Mani and Secretary, Department of Social Services (Social services second review)
[2023] AATA 2001
•7 July 2023
Mani and Secretary, Department of Social Services (Social services second review) [2023] AATA 2001 (7 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/5702
Re:Jone Mani
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:7 July 2023
Place:Sydney
The Reviewable Decision is affirmed.
..............................[SGD]..........................................
Senior Member Dr Linda Kirk
CATCHWORDS
SOCIAL SECURITY — Disability Support Pension — Claim for disability support pension rejected — Whether applicant’s conditions were fully diagnosed, fully treated, and fully stabilised during the qualification period — Whether applicant’s conditions attracted an impairment rating of at least 20 points — Decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Secretary, Department of Social Services v Doherty [2022] FCA 1242
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide, 3.6.3.30 Guidelines to Table 3 - Lower Limb Function
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Dr Linda Kirk
7 July 2023
Mr Jone Mani (‘the Applicant’) was born in 1959 and is aged 64.
On 15 July 2021, the Applicant applied for the Disability Support Pension (‘DSP’).[1] In his application the Applicant listed osteoarthritis affecting both feet with metatarsalgia, non-insulin dependent diabetes, and anxiety as conditions affecting his capacity to work.
[1]T-Documents, T19, 248.
On 23 July 2021, the Applicant was notified that his application had been rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’).[2]
[2] T22, 262.
The Respondent then received a Centrelink Medical Certificate completed by Dr Hung Ma, general practitioner, dated 21 October 2021 in support of the Applicant’s claim.[3]
[3] T23, 265.
On 9 December 2021, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that the Applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’). An explanation of the decision was sent to the Applicant.[4]
[4]T26, 271.
On 1 March 2022 the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (‘SSCSD’) for review of the ARO decision.
In a decision dated 16 May 2022, the SSCSD affirmed the decision of the ARO refusing the Applicant’s DSP application as he did not satisfy section 94(1)(b) of the Act (‘the Reviewable Decision’).[5]
[5]T2, 3.
On 11 July 2022, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[6]
[6] T1, 1.
The matter was heard at a hearing of the Tribunal in Sydney on 7 June 2023. The Applicant attended the hearing in person and was self-represented.
LEGISLATION
Section 94(1) of the Act relevantly provides:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work…
Section 42 of the Social Security (Administration) Act 1999 (Cth) (‘Administration Act’) provides that a person’s ‘start day’ in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act. Clause 3 of Schedule 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person’s qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with subclause 4(1) of Schedule 2 to the Administration Act: section 13 Administration Act.
Pursuant to section 42 and Schedule 2 of the Administration Act, in order to qualify for DSP the Applicant must satisfy the requirements of section 94 of the Act as at the date he made his application, 15 July 2021, or within 13 weeks of lodging the application, that is between 15 July 2021 and 14 October 2021 (‘the qualification period’).
Impairment Tables
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms, and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. ‘Impairment’ is defined in section 3 to mean ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.’
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that ‘impairment’ is ‘permanent’. Section 6(4) of the Impairment Tables provides that a condition is ‘permanent’ if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised; and
(d)is more likely than not to persist for more than two years.
In assessing whether a condition is ‘fully diagnosed’ by an appropriately qualified medical practitioner and whether it has been ‘fully treated’, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines ‘fully stabilised’ to mean:
(a)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:
(c)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
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
‘Reasonable treatment’ is defined in section 6(7) of the Impairment Tables as 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.
Section 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Subsection 10(1) of the Impairment Tables states that Table selection is to be made 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.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
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.
Table 3 - Lower Limb Function
Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet. It provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner. Self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.
Table 3 provides that an impairment rating of 10 points applies where there is a ‘moderate’ impact on activities using a person’s lower limbs.[7] There is a ‘moderate’ functional impact on activities using lower limbs when:
[7] T3, 55.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a
shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Table 3 provides that an impairment rating of 20 points applies where there is a ‘severe’ impact on activities using a person’s lower limbs.[8] There is a ‘severe’ functional impact on activities using lower limbs when:
[8] T3, 55.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
ISSUES FOR DETERMINATION
The issues for determination are:
1)Did the Applicant have a physical, intellectual or psychiatric impairment for the purpose of paragraph 94(1)(a) of the Act during the qualification period?
2)Did the Applicant have an impairment rating from fully diagnosed, treated and stabilised conditions attracting at least 20 points on the Impairment Tables for the purpose of paragraph 94(1)(b) of the Act; and if so,
3)Does the Applicant have a continuing inability to work, as defined in subsection 94(2) of the Act, for the purpose of paragraph 94(1)(c) of the Act?
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s evidence
The Applicant’s evidence is that he lives alone in a single storey building with four stairs at the entrance and he did so during the qualification period. He is able to climb these stairs without assistance.
The Applicant suffers with chronic pain affecting both his feet and he did so during the qualification period. The pain affecting his feet has become worse in recent years and is getting worse every day.[9] On some days the pain is so bad that he has difficulty going to the toilet. However, his condition does vary on a day-by-day basis.[10]
[9] T2, 7 [19].
[10]T2, 6 [19].
The Applicant takes medication to assist in the management of his pain. He takes Palexia 250 mg (sustained release tapentadol) daily. He has taken Lyrica (pregabalin) previously, and now is taking an antidepressant medication, Cipramil (citalopram). He has also been prescribed Serepax (oxazepam), but this medication makes him drowsy. He takes metformin for his diabetes.[11]
[11] T2, 7 [19].
On a typical day the Applicant rises in the morning and takes his pain medication and then goes back to bed and lies down for an hour or so. He is able to shower and dress himself. He does not go out or socialise other than when he has visitors.
The Applicant lives by himself and is reliant on regular support from his nephew and his neighbours.[12] During the qualification period his nephew would visit him every weekend and bring him food and do the housework and his washing.
[12] T2, 6-7 [19].
A Woolworths supermarket is located across the road from where the Applicant lives. He sometimes walks there accompanied by a friend and using his walking stick.[13] When his neighbours go to the supermarket, they ask him whether there is anything they can get for him.
[13]Ibid.
The Applicant is generally able to walk around his house, but on some days it can be impossible. He has not visited a shopping mall within the last three to four years, and on days when his pain is severe, he is unable to walk around the supermarket.[14]
[14] T2, 7 [19].
The Applicant visits his general practice every two weeks to obtain a prescription for his medication and he sees the doctor every month. The practice is located in the street where the Applicant lives, and he is able to travel there by bus in about three minutes. He is able to walk to the bus stop and get up and down the stairs to the bus.
The Applicant told the Tribunal that he travelled to the Tribunal hearing by train. His friend drove him to the railway station and accompanied him on the train journey. They walked together from Wynyard station to the Tribunal building.
The Applicant’s evidence to the SSCSD was that it is hard for him to walk more quickly or to walk on an uneven surface. When climbing a few steps, he will hold onto the rail as well as using his walking stick, and he is able to climb one flight of stairs. He finds it difficult to stand for longer periods, and for instance in a supermarket queue, he finds it hard to stand for more than five minutes. He uses his walking stick when he stands up from a sitting position. It is hard for him to kneel or squat.[15]
[15]Ibid.
The Applicant was diagnosed with diabetes about five years ago. The condition is managed with medication prescribed by his general practitioner. He has not seen a specialist for management of his diabetes. His diabetes is tested with blood tests and with testing at home, but he has not undertaken either of these activities recently.[16]
[16]Ibid.
The Applicant does not believe that he suffers with anxiety and depression, but he has found that dealing with his disability claim has been very stressful.[17]
[17]Ibid.
The Applicant weighs only 49 kg and he feels very weak.[18]
Medical Evidence
[18]Ibid.
Condition 1 – Osteoarthritis of both feet with metatarsalgia
In a medical report dated 31 May 2019, Dr Geoffrey Needham, Consultant in Rehabilitation and Pain Medicine, confirmed severe instability of the Applicant’s right ankle due to gradual deterioration following an old Lisfranc injury. Dr Needham noted the Applicant is unable to stand, walk safely without his walking aid, and has severely limited standing time.[19]
[19] T4, 184.
In a report dated 9 August 2016, Dr Emma-Leigh Synott, Registrar, Westmead Hospital reported the following in relation to the Applicant’s lower limb impairment:[20]
Mr Mani attended the clinic today alone. He discussed over the last few months he has been finding it increasingly difficult to mobilise secondary to an increase in right foot pain. Mr Mani describes a severe ache in his right foot which sometimes wakes him from sleep. It is intermittent in nature and is not related to weight bearing or activity. I note that he has recently been reviewed by a pain specialist in relation to his increasing pain and was commenced on regular analgesia as above.
Mr Mani remains independently mobile. He is independent in his pADLs and independent in domestic duties. He has recently started sitting in the shower secondary to feeling unsteady on his feet. He does not drive. He is independently able to access public transport. He is independant in his finances and is currently receiving the New Start Allowance. He denies any falls.
On review today, he was mobilising independent and unaided. He had a swing through gait, mildly antalgic on the right. Right foot had good hip flexion and extension. There was normal knee flexion and extension. Right foot demonstrated adequate heel strike with external progression and decreased toe off. On examination of his lower limbs, there was no significant wasting of the right leg. He had a mild foot deformity with increased carpal bone prominence and Pes Cavus. Strength was preserved throughout. Sensation was intact. He had decreased mobility at the subtalar and midfoot but preserved crural joint mobility. The midfoot collapsed on single leg stance.
[20] T4, 186-187.
In a report dated 9 March 2020, Dr Justin Tan reported the following:
[The Applicant] is 61-year-old gentleman with a history of chronic right foot deformity and chronic pain secondary to fracture in a motor vehicle accident 30 years ago.
Mr Mani was last reviewed in May 2019 to arrange orthotics to relieve pain in his right foot. He was recommended to go to KOrthotics to look at options for a soft insole to support the collapsed of the mid foot and reduce the callous that had developed at the right 1st MTP. He had unfortunately not followed through with this recommendations, as he felt that footwear was not a concern since buying a pair of bilateral off the shelf boots with good ankle support. Mr Mani is functionally independent living independently and walking without aid.
Mr Mani admitted he still had chronic foot pain and for which he needs to take relatively high dose of tapentadol 250 mg bd and pregabalin 150 mg. He reported he was known to the pain specialist Dr Geoffrey Needham in Blacktown. Over the last four orthotic clinic appointments, we have raised concerns that the tapentadol dose is high and cautioned him on the side effects of tapentadol. He has not made any efforts that he can recall to reduce the dose further.
Examination
Mr Mani had right medial midtarsal bony deformity most prominent on the dorsal side. There was collapse of the medial arch as he weight bears. There was callous apparent in the proximal side of his 1st MTP but his skin was otherwise intact with no redness to suggest pressure injury.
He had no insoles today and when wearing his boots, He displayed a step through gait with good cadence. He did not appear antalgic.
Issues
Bony deformity of the mid foot from previous fractures which may be relieved with the use of custom insole.
Chronic pain and chronic pain with persistently high use of analgesia
I have explained chronic pain management and the risk of long term opioid use including dependence and tolerance.
I recommended Mr Mani attend Korthotics to help reduced the localised foot pain by accommodating and correcting his foot with an insole, rather than relying on medications.
The contemporary clinical documentation submitted in support of the Applicant’s claim comprises three medical certificates completed by Dr Ma dated 9 February 2021,[21] 18 May 2021,[22] and 21 October 2021.[23]
[21] T17, 246.
[22] T18, 247.
[23] T24, 266-267.
In the medical certificate dated 21 October 2021, Dr Ma reported that the Applicant had chronic pain in both feet and ankles as well as difficulty walking long distances or long periods of time and was taking analgesia which caused drowsiness and fatigue.[24] Dr Ma earlier opined that the Applicant was able to lift ten kilograms, complete grocery shopping, walk about a shopping/supermarket, but was unable to stand for more than 10 minutes due to his right foot and the need to rest.[25]
[24]T23, 265.
[25]14 April 2020.
In a letter dated 28 September 2022, Dr Ma reported that the Applicant:[26]
suffers from severe deformity of right foot due to injury in 1986. His condition has been fully diagnosed with MRI scan and he has been fully treated with orthotic management and analgesic medication. His condition is permanent and there is no possible surgical treatment.
[26]RSFIC, Annexure A.
In a letter dated 9 December 2022, Dr Ma reported that the Applicant continues to see a pain specialist for his foot, and he requires long term analgesia to control the pain.[27]
[27]RSFIC, Annexure B.
Condition 2 – Non-insulin dependent diabetes
Evidence provided by Dr Ma in medical certificates dated 16 January 2020[28] and 17 October 2019[29] records the Applicant’s non-insulin dependent diabetes with date of onset of 30 August 2013.
[28]T-Documents, T8, 213.
[29]T4, 195.
Condition 3 – Anxiety
Evidence provided by Dr Ma in medical certificates dated 18 May 2021[30] and 17 October 2021[31] records the Applicant’s anxiety with a date of onset of 15 August 2019.
[30]T18, 247.
[31]T23, 265.
CONTENTIONS
The Respondent concedes that during the qualification period the Applicant suffered medical conditions that caused impairment, and therefore he satisfies section 94(1)(a) of the Act at the time of his application for DSP. [32]
[32]RSFIC [5.1].
The Respondent contends that the report of Dr Ma dated 9 December 2022; the report of Dr Synnott, Registrar, dated 9 August 2016; the report of Dr Tan, Rehabilitation Medicine Specialist, dated 9 March 2020, and the report of Dr Ma dated 28 September 2022 do not relate to the qualification period, nor do they provide evidence of functional impairment at that period, and as such should be accorded limited weight.[33]
[33]RSFIC [5.7]-[5.8].
The Respondent contends that at the qualification period, the Applicant’s osteoarthritis of both feet with metatarsalgia was the only medical condition that was fully diagnosed, treated and stabilised and attracted no more than 10 impairment points under Table 3.[34]
[34]RSFIC [5.5].
The Respondent contends that the Applicant does not meet all the descriptors for a 10 point rating under Table 3. There is no medical evidence that the Applicant is unable to use stairs or steps without assistance; unable to stand for more than five minutes or walk around in a shopping centre or supermarket pursuant to criteria (1)(b) and (c) as well as (2).[35]
[35]RSFIC [5.9].
The Respondent further contends there is no supporting medical evidence in line with a 20 point rating that the Applicant required the assistance of another person in relation to criteria (1) and (2).[36]
[36] RSFIC [5.10].
The Respondent accepts that the Applicant’s non-insulin dependent diabetes was fully diagnosed by Dr Ma, but contends that this condition was not fully treated and stabilised within the qualification period and therefore no impairment points could be awarded. [37]
[37]RSFIC [5.12]-[5.13].
The Respondent contends that there is no medical evidence that the Applicant’s condition of anxiety has been diagnosed by an appropriately qualified medical practitioner with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. As such, no impairment rating can be assigned for the condition.[38]
[38]RSFIC [5.15].
Accordingly, the Respondent contends that as the Applicant did not have an impairment rating from fully diagnosed, treated and stabilised conditions attracting at least 20 points on the Impairment Tables, he did not satisfy paragraph 94(1)(b) of the Act during the qualification period.[39]
[39]RSFIC [5.17].
CONSIDERATION AND REASONS
1) Did the Applicant have during the qualification period a physical, intellectual or psychiatric impairment for the purpose of paragraph 94(1)(a) of the Act?
The Tribunal is satisfied that based on the medical evidence, the Applicant had physical, intellectual or psychiatric impairments during the qualification period, and he therefore satisfied paragraph 94(1)(a) of the Act.
2) Did the Applicant have an impairment rating from fully diagnosed, treated and stabilised conditions attracting at least 20 points on the Impairment Tables for the purpose of paragraph 94(1)(b) of the Act?
Condition 1 – Osteoarthritis of both feet with metatarsalgia
Is the condition fully diagnosed, treated and stabilised?
The Tribunal is satisfied that the Applicant’s osteoarthritis of both feet with metatarsalgia was fully diagnosed at the qualification period based on the MRI scan referenced in the report dated 30 November 2018 of Dr Needham, Consultant in Rehabilitation and Pain Medicine[40] and the medical certificate of Dr Ma, General Practitioner, dated 18 May 2021.[41]
[40]T-Documents, T4, 183.
[41] T18, 247.
The Tribunal is also satisfied that this condition was fully treated and stabilised during the qualification period on the basis that the Applicant was treated with orthotic management and analgesic medication. Dr Needham opined in his report dated 30 November 2018 that there was no possible surgical treatment,[42] and Dr Ma opined that the Applicant’s prognosis for this condition was that it was ‘likely to persist forever”.[43]
What impairment rating is attracted?
[42] T4, 183.
[43] T18, 247.
The Tribunal has considered whether this condition attracts an impairment rating of 10 or 20 points. For the reasons that follow, it finds that it attracts no more than 10 impairment points under Table 3.
In relation to criteria (1)(a) for a 10 point impairment rating under Table 3, the Applicant’s evidence is that he can only walk a short distance from his home, for example to the supermarket across the road and to the bus stop. Relevant to criteria (1)(b), the Applicant’s evidence is that he is able to climb the four steps at the entrance to his building and he can climb a flight of stairs assisted by his walking stick and holding onto the handrail. The Applicant meets criteria (2) for this impairment rating as his evidence is that he is able to use public transport, including the bus and train, and he is able to walk to the supermarket accompanied by a friend. Relevant to criteria (3) is the Applicant’s evidence that he is able to move around independently with the use of a walking aid, specifically a walking stick.
Relevant to criteria (1)(a) for a 10 point impairment rating is the evidence provided by Dr Ma in the medical certificate dated 21 October 2021 that the Applicant has difficulty walking long distances or standing for long periods of time.[44] Relevant to criteria (1)(c) is the evidence of Dr Needham in his report dated 31 May 2019,[45] that the Applicant has severely limited standing time.[46] The evidence from Dr Ma’s reports is that the Applicant is capable of walking around a supermarket (criteria (2), and is unable to stand for more than 10 minutes due to pain in his right foot and the need to rest (criteria (1)(c)).[47]
[44]T23, 265.
[45]T4, 184.
[46]T13, 230.
[47]T12, 227.
Based on the evidence before it, the Tribunal finds that the Applicant satisfies at least one of the criteria in (1) and meets criteria (2) for a 10 point impairment rating. The Applicant is unable to walk far outside of his home and he needs to take public transport or have a friend drive him to community facilities, including his local medical practice and to the railway station and he therefore satisfies criteria (1)(a). He is able to use public transport and walk around the supermarket, meeting criteria (2) of Table 3.
Accordingly, based on the evidence before it, the Tribunal is satisfied that the Applicant’s osteoarthritis of both feet with metatarsalgia meets the criteria for a ‘moderate’ functional impact on activities using his lower limbs and attracts an impairment rating of 10 points under Table 3.
For the reasons that follow, the Tribunal is not satisfied that the Applicant’s osteoarthritis of both feet with metatarsalgia attracts an impairment rating of 20 points under Table 3 as it does not meet the criteria for a ‘severe’ functional impact on activities using his lower limbs.
The 10 and 20-point descriptors in Table 3 use the term ‘assistance’. The Applicant emphasised to the Tribunal in his oral evidence and submissions that he is only able to undertake activities using his lower limbs with the assistance of his walking stick. The Respondent relies on the relevant policy guidance which limits the term ‘assistance’ in Table 3 to assistance provided by another person, rather than any aids, equipment or assistive technology the person may use, unless specified otherwise.[48] This interpretation of the term ‘assistance’ has been adopted in a number of decisions, including recently by the Federal Court in Secretary, Department of Social Services v Doherty.[49]
[48] Guides to Social Policy Law, Social Security Guide, 3.6.3.30 Guidelines to Table 3 - Lower Limb Function.
[49][2022] FCA 1242.
Relevant to criteria (1)(a), the Applicant’s evidence is that he is able to walk around the supermarket and stand up from a sitting position without the assistance of another person. He can also use public transport without the assistance of another person (criteria (1)(b)). He does not require the assistance of another person to move around using his walking stick (criteria (2)). The medical evidence before the Tribunal is consistent with the evidence provided by the Applicant.
Accordingly, based on the evidence before it, the Tribunal is satisfied that the Applicant’s osteoarthritis of both feet with metatarsalgia does not meet the criteria for a ‘severe’ functional impact on activities using his lower limbs and does not attract an impairment rating of 20 points under Table 3.
Condition 2 – Non-insulin dependent diabetes
The Tribunal is satisfied that the Applicant’s non-insulin dependent diabetes was fully diagnosed by Dr Ma in his medical certificate dated 18 May 2021.[50]
[50] T18, 247.
The evidence does not, however, support a finding that the Applicant’s diabetes was fully treated and stabilised during the qualification period. There is no evidence that the Applicant was subject to an ongoing pharmacology review from a specialist such as a dietitian, endocrinologist, or rehabilitation specialist within the qualification period.[51]
[51] T13, 229.
As the Applicant’s non-insulin dependent diabetes was not fully treated and stabilised within the qualification period, no impairment rating can be assigned to this condition.
Condition 3 – Anxiety
The Introduction to Table 5 – Mental Health Function states that the diagnosis of a mental health condition must be made by either a psychiatrist, or by an appropriately qualified medical practitioner with evidence from a clinical psychologist.[52]
[52]T3, 38.
With respect to the Applicant’s anxiety, this condition was not fully diagnosed at the qualification period, as there is no evidence of diagnosis by a psychiatrist or clinical psychologist.
As the Applicant’s anxiety was not fully diagnosed it cannot be considered permanent during the qualification period, and no impairment rating can be assigned to this condition under Table 5.
CONCLUSION
As the Tribunal cannot be satisfied that, during the qualification period, the Applicant suffered from impairments attracting a total rating of 20 points under the Impairment Tables necessary to establish eligibility for DSP, it finds that the Applicant was not qualified for DSP during the qualification period.
As the Applicant’s conditions were either not considered permanent under the Act or did not attract 20 points or more on the Impairment Tables, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.
The Tribunal’s decision does not mean that the Applicant’s symptoms are not real, genuine or disabling, rather that the applicable legislative criteria have not been met.
The Tribunal’s decision does not prevent the Applicant from making a new claim for DSP once the necessary investigations and treatment are complete and certified by those who are managing his health conditions, including practitioners who meet the requisite qualifications specified in the Introduction to Table 5.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.................................[SGD].......................................
Associate
Dated: 7 July 2023
Date(s) of hearing:
7 June 2023
Applicant:
In person
Solicitors for the Respondent:
Ms S Navaratnam, Services Australia
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