Massie and Secretary, Department of Social Services (Social services second review) - [2018] AATA 521

Massie and Secretary, Department of Social Services (Social services second review) [2018] AATA 521 (16 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3497
Re:Zann Massie
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:16 March 2018
Place:Perth

The decision under review is affirmed.
...........[sgd].............................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – impairment tables – did applicant have 20 impairment points – continuing inability to work rating – participation in program of support - decision under review affirmed
LEGISLATION

Social Security Act 1991 (Cth) – ss 94(1), 94(2), 94(3), 94(3B), 94(3C), 94(5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011- 6(4), 6(5), 6(6), 8(1), 11(1), Table 3, Table 14
Social Security (Active Participation for Disability Support Pension) Determination 2014 – ss 7(1), 7(2)
Social Security Administration Act 1999 (Cth) – Schedule 2 – Cl 4 (1) – s179
CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404
Summers and Secretary, Department of Social Services [2014] AAT 165
Ulukut and Secretary, Department of Social Services [2014] AAT 399
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
16 March 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 12 April 2017. This decision affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 15 August 2016 (T46 265-294) (R1).
INTRODUCTION
On 15 August 2016, the Applicant lodged a claim for Disability Support Pension (DSP), (T46 265-294) (R1) involving conditions that included hepatitis C and mental health.
The Applicant has lodged this claim for review on the basis that her application to AAT1 failed because she did not have psychiatrist reports (T1 2) (R1).
The claim was rejected by an officer of the Centrelink and by letter dated 10 January 2017 the Applicant was advised of this rejection. The reason for rejection of the application was on the basis that the Applicant had failed to attain an impairment rating of 20 points or more. (T51 307) (R1).
The Applicant sought a review and this was conducted by an Authorised Review Officer (ARO) who on 21 February 2017 determined the following: (T54 317-324) (R1)
·The Applicant had the following permanent conditions; traumatic right lower leg injury, hepatitis C and hypothyroidism;
·As at 15 August 2016 and the 13 week period thereafter, the Applicant’s condition of anxiety, depression and post- traumatic stress disorder was not accepted as being permanent as it had not been fully treated and stabilised;
·The Applicant had generated an impairment rating of 15 points for her lower leg and skin condition under Table 3 and Table 14;
·The Applicant did not have an impairment rating of 20 points or more; and
·The Applicant did not have a continuing inability to work (CITW) 15 hours per week or more because of her impairment.
As a result of the decision of the ARO, the Applicant lodged an application with AAT1.
In a decision dated 12 April 2017, the AAT1 determined that the Applicant had generated an impairment rating of 20 points with 10 points under Table 3 Lower Limb function and 10 points under Table 14 Functions of the Skin. AAT1 found however, as none of these conditions had been assigned an impairment rating of 20 points under a single Table, the Applicant did not have a severe impairment. In addition AAT1 determined that the Applicant had not met the Program of Support Requirements (POS) (T2 3-9) (R1).
On 18 June 2017 the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 decision dated 12 April 2017(T1, 1-2) (R1)
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth).
The matter was heard in Perth on 7 March 2018 and the Applicant was represented in person by phone and the Respondent by Mr Christopher Bishop of Mills Oakley Lawyers. Mr Bishop appeared by video conference.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 94 of the Act provides the criteria for DSP, relevantly:
(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) …
Accordingly, for a person to be qualified for DSP, the person must have:
·Firstly, a physical, intellectual or psychiatric impairment; and
·Secondly, these impairments must be assigned a rating of 20 or more points under Impairment Tables; and
·Thirdly, the person must have a continuing inability to work.
ASSESSING IMPAIRMENTS AND ASSIGNING AN IMPAIRMENT RATING
The Impairment tables referred to subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables are located in the Determination).
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399 Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using impairment tables and assign impairment ratings. In particular, subsection 11(1) states that 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.
CONTINUING INABILITY TO WORK
As set above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(emphasis added)
‘Severe impairment’ is defined in subsection 94(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.
Subsection 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 subsection 94(3C).
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 subclause 4(1) of the Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case that 13 week period is between 15 August 2016 to 14 November 2016 inclusive, and is known as the qualification period.
For a claim to be successful a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to this claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]).
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).
ISSUES
The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the qualification period for the purposes of section 94(1) of the Act.
This requires consideration of whether at the time of the qualification period:
(a) the Applicant had any physical, intellectual or psychiatric impairment; and
(b) if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c) if so, whether the Applicant had a ‘continuing inability to work’ as defined in subsection 94(2) of the Act.
EVIDENCE
As mentioned above, the matter was heard in Perth on 7 March 2018. The Applicant appeared by phone. The Respondent was represented by Mr Bishop from Mills Oakley Lawyers by video-conference.
The Tribunal received the following evidence:
·Exhibit A1 – Email from Applicant, dated 4 December 2017;
·Exhibit A2 – Medical Report by Dr Shelley Davies, dated 7 July 2017;
·Exhibit A3 – Letter from Dr Heather Birk, dated 20 September 2017;
·Exhibit R1 – T documents. Received 17 July 2017. T1-T59. pp.1-374;
·Exhibit R2 – Respondent’s Statement of Facts and contentions, dated 2 November 2017. Includes annexures A-C;
·Exhibits T1 and T2 – Direction by Barry Johnson, District Registrar of the 6 October 2017 and Direction by Senior Member CR Walsh of the 26 June 2017.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant gave oral evidence at hearing and was cross-examined by Mr Bishop.
Mental health
Evidence in the T documents indicates that the Applicant suffered depression manifested as a result of her physical condition. This was confirmed by a medical certificate completed by Dr Birk dated 9 April 2016 listing depression as a condition which impacts the Applicant's capacity for work or study (T33 233) (R1).
In the report of Lynsey Harborow, Clinical Psychologist dated 12 June 2016 (T35 236) (R1) the following recommendations were made:
1“Continue with regular therapy appointments with Psychologist Ronelle Oliver to address symptoms of Depression and PTSD; including CBT based treatment, mindfulness strategies and narrative work.
2Ongoing regular medication review with G.P. Dr Heather Birk.
3Engagement in community based mental health support networks to encourage positive connections in the community and increase her work readiness for the future.”
The Applicant was referred on 18 July 2016, by Dr Birk to Ronelle Olivier, psychologist, for 'opinion and management of anxiety, depression and PTSD' (T40 245) (R1).
Evidence at T42, pages 249-259 of the T documents, consists of a medical report by Dr Birk dated 23 July 2016. This medical report is in relation to the Applicant's mental health condition and describes the Applicant's current symptoms as 'severe low mood, flat and down, severely reduced motivation….’ (T42 253) R1.
A letter from Renelle Olivier, Registered Psychologist dated 31 August 2016 states that the Applicant had then attended 4 sessions and was planning to undertake further treatments (T47 295) (R1).
A Job Capacity Assessment Report (JCA) dated 20 October 2016 assessed the mental health conditions as not fully treated and stabilised, as the Applicant had only just started treatment (T49 299) (R1).
Annexure B (R2) in the Respondent’s Statement of Facts and Contentions contains a report dated 7 July 2017 from Dr Shelley Davies, psychiatrist, notes that the Applicant has been attending the Osborne Park Adult Community Mental Health Service since 20 March 2017 on referral from her General Practitioner (GP).
The Respondent agrees this condition is fully diagnosed (R2).
The Applicant agreed in oral evidence with the Respondent that she only sought treatment for her mental health condition in 2016. She stated that treatment takes time and is ongoing.
This is confirmed in a medical report at (T42 253) (R1) and (T47 295) (R1), in a letter date 31 August 2016 by Dr Birk.
Hepatitis C and Hypothyroidism
This condition has been well managed according to Dr Birk. There is minimal and limited little impact functionally on the Applicant (T24 187) (R1). The Applicant accepts this is the case.
The Respondent accepts this condition as fully diagnosed, treated and stabilised. (R2) The JCA report of 20 October 2016 supports this contention. (T49 299-300) (R1)
Right lower leg and skin condition
As a result of a motorcycle accident in 2003 the Applicant injured her right lower leg. In a letter from Dr Heather Birk, the Applicant's treating GP dated 13 July 2015 states that:
“Zann's right lower leg injury causes her significant impairment, with noticeable loss of:
·Strength - Zann is unable to stand from squatting, she cannot kneel, and has difficulty going up and down stairs
·Mobility - Zann can walk for 10-15 minutes on the flat before she develops pain in her leg that requires her to stop and rest, which results in a walking rate of <4kmlhr (sic), restricted by pain,
·And balance – Zann has a right foot drop resulting from her leg injury that prevents her from safely clearing her foot from the ground during walking. This results in her tripping and slipping often even on level ground. She also tends to bump her leg into things that then cause injury where the skin is broken, as the skin over her scars is very thin. Infection then develops. I have treated Zann for 4 episodes of right leg or foot cellulitis and wound infections since July 2014.
… Zann requires assistance for domestic chores such as cleaning her home and managing her laundry, because of reduced strength and recurrent pain in her right lower leg”. (T27 199-200) (R1)
A JCA report dated 28 May 2015 (T26 192-198) (R1) states that the Applicant 'uses a walking stick when she leaves the house and tries to walk regularly to improve her circulation.’
The report in paragraph 43 indicates that the Applicant ‘is able to use public transport and uses steps but avoids staircases as she nearly fell recently’ (sic) (T26 192-198) (R1).
The report in paragraph 43 also states that the Applicant ‘has difficulty standing for more than 10 minutes’ and that ‘she is not confident on uneven ground.’ The report states however, that the Applicant was observed to be able to stand from a seated position without assistance (T26 192-198) (R1).
Dr Birk’s medical report dated 3 August 2015 describes the symptoms of the Applicant's lower leg condition in the following terms:
'right lower leg pain; with infection redness, worsening pain, swelling, impaired mobility', with prognosis described as 'pain continuous with exacerbations’ (T28 201) (R1)
Dr Birk’s medical report dated 14 October 2015 describes the symptoms of the Applicant's lower leg condition in the following terms:
'lower leg pain, recurrent infections with worsening pain, bleeding, pus, requiring antibiotics and frequent GP visits; also foot drop in right foot impairs balance and mobility' (T30 218) (R1).
Dr Birk’s medical report dated 30 October 2015 describes the impact of the Applicant's leg condition on her ability to function as ‘a person who requires help with house care, shopping does herself but can only manage small shops, independent shower/dress. Has a restricted ability to stand or walk for >10-15 minutes due to pain’ (sic) (T31 221) (R1).
A Hospital Discharge Summary of the Osborne Park Hospital dated 16 June 2016 notes 'patient assessed on stairs by physiotherapy - cleared for discharge' and 'independent with walking stick and safe performing stairs (sic).' (T36 239-240) (R1).
Dr Birk’s medical report dated 23 July 2016 describes the Applicant's symptoms as:
‘Severe pain in right lower leg that prevents her from being able to walk more than 10-15 minutes. Foot drop right foot that interferes severely with safety when walking, high risk of falls’ (sic) (T43 249-259)(R1)
That same report describes the impact on the Applicant's ability to as:
“Pain constant at rest and on movement. Worse with movement, unable to walk more than 10-15 minutes at slow pace. Requires help for house cleaning and shopping assistance” (T43 249-259) (R1)
A JCA report dated 20 October 2016 identifies that the Applicant states 'she uses a walking stick when she leaves the house and tries to walk regularly to improve her circulation,' 'she is able to use public transport and use steps but avoids staircases as she had some near falls…(sic) and that she can stand for more than ten minutes and is not confident on uneven ground’ (T49 298-304) (R1).

Dr Birk’s letter dated 20 September 2017 comments on the impact of the Applicant's lower right leg condition on her skin in the following terms:
“This grafted skin is much more prone to injury from minor cause, and has severely impaired healing capacity. This condition is likely to pose an extreme risk to Zann in any work-related task which involves moving around. If she were to develop a severe infection her lower leg would be at risk of amputation”. (R2 Annexure A)
The Applicant told the AAT1 that her leg has bare skin and that she needs to have the skin cleaned and dressed every one or two days. (T2 3-9) (R1)
The Respondent accepts this condition as fully diagnosed, treated and stabilised as at the date of claim. Numerous JCA reports confirm this contention.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim the Applicant suffered from a lower limb condition and a skin condition as a result of a motorcycle incident in 2003. The skin condition emanated from the injury to her lower leg. That injury has resulted in a condition requiring extensive surgeries, pain management, ongoing medications and rehabilitation (T49 299-304) (R1).
Furthermore this condition has manifested into ongoing treatment for intermittent pain relief, rapid treatment of infections due to impact on skin and supportive therapy for pain.
The Applicant is subject to orthotic fitting, antibiotics for infections and supportive therapy and aids.
In addition, she has the following conditions: mental health, Hepatitis C and hypothyroidism.
The Tribunal accepts that the Applicant satisfies section 94(1)(a) of the Social Security Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Mental health
The Respondent notes that at the time of the claim the Applicant had only recently commenced treatment with a psychologist and it was envisaged that improvement could be obtained by further treatment recommended at that time) The Respondent also notes that the Applicant was referred to a psychiatrist in March 2017 (outside the qualification period) and Dr Davies reported improvement arising from the reduction to the Applicant's medications implemented by her.
The Respondent agrees with the assessment contained in the JCA report dated 20 October 2016 which concluded that while the Applicant's mental health condition may be regarded as fully diagnosed, it could not, at the time of the claim, be regarded as fully treated and stabilised. This is in accordance with the finding of the AAT1.
The Respondent contends that the Applicant's mental health condition cannot be regarded as fully diagnosed, fully treated and fully stabilised during the relevant period, and therefore no points can be awarded for any impairment arising from this condition.
In her oral evidence, the Applicant confirmed that treatment for this condition commenced in 2016. She also agreed that treatment took time and was ongoing.
Subsection 6(4) of the Impairment Tables Determination requires a condition to be fully diagnosed, fully treated and fully stabilised before an impairment rating can be assigned.
On this basis the Tribunal finds no impairment points can be generated from this condition.
Hepatitis C and Hypothyroidism
In a medical report dated 24 February 2015 Dr Birk indicated the Applicant's hepatitis C and hypothyroidism conditions were well managed with limited impact on her function (T24 187) (R1). The Applicant also told the AAT1 that these conditions were well managed and were of little impact on her daily life (T2)(R1).
The Secretary accepts that these conditions were fully diagnosed, treated and stabilised at the time of the claim. The Secretary contends that the functional impairment arising from these conditions attracts a rating of nil under the Impairment Tables. This is in accordance with the finding of the AAT1.
The Applicant agreed in oral evidence that these conditions were generally well managed and caused minimal impact on her functioning.
On this basis the Tribunal finds that no impairment points can be generated from these conditions.
Right lower leg condition
The Respondent accepts that the Applicant's right lower leg condition is longstanding and has been optimally addressed with surgery, rehabilitation services and ongoing GP management (T23) (R1). On 20 October 2015, the Applicant's GP, Dr Birk, indicated that the current impact of this condition on the Applicant’s ability to function was expected to persist for more than 24 months and her underlying condition will likely deteriorate over time, with worsening balance / foot drop and skin health (sic) (T31 222) (R1).
On this basis, the Secretary accepted that the Applicant's right lower leg condition was fully diagnosed, treated and stabilised at the date of the claim (R2).
Table 3 of the Impairment Tables Determination is used where a person has a permanent condition resulting in functional impairment in relation to activities using the lower limbs.
Significantly, the descriptors in Table 3 for functional impacts attracting 10 and 20 points refer to ‘assistance.’ For example, descriptors in paragraph 1 in Table 3 for 20 points describes someone who:
1…
(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.
(emphasis added)
The Respondent contends that ‘assistance’ in Table 3 means assistance from a person (rather than an aid or piece of equipment). This interpretation was confirmed by Senior Member Bell in Summers and Secretary, Department of Social Services [2014] AAT 165 [17], who noted that 'the conclusion that 'assistance' refers to assistance from another person and not from an object or physical aid is inescapable.'
The Respondent contends that the evidence demonstrates that the Applicant has some difficulty managing stairs and public transport and can move around independently using walking aids. The Respondent also contends that this level of functional impairment attracts a rating of 10 points under Table 3 and the Respondent contends that a higher rating cannot be assigned because the Applicant is able to walk around a shopping centre or supermarket without assistance, can stand from a sitting position without assistance and can use public transport without assistance (R2).
It is apparent from the evidence (including the Applicant's own evidence) that the Applicant can do all of the things set out in the 20 point descriptors without assistance from a person, but that she sometimes needs to rely on her walking stick.
The Respondent contends that the functional impairment arising from the Applicant's right lower leg condition therefore gives rise to a rating of 10 points under Table 3. The Respondent contends there is insufficient medical evidence to support a higher rating under Table 3.
Under cross examination the Applicant agreed, in 2016 that she could walk around a shopping centre, she could walk from the carpark into a shopping centre and she could use public transport. Whilst many of these activities required an aid she did agree she could undertake these functions.
On the basis of the descriptors for 20 points in Table 3 of the Impairment Tables, the Applicant agreed with the Respondent that she did not qualify within that category within the qualification period.
The Tribunal finds on the basis of the evidence before it, that this condition generates an impairment rating of 10 points under the Impairment Tables.
Skin condition
The Respondent accepts that the Applicant's right lower leg condition also results in functional impairment relating to disorders of, or injury to, the skin.
The evidence available suggests the Applicant has difficulties with daily activities due to skin lesions on her leg which require regular cleaning and changes in dressing, must be kept dry and are prone to infections.
This condition has resulted from a number of surgeries required including an extensive skin and muscle graft.
The Respondent observes that for a 10 point rating under Table 14, there must be evidence that the Applicant's skin condition requires adaptations to be made to her routine activities. This also results in the Applicant facing difficulties in performing daily activities due to lesions on skin, requiring creams or dressings and limit movement and comfort.
The Respondent contends that there is insufficient evidence which indicates the Applicant's skin condition requires her to make adaptations that are specified in paragraph 85 above.
The Respondent contends that for a 20 point rating under Table 14, there must be evidence that the Applicant has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressing and limit movement and comfort. Table 14 of the Impairment Tables indicates that a person with a 20 point impairment rating requires ‘significant modifications to, or inability to perform daily activities...’
The descriptor contained in (1)(c) of the 20 point criteria under Table 14 provides, for the Applicant to fall under the 20 point criteria, a severe functional impact could include: ‘the Applicant has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (i.e. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified).’
The Respondent contends there is insufficient medical evidence to suggest the Applicant has severe difficulties performing everyday activities due to her skin condition and there is no evidence which indicates significant modifications are required to perform tasks.
The Respondent therefore contends that the impairment arising from the Applicant's right lower leg condition attracts a rating of 5 points under Table 14 (skin).
Under cross examination the Applicant said that she resorts to aids such as support stockings to assist with her daily activities. She said that whilst she is in the house she can manage this condition, however when she goes out she requires to be vigilant in terms of knocking her skin because of an ongoing infection problem.
The Applicant indicated that she attended hospital 3 or 4 times a year to attend to this condition. In respect to this condition she advised that she had made some modifications to her life in order to manage it, so that further complications did not occur.
On the basis of the evidence before the Tribunal, it finds this condition to have a mild functional impact. Through adaptations and the use of aids the Applicant has mitigated against the functional impact this condition has on her daily activities.
This condition therefore generates an impairment rating of 5 points under Table 14.
Whether the Applicant has a continuing inability to work (CITW)
The Tribunal finds that the Applicant has 15 Impairment points and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.
For the sake of completeness however, should the Tribunal find that the Applicant satisfies paragraph 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy paragraph 94(1)(c) of the Act: pursuant to subsection 94(3B) of the Act, the Applicant did not have a severe impairment, and, pursuant to subsection 94(3C) of the Act, the Applicant did not actively participant in a program of support (POS).
The Applicant lodged her application for DSP on the 15 August 2016. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate this occurred.
Under cross examination the Applicant confirmed that she had not participated in a POS.
On this basis it is highly unlikely this application would have succeeded regardless of whether 20 Impairment points were assigned.
DECISION
For the reasons above the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.............[sgd]...........................................................
Associate
Dated: 16 March 2018

Date(s) of hearing: 07/03/2018

Applicant: In person

Representative for the Respondent: Mr C Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

Date(s) of hearing:	07/03/2018
Applicant:	In person
Representative for the Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers