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

[2021] AATA 2989

JQGF and Secretary, Department of Social Services (Social services second review) [2021] AATA 2989 (17 August 2021)

Division:GENERAL DIVISION

File Number(s):      2019/3055

Re:JQGF

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member G Hallwood

Date:17 August 2021

Place:Adelaide

The decision under review is set aside and the matter is sent back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the direction that:

The Applicant’s claim for Disability Support Pension (‘DSP’) is to be reassessed on the basis that he satisfies paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) and has done so since the date of claim. This means that, subject to all other requirements of the Act being met, the Applicant is eligible to receive DSP from the date of the claim, and the application is successful.

...........................[Sgnd]..................................

Member G Hallwood

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, fully treated and stabilised during the qualification period – whether applicant’s conditions stabilised – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Ulukut and Secretary, Department of Social Services [2014] AATA 399

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Member G Hallwood

17 August 2021

BACKGROUND

1. The Disability Support Pension (“DSP”) is an income support payment for people with disabilities preventing them from working at least 15 hours per week.

2. On 5 September 2018 JQGF (the “Applicant”), then aged 16, lodged a claim for DSP (the “Claim”).[1] The Claim listed the following conditions that significantly affect his ability to work:

   a)Chronic renal failure;

   b)26% kidney function;

   c)Posterior urethral valves;

   d)Damaged, thickened hard bladder;

   e)Low blood pressure; and

   f)Salt waster.

   [1] Exhibit R11, T8, pp 107-140.

3. In addition to the Applicant’s kidney related conditions listed on the Claim, there is also evidence before the Tribunal, as was before Centrelink, that he was suffering from psychological conditions including anxiety prior to the Claim.[2]

   [2] Ibid, T16, p 204 and p 215.

4. Centrelink rejected the Claim on 23 November 2018[3] and on 18 March 2019 an Authorised Review Officer (“ARO”) found the decision to reject the Claim was correct.[4]

   [3] Ibid, T14, p 184.

   [4] Ibid, T7, p 100.

5. On 15 May 2019, the Social Security and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) affirmed the decision to reject the Claim because they were not satisfied that the Applicant could be assigned 20 points on a single Impairment Table and he had not participated in a program of support.[5]

   [5] Ibid, T2, pp 6-15.

6. On 3 June 2019, the Applicant lodged an application for review with this Tribunal.[6] This application was heard on 28 February 2020 and the Applicant appeared before the Tribunal by telephone.

   [6] Ibid, T1, pp 1-5.

7. The Tribunal has before them T-Documents and a Statement of Facts, Issues, and Contentions from the Respondent, as well as a further bundle of documents containing medical reports and related Centrelink documents, also filed by the Respondent. Prior to the hearing, the Applicant lodged with the Tribunal two medical reports, one each from Dr Ken Jureidini and Dr Paul Vaska.[7] The Tribunal’s decision has regard to this documentary evidence as well as the oral evidence given at the hearing.

   [7] See Annexure A.

8. The Applicant requested that his mother be allowed to support him during the hearing and also appear as a witness. This raised a procedural issue for the Tribunal as there was potential for his mother to be exposed to the evidence provided by the Applicant in advance of the evidence she gave. This approach is contrary to the one usually taken in the Tribunal where witnesses would generally be asked to leave the room when another witness is giving evidence, as not doing such may give rise to issues of procedural fairness toward the Respondent, as well as the potential to reduce the weight afforded to the evidence of the Applicant. It was agreed between the parties, however, that the mother could provide her evidence, which related largely to a history of the Applicant’s conditions, prior to the Applicant’s evidence whilst the Applicant remained in the room. The Tribunal is satisfied that procedural fairness was afforded to the parties in this matter and that the Applicant was able to receive the support he required from his mother.

   ISSUES

9. The issues which arise in this case are:

   a)Does the Applicant have an impairment?;

   b)If yes, does the Applicant’s impairment attract a rating of 20 points or more under the Impairment Tables?; and

   c)If yes, does the Applicant have a continuing inability to work?

10. At the time of the hearing, evidence supports that the Applicant has a permanent and severe impairment. As will become evident, it is the timing of the permanence of the Applicant’s severe condition that is critical to his success in this matter.

    Relevant rules

11. To medically qualify for DSP, a person must meet the qualification criteria set out in ss 94(1)(a) to (c) of the Social Security Act 1991 (“the Act”):

    94 Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (a)    the person has a physical, intellectual or psychiatric impairment; and

    (b)    the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)    one of the following applies:

    (i)the person has a continuing inability to work;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…

12. The requirement in s 94(1)(c)(ii) is not necessary if a person has a severe impairment of 20 points or more under a single table (“Impairment Table”) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Determination”).

13. To qualify for DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks (“the qualification period”), as set out in Schedule 2 cl 4(1) of the Social Security (Administration) Act 1999 (“the Administration Act”).

14. Medical evidence, such as reports or certificates, that are produced after the qualification period are only relevant to a claim for DSP to the extent that they provide evidence or corroborate the claimant’s condition during the qualification period.[8]

    [8] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

15. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[9], Member Breen said at [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) … 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.”

    [9] [2012] AATA 922.

16. With respect to consideration of functional impact, the purpose of the Impairment Determination must be appreciated. In Ulukut and Secretary, Department of Social Services,[10] Senior Member Isenberg explained:

    “The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.”

    [10] [2014] AATA 399, [5].

17. Section 94 of the Act requires that the person have a continuing inability to work which will be satisfied if:

    a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

    b)They have actively participated in a “program of support”.

18. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

19. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination).

20. The Tribunal’s responsibility is to assess the Applicant’s eligibility for the DSP and decide the matter afresh, as opposed to reviewing the earlier decision for error (Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68).

    
    CONSIDERATION

21. At the time of the hearing the Applicant was 17 years old.

22. When he was five months old the Applicant was diagnosed with posterior urethral valves (“PUV”), a condition he was born with. His medical history indicates that his condition is relatively severe and has resulted in several other medical conditions associated with PUV. He lives with his mother in a semi-rural town of approximately 3,000 people about 60 kilometres from Adelaide.

23. The Applicant’s mother provided a brief overview of his medical history from her perspective. She said that his PUV had caused him to have deteriorating kidney function which was declining more rapidly in his late teens. His blood becomes toxic increasing his risk of heart attacks. She said his bladder thickened as he got older causing him stress and anxiety. He also suffered from rectal bleeding. He was referred to a psychiatrist at the Women’s and Children’s Hospital when he was ten years old. His mother describes how he was distressed from a very young age, his mind worrying about his health conditions, and one urologist stating in front of him that he could die as a result of his conditions.

24. It was also pointed out by his mother that the stress of his conditions also impacted her, causing her to have a mental health breakdown over a period of five years.

    
    Issue 1 – Does the Applicant have an impairment?

25. In order to be considered for DSP it is necessary that the Applicant have a physical, intellectual, or psychiatric impairment.

26. There are medical reports before the Tribunal dating from 2005 through to 2019 describing the impairments resulting from his diagnosed physical conditions.

27. The Respondent does not dispute, and the Tribunal is satisfied on the basis of medical reports, that he has both physical and psychiatric impairments. For that reason, the Tribunal finds that he satisfies the first criterion set out in s 94(1)(a) of the Act.

    
    Issue 2 - Does the Applicant’s impairment attract a rating of 20 points or more?

28. The second requirement for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables. The level of impairment the Tribunal is to assess is that at the time of lodging the Claim or within 13 weeks of doing that. The claim period in this case is from 5 September 2018 to 5 December 2018. The Tribunal cannot consider medical problems or developments that have arisen after that time. Such issues can only be addressed by a new claim.[11]

    [11] Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley at 473 [31].

29. For a condition to be assigned an impairment rating under the Impairment Tables the condition must be considered permanent.[12]

    [12] Subsections 6(3) and (4) of the Impairment Determination.

    Are the Applicant’s conditions permanent?

30. A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[13]

    [13] Subsections 6(5), (6) and (7) of the Impairment Determination.

31. Once a condition has been fully diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[14]

    [14] Subsection 6(4) of the Impairment Determination.

    Psychiatric conditions

32. The Applicant has suffered from anxiety related to his kidney conditions for many years. His mother says that since he was about ten years old he has ruminated about the impact of his kidney conditions and on occasions slept at the foot of her bed on pillows because he was struggling to go to sleep in his own room. As a young child the Applicant heard urologists say things like ‘if your son is not catheterised he will die’. Several years ago, he had seen two psychiatrists at the Women’s and Children’s Hospital; one was the brother of his paediatrician Dr Ken Jureidini who has treated the Applicant with hypnotherapy, and another who the mother recollected was named Con but she could not recall his surname. The Applicant also received psychotherapy more recently from an accredited mental health social worker, Ms Tina Fitzgerald, which the Applicant found helpful.

33. Dr Kellett, paediatric neurologist, in a renal outpatient report dated 11 April 2018 notes anxiety issues around loss of kidney function.[15]

    [15] Exhibit R11, T16, p 204.

34. Dr Paul Vaska, GP, in a report dated 12 December 2018 states that the Applicant suffers from anxiety.[16]

    [16] Ibid, p 215.

35. In determining whether a condition is fully diagnosed, the Introduction to Table 5 sets out in relation to Mental Health Function:

    “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).”

36. While the Tribunal is satisfied that the Applicant suffers from mental health conditions that impact his life and ability to work, there is no diagnosis before the Tribunal from a psychiatrist, or from a medical practitioner informed by evidence from a clinical psychologist.

37. For this reason, the Tribunal is unable to find that he has a permanent condition or assess the Applicant against Table 5 – Mental Health Function.

    Kidney conditions

38. The majority of the Applicant’s physical conditions relate to his kidney and genitourinary system including: chronic renal failure and reduced kidney function, damaged and thickened hard bladder, and salt waster.

39. Specialist medical reports dating from 2005, when the Applicant was 3 years old, describe his: bilateral hydronephrosis and posterior urethral valve disorder.[17]

    [17] Separation Report of 7 October 2005 by Doctor Hock Tan, Exhibit R11, T16, p 203.

40. The Secretary does not dispute that the Applicant’s kidney conditions were permanent, that is: fully diagnosed, fully treated and fully stable within the claim period.

41. In a letter dated 12 July 2019, well outside the claim period, Dr Paul Vaska stated: “[the Applicant] has been diagnosed since birth with reflux nephropathy from posterior urethral valves. He has hypertonic bladder which results in incontinence at times. His condition is congenital and will affect him for the rest of his life. His ability to lead a normal life and gaining employment are restricted.”

42. Having considered the medical evidence, and in particular the Women’s and Children’s Hospital Renal Outpatients Report recording services from 11 April 2018 until 25 May 2018[18], the Tribunal is satisfied that these kidney conditions were permanent at the time of the claim on 5 September 2018.

    [18] Exhibit R11, T16, pp 204-206.

43. For this reason, the Tribunal has decided to assess the functional impairment resulting from the Applicant’s permanent kidney and genitourinary conditions.

44. Where a single condition causes multiple losses of function, more than one Table may be used, but impairment ratings for the same impairment must not be assigned under more than one Table.[19]

    [19] Subsection 10(3) and 10(4) of the Impairment Determination.

45. A rating can only be assigned in accordance with the points specified in each Table (subsection 11(1) of the Impairment Determination). Section 10 of the impairment Determination sets out what is to be considered when selecting the appropriate Table to apply. Where a single medical condition causes multiple losses of function, more than one Table may be used (subsections 10(3) and 10(4) of the Impairment Determination).

46. The kidney / genitourinary conditions the Applicant suffers from results in functional impairment when he is performing activities requiring physical exertion or stamina. For this reason, the Tribunal is satisfied it is to be assessed using Table 1 – Functions requiring Physical Exertion and Stamina.[20] These conditions also have an impact on the Applicant’s continence function which is assessed using Table 13 – Continence Function.

    [20] Part 3 of the Impairment Determination.

47. The Tribunal will first consider the continence functions under Table 13.

    Table 13 – Continence Function

48. Table 13 is used where the person has a permanent condition resulting in functional impairment related to incontinence of the bladder or bowel. The Tribunal has reproduced relevant components of Table 13 below.

5

There is a mild functional impact on maintaining continence of the bladder or bowel.

(1)        At least one of the following ((a), (b), (c), (d), (e) or (f)) applies:

Bladder

(a)        the person has minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) at least once a day but not every hour;

(b)        the person has urgency (e.g. has to get to a toilet very quickly and has difficulty ‘holding on’ to urine) or has occasional (at least weekly) loss of control of the bladder;

(c)        the person has difficulty passing urine (e.g. has to strain or has restricted flow of urine or has difficulty emptying the bladder);

Bowel

(d)        …

Continence aids

(f)         …

10

There is a moderate functional impact on maintaining continence of the bladder or bowel.

(1)        At least (2), (3) or (4) applies.

Bladder

(2)        The person:

(a)        has minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) several times each day; and

(b)        in respect of continence of the bladder has difficulties that result in interruption to tasks, work or training on most days.

Bowel

(3)        …

Continence aids

(4)        …

1. Oral evidence from the Applicant’s mother included statements describing that his hard bladder causes the Applicant to suffer from reflux which washes urine back into his kidneys creating damage to his posterior urethra valves. This results in him either not being able to urinate, or dribbling urine unexpectedly throughout the day. He is meant to be catheterised but has not been for the last couple of years because the infection risk would mean his kidney function would deteriorate more rapidly. The Applicant wears dark trousers because he regularly experiences minor leakage and such coloured clothing causes him less embarrassment.

2. The Applicant’s evidence was in accord with the evidence of his mother in relation to his continence function. The Applicant stated:

   ‘Some days I leak more than others. Like, when I have spurts of it, I find that the days I leak less are the days I leak more in a single spurt’…

   ‘It does happen when I sneeze, I do notice that. But sometimes I will be normal, and I will kind of feel like a sensation and be like, ah. Yes. And that’s the times when it kind of comes out a bit heavier’…

   ‘When you go to school and you have that happen to you, it’s - I’m kind of like trapped at my school when I get there, unless I get my parents to pick me up’…

   ‘I always wear black pants when I go to school’.

1. The Introduction to Table 13 relevantly states:

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

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

   oA report from the person’s treating doctor;

   o…

   oA report from a medical specialist, particularly in cases of moderate or severe incontinence, (e.g. urogynaecologist, gynaecologist, urologist, gastroenterologist) confirming diagnosis of conditions commonly associated with incontinence…,

   oTo avoid doubt, for descriptors in this Table relating to a person’s symptoms affecting co-workers, a descriptor can apply even if the person does not work (that is, where the descriptor is likely to apply if the person did work).

2. A ‘Review of Carer Payment and Carer Allowance – Medical Report’ by Dr Ken Jureidini, paediatrician, dated 21 April 2015, states that the Applicant required urinary catheterisation several times each day, and that he needed personal care for a significant period every day because he has a major bladder obstruction which needs regular emptying to avoid further damage to his already compromised kidneys.

3. A Carer Payment Medical Report[21] by Dr Paul Vaska, GP, dated 19 March 2018 provides that the Applicant is ‘incontinent or catheterised and unable to manage his bladder’ (where this relates to more than once a day), and in terms of toilet use ‘needs some help but can do some things alone’. 

   [21] Exhibit R3.

4. Dr Kellett in a renal outpatient report dated 11 April 2018 noted significant proteinuria and that the Applicant voids 1-3 hourly sometimes double voiding.

5. The Job Capacity Assessment Report dated 23 November 2018 states: ‘Given the symptomology of the client’s condition it would be reasonable to expect that due to the emergency and urgency of urination that he would have interruption to tasks, work or training on most days. Client reported that he requires frequent breaks at school and is frequently absent due to treatment demands’.

6. The Tribunal is satisfied, based on the medically corroborated evidence, that the Applicant has minor leakage from his bladder in the form of ‘drops’ or ‘spurts’ several times a day, and in respect of his continence of the bladder, has difficulties that result in interruption to tasks and schoolwork both in frequency of interruption and time spent voiding on most days.

7. For these reasons the Tribunal finds there is a moderate functional impact on maintaining continence of the Applicant’s bladder and allocates 10 points from Table 13.

   Table 1 – Functions requiring Physical Exertion and Stamina

8. Table 1 – Functions requiring Physical Exertion and Stamina is used where a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion and stamina. Moderate and severe functional impact descriptors are set out below.

10

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

(1)        The person:

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

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

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

(b)        is able to:

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

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

20

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

(1)        The person:

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

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

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

(iii)       use public transport without assistance; or

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

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

1. As will be seen from the evidence below, the difficulties facing the Tribunal in this matter are:

   ·that the Applicant’s condition deteriorated rapidly in the lead up to, and following, the lodgement of the Claim complicating the identification of functional impact at the time of the Claim or within the Claim period;

   ·there is also a lack of detailed corroborative medical evidence detailing the functional impact of his conditions on activities requiring exertion or stamina at the date of the Claim or within the Claim period; and

   ·some of the evidence relating to the functional impact at the date of the Claim appears to conflict.

2. The Introduction to Table 1 relevantly states:

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

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

   oA report from the person’s treating doctor;

   o…

   oA report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue, exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure … or other long-term conditions where treatment cannot sufficiently control symptoms)

   o…

   Oral evidence

   Evidence from the Applicant’s mother

3. The Applicant’s mother described his condition as declining over time and having a huge impact on his life. The Applicant was very ill when he was first diagnosed at five months of age and had already lost half of his kidney function. His condition remained like that until he was in his teens. He applied for DSP when his condition was deteriorating, and his condition has declined further since then. The Applicant’s mother told the Tribunal that it is not clear whether he can have a transplant because his bladder is hardened. As a transplanted kidney will also deteriorate in function, the doctors leave the option of a kidney transplant until a point where his current kidney function has reached a requisite level of deterioration, in order to maximise the life of each kidney. Doing so despite the Applicant’s current quality of life being sub-par with his current kidney.

4. The Applicant has rectal bleeding and needs to spend quite a while on the toilet. He has low blood pressure so cannot take the medication that can help preserve the kidneys, Perindopril, as it reduces his blood pressure further and makes him pass out. His diet does not allow him to eat vegetables and only allows minimal dairy.

5. The Applicant’s mother told the Tribunal her son did not go shopping with her at the time the Claim was lodged as he never had the energy. When asked to describe what happened when she took her son to a hospital she answered that he would walk from the car park to the hospital and after the appointment back to the car but that afterwards he would be exhausted for the next three days. It was like that whenever he did anything.

6. In relation to schooling, the Applicant’s mother said that the Applicant was originally supposed to attend year 10 two to three days a week but that he was not capable of maintaining this level of attendance. If he had a medical appointment on one day, then he was too exhausted to attend school on the other days – he just couldn’t get out of bed. On top of being exhausted, he also had anxiety and depression for which he was treated with hypnotherapy. At the time of his application for DSP he had reduced his schooling to one day a week but in fact attended less than that as he often had to be collected from school early. He caught a school bus into school. The school bus stops on the nearest main road to pick the Applicant up as is done for other school children on country school bus runs. He would rarely make it through the day. He would end up in the sick room and need to be picked up; sometimes at the end of the day, sometimes halfway through, and sometimes early in the morning. It got to the stage that the school would email the work through to the Applicant at home as he did not have the stamina to attend school daily, despite wanting to. In 2018 when he was doing schoolwork at home, he would do it in bed, probably up to an hour, and then he would have to sleep. The Applicant’s mother said that she would print and bring the schoolwork in to him.

7. The Tribunal was told that the Applicant describes himself as the “watcher of the house” and that this role is all he does; all he can do. He does no housework. At the time of the Claim in 2018 he would spend between 80% and 85% of the day in bed. The Applicant’s mother said on the occasions he is able to leave the house he gets trapped wherever he goes. He never has the energy to go shopping. When he has an [medical] appointment, he is totally exhausted and his exhaustion lasts for the next few days; it takes everything he has to attend. The Applicant’s mother said that he has slept for three days following an appointment.

8. The Applicant’s mother told the Tribunal that on New Year’s Eve 2018 she tried to convince the Applicant to attend a party he had been invited to. She was willing to wait in the car around the corner to bring him home when he needed to leave, even if it were just an hour. The Applicant did not have the stamina to do that.

   Evidence from the Applicant

9. The Applicant presented to the Tribunal as a mature, genuine, and credible witness. He described his medical conditions as being debilitating throughout his life and that they had gradually deteriorated up until just before he lodged his Claim, and from then his condition deteriorated rapidly.

10. The Applicant described himself as not really having a life. He spends more than 80% of his time in bed – only getting out of bed to watch a movie and eat with the family. If not eating with the family, he would be in bed eating dinner on his own. Otherwise he would only get out of bed to use the toilet, to shower, or to get something to eat or drink: even then, most of the time, he would use his phone to call his mother to ask her to bring him a bite to eat. He struggles to have a shower for 15 minutes to wash his hair. He says playing a computer game, even in bed, is too taxing for him. He is able to watch funny videos on YouTube without being exhausted but that is about all. He said that at the time of lodging his claim he was able to go out with friends approximately every four to six months, but that at the time of this hearing he had not been to a friend’s house in over a year.

11. The Applicant stated that he is able to stay at his brother’s house on occasion, about every 3 months, to escape from his own bed. He watches his brother play video games occasionally there when he is not sleeping. He is too exhausted to return home on the same day.

12. In relation to his ability to attend school, the Applicant stated that he had tried to attend school two days a week but that he only managed that for one week. He would start school at recess, then do only one of the two lessons between recess and lunch. He stated that he could stay for one lesson or one and a half, then go back to the sick room or be picked up. He was hardly in the classroom and spent most of his time in the sickroom. Sometimes he would be dropped off at school and when he caught the bus his friend would walk him to the bus stop and give him an energy drink. If he went to school by bus, he would have to sleep for the 40-minute journey. He would not last a whole day at school.

13. Describing his study in 2018, the Applicant said that while there was a study space set up at home for him to use, he did not use it. His teachers would send through the work by email. His mother would print it off and bring it into his bedroom and he would do work in his bed. He stated that he could work for an ‘hour-ish tops’ then he would need a nap which would vary in length from one to seven hours – most often about four hours.

14. The Applicant told the Tribunal that he struggles for breath if he walks and talks at the same time. Sometimes he struggles just talking. He described suffering from cardiac pain while talking on the phone but was unsure whether that was because of anxiety or because of his kidney condition or both.

15. Last time he was in the car with his mother at a shopping centre, the Applicant stayed in the car because he was unable to get out. He struggles on the occasions he has to go to hospital, firstly it is a struggle to get out of bed, and then he struggles to have a shower – he is fatigued getting dressed, then he sleeps in the car, then he often sleeps in the waiting area of the hospital. He told the Tribunal that he has fallen asleep even when his doctor is talking to him. On returning home from the doctor’s visit he needs to sleep even if it is mealtime; he is too exhausted to eat and will have to eat later.

    Medical Evidence

    Dr Ken Jureidini report – 21 April 2015

16. On 21 April 2015, Dr Ken Jureidini, paediatrician, provided a ‘Review of Carer Payment and Carer Allowance – Medical Report’ in relation to the Applicant. He described the Applicant as having a condition that may significantly reduce his life expectancy. The Applicant’s condition is permanent and not improving and has a requirement for extra care and attention of more than 14 hours per week resulting from chronic renal failure and ineffective bladder emptying.

    Dr Paul Vaska report – 19 March 2018

17. On 19 March 2018, Dr Paul Vaska, the Applicant’s GP, provided a Carer Payment Medical Report.[22] This report contains the GP’s views of the Applicant’s capacity to perform certain functions of daily living. The report also indicates the Applicant’s behaviours sometimes show signs of depression, memory loss, withdrawal from social contact, aggression toward himself or others, and disinhibited behaviour.

    Dr Sally Kellett’s report – 11 April 2018

    [22] Exhibit R3.

18. Dr Sally Kellett, paediatric nephrologist at the Women’s and Children’s Hospital, reported on the Applicant’s condition from 11 April 2018.[23] She stated that the Applicant had presented two days earlier at the Lyell McEwin Hospital with chronic rectal bleeding and it was incidentally found that his creatinine had increased (from 153 to 234 mcmol/l). Dr Kellett noted that the Applicant had no urinary symptoms, no recent history of urinary tract infections, no wetting issues, and that he did double void sometimes. He ‘sometimes needs an afternoon nap (but will often go to sleep at night after midnight, sometimes 5am)’. Dr Kellett also recorded that the Applicant had increased exercise recently, push ups, sit ups, and using the bike.

    [23] Exhibit R11, T16, pp 204-206.

19. Dr Kellett’s impression was that there was ‘significantly reduced function since last review [6 May 2015], likely chronic and associated with pubertal growth but also has been unwell and exercising more. He had significant proteinuria and hyperparathyroidism.’

20. Repeat blood tests on 26 April 2018 showed further worsening of creatinine (from 234 to 249 mcmol/l). A further blood test on 24 May 2018 demonstrated creatinine had further increased to 287 mcmol/l. Dr Kellett’s report indicates the hospital was robustly and immediately attempting to re-engage with the Applicant and his mother to allow for the necessary preparation to start renal replacement therapy. The report also discusses the tenuous rapport the Women’s and Children’s Hospital staff have with the Applicant’s mother and the limitations that places on their open discussion with her and with the Applicant.

    Dr Imasha Perera report – 6 September 2018

21. In the report dated 6 September 2018 (within the Claim period), Dr Perera, GP, describes the Applicant’s medical condition and states: ‘he has physical and dietary restrictions due to his medical condition and requires close monitoring’ but the report does not detail the Applicant’s restrictions.

    Dr Paul Vaska report – 12 December 2018

22. Dr Paul Vaska’s report of 12 December 2018 (one week beyond the Claim period), describes the Applicant’s deteriorating renal function and states: ‘his symptoms of tiredness and lack of concentration and blackouts can be related to his kidney disease’. The report also states that the Applicant’s renal function was now less than half of normal and worse than it was when last tested at the Women’s and Children’s Hospital in May 2018.

    Other medical and work capacity information

    Job Capacity Assessment Report – 23 November 2018

23. A face to face Job Capacity Assessment (“JCA”) report completed by a registered nurse on 23 November 2018 looks specifically at the functions requiring physical exertion and stamina in relation to the Applicant’s kidney disorder.[24]

    [24] Ibid, T15, pp 189-197.

24. Of particular relevance to this matter are the contemporary responses in relation to the Applicant’s function during this assessment. The report indicates the Applicant:

    a)In relation to performing day to day activities:

    i)   reported that he is always tired and that walking 10 minutes (to a friend’s house) causes him fatigue; and

    ii)     reported that he has frequent naps, particularly if he has been at school all day.

    b)In relation to transport and walking capacity:

    i)   Reported that he catches a school bus to and from school and that his mother drives him to and from appointments and interviews.

    c)In relation to performing work related tasks of a clerical, sedentary, or stationary nature:

    i)   Reported that he attends school full-time but requires frequent breaks at school and is frequently absent due to treatment demands.

25. This report recommends a rating of 10 points in relation to Table 1 – Functions requiring Physical Exertion and Stamina.

    Ms LR letter – 1 April 2019

26. On 1 April 2019 (some four months outside the Claim period), Ms LR, Head of Middle School at the Applicant’s high school and one of the Applicant’s teachers, provided a report that describes some of the Applicant’s functional capacity in terms of schoolwork.[25]

    [25] Ibid, T17, p 225.

27. In terms of capability, Ms LR describes the Applicant as: very intelligent and capable, having undertaken a ‘Doorways to Construction’ course as part of his Year 11 program; doing his best to catch up; meeting the criteria for home schooling; and planning his week so that he can rest at home to have enough energy to get through one day a week of school.

28. In terms of functional restrictions, Ms LR describes the Applicant as: being severely hampered by his physical illness; often exhausted and finds concentrating at school very difficult; often becomes overwhelmed and the stress that his illness puts him in is clearly evident; very worried about his prognosis which plays on his mind a great deal; having reduced to one day a week at school; being prone to illness and his body taking a long time to recover from minor injuries; and, requiring further supports to complete his SACE and ensure a pathway following school.

    Applying Table 1

29. Subsection 7 of the Impairment Determination sets out information that should be taken into account, as well as the information that should not be taken into account, when applying the Impairment Tables:

    ·the information provided by the health professionals specified in the relevant Table;

    ·any additional medical or work capacity information;

    ·any information that is required to be taken into account, including that specified in the introduction to each Table; and

    ·a person may be asked to demonstrate abilities described in the Tables.

1. Subsection 8 of the Impairment Determination sets out information that must not be taken into account in applying the Tables:

   ·symptoms reported by a person in relation to their condition for which there is no corroborating medical evidence; and

   ·the impact of non-medical factors.

2. On the sworn oral evidence of the Applicant and his mother, at the time of lodging the Claim the Applicant usually experienced fatigue when performing light physical activities. He was unable to walk around a shopping centre or supermarket and it had been a long time since he had done so. The Applicant was unable to walk from the car park into a shopping centre or supermarket without assistance, although could attend medical appointments including at hospitals, walking from the carpark to the facility, and could walk five minutes to the school bus stop with some level of support from his friend. In both instances, the Applicant would be so fatigued he would require immediate rest or sleep in the bus or the waiting room of the hospital. While able to catch the school bus that was not reliant on him reaching a public bus stop, the Applicant was unable to catch public transport without assistance. The Applicant attended school one day a week, but the Applicant was only able to sustain about one to one and a half hours of sedentary schoolwork continuously without needing to rest, and frequently had to be collected from school early having spent much of the time in the sick room.

3. The sworn evidence indicates the Applicant meets each of the criteria required for a severe functional impact on activities requiring physical exertion or stamina. This evidence does not appear to accord with the details of the JCA report of 23 November 2018 which records that the Applicant was attending school full-time and was able to use public transport without assistance. Dr Kellett’s report of 11 April 2018 also records that the Applicant had increased his exercise regime and that while the Applicant needed an afternoon nap, he would often go to sleep after midnight, sometimes 5am. Ms LR’s letter of April 2019 indicates that the Applicant had been reduced to one day a week at school but does not state when that was from.

4. The Applicant was invited to comment on these potential disharmonies in the evidence. He told the Tribunal that the school bus stops specifically for him on the dirt road near his house, there is no bus stop there. He is fatigued walking to the place where he is picked up from and riding on the bus. He said his friend, who no longer attends school but understands his limitations, accompanies him to the bus stop. He does no chores around the house and finds it taxing to have a shower. He stated in relation to going to sleep after midnight and sometimes at 5am: that his naps could be for a few hours and he would often wake at 4pm, then sleep again and wake at 7pm, then nap for four hours and wake up some time after midnight. The Applicant explained that a nap for him is like a sleep for most people. The Applicant stated that his exercise had increased at about the time he saw  Dr Kellett in April 2018 and that he was trying to do about 15 push ups and 15 sit ups because he was getting chubby from spending so much time in bed. In relation to schooling, the Applicant stated that he was only attending school one day a week even though he was still registered as full time. He attended about four days in total in 2019 so 2018 was effectively his last year at school although he is still enrolled. The Applicant told the Tribunal that he had not been very open with Dr Kellett about his condition and that he and his mother viewed the medical team at the Women’s and Children’s Hospital as ‘terrible’.

5. The Tribunal is not satisfied that the functional impact on activities requiring physical exertion or stamina caused by the Applicant’s kidney conditions were moderate as described in the JCA report. Based on the Applicant’s responses to questioning about differences between his oral evidence and the evidence that differed from his oral evidence, the Tribunal is satisfied that the Applicant’s description of his condition is correct and he was severely impacted when performing activities requiring physical exertion or stamina. The next question is whether this is corroborated by the medical evidence.

6. Corroborating evidence includes a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue. Dr Kellett’s report, as do other specialist reports from the Women’s and Children’s Hospital, confirms a diagnosis of posterior urethral valves leading to significantly increased creatinine and severely declining renal function.[26] These conditions are commonly associated with extreme fatigue. Dr Vaska, as the Applicant’s GP, states: “His symptoms of tiredness and lack of concentration and blackouts can be related to his kidney disease”.[27] In this instance the Tribunal is satisfied that this level of medical corroboration is adequate to meet the requirements contained in the Impairment Determination at the time of the application because of the undisputed severity of a condition that is commonly associated with extreme fatigue.

   [26] Ibid, T16, pp 199-206.

   [27] Ibid, T16, p 215.

7. Although it is only necessary for an applicant to meet one of the criteria contained in item 1(a) as well as item 2 of the ‘severe’ category of Table 1, the Tribunal in this case is satisfied that the Applicant meets all of the criteria for there to be a severe functional impact on activities requiring physical exertion or stamina, and allocates 20 points under Table 1.

8. A person whose impairment is not a severe impairment is required to have actively participated in a program of support.

9. As the Applicant has a severe impairment he is not required to have participated in a program of support.

   Issue 3 – Does the Applicant have a continuing inability to work?

10. The test for a continuing inability to work is whether a person’s medical conditions prevent them working 15 hours per week in whatever type of work suits them best given their medical problems.

11. The JCA report dated 23 November 2018 notes that the Applicant’s condition impacts directly on endurance and physical stamina[28] and that his ‘ability to function is unlikely to improve despite treatment interventions and the [Applicant] will gradually require more intensive treatment (dialysis or transplant) as the condition worsens’[29]. Despite this, the JCA report identifies a baseline work capacity of 8-14 hours capacity per week building to 15-22 hours per week with intervention. The report identifies light, less skilled work as suitable, and continued access to treating health professionals (GP and Nephrologist) and intervention from a Disability Employment Services – Employment Support Services (DES-ESS) provider to assist with identifying suitable work roles/environments, developing suitable duties plans (i.e. tasks assigned and rostered days), providing work experience programs to increase work conditioning, providing workplace assessments and making appropriate workplace modifications, and providing post placement support; anticipating that this would enable the Applicant to better manage their capacity for work and be able to undertake 15-22 hours per week.

    [28] Ibid, T15, p 193.

    [29] Ibid, T15, p 190.

12. A report detailing the Applicant’s medical history, dated 9 September 2019, by Dr Ken Jureidini, paediatrician, who has been seeing the Applicant since he was 5 months old, describes the Applicant as beginning to show ‘gradual deterioration with tiredness and lethargy three years ago and this has accelerated in the past year’, his condition now constituting a significant disability.

13. The Tribunal has previously identified (paragraph 75) that the severity of the effects of the Applicant’s conditions on his ability to function weighed against the requirements of Table 1 had been underestimated.

14. Given the severity of the Applicant’s starting point at the time of his application, and the medical evidence recognizing that his functioning was worsening significantly, as well as his own testimony that he has to sleep following one to one and a half hours of sedentary work, the Tribunal is not satisfied that the Applicant would be in a position, even with the supports recommended in the JCA report, to achieve a work capacity of 15 hours within the next two years from the date of the lodgement of his claim.

15. The Tribunal finds that the Applicant’s permanent conditions prevent him from undertaking educational, vocational, or on-the-job training which would enable him to perform alternative work of 15 hours a week within two years. He, therefore, has a continuing inability to work and satisfies paragraph 94(1)(c) of the Act.

16. The Applicant, therefore, satisfies all parts of subsection 94(1) and qualifies for DSP subject to all other requirements of the Act being met.

    DECISION

17. The decision under review is set aside and the matter is sent back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the direction that:

    (a)The Applicant’s claim for DSP is to be reassessed on the basis that he satisfies paragraphs 94(1)(a), (b) and (c) of the Act and has done so since the date of claim. This means that subject to all other requirements of the Act being met, the Applicant is eligible to receive DSP from the date of the Claim and this means the application is successful.

    I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for the decision herein of Member Hallwood.

    
    ...........................[Sgnd]................................

    Legal Administrative Assistant

    Dated:   17 August 2021

Date of hearing:

28 February 2020

Advocate for the Applicant:

Applicant’s mother

Advocate for the Respondent:

Lee-Anne Odgers

Services Australia

ANNEXURE A

EXHIBIT LIST
Exhibit Number	Lodged by	Description of Document
A1	Applicant	Letter from Dr Paul Vaska dated 12/07/2019
R1	Respondent	Carer Payment and Needs assessment received 7 June 2010
R2	Respondent	Carer Payment - Medical Report received 26/06/10
R3	Respondent	Carer Payment and/or Carer Allowance Medical Report - Centrelink 19/03/18
R4	Respondent	Renal Outpatient's Report
R5	Respondent	Final V1 Separation Summary, Dr Khurana admission date: 30/01/14
R6	Respondent	Renal Outpatients report - Dr Imasha
R7	Respondent	Final V1 Separation Summary, Dr Khurana admission dated: 6/5/16
R8	Respondent	Clinical Notes from Dr Sally Kellett
R9	Respondent	Respondent's SOFIC including Annexure Bundle: A) letter from Dr Jureidini B) POS Calculations extract from the Guide to Social Security Law C) DSP Assessment of continuing Inability to Work
R10	Respondent	Women's and Children Hospital Adelaide - Fax from Dr Jureidini
R11	Respondent	T - Docs Bundle T1 - T17 pg 1-228
R01	Respondent	Child Disability Allowance - Centrelink form
R02	Respondent	Review of Eligibility for Carer Allowance - Centrelink form
R03	Respondent	Carer Payment and/or carer allowance medical report - Centrelink form
R04	Respondent	Carer Payment and/or Carer Allowance CARE NEEDS ASSESSMENT form
R05	Respondent	Review of Carer Payment and/or Carer Allowance CARE NEEDS ASSESSMENT form
R06	Respondent	Review of Carer Payment Form dated 21/4/15
R07	Respondent	Review of Carer Payment and Care Allowance - Medical Report
R08	Respondent	Review of Carer Payment and Carer Allowance - Medical Report (for a child under 16 years) -Centrelink form
R09	Respondent	Kensington Park Medical Practice – [Applicant’s mother] contact report