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

Mahmood and Secretary, Department of Social Services (Social services second review) [2019] AATA 363 (7 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2716
Re:Mr Nasir Mahmood
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date: 7 March 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Mahmood satisfies all the requirements of s 94 of the Social Security Act 1991 and is thereby qualified for the Disability Support Pension as at the date of his claim.
………[sgd]………………………………….
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – back pain, asthma/cough, generalised anxiety disorder/depression and osteoporosis (left hip pain)– whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Ms Anna Burke, Member
INTRODUCTION

Mr Mahmood (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).
On 29 November 2017 Centrelink found that Mr Mahmood was not entitled to the DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 14 December 2018. Mr Mahmood attended the hearing by telephone and was self-represented. Ms Ailsa Bramley, a government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Bramley.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Mahmood:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Mahmood is 55 years of age. He immigrated to Australia from Pakistan in 2007 and lives with his wife and 2 children. Mr Mahmood completed year 12, has a Bachelor of Accounting degree from Pakistan. While his first language is Urdu, he is fluent in English. He worked for 22 years in Pakistan as an accountant and for three years as an accounts clerk in Australia. Mr Mahmood has not worked since 2012 when his contract with his employer ceased.
Mr Mahmood previously applied for the DSP in 2015. At the time a Job Capacity Assessment (JCA), carried out at the request of Centrelink, determined in part that his:
·spinal condition was fully diagnosed, treated and stabilised and was having a moderate impact on his functional ability and was rated at 10 points under Table 4 (spinal condition) of the Impairment Tables;
·asthma was considered fully diagnosed, treated and stabilised, and although he reported impacts consistent with a rating of five points under Table 1 functions requiring physical exertion and stamina, these functional impacts could not be verified by the treating doctor; and therefore a rating of zero was applied; and
·hypertension and hypercholesterolemia conditions was considered fully diagnosed, treated and stabilised but the condition was having nil impact on his ability to function.
Mr Mahmood sought a review of the rejection of his previous DSP claim and this Tribunal affirmed that rejection on 23 May 2017. This Tribunal found in part that:
·his osteoarthritis condition under Table 4 (spinal condition) had been correctly assigned 10 impairment points based on an assessment of the medical evidence and the JCA report; and
·satisfactory medical evidence existed in respect of his asthma to be able to allocate impairment points for this condition; and the condition rated five points under Table 1 as it had a mild functional impact on him.
On 31 October 2017 Mr Mahmood made another application for DSP, citing his medical conditions as: osteoporosis with multiple fractures causing constant pain in back, hip joints and shoulder and neck; asthma causing continuous cough; depression and anxiety; diabetes; high cholesterol; the enlarged prostate; heartburn; constant headaches and always feeling sad and helpless.
On 15 November 2017 Centrelink undertook an assessment services recommendation for disability support pension medical eligibility and concluded that Mr Mahmood was manifestly medically ineligible as the conditions were considered not fully diagnosed, treated and stabilised.
On 7 February 2018, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding that Mr Mahmood’s conditions of asthma, osteoporosis, back pain, bilateral hip pain, anxiety and depression could not be considered permanent. The ARO stated:
Regarding your asthma, the medical evidence indicates you experience a continuous cough, fatigued vocal cords, with an audible voice which is exacerbated by walking upstairs or walking more than five minutes. Dr Rawal’s reports dated 22 August 2017 and 24 October 2017 state your condition was being treated under respiratory physician and your medication was increasing. As your medication regime was recently modified and there is no corroborating evidence from a respiratory physician to indicate you have received maximum treatment and exhausted all treatment options I am not able to determine your asthma is fully treated and fully stabilised.
Regarding your osteoporosis and back pain, Dr Wong states in his report dated 25 October 2016 you require bone preservation therapy. Dr Rawal mentions you experience constant pain which is worse going up and down stairs and sitting and standing in the same position for more than thirty minutes. You cannot lift more than three kg and you cannot bend further than knee height. Dr Wong reported on 18 January 2017 there had been an improvement to your bone density with treatment. There is insufficient evidence confirming the date of onset, the details of past, present and future treatments, a specialist doctor’s assessment of your compliance with treatment, the functional impacts of the condition and the prognosis.
Regarding your bilateral hip pain, the medical evidence from Dr Rawal dated 24 October 2017 notes you are under the care an orthopaedic surgeon Dr Love and mentions you have been recommended to have steroid injections before planned surgery. Therefore, as there is future treatment and planned surgical intervention, I cannot determine your bilateral hip pain to be fully treated and fully stabilised.
Regarding your anxiety and depression, you experience a lack of motivation, undecidedness, a lack of concentration and confidence. The evidence from Dr Rawal and Dr Mayers confirm the diagnosis of your condition. I acknowledge Dr Rawal noting your condition is ongoing in spite of medication as you cannot afford ongoing psychological therapies. However, I cannot assess this condition as fully treated and fully stabilised. There is no verifying evidence, particularly by a treating psychologist or psychiatrist to indicate you have sustained engagement with psychological interventions and received optimal psycho pharmacotherapy.
On 10 April 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Mahmood’s DSP claim. The AAT Tier 1 awarded Mr Mahmood an impairment rating of nil points as it considered the conditions of asthma, osteoporosis, anxiety and depression, back pain and bilateral hip pain could not be considered fully diagnosed treated and stabilised in the absence of any specialist information.
On 14 May 2018, Mr Mahmood sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in his application:
I believe that the medical investigations and reports submitted by me for the past several years clearly demonstrate my acute medical conditions and the reasons of which I am suffering acute pain and inabilities. The respected AAT member who very kindly listen to me during the first review of the centrelink decision accepted that my medical conditions cause impairments. Further I would like to bring in your notice that whenever my GP referred me to specialists I had seen them and got treatment from them. But unfortunately the centrelink says that my medical conditions are not fully treated. Whereas my treating doctors clearly say that my medical conditions are fully diagnosed, treated and stabilised. I would like to request the AAT that please review my medical reports again carefully and reconsider the decision and oblige.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (Administration Act) Mr Mahmood’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 23 February 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
Section 6(4) of the Impairment Tables states that 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.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
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.
Section 6(6) of the Impairment Tables states:
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.
For the purposes of section 6(7), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether, during the qualifying period, Mr Mahmood suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions. (see Part 2, section 5(2))
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents, and additional medical reports which were provided by Mr Mahmood
DOES MR MAHMOOD HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, that a person suffers from an impairment.
The Respondent accepts that Mr Mahmood is suffering from back pain, asthma/cough, generalised anxiety disorder/depression and osteoporosis (left hip pain). Accordingly, the Tribunal finds that Mr Mahmood meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR MAHMOOD HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Osteoporosis (Left Hip Pain/Back Pain)
A report of a CT Scan of 26 September 2013 concludes: There is evidence of osteoporosis. In addition, the Z score of-2.2 in the proximal femur raises the suspicion of a secondary osteoporosis. Evaluation of the aetiology of secondary osteoporosis is suggested.
A report of a CT Scan of 22 July 2015 concludes: Multilevel costovertebral degenerative joint disease and upper spondylosis.
A report of a CT Scan of 1 August 2015 concludes: L4/5 spinal canal stenosis with marked bilateral exit neuroforaminal narrowing bordering on stenosis at this level and present to a lesser extent at L3/4. Moderate bilateral C4/5 and left C5/6 exit neuroforaminal narrowing present to a lesser extent on the left at C5/6. No frank stenoses.
Dr Phillip Wong, endocrinologist, in a letter to Centrelink dated 22 March 2016 states:
I’ve been treating his osteoporosis for the last few years. He’s had previous fractures and requires bone preservation therapy. He also has chronic lower back pain which makes it difficult to him to stand upright for more than 20-30 minutes continuously. His GP is also managing him with medication for this as well.
Dr Rubina Rawa, Mr Mahmood’s general practitioner for over a decade, in a letter prepared for this Tribunal dated 26 July 2018, states:
His back pain is constant, worse going up and down stairs, sitting, standing in same positions more than half hour, cannot lift weight more than 3 kg, he cannot bend further than touching his knees with his hands. He cannot afford physiotherapy and pain management clinics. His condition will continue for more than two years
…
He now has developed radiologically confirmed OsteoArthritis of both hips, that makes him have pain on walking, he has been recommended to have steroid injections before planning surgery, he is under treatment of an orthopaedic surgeon Dr David Love. He is unable to have multiple steroid injections as his osteoporosis will worsen. This condition will continue beyond two years
The Tribunal explored the functional impact of Mr Mahmood’s impairment under Table 4 of the Impairment Tables because Mr Mahmood’s accepted condition primarily impacts on his spine. In particular, the Tribunal explored his capacity in respect of a moderate functional impact. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
(1)       The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)     the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)   the person is unable to bend forward to pick up a light object placed at knee height; or
(d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Mr Mahmood gave evidence that during the qualifying period:
·he could walk for no more than 30 to 50 metres, so he only walks around the home and in his backyard (his brother has made him a wooden ramp so he can access the backyard as he can no longer manage the stairs into his backyard);
·he is unable to stand for more than five minutes, describing it as very hard; he could only stand for three or four minutes in the one position; he indicated that if he is feeling better on heavy painkillers, when the pain is under control he can stand for 20 minutes but not always;
·that he had stopped driving two years ago because of the back pain; that if he has to go anywhere his brother comes and helps him into the car; and that his wife or brother drives him everywhere and his wife undertakes all the supermarket shopping;
·that his wife assists him with everyday tasks such as showering and dressing;
·that he has difficulties moving his head in all directions;
·he cannot perform any overhead activities and has difficulty doing up buttons on his shirt;
·he cannot sit in a low chair because it too difficult, so he normally sits on a dining room chair; that he needs assistance getting out of the chair by leaning on the table; and he is very careful when walking around as he is very fearful of falls as he has had numerous fractures;
·he cannot have any more steroid injections, which may assist with his pain because he has to be very careful because of his bone density and they impact negatively upon his osteoporosis;
·that his life is very boring - he lies down then stands and walks around; sometimes he goes outside; sometimes he watches television; that his days are very boring and he doesn’t do much;
·he indicated that he lies in bed and waits for his wife to return from dropping their daughter to school; she then helps get him up and to have breakfast around 10 o’clock; he then tries to watch TV but as he has to change his posture often, he generally gives up and will go out to the backyard for 10 minutes; he then has lunch; at about 8 PM he has dinner and talks with the children; he takes his medication and goes to bed around 10 pm and just lies in bed and waits for sleep; and generally falls sleep around 1 am.

The Respondent, in her statement of issues, facts and contentions, contends that Mr Mahmood’s back pain whilst fully diagnosed is not fully treated or stabilised. She considers this condition is not necessarily a result of his osteoporosis, which they do accept is fully diagnosed, treated and stabilised, but a result of degenerative changes in the lumbar spine, for which he has received no treatment. Ms Bramley argued that if the tribunal did consider Mr Mahmood’s back pain as being fully diagnosed, treated and stabilised, the condition could not be assigned more than five points under Table 4, since he has some difficulty with overhead activities and is able to bend to knee height albeit with some difficulty.
The Respondent further submits that whilst she accepts Mr Mahmood osteoporosis is fully diagnosed, treated and stabilised it is having no functional impact on his activities involving lower limbs and therefore he cannot be assigned any points under Table 3.
The Tribunal was satisfied that Mr Mahmood’s osteoporosis (left hip pain/back pain) was fully diagnosed, treated and stabilised during the qualifying period and was having a moderate impact upon his functionality. As he reported and was corroborated by his treating general practitioner, he had moderate difficulties with sitting, standing, bending, overhead activates, and lifting more than three kg, and needed to support to get out of a chair. It therefore assessed this condition at 10 points under Table 4 as this best reflected the functional impact of this condition. The Tribunal concurred with the view of (then) Member Morris in his decision of 23 May 2017 in the previous AAT hearing, where he found:
After considering the medical evidence and the Applicant’s discussion with JCA2 and evidence to this hearing, I am satisfied that Mr Mahmood should be assigned points for his osteoporosis under Table 4 – Spinal Function. Applying the Descriptors for that table for ‘moderate’ functional impact, in particular (1)(a) and (b), I find that Mr Mahmood is correctly assigned 10 impairment points for this condition in the claim period.
Generalised Anxiety Disorder/Depression
Dr Claire Myers, clinical psychologist, in a letter to Centrelink dated 4 December 2015, states:
This letter is being written to confirm that Nasir Mahmood has the following mental health diagnoses, that were originally diagnosed by his GP. Dr R Rawal:
GAD (Generalised anxiety disorder)
During assessment it became clear that the level of anxiety that Mr Mahmood experiences impacts his life everyday. He experiences intrusive, anxious thoughts, which in turn impacts his ability to concentrate when trying to complete everyday tasks. Within the last four months, Mr Mahmood has developed headaches, but reports the medical investigation has shown no cause. It is thought these headaches may be related to stress and anxiety.
Depression
Mr Nasir described feeling sad and empty. It seemed that his multiple medical conditions, which caused him pain and impair his ability (he described having to limit his driving due to pain in his shoulders), coupled with his struggle to maintain regular employment, have left him feeling worthless. It seems that as his pain gets worse, this limits his ability to partake in activities he enjoys, (e.g. outings with his children), which in turn, exacerbates the depression.
I see from his records that Mr Mahmood has been taking the antidepressant Zoloft for the past 6.5 years and this dose was increased approximately 1 year ago. He reports he takes this medication consistently
It is my opinion the Minister Mr Mahmood anxiety and depression are chronic conditions.
Dr Rubina Rawa, general practitioner, in a letter prepared for this Tribunal, dated 26 July 2018 states:
His anxiety and depression are ongoing inspite of medications as he cannot afford ongoing psychological therapies, theres ongoing family issues (sister has psychosis, niece committed suicide, son has GAD, wife has severe suicidal depression, son has GAD) he lacks motivation, cannot decide, cannot concentrate, lacks confidence
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Mr Mahmood’s mental health condition, with a focus on whether or not he has a moderate impairment.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self-care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Mr Mahmood advised the Tribunal that during the qualifying period:
·he has great difficulty looking after himself; that his wife helps him to dress and cooks all his meals, and that if she tells him that he needs a shower– he takes the shower;
·he can’t go anywhere and he feels disconnected from society and friends; that he can’t see family and friends as he can’t afford to; that he is not really happy to see people as he feels bored, his life is boring and that he would bore other people;
·his relationship with his wife and children is strained; his wife, in particular, is upset and burdened by his condition;
·he avoids going to outings, particular community and family events, as he feels he can’t participate in them;
·he has great difficulty completing tasks and concentrating as he is always confused, particularly about his future; he said “my brain is not well and my family is suffering; it feels like my brain is swimming in these questions;
·he does not read books and newspapers as he can’t concentrate and that his cough adds to his stress; and
·he had tried about four years ago to get work as an accountant but he couldn’t get work and that made his depression worse.
The Respondent submits, in her statement of issues, facts and contentions, that she accepts that Mr Mahmood’s mental health conditions of generalised anxiety disorder and depression are fully diagnosed. But she does not consider them fully treated and stabilised as there is limited medical evidence particularly from a treating psychologist or psychiatrists to indicate sustained engagement with psychological intervention and optimal pharmacological therapy. The Respondent accepts that Mr Mahmood has some difficulty with social/recreational activities, concentration and completion of tasks. However, she argued there is no evidence of the degree of difficulty or any limitations in respect of the other criteria under Table 5 and therefore the condition cannot be assigned an impairment rating greater than nil points under this table.
The Tribunal is satisfied that Mr Mahmood’s generalised anxiety and depressive disorder was fully diagnosed, treated and stabilised during the qualifying period as he had undertaken all reasonable medical treatment recommended by his general practitioner to stabilise the condition, including counselling (when he could afford it) and medication. Mr Mahmood had recently changed general practitioners as he felt his doctor had not been assisting him in getting better and that he had found a doctor closer to home. Therefore, the Tribunal, on balance, finds that Mr Mahmood’s mental health condition, described as generalised anxiety and depression, had been fully diagnosed, treated, and stabilised.
As he reported, and his evidence was corroborated by his treating general practitioner, he had moderate difficulties with self-care relying, upon his wife for day to day care, avoids social activities, had a strained relationship with his wife, could not concentrate or make decisions, lacked motivation and confidence and exhibited unusual behaviour through his persistent cough – which was significantly evident during the Tribunal proceedings. Therefore, the Tribunal finds that these conditions were having a moderate functional impact on his activities during the qualifying period.
The Tribunal found it difficult to distinguish whether Mr Mahmood’s inability to perform activities such as self-care, independent living, and concentration were caused by the pain from his back/hip condition, or whether it was a result of his mental health condition.
The Tribunal awards 10 points under Table 5 of the Impairment Tables in respect of this condition.
Asthma/Cough
Dr Rubina Rawa, general practitioner, in a letter prepared for this Tribunal dated 26 July 2018, states:
His asthma causes him to cough constantly inspite of maximum treatment by specialists, this cough affects his vocal chords making him unable to hold speech fluently as his voice becomes inaudible due to fatigue of vocal chords, he coughs more going up and down stairs or walking more than 5 minutes. His asthma medication has been increased recently. It is not possible to increase his medication any further due to their deteriorating side-effects particularly on his osteoporosis. He will continue to have these restrictive difficulties for more than two years.
Mr Mahmood gave evidence that:
·his cough was constant and that he took asthma medication otherwise he could not talk or breath;
·his cough is always present and the medication helps to suppresses it a little; and
·he believes the cough has been present for five years but it has significantly worsened in the last two.
The Respondent, in her statement of issues, facts and contentions, accepts that Mr Mahmood has a long-standing and persistent cough which, historically, medical evidence attributed to his asthma; and which has resulted in shortness of breath and impact on his vocal cords. However, she referred to a recent consultation with the respiratory specialist who confirmed that the cough was due to anxiety. In light of this additional evidence, the Respondent argued Mr Mahmood’s cough is a symptom of this anxiety and not a discreet condition in itself. Therefore, as she considers it a symptom of his mental health condition which she does not consider to be fully diagnosed, treated and stabilised within the qualifying period, nil points should be awarded to this condition.
The Tribunal awards this condition nil points under Table 1 of the Impairment Tables. The Tribunal finds that Mr Mahmood’s asthma/cough is a long- standing condition which is having an impact on his functionality. However, the Impairment Tables clearly state that when two or more conditions cause a common or combined impairment, a single rating should be assigned. As such, nil points are awarded to this condition under any Table, as the functional impacts of Mr Mahmood’s asthma/cough have been taken into account under Tables 4 and 5 of the Impairment Tables.
IMPAIRMENT RATING
The Tribunal has found that Mr Mahmood has an overall impairment rating of 20 points, with 10 points allocated under Table 4 (Spinal Function) and Table 5 (Mental Health Condition). Mr Mahmood therefore satisfies section 94(1)(b) of the Act.
DOES MR MAHMOOD HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr Mahmood must not only have an impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate he has a continuing inability to work. Mr Mahmood would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal has strictly applied the program of support requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement or not.
Mr Mahmood has not been found to have a severe impairment of 20 points under a single table. Therefore, he must have participated in program of support for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that Mr Mahmood had completed such a program within the required timeframe and accepted that he satisfied section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly finds that Mr Mahmood had completed a program of support and therefore does satisfy section 94(3C) of the Act.
The Respondent notes that the JCAs dated 8 September 2017 and 24 September 2017 found that the Applicant’s baseline work capacity was 8-14 hours per week; and that this capacity would be increased within the next two years, with intervention, to 15-22 hours per week. The Respondent therefore argues Mr Mahmood was not prevented by reasons solely of his impairment from undertaking work of at least 15 hours per week.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred, for the purpose of assessing a continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
In a “file only” JCA dated 24 August 2018, undertaken by a physiotherapist with contribution from a registered psychologist, they identified the barriers and interventions required to enable Mr Mahmood to reach his future work capacity. The barriers: physical limitations restricting type of work, endurance limitations and psychological/psychiatric condition. The interventions: pain management program, psychological/cognitive assessment/intervention, vocational rehabilitation and psychiatric services/treatment. They conclude the customer has a recommended baseline work capacity of 8-14 hours per week due to restrictions imposed by his long-term conditions. Symptoms limit the customer’s ability to perform daily tasks that require heavy activity and being in stressful environments. With medical intervention, post placement support, support with employment related activities and links with local community services it is anticipated that the customer will have an increase in work capacity. Given Mr Mahmood had already completed his program of support at the time this file note was made, the Tribunal is at a loss to understand why this intervention had not already been provided to Mr Mahmood to enable him to reach a work capacity of 15 to 22 hours per week.
Doctor Rawal, Mr Mahmood’s general practitioner for over a decade, stated in a letter to the Tribunal dated 26 July 2018:
His medical conditions are being managed to maximum level but due to chronic nature of them, his overall health has been permanently affected, in-spite of being stabilised. It is not expect that he will ever get any better, as it is, he is unable to hold any part-time or full-time job.
The Tribunal is therefore satisfied that Mr Mahmood has a continuing inability to work.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Mr Mahmood was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment Tables and he satisfied section 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Mr Mahmood satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

.....................[sgd].................................................
Associate
Dated: 7 March 2019

Date of hearing: 14 December 2018

Applicant: Self-Represented

Advocate for the Respondent: Ms Ailsa Bramley

Solicitors for the Respondent:
Department of Human Services

[2019] AATA 363

7 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	14 December 2018
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Ailsa Bramley
Solicitors for the Respondent:	Department of Human Services