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

Morrison and Secretary, Department of Social Services (Social services second review) [2020] AATA 2210 (13 July 2020)
Division:GENERAL DIVISION
File Number(s):2019/3363
Re:MORRISON, Scott
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:13 July 2020
Date of written reasons: 13 July 2020
Place:Adelaide

The tribunal sets aside the decision under review and in substitution decides that Mr Morrison is qualified to receive the DSP from 26 April 2018.
.............[sgnd]...........................................................
Member I Thompson
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances, claim for disability support pension rejected – whether conditions were fully diagnosed, treated and stabilised, severe impairment – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999 (the Administration Act)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
Re Fanning and Secretary, Department of Social Services [2014] AATA 447.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
REASONS FOR DECISION
Member I Thompson
13 July 2020
INTRODUCTION

The applicant Mr Morrison lodged a claim for disability support pension (DSP) on 26 April 2018. Centrelink rejected the claim in the first instance and Mr Morrison requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Mr Morrison requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Mr Morrison applied to the General Division of the Tribunal for a second review.
The hearing took place on 26 March 2020. Mr Morrison attended the hearing by telephone and was self‑represented. Ms Odgers represented the respondent, the Secretary, Department of Social Services.
Mr Morrison gave evidence and called one witness, his general medical practitioner, Dr Ramsey. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Mr Morrison is now 51 years old. His claim for DSP listed his disabilities or medical conditions as spinal and disc degeneration from a back injury which affected his work capacity from 27 March 2015.[1]
[1] T10 p189.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The assessment period in this case is 26 April 2018 to 26 July 2018.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Mr Morrison will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work.
The Secretary accepted that Mr Morrison suffers from a physical impairment and therefore satisfied s 94(1) (a) of the Act.
In the statement of facts and contentions, the Secretary contended that Mr Morrison’s condition of spinal and disc degeneration was not fully diagnosed, treated and stabilised in the assessment period. In relation to medical evidence about possible impairments from a head injury, shoulder pain and a foot injury, the Secretary contended that there was insufficient evidence to conclude that any of these conditions were fully diagnosed, treated and stabilised in the assessment period.
As an impairment rating could not be assigned to any condition, the Secretary contended that Mr Morrison is unable to satisfy s94 (1) (b) of the Act.
Accordingly the Secretary contended that Mr Morrison did not have a continuing inability to work and was not qualified for the DSP during the assessment period.
The main issue for determination is whether Mr Morrison’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, where he had a continuing inability to work.
CONSIDERATION
It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[2] at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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.”
[2] [2012] AATA 922.
In addition, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services,[3] DP Handley stated (at 33) that:
“The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.
[3] [2014] AATA 447.
Those comments have relevance to the present case in view of the lapse of time between lodging the DSP claim on 26 April 2018 and the hearing before this Tribunal almost 2 years later. The effect of Mr Morrison’s evidence is that his back condition has worsened over the last two years. However, the task for the Tribunal is to assess his condition at the time of the DSP claim and the assessment period.
In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28] the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they provide evidence as to the claimant’s condition during the qualification period.
The applicable impairment rating, if any, for each of Mr Morrison’s conditions will be considered in turn by reference to the Impairment Tables.
IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating.
Spinal function
Impairment Table 4 – Spinal function, is used where a person has a permanent condition with a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
In evidence to the Tribunal Mr Morrison said he has pain in the lower part of his spine. It was an ongoing injury but a fall in 2014 ‘finished him off’. He has not worked since that time. Initially he was unable to walk and had to learn to walk again. He told the Tribunal about the effect of the spinal condition during the assessment period. He was living alone and generally housebound during the day and night. There was little he could do to look after himself. A family friend cleaned his house once a week. A friend drove him to the supermarket to do his shopping. He tried to cook for himself but sometimes a relative assisted with meals. During the assessment period he used a walking stick at home. He said that he could hobble around and could “sort of stand and get around a bit”. He had difficulty moving his head, bending, sitting and standing. Those problems have continued and worsened.
Mr Morrison told the Tribunal that his back condition has gradually deteriorated. Now he uses a gopher. He has handrails in the shower to hold onto. Nowadays he can stand for about two minutes before he needs to sit down. Painkillers get rid of the pain and he likes to have a couple of drinks per day. He has had problems with headaches. For medical advice and treatment he relies totally upon his local medical practice where his current general medical practitioner, Dr Ramsey, prescribes medication as the main form of treatment. He remembers being referred to a specialist, Dr Mills, on one occasion and he believes that Dr Mills has subsequently retired. Mr Morrison’s understanding based on professional advice is that physiotherapy and chiropractic treatment would not improve his condition and he understood that his problems would only be aggravated by those therapies.
Medical certificates from 29 February 2016 were provided. The first certificate, dated 29 February 2016 was completed by Mr Morrison’s general medical practitioner at that time, Dr Williams. It referred to a condition of chronic lumbar back pain with symptoms of pain, backs spasms and lack of mobility. Treatment was by way of simple analgesia.[4]
[4] T 14 p234.
Subsequent medical certificates from Mr Morrison’s general medical practitioners through to 15 February 2018 confirmed the diagnosis of chronic back pain, spinal degeneration and disc bulge. The condition was variously described as chronic, constant and long-term, with very limited capacity for carrying and lifting, reductions in energy, mobility and dexterity, inability to maintain posture and limitations with walking.[5] Treatment included at various times analgesia, imaging, blood tests and review, physiotherapy and chiropractic treatment. The medical certificates acknowledged that Mr Morrison was unfit for work or study from 29 February 2016 to 29 May 2016, from 20 June 2016 to 20 November 2016, and from 3 February 2017 to 2 May 2018. The certificates cover a period of slightly more than two years leading up to the lodgement of the DSP claim on 26 April 2018.
[5] T 14 pp235 – 241.
On 24 April 2018, two days before the DSP claim, Mr Morrison’s general medical practitioner Dr Ramsey provided a written report which stated that Mr Morrison’s spinal degeneration and disc degeneration resulted in a permanent, chronic condition, the prognosis was poor, there had been a continual deterioration and treatment, namely analgesics and counselling, had been implemented.[6]
[6] T 14 p242.
Subsequently medical certificates were provided for the period between 29 May 2018 and 6 November 2018.[7] They confirmed the diagnosis of spinal and disc degeneration which was permanent. Unfitness for work or study was confirmed for that entire period. The prognosis was variously described as ongoing and poor. In the certificate dated 29 May 2018, Dr Ramsey wrote that the symptoms were: – “chronic pain – unable to walk very far – 10 minutes at most, constantly takes analgesics, cannot lift objects et cetera, no treatment available.”[8]
[7] T 14 pp243 – 246
[8] T 14 p244.
In a letter dated 5 March 2019 Dr Ramsey noted that Mr Morrison had consulted Dr Mills at the Hindmarsh clinic. Dr Ramsey went on to comment about a decreased range of movement of the spine and neck with the spine seemingly locking up on Mr Morrison. Dr Ramsey wrote that Mr Morrison could only sit for 10 minutes and then has to lie down. He takes paracetamol regularly with minimal relief. Dr Ramsey recorded that Mr Morrison was unable to bend comfortably to pick up objects, that he is unfit to work in the foreseeable future having exhausted all avenues to return to work.[9]
[9] Exhibit A p17.
Dr Ramsey gave evidence by telephone to the Tribunal. He made a referral to a rehabilitation specialist, Dr Mills, possibly two referrals, for a second opinion about treatment. It seems that Dr Mills did not provide a written report to Dr Ramsey. Medical notes from Dr Ramsey’s practice mention a referral to Dr Mills on 2 February 2017[10] and a subsequent referral on 30 August 2018.[11]
[10] Exhibit A p4.
[11] Exhibit A p2.
Dr Ramsey told the Tribunal that although Mr Morrison had exhausted all avenues of treatment his condition had not improved. He had seen Mr Morrison regularly and provided him with reassurance that treatment by medication was the most appropriate course. He understood that physiotherapists would not treat the condition, or provide further treatment, because of concern about aggravating the problem. He considered there was a degree of arthritis in Mr Morrison’s back and strained joints.
In evidence Dr Ramsey said that since treating Mr Morrison, he had observed that Mr Morrison was always using a walking stick and had now found it easier to get around with a gopher. During the assessment period Mr Morrison would have not been able to negotiate stairs or only with great difficulty, he would require the assistance of somebody to get up steps, he had handrails at home and standing for more than 10 minutes would cause discomfort. Dr Ramsey said that Mr Morrison had a decreased ability to bend, that it would not be easy for him to bend and pick up a light object, and with movements of the head or neck, there was a reduced range in all directions of rotation, extension and flexion.
A report from Radiology SA dated 20 June 2016 following a CT scan of the lumbar spine noted disc degenerative change at the lower four lumbar discs which was most pronounced at L 5 – S 1. The report noted that there was no significant facet joint degeneration, while there was mild bilateral L 5 – S 1 foraminal and lateral recess stenosis.[12]
[12] Exhibit A p15.
In a report dated 15 May 2019 Dr Ramsey wrote that he had examined Mr Morrison again. He commented that the back injury was fully diagnosed and stable and that the: – “back injury is likely to deteriorate over the next few years – as chronic back problems do. He is unable to take further employment for the next 2 – 3 years. As at April 2018 he had exhausted all avenues of treatment. I am unable to estimate his percentage of impairment.”[13]
[13] T 17 p285.
The Tribunal is satisfied that Dr Ramsey’s reports and evidence together with the medical certificates provide sufficient corroborating evidence of the condition of spinal and disc degeneration to conclude that it was fully diagnosed during the assessment period.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
An occupational therapist in the Department of Human Services assessed the medical reports and certificates and considered the question of the treatment of Mr Morrison’s spinal condition. The assessment referred to a lack of corroborating medical evidence from a specialist medical practitioner and commented: – “there is no medical evidence indicating the client has engaged in interdisciplinary pain management programs or been reviewed by a pain specialist to assist with learning new strategies and skills to manage his pain. Evidence-based research has indicated an integrated approach to pain management has proven benefits in functional improvement, mobility and better mental health… There is insufficient collaborating medical evidence (spinal specialists, pain specialist, allied health professional specialist in the area of spinal conditions and chronic pain management) indicating the client has engaged in reasonable treatment options to consider the spinal condition fully treated and stabilised.”[14]
[14] T 12 p217.
In this regard the Secretary contended that there was no evidence that Mr Morrison had accessed specialist or pain management intervention and there was no evidence that he had undergone treatment such as physiotherapy, hydrotherapy or other pain management treatment. The Secretary contended that Dr Ramsey’s assessment of the functional limitations was cursory, and that little weight should be assigned to his opinion. However, there was no medical evidence before the Tribunal that provides a differing assessment. There was no medical evidence to substantiate the commentary by the occupational therapist and no evidence to relate it to Mr Morrison’s circumstances.
It is significant that Mr Morrison has been a patient at the same general medical practice for several years. He is well-known to that medical practice. The doctors who provided the medical certificates from 29 February 2016 onwards were consulting at that practice and they included, in more recent times, Dr Ramsey. Medical notes date back to attendances by Mr Morrison at that practice from 2003.

Before the assessment period treatment mainly by medication had occurred. Physiotherapy and chiropractic treatment had been considered but ultimately ruled out. There had been consideration of a referral to a specialist for a second opinion. Mr Morrison said in evidence that he attended Dr Mills on one occasion. It is not entirely clear when the consultation occurred, however it would seem likely that it followed the second referral made on 30 August 2018. The lack of clarity about the consultation is not reduced by the absence of a written report by Dr Mills. Mr Morrison ascertained that Dr Mills had retired and sold his office.
Mr Morrison accepted the medical advice from his doctor and acted on that advice which was, in essence, that treatment by way of medication was the most practical course. There appeared to be a consensus of opinion that physiotherapy and chiropractic treatment would worsen the condition and not improve it. Planned, future treatment would be, in all likelihood, a continuation along the lines of current treatment.
In cases such as this, it is quite common for evidence to be presented by general medical practitioners, medical specialists, allied health practitioners such as physiotherapists, and pain management clinics. Sometimes a general medical practitioner may form a view about a patient’s endurance to pain and treatment which is not consistent with the view of a specialist. In those instances, the Tribunal may need to decide whether it prefers the assessment of the general medical practitioner or the assessment of the specialist. One factor may be the long-term knowledge and involvement of the general medical practitioner. The value of a second opinion may lie in its independence, or as a consequence of its specialist perspective.
This is not a case, however, where the Tribunal is asked to decide between one or other competing, medical perspectives. There is only one line of evidence. Mr Morrison was treated, assessed and reviewed by his general medical practitioners over a long period in a manner which cannot be fairly described as cursory. He was referred for a second opinion to another medical practitioner who was a specialist in rehabilitation. It is clear the subsequent treatment did not change its focus from the previous treatment. A different course of treatment might have been expected if the specialist recommended it. Radiological examinations were arranged. Not unusually in these types of cases, the merits of physiotherapy and chiropractic intervention were considered and not pursued. Furthermore, Dr Ramsey did not consider that Mr Morrison would benefit from referral to a pain management clinic.
Rule 6 (7) of the Rules for applying the Impairment Tables defines reasonable treatment as treatment which is available at a reasonably accessible location at a reasonable cost, “can reliably be expected to result in a substantial improvement in functional capacity”, is regularly performed, with a high success rate and carries a low risk. Dr Ramsey gave evidence that the medication which he was prescribing was the most appropriate treatment and that realistically there were no alternative avenues of treatment. To the extent that the medication reduced the level of pain which Mr Morrison was suffering, it could be reasonably concluded that its prescription had some functional measure of success.
Mr Morrison contends, in effect, that he has undertaken reasonable treatment in accordance with the necessary criteria. Where a person has not undertaken reasonable treatment for the condition, rule 6(6) (b) (i) of the Rules for applying the Impairment Tables provides that it is fully stabilized if “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.” It may be appropriate in some cases involving management of chronic pain to conclude that reasonable treatment does not occur until a DSP applicant has undertaken a pain management course or followed a recommendation for allied health treatment. However, the trajectory of Mr Morrison’s condition, which Dr Ramsey affirmed, was that a referral to a pain clinic, with or without physiotherapy, would not lead to an improvement of the kind necessary to return to work.
In the circumstances of this case, therefore, the Tribunal finds that Mr Morrison’s back condition was diagnosed, treated and stabilised at the assessment period.
Mr Morrison participated in job capacity assessments arranged by Centrelink. The first Job Capacity Assessment (JCA) report dated 14 October 2016 included a summary of Mr Morrison’s employment history noting that he was a self-employed truck driver for 17 years and ceased work in March 2015 sometime after an injury. According to the report, which was compiled before the DSP claim, Mr Morrison said he held a current driver’s licence, although he was unable to drive because of pain in his back. Therefore, he was using public transport which was also painful especially getting on and off a train. He reported that he needed to take higher doses of pain medication before using public transport.[15]
[15] T 11 p207.
The JCA report recorded that he was complaining of constant back pain with inability to sit or stand for long periods and that he had most relief when he is lying down. It noted that Mr Morrison was taking pain relief medication daily and that he was advised not to try physiotherapy as it could aggravate his condition and he used hot water and rest for relief. The report noted medical certificates from that period which referred to chronic, constant back pain with aggravations, reductions in energy, mobility and dexterity, with very limited capacity to lift and carry, inability to maintain posture and limited walking. Severe back pain was confirmed in the medical certificates. The JCA report went on to say that Mr Morrison : –
“ … reported he struggles to get dressed in the morning; is unable to bend due to pain, difficulty standing from a sitting position (Housing Trust has installed railings in bathroom), unable to mow the lawn, able to perform very light house work when required as lives independently. Unable to carry shopping or walk around a supermarket (friend does this for him). He reported he is able to sit for 10 – 15 minutes, 10 minutes in a car. He reported very limited lifting and does not feel he would be able to pick a piece of paper up from the desk.”[16]
[16] T 11 p203.

51. According to an Employment Services Assessment report dated 21 August 2018 Mr Morrison stated that he was using prescribed pain relief medication to address chronic pain which travelled down his legs. He reported that the medications cause swelling in his feet with poor balance control. The report noted his comment that he was unable to sit and unable to stand for prolonged periods and experiences constant muscle spasms.[17] The report noted that Mr Morrison was using high levels of pain relief medication and consuming alcohol to relieve the pain. It suggested that he was socially isolated, and he required further medical intervention.
[17] T 11 p211.

A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following:

(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)    the person is unable to bend forward to pick up a light object placed at knee height; or

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

53.      Severe functional impact on activities involving spinal function attract 20 points as set out in Impairment Table 4 as follows:

Points

Descriptors

20

There is a severe functional impact on activities involving spinal function.

(1) The person is unable to:

(a)    perform any overhead activities; or

(b)    turn their head, or bend their neck, without moving their trunk; or

(c)    bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

54.      The Tribunal finds that Mr Morrison’s back condition was fully diagnosed, fully treated and fully stabilised during the assessment period. By the time of the DSP claim, Mr Morrison was experiencing a severe functional impact on activities involving spinal function in accordance with criteria (a), (c) and (d) of the descriptors. The appropriate rating for that condition is 20 impairment points.
Upper limb condition

The medical certificate from Dr Williams dated 29 February 2016 referred to a diagnosis of chronic right shoulder pain with symptoms including pain and restricted movement overhead.[18] Subsequently, a medical certificate dated 20 June 2016 noted the diagnosis of chronic right shoulder pain.[19] There is little other medical evidence about this condition. Medical certificates in 2017 and 2018 do not refer to the shoulder condition.
[18] T 14 p234.
[19] T 14 p235.
The JCA report included a summary about Mr Morrison’s shoulder and upper arm condition. According to the report, Mr Morrison commented about constant aching in the right shoulder which felt like a knife in his shoulder. He was unable to sleep on that shoulder and often woke up in pain if he rolls onto it. The JCA report concluded that there was insufficient medical evidence to determine whether the disorder to the shoulder and upper arm was fully diagnosed, treated and stabilised.The Tribunal finds that the upper limb condition was not fully diagnosed, treated and stabilised in the assessment period. No impairment rating can be assigned to it.
Other conditions
Brief evidence was adduced regarding Mr Morrison’s headaches and a foot injury. The evidence was not central to Mr Morrison’s DSP claim and it was not sufficient to conclude that either of the conditions were fully diagnosed, treated and stabilised in the assessment period.
CONTINUING INABILITY TO WORK
The next issue for determination is whether Mr Morrison had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines a continuing inability to work as follows:
(2) Continuing inability to work
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support ---the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

(a) in all cases-- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b) in all cases-- either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).
With an impairment rating of 20 points under a single Impairment Table, it follows that Mr Morrison has a severe impairment within the meaning of s 94(3B) of the Act and he does not need to meet the requirement of actively participating in a program of support.
In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded. The Guidelines to the Tables for the Assessment of Work related Impairment for DSP summarised those factors as:
·   ‘the availability of the person’s usual work in the locally accessible labour market;
·   the availability of any work the person could do or be trained for, within the locally accessible labour market;
·   the availability to the person of a training activity that would assist in developing work skills;
·   the availability to the person of any kind of transport (public or private) to travel to and from work;
·    the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment, e.g. psychiatric disability;
·    difficulties with literacy, numeracy or language which are not directly attributable to a medical condition;
·    the person’s preferences regarding the type of work or training;
·    the person’s potential attractiveness to an employer in a particular area of work;
·    employer preferences and discriminatory practices that may exist in the open labour market.[20]
[20] Exhibit G.
Those factors are derived largely from various decisions of the Tribunal and Courts over many years.
An Employment Services Assessment Report dated 29 June 2016, which is well before the date of the DSP claim, recorded a temporary work capacity of 0 – 7 hours per week, with a baseline work capacity of 15 – 22 hours per week.[21] A similar assessment of temporary work capacity and baseline work capacity was recorded in a JCA report dated 14 October 2016.[22] At that time the assessment had proceeded on the basis that Mr Morrison did not have any permanent, fully diagnosed, treated and stabilised medical conditions. The report suggested return to work would require specialised, disability employment assistance in a range of areas including identifying job options, enhancing skills in job seeking, providing any necessary workplace modifications, and providing post-placement support at the workplace.
[21] T 11 p197.
[22] T 11 p202.
The medical certificates from 3 February 2017 endorse a lack of fitness for work or study of eight hours or more per week through to the time of the DSP claim
There is one assessment subsequent to the DSP claim in an Employment Services Assessment Report dated 21 August 2018.[23] That report does not refer to a temporary work capacity. It postulates a baseline work capacity of 15 – 22 hours per week in light, less skilled work including sedentary occupations. The assessment included a proviso around interventions that were identified as participation in a pain management program, further diagnostic and medical investigations and a need for vocational assessment and counselling.
[23] T 11 p210.
Work is defined in s 94(5) of the Act as follows:
“‘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”.
A report from an employment consultant, Ms McHugh, noted Mr Morrison’s involvement with an employment services firm since 24 August 2016. The report was written on 2 December 2019 and indicated that throughout a period of more than three years, suitable employment had not been identified for Mr Morrison. Ms McHugh commented that Mr Morrison’s “health conditions and skill set “were the reason for the inability to find work.[24]
[24] Exhibit E.
The Tribunal is satisfied that Mr Morrison’s functional impairment from the spinal condition rendered him unfit for work. His difficulties with his back condition have worsened progressively over several years up to and including the time of his DSP claim. Early estimates of a temporary work capacity of 0-7 hours per week were realistic. Longer-term, more optimistic prospects of capacity for work were not well founded despite the endeavours of the employment consultancy.
The Tribunal finds that Mr Morrison’s impairment from the back condition led to a loss of functional capacity which prevented him from working at least 15 hours per week.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
“‘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)”.
Consistent with Mr Morrison’s inability to work, it is clear that he would have extreme difficulty undertaking and maintaining a relevant training activity. The Tribunal considers that Mr Morrison’s impairment was sufficient to prevent him from undertaking a training activity within two years of the assessment period.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
The Tribunal is satisfied that the condition from which Mr Morrison suffers which gives rise to an impairment rating under the Impairment Tables is the condition of spinal and disc degeneration. The appropriate rating for that condition is 20 points That is a severe impairment within the meaning of s 94(3B) of the Act. With a total of 20 impairment points, the criterion in s 94(1)(b) of the Act is satisfied.
In view of the finding that Mr Morrison has a severe impairment, there is no need for him to have actively participated in a program of support within the meaning of s 94(3C) of the Act.
In all of the circumstances, the Tribunal is satisfied that Mr Morrison has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above, the Tribunal sets aside the decision under review and instead the Tribunal decides that Mr Morrison is qualified to receive the Disability Support Pension from 26 April 2018.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

........[sgnd].................................
Administrative Assistant Legal
Dated: 13 July 2020
Date of hearing:   26 March 2020
Applicant:  In person
Respondent’s representative:   Ms L Odgers, Department of Social Services

[2020] AATA 2210

13 July 2020

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