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

Hopper and Secretary, Department of Social Services (Social services second review) [2020] AATA 20 (10 January 2020)
Division:GENERAL DIVISION
File Number: 2019/2911
Re:Leanne Hopper
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member

Date:10 January 2020
Place:Perth

The Tribunal affirms the decision under review.
...............[sgd].........................................................
Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s conditions were fully diagnosed, fully treated and fully stabilised – whether Applicant’s conditions attract 20 points under the Impairment Tables – whether Applicant has severe impairment – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(3B), 94(3C)
Social Security (Administration) Act 1999 (Cth) – s 42, Schedule 2 Clause 3, Schedule 2 Clause 4
Social Security (Active Participation for Disability Support Pension) Determination 2014 – ss 5, 7, 7(2), 7(3), 7(4), 7(5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – ss 6, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 8, 10(1), 11(4), Table 1, Table 4, Table 5
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Arthritis Australia, ‘Ankylosing spondylitis’, Arthritis Australia (Web Page) < to Social Security Law, Department of Social Services, version 1.241 – 3.6.3.05
REASONS FOR DECISION
Brigadier A G Warner, Member
10 January 2020
INTRODUCTION

Ms Hopper seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 17 April 2019 that affirmed a decision made by an Authorised Review Officer (ARO) dated 8 January 2019. That decision rejected the Applicant’s claim for disability support pension (DSP) lodged on

19 February 2018 (T2/6-17).
A hearing was conducted on 21 November 2019. Ms Hopper was self-represented, attended the hearing by telephone conference and gave evidence.
Ms Forsyth appeared for the Respondent.
BACKGROUND
Ms Hopper was born in 1968.
On 19 February 2018, Ms Hopper lodged a claim for DSP with the Department of Human Services. The claim listed the medical conditions of ankylosing spondylitis, thoracic and lumbar spondylitis, fibromyalgia syndrome, chronic fatigue, anxiety, depression,
post-traumatic stress disorder, chronic pain syndrome, Gordon syndrome and autoimmune disorder (T46/306).
On 6 July 2018, Ms Hopper’s claim for DSP was rejected (T58/344-345). On

8 January 2019, following a request for a review, an ARO affirmed the decision to reject the claim for DSP. The ARO found that Ms Hopper’s conditions attracted five impairment points under Table 5 (Mental Health Function), 10 points under Table 1 (Functions Requiring Physical Exertion and Stamina) and 10 points under Table 4 (Spinal Function), but that she did not actively participate in a program of support in the three years prior to claiming DSP (T62/351-357).
On 17 April 2019, the AAT1 affirmed the decision to reject Ms Hopper’s claim for DSP. The AAT1 found that Ms Hopper’s medical conditions attracted nil points under the Impairment Tables (T2/6-17).
Ms Hopper lodged an application for second review with this Tribunal on 24 May 2019 (T1/1-5).
ISSUE
The Tribunal must decide whether Ms Hopper was qualified for DSP, in accordance with

s 94 of the Social Security Act 1991 (the Act), during the period 19 February 2018 to

21 May 2018 (the qualification period).
This requires consideration of whether as at, or during, the qualification period:
(a)Ms Hopper had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)if so, whether Ms Hopper had 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 (Impairment Tables) for the purpose of s 94(1)(b) of the Act; and
(c)if so, whether Ms Hopper had a continuing inability to work, a term as defined in
s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
RELEVANT LEGISLATION, POLICY AND AUTHORITIES
The legislation applicable in this matter is contained in: the Act; the Social Security (Administration) Act1999 (the Administration Act); the Impairment Tables;

and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The relevant policy is contained in the Guide to Social Security Law (the Guide). Although the Tribunal is not bound to comply with policy, the Tribunal would normally do so unless there were cogent reasons for departing from it in a particular case (Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634).
Qualification for DSP
The qualification criteria for DSP are set out in s 94 of the Act, which relevantly provides as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; ...
The qualification criteria for DSP are cumulative and if any one of the criteria is not satisfied the person will not be qualified for DSP. The Guide at 3.6.3.05 relevantly notes:
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.
Qualification period
Section 42 of the Administration Act provides that a person’s ‘start day’ in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act. Clause 3 of Schedule 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person’s qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with subclause 4(1) of Schedule 2 to the Administration Act: see Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8].
As an applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to her medical conditions suggesting she may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of the applicant’s impairments at the qualification period. In the case of Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen stated, at [34]:
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).
Relevant to the application of the qualification period, in the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447 Deputy President Handley made the following observation, at [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 qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the relevant period.
Impairment Tables
The Impairment Tables are an instrument made under s 26(1) of the Act, which commenced on 1 January 2012.
Section 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Subsection 6(1) of the Impairment Tables states that a person’s impairment must be assessed taking into account the person’s abilities and not what they choose to do or not to do or what others do for the person.
Subsection 6(3) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (a term as defined in s 6(4) of the Impairment Tables), and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years. Therefore, if the applicant’s condition causing impairment is not permanent, the impairment resulting from this condition cannot be assigned an impairment rating.
In accordance with s 6(4) of the Impairment Tables, a condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised; and
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5) of the Impairment Tables, 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 ss 6(4)(a) and (b) of the Impairment Tables, the following is to 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(6) of the Impairment Tables defines ‘fully stabilised’ for the purposes of ss 6(4)(c) and 11(4) of the Impairment Tables. It provides that 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 two 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 two 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.
Subsection 6(7) of the Impairment Tables provides that, for the purposes of s 6(6) of the Impairment Tables, ‘reasonable treatment’ is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Subsection 10(1) of the Impairment Tables states that table selection is to be made 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.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T68, pp1-420);
·Medical letter by Dr Gino Mastaglia dated 20 August 2019 (Exhibit A1);
·Department of Human Services briefing letter dated 7 August 2019 (Exhibit A2);
·Letter by Dr Dhammika Perera dated 14 August 2019 (Exhibit A3);
·Letter by Dianne Brown, counsellor dated 20 June 2019 (Exhibit A4);
·
Letter by Shelah Johnston, clinical psychologist, dated 13 February 2017

(Exhibit A5);
·Secretary’s Statement of Facts, Issues and Contentions dated 17 October 2019 (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
As the date of Ms Hopper’s claim is 19 February 2018, the qualification period for assessing her entitlement to DSP is the 13 week period from that date until 21 May 2018.
In her application to this Tribunal, Ms Hopper claimed that the AAT1 decision was wrong for the following reason:
I believe the decision is wrong and a different decision should be made.
My specialist doctors, GP, physiotherapist and clinical psychologist are very concerned for my wellbeing due to the challenges of this process and how it has exacerbated my auto-immune conditions, depression and anxiety. There is substantial medical evidence in my application supporting my disability application the [sic] has not been taken into the account [sic].
I feel that I was unable to respond properly in the interview as I was so shocked by the discrediting of my medical conditions and suggestions of further treatments required when my specialist doctor has indicated there would be adverse effects on my wellbeing.
Having serious health issues and relying on the public health system (although I’m grateful) has limited my ability to access all treatments.
I have attended disability work provider appointments as much as possible but each provider has recommended medical exemption as im [sic] too ill to seek work. It took more than 7 years to complete Tafe studies and then my health has deteriorated further. There has been no ability to seek work through disability work providers due to continual medical complications leading to medical exemptions. As a result of this I have not fulfilled the number of weeks required attending disability work providers and this has also nled [sic] to my application being declined. If I am too ill to seek work and have medical exemptions supported by medical evidence how can continue [sic] to be declined Disability support. It is impossible to care for myself and pay for necessary treatments such as physiotherapy and psychological support on Newstart and as a result my health is deteriorating. I am extremely concerned about my wellbeing and future as these serious medical issues have insured that I am unable to support myself financially, which is devastating. I am very frightened and dependent on the approval of the disability application so that I can get the help I need and have some level of security.
(T1/4).
Before the Tribunal, Ms Hopper expressed bewilderment that despite a Job Capacity Assessment (JCA) linked with her current claim giving her 25 points, and Centrelink telling her that she was exempt from job seeking support, her claim was being declined and reviewed. Ms Hopper submitted:
… I have substantial health issues that, for some reason, my medical specialist’s recommendations of inability to work, or job seek, recommendations that I need to be on disability and the fact that I have serious illnesses is not being taken seriously by this department to detrimental effect on my wellbeing in every – in every way; physically, emotionally, very serious adverse effect this is having on me.
(Transcript, p5 at [25]-[30]).
The Respondent accepts that, at the qualification period, Ms Hopper had physical, intellectual or psychiatric impairments for the purpose of s 94(1)(a) of the Act, arising from: Gordon syndrome; ankylosing spondylitis; spinal condition; fibromyalgia; chronic pain syndrome; chronic fatigue syndrome; and mental health conditions (Exhibit R1, para 35).
The AAT1 found that Ms Hopper’s medical conditions attracted an impairment rating of nil points on the Impairment Tables and that consequently she did not satisfy

s 94(1)(b) of the Act and was not qualified for DSP at the date of claim (T2/16, para 54).
The Respondent submits that at the qualification period, Ms Hopper had a total impairment rating of no more than 10 points and did not have a continuing inability to work, and consequently does not satisfy ss 94(1)(b) and 94(1)(c) of the Act. The Tribunal’s review is de novo and this allows the Tribunal to reconsider Ms Hopper’s DSP application according to the law, policy and facts. The Tribunal’s consideration is detailed in the paragraphs below.
Assessment of Impairments under the Impairment Tables
Mental health conditions (anxiety, depression and post-traumatic stress disorder)
The Secretary accepts that these conditions were fully diagnosed, but not fully treated or fully stabilised at the qualification period (Exhibit R1, para 68).
Ms Hopper provided evidence to the AAT1 which confirmed that she had not received any further intervention or treatment in the year prior to lodging her claim for DSP, and had ceased taking any anti-depressant or other psychotropic medication (T2/14).
In her letter dated 13 February 2017, Ms Shelah Johnston, clinical psychologist, reported that she had seen Ms Hopper on 13 occasions between 3 August 2016 and
February 2017 (Exhibit A5).
In a letter to Ms Hopper’s general practitioner dated 20 June 2019 and more than a year after the qualification period, Ms Dianne Brown, counsellor at St John of God Social Outreach, reports that Ms Hopper has ‘now attended six sessions under a Mental Health Treatment Plan at St John of God Community Mental Health Services’. Ms Brown also reports: ‘Given her ongoing process of recovery, Leanne is likely benefit [sic] from further counselling’ (Exhibit A4 and Exhibit R1, Annex A).
In the absence of any probative evidence from Ms Hopper’s treating specialists as to her response to psychological intervention, the indication that she would benefit from further counselling, and the absence of treatment for her anxiety, depression and post-traumatic stress disorder in the year prior to her DSP application, it cannot be said that Ms Hopper’s mental health conditions were fully treated and stabilised at the qualification period. It follows that no impairment rating can be assigned under Table 5 of the Impairment Tables.

In detailed closing submissions relevant to Ms Hopper’s mental health conditions, primarily for Ms Hopper’s benefit, the Respondent contended that it would be highly unlikely that the Tribunal could find that Ms Hopper had a severe functional impact under Table 5, even if it were to accept that the conditions were fully treated and stabilised (Transcript, p28-29). Having regard to the evidence and the relevant descriptors in

Table 5, the Tribunal agrees with the Respondent’s contention.
Gordon syndrome
The Respondent accepts that Ms Hopper’s Gordon syndrome was fully diagnosed, treated and stabilised (FDTS) during the qualification period (Exhibit R1, para 37).
In a letter dated 6 February 2012, renal physician Dr Jagadish Jamboti recorded that

Ms Hopper had stable renal function and good blood pressure (T10/137).
In a letter dated 1 March 2018, nephrologist Dr Steve Wright reported that he had seen Ms Hopper for her Gordon syndrome at the Fiona Stanley Hospital renal clinic that day. He noted that her blood pressure was a little higher than normal and that she should be reviewed again in six months (T48/314).
The JCA report assessed this condition to be permanent and FDTS as verified by medical evidence. Ms Hopper advised the job capacity assessor that the main impacts of her Gordon syndrome were susceptibility to hypertension as well as avoidance of long term use of non-steroidal anti-inflammatory medications (T57/335). The JCA report recommended nil impairment points and noted: ‘The combined functional impacts of multiple conditions on endurance and stamina have been recorded against the Fibromyalgia condition’ (T57/339).
The Tribunal finds that Ms Hopper’s Gordon syndrome was FDTS at the qualification period. However, there is no evidence of any assessable impairment arising from this condition and consequently, it attracts nil points under the Impairment Tables.
Ankylosing spondylitis
The Respondent accepts that this condition was fully diagnosed during the qualification period. However, contends that the condition was not fully treated or fully stabilised during the qualification period as Ms Hopper had not undertaken all reasonable treatment available to her, including treatment to address pain (Exhibit R1, para 41).
In a letter dated 27 February 2018, Ms Hopper’s treating rheumatologist,
Dr Gino Mastaglia, confirmed that diagnoses of ankylosing spondylitis, thoracic and lumbar spondylosis, and fibromyalgia were made in 2015 and 2016 (T47/312).
Dr Mastaglia also reported in a letter dated 5 January 2018 that ‘[w]e have reached an impasse with strategies which have included physical and medication’ (T44/279).
In a letter in support for Ms Hopper’s application dated 1 May 2019, Dr Mastaglia acknowledged that Ms Hopper had been advised by the Department to, among other things, attend a pain clinic and use various medications. Dr Mastaglia, however, opined that these were not considered ‘wise choices’ for her. The Respondent sought clarification as to why it would not be a ‘wise choice’ for Ms Hopper to undertake an interdisciplinary pain management program or other forms of pain management interventions. In his response dated 20 August 2019, Dr Mastaglia responded that programs of this kind would opt for medications which would result in side effects and in particular, significant weight gain (Exhibit R1, Annex A, p6-7).
Dr Mastaglia also stated that he had opted not to use narcotic medication, corticosteroid medication or intervention of pain management; but had managed the Applicant’s conditions with the use of analgesia medication, namely Paracetamol and Panadol Osteo, since 2014.
The Respondent accepts that Ms Hopper was not able to use non-steroidal
anti-inflammatory medications due to her kidney conditions (Exhibit R1, para 45). The AAT1 noted that there was no mention of other treatments, including use of ‘other biological agents, local steroid injections, or disease modifying anti-rheumatic drugs for symptoms attributable to her ankylosing spondylitis and other inflammatory arthritis, nor of the potential use of nerve-stabilising agents, antidepressant medication, specific physical therapy...’ (T2/11-12). In weighing the relevant information and opinions, the Tribunal places significant weight on Dr Mastaglia’s letter dated 20 August 2019, in which he reports that ‘Leanne Hopper was fully compliant with all the treatments that I had recommended to her’ (Exhibit R1, Annex A, p7).
In that same letter, Dr Mastaglia advised that Ms Hopper’s conditions, including ankylosing spondylitis, were of a chronic nature and that the physical limitation and impact from those conditions were expected to persist for more than two years from
19 February 2018 (Exhibit R1, Annex A, p6).
The JCA Report dated 5 July 2018 found this condition to be FDTS as verified by medical evidence. The JCA report included the following comments:
Future/planned treatment: Dr Gino Mastaglia (Rheumatologist), 27/2/18 reports that no further treatments are indicated with a disappointing response to past treatments.
…
Prognosis: Dr Mastaglia (27/2/18) reports that symptoms have lasted from at least 2015 with no improvement anticipated which indicates a fully diagnosed, treated and stabilised condition.
(T57/333-4).
Having regard to the material before it, the Tribunal is reasonably satisfied that
Ms Hopper’s condition of ankylosing spondylitis was at the qualification period FDTS.
Arthritis Australia describes ankylosing spondylitis (AS) as ‘a condition that mainly affects the spine. The joints of the neck, back and pelvis become inflamed, causing pain and stiffness ... The symptoms of AS usually begin between the ages of 15 and 45 years’
(see information provided by the Respondent during the hearing - The ARO (T62/353) and the JCA assessor (T57/337-338) assessed the functional impairment of this condition under Table 4 – Spinal Function, and the Tribunal considers Table 4 to be the relevant table (following the steps laid out in paragraph 27 above).
The JCA report finds that Ms Hopper’s ankylosing spondylitis results in a moderate functional impact on activities involving spinal function, and recommends 10 impairment points under Table 4 – Spinal Function (T57/337-338). The Tribunal accepts that assessment.
The Tribunal has reviewed the evidence against the descriptors related to a severe functional impact under Table 4 (T3/56) and is satisfied that Ms Hopper does not at the qualification period satisfy them for the following reasons:
·The AAT1 noted Ms Hopper’s relevant evidence: ‘Despite her joint and other pains, Ms Hopper lives independently, drives her car, goes shopping, and attends to household duties bit by bit. She attends to her own personal requirements, and goes out at times with friends to have coffee. Her daughter visits her once each week to help out with various activities’ (T2/12).
·On 28 October 2016, Dr Dhammika Perera reported that Ms Hopper was independent in self-care, was able to perform day to day household functions except heavy housework or cleaning and was able to use public transport (T40/264).
·Ms Hopper advised the Job Capacity Assessor on 3 July 2018 that she was able to undertake light day to day household activities such as meal preparation, shopping, short periods of weeding and domestic tasks (T57/334).
·In discussing her activities Ms Hopper told the Tribunal that she drives to various appointments 10 minutes each way, socialises with friends several times a week for coffee/chai (Ms Hopper’s diet precludes coffee) for an average period of 30 minutes, regularly takes her dog to the dog beach where she sits on a convenient wall, and cleans her kitchen bench and washes the dishes after meals.
The Tribunal finds that Ms Hopper’s ankylosing spondylitis attracts 10 points under Impairment Table 4 – Spinal Function.
Fibromyalgia and chronic pain syndrome
The Respondent accepts that these conditions were fully diagnosed but not fully treated or fully stabilised during the qualification period, primarily as the Applicant had not undertaken all reasonable treatment available to address pain (Exhibit R1, paras 58 and 59).
On 3 July 2018, Ms Hopper informed the job capacity assessor that her past treatment for these conditions was long term analgesia. In terms of current treatment, Ms Hopper indicated that she was taking Endone and Panadol Osteo for pain, natural treatments including apple cider vinegar, turmeric, a gluten and wheat free diet, and physiotherapy. With reference to symptoms, the JCA report states: ‘Current medical advice supplied by Dr Gino Mastaglia (Rheumatologist), 18.05.06 is reported wide spread muscle pain and chronic fatigue’. With reference to future/planned treatment, the report states:
‘Dr Mastaglia (5/1/18) reports that an impasse has been reached in terms of strategies for intervention which have included both physical therapy and medication’. The job capacity assessor concluded that Ms Hopper’s fibromyalgia was FDTS as verified by medical evidence, likely to persist for more than 24 months and was permanent (T57/334-335).
The Respondent contends that consistent with the findings of the AAT1 in relation to these conditions:
intervention with a pain management specialist is a reasonable treatment for the Applicant to explore. It would also be reasonable for the Applicant to attend an inter-disciplinary pain clinic, as this would involve a multi-disciplinary approach to addressing and managing the Applicant’s pain symptoms, which the Secretary notes had mainly been treated with the use of analgesia.
(Exhibit R1, para 62).
Whilst giving due and careful consideration to the Respondent’s contention, and the AAT1 decision, the Tribunal relies on the consistent and repeated evidence of Ms Hopper’s treating specialist. In a letter dated 1 May 2019, Dr Mastaglia stated that Ms Hopper had been under his care for many years for the management of ‘Chronic Pain Syndrome (Fibromyalgia Syndrome) and also her Chronic Fatigue’. Dr Mastaglia further states:
This patient has been told by Medical Attendants (Centrelink) that she requires to see a Pain Clinic, go onto Prednisolone, Anti inflammatories and Analgesics.

These are not wise choices in this patient, hence have not been undertaken.

Currently she survives financially on New Start Allowance.

I do not have any medical interventions I can offer this patient, I am reluctant to put her onto Narcotic Analgesia. She is not suitable for intervention or pain management (Epidural and Indwelling pain stimulators).
(T64/361).
On 20 August 2019, Dr Mastaglia confirmed that Ms Hopper had been managing the conditions with the use of analgesia medication (Paracetamol and Panadol Osteo).
Dr Mastaglia confirmed that no interventions by pain management had been attempted as at the qualification period. Dr Mastaglia specifically indicated that pain management by way of epidural and indwelling pain stimulators were not suitable for Ms Hopper, and as stated above in the discussion of ankylosing spondylitis, Ms Hopper was fully compliant with all the treatments that he had recommended to her (Exhibit R1, Annex A, p6-7).
Having regard to the material before it, the Tribunal is reasonably satisfied that
Ms Hopper’s conditions of fibromyalgia and chronic pain syndrome were at the qualification period FDTS.
The Tribunal notes that the ARO assigned 10 impairment points under Table 1 – Functions requiring Physical Exertion and Stamina, on the basis that ‘Dr Mastaglia advised that your fibromyalgia impacts on your function every day, but the intensity of pain varies from day to day. You are unable to walk far outside your home and need to drive to get to local facilities but are able to undertake light household activities’ (T62/353).
The JCA report recommended 10 impairment points under Table 1, and in the Tribunal’s view the reasons provided for that assessment are supported by the evidence. Having regard to the evidence and the descriptors prescribed in Table 1, the Tribunal finds that the functional impact of Ms Hopper’s conditions of fibromyalgia and chronic pain syndrome is consistent with the descriptors for moderate functional impact for the following reasons:
(a)the impairment assessment detailed in the JCA report dated 5 July 2018 (T57/338);
(b)Dr Mastaglia’s letter dated 20 August 2019 that states that as of 19 February 2018:
Symptoms are those of pain with activity, fatigue with activity, with impairment of function post activity where she is virtually housebound until the episode settles as a matter of days and weeks. These episodes are of an ongoing nature on average one to two per week and of significantly severe nature… (Exhibit R1, Annex A, p7); and
(c)Ms Hopper’s evidence before the Tribunal that she:
ocopes with her situation because she was very motivated, but has been bedridden, needs to go to bed regularly during the day and spends many days unable to function at all;
odoes limited shopping without assistance;
omaintains a couple of herbs in her garden;
otravels from her home in Hamilton Hill to Fiona Stanley Hospital by car every six months, either driving herself or preferably getting a lift, with these trips being of 20 or 30 minutes duration depending on the traffic;
owalks her dog on average every second day;
oon three or four mornings a week she meets with her social group for chai, sometimes for 15 minutes, sometimes for an hour (see also paragraph 56 above); and
owas able to use public transport but preferred not to because of the time required and associated delays.
The Respondent submits that Ms Hopper would not satisfy the criteria for a severe impairment rating under Table 1 (T3/49) because there is no evidence before the Tribunal that:
Ms Hopper is unable to walk around a shopping centre, walk from the carpark into a shopping centre or use public transport without assistance or unable to perform light day-to-day household activities and there’s no evidence that she’s likely to have difficulties sustaining work-related tasks of a clerical or sedentary nature of at least three hours.
(Transcript, p27 at [10]).
The Tribunal accepts this submission except for the element relating to sustaining
work-related tasks. The Tribunal is satisfied that there is reasonably sufficient evidence, including Ms Hopper’s testimony before the Tribunal, that she would have difficulty sustaining work-related tasks even of a clerical, sedentary or stationary nature for a continuous shift of at least three hours (Table 1 – subclause (1)(b) of criterion for severe functional impact refers). However, as Ms Hopper still does not satisfy the criteria at subclause (1)(a) of Table 1, as submitted by the Respondent in the preceding paragraph, this exception is insufficient to conclude that Ms Hopper has a severe impairment.
The Tribunal finds that Ms Hopper’s fibromyalgia and chronic pain syndrome attract

10 impairment points under Table 1 - Functions requiring Physical Exertion and Stamina.
Chronic fatigue
The Respondent accepts that this condition was fully diagnosed during the qualification period, but was not fully treated or fully stabilised as Ms Hopper had not undertaken all reasonable treatment (Exhibit R1, para 65). Further, the Respondent contends that this condition cannot be assessed as fully treated or fully stabilised at the qualification period due to the associative nature of this condition to Ms Hopper’s other stated conditions including fibromyalgia which were not seen to be FDTS (Exhibit R1, para 66).
However, the Tribunal has found that Ms Hopper’s ankylosing spondylitis and fibromyalgia and chronic pain conditions were FDTS. The associative nature of this condition is evident in the medical reports. In his letter dated 20 August 2019, Dr Mastaglia lists fibromyalgia and chronic pain fatigue as being diagnosed in March 2014 and with long standing symptoms. Dr Mastaglia’s evidence related to treatment does not differentiate between the two conditions (Exhibit R1, Annex A, p6-7).
Dr Dhammika Perera uses a similar, but less specific group expression in a letter dated
14 August 2019 which states in part:
Leanne Hopper does suffer with Chronic Anxiety and Depression as a result of chronic pain due to Ankylosing Spondylitis and Fibromyalgia etc, and did suffer with this during the time period from Feb 2017 when her Psychologist retired, to Feb 2018 when another no gap Psychology provider could be found.
(Exhibit R1, Annex A, p3).
In the assessment of the functional impact of Ms Hopper’s fibromyalgia, the JCA report relevantly states that Ms Hopper: ‘experiences frequent symptoms – chronic pain syndrome with associated fatigue (Dr Mastaglia, 27/2/18) when performing day to day activities around the home and community’ (T57/338).
The Tribunal is satisfied that Ms Hopper’s chronic fatigue was at the qualification period FDTS. Having regard to the associative nature of the condition, the Tribunal is also satisfied that any functional impairment arising from the condition has been addressed in the 10 impairment points already assigned under Table 1 – Functions requiring Physical Exertion and Stamina, as required by ss 10(5) and 10(6) of the Impairment Tables.
Spinal condition
The Respondent contends that at the qualification period, Ms Hopper’s spinal condition was fully diagnosed, but not fully treated or stabilised (Exhibit R1, para 50).
In a radiology report dated 9 June 2016, consultant radiologist Dr Amarash Dayanandan provided comments following a chest x-ray and CT scans of the thoracic spine and lumbar spine. Dr Dayanandan noted normal chest x-ray, mild-to-moderate degenerative changes of the thoracic spine, and mild degenerative joint change of the lumbar spine
(T33/248-249).
On 19 July 2018 (almost two months after the end of the qualification period), consultant radiologist Dr Sean Lim reported that a right shoulder ultrasound revealed a severe subacromial bursitis (T59/346).
On 26 July 2018, in a report on MRI scans of the cervical spine, thoracic spine, and lumbar spine, Dr David Price noted multilevel degenerative changes of the cervical spine, no significant thoracic abnormality of the thoracic spine, and degenerative disc disease at L5/S1 of the lumbar spine (T60/348).
On 1 May 2019, Dr Gino Mastaglia noted a significant rotor cuff problem of the right shoulder (T64/361), and in his letter to the department dated 20 August 2019,
Dr Mastaglia noted the diagnoses of osteoarthritis of the cervical and lumbar spines and rotator cuff problem of the right shoulder (Exhibit R1, Annex A, p6).
The Respondent contends that at the qualification period, Ms Hopper’s spinal condition cannot be said to have been fully treated or stabilised, noting that ‘[i]n particular, the diagnosis of osteoarthritis was first raised in Dr Mastaglia’s letter dated 20 August 2019, well after the qualification period had ended. This observation applies equally to the Applicant’s rotator cuff problem affecting her right shoulder’ (Exhibit R1, para 56). The Tribunal agrees.
Having regard to the evidence, and particularly the dates of diagnoses detailed above, the Tribunal is reasonably satisfied that at the qualification period Ms Hopper’s spinal condition was not FDTS. It follows that impairment points cannot be assigned under the Impairment Tables.
Total impairment rating
The Tribunal finds that at the qualification period, Ms Hopper had a total impairment rating of 20 points – being 10 points under Table 1 – Functions requiring Physical Exertion and Stamina, and 10 points under Table 4 – Spinal Function.
Ms Hopper thus satisfies s 94(1)(b) of the Act, but as she does not have a severe impairment as assessed under the Impairment Tables, the Tribunal must determine whether she has a continuing inability to work such as to meet the qualification criteria under s 94(1)(c) of the Act.
Continuing inability to work

The ARO found that Ms Hopper had a total impairment rating of 25 points, but that she did not have a severe impairment (see paragraph 6 above). The ARO consequently considered whether Ms Hopper had actively participated in a POS, and concluded:
The relevant period in respect of this claim is the three years from

19 February 2015 to 19 February 2018. I note that you had commenced a program of support with Community First Campbell Page prior to February 2015, however due to multiple exemptions from participation you have completed only 24 weeks of this program of support. You would be required to complete an additional 54 weeks participation to fulfil these requirements.
(T62/354).
In the present proceedings, the Respondent contends that Ms Hopper did not have a continuing inability to work during the qualification period and does not satisfy s 94(1)(c) of the Act (Exhibit R1, para 74).
The term ‘continuing inability to work’ is defined in s 94(2) of the Act, and as at the qualification date this subsection stated:
(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 s 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.
Under s 94(2)(aa) of the Act, where a person has not been assigned 20 points under a single Impairment Table, the person will be required to have ‘actively participated’ in a program of support (POS). If they have not done so, they cannot be found to have a continuing inability to work. The Tribunal has found that none of Ms Hopper’s conditions attracted 20 impairment points under a single table.
Subsection 94(3C) provides that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The relevant legislative instrument is the POS Determination. Section 7 of the POS Determination provides that a person has actively participated in a program of support if: the person has complied with the requirements of the program of support; and participated in a program of support during the relevant period. The relevant period is defined in the POS Determination in s 5 as ‘the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person’.
Ms Hopper lodged her claim for DSP on 19 February 2018 and must therefore have actively participated in a POS in the period 18 February 2015 to 18 February 2018. To be accepted as having actively participated in a POS, Ms Hopper must have complied with the requirements of the program and:
·participated in the program for at least 18 months during the 36 months ending immediately before the date of claim (s 7(2) of the POS Determination); or
·completed a program that was less than 18 months (s 7(3) of the POS Determination); or
·participated in a program that was terminated because she was unable, solely because of her impairments, to improve her work capacity through continued participation in the program (s 7(4) of the POS Determination); or
·have been participating in a program when she made her DSP claim, but was unable to improve her work capacity through continued participation in the program solely due to her impairment (s 7(5) of the POS Determination).
The Respondent submits that ‘[t]he Department’s records show that the Applicant had participated in a POS for a total of 170 days before the day on which his [sic] claim for DSP was made’ (original emphasis) (Exhibit R1, para 81). Relevantly, the JCA report dated 5 July 2018 records that Ms Hopper participated in a POS from 19 February 2015 to 19 February 2018 (T57/339) and states:
Active participation in a program of support criteria are not met.
Supporting Reasons
Ms Hopper is currently engaged in a Disability Employment Support Service which she has participated in for approximately 24 weeks. She has not yet met the 78 week requirement.
(T57/340).
Before the Tribunal Ms Hopper expressed her lack of understanding of the JCA and POS processes. She said that because of her difficulties getting to appointments and things, Centrelink had put her on a suspension from the requirement to job seek and that ‘the suspension will not be removed until I have a new JCA with a different work capacity result’ (Transcript, p11 at [5]). The Tribunal is appreciative of the explanation offered to
Ms Hopper by the Respondent:
[W]hat Ms Hopper seems to be referring to is an exemption from looking for work for Newstart Allowance purposes. There is a component of Newstart Allowance which requires a person to look for work, the person is obligated to look for work, to continue receipt of their payments and there is certain exemptions that flow from that that allows them to continue to receive Newstart Allowance.
What we are looking at today is a DSP qualification decision and that has its own work capacity test but that’s set out in section 94(1)(c), which is totally different…
(Transcript, p11 at [20]-[30]).
The Respondent contends that none of the exceptions to the requirement to participate in a POS for at least 18 months provided for in ss 7(3) to 7(5) of the POS Determination are applicable to Ms Hopper:
There is no evidence that the Applicant completed a POS that was less than 18 months, nor is there any evidence that the Applicant’s POS was terminated because she was unable, solely because of her impairment, to improve her capacity to prepare for, find or maintain work through a continued participation in the POS. Further, there is no indication on the evidence that the Applicant was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through participation in a POS.
(Exhibit R1, para 82).
In the absence of evidence to the contrary, the Tribunal agrees.
Having regard to the material before it, the Tribunal finds that Ms Hopper has not actively participated in a POS for at least 18 months and has not satisfied the POS compliance requirements described in paragraph 90 above. Ms Hopper cannot therefore be found to have a continuing inability to work and does not satisfy s 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that Ms Hopper’s conditions attract an impairment rating of 20 points under the Impairment Tables. However, Ms Hopper does not have a severe impairment as assessed under the Impairment Tables, nor does she have a continuing inability to work. It follows that Ms Hopper was not qualified for DSP during the qualification period.
The Tribunal reiterates the concluding paragraph of the AAT1 decision:
Ms Hopper may consider testing her eligibility for disability support pension again, with further current and complete medical evidence from relevant specialists involved in the management of her various conditions and associated disabilities.
DECISION
The Tribunal affirms the decision of the AAT1 dated 17 April 2019 which found that
Ms Hopper was not qualified for DSP at the date of claim.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

....[sgd]....................................................................
Associate
Dated: 10 January 2020

Date of hearing: 21 November 2019

Applicant:
By phone

Counsel for the Respondent:

Solicitors for the Respondent:

Ms J Forsyth

Mills Oakley Lawyers

[2020] AATA 20

10 January 2020

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