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

Jeffery and Secretary, Department of Social Services (Social services second review) [2020] AATA 3193 (27 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0908
Re:Jonathan Jeffery
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:27 August 2020
Place:Perth

The Tribunal affirms the decision under review.
.......................[sgd].................................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – qualification period – whether Applicant’s impairments attract 20 points under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c), 94(2)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth) – Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 – Table 3, Table 5, Table 12. Table 14
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
27 August 2020
Introduction

The decision under review is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 23 January 2019, to affirm the decision of an authorised review officer (ARO) of the Department of Human Services
(the Department) to reject Mr Jeffery’s claim for disability support pension (DSP).
Mr Jeffery was self-represented at the hearing which was conducted by telephone conference and gave evidence on affirmation.
Ms S Dinkha represented the Respondent.
When contacted at the listed starting time for the hearing, Mr Jeffery sounded stressed and anxious and told the Tribunal that he was about to undergo a rental inspection and was busy cleaning the house so that he could maintain his accommodation. With the agreement of the Respondent, the Tribufnal suggested a delay of two hours which
Mr Jeffery readily accepted.
BACKGROUND
Mr Jeffery was 41 years old when he lodged a claim for DSP on 9 February 2017 (T52/326-358). Mr Jeffery’s medical conditions are recorded as diabetic visual disturbance
(eye condition), diabetic foot ulcers (lower limb condition) and Attention Deficit Hyperactivity Disorder (ADHD).
On 21 December 2017, the Department rejected Mr Jeffery’s DSP claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T72/452-453).
Mr Jeffery sought review of the rejection decision, and on 17 October 2018, an ARO from the Department affirmed the decision to reject the claim for DSP (T83/484-491). The ARO found that:
(a) Mr Jeffery’s eye condition was permanent in that it was fully diagnosed, treated and stabilised (FDTS), and the resulting impairment could be assigned an impairment rating of 0 points under Table 12 of the Impairment Tables;
(b)Mr Jeffery’s lower limb condition was permanent in that it was FDTS,
and the resulting impairment could be assigned an impairment rating of 0 points under Table 3 of the Impairment Tables;
(c)Mr Jeffery’s ADHD condition was not permanent in that it was not FDTS,
and no impairment rating could be assigned to the resulting impairment;
(d)Mr Jeffery did not have a total impairment rating of 20 points or more under the Impairment Tables.
Mr Jeffery applied for first review by the AAT1 on 5 November 2018 (T2/7),
and on 23 January 2019, the AAT1 affirmed the decision to reject the claim for DSP
(T2/3-13). The AAT1 found that:
(a)Mr Jeffery’s eye condition was permanent in that it was FDTS, however the resulting impairment was 0 points under Table 12 of the Impairment Tables;
(b)
Mr Jeffery’s lower limb condition was not permanent in that it was not FDTS,

and no impairment rating could be assigned to the resulting impairment;
(c)
Mr Jeffery’s ADHD condition was not permanent in that it was not FDTS,

and no impairment rating could be assigned to the resulting impairment;
(d)Mr Jeffery did not have a total impairment rating of 20 points or more.
Mr Jeffery applied for second review by this Tribunal (T1/1-2), and in his application signed on 19 January 2019, Mr Jeffery claimed that the decision under review was wrong because:
The original application was made in February 2017 Centrelink, according to
Dr Cain, rejected the application in March 2017 but did not tell me until December 2017 Therefore [sic] making any attempt to overturn the decision futile as the application was “stale”.
I feel more than adequate proof of my medical conditions has been provided. Freedom of Information was used by me to ensure completeness of information provided to support my claim. Centrelink were provided with contact details of all my doctors yet they only spoke to my G.P. who only had limited information (T1/2).
ISSUE
The Tribunal must decide whether Mr Jeffery was qualified for DSP on the day he lodged his claim on 9 February 2017 or within 13 weeks thereafter. This requires consideration of whether the requirements set out in s 94 of the Social Security Act 1991 (the Act) are met; in particular:
(a) whether Mr Jeffery had any physical, intellectual or psychiatric impairments; and
(b) whether Mr Jeffery's impairment(s) were of 20 points or more under the Impairment Tables; and
(c) whether Mr Jeffery had a continuing inability to work (CITW).
LEGISLATION
The legislation applicable in this matter is contained in: the Act; the Social Security (Administration) Act 1999 (Cth) (the Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The statutory and policy provisions to which the Tribunal must pay consideration are detailed comprehensively in the Secretary’s Statement of Issues, Facts and Contentions (Exhibit R1, paras [21] - [31]). Section 94 of the Act sets out the first requirement for qualification for the DSP, and that is that a person had an impairment at the time they lodged their claim. In this matter, the Respondent accepts that Mr Jeffery suffered from impairments, and having regard to the medical evidence the Tribunal agrees. The second requirement for DSP is also prescribed in s 94 and provides that a person’s impairment must rate 20 or more points under the Impairment Tables at the time they lodge their claim or within 13 weeks of that date.
To apply the Impairment Tables, the condition or impairment must be considered permanent, and in the DSP context, the word ‘permanent’ does not have its usual meaning. For the purposes of the Impairment Tables, for a condition to be permanent,
it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and stabilised and must be more likely than not to last for more than two years (s 6(4) of the Impairment Tables).
There is also a requirement that an applicant for DSP must have a CITW pursuant to
s 94(1)(c) of the Act. For DSP qualification, both the minimum qualifying threshold of
20 impairment points under the Impairment Tables and the CITW criteria must be met and are of equal importance.
The relevant policy is contained in the Guide to Social Security Law (the Guide). To ensure consistency in decision making, the Tribunal should follow the relevant policy unless there are cogent reasons for departing from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
EVIDENCE
The Tribunal had before it the following evidence:
·the ‘T Documents’ (T1-T91, pp 1-584);
·the ‘Supplementary T Documents’ (ST1-ST8, pp1-31);
·Applicant’s submissions including six attachments (Exhibit A1);
·Respondent’s Statement of Issues, Facts and Contentions dated 21 August 2019, including Annexure A (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
The Respondent contends that Mr Jeffery did not qualify for DSP during the qualification period because he did not have a total impairment rating of 20 points or more under the Impairment Tables; he did not have a ‘severe impairment’ and did not satisfy the requirement to have ‘actively participated’ in a program of support (POS); and he did not have a CITW (Exhibit R1, para 10).
Qualification period
Mr Jeffery lodged his claim for DSP on 9 February 2017. The claim must be assessed on his medical conditions as at the date of claim or within 13 weeks of that time, and that period is referred to as the qualification period. In the present case that means that the qualification period is 9 February 2017 until 11 May 2017.
The Respondent relevantly cites a number of authorities (Exhibit R1, paras 17-19) which establish that medical reports that have 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, and that a decision-maker such as this Tribunal can only consider an applicant’s qualification for DSP within the qualification period. If the applicant’s circumstances have subsequently changed it may be appropriate for him or her to lodge a fresh claim for DSP
Mr Jeffery’s oral evidence
Mr Jeffery provided oral evidence in addition to his written submissions (Exhibit A1).
His evidence with respect to his particular conditions will be detailed where appropriate in the Tribunal’s considerations below. Mr Jeffery also told the Tribunal that:
(a)He was offered DSP under the previous government in 2011 because his irritable bowel syndrome had persisted for some time;
(b)He suffered a bleed in his brainstem in January this year resulting in a stroke, and was also experiencing heart problems and other complications which have arisen in the last six months (Transcript p6-7);
(c)At the present time he was visiting his general practitioner once or twice a week and had been doing so since the qualification period. He thought it ridiculous that he had been assessed as having zero impairments points despite these visits and the provision of 300 pages of information. He suggested that fiscal reasons were behind the refusal of his DSP claim (Transcript pp19, 24).
(d)When he submitted his DSP claim in 2017 his ills were a lot less than they are now, but that he submitted the claim because he knew they were going to get worse (Transcript p17).
Whether Mr Jeffery has 20 points or more under the Impairment Tables
Eye condition
The Respondent accepts that Mr Jeffery’s eye condition was FDTS during the qualification period and contends that the resulting impairment from his eye condition attracted a maximum of 0 points under Table 12 of the Impairment Tables (Exhibit R1, para 34).
Having regard to the medical evidence, the Tribunal agrees that Mr Jeffery’s eye condition was FDTS at the qualification period. In its assessment of impairment under Table 12 – Visual Function, the Tribunal has regard to the following evidence:
(a)A Royal Perth Hospital Patient Care Plan dated 7 December 2015 records that
Mr Jeffery did not use contact lenses or glasses (T38/261-277);
(b)in a report dated 15 February 2017, Dr Saksham Gupta, ED Medical Officer, recorded that Mr Jeffery had previously had a vitrectomy and laser treatment,
and that he had normal visual field bilaterally and normal eye movements and sensation (T76/462);
(c)in a report dated 22 February. 2018, Dr Yasheer Haripersad, Opthalmology Resident, recorded that Mr Jeffery’s visual acuity was 6/9 unaided bilaterally as at
8 December 2017 and that his right eye tractional vitreous haemorrhage temporarily reduced his quality of vision but was successfully treated with a right eye vitrectomy. Dr Haripersad also noted: ‘Recent visual fields have not been recorded and if reduced, may impact on this patient’s ability to work or study’ (T78/466);
(d)in a report dated 16 October 2018, completed on behalf of Dr Mimi, Medical Officer - Ophthalmology Department of Royal Perth Hospital, it was reported that she had not met with Mr Jeffery, but the hospital's records indicate Mr Jeffery’s eyesight
‘was deemed good such that he could return to normal duties/ activities’ and that there were no indications of light sensitivity requiring visual aids. Dr Mimi further recorded that Mr Jeffery’s left eye was ‘slightly blurry but still ok’, noting that no further treatment was planned but Mr Jeffery could visit his optometrist to determine if any blurred vision may be improved with glasses, however, due to the nature of the condition, glasses may not be of benefit (T81/475);
(e)the Job Capacity Assessment (JCA) report dated 16 October 2018 records that
Mr Jeffery reported he does not use visual aids, noting for example they were not required for driving (T82/479). The JCA report records that Mr Jeffery reported his diabetes is now well managed with medication and lifestyle changes, however,
he is at risk of eye complications developing again in future (T82/477).
The Job Capacity Assessor determined that the impairment caused to Mr Jeffery by this condition attracts 0 impairment points under Table 12, on the basis of ‘"typical” presentation with the acknowledgment that Mr Jeffery sometimes experiences more significant impairment’ (T82/479-480);
(f)Professor Ian McAllister, Professor of Ophthalmology, reviewed Mr Jeffery on
26 May 2019 and in the associated report dated 18 June 2019, records that
Mr Jeffery has some slight field restriction from laser eye treatment that he underwent and that his visual acuity is 6/7.5 in the right eye and 6/9 in the left eye (ST3/3). However, Professor McAllister’s review was conducted more than two years after the end of the qualification period and his report does not refer to
Mr Jeffery’s condition as it was during the qualification period. The Tribunal is unable to use Professor McAllister’s report in determining an impairment rating for the functional impairment caused by Mr Jeffery’s eye condition.
(g)In a report dated 29 July 2019, Dr Olufemi Taiwo, general practitioner, verifies that
Mr Jeffery has several conditions including proliferative diabetic retinopathy, and that these conditions are chronic, long standing, were present in 2017 and require lifelong treatment (ST6/6). Dr Taiwo does not describe the functional impairment caused by this condition as at the qualification period in 2017, and therefore this report does not assist the Tribunal in determining the appropriate impairment rating for any impairment caused by this condition during the qualification period.
(h)Mr Jeffery told the Tribunal that his eyes are under constant management by
Royal Perth Opthalmology, with his most recent visit being earlier this after a bleed in his left eye. He said that his left eye bleeds about once every six months resulting in him not being able to read anything (Transcript p17). Mr Jeffery said that he used reading glasses for small print and things like food labels. He said that he bought the glasses in 2015 or 2016 at the suggestion of Professor McAllister and that they were not prescription glasses, rather ‘an ugly pair of glasses that are horn-rimmed’ (Transcript p22). Mr Jeffery confirmed that he did not need visual aids for driving (Transcript p26).
There is no medical evidence that Mr Jeffery meets any of the descriptors required for a
5 point or higher impairment rating as at the qualification period. The medical evidence would need to show that Mr Jeffery could perform most day to day activities involving vision and had mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following descriptors applied:
(a)the person has some difficulty seeing the fine print in newspapers or magazines
(e.g. they have to hold the print further away or use brighter light);
(b)the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;
(c)when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;
(d)the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight); and
(e)the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.
The Tribunal accepts Mr Jeffery’s evidence (see paragraph [21] above) that he uses glasses to see fine print and read food labels, but these glasses are not prescribed and there is no medical evidence that glasses have been prescribed or recommended as being necessary by an appropriately qualified practitioner.
On the basis of the material before it, the Tribunal is unable to assign more than zero impairment points under Table 12 – Visual Function.
ADHD condition
The Respondent accepts that Mr Jeffery’s ADHD condition was fully diagnosed as at the qualification period, however, contends that this condition was not fully treated and stabilised as Mr Jeffery had not undertaken reasonable treatment at that time (Exhibit R1, para 50).
On the basis of the evidence before it, the Tribunal agrees that the ADHD was fully diagnosed.
In its further consideration of Mr Jeffery’s ADHD, the Tribunal first reviews medical evidence pre-dating the current DSP claim:
(a)the JCA report dated 8 September 2010 records that: ‘Jonathon [sic] also suffers from ADD/ADHD which he self manages with medication condition with medication. Jonathon [sic] reports taking himself off Dexamphetamine when he finds them ineffective and recommences when he feels he requires them again’ (T6/159-160);
(b)A further JCA report dated 18 April 2011 notes that Mr Jeffery experienced impaired concentration, hyperactivity and impulsivity when this condition is not controlled by medication. The JCA records Mr Jeffery reporting that he self-medicates by taking Dexamphetamine only when he feels he requires it for functional tasks such as during work and appointments and he has not seen his psychiatrist for over a year in regards to medication management as he cannot afford the consultation fee.
The JCA advised Mr Jeffery on the importance of medication management (T8/164);
(c)In a medical report dated 14 March 2011, Dr Taiwo recorded a diagnosis of
‘ADD, borderline ADHD’ and included ‘regular Psychiatric review’ when detailing past, present and planned treatment (T12/183);
(d)In a DSP medical report dated 11 November 2011, Dr Morenikeji Komaiya,
general practitioner, recorded the future/planned treatment for Mr Jeffery’s ADHD condition as medication and review by a psychiatrist (T13/187);
(e)The JCA report dated 16 November 2011 records that Mr Jeffery reported he has not seen his psychiatrist for over a year in regards to medication management as he cannot afford the consultation fee. The JCA noted ‘nil planned’ for future treatment, and advised Mr Jeffery on the importance of medication management.
The JCA concluded that this condition could not be assessed as FDTS as
Mr Jeffery ‘uses his medication only as he sees fit and may gain better management of symptoms with using medication as prescribed and psychological counselling’ (T14/193);
(f)The JCA report dated 24 July 2012 records the current treatment for Mr Jeffery’s ADHD as ‘self administered ceased’ and that Mr Jeffery reported he has not seen a psychiatrist for over two years and he was only taking his Dexamphetamine when he felt he needed it (T19/208);
(g)A Royal Perth Hospital Patient Health Assessment form completed by Mr Jeffery on 7 December 2015 lists one of his health conditions as ‘ADHD —not on medication’ (T38/265);
(h)Mr Jeffery lodged his claim for DSP on 9 February 2017, and the Tribunal now has regard to medical evidence at and after the qualification period;
(i)in a report dated 17 March 2017, Dr Taiwo notes in relation to the prognosis for
Mr Jeffery’s ADHD condition ‘anticipated improvement with specialist intervention’ and that Mr Jeffery ‘has been referred to a specialist for this condition’ (T58/377).
(j)The JCA report dated 20 March 2017 records that Mr Jeffery reported that he is under the care of a psychiatrist through the public health system. This report also records that the JCA spoke with Dr Taiwo on 17 March 2017 and he indicated that Mr Jeffery was still seeing a specialist for his ADHD condition and was now more compliant with his treatment (T59/380). During the hearing Mr Jeffery demanded the name of the public health psychiatrist, and when told that the name was not detailed in the JCA report, responded: ‘If you haven’t got a name, it didn’t happen’ (Transcript, p13);
(k)The JCA report dated 16 October 2018 records that Mr Jeffery reported that he had not seen his psychiatrist for a few years in regards to medication management because he cannot afford the consultation fee and because he had developed some coping strategies rather than medication. Mr Jeffery did not report any current psychological intervention. The JCA concluded that the ADHD condition could not be assessed as FDTS on the basis that Mr Jeffery: ‘uses his medication only as he sees fit and when he can afford it and may gain better management of symptoms with using medication as prescribed and with psychological counselling and with psychological counselling’ (T82/478);
(l)In a report dated 20 June 2019, more than two years after the end of the qualification period, Dr Roger Paterson, psychiatrist, records that: ‘Jonathan returned to see me after a break of 11 years during which time he came off his dexamphetamine medication for his Attention Deficit Hyperactivity Disorder (ADHD), but unfortunately his inattention and inefficiency has continued’. Dr Paterson also records that
Mr Jeffery’s mental state examination was unremarkable and that Mr Jeffery was seeing a psychologist to help with stress and mood difficulties. Dr Paterson states that he provided Mr Jeffery with psychoeducation and suggested that he join ADHD WA. Dr Paterson noted a review in six months (ST5/5).
(m)In the same report, Dr Paterson reported that he will recommence Mr Jeffery on Dexamphetamine 5 mg tablets, noting that he has given him a Pharmaceutical Benefits Scheme (PBS) authority prescription for 200 pills with three repeats to last for six months (ST5/5). The Tribunal notes that Mr Jeffery’s PBS records and Medicare claims history records for the period 9 February 2012 to 9 February 2017 show that he was not prescribed any medication for a psychological condition, including ADHD, during this period (ST7/7-17).
(n)The AAT1 decision dated 23 January 2019 records that Mr Jeffery told that Tribunal that as his general practitioner cannot prescribe his ADHD meditation and he has not seen his treating psychiatrist for at least a year prior to the AAT1 hearing due to the cost of the consultation, his access to the medication, which he uses sparingly to help with his ADHD symptoms, is compromised (T2/9). The decision also notes that
Mr Jeffery ‘believes that it would be almost impossible for him to arrange for psychiatric assessment and review at a public hospital psychiatric service’ (T2/9).
The JCA report dated 20 March 2017 records that, at that time, Mr Jeffery reported being under the care of a psychiatrist through the public health system (T59/380),
and there is no evidence to indicate why Mr Jeffery ceased engaging with this psychiatrist (as noted above, before this Tribunal, Mr Jeffery denied this engagement).
(o)Mr Jeffery told the Tribunal that he has suffered from ADHD his entire life, but that in his continuing engagement with his healthcare professionals, ADD/ADHD was his least important concern (Transcript p20). In response to Dr Paterson’s 20 June 2019 report (ST5/5) discussed above, Mr Jeffery told the Tribunal that he saw
Dr Paterson ‘in the mid-2000s initially’ and remained a patient of his ‘forever’ (Transcript p31). In response to Dr Paterson’s statement that Mr Jeffery had come off his dexamphetamine medication in the 11 years prior to June 2019, Mr Jeffery told the Tribunal: ‘I didn’t come off it…I was taking them as and when I needed them…
I had 500 spare tablets and I kept them on hand if I needed them at any time’ (Transcript p32).

With respect to reasonable treatment for ADHD, the Respondent relevantly submits as follows:
The National Institute for Health and Care Excellence, Attention deficit hyperactivity disorder: diagnosis and management’ [sic] guidelines, endorsed by the Royal Australian & New Zealand College of Psychiatrists, states that Dexamfetamine [sic] is an appropriate pharmacological treatment for adults with ADHD and that medication to treat ADHD should be reviewed at least once a year. These guidelines also state that non-pharmacological treatments should be considered for adults who have decided not to have medication, including (as a minimum), a structured supportive psychological intervention focused on ADHD and regular follow-up.
The Guidelines note that treatment may involve elements of or a full course of Cognitive Behavioural Therapy (CBT) (Exhibit R1, para 53).
(Footnotes omitted.)
As this submission was not disputed, the Tribunal accepts it.
While Dr Paterson’s report dated 20 June 2019 is well outside the qualification period,
it confirms that Mr Jeffery was not compliant with his prescribed medication for his ADHD condition during the qualification period and that further treatment was required and ongoing (ST5/5). The Tribunal has regard to Mr Jeffery’s financial circumstances, however considers that there is no medical or other compelling reason for Mr Jeffery’s failure to consistently engage in the recommended treatment for this condition.
The evidence is that over an extended period, Mr Jeffery has self-medicated with respect to this condition. Although Mr Jeffery told the Tribunal he was taking medication during the qualification period, it was only according to his perceived needs at the particular time.
Mr Jeffery’s personal views as to the requirement for and efficacy of treatment is not a compelling reason to refuse treatment that has been recommended by treating practitioners.
Having carefully considered the considerable material before it, the Tribunal finds that
Mr Jeffery’s ADHD condition was not fully treated and stabilised as at the qualification period, and therefore an impairment rating cannot be assigned to any impairment arising from this condition.
Lower limb condition
The Respondent accepts that Mr Jeffery’s lower limb condition was FDTS during the qualification period and the resulting impairment can therefore be rated under the Impairment Tables. However, the Respondent contends that during the qualification period, Mr Jeffery’s functional impairment from his lower limb condition attracted a maximum of zero points under Impairment Table 3 – Lower Limb Function (Exhibit R1, paras 40-42).
Having regard to the medical evidence, the Tribunal agrees that Mr Jeffery’s lower limb condition was FDTS as at the qualification period. In its assessment of impairment under Table 3 – Lower Limb Function, the Tribunal has regard to the following:
(a)a Royal Perth Hospital Patient Care Plan dated 7 December 2015, records an admission to the hospital due to an ulcer on the ball of his left foot and notes that
Mr Jeffery was ambulant and did not require the use of a walking aid (T38/261).
In a Patient Health Assessment of the same date, Mr Jeffery indicated that he does not have difficulty walking up and down stairs, that he does not need assistance to walk or require the use of a walking aid, and that he has no problems with mobility (T38/270);
(b)In outpatient notes dated 12 April 2017, Dr Jennifer Daniel, podiatrist, records that Mr Jeffery had last been seen in podiatry outpatients on 21 December 2016 and he reported that he saw a private podiatrist, Steve Burton, every two months.
Dr Daniel recorded that Mr Jeffery was insensate to 5.07 monofilament in the lower third of his lower legs and distally, had a callus and reported recurrent tinea pedis. Dr Daniel reported giving Mr Jeffery advice about appropriate footwear and managing and preventing tinea pedis (ST8/27);
(c)In a medical report dated 27 September 2017, Dr Daniel records that Mr Jeffery attended for a six monthly foot review and ‘reports recurrent tinea pedis that he treats promptly and with effect’ (T71/451). In the associated outpatient notes of the same date, Dr Danie recorded that Mr Jeffery reported that he had not gone back to see his private podiatrist as his ‘feet seem alright’ (ST8/27);
(d)In a further report dated 8 February 2018 (the day before Mr Jeffery submitted his DSP claim), Dr Daniel reports that Mr Jeffery does not have any current active lesions, has not had an active ulcer for over a year and will now be discharged from her services (T76/464);
(e)The JCA report dated 16 October 2018 records that Mr Jeffery told the assessor that he has been ulcer free for two years and has ongoing podiatry reviews every
10 weeks for maintenance; he does not require the use of walking aids; and he is able to stand for more than 10 minutes and is able to independently walk up stairs (T82/479);
(f)The JCA report also records Mr Jeffery’s advice that his diabetes is now well-managed with medication and lifestyle changes, however, he is at risk of foot ulcers developing again in future (T82/477). The JCA report notes that Mr Jeffery’s functional impacts ‘are rated here on the basis of his ‘typical’ presentation with the acknowledgement that he sometimes experiences more significant impairment’.
The JCA report concludes that Mr Jeffery’s diabetic foot ulcers have nil functional impact on lower limb function (T82/479).
(g)An EPC Report by Health Link dated 22 May 2019, more than two years after the qualification period, records that Mr Jeffery presented for routine nail and skin care and a diabetic foot assessment. The report states that: ‘Mr Jeffery has been identified as a HIGH RISK DIABETIC PATIENT’ (ST2/2) (Original emphasis.) However, this report is restricted to describing Mr Jeffery’s lower limb condition as it was in May 2019, and does not reference the qualification period. Accordingly,
any functional impairment described in this report cannot be taken into account in assessing the functional impairment caused by this condition as at the qualification period. A similar exclusion applies to the report by Dr Olufemi Taiwo dated
29 July 2019, which records that Mr Jeffery has numerous conditions,
including ‘high risk feet issues’, and that these conditions are chronic, long standing and were present in 2017 (ST6/6). However, Dr Taiwo does not describe the functional impairment caused by this condition in 2017 during the qualification period.
In his oral evidence during the hearing, Mr Jeffery provided little information additional to the written material before the Tribunal in relation to this condition. Rather, he expressed concern about the likelihood of the condition worsening with the potential for significant future functional impact. Mr Jeffery said: ‘If I stand on something and it goes through my foot and I don’t feel it, it could turn septic and I could lose my foot as a result…’
(Transcript p19). Mr Jeffery confirmed that he did not need a walking stick, but ‘might well need to, or something worse than a walking stick, if something goes through my foot because I can’t feel it’ (Transcript p27). He also told the Tribunal that not needing a walking stick did not mean that he did not have difficulty walking (Transcript p37).
In order for Mr Jeffery to satisfy the requirements for a mild functional impact on activities using the lower limbs (5 impairment points) under Table 3 - Lower Limb Function,
the medical evidence would need to demonstrate that he meets the relevant descriptors which are:
(1)At least one of the following applies:
(a)   the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(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
(T3/48).
In relation to the descriptors under Table 3 – Lower Limb Function (1) above, there is no evidence that Mr Jeffery had difficulty walking to local facilities or walking around a shopping mall or supermarket without a rest. The medical evidence and Mr Jeffery’s oral evidence discussed above confirm that he was able to independently walk up stairs. Turning to the descriptors under Table 3 – Lower Limb Function (2), the Tribunal notes that Mr Jeffery does not have a lower limb prothesis. The evidence shows that at the qualification period, Mr Jeffery was able to stand for more than 10 minutes and was able to mobilise effectively without the need of a walking stick. It follows that Mr Jeffery’s impairment does not satisfy the requirements for a mild functional impact.
For completeness, the Tribunal considered the evidence against the descriptors for a moderate functional impact (10 impairment points) under Table 3. The Tribunal is satisfied that on the material before it, Mr Jeffery as at the qualification period does not meet the requirements for a rating of 10 impairment points. Consequently, the Tribunal finds that
Mr Jeffery’s lower limb condition attracts zero impairment Table 3.
Tinea pedis
In a medical report dated 27 September 2017, Dr Daniel, podiatrist, records that
Mr Jeffery ‘reports recurrent tinea pedis that he treats promptly and with effect’. Dr Daniel also recorded that she advised Mr Jeffery on tinea pedis treatment, including preventative strategies to reduce reoccurrence (T76/463) (paragraph [32(b)] and [32(c)] above also refer to this). This condition is not mentioned in the JCA report dated 16 October 2018 (T82).
In the absence of further medical evidence, the Tribunal is unable to determine whether this condition was FDTS during the qualification period. Accordingly, an impairment rating cannot be assigned to any impairment arising from this condition under Impairment Table 14 – Functions of the Skin.
Other conditions – Irritable Bowel Syndrome and Hypertension
The Respondent accepts that Mr Jeffery’s irritable bowel syndrome was fully diagnosed as at the qualification period, however contends that there is insufficient evidence to determine whether this condition was fully treated and stabilised during the qualification period
(Exhibit R1, para 57).
Mr Jeffery told the Tribunal that treatment for the irritable bowel syndrome required tablets at some point, but they did not work ‘and, in the end, what helped it was a change of diet.’ He also said that his continence function was improved but not brilliant (Transcript p16).
Irritable bowel syndrome is not mentioned in the JCA report dated 16 October 2018 (T82). The Tribunal agrees that this condition was fully diagnosed as at the qualification period, but there is insufficient medical evidence to determine whether the condition was fully treated and stabilised such that an impairment rating could be assigned to any related functional impact arising from it.
The Respondent contends that there is insufficient evidence to determine whether
Mr Jeffery’s hypertension condition was FDTS during the qualification period, and that accordingly, under the Rules, an impairment rating cannot be assigned to any impairment arising from this condition (Exhibit R1, para 58). Having regard to the material before it,
the Tribunal agrees.
Overall impairment rating
The Tribunal finds that at the qualification period Mr Jeffery had an overall impairment rating of zero points under the Impairment Tables and therefore does not satisfy
s 94(1)(b) of the Act.
CITW
As Mr Jeffery does not satisfy s 94(1)(b) of the Act, it is not strictly necessary for the Tribunal to consider whether he has a CITW pursuant to s 94(1)(c) of the Act.
For completeness, the Respondent contends that Mr Jeffery did not have a CITW during the qualification period (Exhibit R1, para 61). The Respondent’s contention relies on detailed submissions at paragraphs [62]–[79] of Exhibit R1, which the Tribunal accepts.
The Tribunal particularly notes the evidence that Mr Jeffery had not completed the required
18 months of active participation in a POS having only completed approximately 13 months (Exhibit R1, Annex A), and the JCA report dated 16 October 2018 which assessed
Mr Jeffery as having a future work capacity within two years with intervention of 15-22 hours per week in light, semi-skilled work (T82/481).
CONCLUSION
For the reasons detailed above, the Tribunal finds that Mr Jeffery’s conditions do not attract an impairment rating of 20 points or more under the Impairment Tables.
Therefore, Mr Jeffery was not qualified for DSP as at the qualification period and the decision to reject his claim for DSP was the correct and preferable decision.
The Tribunal and the Respondent consider that in the present proceedings, Mr Jeffery presented as a very honest witness (Transcript p39). The Tribunal notes Mr Jeffery’s contentions that his medical conditions have worsened since he lodged the present claim, and is sympathetic to Mr Jeffery and his complex medical conditions. It is open to Mr Jeffery to again test his eligibility for DSP with recent relevant medical evidence from the medical practitioners responsible for the treatment and management of his conditions.
DECISION
It follows from all of the above that the Tribunal affirms the decision under review,
that being the decision of the Social Services & Child Support Division of the AAT made on 23 January 2019.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner,
AM LVO (Retd), Member

.........................[sgd]..........................................
Associate
Dated: 27 August 2020

Date of hearing: 29 June 2020

Applicant: In person

Counsel for the Respondent: Ms Sarah Dinkha

Solicitors for the Respondent: Services Australia

[2020] AATA 3193

27 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	29 June 2020
Applicant:	In person
Counsel for the Respondent:	Ms Sarah Dinkha
Solicitors for the Respondent:	Services Australia