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

[2021] AATA 2946

Lewis and Secretary, Department of Social Services (Social services second review) [2021] AATA 2946 (18 August 2021)

Division:GENERAL DIVISION

File Number:2020/6989          

Re:Carol Lewis  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:18 August 2021

Place:Perth

The Authorised Review Officer’s decision dated 3 August 2020, as affirmed by the AAT1 on 1 October 2020, 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 – assigning impairment ratings – whether the Applicant suffers from permanent impairment that attracts 20 points or more under the Impairment Tables –Impairment Table 3 – Lower Limb Function – knee condition – Reviewable Decision affirmed

LEGISLATION

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s 7

Social Security Act 1991 (Cth) ss 23(1), 26, 94(1), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(5)

Social Security (Administration) Act 1999 (Cth) ss 179(2)(a), sch 2, pt 2, s 4(1)

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

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

18 August 2021

BACKGROUND

1. The Applicant seeks review of a decision of the Social Services and Child Support Decision (AAT1) in the General Division (AAT2) of this Tribunal.

2. The Applicant initially lodged a claim for a disability support pension (DSP) with Services Australia (Centrelink) on 25 June 2019 for the condition “left knee severe osteoarthritis … past total knee replacement” (T35/175).

3. On 5 August 2019, Centrelink completed a DSP medical eligibility assessment, which recommended that the Applicant be referred for a Job Capacity Assessment (JCA) (T37/183–184).

4. A JCA assessment for the Applicant was undertaken on 16 September 2019. The JCA report (T40/192–197) of this assessment found that the Applicant’s lower limb condition was fully diagnosed, treated and stabilised (being that it met the definition of permanent), and attracted an impairment rating of 10 points under Table 3 – Lower Limb Function of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). 

5. On 18 September 2019, the Applicant’s claim for a DSP was rejected by Centrelink because she did not have an impairment rating of 20 points or more under the Impairment Tables (T41/198–199) (Original Decision).

6. Between September 2019 and March 2020, the Applicant provided further medical evidence (T42–T47). Consequently, a second DSP medical eligibility assessment was undertaken, which considered this additional medical evidence. However, it was recommended that the Applicant’s claim be rejected because the additional information did not change the outcome of the previous JCA assessment (T48/206–207).

7. The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO) (T49/208). However, on 3 August 2020, an ARO of Centrelink wrote to the Applicant to advise her that the ARO had found the Original Decision to be correct, and that her review was unsuccessful (T51/210–214) (ARO Decision).

8. On 25 August 2020, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T2/6). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 1 October 2020 (T2/5–14). The AAT1 also awarded the Applicant 10 points for her knee condition under Table 3 – Lower Limb Function. 

9. The ARO Decision of 3 August 2020, as affirmed by the AAT1 on 1 October 2020, is the reviewable decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth) (Administration Act)).  

   ISSUES

10. The overall issue for determination by this Tribunal is whether, during the Qualification Period, 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 or impairments;

    (b)if so, whether the impairment(s) were fully diagnosed, treated, and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and

    (c)if so, whether the Applicant had “a continuing inability to work”.

    THE HEARING AND THE EVIDENCE

11. The application was heard by the Tribunal on 30 July 2021. The Applicant appeared by telephone, gave evidence, and was cross-examined.

12. Ms A Joseph of Services Australia appeared for the Respondent by telephone.

13. The following documentary material was admitted into evidence at the hearing:

    (a)s 37 documents, labelled T1–T55, consisting of pages 1–258 (Exhibit 1); and

    (b)Secretary’s “other documents” (s 38AA documents), consisting of pages 1–19 (Exhibit 2).

    LEGISLATION

14. The legislation applicable to this matter is contained in:

    (a)the Act;

    (b)the Administration Act;

    (c)the Impairment Tables; and

    (d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).

    Qualification for DSP

15. 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;

    (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …

16. Each criterion must be satisfied before a person will be qualified for a DSP.

    Impairment tables

17. Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.

18. Section 26 of the Act states:

    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.

19. The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.

20. “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”.

21. Section 6 of the Impairment Tables states, in part:

    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.)

22. 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.

23. For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:

    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 …

    (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.

    (Notes omitted.)

24. Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated, and fully 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.

25. Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when 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.

26. To determine the appropriate functional impact to be assigned to the Applicant’s 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.

27. Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor and medical specialists.

28. Section 11 of the Impairment Tables states, in part:

    (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.

29. The applicable Impairment Table in the Applicant’s circumstances is Table 3 – Lower Limb Function.   

    Qualification period

30. Schedule 2, pt 2, s 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.

31. In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. The Applicant lodged her claim for a DSP on 25 June 2019 (T35/150). Consequently, the relevant qualification period is 25 June 2019 to 24 September 2019 (Qualification Period).

32. 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.

33. In Gallacher, Besanko J (at 7 [27] and [28]) also 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 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 in so far as they are referrable to the applicant’s condition during the relevant period.

    Continuing inability to work

34. One of the qualification criteria for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. 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.)

35. 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).

36. 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

37. A “program of support” is defined in s 94(5) of the Act as:

    (5)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.

    (Original emphasis.)

1. A person is considered to have actively participated in a program of support if they meet the requirements set out in s 7 of the POS Determination. These requirements include that the person must have participated in the program of support for at least 18 months in the 36 months ending immediately prior to the date the person claimed a DSP.

   KNEE CONDITION

2. The medical evidence before the Tribunal confirms that the Applicant had a knee condition during the Qualification Period. A scan taken on 13 August 2015 showed degenerative changes in the Applicant’s knee (T4/88). She has also obtained numerous medical certificates for her knee condition since 2015 (see T5/89; T6, T7, T8, T9, T10), and she underwent a total knee replacement on 1 March 2016 (T11/107). A medical certificate from the Applicant’s general practitioner, Dr Rodriguez, dated 23 September 2019 (being the second last day of the Qualification Period), stated a diagnosis of “chronic knee pain” for the Applicant (Exhibit 2/6; T43/201).

3. Additionally, a letter from Dr Rodriguez also dated 23 September 2019 (T44/202) confirmed that the Applicant’s condition was permanent, stating that:

   [The Applicant] has chronic knee pain and arthritis affecting her mobility and daily living activities. There is no surgical option for her and she is for pain management only.

4. An earlier letter from Dr Rodriguez during the Qualification Period dated 29 August 2019 (T39/191) confirms that the Applicant is “not a candidate for any surgical repair”.

5. Consequently, the Tribunal finds that the Applicant’s spinal condition was fully diagnosed, treated, and stabilised (that is, permanent) during the Qualification Period. The Tribunal notes that the Secretary also conceded that the Applicant’s knee condition was permanent during the Qualification Period (see paragraph [5.21] of the Secretary’s Statement of Facts, Issues and Contentions).    

6. The Tribunal will now review the evidence of the functional impact of the Applicant’s knee condition to assign an impairment rating. Unfortunately, there is minimal evidence about the Applicant’s functional abilities during the Qualification Period. This evidence includes:

   (a)

   A medical certificate written during the Qualification Period from Dr Rodriguez on

   
   

   4 July 2019, noting that the Applicant experiences “ongoing knee pain” (T36/182), and a letter from Dr Rodriguez written during the Qualification Period, dated 29 August 2019 (T39/191). This letter states that the Applicant has “chronic knee pain that has impacted her ability to walk and her ADL’s (activities of daily living)”.

   (b)In the JCA report dated 16 September 2019, the assessor wrote that the Applicant (T40/193):

   reported an inability to walk more than 5 minutes, standing tolerance 10 minutes. For longer periods, she requires a zimmer frame. She reported a sitting tolerance of 10-20 minutes. She is unable to bend, and engages assistance from a relative with tasks such as vacuuming and mopping floors. She requires a chair in the shower. [The Applicant] stated that she is independent in dressing. She is unable to negotiate stairs. [The Applicant] is reliant on on-line shopping and engages a gardener.

   (c)The letter from Dr Rodriguez also dated 23 September 2019 (T44/202) also confirmed that:

   She is able to stand but needing support to get up, unable to stand for longer than 20min, struggle and needs assistance with stairs and steps, unable to walk longer than 30 meter and needing to stop and rest in between. She has a walker that she uses from time to time.

7. The medical evidence before the Qualification Period includes the following evidence.

   (a)

   A medical certificate, dated 1 August 2017, from a physiotherapist (T32/135–136) opined that the Applicant could return to work doing “office duties, alternating between sitting and standing”, three days a week for three hours a day, from

   
   

   27 June 2016 to 1 August 2016.

   (b)An attending doctor’s statement dated 8 September 2017 (T32/133–134) describes the Applicant’s symptoms as “pain [in] left knee with activity” and that the Applicant had “limited standing/walking” and “can’t squat/knee”.

   (c)In another medical certificate from a physiotherapist, dated 27 April 2017, the physiotherapist stated (T33/142):

   Due to decrease muscle/motor control and proprioception about the knee, there is an altered alignment … about the knee joint, which alters the loading of the joint in weight bearing positions and therefore causes pain. 

   (d)In a rental housing application form dated 7 August 2017, Dr Rodriguez wrote that the Applicant had “limited mobility” and that she was “unable to use stairs and steps” and “need car park near door”. Dr Rodriguez also confirms in this form that the Applicant occasionally uses a walking aid, such as crutches or a walking frame, and that she was “always” prevented from using public transport due to her condition/disability (Exhibit 2/3).

8. The medical evidence after the Qualification Period includes the following evidence.

   (a)At the AAT1 hearing on 1 October 2020, the Applicant told the AAT1 that (T2/9–10):

   ·     She lives alone in rented two-bedroom community housing accommodation. She can walk short distances, such as to the letterbox and to her car. Any longer distance needs the use of a wheeled walking aid. She can only stand for short periods and sits down to prepare her meals. She has a chair to use in the shower. She can manage in the toilet. She is unable to negotiate stairs, so is unable to visit some past friends.

   ·     She drives a car but usually only for short trips of 20 minutes or so. These include a weekly trip to take her mother to the local church, visits to the doctor or visits to relatives. She cannot go to the shops on her own and buys food online using a delivery service. Her niece occasionally takes her shopping. On those occasions they hire a wheelchair to get around the shopping centre.

   ·     Her inability to walk for any distance is very frustrating. She would love to be working again.

   (b)A JCA report, with a submitted date of 1 April 2021, records that the assessor spoke to Dr Rodriguez on 29 March 2021 and that (Exhibit 2/16):

   Dr Rodriguez … confirmed that [the Applicant] had been attending the surgery by herself, walking from her car to the surgery. However stated in recent times, she had gone to [the Applicant’s] car to talk to her and at one time needing assistance from the receptionist to get up, indicating worsening of the symptoms of knee pain in recent time. … Dr Rodriguez also stated that [the Applicant] would need more time to get up from a chair.

   (c)Shortly after the Qualification Period, and after the AAT1 decision was made, in a letter dated 19 October 2020 (Exhibit 2/7), the Applicant wrote that:

   I’m writing in support of my disability pension

   After reading the pages supporting your discission was very disappointed as not a lot of your discissions seemed to related to my daily life

   Things like: -

   I can catch public transport

   Walk around the shops

   Both of these needs me to walk and stand and sit for long periods of time which you actually agreed I can’t do.

   Im in pain 24/7 to varying degrees. I can’t sit, stand or lay. At night I have to get up a few times during the night and rearrange pillows that are supporting my long and try to get comfy.

   I get to my letter box and car. I can’t pull out my own bin luckily my neighbor does that for me.

   In my home I can sit to wash dishes and prepare a simple meal or a drink

   I cannot mop or vav floors

   I cannot clean my shower

   I cannot change my linen or put out rubbish or hang out washing

   My niece pops in now and again no regularity and will do a couple of things for me but she is my 85 year old mothers full time carer.

   I have no social life as people get sick of accommodating people with disabilities.

   I don’t get to go movies or the beach or the shops or restaurantes

   I pretty much confined to my home …

   I cant stay at family or friends houses Mt best friend is having palliative care right now with 2 or 3 weeks to live and I cant even visit her

   (Without alteration.)

9. At the AAT2 hearing, the Applicant initially stated that she did not think that her condition had changed since she made her DSP claim (transcript/5). However, her subsequent evidence indicated to the Tribunal that her condition had likely worsened since the Qualification Period. For example, the Applicant stated with regard to the use of a walking aid, “I’ve been using it more the last probably six months than I was before” and also “… the only thing that changed is my amount of pain that I’m in day to day” (transcript/5, 7).

10. At the AAT2 hearing, the Applicant gave the following evidence about the functional impacts of her condition during the Qualification Period (transcript/9):

    … there’s a lot of things in the other sections of that that I can’t do. Like they put there that I can squat on my own and get up on my own without hanging on to anything. I couldn’t even do that before I hurt my knee. … and just other things like getting to the bus, and all that sort of stuff, I can’t do that but daily I - I have a shower chair, I can get in and out of my shower by myself. I sit on my bed to dress, which I need my stick to pull my trousers and that up because I can’t actually bend my leg or move it out of the way without being in a lot of pain. I can’t go to the shops. I have to have online shopping. I can’t do my housework. I’m now - because I’m 65 now … I was able to get a support worker to do my housework, which is a big help. I can’t stand and cook a meal, so I sit in a chair and do that. I can’t do my garden. I can’t walk to my letterbox and put my bin out. I have a lovely neighbour who will do that for me. So, yes, it’s a lot of things that I can’t - I can’t go to the movies. I can’t stay at daughter’s house because her house is too big, I can’t walk around it. I can’t get up stairs. I can’t go to work. I used to be a carer actually for 10 years before I hurt my knee and I absolutely loved it and I miss it so much. I’d go back tomorrow if I could but I can’t. So, day-to-day I’m basically in my house.

11. The Applicant also gave evidence that during the Qualification Period, she could drive for roughly 15 to 20 minutes but could not walk around the shops to purchase bread and milk, that she could not negotiate stairs or steps and that she could stand for around 10 minutes (transcript/10–11).

12. In cross-examination during the AAT2 hearing, the Applicant also gave evidence that during the Qualification Period she would get out of her car by turning herself around on her car seat and would walk about 10 steps to her front door, where she would sit on a chair inside the door to steady herself (transcript/13–14).

13. The relevant impairment table is Table 3 – Lower Limb function. The Tribunal found the Applicant to be an honest witness and accepts her evidence about the functional impacts of her knee condition during the Qualification Period. However, the issue for the Applicant is that there is minimal corroborating medical evidence, and the evidence that is currently before the Tribunal only supports a “moderate” functional impact rating which attracts an impairment rating of 10 points.

14. This is because, as was indicated by Dr Rodriguez on 23 September 2019, the Applicant is unable to walk far outside her home (she was unable to walk for longer than 30 metres), and she needs assistance with stairs and steps. However, she could stand for more than five minutes (in fact, Dr Rodriguez stated that the Applicant was able to stand for a maximum of 20 minutes). The Applicant was also able to drive a car and Dr Rodriguez reported that she could move around independently using a walking aid.

15. Although the Tribunal accepts the Applicant’s evidence that she could not do so, the medical evidence during the Qualification Period does not confirm whether the Applicant could walk around a shopping centre or a supermarket, or walk from the carpark into a shopping centre without assistance, as is required for an impairment rating of 20 points under Table 3. Also, while Dr Rodriguez observed that the Applicant could not stand without assistance, this was observed and confirmed on 29 March 2021, which was well after the Qualification Period. If the Applicant can obtain medical evidence regarding these functions, she may now fall within the “severe” range of functional impact which attracts 20 points.  This evidence could be considered by Centrelink if the Applicant makes a new claim for a DSP.  

    CONCLUSION

16. Based on the evidence before the Tribunal, during the Qualification Period, the Applicant did not meet the eligibility requirements in s 94(1) of the Act and was therefore not qualified to receive a DSP.

17. Although the Applicant suffered from an impairment (her knee condition) during the Qualification Period, based on the available medical evidence, the functional impact of this condition can only be considered “moderate”, attracting an impairment rating of 10 points under Table 3 – Lower Limb Function.

18. It does appear to the Tribunal from the Applicant’s evidence at the AAT2 hearing, and from the evidence of Dr Rodriguez, dated 29 March 2021, that the Applicant’s condition has worsened since the Qualification Period. If she can obtain further corroborating medical evidence that specifically addresses Table 3 of the Impairment Tables, the functional impacts of her knee condition may fall into the “severe” functional impact range and attract an impairment rating of 20 points. The Tribunal requests Centrelink to assist the Applicant with this process if she requires it, including by liaising with her general practitioner so that she can obtain the information that will allow any new claim for a DSP to be properly assessed.

19. As the Applicant has not obtained 20 points under Table 3, it is unnecessary to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act.

    DECISION

20. The Authorised Review Officer’s decision dated 3 August 2020, as affirmed by the AAT1 on 1 October 2020, is affirmed.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..[Sgd]......................................................................

Associate

Dated: 18 August 2021

Date of hearing:	30 July 2021
Applicant representative:	Self-represented
Respondent representative:	Ms A Joseph, Services Australia