Iqbal and Secretary, Department of Social Services (Social services second review) - [2024] AATA 1338

Iqbal and Secretary, Department of Social Services (Social services second review) [2024] AATA 1338 (30 May 2024)
Division:GENERAL DIVISION
File Number:2022/5574
Re:Reza Iqbal
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:30 May 2024
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 7 June 2022, to reject the Applicant’s claim for the Disability Support Pension lodged on 11 August 2020, is affirmed.
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CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s claimed conditions were fully diagnosed, fully treated and fully stabilised – where Applicant claims to suffer from hepatitis B, lumbar spondylolisthesis, Meniere’s disease, eye floaters, hearing loss and gastroesophageal reflux disease – whether Applicant’s impairments attracted an impairment rating of 20 points under the Social Security (Tables for the assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Administration) Act 1999 (Cth) ss 4(1), 109(2), 147
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 3, 5(2), 6, 6(1), 6(3), 6(4), 6(7), 6(8), 8(1), 8(2), 10(1)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) ss 5, 7, 7(2), 7(3), 7(4), 7(5)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Minister for Home Affairs v G and Another [2019] FCAFC 79
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Australian Government ‘Guides to Social Policy Law: Social Security Guide’ (version 1.314, 5 February 2024) ss 3.6.3, 3.6.3.05
Guidelines to the Tables for the Assessment of Work-related Impairment for DSP
REASONS FOR DECISION
Member L M Gallagher
30 May 2024
THE APPLICATION

The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 7 June 2022, that affirmed a decision of an Authorised Review Officer (ARO) dated 6 August 2021,[1] to reject the Applicant’s claim for disability support pension (DSP) (the Reviewable Decision).[2]
[1] R1, T35.
[2] R1, T2.
ISSUE
The issue for determination is whether the Applicant qualified for DSP at the date of his claim, namely;
(a)Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(i)Whether the Applicant’s impairments were fully diagnosed, fully treated and fully stabilised (FDTS) and receive an impairment rating of 20 points or more under tables (the Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), and if so;
(ii)Whether those 20 impairment points are obtained under a single Impairment Table such that the Applicant has a severe impairment; and
(b)Whether the Applicant has a continuing inability to work (CITW), which includes:
(i)That he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)If, and only if, the Applicant does not have a severe impairment, the Applicant has actively participated in a program of support (POS).
If, and only, if, the Applicant is found to satisfy the qualification criteria for DSP for his claim, the Tribunal is also required to consider the date of effect of the Applicant’s claim.[3]
[3] See s 109(2) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which provides that when a decision is appealed to an ARO more than 13 weeks after the original decision, any favourable decision takes effect from the day the appeal to the ARO was lodged, and not the date of the claim. See also s 147, Item 8 of the Administration Act, which provides that when a decision is appealed to the AAT1 more than 13 weeks after notice of the decision of the ARO (as in the present matter), any favourable decision takes effect from the day the appeal to the AAT1 was lodged, and not the date of the claim.
BACKGROUND
On 11 August 2020, the Applicant lodged a claim for DSP with the Agency, in relation to his claimed;[4]
·Hepatitis B;
·Lumbar spondylolisthesis (spinal condition);
·Meniere’s disease;
·Eye floaters;
·High blood pressure;
·Hearing loss; and
·Gastroesophageal reflux disease.
[4] R1, T19 pp 158-159.
Following a Job Capacity Assessment (JCA) on 8 October 2020, it was reported that:[5]
(a)The Applicant’s Meniere’s disease was FDTS and could therefore be assigned a rating under the Impairment Tables. The JCA considered that a rating of five points under Table 11 of the Impairment Tables was appropriate.[6]
(b)The Applicant’s hepatitis B was FDTS and could therefore be assigned a rating under the Impairment Tables. The JCA considered, however, that a rating of zero points under Table 10 of the Impairment Tables was appropriate.[7]
(c)The Applicant’s spinal condition was fully diagnosed, but not fully treated or fully stabilised.[8]
(d)The Applicant had a baseline work capacity for 15 to 22 hours per week.[9]
(e)The Applicant had capacity to work 23 to 29 hours per week within two years with intervention.[10]
[5] JCA Report dated 15 October 2020: R1, T28, pp 172 to 179. The Tribunal notes the Applicant’s additional claimed conditions (see [4] above) were not considered in this report, which is limited to the Applicant’s claimed Meniere’s disease, Hepatitis B and lumbar spondylolisthesis.
[6] R1, T28 p 175.
[7] R1, T28, p 176.
[8] R1, T28, p 174.
[9] R1, T28, p 177.
[10] R1, T28, p 177.
On 30 October 2020, the Agency rejected the Applicant’s claim for DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables (the Original Decision).[11]
[11] R1, T30.
The Applicant requested a review of the Original Decision.[12]
[12] R1, T33.
On 6 August 2021, an ARO of the agency affirmed the Original Decision (the ARO Decision).[13] The ARO found:[14]
(a)The Applicant’s Meniere’s disease is FDTS and attracts an impairment rating of five points under the Impairment Tables.
(b)The Applicant’s hepatitis B is FDTS but causes minimal functional impairment and therefore attracts zero impairment points under the Impairment Tables.
(c)The Applicant’s lumbar spondylolisthesis is diagnosed but not fully treated and stabilised, meaning no impairment rating can be assigned.
[13] R1, T35.
[14] R1, T35.
On 24 March 2022, the Applicant applied to AAT1 for review of the ARO Decision.[15]
[15] R1, T37.
On 7 June 2022, the AAT1 made the Reviewable Decision.[16] The AAT1 found:
(a)The Applicant’s hearing loss and Meniere’s disease was FDTS, caused a mild functional impact and attracted five points under Table 11 of the Impairment Tables.
(b)The Applicant’s hepatitis B was FDTS but there was insufficient medical evidence and hence attracted an impairment rating of zero points under Table 10 of the Impairment Tables.
(c)The Applicant’s spinal condition was fully diagnosed, but was not fully treated or fully stabilised.
(d)There was insufficient medical evidence in relation to the Applicant’s other claimed conditions and further, did not consider the remaining issues regarding qualification such as the Applicant’s work capacity.
[16] R1, T2.
On 5 July 2022, the Applicant applied to the Tribunal’s General Division for review of the Reviewable Decision (the Tribunal).[17]
[17] R1, T1.
RELEVANT LEGISLATION AND PRINCIPLES
The statutory principles relevant to the Applicant’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Social Security Guide[18] (the Guide) assists those who administer the Act. As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[19]
[18] Australian Government ‘Guides to Social Policy Law: Social Security Guide’ (version 1.314, 5 February 2024).
[19] G at [57]-[62].
The Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies.[20]
[20] Section 3.6.3 of the Guide.
Qualification criteria

15. Section 94(1) of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are:
(a)The person has a physical, intellectual or psychiatric impairment;[21]
(b)The person’s impairment is of 20 points or more under the Impairment Tables;[22] and
(c)The person has a CITW.[23]
[21] Section 94(1)(a) of the Act.
[22] Section 94(1)(b) of the Act.
[23] Section 94(1)(c)(i) of the Act.

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance.[24]
[24] Topic 3.6.3.05 of the Guide.
In accordance with clause 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine the Applicant’s eligibility for DSP on 11 August 2020, the date the claim was lodged.[25]
[25] Evidence, such as medical reports, that come into being after the relevant period may still be relevant,
The Determination contains the Impairment Tables. The Impairment Tables set out the rules regarding when an impairment rating can be assigned as well as a system for rating impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[26]
[26] Section 3 of the Determination.
The Impairment Tables are utilised to describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions.[27]
[27] Section 5(2) of the Determination.
Section 6 of the Determination sets out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables,
[28] Section 6(3) of the Determination. Refer also to sections 6(4) to 6(7) of the Determination.
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years.[28]
For a condition to be ‘permanent’, it must be fully diagnosed, fully treated and fully stabilised.[29] Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated, and fully stabilised:
[29] Section 6(4) of the Determination.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[30]
[30] Section 6(8) of the Determination.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[31] Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[32]
[31] Section 8(1) of the Determination.
[32] Section 8(2) of the Determination.
To select the applicable Impairment Table, one must take the following steps:[33]
(a)Identify the loss of function;
(b)Refer to the Table related to the function affected; and then
(c)Identify the correct impairment rating.
[33] Section 10(1) of the Determination.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in section 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under section 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
In relation to section 94(2) of the Act, relevantly:
(a)The Tribunal has no power to dispense with the operation of the POS requirement in s 94(2)(aa) of the Act and it is irrelevant whether an Applicant was aware of the requirement or not;[34]
(b)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;[35]
(c)A person has actively participated in a POS if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection;[36] and
(d)Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[37]
[34] See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
[35] Section 94(3B) of the Act.
[36] Section 94(3C) of the Act.
[37] Section 94(5) of the Act.
With regards to participation in a POS, the POS Determination relevantly provides the following guidance:
(a)The relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person;[38] and
(b)The requirements for active participation in a POS are contained in s 7 of the POS Determination.
(i)Generally, a person must have participated in the POS for at least 18 months during the relevant period.[39]
(ii)Sections 7(3)-7(5) relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[40]
[38] Section 5 of the POS Determination.
[39] Section 7(2) of the POS Determination.
[40] See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 11 January 2024. The Applicant was self-represented. The Respondent was represented by Ms Monica Macor of Sparke Helmore Lawyers. Both parties appeared by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Letter from Amplifon Hearing Care professionals dated 9 March 2023, filed 10 March 2023 (A1);
(b)Royal Perth Hospital documents in relation to nerve root injection sleeve dated 6 December 2022, filed 10 March 2023 (A2);
(c)Respondent’s Section 37 T-Documents, Labelled T1 to T41, consisting of pages 1-251, filed 27 July 2022 (R1);
(d)Respondent’s Supplementary T-Documents, labelled ST1 to ST5, consisting of pages 1-31, filed 24 February 2023 (R2); and
(e)Respondent's Amended Statement of Issues, Facts and Contentions with Annexures A to C dated and filed 4 August 2023 (R3).
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Applicant’s Evidence
During cross-examination, the Applicant gave the following evidence in relation to his claimed conditions:[41]
[41] Transcript, pp 13 to 18.
(a)As to whether he is able to sustain any overhead activities such as reaching to grab an item at overhead height, his problem with doing this relates to balance and getting dizzy, not his spinal condition per se.
(b)Most of the time, he is unable to sustain any overhead activity such as reaching items at overhead height.
(c)If he moves his head slowly, he is able to turn his head slowly to look over his shoulder. Otherwise, he is unable to do so.
(d)He is unable to bend forward to pick up an object such as a cup of coffee placed at knee height, due to his back pain. He is, however, able to sit in order to pick up the object.
(e)As to whether he requires assistance to get up from a chair, he can do this himself most of the time. However, in the morning, he has to hold something to get up out of bed to prevent him getting dizzy.
(f)He can drive a car for at least 30 minutes, unless he is suffering from vertigo at the time.
(g)His spinal condition has deteriorated since he first lodged his claim for DSP in August 2020. He describes experiencing numbness in his left leg and a ‘needling’ and ‘burning’ sensation in his fifth finger.
(h)Since having his hearing aids fitted in March 2023, his hearing has improved by 20 per cent, but they don’t help if he is suffering from tinnitus and in a noisy environment.
(i)In relation to his Meniere’s disease, he suffers dizziness all the time and has done so for the last 12 or 13 years. He suffers from this all year round, but it worsens during winter.
(j)He has been diagnosed by his general practitioner (GP) in relation to his mental health conditions, however he has not received a diagnosis from a psychologist or psychiatrist, nor has he undertaken treatment with a psychologist or psychiatrist for his mental health, his reason being that he cannot afford it. He refuses to take medication for his mental health conditions because he is already taking a lot of other medications for his health issues and already suffers side effects from these.
(k)His attention and concentration on a task, on most days, is interrupted or reduced by pain or symptoms associated with his hepatitis B. Sometimes people are talking to him and he really needs to concentrate just to understand what they are saying.
(l)The pain associated with his hepatitis B and the resulting cirrhosis in his liver has worsened since around 2019, prior to when he lodged his claim for DSP.
(m)When taken to a medical record of a doctor noting that in August 2022 the Applicant reported as well and denied any symptoms associated with his hepatitis B,[42] the Applicant explained that he gave a general answer, on the basis that the doctor was aware of his pain and that he was not “100% down” with the disease at the time.
(n)As to his eye floaters, he agreed with Dr Raja[43] that his corrected vision (with glasses) is at a distance is six out of six in both eyes. However, his vision up close, for example while reading, requires him to concentrate and makes his dizzy, so he tries to avoid reading unless it is 100 per cent necessary.
(o)He doesn’t have a lot of difficulty in seeing and reading road and street signs at night when wearing glasses, but it is difficult to read smaller writing like a street name or house numbers.
(p)Generally speaking, he has difficulty seeing in his peripheral vision and tries to avoid this as he gets dizzy and is problematic for his balance. Instead, he will slowly turn his whole head to see, rather than just turn his eyes to the side.
(q)In his view, both his eye floaters and dizziness affect his ability to turn to the side, but probably more to do with his dizziness.
[42] R2, ST1.
[43] See report of Dr Vignesh Raja, Opthalmologist, dated 11 July 2023 (R3, Annexure B).
CONSIDERATION
Whether the Applicant has suffered from a physical, intellectual or psychiatric impairment or impairments

The Tribunal is required to assess the medical evidence concerning the Applicant’s functional ability arising from his impairment as at 11 August 2020.[44]
[44] See [17] above.
It is not in dispute that the Applicant suffers from impairments.[45] The Tribunal finds on the evidence that at the date of the Applicant’s claims for DSP, he suffered from various impairments resulting from his claimed conditions. The Tribunal notes the medical evidence in this regard and the Applicant’s evidence at hearing.[46]
[45] See R3 [5.22]; transcript, p 9 at [35].
[46] See R1, T4 to T18; transcript pp 13 to 18.
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Whether the impairment receives an impairment rating of 20 points or more
It is not in dispute that the Applicant has not participated in a POS for the required 18 months.[47] Further, the Applicant has not claimed, nor is there evidence to suggest, that he has been exempted from this requirement.
[47] See R1, T39, p 209 and transcript, pp 10 and 11. 18 months being 547 days. The Applicant actively participated in a POS for 97 days.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of the Applicant’s claimed conditions attracts 20 points from that single condition.[48] That is, the Tribunal must find that the Applicant suffers from a severe impairment.[49]
[48] This is in addition to the requirement that an applicant demonstrate that he or she is unable to work for 15 or more hours per week, within the next two years, with intervention.
[49] See [27] and [28] above.
Before considering whether the Applicant suffers from a severe impairment, the Tribunal must first determine whether any of the Applicant’s claimed conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
While the Applicant has not espoused a particular view as to whether he is severely impaired in relation to any or all of his claimed conditions,[50] the Tribunal understands the Applicant’s position to be that the claimed conditions were FDTS at the relevant time.
[50] Similarly, the Applicant has not made submissions as to how many impairment points each claimed condition should be afforded.
The Respondent contends that the Applicant was not qualified for DSP at the relevant time as he did not have an impairment rating of at least 20 points and a CITW.[51]
[51] Transcript, p 10 and R3 [5.54], [5.67], [5.76] and [6.1].
The Respondent submitted that, at the relevant time:
(a)The Applicant’s spinal condition was FDTS and attracts 10 points under Table 4 of the Impairment Tables.[52]
(b)The Applicant’s hearing loss was fully diagnosed, but not fully treated or fully stabilised.[53]
(c)The Applicant’s Meniere’s disease/Benign Paroxysmal Positional Vertigo (BPPV) was FDTS and attracts five points under Table 11 of the Impairment Tables.[54]
(d)The Applicant’s hepatitis B was FDTS, however attracts a rating of zero points under Table 10 of the Impairment Tables as the evidence does not indicate the Applicant satisfied any of the factors listed in the descriptor for five points.[55]
(e)The Applicant’s mental health conditions were not fully diagnosed, there being no evidence of a diagnosis having been made by a psychiatrist or clinical psychologist, as required by the introduction to Table 5 of the Impairment Tables.[56]
(f)The Applicant’s eye floaters were FDTS however attracts a rating of zero points under Table 12 of the Impairment Tables as the evidence does not indicate the Applicant satisfied any of the factors listed in the descriptor for five points.[57]
(g)The Applicant’s other conditions (gastro-oesophageal reflux and enlarged prostate) are fully diagnosed but not fully treated or fully stabilised on the basis of insufficient evidence on these matters.[58]
[52] R3 [5.24] and transcript, p 21.
[53] R3 [5.28] and transcript, p 21.
[54] R3 [5.36] and [5.37] and transcript, pp 21 and 22.
[55] R3 [5.41] and [5.42] and transcript, p 22.
[56] R3 [5.45] and transcript, p 10.
[57] R3 [5.48] and [5.49] and transcript, pp 22 and 23.
[58] R3 [5.52] and [5.53] and transcript, p 23.
Spinal condition
The Tribunal is satisfied from the available evidence that the Applicant’s spinal condition is FDTS.[59] The Tribunal has considered the available evidence on the Applicant’s related functional impairment and finds this condition attracts 10 points under Table 4 of the Impairment Tables, for the following reasons:
(a)The Applicant has reported back pain and limitation in his movement, and occasional pins and needles and numbness.[60]
(b)The Applicant has reported that his symptoms are exacerbated by standing for more than 10 minutes, walking between 10 and 20 minutes and by lifting objects or sitting in bed.[61]
(c)The Applicant’s GP stated that the Applicant could sit for more than 10 minutes in an appointment, would be unable to move from bed to floor level but would be able to pick something up from knee level.[62]
(d)The Tribunal considers that the Applicant’s evidence at the hearing describes his spinal condition as having a moderate functional impairment.[63]
[59] See, for example, R1, T11, T37 and R2, ST2.
[60] R1, T9, T11, T13, T16, T17 and T22. The Applicant has also reported leg pain (R1, T11, T22 and R2, ST2), however it is unclear whether his spinal condition has impacted his leg function as limited evidence has been provided in this regard.
[61] R1, T22.
[62] R2, ST4.
[63] See [33(a)] to [33(d)] above.
Hearing loss
The Tribunal accepts that the Applicant’s hearing loss was fully diagnosed at the relevant date.[64]
[64] See R1, T1 (Report by Dr Shah, Audiologist, dated 7 October 2019).
The Applicant’s previous evidence regarding treatment for his hearing loss is that he probably should be wearing hearing aids (as reasonably recommended)[65] but he could not afford them.[66] At the hearing, the Applicant gave evidence that his hearing had somewhat improved in recent times.[67]
[65] R1, T13; R2, ST4.
[66] R1, T2. The Tribunal notes the Applicant was fitted with bilateral hearing aids on 12 July 2022 (R3, Annexure A).
[67] See [33(h)] above.
Therefore, the Applicant’s hearing loss condition cannot be said to have been fully treated and fully stabilised at the relevant time and no impairment points can be assigned.
Meniere’s disease/Benign Paroxysmal Positional Vertigo
As to the Applicant’s Meniere’s disease/BPPV, the Tribunal accepts that the Applicant suffers from BPPV[68], having had a long history of balance and dizziness issues, that this was FDTS at the relevant date and attracts a rating of five points under Table 11 of the Impairment Tables, for the following reasons:
(a)There is consistent evidence from 2014 regarding the Applicant’s experience of episodic and at times severe vertigo, dizziness, imbalance, bilateral tinnitus and nausea associated with having to sit down and hold an object.[69]
(b)It was noted in October 2020 that the Applicant was able to walk unassisted and drive a car between episodes of vertigo.[70]
(c)The Tribunal considers that the Applicant’s evidence at hearing describes his BPPV as causing a mild functional impairment.[71]
[68] R2, ST3 at p 4, ST4 at pp 7 and 10.
[69] See for eg, R1, T1, p 7 and 13; T5, p 134; T9, p 139; T16, p 147 and T28, p 175.
[70] R1, T28, p 176.
[71] See [33(e] to [33(g)] above.
Hepatitis B and Eye floaters
The Tribunal accepts that the Applicant’s hepatitis B and eye floaters were FDTS at the relevant time.[72]
[72] See R1, T6, T7, T10, T15, T28, T31; R2 ST1, ST3 and ST4 and R3, Annexure B.
However, the Tribunal considers the functional impairment of the Applicant’s hepatitis B and eye floaters attract an impairment rating of zero points under Tables 10 and 12 of the Impairment Tables, respectively, in circumstances where:
(a)In 2019 and 2020, the Applicant reported no new complaints of pain, fever etc regarding his hepatitis B, was tolerating his medication and in 2022 reported no significant symptoms although his hepatitis B continued to worry him.[73]
(b)Dr Raja considered the Applicant’s corrected vision (with glasses) at a distance is six out of six in both eyes.[74]
(c)In 2023, the Applicant’s GP had no knowledge of his eye floater issue.[75]
(d)There is otherwise no evidence that the Applicant meets any of the descriptors above zero regarding functional impairment in Tables 10 and 12.
[73] See R1, T10 at p 140, T15 at p 145, T31 at p 183 and R3 at ST3, p 4.
[74] See [33(n)] and fn 40 above.
[75] R3, ST4, p 11.
Mental health conditions
The Applicant is reported by his GP to have had depression for many years due to his complex health issues.[76] However, there is no evidence that the Applicant has obtained such a diagnosis from a psychiatrist or clinical psychologist as required by the Introduction to Table 5 of the Impairment Tables.
[76] R1, T34, p 186.
As such, the Applicant’s mental health condition was not fully diagnosed at the relevant time and no impairment points can be assigned.
Other conditions
The Tribunal accepts that the Applicant has been diagnosed with gastroesophageal reflux disease and an enlarged prostate.
However, there is insufficient evidence before the Tribunal to enable it to determine whether these conditions are fully treated or fully stabilised at the relevant time. Therefore, no impairment points can be assigned.
Overall, the Applicant has an impairment rating of 15 points under the Impairment Tables. Therefore, the Applicant fails to satisfy s 94(1)(b) of the Act and it is unnecessary to consider whether the Applicant had a CITW under s 94(1)(c) of the Act.
Whether the Applicant has a continuing ability to work
As noted above, it is not in dispute that the Applicant has not participated in a POS for the required 18 months.[77]
[77] See [37] and fn 44 above.
For completeness only, the Tribunal notes that the available JCA report indicates that the Applicant would have the capacity to work 23 to 29 hours per week within two years, with intervention.[78]
[78] See [5(e)] above.
Therefore, on the available evidence, the Applicant’s claim is likely to have failed:
(a)Regardless of whether any or all of the claimed conditions were FDTS; and
(b)If any or all of the claimed conditions had been found to be FDTS, regardless of whether 20 impairment points were assigned under a single condition, or cumulatively.
CONCLUSION
The Tribunal accepts that, at the date of claim, the Applicant suffered from medical conditions impacting his health such that he satisfies s 94(1)(a) of the Act.
However, the Tribunal has found that the claimed conditions that were FDTS at the date of claim attract an overall impairment rating of 15 impairment points.
This being so, the Applicant fails to satisfy the second qualification criterion under s 94(1)(b) of the Act and in turn fails to qualify for DSP.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 7 June 2022, to reject the Applicant’s claim for the Disability Support Pension lodged on 11 August 2020, is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.........................[Sgd].............................................
Associate
Dated: 30 May 2024

Date of hearing: 11 January 2024

Applicant’s Representative: Self-represented

Respondent’s Representative: Ms Monica Macor of Sparke Helmore Lawyers

but only insofar as they are referable to the Applicant’s condition or conditions during the relevant period (Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [27]-[28].

Date of hearing:	11 January 2024
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Ms Monica Macor of Sparke Helmore Lawyers