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

[2016] AATA 600

Leng and Secretary, Department of Social Services (Social services second review) [2016] AATA 600 (11 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1146
Re	Justin Leng
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President F J Alpins
Date	11 July 2016
Date of written reasons	12 August 2016
Place	Melbourne

For the reasons given orally at the conclusion of the hearing of this proceeding, the decision under review is affirmed.

...............[sgd]. ..................................................

Deputy President F J Alpins

SOCIAL SECURITY – disability support pension – spinal condition - mental health condition – whether applicant’s impairment was of 20 points or more under the Impairment Tables during the relevant period

Legislation

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2A)

Legislative Instruments Act 2003 (Cth) ss 5, 13

Social Security Act 1991 (Cth) ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth) ss 39, 41, 42, Sch 2 cls 3, 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5, 6, 7, 8, 10, 11

Cases

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368

Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180

Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252

King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184

Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Whittaker v Comcare (1998) 86 FCR 532

REASONS FOR DECISION

Deputy President F J Alpins

12 August 2016

1. On 11 July 2016, the Tribunal heard this application for review and then gave reasons orally for its decision. The applicant has requested a written statement of those reasons. Set out below is that statement, given pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth).

   Introduction

2. This application for review concerns the respondent’s decision dated 1 December 2014 to reject the claim of the applicant, Mr Justin Leng, for disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (the “Act”).

3. Mr Leng’s claim was rejected on the basis that his “impairment” did not satisfy s 94(1)(b) of the Act, in that it did not attract an impairment rating of 20 points or more under the Impairment Tables, being the tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”).

4. The issue is whether Mr Leng was qualified for DSP at any relevant time. As he made his claim for DSP on 4 August 2014, it follows that the relevant period for assessment of his qualification for DSP is the period commencing on that day and ending 13 weeks thereafter (the “relevant period”) (ss 39(3), 41, 42 and cls 3(1) and 4(1) of Sch 2 to the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”)).

5. The hearing was adjourned shortly after its commencement upon Mr Leng’s application, to allow him the opportunity to lodge further medical reports, which he did prior to the resumption of the hearing.  However, Mr Leng declined to give evidence and also declined to make submissions at the hearing.    

   FACTS AND PROCEDURAL HISTORY

6. Mr Leng’s claim for DSP was made with respect to diagnosed conditions, which were expressed in what appears to have been the accompanying medical report to be (read in context given some illegibility) “chronic lower back pain – minor disc prolapse” and also “psychosis schizophrenia”.  Mr Leng’s claim was rejected; a Centrelink authorised review officer affirmed the decision to reject his claim on 1 December 2014 on the basis that Mr Leng’s impairment was not of 20 points or more under the Impairment Tables (s 94(1)(b) of the Act) and on the further basis, relevantly, that Mr Leng did not have “a continuing inability to work” for the purposes of s 94(1)(c)(i) of the Act. The respondent’s decision was then affirmed by the Social Security Appeals Tribunal (“SSAT”), on the basis that s 94(1)(b) was not satisfied.

7. I now set out the medical evidence before the Tribunal, in chronological order.  A radiology report prepared by Dr A Green concerning his examination of Mr Leng conducted on 14 September 2000 described Mr Leng has having a “[p]revious L4 fracture associated with desiccation of the L3/4 disc” his spine and referred to “some mild broadbased disc bulge” at that level and “[m]ild central type disc protusion … at the L5S1 level”.

8. Also in evidence before the Tribunal was a medical certificate dated 21 April 2005 prepared by Dr E Nicholson, which stated that Mr Leng had been diagnosed as suffering from schizophrenia; his prognosis was stated to be uncertain.

9. In a report dated 22 June 2009 concerning a CT scan of Mr Leng’s lumbar spine, Dr Wayne McGregor concluded that there was “[m]ild central disc protusion at L5/S1 with thecal compression in the midline”. 

10. Dr Peter Kudelka, orthopaedic surgeon, recorded the following history in his report dated 15 September 2009 concerning Mr Leng’s workers compensation claim:

    “There had been a previous back injury 1999 in a motor vehicle accident when he was treated for a compression fracture of a the 4^th lumbar vertebra with a back brace, physiotherapy and one year off work.  He then returned to work as a Labourer [sic] and had no significant symptoms for nine years until the lifting incident in June 2009”.

    Mr Kudelka opined that Mr Leng’s condition is an aggravation of pre-existing degenerative changes, that he did not “think he will be fit for labouring work in the future”.  He concluded that Mr Leng was “fit for suitable employment but this would have to involve minimising strains on the lumbar spine”.

11. In a supplementary report dated 25 September 2009, Mr Kudelka opined that Mr Leng’s condition had not resolved, that further investigation by way of an MRI scan was required, followed by referral to a spinal surgeon for an opinion.

12. Mr Leng’s general practitioner, Dr Denis Holland, prepared a medical report dated 18 December 2009, which appears by its form to have been prepared for the purpose of an earlier claim for DSP.  In that report, he diagnosed Mr Leng as suffering from conditions described as “chronic lower back pain from repetitive manual labour” and schizophrenia.  In the former regard, he said that Mr Leng’s back condition was affecting his ability to function as follows – “limited carrying weights, repetitive” and that the effect of the condition on Mr Leng’s ability to function was expected to fluctuate over the next two years; although it is partly illegible, he appears to have referred also to the possibility of “acute exacerbation’’.  In the latter regard, Dr Holland opined that Mr Leng’s schizophrenia was “[a]t present well controlled”.

13. In a subsequent report of the same kind dated 13 April 2010, Dr Holland opined with respect to Mr Leng’s back condition that Mr Leng cannot carry or lift more than 5 kg without severe pain and that he suffered pain on prolonged walking and made what appears to be a reference to extending.  He opined that the effect of the condition on Mr Leng’s ability to function was uncertain for the next two years, noting that weight loss and exercise would help to reduce his pain.  With respect to Mr Leng’s schizophrenia, Dr Holland opined that there was “nil impairment while on medication” and that he should remain stable while on medication.

14. In a further report of the same kind dated 13 February 2012, Dr Holland noted with respect to Mr Leng’s schizophrenia (for which Mr Leng had taken medication for more than seven years) that the effect of the condition on his ability to function was expected to persist but remain unchanged over the next two years, referring to fatigue and a “lack of volition”.  With respect to Mr Leng’s spinal condition, Dr Holland stated that the effect of the condition on Mr Leng’s ability to function was expected to persist for three to 24 months but would fluctuate over the next two years, noting that his pain was exacerbated by manual work.

15. Also in evidence before the Tribunal was a reported dated 9 May 2012 prepared by Dr Helen Sutcliffe, occupational physician.  Dr Sutcliffe opined that Mr Leng had sustained “aggravation of degenerative changes in the lumbar spine” as a result of duties he performed in his occupation and, as a consequence, was totally and permanently disabled, according to a definition apparently provided to her. 

16. Dr Holland prepared a medical certificate dated 20 June 2014 for the period from that date to 20 July 2014.  In that certificate, he described Mr Leng’s “chronic back pain’’, which he said had a date of onset of 20 June 2006, as the “[t]emporary exacerbation of a permanent condition”, the current symptoms being “mild back pain” which would affect his capacity to work or study for less than three months.  Dr Holland referred also to Mr Leng’s “previous psychosis” as having a date of onset on 20 June 2000 and as also being the “[t]emporary exacerbation of a permanent condition”, which no current symptoms and as having an uncertain effect on Mr Leng’s capacity to work or study. 

17. Dr Holland then prepared a further report dated 1 August 2014, which appears to have been prepared for and to have accompanied the claim the subject of this proceeding.  As I have indicated, in that report, Dr Holland appears (read in context given some illegibility) to have described Mr Leng’s spinal condition as “chronic lower back pain – minor disc prolapse”.  He stated Mr Leng’s relevant history to be:

    “Motor vehicle accident in 1999 – minor disc prolapse causing intermittent back pain[.]  Pain improved with weight loss and physiotherapy”.

    Dr Holland stated that the effect of the condition on Mr Leng’s ability to function was likely to fluctuate over the next two years, opining in that context that Mr Leng “will have exacerbation of pain if does too much”.  Although it is partly illegible, Dr Holland referred to “heavy lifting [and] carrying over 10 kg’’ in the context of the impact of the condition on Mr Leng’s ability to function.

18. With respect to what was described as Mr Leng’s “psychosis schizophrenia”, Dr Holland noted that the condition had no impact on Mr Leng’s ability to function, stating that he had “been stable off medication”.  He noted that Mr Leng had been referred to a psychiatrist, Dr Duncan Taylor, but only for counselling.

19. Also before the Tribunal was a further medical report of the same kind prepared by Dr Holland and dated 22 October 2014 (which I note falls within the relevant period).  In that report, Dr Holland referred to Mr Leng’s spinal condition as “[b]ack pain, minor fracture of L4” and referred to his difficulty carrying weights in the context of describing the impact of that condition of his ability to function, stating in that context that its effect would fluctuate over the next two years, in that he had intermittent pain of fluctuating intensity.  With respect to what was described as Mr Leng’s schizophrenic psychosis, he noted that Mr Leng had no present or planned treatment for that condition, nor any current symptoms.  He did not note any impact on Mr Leng’s ability to function with respect to that condition, also stating that it was at present stable and that there was no significant recurrence.

20. In a report dated 2 April 2015, Dr Taylor noted that “there is a historical diagnosis of schizophrenia with psychotic symptoms in 2001/2” but opined that it was in remission and no psychiatric “follow-up” was required.

21. In a radiology report dated 26 August 2015, Dr Sundeep Pasricha concluded with respect to Mr Leng’s chronic back pain that “minor disc abnormality is demonstrated” but that there is “[n]o evidence of high grade canal, foraminal or subarticular recess stenosis”.  Dr Pasricha also noted that there was “the suggestion of very early facet joint degenerative changes at L2-L3 and L3-L4 on the right side”, “some depression of the superior endplate of L4, thought to be post traumatic in etiology” but that there was no focal lesion to account for it, and also observed “minor retrolisthesis at L4-L5”.

22. Dr Holland also prepared a report dated 29 September 2015, in which he answered various questions posed in a letter prepared by the respondent concerning Mr Leng’s qualification for DSP during the relevant period, to which was attached copies of relevant excerpts from the Impairment Tables.  I note that Dr Holland was asked to respond by reference to Mr Leng’s conditions and level of impairment as they were during the relevant period.  In response to a question concerning Mr Leng’s conditions, Dr Holland referred solely to Mr Leng’s spinal condition – no reference was made to any psychological condition.  Dr Holland referred to Mr Leng’s “minor compression of the L4 vertebrae” following his motor vehicle accident in 2002, that injury having settled until “he was having back pain” while working in 2009, which was “genuine pain as he was doing heavy manual duties”. 

23. Dr Holland said further that Mr Leng “has so[me] subjective back pain with prolonged standing and walking … [t]he pain will persist” (for more than two years from 4 August 2014).  In answer to a question of whether the functional impacts arising from the conditions were expected to persist for more than two years from 4 August 2014, Dr Holland said that Mr Leng “says his pain on prolonged walking and standing over 15 minutes” [sic] and “[t]his is likely to persist”.  In response to a question concerning Mr Leng’s symptoms and their frequency and severity, Dr Holland said:

    “[Mr Leng] describes back and left leg pain on standing and walking for over 15 minutes.  Objectively the only sign is some left thigh weakness on physical examination.  I feel [Mr Leng] can do all activities except prolonged or heavy lifting.”

24. Dr Sutcliffe prepared a subsequent report dated 10 June 2016 upon the request of Mr Leng’s solicitors, in the context of his claim for a benefit for total and permanent disability made under a policy of insurance connected with the superannuation fund of which he was a member (the “TPD claim”).

25. Dr Sutcliffe’s report was based upon various medical reports and other materials provided to her and her re-examination of Mr Leng conducted on 15 May 2016; as stated above, Dr Sutcliffe had previously prepared a report dated 9 May 2012. 

26. Dr Sutcliffe opined:

    “From the history obtained and following re-examination I believe that Mr Leng continues with limitation of function as a result of the lumbar disc derangement he sustained in the course [sic] the motor vehicle accident.

    …

    He has no capacity for employment taking into account his age, education, work experience and the nature of the condition.

    There has been some improvement in his condition but he continues with unfitness for employment in any manual handling occupation.

    I believe he satisfies the definition of the total and permanent disability provided by his scheme.

    He may in the future attempt to undertake re [sic] training but he is limited by his narrow education and the persisting pain related to the back injury.

    I note that there has been some improvement in his condition but insufficient to indicate fitness for an occupation he has performed in the part o[r] [sic] for which he had training taking into account the nature of the work in the open labour market.”

27. In response to questions posed for her assessment at specified times, Dr Sutcliffe stated that she believed that Mr Leng was unfit for any occupation given the limits of his education, training and experience on 9 December 2009 (stated to be the last day he worked), on 9 May 2010 (referred to as the end of the six month waiting period) and at that present date.

28. Also in evidence before the Tribunal was a vocational assessment report dated 22 June 2016 prepared by a psychologist, Ms Katrine Green upon the request of Mr Leng’s solicitors with respect to his TPD claim, for the stated purpose of identifying alternative vocational options in the context of ascertaining whether the definition of the relevant insurance policy was satisfied.  Ms Green interviewed Mr Leng and took his history and had regard to various medical reports and other materials.  Ms Green reached the following conclusion:

    “In concluding his report and taking into account the medical opinions … Mr … Leng’s education, training, work history and transferable skills and his physical and psychological restrictions and the impediments to him securing employment in the open labour market, Mr Leng is unlikely to ever be employed or engaged in any gainful employment for which he is reasonably qualified by way of training and experience within the foreseeable future.  Therefore, it is considered that this finding meets the definition of the insurance policy.”

29. I note that there were various job capacity assessment reports in evidence upon which the respondent relied, but given that such reports do not of themselves constitute medical evidence (see Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180) and given the conclusions I have reached, it is unnecessary for me to set out their content here.

30. As Mr Leng did not give evidence before the Tribunal, he was instead content for regard to be had to the record of his evidence as given before the SSAT in February 2015.  The following was noted in its reasons:

    ·“Because of his back pain, even undertaking household duties are [sic] difficult.  He has a son, aged four, who weighs about 20 kg, and he now finds it hard to lift him.

    ·In an endeavour to fix the back pain, he underwent a weight reduction program, and saw a personal trainer.  He was able to lose 40 kg.

    ·There is pain in the back and in the left leg, particularly in the groin and the knee.  He also experiences tingling and numbness in the feet.

    ·He first injured his back in a motor vehicle accident in 1999.  He was a passenger in a car, which ran into a tree.  He estimates that the car was travelling at about 55 km/h.  This accident resulted in a crush fracture to the L4 vertebra.  He was taken to hospital, discharged after a few days, and had to wear a back brace.

    ·He made a full recovery from this injury after about 12 months.  He then worked as a manual labour [sic] until 2009 when he experienced further back pain, and went on to WorkCover.  He has not worked since.

    ·He is mostly able to manage getting dressed in the mornings without difficulty.  However he has to position himself carefully to put on shoes and socks and mostly now wears thongs.

    ·There are no difficulties with bathing, nor washing and drying his hair.  Sometimes when he gets dressed, he will lose his balance.

    ·Around the house, he is able to do some things to help.  Making the bed is difficult because of the pain, and he has to proceed slowly.  He is able to do some vacuuming and sweeping.  He assists with the preparation of meals. But if he has to stand for longer periods, he has to support himself.  Usually his partner loads and unloads the dishwasher and it is particularly difficult for him to reach items such as potatoes or onions as these are located on the bottom shelf.  He can load clothes into the washing machine and can carry a washing basket to the line, provided it is not too heavy.  He can place clothes on a clothes horse, and is able to iron.

    ·When he is watching television, he has to change position frequently.  He is able to do some tasks in the garden, but avoids weeding.  They have a hand mower, and he is able to use this.  He can take the dog for a walk.

    ·He is able to drive, but avoids driving longer distances.  The car is an automatic.  There are no difficulties turning his head when driving.  His partner usually does the shopping, as he finds it hard to pick up items from the shelves and to place them in to the shopping trolley.

    ·If he is more active, he needs to have a rest period, in which he will usually sit and have a cup of tea.  He was previously having an afternoon nap, but is now trying to avoid sleeping during the day.

    ·He cannot kneel, but can squat with difficulty.  He estimates he would be able to walk for about half an hour before he needs to stop and rest.  He finds standing tiring.  He can stand for longer periods, but he has to hang on.

    ·He finds bending difficult.  If he has to change his baby’s nappy, he finds this particularly difficult.  He will avoid any activity which involves repeated bending. 

    ·He has suffered with psychological illness in the past.  He had a major episode of illness about nine years ago.  At that time … his condition was treated with medication, but he did not require hospitalisation.

    ·He has been attending counselling with Dr Taylor for about one year.  He has found the counselling to be helpful, and no longer requires medication.  He is not sure whether has any continuing psychological symptoms.  He generally sleeps well.” 

    LEGISLATION AND RELEVANT PRINCIPLES

    Section 94 and the Determination

1. Section 94 of the Act relevantly provides:

   “(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;

   ....”

2. The term “Impairment Tables” referred to in s 94(1)(b) is defined to mean the tables determined by an instrument under s 26(1) of the Act (s 23 of the Act). As I have indicated, that instrument is the Determination, which contains tables relating to the assessment of work-related impairment for DSP and the rules that are to be complied with in applying them for the purposes of ss 26(1) and 26(3) of the Act respectively.

3. Section 5(2) of the Determination relevantly provides that the Impairment Tables “are function based rather than diagnosis based” (s 5(2)(b)) and “are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions” (s 5(2)(d)). The term “condition” is defined for the purposes of the Determination to mean a medical condition; the term “impairment” is defined to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” (s 3).

4. Section 6(8) of the Determination provides that the “presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”.

5. Section 11 of the Determination concerns the assignment of impairment ratings and provides as follows:

   “(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

   …

   (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.

   …

   (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.

   …

   (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.

   …

   (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.”

6. I note that, as the Determination is a form of delegated legislation, it is to be construed in accordance with general principles of statutory interpretation (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398, applying King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195 per Dixon J; Whittaker v Comcare (1998) 86 FCR 532 at 543).

7. Furthermore, as the Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (the “Instruments Act”) (see s 5), the Acts Interpretation Act 1901 (Cth) applies to the Determination as if it were an Act and as if each provision of the Determination were a section of an Act (s 13(1)(a)) of the Instruments Act). Also, expressions used in the Determination have the same meaning as in the Act (s 13(1)(b)). Moreover, the Determination is to be read and construed subject to the Act (s 13(1)(c)).

   Relevant period and evidence

8. It is implicit in the terms of s 39(3) of the Administration Act, which concerns circumstances where a person makes a claim for a social security payment and (only) subsequently becomes qualified for that payment within the period of 13 weeks thereafter, that a person may become qualified for DSP within 13 weeks of having made a claim for it (De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 at [12] per Mortimer J).

9. As much is also implicit from the following provisions of the Administration Act. A social security payment becomes payable to a person on the person’s start day, being the day worked out in accordance with Sch 2 to the Administration Act (ss 41, 42 of the Administration Act). That start day will, according to the general rule, be the day on which the claim is made (cl 3 of Sch 2), but in cases where the person becomes qualified within the period of 13 weeks after the day on which the claim is made, the claim is taken to be made on the first day on which the person is qualified (cl 4 of Sch 2) (see Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J at [1]).

10. However, it is also the case that, by virtue of the operation of s 42 and Sch 2 to the Administration Act, an applicant’s entitlement to DSP must be considered as at the date their claim and the period of 13 weeks thereafter. Accordingly, any “subsequent change in a [claimant’s] health is irrelevant to the questions which arise ... except insofar as it may cast light on the position at the relevant time” (Harris at [1]).

11. Therefore, evidence which came into existence after the 13-week period following the making of a claim for DSP, such as medical reports prepared after that period, is relevant only to the extent that it bears upon a claimant’s qualification for DSP during that period (Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [29] - [35]). The nature of the decision under review and the terms of the provisions to which I have referred which govern the temporal aspects of qualification for DSP evince a legislative intention that the Tribunal’s consideration of such evidence be confined in such a manner (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [43], [99]).

    CONSIDERATION

    Subsections 94(1)(a) and (b) of Act

    Spinal condition – Table 4 of Impairment Tables

12. It was not in dispute that during the relevant period Mr Leng had a spinal condition resulting in back pain due to degenerative change in his lower lumbar spine. Nor was it in dispute that during the relevant period Mr Leng had an impairment resulting from that condition within the terms of s 94(1)(a), that that condition was “permanent” for the purposes of s 6(3)(a) of the Determination, that that impairment satisfied s 6(3)(b) and that an impairment rating could therefore be assigned to that impairment. However, the respondent contended that the impairment resulting from Mr Leng’s spinal condition was only of 5 points under the Impairment Tables during the relevant period.

13. Table 4 of the Impairment Tables arises for consideration in this case – as explained in its prefatory words, it “is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck”. It is also stated in the prefatory words that “self-report of symptoms alone is insufficient” and that there “must be corroborating evidence of the person’s impairment” (see also ss 7(1) and 8(1) of the Determination).

14. Relevantly, and shortly stated, 5 points are to be assigned where there is a mild functional impact on activities involving spinal function, in that the person has “some difficulty” in activities over head height, or bending to knee level and straightening up again without difficulty or turning their trunk or moving their head.  10 points are to be assigned where there is a moderate functional impact on such activities, in that the person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies – the person is unable to sustain overhead activities, or the person is unable to bend forward to pick up a light object placed at knee height, or the person needs assistance to get up out of a chair. 

15. As I have indicated, Mr Leng’s degree of impairment is to be determined as it was during the relevant period and taking into account the requirements of s 11 of the Determination. The descriptor which arises most particularly for consideration in this case is whether the descriptor for mild or moderate functional impact with respect to bending ability best applies to the functional impact of Mr Leng’s spinal condition during the relevant period, although I have considered each aspect of the descriptors for mild and moderate functional impact.

16. Having regard to Mr Leng’s evidence given before the SSAT and the contents of the medical reports concerning his spinal condition to which I have referred, I find that Mr Leng’s impairment resulting from his spinal condition was of 5 points under the Impairment Tables during the relevant period, in that that condition had a mild functional impact according to the descriptors in Table 4. 

17. To the extent that Mr Leng’s evidence given before the SSAT as recorded in its reasons might suggest that an impairment rating of 10 points was warranted, I do not consider that there is corroborating evidence of that degree of impairment bearing upon the relevant period, although I consider that that evidence as recorded falls within the descriptor for mild rather than moderate functional impairment in any event. I note that the evidence before the Tribunal does not establish that Mr Leng’s spinal condition warranted any higher rating during the relevant period on the basis of any impairment with respect to his lower limb function, given the descriptors in Table 3 of the Impairment Tables (see ss 10(3) and 11(1)(c) of the Determination).

18. I have taken into account all of the medical reports to which I have referred concerning Mr Leng’s spinal condition, although I have preferred the reports of specialists to those of Dr Holland, given their particular expertise and the brief and general (and sometimes illegible) nature of his reports.

19. As I have indicated, I have considered the reports of Dr Sutcliffe dated 9 May 2012 and 10 June 2016 and the report of Ms Green dated 22 June 2016. I note, however, that those reports are directed to the issue of whether Mr Leng satisfied the terms of a TPD definition at various times falling both well before and well after the relevant period, and not to the question of whether he qualified for DSP pursuant to s 94 of the Act at any time during the relevant period. In any event, there is nothing in those reports which causes me to alter the conclusion I have reached with respect to Mr Leng’s degree of impairment resulting from his spinal condition during the relevant period as it is to be determined under the Impairment Tables.

    Mental health condition – Table 5 of Impairment Tables

20. It was not in dispute that during the relevant period Mr Leng had the condition of schizophrenia with psychotic episodes and that that condition was “permanent” for the purposes of s 6(3)(a) of the Determination. However, the respondent contended that Mr Leng had no impairment resulting from that condition during the relevant period to which an impairment rating could be assigned (see ss 6(3) and 6(8) of the Determination) for the purposes of s 94(1)(b) of the Act.

21. I accept the respondent’s submission. The evidence before the Tribunal concerning Mr Leng’s psychiatric condition gives no indication that it resulted in any “impairment” for the purposes of the Determination during the relevant period. Having regard to Table 5 of the Impairment Tables, which governs mental health function, and particularly the descriptors for circumstances where there is no functional impact on activities involving mental health function and mild functional impact of that nature, I find that Mr Leng’s schizophrenia with psychotic symptoms should be assessed as having had no functional impact during the relevant period and therefore should be assigned a zero rating (see s 11(5) of Determination).

22. It follows that during the relevant period Mr Leng’s impairment was not of 20 points of more under the Impairment Tables; accordingly, s 94(1)(b) of the Act was not satisfied. As the requirements of s 94(1) are conjunctive, it is unnecessary to consider whether s 94(1)(c) was satisfied during the relevant period.

    CONCLUSION

23. Accordingly, Mr Leng did not qualify for DSP at any time during the relevant period.  I note that that conclusion does not preclude the possibility that Mr Leng might have qualified, or might qualify, for DSP during some other period.  However, such possibilities do not arise for consideration in this proceeding, given the issue before the Tribunal.

24. Therefore, the decision under review will be affirmed.

I certify that the preceding 54 (fifty‑four) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins

.............[sgd]......................................................

Associate

Dated 12 August 2016

Dates of hearing	28 January 2016 and 11 July 2016
Applicant	In person
Solicitor for the Respondent	Ms B Lewis, FOI and Litigation Branch, Department of Human Services