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

Milos and Secretary, Department of Social Services (Social services second review) [2020] AATA 3852 (1 October 2020)
Division:GENERAL DIVISION
File Number:2019/7703
Re:Mr Dane Milos
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:B. Pola, Senior Member
Date:1 October 2020
Place:Brisbane

Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 24 October 2019.
...............................[SGD].............................................
Senior Member B.Pola
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – cancellation following review of qualification for indefinite portability – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables as at date of cancellation – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration Act) 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Kioa v West (1985) 159 CLR 550
Shi v Migration Agents Registration Authority [2008] 235 CLR 286
REFERENCE MATERIAL
Social Security Guide, 6.2.5.03, version 1.273, 25 September 2020
Social Security Guide, 3.6.3.05, version 1.273, 25 September 2020
REASONS FOR DECISION
B. Pola, Senior Member
1 October 2020
BACKGROUND

The Applicant, Mr Dane Milos, was granted the Disability Support Pension (‘DSP’), with effect from 24 March 2006[1].
[1] Exhibit 1, T54, page 341.
On 11 April 2018, the Applicant contacted Services Australia (the ‘Agency’) requesting a determination for indefinite portability of their DSP, whilst they were overseas[2].
[2] Exhibit 1, T55, page 364.
On 12 February 2019[3], the Applicant was advised by the Agency that they were ineligible for the DSP, as they did not have an Impairment Rating of 20 points or more under the Impairment Tables. The Agency cancelled the Applicant’s DSP with the last payment being made on 26 March 2019.
[3] Exhibit 1, T48, page 305.
This decision was affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Agency on 1 April 2019[4].
[4] Exhibit 1, T51, page 309.
The Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Agency’s decision, and on 24 October 2019 the SSCSD of the Tribunal affirmed the decision under review[5].
[5] Exhibit 1, T2, page 3.
The Applicant applied to the Tribunal for a second review of this decision on 25 November 2019, filing additional evidence in support of his application[6].
[6] Exhibit 2, Attachments A and B; Exhibit 3; Exhibit 4; Exhibit 5; Exhibit 6; Exhibit 7; Exhibit 8; and Exhibit 9.
The application was heard in Brisbane on 10 August 2020, with the Applicant, and the Respondent (represented by Ms Gillian Gehrke) both appearing by telephone. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
JURISDICTION
This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to cancel the Applicant’s claim for the DSP on 12 February 2019.
The decision to cancel the Applicant’s DSP has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and was subsequently reviewed by the SSCSD of the Tribunal with a decision published on 24 October 2019.
In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the application.
ISSUES
The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP at the date it was cancelled, being 12 February 2019.
For the purposes of this application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments prior to or as of the date of the cancellation of their DSP, in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a) of the Act[7].
[7] Exhibit 2, page 5, paragraph 34.
The issue for the Tribunal to resolve in respect of the Applicant’s eligibility for the DSP is:
(a)whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work‑related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) prior to or as at the date of cancellation of their DSP; and
(b)if so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE FRAMEWORK
The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Act:
94      Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)    the person has a physical, intellectual or psychiatric impairment; and
(b)    the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)    one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work.
Section 27 of the Act provides that for DSP recipients who had their DSP cancelled following a review regarding qualification, where that review commences on or after 1 January 2012, the “…Secretary or the AAT, in making a decision on the review, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given”.
Given this, s26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
The Tribunal must therefore make its decision in accordance with the Determination which came into effect from 1 January 2012. The Tribunal will outline key sections of the Determination in the paragraphs which follow[8].
[8] The Determination has previously been referred to in these reasons but repeated here, it is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
Section 6 of the Determination provides that “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[9]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[10].
[9] Section 6(1) of the Determination.
[10] Section 6(2) of the Determination.
An Impairment Rating may only be assigned to an impairment if[11]:
(a)the person’s condition causing the impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
[11] Section 6(3) of the Determination.
Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[12]:
·be fully diagnosed by an appropriately qualified medical practitioner; and
·be fully treated; and
·be fully stabilised; and
·be more likely than not, in light of available evidence, to persist for more than 2 years.
[12] Section 6(4) of the Determination.
When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[13]:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[13] Section 6(5) of the Determination.
A condition is considered fully stabilised if[14]:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[14] Section 6(6) of the Determination.
Reasonable treatment is a treatment that[15]:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[15] Section 6(7) of the Determination.
Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.
In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
While s11(1)(c) of the Determination provides that in assigning an Impairment Rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
The qualification criteria with regard to satisfying the “continuing inability to work” condition in order to qualify for the DSP, has undergone a number of legislative changes over the years. In relation to this application, the Applicant was originally granted the DSP on 24 March 2006[16].
[16] Exhibit 1, T54, page 341.
The Tribunal refers to the Social Security Guide, which provides the following guidance regarding the application of the relevant “continuing inability to work” provisions for recipients who were granted their DSP from 11 May 2005 to 30 June 2006[17]:
“These DSP recipients originally qualified for DSP under the 30 hour work capacity rule. Recipients in this group are known as transitional recipients. At review, these recipients are assessed against the CITW criteria and definitions in force from 1 July 2006, including the 15 hour work capacity rule. The POS [Program Of Support] requirements do not apply to these recipients.”
[Tribunal insertions for clarity]
[17] Social Security Guide, 6.2.5.03 – Application of DSP Qualification Rules at Review, version 1.273, 25 September 2020.
The Tribunal has transposed the relevant legislation from the Act which was in force from 1 July 2006, it provides[18]:
[18] Act No.46 of 1991, C2006C00433, in force on 1 July 2006.
“94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
…
(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).
94(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.
94(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
94(5) In this section:
“program of support” means a program that:
(a) is designed to assist the person 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 of support 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.
Person not qualified in certain circumstances
94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
Note:a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).”
Timing Considerations
A preliminary consideration needs to be undertaken regarding the relevant period for consideration of when the timing of an assessment should take effect for the application before the Tribunal.
The Tribunal refers to Shi v Migration Agents Registration Authority [2008] 235 CLR 286. The High Court in Shi generally established that in the absence of a statutory basis for restricting what the Tribunal can consider at the time of the initial decision under review; the Tribunal should take into account additional material(s) and event(s) which transpired after the initial decision under review. Any limitation(s) as to what the Tribunal should consider can be found in the legislation which empowers the primary decision maker. The Tribunal refers to paragraphs 43 and 44 of this decision, and to the comments of Justice Kiefel, as she was then, at paragraph 119:
“43. Nature of the decision under review: Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision [39], the fact that the review contemplated by s 43 of the AAT Act is one addressed to a "decision", inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.
44. Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a "review" of an administrative "decision" to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.
…
119.KIEFEL J. The principal question on this appeal concerns the review by the Administrative Appeals Tribunal ("the Tribunal") of a decision of the Migration Agents Registration Authority ("the Authority") to cancel the appellant's registration as a migration agent. The question is whether, on that review, the Tribunal is restricted to a consideration of facts and events which had occurred at the time of the Authority's decision. The answer to it lies in the identification of the powers which are to be exercised by the Tribunal and the specific decision to which they are addressed.”
In applying the principles of the High Court’s decision in Shi to the matter presently before the Tribunal, the Tribunal refers to s80 of the Administration Act, which provides:
“80 Cancellation or suspension determination
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable…;
the Secretary is to determine that the payment is to be cancelled or suspended.”
Therefore, where the Respondent is satisfied that a social security payment is being paid to a person who is not qualified for the payment, they are to determine that the payment is to be cancelled or suspended, taking effect from the date when this decision is made.
Having regard to the abovementioned paragraphs, it is the Tribunal’s view that the relevant period for this matter is limited to the day on which the Applicant’s DSP was cancelled, being 12 February 2019[19].
[19] Exhibit 1, T48, page 305.
The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were up until the date their DSP was cancelled, being 12 February 2019.
Procedural Fairness
At the closing submissions stage of the hearing, the Applicant (who was self-represented) raised issues with the Tribunal regarding procedural fairness, specifically that they wished to seek access to a lawyer to represent them at the hearing[20].
[20] Transcript 10 August 2020, page 26, lines 10 to 14.
In considering the Applicant’s request, the Tribunal had regard to the following timeline of events, and conduct of the hearing:
(a)The application for review was received on 25 November 2019 by the Tribunal by way of post[21].
[21]     Exhibit 1, T1, pages 1 and 2.
(b)The Applicant was advised by email on 3 February 2020 that an appointment had been made for them with a Legal Aid solicitor on Tuesday 11 February 2020 at 12.15pm by way of email (noting two emails were sent on 3 February 2020 with the first email referencing the appointment being on Tuesday 10 February 2020 which was corrected by way of a second email).
(c)A Tribunal registry file note of 24 February 2020 noted that the registry had received a phone call from the Applicant at 9.38am, with the Applicant advising that he had not received any correspondence from the Tribunal as the email address which the Applicant had provided the Tribunal in their original application for a second review of decision was incorrect[22]. The registry informed the Applicant of the process to update their email address and additionally provided the Applicant with the phone number for Legal Aid Queensland, in response to his question regarding when he would be receiving written advice from Legal Aid Queensland.
(d)On 16 April 2020, a conference was held between a conference registrar, the Applicant and the Respondent which went for one hour, during which the conference registrar noted that the Applicant had contacted Legal Aid, but that the Applicant, “felt that it didn’t assist”.
(e)On 21 April 2020, the Tribunal registry wrote to both the Applicant and the Respondent regarding the impact of the COVID-19 pandemic and the ability to conduct in-person hearings was temporarily ceasing and being conducted by alternate means (such as via telephone).
(f)On 12 May 2020, the Applicant called the Tribunal registry at 10.19am seeking clarification on how to progress his application, following this conversation the Applicant consented to the hearing progressing by telephone.
(g)On 27 May 2020, a listing notice by email was sent to the Applicant for the hearing outlining the date and time of when the hearing was to take place. The email also noted that the Applicant could contact the Tribunal if they “required any assistance”.
(h)On 4 August 2020, the Applicant filed additional evidence with the Tribunal for consideration.
(i)Again on 4 August 2020, the Tribunal registry conducted a pre-hearing check with the Applicant confirming the date and time of the hearing, the contact number to reach them on, that they had all the material required ahead of the hearing, and whether the Applicant was seeking to call any witnesses. The registry file note indicates that the Applicant had advised that the pre-hearing check had been sufficient and had prematurely terminated the call.
(j)At the hearing, the Tribunal took the Applicant through all the evidence which was entered into the Exhibit Register[23], noting T-Documents were provided to the Applicant by way of post on 4 December 2019 and were sent again to the Applicant by the Respondent by way of express post on 12 May 2020. In addition to ensuring the Applicant had the relevant materials, the Tribunal explained the procedure of the hearing to the Applicant[24].
(k)The usual procedure for a hearing is that the Applicant, after outlining their case will present any evidence, written and oral, in support of that case; the Respondent may cross-examine any witnesses; the Respondent will then outline its case and present any evidence; the Applicant may cross examine the Respondent's witnesses; and the Applicant may lead evidence in rebuttal to answer points made in the Respondent's case in certain instances. At the conclusion of the evidence, each party then has an opportunity to make closing submissions. As the Applicant was self-represented, the Tribunal varied the usual procedures regarding the hearing, so that the Applicant had the benefit of hearing the Respondent’s opening and closing position first[25].
[22]     Refer to Exhibit 1, T1, page 1.
[23]    Transcript 10 August 2020, page 2 lines 33 to 47; page 3, lines 1 to 47; page 4, lines 1 to 47; and page 5, lines 1 to 47.
[24]    Transcript 10 August 2020, page 6, lines 19 to 40.
[25] Pursuant to s33(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

In view of the factual circumstances that:
(a)the Applicant was provided with multiple opportunities by the Tribunal registry in relation to obtaining legal representation ahead of the hearing; and
(b)there was a period of more than six months between the Applicant initially requesting assistance in the form of legal representation through Legal Aid and the hearing date; and
(c)file notes of the registry indicated the Applicant had stated that they felt access to legal aid representation, “didn’t assist”;
the Tribunal was of the view that to stand down or adjourn the hearing in order to allow yet further time for the Applicant to obtain legal representation, after having finished hearing the Applicant’s evidence, and having reached the stage of closing submissions for the hearing, was not necessary to afford procedural fairness of the Applicant.
In arriving at this view, the Tribunal has had regard to His Honour Mason J, in Kioa v West that, “the expression “procedural fairness” … conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”[26]. In the instant case, the Tribunal is of the view that the Tribunal has acted flexibly and has otherwise used its best endeavours to meet its obligation of ensuring that procedural fairness has been duly afforded to the Applicant. Even a cursory review of the transcript indicates that the Applicant’s new-founded desire for legal representation emerged parallel with his perception of receding prospects of success in the instant proceeding.
CONSIDERATION
[26] Kioa v West (1985) 159 CLR 550, [33].
Section 94(1)(a) of the Act (Physical, intellectual or psychiatric impairment)
The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the relevant period in terms of s94(1)(a) of the Act, a point which was accepted by the Respondent[27]. On review of the evidence before the Tribunal, the Tribunal finds the following impairments relevant to this application:
(a)Left ankle condition;
(b)Spinal condition; and
(c)Mental health condition.
Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
[27] Exhibit 2, page 5, paragraph 34.
The Tribunal will consider each impairment identified in the abovementioned paragraph in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.
(a) Left ankle condition
At the hearing, the Applicant submitted to the Tribunal that they did not wish to have their left ankle condition considered as part of this application. For completeness, given the medical evidence before the Tribunal, this condition has been included and reviewed[28].
[28] Transcript, 10 August 2020, page 11, lines 19 to 32.
In relation to the Applicant’s left ankle condition, the Tribunal has had regard to the following submitted medical evidence:
(a)A letter from Dr Blaise O’Connell of 6 May 2017, regarding MRI results, with the following comment, “Degree of tendinopathy and instrasubstance tears of the tibialis posterior tendon with associated intrasubstance tears. Degree of tendinopathy involving distal Achilles’ tendon insertions and subcortical cystic changes and marrow oedema related to the posterior aspect of the calcaneus is seen”[29].
(b)A letter from Dr Steve Hatcher, Orthopaedic Surgeon, of 8 May 2017, stating the Applicant, “… came back up to discuss the prospect of surgery for his ongoing left ankle pain. His swelling has worsened and he is still experiencing considerable pain. He has a fusiform swelling within the tibialis posterior sheath and again a mass just inferior to the medial malleolus which is soft and represents a synovial lesion. Hindfoot aligning remains satisfactory. Interestingly he is able to perform a single heel raise today whereas he could not at our last assessment. The tib post tendon is clinically intact and felt to contract. This is an unusual presentation. My suspicion is that he still has some synovitis within the tib post sheath and the differential may include something more unusual for example a PVNS. I do think that surgical debridement is probably going to be in his interest but I would prefer an MRI scan before we embark on this. Once he has had the MRI scan we will be able to hopefully give him some more information about the precise details of the procedure…”[30].
(c)A consent form from Dr Hatcher of 3 July 2017, stating that, “The principle reasons leading to admission of this patient is to perform LEFT ankle tip post reconstruction”, and that he had informed the Applicant, “… of their condition and the options for surgical treatment, the likely outcomes and the alternatives to surgery”[31]. [Emphasis in original]
(d)A Medical Report dated 3 August 2018, completed by Dr Michael O’Sullivan (the Applicant’s treating General Practitioner), stating that the Applicant’s current treatment included, “ANKLE STRAPPING, PHYSIOTHERAPY, STERIOD INJECTION”, and future/planned treatment would include, “POSSIBLE REPAIR OF TENDON”[32].
(e)An Estimate of Medical Fees dated 6 August 2018, with procedure details that included, “LEFT Tib post reconstruction +/- cal osteotomy”, listing the proposed cost of the procedure to be performed by Dr Hatcher[33].
(f)The Applicant advised an ARO during a phone conversation at 1.20pm on           13 March 2019 that surgery on this condition had occurred and a screw had been inserted[34].
[29]     Exhibit 1, T23, page 204.
[30]     Exhibit 1 T24, page 205.
[31]     Exhibit 1 T25, pages 206 and 207.
[32]     Exhibit 1, T33, pages 239 to 248.
[33]     Exhibit 1, T35, page 251.
[34]     Exhibit 1, T51, pages 315 and 316.
The Tribunal is satisfied based on the opinion of Dr Hatcher that the Applicant’s left ankle condition was fully diagnosed at the date their DSP was cancelled. The Tribunal notes the diagnosis made by Dr Hatcher is consistent with the requirement of Table 3 – Lower Limb Function in the Determination, as the diagnosis is made by an appropriately qualified medical practitioner[35]. The Tribunal is of the view that surgery as recommended by Dr Hatcher, was reasonable treatment in accordance with s6(7) of the Determination.
[35] The Determination, page 17.
The Tribunal is of the view that the Applicant’s left ankle condition was not fully treated, and in turn not fully stabilised prior to or as of the date on which the Applicant’s DSP was cancelled (12 February 2019); as prescribed surgery had occurred following the cancellation of the Applicant’s DSP.
As the Tribunal has found that the Applicant’s left ankle condition was not fully treated and in turn not fully stabilised at the date the Applicant’s DSP was cancelled, the Tribunal is therefore not able to assign an Impairment Rating for this condition.
(b) Spinal condition
The Tribunal has referred to various submitted historical medical reports and letters from previous treating General Practitioners and medical specialists (dated from as early as 3 December 2002), which refer to the Applicant suffering from an accident which occurred in 2002. Dr D Munro in a letter of 10 February 2003, provided the following overview of the Applicant’s accident and subsequent treatment at the time[36]:
“…The floorboard was loose and he fell through the floor board onto the cement below and fell backwards on the lower steps of a staircase. He stated that in falling he fell backwards onto his buttocks on the first three steps of the staircase. Initial complaints were of abrasions to his right mid shin and pain in his lower back and in his right knee. At my request he wrote a letter to me on the 8^th April 2002, stating that he was having trouble sleeping and that he was having headaches and he was having sharp cramping pains in his lower back. He stated that he had trouble doing any recreational activities such as fishing, working on cars, lifting, pushing the lawn mower, and walking at that stage. I note that he had not had headaches before and I note that he initially commented on pain in the lower aspect of the right knee.
Examination in mid April showed that in examining his cervical spine that extension and reflection was much reduced by about 20% and he was tender in the C5 region and to the right of this. On initial examination in early July 2002, his lumbar sacral spine showed that he had a good range of movement in all directions, he had pain and tenderness in the L4/5 and the L5/S1 region and there were no abnormal neurological signs. Examination of his neck showed similar findings from previously. Initial x-rays of his lumbosacral spine and his right knee on 9^th April 2002 showed no abnormality. The X-Ray report believed to have been taken soon after the 15^th April 2002 showed that on a CT scan of his Lumbar spine there was no abnormality and a plain x-ray of his cervical spine showed a loss of the normal cervical lordosis with no other specific abnormality being found. (There is no date on this report for some reason in my notes).
My diagnosis was one of soft tissue injury to his cervical spine giving rise to headaches, a soft tissue injury to his lumbosacral spine and soft tissue injury to his right lower knee.
Treatment prescribed. Initially he was given anti-inflammatory tablets and analgesics, namely Panadeine Forte for his pain. He was subsequently given Valium tables for muscle relaxation but these were not continued for very long. He was referred for Physiotherapy and I believe he had been having Hydrotherapy for a short time as well. In July 2002 he was consequently referred to Mr Tom Savvoulidis an Orthopaedic Surgeon for further assessment of his complaints. I note Mr Savvoulidis has further investigated his knee pain with an MRI scan, which did not demonstrate any intra articular pathology. In November he was subsequently sent for an MRI scan of his lumbar spine, which also demonstrated no pathology in his back. He was advised at that stage to switch from Panadeine Forte to Nurofen Plus as an analgesic and to return to Physiotherapy for McKenzie exercises as well as restarting Hydrotherapy treatment again. He advised that these exercises were now concentrated on treating his back. Both Mr Savvoulidis and myself believe that he has become despondent over this time… I do consider that the injuries are consistent with the stated cause.”
[36] Exhibit 1, T6, pages 84 and 85.
Further X Rays were submitted from 11 November 2009 by Dr Kevin Lai, which confirm the following in relation to the Applicant’s spinal condition[37]:
“CERVICAL SPINE:
There is loss of the normal cervical lordosis, although this may be positional in nature. Disc height is maintained. There are mild anterioir osteophytes seen between C7 and T1. Moderate right foraminal stenosis at C3-4 and mild right foraminal stenosis at C4-5 and C5-6. No significant foraminal stenosis on the left.
LUMBAR SPINE:
Normal alignment at the lumbar spine. There is minimal end plate osteophytic changes seen at L2-3. Disc height is preserved. No spondylolisthesis. No underlying bone lesion or wedge fracture.”
[37] Exhibit 1, T19, page 196.
The Social Security Guide states the following in relation to the age of the medical evidence used in assessing eligibility for the DSP[38]:
“The person claiming DSP is responsible for obtaining all relevant medical evidence in support of their claim or payment continuation. Where the person indicates that they have a medical condition that is not included in their medical evidence, they should be asked to provide medical evidence detailing the diagnosis, treatment and prognosis of the condition. This may involve requesting the person to obtain further information from the person's treating doctor or another doctor or specialist.
Generally, medical evidence from the previous 2 years should be used, however, if the medical evidence is not recent, it may still be useful depending on the person's condition and whether the information is representative of the person's current level of impairment.
Explanation: Medical evidence that is older than 2 years may still be of value if the condition remains unchanged since the time the evidence was issued - for instance a condition has been present from birth or early childhood, or is never likely to change (e.g. amputation of a limb).
While such older evidence may be useful for the purposes of confirming diagnoses of medical conditions, it may not fully reflect the current level of impact of such conditions on the person's ability to function.
Example: Since the time the evidence was issued, an amputee may have acquired a prosthesis and learned how to use it which resulted in improved functional abilities.
Where the nature or the severity of a condition is unclear, arrangements should be made for further investigation of the condition before undertaking an assessment of the functional impact of the condition on the person's capacity to work. This could include the claimant providing further information, or the person's treating doctor can be contacted for clarification.”
[38] Social Security Guide, 3.6.3.05 – Guidelines to the Rules for Applying the Impairment Tables, version 1.273, 25 September 2020.
In relation to the Applicant’s spinal condition, the more recent medical evidence submitted before the Tribunal for consideration has been outlined as follows:
(a)An Account Statement dated 7 August 2018, confirming 96 appointments had been undertaken between 1 June 2015 and 3 August 2018, with the Applicant’s treating Physiotherapist Mr Thomas Harris[39].
(b)An Additional Medical Evidence for Disability Support Pension Record completed on 6 November 2018 by an Assessment Services branch of Centrelink, stating that based on a conversation with the Applicant’s treating General Practitioner, Dr O’Sullivan, “[The Applicant] had not sought treatment for back pain, and the GP stated that [the Applicant] has sought treatment for his lower limb pain symptoms, not his symptoms of back pain”[40]. [Tribunal insertions for clarity]
(c)An Additional Medical Evidence for Disability Support Pension Record completed on 27 November 2018 by an Assessment Services branch of Centrelink, stating that based on a conversation with the Applicant’s treating Physiotherapist, Mr Harris, that, “… the physiotherapist did however state that [the Applicant] was able to sit and drive a car for 30mins, could turn his head/bend neck without moving his trunk, and could pick up an item from a desk or table. The physiotherapist was unable to confirm if [the Applicant] requires the use of a walking aid (cane) on a daily basis”[41]. [Tribunal insertions for clarity]
[39]     Exhibit 1, T36, pages 252 to 258.
[40]     Exhibit 1, T43, pages 274.
[41]     Exhibit 1, T45, page 278.
A Job Capacity Assessment Report dated 29 November 2018, relating to assessments undertaken on 2 October 2018 recorded the following comments of the Applicant in relation to their spinal condition[42]:
[42] Exhibit 1, T46, pages 282 and 283.
“[The Applicant] reported that he has experianced a wide spread chronic level of pain in most joints since an injury in 2002.
He stated that the pain is most severe in his neck and lower back.
Due to the pain he has required the use of a cane to mobilise since 2002.
To treat the condition he reported a history of physiotherapy, hydrotherapy, specialist assessment, and analgesic medication.
The condition is currently monitored via his GP and he remains engaged in monthly contact with a physiotherapist.
His pain is managed via tramadol and panadine forte. He reported a prior history of Endone and Lyrica
As a result of the pain [the Applicant] is unable to walk sit or stand for extended periods, he stated that he struggles to bend and his pain affects his sleep. He stated that he has a reduced range of motion in his neck and struggles with above head activities.
[The Applicant] struggles with household tasks and is becoming increasing dependant on his elderly mother for assistance with house work, shopping and cleaning. He stated that he is unable to cut his own toenails.
To assist in the management of his pain [the Applicant] has been travelling overseas to attend a hot spring.
[The Applicant] stated that he unable to drive for an extended period and is unable to use public transport (due to both anxiety and pain)”.
[sic; Tribunal insertions for clarity]
The Tribunal notes that further submissions regarding medical evidence (particularly that of Dr Timothy Uyeda of 16 October 2019[43] and 3 March 2020[44]; and Dr Sullivan of 30 April 2020[45]) post-dates the date of cancellation of the Applicant’s DSP, being 12 February 2019. For reasons already outlined in this decision, the Tribunal is unable to give this evidence weight as it is not referable to the relevant period.
[43]     Exhibit 1, T2, pages 12 and 13.
[44]     Exhibit 2, Attachment A, pages 1 to 3.
[45]     Exhibit 2, Attachment B, pages 1 and 2.
A Job Capacity Assessment Report dated 29 November 2018 concluded that, “The condition is of a permanent and the symptoms are considered fully diagnosed treated and stabilise. More specifically, [the Applicant’s] condition has been present for several years and he has engaged in a prior history of specialist assessment and rehabilitation”[46]. [sic]
[46] Exhibit 1, T46, page 283.
The Tribunal notes that the pharmaceutical prescription records of the Applicant support their submission that they use analgesic medication to control their pain[47].
[47] Exhibit 1, T34, pages 249 and 250.
In oral submissions to the Tribunal, the Applicant repeated their previous statements regarding his travel to Indonesia for therapeutic treatment and pain management of their spinal condition, and to reduce their dependency on analgesic medication[48]. The Tribunal is unable to give the Applicant’s evidence weight, as this is self-reported, and the Determination requires that self-reported symptoms are to be corroborated with medical evidence[49].
[48] Transcript, 10 August 2020, page 20, lines 24 to 29.
[49] Section 8(1) of the Determination.
The Tribunal is of the view that the Applicant’s spinal condition was fully diagnosed, fully treated and stabilised as at the date of the cancellation of the Applicant’s DSP, being 12 February 2019. This point is accepted by the Respondent[50]. The evidence before the Tribunal indicates that Applicant’s spinal condition is permanent, and given this, an Impairment Rating can be assigned.
[50] Exhibit 2, page 6, paragraph 45.
The appropriate table within the Determination to assess the Applicant’s spinal condition, is Table 4 – Spinal Function[51]. The introduction to Table 4 – Spinal Function, stipulates the following requirements before an assessment of an Impairment Rating is undertaken:
[51] The Determination, pages 20 and 21.
“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 diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.”
[Tribunal underlining for emphasis]

The Applicant submitted to the Tribunal that they lived alone, but relied on the help of their mother for most of their cooking (but was able to occasionally cook for themselves, for example boiling eggs). Their mother attended to some of their self-care needs. The Applicant submitted that they sometimes did their own shopping at Woolworths, and could do some of their own cleaning[52].
[52] Transcript, 10 August 2020, page 16, lines 20 to 47; and page 17, lines 1 to 26.
The Tribunal notes that immigration records submitted in relation to the Applicant, show regular international travel to Indonesia, with the Applicant making five separate trips between March 2017 to June 2019[53]. The Applicant submitted that he had to take pain medication in order to be able to sustain the flight, but flew unaccompanied[54].
[53] Exhibit 1, T54, page 342.
[54] Transcript, 10 August 2020, page 25, lines 40 to 47; and page 19, lines 12 to 15.
The Tribunal notes as part of the hearing, the Applicant sought to diminish the opinion of Mr Harris (the Applicant’s treating physiotherapist), who provided submissions in relation to the Applicant’s functional abilities concerning their spinal condition[55].
[55] Transcript, 10 August 2020, page 13, lines 35 to 38.
In relation to the functional ability of the Applicant as to their spinal condition, the only relevant medical evidence before the Tribunal is that of Mr Harris. The Tribunal notes that Mr Harris has treated the Applicant over a consistent period on 96 occasions between June 2015 and August 2018, as previously outlined in these reasons.
The Tribunal refers to the reported evidence of Mr Harris to the SSCSD of the Tribunal, where it is stated that when Mr Harris was asked whether the Applicant was able to raise his arms above shoulder height, or whether the Applicant had the capacity to reach out or up, it was reported that Mr Harris, “had mainly focused on [the Applicant’s] capacity to turn his head and his ability to lift from waist height. He had nothing to report on [the Applicant’s] capacity for overhead activity”. It was further reported that, “Mr Harris confirmed the evidence he provided to the JCA”[56]. [Tribunal insertions for clarity]
[56] Exhibit 1, T2, page 8, paragraph 26.
The Tribunal refers to the earlier evidence of Mr Harris previously outlined in these reasons, which stated “… the physiotherapist did however state that [the Applicant] was able to sit and drive a car for 30mins, could turn his head/bend neck without moving his trunk, and could pick up an item from a desk or table. The physiotherapist was unable to confirm if [the Applicant] requires the use of a walking aid (cane) on a daily basis”[57]. [Tribunal insertions for clarity]
[57] Exhibit 1, T45, page 278.
Given the evidence of Mr Harris, and the absence of any further corroborating evidence referable to the relevant period regarding the Applicant’s functional ability, the Tribunal is of the view that the Applicant should be assigned an Impairment Rating of zero points. This is consistent with “no” functional impact on activities involving the spinal function, as transposed below from Table 4 – Spinal Function, within the Determination:

0

67.     There is no functional impact on activities involving spinal function.

68.     (1) The person can:

(a)     bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)     turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

(c) Mental health condition

The introduction to Table 5 – Mental Health Function of the Determination expressly stipulates that the diagnosis of a mental health condition (or impairment) “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”[58].
[58] The Determination, page 22.
The Tribunal notes that historical medical evidence has been submitted as far back as 2002 regarding the Applicant’s mental health condition. The Tribunal also refers to the earlier reasons of this decision, where the Social Security Guide gives direction regarding the use of contemporaneous corroborating medical evidence in assessing functional ability.
Given this, the Tribunal refers to the most recently submitted medical report regarding the Applicant’s mental health condition, dated 12 July 2018, and completed by Dr Diana Hamilton, Psychiatrist, which states a diagnosis of, “Anxiety and Panic Disorder”[59]. Dr Hamilton then went on to state that the Applicant’s mental health condition was likely to remain unchanged over the next five years, and that, “the evaluation has been fully assessed and treated and is therefore unlikely to show any further recovery”[60].
[59] Exhibit 1, T29, pages 215 to 217.
[60] Exhibit 1, T29, page 219.
The Tribunal is satisfied on the basis of the medical evidence submitted by Dr Hamilton that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised in accordance with the Determination, prior to the cancellation date of the Applicant’s DSP, being 12 February 2019. The Tribunal notes that the Respondent also accepted this point[61].
[61] Exhibit 2, page 8, paragraphs 53 and 54.
The evidence before the Tribunal indicates that Applicant’s mental health condition is permanent, and given this, an Impairment Rating can be assigned.
The Tribunal is required to determine an Impairment Rating for the Applicant’s mental health condition in accordance with the relevant Impairment Table within the Determination, Table 5 – Mental Health Function[62].
[62] The Determination, pages 22 to 27.
In terms of assessing the functional impact of the Applicant’s mental health condition, the Tribunal refers to the following submitted medical evidence:
(a)Medical Report of 12 July 2018, completed by Dr Diana Hamilton which states, “Persisting anxiety/depression/panic attacks has reduced his energy levels, motivation, and endurance. He has become socially isolative and feels disengaged from individuals and groups of people”[63].
(b)A report from Dr O’Sullivan of 3 August 2018, which stated, “difficulty in managing normal life… some social isolation”[64].
(c)An Additional Medical Evidence for Disability Support Pension Record completed on 6 November 2018 by an Assessment Services branch of Centrelink, stating that based on a conversation with Dr O’Sullivan, “Dr M O’Sullivan was unable to confirm the functional impairment of the psychiatric condition. The GP reported that the customer does not attend the GP regularly. The doctor stated that [the Applicant] does not wish to engaged in contact with a psychologist, and declines any medication other than benzodiazepines. The doctor expressed concerned regarding the benzodiazepines use, and believes that [the Applicant] may benefit from alternate medication. The GP however stated that given the long term nature of the condition, [the Applicant] symptoms are unlikely to change over the next 2 years despite the current suboptimal treatment. The GP did state that given the fact that [the Applicant] travels alone overseas regularly, lives independently and can drive outside the local area, [the Applicant] may not meet criteria for a rating of 20 points”[65]. [sic] [Tribunal insertions for clarity]
(d)An assessment summary as part of a Job Capacity Assessment Report of             29 November 2018 stated the following in relation to the Applicant, “… resides in stable rental accommodation. He stated that he lives independently however requires regular assistance from his family. [The Applicant] is unable to use public transport and stated that he is able to drive for short distances in the local area”[66]. [Tribunal insertions for clarity]
[63]    Exhibit 1, T29, page 219.
[64]    Exhibit 1, T33, page 243.
[65]     Exhibit 1, T44, page 276.
[66]     Exhibit 1, T46, page 299.
The Tribunal notes that further submissions regarding medical evidence (particularly that of Dr Uyeda of 16 October 2019[67] and 3 March 2020[68]; and Dr Sullivan of 30 April 2020[69]) post-dates the date of cancellation of the Applicant’s DSP, being 12 February 2019. For reasons already outlined in this decision, the Tribunal is unable to give this evidence weight as it is not referable to the relevant period.
[67]     Exhibit 1, T2, pages 12 and 13.
[68]     Exhibit 2, Attachment A, pages 1 to 3.
[69]     Exhibit 2, Attachment B, pages 1 and 2.
In relation to assigning an Impairment Rating, the Social Security Guide states[70]:
“In determining which descriptor applies to the person, most of the domains must apply to the person in line with the level of severity stated in the first line (i.e. no, mild, moderate, severe, extreme difficulties).
Where the descriptor refers to most of the following, most is taken to be more than half.
Each descriptor contains examples of mental health impairment for each domain. The examples reflect a person's severity of impairment at each rating level. If a similar example applies to a person but is not specifically listed in the descriptor, the person must have an equivalent level of severity of impairment in order for the descriptor to be met.”
[70] Social Security Guide, 3.6.3.05 – Guidelines to Table 5 – Mental Health Function, version 1.273, 25 September 2020.
On review of the evidence before it, the Tribunal is satisfied that the Applicant’s mental health condition meets the descriptor for a “moderate” Impairment Rating in accordance with Table 5 – Mental Health Function within the Determination. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:

10

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

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

(a) self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b) social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c) interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d) concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e) behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f) work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

The evidence before the Tribunal is that the Applicant attends to their own activities of daily living, with help from his mother for assistance with household duties he was unable to perform (eg. cooking, some personal hygiene). Dr O’Sullivan confirmed in the Additional Medical Evidence for Disability Support Pension Record completed on 6 November 2018, that the Applicant lives independently[71]. Based on this evidence, the Tribunal is of the view that the moderate descriptor for Item 1(a) would be met.
[71] Exhibit 1, T44, page 276.
The evidence of the Applicant’s treating Psychiatrist Dr Hamilton, stated, “Persisting anxiety/depression/panic attacks has reduced his energy levels, motivation, and endurance. He has become socially isolative and felt disengaged from individuals and groups of people”[72]. The evidence of the Applicant’s treating General Practitioner, Dr  O’Sullivan of 3 August 2018, stated, “difficulty in managing normal life situations – some social isolation”[73]. Based on this evidence, the Tribunal is of the view that the moderate descriptor for Item 1(d), (e) and (f) would be met.
[72]     Exhibit 1, T29, page 219.
[73]     Exhibit 1, T33, page 243.
Based on the evidence before the Tribunal, the Tribunal is satisfied that the Applicant would have met at least four of the six available “moderate” mental health impairment descriptors, accordingly, the Tribunal assigns the Applicant 10 points in accordance with a “moderate” Impairment Rating in Table 5 – Mental Health Function within the Determination, in accordance with s94(1)(b) of the Act.
Summary
The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables, and therefore the Applicant does not satisfy s94(1)(b) of the Act.
Accordingly, there is no need to consider whether the Applicant met the remaining eligibility requirements for the DSP, as at the cancellation date of their DSP.
(a)
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division dated 24 October 2019.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
…..………[SGD].….………
Associate
Dated: 1 October 2020
Date of hearing:  10 August 2020
Applicant:  Mr Dane Milos (telephone)
Solicitor for Respondent:       Ms Gillian Gehrke (telephone)
  (Department)
“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit

Number

     Description

1

Section 37 T Documents (pages 1 to 393), received 5 December 2019.

2

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 12), received 23 June 2020, with attachments:

·   Attachment A: Report of Dr Timothy Uyeda, GP, dated 3 March 2020 (also provided by Applicant on 1 May 2020)

·   Attachment B: Report of Dr Michael J O’Sullivan, dated 30 April 2020 (also provided by Applicant on 1 May 2020)

3

Images of Applicant’s injury (3 images), received 4 August 2020.

4

Images of Applicant’s prescriptions (3 images), received 4 August 2020.

5

Instrument of Approval Under Sections 18(1) and 78A (3 pages), received 4 August 2020.

6

Notice of Decision to Grant an Approval Under Paragraph 19(1)(a) of the Therapeutic Goods Act1989 (3 pages), received 4 August 2020.

7

Approval for Medicinal Cannabis (one page), received 4 August 2020.

8

Medicinal Cannabis Treatment Plan (one page), received 4 August 2020.

9

The Queen Elizabeth Hospital Bundle (15 pages), received 4 August 2020.

[2020] AATA 3852

1 October 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Procedural Fairness

Judicial Review

Standing

Appeal

Statutory Construction

Remedies

Exhibit Number	Description
1	Section 37 T Documents (pages 1 to 393), received 5 December 2019.
2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 12), received 23 June 2020, with attachments: · Attachment A: Report of Dr Timothy Uyeda, GP, dated 3 March 2020 (also provided by Applicant on 1 May 2020) · Attachment B: Report of Dr Michael J O’Sullivan, dated 30 April 2020 (also provided by Applicant on 1 May 2020)
3	Images of Applicant’s injury (3 images), received 4 August 2020.
4	Images of Applicant’s prescriptions (3 images), received 4 August 2020.
5	Instrument of Approval Under Sections 18(1) and 78A (3 pages), received 4 August 2020.
6	Notice of Decision to Grant an Approval Under Paragraph 19(1)(a) of the Therapeutic Goods Act1989 (3 pages), received 4 August 2020.
7	Approval for Medicinal Cannabis (one page), received 4 August 2020.
8	Medicinal Cannabis Treatment Plan (one page), received 4 August 2020.
9	The Queen Elizabeth Hospital Bundle (15 pages), received 4 August 2020.