definitive medical treatment that can “cure”

the condition;
(e)the condition will unlikely improve significantly in the future; and
(f)the Applicant will likely continue to suffer from the condition in the future.
I do not find that the absence of recent, specialist medical review of the perianal abscess condition is a particularly significant feature of this case. The Applicant has engaged in ongoing self-management of the condition since his last surgery. On balance, this appears to be an objectively reasonable and effective form of treatment, having regard to the nature of the condition and the Applicant’s knowledge and unique circumstances, including, but not limited to, his not having easy access to specialist medical care in the form of a surgeon. On the other hand, it seems unrealistic and unreasonable to be expecting that the Applicant can and should be accessing a surgeon on a monthly basis to manage this condition.
Accordingly, I am of the view (and I find) that the perianal abscess condition is ‘permanent’; that is, it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.
The next issue is the number of points to be assigned to the Applicant’s perianal abscess condition, having regard to the nature of his impairment for the purposes of the Impairment Tables (paragraph 94(1)(b)). To my mind, Impairment Table 13 is the most appropriate table for this case given that it is used to assess functional impairment arising from conditions affecting continence.
As already set out above, to have a moderate impairment, a person would have to experience major leakage from the bowel in most weeks, and have difficulties that result in interruption to tasks, work or training on most days. For a severe impairment, the Applicant’s condition may affect the comfort or attention of co-workers, or they must experience minor leakage from the bowel every day, or have major leakage from the bowel at least weekly.
The Respondent considers the Applicant’s reported symptoms more closely align with a moderate impairment, and as such a maximum of 10 points could be assigned. With due respect to the Respondent, I do not agree.
The lay and medical evidence (from Dr Kennedy) before this Tribunal, which I find to be credible and compelling, better aligns with a severe impairment attracting 20 points (with all of the descriptors for that level of impairment being satisfied in Impairment Table 13) because:
(a)the Applicant’s perianal abscess condition results in “constant leakage” and “absolute mess” and “foul” smells – this will obviously adversely affect co-workers; and
(b)the perianal abscess is a problem “every day” for the Applicant, with continuous periods of minor or major leakage after major flare ups, requiring the Applicant to wear continence pads.
Does the Applicant have a continuing inability to work pursuant to section 94(1)(c) of the Act?
In light of my finding that the Applicant had a severe impairment, it follows that the Applicant was not required to have actively participated in a program of support.
I must consider the Applicant’s work or training capacity during the qualification period. The medical evidence from Dr Kennedy indicates that the Applicant “would only be able to go to work 3 days per month” and “he is unable to sustain work activity for more than 1 hour without break due to need to attend to personal [hygiene] and this was also the case between 20 April 2021 and 20 July 2021. Dr Kennedy further opines that, “it is likely that Mr Hinton’s impairment will prevent him from improving his ability to prepare for, find and keep a job by engaging in [a] Program of Support delivered by and employment service provide or a disability employment service.” On this evidence, I consider (and find) that the Applicant had a CITW at the date of his claim for DSP and therefore met the requirements of subsection 94(1)(c) of the Act.
Decision
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 16 November 2021 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for Disability Support Pension at the date of his claim on 20 April 2021.

I certify that the preceding 136 (one-hundred-and-thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

..............................[SGD].................................
Associate
Dated: 25 January 2023

Date of hearing: 23 August 2022

Applicant: By phone

Solicitors for the Respondent: Maleah Underhill
Services Australia

Date of hearing:	23 August 2022
Applicant:	By phone
Solicitors for the Respondent:	Maleah Underhill Services Australia