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

Mehrjerdi and Secretary, Department of Social Services (Social services second review) [2016] AATA 505 (9 June 2016)

Division

GENERAL DIVISION

File Number

2015/0256

Re

Roya Mehrjerdi

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne

Date 9 June 2016

Date of written reasons 19 July 2016

Place Adelaide
The Tribunal affirms the decision under review.
........................[Sgd]..........................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – reports of medical practitioners considered – Job Capacity Assessment report considered – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), Clause 4(1) of Schedule 2
CASES
re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
re Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member R W Dunne
19 July 2016
INTRODUCTION

The applicant in this case is Roya Mehrjerdi. A claim for disability support pension (“DSP”) was lodged by her on 6 June 2013. When Centrelink rejected the claim, an authorised review officer (“ARO”) affirmed the decision.
The applicant then applied to the Social Security Appeals Tribunal (“SSAT”) for review. When the SSAT affirmed the ARO’s decision, the applicant applied to this Tribunal for further review. I delivered my decision orally on 9 June 2016 and these written reasons were subsequently requested by Ms Mehrjerdi on 14 June 2016.
At the hearing, the applicant represented herself and the respondent was represented by Ms J Edwards (from the FOI and Litigation Branch, Department of Human Services). I admitted into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.[1]
[1] Exhibit R1.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether on the date of her claim for DSP (or within 13 weeks of that date), that is by 5 September 2013 (“Claim Period”) the applicant had an impairment rating of at least 20 points under the Impairment Tables.
LEGISLATION
The legislation relating to claims for DSP and the reference to the Impairment Tables is set out in the provisions of s 94 of the Social Security Act 1991 (“Act”), which relevantly read:
“Qualification for Disability Support Pension
(1)    A person is qualified for disability support pension if:
(a)      the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c)      one of the following applies:
(i)   the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)    the person has turned 16; and
(da)    in a case where the following apply:
(i)   the person is under 35 years of age;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e)    the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)   is not an Australian resident; and
(B)   is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea)    one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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)—the person has actively participated in a program of support within the meaning of subsection (3C); 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)    If:
(a)    a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:   A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(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).
Doing work independently of a program of support
(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 such a program of support provided occasionally; or
(c)      is likely to need such a program of support that is not ongoing.
Other definitions
(5)    In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find and 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).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
…”
Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Social Security (Administration) Act, 1999 (“Administration Act”), which reads:
“4 Start day—early claim
(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.”
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)
The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the Determination, which relevantly reads:
“6.     Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
7      Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)    A person may be asked to demonstrate abilities described in the Tables.
8      Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note:Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9      Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10    Selecting the applicable Table and assessing impairments
Selection steps
(1)    Table selection is to be made by applying the following steps:
(a)   identify the loss of function; then
(b)   refer to the Table related to the function affected; then
(c)   identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11    Assigning an impairment rating
(1)    In assigning an impairment rating:
(a)   an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)   a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)   if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)   a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4)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.
No impairment resulting from a condition
(5)To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.”
SOCIAL SECURITY (REQUIREMENTS AND GUIDELINES – ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“REQUIREMENTS AND GUIDELINES”)

The Requirements and Guidelines set out what must be taken into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for DSP. The Requirements and Guidelines relevantly read:
“Part 1       Preliminary
…
3.     Interpretation
In this Determination:
Act means the Social Security Act 1991.
designated provider means any of the following:
(a)a Job Services Australia provider;
(b)a Disability Employment Service;
(c)an Australian Disability Enterprise;
(d)a provider authorised by a State or Territory government to conduct a transition to work program;
(e)a provider authorised by the relevant workers’ compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory;
(f)a provider authorised by an insurer as a result of a claim under a contract of insurance for an accident (including a motor vehicle accident), sickness or other trauma;
(g)a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.
...
Part 2 Requirements for active participation
5.Requirements for active participation
(1)A person has actively participated in a program of support if:
(a)    the person has:
(i)    complied with the requirements of the program of support; and
(ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c)subsection (6) is satisfied in relation to the person and the program of support.
(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.
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the program.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the relevant date of claim; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.
(5)This subsection is satisfied in relation to a person and a program of support if:
(a)at the relevant date of claim, the person is participating in the program of support; and
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
(6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:
(a)the details of the designated provider of the program;
(b)the dates when the person began the program and, if applicable, ceased the program;
(c)the reason for ceasing the program (if any);
(d)any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;
(e)the reason for any period of non-participation in the program;
(f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g)the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;
(h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i)the frequency of contact that the person had with the designated provider of the program.
Part 3   Guidelines
6.     Program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a)    was provided by a designated provider; and
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and
(d)includes at least one of the following activities;
(i)job search;
(ii)job preparation;
(iii)education and training;
(iv)work experience;
(v)employment;
(vi)return to work;
(vii)vocational or occupational rehabilitation;
(viii)injury management;
(ix)an activity designed to assist the person to return to, maintain or obtain employment.
7.     Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary may take into account any material or document that:
(a)    relates to the person’s participation in a program of support; and
(b)relates to a program of support undertaken in the 36 months prior to the relevant date of claim.
…”
BACKGROUND
The material facts in this case are largely not in dispute. For the most part, they are extracted from the respondent’s statement of facts and contentions.
As part of her claim for DSP, the applicant also lodged a medical report form completed by Dr Setayesh and signed on 23 May 2013. This report set out that the applicant suffered from poliomyelitis and hypertension. An additional medical report was completed by Dr Sabetpeyman and signed on 26 September 2013. This report set out that the applicant suffered from poliomyelitis, reactive depression, hypertension and chronic sinusitis.
A Job Capacity Assessment was conducted on 13 June 2013 to assess the applicant’s qualification for DSP. That assessment assessed the applicant’s conditions as back condition, poliomyelitis and hypertension. The assessment found that the applicant’s back condition was not fully diagnosed, fully treated and fully stabilised and could not be assigned an impairment rating under the Impairment Tables. The assessment found that the applicant’s poliomyelitis was fully diagnosed, fully treated and fully stabilised and assigned it an impairment rating of 10 points under Table 3 of the Impairment Tables. However, the assessment also found that the applicant’s hypertension was not fully diagnosed, fully treated and fully stabilised and could not be assigned an impairment rating under the Impairment Tables.
On 27 June 2014, when the ARO affirmed the original decision, he said that the applicant was not medically qualified to be paid DSP because she did not have an impairment rating of at least 20 points, and she did not have a continuing inability to work 15 hours a week as a result of her impairment.
On 29 October 2014, the SSAT reviewed and affirmed the ARO’s decision. The SSAT did find that the region affected by the applicant’s past polio was her lower limbs; hips, knees and mobility are affected and assigned the lower limb conditions a rating of 20 impairment points. However, the SSAT did not consider that the applicant had a continuing inability to work. As a result, the decision to reject the applicant’s claim for DSP was affirmed.
By reference to clause 4(1) of Schedule 2 to the Administration Act, the applicant’s qualification for DSP is to be solely determined during the 13 week period between 6 June 2013 and 5 September 2013, the Claim Period. The Impairment Tables contain rules for their application. The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments. They are not designed to assess conditions. The Impairment Tables may only be applied after the person’s (here the applicant’s) medical history has been considered, where the condition causing the impairment is permanent, and where the impairment is likely to persist for more than two years. A condition is permanent if it is fully diagnosed, treated and stabilised and likely to persist for more than two years.
In the present case, the respondent accepted that the applicant suffered from impairments arising from the following conditions and thus satisfied s 94(1)(a) of the Act:
(a)back pain;
(b)poliomyelitis;
(c)hypertension; and
(d)depression.
EVIDENCE OF APPLICANT
It was the applicant’s evidence that she had worked until 2012 and that she was still able to act as an interpreter. However, as she had polio early in life she had developed a condition known as post-polio syndrome. Although she was still able to work, she found it increasingly difficult to concentrate and found travelling was becoming harder.
To help her cope with her activities of daily living, Dr Nigel Quadros had organised her admission to the Griffith Rehabilitation Hospital. There she received a comprehensive multi-disciplinary assessment by physiotherapists and occupational therapists to aid her to manage the post-polio syndrome. She went to the Griffith Rehabilitation Hospital on 10 February 2015 and was discharged on 24 February 2015. Offers for her to work as an interpreter were reduced when it became apparent that her reduced concentration was interfering with her capacity to perform her work.
When she appeared before the SSAT, she reported that she was unable to walk into and around a shopping centre. She used a gopher supplied by the centre and had assistance to get to and from her car. She needed to walk with sticks and she needed assistance to stand up. For her condition, the SSAT assigned an impairment rating of 20 points.
CONSIDERATION
Whether on the date of her claim for DSP (or within 13 weeks of that date), that is by 5 September 2013 (“Claim Period”) the applicant had an impairment rating of at least 20 points under the Impairment Tables
In order to qualify for DSP, Ms Mehrjerdi must satisfy the relevant requirements of s 94 of the Act. In other words, she must be qualified for DSP on the date of her claim or within the period of 13 weeks following. Thus, the primary question is whether she satisfied the relevant criteria in s 94 at any time during the Claim Period, that is, the period between 6 June 2013 and 5 September 2013, rather than whether she currently satisfied those criteria.
One of the relevant criteria for DSP is whether an applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see subsection 94(1)(b) of the Act). In this regard, the rules for applying the Impairment Tables in Part 2 of the Determination are relevant. Subsections 6(3) to s 6(6) of Part 2 relevantly require that:
(a)the person’s condition causing that impairment is permanent;
(b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and
(c)the condition is fully stabilised if 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 two years.
In relation to the impairment ratings for the applicant’s conditions referred to in paragraph 15 of these reasons the respondent contended, based on the findings of the Job Capacity Assessor (“JCA”) and the ARO, that the applicant’s back condition was permanent, but not fully diagnosed, fully treated and fully stabilised during the Claim Period and could not be rated any impairment points under the Impairment Tables. In support of this contention, the respondent relied on the Job Capacity Assessment report dated 13 June 2013 which noted that the applicant’s condition was permanent. However, there was no evidence in the medical report from the treating doctor confirming details of the condition. The JCA noted that the applicant may benefit from further review of pain management and a program of physical therapies, including core strengthening. As there is limited medical evidence in relation to the cause, treatment and prognosis of the back pain, the SSAT also found that the condition is not fully diagnosed, treated and stabilised.
The respondent accepted that the applicant’s poliomyelitis was fully diagnosed, treated and stabilised and that the condition was able to be assigned an impairment rating under the Impairment Tables. I note that the SSAT assigned the condition 20 impairment points under Table 3 (Lower Limb Function) of the Impairment Tables. This was on the basis that the descriptors for a severe functional impact were met. However, the respondent contended that the appropriate rating for the poliomyelitis condition was 10 points under Table 3. In support of this contention, the respondent relied on:
(a)the report of Dr Sabetpeyman, dated 26 September 2013, which confirmed the diagnosis of poliomyelitis and noted that the applicant “cannot walk without aid. Cannot sit, stand or walk for more than 5-10 mins”;
(b)the report of Dr Setayash, dated 23 May 2013 which reported “ difficulty of walking or sitting as general mobility (and) walking with crutches with difficulty”;
(c)the JCA report dated 13 June 2013, which noted the applicant “is able to walk from a car park into a shopping centre, she is able to move around a shopping centre with the aid of a ‘power shopper’, she is able to transfer in and out of her vehicle and is able to drive for prolonged periods. She does not require assistance to sit or arise out of a chair”; and
(d)the Discharge Summary from the Griffith Rehabilitation Hospital dated 24 February 2015. The Summary reported that the applicant had been admitted from home for rehabilitation. It also reported that on discharge she was independent with bed, chair and toilet transfer and that she was able to walk safely with a rollator frame over wet/slippery area. She was also “independent with elbow crutch/walking stick and calliper in situ >60m”.
Section 11(1)(c) of the Impairment Tables provides that where an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. The respondent contended that the applicant did not fulfil all the descriptors in paragraph (1)(a) and paragraph (2)(a) of the 20 point impairment rating for Table 3 on the evidence available, particularly from the Discharge Summary of the Griffith Rehabilitation Hospital which is referred to in paragraph 22(d) above. The respondent contended that the appropriate rating was 10 points under Table 3. Given all the evidence, I agree with the respondent’s contention.
In relation to the applicant’s hypertension, the respondent contended that there was insufficient evidence to determine the current status of the condition and should therefore be assessed as not being fully diagnosed, treated and stabilised. Having regard to what the SSAT said about this condition, I agree that an impairment rating cannot be assigned.
As to the applicant’s depression, I note that the SSAT found that, before a mental health condition could be considered fully diagnosed, treated and stabilised, the Determination required the opinion of a doctor be supported by the opinion of a psychiatrist or clinical psychologist. As the applicant’s psychologist was not a clinical psychologist, the SSAT determined that the condition of depression could not be considered fully diagnosed, treated and stabilised. I also agree with this finding and therefore no impairment rating can be assigned for the condition.
In putting the respondent’s contentions to me relating to DSP, Ms Daminato referred to relevant decisions of the Tribunal and the Federal Court: see re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs;[2] re Fanning and Secretary, Department of Social Services[3] and re Harris v Secretary, Department of Employment and Workplace Relations.[4] Of particular relevance is the decision of Gyles J of the Federal Court in Harris, where the learned judge said at [1]:
“… the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 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.”
[2] [2012] AATA 922.
[3] [2014] AATA 447; (2014) 144 ALD 133.
[4] [2007] FCA 404.
SUMMARY
In summary, it is the respondent’s contention that at the date of claim and during the Claim Period the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. Although the SSAT found that the applicant had an impairment rating of 20 points under Table 3, it found that the applicant did not have a continuing inability to work, so the requirement of s 94(1)(c) of the Act is not met. The respondent contended that the applicant’s total impairment rating in the Claim Period is 10 points, and I am satisfied that this contention is correct. In the circumstances, the applicant does not satisfy s 94(1)(b) of the Act and she is not entitled to claim DSP. Given this, there is no requirement for me to consider whether the applicant has a continuing inability to work. I agree with the decision of the SSAT on this point.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
.....................[Sgd]...................................................
Administrative Assistant
Dated 19 July 2016

Date(s) of hearing 9 June 2016

Applicant In person

Advocate for the Respondent Ms L Daminato

Solicitors for the Respondent Sparke Helmore

[2016] AATA 505

9 June 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Division	GENERAL DIVISION
File Number	2015/0256
Re	Roya Mehrjerdi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member R W Dunne
Date	9 June 2016
Date of written reasons	19 July 2016
Place	Adelaide

Date(s) of hearing	9 June 2016
Applicant	In person
Advocate for the Respondent	Ms L Daminato
Solicitors for the Respondent	Sparke Helmore