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

McDonagh and Secretary, Department of Social Services (Social services second review) [2020] AATA 189 (18 February 2020)
Division:GENERAL DIVISION
File Number:2019/2487
Re:Stephen McDonagh
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:18 February 2020
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 9 April 2019 is affirmed.
...........................[sgd]..................................
Member S Barton
CATCHWORDS
DISABILITY SUPPORT PENSION – DSP – impairment tables – applicant does not meet impairment rating requirement – program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(3E), 94C
Social Security (Administration) Act 1999 (Cth) – ss 41, 179
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide, Department of Social Services – Tables 1, 2, 3
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) paras – 5, 6(1), 10, 10(3)
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – 7(1),
REASONS FOR DECISION
Member S Barton
18 February 2020
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 9 April 2019 (Reviewable decision) that affirmed a decision made by an Authorised Review Officer dated 19 September 2019, rejecting the Applicant’s claim for disability support pension (DSP) lodged on 7 February 2018.
FACTS
Mr Stephen McDonagh (the Applicant), was born 1969. The Applicant had previously worked in the mining industry, in construction and as a truck driver. In September 2016, he presented to a neurologist and was subsequently diagnosed with limb-girdle muscular dystrophy.
On 28 November 2016, the Applicant lodged a claim for the DSP, citing his condition of muscular dystrophy. On 16 May 2017, a Job Capacity Assessment (JCA) was undertaken and completed, and on 17 May 2017, the Applicant’s claim for the DSP was rejected.
This decision was reviewed by an Authorised Review Officer (ARO) from the Department of Human Services and on 19 September 2018, advised the Applicant was they found the decision to reject his claim for the DSP to be correct.
On 7 May 2019, the Applicant sought a review of the decision by AAT1 which affirmed the decision of the ARO.
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth). Therefore, the Tribunal is satisfied that is has jurisdiction to consider this application.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 18 November 2019. The Applicant appeared in person and was self-represented.
The Applicant gave oral evidence.
The Respondent was represented by Ms Daphne Jones-Bolla from Sparke Helmore Lawyers, who appeared in person.
The Administrative Appeals Tribunal (Tribunal) admitted the following documents into evidence at the hearing:
(a)Applicant’s Submission, dated 13 September 2019 (Exhibit A1);
(b)pre-employment medical assessment, dated 8 April 2016 (Exhibit A2);
(c)medical report of Perth Radiological Centre, dated 21 June 2016 (Exhibit A3);
(d)Applicant’s response to Respondent’s Statement of Facts, Issues and Contentions, received 10 November 2019 (Exhibit A4);
(e)Respondent’s Statement of Facts, Issues and Contentions, dated 17 October 2019 (Exhibit R1); and
(f)section 37 documents (T documents) numbered T1 to T32, comprising 293 pages, dated 20 May 2019 (Exhibit R2).
ISSUES
The issues before the Tribunal are whether, during the period 28 November 2016 and

27 February 2017, the Applicant had:
(a)a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act);
(b)an impairment rating of at least 20 points under the Impairment Tables; and
(c)a continuing inability to work for the purposes of s 94(1)(c) of the Act.
LEGISLATIVE FRAMEWORK
The qualification requirements for the DSP are set out in s 94 of the Act:
(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;
These qualifications are conjunctive, they are linked not by ‘or’ but ‘and’, so a successful applicant for the DSP must meet each requirement.
QUALIFYING PERIOD FOR THE DSP
The Social Security (Administration) Act 1999 (Cth) (Administration Act), states at

s 41 that ‘…a social security payment becomes payable to a person on the person’s start day in relation to the social security payment’. The start date is determined by Schedule 2 of the Administration Act, which provides a general rule for a start day as the day on which a claim is made. However, clause 4, states:
(1) If:
(a)   a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)   the person is not, on the day on which the claim is made, qualified for the payment; and
(c)   assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
The effect of this provision is to create a 13 week qualification (qualification period) period for the application. This window of time, and its subsequent effect, was described by Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [253]:
‘It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, ...and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time. ..’
This judgement has been cited by Senior Member Isenberg (Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 [8]) and by Deputy President Handley (Fanning and Secretary, Department of Social Services [2014] AATA 447 [31]) when they considered applications for the DSP. The effect of clause 4, as supported by previous decisions, is to restrict consideration of the Applicant’s claim to the 13 week time period after the claim was made and to consider evidence only in so far as it relates to the Applicant’s condition during that period. The practical outcome of this is captured by Member Breen’s observation in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.
The Tribunal, therefore, restricts its examination of the claim made by the Applicant to the period from 28 November 2016 and the following 13 weeks until 27 February 2017.
IMPAIRMENT
Section 26 (1) of the Act allows the Minister, by legislative instrument, to determine the Impairment Tables referred to in s 94(1)(b) and the rules for applying them. The Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) provides those Tables and the rules for their use.
The purpose and general design principles of the Impairment Tables are set out in Paragraph 5. The tables are to be function rather than diagnosis based, describe the functional activities, symptoms and limitations and assign ratings to determine the level of functional impact of the impairment.
Paragraph 6(1) of the Determination states that ‘[t]he impairment of the 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’ (emphasis added). An impairment rating can only be assigned if the condition is permanent, which is, for the purposes of the Tables, if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated and stabilised; and it is more likely than not, in light of available evidence, to persist for more than two years.
Paragraph 10 of the Determination details the means by which an Impairment Table is selected and an impairment or impairments are assessed. It is first necessary to identify the loss of function, for example, lower limb function or upper limb function, refer to the Table related to that function and identify the correct impairment rating. Paragraph 10(3) of the Determination notes that where a single condition causes multiple impairments, each impairment should be assessed under the relevant Impairment Table. It provides the example of a stroke, a single condition, that may affect multiple functions, including upper and lower limb function, brain function and communication function. However, the same impairment must not be assigned across multiple tables.
The Applicant’s condition, as it was in the period between 28 November 2016 and

27 February 2017 (the relevant period), needs to be assessed against the relevant Impairment Table or Tables in accordance with the rules of the Determination detailed above.
CONTINUING INABILITY TO WORK
The phrase ‘continuing inability to work’ is defined in ss 94(2) of the Act. 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 severe impairment within the meaning of subsection (3B) or the person is a review 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.
The term ‘severe impairment’ is defined in s 94(3B) of the Act, it comes into effect when a person’s impairment is of 20 points or more under the Impairment Tables, of which

20 points or more come from a single Impairment Table.
DOES THE APPLICANT HAVE A PHYSICAL IMPAIRMENT?
The Tribunal accepts that during the qualifying period the Applicant had Hashimoto’s disease, ulcerative colitis and gout. However, there is no further evidence before the Tribunal which would enable it to find the conditions were fully treated or fully stabilised. As the Respondent notes, the Applicant advised the AAT1 these conditions were long-standing and well controlled (Exhibit R2, p 13). On this basis, the Tribunal concludes these conditions have no functional impact to be assessed under the Impairment Tables.
The Tribunal notes that the Applicant was taking medication for depression during the qualifying period. There is common ground between the Respondent and the Applicant that this condition is not assessable under the Impairment Tables
(Exhibit R1, p 8 [45]-[48], Exhibit A4, p 3).
For several years, the Applicant had been experiencing progressive muscle weakness. On 6 September 2016, the Applicant presented to consultant neurologist Dr Merrilee Needham with ‘…progressive muscle weakness, most likely related to underlying Muscular Dystrophy’ (Exhibit R2, p 164). On 7 March 2017, Dr Needham advised the Applicant’s General Practitioner that she had confirmed to the Applicant that he had limb girdle muscular dystrophy. The Tribunal accepts that during the qualifying period, the Applicant had muscular dystrophy, though the exact type of the disorder was as yet unknown.
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant had physical impairments.
During the qualification period, the Applicant’s muscular dystrophy had been fully diagnosed by an appropriately qualified medical practitioner. There remain questions over whether treatment or rehabilitation had been adequately undertaken during the qualification period; the Applicant was yet to fully embrace the counselling and physiotherapy treatments available to him (Exhibit R2, p 201). However, the Tribunal agrees with Respondent in accepting ‘that these treatments would not be expected to result in significant functional improvement given the progressive nature of the Applicant’s condition (Exhibit R1, p 6 [37]).’ The Tribunal also accepts that his condition had stabilised and there would not be any significant functional improvement in the next two years. The Applicant’s condition during the qualification period should be considered permanent.
WHICH IMPAIRMENT TABLES ARE APPLICABLE?
The question before the Tribunal is which Table or Tables relate to his loss of function and how that impairment might be rated. The Tribunal notes AAT1 found that the Applicant’s condition generated impairments points from three Impairment Tables, Tables 1, 2, and 3 (Exhibit R2, p 12). However, the Health Professional Advisory Unit Opinion took a different view (Exhibit R2, p 241). The Opinion stated:
A person with this condition may have widespread functional impairments depending on which areas of the body have been affected, and more than 1 table may be used when assessing them. The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension however indicate that Table 1 may be used if a person has a permanent condition that results in functional impairments when they are performing activities requiring physical exertion or stamina. These include long-term conditions where there is either no treatment or where available treatment may not sufficiently control symptoms. Impact of a condition on mobility and capacity to perform activities of daily living and work-related activities may also be adequately captured by providing a rating under Table 1.
It is worth examining the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Guidelines) as contained in the Guide to Social Security Law, noting, as was established by Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal will apply Ministerial policy, unless there are cogent reasons not to do so.
Under the heading, ‘Rating multiple impairments resulting from a single condition’, the Guidelines note that ‘a single medical condition may result in multiple functional impairments which can be assigned ratings from more than one Table’
(Exhibit R2, p 155). It also cautions that:
…When using more than one Table to assess multiple impairments resulting from a single medical condition, care must be taken to ensure that the different Tables are being used to assess separate functional impairments and not the same functional impairment…the same impairment must not be assigned an impairment rating under more than one Table.
In the Guidelines to Table 1 Physical Exertion or Stamina, it states ‘Table 1 is used to assess functional impairment when performing activities requiring physical exertion or stamina.’ Under the heading ‘Impairments that should not be assessed using Table 1’, the Guidelines state:
Restriction of physical activity due to musculo-skeletal conditions, e.g. severe arthritis, spinal problems, unless the musculo-skeletal Tables 2, 3 or 4 do not sufficiently capture the impairment from any associated impact on physical exertion and stamina
In the matter before the Tribunal, the Applicant suffers from muscular dystrophy, a neurological condition that weakens the musculo-skeletal system. This might be read to mean that Table 1 should not be used to assess the impairments resulting from muscular dystrophy, unless Tables 2, 3 or 4 do not sufficiently capture the impairment on physical exertion or stamina. Put another way, those Tables may sufficiently capture the functional impairment resulting from a loss of function in the limbs, but not the functional impairment to exertion or stamina.
In the Guidelines to Table 2 - Upper Limb Function, upper limbs extend from the shoulder to the fingers. Conditions commonly causing impairment to Upper Limb Function include ‘inflammation or injury of the muscles or tendons of the upper limbs’. Though not an ‘injury’, muscular dystrophy is affecting the muscles of the Applicant’s upper limbs.
In the Guidelines to Table 3 - Lower Limb Function, lower limbs extend from the hips to the toes and assess functional impairment when performing activities requiring the use of legs or feet in the context of a person's ability to move around. Conditions commonly causing impairment to the Lower Limb Function includes lower limb musculoskeletal conditions.
Returning to the Impairment Tables as detailed in the Determination, the Introduction to Table 1 Functions Requiring Physical Excretion and Stamina notes that it requires examples of corroborating evidence of the person’s impairment, including ‘a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion’ and ‘results of exercise, cardiac stress or treadmill testing.’
The Introduction to Table 2 Upper Limb Function notes that it requires examples of corroborating evidence confirming diagnosis of conditions associated with upper limb impairment, including ‘…paralysis or loss of strength...’. Similarly, the Introduction to Table 3 Lower Limb Function requires the same, but with respect to lower limbs, including ‘…paralysis or loss of strength...’
The Tribunal returns to the pre-employment medical assessment undertaken by Dr Migual Kabilio in April 2016. Dr Kabilio recorded an observation that the Applicant ‘Reaches HR [heart rate] target of 85% in early stages of the physical assessment. Requires frequent break to allow him to recover.’ The report also noted the Applicant’s reduced function in physical activities involving both his upper and lower limbs (Exhibit A2, p 4). It is also noted that, on 6 September 2016, Dr Needham observed wasting in the Applicant’s upper limbs and some weakness in his legs.
The Tribunal is satisfied that the Applicant’s single condition, muscular dystrophy, causes multiple impairments with a loss of function in physical exertion and stamina, upper limb function and lower limb function. Using Tables 2 and 3 alone would not sufficiently capture the impairment affecting physical exertion and stamina and using Table 1 alone would not sufficiently capture the loss of function in the upper and lower limbs. The Tribunal disagrees with the Respondent’s contention that:
… it is not appropriate to rate the impairment resulting from the Applicant’s muscular dystrophy under any other tables (such as Table 1 or Table 2), as impairment ratings for the same impairment cannot be assigned under multiple tables… (Exhibit R1, p 6)

The Tribunal agrees with the Applicant when he states:
The fatigue and stamina issues are best addressed under Table 1. The muscle wasting and weakness of my arms are best assessed under Table 2. The muscle wasting and weakness of my legs are best addressed under Table 3

(Exhibit A4, p 1)
DOES THE APPLICANT HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The Applicant suffers from a condition where the symptoms will progressively worsen over time. However, in assessing the Applicant’s impairments against the relevant Impairment Tables, must restrict its examination of the claim made by the Applicant to the period from 28 November 2016 and the following 13 weeks until 27 February 2017.
The assessment of his impairments is informed by the following:
(a)re-employment medical assessment, dated 8 April 2016 (Exhibit A2);
(b)medical reports from Dr Needham, dated 6 September 2016, 13 December 2016, 7 March 2017, 3 April 2018, and 16 October 2018 (Exhibit R2, pp 164-165, 201, 202, 226-227, 243-244);
(c)Job Capacity Assessment Report, dated 16 May 2017 (Exhibit R2, pp 203-212);
(d)medical report from Dr Ong, dated 14 August 2017 (Exhibit R2, pp 217-220); and
(e)Health Profession Advisory Unit Opinion (Exhibit R2, pp 239-242).
In assessing the impairments against Table 1 Functions requiring Physical Excretion and Stamina, the Tribunal notes that in his pre-employment medical report, Dr Kabilio observed the Applicant ‘reaches HR target of 85% in early stages of physical assessment. Requires frequent breaks…’
Referring to clinical notes in her medical report dated 16 October 2018 (Exhibit R2,

pp 164-165), Dr Needham recorded that at the time of her first consultation with the Applicant, ‘[the Applicant] was unable to do his usual activities repetitively or on a habitual basis…’ and this was ‘…having a moderate functional impact on activities of daily living.’ According to her notes, she described his fatigue at the time as ‘severe’, which was a ‘key symptom for him at the time.’ Her contemporaneous report from 6 September 2016, noted ‘[the Applicant] wakes up non-refreshed, but does not really have any excessive day-time somnolence...’
The Health Profession Advisory Unit Opinion concluded that, during the relevant claim periods, the Applicant experienced frequent symptoms contributing to fatigue when performing day to day activities around the home and community, therefore meeting the criteria for 10 impairment points.
The Tribunal is satisfied that in the relevant period, the Applicant’s condition was having a moderate functional impact on activities requiring physical exertion or stamina and meets the criteria for 10 impairment points.
In assessing the impairments against Table 2 Upper Limb Function, notes the inability of the Applicant to carry safely more than 7 kg unilaterally and 10kg bilaterally in his pre-employment physical assessment. In Dr Neeham’s assessment she noted the Applicant reported difficulty picking up heavy objects and ‘even pouring a kettle’, he had bilateral wastage of the bicep muscles and weak elbow flexion.
The Tribunal finds that in the relevant period, the Applicant’s condition was having a mild functional impact on activities using arms or hands and meets the criteria for 5 impairment points.
In assessing the impairments against Table 3 Lower Limb Function, the Tribunal places weight on his pre-employment medical that observed his difficulty in squatting, crouching, climbing stairs or steps. In Dr Needham’s medical report of 6 September 2016, she records the Applicant’s difficulty in getting out of low chairs, that he was unable to squat, with weakness in his knee and plantar flexion. The Applicant’s had also reported to have some falls. In her medical report of 16 October 2018, the Applicant’s referred to his condition having a moderate functional impact.
Noting the progressive nature of the Applicant’s condition, in August 2017 Dr Ong noted that the Applicant could still sit, stand and walk, but did not specify the time period in which he could do so.
The Health Profession Advisory Unit Opinion found that the Applicant:
…was unable to walk far outside the home and experienced muscle plain following exertion; and… he was able to walk around a shopping centre albeit with rest as necessary and was a falls risk…
The Tribunal is mindful at this point of not ‘double counting’ impairment ratings for the same impairment under more than one Table. However, the Tribunal draws a distinction between the frequent symptoms contributing to fatigue assessed under Table 1 and the loss of muscle strength that has had a functional impact on activities using lower limbs under Table 3.
The Tribunal finds that in the relevant period, the Applicant’s condition was having a mild functional impact on activities using his lower limbs and meets the criteria for 5 impairment points.
The Applicant’s impairment points across the three relevant Tables, generate 20 impairment points.
The Tribunal finds that the Applicant satisfies ss 94(1)(a) and s 94(1)(b) in so far as he has a physical impairment and the impairment is of 20 points or more under the Impairment Tables.
CONTINUING INABILITY TO WORK
In accordance with s 94(2)(aa) of the Act, where a person does not have a rating of 20 impairment points under one Table, they required to have participated in a program of support (POS). If they have not done so, they cannot be found to have a continuing inability to work.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (POS Determination), is an instrument made under the ss 94(3C) and 94(3E) of the Act. It details the requirements a person needs to satisfy to demonstrate they have actively participated in a POS.
Subsection 7(1) of the POS Determination, states that:
(1) A person has actively participated in a program of support if the person satisfies the following requirements:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
….
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period
There is no evidence before the Tribunal that the Applicant has participated in a POS for at least 18 months in the relevant period.
The Applicant cannot satisfy s 94C of the Act and has not, in accordance with s 94(2)(aa) demonstrated a continued inability to work.
CONCLUSION
The Tribunal finds the Applicant has a permanent physical impairment for the purposes of the Act and has 20 impairment points. However, the Applicant has not demonstrated a continued inability to work.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 9 April 2019 is affirmed.

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

........................... [sgd].....................................
Associate
Dated: 18 February 2020

Date of hearing:

18 November 2019

Applicant:

Representative for the Respondent:

Self-represented

Daphne Jones-Bolla

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2020] AATA 189

18 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction