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

Kierse and Secretary, Department of Social Services (Social services second review) [2020] AATA 1345 (18 May 2020)
Division:GENERAL DIVISION
File Number(s):2018/6168
Re:Nicholas Kierse
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:18 May 2020
Place:Adelaide

The Tribunal sets aside the decision under review.
..............[sgnd]..........................................................
Member I Thompson
Catchwords
SOCIAL SECURITY – disability support pension – whether medical conditions diagnosed, treated and stabilised during the qualification period- whether an impairment rating of 20 points or more existed under the Impairment Tables- decision under review set aside
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Cases
Re 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
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);
Secretary, Department of Social Security v Pusnjak [1999] FCA 994);
Crossland and Secretary, Department of Family and Community Services [2004] AAT 864
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 16
Re Hamal and Secretary, Department of Social Service [1993] AATA 283

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
18 May 2020
INTRODUCTION

The applicant Nicholas Kierse lodged a claim for disability support pension (DSP) on 12 January 2018. Centrelink rejected the claim in the first instance and Mr Kierse requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Mr Kierse requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Mr Kierse applied to the General Division of the Tribunal for a second review.
The hearing took place on 25 February 2020. Mr Kierse attended the hearing and was self‑represented. His mother attended in support of him. Ms Odgers represented the respondent, the Secretary, Department of Social Services.
Mr Kierse gave evidence on oath. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Mr Kierse is now 21 years old. He has a rare condition of myotonia congenita.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). 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 Tables). The qualification period in this case is 12 January 2018 to 13 April 2018.
Further, s 94 of the Act requires that a person has 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”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Mr Kierse will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work.
Mr Kierse’s claim for DSP listed his disabilities, illnesses and injuries as “muscle disorder, myotonia congenita, blockage in every chloride channel in every external muscle, atrophy of the hands and poor fine motor skills.” [1]
[1] T 10 p150
The Secretary accepted that Mr Kierse suffers from an impairment, myotonia congenita, and therefore satisfies s 94(1) (a) of the Act. The Secretary conceded that Mr Kierse satisfies s 94 (1) (b) of the Act with an impairment rating of 10 points under Impairment Table 1 (functions requiring physical exertion and stamina) and an impairment rating of 10 points under Impairment Table 2 (upper limb function)
However, the Secretary contended that Mr Kierse did not have a continuing inability to work and was not qualified for the DSP during the qualification period and does not satisfy s 94(1)(c) of the Act.
The main issue for determination is whether Mr Kierse’s impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, where he had a continuing inability to work.
EVIDENCE OF MR KIERSE
Mr Kierse gave evidence, which was consistent, clear and honest. His demeanour and candour were impressive. He told the Tribunal that he resides in suburban Adelaide with his mother and grandmother. He completed year 12 at school. Subsequently, he worked in one job doing data entry on a computer. In that role he was employed by his father to work part-time from home. The work lasted for about 5 or 6 months working 4 days per week, 3 hours per day. Initially it went well, and Mr Kierse enjoyed the work. However, it came to an end when the pressure to complete work within a specified timeframe was too much. He was asked to work longer hours but physically could not cope. He uses two fingers for typing which becomes difficult after 15 to 20 minutes. Then he needs to stop and allow his fingers to relax.
Mr Kierse engaged with a designated job service provider after leaving school. To a large degree, his involvement required his attendance at regular intervals at a job service provider office for an update on his situation, together with assistance with compiling a resume, attendance at information sharing workshops and drafting a job application. He has not been referred for or participated in specific, work training, assessments, work experience or job interviews. He thinks that he could work 15 hours per week, provided the work is mainly sedentary and not physically demanding. He would need to have breaks while working.
Mr Kierse told the Tribunal that he does not access any type of treatment nowadays for his muscle stiffness. All his muscles are affected. He gets stiffness in his legs, arms, eyes and neck. Sometimes he has difficulty speaking, swallowing and breathing. As a child he received allied health services and support from a paediatric disability service provider. He has tried medication to relax his muscles. However, no form of treatment has succeeded in the long run in alleviating the muscle stiffness.
Presently he has good days and bad days. And that was the pattern at the time of his DSP claim. Everything depends on the stiffness in his muscles when he wakes up in the morning. When the muscles are stiff and sore, he tends to spend the day and evening quietly at home. If he wakes up with relaxed muscles, he tends to go outdoors. There is no way of predicting whether the next morning will bring relaxed muscles or stiff muscles, however the impact is generally more severe in cold weather. He doesn’t get any warning of muscle stiffness. He said, “it just happens.” Then it takes about 5 to 10 minutes for them to relax.
Mr Kierse has a group of friends. He meets them in a park. On a good day he can walk to the park which is a distance of about 500 metres. When he gets there, he sits down and rests. He plays basketball for about ten minutes, then rests, then plays again. While he can run, his pace is slow. He also goes to movies with friends, to a recreation centre and they visit one another at home. He does not drive a car. He uses public transport, either a train or a bus and if he must stand, he makes sure that he has something close by to lean on. He has asthma and uses a preventer once a day.
At home Mr Kierse said that he assists with domestic tasks, such as vacuuming, cleaning, washing dishes, putting things away. He can negotiate the stairway at home, which has about 15 steps. He goes to the supermarket and pushes the trolley around the aisle and out to the carpark. He leans on the trolley for support. Standing is possible for 10 to 15 minutes or slightly longer if not standing still. He does not need an aid for walking, and he does not require a wheelchair. He needs to get going form the stiffness of a sedentary position and his muscles loosen up. Then, however, his legs might stiffen without warning and he needs to rest for 5 to 10 minutes before moving again.
At home, Mr Kierse meets his self-care needs. He can get dressed, though not without difficulty. He has difficulties doing up buttons and tying up shoelaces. When his hand stiffens, he cannot open his fingers which become claw-like. His mother ties shoelaces loosely for him so that he can slip into and out of them. Shampooing his hair is often difficult. In all, both gross and fine motor skills provide daily problems and challenges for him. His life has not changed in any significant way, before, during and after the qualification period.
CONSIDERATION
It is well-settled in cases such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, that the Tribunal can only consider an applicant’s qualification for DSP within the qualifying period. Evidence such as medical reports that were prepared after the qualification period, are relevant insofar as they may cast light on Mr. Kierse’s medical condition during the qualification period.
Impairment Tables
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated, requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for Mr Kierse’s condition will be considered in turn by reference to the Impairment Tables.
Myotonia Congenita
Mr Kierse has a diagnosis of myotonia congenita. As a three-year-old child he was assessed by a neurologist at the Women’s and Children’s Hospital because of concerns with gross motor and fine motor delay. After the examinations and investigations, the diagnosis was confirmed. This is a rare condition and the prognosis was described in one of the reports by a neurologist as relatively benign compared with muscular dystrophy: – “most of these patients get by quite will, but sometimes have a mild degree of handicap with muscle cramps and stiffness. These latter symptoms can often be alleviated with medication.” [2]
[2] T 14 p189, report by Dr Manson 8 July 2002
Over the following years in his childhood and adolescence, he received specialist, medical treatment together with allied health treatment which included extensive physiotherapy and occupational therapy. There was a continuing pattern of fatigue, slow gross motor movements, clawing of hands, periods of inactivity when he was stiff legged, coughing daily and problems with feeding and chewing.
The condition of myotonia congenita was described in a report by one of his physiotherapists[3] in this way: – “MC causes the voluntary muscles to be very slow relaxing after contracting. (This is the muscles that we use to move etc, not the muscles of the heart and digestive tract etc).
This is worst after long periods of rest e.g. standing up or starting to walk after sitting for a while. They may have difficulty releasing grasp. The stiffness may also be brought on by cold, fatigue or emotional stress. It is often most severe in the legs.
Sudden movements, changes of movement or sudden loud noises will cause the muscles to lock up and the child may fall over.… The myotonic attack will last anywhere from seconds to minutes and it can be anything from slightly uncomfortable to completely disabling.
It is relieved by exercise – the muscles ‘warm up’ and start to relax normally. The stiffening will become worse for the first few contractions of the affected muscles and then, after about five repetitions, the myotonic stiffness will cease.…
It is an inherited congenital condition. This gene defect causes a structural change in the channel (or pore) in the muscle cell wall that lets in chloride ions. Chloride ions help the muscle to relax after it has contracted. The channel doesn’t let in chloride for efficient relaxation.
There is no cure for MC, but the condition does not worsen as the child grows up. It has no effect on a person’s lifespan. Some medications have been helpful in controlling symptoms for some people.”
[3] T 14 p270
Mr Kierse’s general medical practitioner, Dr Setayesh, described myotonia congenita as a rare disease which causes muscle stiffness and sometimes weakness having an impact on walking, eating and speech. In a report dated 16 May 2017[4] Dr Setayesh wrote that myotonia congenita often affects muscles of the legs, arms, eyes and eyelids, face and tongue. The stiffness is usually worst upon first movement of the muscles after they have been at rest. Typically, a person with this condition might have difficulty getting up out of a chair or bed, climbing stairs, starting to walk and opening eyelids after closing them. The muscles will start to relax after some “warming up”. Complications may include trouble with swallowing, speaking and muscle weakness. At that time, Mr Kierse was 18 years old.
[4] T 14 p177
In a report[5] dated 1 May 2018 to Centrelink regarding mobility allowance, Dr Setayesh recorded that Mr Kierse has serious difficulty walking 400 metres, sitting on public transport and negotiating steps in or out of public transport. Dr Setayesh recorded that Mr Kierse cannot stand on public transport, that he cannot cross streets and negotiate kerbs and that he cannot negotiate a large flight of steps. This report was provided shortly after the qualification period.
[5] T 14 p272
Dr Ravindran is a consultant neurologist at the Royal Adelaide Hospital and at the Lyell McEwin Hospital and he provided a report dated 25 November 2019 following examination of Mr Kierse. In that report he confirmed that the condition, which he named as congenital myotonic dystrophy, is permanent and it will never spontaneously resolve. He also confirmed that there are no current treatments. Some relief might be achieved by physiotherapy to address muscle stiffness. Dr Ravindran noted that Mr Kierse would not be able to undertake any manual work due to muscle stiffness. He reported that Mr Kierse would be able to walk half a lap of an oval, that is approximately 200 metres, before resting. In Dr Ravindran’s opinion, Mr Kierse has a rating of 5.0 on the multiple sclerosis disability scale (EDSS).
Dr Armstrong is an experienced medical advisor with the Health Professional Advisory Unit of Services Australia. She wrote a report on 11 February 2020[6] in which she considered the reports relating to Mr Kierse. She also spoke with Dr Ravindran. She did not speak with Mr Kierse.
[6] Exhibit 2 Annexure E
Dr Armstrong confirmed with Dr Ravindran that myotonia congenita and congenital myotonic dystrophy were the same diagnosis. She described myotonia congenita in this way: – “a rare genetic condition characterised by the inability of skeletal muscles to quickly relax after voluntary movements. Symptoms typically begin in childhood and vary from person to person. They may include muscle spasm, stiffness and aches. Symptoms tend to occur when movement is attempted after a period of inactivity, so that there may be difficulty relaxing a hand grip, starting to walk or run, and arising from a chair. Exercise may temporarily alleviate myotonia and the initial stiffness and spasm improve with gradually increasing the intensity of movements through warming up. Affected individuals usually have normal muscle strength or only minimal weakness. Symptoms tend to remain constant with little progression and most individuals with this condition can lead a relatively normal life. Treatment is supportive and directed towards the person’s symptoms and may include medication for muscle stiffness, such as carbamazepine or phenytoin. Physiotherapy and occupational therapy are often recommended.”[7]
[7] Exhibit 2 Annexure E
Dr Ravindran also reported that ongoing physiotherapy would be vital for Mr Kierse to remain independent.[8]
[8] Exhibit 2 Annexure F
Dr Armstrong reported her conversation with Dr Ravindran as follows: – “the functional impact of this condition varies significantly from person to person. His muscles are hypertrophied, and he looks like a bodybuilder, but his muscles are weak. Mr Kierse could walk around a supermarket to buy a few things, but he would be unable to do a whole week’s shop at once, due to muscle cramps and fatigue. He could fold a few items of laundry, but he wouldn’t be able to do ‘is a whole heap of laundry at once’. Mr Kierse would be able to do sedentary work for a shift of three hours, if he was able to stand up every so often and walk around for a bit. He would not need assistance from others. Dr Ravinder and said that the impairment tables didn’t really recognise that this condition means that Mr Kierse can do things for five minutes, but not for two hours, as it results in limitations of sustained activities and he would start getting cramps. He could turn a few pages of a book without assistance. Mr Kierse could work in appropriate employment for 15 hours/week at three hours daily if he didn’t have to do anything else, like tending to a house.”[9]
[9] Exhibit 2 Annexure E
Dr Armstrong concluded in her report that Mr Kierse’s condition was fully diagnosed, treated and stabilised at the qualification period. Dr Armstrong referred to apparent inconsistencies between the medical evidence and Mr Kierse’s statements at the Job Capacity Assessment interview and the AAT 1 hearing. She also mentioned that the “reported severity” appears to be inconsistent with accounts of Mr Kierse’s functioning when he was a child and inconsistent with the “accepted medical understanding of myotonia congenita.”

A Job Capacity Assessment (JCA) report was submitted on 11 April 2018.[10] This report noted Mr Kierse’s generalised muscle stiffness and weakness, limitations on his ability to engage in tasks which require a quick response to physical tasks and movements, effects on manual dexterity, difficulty walking upstairs, stiffness in the morning, muscle weakness and stiffness in the body notably in the legs and hands, difficulties writing because of hand cramping, difficulty opening jars and bottles, occasional difficulty talking and eating, and some difficulty with dressing and self-care. The JCA report noted muscle fatigue with prolonged standing, walking, lifting and carrying things, reduced fine motor dexterity and difficulty holding a pen or pencil for prolonged periods, and a disposition to tire quite easily.
[10] T 11 p163
The Tribunal is satisfied that Mr Kierse’s condition of myotonia congentia was fully diagnosed, treated and stabilised at the qualification period.
For a moderate functional impact on activities requiring physical exertion or stamina, Impairment Table 1 provides the following descriptors:

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).

41.     For a severe functional impact Table 1 states:

Points

Description

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.

In a report dated 5 October 2018 Dr Setayesh considered Mr Kierse’s condition in the context of the impairment tables. Dr Setayesh concluded that Mr Kierse had an impairment rating of 20 points under Impairment Table 1 because of difficulty that he has in sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.[11]
[11] Exhibit 2, Annexure A
Dr Armstrong did not agree with the ratings which Dr Setayesh recommended. She noted that Dr Setayesh did not elaborate on his reasoning, that there was an implication of self-report of symptoms, and that it was not known if Dr Setayesh was familiar with the use of the Impairment Tables.
In his report, Dr Ravindran considered the condition in the context of the Impairment Tables and he rated Mr Kierse as 20 points under Impairment Table 1, 20 points under Table 2 and five points under Table 3.[12]
[12] Exhibit 2, Annexure F
Dr Armstrong did not agree with the ratings which were recommended by Dr Ravindran. She noted that Dr Ravindran found an expanded disability status scale score of 5. That score refers to a “disability severe enough to impair full daily activities and ability to work a full day without special provisions, able to walk without aid or rest for 200 m.” She repeated the same criticism that she levelled at Dr Setayesh. That is, she reported that Dr Ravindran had not elaborated on his reasoning on how the descriptors were met, and she added that it was not clear whether Dr Ravindran was familiar with the Impairment Tables.[13]
[13] Exhibit 2, Annexure E
In view of the fact that Dr Armstrong initiated a conversation with a Dr Ravindran on 11 February 2020 and noting that it was a conversation in which he apparently was cooperative, it is unclear why Dr Armstrong would not ask Dr Ravindran to elaborate on his reasoning regarding the descriptors and to expand upon his understanding of the Impairment Tables and familiarity with them.
Dr Armstrong agreed with the ratings made by the AAT 1 and assessed the correct impairment rating is a total of 20 points comprising 10 points on Impairment Table 1 for problems with mobility and endurance and 10 points on Table 2 for problems with upper limb function.
In considering the various comments about the ratings, the Tribunal notes that Dr Setayesh was Mr Kierse’s general medical practitioner. He appears to know his patient well and to have a sound understanding of the nature and impact of myotonia congentia and the continuing impact that it has for Mr Kierse in his daily routines. Dr Ravindran is a medical specialist in neurology and neurophysiology with senior appointments as consultant neurologist at two major public hospitals. He provided one report which followed his examination of Mr Kierse. Dr Armstrong is a general medical practitioner with considerable experience in a variety of medical settings over more than 3 decades and a record in the last ten years of providing medical opinions in her employment by Services Australia and its departmental predecessor.
The Tribunal accepts Mr Kierse’s evidence about his condition and its effects. While deriving assistance from Dr Armstrong’s detailed analysis, nonetheless the Tribunal does not consider that there are inconsistencies of material significance between Mr Kierse’s evidence to the Tribunal and the findings about his condition which are summarised in the reports by Dr Ravindran and Dr Setayesh. The Tribunal does not agree that there are inconsistencies of material significance between the reports of Mr Kierse the statements at the JCA interview and the AAT 1 hearing. The Tribunal does not agree with Dr Armstrong’s observation that the reported severity of the impacts is inconsistent with “the accounts of childhood functioning and accepted medical understanding of myotonia congenita”.[14]
[14] Exhibit 2, Annexure AE
The condition of myotonia congenita is rare. The Tribunal is persuaded by the reports from Mr Kierse’s treating doctor and the medical specialist. Both of those doctors regard the impacts as severe, by any definition. Dr Setayesh wrote in his report dated 24 January 2018 that: - “This is a permanent condition which has a significant impact on him, as severe in his case.”[15] Dr Ravindran recommended strongly that Mr Kierse should receive funding under the national Disability Insurance Scheme.[16]
[15] Exhibit 2, Annexure A
[16] Exhibit 2, Annexure F
In the assignment of ratings under the Impairment Tables, the suggestions made by the doctors about ratings are part of the evidence to be considered, but ultimately, they are suggestions which are not binding upon the Tribunal.
The determination about the correct rating is not easily reached. The Secretary made a cogent submission in favour of a 10-point rating which would reflect a moderate functional impact on activities requiring physical exertion or stamina. In considering that submission, the Tribunal has also reflected on the possibility that the impairment might fall between 10 and 20 points, which would require the assignment of the lower of the 2 ratings.[17]
[17] Rules for applying the Impairment Tables, Rule 11 (1) (c)
Given the rarity of Mr Kierse’s condition and its features, the descriptors in Table 1 for either a moderate or a severe functional impact do not easily equate to the reality of his experience. The nature of the functional impairments is predictable, but their timing is not. Their impact is thoroughly de-stabilising.
The Tribunal is satisfied that the descriptors in Impairment Table 1 for severe functional impact are met. Indeed, rather than usually experiencing symptoms of fatigue when performing light physical activities, it is more to the point to conclude that Mr Kierse always experiences those symptoms. He must measure up activities in advance and try to do them as best he can. Sometimes he simply cannot do them. For example, he has ‘good days and bad days” and if it’s a bad day he can do nothing but rest. There is no way of telling what type of day lies ahead. Things might be progressing well and then without warning his muscles will stiffen, perhaps in the neck, perhaps in the legs.
Specifically, the Tribunal considers that Mr Kierse satisfies the descriptors in (1) (a) (iv) and 1 (b) in Impairment Table 1 for severe functional impairment. On a day to day basis it cannot be said that he can perform light household activities. Sometimes he cannot do them at all. He can try, he can improvise and sometimes he succeeds. In relation to work–related tasks, Dr Ravindran said :- “ Mr Kierse would only be able to work for a continuous shift of 3 hours of sedentary work if he was allowed to get up and walk around at times to avoid muscle cramps in his legs.”[18]
[18] As referred to in report by Dr Armstrong, Exhibit 2, Annexure E
It is enough for a rating of 20 points that Mr Kierse satisfies the descriptors in (1) (a) (iv) and 1 (b) in Table 1. The reality is that he cannot get to and from a supermarket unless someone drives him there. He can move around a supermarket and to and from the carpark if he leans on the trolley and if his muscles do not seize up. He can load and unload some items if they are not too heavy. He can get in and out of someone else’s car. Carrying shopping bags home on the bus would not be feasible. Realistically, he cannot travel to shops and carry out supermarket shopping by himself, and he needs somebody else to help him. In that regard, therefore, he would also satisfy criteria (1) (a) (i) and (ii) in Impairment Table 1 for severe functional impact.
Reference has been made previously to the report which Dr Setayesh wrote on 1 May 2018 to Centrelink regarding mobility allowance.[19] He wrote that Mr Kierse has serious difficulty negotiating steps in or out of public transport and that Mr Kierse cannot stand on public transport. Mr Kierse told the Tribunal that if he must stand on the bus, he makes sure he can fall onto or lean on something. In view of the Tribunal’s findings that he meets other descriptors in the 20-point rating, it is not necessary to consider in further detail the descriptor regarding public transport, other than to suggest that ideally sitting in a bus or train might be more advisable than standing.
[19] T 14 p272
The Tribunal considers that Mr Kierse was honest and straightforward in his evidence. He did not seek to exaggerate the impacts, as a child, adolescent and adult, of his condition which has been and will remain a lifelong condition. He has grown up with this condition and adjusted to it as best he can and seemingly without complaint. The overwhelming balance of the evidence of Mr Kierse, Dr Setayesh, Dr Ravindran, together with the historical medical and allied health evidence dating back over almost 20 years points clearly in the same direction. That is, a condition of myotonia congenita which was diagnosed, fully treated and fully stabilised at the qualification period with a severe functional impact on activities requiring physical exertion or stamina (Impairment Table 1). The appropriate rating under Impairment Table 1 is 20 points.
Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms. The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not enough.
As previously indicated, the Secretary conceded that the upper limb condition was fully diagnosed, treated and stabilised in the qualification period. The Tribunal considers that this concession is correct.
For a moderate functional impact on activities using hands and arms Impairment Table 2 states:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

(1)       The person has difficulty with most of the following:

           (a)       picking up a 1 litre carton full of liquid;

           (b)       picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

           (c)       holding and using a pen or pencil;

           (d)       doing up buttons or tying shoelaces;

           (e)       using a standard computer keyboard;

           (f)        unscrewing a lid on a soft-drink bottle.

The Secretary agreed that descriptors (1) (c) (d) (e) and (f) as above, would be applicable. The evidence supports that contention.
The Tribunal finds that Mr Kierse has a moderate functional impact on activities using hands or arms. The appropriate rating is 10 points in accordance with the descriptors in Impairment Table 2.
Impairment Table 3 relates to lower limb function. It provides the descriptors relating to the use of the lower limbs. It is used where a person has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.
It is not appropriate to allocate a rating under Impairment Table 3 as the impact on activities involving the lower limbs has been addressed under Impairment Table 1. Double counting must be avoided. [20]
[20] Rules for applying the Impairment Tables, Rule10(3)
CONTINUING INABILITY TO WORK
The next issue for determination is whether Ms Kierse had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94 (2) of the Act defines a continuing inability to work as follows:
“Continuing inability to work”
(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 enough 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 within the next 2 years.
With an impairment rating of 20 points under a single impairment table, it follows that Ms Kierse has a severe impairment within the meaning of s 94(3B) of the Act and participation in program of support is not required
In deciding whether there is a continuing inability to work under s 94(1)(c)(i) several factors must be disregarded. They include:
·any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person’s locally accessible labour market (s94(3)(b) of the Act) and the availability to the person of a training activity (s 94 (3) (b));
·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak [1999] FCA 994);
·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AAT 864 [34]);
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517).
Dr Armstrong suggested that Mr Kierse may find suitable employment as a game developer or as a receptionist. She conceded that he may need “an accommodating employer who would let him have regular breaks from sitting.” She also suggested that he could study for 15 hours per week “with some support”. She added that: – “Mr Kierse does not appear to have tested his capacity for work, training or study and I believe a program of support would be helpful in this regard.”[21]
[21] Exhibit 2, Annexure E
In fact, the Secretary acknowledged that Mr Kierse participated in a program for 270 days up to 11 January 2018, that is within a period of three years prior to the lodging of the DSP application.[22] As his participation occurred after leaving school, it was in a more confined period and was not spread across three years. In any event, it has not led to any training activity at all.
[22] Exhibit 2, Annexure B
The JCA report which was submitted on 11 April 2018 followed a face-to-face interview with Mr Kierse. A rehabilitation counsellor conducted the interview and wrote the report. Only one medical report was acknowledged and that was the report by Dr Setayesh dated 16 May 2017. The JCA report did not have the benefit of the subsequent, medical evidence, and the report suffers to that extent. The report included an assessment of baseline work capacity at 15 – 22 hours per week and a similar capacity for work within two years with intervention.[23]
[23] T 11 p163
Even without the later medical reports, the rationale for that conclusion was expressed in the following terms, which are heavily guarded: – “client has a reduced capacity of 15 – 22 hours per week due to generalised muscle stiffness and weakness. Clients condition impact on his ability to engage in tasks that require him to respond quickly to physical tasks/movements. His symptoms also affect manual dexterity and at times speech and the ability to eat. With physical treatments and disability specific interventions, client may be able to sustain part-time employment at 15 – 22 hours per week over the next 24 months.”
The reference to physical treatments and disability specific interventions is significant. Moreover, the JCA report went even further in making the following recommendation: – “client is likely to require high levels of support to gain and maintain employment. He is best suited to employment support services and would benefit from vocational assessment/training, workplace assessment/modifications and work experience placement.”
The Tribunal agrees that Mr Kierse would need the benefit of specific disability interventions to assist him to undertake training and participate in the workforce. The proviso in the JCA report about Mr Kierse’s capacity for work and training and the need for treatments and support are important. They are realistic. Dr Ravindran suggested that Mr Kierse’s need for physiotherapy is “vital.”

Mr Kierse gave evidence about his participation in the program of support. He has engaged with three service providers. He was with the first job provider for about two years and then moved to another one. In October 2019 he commenced with a third job service provider. Throughout his engagement with those services he has not been referred for training anywhere. He has not been referred to a prospective employer. He has attended workshops which provide guidance on preparation of resumes and cover letters for job applications. He has discussed opportunities for training. However, nothing has eventuated. In evidence he suggested that he could do 15 hours per week work provided it was mainly sedentary and not too demanding physically. In cross-examination he agreed that he could work for 15 hours per week doing the type of work that he carried out with his father, so long as he had enough breaks during the day.
Dr Ravindran reported that Mr Kierse is not able to undertake any manual work because of muscle stiffness.
Work is defined in s 94(5) of the Act as follows:
“‘work’ means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market”.
Having heard Mr Kierse’s evidence, and noting the reports of Dr Setayesh and Dr Ravindran, the Tribunal is satisfied that Mr Kierse would have considerable difficulty in sustaining employment at 15-22 hours per week over a period of two years. As he said in evidence, he has good days and bad days. On a good day he can move about. On a bad day, he cannot. He may be able to sustain 15 hours per week in the workforce if he was having several good days without muscle stiffness. But it is not possible to predict how many good days he might consecutively enjoy and whether they coincide with a work schedule. His ability to work successfully needs further analysis, as the JCA report suggests, and in the meantime, an estimate of capability of 15-22 hours per week is a forecast that the Tribunal considers to be optimistic and unsupported by the evidence.
The Tribunal considers that Mr Kierse’s impairment from the condition of myotonia congenita led to a loss of functional capacity which prevented him from working at least 15 hours per week.
The next question is whether Mr Kierse’s impairment of itself prevents him from undertaking a training activity that would enable him to work at least 15 hours per week within two years of the qualification period.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
“‘training activity’ means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) prevocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work related training (including on the job training)”.
Similar to his inability to work, the evidence shows that Mr Kierse would have difficulty undertaking and maintaining a training activity. His impairment was sufficient to prevent him from undertaking a training activity within the relevant period.
The Tribunal finds that Mr Kierse satisfies s 94(2) (a) and (b)(ii) of the Act and that he has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
Ms Kierse’s condition of myotonia congenita was fully diagnosed, fully treated and fully stabilised. The appropriate rating for that condition is 20 points under the Impairment Tables.
Ms Kierse’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the qualification period and the applicable rating for that condition is 10 impairment points.
With a total of 30 impairment points the criterion in s 94(1)(b) of the Act is satisfied.
Mr Kierse has a severe impairment within the meaning of s 94 (3B) of the Act because of an impairment rating of 20 points under a single impairment table.
In view of the finding that Mr Kierse has a severe impairment within the meaning of s 94 (3B) there is no need for him to have actively participated in a program of support within the meaning of s 94 (3C) of the Act.
The Tribunal is satisfied that Ms Kierse has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Ms Kierse is qualified to receive the Disability Support Pension from 12 January 2018.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
...............[sgnd]..............................................
Administrative Assistant Legal
Dated: 18 May 2020

Date of hearing: 25 February 2019

Applicant:

Self-represented

Representative for the Respondent: Ms L Odgers, Department of Social Services

[2020] AATA 1345

18 May 2020

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Date of hearing:	25 February 2019
Applicant:	Self-represented
Representative for the Respondent:	Ms L Odgers, Department of Social Services