Koya and Secretary, Department of Social Services (Social services second review) - [2022] AATA 439

Koya and Secretary, Department of Social Services (Social services second review) [2022] AATA 439 (17 February 2022)
Division:GENERAL DIVISION
File Number: 2021/1360
Re:Anees Koya
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member C. J. Furnell
Date:17 February 2022
Date of written reasons: 15 March 2022
Place:Melbourne

The Tribunal affirmed the decision the subject of review under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) pursuant to a decision made on 17 February 2022. The following are the written reasons for that decision.
................ [SGD]........................................................
Senior Member C. J. Furnell
Catchwords
SOCIAL SECURITY – application for Disability Support Pension refused – chronic lower back pain with radiculopathy – whether Applicant’s condition attracted an impairment rating of at least 20 points – whether condition was fully diagnosed, treated and stabilised in the qualification period – condition not fully treated and stabilised in qualification period – unable to assign an impairment rating – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Social Services v Sziva [2019] FCA 23
REASONS FOR DECISION
Senior Member C. J. Furnell
15 March 2022

On 30 March 2020, the Applicant applied for a disability support pension (DSP).[1]
[1] T4, pp.25-55.
The rejection of that application on 7 April 2020 was affirmed by a Centrelink authorised review officer on 1 October 2020.[2] That decision was, in turn, affirmed on 22 February 2021 by the Tribunal’s Social Services and Child Support Division (SSCSD).[3]
[2] T3, pp.18-23.
[3] T2.
The Applicant applied to the General Division of the Tribunal for review of the decision as affirmed by the SSCSD.[4]
[4] Social Security (Administration) Act 1999 (Cth), s 179(2); T1.
The underlying question in issue is whether the Applicant qualified for the DSP for which he applied. I am not satisfied that he did so qualify.
Put shortly and expressed in terms of criteria that need to be met to qualify for a DSP, while the Applicant had an impairment, it was not such as to attract a rating of 20 points or more under the “Impairment Tables”. His condition was not fully treated and fully stabilised and, hence, was not permanent. Even if it had been permanent, however, the material before me was not such as to warrant assignment of 20 points to the resulting impairment (as was implicitly acknowledged by the Applicant when he stated that an assessment of him under the Impairment Tables had not been conducted). Moreover, while I do not need to decide the matter, it is unlikely that the Applicant would be considered to have had a continuing inability to work.
WHEN DOES A PERSON QUALIFY FOR A DSP?
An application for a DSP is required to be either granted or rejected.[5]
[5] Social Security (Administration) Act 1999 (Cth), s 36.
Its grant is required where the relevant applicant qualifies for the pension and the pension is payable.[6] Hence, two conditions are of relevance; qualification and payability.
[6] Ibid, s 37.
The provisions governing a person’s qualification for a DSP are found in Part 2.3 (and, in particular, in s 94) of the Social Security Act 1991 (Cth) (the Act).
Section 94 sets out criteria to be satisfied in order to so qualify. Those criteria include that:
(a)the person concerned has a physical, intellectual, or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the “Impairment Tables”; and
(c)the person has a continuing inability to work (where, as here, there is no involvement in a scheme known as the ‘supported wage system’).
As for payability, the provisions governing this issue are found in the Social Security (Administration) Act 1999 (Cth) (SSA).
Pursuant to the SSA, a DSP is payable on the “start day” in relation to the pension.[7]
[7] Ibid, s 41.
The start day in relation to a DSP is generally the day on which the claim for the pension is made.[8] If the person does not then qualify for it, however, the start day is the first day in the 13-week period after the claim is made on which the person qualifies for the pension.[9]
[8] If the Applicant had contacted the Respondent about his DSP claim prior to actually making the claim, then the earlier date might have been the date on which the 13-week period commenced: see SSA, s 13. Neither party suggested, however, that the Applicant had done so.
[9] SSA, s 42 and Schedule 2, cls 3(1) and 4.
Hence, “…[i]t follows that …[an applicant’s] entitlement to the DSP must be considered as at the date of his claim and in the 13 weeks thereafter, and that any change in …[the applicant’s] health after that 13 week period is irrelevant save insofar as it may cast light on the position at the relevant time”.[10]
[10] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
Accordingly, for the Applicant to be entitled to a DSP, he must have satisfied the pension qualification criteria on the date of his claim (30 March 2020) or on a day in the period commencing on that date and ending on the day being 13 weeks thereafter (being 29 June 2020).
Hence, the question in issue in this proceeding is whether the Applicant qualified for the DSP in the period from 30 March 2020 to 29 June 2020 (the QP).
DID THE APPLICANT HAVE AN IMPAIRMENT IN THE QP?
The Respondent conceded that the Applicant had a physical, intellectual or psychiatric impairment in the QP.[11]
[11] Respondent’s Statement of Facts, Issues and Contentions of 20 December 2021 (SFIC) at [17].
The nature of the impairment that he then had, or may then have had, appears not to be in dispute. It comprises (or at least results from) a back injury sustained in October 2016[12] giving rise to chronic lower back pain with radiculopathy.
[12] T4, p.49
DID THE IMPAIRMENT ATTRACT A RATING OF 20 POINTS OR MORE IN THE QP?
As stated earlier, I am not satisfied that the Applicant’s impairment is of 20 points or more under the “Impairment Tables”.
Those tables are currently found in an instrument made under s 26 of the Act and which is entitled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables). That instrument not only sets out certain tables but also determines rules to be complied with in applying the Tables.
Under the Tables, a rating is assigned to an impairment in an endeavour, essentially, to measure the loss of functional capacity affecting a person’s ability to work that results from a person’s medical condition.[13]
[13] Tables, s 3: definition of “impairment”, being a loss of functional capacity affecting a person’s ability to work that results from the person’s medical condition.
In considering the Tables, I mention that:
(a)an impairment to which a rating can be assigned is not a necessary result of a diagnosed or permanent condition;[14]
(b)of the Tables, the correct one or ones to be utilised in any particular case generally depends on the nature of the relevant impairment.[15] Multiple tables can be used if a particular condition causes multiple losses of function,[16] but the same impairment cannot be double counted, whether through the use of multiple tables[17] or because multiple conditions cause or contribute to the same impairment;[18]
(c)self-reported symptoms are generally insufficient to justify assignment of a rating under the Tables, absent corroborating evidence.[19]
[14] The Tables, 6(8), 10(5).
[15] The Tables, 10(1).
[16] The Tables, 10(3).
[17] The Tables, 10(4).
[18] The Tables, 10(5)-(6).
[19] The Tables, 8(1).
For an impairment to be assigned any points under the Tables, let alone 20 points, it must be capable of being assigned a rating.
In order to be so capable, first, the condition causing the impairment must be permanent and, second, the impairment must be more likely than not to persist for more than two years.[20]
[20] The Tables, 6(3).
When is a condition permanent?
For a condition (being a medical condition)[21] to be permanent, it needs to be:[22]
(a)fully diagnosed by an appropriately qualified medical practitioner;
(b)fully treated;
(c)fully stabilised; and
(d)more likely than not, in the light of available evidence, to persist for more than two years.
[21] The Tables, 3.
[22] The Tables, 6(4).
For a condition to be fully diagnosed, the evidence must show that the DSP applicant suffered from the condition in the relevant QP and that the condition has been diagnosed by an appropriately qualified medical practitioner. It is not necessary, however, to show that such a diagnosis was made in the QP.[23]
[23] Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
In considering whether a condition is fully diagnosed and fully treated, it is necessary to consider:[24]
(a)whether there is corroborating evidence for the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
[24] The Tables, 6(5).
Lastly, a condition will only be considered to have been fully stabilised if, in circumstances where the treatment for the condition that had been undertaken by a person:
(a)was “reasonable treatment,”[25] 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; or
(b)was not “reasonable treatment,” either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result from the undertaking of reasonable treatment or there is a medical or compelling reason for the person not to undertake reasonable treatment.[26]
[25] A concept defined in the Tables, 6(7).
[26] The Tables, 6(6).
I turn now to consider whether the Applicant’s back condition is permanent and, insofar as it is, what rating ought to be assigned under the Tables to any impairment resulting from it. Before doing so, however, I note that the Applicant did not contend, in either material lodged with the Tribunal, or in submissions made orally at the hearing of this proceeding, that his impairment met the descriptors that might have warranted assignment of a rating of 20 points or more under any particular Table.
Back condition
I find that the Applicant’s back condition was fully diagnosed in the QP. I refer, in particular, to radiologist reports of:
(a)   28 March 2018 concerning an x-ray of the Applicant’s spine which revealed multilevel degenerative changes most prominent at the L5/S1 level;[27]
(b)   28 May 2018 concerning a CT scan of the Applicant’s spine which revealed multilevel moderate degenerative changes to the lumbar spine, bilateral moderate foraminal narrowing at L4/5 with L4 contact and probable impingement, bilateral lateral recess narrowing with probable bilateral L5 impingement and moderate left and severe right foraminal narrowing with right L5 compression and left-sided impingement at the L5/S1 level;[28] and
(c)   14 February 2019 concerning an MRI scan which revealed moderate right neural exit foraminal stenosis at the L5/S1 level and contact, and possible mild compression, of the exiting right L5 nerve root.[29]
[27] T5, p.57.
[28] T5, p.59.
[29] T5, p.61.
In finding the Applicant’s condition to be fully diagnosed, reference is also made to the report of 13 May 2020 in which Dr Akil, neurosurgeon, opines that “there is certainly a significant disc disease at the level of L5/S1 with irregularly shaped endplates surrounding it. There is also a right L5 nerve compression at the level of the foramen”.[30]
[30] T7, p.76.
While fully diagnosed, the Applicant’s back condition was not fully treated and stabilised in the QP.
While the Applicant’s evidence was that he suffered the injury giving rise to his back condition in 2016 and that his symptoms were such as to warrant physiotherapy and massage on multiple occasions in 2017, 2018 and 2019, he only saw a neurosurgeon in May 2020. He also never saw an orthopaedic surgeon before or during the QP and never saw a specialist pain physician or participated in any pain management clinic. Moreover, further treatment was being proposed in the QP, treatment which I am not satisfied was unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work.
In his report of 13 May 2020 Dr Akil opined that the Applicant could “… benefit greatly from a fusion surgery that takes into account a complete compression of the right L5 nerve root and removal of the disc at L5/S1. I however prefer him to have a bone scan with SPECT views to confirm the discogenic source of his lower back pain”.[31]
[31] T7, pp.75-6.
In a Cranbourne Osteopathy letter of 23 May 2020, an unnamed author recommended the adoption of a multidisciplinary approach to the Applicant’s care.[32]
[32] T7, p.78.
In a certificate of 9 June 2020, the Applicant’s treating general practitioner, Dr Rupasinghe, stated that a surgical review was planned.[33]
[33] T9, p.82.
In a further certificate of 2 September 2020, Dr Rupasinghe stated that a pain management program was planned and that “with appropriate rehabilitation and a pain management program …[the Applicant] should be able to cope with appropriate modified/light duties”.[34]
[34] T9, p.84.
Even if, contrary to what I have found, the Applicant’s back condition could be considered to have been “permanent” in the QP, I am not satisfied that a 20-point rating would be assigned to the resultant impairment under the Tables.
Of the Tables, the Table applicable to spinal conditions (Table 4) is of most relevance to the Applicant’s back condition. To attract a 20-point rating under that Table, it would be necessary that the Applicant have been unable to perform any overhead activities; turn his head, or bend his neck, without moving his trunk; bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.
While, as the Respondent noted, some material before the Tribunal does describe the nature of the impairment suffered by the Applicant as a result of his back condition, the impairment so described goes nowhere near matching the descriptors of a 20-point rating under Table 4.[35]
[35] At T5, p.69, it is said that bending, lifting, sitting, walking on hard surfaces causes the Applicant pain. At T7, p.78 it is said that the Applicant’s activities of daily living are restricted by pain. In the context of his proceeding before the SSCSD, the Applicant was said to have stated that he could drive his car for 10 to 30 minutes: T2, p.7.
The Applicant was asked at the hearing of this proceeding to identify the material before the Tribunal that would be supportive of a submission that the impairment resulting from his back condition satisfies these descriptors. The Applicant did not do so. Instead, his response was simply that his impairment had not been assessed under the Tables.
DID THE APPLICANT HAVE A CONTINUING INABILITY TO WORK IN THE QP?
Having found that the impairment resulting from the Applicant’s back condition does not attract a rating of 20 points under the Tables, it is not necessary to consider whether he had a continuing inability to work in the QP. Nevertheless, I suspect that he did not.
I note that an aspect of the usual continuing inability to work criterion would not need to have been met if (contrary to what I have found) that impairment had attracted a 20-point rating.[36] In particular, it would not have been necessary for the Applicant to have actively participated in a program of support. In that case, he would have been relieved of the requirement to so participate as his impairment would have been considered under the Act to have been “severe”.[37]
[36] Act, s 94(2).
[37] Act, ss 94(2)(aa) and 94(3B).
Nevertheless, to be considered to have had a continuing inability to work, it would still have been necessary that Applicant be prevented by his impairment from working or undertaking a training activity for at least 15 hours per week within 2 years.[38]
[38] Act, ss 94(2)(a) and 94(2)(b).
The material before me is not such as to suggest that this requirement is met. In this regard:
(a) In a certificate of 9 June 2020, the Applicant’s general practitioner, Dr Rupasinghe, estimated that the Applicant’s symptoms would only affect his capacity to work and study for a period of between three and 12 months.[39]
(b) In a certificate given outside the QP on 2 September 2020, Dr Rupasinghe changed that estimate to 24 months but then stated that, while the Applicant could not do any heavy work, “with appropriate rehabilitation and a pain management program he should be able to cope with appropriate modified/light duties”.[40]
(c) In an employment services assessment report dated 12 January 2021 (outside the QP), the Applicant’s work capacity was assessed as being 15-22 hours per week within 2 years with intervention, in moderate semi-skilled employment.[41]
[39] T9, p.82.
[40] T9, p.84.
[41] T14, 152
CONCLUSION
The Applicant does not qualify for the DSP for which he applied in March 2020. As such, the decision the subject of review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the written reasons for the decision of Senior Member C.J. Furnell.

....................... [SGD]...........................................
Associate
Dated: 15 March 2022

Date of Hearing 17 February 2022

Applicant: Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Aarabi Raveendiran

Legal Services Division, Services Australia