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

Mountford and Secretary, Department of Social Services (Social services second review) [2020] AATA 2207 (13 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3547
Re:Shannon Mountford
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:13 July 2020
Place:Brisbane

The reviewable decision of the Social Services and Child Support Division is affirmed.
.......... .....................[SGD]......................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Social Security Act 1991 (Cth) – Disability Support Pension – Whether impairment fully diagnosed – Whether impairment fully treated – Whether impairment fully stabilised – Whether impairment entitled to 20 points
Legislation
Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
REASONS FOR DECISION
Senior Member P J Clauson AM
13 July 2020
INTRODUCTION

On 16 March 2018, Ms Mountford (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’)[1] listing her medical condition as ‘cervical radiculopathy’.[2] The claimant provided a letter from her GP, Dr Mashfique Khan, dated 2 August 2017[3] which was considered in the DSP Medical Assessment Recommendation (‘MAR’).[4]
[1] Exhibit 1, T18, pages 121 to 152.
[2] Ibid at 145.
[3] Exhibit 1, T17, pages 99 to 102.
[4] Exhibit 1, T29, pages 153 to 154.
The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim on 16 March 2018 or within 13 weeks thereafter, that being 15 June 2018 (‘the Qualification Period’).
THE HISTORY OF THE MATTER
On 16 March 2018, the Applicant lodged a claim in writing for DSP with Centrelink, including a proforma medical report by Dr Mashfique Khan dated 15 March 2018[5] which listed the medical conditions from which the Applicant suffered as:
Multi-level cervical spine - intervertebral disc degeneration and nerve root compression.
[5] Exhibit 1, T27, page 118.
The Applicant, in the body of the Application at Part 165, listed her condition as ‘cervical radiculopathy’.[6]
[6] Exhibit 1, T28, page 145.
On 23 March 2018, a DSP Medical Assessment Recommendation[7] conducted by a Registered Nurse considered the cervical radiculopathy condition and recommended that the Applicant’s condition had been fully diagnosed but not fully treated and stabilised because the Applicant had not undergone recommended and reasonable treatment for the condition.
[7] Ibid.
On 27 March 2018, the Department rejected the Applicant’s DSP claim on the basis that her medical condition did not attract an Impairment Rating of 20 points or more.[8]
[8] Exhibit 1, T30, pages 155 to 156.
The Applicant then sought a review of this decision and an Authorised Review Officer (‘ARO’) affirmed the decision under review[9] and found that the Applicant’s conditions of ‘neck pain and depression’ were not permanent on the basis they were not fully treated and stabilised.
[9] Exhibit 1, T36, pages 171 to 179.
A further review by the Social Services and Child Support Division of this Tribunal (‘AAT1’) affirmed the decision to reject the Applicant’s claim for DSP on 23 May 2019.[10]
[10] Exhibit 1, T2, pages 3 to 6.
The Applicant then lodged an application for a second review of the decision in this Tribunal.[11]
[11] Exhibit 1, T1, pages 1 and 2.
THE LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case 16 March 2018. There is, however, an exception where the person is not qualified on that date but ‘becomes qualified’ within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[12] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 16 March 2018 and 13 weeks thereafter, namely 15 June 2018 (‘the Relevant Period’).
[12] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
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 para. [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 12 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.
(Tribunal’s underlining)
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’), a legislative instrument made under the Act.[13] The Tables are function-based rather than diagnostic-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[15]
[13] See section 26(1) of the Act.
[14] See section 5(2) of the Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (‘The Determination’).
[15] See section 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[16] In order for a condition to be considered ‘permanent’, it must have been fully diagnosed by an appropriate qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[17]
[16] See section 6(3) of the Determination.
[17] See section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(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.[18]
[18] See section 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 two years; or
(b)the person has not undertaken reasonable treatment for the condition:
(i)significant functional improvement to a level enabling the person to undertake work in the next two 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.[19]
[19] See section 6(6) of the Determination.
‘Reasonable treatment’ is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.[20]
[20] See section 6(7) of the Determination.
An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two 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. A rating cannot be assigned in excess of the maximum rating specified in each Table.[21]
[21] See section 11(1) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
ISSUES FOR THE TRIBUNAL
The issues for this Tribunal to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition which was fully diagnosed, treated and stabilised;
(b)whether the Applicant’s condition warranted an Impairment Rating of 20 points or more under the Impairment Table, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table or, if not, whether the Applicant completed a program of support; and
(d)whether the Applicant had a continuing inability to work.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant had an impairment for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[22]
[22] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 6 to 11.
The Tribunal accepts that the Applicant had impairments for the purpose of section 94(1)(a) of the Act. The Tribunal proposes to deal with the calculation of impairment points by reference to the Applicant’s medical condition.
Spinal Condition - Table 4
The Tribunal accepts that the Applicant has provided evidence to satisfy it that her spinal condition has been fully diagnosed.
In a report (undated) by Dr Savio Godhino of an MRI examination of the Applicant’s cervical spine conducted by him on 24 July 2017[23], it is noted that the Applicant was suffering from:
(a)Broad-based left paracentral disc osteophyte complex protrusion at C4/C5;
(b)Broad-based left paracentral and foraminal disc osteophyte complex protrusion at C5/C6 potentially impinging the exiting left C6 nerve root;
(c)Diffuse annular bulge with bilateral uncovertebral hypertrophy at C5/C7.[24]
[23] Exhibit 1, T16, pages 97 and 98.
[24] Ibid, page 97.
Following the MRI with Dr Godhino, Dr Khan referred the Applicant to Dr Paul Licina outlining in his referral the findings of the MRI and that the Applicant had suffered with chronic neck pain ‘for the last 07 years and suffered from bilateral upper limb tingling sensation, poor grip strength and bilateral shoulder pain.’[25]
[25] Exhibit 1, T17, pages 99 to 103.
The Applicant was then assessed at Spine Plus Complete Care on 23 August 2017 and a report of even date was jointly prepared by Dr Licina, Spine Surgeon, and Dr Angus Forbes, Occupational Physician.[26]
[26] Exhibit 1, T20, pages 106 to 107.
During the consultation, the Applicant was seen by:
·Spine Plus, Clinical Nurse;
·Mr Steven Boyd, Spinal Physiotherapist;
·Dr Angus Forbes, Occupational Physician;
·Dr Paul Licina, Spine Surgeon.
The Doctors, in their joint report, offered their opinions as follows:
Dr Forbes noted that the Applicant’s condition and her protective neck posture and reluctance to move her neck. He also noted that ‘She has been able to work with significant restriction to neck movement’. He also commented the MRI finding showing ‘Mild degenerative changes’. Dr Forbes’ suggestion for her further treatment was for a coordinated program of rehabilitation through his Surgeries Team at Backspace and if no significant improvement was achieved, then consideration of a referral to Dr Moore, a Pain Physician, for steroid injections. Dr Licina noted the Applicant’s severe neck pain and the symptoms in her arm. He also noted her very stiff neck and her feeling of weakness. It was also noted:
Fortunately, we found nothing on her examination that would suggest any serious problems. Also fortunate is that her scan doesn’t show any nerve compression, although there is degeneration of the C5/6 and C6/7 discs.[27]
[27] Ibid, Exhibit 1, T20 at page 106.
The joint recommendation of Drs Forbes and Licina in the final paragraph of their report was:
Our team feels that coordinated rehabilitation with the possibility of steroid injections is the best approach and Shannon is happy to try this. We will organise this for as early as next week.[28]
[28] Ibid, Exhibit 1, T20 at page 107.
Following the consultation and examination with Drs Forbes and Licina, the Applicant’s GP, Dr Khan, provided Centrelink with medical certificates dated 20 September 2017[29] and 27 September 2017 respectively, both of which confirm the Applicant’s condition as ‘cervical disc protrusion with radiculopathy’ and that the prognosis is ‘uncertain’.
[29] Exhibit 1, T21 at page 108.
Further, the Certificate dated 20 September indicates that treatment is: ‘Physiotherapy, specialist review’ and conjunctionally a plan was prepared for the Applicant outlining her allowable physical capabilities, namely:
1.        Avoid lifting anything heavier than 4kg.
2.        12 hours work in a fortnight.
3.        Continue usual study.[30]
[30] Exhibit 1, T21 at page 108.
The Applicant, on 11 January 2018, participated in a face-to-face Employment Services Assessment (‘ESA’) with a registered Occupational Therapist. The Assessor noted the medical certificate from the Applicant’s GP and noted that the Applicant stated she:
… Has five appointments a year for allied health professionals (e.g. Physiotherapist or Exercise Physiologist) to help improve her neck muscles. The client stated she last saw a Neurologist approximately six months ago and indicated she (sic) if her allied health treatment doesn’t help she will have steroid injections to her neck.[31]
[31] Exhibit 1, T26 at page 114.
The Applicant’s GP, Dr Khan, in a medical certificate dated 4 January 2018[32] again noted that the Applicant’s condition was permanent, the prognosis was uncertain and the treatment regime was medication, Physiotherapy and EP.
[32] Exhibit 1, T25 at page 112.
The Applicant, in her DSP Application[33] indicated that her medications consisted of Baclofen, Lyrica, Palexia, Tramadol, and pain killers. She also indicated that in addition to these pharmaceuticals, she was receiving physiotherapy, Sports Physiologists, Chiropractors and massage. She indicated also that the medication would be ongoing and permanent.[34]
[33] Exhibit 1, T28 at page 121 to 152 at 145.
[34] Ibid, page 146.
Dr Khan, in a medical report dated 29 May 2018, outlined a management plan for the Applicant as:
Management Plan advised -
1.    Reduced working hours and heavy lifting at work.
2.    Regular physio and EP review.
3.    Follow instructions provided by Neurologist.
It was noted further in Dr Khan’s report that:
Ms Mountford also has mixed anxiety and depression.
Under specialist care for the management.
The Tribunal notes that this is the first and only information available to it regarding the depression condition. The Tribunal therefore will not consider this condition for the purposes of this review as it does not constitute part of the DSP application, and in any event, there is insufficient evidence before the Tribunal to assign an impairment rating
The Applicant attended a further face-to-face ESA on 15 June 2020 conducted by an Exercise Physiologist.[35] This report noted, inter alia:
The claimant stated she has five appointments a year for allied health professionals (e.g. Physiotherapist or Exercise Physiologist) to help improve her muscles. The claimant stated she last saw a Neurologist approximately 12 months ago (but has been referred again) and indicated she (sic) if her allied health treatment doesn’t help she will have steroid injection/s to her neck.
[35] Exhibit 1, T33 at page 164.
The report further notes that this course of treatment had been recommended by Drs Forbes and Licina in their earlier report of 23 August 2017.[36]
[36] Ibid.
The Tribunal also notes the Applicant’s evidence to the hearing that the reason for not undertaking the Cortisone injections was because she was unable to afford them. The Applicant had only explored the possibility of receiving injections privately and the quotation for this procedure to be conducted by Drs Moore and O’Callaghan was annexed to the Respondent’s Statement of Facts, Issues and Contentions as Attachment ‘D’ and showed the combined total costs. The Applicant conceded, however, that she had not explored the possibility of seeking to receive injections through the public health system and expressed her view to the Tribunal she did not know if she would trust the public health system. The Applicant also expressed some concern that the procedure had to be carried out in a general surgical hospital because it entailed risks that were not able to be accommodated in a local surgery.
The Tribunal also notes the Applicant’s evidence to the AAT1 which mirrors her evidence to this Tribunal regarding her reluctance to undergo steroid injections as recommended. Her evidence to that Tribunal also indicated that any injection would provide only temporary pain relief and that it would not cure her underlying condition. Given that the pain from which the Applicant suffers it might be suggested that the proposed steroid injections would not be an unreasonable step to have taken in order to increase her mobility and reduce her discomfort. The Tribunal also notes her resistance to this procedure if she claims it poses risks to her and requires her to receive the treatment in hospital. The Tribunal accepts that most physically intrusive procedures do embody some risks to a greater or lesser degree, however, in the Applicant’s circumstances, the Tribunal considers that such risks are not so ‘unreasonable’ as to render the procedure unacceptable.

The Tribunal has noted the Applicant’s combined evidence, both to it and the AAT1, that she has a motor vehicle which has been modified to accommodate her limitations and that she has difficulty showering, brushing her hair and getting herself ready in the mornings. The Applicant also noted in her evidence that shopping and carrying her shopping is difficult because of the pain. It is also noted that she provided evidence to the AAT1 that:
She has to shop almost daily as she cannot carry many groceries. If she carried heavy things, such as a bag with three cans of food and another bag with a bottle of water on a bus trip from the shops, the next day ‘She would know about it’.
The Applicant’s evidence to the AAT1 was that she mopped the floors as that was easier for her than the motion of vacuuming and she needs to use both hands when using a light cooking pan. She told the AAT1 that she had various periods of employment with Sizzler, Pizza Capers, Boost Juice and Hog’s Breath, but was not physically capable of coping with that work. She also worked for a bookstore however, that business closed after a few months. She stated that she got on well with the customers and it appears that she was better suited to that role. She told the AAT1 that she didn’t think she could work in an office as she could not hold a phone to her ear and even sitting at a desk looking at a screen would cause problems with her neck. This Tribunal, however, had an opportunity to observe the Applicant in person for a reasonable period of time throughout the duration of the hearing. It was noted that the Applicant was able to sit without requiring any relief break, she was able to adequately articulate her cause and to answer questions without any apparent physical discomfort. She also moved from her position to the witness box with what appeared to be relative ease. The Tribunal also noted that the Applicant had prepared her own comprehensive Statement of Facts, Issues and Contentions in response to the Respondent’s material.
The Tribunal also observed and noted that during the discussion in the evidence regarding the possibility of her receiving steroid injections and the various aspects associated with that, the Applicant referred to a telephone call that she said she had had with one of her healthcare providers and that she had a recording of the telephone conversation but had not, however, done up a transcript of that conversation but that she could do it.
It would seem therefore that in the circumstances the Applicant is able to carry out certain functions of a clerical nature upon which her condition does not appear to impinge greatly.
The evidence before the Tribunal would indicate that pain associated with the Applicant’s underlying condition is, other than the restriction upon her movements, the other significant aspect of her condition coexisting with her reduced mobility. However, notwithstanding this, the Applicant has only sought professional assistance for physiotherapy and pain management at a time well past the relevant period.
The Applicant presented to the Entire Health Clinic for physiotherapy on 27 February 2019 for her initial consultation with Michael Fernandez. In a report dated 28 February 2019, Mr Fernandez confirmed the Applicant’s history of chronic neck pain and that she suffered from a moderate to severe degree of pain through her neck and upper thoracic region. He also noted she had a significant limitation of active range of neck movement. He described the treatment at this initial session as:
… Advice and education, gentle manual therapy and a home exercise program trying to restore her neck active mobility.[37]
[37] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment ‘A’.
The Tribunal also notes the letter of referral from Dr Khan, the Applicant’s GP, to Dr Brendan Moore dated 3 July 2019[38] which would appear to be the only evidence of any action taken to refer the Applicant to a Pain Specialist in accordance with the joint recommendation of Drs Forbes and Licina in their joint report of 23 August 2017.[39] The Tribunal further notes that a quotation dated 16 August 2019 for aspects of the execution of the steroid injection procedure to be conducted by Drs Moore and O’Callaghan is also before the Tribunal.[40]
[38] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment ‘B’..
[39] Ibid.
[40] Exhibit 2, Respondent’s Statement of Facts, Issue and Contentions, Attachment ‘D’.
The evidence to this Tribunal from the Applicant is that this procedure had not been carried out at the date of the hearing for the reasons previously herein outlined.
On 12 July 2019, Mr Fernandez, in a report following his review of the Applicant on even date, noted that (the Applicant) continued to report:
… Ongoing concerns with her chronic neck pain, upper limb strength and difficulty with ADL’s, particularly with tasks above shoulder height.
Mr Fernandez also noted that the Applicant’s tolerance and ability to perform functional tests was improved by her taking a 75 milligram dose of Palexia approximately two hours prior to her assessment.[41] This report was made well outside of the Relevant Period and the Applicant has produced no evidence to the Tribunal that the recommended treatment with steroid injections had yet been undertaken. It is clear to the Tribunal, as indicated by Mr Fernandez’ report, that prudent use of prescribed medication was able to produce a beneficial, albeit limited, effect upon the Applicant’s functionality. The Tribunal considers that the Applicant’s spinal condition could not be considered to be fully treated at the Relevant Period as all the recommended and reasonable treatments had not been undertaken by her at that time, namely physiotherapy and the steroid injections.
[41] Exhibit 2, Respondent’s Statement of Facts, Issues and Circumstances, Attachment ‘C’.
The Tribunal accepts the Secretary’s contention that a lessening of the pain suffered by the Applicant would certainly provide an opportunity to help improve her functional capacity. Further, until such reasonable treatment as physiotherapy and steroid injections had been undertaken to the extent her condition could be classified as stable, no meaningful assessment of the Applicant’s functional capacity could be undertaken. Also, the Tribunal finds that in the absence of such reasonable treatment, no evidence exists to indicate that undertaking such treatment would not result in significant functional improvements within two years or that any compelling reason exists for the Applicant not to undertake such treatment. The Tribunal finds that there is no evidence of available to it indicating that the recommended steroid injection treatment is unavailable within the public health system or not available at reasonable cost.
The Tribunal has also considered the Applicant’s reliance upon medical and other reports to support her contention that her condition was fully diagnosed, fully treated and fully stabilised, namely:
·Referral letter from Dr Priyantha Thotagamuwa to Enhanced Primary Care Program (‘EPC’) dated 14 July 2014[42];
·Report Mona Keen, Physiotherapist, dated 15 July 2014[43];
·Report Mona Keen, Physiotherapist, dated 9 October 2014[44];
·Report Dr Anna Beaton, Chiropractor (Locum), dated 23 January 2015[45];
[42] Exhibit 1, T9 at pages 64 to 70.
[43] Exhibit 1, T10 at 71.
[44] Exhibit, T12 at page 77.
[45] Exhibit 1, T15 at pages 95 and 96.
The Applicant considers that the letter of referral dated 14 July 2014 from Dr Thotagamuwa is no more than a referral to Queensland Physiotherapy and Sports Care Centre requesting its view if they would be agreeable to forming part of a care team to treat the Applicant. It is dated well before the Relevant Period and evidences no functional impairments caused by the Applicant’s condition. It serves simply to indicate that the Applicant was receiving treatment at that time for her spinal condition.
The two reports of Mona Keen likewise indicate that in 2014 the Applicant was receiving physiotherapy treatment for her condition which was ongoing, as indicated in the penultimate sentence of each of these letters:
I will keep you informed of [Name Redacted][46] progress in her physiotherapy treatment.
[46] The Tribunal has redacted the Applicant’s former name for confidentiality reasons.
They were both referring to a period of time outside of the Relevant Period and are not able to form part of this review.
The letter from Anna Beaton, the Locum Chiropractor who saw the Applicant on 23 January 2015, really went no further than a description of what the Applicant’s MRI images revealed to her and her confirmation by examination of the Applicant’s condition as it manifested to her at that time. This letter is dated well before the Relevant Period and also shows that the Applicant’s treatment was not fully completed at that time.
In the view of the Tribunal, none of these materials assist the Applicant because none relates to the Relevant Period and all indicate that the condition was unresolved and being assessed and treated on an ongoing basis from 2014 to early 2015.
The Tribunal has decided that based on the evidence that it has before it, that at the Relevant Period the Applicant’s spinal condition was fully diagnosed, not fully treated and not fully stabilised.
For completeness, the Tribunal considers that had the Applicant’s spinal condition been fully diagnosed, fully treated and stabilised at the Relevant Period, the appropriate Table under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011[47] (‘the Tables’) for the purpose of assessing the functional impairment of that condition would be Table 4 Spinal Function. The Table 4 descriptors required to meet the ratings of 5, 10 and 20 points are set forth in the following matrix:
[47] The Determination.

5

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

(1)        The person has some difficulty in:

(a)        activities over head height (e.g. activities requiring the person to look upwards); or

(b)        bending to knee level and straightening up again without difficulty; or

(c)        turning their trunk or moving their head (e.g. to look to the sides or upwards).

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 applies:

(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).

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.

It is the Tribunal’s opinion that had the Applicant’s condition been fully diagnosed, fully treated and fully stabilised at the Relevant Period, it would not have attracted a rating greater than five points and thus would not have met the criteria for ‘a severe rating’ of 20 points or more. The Tribunal thus agrees with the findings of the AAT1 in this regard.
The Applicant does not have a total of 20 or more impairment points under the Tables and thus, she does not satisfy the requirements under section 49(1)(b) of the Act (the second of the requirements for DSP). She therefore does not qualify under this application for DSP.
CONTINUING INABILITY TO WORK
Given the Applicant’s impairment was not fully diagnosed, treated and stabilised during the Relevant Period and that impairment does not reach 20 points or more during the Relevant Period, the Tribunal is not required to consider whether she satisfies the remaining criteria for DSP.
The Tribunal can only consider whether the Applicant’s condition was fully diagnosed, fully treated and fully stabilised as at the Relevant Period for this application. It may be that her conditions may have become fully diagnosed, fully treated and fully stabilised since that time or indeed may have worsened. Should the latter circumstance prevail, the Applicant may benefit from bringing a fresh application for DSP supported by further and more recent medical evidence.
CONCLUSION
The Applicant does not qualify for DSP because her condition is not able to be rated and hence cannot attract any impairment points during the Relevant Period.
Accordingly, the decision under review is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

.............................[SGD]....................................
Associate
Dated: 13 July 2020

Date(s) of hearing: 5 February 2020

Date final submissions received: 25 March 2020

Applicant: In person

Solicitors for the Respondent: C Murphy, Services Australia

[2020] AATA 2207

13 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	5 February 2020
Date final submissions received:	25 March 2020
Applicant:	In person
Solicitors for the Respondent:	C Murphy, Services Australia