Ian Menzies and Secretary, Department of Social Services - [2014] AATA 689

[2014] AATA 689

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4837

Re

Ian Menzies

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 1 August 2014

Date of written reasons 22 September 2014

Place Sydney
The decision of the Social Security Appeals Tribunal dated 16 August 2013 is affirmed.

...............[SGD].........................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECUIRTY — Disability Support Pension — Whether the Applicant’s conditions were permanent — Whether the Applicant suffers a “severe impairment” — Whether the Applicant has undertaken a program of support — Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(b); 94(1)(c)(i); 94(2)(aa)
Social Security (Administration) Act 1999 (Cth) - ss 13, 42; cl 4(1) of Sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member A K Britton
22 September 2014

Mr Ian Menzies applies to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal (SSAT), to reject his claim for disability support pension (DSP).
To qualify for DSP Mr Menzies must demonstrate that he has:
an impairment of 20points or more (s94(1)(b) of the Social Security Act 1991 (Cth) (the Act)), and
a “continuing inability to work” because of the impairment (s94(1)(c)(i) of the Act), and
undertaken a “program of support” unless found to have a “severe impairment” (s 94(2)(aa) of the Act).
There is no argument that Mr Menzies suffers from a number of impairments and has not undertaken a program of support. For the reasons that I will explain below, his claim for DSP cannot succeed because he does not have a “severe impairment”, namely, an impairment totalling at least 20 points under a single impairment table under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Tables).
Assigning an impairment rating
Mr Menzies’ claim for DSP was based on the following conditions:
·kidney disease with hypertension
·intervertebral disc disorder
·gout
·depression
The appropriate rating to be assigned to each condition must be assessed by reference to the 13-week period, starting from the day Mr Menzies made his claim for DSP, that is, 10 May 2012 to 9 August 2012 (ss 13, 42 and cl 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth)). I will refer to this period as “the claim period”.
In proceedings before the SSAT, Mr Menzies asked that his “right hand injury” be taken into account. That injury occurred after the claim period and therefore cannot be taken into account, in determining his eligibility for DSP.
A precondition to assigning an impairment rating under the Tables, is that the claimed condition be permanent, that is, diagnosed and fully treated and stabilised and more likely than not, in light of the available evidence, to persist for more than two years (ss 6(3) and 6(4) of the Tables). It is agreed that, with the exception of depression, all of the claimed conditions are permanent within the meaning of the Act.
Does Mr Menzies have a severe impairment?
Does Mr Menzies’ “kidney disease with hypertension” attract a rating of 20 points?
According to Mr Menzies, his kidney condition causes fatigue, swelling of the feet, elevated blood pressure and gout. I will return to assess the impairment arising from the gout. He has been on blood pressure medication since 1997 which at time leaves him feeling giddy, especially when bending over, to the point where he must steady himself by holding onto a chair to prevent falling over.
Mr Menzies stated in these proceedings that he cannot perform tasks associated with his previous employment as a civil engineer, including driving excavators, laying pipes, driving trucks, or farming work, due to his fatigue. He stated he is able to water the garden and pull out weeds, but would “not be rushing out” to lay pavers or perform other heavy jobs. Mr Menzies said he is able to assist his wife to do the shopping, put wood on the fire, vacuum, and mow the lawn using a ride-on mower.
Mr Menzies’ kidney condition must be assessed under Table 1 - Functions Requiring Physical Exertion and Stamina Function. Table 1, together with the other tables referred to in these reasons, is set out in full in Attachment A to these reasons for decision.
For a rating of 20 points to be awarded under Table 1, I must be satisfied that Mr Menzies usually experiences symptoms such as fatigue and giddiness, when performing light physical activities and, due to these symptoms is unable to :
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
…
The evidence reveals that Mr Menzies is able to do each of the above activities. Therefore a rating of 20 points cannot be assigned.
Does Mr Menzies’ “intervertebral disc disorder” attract a rating of 20 points?
Mr Menzies fractured his neck on a number of occasions, most recently during a work incident in 2008. An MRI taken in July 2014 reveals widespread disc degeneration throughout Mr Menzies’ cervical spine and a C 6/7 disc herniation with C 7 nerve root involvement. As a consequence of this pathology, Mr Menzies suffers chronic pain and has reduced neck movements.
Mr Menzies has a number of concerns about the assessment undertaken in July 2012 by a Centrelink job capacity assessor. He concedes however that the following history recorded by the assessor in her report of that assessment, was accurate:
·he was able to stand or walk for one hour
·he was able to sit for 30 – 60 minutes
·he was able to self-care (including dressing and vacuuming)
·he was able to turn his head to the side to approximately 50 degrees before having to turn his trunk as well
·he was able to drive without difficulty
·he is able to pick up items at knee height
·he is able to get items off higher shelves in the kitchen
·he “spends a lot of time each day writing letters for court case”
Mr Menzies’ neck condition must be assessed under Table 4 – Spinal Function. To assign a rating of 20 points under that Table, I must be satisfied that Mr Menzies is unable to :
(a)perform any overhead activities; or
(b)turn his head, or bend his neck, without moving his trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Mr Menzies agrees that he is able to undertake each of the above activities. It follows a rating of 20 points cannot be assigned.
Does Mr Menzies’ gout attract a rating of 20 points?
The Secretary contends that during the claim period Mr Menzies’ gout was not a permanent condition, that is, it was not diagnosed and fully treated and stabilised. For current purposes I will assume but not decide that the condition was permanent.
The Tables instruct in relation to episodic or fluctuating conditions, such as gout, a rating must be assigned which “reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate” (s 11(4) of the Tables).
I accept that during the claim period, from time to time, Mr Menzies’ gout: was serious; caused his feet to swell and become painful; and from time to time reduced his mobility to a significant degree. For a rating of 20 points to be assigned under the relevant table, Table 3 – Lower Limb Function, among other things, I must be satisfied that Mr Menzies was unable to do any of the following:
(i)      walk around a shopping centre or supermarket without assistance;
(ii)     walk from the carpark into a shopping centre or supermarket without assistance;
(iii)    stand up from a sitting position without assistance.
There is no evidence, and nor does Mr Menzies claim, that he was unable to do any of the above activities during the claim period. Therefore, a rating of 20 points cannot be assigned.
Can Mr Menzies’ depression be rated under the Tables?
Whether Mr Menzies’ depression can be awarded a rating under the relevant table — Table 5 – Mental Health Function — turns on whether, during the claim period, it was permanent, specifically diagnosed in accordance with the requirement of the introduction to Table 5 which states:
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).
Mr Menzies had been diagnosed as suffering from depression by his GP, Dr Marc Kamel. That diagnosis has not been confirmed by a clinical psychologist or psychiatrist and therefore cannot be considered “permanent” for the purpose of Table 5. It follows that a rating cannot be assigned.
Can the acquired brain injury be rated under the Tables?
Mr Menzies submitted in these proceedings that during the claim period he was suffering from an acquired brain injury, which should be taken into account in the assessment of his claim for DSP. He made no mention of that condition in his claim for DSP lodged with Centrelink on 15 May 2012. Nor was it mentioned in the medical report prepared by his GP and submitted in support of his claim.
The absence of any reference to a condition in the initiating claim form, or supporting medical documentation, of itself does not preclude a decision–maker from taking the condition into account in deciding whether the person satisfies the criteria for DSP.
As Mr Menzies correctly points out there is some evidence to support his claim that he was suffering from an acquired brain injury during the claim period. This includes the report prepared by clinical neuropsychologist, Dr Geoffrey Fox, dated 12 April 2014.
Even if accepted that the condition is permanent, it does not assist Mr Menzies’ claim for DSP because, as he concedes, he does not satisfy the descriptors for “severe functional impact” under the relevant table, Table 7 - Brain Function. A rating of 20 points under that Table can only be awarded if Mr Menzies needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a)memory;
(b)attention and concentration;
(c)problem solving;
(d)planning;
(e)decision making;
(f)comprehension;
(g)visuospatial function;
(h)behavioural regulation;
(i)self awareness.
Mr Menzies concedes that he does not need frequent supervision or have “severe difficulties” with any of the above listed activities.
CONCLUSION
Mr Menzies has multiple health problems and, as a result, his functional capacity is reduced. He is now unfit to work in his previous occupation as a civil engineer. Not having undertaken a program of support, to qualify for DSP at least one of his conditions must constitute a severe impairment and attract a rating of 20 points or more under a single impairment table. None of Mr Menzies’ conditions meets this requirement. Mr Menzies believes that requirement to be unreasonable. He believes, given his long history of involvement in the workforce and contribution to Australian society, that requirement should be waived, or at least flexibly applied. Mr Menzies may be right. However the Tribunal’s role is to decide whether a person meets the requirements for DSP, prescribed by parliament. Mr Menzies does not meet, and the Tribunal has no power to waive or modify, the current requirements for DSP. It follows that the decision to refuse Mr Menzies’ claim for DSP must be affirmed.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
....................[SGD]....................................................
Associate
Dated 22 September 2014

Date(s) of hearing 1 August 2014

Applicant In person

Solicitors for the Respondent Department of Human Services, Program Litigation and review Branch
ANNEXURE A
Table 1 - Functions requiring Physical Exertion and Stamina

Introduction to Table 1

·    Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·    Self-report of symptoms alone is insufficient.

·    There must be corroborating evidence of the person’s impairment.

·    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);

a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);results of exercise, cardiac stress or treadmill testing.

C

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

(1)   The person:

(a)       is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)       has no difficulty completing physically active tasks around theirhome and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)       The person:

(a)       experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)        walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)       is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)   The person:

(a)       experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)        is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)       is able to:

(i)        use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)   The person:

(a)       usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)        walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)       has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

30

There is an extreme functional impact on activities requiring physical exertion or stamina.

(1)   The person:

(a)       is completely unable to perform activities requiring physical exertion or stamina; or

(b)       experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.

(2)   This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).

Table 3 – Lower Limb Function

Introduction to Table 3

·   Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

results of diagnostic tests (e.g. X-Rays or other imagery);

results of physical tests or assessments.

·   For the purposes of this Table lower limbs extend from the hips to the toes.

C

Points

Descriptor

0

There is no functional impact on activities requiring use of the lower limbs.

(1)   The person can:

(a)       walk without difficulty on a variety of different terrains and at varying speeds; and

(b)       walk without difficulty around the home and community; and

(c)       kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)       use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)   At least one of the following applies:

(a)       the person has some difficulty walking to local facilities (e.g. shops or bus-stop); o

(b)       the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)       the person has some difficulty climbing stairs; and

(2)   At least one of the following applies:

(a)       the person is unable to stand for more than 10 minutes;

(b)       the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)   At least one of the following applies:

(a)       the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)       the person is unable to use stairs or steps without assistance; or

(c)       the person is unable to stand for more than 5 minutes; and

(2)   The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)   This impairment rating level includes a person who can:

(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:            The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)   The person:

(a)       is unable to do any of the following:

(i)        walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)       requires assistance to use public transport.

(2)   This impairment rating level includes a person who requires assistance to:

(a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)       move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

30

There is an extreme functional impact on activities using lower limbs.

(1)   The person is unable to mobilise independently.

Table 4 – Spinal Function

Introduction to Table 4

·   Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·   In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

c

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)   The person can:

(a)       bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)       turn their trunk from side to side; and

(c)       turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)   The person has some difficulty in:

(a)       activities over head height (e.g. activities requiring the person to look upwards); or

(b)       bending to knee level and straightening up again without difficulty; or

(c)       turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)   The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)       the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)       the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)   The person is unable to:

(a)       perform any overhead activities; or

(b)       turn their head, or bend their neck, without moving their trunk; or

(c)       bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

30

There is an extreme functional impact on activities involving spinal function.

(1)   The person is:

(a)       completely unable to perform activities involving spinal function; or

(b)       unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).

Table 5 – Mental Health Function

Introduction to table 5

·   Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

·   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).

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

interviews with the person and those providing care or support to the person.

·   In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

·   The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.

·   The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.

·   For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

Points

Descriptors

0

There is no functional impact on activities involving mental health function.

(1)   The person has no difficulties with most of the following:

(a)       self care and independent living;

Example: The person lives independently and attends to all self care needs without support.

(b)       social/recreational activities and travel;

Example 1: The person goes out regularly to social and recreational events without support.

Example 2: The person is able to travel to and from unfamiliar environments independently.

(c)       interpersonal relationships;

Example: The person has no difficulty forming and sustaining relationships.

(d)      concentration and task completion;

Example 1: The person has no difficulties concentrating on most tasks.

Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.

(e)       behaviour, planning and decision-making;

Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.

(f)       work/training capacity.

Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.

5

There is a mild functional impact on activities involving mental health function.

(1)   The person has mild difficulties with most of the following:

(a)       self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b)       social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c)       interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d)      concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e)       behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f)       work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

10

There is a moderate functional impact on activities involving mental health function.

(1)   The person has moderate difficulties with most of the following:

(a)       self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)       social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)       interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)      concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)       behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)       work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

There is a severe functional impact on activities involving mental health function.

(1)   The person has severe difficulties with most of the following:

(a)       self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)       social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)       interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)      concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)       behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

30

There is an extreme functional impact on activities involving mental health function.

(1)   The person has extreme difficulties with most of the following:

(a)       self care and independent living;

Example 1: The person needs continual support with daily activities and self care.

Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.

(b)       social/recreational activities and travel;

Example: The person is unable to travel away from own residence without a support person.

(c)       interpersonal relationships;

Example: The person has extreme difficulty interacting with other people and is socially isolated.

(d)      concentration and task completion;

Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.

Example 2: The person has extreme difficulty in completing tasks or following instructions.

(e)       behaviour, planning and decision-making;

Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.

Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training sessions other than for short periods of time.

Table 7 – Brain Function

Introduction to Table 7

·     Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);

results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));

results of cognitive function assessments.

·     The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.

·     For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

·     A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.

·     Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function.

Points

Descriptors

0

There is no functional impact resulting from a neurological or cognitive condition.

(1)   The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.

5

There is a mild functional impact resulting from a neurological or cognitive condition.

(1)   The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:

(a)       memory;

Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.

(b)       attention and concentration;

Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.

Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.

(c)       problem solving;

Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.

Example 2: The person shows a lack of awareness of problems in some situations.

(d)      planning;

Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).

(e)       decision making;

Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.

(f)       comprehension.

Example: The person has some difficulty in understanding complex instructions involving multiple steps.

10

There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)   The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)       memory;

Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.

Example 2: The person often misplaces items.

Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.

(b)       attention and concentration;

Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.

Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.

(c)       problem solving;

Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.

(d)      planning;

Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).

(e)       decision making;

Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.

(f)       comprehension;

Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.

(g)       visuo-spatial function;

Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.

(h)       behavioural regulation;

Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).

(j)        self awareness.

Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.

20

There is a severe functional impact resulting from a neurological or cognitive condition.

(1)   The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:

(a)       memory;

Example 1: The person is unable to remember routines, regular tasks and instructions.

Example 2: The person has difficulty recalling events of the past few days.

Example 3: The person gets easily lost in unfamiliar places.

(b)       attention and concentration;

Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.

Example 2: The person is easily distracted from any task.

(c)       problem solving;

Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.

(d)      planning;

Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).

(e)       decision making;

Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.

(f)       comprehension;

Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.

(g)       visuo-spatial function;

Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).

(h)       behavioural regulation;

Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.

(j)        self awareness.

Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.

30

There is an extreme functional impact resulting from a neurological or cognitive condition.

(1)   The person needs continual assistance and supervision and has extreme difficulties in at least one of the following:

(a)       memory;

Example 1: The person needs constant prompts and reminders to remember routine tasks, familiar people and places and may get lost even in familiar places if not accompanied.

Example 2: The person has difficulties remembering events that happened earlier in the day (such as what the person ate for breakfast).

(b)       attention and concentration;

Example: The person is unable to concentrate on any task for more than a few minutes.

(c)       problem solving;

Example: The person is unable to solve even the most basic problems (such as what to do if the kettle is empty) and needs complete assistance with problem solving.

(d)      planning;

Example: The person is unable to plan and organise daily activities and needs complete assistance to organise daily routine.

(e)       decision making;

Example: The person is unable to prioritise and make simple decisions and needs a guardian or other delegate to make decisions or give consent on the person’s behalf.

(f)       comprehension;

Example: The person is unable to understand even simple, single step instructions and needs assistance to complete most tasks.

(g)       visuo-spatial function;

Example 1: The person is unable to perform even basic visuo-spatial functions, is unable to follow spatial directions (such as ‘turn left at the corner’), or is unable to judge distance or depth which severely limits mobility.

Example 2: The person has left or right-sided neglect, that is, they are not aware of objects, people or body parts in the left or right field of vision. This means that even though the person’s eyes can see an object, the person’s brain does not register its presence.

(h)       behavioural regulation;

Example: The person is frequently (every day) unable to control behaviour in a range of day to day situations and this interferes with participation in activities outside the home and requires supervision and possibly restriction to a home or institutional environment.

(j)        self awareness.

Example: The person has very poor or no awareness of own limitations resulting in frequent and serious risks to self or others.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4837
Re	Ian Menzies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member A K Britton
Date	1 August 2014
Date of written reasons	22 September 2014
Place	Sydney

Date(s) of hearing	1 August 2014
Applicant	In person
Solicitors for the Respondent	Department of Human Services, Program Litigation and review Branch

Points	Descriptors
0	There is no functional impact on activities requiring physical exertion or stamina. (1) The person: (a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and (b) has no difficulty completing physically active tasks around theirhome and community.
5	There is a mild* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty: (i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or (ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10	There is a moderate* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person: (i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and (b) is able to: (i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and (ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20	There is a severe* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (iii) use public transport without assistance; or (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30	There is an extreme* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) is completely unable to perform activities requiring physical exertion or stamina; or (b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance. (2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).

Points	Descriptor
0	There is no functional impact on activities requiring use of the lower limbs. (1) The person can: (a) walk without difficulty on a variety of different terrains and at varying speeds; and (b) walk without difficulty around the home and community; and (c) kneel or squat and rise back to a standing position without difficulty; and (d) stand unaided for at least 10 minutes; and (e) use stairs without difficulty.
5	There is a mild* functional impact on activities using lower limbs*. (1) At least one of the following applies: (a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); o (b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or (c) the person has some difficulty climbing stairs; and (2) At least one of the following applies: (a) the person is unable to stand for more than 10 minutes; (b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10	There is a moderate* functional impact on activities using lower* limbs. (1) At least one of the following applies: (a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or (b) the person is unable to use stairs or steps without assistance; or (c) the person is unable to stand for more than 5 minutes; and (2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket. (3) This impairment rating level includes a person who can: (a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or (b) move around independently using walking aids (e.g. quad stick, crutches or walking frame). Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20	There is a severe* functional impact on activities using lower limbs*. (1) The person: (a) is unable to do any of the following: (i) walk around a shopping centre or supermarket without assistance; (ii) walk from the carpark into a shopping centre or supermarket without assistance; (iii) stand up from a sitting position without assistance; and (b) requires assistance to use public transport. (2) This impairment rating level includes a person who requires assistance to: (a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or (b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
30	There is an extreme* functional impact on activities using lower limbs*. (1) The person is unable to mobilise independently.

Points	Descriptors
0	There is no functional impact resulting from a neurological or cognitive condition. (1) The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation.
5	There is a mild* functional impact resulting from a neurological or cognitive condition. (1) The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following: (a) memory; Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items. (b) attention and concentration; Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour. Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby. (c) problem solving; Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts. Example 2: The person shows a lack of awareness of problems in some situations. (d) planning; Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday). (e) decision making; Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from. (f) comprehension. Example*: The person has some difficulty in understanding complex instructions involving multiple steps.
10	There is a moderate* functional impact resulting from a neurological or cognitive condition.* (1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following: (a) memory; Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night. Example 2: The person often misplaces items. Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items. (b) attention and concentration; Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes. Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby. (c) problem solving; Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time. (d) planning; Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party). (e) decision making; Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others. (f) comprehension; Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks. (g) visuo-spatial function; Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities. (h) behavioural regulation; Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression). (j) self awareness. Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
20	There is a severe* functional impact resulting from a neurological or cognitive condition.* (1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following: (a) memory; Example 1: The person is unable to remember routines, regular tasks and instructions. Example 2: The person has difficulty recalling events of the past few days. Example 3: The person gets easily lost in unfamiliar places. (b) attention and concentration; Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes. Example 2: The person is easily distracted from any task. (c) problem solving; Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice. (d) planning; Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip). (e) decision making; Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others. (f) comprehension; Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks. (g) visuo-spatial function; Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects). (h) behavioural regulation; Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression. (j) self awareness. Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.
30	There is an extreme* functional impact resulting from a neurological or cognitive condition. (1) The person needs continual assistance and supervision and has extreme difficulties in at least one of the following: (a) memory; Example 1: The person needs constant prompts and reminders to remember routine tasks, familiar people and places and may get lost even in familiar places if not accompanied. Example 2: The person has difficulties remembering events that happened earlier in the day (such as what the person ate for breakfast). (b) attention and concentration; Example: The person is unable to concentrate on any task for more than a few minutes. (c) problem solving; Example: The person is unable to solve even the most basic problems (such as what to do if the kettle is empty) and needs complete assistance with problem solving. (d) planning; Example: The person is unable to plan and organise daily activities and needs complete assistance to organise daily routine. (e) decision making; Example: The person is unable to prioritise and make simple decisions and needs a guardian or other delegate to make decisions or give consent on the person’s behalf. (f) comprehension; Example: The person is unable to understand even simple, single step instructions and needs assistance to complete most tasks. (g) visuo-spatial function; Example 1: The person is unable to perform even basic visuo-spatial functions, is unable to follow spatial directions (such as ‘turn left at the corner’), or is unable to judge distance or depth which severely limits mobility. Example 2: The person has left or right-sided neglect, that is, they are not aware of objects, people or body parts in the left or right field of vision. This means that even though the person’s eyes can see an object, the person’s brain does not register its presence. (h) behavioural regulation; Example: The person is frequently (every day) unable to control behaviour in a range of day to day situations and this interferes with participation in activities outside the home and requires supervision and possibly restriction to a home or institutional environment. (j) self awareness. Example*: The person has very poor or no awareness of own limitations resulting in frequent and serious risks to self or others.