Mitting and Secretary, Department of Social Services (Social services second review) - [2017] AATA 2162

Mitting and Secretary, Department of Social Services (Social services second review) [2017] AATA 2162 (9 November 2017)
Division:GENERAL DIVISION
File Number: 2016/5798
Re:Amanda Mitting
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:9 November 2017
Place:Perth

The decision under review is affirmed.
...(Sgd).............................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant had conditions that were fully diagnosed treated and stabilised – whether applicant had 20 impairment points – seronegative arthritis – spinal condition – photosensitivity – depression – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 4(2) - s 23 - ss 27(3) - ss 94(1) – ss 94(2) – ss 94(3A) - ss 94(3B)
Social Security (Administration) Act 1999(Cth) – s 63 – ss 80(1)(a) – ss118(3) – s 131 – s 145
Social Security and Other Legislation Amendment Act 2001 (Cth) – Section 3, Schedule 3
CASES
Re Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Morgan and Secretary, Department of Social Services (Social Services Second Review) [2017] AATA 482
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Impairment Tables 1, 4 and 14 – ss 6(1) – ss 6(3) - ss 6(4) – ss 6(5) – ss 6(6) – ss 6(7) – ss 6(8) – ss 8(1) – ss 10(1) – ss 11(1)(c) – ss 11(3)
REASONS FOR DECISION
L M Gallagher, Member
9 November 2017
INTRODUCTION

Ms Mitting was in receipt of the Disability Support Pension (‘DSP’) from 6 December 2010 on the basis that her conditions of chronic spinal pain and fibromyalgia, when combined, attached 20 impairment points under the ‘old’ Table 20[1] and that her capacity for work within two years with intervention was 8 to 14 hours per week (T16, page 145 and 147).
[1] Table 20 as it appeared in Schedule 1B of the Social Security Act 1991 (Cth) as then in force, repealed by the Social Security and Other Legislation Amendment Act 2001 (Cth) (refer to section 3 and Schedule 3). The current impairment tables came into force on 1 January 2012 (Social Security and Other Legislation Amendment Act 2001 (Cth) (refer to Schedule 3, clause 5).
On 17 April 2015, the Department of Human Services (‘the Department’) sent to Ms Mitting a notice under section 63 of the Social Security (Administration) Act 1991 (Cth) (‘the Administration Act’) requiring her to provide medical information and information regarding whether she had actively participated in a program of support, in order to review her continuing eligibility for DSP (T28, page 201).
On 15 June 2015, the Department received from Ms Mitting a completed section 63 notice dated 14 May 2015 (T28, page 201) where she indicated that in the last six months, she had not completed a program of support.
On 14 August 2015, a face to face Job Capacity Assessment (‘JCA’) was conducted. Ms Mitting was assessed by a Registered Nurse (T33). The JCA assessed Ms Mitting as suffering from:
(a)rheumatoid arthritis, which was fully diagnosed, fully treated and fully stabilised and assigned 10 points under Table 1 of the Impairment Tables (Functions Requiring Physical Exertion and Stamina);
(b)spinal disorder, which was fully diagnosed, but not fully treated and not fully stabilised; and
(c)depression, which was not fully diagnosed, not fully treated and not fully stabilised.
The JCA also found that Ms Mitting did not have a continuing inability to work (‘CITW’) (T33 at page 217).
On 2 September 2015, Dr Adrian Lee (General Practitioner) completed an Additional Medical Evidence for Disability Support Pension Record (T32) following a telephone call with Ms Mitting, which indicated “Discussed spinal condition if FDTS à not currently stable” and “Discussed rheumatoid arthritis – if FDTS + work capacity à advised RA is FDTS + w/c is 15+ hours per week.”
On 6 November 2015, the Department advised Ms Mitting that she was not eligible for DSP as she was assessed (by the JCA) as having an impairment rating of less than 20 points (T34, page 219) and her DSP was cancelled.
On 16 December 2015, Ms Mitting requested review of the Department’s decision dated 6 November 2015 (T43, page 277).
On 9 January 2016, an Authorised Review Officer (‘ARO’) of the Department affirmed the decision dated 6 November 2015 (T36, page 253). The ARO found that Ms Mitting’s conditions attracted a total impairment rating of 10 points, divided as follows:
(a)rheumatoid arthritis, which was fully diagnosed, fully treated and fully stabilised and assigned 10 points under Table 1 of the impairment tables (Functions Requiring Physical Exertion and Stamina);
(b)spinal disorder, which was fully diagnosed, but not fully treated and not fully stabilised; and
(c)depression, circulatory system disorder, vertigo, urinary tract conditions and endocrine system dysfunction, which were not fully diagnosed, fully treated or fully stabilised.
The ARO also found that Ms Mitting did not have a CITW, given the JCA’s assessment that Ms Mitting could, within two years and with appropriate intervention, undertake light skilled work of at least 15 hours per week (T36 at page 258).
Ms Mitting then provided additional medical evidence to the Department. The ARO considered that further evidence and on 4 April 2016, informed Ms Mitting that this evidence did not alter its previous findings (T41).
On 24 June 2016, Ms Mitting applied to the Administrative Appeals Tribunal (‘Tribunal’) for a first review of the ARO decisions dated 9 January 2016 and 4 April 2016 (T2; R2, Attachment A). On her application form, Ms Mitting states that she disagreed with the ARO decisions because:
“…I do qualify for the Disability Pension. Centrelink are ‘NOT’ considering medical issues I’ve had most of my life that are affecting me and to get doctors to put this information in writing.”
On 20 September 2016, the Tribunal’s Social Services and Child Support Division (‘AAT1’) affirmed the ARO decisions (T2) on the basis that Ms Mitting did not achieve the required 20 points under the Impairment Tables. The AAT1 found that Ms Mitting’s condition attracted a total impairment rating of 10 points, divided as follows:
(a)rheumatoid arthritis, which was fully diagnosed, fully treated and fully stabilised and assigned 10 points under Table 1 of the impairment tables (Functions Requiring Physical Exertion and Stamina);
(b)spinal disorder, which was fully diagnosed, but not fully treated and not fully stabilised; and
(c)depression and thermoregulatory dysfunction, which were not fully diagnosed, fully treated or fully stabilised.
On 28 October 2016, Ms Mitting applied to the Tribunal’s General Division for a second review of the AAT decision dated 20 September 2016, claiming the decision is wrong as follows (T1, page 2):
“I still believe the decision to be wrong and my long term medical conditions are NOT being considered at all even though my specialists have stated that they will be lifelong and only likely to deteriate [sic]. I am applying for an extension to be able to gather more medical reports from doctors and specialists to be also considered in my second review.”
RELEVANT LEGISLATION
The statutory provisions relevant to the present matter are contained in the Social Security Act 1991 (Cth) (‘the Act’), the Administration Act and the Social Security and Other Legislation Amendment Act 2001 (Cth) (‘the Amendment Act’)

16. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes, the three primary requirements are that:
(a)a person has a physical, intellectual or psychiatric impairment (subsection 94(1)(a) of the Act);
(b)the person’s impairment is of 20 points or more under the Impairment Tables (subsection 94(1)(b) of the Act); and
(c)that person has a CITW (subsection 94(1)(c) of the Act).

The Tribunal is required to determine Ms Mitting’s eligibility for DSP on 6 November 2015, being the date her DSP was cancelled (and not at any other time), as follows:
(a)The DSP is, by definition, a social security payment (section 23 of the Act).
(b)The Department’s decision to cancel Ms Mitting’s DSP was made under subsection 80(1)(a) of the Administration Act, which provides that if the Secretary is satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
(c)A decision to cancel of suspend a social security payment is an adverse determination within the meaning of subsection 118(13) of the Administration Act, being one that ordinarily takes effect on the day on which it is made.
(d)The Tribunal understands that in Ms Mitting’s case, pursuant to sections 131 and 145 of the Administration Act, she remained in receipt of the DSP until 23 September 2016 (being the day following the AAT1 decision being posted to her).
With regards to cancellation under subsection 80(1) of the Administration Act (as distinction from suspension), a decision cancelling a pension or benefit brings to an end the entitlement to a pension or benefit. Entitlement to the pension or benefit only revives on the lodgement of a proper claim for the grant of the pension or benefit (Re Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 675).
Ms Mitting’s qualification must be assessed under the Impairment Tables that were in force on the day that the notice under section 63 of the Administration Act was given to her (subsection 27(3) of the Act).
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (“impairment” is defined to mean a loss of functional capacity affecting a person’s medical condition) and they describe functional activities, abilities, symptoms and limitations.
In assessing functional capacity under the Impairment Tables, 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 (subsection 6(1) of the Determination).
To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (subsection 6(3) of the Determination).
For the purposes of the Impairment Tables, “permanent” does not have its usual meaning. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, be fully stabilised and be more likely than not, in light of available evidence, to persist for more than two years (subsection 6(4) of the Determination).
In determining whether a condition has been fully diagnosed and fully treated, the following facts are 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 two years
(subsection 6(5) of the Determination).
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.
(subsection 6(6) of the Determination).
“Reasonable treatment” is treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person (subsection 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (subsection 6(8) of the Determination).
Self-reporting of symptoms in relation to a person’s condition can only be taken into account where there is corroborating evidence as defined in each table in the Impairment Tables (subsection 8(1) of the Determination).
Impairment table selection is, by subsection 10(1) of the Determination, 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.
In assigning an impairment rating, if 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 (subsection 11(1)(c) of the Determination).
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 (subsection 11(3) of the Determination).
The Introductions to Impairment Tables 1, 4 and 14 (Functions Requiring Physical Exertion and Stamina, Spinal Function and Functions of the Skin) state that the required appropriately qualified diagnosing and corroborating medical practitioners includes a person’s treating doctor and a medical specialist.
In respect of the requirement that a person have a CITW, unless a person is specifically exempted from this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied, including active participation in a program of support and being unable to work for 15 hours or more per week.
In relation to paragraph 33 above:
(a)Subsection 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that, in a case where the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support, the person has actively participated in a program of support.
(b)subsection 94(3A) of the Act provides that if a person is receiving disability support pension and the Secretary gives notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension and the person is not a reviewed 2008-2011 DSP starter, then subparagraph 94(2)(aa) does not apply in relation to that assessment.
ISSUES
The issues which arise in this case are:
(a)whether Ms Mitting continues to suffer from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)whether those impairments receive an impairment rating of 20 points or more under the Determination; and if so,
(c)whether Ms Mitting has a continuing inability to work, which includes the requirement to have actively participated in a program of support.
As the Tribunal has concluded below (refer to paragraph 66) that Ms Mitting’s impairments do not receive an impairment rating of 20 points or more, the Tribunal has not addressed in considerable detail the legislation nor the issues relevant to whether Ms Mitting has a CITW. It is not required to do so.
EVIDENCE
The matter was heard in Perth on 18 September 2017. Ms Mitting appeared in person and was represented by Mr John Hammond from Hammond Legal. Ms Mitting’s mother was in attendance as a support person. The Secretary was represented by Ms Shelley He from Mills Oakley Lawyers.
The Tribunal received the following evidence:
(a)Ms Mitting’s written submissions dated 17 September 2017 (A1);
(b)a 278 page set of T documents (T1 – T43) (R1); and
(c)Respondent’s Statement of Facts, Issues and Contentions, with attachments, dated 18 August 2017 (R2).
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. At hearing, neither Mr Hammond nor Ms He required Ms Mitting to give oral evidence and the Tribunal considered this to be appropriate in the circumstances. Relevant aspects of the documentary evidence and material before the Tribunal will be referred to below.
CONSIDERATION
Whether Ms Mitting suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute and the Tribunal finds on the evidence that at the date of cancellation, Ms Mitting suffered from a number of impairments including seronegative rheumatoid arthritis, a spinal condition and photosensitivity.
As such, the Tribunal finds that Ms Mitting satisfies subsection 94(1)(a) of the Act.
The Tribunal notes that while only the arthritis and spinal conditions formed part of Ms Mitting’s submissions, the Tribunal is required to consider all of the evidence before it and has made findings regarding Ms Mitting’s additional conditions where relevant.
Whether Ms Mitting’s impairments receive an impairment rating of 20 points or more under the Determination
Photosensitivity
While Ms Mitting has not made any written or oral submissions regarding the functional impact of her photosensitivity condition, the Tribunal finds on the evidence that her photosensitivity condition was permanent at as the date of cancellation, attracting 5 impairment points under Table 14 (Functions of the Skin), noting in particular descriptor (1)(c)[2] under the ‘5 point’ or ‘mild’ functional impact rating of Table 14 as follows:
(a)Dr Will’s comment on 8 March 2016 (T40, page 267) that Ms Mitting “has problems of sun sensitivity which is probably a consequence of Methotrexate therapy and requires sun protection if she is outside in the sun and needs to wear a hat.”
(b)Dr Granger’s note dated 17 January 2017 (R2, Attachment B, page 1) of the symptoms that “there is no doubt that the methotrexate would be implicated, and possibly the NSAID”; and
(c)Dr Armstrong’s opinion (R2, Attachment C, page 9) that “Methotrexate-related skin photosensitivity is relatively well recognised and it is also thought that it may increase the risk of skin cancers.”
[2] Descriptor 1(c) under the ‘5 point’ or ‘mild’ functional impact rating of Table 14 (Functions of the Skin) states “the person has minor difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications or past history of skin cancers) and needs to take higher than normal precautions to limit exposure to sunlight” [emphasis added].
The Tribunal notes that the available evidence regarding Ms Mitting’s photosensitivity condition accords with the Secretary’s contention (R2, paragraph 6.16) that there is no indication that the precautions recommended by Ms Mitting’s treating doctors were consistent with the examples given in descriptor (1)(a) of Table 14 for a moderate impairment (being that Ms Mitting has to wear sunscreen at all times) and therefore cannot attract 10 impairment points.
Spinal condition

In relation to Ms Mitting’s spinal condition, it is not in dispute and the Tribunal finds on the evidence that at the date of cancellation, Ms Mitting suffered from a permanent spinal condition, which includes back pain following numerous spinal surgeries at the L4/5 levels. The Tribunal relies upon the reports of Dr Paramaswaran dated 19 November 2015 (T35, page 228) and Dr Armstrong, Medical Adviser (R2, Attachment C, page 8) in this regard.
Ms Mitting and the Secretary both contend that Ms Mitting’s spinal condition should be awarded 5 points under Impairment Table 4 (Spinal Function) on the basis that the available evidence supports a finding that Ms Mitting had some difficulty bending to knee level and straightening up again without difficulty (in accordance with descriptor (1)(b) under the ‘5 point’ or ‘mild’ functional impact rating under Table 4).
The Tribunal has considered the available evidence regarding Ms Mitting’s spinal condition and relevantly notes the following:
(a)Dr Lee’s discussion with Dr Armstrong on 23 March 2017, during which he confirmed Ms Mitting could remain seated for up to two hours and could squat but had some difficulty bending to knee level (R2, Attachment C, page 6).
(b)Ms Mitting’s oral evidence to the AAT1 that she “hasn’t been able to stand up straight since April 2016” (meaning that she was able to do so prior to this date) and was able to “bend down to pick something up off the floor”) (T2, page 7 at [27]), and referring to subsection 11(3) of the Determination set out at paragraph 31 above.
The Tribunal also considers there is no evidence to support any of the descriptors at the date of cancellation for a ‘moderate’ or ‘10 point’ functional impairment rating under Table 4.
Overall, applying the evidence to each applicable (and indeed, alternative) domain under Table 4 of the Impairment Tables, the Tribunal finds that the overall level of Ms Mitting’s impairment under Table 4 is mild, generating 5 impairment points.
Seronegative arthritis
As to Ms Mitting’s seronegative arthritis, it is not in dispute and the Tribunal finds on the evidence that at the date of cancellation, this condition was permanent within the meaning of the Act. The Tribunal relies upon the reports of Dr Lee dated 30 April 2015 (T26, page 163), Dr Paramaswaran dated 19 November 2015 (T35, pages 223 and 224) and Dr Armstrong’s discussion with Dr Will, Rheumatologist (R2, Attachment C at page 6), in this regard.
In her written submissions (A1), Ms Mitting refers to the following in relation to her seronegative arthritis:
(a)The reference in paragraph 22 of the AAT1 decision that “there is not a severe functional impact as Ms Mitting is able to walk around a shopping centre without assistance” is incorrect and such assistance is required, noting paragraph 16 of that decision states Ms Mitting walks around the supermarket by leaning on a trolley.
(b)The reference in paragraph 22 of the AAT1 decision that Ms Mitting can “perform light day to day household duties” is inconsistent with paragraph 24 of that decision (mistakenly referred to in A1 as paragraph 23 of that decision), which notes that “Ms Mitting has some difficulty with dressing herself, some difficulty with opening a new carton of milk, and that she uses built up utensils to assist with eating” on the basis that opening a carton of milk is a light household duty.
Therefore, Ms Mitting contends that 20 points (under Table 1) should have been awarded to relation to her seronegative arthritis alone in that she cannot (refer to A1 at paragraph 3.8):
(a)walk around a shopping centre or supermarket without assistance (being descriptor 1(a)(i) for a ‘severe’ or ’20 point’ rating under Table 1);
(b)perform light day to day household activities (e.g. opening a new carton of milk) (being descriptor 1(a)(iv) for a ‘severe’ or ’20 point’ rating under Table 1); and
(c)that she has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours (being descriptor 1(b) for a ‘severe’ or ‘20 point’ rating under Table 1). The Tribunal notes that Mr Hammond did not direct the Tribunal to any documentary evidence regarding descriptor 1(b).
At hearing, Mr Hammond contended that the AAT1 did not, as it should have, take into account the “overall thrust” of the medical evidence regarding Ms Mitting’s arthritis condition or that Ms Mitting’s arthritis condition was “deteriorating.”
Mr Hammond contended that there was evidence from Dr Lee (General Practitioner) that in January 2011, Ms Mitting was unable to sit or stand for any length of time because of pain (T8, page 103), by May 2011, she was also unable to concentrate for any length of time (T13, page 129) and in April 2015 she had “decreased durability” (T26, page 165).
Mr Hammond asked the Tribunal to consider the “evolution” of Ms Mitting’s arthritis condition, referring to paragraph 13 of the decision of Morgan and Secretary, Department of Social Services (Social Services Second Review) [2017] AATA 482 (Morgan), which reads as follows:
13.It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[Emphasis added]
Member Gallagher invited Mr Hammond to provide authority to support his proposition that, in effect, “assistance” for present purposes includes assistance from a supermarket trolley when decisions such as Summers and Secretary, Department of Social Services [2014] AATA 165 found that “assistance” for present purposes refers to assistance from a person not from an object or physical aid, which would include a supermarket trolley. Mr Hammond offered no further comment in that regard.
The Secretary, in its written submissions, contends that the impairment associated with Ms Mitting’s arthritis condition attracts 5 impairment points under Table 1 on the basis that Ms Mitting experiences occasional symptoms, when performing physically demanding activities and as a result, has occasional difficulty, performing physically active tasks but retains the ability to perform most work-related tasks that do not involve heavy manual labour. The Secretary relies on the following evidence in support of its contentions:
(a)Dr Lee’s report dated 30 April 2015, which indicates that Ms Mitting’s symptoms consisted of “pain” and the impact on ability to function was “decreased durability” (T26, page 164 to 165).
(b)Dr Paramaswaran’s report dated 19 November 2015, which noted that Ms Mitting could live and mobilise independently with the use of aids (T35, page 224)
(c)Dr Will’s report dated 14 January 2016, which that Ms Mitting had “much difficulty with undertaking vacuuming, housework and light gardening” (T37, page 264).
(d)Dr Will’s letters dated 8 March 2016, which indicated that Ms Mitting could walk “for five to ten minutes” before needing to stop and was “not fit to undertake any physically demanding work duties” (T39, page 266 and T40 , page 267).
(e)Dr Will’s discussion with Dr Armstrong on 10 March 2017, expressing uncertainty as to the level of fatigue suffered by Ms Mitting and indicated that Ms Mitting’s symptoms were not consistent with the descriptors for a moderate (or ‘ten point’) functional impact (R2, Attachment C at page 6).
(f)Mr Kippin’s physiotherapy report completed on 3 July 2017 indicating that Ms Mitting had standing, walking and sitting tolerances of 5, 30 and 15 minutes respectively before needing to rest or change posture (R2, Attachment C at page 15).
(g)Ms Mitting’s report that she was unable to perform day to day household activities such as changing sheets (T2, page 6 at [16]) was not corroborated by medical evidence as required.
(h)As Ms Mitting is able to walk for 30 minutes before needing to stop for a rest (refer to paragraph 54(f) above), descriptor 1(a)(i) for a moderate impairment under Table 1 is not satisfied.
(i)The Secretary therefore contends that the 10 point (or indeed any points rating under Table 1 higher than 5 points) is not appropriate.
At hearing, Ms He referred the Tribunal to Dr Paramaswaran’s report dated 19 November 2015 (T33, page 225) which answered “yes” to the question “Is the patient physically capable of performing light household duties (e.g. folding and putting laundry away). Ms He also noted that the first occasion that Ms Mitting’s inability to open a milk carton appears is in her evidence regarding application to the Tribunal on 24 June 2016 and indeed there were no submissions made regarding Ms Mitting’s ability to open a milk carton in her written submissions.
Ms He added that the functional impairment threshold for a 20 point rating under Table 1 is “quite high” and there is no evidence to demonstrate any of the fours descriptors under 1(a) being satisfied.
The Tribunal has considered all of the evidence regarding Ms Mitting’s rheumatoid arthritis condition along with oral submissions made by the parties at hearing and, based on paragraphs 50 to 59 above, finds that Ms Mitting’s seronegative arthritis attracts 5 impairment points under Table 1.
The Tribunal also notes Mr Hammond’s submission regarding consideration of the “evolution” of Ms Mitting’s condition, referring to its degeneration over time. The Tribunal also notes that the Morgan decision, which Mr Hammond relies upon in making that submission confines the Tribunal to considering the situation as it was at the time of the application for DSP (or in this case, the date of cancellation of DSP), with the consideration of “evolution” being enlivened only in situations where there are competing projections or an assessment of the quality of the medical reports provided. The Tribunal considers there are no such competing projections of quality assessments of evidence before it in the present application in the context addressed in the Morgan decision. The Morgan decision also notes, and in the Tribunal’s view properly so, that:
“If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
As noted in paragraph 29 above (referring to subsection 10(1) of the Determination), the Tribunal’s task in assessing Ms Mitting functional impairment is one of aligning the evidence with regard to loss of function to the most appropriate descriptors on the relevant table, in order to determine the impairment rating. Respectfully, this task is something other than considering the “overall thrust” of the evidence and given the legislation (along with the remarks extracted from the Morgan decision in paragraphs 55 and 61 above), it is the only task the Tribunal can perform for present purposes.
Other conditions
Ms Mitting claims to suffer from a number of additional conditions, namely depression, circulatory system disorder, vertigo, urinary tract conditions and endocrine system dysfunction.
On the evidence before it, the Tribunal considers that the conditions listed at paragraph 63 above were not permanent at the date of cancellation and no impairment points can be assigned.
Overall, applying the evidence to each applicable domain under Table 1 of the Impairment Tables, the Tribunal finds the overall level of Ms Mitting’s impairment under Table 1 is ‘mild,’ generating 5 impairment points. The Tribunal considers there is no corroborated, contemporaneous evidence available for it to be satisfied that a higher functional impairment points rating ought to apply. As a result, the Tribunal finds that Ms Mitting’s impairments receive an overall impairment rating of 15 points under the Determination, she does not satisfy subsection 94(1)(b) of the Act and she was not qualified for the DSP at the time of her cancellation.
Whether Ms Mitting has a continuing inability to work
Based on paragraphs 40 to 65 above, the Tribunal finds that Ms Mitting has 15 impairment points and fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Ms Mitting had, at the date of cancellation, a CITW in satisfaction of subsection 94(1)(c) of the Act.
If the Tribunal had been able to find that Ms Mitting’s impairments ought to be assigned a total of 20 impairment points across the various applicable Impairment Tables (and had also found that Ms Mitting’s impairments are not “severe” meaning no impairment attracts 20 impairment points under a single impairment table, in accordance with subsection 94(3B) of the Act), the Tribunal would have been required to consider Ms Mitting’s capacity to work 15 hours per week in the next two years. The requirement in subsection 94(2)(aa) of the Act to have actively participated in a program of support does not apply to Ms Mitting because she is not a reviewed 2008-2011 DSP starter as defined in subsection 94(3A) of the Act.
In this regard, and for completeness only, the Tribunal notes that Ms Mitting was assessed by the JCA (T33) and Dr Lee (T32, page 211 and T33, page 213) as having a having a work capacity of at least 15 hours per week within two years with intervention. Therefore, on the available evidence Ms Mitting’s application is likely to have failed regardless of whether 20 impairment points, accumulatively, were assigned.
DECISION
Ms Mitting does not qualify for DSP as her conditions can only be assigned 15 impairment points as at the date of cancellation.
The decision of the AAT1 dated 20 September 2016, which affirmed decisions of the Department dated 9 January 2016 and 4 April 2016 to cancel Ms Mitting’s DSP on 6 November 2015, is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

......(sgd)...........................................
Administrative Assistant - Legal
Dated: 9 November 2017

Date(s) of hearing: 18 September 2017

Representative for the Applicant: Mr J Hammond

Solicitors for the Applicant: Hammond Legal

Representative for the Respondent: Ms S He

Solicitors for the Respondent: Mills Oakley Lawyers

Date(s) of hearing:	18 September 2017
Representative for the Applicant:	Mr J Hammond
Solicitors for the Applicant:	Hammond Legal
Representative for the Respondent:	Ms S He
Solicitors for the Respondent:	Mills Oakley Lawyers