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

Ngo and Secretary, Department of Social Services (Social services second review) [2020] AATA 368 (28 February 2020)
Division:GENERAL DIVISION
File Number:2019/0985
:ReChau-Son Ngo
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:28 February 2020
Place:Adelaide

The decision under review is set aside.
....................[sgnd].......................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY - disability support pension – cancellation of existing payment - medical review – whether Tribunal satisfied that applicant not qualified for DSP as at the date of cancellation – decision under review set aside.
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Conaghan v Secretary, Department of Social Services [2017] AATA 64
Freeman v Secretary Department of Social Security (1988) 15 ALD 671
Frugtniet v Australian Securities and Investments Commission (2019) 367 ALR 695
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
28 February 2020
INTRODUCTION

This application for review concerns a decision to cancel Mr Ngo’s disability support pension (DSP) on 7 August 2019.
Mr Ngo was granted the DSP on 25 August 2009. In June 2017, Centrelink commenced a medical eligibility review. Fourteen months later, on 7 August 2018, Centrelink cancelled Mr Ngo’s DSP.
Mr Ngo sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP.[1] Specifically, the ARO determined that Mr Ngo’s spinal condition was not fully treated and stabilised as he had not undergone all reasonable and available assessments and interventions. Secondly, the ARO determined that Mr Ngo’s upper limb disorder was not fully treated and stabilised as there was no medical evidence of specialist assessment and intervention. Accordingly they did not attract any impairment ratings under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
[1] Ex 2 T3/11.
Mr Ngo applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink’s decision. His application did not succeed. On 1 February 2019 the AAT1 affirmed the decision under review to cancel Mr Ngo’s DSP.[2]
[2] Ex 2 T2/3.
The AAT1 was satisfied that Mr Ngo’s spinal condition was fully diagnosed, treated and stabilised and attracted a rating of five points under Table 4 of the Impairment Tables. The AAT1 found that Mr Ngo’s shoulder condition was not fully diagnosed, treated and stabilised and thus did not attract any impairment points. With an impairment rating of less than 20 points, the AAT1 found that Mr Ngo was no longer qualified for the DSP, thereby affirming the decision of the ARO to cancel it.
Mr Ngo applied to this Tribunal for a review of the AAT1 decision on the basis that it was “not right and nothing change”.
The hearing took place on 24 October 2019. Mr Ngo was self-represented and gave evidence. The Secretary was represented by Ms J Edwards. The Tribunal was assisted by an interpreter in the Vietnamese language. The Tribunal received in evidence as exhibits various medical and associated reports, Centrelink reports and documents.
THE OPERATIVE DECISION
The decision under consideration is a decision to cancel the DSP, not a decision declining to grant the DSP.
In Freeman v Secretary Department of Social Security, regarding cancellation of a social security payment, the Federal Court described the jurisdiction of the Tribunal in this way:[3]
The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.
[3] (1988) 15 ALD 671, 673-674.
In Frugtniet v Australian Securities and Investments Commission the High Court described the question to be addressed by the Tribunal as follows :[4]
The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision
[4] (2019) 367 ALR 695 [51].
Section 80 of the the Social Security (Administration) Act 1999 (Administration Act) provides:
(1) if the Secretary is satisfied that the Social Security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the secretary is to determine that the payment is to be cancelled or suspended
The first requirement is to reach a state of satisfaction that on 7 August 2018 Mr Ngo, who was being paid a DSP, is not or was not qualified for the DSP. If that degree of satisfaction is achieved, the second and final issue is to determine either that the payment is cancelled or that it be suspended.
ISSUES
In the statement of facts and contentions before this Tribunal, the Secretary accepted that Mr Ngo suffered from an impairment arising from his spinal disorder and therefore met s 94(1)(a) of the Social Security Act 1991 (the Act).
The Secretary contended that the spinal disorder was not fully treated or stabilised at the DSP cancellation date as Mr Ngo had not undertaken reasonable treatment. Alternatively, the Secretary contended that if the Tribunal found that the condition was fully diagnosed, treated and stabilised, an impairment rating of 5 points should be applied under Impairment Table 4 (spinal function) , consistent with the AAT1 findings.
The Secretary contended that at the DSP cancellation date Mr Ngo’s upper limb disorder was fully diagnosed, though not fully treated and stabilised. In the alternative, if it were found that the shoulder condition was fully diagnosed, treated and stabilised, the appropriate rating should be 0 points under Impairment Table 2 (upper limb function)
Accordingly the Secretary contended that with an overall rating of 0 points, or alternatively 5 points, the impairment rating is less than the required 20 points and therefore Mr Ngo did not satisfy s 94(1)(b) of the Act. Further the Secretary contended that Mr Ngo did not have a continuing inability to work as required by s 94(1)(c) of the Act.
STATUTORY FRAMEWORK
The Act sets out the qualification criteria for DSP. Section 94(1) of the Act provides that an applicant must have:
·a physical, intellectual or psychiatric impairment;
·an impairment of 20 points or more under the Impairment Tables; and
·a continuing inability to work.
Under s 94(2) of the Act a person is regarded as having a “continuing inability to work” if:
·they have an inability to work due to their accepted impairments for 15 hours or more a week; and
·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.
Under s 80 of the Administration Act the Secretary may determine that a social security payment should be cancelled or suspended for a person who is not or was not qualified for the payment.
Under s 63 of the Administration Act the Secretary may require a person who is receiving a social security payment to undergo a medical examination. A notice under s 63 of the Administration Act was given to Mr Ngo (s 63 notice).
The Secretary made a determination under s 80 of the Administration Act to cancel Mr Ngo’s DSP. In making that decision the Secretary was required by s 27(3) of the Act to apply the Impairment Tables in force as at the date of the assessment notice that was given to Mr Ngo. The notice was dated 15 June 2017.[5]
[5] Ex 2 T12/184.
Mr Ngo had been granted the DSP under qualification criteria that were different from the qualification criteria in force from 1 January 2012 when the Act was amended. From 1 January 2012 the qualification for DSP is assessed using a different version of the Impairment Tables. Broadly speaking, they introduce more stringent criteria for DSP qualification.
EVIDENCE OF MR NGO
Mr Ngo gave evidence to the Tribunal about the effects of his spinal condition and shoulder condition.
Mr Ngo is 48 years old. He resides in the western suburbs of Adelaide and leads a quiet, relatively isolated existence. He is single. He rents a room in a house with others. Mostly he spends the day at home. He drives to and from the shopping centre nearby. He eats processed food rather than cooking meals. He goes for walks and generally they last for about 10 minutes.
Mr Ngo told the Tribunal about the problems he has with his spinal condition. The main difficulty is low back pain which is constant. He also has pins and needles in his legs, especially in the left leg. Because of the pain in the lower back he is unable to bend forward to pick up things from the ground. He has to squat to pick things up. He can only drive short distances in his car because of back stiffness when sitting. Those trips are generally local trips.
Mr Ngo said that he can move his head in different directions, although sometimes there is pain on the left side. He has difficulty with overhead movements with his arms. He can bend to the knee and then straighten up. He can pick up an object at knee height. The back pain adversely affects his sleep.
Mr Ngo takes medication for the lower back pain. The medication is prescribed by his general medical practitioner, Dr Anh-Tuan Ngo whom he sees from time to time and generally only when a script has run out. He has not been having physiotherapy as it has not succeeded in reducing the effects of the back pain. He relies on medication to get him through. Dr Anh-Tuan Ngo was treating Mr Ngo in 2008 at the time of his DSP claim. He still is Mr Ngo’s treating doctor.
Mr Ngo told the Tribunal that he suffers pain in both shoulders. The pain is worse in the right shoulder. He has refused cortisone injections as he is fearful about having them. He has not had physiotherapy treatment for the shoulder pain. The pain in the shoulders started about two or three years ago. Dr Anh-Tuan Ngo prescribes medication for the shoulder pain. Mr Ngo can handle small objects. He can use a computer keyboard.
Sometime after the DSP cancellation Dr Anh-Tuan Ngo arranged for a referral to the Royal Adelaide Hospital for specialist review and assessment of the spinal condition and shoulder condition. Mr Ngo thinks that the referral was made late in 2018. He said he is on a waiting list and does not know when the assessment will occur. He said that his back is getting worse, the pain killers are not working and he would benefit from a specialist’s opinion.
PROCESS LEADING TO DSP CANCELATION
Centrelink wrote to Mr Ngo on 15 June 2017.[6] The body of the letter is contained in two pages. This was the s 63 notice.
[6] Ex 2 T12/184.
The heading on the letter is – ‘Your Disability Support Pension – Medical Eligibility Review.” The letter states that it is a notice given under section 63 of the Administration Act. The first two paragraphs of the letter state:
It is important that we have up-to-date information about your medical conditions to make sure the Disability Support Pension continues to be the right income support payment for you. Over time, the eligibility rules for the Disability Support Pension have changed and for some people, their medical conditions and personal circumstances also change, including the medical treatment being received.
We are asking you to provide current medical evidence from your treating health professionals to help us assess how your condition/s affects your ability to work. We do not always have the full details of people’s condition/s in our records, so please let us know even if the nature of your condition/s hasn’t changed.
Next, under the subheading – “What you need to do”. - the letter advises Mr Ngo to follow the instructions set out in the letter so that Centrelink can complete the review and “update our records”
The letter goes on to state that current medical evidence should be provided by 6 July 2017 that is within a period of about three weeks. A form to provide signed consent to disclose medical information was enclosed. The letter states that Mr Ngo may be asked to attend a job capacity assessment and a disability medical assessment.
In the consent to disclose medical information form attached to the s 63 notice, Centrelink states that it may contact the treating health professional and health provider to clarify or confirm information.
The third to last paragraph towards the end of the second page of the s 63 notice states “If you do not provide us with current medical evidence or call us by 6 July 2017, your payment may be stopped”.
Also attached to the s 63 notice is a one page document titled ‘Disability Support Pension Review Medical Evidence Requirements.’ It includes this direction:[7]
You need to provide suitable medical evidence within 21 days of being notified of this review or as soon as possible afterwards. If you do not provide evidence within 21 days your payments may be stopped…. If you do not provide sufficient current medical evidence we may take longer to finalise your review, or payments may be stopped.
[7] Ex 2 T12/187.
Mr Ngo signed the consent form on 28 June 2017[8] which is shortly after receipt of the s 63 notice. In the absence of any evidence to the contrary it would appear that the signed consent form was returned to Centrelink in a timely manner. Dr Anh-Tuan Ngo provided a medical certificate dated 12 December 2017 which is some six months later.
[8] Ex 2 T10/137.
Supporting evidence obtained prior to DSP cancellation
In addition to records generated in 2008 and 2009 relating to Mr Ngo’s DSP claim, Centrelink acquired contemporary information following the issue of the s 63 notice.
In the letter to Mr Ngo on 10 October 2018 the ARO listed the documents which set out the totality of the information taken into account in the decision to cancel the DSP.[9] Those documents are discussed in detail below.
Medical certificate completed by Dr Ngo (General practitioner) on 12 December 2017[10]
[9] Ex 2 T3/11.
[10] Ex 2 T10/139.
This document was provided in response to the section 63 notice. It comprises a one-page, pro forma, Centrelink medical certificate which was filled out by hand, signed by Dr Anh-Tuan Ngo and dated 12 December 2017.[11]The hand written responses are mostly decipherable and where a word is indecipherable the meaning is reasonably clear on close examination.
[11] Ex 2 T10/139.
The medical certificate[12] includes a diagnosis of chronic low back pain with date of onset in November 2008, with current symptoms including low back pain and restriction of movements of the back, treatment currently by Panadeine Fort, with planned treatment being a request for a CT scan. The condition was described as permanent, that is likely to persist for two years or more and the incapacity for work or study was noted as less than three months. In relation to right shoulder pain and bursitis, the onset of the condition was stated to be 20 September 2017. The condition was temporary with symptoms of right shoulder pain and restriction of movement of the shoulder. Current treatment was medication and planned treatment was an x-ray of the right shoulder.
[12] Ex 2 T10/139.
Imaging report by Benson radiology completed on 22 December 2017
This report[13] summarises the results of the scan of the lumbar spine which showed moderate degenerative changes at the L4/5 and L5/S1 levels. There was mild canal stenosis at the L4/5 levels with foraminal stenosis bilaterally and also mild bilateral foraminal narrowing at the L5/S1 level. The more pronounced facet joint degenerative changes were at the L4/5 level and likely irritation of the existing L4 nerves.
[13] Ex 2 T10/138.
The report from Benson Radiology also included the results of an x-ray and ultrasound of the left shoulder as sub-acromial – sub deltoid bursitis and mild supraspinatus tendinosis.[14]
[14] Ex 2 T10/141.
Additional medical evidence for Disability Support Pension provided by Dr Ngo on 20 December 2017
This evidence was summarised in a Centrelink document dated 20 December 2017 entitled “Additional Medical Evidence for Disability Support Pension Record - For Internal Use Only” (Centrelink form).[15] It is a two-page pro-forma document that contains brief, typed notes of a telephone conversation between a Centrelink officer identified in the document as Bert (Centrelink officer), and Dr Anh-Tuan Ngo. It is a “tick a box” document which also has small spaces in some of the boxes for brief comments.
[15] Ex 2 T10/135.
The additional medical evidence obtained by the Centrelink officer during the telephone conversation with Dr Anh-Tuan Ngo on 20 December 2017 records the following relevant details:
Contacted GP to clarify symptoms and treatments
Dates of temporary incapacity 12 – 12 – 2017 to 12 – 03 – 2018
Condition 1- chronic lower back pain (disc protrusion at L4/5 in 2008), permanent – N F D TS –limitations to standing/sitting or driving to 60 minutes, unable to lift and carry heavy objects,
Dr Anh-Tuan Ngo stated that he referred the recipient to the Adelaide Hospital for a spinal review years ago and was not aware of any follow-up or treatments.
Condition 2- bursitis in the right shoulder, temporary condition, diagnosed 20 / 09 /2017, symptoms - shoulder pain, past/current/planned treatment - analgesia,
Dr Anh-Tuan Ngo was unsure about any treatments for back pain as he has not treated the recipient for several years.
NFDTS, in relating to condition 1, would be a shorthand reference to the Impairment Tables for a condition being not fully diagnosed, treated and stabilised, and in this instance in the context of Mr Ngo’s lower back pain.
Item 4 in the form is described as the reason for obtaining additional medical evidence. Of the 6 boxes on offer, only one of them has a tick and that box is – “Potential DSP manifest grant/continuation.” The next box, which is not ticked is – “Potential DSP manifest rejection/cancelation.” The other boxes relate to aspects of medical treatment and diagnosis.
Job Capacity Assessment Report (JCA) dated 2 February 2018
This was the next step to obtain further evidence. It consisted of a face to face interview on 1 February 2018 with Mr Ngo conducted by an assessor in the presence of an interpreter in the Vietnamese language.
Following the interview, a JCA report dated 2 February 2018 was compiled. It found that Mr Ngo’s spinal condition is verified by medical evidence, permanent and fully diagnosed, treated and stabilised. The report referred to the condition as long standing. Mr Ngo told the assessor that he could sit for 20 minutes before becoming numb in the thigh and in the lower back. He said that he was unable to bend easily. He reported that he had physiotherapy 10 years ago but it did not help. He had not seen an orthopaedic specialist or neurosurgeon.
The JCA report found that there was unlikely to be any significant functional improvement in the spinal condition in the next 24 months. The JCA report recorded a mild functional impact on activities involving spinal function noting that Mr Ngo has some difficulty in bending to knee level and straightening up again, and that he has chronic back pain which was long standing.

The JCA report referred to the shoulder and upper arm disorder and noted that it was verified by medical evidence. However it was concluded that only limited treatment had been undertaken. This condition was not considered to be fully diagnosed, treated and stabilised. In relation to the impact of this condition the JCA report noted that the right shoulder pain affected Mr Ngo’s ability to reach overhead, he experiences left shoulder pain which makes lifting difficult, his housemates do most of the cleaning, he is able to go shopping and catch public transport, and he did not report any significant difficulties with tasks involving fine finger manipulation.
The JCA report assessed a baseline work capacity of 8 to 14 hours per week with potential suitable work in light, less skilled activities. The report stated:
…work capacity is reduced to 8 to 14 hours due to impacts of shoulder and spinal conditions affecting ability to sit, stand, bend, lift and reach. With assistance from disability employment services – disability management services (DES – DMS) the client will be able to build work capacity and identify suitable work goals.
For future job support, the JCA report noted that Mr Ngo would require specialised assistance with an emphasis on capacity building and there is a capacity for work within two years with intervention of 15 to 22 hours per week.
The JCA report noted that barriers to employment would be physical limitations restricting the type of work, language and communication issues, and no or limited employment history.
Letter advising Mr Ngo of a review of medical eligibility to DSP dated 10 August 2018
This letter contains the details of the outcome of the medical eligibility review
The letter to Mr Ngo advising that DSP would recommence dated 24 September 2018
This letter provides details about finalisation of payments
The letter to Mr Ngo advising he was no longer eligible for DSP from 18 September 2018 dated 18 September 2018
None of the three letters add to the body of medical information about Mr Ngo’s conditions.
Information provided “during our discussion” on 6 October 2018
No evidence was adduced about this discussion
Records maintained by the department
Records in the Centrelink files which arose out of Mr Ngo’s DSP claim in 2009 include JCA reports from 2008 and 2009.
In a JCA report dated 13 October 2009[16] some background information indicated that Mr Ngo had arrived in Australia in 1990 after 4 years in a refugee camp in the Philippines. He gained some English training while he was in the refugee camp. According to the report he left Vietnam when he was 17. He does not have family in Australia. He worked for two years in mining supply and then for a furniture manufacturer for six months. Following a back injury he was unable to continue working apart from some seasonal work in 2008 and 2009. The medical issues and functional impact were described as follows:[17]
Spinal disorder – chronic low back pain with left sciatica – current treatment includes analgesics and anti-inflammatory medication daily (Celebrex, Tramal and Bruffen). Client currently has physiotherapy regularly with minimal improvement. Chronic low back pain with left sciatica interfering with ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty, however, chronic pain is a significant factor contributing to clients overall functional impairment. Pain and loss of normal range of motion moment in low back with referred pain and persistent numbness to left leg impacts on ability to sit for more than 15 minutes, able to walk at a slow pace with frequent rest periods, lifting more than 5 kg, climbing stairs and bending is restricted by pain. Symptoms cause significant interference with mobility and ability to perform or persist with work-related tasks… client requires assistance with transport as using public transport aggravates pain in lower back. Client is on waiting list for treatment to manage pain at the Royal Adelaide Hospital with referral to Professor Riley, spinal surgeon, dated 4/9/09. Due to long waiting list this treatment will be delayed for some time and any possible functional improvement as a consequence will not be expected to be realised for more than two years. Medical report indicates that the impact of this condition on client’s ability to function is expected to further deteriorate within the next two years. Assessor notes that client’s condition has further deteriorated in the past few months with more recent medical report indicating that pain in lower back is now identified as chronic.
[16] Ex 2 T9/126.
[17] Ex 2 T9/126.
The JCA report also referred to Mr Ngo’s gastroenterological disorder. The treatment included medication on a daily basis to manage symptoms which included significant side-effects which were apparently the consequence of the medication prescribed for the spinal problems. The report added:[18]
Medication required for back pain has caused inflammation of oesophageal and gastric areas causing further pain and discomfort. Symptoms include nausea and vomiting interfering episodically with ability to consistently attend work. This condition is not optimally treated and stabilised at present and the impact of this condition on his ability to function could reasonably be expected to improve with further intervention within the next two years.
[18] Ex 2 T9/126.
The report noted that personal factors have a moderate impact on Mr Ngo’s ability to work, obtain work or look for work. Those factors include a limited ability to speak and understand English, limited skills and recent work experience, limited support network and transport difficulties. Recommended employment assistance would be within the disability employment network.
CONSIDERATION
Process
The process leading to cancellation of Mr Ngo’s DSP commenced with correspondence from Centrelink to Mr Ngo (the s 63 notice), with the notification that it was a medical eligibility review. The first page of the letter gives the impression that it is an administrative process to obtain current medical evidence and to ensure that Centrelink records are updated and current. However, it is much more than that. As the letter states further on, the payment may be stopped.
The s 63 notice signalled the commencement of a review about 8 years after Mr Ngo was granted the DSP. It was a review which might lead to suspension or cancellation of the DSP. On the assumption that Mr Ngo would receive the s 63 notice in the post with due speed, it would give him about 3 weeks in which to gather together his evidence.
As it happened, Mr Ngo appears to have complied with the notice. Mr Ngo’s GP did not provide the requested information in a timely way. However, there is no evidence to suggest Centrelink was inflexible with the timeframes and there is no evidence that Mr Ngo was the cause of any delay.
The format of the pro-forma medical certificate, that is, the certificate which Dr Anh- Tuan Ngo signed on 12 December 2017, requires the doctor to comment briefly on a primary condition and a secondary/related condition, noting the date of onset, the prognosis, the symptoms, and the treatment and, in relation to the primary condition, the fitness for work or study. It does not seek a full or comprehensive medical history.
Having received the brief medical certificate from Dr Ngo, Centrelink endeavoured to obtain more information, or clarification of the information that it already had, to enable it to carry out its review. Accordingly the Centrelink Officer was assigned to contact Dr Anh- Tuan Ngo by telephone and, as noted in the form, to clarify symptoms and treatments. According to the record the contact was being made in the context of a potential DSP continuation, not in the context of a potential DSP cancellation.
Subsequently Centrelink proceeded to obtain further information by interviewing Mr Ngo for the purpose of a job capacity assessment report. Mr Ngo attended a Centrelink office and he was supported by an interpreter at the interview conducted by an assessor on 1 February 2018. The JCA report was compiled on 2 February 2018 following that interview.
Documentary evidence
The material available to the Secretary at the time of cancellation comprises the documents which have been summarised above. It is material gathered in response to the s 63 notice in 2017 and the material gathered many years earlier in the JCA reports in 2008 and 2009.
The Centrelink form completed by the Centrelink officer does not usefully add to the information contained in Dr Anh-Tuan Ngo's medical certificate and the report from Benson radiology dated 22 December 2017.
The recording of the conditions in the Centrelink form is not helpful. The detail is brief. The reference to the bursitis in the right shoulder is consistent with the medical certificate which Dr Anh-Tuan Ngo compiled. But it is not consistent with the Benson Radiology report dated 22 December 2017 which refers to an x-ray of the left shoulder and ultrasound of the left shoulder.
The only medical report which the Secretary acquired in response to the s 63 notice comprises a brief hand written, one page pro forma certificate from Mr Ngo’s general medical practitioner.
That medical report was supplemented by the one page radiology report which is partly inconsistent with the medical certificate in relation to the upper limb condition. The inconsistency was left unaddressed by the Centrelink form and by the JCA Report.
The only additional information to be gleaned from the Centrelink form[19] relates to brief summaries of the symptoms and functional impacts of the back condition and the upper limb conditions, together with two other comments. One was that Mr Anh-Tuan was not aware of follow-up or treatments. It is not clear if this is or is not in relation to a specialist review. The other comment suggests that Dr Anh-Tuan Ngo had not treated “the recipient “for several years.
[19] Ex 2 T10/136.
A JCA report is not a medical report. A rehabilitation counsellor was the author of the February 2018 report. That report provided Centrelink with a summary of Mr Ngo’s responses during his interview with the assessor, a review by the assessor of the medical evidence and an assessment of Mr Ngo’s functional capacity for work based on that information.
The s 63 notice pointed out that Mr Ngo may be asked to attend a job capacity assessment and a disability medical assessment. While he was subsequently requested to attend a job capacity assessment and did so, he was not requested to attend a disability medical assessment.
In total, therefore, the decision to cancel Mr Ngo’s DSP was informed by contemporaneous material gathered in response to the s 63 notice, that comprised a one-page pro forma medical certificate, a brief internal note of a conversation between a Centrelink officer and the general medical practitioner, a one page report from a radiologist and a job capacity assessment report. Centrelink also had available the material from 2008 and 2009 compiled during the assessment of the original claim.
Subsequent medical evidence
The subsequent medical evidence which Mr Ngo was able to obtain and provide subsequent to the DSP cancellation consisted of two medical reports by Dr Anh-Tuan Ngo and two radiology reports. That evidence was admitted and is relevant to the correctness of the cancellation decision to the extent that it can cast light on the position at that time.
In Conaghan and Secretary, Department of Social Services (Social services second review) the Tribunal, comprising Senior Member Sosso, confirmed in relation to a DSP cancellation on 15 April 2015 at:[20]
The central question to be determined by the Tribunal is whether the Applicant was qualified for the DSP on the day it was cancelled … and not at the time the cancellation decision was reviewed by the Tribunal – Freeman v Secretary, Department of Social Security [1988] FCA 294; 19 FCR 342 at [9] per Davies J.
In reaching its decision the Tribunal is not limited to considering the material that was presented to the original decision-maker. The Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 – Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.
In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.
[20] [2017] AATA 64 [29]-[31].
In a hand-written report dated 5 November 2018 Dr Anh-Tuan Ngo wrote that Mr Ngo suffered chronic low back pain at the L4 – L5 – S1 level, right shoulder pain due to bursitis and supra-spinatus tendinosis, and gastritis and allergic dermatitis. He wrote that those conditions need a long time to recover and the conditions affect severely his ability to work and his day-to-day life. He wrote that Mr Ngo had consulted a psychologist for anxiety and depression.
Subsequently, Dr Anh-Tuan Ngo wrote a report by hand dated 30 May 2019 in which he confirmed a diagnosis of chronic low back pain with protrusion of L4 – L5 – S1 and nerve root compromise, right shoulder pain with bursitis of sub acromial and sub deltoid bursa, mild supraspinatus tendinosis, gastritis and allergic dermatitis. Dr Anh-Tuan Ngo wrote that the prognosis is guarded, treatment by medication was continuing, the conditions need a long time to recover, and that the conditions continue to affect severely Mr Ngo's ability to work and his day-to-day life.
A report from Benson radiology dated 15 February 2019 reported findings which included early osteo-arthritis affecting the facet joints at L3 – 4, and also at L4 – 5, with mild stenosis of the canal at the level of the disc secondary to the degenerative changes, early disc degeneration at the L5 – S1 level with osteoarthritis affecting the facet joints.
A report from Benson radiology dated 28 February 2019 set out the results of bilateral shoulder x-ray and ultrasound. A summary of the findings included no cuff tear at either shoulder, however there was bilateral supraspinatus tendinosis and bursitis with bursal thickening more pronounced on the right.
In his report dated 30 May 2019 Dr Anh-Tuan Ngo referred to a prognosis which was guarded and a long period of time was needed for recovery. Once more he wrote about the severe effect on Mr Ngo’s ability to work and to carry out day-to-day activities.
Clearly, the content in these two reports which post-date the cancellation decision provide greater substance and clarity, and less inconsistency than was evident from the material acquired by the s 63 notice.
The 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.
Section 6(5) of the Impairment Tables provides that a decision on 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.
The Impairment Tables define the concept of reasonable treatment:
Rule 6(7) of the Impairment Tables specifies reasonable treatment as treatment that:
(a)   is available at a location reasonably accessible to the person; and
(b)   is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d)   is regularly undertaken or performed; and
(e)   has a high success rate; and
(f)    carries a low risk to the person.
There are two principal components to Mr Ngo’s medical presentation in respect of his eligibility for DSP at the date of cancellation, namely the spinal condition and the shoulder condition. Other conditions, about which there is little evidence, include gastritis, dermatitis, anxiety and depression.
Spinal condition
In support of the contention that Mr Ngo’s spinal condition was not fully treated or fully stabilised at the cancellation date, the Secretary submitted that the corroborating medical evidence about treatment for the spinal condition was very limited. The Secretary contended that there is no corroborating evidence from a physiotherapist or from any medical practitioner to confirm the details of physiotherapy, in particular when it occurred, the number of sessions that took place and the response to treatment. The Secretary submitted that Dr Anh-Tuan Ngo did not report physiotherapy as a past or present treatment.
The JCA report dated 13 October 2009 stated that Mr Ngo was having physiotherapy regularly with minimal improvement
In his evidence Mr Ngo recalled receiving some physiotherapy treatment at the Parks Community Centre a long time ago. It could have been before the DSP was granted to him.
The s 63 notice to Mr Ngo does not include a specific request that he provide corroborating evidence from a physiotherapist or a second medical practitioner. The letter asks only that he provide “current medical evidence.’ That is precisely what occurred.
There is no evidence to suggest that Centrelink asked Mr Ngo during the period of the medical review, a period of several months, specifically to provide evidence from a physiotherapist or an additional medical practitioner confirming treatment by a physiotherapist.
Some medical attention continued intermittently for nine years between granting the DSP and cancelling it. The Tribunal accepts Mr Ngo’s evidence that the treatment was by way of medication and when he required a script from the GP, there was a consultation and provision of a script.
The Secretary submitted that it appeared that Dr Anh-Tuan Ngo had referred Mr Ngo to a spinal surgeon many years earlier and that there was no record of the consultation or its outcome. In particular, the Secretary submitted there was no evidence from a specialist confirming that Mr Ngo ever attended a review; there was no evidence of treatment that may have been recommended, the prognosis and result. Accordingly it was submitted by the Secretary that even though the spinal condition was of long duration, the Tribunal should not be satisfied that the condition was fully treated and fully stabilised at the cancellation date.
The JCA report dated 13 October 2009[21] noted that Mr Ngo was on a waiting list for treatment at the Royal Adelaide Hospital with a referral to a spinal surgeon dated 4 September 2009. Due to a long waiting list it was noted that the treatment would be delayed for some time.
[21] Ex 2 T9/120.
Mr Ngo told the Tribunal that he last saw a spine specialist many years ago. Subsequent to the cancellation of the DSP, although the evidence is not completely clear, it seems that Mr Ngo is on a waiting list again to see a specialist at the Royal Adelaide Hospital. It seems likely that this referral occurred in the aftermath of the DSP cancellation decision.

The Secretary submitted that Mr Ngo had not undertaken any treatment other than over-the-counter analgesics. Accordingly the Secretary submitted that in the absence of any other treatment having been undertaken, the Tribunal should not be satisfied that the spinal condition was fully treated and stabilised, even though the condition was “long-standing.”
There was no requirement, however, subsequent to the grant of the DSP that Mr Ngo consult a physiotherapist, a medical practitioner, a specialist, or any other practitioner on any basis.
Shoulder condition
The JCA report dated 2 February 2018 notes the inconsistency between the Benson radiology report and the record of conversation with the Centrelink officer regarding the left shoulder and the right shoulder. The JCA report does not attempt to clarify and resolve the inconsistency.
Dr Ngo’s reports written on 5 November 2018 and 30 May 2019 refer to right shoulder pain with bursitis. The report from Benson radiology dated 28 February 2019 provided the results of a bilateral shoulder x-ray and Ultrasound. The summary of the results included bursal thickening being more pronounced on the right shoulder, with tendinosis at the supraspinatus insertions bilaterally.
Mr Ngo was adamant in his evidence that he had not had cortisone injections which were offered. He refused them as he said he was not comfortable with injections. Dr Anh-Tuan Ngo’s reports refer to injections administered by Benson radiology on 22 December 2017.
The Secretary contended that the right shoulder condition was not fully treated and stabilised, while there was no evidence to corroborate a left shoulder condition.
Section 80 Administration Act
As indicated previously, for the payment to be stopped, the Secretary and on merits review, the Tribunal must first be satisfied that the DSP was being paid or had been paid to Mr Ngo when he was not qualified for the payment.
In order to be satisfied under s 80(1)(a) of the Administration Act that Mr Ngo was not qualified for the payment that he was receiving there must be adequate and reliable material to reach a level of satisfaction that he was not qualified for the payment.
By the end of 2017 the contemporaneous details of Mr Ngo’s medical history were brief and inconsistent. The Centrelink officer’s attempt to clarify the inadequate medical information did not succeed. Moreover, it made matters less clear and more confusing.
The next and final part of the process to gather information took place in early 2018. It was the interview with the JCA. However that interview did not add to the medical history. It did not provide any further corroborating medical evidence. It provided some brief, additional commentary from Mr Ngo together with the assessor’s conclusions about Mr Ngo’s work capacity.
The Centrelink form that recorded the conversation between the Centrelink officer and Dr Anh-Tuan Ngo on 17 December 2017 serves only to sow seeds of doubt and confusion. It is not clear whether this confusion arises out of communication and difficulties with interpretation of what Dr Anh-Tuan Ngo was saying. The cause of the confusion is one thing. The result of the confusion is another and it is the result which is important. In particular, the brief comments that were recorded about the shoulder condition are unclear. The comment about Dr Anh-Tuan Ngo not providing treatment for several years is unclear. In all, the record does not fill in gaps and answer queries which arise out of the medical certificate
The inconsistencies in the medical information, radiology information and Centrelink form have been illustrated. The inconsistencies should have been troubling as they are not minor. Moreover, if there were any attempts during Centrelink’s medical review to reconcile the basic inconsistences, they are not documented.
The inescapable conclusion is that the corroborating evidence which was requested and obtained was sparse and inconsistent.
Rule 6(2) of the Impairment Tables states that the Tables can only be used after the person’s medical history in relation to the condition causing the impairment has been considered. The medical history that was obtained by the s 63 notice was too brief and unreliable to be regarded as a medical history sufficient for the purpose of applying the Impairment Tables to a cancellation decision.
In assessing a person’s qualification for DSP, the person’s medical history must be considered. The detail of medical reports is crucial to the application of the Impairment Tables and the assignment of an impairment rating. When a person applies for the DSP it is both necessary and in the applicant’s best interest to provide as complete a history as possible to support the application
In a DSP cancellation or suspension, steps must be taken to ensure, to the extent possible, that all relevant aspects of the DSP recipient’s medical history are available for consideration, following thorough and diligent efforts to obtain that information. Ideally, the history should comprise written information which is clear and relevant to the question that is being addressed. It should provide details of each medical condition, of such sufficiency and reliability that it enables a decision maker to make a properly informed assessment of the medical history and other relevant information regarding the functional impairment and impact of that medical condition. The JCA reports about Mr Ngo from 2008 and 2009 provide an important, historical context to Mr Ngo’s DSP claim. They do not, however, provide contemporary material, at the time of the medical review in 2017.
The two reports by Dr Anh-Tuan Ngo subsequent to the cancellation decision cast light on the position at the time of the DSP cancellation. They provide important additional content and perspectives which suggest that Mr Ngo’s conditions and impairments were considerably more serious than the picture conveyed by the previous brief and inconsistent reports and records generated by the s 63 notice.
For example in the report dated 5 November 2018 Dr Anh-Tuan Ngo comments on the prognosis from the back pain and from the shoulder pain. He wrote that the conditions needed a long time to recover and that they affected severely Mr Ngo’s capacity to work and his day-to-day activity.
It is important to keep in mind that the Tribunal’s function in this review does not include the acquisition of all of the powers available to Centrelink in relation to a DSP medical review. The Tribunal acquires only those powers necessary to review the Secretary’s decision. The Tribunal does not have the investigatory powers which Centrelink has, for example to direct a DSP recipient to attend a disability medical assessment.
Potentially, a disability medical assessment would have provided further content and it could have addressed the inconsistencies in the information that was obtained in the review. For example, an assessment may comprise a specialist review and commentary on the existing reports. It may comprise a medical examination and assessment of the DSP recipient and a report and professional opinion following the assessment. The process can involve consultation with specialist medical practitioners with expertise in particular fields of practice. However, Centrelink did not proceed with a medical assessment of Mr Ngo.
The Tribunal considers that the medical history that was obtained prior to Mr Ngo’s DSP cancellation was inadequate. The inadequacy is of such significance that it would be unsafe to rely on that material to apply the Impairment Tables as a precursor for , or in relation to, a decision to cancel or suspend Mr Ngo’s DSP.
Furthermore, the Tribunal is not satisfied that it would be preferable in the current application for review to assess all of the material, namely the reports from both pre-DSP cancellation and from post-DSP cancellation , to determine whether the conditions concerning the spine and shoulders, were fully diagnosed, treated and stabilised in accordance with criteria in the Impairment Tables. As indicated, the subsequent medical reports tend to show the unreliability and incompleteness of the information relied upon at the time of the DSP cancellation. However, the subsequent medical evidence does not clarify and resolve the deficiencies in that material. The Tribunal is still left with a significant lack of detail and elements of doubt regarding the reports about Mr Ngo’s medical history.
Inadequate reports about a person’s medical history do not provide a proper basis for the application of the Impairment Tables, particularly when the issue is the cancellation or suspension of a payment.
SUMMARY
In summary, there are substantial flaws and inconsistencies, in the material which Centrelink obtained in response to the s 63 notice. That material, together with subsequent documentary and oral evidence, does not provide a fair, safe and reasonable basis for a decision-maker to reach a level of satisfaction required by s 80(1)(a) of the Administration Act
Accordingly, the Tribunal is not satisfied that on 7 August 2018 Mr Ngo, who was being paid a DSP, was not qualified for the DSP. Without that level of satisfaction, the cancellation or suspension of the payment does not fall for determination (s 80(1)(a)& (b) Administration Act)
In all the circumstances, the correct or preferable decision is to set aside the decision under review.
This decision does not prevent the Secretary from undertaking another medical eligibility review. If there is another review, it would enable Centrelink to take into account the medical and radiological information in the reports from 2018 and 2019. Upon further consideration of that material, the Secretary may elect to use the powers ,pursuant to S 63 of the Administration Act to direct Mr Ngo to undergo medical examinations and to attend a further work capacity assessment .The Tribunal does not have that authority. . It might also include consideration of further, specialist reviews which Mr Ngo’s doctor has arranged.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review that cancelled Mr Ngo’s DSP.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for the decision herein of

Member I Thompson.

.................[sgnd]........................
Administrative Assistant Legal
Dated: 28 February 2020
Dates of hearing:   24 October 2019
Applicant:  In person
Respondent’s representative:   Ms J Edwards, Department of Human Services

[2020] AATA 368

28 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction