Hodge and Secretary, Department of Social Services (Social services second review) - [2024] AATA 415

Hodge and Secretary, Department of Social Services (Social services second review) [2024] AATA 415 (13 March 2024)
Division:GENERAL DIVISION
File Number: 2022/2650
Re:Lewis Hodge
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:13 March 2024
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that Mr Hodge meets the qualification criteria for a disability support pension in ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
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Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – whether the Applicant suffers from a permanent impairment that attracts 20 points or more under the Impairment Tables – whether Applicant suffers from a severe impairment – whether continuing inability to work – Reviewable Decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(a), 94(2)(aa), 94(3B), 94(5)
Social Security (Administration) Act 1999 (Cth) s 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5(2),5(2)(b), 5(2)(c), 6, 6(4) 6(5), 6(6),10(1), 11
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s 7
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
13 March 2024

Mr Hodge lodged a claim for a disability support pension (DSP) with Services Australia (Centrelink) on 14 September 2021. In his application he stated that he suffered from spinal disorder, musculo-skeletal disorder, shoulder pain, diabetes, and morbid obesity.
On 22 September 2021, Centrelink rejected Mr Hodge’s claim for a DSP because he was not assessed as having an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
Mr Hodge requested a review of the 22 September 2021 decision, but on 9 December 2021, an Authorised Review Officer (ARO) decided not to change the decision on the basis that Mr Hodge’s conditions did not attract an impairment rating under the Impairment Tables (the ARO Decision).
On 22 December 2021, Mr Hodge lodged an application seeking review of the ARO Decision in the Social Services and Child Support Decision (AAT1) of this Tribunal.
On 18 March 2022, the AAT1 affirmed the ARO Decision (AAT1 Decision). The AAT1 also found that his conditions could not be afforded any points under the Impairment Tables, and therefore Mr Hodge did not meet the eligibility criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act).
On 1 April 2022, Mr Hodge lodged an application seeking review of the AAT1 Decision in the General Division (AAT2) of this Tribunal. In his application Mr Hodge described why he thought the AAT1 Decision was wrong:
I strongly believe that the decision made by the aat is wrong as my condition has been fully diagnosed and even thought i have been referred to a neurosurgeon as a public patient the appointment could be upwards of 2 years to see them in the meantime i am suffering constant back pain and mobility issues as well as some incontinence due to neural impingement on the nerves in my spine and back as well as mobility issues which make it impossible to work or even seek work as required by Centrelink i also have a lot of trouble trying to sleep as a result of these issues I am also suffering from chronic bursitis in both shoulders and hip which while not always painful it is ongoing on constant basis and can flare up at any time furthermore due to trouble sleeping i do sometimes fall asleep without warning which would also impact holding a job of any description I hereby ask that the decision made be overturned and that I be granted the disability pension.
(As original.)
It is the ARO Decision, as affirmed in the AAT1 Decision, that is the Reviewable Decision in this application.
ISSUE
The overall issue for determination by this Tribunal is whether, during the Qualification Period (which I explain below is 14 September 2021 to 14 December 2021), Mr Hodge met the qualification criteria for a DSP in s 94(1) of the Act, including:
(a)Whether he suffered from a physical, intellectual, or psychiatric impairment or impairments;
(b)If so, whether the impairment(s) were fully diagnosed, treated, and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and
(c)If so, whether the Applicant had “a continuing inability to work”.
THE HEARING AND THE EVIDENCE
The application was heard on 1 February 2024 by telephone.
Ms Campbell of HWL Ebsworth Lawyers appeared for the Secretary. Mr Hodge represented himself.
Mr Hodge did not file any documents in these proceedings. The Secretary filed the Section 37 (T Documents) numbered T1 to T36, comprising 244 pages, which I put into evidence as Exhibit 1.
I also had regard to the Secretary’s Statement of Issues, Facts and Contentions dated 27 September 2022.
LEGISLATIVE FRAMEWORK
The legislation applicable to this matter is contained in the:
(a)Act;
(b)Social Security (Administration) Act 1999 (Cth) (Administration Act);
(c)Impairment Tables; and
(d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
Qualification for DSP
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …
Each criterion must be satisfied before a person will be qualified for a DSP.
Impairment tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered. …
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and …
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and …
(c)the condition has been fully stabilised; and …
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated, and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments:
Selection steps
(1)Table selection is to be made by applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor or medical specialists.
Section 11 of the Impairment Tables states, in part:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
My view is that Table 1 – Functions requiring Physical Exertion and Stamina (Table 1) is the most applicable table when Mr Hodge’s specific losses of function are considered. The Secretary approached the task differently and made submissions about other tables being applicable to Mr Hodge’s specific conditions including Table 1, Table 3 – Lower Limb Function and Table 4 – Spinal Function. I explain why I consider Table 1 to be the most applicable Table in further detail below.
Qualification period
Schedule 2, pt 2, s 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:
(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.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. Mr Hodge lodged his claim for a DSP on 14 September 2021. Consequently, the relevant Qualification Period is 14 September 2021 to 14 December 2021.
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 (Gallacher), at [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset that, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. 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.
In Gallacher, Besanko J, at 7 [27] and [28], also stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 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.
Continuing inability to work
One of the qualification criteria for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(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.
(Original emphasis.)
Section 94(3B) of the Act provides that “[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” (original emphasis).
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment, they will not be required to actively participate in a program of support.
Program of support

A “program of support” is defined in s 94(5) of the Act as:
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
A person is considered to have actively participated in a program of support if they meet the requirements set out in s 7 of the POS Determination. These requirements include that the person must have participated in the program of support for at least 18 months in the 36 months ending immediately prior to the date the person claimed a DSP.
DID MR HODGE SUFFER FROM IMPAIRMENTS DURING THE QUALIFICATION PERIOD?
Subsection 94(1)(a) of the Act requires that to be eligible for a DSP, a person must suffer from a physical, intellectual, or psychiatric impairment during the Qualification Period.
The Secretary accepts that Mr Hodge suffered from impairments during the Qualification Period and that this requirement is satisfied. These were degenerative lumbar spinal disease (Spinal condition), diabetes mellitus type 2 and obesity, bilateral trochanteric bursitis (Hip condition) and tendinopathy, and shoulder pain.
The medical evidence before me supports a finding that Mr Hodge suffered from these impairments during the Qualification Period.
DID MR HODGE’S IMPAIRMENTS ATTRACT POINTS UNDER THE IMPAIRMENT TABLES?
One of the eligibility criteria for a DSP (in s 94(1)(b) of the Act) is that a person’s impairments must attract 20 points or more under the impairment Tables.
The Secretary submitted that as at the Qualification Period, none of Mr Hodge’s impairments could be considered as fully diagnosed, treated, and stabilised which meant that they could not be given any points under the Impairment Tables.
The Secretary looked at each impairment and whether the impairment could be assigned a rating under separate Impairment Tables. They concluded in the negative, which was perhaps why they did not ask Mr Hodge any questions at the hearing about how his impairments impacted him during the Qualification Period.
In my view, it is appropriate to approach this task differently in Mr Hodge’s situation. It struck me from the medical evidence before me that during the Qualification Period, Mr Hodge had numerous impairments, which I will refer to as conditions for ease of reference, that impacted his ability to walk and to perform day to day tasks. These conditions included his Spinal condition, his diabetes mellitus type 2 and obesity, his Hip condition and tendinopathy, and his shoulder pain. For convenience, I have dealt with the diabetes mellitus type 2 and obesity together as they are mentioned together and interchangeably in the medical evidence. Given these conditions involve the loss of function, the closest impairment table which addressed difficulties with walking and performing daily tasks, was Table 1 – Functions requiring Physical Exertion and Stamina (section 10(1) of the Impairment Tables).
Although the Secretary addressed Mr Hodge’s diabetes mellitus type 2 and obesity under Table 1, they suggested that Table 4 – Spinal Function was applicable for Mr Hodge’s Spinal condition. However, that table focuses on overhead activities and a person’s ability to turn their head and move their trunk, and Mr Hodge’s limitations were primarily with walking and mobility.
I will first consider whether Mr Hodge’s Spinal condition and diabetes mellitus type 2 and obesity (which relate to walking and daily activities) were fully diagnosed, treated, and stabilised during the Qualification Period. If so, I will assign them an impairment rating under Table 1.
The medical evidence supports a finding that these conditions were diagnosed during the Qualification Period. I disagree with the Secretary’s submission that the conditions were not permanent (fully diagnosed, treated, and stabilised), for reasons that I will now explain.
In a medical certificate dated 5 December 2020, general practitioner Dr Tully diagnosed Mr Hodge with “chronic back pain – degenerative spine” with a date of onset of 15 August 2019. Further, Dr Tully stated that the condition was “permanent (likely to persist for 2 years or more)”, indicating that the condition was also treated and stabilised. Dr Tully stated that the Applicant was currently being treated with analgesia, a self-help home program and that physiotherapy was recommended. For planned treatment, Dr Tully wrote “consider steroid injection”, “consider physiotherapy” and “weight loss”. These appear to be suggestions as to how the pain associated with the condition should be managed, and do not, in my view, definitively indicate that the condition was not permanent, especially when the doctor has specifically stated that the condition was permanent.
Dr Tully also diagnosed Mr Hodge with “obesity BMI 53” which was “permanent (likely to persist for 2 years or more)”. The prognosis was stated as “uncertain”. The past treatment was stated as “self help diet and exercise”, the current treatment was stated as “diet and lifestyle changes” and “consider referral for bariatric surgery”, and the planned treatment as “consider referral for bariatric surgery”. Dr Tully also diagnosed Mr Hodge with type 2 diabetes as having an impact on Mr Hodge’s ability to work or study and that he would not be able to do any other work for eight hours or more a week.
In a medical certificate dated 16 December 2020, general practitioner Dr Hick diagnosed Mr Hodge with “chronic back pain due to degenerative spinal disease” with a date of onset of 15 August 2019. Dr Hicks also stated that the condition was “permanent (likely to persist for 2 years or more)”. Dr Hick stated the same current and planned treatments as Dr Tully.
Dr Hick also diagnosed Mr Hodge with “morbid obesity (BMI 53) with diabetes” and again stated that the condition was “permanent (likely to persist for 2 years or more)”. He stated that Mr Hodge had tried, “self help diet and exercise” and that the current treatment was “diet and lifestyle changes” and “consider referral for bariatric surgery”. The planned treatment was also “consider bariatric surgery”. Like Dr Tully, Dr Hick also diagnosed Mr Hodge with type 2 diabetes as having an impact on Mr Hodge’s ability to work or study and stated that he would not be able to do any other work for eight hours or more a week.
In a medical certificate dated 9 September 2021, general practitioner Dr Meeran diagnosed Mr Hodge with “lumbar disc problems” which he also rated as being “permanent (likely to persist for two years or more)”. He listed past treatment as “pain killers”, current treatment as “nil” and planned treatment as “physio”.
Dr Meeran also diagnosed Mr Hodge with diabetes mellitus which he classified as “permanent (likely to persist for 2 years or more)”. He stated that past treatment was “dietary changes”, current treatment was “nil” and planned treatment was “review”. Dr Meeran also said Mr Hodge has obesity which significantly impacted his ability to work or study.
A medical certificate dated 1 December 2021 from Dr Allen also stated that Mr Hodge had a diagnosis of “chronic back pain due to degenerative spinal disease” with a date of onset of 15 August 2019. He ticked the box that it was a “temporary exacerbation of a permanent condition (likely to persist for two years or more)”. Dr Allen stated that Mr Hodge was currently being treated with “analgesia”, a “self help home exercise program” and “physiotherapy recommended”. For planned treatment, Dr Allen recommended “steroid injection”, “physiotherapy” and “weight loss”. Dr Allen certified Mr Hodge as being unfit for work from 1 December 2021 to 12 January 2022. A letter dated 7 December 2021 from Dr Allen stated that Mr Hodge had been referred to the neurological department and pain specialist regarding an attached CT scan, but there could be a waiting time of more than 18 months. The CT scan dated 4 December 2021 stated that Mr Hodge had a two month history of intermittent incontinence, so the CT scan was to assess for impingement. It found “multi-level degenerative disc and facet joint changes … Some foraminal stenosis … most marked at L3/4 where there is mild to moderate impingement upon the existing L3 nerves”.
Dr Allen’s medical certificate is slightly inconsistent with the previous ones because he stated that Mr Hodge’s spinal impairment was a “temporary exacerbation of a permanent condition (likely to persist for two years or more)”. Nevertheless, he is still attesting that the impairment was permanent. Mr Hodge seems to have been referred to the neurosurgeon due to his incontinence issue. This was an issue that Mr Hodge told me about at the hearing. The CT scan and referral suggest that this incontinence issue was not fully diagnosed, treated, and stabilised during the Qualification Period. At the hearing Mr Hodge had said that he had been to the neurosurgeon who had said that there was nothing that could be done for him surgically.
Dr Allen also stated a diagnosis of “morbid obesity (BMI 53) with diabetes” in his medical certificate dated 1 December 2021. He stated that it would impact Mr Hodge’s ability to work or study for more than 24 months and classified the condition as a “temporary exacerbation of a permanent condition (likely to persist for 2 years or more)”. The past treatment was stated as “self help diet and exercise”, the current treatment was stated as “diet and lifestyle changes” and “consider referral for bariatric surgery”, and the planned treatment was stated as “diet and lifestyle changes” and “consider bariatric surgery again”.
In terms of Mr Hodge’s treatment, on 2 February 2021, Mr Hodge reported to a Centrelink psychologist who undertook an employment services assessment report that he was unable to afford physiotherapy and was losing weight through dietary changes. He reported that he had lost 15 kilograms at his last weigh in and planned to continue dieting. He stated that he had declined bariatric surgery.
As I mentioned above, at the hearing the Secretary did not ask Mr Hodge about his functional limitations during the Qualification Period. Additionally, the available evidence about Mr Hodge’s functional abilities is of a general nature. I have nevertheless been able to assign an impairment rating based on the totality of the evidence before me.
The evidence before me contains the following references to the functional limitations caused by Mr Hodge’s Spinal condition during the Qualification Period:
·At the hearing Mr Hodge said that his left and right legs were in constant pain.
·In the medical certificate dated 5 December 2020, Dr Tully stated that Mr Hodge’s symptoms were, “severe back pain limiting movement and activities of daily living”.
·In the medical certificate dated 16 December 2020, Dr Hick similarly stated that Mr Hodge’s symptoms were, “severe back pain, limits activity – not able to walk for more than 50 metres” and “restricts activities of daily living”.
·On 9 September 2021, Dr Meeran stated that Mr Hodge’s symptoms were “severe back pain, poor mobility, even sitting can be very uncomfortable”.
·On 1 December 2021, Dr Allen similarly stated that Mr Hodge had “severe back pain, limits activity – not able to walk for more than 50 metres” and “restricts activities of daily living”.
·On 2 February 2021, Mr Hodge told the Centrelink psychologist that his Spinal condition “impacts on his sleep and that he will sometimes sleep in a recliner”.
·In a claim form dated 14 April 2021, Mr Hodge stated, “chronic back pain associated with spinal disease and restricted movement unable to stand or sit for any period of time trouble sleeping”.
Similarly, the evidence before me concerning the functional limitations caused by Mr Hodge’s diabetes mellitus type 2 and obesity condition includes:
·On 5 December 2020, Dr Tully stated that the symptoms of Mr Hodge’s obesity were “reduced mobility” and “severe indirect impact on overall health”.
·On 16 December 2020, Dr Hick stated the following symptoms:
Reduced mobility. Very low exercise tolerance.
Impacting diabetic control.
Can’t bend over.
·On 9 September 2021, Dr Meeran stated that the symptom of Mr Hodge’s diabetes mellitus was “tiredness”.
·On 1 December 2021, Dr Allen stated the same symptoms as Dr Hick did on 16 December 2020.
There are two sonographer reports in the materials which relate to Mr Hodge’s Hip condition and tendinopathy. A report dated 29 October 2021 from Dr Chawla states that “The findings are suggestive of gluteus medius and minimus tendinopathy and greater trochanteric bursitis”. Another sonographer report from Dr Kuriakose dated 1 November 2021 states “abductor tendinopathy with greater trochanteric bursitis is noted”.
Based on the above evidence, I find that during the Qualification Period:
·Mr Hodge’s Spinal condition, diabetes mellitus type 2 and obesity, and Hip condition and tendinopathy were fully diagnosed.
·Mr Hodge’s Spinal condition was also fully treated and stabilised and permanent. Dr Tully, Dr Hick, and Dr Meeran each thought that his condition was permanent and likely to persist for more than two years. Dr Allen classified the condition as “temporary exacerbation of a permanent condition (likely to persist for 2 years or more)” which nevertheless is a conclusion that the condition was permanent. Mr Hodge had been treated with analgesics, had engaged in a self-help home program and although physiotherapy was recommended, it was not mandated. I also note Mr Hodge’s evidence that he could not afford physiotherapy and that “nothing works” and that the only avenue available to him was opiate based pain relief. Even though Mr Hodge was referred to a neurosurgeon, this appeared to be for his incontinence issues, which suggests that the incontinence condition that was not fully treated and stabilised.
·His diabetes mellitus type 2 and obesity condition was also permanent, as stated by the general practitioners. In my view, it is sufficient that bariatric surgery was considered even though Mr Hodge did not want to proceed with the surgery. Mr Hodge had made lifestyle changes and had lost some weight, but ultimately, the conditions were of a permanent nature and likely to persist for more than two years.
·Mr Hodge’s Hip condition and tendinopathy was probably not fully treated and stabilised during the Qualification Period. The only medical evidence is the two sonography reports just before the Qualification Period. I am unsure what the recommended treatment was, although at the hearing Mr Hodge stated that he had three steroid injections in his hips, with two of them being within the Qualification Period, but they “didn’t do anything”. The general practitioners do not mention the condition or any functional impacts from the Hip condition and tendinopathy which suggests it was newly diagnosed and not fully treated or stabilised. There is minimal, if any, evidence about functional impairment.
·The evidence of functional impairment of Mr Hodge’s Spinal condition and diabetes mellitus type 2 and obesity were from general practitioners and from what was recorded by the Centrelink psychologist. According to the Introduction to Table 1, the diagnosis must be made by an appropriately trained medical practitioner, and self-reporting of symptoms alone is insufficient. There is minimal to no self-reporting in this instance because the Secretary did not ask Mr Hodge about any of the functional impacts of his conditions. Also, according to the Introduction to Table 1, a report from a person’s treating doctor is an example of sufficient corroborating evidence. I therefore accept the general practitioners’ descriptions of Mr Hodge’s functional impairments which support what he told the psychologist.
·The functional impairments from Mr Hodge’s Spinal condition and diabetes mellitus type 2 and obesity condition are similar, and as I explained above, his functional limitations from those impairments are best captured by Table 1. In summary, the functional impacts of those conditions including severe back pain, difficulty walking for 50 metres, having a low tolerance for any physical activity, difficulty sitting or standing for any length of time, difficulty laying down to sleep and sometimes having to sleep sitting up, difficulty bending over, tiredness and difficulty performing activities of daily living which would mean that Mr Hodge has difficulty performing light physical activities such as walking from a car park to a shopping centre without assistance or performing light day to day household activities. In addition, he would have difficulty sustaining work-related tasks of a clerical or sedentary nature due to his difficulty sitting or standing for any period. I therefore find that Mr Hodge’s functional impairments from these conditions should attract an impairment rating of 20 points.
As I mentioned above, Mr Hodge also has a shoulder condition. It is unnecessary for me to consider Mr Hodge’s shoulder condition because I have found that he has a severe impairment under Table 1 based on his spinal and diabetes mellitus type 2 and obesity condition.
DID MR HODGE HAVE A CONTINUING INABILITY TO WORK?
I have assessed Mr Hodge as having a severe impairment, and therefore he is not required to participate in a program of support (s 94(3B) of the Act). I do note, however, that Mr Hodge had completed 180 days of a program of support by 3 April 2022, which, if he had to complete one, means that he would have had 18 months of the program left to complete.
However, pursuant to s 94(2)(a) of the Act, the Secretary, and in this case the Tribunal, must be satisfied that the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years.
On 2 February 2021, the Centrelink psychologist assessed Mr Hodge as being suitable for “light less skilled work” of 0-7 hours per week until 28 February 2021, a baseline work capacity of 8-14 hours per week, but that he had the capacity to undertake 15-22 hours per week work with intervention within two years.
I disagree with the accuracy of that assessment which does not accord with the findings I have made above concerning Mr Hodge’s functional limitations due to his Spinal condition and diabetes mellitus type 2 and obesity. It is also inconsistent with the medical certificates that I have outlined above which record that Mr Hodge was not able to undertake his usual work, nor any other work for eight or more hours per week. Given Mr Hodge’s pain and mobility issues, the interventions suggested by the Centrelink psychologist to increase his work capacity such as job-seeking assistance, vocational counselling, workplace modifications and back education are likely to be entirely inadequate to assist him. He has already tried losing weight and dietary intervention.
I therefore find that Mr Hodge’s impairments during the Qualification Period were such that he was not capable of undertaking any work independently of a program of support within the two years following the Qualification Period or of undertaking any training activity.
CONCLUSION
Mr Hodge meets the qualification criteria for a DSP in s 94(1)(a), (b) and (c) of the Act. This means that Mr Hodge has been successful in his application.
DECISION
The Reviewable Decision is set aside and substituted with the decision that Mr Hodge meets the qualification criteria for a DSP in s 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

................[Sgd]........................................................
Associate
Dated: 13 March 2024

Date of hearing: 1 February 2024

Applicant representative: Self-represented

Respondent representative: Ms C Campbell, HWL Ebsworth Lawyers

Date of hearing:	1 February 2024
Applicant representative:	Self-represented
Respondent representative:	Ms C Campbell, HWL Ebsworth Lawyers