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

Lapworth and Secretary, Department of Social Services (Social services second review) [2020] AATA 1887 (23 June 2020)
Division:GENERAL DIVISION
File Number: 2019/4963
Re:Phillip Lapworth
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:23 June 2020
Place:Perth

The decision of the Authorised Review Officer dated 26 February 2019, as affirmed by the AAT1 on 25 July 2019, is affirmed.
...............[Sgd].........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – whether the Applicant had an impairment rating of 20 points or more – Impairment Table 1 – heart disease, diabetes and other conditions – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991
(Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(c),

94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(5)
Social Security (Administration) Act 1999 (Cth) – s 179(2)(a), Sch 2, cl 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
(Cth) – ss 3, 5(2), 6, 6(4), 6(5), 6(6), 10(5), 11,

Table 1
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
23 June 2020
OVERVIEW

The Applicant is a 56-year-old man who is seeking review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of the Administrative Appeals Tribunal (Tribunal).
He initially lodged a claim for a disability support pension (DSP) on 20 August 2018

(T8/130–160). However, his claim was rejected by Centrelink on 19 November 2018 (T16/183–184) on the basis that he was not eligible (Original Decision).
The Applicant asked for an internal departmental review of the Original Decision. However, on 26 February 2019, an Authorised Review Officer (ARO) of Centrelink wrote to the Applicant to advise him that his review was unsuccessful (T24/198–203) (ARO Decision).
The Applicant then sought review of the ARO Decision in the AAT1. The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 25 July 2019

(T2/3–9). The ARO Decision of 26 February 2019, as affirmed by the AAT1 decision of

25 July 2019, is the Reviewable Decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth) (Administration Act).
On 15 August 2019, the Applicant lodged an application seeking review of the Reviewable Decision in the AAT2 (T1/1–2).
ISSUE
The overall issue for determination by this Tribunal is whether the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment during the Qualification Period;
(b)if so, whether the impairment was fully diagnosed, treated and stabilised during the Qualification Period and attracted a rating of 20 points or more under Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and
(c)whether the Applicant had “a continuing inability to work”.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 20 May 2020. The parties appeared by telephone, in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing by telephone.
The Applicant was self-represented. Mr Defranciscis appeared for the Respondent. Oral submissions were made by both parties. The Applicant also gave oral evidence to the Tribunal.
The following documentary material was before the Tribunal and was admitted into evidence at the hearing:
(a)medical report from the Applicant’s general practitioner dated 14 January 2020 (Exhibit A1);
(b)Section 37 (T-documents) numbered T1 to T30, comprising 236 pages (Exhibit R1); and
(c)Secretary’s Statement of Facts, Issues and Contentions dated 19 February 2020 with Annexure A and B (Exhibit R2).
LEGISLATION
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(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; …
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(c)the condition has been fully stabilised; and
…
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Sections 6(5) and (6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 11 of the Impairment Tables states:
(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 …
“Table 1 – Functions requiring Physical Exertion and Stamina” is the table that is relevant to the Applicant’s claim for a DSP and is discussed in more detail below under the heading “Impairment Rating”.
Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
Section 94(3B) of the Act provides that “[a] person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.” (Original emphasis.)
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
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.
(Original emphasis.)
Section 94(5) of the Act continues to define “work” 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.
(Original emphasis.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13 week qualification period from the date of 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.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility. The Applicant lodged his claim for a DSP on 20 August 2018. Consequently, the relevant qualification period is

20 August 2018 to 19 November 2018 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)

68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the Court concerning the operation of these important provisions.

It is to be noted at the outset that, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at 7 [27] and [28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
Impairment rating
The “Introduction to Table 1” in the Impairment Tables states:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (eg. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestos, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
The AAT1 assessed the Applicant as having a “mild” functional impairment of five points under Table 1 for his heart disease condition. A mild functional impact is defined as follows:
There is a mild functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
(Original emphasis.)
A “moderate” functional impairment, which would attract 10 points, is defined by Table 1 of the Impairment Tables as:
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).
(Original emphasis.)
Whereas, a “severe” functional impact under Table 1 of the Impairment Tables, which would attract 20 points, is defined as follows:
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.
(Original emphasis.)

To determine the appropriate functional impact to be assigned to the Applicant’s heart disease and other medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from physical impairments during the Qualification Period?
The Respondent accepted that the Applicant had physical impairments during the Qualification Period, and therefore satisfied s 94(1)(a) of the Act. The primary condition that led to the Applicant’s impairments was a longstanding ischaemic heart disease condition (heart disease condition). However, the Respondent also acknowledged that the Applicant suffered from other conditions including diabetes, sleep apnoea, hypothyroidism, hypercholesterolaemia and hypertension (T8/154; T12/170; Exhibit R2, para [34], [36] and [42]).
Did the Applicant have an impairment rating of at least 20 points under the Impairment Tables?
Heart disease condition
The Respondent accepts that the Applicant’s heart condition is permanent. This is because, at the time of the Qualification Period, the condition was fully diagnosed, treated and stabilised, as well as being more likely than not to persist for more than two years. This was based on the medical evidence stating that the Applicant underwent coronary angiography and stent angioplasty in 2006 (Exhibit A1; T4/106), that his heart condition is controlled by medication, that he has a chronic disease management plan in place (T12/171), and that his condition was likely to persist for more than two years (T11/169). Additionally, when Centrelink contacted the Applicant’s general practitioner on 16 November 2018, he “revealed that nil significant improvement in function is anticipated, even with further cardiologist review” (T14/175).
The Tribunal agrees that the medical evidence supports the conclusion that the Applicant’s heart condition was fully diagnosed, treated and stabilised at the time of the Qualification Period.
The Tribunal will now examine the evidence of the functional impact of the Applicant’s heart condition during the Qualification Period.
Departmental records state that an officer from Centrelink spoke with the Applicant’s general practitioner on 15 October 2018 who advised that the Applicant had (T12/171):
Moderate to severe impacts due to combined impact of diabetes and ischaemic heart disease including shortness of breath, reduced endurance, requires assistance with household tasks, requires assistance to get from a car park to the shopping centre, needs to park close to the door and would have difficulties sustaining sedentary work related tasks due to the impacts of fatigue on his concentration and memory.
Another note made by Centrelink after speaking with the Applicant’s general practitioner on 16 November 2018 (T14/175) recorded that:
He [the Applicant’s general practitioner] stated that his [the Applicant’s] SOB [shortness of breath] is very mild - no ongoing symptoms and with physical exertion only. He is generally asymptomatic.
This note also recorded that the Applicant’s “GP supported a return to work as long as it is not physically demanding eg long truck driving, heavy lifting” (T14/175).
The Applicant also had a face-to-face job capacity assessment on 15 November 2018. The job capacity assessment report recorded that (T15/177):
GP contact … indicated moderate to severe impacts due to combined impact of diabetes and ischaemic heart disease including shortness of breath, reduced endurance, requires assistance with household tasks, requires assistance from getting form [sic] car park to shopping centre[.] GP added that Mr Lapworth would have difficulties sustaining sedentary work related task due to impact on concentration and memory.
Mr Lapworth reported SOB [shortness of breath] with walking about 15 yards. He was observed to have some SOB [shortness of breath] with talking. He reported that he is able to walk around a shopping centre but with rests. He avoids stairs due to SOB [shortness of breath]. Mr Lapworth reported a driving tolerance of about 1 hour.
A letter from the Applicant’s general practitioner dated 7 December 2018 (T20/188) stated that the Applicant “has a history of type II diabetes mellitus and ischaemic heart disease”. The letter listed the Applicant’s “Symptoms & Functional Impact” as being:
- He [the Applicant] c/o [complains of] shortness of breath on exertion.
- Moderate functional impact on activities requiring physical exertion.
- Reports shortness of breath, dizziness, fatigue and bilateral ankle pain after walking 100-150m.
- Reports difficulty performing day to day activities like cooking, washing and cleaning.
A further medical certificate dated 10 December 2018 from the Applicant’s general practitioner (T21/195) states his diagnosis as being “Ischaemic Heart Disease” and
“Type II DM [diabetes]”. The medical certificate listed the Applicant’s symptoms from his heart condition as being:
Shortness of breath on exertion.
Moderate functional impact on activities requiring physical exertion.
Shortness of breath, dizziness, fatigue and bilateral ankle pain after walking for

100 - 150m.
Has some difficulty performing day to day activities; cooking/washing/clean.
In a letter dated 14 January 2020 (Exhibit A1/2), the Applicant’s general practitioner stated that:
He reports exertional dyspnoea and noticed difficulties walking upstairs or uphill ever since his heart attack in 2006. He also reports feeling tired all the time. Occasionally, he reports dizziness and leg cramps. He reports not being able to work any physical job due to his dyspnoea, tiredness and leg cramps. He lives with house-mates [sic] and does not do cleaning, gardening or any physical work due to his above mentioned symptoms. He does cook for himself. He reports he has always been [a] self-employed truck driver in the past and no one is offering him an employment due to his heart attack. He also reports that he can not [sic] read or write properly which also effects [sic] his future employment. He reports attending school till year-7 then pulled out of the school to work. He started working full-time since he was 15 years old.
At the AAT2 hearing, the Applicant’s evidence was that during the Qualification Period he could do some basic cooking (making a toasted sandwich or putting tin spaghetti on the stove), could only walk about 150 metres before he was short of breath, rarely did housework because his housemates did it for him, but that he could rinse his cup and wash his plate after a meal, and that he could put laundry in the washing machine. He stated that although his housemates did most of the housework, he was able to put cutlery in the cutlery drawer and empty the dishwasher. His housemate changed his bedsheets, but he was able to pull the doona over his bed. He thought he would have been able to make the bed or change the bed sheets if he tried to. The Applicant further stated that he got short of breath if he tried to do too much, tried to avoid using stairs, and that he could drive for about 45 minutes before having to stop and have a rest. He described being able to walk around shops for five or ten minutes before having to stop and have a rest (transcript/13–18).
This evidence is also generally consistent with the evidence given to the AAT1 by the Applicant, which the Member summarised as follows (T2/7):
As a result of the heart attack he gets short of breath if he tries to do too much. He can walk for 200 metres before needing a rest. He tries to avoid stairs. His friends take care of most of the domestic tasks where he is living. He has a car and can drive for half an hour or so with no difficulty. He can look around the shop in the shopping centre but cannot undertake big shopping trips.
At the AAT2 hearing, the Applicant agreed that his heart condition and diabetes condition were of a mild functional impact. However, he expressed concern that he would not be able to find employment due to his heart condition. The following exchange is relevant (transcript/18):
MR DEFRANCISCIS: Mr Lapworth, the only other thing I would take you to I guess is you spoke with an authorised review officer, it was some time ago so you might not explicitly remember the conversation, but he - I think it was a he, I’m not sure, a person phoned you from the department, from Centrelink with the decision around February 2019, so I know we’re going back some time. But there’s a note on his file note at T24, page 202, Senior Member.
SENIOR MEMBER: Thank you.
MR DEFRANCISCIS: It says - now, this is his file note of course, it confirmed the medical conditions were - and he’s got an acronym for it, fully diagnosed, treated and stabilised. And the heart disease was five points under table 1 and the diabetes was nil functional impact. Now it says:
Customer agrees that these conditions are a mild functional impact, however, he stated that he would not be hired because of the liability of him potentially having MI [myocardial infarction].
…
MR DEFRANCISCIS: The question I guess, Mr Lapworth, do you recall speaking with the authorised review officer and agreeing that your conditions were perhaps mild but that your main problem was that you couldn’t work?
Applicant: Yeah, well, yeah, well, because I used to drive a truck, right, and no insurance company will hire me because I’m a liability having another heart attack behind the wheel. Now, I’ve done - I’ve driven trucks most of my life. Now, I’m illiterate, I can’t read and write, so I’ve tried getting other jobs and it’s just like - they just keep going, no, no, no, so what - what do I do? And even I’ve told the job place about my heart attack and that and they - they said there’s very limited work - very limited they could do for me.
Based on the evidence of the Applicant and the medical evidence outlined above, the Tribunal finds that the functional impact of the Applicant’s heart condition was “moderate”, as defined by Table 1 of the Impairment Tables. This evidence included his frequent symptoms of shortness of breath if he tried to do too much, his inability to walk far outside his home (150-200 metres before having to rest), and the difficulty he had performing some daily household activities, although he could undertake some basic cooking, washing his plates, and putting laundry in the washing machine. Consequently, the Applicant’s functional impairment from his heart condition would attract 10 points under Table 1.
Other conditions
As noted above, the Applicant’s other conditions include diabetes, sleep apnoea, hypothyroidism, hypercholesterolaemia and hypertension.
With respect to the Applicant’s diabetes, the Tribunal notes that the letter from the Applicant’s general practitioner dated 14 January 2020 (Exhibit A1) stated that the Applicant had been referred to an endocrinologist for the management of his diabetes and was last seen on 13 November 2019. The letter stated that the endocrinologist “has made adjustment to his medications and there is a plan to start basal bolus insulin if current regimen does not work”. This suggests that the Applicant’s diabetes was not fully treated and stabilised at the time of the Qualification Period, as this letter was written more than a year after the Qualification Period.
Other information before the Tribunal about the Applicant’s diabetes is the record of a phone conversation with the Applicant’s general practitioner on 5 October 2018, referred to in paragraph [42] above, which notes “[m]oderate to severe impacts due to combined impact of diabetes and ischaemic heart disease”. The reference to a “combined impact” suggests that the functional impact from both conditions is the same.
However, the note made by Centrelink after speaking with the Applicant’s general practitioner on 16 November 2018 on the telephone, referred to in paragraph [40] above, stated that the Applicant’s “diabetes has nil significant impact on function” (T14/175).
Thus, even if the Applicant’s diabetes was fully diagnosed, treated and stabilised, the minimal evidence outlined above suggests that it either has no functional impact, or has the same functional impact as the Applicant’s heart condition. The Tribunal notes s 10(5) of the rules for applying the Impairment Tables which provides that: “[w]here 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”. Consequently, no additional points could be afforded for the Applicant’s diabetes condition.
With respect to the other conditions of sleep apnoea, hypothyroidism, hypercholesterolaemia and hypertension, there is insufficient corroborating medical evidence before the Tribunal, about whether these conditions were fully diagnosed, treated and stabilised, and of the impact of these conditions on the Applicant’s functional ability at the time of the Qualification Period. Consequently, no impairment points can be afforded for these conditions.
The Tribunal also notes a letter from Cyrenian House dated 17 April 2019 (T26/205). This letter refers to “physical and mental health issues that impact his [the Applicant’s] ability to obtain employment” and that his “recovery from substance use, and stress are likely to prevent him from working or retraining in the future”. There is, however, no further information about any mental health conditions, whether they are fully diagnosed, treated and stabilised, and their functional impact (if any) before the Tribunal.
CONCLUSION
During the Qualification Period the Applicant was not eligible to receive a DSP. This is because his heart condition can only be afforded 10 points under Table 1 of the Impairment Tables. There is insufficient information regarding his other conditions to allocate any further points.
As the Applicant’s conditions did not attract the required 20 points under the Impairment Tables, it is unnecessary to consider whether the Applicant had “a continuing inability to work” under s 94(1)(c)(i) of the Act.
The Tribunal understands that the Applicant will be disappointed by this decision, particularly because he was previously receiving a DSP. At the AAT2 hearing, the Applicant stated that he was experiencing substantial stress trying to obtain a DSP again.
As explained by the Tribunal to the Applicant at the hearing, he can make a new claim for a DSP at any time in the future. In any new claim, he would be able to put forward additional, and more up to date, medical evidence regarding his heart disease and other medical conditions.
DECISION
For the reasons set out above, the Applicant did not meet the eligibility requirements for a DSP during the Qualification Period. Consequently, the Reviewable Decision is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........[sgd].............................................................
Associate
Dated: 23 June 2020

Date of hearing: 20 May 2020

Applicant: Self-represented

Representative for the Respondent: Mr K Defranciscis, Services Australia

[2020] AATA 1887

23 June 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	20 May 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr K Defranciscis, Services Australia