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

Kilvington and Secretary, Department of Social Services (Social services second review) [2017] AATA 50 (24 January 2017)
Division:GENERAL DIVISION
File Number: 2015/5643
Re:Odette Kilvington
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member R W Dunne
Date:24 January 2017
Place:Adelaide

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether an impairment rating of 20 points or more existed under the Impairment Tables – reports of medical practitioner, psychologist and psychiatrist considered – Job Capacity Assessment report considered – whether continuing inability to work – whether applicant actively participated in a program of support – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), clause 4(1) of Schedule 2
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
re Harris v Secretary, Department of Employment and Workplace Relations (2007) FCA 404
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member R W Dunne
24 January 2017
INTRODUCTION

The applicant in this case is Odette Kilvington. She lodged a claim for disability support pension (“DSP”) on 23 February 2015. When an officer of the respondent (“Centrelink”) decided to reject the claim, an authorised review officer (“ARO”) affirmed the decision.
The applicant applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) for review. Before the AAT1, the applicant was assigned a total of 10 impairment points under Table 2 of the Impairment Tables at the time of her claim. The applicant then applied to this Tribunal for further review of the decision of the AAT1.
At the hearing, Ms Kilvington represented herself, with moral support from her former husband. The respondent was represented by Mr C Visser (from the FOI and Litigation Branch of the Department of Human Services). I admitted into evidence the T Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.[1]
[1] Exhibit R1.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal in this case are:
(a)whether the applicant has any impairments; and if so,
(b)whether, as at the date of the applicant’s claim for DSP (or within 13 weeks of that date), the applicant had an impairment rating of at least 20 points under the Impairment Tables; and if so,
(c)whether the applicant had a continuing inability to work and whether she had actively participated in a program of support.
LEGISLATION
The legislation relating to claims for DSP and the reference to the Impairment Tables is set out in the provisions of s 94 of the Social Security Act 1991 (“Act”), which relevantly reads:
“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
(d)    the person has turned 16; and
(da)    in a case where the following apply:
(i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e)    the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)   is not an Australian resident; and
(B)   is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea)    one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
(2)    Continuing inability to work
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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)    the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)    If:
(a)    a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;and
(c)the person is not a reviewed 2008-2011 DSP starter;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
(3B)    Severe impairment
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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
(3C)    Active participation in a program of support
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
(4)    Doing work independently of a program of support
A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)      is unlikely to need a program of support; or
(b)    is likely to need such a program of support provided occasionally; or
(c)      is likely to need such a program of support that is not ongoing.
(5)    Other definitions
In this section:
…
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)    is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
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)    pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
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.
…”
Also relevant in these proceedings is clause 4(1) of Schedule 2 to the Social Security (Administration) Act, 1999 (“Administration Act”), which reads:
“4 Start day—early claim
(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.”
The effect of this provision is that the applicant’s qualification for DSP is to be solely determined during the period 23 February 2015 to 25 May 2015 inclusive (the “Claim Period”).
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Impairment Tables”)
The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the above determination which relevantly reads:
“6.     Applying the Tables
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.
Note:For additional information that must be taken into account in applying the Tables see section 7.
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
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example:     A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) 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
Note:For fully diagnosed and fully treated see subsection 6(5).
(c)    the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)    is available at a location reasonably accessible to the person; and
(b)    is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)    is regularly undertaken or performed; and
(e)    has a high success rate; and
(f)     carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
7         Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
8         Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note:Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9         Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10       Selecting the applicable Table and assessing impairments
Selection steps
(1)       Table selection is to be made by applying the following steps:
(a)      identify the loss of function; then
(b)      refer to the Table related to the function affected; then
(c)      identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11       Assigning an impairment rating
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5)To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
…”
SOCIAL SECURITY (ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2014 (“DETERMINATION”)

As the requirements in paragraphs 94(1)(b) and (c) of the Act are cumulative, if a person does not have an impairment rating of at least 20 points under the Impairment Tables it may be necessary to consider whether the person has a continuing inability to work. If the person is also found not to have a single impairment that is a “severe impairment”, the person must have actively participated in a “program of support”.
The Determination sets out what must be taken into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for DSP. The Determination relevantly reads:
“Part 1—Preliminary
1 Name
This is the Social Security (Active Participation for Disability Support Pension) Determination 2014.
2 Commencement
This instrument commences on the day after it is registered.
3 Authority
This instrument is made under subsections 94(3C) and (3E) of the Social Security Act 1991.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 Definitions
(1)      In this instrument:
Act means the Social Security Act 1991.
designated provider means any of the following:
(a)      a Job Services Australia provider;
(b)      a Disability Employment Services provider;
(c)      an Australian Disability Enterprise;
(d)any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
program of support has the meaning given by subsection 94(5) of the Act.
relevant period means:
(a)in relation to a person (other than a reviewed 2008-2011 DSP starter) whose impairment is not a severe impairment—the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person; or
(b)in relation to a person who is a reviewed 2008-2011 DSP starter and who:
(i)     is participating in a program of support at the time the person becomes a reviewed 2008-2011 DSP starter; or
(ii)    was participating in a program of support at any time during the period of 6 months before the person becomes a reviewed 2008-2011 DSP starter;
the period of 36 months starting on the day the person begins the program of support; or
(c)in relation to any other reviewed 2008-2011 DSP starter—the period of 36 months starting on the day the person is notified in writing that the person has become a reviewed 2008-2011 DSP starter.
reviewed 2008-2011 DSP starter has the meaning given by subsection 94(5) of the Act.
severe impairment has the meaning given by subsection 94(3B) of the Act.
(2)To avoid doubt, for the purposes of paragraph (b) of the definition of relevant period, a person may be participating in a program of support at a time:
(a)whether or not the person is actively participating in the program at that time in accordance with section 7 of this instrument; and
(b)even if the person is not participating in the program at that time as a result of an exemption, relief or suspension from the program.
6 Requirements and matters to be taken into account
(1) Part 2 specifies requirements for subsection 94(3C) of the Act.
Note 1:Subsection 94(3C) of the Act provides that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C).
Note 2:A person whose impairment is not a severe impairment and certain reviewed 2008‑2011 DSP starters are required to have actively participated in a program of support (see paragraph 94(2)(aa) of the Act).
(2)Part 3 sets out, for subsections 94(3D) and (3E) of the Act, matters that the Secretary must take into account in deciding whether he or she is satisfied that a person has actively participated in a program of support within the meaning of subsection 94(3C) of the Act.
Part 2—Requirements for active participation
7 Requirements for active participation
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i)       complied with the requirements of the program of support; and
(ii)       participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note:A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)         the duration of the program of support was less than 18 months; and
(b)         the person completed the entire program during the relevant period.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of support if:
(a)at the end of the relevant period, the person is participating in the program of support; and
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
Information required to be provided to the Secretary
(6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following information in relation to the program of support:
(a)the details of the designated provider of the program;
(b)the dates when the person started to participate in the program and, if applicable, ceased to participate in the program;
(c)the reason for ceasing to participate in the program (if any);
(d)any period during which the person did not participate in the program, including as a result of any exemption, relief or suspension from the program;
(e)the reason for any period during which the person did not participate in the program;
(f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g)the terms with which the person had to comply in order to satisfy the requirements of the program and the level of compliance with those terms;
(h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i)the frequency of contact that the person had with the designated provider of the program.
8 Periods of non participation not to count
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program.
Part 3—Matters to be taken into account in assessing active participation
9 Matters to be taken into account relating to the program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a)was provided by a designated provider; and
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work (including self-employed work); and
(d)       includes at least one of the following activities:
(i)       job search;
(ii)       job preparation;
(iii)      education and training;
(iv)      work experience;
(v)       employment;
(vi)      return to work;
(vii)     vocational or occupational rehabilitation;
(viii)    injury management;
(ix)an activity designed to assist the person to prepare for, find or maintain work.
10 Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must take into account any relevant material or document that:
(a)      relates to the person’s participation in a program of support; and
(b)      relates to a program of support participated in during the relevant period.”
MATERIAL FACTS
The material facts in this case are largely not in dispute. For the most part, they have been extracted from the Secretary’s statement of facts and contentions (“SOFIC”). Nevertheless, I am satisfied of the material facts on the balance of probabilities.
On her claim form for DSP the applicant listed her disabilities as “RSD, chronic pain syndrome due to work accident, knee replacements and Horner’s syndrome”. As part of her claim she also lodged a “Medical Report – Disability Support Pension” form completed by Dr Murphy and signed on 19 February 2015. This report set out that the applicant suffered from a “reflex sympathetic dystrophy” as Condition 1. The form was left blank for Condition 2 and Dr Murphy also indicated that the applicant suffered from the following medical conditions which he said were generally well managed and that caused minimal or limited impact on ability to function – “hypertension, depression, early Parkinson’s disease and bilateral knee replacement”.
A Job Capacity Assessment (“JCA”) was conducted on 10 March 2015[2] to assess the applicant’s qualification for DSP. The JCA assessed the applicant’s conditions as “chronic pain, hypertension, depression, Parkinson’s disease, lower limb deficiency and visual loss”. The JCA found that only the chronic pain condition was fully diagnosed, fully treated and fully stabilised and was therefore capable of having impairment points assigned to it under the Impairment Tables. The condition was assigned an impairment rating of 10 points under Table 2 (Upper Limb Function). Dr Murphy’s report indicated the presence of depression as a condition with minimal or limited impact. The assessor considered that the depression was not fully diagnosed, fully treated and fully stabilised and had not been confirmed by a clinical psychologist or psychiatrist.
[2] Exhibit R1, T21.
On 12 June 2015, the applicant lodged another ‘Medical Report – Disability Support Pension form.[3] This form was completed by psychologist, Mr C Hamilton and signed on 10 June 2015. This report showed that the applicant suffered from chronic depression as Condition 1. The report was left blank for Condition 2. It also set out that the applicant became Mr Hamilton’s patient on 27 May 2015 and that a diagnosis was first made on 10 June 2015.
[3] Exhibit R1, T17.
On 27 August 2015, the applicant saw psychiatrist, Dr Helen Tingay and a report was produced by her on that day.
On 29 September 2015, the AAT1 reviewed and affirmed the ARO decision under review. Before the AAT1, a hearing was conducted at which the applicant gave evidence. She was represented by the Welfare Rights Centre. At the hearing, the applicant stated that she was not disputing the finding of the ARO with respect to her condition of hypertension or her bilateral knee condition. The AAT1 agreed with the ARO’s finding that no impairment points could be allocated for the hypertension condition or the bilateral knee condition.
In relation to the applicant’s medical conditions, the AAT1 found:
(a)The RSD (Reflex Sympathetic Dystrophy) condition is fully diagnosed, treated and stabilised and is permanent. The wrist condition was considered under Table 2 and an allocation of 10 impairment points was said to be appropriate.
(b)The AAT1 noted that Dr Murphy did not mention Parkinson’s disease in his report dated 27 April 2015. However, he did mention the condition in his report dated 19 February 2015[4] as one that is generally well managed with minimal or limited impact on the applicant’s ability to function. Dr Murphy also referred to this condition in his letter dated 15 July 2015.[5] The AAT1 Member said that there is insufficient information to be able to find that the condition is fully treated and stabilised. Accordingly, the AAT1 Member was not able to assign any impairment points for this condition.
(c)The AAT1 Member referred to Dr Tingay’s report dated 27 August 2015.[6] In addition to depression, Dr Tingay diagnosed the applicant with severe bereavement disorder and severe post-traumatic stress disorder. She also noted that the major depression is fully treated and has stabilised to a chronic condition. As stated above, the AAT1 Member noted that, in his February 2015 report, Dr Murphy states that the condition of depression is generally well managed and one that causes minimal or limited impact on the applicant’s ability to function. However, in his April 2015 report, Dr Murphy states that this condition is moderate to severe. Based on all the evidence before the AAT1, the Member was not able to find that at the time of the applicant’s claim in February 2015 the depression could be considered as fully diagnosed, treated and stabilised.
[4] Exhibit R1, T18 p 265.
[5] Exhibit R1, T23 p 304-305.
[6] Exhibit R1, T23 p 306-310.
The AAT1 Member found that the applicant’s conditions can be allocated a total of 10 impairment points under Table 2 (Upper limb function) of the Impairment Tables at the time of her claim.
EVIDENCE OF APPLICANT
It was the applicant’s evidence that she had suffered RSD for the past 18 years due to an accident she had at work. She had been on WorkCover but was advised by Gallagher Bassett to take a redemption payment and seek a DSP. She had been seeing her GP, Dr Kevin Murphy, since October 2014 and her psychologist, Dr Christopher Hamilton, since May 2015.
She had separated from her husband and her son had passed away in April 2014.
She said she had not been well since her work accident and had developed a number of medical conditions after the accident. Apart from RSD, she had bilateral knee problems and she was suffering from early Parkinson’s disease and ongoing depression.
When I referred the applicant to ratings under the Impairment Tables she acknowledged that, if she was assigned a rating of at least 20 points, she might be required to undertake a program of support.
CONSIDERATION
Did the applicant have any impairments?
In paragraph 27 of the Secretary’s SOFIC, it is said the Secretary accepts that the applicant suffers from the following conditions:
·Reflex Sympathetic Dystrophy (RSD),
·a mental health condition,
·Parkinson’s disease,
·Horner’s syndrome,
·Lower limb deficiencies,
·hypertension.
In these circumstances and on the basis of all the material before me, I agree that the applicant satisfies paragraph 94(1)(a) of the Act.
As at the date of her claim for DSP (or within 13 weeks of that date) did the applicant have an impairment rating of at least 20 points under the Impairment Tables?
In order to qualify for DSP Ms Kilvington must satisfy the relevant requirements of subsection 94(1) of the Act. Amongst other things, she must be qualified for DSP on the date of her claim or within the period of 13 weeks following. Thus, the primary question is whether she satisfies the relevant criteria in subsection 94(1) during the Claim Period, that is, the period between 23 February 2015 and 25 May 2015, rather than whether she currently satisfies these criteria.
At this point in these reasons, it cannot be said that Ms Kilvington satisfies all the relevant criteria in subsection 94(1) of the Act during the Claim Period. Thus, at this point she does not qualify for DSP.
Did the applicant have a continuing inability to work and had she actively participated in a program of support?
One of the relevant criteria for DSP is whether an applicant suffered an impairment (or impairments in combination) which attract an impairment rating of 20 points or more under the Impairment Tables (see subsection 94(1)(b) of the Act).
In this regard, the Rules for applying the Impairment Tables in Part 2 of Determination 2011 are relevant. Section 6(3) to s 6(6) of Part 2 relevantly require that:
(a)the person’s condition causing that impairment is permanent;
(b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and
(c)the condition is fully stabilised if 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 two years.
When the applicant lodged her claim for DSP, she lodged a medical report form completed by Dr Murphy that had been signed on 19 February 2015. The report said that the applicant suffered from a “reflex sympathetic dystrophy”. This was reported as Condition 1 in the form, which was left blank for Condition 2. The report also indicated that the applicant suffered from the conditions – “hypertension, depression, early Parkinson’s disease and bilateral knee replacement”. Dr Murphy said these conditions were generally well managed and that caused minimal or limited impact on ability to function.
In the JCA conducted on 10 March 2015 the assessor found that the applicant’s conditions were “chronic pain, hypertension, depression, Parkinson’s disease, lower limb deficiency and visual loss”. The JCA found that only the chronic pain condition was fully diagnosed, fully treated and fully stabilised and was therefore capable of having impairment points assigned to it under the Impairment Tables. The condition was assigned an impairment rating of 10 points under Table 2. Dr Murphy’s report indicated the presence of depression as a condition with minimal or limited impact. The assessor considered that the depression was not fully diagnosed, fully treated and fully stabilised and had not been confirmed by a clinical psychologist or psychiatrist.
The applicant lodged another medical report form completed by psychologist, Mr Hamilton and signed on 10 June 2015. This report showed that the applicant suffered from chronic depression as Condition 1. The report was left blank for Condition 2. It also set out that the applicant became Mr Hamilton’s patient on 27 May 2015 and that a diagnosis was first made on 10 June 2015.
In the AAT1, Ms Bakas (the Member) noted that the ARO had found that the condition of RSD was considered fully diagnosed, treated and stabilised and permanent. Ten impairment points had been assigned under Table 2. All of the other conditions of the applicant were not considered to be fully treated and stabilised and so were not assigned any impairment points. I note that Ms Kilvington was not disputing the finding of the ARO with respect to her condition of hypertension or her bilateral knee condition. In referring to a report of Dr Murphy dated 27 April 2015, Ms Bakas agreed that the applicant’s RSD condition is fully diagnosed, treated and stabilised and permanent. She considered an assignment of 10 impairment points under Table 2 was appropriate in respect of the applicant. I agree with the AAT1 Member’s view.

In relation to the Parkinson’s disease of the applicant, Ms Bakas found that there was insufficient information to be able to find that the condition was fully treated and stabilised, and she was not able to assign any impairment points to this condition. Again, I agree with the AAT1 Member’s view.
In relation to the applicant’s depression condition, Ms Bakas referred to the February 2015 report of Dr Murphy in which he stated that the condition of depression was generally well managed and one that caused minimal or limited impact on the applicant’s ability to function. However, in Dr Murphy’s April 2015 report, he stated that the condition was moderate to severe. During the hearing, I referred Dr Murphy to these reports and to what Ms Bakas had said in her decision about the applicant’s depression. I put to Dr Murphy what Ms Bakas had said. She said:
“I note that in his 2013 report Dr Murphy stated that the condition of depression was generally well managed and one that causes minimal or limited impact on Mrs Kilvington’s ability to function ….”
In response to what I put to him, Dr Murphy said:
“I didn’t write that. I didn’t write – I don’t recall writing that. I didn’t mention – I just advised Ms Kilvington that she should be concentrating on the RSD at that point.”
Later in the hearing when I further examined Dr Murphy, I put to him the following:
“You were talking about Ms Kilvington’s depression and the feeling I got from what you were saying is that your view was she had depression for – has had depression for many years, even before you saw her for the first time, your understanding that she had depression even then? – Yes
So when you saw her and you did your reports in early 2015, your view was she had depression. Do you think it was described as severe depression? –Moderate to severe.
Moderate to severe? --- Yes.
Can I just – have you seen the impairment tables? You’ve heard of the impairment tables? – Yes.
Have you seen them? – Yes. As a matter of fact I’ve recently given a document to Odette. I believe that she should’ve sent it to you, sort of laying out how I think her problem corresponds with the points on the impairment table.”…
Having considered further the oral evidence of Dr Murphy, I am satisfied that at the time of his medical report on 19 February 2015, the applicant’s depression was moderate to severe under Table 5 (Mental health function) of the Impairment Tables.
When Mr Visser cross-examined Dr Murphy later about the impairment points in Table 5, the following interchange occurred:
“So when you say, doctor, moderate to severe, you’re using the language of those tables? --- Yes, attempting to, yes.
Yes, so falling between those two tables somewhere? – Yes”.
Following the oral evidence of Dr Murphy, Dr Hamilton was telephoned to obtain his evidence. During the course of the telephone call, the reports of Dr Hamilton dated 25 January 2016 and 15 June 2016 were referred to. In referring to these reports, Mr Visser sought to have another report of Dr Hamilton dated 14 December 2015 exhibited. I exhibited this report as Exhibit R2. However, I have since found that the report dated 14 December 2015 was not of Dr Hamilton, but was of Dr Murphy. As these reports of Dr Hamilton were well outside the Claim Period, I did not find them of assistance in considering the applicant’s case. The same can be said of the medical report of Dr Helen Tingay dated 27 August 2015.
In reviewing the reports of Dr Murphy, Dr Hamilton and Dr Tingay, it was necessary for me to have regard to relevant decisions of Tribunals and the Federal Court in cases involving claims for DSP. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[7] the Tribunal Member 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). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[7] [2012] AATA 922.
Of further particular relevance is the decision of Gyles J of the Federal Court in re Harris v Secretary, Department of Employment and Workplace Relations [8], where the learned judge said at [1]:
“… 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.”
[8] [2007] FCA 404.
In applying the decisions in Bobera and Harris and in an analysis of subsection 94(1)(b) of the Act, it is clear that the reports and evidence of Dr Hamilton and Dr Tingay do not relate to a condition (or conditions) that occurred within the Claim Period.
As to the evidence of Dr Murphy and whether the applicant’s depression was moderate or severe under Table 5 during the Claim Period I have reviewed the relevant descriptors for 10 points (moderate) and 20 points (severe) in the Impairment Tables. Subsection 11(1)(c) of the Impairment Tables provides that where an impairment is considered as falling between two impairment ratings (that is, 10 points and 20 points) the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
In my view, on the evidence, the applicant does not satisfy all the descriptors for the severe level of impairment under Table 5. In these circumstances, the applicant’s total impairment rating under Table 2 and Table 5 will be 20 impairment points. Although the applicant’s total impairment rating is 20 points under the Impairment Tables, there is no impairment of 20 points under a single impairment table. In these circumstances, the applicant does not have an impairment which is a severe impairment under subsection 94(3B) of the Act. The applicant is thus required, under paragraph 94(2)(aa), to have actively participated in a program of support within the meaning of subsection 94(3C) of the Act.
During the course of the hearing, Ms Kilvington acknowledged that she had not participated in a program of support. Moreover, in a letter from Ms Rosa Novokreshenova from Advanced Personnel Management dated 14 October 2016, it became clear that the applicant had been a client for only 6 days and had become unable to continue to engage in the program of support.
On the evidence available, it appears that the applicant has not actively participated in a program of support as required under subsection 7(1) of Part 2 of the Determination. Under subsection 7(2), the requirements of subsection 7(1) will be satisfied in relation to the applicant and a program of support if the applicant participated in the program for at least 18 months during the Claim Period. As the applicant has not participated in the program of support for the required time during the Claim Period, the requirements of subsection 7(1) of the Determination have not been satisfied. It follows that, pursuant to subsection 94(2) of the Act, the applicant does not have a continuing inability to work.
CONCLUSION
The respondent submitted (and I am satisfied) that the applicant does not have a continuing inability to work as required under paragraph 94(1)(c) of the Act. In these circumstances, the applicant is not qualified for DSP as at the date of claim or within 13 weeks of that date.
I have a good deal of sympathy for Ms Kilvington. In reaching the decision I made in paragraph 42, I was satisfied that there was no severe impairment. If, during the Claim Period, there had been an impairment of 20 points under a single impairment table, this would have prima facie constituted a severe impairment under subsection 94(3B) of the Act. In these circumstances, it seems to me it would not have been necessary for Ms Kilvington to have actively participated in a program of support.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 47 (forty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

........................[Sgd]................................................
Administrative Assistant
Dated: 24 January 2017

Date(s) of hearing: 15 November 2016

Applicant: In person

Advocate for the Respondent: Mr C Visser

Solicitors for the Respondent: Department of Human Services

[2017] AATA 50

24 January 2017

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Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

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Appeal

Date(s) of hearing:	15 November 2016
Applicant:	In person
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Department of Human Services