McKeverne; Secretary, Department of Social Services and (Social services second review) - [2017] AATA 1738

McKeverne; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1738 (10 October 2017)

Division:GENERAL DIVISION
File Number(s): 2016/3506
Re:Secretary, Department of Social Services
APPLICANT

Sabrina McKeverneAnd
RESPONDENT

DECISION

Tribunal:Member K. Parker
Date:10 October 2017
Place:Melbourne

The Tribunal varies the decision under review by altering the commencement date of the Applicant’s eligibility for DSP from 11 August 2015 to 7 August 2015.

The decision under review is otherwise affirmed.

[sgd]........................................................................

Member K. Parker

SOCIAL SECURITY – disability support pension – date of claim – whether the applicant has physical, intellectual or psychiatric impairments – polyostotic fibrous dysplasia – trochanteric bursitis – depression – whether the applicant’s conditions were fully diagnosed, treated and stabilised – whether single condition caused multiple impairments -– whether the impairments attracted 20 points or more – continuing inability to work – actively participated in program of support – decision varied

Legislation

Administrative Appeals Act 1975 (Cth) – s 37
Social Security (Administration) Act 1999 (Cth) Sch 2 – s 13, s 42

Social Security Act 1991 (Cth) – s 94

Cases

Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Family & Community Services v Michael [2001] FCA 1811; (2001) 116 FCR 500
Negri v Secretary, Department of Social Services [2016] FCA 879
O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Secondary Materials

Social Security (Active Participation for Disability Support Pension) Determination 2014 – s 7

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

REASONS FOR DECISION

Member K. Parker

10 October 2017

INTRODUCTION

Sabrina McKeverne is a 59 year old woman who worked at BIC Australia (a global manufacturer of stationary, lighters and shavers) in a customer service role for approximately 14 years until 12 August 2013. In that role, Mrs McKeverne answered telephones, undertook administrative work and repaired Scheaffer pens. Mrs McKeverne completed education up to Year 10 (secondary level). Mrs McKeverne has not been employed since 12 August 2013.
Mrs McKeverne suffers from a number of physical and mental health conditions. Mrs McKeverne contacted Centrelink by telephone on 7 August 2015[1] regarding making a claim for disability support pension (DSP) under the Social Security Act 1991 (Cth) (Act) and submitted her claim form on 11 August 2017.
[1] Refer T-Documents T33/123. The T-Documents are the set of documents produced to the Tribunal under s 37 of the Administrative Appeals Act 1975 (Cth).
On 22 December 2015, Centrelink, the agency of the Department of Social Services responsible for administering DSP payments, rejected Mrs McKeverne’s DSP claim. Mrs McKeverne sought reconsideration of this decision. On 10 March 2016, a Centrelink authorised review officer (ARO) affirmed the decision to reject her claim.
Mrs McKeverne sought review of Centrelink’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 31 May 2016, the AAT1 set aside the ARO’s decision to reject her claim and in substitution, decided that Mrs McKeverne qualified for the DSP under s 94 of the Act as from 11 August 2015. The AAT1 found that her condition of polyostotic fibrous dysplasia was fully diagnosed, treated and stabilised, attracted an impairment rating of 20 points under Table 3 (lower limb function) under the tables referred to in paragraph [8], and she had a continuing inability to work.
On 1 July 2016, the Secretary of the Department of Social Security (Secretary) sought review of the AAT1’s decision by the General and Other Division of the Administrative Appeals Tribunal (this Tribunal).
This Tribunal varies the decision under review. This Tribunal finds that Mrs McKeverne met the eligibility requirements for DSP under the Act, as did the AAT1, albeit for different reasons as outlined in this decision. This Tribunal has also decided that Mrs McKeverne’s eligibility commenced on 7 August 2015, and not 11 August 2015. Consequently, Mrs McKeverne is taken to have made her claim on this day and as such, the Tribunal varies the commencement date of eligibility to 7 August 2015.

LEGISLATIVE FRAMEWORK

Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(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…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…

(3B)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.
(3C)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.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.

(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or

(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…

“training activity” means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a)      education;
(b)      pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).

‘Impairment Tables’ is defined in s 23 of the Act as the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (2011 Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of functional impact of each impairment.
The following subsections of section 6 of the 2011 Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:    For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Subsection 6(1) in Part 2 of the 2011 Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of Part 2 of the 2011 Determination provides that a descriptor applies when the person can do the activity normally and on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

Date of claim and the Qualification Period

Section 13(1) of the Social Security (Administration) Act 1999 (Administration Act) provides that a claim is taken to have been made on the date the person first contacted Centrelink about making a claim, provided the claim form was lodged within 14 days of that contact. In Mrs McKeverne’s case, she first contacted Centrelink by telephone and subsequently lodged her written claim form four days later. As such, the date of claim was 7 August 2015.
In accordance with s 42 and cl 4 of Schedule 2 of the Administration Act, a person must qualify for the DSP on the date of their claim or within the following 13 weeks. The relevant qualification period in this case is from 7 August 2015 to 6 November 2015 (Qualification Period).
The Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at paragraph [1]:[2]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his 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.
[2] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

ISSUES

The issues to be determined in this application, as at the time of the Qualification Period, are:
(a)whether Mrs McKeverne had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised), and were more likely than not to persist for more than two years;
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables; and
(d)if so, whether Mrs McKeverne had a continuing inability to work. Unless the Tribunal finds that Mrs McKeverne had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), it will also be necessary for the Tribunal to assess whether she had satisfied the program of support requirements as referred to in more detail below.

CONSIDERATION

Lower limb function – Table 3

Polyostotic fibrous dysplasia

It was contended by Mrs McKeverne and accepted by the Secretary that at the time of the Qualification Period, Mrs McKeverne had an impairment to her lower limb function arising from a permanent condition (being polyostotic fibrous dysplasia) which was more likely than not to persist for two years, and that a rating should be assigned to this impairment under Table 3 of the Impairment Tables.
Evidence was also presented at the hearing which satisfied the Tribunal that Mrs McKeverne’s condition of polyostotic fibrous dysplasia was fully diagnosed, treated, and stabilised at the time of the Qualified Period. This evidence included radiological reports dating back to 2004.
Specifically, on 31 August 2004 an X-ray was taken of Mrs McKeverne’s lumbar spine[3] after she had reported lower back pain over the previous two months. The X-ray report first referred to the possibility that she may have fibrous dysplasia. On 12 October 2004, Mrs McKeverne underwent a magnetic resonance (MR) procedure.[4] The MR report concluded:
Multiple, lobulated, well defined lesions are seen scattered throughout the left hemipelvis, and the left proximal femur. The characteristics, suggest chondroid, nonaggressive type lesions. In view of their multiplicity, the possibility of a syndrome such as Ollier’s disease is raised…
The left femoral neck lesion is in an important mechanical position, and is of significant size, which puts its (sic) at significant risk of future pathological fracture.
[3] Refer T-Documents T7.
[4] Refer T-Document T8.
In the Health Professional Advisory Unit’s Confidential Review dated 21 November 2016 (Exhibit A3), Dr Nalayini Kanagaratnam, Medical Adviser, stated:
Fibrous dysplasia is a developmental disorder affecting bones in which abnormal fibrous tissue develops in place of normal bone. As these lesions grow and expand over time, they can weaken the bone causing it to fracture or deform which can cause pain especially if it affects one of the weight-bearing bones of the leg or pelvis. Although the lesions may stablise and stop growing, they do not disappear and often it is a progressive condition. If more than one bone is affected the condition is called polyostotic, and the prognosis is generally poorer than the monostotic version of this condition.
In terms of treatment, Mrs McKeverne underwent surgery described as “curettage left PSIS fibrous dysplasia” in December 2004.[5] Further, a dynamic hip screw was inserted into her left proximal femur.[6] Mrs McKeverne’s treating general practitioner, Dr Kanthi Kanapathipillai noted in a letter dated 26 November 2014 that there had been various operations performed to remove intra osseous growth and that there have been plates and pins in her left hip since 2006. The letter also stated that Mrs McKeverne was unable to bear weight on her left leg.
[5] Refer T-Documents T9 comprising medical records from St Vincent’s Hospital in relation to surgery performed on 21 December 2004.
[6] Refer T-Documents T29.
Significantly, the medical evidence indicated that no more surgical or other treatment was planned with respect to the fibrous dysplasia within the two years following the Qualification Period.[7]
[7] Refer medical report of treating general practitioner, Dr Srinivasa Rao Kesarapu, dated 5 April 2017 – Exhibit “R4”. Dr Kesarapu started treating Mrs McKeverne on 21 January 2015, which pre-dates the Qualification Period. Refer also to letter from Professor Peter Choong, Director of Orthopeadics at St Vincent’s Hospital dated 26 September (year unknown) advising there was no plan for further surgery.

Trochanteric bursitis

It was contended by Mrs McKeverne that at the time of the Qualification Period, she also suffered from trochanteric bursitis, which further impaired her lower limb function.
On 29 October 2013, an ultrasound of Mrs McKeverne’s hip and groin revealed a “partial thickness tear” in the “deep fibres of origin of adductor longus” and stated that “an effusion [was] seen in the trochanteric bursa with adjacent probe tenderness elicited”. On 24 November 2014, a further ultrasound of the left hip and plain X-ray of the left hip and pelvis was performed and revealed “evidence of mild trochanteric bursitis with trochanteric bursal thickness measuring 1.3mm”.[8]
[8] Refer T-Documents T13.
The Secretary did not accept nor did it refute that this additional condition was present or that it was a permanent condition more likely than not to persist for greater than two years. However, the Tribunal is satisfied on the medical evidence that at the time of the Qualification Period, this further condition was fully diagnosed, treated, and stabilised, and it was a permanent condition also impairing Mrs McKeverne’s lower limb function.

Which rating in Table 3 applied to the lower limb functional impairment?

A key issue in contention between the parties at the hearing was the question of what rating should be assigned to the impairment to Mrs McKeverne’s lower limb function as a result of the polyostotic fibrous dysplasia and trochanteric bursitis. The Secretary contended that Mrs McKeverne’s impairment to lower limb function caused by the fibrous dysplasia attracted a 10-point rating, while Mrs McKeverne contended that it attracted a 20-point rating.
To determine what rating was applicable at the time of the Qualification Period, the Tribunal must assess the degree of functional impact of Mrs McKeverne’s impairment on activities using the lower limbs (extending from the hips to the toes)[9], ranging from none (zero points), mild (5 points), moderate (10 points), severe (20 points) or extreme (30 points). The 2011 Determination requires that this be done “by reference to particular examples of functional activities, abilities, symptoms and limitations” (descriptors), as set out in the various rows in Table 3 relating to each of these five different levels of functional impact.
[9] Refer last bullet point in the box headed “Introduction to Table 3” of Table 3 of the Impairment Tables.
The Tribunal notes the recent observations of Bromberg J of the Federal Court of Australia in the decision of Negri v Secretary, Department of Social Services [2016] FCA 879. Bromberg J stated the following in relation to the approach that should be taken when making such assessments (emphasis added):
[41] I reject the submission that the Tribunal is only “entitled” and not “obliged” to look at individual descriptors. The purpose of application of the Tables is to assess the functional impact of an impairment. Functional impact is assessed “by reference to the particular examples” appearing under the first line of a descriptor. Further, comparison between Table levels and descriptors is required and application of a particular level where two are arguably applicable requires that “all … descriptors for that level … [be] satisfied.” The Determination clearly contemplates that the assessor must look to the descriptors in assessing which level of functional impact results from an impairment.
[42] However, Ms Negri’s submission, that the Tribunal is required to make a finding in relation to each of the descriptors listed in relation to a particular level, also misunderstands the nature of the assessment required.
[43] It is necessary here to reiterate the terms of item 5(3)(b). What that paragraph makes clear is that the impairment level is to be “identified by reference to the particular examples of functional activities, abilities, symptoms and limitations…”. Ms Negri’s submission treats each of the functional activities, abilities, symptoms and limitations as though they were conditions of eligibility for the particular impairment level. They are not that. The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
[44] The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact – no, mild, moderate, severe, or extreme – applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all the descriptors are applicable. In such a case, that impairment rating applies.
[45] I note, however, that where the impairment falls between two ratings it may be necessary to make express findings in relation to particular descriptors. That is because the tie-breaking mechanism in item 11(1)(c) precludes application of a higher rating unless all of the descriptors are satisfied. If, on consideration of the examples, it were clear that a claimant experienced something between moderate and severe functional impact, but that person did not have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of three hours, the 20-point level could not apply and the 10-point level would necessarily apply. In practical terms, a finding that the person did not meet one or more of the descriptors in the 20-point level may be necessary in order for a court to be satisfied that the correct procedure had been followed.
Ms Wong, counsel for Mrs McKeverne, contended at the hearing that this authority stood for the proposition that the activities or the descriptors in the Impairment Tables, including Table 3, are illustrative rather than definitional. As such, it was contended that if Mrs McKeverne was unable to satisfy the Tribunal that any of the descriptors for a particular point rating applied, the Tribunal is not necessarily prevented from making a finding as to the impact of the impairment and ascribe a point rating accordingly (for that particular rating), if the evidence otherwise supported that conclusion.
The Tribunal has closely considered the observations of Bromberg J at paragraph [27] in Negri and does not agree with Ms Wong’s contention. The Tribunal considers that Bromberg J was referring to the specific examples in the tables which sit under some of the individual criteria or descriptors and not the criteria or descriptors themselves.
The relevant table under consideration in the Negri case was Table 1, which cites a number of specific examples for many of the criteria or descriptors. These examples appear in brackets within the subparagraphs, with a reference to ‘e.g.’ at the beginning of the phrase in the bracket. This Tribunal considers that when making the observations highlighted in bold above at paragraph [43] of his decision, Bromberg J was referring only to the examples referred to in those brackets, and not the criteria or descriptors themselves, which appear immediately before the brackets. For this reason, this Tribunal is not prepared to treat the criteria in Table 3, for instance, for the 10-point rating column, the person being unable to walk far outside their home, needing to drive or get other transport to local shops or community facilities (see (1)(a)); or the person is unable to use stairs or steps without assistance (see (1)(b)) and so on, as being illustrative and not definitional because his Honour’s comments did not extend to the criteria or descriptors themselves.
This Tribunal considers that it must make its assessment of the level of impact based on a consideration of those criteria or descriptors as required by subsection 5(3) of the 2011 Determination. It would seem that the words of subsection 5(3)(a) specifically indicate that “a rating can be assigned” “where a descriptor applies” (emphasis added). The exception under subsection 11(1)(c) of the 2011 Determination is that where the impairment falls between two ratings the lower rating must apply unless it can be shown that all of the descriptors of the higher rating apply.
In the present application, the Tribunal is not confined to considering only those rows in Table 3 applicable to a 10-point or 20-point rating as contended for, respectively, by the Secretary and Mrs McKeverne. Instead, the Tribunal may explore all levels to determine which rating applies to Mrs McKeverne using the approach set out below.

Did a 10-point rating apply under Table 3?

In this case, the Tribunal will commence its consideration of whether the descriptors relevant to a 10-point rating apply to Mrs McKeverne. If this is found to be the case, the Tribunal will continue to work upward through the table until the applicable level is identified. If a descriptor relevant to a 10-point rating is not met, the Tribunal will move downward through the table until the applicable level is identified. The Tribunal will apply subsection 11(1)(c) of the 2011 Determination if the Tribunal considers that impairment falls between two ratings in Table 3.
A 10-point rating under Table 3 will apply where there is a moderate level of functional impact on activities using lower limbs. The Descriptors for this rating are specified as follows:
At least one of the following applies:
a)The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b)The person is unable to use stairs or steps without assistance; or
c)The person is unable to stand for more than 5 minutes; and
The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
The impairment rating level includes a person who can:
a)Move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
b)Move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
The Tribunal will start with a consideration of the first descriptor in subsection (1)(a), whether “the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities”.
Mrs McKeverne gave evidence at the hearing relevant to this descriptor as at the time of the Qualification Period as follows:
(a)In August 2015, she had a fluctuating set of conditions which meant that she had good days and bad days. On a good day, it meant that she could stand up a bit longer than normal, although she still “pottered around”. She also still had pain, but it was not as severe as on her bad days. On a bad day, her symptoms were “excruciating”. It would take her a while to get out of bed and then she would “potter around in her pyjamas not doing anything”.
(b)When she was out of the house, she would generally use a walking stick. She had difficulty navigating uneven surfaces without the use of a walking stick and would require assistance from her children if she was walking on a slope. There was medical evidence that her left leg was shorter than her right, and that she could not bear weight on her left leg. When she was inside the house, she would not use a walking stick as she could get around using “bits and pieces to grab onto”.
(c)Mrs McKeverne was able to drive. Her local shopping centre was a five-minute drive from her home. If she visited her local shopping centre, she would drive and not walk to it. She had a standing tolerance of five to ten minutes.
(d)Mrs McKeverne was questioned about the international flights she went on in 2015 and 2016. Mrs McKeverne gave evidence that she went on the trip in 2015 to spread her husband’s ashes back in the United Kingdom and on the trip in 2016 to visit her son who was living in Dubai. She explained that she required wheelchair assistance to travel through the terminals because they would otherwise involve “a long walk”.
Michelle McKeverne, Mrs McKeverne’s daughter, also gave evidence at the hearing as follows:
(a)On a bad day, her mother “could hardly walk around” and “could hardly get out of the house”. On a good day, her mother “could take herself for a short walk around the shops”.
(b)When her mother moved house in December 2015, her mother “had the [walking] stick”, and was using it more frequently when moving around outside the house. She said that Mrs McKeverne held onto her mother while walking on uneven surfaces.
(c)She described her mother’s tolerance for walking to be “about 20 minutes, 30 minutes maybe” and described her as walking very slowly.
A face-to-face job capacity assessment of Mrs McKeverne was undertaken by a registered psychologist on 22 December 2014 and a report was issued on 23 December 2014 (2014 JCA Report).[10] The assessor commented in this report that “Client noted that in the past 1 year her condition has begun to deteriorate”. A further face-to-face job capacity assessment of Mrs McKeverne was undertaken by a registered psychologist on 11 December 2015 and a report was issued on 22 December 2015 (2015 JCA Report).[11] In this report, the assessor noted the following in relation to Mrs McKeverne lower limb deficiencies:
(a)“Client noted in the past year her condition has begun to deteriorate to the point where she finds it hard to function and look after herself”;
(b)“Current symptoms/limitations: limited movement, increased pain (has to sit and rest), has 3 good days a week when she cleans and tidies her house (daughter helps a lot), can only persist for 20 minutes shopping, reduced walking capacity, not able to lift heavy objects – does not carry shopping bags, sitting tolerance of 10 minutes, standing tolerance of 5 to 10 minutes, difficulty walking over uneven ground, difficulty with stairs.”
[10] Refer T-Documents T15, labeled as an ‘employment services assessment report’.
[11] Refer T-Documents T26/86-90.
The assessor concluded in the 2015 JCA Report that subparagraph (1)(a) of the moderate level of Table 3 applied to Mrs McKeverne because the “client reported she is not able to walk too far from home and will get her daughter to drive her to the shop doors so she doesn’t have to walk too far”.
The Tribunal is satisfied that the evidence referred to in paragraphs [36] to [38] supports a finding that the descriptor in subparagraph (1)(a) applied to Mrs McKeverne at the time of the Qualification Period. Paragraph (1), states that “[a]t least one” of the descriptors set out subparagraphs (a), (b), and (c), must apply, and therefore is satisfied.
For completeness, the Tribunal finds that that the descriptor in subparagraph (1)(b) did not apply to Mrs McKeverne at the time of the Qualification Period. Her own evidence was that she could still walk up stairs, despite there being a limit to how many she could walk up at one time without experiencing considerable pain.
The Tribunal finds that the descriptor in subparagraph (1)(c) did not apply to Mrs McKeverne at the time of the Qualification Period as she gave evidence at the hearing that her standing tolerance was between five to 10 minutes. The descriptor in subparagraph (1)(c) requires the person to be unable to stand for more than five minutes.
The Tribunal also finds that the descriptor set out in paragraph (2) of the 10-point rating row in Table 3 applied to Mrs McKeverne at the time of the Qualifying Period because on her own evidence, she was able to use a motor vehicle and walk around in a shopping centre or supermarket for limited periods of time. The Tribunal acknowledges that evidence was given by Mrs McKeverne and her daughter that when Mrs McKeverne was having a bad day she was unable to undertake these activities.
Subsection 11(4) of the 2011 Determination applies in this case due to the episodic and fluctuating nature of Mrs McKeverne’s conditions affecting her lower limbs. This paragraph requires the Tribunal to take into account the overall functional impact of those impairments. The evidence in the 2015 JCA Report suggests that while on three days per week, Mrs McKeverne would have good days when she could undertake those activities, i.e. use a motor vehicle or walk around in a shopping centre or supermarket, for the other half of the week she could not. The Tribunal considers that the overall functional impact of her conditions meant that it could not be said that Mrs McKeverne had a complete inability to undertake those activities as she could do them for approximately half of each week if and when she attempted to do so.
The Tribunal was invited by Ms Wong, on behalf of Mrs McKeverne, to interpret the descriptor in paragraph (2) in a way that requires the person to be able to engage in typical shopping activities, such as carrying shopping bags, to be satisfied. In the absence of words which would confer such a limitation as suggested by Ms Wong, the Tribunal is satisfied the activity to be considered by the Tribunal when assessing this descriptor is confined to “walking around”.
The Tribunal also finds that paragraph (3) of the 10-point rating row in Table 3 applied to Mrs McKeverne because. This finding is based on her own evidence that she was upwardly mobile with the use of a walking stick on all surfaces, even or uneven, and at times, did not require the walking stick where there were objects or structures to hold onto. This Tribunal also notes Ms McKeverne’s evidence that there were limitations to her endurance when undertaking these activities, or days in the week when she found them extremely difficult. Paragraph (3) confirms that a person may be assigned a 10-point rating even though they can undertake those activities.

Did a 20-point rating apply under Table 3?

A 20-point rating under Table 3 of the 2011 Determination will apply where there is a severe level of functional impact on activities using lower limbs. The descriptors for this rating are as follows:
(1)The person:
(a)is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2)The impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to or from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
For the first descriptor in paragraph (1) to apply, the Tribunal must consider whether all three factors set out in subparagraphs (1)(a)(i), (ii), and (iii) apply and whether the further additional factor in (b) applies.
In relation to subparagraph (1)(a)(i), the Tribunal has already found that Mrs McKeverne was able to walk around the shopping centre or supermarket (see paragraph [43] above). The Tribunal is also satisfied she was able to do so without assistance. In fact, Mrs McKeverne’s own evidence was that she would sometimes go to the shops unaccompanied, even though she would not carry her own grocery bags. Accordingly, this factor did not apply to Mrs McKeverne.

In relation to subparagraph (1)(a)(ii), the Tribunal is able to infer that Mrs McKeverne was able to walk from the carpark into the shopping centre and supermarket without assistance from her own evidence that she drove herself to the local shopping centre together and could walk around the local shopping centre for short periods. For this reason, the Tribunal is satisfied that this factor did not apply to Mrs McKeverne at the time of the Qualification Period.
In relation to subparagraph (1)(a)(iii), the Tribunal is satisfied by Mrs McKeverne’s own evidence that she was able to stand up from a sitting position without assistance, though this activity was “difficult” and made her “sore”. Michelle McKeverne gave evidence that when she was at Mrs McKeverne’s house, she would assist her to stand up from a seated position. However, the Tribunal considers that this assistance was provided to make things easier for Mrs McKeverne and not because she was unable to undertake that activity without that assistance, bearing in mind the requirements of subsection 6(1) of the 2011 Determination. Mrs McKeverne lived alone and when there was no one visiting her, she was required to move on her own from a seated to a standing position. A walking frame has since been introduced to assist with this activity. However, on Mrs McKeverne’s evidence, this only took place a few months before the hearing so is not relevant to the Qualification Period.
In relation to paragraph (1)(b) of the descriptors for severe impairment, the Tribunal is satisfied that this factor applied to Mrs McKeverne, as supported by the medical evidence and her own evidence that she would be unable to safely use public transport without assistance. Mrs McKeverne explained that this was due to the limitations arising from her lower limb impairment in being able to steady herself (on a tram, bus or train for example), particularly if she was required to stand, which may be necessary. Mrs McKeverne also had difficulty remaining balanced in a standing position, particularly if the tram, bus or to a lesser extent, a train, was required to stop suddenly. The Tribunal is satisfied based on the evidence of Mrs McKeverne and Michelle McKeverne that Mrs McKeverne was likely to require assistance when travelling up the long ramps which may be present at train stations. Michelle McKeverne gave evidence directly to this effect and Mrs McKeverne gave evidence that she required assistance from someone when travelling on a slope.
However, the Tribunal considers that the descriptor in paragraph (1) is not met because while the Tribunal has found that the factor in subparagraph (1)(b) applied to Mrs McKeverne, the three other necessary factors in subparagraphs (1)(a)(i), (ii), and (iii) did not.
The Tribunal finds that paragraph (2) of the 20-point rating row in Table 3 applied to Mrs McKeverne because on her own evidence, she was able to move around independently with the use of a walking stick on all surfaces, even or uneven, and at times, did not require the walking stick when there were objects or structures to hold onto. This Tribunal also notes Ms McKeverne’s evidence that there were limitations to her endurance when undertaking these activities or days in the week when she found them extremely difficult. The Tribunal is also satisfied that Mrs McKeverne could move around independently using a wheelchair and taking into consideration the matters set out in paragraph [51] above that she could independently transfer to and from a wheelchair. Paragraph (2) of the 20-point rating row in Table 3 confirms that a person may be assigned a 20-point rating even though they can undertake those activities. However, as mentioned above, the necessary Descriptor in paragraph (1) did not apply to Mrs McKeverne at the time of the Qualification Period, so the 20-point rating does not apply to her.
The Tribunal concludes that a 10-point rating applied to Mrs McKeverne at the time of the Qualification Period with respect to her lower limb functional impairment arising from polyostotic fibrous dysplasia and trochanteric bursitis.

Spinal function – Table 4

It was contended by Mrs McKeverne that at the time of the Qualification Period, she also had impairment to her spinal function arising from the polyostotic fibrous dysplasia, and that a rating of 10 points should be assigned to this impairment under Table 4 of the Impairment Tables.[12]
[12] Initially in Mrs McKeverne’s Statement of Facts, Issues and Contentions dated 8 May 2017 it was contended that the Descriptor in (1)(d) of the 20-point rating row of Table 4 applied to Mrs McKeverne, namely, that she was unable to remain seated for more than 10 minutes; however, at the hearing of this application, Ms Wong, on behalf of Mrs McKeverne, contended that a rating of 10 points should be assigned.
The Secretary contended that no rating should be applied under Table 4 due to a lack of corroborating evidence indicating impairment under this table. In the alternative, it was contended by the Secretary that were the Tribunal to find impairment of spinal function, a 5-point rating (being applicable to the level of a mild impairment) was appropriate. The Secretary contended that this would reflect Mrs McKeverne’s difficulty with doing the activities listed at this part of the table, in contrast to be her being unable to do them as is applicable to a 10-point rating.
The Introduction to Table 4 provides that “Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck”. The Introduction to Table 4 makes it clear that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. This principle is consistent with the requirements of subsection 8(1) of the 2011 Determination.
The Introduction to Table 4 also provides examples of corroborating evidence, being a report by a treating doctor or specialist or a report from a physiotherapist or other rehabilitation practitioner, though it does not limit corroborating evidence to those particular types cited. Ms Wong, on behalf of Mrs McKeverne, contended that it was open to the Tribunal to take into account Michelle McKeverne’s evidence as to her mother’s level of impairment to her spinal function, which was as follows:
(a)Mrs McKeverne did no packing or moving when she moved house in late 2015. She said Mrs McKeverne “couldn’t move much at all and had difficulty leaning forward”. She said Mrs McKeverne “couldn’t bend down much at all, ever” and if she had to lean over or lean down low “she wouldn’t be able to go further”. She said her mother has had these problems for a long time.
(b)Mrs McKeverne was probably unable to pick up an item from a shelf which was at knee height and said “if so, she would struggle and the item would have to be light”.
(c)Her mother did not do housework.
The Tribunal is open to considering this evidence, and does not feel limited by the Introduction to Table 4 or subsection 8(1) of the 2011 Determination in doing so. The Tribunal did not place a significant degree of weight on this evidence, relative to the medical evidence, for the reason that the evidence of Mrs McKeverne’s daughter was given 18 months after the end of the Qualification Period.[13] Further, the Tribunal’s impression, when Mrs McKeverne’s daughter gave oral evidence at the hearing, was that sometimes it was difficult for her to recall precisely how the level of her mother’s impairment had altered at different stages over the passage of time.
[13] Mrs McKeverne’s daughter’s witness statement was signed in May 2017.
Evidence was provided that Mrs McKeverne has suffered low back pain since 2004:
(a)In the X-ray report of the lumbosacral spine undertaken on 31 August 2004, it was recorded that Mrs McKeverne had “low back pain getting worse for 2 months”.[14] A “large osseous bridge was seen between the left transverse process of L1 and L2 vertebral bodies”, as well as “sacralisation of both transverse processes of L5”.
(b)A report dated 4 February 2011 arising from a subsequent CT scan of the lumbar spine performed on 2 February 2011, noted “[e]xacerbation of lower back pain” and “[m]oderate intervertebral joint degeneration seen at L5-S1 with mild changes at L3-4”.[15]
(c)It was reported in a medical certificate issued by Dr Srinivasa Kesarapu dated 10 June 2015 that Mrs McKeverne had “functional symptoms of the condition” of “low back pain and left thigh pain”.[16]
[14] Refer T-Documents T6.
[15] Refer T-Documents T10.
[16] Refer T-Documents T32/page 110.
A Nuclear Magnetic Bone Whole Body scan with SPEC/CT was undertaken on 3 September 2015. In a report arising from that scan, also dated 3 September 2015, it was reported that there was “moderate to markedly increased uptake in the left sacroiliac region and left side of L1 vertebra” and that there was “[v]ery mildly increased uptake in the left lateral mid cervical spine … in keeping with degenerative facet joint arthropathy”. This report also indicated that SPECT/CT of the lumbosacral spine revealed “very mild left L5/S1 fact joint arthropathy”.[17]
[17] Refer T-Documents T22.
Other corroborating evidence as to the presence and level of any impairment to Mrs McKeverne’s spinal function as at the time of the Qualification Period is set out below:
(a)In the 2015 JCA Report, there was a reference to Mrs McKeverne reporting impacts of her condition on her spinal function, namely, that the “current symptoms/limitations” as at 11 December 2015 included “sitting tolerance of 10 minutes”.
The medical report of Dr Srinivasa Kesarapu, Mrs McKeverne’s treating general practitioner, dated 5 April 2017 stated that Mrs McKeverne “had been visiting her since 21 January 2015”, approximately six months before the start of the Qualification Period.[18] Dr Kesarapu stated in this report that his assessment was based on Mrs McKeverne’s condition within 13 weeks of 11 August 2015, her medical records, and the medical records of Mrs McKeverne’s previous GP. Dr Kesarapu stated in this report that polyostotic fibrous dysplasia tumours were present at various sites, including in the lumbar spine. Dr Kesarapu said he saw Mrs McKeverne twice for “low back pain” prior to the “Centrelink disability application period” and stated in his report that “She has moderate low back and hip pain which is constant but varying intensity since 2004”. Later in the report, Dr Kesarapu recorded that Mrs McKeverne “had worsening of low back pain and left hip pain when she was doing simple things – like walking, light gardening, shopping, doing laundry etc, which has placed limits on what she could do. She would have had difficulty sustaining work-related tasks of a clerical, sedentary nature for a continuous shift of at least 3 hours”. Dr Kesarapu considered it was appropriate to rate Mrs McKeverne’s impairment as 20 points under Table 1 relating to functions requiring physical exertion and stamina, and stated: “low back and left hip pain had severe impact on her functional capacity”.
[18] Refer Exhibit “R4”.
Dr Kesarapu did not make specific reference to the impairment to Mrs McKeverne’s spinal function and the activities contained in the Descriptors within Table 4. However, the Tribunal considers that the activities of gardening and doing laundry as referred to by Dr Kesarapu in his report necessarily involved some of the activities contained with the Descriptors in Table 4, such as reaching overhead or bending to knee level – for instance, hanging washing on the line when doing the laundry typically involved overhead activities; placing or removing clothes from a washing machine or dryer typically involved either bending to knee level and straightening again or bending forward to pick up an object at knee height and gardening typically involved bending over to reach the ground or parts of the plants near the ground or reaching overhead to reach higher parts of the plants or trees.
Based on the above, the Tribunal does not accept the Secretary’s contention that a rating cannot be applied under Table 4 due to the lack of corroborating evidence.
The next issue for determination by the Tribunal is to assign an appropriate rating under Table 4 at the time of the Qualification Period.

Did a 10-point rating apply under Table 4?

The descriptors for a 10-point rating to apply under Table 4, where there is a moderate functional impact on activities involving spinal function, are as follows:
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) The person is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b) The person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) The person is unable to bend forward to pick up a light object placed at knee height; or
(d) The person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The Tribunal is satisfied on the evidence that at the time of the Qualification Period, Mrs McKeverne was able drive a car for at least 30 minutes. Mrs McKeverne gave evidence that she experienced some difficulty with getting into and out of the car but she was still able to do so. She also gave evidence that she drove to the shops a number of times each week (she said more so to get out of the house than for any other reason). Accordingly, the first requirement of paragraph (1) is met.
It is also necessary for the Tribunal to be satisfied that at least one of the factors in subparagraphs (a), (b), (c), (d) applied at the time of the Qualification Period. Subparagraph (d) did not apply for reasons already explained in this decision at paragraph [51]. Subparagraph (c) did not apply as Michelle McKeverne gave evidence that her mother was able to pick up a light object placed at knee height, provided it was light. Subparagraph (b) did not apply. The evidence given did not support a conclusion that Mrs McKeverne would experience difficulty moving her head to look in all directions and given her own evidence that she still drives a car, it must be presumed that she still has the capacity to do so in order to be able safely to drive a car. However, the Tribunal is satisfied that subparagraph (a) applied to Mrs McKeverne at the time of the Qualification Period. The medical evidence of Dr Kesarapu as set out in paragraphs [63(b)] and [64] and Mrs McKeverne’s own evidence supported the conclusion that she was unable to sustain overhead activities (e.g. accessing items overhead height).

Did a 20-point rating apply under Table 4?

To complete the assessment, the Tribunal will consider next whether it would be appropriate to apply a 20-point rating under Table 4. The descriptors for a 20-point rating, where there is a severe functional impairment on activities involving spinal function, are as follows:
(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.
The Tribunal is not satisfied that the evidence referred to in paragraphs [63(b)] and [64] and Mrs McKeverne’s own evidence goes so far as to support a conclusion that she was unable to perform any overhead activities at all. The evidence suggests that she was unable to do the specified activities on a sustained basis, which was the applicable factor for a 10-point rating. However, she did not meet the higher threshold as set out in this paragraph for a 20-point rating of being unable to do them on any occasion.
For completeness, the Tribunal finds on the evidence, that subparagraph (b) did not apply as Mrs McKeverne was able to turn her head or bend her neck without moving her trunk, and must do so regularly in order to drive her car. The Tribunal also finds that subparagraph (c) did not apply as the evidence suggested that she could pick up an object from below the level of desk or table height (namely, knee height) provided it was light. Finally, the Tribunal finds that subparagraph (d) did not apply as the evidence of the job capacity assessor in the 2015 JCA Report (see paragraph [38(b)]) was that Mrs McKeverne had a sitting tolerance of 10 minutes, which by implication meant that she could remain seated for 10 minutes but not longer than that.
Accordingly, the Tribunal does not consider that the 20-point rating under Table 4 applied. The Tribunal concludes that 10 points should be assigned to Mrs McKeverne’s impairment to her spinal function as at the time of the Qualification Period arising from the condition of polyostotic fibrous dysplasia.

Mental Health Function – Table 5

Diagnosis of depression

On 16 September 2016 Mr Greg Troup, clinical psychologist, completed a Department of Human Services assessment report about Mrs McKeverne’s mental health condition.[19] Relevantly, this report recorded a diagnosis of “depression” and a “date of diagnosis” as “August 2015”. The report recorded that the onset of this condition was in 1975, and noted a “history of depression since teenager”. It recorded that current treatment included psychological counselling, which commenced in August 2015, and antidepressant medication, which commenced in July 2016. It also included a reference to past treatment, being Valium in July 2015 for one month.
[19] Refer Exhibit “R3”.
The current impact on Mrs McKeverne’s ability to function was stated as “lack of concentration, low energy levels, emotional fragility”. However, this evidence is of limited use in the present application as the Tribunal is cognisant that this note in Dr Troup’s report represented the impact on Mrs McKeverne as at the date of his report, being 16 September 2016, one year after the Qualification Period. There was no additional mention in the report of the previous impact of this condition on Mrs McKeverne.
The “future/planned treatment” was recorded by Mr Troup in his report dated 16 September 2016 as “ongoing psychological treatment”. He also stated in this report that the condition was likely to persist for more than 24 months. However, the effect of this condition on Mrs McKeverne’s ability to function within the following two years (which the Tribunal takes to be two years from 16 September 2016) was stated as “uncertain” and it was noted: “Chronicity of conditions since teenager, but some improvement in condition with treatment”.
On 10 December 2015, Kelly Bramstedt, a general psychologist, stated in an open letter:[20]
Due to a condition called Fibrodysplasia [Mrs McKeverne] reported she experiences pain in her legs which leads her to feel tired and exhausted and also negatively impacts on her sleep. The pain is managed both pharmacologically and behaviourally.
…
In addition, [Mrs McKeverne] is grieving the death of her husband.[21]
[20] Refer T-Documents T24.
[21] On 19 May 2014, Mrs McKeverne’s husband died following a period of illness.
Ms Bramstedt authored a further open letter dated 18 March 2015. However, this letter references events which occurred six months after March 2015, namely, the counselling of Mrs McKeverne by Ms Bramstedt which only commenced in August 2015 and an indication that there had been nine sessions with Mrs McKeverne since that time.[22] As such, it is likely that the date on this letter was a typographical error and that it was intended to be dated 18 March 2016. This letter was similar in content to the one described in the above paragraph, in which Ms Bramstedt stated:
…Additionally, [Mrs McKeverne] is grieving the death of her husband and experiencing major depression.
[22] Refer T-Documents T16.

The Secretary conceded that it was open to the Tribunal to consider the evidence of Dr Troup in light of the decision of Deputy President Forgie in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558. In particular, the Tribunal has considered paragraphs [85] and [88] of the Eid decision, agrees with those observations, and accepts the Secretary’s contention in the present application.
The Secretary also contended that a rating should not be assigned under Table 5 because the condition of depression as diagnosed by Dr Troup was not fully treated or stabilised, nor was there any evidence of mental health functional impairment at the time of the Qualification Period.

Was the condition of depression fully treated and fully stabilised?

I refer to paragraph [9] above setting out the legislative requirements that apply when assessing whether Mrs McKeverne’s condition of depression was fully treated and fully stabilised as at the time of the Qualification Period.
The Tribunal takes into account Dr Troup’s indication that Mrs McKeverne was prescribed and took Valium for one month in July 2015, but was first commenced on antidepressant medication in August 2015. There was a note in the Health Professional Advisory Unit Report dated 21 November 2016 that this medication was Lexapro.[23] In July 2016, Mrs McKeverne’s medication was changed to Escitalopram (20mg per day), as prescribed by her general practitioner.
[23] Refer page10 of Exhibit “A3”.
Mrs McKeverne commenced psychological counselling with Ms Bramstedt in August 2015. Mrs McKeverne explained at the hearing, “I only get so many sessions otherwise I have to pay. I’m under a mental health plan so I get 10 sessions per year”.
In the 2014 JCA Report, it was recorded by the assessor that one of the “current barriers” was “grief/loss” and that she was “engaged with a counsellor”. One of the suggested interventions included “anxiety management”.
Ms Wong, on behalf of Mrs McKeverne, contended that the treatment commenced by Mrs McKeverne in August 2015 was “more to prevent decline and not to improve her functional capacity to enable her to work”. Ms Wong also contended that it was open to the Tribunal to find the condition had stabilised at the time of the Qualification Period, even though Mrs McKeverne had only commenced the counselling and pharmacological antidepressant treatment at this time.
The Tribunal was open to a consideration on the basis as contended for by Ms Wong. However, it was not satisfied there was sufficient evidence before it to advance those propositions. The Tribunal acknowledges that Mrs McKeverne had suffered from this mental health condition for over 40 years and that it has been referred to by Dr Troup as chronic. However, the limited medical evidence before the Tribunal comprises a reference by Dr Troup on 16 September 2016 to an expectation that there might be some improvement with the treatment.[24] This medical evidence was not detailed enough to appreciate whether he was referring to an improvement in the general sense, whether it was limited to providing some relief from the severity of the symptoms, or in fact, if he had in mind an expected improvement in her capacity for work as a consequence of undertaking the treatment. Dr Troup indicated he was uncertain as to her future prognosis.
[24] Refer Exhibit “R3”.
On the basis of this limited information, the Tribunal is not satisfied that there is sufficient evidence to find that the condition is fully treated and fully stabilised, despite its long history.
As I have found that this condition is not fully treated or fully stabilised, it follows that no point rating should be assigned for impairment to Mrs McKeverne’s mental health function arising from this diagnosed condition under Table 5.

CONTINUING INABILITY TO WORK

The next step is to determine whether Mrs McKeverne has a continuing inability to work for the purposes of s 94(1)(c) of the Act. The requirements necessary to establish whether a DSP claimant had a continuing inability to work are set out in s 94(2) of the Act, as reproduced in paragraph [7] above.
The Tribunal has found that Mrs McKeverne did not, at the time of the Qualification Period, have a severe impairment as defined in s 94(3B) of the Act, because her physical impairments did not attract 20 points under a single table, though they did so under two different tables. Accordingly, s 94(2)(aa) of the Act applies to Mrs McKeverne. Under this section, to show that she had a continuing inability to work, she must establish that she actively participated in a program of support within the meaning of s 94(3C) of the Act, and the program of support was wholly or partly funded by the Commonwealth.

Were the requirements of s 94(2)(aa) of the Act met - did Mrs McKeverne actively participate in a program of support?

As reproduced in paragraph [7] above, s 94(5) of the Act defines a program of support as a program designed to assist persons to prepare for, find, or maintain work. Under s 94(5), it must also be either funded by the Commonwealth, or is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find, or maintain work that is funded by the Commonwealth.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Participation Determination) commenced on 3 January 2015. This instrument specifies that a person actively participated in a program of support for the purpose of subsection 94(3C) of the Act if he or she satisfies the following requirements:
(a)The person complied with the requirements of the program of support and participated in it during the relevant period – as specified in subsection 7(1)(a) of the Participation Determination. The relevant period in Mrs McKeverne’s case (not having been found to have a severe impairment at the time of the Qualification Period) was the 36-month period ending immediately before the day she was taken to have made her claim for DSP being 7 August 2015.
(b)The person must also satisfy one of the following:
(i)They participated in the program of support for at least 18 months during the relevant 36-month period referred to above - as specified in subsection 7(2) of the Participation Determination; or
(ii)The duration of the program was less than 18 months but they completed the entire program during the 36-month period – as specified in subsection 7(3); or
(iii)The program was terminated before the end of the 36-month period and was done so because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program – as specified in subsection 7(4); or
(iv)If the person was participating in a program at the end of the 36-month period and was prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program – as specified in subsection 7(5).
(c)The person must also satisfy s 7(6) of the Participation Determination which requires them to provide the Secretary with a range of information about the program as listed in subsection (a) to (i).
Centrelink’s records indicate that Mrs McKeverne was referred to Advanced Personnel Management (APM) on 16 June 2015 and a program was started on 10 August 2015.[25] It was recorded as having been suspended on 18 September 2015 and then restored on 27 September 2015. It was recorded has having been suspended again on 5 October 2015 and restored on 15 October 2015. The program was recorded as being “finalised” on 3 March 2016. The appointment history indicates that Mrs McKeverne attended a total of 20 appointments between 7 July 2015 and 14 April 2016.[26]
[25] Refer T-Documents T31/103.
[26] Refer T-Documents T31/104 & 105.
The Tribunal finds that Mrs McKeverne commenced this program on 16 June 2015 at the time APM was first contacted in relation to Mrs McKeverne,[27] followed shortly by her attendance upon APM on 7 July 2015. The commencement of the program predates the date Mrs McKeverne was taken to have made her DSP claim, being 7 August 2015. Ms McKeverne participated in the program for no more than one or two months during the relevant 36-month period. For this reason, the Tribunal finds that the requirements of subsection 7(2) of the Participation Determination were not met by Mrs McKeverne.
[27] Refer T-Documents T31/103.
The Tribunal also finds that the requirements of subsection 7(3) of the Participation Determination were not met because the evidence did not show that Mrs McKeverne completed the entire program during the relevant 36-month period.
The Tribunal finds that the requirements of subsection 7(4) of the Participation Determination were not met. Mrs McKeverne was exited from the program after the end of the relevant 36-month period on 3 March 2016.
The question remaining is whether Mrs McKeverne could satisfy the requirements of subsection 7(5) of the Participation Determination. Mrs McKeverne satisfied the first element of this being that she was participating in a program at the end of the relevant 36-month period. The second element is whether she was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program.
Ms Wong referred the Tribunal to the matter of O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277. The Tribunal in that case made the following observations at paragraph [73]:
[73] Section 5(b) of the [2011 Participation] Determination appears to recognise a situation may arise in which a person who is participating in a program of support may, solely because of their impairment, be prevented from improving their “capacity to find, gain or remain in employment.[28]
[28] Subection 5(b) is the earlier 2011 Determination is equivalent to subsection 7(5) of the 2014 Determination.
…
[75] Ms O’Gorman-Watson submitted that the nature and severity of her condition had prevented her from obtaining any benefit by participating in this program.
…
[79] On consideration of the available evidence in respect of the nature and severity of Ms O’Gorman-Watson’s condition and its effect on her cognitive, communication and physical capacities I have formed the view that she would be unlikely to benefit from a program of support unless it was tailored to meet her specific needs.
[80] There is no evidence to suggest that the program in which Ms O’Gorman-Watson was participating was such a program or that it would assist her to prepare, find or maintain work.
[81] The IDS document which Ms O’Gorman-Watson was forced to obtain under FOI provides little meaningful information. It is full of acronyms and is barely comprehensible. Nevertheless, the document does support her oral evidence in that the program was unable assist her, that she was in fact suspended from the program by Centrelink and was to exit the program.
[82] Neither the IDS nor the Centrelink documents provide a coherent reason for her “suspension” but seem to suggest that it had something to do with her capacity for work.
[83] Furthermore, although the ORS document refers to a period of participation not directly related to the assessment period it does, in my view, support the proposition that Ms O’Gorman-Watson was not able to be assisted by this type of program.
[84] After having considered all the evidence before the Tribunal and for reasons outlined above I have formed the view that during the assessment period Ms O’Gorman-Watson was prevented, solely because of her impairment, from improving her capacity to find, gain or remain in employment through continued participation in the program that she was participating in at that time.
[85] This means that Ms O’Gorman-Watson satisfied the requirements of s 5(5) of the Determination.
Turning to the present application, the assessor in the 2014 JCA Report expressed an opinion that Mrs McKeverne had a temporary work capacity from December 2014 to June 2015 of 0-7 hours per week, noting that “Client’s pain levels may impact her endurance…”. Mrs McKeverne’s baseline work capacity was assessed to be 15-22 hours per week and her work capacity within two years was assessed to be 23-29 hours per week.
The assessor expressed in the 2015 JCA Report that Mrs McKeverne’s baseline work capacity as at December 2015 was 8-14 hours per week. The assessor also noted: “Lower limb condition results in reduced mobility, reduced capacity to negotiate steps/inclines and sustain weight bearing for prolonged periods with pain component affecting endurance and concentration. She has a reduced capacity for work requiring sustained standing or use of steps. Instability may place client at risk of falls. Client’s condition may impact the type of work she is suited to. Client is best suited to light duties and a sedentary position. Mrs McKeverne’s work capacity within two years with intervention was assessed 15-22 hours per week anticipated with intervention.
Mrs McKeverne’s treating general practitioner since 1 January 2015, Dr Kesarapu, stated in his report dated 5 April 2017 as follows:
It is very unlikely that Mrs McKeverne was able to work 15 hrs/week within 2 yrs of her pension qualification period given her chronic pain and her mental health condition.
The Tribunal must make its assessment based on the impact of the impairments arising from those conditions which are permanent as at the time of the Qualification Period, being the physical impairments to her lower limb function and spinal function. The Tribunal must not take into consideration the impact of the impairment to Mrs McKeverne’s mental health function as there was insufficient evidence to support a conclusion that this condition was fully treated or fully stabilised at the time of the Qualification Period.[29]
[29] Refer Secretary, Department of Family & Community Services v Michael [2001] FCA 1811; (2001) 116 FCR 500).
However, the Tribunal also notes the observations of Dr Kesarapu referrable to the Qualification Period that Mrs McKeverne had “worsening of low back pain and left hip when doing simple things … she would have had difficulty sustaining work-related tasks of a clerical, sedentary nature for a continuous shift of at least 3 hours”.[30] This is to be considered in light of the comments of Dr Kanagaratnam (see paragraph [19]) that polyostotic fibrous dysplasia was “often a progressive condition”.
[30] Refer Exhibit “R4”.
The following entries in the contact records maintained by APM in relation to its meetings with Mrs McKeverne gave the Tribunal the impression that attempts to assist Mrs McKeverne to search for and find work were extremely challenging due to her physical conditions and constant interruptions. However, these records, in addition to the appointment history, satisfy the Tribunal that Mrs McKeverne complied with the program and that subsection 7(1)(a) of the Participation Determination was met:[31]
[31] Refer Exhibit “A2”.
(a)4 August 2015 – Sabrina would like to work in aged care (front desk) happy to do courses if it will get her in the job line for this industry. Also interested working at the help desks in the shopping centres;
(b)6 August 2015 – Sabrina has looked for work applying online for most jobs…had a meeting with sue today, spoke about her pathways, still interested in help desk at a shopping centre and age cared(sic) (admin)…admin also. Car detailer – taking bookings…nursing home – reception…aged care – book keeping, data..want a job that is local. Sabrina needs to keep busy!!!
(c)18 August 2015 – [Sabrina] attended appointment (no other notes);
(d)1 September 2015 – [Sabrina] couldn’t attend (no other notes);
(e)2 September 2015 – Sabrina has been looking for work but has been hard with her tumours and the pain she goes through on a daily basis…we have come to an agreement with her doctors appointments and in relation to her tumours, we are stopping job search all together until we get the result from the doctors on what he would like to do if she can work or not, if she can’t then we will look in(sic) into volunteer work, to keep or(sic) busy and if she can, great we will look for work. Find out the results on 14/9 and her next app is on the 15/9
(f)15 September 2015: Sabrina did not attend as she was in hospital with pneumonia;
(g)29 September 2015: Quick visit today due to Sabrina not being well. She is meant to be on suspension but as it hasn’t come through she had to come to today’s appointment. She got the results from her doctor for her illness and he is writing a letter to inform that she can not(sic) work. To go on disability. Volunteer work could be the next option. But we are going to focus on her health, as she is not well and has only just come out of hospital…
(h)16 October 2015: [Sabrina] is still waiting on results with her leg to work or not, confirmation from Centrelink as well as for DSP, still waiting. Spoke with Melinda and she said we will just be on a waiting game with Centrelink, to still see sabrina fortnightly and touch base. Her health is going well. Spoke about doing courses or study, she was keen on the idea and is going to think about what she would like to do is she wanted to do either.
(i)5 November 2015: Course enrolled in is: Food Safety Level 1, Hospitality & Retail, Community & Health, Food Processing, Tuesday 9.30am to 1.30pm, 24 November 2015.
At the hearing, Mrs McKeverne gave evidence relating to the program she participated in at APM as follows:
(a)Mrs McKeverne went to APM in 2015 after a referral by Centrelink. She said that she was told by Centrelink to look for work on a help desk or administrative work.
(b)She said she was not capable of going back to work at BIC Australia in August 2015 because while she was good on some days, on other days her symptoms prevented her from going to work. She said that as such, she was not reliable. Mrs McKeverne said her health deteriorated after her husband died in 2014 and that her ability to work in 2015 was worse than it was in 2013. She said this increased the likelihood, if she were to work at that time, of requiring time off due to her conditions.
(c)Mrs McKeverne said she had applied for jobs in cleaning, administrative roles and customer service. She said in evidence: “I would have been able to do them but I wouldn’t have been reliable. I got rejected because I didn’t have experience. I would have taken it but would not have been able to take it up. I did it to keep receiving the Centrelink payments”.
(d)When asked whether APM had assisted her to find work, Mrs McKeverne answered in the negative. She said they did not assist her to prepare her resume and that she had prepared it herself. She said that she remembered them commenting “you have a good resume – couldn’t you find any work?”. Otherwise, she said she could not remember what was discussed in the appointments with APM but they marked her down as having been there. When questions by the Tribunal, Mrs McKeverne said that APM did not suggest that she try to look for home-based or flexible work which would accommodate her physical impairments or provide any assistance to try to identify such work.
(e)In November 2015 (which the Tribunal notes post-dates the Qualification Period), Mrs McKeverne completed a one-day food handling course organised through APM. She said that this idea was to see if this would give her a better chance to get into the aged care sector. She said APM told her to do something because they said she needed to present something to Centrelink or they would cut off her payments.
(f)Mrs McKeverne said she applied for some volunteer work at Villa Maria Catholic Homes, an aged care service, one day per week. She said this did not work out because there were some days when she could not get into work. She said that on other days, she was unable to carry anything and could only stay from 10am until 1pm. She said: “I felt like I was letting them down and I thought it wasn’t fair”.

This Tribunal has considered Mrs McKeverne’s impairments arising from her physical conditions and in particular, the incurable polyostotic dysplasia resulting in multiple lesions on her upper and lower body, and her history of symptoms (including pain) that have persisted since 2004. From this, I find that in the years immediately prior to 7 August 2015, Mrs McKeverne was unlikely to have benefited from a program of support, unless it was tailored to meet her specific needs and her significant and fluctuating physical challenges.
It was not clear from the evidence presented in this case that any meaningful efforts were made by APM to build a customised program for Mrs McKeverne that accommodated her particular physical impairments. Most notably, there is no evidence that efforts were made to identify flexible home-based roles which may have enabled Mrs McKeverne some chance of finding work that would have accommodated the fluctuating nature of her significant and permanent physical conditions. Without this, the Tribunal accepts Mrs McKeverne’s evidence that her impairments rendered her “too unreliable” in terms of whether she was well enough to attend work, or the duration she was able to stay at work on any given day. The Tribunal also appreciates Mrs McKeverne’s contention that given her unreliability due to the fluctuating nature of her impairments, “no employer would employ her”.
For these reasons, the Tribunal finds that Mrs McKeverne was prevented, solely because of her physical impairments, from improving her capacity to find, gain, or remain in employment through continued participation in the program that she was participating in at the end of the relevant 36-month period. The Tribunal gained the distinct impression from the evidence that both APM and Mrs McKeverne could be described as having ‘gone through the motions’ in order to meet Centrelink’s requirements. For this reason; the Tribunal finds that at the time of the Qualification Period, the requirements of subsection 7(5) of the Participation Determination were met in Mrs McKeverne’s case.
The Tribunal is satisfied that the Secretary had been provided with the prescribed information about the program as required by subsection 7(6) of the Participation Determination.
The Tribunal concludes, based on the findings as set out in paragraphs [104], [108] and [109] above, that Mrs McKeverne has met the requirements under s 7(1)(a), (b), and (c) of the Participation Determination to establish that she actively participated in a program of support. It was uncontested that the program of support provided by APM was funded by the Commonwealth.
It follows that as at the Qualification Period Mrs McKeverne met the requirements of s 94(2)(aa) of the Act.

Were the requirements of s 94(2)(a) and s 94(2)(b) of the Act met?

The Tribunal must determine whether under s 94(2)(a) of the Act, her “impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years”. It must then assess under s 94(2)(b) whether her “impairment is of itself sufficient to prevent the person from undertaking a training program during the next 2 years”. Section 94(2)(b) also requires the Tribunal to determine, to the extent that Mrs McKeverne was able to undertake such an activity, whether it was unlikely, because of the impairment, to enable her to do an work independently of the program of support in the two years to follow the Qualification Period.
The Tribunal is satisfied that the evidence supports a finding that Mrs McKeverne’s impairments to her lower limb function and spinal function, particularly with the fluctuating symptomology, were sufficient to prevent her from doing work independently of a program of support in the two years following the Qualification Period or from undertaking a training activity as defined in the Act. This Tribunal is also satisfied on the evidence that to the extent she could have engaged in such activity, it was unlikely to enable her to work independently of a program of support within the two years to follow the Qualification Period. This evidence included:
(a)The opinions expressed by the job capacity assessors as outlined in paragraphs [99] and [100].
(b)In the 2014 JCA Report and 2015 JCA Report, opinions were expressed that within two years Mrs McKeverne’s capacity for work was 15-22 hours per week if she was provided with disability specific intervention. However, the Tribunal does not accept that Mrs McKeverne’s capacity will increase as predicted, given the medical evidence in this application. There was also no rationale detailed in the reports supporting this assessment.
(c)Mrs McKeverne’s own evidence as to her difficultly with mobility since 2004, which included walking on uneven surfaces, walking for too long, sitting for too long, standing for too long, bending down too low. Importantly, Mrs McKeverne also provided evidence of experiencing intermittent and frequent low back and hip pain, rendering her unable to get out of the house on average three days per week. The Tribunal accepts the evidence given that this made her very unreliable from one day to the next as to her mobility, which consequently affected her ability to attend at a workplace.
(d)Mrs McKeverne’s daughter’s evidence in relation to the limitations on her mother’s mobility.
(e)The medical evidence of Dr Kanagaratnam describing the general nature of the polyostotic fibrous dysplasia as outlined in paragraph [19] above and in particular, that it was likely to be progressive.
(f)Notes recorded by the APM staff about the difficulties experienced by Mrs McKeverne in looking for work or appropriate training activities, and the problems encountered with her physical condition as outlined in paragraph [104] above.
(g)The medical evidence of Dr Kerasapu as outlined in paragraph [103] above.
The Tribunal is satisfied Mrs McKeverne had satisfied the requirements of s 94(2)(a) of the Act. The Tribunal is also satisfied on the evidence that, Mrs McKeverne did not have the capacity to undertake a training activity in the two years to follow the Qualification Period or to the extent that she could, that it was likely to have enabled her to work independently of a program of support for more than 15 hours per week within the two years to follow the end of the Qualification Period. Therefore, Mrs McKeverne also met the requirements of s 94(2)(b) of the Act.
For these reasons, Mrs McKeverne had a continuing inability for work for the purposes of s 94(1)(c) of the Act at the time of the Qualification Period.

CONCLUSION

For the reasons outlined in this decision, the Tribunal concludes that during the Qualification Period:
(a)Mrs McKeverne had impairment to her lower limb function and spinal function arising from polyostotic fibrous dysplasia and trochanteric bursitis;
(b)Those conditions were fully diagnosed, fully treated and fully stabilised and they were more likely than not to persist for more than two years. Therefore, these conditions are permanent within the meaning of subclause 6(4) of the 2011 Determination;
(c)While it was claimed that Mrs McKeverne had impairment to her mental health function arising from depression, the condition was fully diagnosed but not fully treated and fully stabilised at the time of the Qualification Period. As such, it was not a permanent condition under section 6 of the 2011 Determination;
(d)The following ratings under the Impairment Tables applied to each of Mrs McKeverne’s impairments:
(i)Lower limb function:  10 points under Table 3
(ii)Spinal function:   10 points under Table 4
(iii)Mental health function:            0 points under Table 5
The Tribunal also concluded that Mrs McKeverne had a continuing inability to work under s 94(1)(c) of the Act. It was found that she had actively participated in a program of support by meeting the requirements as set out in subsections 7(1), (5) and (6) of the Participation Determination. Further, the Tribunal found that the requirements of s 94(2)(a) and (b) of the Act were met.
Accordingly, the Tribunal varies the decision of the AAT1. This Tribunal decides that Mrs McKeverne met the eligibility requirements for DSP under the Act, as did the AAT1, albeit for different reasons as outlined in this decision. However, this Tribunal has decided that Mrs McKeverne’s eligibility commenced on 7 August 2015, and not 11 August 2015, as Mrs McKeverne is taken to have made her claim on this day.

I certify that the preceding 118 paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]......................................................................

Associate

Dated: 10 October 2017

Date of hearing:	5 June 2017
Advocate for the Applicant: Solicitors for the Applicant:	Ms Kellie Latta Sparke Helmore
Advocate for the Respondent:	Ms Angela Wong
Solicitors for the Respondent:	Victoria Legal Aid