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

[2021] AATA 88

Manos and Secretary, Department of Social Services (Social services second review) [2021] AATA 88 (2 February 2021)

Division:GENERAL DIVISION

File Number:2020/0100          

Re:Mr Lambros Manos  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

Tribunal:Senior Member B. Pola

Date:2 February 2021

Place:Brisbane

DECISION

Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent of 26 September 2019.

................................[SGD]............................................

Senior Member B. Pola

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability – whether applicant qualifies for unlimited portability of DSP – whether applicant has a severe impairment – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration Act) 1999 (Cth)

Social Security (International Agreements) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

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

CASES

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409

Faulkner and Comcare [2007] AATA 1541

Morton and Secretary, Department of Social Services [2014] AATA 949

Shi v Migration Agents Registration Authority [2008] 235 CLR 286

WMKR and Secretary of Department of Social Services [2015] AATA 483

REFERENCE MATERIAL

Social Security Guide, 3.6.3.50, version 1.277, 6 January 2021

REASONS FOR DECISION

Senior Member, B. Pola
2 February 2021

BACKGROUND

1.       The Applicant, Mr Lambros Manos, has been in receipt of the Disability Support Pension (or ‘DSP’) since 1999[1].

[1]  Exhibit 1, T49, page 353.

2.       On 24 July 2018[2], the Applicant applied to Centrelink or the Department of Human Services, now known as Services Australia (herein referred to as the ‘Agency’) for unlimited portability of their DSP.

[2]  Exhibit 1, T50, page 363.

3.       On 8 February 2019[3], the Applicant was advised by the Agency that their application for unlimited portability of their DSP was rejected.

[3]  Exhibit 1, T45, page 318.

4.       The Applicant sought review of this decision and on 26 September 2019[4], an Authorised Review Officer (or ‘ARO’) reviewed and affirmed the decision to reject the Applicant’s request for unlimited portability of their DSP.

[4]  Ibid.

5.       The Applicant sought review of the decision to reject his claim for unlimited portability of their DSP with the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as ‘Tribunal’) and on 9 December 2019 the Tribunal affirmed the decision to reject the Applicant’s claim for unlimited portability of their DSP.

6.       The Applicant applied to the Tribunal for a second review of this decision on 2 January 2020[5]. The Tribunal notes that due to the restraints of the Covid-19 pandemic and the health circumstances of the Applicant, the hearing was delayed until the end of the year.

[5]  Exhibit 1, T1, pages 1 and 2.

7.       The application was heard in Brisbane on 14 December 2020, with the Applicant (who was self-represented) and the Respondent (represented by Mr Rick McQuinlan) both appearing in person. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1) of this decision.

JURISDICTION

8.       This is an application to review a decision of the SSCSD of the Tribunal which affirmed the decision to reject the Applicant’s claim for unlimited portability of their DSP.

9.       This application of 2 January 2020 has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and was subsequently reviewed by the SSCSD of the Tribunal.

10.     In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the application.

ISSUES

11.     The issues before the Tribunal for determination are whether the Applicant:

(a)was in receipt of a DSP (in accordance with s1218AAA(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’))?

(b)had a severe impairment (in accordance with s1218AAA(1)(b) of the Act)?

(i)If so, was the severe impairment expected to continue for at least five years (in accordance with s1218AAA(1)(c) of the Act)?

(ii)If so, does the severe impairment prevent the Applicant from performing work independently from a Program of Support (‘PoS’)[6] within the next five years (in accordance with s1218AAA(1)(d) of the Act)?

[6] In accordance with the Social Security (Active Participation for Disability Support Pension) Determination 2014 (or the ‘PoS Determination’).

RELEVANT LEGISLATIVE PROVISIONS

Overseas Portability of a DSP

12.     Whilst s94 of the Act sets out the qualification criteria for the DSP and generally requires that a recipient must be an Australian resident residing in Australia in order to be qualified, there is an exception for a person absent from Australia, and to whom the Secretary has made a determination in accordance with s1218AAA(1) of the Act:

“1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner

(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a) the person is receiving disability support pension;

(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

(a) the person is unable to return to Australia because of either of the following events:

(i) a serious accident involving the person;

(ii) the hospitalisation of the person; and

(b) the person’s portability period for disability support pension had not ended at the time the event occurred.

(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

(4) A determination under subsection (1) is not a legislative instrument.

(5) In this section:

“work” means work:

(a) that is on wages that are at or above the relevant minimum wage; and

(b) that exists in Australia, even if not within the person’s locally accessible labour market.”

[Emphasis in original]

13.     Section 1215 of the Act provides that a person in receipt of a DSP payment may continue to be paid that payment during a portability period, but the payment will cease to be paid at the end of that person’s portability period:

“1215 Some payments generally portable with time limit

(1) If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:

(a) throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;

(b) throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.

Note: Section 1217 defines the person’s maximum portability period and portability period for the payment.

(2) This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.”

[Emphasis in original]

14.     Section 1216 of the Act outlines amounts which are not to be added to the person’s rate during their period of absence from Australia:

“1216 Amounts added to rate

During the period of absence, rent assistance, incentive allowance and pharmaceutical allowance are not to be added to the person’s rate under Chapter 3 after whichever of the following times applies:

(a) if the person’s maximum portability period for the payment is an unlimited period—26 weeks after the period of absence commenced;

(b) otherwise—the end of the person’s portability period for the payment.”

15.     Section 1217 of the Act provides for the maximum period for which a person in receipt of the DSP is able to travel overseas, or the ‘maximum portability period’. Typically, a person in receipt of the DSP is able to travel overseas for a total of 28 days within a 12-month period.  

“1217 Meaning of maximum portability period, allowable absence and portability period

Meaning of maximum portability period

(1) The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a) the payment (as specified in column 2 of the table); and

(b) the class of persons to which the person belongs (as specified in column 3 of the table).

Meaning of allowable absence

(2) The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:

(a) it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and

(b) except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B applies, the absence does not:

(i) exceed the period specified in column 5 of that item; or

(ii) in the case of item 2—cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with that item.

Meaning of portability period if unlimited maximum portability period

(3) If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.

Meaning of portability period if maximum portability period limited

(4) If the person’s maximum portability period for the payment is not an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is the period:

(a) beginning at the commencement of the period of absence; and

(b) ending at the earlier of the following times:

(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

(ii) the end of the period that is the person’s maximum portability period for the payment.

Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.”

[Emphasis in original]

16.     As per s1217 of the Act, a person receiving the DSP who is a “severely impaired disability support pensioner” is able to travel overseas for an “unlimited period” in accordance with item 2A:

Portability of Social Security
Column 1 Item	Column 2 Payment	Column 3 Person	Column 4 Absence	Column 5 Maximum portability period
2A	Disability support pension	Severely impaired disability support pensioner	Any absence	Unlimited period

17.     A “severely impaired disability support pensioner” is defined in s1212 of the Act as being “a person in respect of whom the Secretary has made a determination under s1218AAA(1)”.

18.     Section 94(3B) of the Act defines a severe impairment as an impairment, “of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”. [Tribunal underline for emphasis]

19.     The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the  Act:

“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;

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

…”

20.     To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a PoS.

21.     Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

22.     It is the Tribunal’s role to stand in the shoes of the original decision-maker[7] and determine whether the decision was the correct or preferable one on the material before the Tribunal[8]. Given this, the Tribunal must make its decision in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (herein referred to as the 'Determination’) which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

[7]     Faulkner and Comcare [2007] AATA 1541 [27].

[8]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

23.     Section 6 of the Determination provides that “[t]he 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”[9]. Further, the Impairment Tables in the Determination 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[10].

[9]     Section 6(1) of the Determination.

[10]    Section 6(2) of the Determination.

24.     An impairment rating may only be assigned to an impairment if[11]:

(a)the person’s condition causing the impairment is permanent; and

(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.

[11]    Section 6(3) of the Determination.

25.     Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[12]:

(a)be fully diagnosed by an appropriately qualified medical practitioner; and

(b)be fully treated; and

(c)be fully stabilised; and

(d)be more likely than not, in light of available evidence, to persist for more than 2 years.

[12]    Section 6(4) of the Determination.

26.     When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[13]:

(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.

[13]    Section 6(5) of the Determination.

27.     A condition is considered fully stabilised if[14]:

(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.

[14]    Section 6(6) of the Determination.

28.     Reasonable treatment is a treatment that[15]:

(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.

[15]    Section 6(7) of the Determination.

29.     Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

30.     Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.

31.     In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.  [Tribunal bolding for emphasis]

32.     While s11(1)(c) of the Determination provides that in assigning an impairment rating “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”.

Severe Impairment

33.     As mentioned previously in these reasons, severe impairment is defined in s94(3B) of the Act:

“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.” [Tribunal underline for emphasis]

34.     In order to qualify for unlimited portability of a DSP, the person must have a severe impairment, that will extend over the next five years, and prevent that person from performing any work independently of a PoS.

Program of Support (PoS)

35.     Section 94(3C) of the Act states that:

“A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.”

[Emphasis in original]

36.     The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the ‘Participation Determination’) came into effect from 3 January 2015 and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a PoS.

Timing considerations and medical evidence

37.     A preliminary consideration needs to be undertaken regarding the timing of when an assessment for the DSP should take effect for the application before the Tribunal: (1) is it at the time the request for unlimited portability was made by the Applicant? Or, (2) does it include evidence and assessments up to the date of this decision?

38.     The Tribunal refers to the decision of Morton and Secretary, Department of Social Services [2014] AATA 949, were Senior Member CR Walsh of the Tribunal at paragraph 48 stated:

“The Secretary contends that the relevant date for the purposes of s 1218AAA(1) of the SSA is the date on which Mr Morton advised Centrelink that he was considering travelling overseas, namely 30 January 2013. This contention is based on what the Tribunal said in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6]. I do not accept with this contention. There is nothing in s 1218AAA of the SSA, the other provisions of the SSA, associated legislation or relevant extrinsic materials to support this proposition. As the High Court made clear in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467; BC200806838, subject to any indication to the contrary, the task of the AAT is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.”

39.     The Tribunal also refers to the decision of WMKR and Secretary of Department of Social Services [2015] AATA 483, where Member Webb at paragraphs 31 to 34 stated:

“…I think that the correct construction is that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand. There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.

This construction is consistent with several recent decisions of the Tribunal that bear to varying degrees on this point; see Re Scrivener and Secretary, Department of Social Services [2014] AATA 537, Re Goksu and Secretary, Department of Social Services [2014] AATA 752, Re Jones and Secretary, Department of Social Services 2014 [AATA] 885, Re Udrzal and Secretary, Department of Social Services 2014 [AATA] 232, Re Sukkar and Secretary, Department of Social Services 2014 [AATA] 480 and Re HMLS and Secretary, Department of Social Services 2014 [AATA] 693, for example.

As to the proposition tentatively advanced at hearing by the Secretary’s representative that the correct date to assess eligibility for indefinite portability is the date when the primary determination of claim was made, I do not agree. I see no reason why this should be so. As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) – see s 11 of the Social Security (Administration) Act 1999 and related provisions of this Act dealing with start date rules.

Thus, in the present case, the Applicant’s request for indefinite portability must be determined on the day the request was made, and subsequently, in view of changing circumstances, if it is necessary to do so.”

40.     The Tribunal refers to Shi v Migration Agents Registration Authority [2008] 235 CLR 286. The High Court in Shi generally established that in the absence of a statutory basis for restricting what the Tribunal can consider at the time of the initial decision; the Tribunal should take into account additional material(s) and event(s) which transpired after the initial decision under review. Any limitation(s) as to what the Tribunal should consider can be found in the legislation which empowers the primary decision-maker. Justice Kiefel, as she was then, stated at paragraph 119:

“The principal question on this appeal concerns the review by the Administrative Appeals Tribunal ("the Tribunal") of a decision of the Migration Agents Registration Authority ("the Authority") to cancel the appellant's registration as a migration agent. The question is whether, on that review, the Tribunal is restricted to a consideration of facts and events which had occurred at the time of the Authority's decision. The answer to it lies in the identification of the powers which are to be exercised by the Tribunal and the specific decision to which they are addressed.”

41.     The Respondent has contended that, “the relevant date for assessment of DSP unlimited portability is 24 July 2018 (being the date the Applicant requested a decision about the portability of his DSP) and ‘subsequently as circumstances demand’ up to the date of the Tribunal decision”[16].

[16] Exhibit 2, page 6, paragraph 30.

42.     In the present application, the Tribunal will follow the principles established in WMKR and Shi, and will not only consider the earlier evidence before the decision-makers at the time their decisions were made, but if the evidence subsequent to this indicates circumstances may have changed, the Tribunal may consider this if it is necessary.

CONSIDERATION

43.     During the course of the hearing the Applicant raised issues with the Tribunal regarding their eligibility for indefinite portability of their DSP, with respect to their eligibility for such portability being met through International Agreements (as set out in the Social Security (International Agreements) Act 1999 (Cth)).

44.     At the hearing, the Applicant advised the Tribunal that they had arrived in Australia from Greece in 1974, had become a permanent resident in 1976, and a citizen of Australia in 1977[17]. The Tribunal heard evidence from the Applicant that they had been in receipt of their DSP since 1999[18]. The Tribunal observes the Applicant confirmed in response to questioning from the Respondent that they had been a citizen of Australia for more than 20 years at the time he had begun receiving his DSP; and that he did not have to apply to qualify for the DSP under an international agreement (when he was initially eligible in 1999), due to being an Australian citizen[19].

[17] Transcript 14 December 2020, page 12, lines 1 to 35.

[18] Exhibit 1, T49, page 353; Transcript 14 December 2020, page 4, line 47 and page 5, line 1; and page 12,

[19] Transcript, page 13, lines 1 to 8.

45.     The Tribunal is satisfied in view of the evidence before it and submissions made during the course of the hearing that such International Agreements do not have application in the present matter, and as such, the Tribunal has reviewed the Applicant’s eligibility for portability of their DSP with respect to the relevant portability requirements within the Act.

(a) Was the Applicant in receipt of the DSP (in accordance with s1218AAA(1)(a))?

46.     The Respondent has made the following relevant submission in relation to whether the Applicant was in receipt of the DSP, as per the requirement of s1218AAA(1)(a) of the Act[20]:

“The Secretary accepts that subsection 1218AAA(1)(a) of the Act is satisfied, given the Applicant is in receipt of DSP.”

[20] Exhibit 2, page 8, paragraph 43.

47.     The Tribunal finds that the Applicant was in receipt of the DSP at the time of the dispute as required by s1218AAA(1)(a) of the Act and therefore meets this requirement of the legislative test.

(b) Whether the Applicant had a severe impairment (in accordance with s1218AAA(1)(b))?

Impairments

48.     The Applicant completed a “Work Capacity” form which was submitted to the Agency on 12 September 2018, which asked the Applicant to list any “disabilities, illnesses or injuries” that they had, which they responded with[21]:

“Lower back pain

Headache

Depression

Shoulder and arm pain

Pain in my wrist

Sore knees

Kidney disease”.

[21] Exhibit 1, T42, page 301.

49.     The Applicant informed the Tribunal at the hearing that they were currently receiving cancer treatment, however there is no corroborating medical evidence before the Tribunal to substantiate this condition, and as such the Tribunal was not able to consider this as part of the relevant impairments requiring assessment in this claim[22].

[22] Transcript 14 December 2020, page 16, lines 45 to 47.

50.     With respect to the Applicant’s claims regarding “Kidney disease”, the Tribunal similarly observes that there was insufficient corroborating medical evidence to substantiate this condition, therefore the Tribunal was unable to consider this as part of this application[23].

[23] Exhibit 1, T36, page 258.

51.     For the purposes of this application, and after review of the evidence before it, the Tribunal is satisfied the following impairments are relevant:

(a)Spinal condition; and

(b)Mental health condition.

52.     The Tribunal will consider each impairment identified in the above paragraph of this decision in accordance with s1218AAA(b) of the Act, in particular whether the impairment meets the relevant provisions to be deemed a “severe impairment” in accordance with the Act and Determination.

53.     With respect to the medical evidence before the Tribunal, the Tribunal observes that there is a long history of medical reports and information dating as far back as 1991 regarding the Applicant. The Tribunal has had regard to this information, but where there is more recent medical evidence which can be referred to, the Tribunal has done so.

(a) Spinal condition

54.     The Tribunal is satisfied that the Applicant’s spinal condition, is fully diagnosed, fully treated and fully stabilised in accordance with the medical report completed by the Applicant’s General Practitioner, Dr Chrys Michaelides on 11 September 2018, which states that the Applicant has “Chronic Cervical Spondyolosis”.

55.     Dr Michaelides states that the condition impacts the Applicant’s ability to function through, “headaches” and reduced, “concentration, mood, endurance”; and that the condition is expected to persist for more than five years, and is expected to further deteriorate the Applicant’s ability to function. Dr Michaelides stated that, “This is an irreversible condition. It is fully diagnosed, fully treated. It is progressive and unable to be stopped” [24].

[24] Exhibit 1, T40, page 291.

56.     The Tribunal is required to assess the functional impact of the Applicant’s spinal condition against the Impairment Tables as set out in the Determination, in order to determine an Impairment Rating for the Applicant’s spinal condition.

57.     Section 10(3) of the Determination provides:

“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.”

58.     Therefore, the Tribunal is required to assess each impairment associated with the Applicant’s spinal condition under the relevant table, but is not able to assign an Impairment Rating under more than one table. Pursuant to s8(1) of the Determination, the Tribunal observes that it is required to only take into account reported symptoms by the Applicant, in relation to their condition where there is corroborating medical evidence.

59.     With respect to Dr Michaelides stating that the Applicant suffered, “headaches” and reduced, “concentration, mood, endurance”; the Tribunal is of the view that Table 1 - Functions requiring Physical Exertion and Stamina of the Determination has application, in addition to Table 4 – Spinal Function (noting that the Tribunal is not able to assign an Impairment Rating under more than one table for the condition).

60.     To qualify for a “severe” Impairment Rating of 20 points under Table 1 – Functions requiring Physical Exertion and Stamina, the Applicant must satisfy one of the descriptors listed in Part (1)(a) of the table in the Determination, and also in Part (1)(b)[25]. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

[25] The Determination, page 14.

Points

Descriptors

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1) The person:

(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii) use public transport without assistance; or

(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

[Tribunal underline for emphasis]

61.     The Tribunal observes the response of Dr Michaelides in their medical report of 11 September 2018, when asked, “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?”; Dr Michaelides indicated yes, and annotated, “…2) L-5 Spondylosis chronic low back pain” [26]. [Tribunal underline for emphasis]

[26] Exhibit 1, T40, page 295.

62.     The reference in the above paragraph from Dr Michaelides with respect to the functional impact of the Applicant’s spinal condition is the only medical evidence in relation to the functional impact of this condition before the Tribunal. The Tribunal is of the view that there is a lack of medical evidence before the Tribunal that is consistent with a finding that the Applicant meets the descriptors outlined in the “severe” Impairment Rating for Table 1 – Functions requiring Physical Exertion and Stamina, particularly with reference to not being able to perform a descriptor in Part (1)(a) (i) to (iv) of this table.  The medical evidence before the Tribunal with respect to the Applicant’s spinal condition does not suggest the Applicant suffers a functional impact at the level of severity described in the descriptors of this table.

63.     To qualify for a “severe” Impairment Rating of 20 points under Table 4 – Spinal Function, the Applicant must satisfy one of the descriptors in Part (1) of the table in the Determination[27]. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

[27] The Determination, page 21.

Points

Descriptors

20

There is a severe functional impact on activities involving spinal function.

(1) The person is unable to:

(a) perform any overhead activities; or

(b) turn their head, or bend their neck, without moving their trunk; or

(c) bend forward to pick up a light object from a desk or table; or

(d) remain seated for at least 10 minutes.

[Tribunal underline for emphasis]

64.     The Tribunal observes that it was reported in a Job Capacity Assessment Report of 13 November 2018 that the Applicant was, “able to sit in a car for a least 30 minutes (he reports can be in a car longer an up to an hour with stops) and a) he is unable to sustain overhead activities. Client reports he can reach overhead for an item on a high shelf but could not do this repetitively as his shoulder aches and he gets worse arm pains”[28].

[28] Exhibit 1, T43, page 312.

65.     The Tribunal observes that the Applicant repeated their claims regarding their ability to drive at the hearing[29]. The Tribunal also observes that the Job Capacity Assessment Report stated the Applicant had said they were not able to sustain overhead activities, not that they were unable to perform them. With respect to this evidence and that of the Applicant regarding driving, the Tribunal is not satisfied that the Applicant meets the requirement in Part (1)(a) or (d) of the “severe” Impairment Rating in Table 4 – Spinal Function.

[29] Transcript 14 December 2020, page 12, lines 21 to 26.

66.     The Tribunal is of the view that there is a lack of supporting medical evidence to corroborate the functional impact of the Applicant’s condition, with respect to meeting the remaining requirements of the “severe” Impairment Rating in accordance with Table 4 – Spinal Function.

67.     The Tribunal has found that the Applicant’s spinal condition has not attracted a “severe” Impairment Rating under any of the Impairment Tables identified by the Tribunal, relevant to the Applicant’s spinal condition.

(b) Mental health

68.     The relevant Impairment Table to assess the functional impact of the Applicant’s mental health condition is Table 5 – Mental Health Function. The introduction this table stipulates the following requirements before assessment of an Impairment Rating[30].

[30] The Determination, page 22.

Introduction to Table 5

·     Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

69.     A medical report completed on 15 December 2010 by the Applicant’s treating General Practitioner, Dr Michaelides, diagnosed the Applicant with, “Anxiety/Depression”, and that the date of onset was 2006[31].

[31] Exhibit 1, T38, page 280.

70.     In Dr Michaelides’ medical report of 11 September 2018, it stated that the Applicant was diagnosed with, “Personality disorder with narcissistic traits”, and that the date of onset was 2009[32].

[32] Exhibit 1, T40, page 292.

71.     The Tribunal refers to a letter which was tendered by the Applicant at the hearing and exhibited[33]. The letter is dated 2 August 2018 from the Applicant’s treating Psychiatrist, Dr Michael Theodoros, provided to his General Practitioner, Dr Michaelides, which states:

“I continue to believe that Lambros has significant personality issues related to narcissistic traits. He is a highly entitled man who is easily enraged if he is unable to get his way. I agree with you that at times he seems suspicious and paranoid but I have never seen him overtly psychotic… In the past he has had numerous relationships which don’t seem to last because of his personality difficulties. A diagnosis of paranoid schizophrenia cannot be applied to him. However, his personality difficulties and irritability would cause difficulties in the workplace and I believe potential conflicts would make him unemployable.”

[33] Exhibit 16.

72.     On the basis of the evidence of Dr Theodoros of 2 August 2018, the Tribunal is satisfied that the Applicant’s mental health condition is fully diagnosed.

73.     With respect to the Applicant’s mental health condition being regarded as fully treated and fully stabilised; the Tribunal refers to Dr Michaelides report of 11 September 2018, where he states that: the Applicant is receiving cognitive behavioural therapy through sessions with Dr Theodoros; has been on medications in the past, with planned ongoing sessions; and that the condition is likely to persist for more than five years and remain unchanged[34].

[34] Exhibit 1, T40, pages 292 to 294.

74.     Dr Michaelides further stated in his report of 11 September 2018, that the Applicant’s mental health condition and its impact on the Applicant’s ability to function with respect to considering behaviour, planning and interpersonal relationships, the Applicant has, “Personality difficulties and irritability, would cause difficulties in the workplace and potential conflicts”[35].

[35] Exhibit 1, T40, page 294.

75.     To qualify for a “severe” Impairment Rating of 20 points in accordance with Table 5 – Mental Health Function, the Applicant must satisfy most[36] of the descriptors in Part (1) of the table in the Determination[37]. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

[36] Where the descriptor refers to most, most is taken to be more than half: Social Security Guide, 3.6.3.50 – Guidelines to Table 5 – Mental Health Function, version 1.277, 6 January 2021.).

[37] The Determination, page 22.

Points

Descriptors

20

There is a severe functional impact on activities involving mental health function.

(1) The person has severe difficulties with most of the following:

(a) self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b) social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c) interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d) concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e) behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f) work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

76.     The Tribunal has had regard to the evidence of the Applicant before the SSCSD of the Tribunal, which was largely corroborated during the hearing for the present application. The Tribunal refers to the evidence of the Applicant that he lives independently with his wife (noting marital conflict), and has held down jobs as a taxi driver and more recently for Uber (in 2017)[38].

[38] Exhibit 1, T2, page 7, paragraphs 25 and 26; Transcript 14 December 2020, page 12, lines 13 to 19.

77.     The Tribunal observes that a Job Capacity Assessment Report of 13 November 2018 found the Applicant had met a moderate functional impact with respect to activities involving their mental health function[39]; and was assessed as having a work capacity of 8-14 hours per week with support from the Department of Employment Support, noting that the Applicant had a spinal condition and mental health condition[40].

[39] Exhibit 1, T43, page 312.

[40] Exhibit 1, T43, page 314.

78.     The Applicant has previously given evidence that they attend to their own self-care and lives independently with their wife and has undertaken travel internationally as recently as 2019 (and is capable of planning for such trips)[41].

[41] Exhibit 1, T2, page 7, paragraphs 25 and 26.

79.     The Tribunal is of the view that of the medical evidence available, the Applicant did not meet the requirements for a “severe” Impairment Rating in accordance with Table 5 – Mental Health Function of the Determination, particularly with reference to the descriptors in Part 1 (a), (b), (e) and (f).

80.     The Tribunal is of the view that there is a lack of corroborating medical evidence to support a finding that the Applicant met the requirements for a “severe” Impairment Rating in Table 5 – Mental Health Function.

Conclusion

(b) Whether the Applicant had a severe impairment (in accordance with s1218AAA(1)(b))?

81.     The Tribunal has found that none of the Applicant’s impairments qualified as a “severe” impairment as defined by the Act. Therefore, the Applicant did not satisfy s1218AAA(1)(b) of the Act. As such, the Applicant does not qualify for unlimited portability of his DSP.

82.     As outlined in the earlier reasons of this decision, s1218AAA of the Act requires all of the qualifying circumstances to be met, that is, s1218AAA(1)(a) through to and including (d).

83.     As the Tribunal has found that the Applicant did not satisfy s1218AAA(1)(b) of the Act, it is therefore not necessary for the Tribunal to go on and consider the remaining subsections.

DECISION

84. Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent of 26 February 2019.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola

……………[SGD]….……………

Associate

Dated: 2 February 2021

Date of hearing:  14 December 2020

Applicant:  Mr Lambros Manos (self-represented)

Solicitor for Respondent:       Mr Rick McQuinlin, Services Australia

“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
1	Section 37 T Documents (pages 1 to 384)	R	-	6 February 2020
2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 12)	R	24 May 2020	25 May 2020
3	Applicant’s submission (seven pages)	A	-	23 November 2020
4	Travel outside of Australia summary (one page)	A	undated	23 November 2020
5	Letter from Centrelink containing a Job Capacity Assessment appointment (one page)	A	undated	23 November 2020
6	Letter from Centrelink – Going Overseas: Instructions for Disability Support Pensioners (one page)	A	undated	23 November 2020
7	Letter from Centrelink– Your Disability Support Pension (one page)	A	10 November 2010	23 November 2020
8	Letter from Rebecca Hansen, Constituent Officer, the Honourable Kevin Rudd MP, Federal Member for Griffith (one page)	A	21 February 2011	23 November 2020
9	Letter from Centrelink (one page)	A	20 December 2012	23 November 2020
10	Letter from Adrian Andrews, Constituent Officer, the Honourable Kevin Rudd MP, Federal Member for Griffith (one page)	A	19 March 2013	23 November 2020
11	Letter from an Investigation Officer of the Postal Industry Ombudsman (one page)	A	13 June 2013	23 November 2020
12	Letter from an Investigation Officer of the Postal Industry Ombudsman (two pages)	A	17 June 2013	23 November 2020
13	Letter from Centrelink (one page)	A	25 July 2018	23 November 2020
14	Letter from Centrelink – Your appointment for a Job Capacity Assessment (one page)	A	23 October 2018	23 November 2020
15	Letter from Legal Aid – Portability of Disability Support Pension [DSP] (two pages)	A	18 February 2020	23 November 2020
16	Letter from Dr Theodoros of 2 August 2018 (one page)	A	2 August 2018	14 December 2020

    lines 37 and 38.