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

Huynh and Secretary, Department of Social Services (Social services second review) [2018] AATA 3778 (12 October 2018)
Division:GENERAL DIVISION
File Number: 2017/5976
Re:Kim Long Huynh
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:12 October 2018
Place:Adelaide

The Tribunal:
(a)varies the decision under review dated 30 August 2017 in respect of the Applicant’s chronic lower limb impairment rating of 5 points under Table 3, such that the Applicant is not entitled to an impairment rating and is hereby assigned 0 points; and
(b)otherwise affirms the decision under review.

............................[Sgd].......................................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – Claim for Disability Support Pension – Physical, intellectual or psychiatric impairment – Multiple Impairments – Whether an impairment rating of 20 points or more exists under the Impairment Tables – Whether other conditions fully diagnosed, fully treated and stabilised within the qualification period – Decision under review affirmed
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, s 4
CASES
Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252
Gallacher v Secretary, Department of Social Sevices [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member B J Illingworth
12 October 2018
INTRODUCTION

Kim Long Huynh (“the Applicant”) has applied to the Tribunal for review of the decision of the Administrative Appeals Tribunal, Social Services and Child Support Division (“AAT1”) dated 30 August 2017. The AAT1’s decision affirmed the decision of an Authorised Review Officer (“ARO”) of the Department of Human Services (“the Department”) to reject the Applicant’s claim for Disability Support Pension (“DSP”).
BACKGROUND
On 2 June 2016, the Applicant applied for DSP.[1]
[1]Exhibit 1, T4.
On 16 November 2016, the claim was rejected by an employee of the Department.[2]
[2] Exhibit 1, T9, p 133.
The Applicant applied for an internal review and on 20 April 2017, the ARO affirmed the original decision to reject the claim.[3]
[3] Exhibit 1, T3.
On 19 May 2017, the Applicant applied to the AAT1 for review of the ARO’s decision and on 30 August 2017, the AAT1 affirmed the decision.[4]
[4] Exhibit 1, T2.
The qualification period relevant to this review is 2 June 2016 to 1 September 2016 (“the Qualification Period”).
At the hearing, the Applicant was self-represented and assisted by an interpreter. The Respondent was represented by Mr Oliver Morris, FOI and Litigation Branch, Department of Human Services.
The Applicant referenced seven medical conditions with which he said his entitlement to DSP was enlivened.
The AAT1 found that four of those medical conditions had been fully diagnosed, treated and stabilised, and that in respect of three of those four conditions, the Applicant was entitled to an impairment rating of 5 points each. The 4th condition, it was decided, did not attract an impairment rating. The decision of the AAT1 is summarised in the following table:

Condition Full Diagnosed, Treated and Stabilised Impairment Table Impairment Rating

Spinal degenerative disease Yes 4 5 Points

Chronic lower-limb pain Yes 3 5 Points

Left elbow tendonitis & right tennis elbow Yes 2 5 Points

Anxiety & depression No N/A N/A

Asthma Yes 1 0 Points

Memory loss No N/A N/A

The Tribunal received into evidence documents T1 to T57 (pages 1 to 372 inclusive) together with a bundle of medical reports and records all dating 2018, lodged by the Applicant on the morning of the Hearing.
The Respondent has agreed that the Applicant had completed the program of support as required by the Social Security (Active Participation for Disability Support Pension) Determination 2014, although contends that the Applicant does not have a continuing inability to work.
ISSUE FOR DETERMINATION
The primary issue for the determination of the Tribunal is whether the Applicant was qualified for DSP on the date of his claim of 2 June 2016 or within 13 weeks after that date. In order to qualify for DSP, the following issues must be determined by the Tribunal:
(a)whether the Applicant had any physical, intellectual or psychiatric impairments at the date of claim or within the Qualification Period;
(b)if so, whether those impairments, together or separately, attracted at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a severe impairment attracting more than 20 points under a single Impairment Table, and if not, whether he had a continuing inability to work.
LEGISLATIVE FRAMEWORK
The legislation relating to qualification for DSP, and the reference to the Impairment Tables is set out in the provisions of s 94(1) of the Social Security Act 1991 (“the Act”), which relevantly reads:
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 provisions relating to whether an Applicant has a continuing inability to work is relevantly set out in s 94(2) of the Act:
94     Continuing inability to work
(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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuity inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
A severe impairment is defined pursuant to s 94(3B) of the Act:
94     Severe impairment
(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.
Example 1:       A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:       A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment
Example 3:    A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
It follows that if the Applicant has a “severe impairment” within the meaning of subsection (3B), namely, an impairment which attracts 20 points or more under a single Impairment Table pursuant to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination 2011”), then they must only satisfy the cumulative requirements of sections 94(2)(a) and 94(2)(b).
If the Applicant is assigned 20 points under the Determination, but does not have a severe impairment as defined by s 94(3B) of the Act, then the Secretary must be satisfied that the Applicant has met the requirements of the program of support as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
IMPAIRMENT TABLES
Section 94(1)(b) of the Act refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination 2011.
“Impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” is defined as “a medical condition” pursuant to s 3 of the Determination 2011.
The Determination 2011 requires that for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of paragraphs 6(4), (5) and (6) of the Determination 2011:
6 Applying the Tables
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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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 there is a medical or other compelling reason for the person not to undertake reasonable treatment
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7)For the purposes of subsection 6(6), 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.
The information to be taken into account in applying the Tables are provided pursuant to paragraph 7 of the Determination:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
THE QUALIFICATION PERIOD
Also relevant in these proceedings is clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the “Administration Act”), which reads:
4     Start day – early claim
(1)If:
(a)    a person (other than a detained person) makes a claim for a relevant social security payment; and the person is not, on the day on which the claim is made, qualified for the payment; and
(b)    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
(c)    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.
The provisions in clause 4(1) of Schedule 2 to the Administration Act mean that the Applicant’s qualification and impairment ratings must be determined as at the date of his claim, and the only exception is where he is not qualified at the date of claim, but “will become qualified” and “becomes so qualified” within 13 weeks of lodging his claim.[5]
[5]See Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922; Re Fanning and Secretary, Department of SocialServices (2014) 144 ALD 133; [2014] AATA 447; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404.
In the Applicant’s case, the start day is the day he lodged his claim form with the Department, namely 2 June 2016, and the Applicant’s qualification for DSP is to be determined during the period 2 June 2016 to 1 September 2016.
It is important to note in assessing any medical evidence concerning the functional impact of an Applicant’s impairments provided after the Qualification Period, the reports can only be considered if they “cast light on” the functional impact of the impairments as at the Qualification Period.[6]
[6] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; Gallacher v Secretary, Department of Social Sevices [2015] FCA 1123.
APPLICANT’S CONTENTIONS
The Applicant maintained that he was entitled to DSP, and that the ARO and AAT1 failed to recognise the severity of the Applicant’s medical conditions, and in so doing failed to attribute an appropriate impairment rating to them. Further the Applicant argued that he had a continuing inability to work. The Applicant also submitted that he has satisfied the provisions of the program of support, which submission the Respondent accepted.
RESPONDENT’S CONTENTIONS
The Respondent argued in respect on each injury, the following:
Spinal Degenerative Disease
(a)The decision of the AAT1 and impairment rating of 5 points accorded with the evidence, and was an appropriate rating but no higher.
Chronic Lower Limb Pain
(b)There was a lack of probative corroborating evidence as to the functional impact caused by this condition, but further the Applicant did not satisfy the requirements under Table 3 to be entitled to impairment assessment at the time of the claim or during the Qualification Period.
(c)The Respondent said that the AAT1 erred in granting an impairment rating of 5 points for this condition.
Left and right elbow tendinitis and partial index finger amputation
(d)The decision of the AAT1 and impairment rating of 5 points accorded with the evidence and was an appropriate rating but no higher.
Anxiety and Depression
(e)The AAT1 was correct in deciding the condition was not fully diagnosed, treated and stabilised but erred in so far as the AAT1 relied on the registered psychologist Ms Nguyen as being appropriately qualified to give evidence of the Applicant’s psychological condition, even though she was not a registered clinical psychologist which was required by the Act.
(f)The AAT1 wrongly decided that because Ms Nguyen practiced in the field of clinical psychology, albeit not a registered clinical psychologist, her evidence satisfied the requirements of the legislation.
(g)In any event the Respondent argued that the Applicant was first referred to Ms Nguyen on the 26th September 2016 approximately 4 weeks after the Qualification Period concluded, and was therefore consulting with Ms Nguyen such that the Applicant’s mental health condition could not be considered fully diagnosed, treated and stabilised within the Qualification Period.
Asthma
(h)The AAT1 was correct to find that this condition was fully diagnosed, treated and stabilised, but that it was minor and incapable of having an impairment rating attributed to this condition.
Other conditions
(i)The AAT1 was correct in deciding such other conditions had not been fully diagnosed, treated and stabilised and no impairment rating should be attributed to any one of them.
The Respondent accepted that the Applicant satisfied the provisions of s 94(1)(a) of the Act, but argued that he did not satisfy ss 94(1)(b) or (c). Further the Respondent argued that the Applicant did not have a continuing inability to work as defined by s 94(5) of the Act, and if that is accepted the Applicant did not have an entitlement to DSP.
THE EVIDENCE
The Applicant was aged 61 years, born on 22 November 1957. He described his health as a deteriorating condition which has been going downhill day by day. He said he did not understand the assessments of 5 points attributed to his various conditions and in particular as is related to his spine and shoulder. He said he suffered pain radiating down his right leg. He had injections to relieve his condition but his condition now has continued to cause him difficulty including when getting out of bed.
The Applicant had a strong sense of his responsibility to his family but felt that he has hit rock bottom as a leader of that family.
The Applicant presented as an honest witness. He was in considerable discomfort while giving evidence and stood up from his chair from time to time. He was aided by a walking stick and his right arm was in a sling, and he also had a material cast covering his right wrist and hand.
The Applicant said that apart from the DSP the subject of this review, he had not put in any further claim for DSP despite his deteriorating condition. He described his condition as being worse now than during the Qualification Period.
It was apparent at the beginning of this evidence that the Applicant had difficulty with the concept of the Qualification Period, and the Tribunal’s obligation to assess his condition in that period, namely 2 June 2016 to 1 September 2016. Once understood, the Applicant was able to explain the development of his condition relative to that period. I will now detail the various conditions.
Spinal Degenerative Disease
The Applicant’s difficulty with his spine started approximately 10 years ago. In the early stages of the condition he did not have treatment, but after a motor vehicle accident it became worse. He stopped work following that accident.

Immediately before filing his claim for DSP he said his back was bad requiring him to wear a support belt. He was seeing a physiotherapist and having injections.
The Applicant said he tried to find work. He had previously been a waiter and a kitchen hand in a restaurant however his back pain prevented him from further employment.
At the time of the claim and the Qualification Period the Applicant described difficulties with general movement and turning left to right. He had pain performing household duties such as cooking. When bending forward his maximum reach was to his knees because of the pain in his lower back which radiated to his legs. He said he could raise his left arm above his head but not his right arm.
The Applicant said that he could wash clothes but had some difficulty hanging washing on the line. He tried his best but could not do it all the time and his cousin, with whom he lived, would help from time to time. He said his back prevented long periods of standing, sitting or walking. During the Qualification Period he said he could stand or walk for up to 20 minutes before resting. Now he can stand or walk for up to 15 minutes.
At the time of the Qualification Period he was not using a walking stick, however because of his deteriorating condition and for the last 12 months he has used a walking stick. He is now suffering weakness in the knees which has contributed to his need for the walking stick.
Further during the Qualification Period the Applicant said that he was on medication, restricted in performing normal household activities but was still able to drive a motor vehicle. His car was automatic. However, because of deterioration in his spinal condition the Applicant said that he is now not able to drive due to the pain in his lower back and he has sold his car.
Left and Right Elbow Tendinitis and partial finger amputation
The Applicant said that in respect to his right elbow he cannot recall exactly when his condition first manifested itself, but it was ‘roughly 2 years ago’.
When asked whether it was before or after the date of his claim he could not be sure.
As to the left elbow condition, that started about 3 months ago.
After further consideration the Applicant said that he believed his right elbow injury occurred in 2016 and he was in pain at the time of the claim. He said he raised the issue so that the Department would be aware of it. However, since the date of the claim it is progressively worsened.
He said that he now finds it difficult to reach out and pick up a cup. This has been more apparent in the last few months.
The Applicant had a material cast on his right arm but this was an issue before he filed the claim and related to a dislocation of his wrist joint. If he needs to put pressure on his right wrist it helps to reduce the pain.
At the time of the claim and up to 1st September 2016 he was wearing a cast and had been for some time.
As for his partially amputated left index finger, he said that was the result of an accident with his lawnmower about 13 or 14 years ago. During the Qualification Period he had constant pain and after his accident he went to hospital but there was a complication and albeit another operation was offered he declined.
The Applicant said that during the Qualification Period the injury was causing him a lot of pain and he tried to avoid using that finger or touching it. It has progressively worsened with age and deteriorated.
During the Qualification Period, the Applicant recalled that he was having treatment for pain to his right elbow but to no effect. His left elbow condition became noticeable about 3 months ago and he has an appointment to see a doctor for injections. He accepted that at the time of the claim and the Qualification Period in 2016 it was his right arm and left index finger that were the primary issue.
Right Leg, Knee and Foot Pain
The Applicant said that before his claim he was suffering pain in his right leg and during the Qualification Period he had difficulty walking. His ankle was swollen and he walked with difficulty at all times. During the winter months it was bad and has deteriorated since that time.
He said that in 2016 he was still able to walk 15-20 minutes but was in pain. The Applicant explained that he had an ultrasound on his right leg near the foot and was told not to be surprised if some pain manifests itself in the left leg which he said happened before the date of the claim.
The Applicant said that during the Qualification Period he was not having treatment and not seeing a doctor with respect to his left leg complaint. He now sees his General Practitioner but no treatment has been prescribed for it.
Anxiety and Depression
The Applicant said that at the time of the claim he was suffering no signs of depression. It started to manifest itself over a year ago at which time he commenced to see Ms Nguyen. His depression has worsened.
The Applicant explained that his general practitioner initially referred him to a doctor at the hospital but there were language issues. His recent decision to stop that consultation was because nothing good was coming out of it. His intention is to seek help from other practitioners.
Asthma
The Applicant said this condition manifest itself more than 10 years ago and during the Qualification Period he said it was particularly bad.
The Applicant described being short of breath and he had difficulty speaking.
In 2016 he used a puffer quite often at night, and during the day when required. The Applicant kept a puffer with him at all times.
The Applicant did not recall seeing Dr D’Onise in particular but has a memory of seeing a specialist in 2016. He is now on medication from his General Practitioner.
Memory Loss
In 2016 the Applicant remembered that he was often forgetful but was not sure of the reason. His relationship with his partner broke down and he acknowledged his forgetfulness could have related to that fact. He described often forgetting to do things such as turn off the gas, or constantly looking for keys. He thought that it might be part of his anxiety and depression manifesting itself in this condition.
The Applicant believed that it all related to the breakdown of the marriage. He saw his family General Practitioner and there had been arrangements for brain scans to be performed which have still not been done and this is due to be done sometime later this year.
The Applicant acknowledged that he saw his treating doctor after the Qualification Period and has a further appointment to see his treating general practitioner later this year to discuss the condition.
Other Medical Conditions
The Applicant also complained of a number of other conditions. He now has acupuncture for his right knee condition and had further X-rays last year. He suffers vertigo and has been diagnosed as having a blood pressure condition but that condition is recent. He was not having treatment at the time of the Qualification Period but does explain that he has a particular blood condition that may be hereditary.
The Applicant also says that he now suffers from chronic anaemia and noticeable hearing loss.
General Evidence
The Applicant said that there were a number of general lifestyle matters that were impacted upon by his conditions. These included wearing zipper jackets. He now has difficulty doing up zipper jackets but was able to perform that function in 2016. He now needs assistance with clothing himself. His cousin now provides that assistance. He also has trouble tying his shoelaces and now he generally wears a slip on shoe. In 2016 he was able to tie his shoelaces with some difficulty.
The Applicant owns a mobile phone but it is an old style with buttons. He cannot use the fingers on his left hand to manipulate the keyboard of the phone.
The Applicant acknowledged that in 2016 he was in much better health. He cannot undo soft drinks bottle tops but in 2016 he could with difficulty.
The Applicant now lives with his cousin and she does the shopping, helps with the cooking and does the laundry. In 2016 the Applicant could do all of his cooking but now his cousin attends to the cooking. The Applicant now has trouble washing clothes and hanging out the washing, whereas in 2016 he was much better at doing those tasks. In 2016 the Applicant could do most of those tasks without assistance
The Applicant explained that in 2016 he could get into and out of a chair without assistance. Now he requires the aid of a walking stick which he started to use approximately one year ago.
In 2016, he walked with some difficulty to the supermarket. The dominating purpose for that walk was for exercise rather than to purchase items. Nowadays he has to have a break after 15 minutes of walking, whereas is 2016 he could walk for up to 20 minutes without a walking stick.
Further in 2016, he drove an automatic car which he could drive with some pain. He said he had trouble looking at his blind spot and tended to rely on the side mirrors. However now he has had to sell that motor vehicle and he cannot drive because of his condition.
In respect of his asthma condition the Applicant described this condition commencing more than 10 years ago, and during the Qualification Period it was “pretty bad”. He described being breathless when speaking and often used a puffer at night. He would also use the puffer during the day when required. He also used Asian hot oils to provide relief.
In cross examination the Applicant’s attention was drawn to the Job Capacity Assessment Report[7] being assessment date 15th July 2016, and that in respect to his asthma condition it reads “the customer confirms his condition is well managed and has no/minimal impact on function, however given limited information about treatments/investigations to date it is not considered fully treated or stabilized”. The Applicant acknowledged that if he used a puffer, his asthma condition caused him no real problems.
[7] Exhibit 1, T21, p 216.
In respect of the belt he wears to assist with his back condition, the Applicant said that he started wearing it a long time ago upon recommendation of his physiotherapist. He had been using a variety of pain killers and since 2016, Panadeine Forte was added to the medication he was taking.
The Applicant said that sitting for prolonged periods is uncomfortable and he will need to stand. He will now stand for about 5 minutes before sitting back down. In 2016 his condition was much better.
As to his vertigo, the Applicant said that his condition was chronic and could not be cured. He understands from his treating general practitioner that this is a chronic blood disorder which had been confirmed by a specialist. It was a family condition. The Applicant believed that the report from the specialist had not been submitted to Centrelink. That report was prepared sometime around 2016.
In respect of his mental health condition the Applicant acknowledged that he had seen Ms Nguyen but could not remember the date of his first appointment. He has not seen a psychiatrist and is not currently in receipt of any medication for that condition.
EVIDENCE OF THE APPLICANT’S COUSIN
Ms Que has been residing with the Applicant for over 2 years and has been sharing accommodation since or about 2016.
At the time of the shared accommodation Ms Que was working part time in the farming industry. She would provide some assistance to the Applicant in and around the house when she was not at work. She would remind him to take medication and they would both do cooking and assist with the laundry and hanging clothes on the line. She said that when he was by himself he had to try his best.
In 2016, Ms Que would help the Applicant with his cooking from time to time but now due to degeneration of his condition she does all the cooking.
Ms Que agreed that she continued to work in the farming industry, but her employment is seasonal. However, the Applicant does less work around the home now compared to 2016 and she will now, on occasion, have to remind him in the morning to go outside to at least attempt some exercise.
CLOSING SUBMISSIONS
The Applicant submitted that he is in his early sixties and now suffers from many diseases. He lives with pain. He wishes that all of the descriptions of pain that he suffers are correctly recognised by the Department, and does not believe that it was so recognised at the time of his application.
He says he is in need of further treatment and financial help and will require this for the rest of his life which lifespan he believes is substantially reduced due to his ongoing condition.
The Respondent referred to the Qualification Period in respect to which it was submitted that many of the Applicant’s medical conditions had not been fully diagnosed, treated and stabilised or had not become evident.
The Respondent acknowledged that the Applicant was a credible witness who by his own evidence failed to establish that he had an entitlement to DSP.
In relation to the claim for lower limb impairment the Respondent referred to Table 3. In respect of the descriptors for mild functional impact, it was accepted that the Applicant had some difficulty walking to local facilities and generally, however during the Qualification Period he was able to stand for more than 10 minutes albeit with some discomfort, and he was not walking with the aid of a walking stick. Hence it was argued that the Applicant did not satisfy the cumulative requirement of descriptors 1 and 2 of the Table and no points were properly attributable under Table 3 for his lower limb condition.
In relation to the claim for spinal disability the Respondent referred to Table 4. It was acknowledged that during the Qualification Period there was some difficulty in overhead activity. However he did not then need assistance to get in to or out of a chair. Given the admitted limitations the Respondent accepted that the 5 points were properly attributed to that disability but on the Applicant’s own evidence he did not reach the criteria for 10 points under the heading moderate functional impact in Table 4.
With respect to the Applicants upper limb function the Respondent referred to Table 2, and accepted that there was mild functional impact relating to the use of hands and arms with some difficulty in picking up heavy objects, and handling small objects such as a mobile phone. The condition has worsened over time but in reference to the Qualification Period it was submitted that 5 points were properly attributed to that disability.
In respect to the condition of anxiety and depression, the Respondent repeated the contents of the Statement of Facts, Issues and Contentions and in particular that the AAT1 was correct in deciding this condition was not fully diagnosed treated and stabilised, however the AAT1 erred in finding that the treating psychologist could be considered a clinical psychologist for the purposes of the Act, albeit without appropriate registration. Further it was submitted that any psychological condition had not been fully diagnosed treated and stabilised which was evident by the fact that the Applicant was referred to a psychologist for the first time on the 28th September 2016; nearly 4 weeks after the end of the Qualification Period from which time he was receiving treatment for this condition.
The Respondent also argued that insofar as the Applicant suffers from any other disabilities; they were not fully diagnosed, treated and stabilised during the Qualification Period and had otherwise not manifested themselves until after the Qualification Period and were not relevant to the Application.
CONCLUSON
The Applicant presented as an honest and reliable witness. The Tribunal accepts that the discomfort he displayed during the hearing was genuine. Further, once the Applicant understood the meaning and relevance of the Qualification Period he was able to articulate the nature and extent of his conditions during that period and the deterioration experienced since.
It became apparent that certain conditions such as the right elbow discomfort have progressively worsened since the Qualification Period, and the wearing of the sling and use of the walking stick were more recent developments with respect to his deteriorating conditions.
In respect of the Applicant’s claim for upper limb impairment during the Qualification Period, namely, left elbow tendonitis, right tennis elbow and left index finger discomfort, and in reference to Table 2; the Tribunal accepts there was some mild dysfunction relating to the use of his hands and arms. This includes difficulty picking up heavier objects, and the handling of small objects such as his mobile phone; which satisfy the descriptors for mild functional impact and an entitlement of 5 points in accordance with that Table. However, the development of that condition such that he now has difficulty clothing himself, doing up shoe laces and zipper jackets all post-date that period and would arguably entitle him to a higher point assessment under the Table at the date of the hearing.
In relation to the claim for lower limb impairment, and in reference to Table 3 and a mild functional impairment rating of 5 points; two pre-conditions must be satisfied. The first precondition is referred to in 1(a) – (c) of Table 3 (5 points). In relation to the Applicant, he had difficulty walking to local facilities such as shops. During the Qualification Period he was able to stand or walk with pain and discomfort for 15 to 20 before resting. He therefore satisfies pre-condition one. With respect to the second precondition referred to in 2(a) – (b) of Table 3 (5 points), the Applicant reported an ability to stand for more than 10 minutes and that he could move effectively without the aid of a walking stick. The Applicant conceded that these inabilities did not arise until after the Qualification Period and in fact became an issue within the last 12 months. Hence the Applicant did not, during the Qualification Period, attract an entitlement to a points assessment under Table 3.
The Tribunal accepts that in respect of the Applicant’s spinal degenerative disease, the condition has progressively worsened over time. It was fully diagnosed, treated and stabilised during the Qualification Period. The Applicant was wearing a support belt, consulting a physio therapist and receiving injections to alleviate the pain.
In reference to Table 4, the Tribunal accepts that during the Qualification Period the Applicant had difficulty bending and could do so only to his knees. Overhead activities were impaired as evidenced by his difficulty in hanging out washing on the washing line, and further he had difficulty turning his trunk from side to side. However his condition had not yet deteriorated to the point where he required the use of a walking stick; including to get into and out of a chair, which is now the case. As such, the Applicant satisfied the assessment of 5 points during the Qualification Period albeit that condition has now worsened and once again there is an argument that he may now attract a higher point assessment under Table 4.
The Applicant’s anxiety and depressive condition was not fully diagnosed, treated and stabilised during the Qualification Period. The Applicant first consulted a psychologist after the Qualification Period, and the evidence does not purport to cast light on the functional impact as at the Qualification Period.[8] He thereafter continued to receive treatment. However despite the extensive experience of the treating psychologist she was not a registered clinical psychologist.[9] Insofar as the AAT1 purported to accept the psychologist’s evidence as that of a registered clinical psychologist, the AAT1 fell into error.
[8] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; Gallacher v Secretary, Department of Social Sevices [2015] FCA 1123.
[9] Exhibit R1.
Table 5 of the Determination 2011 relevantly provides, with respect to an “appropriately qualified medical practitioner”:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

There is no discretion within the legislative framework that permits the Tribunal to attribute to an expert, a level of expertise prescribed by legislation, simply by reference to the expert’s level of experience and general area of practice. No entitlement to an assessment arises in the respect of this condition, but if it were to arise, such assessment must be made in accordance with the Act, and an opinion of a registered clinical psychologist or psychiatrist would be required.
As for those other conditions referred to by the Applicant, no entitlement arises under the Act as they do not attract any assessment under the relevant table, and nevertheless they were not fully diagnosed, treated or stabilised during the Qualification Period. Further there is a lack of corroborative evidence by an appropriately qualified medical practitioner. To the extent that the Applicant provided to the Tribunal, a bundle of medical reports and records, they all related to his current condition and were not referable to the Qualification Period.
Accordingly, the Tribunal assesses the Applicant’s impairments as attracting a total of 10 points under the Tables. The Applicant therefore does not satisfy s 94(1)(b) of the Act.
Based on the conclusions as stated above, there is no need to determine whether the Applicant had a continuing inability to work.
DECISION
The Tribunal:
(a)varies the decision under review dated 30 August 2017 in respect of the Applicant’s chronic lower limb impairment rating of 5 points under Table 3, such that the Applicant is not entitled to an impairment rating and is hereby assigned 0 points; and
(b)otherwise affirms the decision under review

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

..........................[Sgd].......................................
Associate
Dated: 12 October 2018

Date of hearing: 13 July 2018

Applicant: In person

Advocate for the Respondent: Mr Oliver Morris

Solicitors for the Respondent: Department of Human Services

[2018] AATA 3778

12 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

*Condition*	*Full Diagnosed, Treated and Stabilised*	*Impairment Table*	*Impairment Rating*
Spinal degenerative disease	Yes	4	5 Points
Chronic lower-limb pain	Yes	3	5 Points
Left elbow tendonitis & right tennis elbow	Yes	2	5 Points
Anxiety & depression	No	N/A	N/A
Asthma	Yes	1	0 Points
Memory loss	No	N/A	N/A

Date of hearing:	13 July 2018
Applicant:	In person
Advocate for the Respondent:	Mr Oliver Morris
Solicitors for the Respondent:	Department of Human Services