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

NTVP and Secretary, Department of Social Services (Social services second review) [2020] AATA 801 (14 April 2020)
Division:GENERAL DIVISION
File Number: 2019/5980
Re:NTVP
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO Member
Date:14 April 2020
Place:Melbourne

The Tribunal affirms the decision under review
..............[sgd].........................................
Ms Anna Burke AO Member

Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – from diabetes, coronary artery disease, hypertension, depression and anxiety, diabetic retinopathy, postsurgical right eye cataract complications, diabetic neuropathy, urological disorder, tuberculosis, lower back pain, chronic muscle and joint pain – whether impairment attracts rating of 20 points or more under Impairment Tables – whether a program of support has been undertaken – whether continuing inability to work – decision under review affirmed on the papers

Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Secondary Materials
Guide to Social Security Law, Department of Social Service
REASONS FOR DECISION
Ms Anna Burke AO Member
14 April 2020
INTRODUCTION

NTVP (the Applicant) is seeking a second-tier review of a decision from the Social Services and Child Support Division of the Administrative Appeals Tribunal which affirmed a decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 19 July 2019, Centrelink found that NTVP was not entitled to the DSP, as he did not meet the requirements of the Act. Centrelink is the service provider for Services Australia (formerly the Department of Human Services).
The application was heard on the papers on 27 March 2020. NTVP was self-represented and Ms Lyndal Ablett, Senior Lawyer of Australian Government Solicitors, represented the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether NTVP:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
According to Centrelink records, NTVP was born in 1959 and is currently 60 years of age. However, in a written statement to Centrelink, NTVP claimed to be 65 years old and stated that his age was incorrectly recorded by the United Nations High Commissioner for Refugees (UNHCR) when he was in a refuge’s settlement camp. For the purposes of NTVP’s DSP claim, his age has no bearing, but it will become an issue for NTVP when he seeks to access the age pension. The Tribunal encourages NTVP to resolve the matter. NTPV arrived in Australia as a refugee in 1987 having completed year 12 and a bachelor’s degree overseas. He reportedly last worked in 2005 as a courier for about four years, ceasing the job when the company lost contracts.
NTVP previously applied for the DSP in 2015 which was rejected on the basis that his medical conditions were not fully diagnosed, treated or stabilised.
On 12 February 2018, NTVP lodged his application for the DSP, citing his medical conditions as “diabetes, hypertension, depression and anxiety disorder, vision problems, prostatism, joint and muscle problems and stomach problems.”
On 12 July 2018, Centrelink conducted a face-to-face job capacity assessment (JCA) on NTVP. The JCA awarded him five impairment points under Table 12 – Visual Function, having found the following:
·Cataracts: considered fully diagnosed, treated and stabilised and having a mild functional impact on activities involving visual function;
·Urinary tract conditions considered fully diagnosed but not fully treated or stabilised as NTVP was awaiting further intervention, possible surgery which may result in functional gain.;
·Musculoskeletal disorder was not considered fully diagnosed, treated or stabilised as there was no confirmation of a specific diagnosis for these reported conditions;
·Psychiatric disorder was considered fully diagnosed but not fully treated or stabilised as current medical information does not indicate NTVP continues to see a psychiatrist and there is no detailed prognosis of this condition nor recommended treatment and further intervention may result in functional gain.
·Lower limb deficiencies there was no medical information, including diagnosis, available regarding this condition
·Tuberculosis was considered fully diagnosed but not fully treated or stabilised as it was considered reasonable that NTVP required further specialist assessment or further secondary rehabilitation which may result in functional gain; and
·Work capacity was assessed as baseline of 8 to 14 hours per week, but it was anticipated that with disability specific intervention including specialist job search, employment support, vocational assessment and counselling work capacity would increase from 8 to 14 to 15 to 22 hours per week.
On 13 May 2019, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding. The ARO awarded a total impairment rating of five points under impairment Table 12 – Visual Functions, and nil points for NTVP’s conditions of prostatism, depression, diabetes, hypertension, pulmonary tuberculosis, back pain and foot problems as they could not be considered permanent.
On 30 August 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject NTVP’s DSP claim. The AAT Tier 1 awarded NTVP an impairment rating of ten points under Table 5 - Mental Health Functions and nil points for any of his other conditions as there was either insufficient medical evidence or no functional impairment resulting from the condition.
On 19 September 2019, NTVP sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in his application:
To start with the interview was less than friendly to say the least. I have my own problems, at times I loose [sic] concentration and get confused. This is well documented in the medical report…. So I was answering the questions without thinking just to get out of the situation.
The other thing is my diabetes, the explanation given in the decision is not right. I have been taking medication right from the beginning for more than 20 years, increasing the strength gradually. However it was not properly controlled and stabilized till three and a half years ago, when I started taking Xigduo. I didn’t go to Austin hospital, because my diabetes was not stable. I went there to consult a specialist for alternative non insulin once a week injection to reduce the amount of taking oral medications, because of stomach problems, otherwise my blood sugar level is stable since I started the new medication three and a hald years ago. Though the referral was made eight or nine months ago… I saw the Doctor about three weeks ago for the above explained purpose. It is true diabetes causes me a substantial nerve damage (neuropathy, retinopathy) because of my ignorance that I was not aware of the consequences as I am now, however I am satisfied with the way I’m dealing with it at the moment.
Also I saw on the decision that I may have a third operation to fix the damage on the Urethra, it is not I may have it is a must, because of the difficulty I am having passing your urine. I just filled the preadmission papers and I am expecting a Urethroplasty, Likely Anastomotic, possible Buccal Mucosa Graft in a few weeks...
The other thing I noticed on the decision is, the 5 points I was awarded previously for the affected vision was taken away in this decision.
What wonder’s me most is a three medical reports from three different doctors …. which were directly delivered to the AAT before the hearing weren’t considered properly. These reports clearly shows that the three chronic illnesses namely diabetes, hypertension, depression and anxiety disorder are now fully treated and stabilised. As far as I took my medications regularly as instructed by the doctors, no further action is expected. What else can I do more than I have already supplied. My situation is now beyond desperation.
So that I haven’t seen any fairness in this decision. I look forward to explaining my situation in details.
…
On 6 February 2020, an Occupational and Environmental Physician in the Health Professional Advisory Unit (HPUA) undertook a file review and detailed analysis of the reference documents. Where applicable, discussions were also held with NTVP’s treating health professionals to compile medical opinion to assist with this Tribunal hearing. The Physician did not examine NTVP. The HPUA opined:
In my opinion the available medical evidence supports an assessment that [NTVP’s] non-insulin dependent diabetes Mellitus Type 2 (NIDDM) was not very clearly deemable fully diagnosed, treated and stabilised (FDTS) at the time of the subject DSP claim in February 2018, due to subsequent advice in 2019 from an endocrinologists, with a medication change. However it is considered that FDTS status during the DSP qualification period can reasonably be conceded. An impairment rating of 5 points (total) under Table 1 – Functions requiring Physical Exertion and Stamina is recommended for the diabetes plus any functional impacts of mild coronary artery disease (FDTS), hypertension and hyperlipidaemia (FTDS) and non-specific cardiorespiratory dysfunction (not well-documented).
An impairment rating of 0 points under table 3 – Lower Limb Function is recommended for diabetic peripheral neuropathy resulting in painful feet, deemed FDTS with minimal or limited associated functional impact.
A mental health disorder of depression/anxiety is considered to have been not fully treated and stabilised at the time of the DSP claim, due to evidence of suboptimal patient compliance with medication prescribed by a psychiatrist in 2017, well before the qualification period, and delayed referral to psychotherapy. If determined to have been FDTS an impairment rating of 5 points under Table 5 – Mental Health Function is recommended.
Gastro-oesophageal reflux disorder (GORD) is considered to have been FDTS, with a rating of nil (0) points assigned under Table 10 – Digestive and Reproductive Function due to insufficient provided evidence of functional impact.
In addition it is considered that a continuing inability to work (CITW) was not clearly established in February 2018 or subsequently during the qualification period, as [NTVP] may well have been medically capable of achieving a work capacity in a suitable occupation of at least 15 hours per week within 2 years, with the assistance of an employment support service (DES-ESS) provider.
In accordance with Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 (Administration Act), NTVP’s qualification for the DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 6 February 2018 to 8 May 2018 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)      the person has a physical, intellectual or psychiatric impairment; and
(b)      the person's impairment is of 20 points or more under the Impairment       Tables; and
(c)        one of the following applies:
(i)        the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)      the condition has been fully diagnosed by an appropriately qualified          medical practitioner; and
(b)      the condition has been fully treated; and
(c)        the condition has been fully stabilised; and
(d)      the condition is more likely than not, in light of available evidence, to persist         for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)       the person has not undertaken reasonable treatment for the condition and:
(i)        significant functional improvement to a level enabling the person to           undertake work in the next 2 years is not expected to result, even if     the person undertakes reasonable treatment; or
(ii)       there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of section 6(6), reasonable treatment is defined in section 6(7) 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.
The determinative issue in this review is whether, during the qualifying period, NTVP suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) Part B, s 5(2).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
The Social Security (Active Participation for Disability Support Pension) Determination (the Determination) sets out a number of exemptions in Part 2 to the general requirements that a person must participate for at least 18 months in a program of support (POS) in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)      This subsection is satisfied in relation to a person and a program of    support if:
(a)      the program of support was terminated before the end of the             relevant period; and
(b)       the program of support was terminated because the person   was unable, solely because of his or her impairment, to   improve his or her capacity to prepare for, find or maintain   work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of           support if:
(a)      at the end of the relevant period, the person is participating   in the program of support; and
(b)        the person is prevented, solely because of his or her    impairment, from improving his or her capacity to prepare   for, find or maintain work through continued participation in   the program.
The relevant period means:
(a) in relation to a person (other than a reviewed 2008‑2011 DSP starter) whose impairment is not a severe impairment—the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person.
The Guide to Social Security Law (the Guide) reiterates that for a person to qualify for the DSP, they must have a rating of at least 20 points and a continuing inability to work (CITW). Both these aspects are of equal importance. The CITW criteria is that an individual must be unable to work for 15 hours or more per week and be unable to be retrained for such work in the next two years.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, “supplementary T documents” and additional medical reports which were provided by NTVP.
DOES NTVP HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must have an impairment.
The Respondent accepts that during the qualification period NTVP had the following impairments: diabetes, coronary artery disease, hypertension, depression and anxiety, diabetic retinopathy, postsurgical right eye cataract complications, diabetic neuropathy, urological disorder, tuberculosis, lower back pain, chronic muscle and joint pain.The Tribunal finds that NTVP was living with impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES NTVP HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Dr Samarasinghe, general practitioner, in a report dated 6 February 2018 states:
[NTVP] has been my patient for over five years. He suffers from multiple complex chronic health issues, such as diabetes, hypertension, depression and anxiety disorder.
These illnesses are permanent. They have been treated stabilized and controlled with the help of regular medications and check-ups.
Seven months on, he is also taking treatments for complication from cataract surgery on his right eye, which affects his vision. Prostatism is another illness currently taking treatment for, and he is awaiting further admission for surgery.
His lack of concentration is another notable concern. The side effects from taking several medications for a considerable period of time, particularly the antidepressant medications could not be underestimated.
His physical illness has been vastly limiting his capabilities with numerous symptoms. His psychological illness has been affecting his cognitive functions with concentration. Considering the overall impact on his illness, I believe he has no capacity to work anymore

NTVP provided a statement to Centrelink dated 7 February 2018 in support of his Centrelink claim in which he states:
My health is much worse with more complaints than before. Complications in my eyes affecting my vision, prostate problem and lack of concentration to name a few.
The other issue is my age, I am not 58 years old, I am 63, I was born 1954 not 1959. When I was at the refuge settlement overseas, my date of birth was changed for some reason and my documents were sent directly from the UNHCR office record to the Australian immigration office.
I didn’t say anything at the interview with the Australian immigration office at the time, for fear of complicating the case. However I have alerted the Australian authorities as soon as I arrived here, and the answer was no, you can not change your age, but you can change your name, and here I am stuck with it. If necessary I am prepared to sign any legal documents (an affidavit) to prove my claim.
I understand 63 is not a pension age, however in relation to my health problems, it is close to the pension age and justifies for consideration.
Isolation and loneliness is another factor to my health, I had no friends and/or relatives were similar age or backgrounds, I could mix with for social gatherings. Most the time I stay home alone. I really feel suffocated.
In consideration to all of the above situation and my health conditions in particular, I am requesting you to grant my application for disability pension.
NTVP provided a statement to Centrelink dated 29 July 2018 in support of his Centrelink claim in which he states:
I noticed my application for disability pension has been rejected without any explanation except I didn’t have the required 20 points to grant me disability pension. The mental illness by itself would have been enough to grant me the disability pension. No one would understand the pain and suffering I am living with.
I have seen half a dozen psychiatrists and three or four psychologists so far in the last 22 years, it didn’t help, their advice is that, my illness is chronic and I should change the life style I am living in, which is difficult to me while I’m living here.
I have been pushed to the limit find a job at 63 with a mental illness and 13 years out of the work force, with no known qualification or experience, is not easy and definitely unfair. It gives me unbearable stress on top my depression and anxiety disorder. I am anxious, what will happen next.
In my previous attempt, the authorized review officer indicated that, if I was on a disability support program, 18 months out of the 36 previous months, she would have been considering it, whatever that means.
The Respondent’s primary position was that no impairment rating should be awarded to any of NTVP’s impairments.
Diabetes
Dr Samarasinghe’s numerous medical reports dating back to January 2016 indicate that NTVP had been diagnosed as suffering from diabetes mellites – type II. These reports listed numerous medications, inclusive of Glimepiride, that NTVP had been prescribed for the condition.
A Pharmaceutical Benefits Scheme (PBS) Patient Summary obtained by the Respondent indicates that NTVP had been dispensed glimepiride on a regular basis from December 2014 through to July 2019.
Dr Akbas, general practitioner, in a report dated 30 July 2019 observed that NTVP had been suffering from diabetes mellites – type II, with complications of retinopathy since 2010. He noted that NTVP is very compliant with his treatment, taking his medication and following lifestyle modification. He observed that the type II diabetes is treated and stabilised.
Associate Professor Richard O’Brien, endocrinologist/physician, in a report dated 27 August 2019 stated that NTVP was diagnosed with type II diabetes in 1996 and was currently taking Xigduo and Glimepiride daily. He observed that NTVP’s glycaemic control was excellent but he was experiencing frequent hypoglycaemic episodes which he noted were not uncommon with Glimepiride. A/Prof O’Brien reported NTVP’s diabetes complications noting NTVP complained of a burning sensation in his feet at night and that NTVP believed he was suffering from diabetic retinopathy. A/Prof O’Brien observed that NTVP had only undergone cataract surgery in respect of his eyes. He had a lengthy discussion with NTVP about changes to his medication regime as NTVP had hoped to be able to reduce some of this oral medication intake. A/Prof O’Brien altered his medication accordingly to alleviate the hypoglycaemic reactions after meals.
Additionally, A/Prof O’Brien observed NTVP presented with the following problems: type II diabetes, hypertension, depression, gastro-oesophageal reflux disease and painful diabetic neuropathy.
NTVP advised in his application for review to the Tribunal that he had been taking medication for his diabetes for over 20 years and he is now fully compliant with all recommended treatments. He did admit that his ignorance of this disease early on had caused him substantial nerve damage, but he was satisfied that he now was dealing with this condition appropriately.
The Respondent accepted, based upon the opinion of the HPUA that NTVP’s diabetes mellites – type II condition was fully diagnosed, treated and stabilised during the qualification period, noting that NTVP had been living with the diagnosed diabetes for eight years.
The Respondent accepted that this condition can be rated under Table 1 – Functions requiring Physical Exertion and Stamina and at most would attract a five point impairment rating. The Responded contented there was minimal corroborating medical evidence to indicate the functional impairments of this condition to consider a higher rating. The Responded accepted the evidence indicating that NTVP may experience occasional dizziness in walking to local facilities or performing physically tasks.
Having considered all the evidence before it, the Tribunal is satisfied that NTVP’s long standing diabetes mellites – type II was fully diagnosed, treated and stabilised during the qualifying period, relying upon reports of medical tests, reports of treating doctors and NTVP’s PBS summary.
The Tribunal finds that NTVP’s condition of diabetes was having a mild impact on his functionality during the qualifying period as he self-reported, he had limited physical capacity, and his treating general practitioner corroborated the functional impairment describing the condition as chronic. The Tribunal also relied upon the opinion of the HPUA who stated that the long-term general effects of NTVP’s diabetes would result in reduced endurance. The Tribunal therefore assigns five points for this condition under Table 1 – Functions requiring Physical Exertion and Stamina.
Coronary artery disease and hypertension
Dr Samarasinghe’s and Dr Aksba’s numerous medical certificates and reports between the period January 2016 to March 2019 indicate NTVP had been diagnosed as suffering from hypertension.
The HPUA advised that an examination of NTVP’s PBS summary showed NTVP had been prescribed medication for hypertension since 2014.
The Respondent accepts that it was open to the Tribunal having regard to the HPUA’s opinion to find that NTVP’s coronary artery disease and hypertension were fully diagnosed, treated and stabilised during the qualification period.
The Respondent accepts that this condition can be rated under Table 1 – Functions requiring Physical Exertion and Stamina, as the evidence would indicate that NTVP may experience occasional dizziness and/or limited endurance which could lead to occasional difficulty in walking to local facilities or performing fiscal active tasks. The Respondent contended the condition, at most, would attract a five point impairment rating.
The Respondent referred to the HPUA report that opined these mild related impairments had already been covered under the five points allocated to the general effects of the diabetes on stamina and endurance under Table 1 and to assign a higher combined rating according to the report would constitute double counting.
Having considered all the evidence before it, the Tribunal was satisfied that NTVP’s coronary artery disease and hypertension were fully diagnosed, treated and stabilised during the qualification period.
The Tribunal finds that NTVP’s condition of coronary artery disease and hypertension was having a mild impact on his functionality during the qualifying period as he self-reported, he had limited physical capacity, and his treating general practitioner corroborated the functional impairment describing the condition as chronic. The Tribunal also relied upon the opinion of the HPUA who opined that the long-term general effects of NTVP’s coronary artery disease and hypertension would result in reduced endurance. The Tribunal therefore assigned nil points under Table 1 – Functions requiring Physical Exertion and Stamina for this condition, as the impact of this impairment had already when considered in respect of NTVP’s diabetic condition. The Tribunal did this in accordance with the Impairment Tables which states that it is inappropriate to assign a separate impairment rating for common impairments arising from multiple conditions as this would result in the same impairments being assessed more than once.
Depression and anxiety
Dr P Prabhakran, psychiatrist, in letter of support for a previous DSP claim dated 19 December 2015 stated NTVP had been in their care for the past two months and had a diagnosis of major depressive disorder and comorbid anxiety symptoms; noting his symptoms are persistent and need ongoing follow-up and treatment.
Dr Srinivasaju, consultant psychiatrist, in an un-dated report stated:
Current MSE:
Good rapport, cooperative, Speech normal volume, normal output
Insight is good, judgement intact. Responsible with his medications. Well supported by adult children.
Impression: Stable mental state, with residual symptoms of depression, on regular medications.
Plan:
Encouraged to trial CBT base psychotherapy for his residual depression, but he is not keen on seeing the psychologist now.
Ms C Schmidt, psychologist, in a report dated 26 June 2019 stated that she has been treating NTVP since April under a mental health plan. Her opinion was that NTVP presents with psychological issues of mixed anxiety with chronic depression. NTVP advised her that he had been under the care of various psychiatrists and psychologists since 1994, and she noted that NTVP was currently on anti-depressants that stabilise his condition. Ms Schmidt observed that NTVP was currently most frustrated by his physical health which has been deteriorating over recent years, particularly his prostate condition which has required three operations so far and is still unstable. NTVP advised her that he had high anxiety regarding going to public places and returning to work, including volunteer work, due to his high frequency of needing to go to the toilet and associated panic if he could not find a toilet in time.
Dr Vidanagama, psychiatrist, in a report dated 20 July 2019 noted that NTVP had been under their care since April 2017 and had been diagnosed with persistent depressive disorder. Dr Vidanagama noted that he was currently on medication and has ongoing sessions with a psychologist, he opined:
Despite the medications and psychological support, [NTVP] remains symptomatic with ongoing depressive symptoms. His illness has significant impact on his day to day functioning, social activities and family life. My opinion is that, [NTVP] suffers from a chronic and permanent psychiatric illness and he will not be able to return to work at least for the next two years.
Dr Samarasinghe and Dr Akbas indicate on medical certificates that this condition is causing mood swings, poor sleep, no energy and withdrawal from people.
NTVP’s numerous letters to Centrelink (paragraph 34 and 35 of these reasons) and his appeal to the Tribunal (paragraph 11 of these reasons) clearly articulate his feelings of stress, frustration and depression and the associated impact that this is having on his functionality. Additionally, AAT Tier 1’s decision dated 25 January 2017 into his original DSP claim noted the following:
He recalled his work in logistics management, requiring high academic qualifications while he was living in …, prior to his coming to Australia as a refugee in 1987. He recalled his frustrations at his efforts to obtain suitable work in Australia being repeatedly rejected after his arrival here.
He went on to undertake further studies after arriving in Australia, but that these were interrupted by separation from his wife .., with associated loss to access to his children and the development of consequent depression. He found employment as a courier for a few years, but gave this up in 2005, and has not worked since.
Nowadays the family situation has improved somewhat, so that, while he and his wife both live separately in the same house, he has been reunited with his children. He experiences some friction in his relationship with his daughter, but get on well with his son. He believes the psychiatric attention he has received from Dr Srinivasaju, and his antidepressant medication, have been beneficial to his psychological state, which he now considers himself to be stable.
He is reluctant to mix socially, preferring to be alone in general. Feelings of anxiety sometimes interfere with his sleep. He occasionally travels back to … where he finds himself feeling happier and more at peace. Aside from his regular contact with his son, he talks by telephone to a friend every few weeks. He drives his son’s car, has no difficulty with usual activities of daily living, attends easily to his own personal requirements, and has good organising skills.
[NTVP] has clearly experienced considerable stress over the years, and is in need of continuing psychiatric review for his persisting mild depression, as described by his current psychiatrist. His continuing psychiatric intervention appears to be beneficial, and seems to leave [NTVP] with only mild functional incapacity. The tribunal finds that [NTVP’s] depression can be considered fully diagnosed, treated and stabilised, and assigns an impairment rating of 5 points, according to impairment Table 5 – Mental Health Function, to this condition.
Additionally NTVP advised the JCA in respect of the most recent DSP claim:
That he feels hopeless, that he has not motivation or energy and showers once a week. He reported that he doesn’t want to mix with others and finds it hard to get out of bed. He reported that he hates noise. He reported that his concentration is not there, that he gets confused. He reported that he remembers to take his medication. He reported that he doesn’t really see others and that he is mostly at home alone as he gets scared of seeing others. He reported that he sees friends once every 3 or 4 months. He reported that he has difficulty tolerating things (when socialising with others), gets angry and chooses to stay away from people. Claimant reported that he lives with his partner and two children. He reported that he relies on public transport – that he takes the train, sometimes...
The Respondent accepted that the medical evidence indicated NTVP’s depression and anxiety were fully diagnosed during the qualification period. However, the Respondent argued that the condition was not fully treated and stabilised based upon the HPUA’s assessment of NTVP’s PBS summary, which indicated an intermittent utilisation of antidepressants and lack of corroborating evidence of psychotherapy being undertaken during the qualification period.
The Respondent contended that if the Tribunal was satisfied that NTVP’s depression and anxiety were considered fully diagnosed, treated and stabilised during the qualification period, there was insufficient medical evidence to warrant a rating of more than five points under Table 5 – Mental Health Functions.
The Tribunal considers the functional impact of NTVP’s mental health condition in respect Table 5 – Mental Health Function of the Impairment Tables (Table 5), with a focus on whether or not he has a moderate impairment, considering NTVP’s various written submissions.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)      self care and independent living;
(b)      social/recreational activities and travel;
(c)      interpersonal relationships;
(d)      concentration and task completion;
(e)      behaviour, planning and decision-making;
(f)       work/training capacity.
NTVP stated that he was able to live independently but did neglect his self-care. He also stated that he was socially isolated and does not go out and feels suffocated. He has a strained relationship with his former wife and daughter, has good contact with his son and speaks to a friend occasionally on the phone. However, besides this he advised he suffered isolation and     loneliness associated with his mental health condition.               NTVP requested confidentiality in respect of his matter before the Tribunal for cultural reasons, stating that his community did not understand depression and he would suffer shame and degradation in his community if they were aware of his illness. He also cited this as another reason for remaining isolated. A confidentiality order has accordingly been granted and a pseudonym applied. NTVP stated he lacked concentration, had difficulty with his memory and got confused; he was also stressed by having to undertake routine task such as applying for jobs as required for his Newstart payments. NTVP stated he has difficulty tolerating things, gets angry so he stays away from social gatherings. NTVP believes he would never be able to work again.
The HPUA indicated that NTVP’s Centrelink electronic records show regular overseas travel between 2006 and 2015 inclusive of several prolonged absences from Australia, noting records indicated NTVP’s most recent overseas trip appears to have been 2 August 2018 and 3 November 2018.
Having considered all the evidence before it, the Tribunal is satisfied that NTVP’s mental health conditions diagnosed as depression and anxiety were fully diagnosed, treated and stabilised during the qualification period.
The Tribunal finds that NTVP’s mental health conditions of depression and anxiety were having a moderate impact on his functionality during the qualifying period as he self-reported and this was corroborated by his treating psychiatrist who reported that NTVP’s illness had significant impact on his day-to-day functioning, social activities and family life. The Tribunal awards 10 points under Table 5 - Mental Health Function as NTVP has difficulty with self-care, social activities, interpersonal relationships, concentration, behaviour and work capacity.
Diabetic retinopathy
Dr Marc Sarossy, ophthalmologists, in a report dated 26 August 2016 opined:
He has mild diabetic retinopathy but the cataracts have got much worse especially on the right side. I think he would benefit from cataract surgery now.
His acuity was 6/5 on the right side and 6/9 on the left but he finds that he cannot drive at night anymore. The diabetic retinopathy had not progressed and the intraocular pressures were normal.
The Respondent contended that while they accepted that the condition was fully diagnosed, treated and stabilised during the qualification period, there was insufficient material before the Tribunal to determine an impairment rating under Table 12 - Visual Function.
Having considered all the evidence before it, the Tribunal finds that this condition was fully diagnosed, treated and stabilised during the qualification period. However, there was no corroborating medical evidence or self-reporting before the Tribunal indicating this condition caused NTVP any functional impairment. Therefore, the Tribunal has awarded nil points for this condition.
Postsurgical right eye cataract complications

Dr Ralph Patel, optometrist, in a report dated 9 February 2018 stated that NTVP:
Had a right eye cataract removed 7 months ago in July. Unfortunately he has since suffered from post surgical adverse effects, which have caused a decline in his right eye vision. It seems to affect his quality of life in terms of driving, watching TV, reading etc. His left eye still has a cataract but is a risk to operate at this stage.
Dr Samarasinghe and Dr Akbas indicate on medical certificates that this condition was causing poor vision, eye discomfort and inflammation of the right sclera.
The Respondent contended that this condition was not fully diagnosed, treated nor stabilised during the qualifying period as there was no evidence provided from an ophthalmologist post-surgery to confirm that NTVP still suffers from cataracts. Additionally, the Respondent contended that there was insufficient evidence of functional impairment that would allow an assessment under Table 12 – Visual Function.
The Respondent relied upon the report of the HPUA who considered that the condition had presumably resolved satisfactorily based upon the PBS summary which indicated no eyedrops had been dispensed to NTVP after August 2018.
NTVP rightly queried the discrepancy in the decision of the ARO, who had awarded five points under Table 12 – Visual Functions (based on the medical evidence that NTVP had suffered adverse effects from his eye surgery) and AAT Tier 1 who awarded nil points for this condition (finding that there was insufficient reliable medical evidence available to establish whether any further treatment was planned or needed). The Tribunal notes the allocation of impairment points is not an exact science and complex conditions which are not well documented are often awarded different points by different decision makers.
Having considered all the evidence before it, the Tribunal is satisfied that NTVP’s postsurgical right eye cataract complications were fully diagnosed, treated and stabilised during the qualification period. The Tribunal finds that this condition was having a mild impact on his functionality during the qualifying period as he self-reported “complications in my eyes affect my vision” and this was corroborated by his treating optometrist who reported that NTVP had difficulty with driving, watching TV and reading. The Tribunal awards five points under Table 12 – Visual Function as NTVP could perform most day-to-day activities involving vision, having some difficulty with reading and driving at night.
Diabetic neuropathy
Mr G Singh, podiatrist, in a report dated 9 September 2016 noted NTVP had reduced sensation in both feet.
The Respondent contended that while they accepted that the condition was fully diagnosed, treated and stabilised during a qualification period, the condition warranted a nil rating under Table 3 – Lower Limb Function as the condition was causing no functional impairment.
Having considered all the evidence before it, the Tribunal finds that this condition was fully diagnosed, treated and stabilised during the qualification period. The Tribunal awards nil points for this condition as NTVP did not meet any of the descriptors for mild or moderate impact on activities using lower limbs under Table 3. The Tribunal relied upon NTVP’s self-reporting and medical evidence that he was able to stand for more than 10 minutes and could walk for 20 minutes.
Urological disorder
Mr P Sivam, urologist, in a report dated 13 December 2017 stated that NTVP had ‘ongoing irritative LUTS despite Duodart plus haematuria’ and that a ‘flexible cystoscopy shows moderate prostatomegaly only’. Transurethral resection of the prostate (TURP) surgery was discussed but NTVP advised he felt his symptoms had improved since his cystoscopy and would prefer to wait and see how his condition progresses, declining surgery at the time particularly in light of his recent post cataract surgery complications.
Dr A Dulimov, radiologist, reported on an ultrasound performed on 4 February 2019 of the renal and urinary tract which concluded “large post void bladder residue and mild bilateral pelvicalyceal dilation but with no evident cause.”
Dr Akbas, general practitioner in a report dated 30 July 2019 notes:
Recently, he got prostatism which has been operated and it caused urethral structure. This caused urinary retention and hospitalized [sic]. This is causing urinary frequency, difficulty in urination. He has to get up frequently to attend toilet at nights, therefore his sleeps are disturbed.
Having saying that, in my opinion, it is unlikely to get improvement of his medical conditions in 2 -3 years.
In his application for DSP, NTVP indicated that surgery would be required on his prostate in the future to deal with his urinary frequency and pain. During the JCA, NTVP advised that he finds it hard to control his urine, has leaking and urgency but is not currently using any continents aids. NTVP advised the ARO that he had recently undergone two operations on his prostate.
Dr Samarasinghe and Dr Akbas on medical certificates indicate that this condition is causing multiple complaints, urinary frequency, accidents and dribbling urine.
The Respondent contended that this condition was not fully treated and stabilised during the qualifying period based upon the medical evidence which indicated NTVP was awaiting another operation. Consequently, the Respondent argued that nil points can be allocated for the condition under the Impairment Tables.
Having considered all the evidence before it, the Tribunal finds that this condition was fully diagnosed at the time of qualification period, but was not fully treated and stabilised as NTVP was awaiting further surgery which may result in functional improvement. Therefore, the Tribunal awards nil points for this condition.
Tuberculosis
Dr Samarasinghe, in a patient health summary dated 7 September 2016, recorded pulmonary tuberculosis as a past resolved condition.
The Respondent accepts that NTVP’s tuberculosis was fully diagnosed, treated and stabilised but contended that the condition does not warrant an impairment rating as medical evidence indicated it was a past resolved condition. The Respondent additionally argued that there was no corroborating medical evidence of any impairment resulting from this condition and additionally if the condition caused any appreciable impairment this has already been captured by the five point rating awarded under Table 1 in respect of NTVP’s diabetic condition.
Having considered all the evidence before it, the Tribunal finds that this condition was fully diagnosed, treated and stabilised at the time of qualification but there was no corroborating medical evidence or self-reporting which indicated that this condition caused NTVP any functional impairment. Therefore, the Tribunal awards nil points for this condition.
Lower back pain, chronic muscle and joint pain
Dr Samarasinghe in a patient health summary dated 7 September 2016 records lower back pain as a current condition from 2006.
Dr R Shafik-Eid, radiologist, provided a report on a CT scan undertaken on 14 May 2018 for chronic back pain and chest pain, noting past history of tuberculosis. The report concluded no major findings in the chest or back.
In his application for DSP NTVP noted his physical mobility was severely affected and precluded his ability to work or study. NTVP advised during the JCA that he had five sessions of physiotherapy a year, but he had not seen a specialist and did not take medication for the condition. NTVP advised the assessor that he was able to pick things off the floor (which caused pain) and he could sit for an hour.
The Respondent contended that this condition was not fully diagnosed, treated and stabilised during the qualification period as there was little medical evidence to indicate a diagnosis or treatment for these conditions.
The Tribunal, based upon the limited medical evidence available to it and the limited self-reporting of functional impairment for this condition, determines that NTVP’s lower back pain, chronic muscle and joint pain was not fully diagnosed, treated and stabilised during the qualification period. Therefore, nil points are awarded to this condition.
IMPAIRMENT RATING
The Tribunal has found that NTVP has an overall impairment rating of 20 points, with five points allocated under Table 1 – Functions requiring Physical Exertion and Stamina, 10 points allocated under Table 5 – Mental Health Function and five points under Table 12 – Visual Functions. Therefore, NTVP satisfies section 94(1)(b) of the Act.
DOES NTVP HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, NTVP must not only have an impairment rating of 20 points or more under the Impairment Tables, he must also demonstrate that he has a continuing inability to work. NTVP would be considered to have a continuing inability to work if he has actively participated in a POS within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from doing any work independently of a POS. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a POS; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal has strictly applied the POS requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement or not.
NTVP in his application for DSP stated:
I do not believe I would ever been able to work. I have not been in the workforce for over 12 years. I have difficulties remembering the details of work history… Reminding me about my past experience gives me enormous stress and well as filling this form. Please try to understand my situation.
NTVP has not been found to have a severe impairment of 20 points under a single table. Therefore, he must have participated in a POS for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that NTVP had not completed such a program within the required timeframe and therefore did not satisfy section 7(1) of the Determination.
There was insufficient evidence before the Tribunal to determine if NTVP was prevented from participating in the POS solely because of his impairment. The Tribunal accordingly finds that NTVP has not completed a POS and therefore does not satisfy section 94(3C) of the Act.
The Respondent contended that NTVP had a continuing ability to work. The Respondent relied upon the JCA of 19 July 2018 which determined that NTVP had a baseline work capacity of 8 to 14 hours per week and capacity for work of 15 to 22 hours per week within two years with intervention.
The JCA of 19 July 2018 was conducted face-to-face by a registered occupational therapist. The report provided the following rationale for the work capacity:
Mental health impacts may result in some reduction in concentration, recall, efficiency in task completion and demotivation that may affect endurance. Impacts may affect social interaction within vocational context impacting upon capacity to develop and maintain effective workplace relationships, and may affect capacity for working with customers, or in high stress contexts.
Vision impacts result in reduced confidence negotiating steps/inclines and uneven surfaces, difficulty sustaining fine visual task and screen-based activities and may experience impacts in high glare contexts with the need for modified lighting in some contexts.
The JCA report also noted that NTVP would need to be in close proximity to bathroom facilities in a workplace.
Dr Samarasinghe concluded in a letter dated 27 January 2016 that NTVP had no capacity for work, stating:
His physical illnesses has [sic] been vastly limiting his capabilities with numerous symptoms. His psychological illnesses have been affecting his cognitive functions with concentration. Considering the overall impact on his illness he has no ability to be involved in working anymore.
Dr Vidanagama,in a letter dated 20 July 2019 opined that NTVP would not be able to return to the workforce in the next two years stating:
Despite the medications and psychosocial support, [NTVP] remains symptomatic with ongoing depressive symptoms. His illness has significant impact on his day to day functioning, social activities and family life. My opinion is that, [NTVP] suffers from a chronic and permanent psychiatric illness and he will not be able to return to work at least for the next two years.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred, for the purpose of assessing a continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
The Tribunal was unable to conclude that NTVP had a continuing inability to work to satisfy section 94(2) of the Act. The Tribunal, mindful of NTVP’s treating doctors’ reports and the findings of the JCA report of 19 July 2018 which observed that NTVP had significant functional barriers to finding employment, observes that NTVP would have significant difficulties in finding and maintaining work. Additionally, the JCA determined that with interventions NTVP may be able to improve his work capacity. NTVP participated in a POS for 433 days in the 36 months prior to the date on which he lodged his claim for DSP (he did not meet the requirement to participate in a POS for at least 18 months). He presents with no marked improvement in job readiness and this is indicative that he has a continuing inability to work.
As neither doctor provided a clear rationale for their conclusion regarding NTVP’s incapacity for work and the JCA determined that NTVP had some capacity albeit minimal, the Tribunal was therefore unable to determine if NTVP has a continuing inability to work.
CONCLUSION
The Tribunal finds that at the date of application NTVP was not qualified to receive the DSP. Whilst his impairments attracted 20 points under the Impairment Tables, he had not satisfied section 94(1)(c) of the Act as he had not completed a POS and it could not be determined if he had a continuing inability to work.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

................[sgd]........................
Associate
Dated: 14 April 2020

Date of hearing: 27 March 2020 (on the papers)

Applicant: Self-Represented

Advocate for the Respondent: Ms Lyndal Ablett

Solicitors for the Respondent:
Australian Government Solicitors

[2020] AATA 801

14 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	27 March 2020 (on the papers)
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Lyndal Ablett
Solicitors for the Respondent:	Australian Government Solicitors