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

Kahsay and Secretary, Department of Social Services (Social services second review) [2021] AATA 4346 (2 November 2021)
Division:GENERAL DIVISION
File Number: 2020/4465
Re:Wolday Kahsay
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Date:2 November 2021
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 2 July 2020, which affirmed a decision of a delegate of the Respondent, made on 9 October 2019, to reject the Applicant’s claim for disability support pension, is affirmed.
..................[Sgd]......................................................
Member M East
CATCHWORDS
SOCIAL SECURITY – pension, allowances and benefits – disability support pension – whether the applicant met eligibility requirement for disability support pension – qualification period – assigning impairment ratings – whether the applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables – Impairment Table 2 – Upper Limb Function – shoulder pain – neck pain – Impairment Table 12 – Visual Function - reduced vision – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991(Cth) – ss 23(1), 26, 94, 94(1), 94(1)(a), 94(1)(b), 94(3B)
Social Security (Administration) Act 1999(Cth) – s Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 6, 6(4), 6(5), 6(6); Table 2, 12
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
McGillivary and Secretary, department of Social Services [2021] AATA 1509
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Member M East
2 November 2021
INTRODUCTION

The decision under review is a decision of the Administrative Appeals Tribunal, Social Services & Child Support Division (the AAT1), dated 2 July 2020 (the Reviewable Decision). The Reviewable Decision affirmed an earlier decision made by the authorised review officer (the ARO) of Department of Human Services, now called Services Australia (the Centrelink) dated 9 October 2019, which rejected the Applicant’s claim, lodged on 15 May 2019, for a disability support pension (the DSP).
BACKGROUND
The Respondent summarised the relevant facts in the Statement of Issues, Facts and Contentions dated 16 October 2020 (SIFC) as follows:
5.The Applicant is presently 62 years old [date of birth omitted].
6.On 15 May 2019, the Applicant lodged a claim for DSP with Services Australia with reference to neck, shoulder and pupil conditions (T18/163).
7.On 19 August 2019, a Job Capacity Assessment (JCA) was conducted and the results recorded in the report dated 13 September 2020[1] (T24/177).
8.On 4 September 2019, the Applicant’s claim for DSP was rejected (T22/174).
9.On 9 October 2019, following a request for review, an ARO affirmed the decision to reject the Applicant’s claim for DSP (T27/190).
10.The Applicant sought review of the ARO’s decision by the AAT1, and in a decision dated 2 July 2020 the AAT1 affirmed the decision to reject the Applicant’s claim for DSP (T2/9).
11.On 21 July 2020, the Applicant lodged an application for second review with this Tribunal (T1/1).
(Original emphasis.)
[1] The Tribunal notes that the Job Capacity Assessment Report is dated 13 September 2019.
ISSUE BEFORE THE TRIBUNAL
The issue in this matter is whether the Applicant was qualified for the DSP on the day he lodged his claim or within 13 weeks thereafter. The claim for DSP was lodged with Centrelink on 15 May 2019, and consequently the period for assessing the Applicant’s eligibility is from 15 May 2019 till 14 August 2019 (the Qualification Period). The Tribunal relies on the ARO’s decision and the Department’s records to ascertain the Qualification Period.[2]
[2] Exhibit R1,190–203.
This includes the assessment of whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments; if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and whether the Applicant had ‘a continuing inability to work’.[3]
[3] Social Security Act 1991(Cth), s 94.
TRIBUNAL PROCEEDINGS
The application was heard by the Tribunal on 15 September 2021. The Applicant was self-represented, and the Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers.
The Applicant gave oral evidence with the assistance of an interpreter at the hearing and was cross-examined by Ms Jones-Bolla.
The Tribunal had the following material before it:
·section 37 T-Documents consisting of T1-T38, pages 1-264 (Exhibit R1);
·the Respondent’s SIFC, dated 16 October 2020 including Annexures (Exhibit R2);
·report of Dr Bowden, dated 1 September 2020 (Exhibit A1);
·further report of Dr Bowden, dated 1 September 2020 (Exhibit A2);
·report of Dr Bowden, dated 18 June 2020 (Exhibit A3);
·report of Dr Kang, dated 17 August 2018 (Exhibit A4);
·report of Platinum Physiotherapy, dated 15 July 2019 (Exhibit A5);
·report of Recovre, dated 22 August 2018 (Exhibit A6);
·a copy of Radiology Reports, dated 23 September 2017 (Exhibit A7);
·letter of an Appointment for an ophthalmic injection, dated 9 August 2020 (Exhibit A8).
LEGISLATIVE FRAMEWORK
The Tribunal is required to consider the provisions of the Social Security Act 1991 (Cth) (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 (Cth) (the Impairment Tables); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Tribunal is also able to have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).
Section 94 of the Act contained the qualification criteria for DSP and states in part:
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; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis; notes omitted.)
The term “severe impairment” is defined under s 94(3B) of the Act as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Original emphasis; notes omitted.)
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
(Notes omitted.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim and states in part:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Further, in McGillivray and Secretary, Department of Social Services [2021] AATA 1509 Senior Member Evans-Bonner states:
20.To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” analysis of the evidence before it (s 5(2)(b) of the Impairment Tables). This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal. Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor and medical specialists.
…
23.The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 (Gallacher), 7[26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the Court concerning the operation of these important provisions.

It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
HISTORY OF THE APPLICANT’S CLAIM
The Applicant suffered a workplace injury on 10 November 2016. A ‘WorkCover WA - FIRST certificate of capacity’ was provided by Dr Pavic on 17 July 2017. He certified the Applicant as having ‘some capacity for work’ on ‘modified or alternative duties’ for the next seven days. The Applicant’s diagnosis was of ‘[l]eft shoulder strain’ and the clinical findings were:[4]
Painful arc and painful flexion and extension of left shoulder. Requires MRI to determine of injury as likely injured AC joint from fall with residual secondary rotator cuff injury occurring overtime from the impingement. Review post MRI.
[4] Exhibit R1, 119–120.
An ultrasound guided left shoulder injection was performed.[5] The Applicant was also referred for a CT scan of his cervical spine with the clinical details noted as ‘[p]ain with radiation into the arms’.[6]
[5] Ibid 121.
[6] Ibid 122.
Dr Pavic did not provide any further reports, however, Dr Jarrett, an Orthopaedic and Hand Surgeon, on referral from Dr Pavic, on 28 March 2018 reported as follows:[7]
Whilst clearly he does have some pathology and he probably has had a degree of capsulitis and bursitis and acromioclavicular joint arthropathy on the left, his response to injections has been somewhat limited. As per the conversation we had via telephone today, personally I think that further injections in his shoulder are unlikely to be fruitful and I am of the opinion that operative intervention would be the wrong way to go for his shoulders and I would be surprised if it was ultimately useful to him.
Therefore I have returned him to our[8] care although of course I would be happy to assist if you feel it would be helpful in the future.
[7] Ibid 128.
[8] The Tribunal notes the use of ‘our’ in the final sentence. Given the context of the letter, it appears this is an oversight and should read ‘your’.
The Applicant provided various medical reports to the Tribunal, including physiotherapy reports and reports from his general practitioner, Dr Bowden.
A report from Platinum Physiotherapy, dated 15 July 2019, notes the Applicant’s referral with objective examination findings revealing pain at rest in the left side of his neck, shoulder and thoracic region; a decreased range of motion of his left glenohumeral joint; and pain on right cervical rotation. The Applicant’s treatment consisted of ‘soft tissue mobilisation, joint mobilisation, education, exercise’.[9]
[9] Exhibit A5.
A ‘CLOSURE REPORT’, dated 22 August 2018, was provided by Recovre rehabilitation providers. The report notes that on 10 May 2018, Dr Pavic certified the Applicant as fit for his full pre-injury duties and noted that no further treatment could be provided to the Applicant. Recovre were instructed to close their file with the Applicant on 22 August 2018. The report further states that all attempts to develop a suitable return to work program for the Applicant were unsuccessful prior to this time.[10]
[10] Exhibit A6.
As an annexure to their SIFC, the Respondent provided a form outlining details of a lump sum compensation payment received by the Applicant. The form confirms that the Applicant ceased receiving weekly payments of compensation on 25 August 2018 for his injury dated 10 November 2016. A total gross lump sum settlement amount of $160,000 was paid to the Applicant on 18 May 2020.[11]
[11] Exhibit R2, Annexure B.
The Applicant’s treating general practitioner, Dr Bowden, states in his report, dated 1 September 2020:[12]
I can confirm that Wolday is a patient of this clinic. He has suffered from chronic pain in the neck, back and both shoulders which prevents him from returning to work. He has struggled to manage this despite a prolonged rehabilitation effort to get him back to work.
His condition is related to substantial degenerative muscle and tendon pain in the shoulders but also to degeneration of his neck and lower back joints and discs. These musculoskeletal conditions have not resolved and are ongoing.
It is not likely to improve.
[12] Exhibit A1.

In his report dated 18 June 2020, Dr Bowden states: “I can report that he [the Applicant] has been unable to work for more than 2 years. He was unable to work as a result of his significant neck and shoulder pain”.[13] Dr Bowden also refers to the Applicant’s problems with his vision and a diagnosis of diabetes.
CONSIDERATION
[13] Exhibit A3.
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?
The Respondent has conceded that at the date of claim, 15 May 2019 and during the Qualification Period, the Applicant suffered from impairments due to his various conditions.[14]
[14] Exhibit R2, 6[25].
Having reviewed the medical and other evidence presented, the Tribunal finds that the Applicant suffered from the following impairments:
(a)shoulder condition;
(b)neck condition; and
(c)reduced vision in the left eye.
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Do the Applicant’s impairments receive an impairment rating of 20 or more?
Shoulder condition
The Respondent has conceded that the Applicant’s shoulder condition has been fully diagnosed, treated and stabilised during the Qualification Period.[15]
[15] Ibid 7[32].
Based on the medical evidence outlined above and in particular the report of Dr Jarrett,[16] the Tribunal agrees that the condition is fully diagnosed, treated and stabilised.
[16] Exhibit R1, 128.
The Respondent contends however, that the functional impairment arising from this condition would only attract a maximum of five points under Table 2 of the Impairment Tables.[17]
[17] Exhibit R2, 7[32].
Table 2 of the Impairment Tables states that five points correlates with a ‘mild functional impact on activities using hands or arms’ which means that the person can manage most daily activities requiring the use of hands and arms but has some difficulty with the following:
(a)picking up heavier objects (e.g. a 2 litre caron of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects.
In cross-examination by Ms Jones-Bolla, she asked the Applicant whether during the Qualification Period he was able to water his house plants. He responded:[18]
Yes. yes, I use the bucket and water the garden, but it’s not up to two kilo. The water he carries is not up to two kilos, he said, to water the garden. Because my doctor probably told me don’t lift more than five kilo.
[18] Transcript, 12.
After some further exchange about the extent of his watering, the Applicant said he only watered outside the house with a watering can and there were no house plants inside the house that he had to water.
Ms Jones-Bolla further referred to the report of the Job Capacity Assessor (the JCA)[19] dated 19 August 2019 where the Applicant reported to the JCA:
The client reported difficulty with lifting a 2 litre bottle of milk, reaching with both arms above shoulder height, pulling or pushing motions and that he sometimes has difficulty undressing due to requirements to manipulate his hands to remove his buttons of his shirt.
[19] Exhibit R1, 178–187.
In response, the Applicant stated that during the assessment the JCA had not asked him ‘about two litres of milk at all. He only asked me, ‘Can you be able to tie your shoe laces?’ I said ‘Yes’.[20]
[20] Transcript, 14.
When taken to the document, (the JCA’s report dated 19 August 2019) the Applicant clarified:[21]
I might had that time the injection for pain because I used to take injection from shoulder pain. I couldn’t remember whether I have said that or not. He couldn’t remember that two litres of milk. Not every interpreter transferring the right – what I have said of what. A lot of interpreters say they know how to interpret but most of them are not good.[22]
[21] Ibid 15.
[22] The Tribunal notes that the interpreter had a tendency of not interpreting in the first person which whilst noted during the proceedings became more apparent on written transcript.
The Tribunal notes the report of Dr Jarrett, dated 28 March 2018 described further injections as ‘unlikely to be fruitful’.[23]
[23] Exhibit R1, 128.
On the basis of Dr Jarrett’s report, together with the reports of Dr Bowden, the Tribunal has decided that the Applicant’s shoulder condition is fully diagnosed treated and stabilised. The interview with the JCA was conducted on 19 August 2019, well after the date of Dr Jarrett’s report. From an evidentiary perspective, the Tribunal will give more weight to a contemporaneous account of the Applicant’s functional impairment as noted in the JCA report, (particularly when considered in conjunction with Dr Jarrett’s report) than it would to the Applicant’s explanation for a discrepancy more than two years later in oral evidence during the hearing. The Tribunal is not inclined to accept as an explanation for the discrepancy that the Applicant had an incompetent interpreter at the JCA interview.
Based on the evidence provided in the form of the JCA report and other medical evidence, the Tribunal finds the Applicant has a mild impairment of upper limb function warranting five points under Table 2 of the Impairment Tables.
Neck condition
The Respondent contends that the Applicant’s neck condition is not fully treated and stabilised during the Qualification Period and therefore cannot be assigned an impairment rating.[24]
[24] Exhibit R2, 8[35].
The Respondent has referred to the lack of any specialist intervention for the Applicant’s treatment, such as an orthopaedic surgeon, neurosurgeon or pain specialist.[25]
[25] Ibid 8[36].
The Tribunal notes that a specialist opinion was provided by Dr Jarrett, referred to above. However, in his report, Dr Jarrett does not comment on the Applicant’s neck and lower back issues.[26]
[26] Exhibit R1, 128.
Dr Goodheart, a Consultant Neurologist, provided a report dated 14 October 2019 for the purposes of a WorkCover claim. This report was based on Dr Goodheart’s examination as well as his review of the Applicant’s medical history and relevant reports. He refers to an MR scan of the cervical spine performed on 1 September 2017 which showed spondylosis at a number of levels without significant spinal canal stenosis and the possibility of irritation of the emerging right C4 nerve root. In his opinion, the Applicant had suffered a soft tissue injury to his cervical spine and continues to experience symptoms.[27]
[27] Ibid 198–203.
As stated above, the Tribunal notes that Dr Goodheart’s report was produced for medico-legal purposes and whilst of value for the purposes of diagnosis, it is of limited value in determining whether the condition has been fully treated and/or stabilised.
Dr Bowden’s report of 18 June 2020 refers to ‘significant neck and shoulder pain’.[28] Further, in his report dated 1 September 2020 he refers to ‘chronic pain in the neck, back and both shoulders’ for which the Applicant has had extensive rehabilitation. He reported:[29]
His [the Applicant] condition is related to substantial degenerative muscle and tendon pain in the shoulders but also to degeneration of his neck and lower back joints and discs. These musculoskeletal conditions have not resolved and are ongoing.
[28] Exhibit A3.
[29] Exhibit A1.
The physiotherapist’s report, dated 15 July 2019, provides that the Applicant’s regular treatment consisted of ‘soft tissue mobilisation, joint mobilisation, education, exercise’. However, any further details of the Applicant’s treatment and the extent of it has not been provided in the report. The referral to the physiotherapist also specifically notes that it is for management of the Applicant’s shoulder injury.[30]
[30] Exhibit A5.
The Tribunal accepts that the Applicant suffers from neck pain and appears to have degenerative disease in that part of his spine. However, the Tribunal finds that the evidence produced before it is insufficient to ascertain whether the Applicant’s neck condition has been sufficiently treated by either a specialist and/or physiotherapist.
Accordingly, the Tribunal is unable to find that the Applicant’s neck condition is fully treated and stabilised during the Qualification Period.
Based on the evidence provided the Tribunal finds that the Applicant’s neck condition is not permanent and therefore the Tribunal is unable to assign an impairment rating to the condition.
Reduced vision in left eye
The Respondent has conceded the Applicant’s eye condition was fully diagnosed, treated and stabilised as at the Qualification Period. However, they contend the condition attracts a maximum of five points under Table 12 of the Impairment Tables.[31]
[31] Exhibit R2, 11[47].
In August 2018, the Applicant consulted Dr Chee Kang, an Ophthalmic Surgeon and Vitreoretinal Specialist. Dr Kang found that the Applicant had a visual acuity of 6/30 in his left eye.[32]
[32] Exhibit R1, 130.
The Tribunal therefore finds on the basis of the available medical evidence that the Applicant does have a fully diagnosed, treated and stabilised eye condition in his left eye.
There is no evidence of the Applicant requiring any vision aids or assistive devices other than spectacles for some tasks.
The Tribunal finds that the Applicant’s impairment is mild which generates five points under Table 12 of the Impairment Tables.
Conclusion on impairments
The Applicant’s combined impairment rating is 10 impairment points. The Applicant has therefore not attained an impairment rating of 20 points as required by s 94(1)(b) of the Act. Consequently, the Applicant does not qualify for a DSP under s 94 of the Act.
Continuing Ability to Work
The Tribunal has found that the Applicant’s medical conditions do not warrant an impairment rating of 20 points and therefore the Tribunal has not considered the issue of the Applicant’s continuing inability to work.
DECISION
The Reviewable Decision, being the decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 2 July 2020, which affirmed a decision of a delegate of the Respondent, made on 9 October 2019, to reject the Applicant’s claim for disability support pension, is affirmed.

I certify that the preceding 62 (sixty - two) paragraphs are a true copy of the reasons for the decision herein of Member M East

.....................[Sgd]...................................................
Associate
Dated: 2 November 2021

Date of hearing: 15 September 2021

Applicant: In person, Self-Represented

Solicitor for the Respondent: Ms Daphne Jones-Bolla, Sparke Helmore Lawyers

[2021] AATA 4346

2 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	15 September 2021
Applicant:	In person, Self-Represented
Solicitor for the Respondent:	Ms Daphne Jones-Bolla, Sparke Helmore Lawyers