Jansen and Secretary, Department of Social Services (Social services second review) - [2020] AATA 134

Jansen and Secretary, Department of Social Services (Social services second review) [2020] AATA 134 (4 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2415
Re:Barbara Jansen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Fletcher
Date:4 February 2020
Place:Perth

The Reviewable Decision of the AAT1, dated 12 April 2019, is affirmed.
.........................[sgd]...............................................
Member I Fletcher
CATCHWORDS

SOCIAL SECURITY – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s conditions attract 20 points under the Impairment Tables – whether Applicant has severe impairment – whether Applicant has continuing inability to work – reviewable decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 23(1), 26, 26(1), 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(a), 94(2)(aa), 94(3)(a), 94(3)(b), 94(5)
Social Security (Administration) Act 1999 (Cth) – cl 3 sch 2, sub-cl 4(1) sch2; ss 26, 27, 27(3), 42, 63(2), 80(1), 118(3)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Tables 4, 5, 13; rr 3, 5(2), 6, 6(1), 6(2), 6(3), 6(4), 6(5), 6(6), 6(7), 8, 10(1), 11, 11(1)(c), 11(4)
SECONDARY MATERIALS
Guides to Social Policy Law: A Guide to the Tables for the Assessment of Work–related Impairment for Disability Support Pension, Department of Social Services, version 1.260 – s 3.6.3
Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.260 – ss 3.6.3.05, 3.6.1.42
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1), 7(2), 7(3), 7(15)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Croker v Secretary, Department of Employment and Workplace Relations
[2007] FCA 1635
Crossland and Secretary, Department of Family and Community Services
(2004) AATA 864
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations
[2007] AATA 1749
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Redmond and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1066
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
REASONS FOR DECISION
Member I Fletcher
4 February 2020
INTRODUCTION
Decision under review

The decision under review is the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) made on 12 April 2019 (the Reviewable Decision), affirming a decision of an Authorised Review Officer (ARO) made on
7 January 2019, to reject the Applicant’s claim for disability support pension (DSP) made on 18 July 2018.
Issues
In determining whether the AAT1’s decision is the correct and preferable decision, the General Division of the Administrative Appeals Tribunal (the Tribunal) must apply the qualification criteria for DSP in s 94 of the Social Security Act 1991 (Cth) (the Act).
In particular, it must consider whether, as at the date of claim (18 July 2018), or within
13 weeks of that date (ending 17 October 2018) the Applicant met the following requirements (Exhibit R1, 1):
(a)the Applicant had a physical, intellectual or psychiatric impairment for the purpose of paragraph 94(1)(a) of the Act;
(b)if so, whether the Applicant had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) for the purpose of section 94(1)(b) of the Act; and
(c)if so, whether the Applicant had a continuing inability to work, a term as defined in subsection 94(2) of the Act, for the purpose of section 94(1)(c) of the Act.
(Original emphasis.)
BACKGROUND
On 18 July 2018, the Applicant lodged a claim for DSP with the Department of Human Services (the Department) (T33, 223).
On 25 October 2018, a Job Capacity Assessment (JCA) was completed (T38, 284).
The Applicant’s impairments and work capacity were assessed as follows:
(i)spinal condition was fully diagnosed, treated and stabilised causing a moderate functional impairment, attracting a rating of 10 points under Table 4 of the Impairment Tables;
(ii)depression was fully diagnosed, treated and stabilised, causing no functional impairment, attracting a rating of 0 points under Table 5 of the Impairment Tables;
(iii)work capacity was assessed at 15-22 hours per week.
On 7 November 2018, the Applicant’s claim for DSP was rejected (T39, 295).
On 7 January 2019, following a request for a review, an ARO affirmed the decision to reject the Applicant’s claim for DSP (T41, 298).
On 12 April 2019, following a request for a review, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP (T2, 6).
On 4 May 2019, the Applicant lodged an application for second review with the Administrative Appeals Tribunal (the AAT2) (T1, 1).
On 4 December 2019, the AAT2 conducted a second review.
Ms Barbara Jansen (the Applicant) was in attendance with her representative
Ms Julie Bloomfield. Ms Daphne Jones-Bolla from Sparke Helmore Lawyers represented the Secretary, Department of Social Services in person (the Respondent).
At the AAT2 hearing there was some confusion as to whether there had been a supplementary report lodged with the Tribunal from Occupational Therapist,
Ms Wakefield, concerning the Applicant. A direction was issued to the Applicant to provide the document that she had referred to. The report from Ms Wakefield as requested by the direction was received on 6 December 2019 and was the same as that provided at Annexure A in the documents accepted into evidence at the hearing on 4 December 2019.
MATERIALS BEFORE THE TRIBUNAL
At the hearing, the Tribunal accepted the following documents into evidence;
(a)a copy of the Occupational Functional Evaluation Report by Ms Camille Wakefield, dated 5 April 2019 (Exhibit A1);
(b)a copy of Ms Jansen’s response to the Respondent’s Statement of Facts Issues and Contentions, received by the Tribunal on 30 October 2019 (Exhibit A2); and
(c)
a copy of the Respondent’s Statement of Facts, Issues and Contentions, dated

11 September 2019, including (Exhibit R1):
oAnnexure A – Report of Ms Camille Wakefield, dated 5 April 2019
oAnnexure B – Report by Mr Philip Finch, dated 20 August 2019
oAnnexure C – Report by Dr Manuela Witte, dated 26 August 2019
oAnnexure D – a copy of a request for Programme of Support calculation for the Applicant, dated 28 May 2019
oAnnexure E – a copy of study options from Curtin University
Relevant Legislation
The relevant legislation is contained in:
(a)the Social Security Act 1991 (Cth) (the Act);
(b)the Social Security (Administration) Act 1999 (Cth) (Administration Act);
(c)the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables); and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (POS Determination).
The relevant policy is contained in the Guides to Social Policy Law: Social Security Guide, Department of Social Services (the Guide).The Respondent contended that to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
The Guide to the Tables for the Assessment of Work–related Impairment for Disability Support Pension (the Tables) provides further explanation of the Impairment Tables in the Determination and includes background information as well as case studies (see part 3.6.3 of the Guide).
Qualification for DSP
The qualification criteria for DSP are set out in s 94 of the Act, which relevantly provides as follows:
Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; ...
(Original emphasis.)
The qualification criteria for DSP are cumulative, and if any one of the criteria is not satisfied the person will not be qualified for DSP. The Guide at s 3.6.3.05 relevantly notes:
Impairment & continuing inability to work
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Qualification period
Section 42 of the Administration Act provides that ‘…a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2’.
Clause 3 of sch 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person’s qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made,
in accordance with sub-cl 4(1) of sch 2 to the Administration Act (see Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] - [8]).
As the date of claim is 18 July 2018, the qualification period for assessing the Applicant’s entitlement to DSP is therefore during the 13 week period from that date until
17 October 2018 (qualification period) (Emphasis added).
As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to her medical conditions suggesting she may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of her impairments at the qualification period
(see Shi v Migration and Registration Authority (2008) 235 CLR 286, [144] – [145]).
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (Bobera), Member Breen stated:
[34]In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances
(Emphasis added.)
Bobera was cited with approval in the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447 (Fanning), where Deputy President Handley made the following observations:
[31]In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the qualification period.
[32]This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [Harris]. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33]The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.
(Original emphasis.)
In the more recent decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, Justice Besanko in the Federal Court affirmed the principle (as outlined in Fanning and Harris) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
The Respondent contended that these decisions establish that a decision maker, such as the Tribunal, can only consider the Applicant’s qualification for DSP within the qualification period. If the Applicant’s circumstances have subsequently changed, it may be appropriate for her to lodge a new claim for DSP.
Impairment Tables
The Impairment Tables are an instrument made under s 26(1) of the Act, which commenced on 1 January 2012.
Rule 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Section 6(1) of the Impairment Tables states the following:
the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Section 6(3) of the Impairment Tables states the following:
An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent: and
Note: For permanent see subsection 6(4)
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not ‘permanent’, the impairment resulting from this condition cannot be assigned an impairment rating.
In accordance with s 6(4) of the Impairment Tables, a condition is ‘permanent’ if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised;
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5) of the Impairment Tables, in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of ss 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables defines ‘fully stabilised’ for the purposes of
ss 6(4)(c) and 11(4). It provides that a condition is ‘fully stabilised’ if:
(a)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 medical or other compelling reason for the person not to undertake reasonable treatment.
Section 6(7) of the Impairment Tables provides that, for the purposes of s 6(6) ‘reasonable treatment’ is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Rule 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence, and unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Section 10(1) of the Impairment Tables states that table selection is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
Section 11(4) of the Impairment Tables states that where assessing impairments caused by conditions that are episodic or fluctuating, 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. The application of the Impairment Tables to the Applicant’s circumstances is discussed below.
Impairments
The Respondent accepted that, at the qualification period, the Applicant had physical, intellectual or psychiatric impairments for the purpose of s 94(1)(a) of the Act, arising from:
(a)spinal condition;
(b)depression; and
(c)urinary incontinence.
The Applicant’s conditions and resulting impairments (if applicable) are considered below.
Assessment of Impairments under the Impairment Tables
Condition 1 – Spinal condition
The Respondent accepted that the Applicant’s spinal condition was fully diagnosed, treated and stabilised (FDTS) during the qualification period.

The Respondent in their SFIC (Exhibit R1, 6-7) contended that the Applicant’s spinal condition causes an impairment to her spinal function which is appropriately rated under Table 4 of the Impairment Tables.
Having regard to the available medical evidence, the Respondent contended that during the qualification period the impairment arising from the Applicant’s spinal condition attracted a maximum of 10 points under Table 4 of the Impairment Tables.
The Respondent contended that the Applicant’s spinal impairment does not attract an impairment rating higher than 10 points under Table 4, and relies on the following evidence:
(a)In a report dated 8 March 2018, Dr Manuela Witte (GP) stated that ‘[the Applicant] continues to have restrictions including bending, lifting and twisting which results in her having to utilise aids such as a reaching stick, and if her pain is severe, a walking stick.’ Dr Witte stated that the Applicant ‘remains unable to return to her work as a hairdresser because of her back pain. She continues to have restrictions in sitting and standing such that she struggles with her current full time study program. [The Applicant] is making efforts to reskill in light of her now permanent disability leaving her unable to resume hairdressing in any capacity. It is predicted that her ongoing back symptoms will also limit her ability to secure and keep gainful full time employment, especially given that her degenerative back condition is likely to be progressive and deteriorate further over time’ (T28, 205).
(b)On 28 May 2018 Dr Witte completed an ‘Access Request – Supporting Evidence Form’ for the National Disability Insurance Scheme. Dr Witte reported that the Applicant was ‘unable to use public transport/ bus because unable to walk long distances and unable to tolerate the jarring/jerking stop/start motion. During exacerbations on occasions requires assistance getting in & out of chairs’. She further reported that the Applicant ‘Requires assistance to wash hair, shave legs, cut nails. Also requires assistance with dressing eg to put on shoes / do up laces, put on socks’ (T30, 212).
(c)Dr Graham Jeffs (Neurosurgeon) concluded in a report dated 8 June 2018 that it was ‘unlikely that [the Applicant] will be able to perform work that involves prolonged sitting for more than 10-20 minutes, standing for more than 10-20 minutes, any significant lifting of more than 10-15kg, any prolonged labour that involves working above shoulder level, and any work that involves repetitive bending and twisting’. However he expected that ‘[the Applicant] would be able to look after herself from day to day in terms of fairly normal self care activities, but she is likely to find it uncomfortable to perform more physical tasks around the house such as vacuuming, laundry and care of the garden including mowing the lawn’ (T31, 219).
(d)The Applicant reported to the JCA Assessor that she can drive ‘for about 20 minutes’, that ‘if she walks far she uses a walking stick and can only bend to table height and that she cannot hang out the washing’ (T28, 286).
(e)The Applicant reported to the AAT1 that ‘she cannot have her hands up at head height for too long... [and] demonstrated by placing her hands on her head and said sitting makes this easier’. She also reported that ‘generally she drives her daughter to school in the morning and collects her each afternoon. On days she has classes at university she drives to the campus after dropping her daughter at school. The trip to school takes 15 minutes. She said she gets out of the car and stretches and then drives 10 minutes to the campus’ (T2, 9).
The Respondent noted that the Applicant had provided a report from Ms Wakefield, occupational therapist, dated 5 April 2019 (Exhibit R1, Annexure A). However the Respondent contended that this evidence should not be given weight in assessing whether the Applicant met the criteria for DSP during the qualification period, as Ms Wakefield did not assess the Applicant until 3 April 2019, nearly six months after the conclusion of the qualification period. In any event, Ms Wakefield’s report confirms that the Applicant (Exhibit R1, Annexure A, 7-8):
(a)is ‘able to transfer from chairs and bed’;
(b)‘reports and was observed to be able to sit for approximately 15-20 mins before needing to reposition completely or to stand up and stretch’; and
(c)‘...can complete some light cleaning tasks that are at waist / table top height’ and ‘…is able to retrieve and move items of low weight (5 kg) within her waist to shoulder level. She can do this for some tasks such as meal preparation and laundry tasks’.
Similarly, the Applicant has provided a report of Dr Philip Finch, pain physician,
dated 20 August 2019, over one year after the Applicant lodged her claim for DSP
(Exhibit R1, Annexure B). It is not clear whether Dr Finch assessed the Applicant during the qualification period. However even if he did, Dr Finch’s report confirms that:
(a)overhead activities ‘would be difficult’ for the Applicant;
(b)the Applicant is ‘able to move her cervical area’;
(c)the Applicant is ‘unable to bend down or return upright’ and ‘unable to pick up a light object below the knees’ (Emphasis added.); and
(d)sitting for ‘more than short periods and especially more than 10 minutes’ exacerbates the Applicant’s low back pain.
The Applicant has provided a further report from Dr Manuela Witte, dated 26 August 2019 (Exhibit R1, Annexure C). The Respondent notes that Dr Witte’s report comments on the Applicant’s current functional capacity rather than her capacity for performing tasks during the qualification period, and as such this report is of limited assistance in determining whether the Applicant met the criteria for DSP during the qualification period. The recent report of Dr Witte, dated 26 August 2019 suggests the Applicant’s capacity for performing particular tasks has decreased since the qualification period ended. For example:
(a)Dr Jeffs reported in June 2018 (T31, 219) that the Applicant was unlikely to be able to perform ‘…prolonged labour that involves working above shoulder level’, but in her recent report Dr Witte reported that the Applicant is ‘unable’ to perform activities above shoulder level (Exhibit R1, Annexure C).
(b)Dr Jeffs reported in June 2018 (T31, 219) that the Applicant was able to sit for
10-20 minutes, but in her recent report Dr Witte reported that the Applicant ‘needs to frequently move and change her position within a 10minute period’ [sic]. This is also inconsistent with the AAT1’s observation that ‘the Applicant was seated during the entre [sic] hearing [Tribunal note: between 10:35am and 11:30am] and did not stand or exhibit any level of significant discomfort at any time’ (Exhibit R1, 9).
Further, Dr Witte has stated the Applicant is unable to perform overhead activities and is unable to turn her head without turning her body. However Dr Witte has not provided any explanation as to how the Applicant’s lumbar spine condition causes such restrictions, which are more commonly associated with cervical spine injuries, and given that restriction to neck and head movement would not ordinarily be expected to arise from a lumbar spine condition.
The Respondent contended that greater weight should be placed on the evidence contemporaneous with the qualification period, including the reports of Dr Jeffs and
Dr Witte referred to above.
Having regard to this evidence, the Respondent has contended that the Applicant did not meet the criteria for 20 impairment points under Table 4 of the Impairment Tables, as at the qualification period, because (Exhibit R1, 8-9):
(a) the medical evidence indicates that overhead activities ‘would be difficult’ and cannot be ‘prolonged’. The Applicant gave evidence at the AAT1 hearing that she ‘cannot have her hands up at head height for too long’. There is no evidence that, during the qualification period, the Applicant was unable to perform overhead activities;
(Original emphasis.)
(b) the Applicant’s spinal condition stems mainly from her lower back (L3/4), and according to Dr Finch ‘she is able to move her cervical area’. There is no evidence to indicate that, during the qualification period, she was unable to turn her head, or bend her neck, without moving her trunk;
(c) the evidence suggests the Applicant has ‘restrictions’ with bending and is unable to complete ‘repetitive bending’, but is able to perform light cleaning tasks at her waist and retrieve light items from waist height. The Applicant gave evidence at the AAT1 hearing that ‘she is able to bend forward and pick up objects at table or kitchen bench height’ (T2/9), and the recent report of Dr Witte (Annexure C) confirms the Applicant is able to bend forward and pick up an object from a desk as long as the desk is not below waist height. There is no evidence to suggest that she was unable to bend forward to pick up a light object from a desk or table;
(d) the evidence suggests the Applicant was able to remain seated for at least 10 minutes. For example Dr Jeffs in June 2018 stated that the Applicant was not able to sit for more than 10-20 minutes; Dr Finch wrote that the Applicant’s low back pain precludes her from sitting more than
10 minutes, and Ms Wakefield observed the Applicant to sit for 15-20 minutes. The AAT1 observed that the ‘hearing commenced at 10.35am and concluded at 11.30am…[the Applicant] was seated during the entre [sic] hearing and did not stand or exhibit any level of significant discomfort at any time’ (T2,10). The more recent report of Dr Witte (Annexure C) noted that the Applicant ‘needs to frequently move and change her position within a 10 minute period’, which is not consistent with the evidence that was contemporaneous with the qualification period, nor does it suggest the applicant was unable to remain seated for that period of time. There is no evidence to suggest that, as at the qualification period, the Applicant was unable to remain seated for at least 10 minutes.
In accordance with s 11(1)(c) of the Impairment Tables, where an impairment is assessed as falling between 2 impairment ratings, ‘the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied’.
Accordingly, the Respondent contended that the impairment arising from the Applicant’s spinal condition rates a maximum of 10 points under Table 4 of the Impairment Tables.
The Respondent’s position is substantiated by the JCA and the AAT1 decision.
Condition 2 – Mental health condition
The Respondent accepted that the Applicant’s mental health condition was FDTS at the qualification period.
However the Respondent contended that the impairment arising from this condition attracts a rating of 5 points under Table 5 of the Impairment Tables, as there was only a mild functional impact on activities involving mental health function.
The Respondent contended that the Applicant cannot be assessed as having an Impairment rating higher than 5 points under Table 5, on the basis of the following evidence (Exhibit R1, 9-10):
(a)The Applicant Dr Darryl Bassett (Consultant Psychiatrist) assessed the Applicant in January 2018. At that time, under the DASS-42 questionnaire, the Applicant’s symptoms of depression were mild, symptoms of anxiety were normal, and symptoms of stress were moderate. He considered that these results were ‘fully consistent with [his] clinical examination’, and noted that ‘[the Applicant’s] self-assessment of her overall current mental state on the 010 scale, where 10= very good, was 5-6/10, whilst my own was 7/10’ (T27, 204).
(b)Dr Witte reported on 8 March 2018 that the Applicant has ‘periods of low mood, anxiety and feeling overwhelmed’ and that she ‘has described difficulties with concentration and memory which fluctuates and can significantly interfere with her studies’ (T28, 205).
(c)In the ‘Access Request – Supporting Evidence Form’ completed on
28 May 2018, Dr Witte reported that the Applicant did not currently require assistance with social interaction, although she did require support from family ‘when very depressed or anxious’. Dr Witte also reported that the Applicant often forgets to check all appliances are turned off and the house is locked before she leaves, requires the use of calendars and occasional reminders from family members about important appointments and dates, and has been provided with ‘special provisions’ by the university to assist her studies (T30,212).
The Respondent accepted that the Applicant’s mental health condition had a mild impact on the Applicant’s capacity for activities involving mental health during the qualification period. However there is no evidence to suggest the Applicant had moderate difficulties with most (i.e. at least 4) of the following activities (Exhibit R1, 10-11):
(a)self-care and independent living activities – Dr Witte reported on
28 May 2018 that the Applicant was independent with self-care and independent living activities from a mental health perspective, only requiring assistance for physical tasks (T30, 218);
(b)social/recreational activities and travel – Dr Witte reported on
28 May 2018 that the Applicant did not currently require assistance with social interaction, although she did require support from family intermittently ‘when very depressed or anxious’ (T30/217). The Applicant reported to Dr Bassett that she ‘enjoyed her studies and going to the movies, as well as undertaking the organisation of various events with friends’ (T27, 201);
(c)interpersonal relationships – the Applicant reported to the JCA assessor that ‘she has a good group of friends who she sees regularly’ (T38/288), and reported to the AAT1 that ‘her parents and her children are her support system’ and that ‘when her pain limits her ability to leave the house her friends will visit her and watch television and eat biscuits with her’ (T2, 11);
(d)concentration and task completion – despite requiring ‘special provisions’, the Applicant is able to participate in university studies which necessarily requires concentration and task completion. She reported to Dr Bassett that she ‘found examinations particularly challenging, but was able to complete assignment work effectively’ (T27, 202);
(e)behaviour, planning and decision-making – Dr Witte reported that the Applicant requires the use of calendars and occasional assistance form [sic] family members to remember important dates, but she is otherwise independent in managing her planning and decision-making (T30, 217). There is no evidence that the Applicant displays any inappropriate behaviours;
(f)work/training capacity – the Applicant has been successfully completing her studies for a Bachelor of Commerce (although she took some time off studying for an unrelated medical procedure). Other than some minor deficits in memory caused by medication there is no evidence to suggest the Applicant’s mental health impacts on her ability for work / education.
The Respondent accepted that the Applicant’s mental health condition is of a fluctuating nature. In accordance with s 11(4) of the Impairment Tables, a rating must be assigned which reflects the overall functional impact of this impairment, taking into account the severity, duration and frequency of the fluctuations. The Respondent contends that an overall rating of 5 impairment points is appropriate, taking into account the evidence outlined above and the severity, duration and frequency of the fluctuations.
Accordingly, the Respondent has contended that the impairment resulting from the Applicant’s mental health condition attracts a maximum rating of 5 points under Table 5 of the Impairment Tables.
Condition 3 – Urinary Incontinence.
The Respondent accepted that the Applicant’s urinary incontinence was fully diagnosed during the qualification period. However he contended that the Applicant’s urinary incontinence was not permanent, fully treated and stabilised, because further treatment was pending and the condition was not likely to persist for more than two years. Accordingly, the resulting impairment cannot be rated under the Impairment Tables.
Dr Witte provided a medical certificate, dated 9 August 2018 (T35, 259) in which she diagnosed the Applicant with a primary condition of ‘Urinary incontinence’, and noted that the Applicant had ‘pelvic surgery scheduled 14 September 2018’. Dr Witte also described the Applicant’s urinary incontinence as temporary, with a prognosis of 3-12 months.
The Applicant gave evidence at the AAT1 that ‘the symptoms of this condition were gone within two weeks of the procedure’ (T2, 13), and Dr Witte gave evidence that
‘the procedure [the Applicant] underwent in September 2018 was successful…’ (T2, 13).
Accordingly, the resulting impairment cannot be assigned any rating under Table 13 of the Impairment Tables.
Total impairment rating
The Respondent has contended that the Applicant had an overall impairment rating of
15 points under the Impairment Tables. The Applicant therefore does not satisfy
s 94(1)(b) of the Act.
Section 94(1)(c) – Continuing inability to work
As the Applicant does not satisfy s 94(1)(b) of the Act, it is not strictly necessary for the Tribunal to consider whether she has a continuing inability to work under s 94(1)(c) of the Act.
However, for completeness, if the Tribunal were to disagree with the Respondent in respect to whether the Applicant satisfies s 94(1)(b) of the Act (which is not conceded), the Respondent has contended that the Applicant did not have a continuing inability to work during the qualification period and does not satisfy s 94(1)(c) of the Act.
The term ‘continuing inability to work’ is defined in s 94(2) of the Act, and as at the qualification date this subsection stated:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The term severe impairment is defined in s 94(3B) of the Act, as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Original emphasis.)
Active participation in a program of support
Under s 94(2)(aa) of the Act, where a person has not been assigned 20 points under a single impairment table, the person will be required to have ‘actively participated’ in a program of support (POS). If they have not done so, they cannot be found to have a continuing inability to work.
The Respondent contended that the Applicant does not have a rating of 20 points under a single impairment table and therefore does not satisfy s 94(2)(aa) of the Act.
Under s 7(1) of the POS Determination, a person has actively participated in a POS if the person has:
(a)complied with the requirements of the program; and
(b)participated in the program during the 36 months ending immediately before the relevant date of claim; and
(c)satisfied one of subsections 7(2), (3), (4) or (5); and
(d)satisfied subsection (6).

As the Applicant lodged a claim for DSP on 18 July 2018, she must therefore have actively participated in a POS in the period 17 July 2015 to 17 July 2018.
The Department’s records show that the Applicant had participated in a POS for a total of three months and 23 days (115 days in total) before the day on which her claim for DSP was made (Exhibit R1, Annexure D; T42, 306-315) (Emphasis added.) The Applicant had therefore not actively participated in a POS for at least 18 months and did not satisfy
s 7(2) of the POS Determination.
The Respondent contended that none of the exceptions to the requirement to participate in a POS for at least 18 months as contained in ss 7(3) to (5) of the POS Determination are applicable to the Applicant. There is no evidence that the Applicant completed a POS that was less than 18 months, nor is there any evidence that the Applicant’s POS was terminated because she was unable, solely because of her impairment, to improve her capacity to prepare for, find, or maintain work through a continued participation in the POS. Further, there is no indication on the evidence that the Applicant was prevented, solely because of her impairment, from improving her capacity to prepare for, find, or maintain work through participation in a POS. The Applicant’s ability to participate in a Bachelor degree course at University during the qualification period would suggest such finding ought not be made by the Tribunal.
Therefore, the Respondent contended that the Applicant does not satisfy s 94(2)(aa) of the Act.
Capacity to work 15 hours per week in next two years
For completeness, the Respondent contended that, at the qualification period, the Applicant did not have a continuing inability to work, as she was not unable to work at least 15 hours per week within the next two years, nor was she unable to undertake a training activity (Exhibit R1, 13).
‘Work’ within the meaning of the Act means work of at least 15 hours a week at award wages or above which exists anywhere in Australia (s 94(5) of the Act).
A training activity means education, pre-vocational training, vocational training, vocational rehabilitation or work related training (including on-the-job training), whether or not that activity is designed specifically for people with impairments (s 94(5) of the Act).
The concept of continuing inability to work is not confined to a claimant’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work. It involves consideration of whether the claimant has an impairment which of itself prevents the person from undertaking any work, or which prevents the person from undertaking educational or vocational training for a period of two years
(and, if such training is not prevented by the impairment, whether such training would be likely to enable a person to undertake any work for the next two years) (see Crossland and Secretary, Department of Family and Community Services (2004) AATA 864 (Crossland)).
The Respondent noted that the phrase ‘any work’ in s 94(2)(a) ought not to be qualified to mean ‘suitable work’ (per Crossland). For example, any work does not exclude types of employment that a claimant may consider insufficiently intellectually challenging or are in his or her view insufficiently challenging (Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635, [27]).
Further, a consideration of whether a person has a continuing inability to work should be based on ‘...the person’s capacity to do the hypothesised job – rather than whether they have past experience, or actual skill in undertaking work of that particular kind’
(see Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066, [41]).
Factors that are consequential upon the person’s impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person’s continuing inability to work under s 94(2) of the Act. The only exception to this is where medical evidence indicates that the lack of motivation is directly attributable to the impairment
(see Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451).
In the process of determining whether a person has a continuing inability to work, the decision maker also must disregard the availability of work in the person’s locally accessible labour market (s 94(3)(b) of the Act) and the availability to the person of a training activity (s 94(3)(a) of the Act).
The Respondent contended that the opinion of the trained and qualified JCA assessor employed by the Department of Human Services should be accepted and preferred in relation to the Applicant’s capacity to work. The JCA assessor has taken into account the barriers and restrictions faced by the Applicant.
The JCA assessor has knowledge of labour market issues and experience in assessing the impact of medical conditions on a person’s ability to work. The JCA assessor is in the best position to properly determine the applicant’s capacity to perform any work or to undertake educational or vocational training.
In the JCA, dated 7 November 2018 (T38, 284), the JCA assessor considered that the Applicant had a future work capacity of 15-22 hours per week in the next two years with intervention. The assessor noted ‘With intervention from a Disability Employment Service Provider (Employment Support Services) to assist with identifying suitable work roles environments and with post placement support) it is anticipated that the client’s work capacity will increase to 15-22 hours per week’ (T38, 291).
This is supported by the assessment of Ms Wakefield, who identified various occupations/tasks that may be suitable for the Applicant, and noted that the Applicant is completing studies and ‘if she is successful, she will be able to enter the workforce and have the means to be self-reliant’ (Exhibit R1, Annexure A).
Prior to and during the qualification period, the Applicant was engaged as a full-time student (see for examples: T27, 201, T28, 206, T33, 251). She temporarily reduced her study load from September 2018 due to surgery for urinary incontinence (T35, 259), but the Respondent noted this reduction in study load was unrelated to the Applicant’s permanent impairments.
The Guide states at s 3.6.1.42:
A student participating in mainstream, unmodified study for 15 hours or more per week is unlikely to have a CITW. This is because the activities required for study are generally equivalent to those required to undertake work.
According to the Curtin University website, ‘full-time study at Curtin usually involves enrolling in units totalling 100 credit points or above, which means around 30 hours overall work time per week. Full-time study has a similar workload to full-time employment.’
The website also states that a full time study load is ‘equal to 75 credit points or above’ (Exhibit R1, Annexure E).
The Applicant reported to the JCA assessor that she is completing three units each semester (T38, 292), although her studies were ‘…currently on hold due to current surgery and recovery’.
The Applicant’s ability to undertake a university degree is compelling evidence that her impairments from FDTS conditions do not of themselves prevent her from undertaking a training activity within two years of the qualification period (s 94(2)(b)(i) of the Act). Therefore, she did not have a continuing inability to work or undertake a training activity, and thus s 94(1)(c) of the Act is not satisfied.
The Respondent acknowledged that the Applicant’s doctors’ have made comments in relation to the Applicant’s capacity to work.
Dr Bassett commented in his report, dated 10 January 2018 ‘I believe that there is a good chance [the Applicant] will be able to construct a new career for herself, but I expect this will be limited by her chronic pain, physical disability and vulnerability to relapses in her anxious depressive disorder.’ However he did not provide any further information about any possible limitations (T27, 204).
In his report of 8 June 2018, Dr Jeffs commented that (T27, 204):
the expected normal progression of the disease is likely to be disabling for her with respect to her ability to work and manage her daily activities... it is unlikely that [the Applicant] will be able to perform work that involves prolonged sitting for more than 10-20 minutes, standing for more than 10-20 minutes, any significant lifting of more than 10-15kg, any prolonged labour that involves working above shoulder level, and any work that involves repetitive bending and twisting (T32, 221).
Dr Jeffs went on state that it was ‘…unlikely that she will be fit for paid employment in the future’, but did not provide specific reasons for this conclusion or consider whether there may be employment opportunities that would meet the restrictions he identified

(T27, 204).
The Respondent also noted that, while Dr Witte commented in her report of 8 March 2018 ‘I believe her future work capacity will remain significantly restricted’, Dr Witte did not provide any further detail as to why or how the Applicant’s future work capacity will be restricted (T28, 207).
The Respondent contended that the Tribunal should rely on the JCA report dated
7 November 2018 over the various doctor’s statements when evaluating whether the Applicant has a continuing inability to work. The Tribunal found, in Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642 stated that:
[28] The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity.
Based on the above, the Respondent contended that the Applicant does not have a continuing inability to work and so does not satisfy s 94(1)(c) of the Act.
The Applicant’s representative stated at the Tribunal that the Respondent should have been awarded 20 points under Impairment Table 4 – Spinal Function, because she has severe functional impacts and cannot repeatedly perform the activities that are stated in the Table 4 of the Impairment Tables from (a) – (d). She acknowledged that she was not medically qualified and did not provide any new medical evidence to corroborate her assessment.
Under cross examination the Applicant confirmed that the spinal condition affects her lumber spine which is the lower back and not her cervical spine. She acknowledged that during the qualification period she was able to undertake day to day fairly normal self-care activities and was normally on a pain level of 5/6 most days.
The Applicant also confirmed that she could drive a car for 15 - 20 minutes and could sit for approximately 15 - 20 minutes. She also acknowledged that she could complete some light cleaning tasks that are waist or table height.
The Applicant confirmed that she was undertaking full time study towards a bachelor in Commerce at Curtin University at the time of the qualification period.
In response to a question asked of her, the Applicant confirmed that she agreed with her psychiatrist, Dr Basset’s description of her being ‘A person with a significant level of psychological resilience and motivation’ (T27, 204).
Consideration
The Tribunal noted the report of neurosurgeon Dr Jeffs, dated 8 June 2018 (T31, 219) in which he states at paragraph five:
I think it is unlikely that she will be able to perform work that involves prolonged sitting for more than 10-20 minutes, standing for more than 10-20 minutes, any significant lifting of more than 10-15kg, any prolonged labour that involves working above shoulder level, and any work that involves repetitive bending and twisting.
This assessment by Dr Jeffs would be considered as moderate under the impairment tables and was one month before the Applicant’s claim was lodged so it has greater relevance to the qualification period.
The Tribunal further noted that the Applicant’s functionality was assessed by the JCA assessor on 25 October 2018 (T38, 284-294), which was just after the qualification period ended. The assessment took into consideration numerous medical reports as well as information provided by the Applicant. In its final assessment the JCA assessor determined that the mental health condition (depression) was permanent, was FDTS and had an impairment rating of 5 (mild) in accordance with Impairment Table 5 and the spinal disorder was permanent, FDTS and had an impairment rating of 10 (moderate) in accordance with Table 4 of the Impairment Tables.
Other medical and allied health professional reports from Ms Wakefield, dated
3 April 2019 (Exhibit R1, Annexure A), Dr Finch dated 20 August 2019 (Exhibit R1, Annexure B), and Dr Witte dated 26 August 2019 (Exhibit R1, Annexure C) are well outside the qualification period.
At the Tribunal hearing, the Applicant acknowledged that she was able to perform tasks during the qualification period, albeit in some instances with some difficulty and where necessary with some support from her family.
The Tribunal considers that there is no corroborative evidence to state otherwise that the level of impairment for the spinal disorder is moderate and the mental health condition of depression was mild in the qualification period.
CONCLUSION
The Tribunal agrees that both the Applicant’s spinal condition and mental health condition of depression are permanent and FDTS and therefore had impairments in accordance with the Act.
Based on the evidence before the Tribunal it has been found that the Applicant’s conditions did not attract an impairment rating of 20 points under the Impairment Tables during the qualification period, nor does she have a continuing inability to work. As such, she was not qualified for DSP.
DECISION
The decision of the AAT1, dated 12 April 2019, is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

..........................[sgd]..............................................
Associate
Dated: 4 February 2020

Date of hearing: 4 November 2019

Counsel for the Applicant: Ms Julie Bloomfield

Solicitors for the Applicant: Midland Information, Debt & Legal Advocacy Services Inc.

Counsel for the Respondent: Ms Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	4 November 2019
Counsel for the Applicant:	Ms Julie Bloomfield
Solicitors for the Applicant:	Midland Information, Debt & Legal Advocacy Services Inc.
Counsel for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers