O'Connor and Secretary, Department of Social Services (Social services second review)
[2022] AATA 4405
•20 December 2022
O'Connor and Secretary, Department of Social Services (Social services second review) [2022] AATA 4405 (20 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5970
Re:Darren O'Connor
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Senior Member Damien O'Donovan
Date:20 December 2022
Place:Canberra
The decision under review is set aside and the application for Disability Support Pension is remitted to the respondent for determination in a manner consistent with these reasons for decision.
………..[sgd]………..
Senior Member Damien O’Donovan
Catchwords
SOCIAL SERVICES – application for review of AAT Tier 1 decision – disability support pension – Meniere’s disease - multiple medical conditions - whether condition fully treated and fully stabilised - ‘severe’ descriptor met - functional impact severe - work capacity -inability to work apparent - criteria met for the Disability Support Pension
Legislation
Social Security Act 1991 s 26, 27, 94
The Social Security (Administration) Act 1999Cases
Dickson and Secretary Department of Social Services [2018] AATA 1087FCT v Consolidated Media Holdings Ltd [2012] HCA 55
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 s 5, 6, 11
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member Damien O'Donovan
20 December 2022
This is a Tier 2 review of a decision made in the Tribunal’s Social Services and Child Support Division affirming the decision of an Authorised Review Officer within Services Australia to refuse Mr O’Connor a disability support pension.
For the reasons set out below I have decided to set aside the decision under review and remit the matter for determination in a manner consistent with these reasons. Subject to any excluding provisions applying I am satisfied that the applicant is entitled to be paid Disability Support Pension.
Evidence
The evidence before me consists of the following:
(a)The T- Documents numbered 1 to 346;
(b)A Medical Certificate of Dr Dilini Pathiratne dated 19 August 2021;
(c)A Medical Certificate of Dr Dilini Pathiratne dated 23 February 2022;
(d)A Medical Report of Dr Louis McGuigan dated 14 Mach 2022;
(e)A Medical Report of Dr Dilini Pathiratne dated 25 August 2021 (Exhibit 1);
(f)A Report from Westmead Children’s Hospital;
(g)A Medical Report of Dr Rebilliard dated 5 February 1999; and
(h)A Secondary Medical Report of Dr Rebilliard dated 20 August 1999.
The applicant gave oral evidence about his medical conditions and circumstances. He did this over the course of two days. On the first occasion he gave evidence by telephone while sitting in his car. On the second occasion he gave part of his evidence in the presence of his General Practitioner Dr Pathiratne, who also provided oral evidence.
Facts
Set out below are my findings of fact. To the extent that any of the findings are controversial I have identified the evidence on which the findings are based.
Mr O’Connor was born on 20 August 1966 and is now 56 years old. He lives in Maules Creek in the Narrabri Region of New South Wales.
In 1972 Mr O’Connor was knocked down by a car. When he was admitted to hospital he had dried blood in both nostrils and blood in his right ear. Scans revealed a skull fracture and further examination revealed a perforated right tympanic membrane which slowly resolved. Audiogram testing revealed a mild bi-lateral conductive hearing loss. He had an episode of convulsions after discharge. He returned for assessment in August 1972 and normal hearing was demonstrated.
Mr O’Connor attended school until year 10 and undertook cooking training at TAFE. His work history has included working as a salesman for 8 years, working in mining, working for Graincorp in grain processing and working as a cook full time for about 10 years.
By 1999 however his hearing had deteriorated significantly. He was referred to Malcolm Robilliard, an Ear Nose and Throat surgeon. Mr Robilliard noted that the applicant had had seashell type tinnitus (ringing in the ear) for a year. Mr O’Connor had also developed a half hour episode of spinning vertigo of his head. Progressive hearing loss in the right ear was noted and high-pitched sounds were reported as irritating. The vertigo had become more frequent but lasting only 3 – 4 minutes. An audiogram showed poor hearing on the right.
On review six months later Mr Robilliard was satisfied that the applicant was suffering from Meniere’s disease. Meniere’s disease is a disorder of the inner ear that can lead to dizzy spells and hearing loss. It normally only affects one ear. Despite the diagnosis the applicant was not recommended to adopt hearing aids and was instead prescribed a medication called Moduretic.
Mr O’Connor continued to work full time until around 2013 when he ceased employment due to lower limb conditions which were developing.
Mr O’Connor’s GP in March 2013 reported that he had advanced osteoarthritis affecting his left knee which prevented him from returning to his work as chef. Knee replacement surgery was recommended. At the time he was reported as being keen to get back to full time work. An employment services assessment report was prepared in relation to Mr O’Brien in October 2013. It noted that Mr O’Brien walked with a limp, had restricted mobility and left knee pain exacerbated by exercise and standing for long periods with difficulty straightening up after bending and with an inability to squat and an inability to kneel.
He was assessed as having a temporary restriction on his work capacity to 8-14 hours per week until 7 April 2014 due to his functional restrictions.
In 2014 the applicant’s GP submitted a medical report in support of Disability Support Pension. At the time the applicant was clearly suffering significant pain as his treatments included opioid patches and pain on weight bearing was noted. Knee replacement surgery was planned at that point.
At that time the applicant had not worked at all since he finished up work as a chef at the Tatt’s Hotel in Narrabri in 2013.
The applicant’s condition was recorded as having the following functional impacts:
Difficulty transferring from sitting to standing, pain and stiffness after sitting for long periods of time, restricted movement in knee after sitting for long periods, client walks with a limp, left knee pain, restricted mobility, left knee pain exacerbated by physical activity, pain with standing for longer than 30 minutes, inability to walk long distances, inability to walk for longer then 10-15 minutes, difficulty carrying objects whilst walking…difficulty sitting for long periods of time especially in car…difficulty straightening up after bending, difficulty climbing stairs, difficulty walking up ramps, difficulty walking on uneven ground, reduced strength and stability…reduced balance due to side effect of medication, reduced sleep due to pain…inability to squat and inability to kneel.
Mr O’Brien’s work capacity was assessed at 15-22 hours per week. It is unclear what work the assessor considered the applicant was fit for.
In 2016 the applicant was assessed again. He was assessed as having a baseline work capacity of 8-14 hours per week but with capacity to build up to 15-22 hours with interventions. The rationale for this was as follows:
With disability specific intervention, including, pain management, injury management and vocational training, work capacity should increase to 15-22 hours.
At this point in time Mr O’Brien reported to the work assessor that his knee had given out and he fell and fractured his tibia, so he was using crutches to mobilise. He reported constant knee pain, was unable to drive or sit in a car for longer than 15 minutes, had difficulty bending, lifting or carrying objects and had poor sleep patterns. It is unclear how the applicant could undertake 8 hours of work in this condition or how his capacity could be built up to 15-22 hours. Nevertheless, that was the assessor’s view.
A more realistic assessment was made in August 2016 where it was recognised that the applicant’s temporary work capacity was 0-7 hours until October 2016.
In January 2017 Mr O’Brien was certified unfit for work or study for 12 months by a doctor working at Tamworth Hospital. In late 2017 Mr O’Brien had a left knee replacement.
In 2018 the applicant underwent a right knee replacement. At the time of his surgery his ankles were also described as being affected by severe arthritis.
In May 2019 Mr O’Brien again applied for disability support pension. He listed his conditions as:
(a) severe depression;
(b) bilateral osteoarthritis in knees and ankles;
(c) colitis
(d) bowel polyp
(e) migraine
(f) Meniere’s disease.
In an employment services assessment report the applicant was recorded as having the following permanent conditions:
(a)Severe chronic depression;
(b)Generalised osteoarthritis mainly bilateral knee and ankle;
(c)Ulcerative colitis;
(d)Migraine;
(e)Meniere’s Disease
It was noted that the applicant has permanent conditions which have a severe impact on the client’s endurance, concentration, confidence, ability to cope with stressors and ability to perform physical tasks. A baseline work capacity of 15-22 hours per week and future work capacity of 23-29 hours per week was recommended. These assessments of the applicant’s work capacity do not seem to be well justified given the extent of restriction on his ability to think, move and sit still for extended periods.
On 7 June 2019 the application was refused DSP on the basis that none of the conditions had been fully diagnosed, treated or stabilised.
On 19 March 2020 Dr Louise McGuigan, a consultant rheumatologist, reported that the applicant had ongoing pain in his knees and ankles which will not change. She concluded her report in the following terms:
Given the fact he was working as a chef, I don’t think he will be [able] to continue with this position again – ever – because of the problems with his feet.
On 30 March 2020 the applicant underwent audiometry testing. It revealed high frequency hearing loss in the applicant’s left ear and profound hearing loss in his right ear. A Contra-lateral Routing of Signal (CROS) hearing aid was recommended. The applicant reported severe migraines, dizziness, sensitivity to light and sound and severe tinnitus which had been present for many years.
An updated report on the applicant’s lower limbs was prepared in April 2020 which reported:
He has quite severe degenerative joint disease in his feet and his ankles. He has ongoing pain in the knee and he has calcium pyrophosphate deposition disease in that knee, demonstrated by fluid that has been aspirated from the knee. He also has bone scan evidence of mid-carpal disease…He has also had ulcerative colitis.
In an employment services assessment report dated 25 November 2020 the applicant was assessed as having a temporary work capacity of zero to seven hours per week but a capacity for work within 2 years with intervention of 15 to 22 hours per week. The rationale for this assessment was as follows:
The recipient’s temporary work capacity has been reduced to 0-7 hours per week until 29 January 2021. The recipient has medical conditions that impact on work readiness. The recipient requires further medical investigations and treatment before work options can be considered. It is anticipated that this period of reduced work capacity will allow the recipient to work with treating professionals to manage health conditions prior to commencing with the service provider. The recipient has a recommended baseline work capacity of 8-14 hours per week reflecting the likelihood of ongoing restrictions imposed by permanent medical conditions…The symptoms of these conditions (pain, reduced mobility and low mood) are likely to result in difficulty performing, sustaining and reliably engaging in work tasks. It is anticipated that the recipient may be able to increase their work capacity to the 15-22 hours per week bandwidth following disability specific vocational interventions, and support to address their vocational barriers. The recipient may also benefit from vocational counselling and assessment to assist in reviewing transferable skills in relation to current symptoms, assistance in identifying a suitable work goal, assistance to seek and obtain employment, negotiation of flexible arrangement, workplace assessment and modification considering equipment, tasks, hours), the development of strategies to ensure symptoms are not exacerbated within a working environment and post placement support.
This assessment again seems overly optimistic. It appears to pay no regard to the medical evidence of very substantial disability affecting mobility, sitting, standing, thinking, hearing and mood and ignores the fact that despite significant intervention (by way of knee replacements) the applicant’s conditions have led to a deterioration in his work capacity over time.
On 22 December 2020 Mr O’Brien submitted a further claim for Disability Support Pension.
His listed disabilities were:
(a) Severe degenerative bone disease;
(b) pseudo-gout of both ankles;
(c) calcium pyrophosphate deposition disease;
(d) Meniere’s Disease
(e) 100% deaf in right ear;
(f) colitis;
(g) total knee replacement left knee;
(h) awaiting arthroscope of right knee.
When the applicant was assessed on 18 February 2021 only his lower limb deficiencies were found to have been fully diagnosed treated and stabilised. The person reporting considered giving a severe rating in relation to his lower limb condition but in the end assessed him as only meeting a moderate rating which was not enough to qualify him for the pension. None of his other conditions were found to have been fully diagnosed, treated and stabilised.
His baseline work capacity was assessed at 8-14 hours per week and his work capacity within two years with intervention was assessed at 15-22 hours per week.
On 2 March 2021 a decision was made to reject the applicant’s claim for Disability Support Pension on the basis that the applicant did not have an impairment rating of at least 20 points under the Impairment Tables. The decision was affirmed on review by an authorised review officer, a decision which was affirmed on review by the Administrative Appeals Tribunal (Tier 1).
Evidence at the hearing
The applicant gave evidence about the functional impact of his conditions. He was an honest and straight forward witness although he was easily frustrated by the questions.
It was clear at the end of the questioning of the applicant that although his lower limb conditions were very debilitating, the 10 point assessment using Table 3 of the Tables for the Assessment of Work-related Impairment for Disability Support Pension was correct. However, the applicant has at least one other condition which needs to be considered – his Meniere’s disease.
The applicant described his Meniere’s disease in the following terms. He had bad symptoms from the age of 15 years. Something went ping in his ears and the tinnitus started and never went away. It brought with it other symptoms. He couldn’t handle sunlight and was prone to car sickness. He had constant ringing in his ears. His balance was affected.
At present, on some days, the symptoms are not too bad, but on others the room feels like it is spinning. Then he knows he has a migraine coming on. The sensation he has is like air rushing into his head. When it first came on he thought he would go mad but he has come to terms with it. He is deaf in his right ear. He has a confirmed diagnosis of Meniere’s disease. Things like the smell of kerosene heaters can bring on a vertigo attack.
In relation to treating the deafness in his right ear with hearing aids his evidence was that he has received mixed advice about hearing aids as a form of treatment. He was told and was concerned that a hearing aid would aggravate the tinnitus he experiences in his right ear. He also indicated that he cannot afford to explore a hearing aid. He has been forced by the cost of living to live 60km out of town. The cost of driving into town is prohibitive and so he is highly restricted in his ability to access specialist advice and to obtain a hearing aid. When these cost issues are combined with his doubts about whether a hearing aid will be effective in addressing his Meniere’s disease, it is understandable that he has not pursued the treatment.
The applicant’s deafness and his Meniere’s disease however have been confirmed by recent audiology and the diagnosis dates back to 1999.
Assessment
The framework for assessing a person’s entitlement to a Disability Support Pension is set out in:
(a)The Social Security Act 1991 (the Act);
(b)The Social Security (Administration) Act 1999 (the Administration Act);
(c)Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination); and
(d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
It is accepted by both parties that the applicant’s claim for DSP must be assessed based on his medical conditions as at the date of his claim, or within 13 weeks of that time. As the applicant lodged his claim for DSP on 22 December 2020, the qualification period is 22 December 2020 to 23 March 2021 (the qualification period).
Any subsequent deterioration in the applicant’s condition is not relevant. There is no relevant evidence of deterioration in the applicant’s condition since March 2021.
The following outline of the relevant provisions draws heavily from the respondent’s statement of facts issues and contentions which provided a very useful summary of the statutory framework for the Tribunal’s assessment.
The qualification criteria for a Disability Support Pension are set out in section 94 of the Act.
Qualification for disability support pension-continuing ability to work
(1) A person is qualified for disability support pension 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 qualification criteria set out in subsection 94(1) are conjunctive, and each element must be satisfied before a person can be found to qualify.
Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for Disability Support Pension. In accordance with section 27 of the Act, the Impairment Tables to be applied are contained in the Determination, which took effect from 1 January 2012. The Determination contains the Impairment Tables and the rules for their application. The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
An impairment rating can only be assigned if an impairment is permanent; that is, the impairment is fully diagnosed, treated and stabilised and likely to persist for more than 2 years.
In determining whether a condition has been fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b) of the Determination, the following must be considered:
(a) Whether there is corroborating evidence of the condition;
(b) What treatment or rehabilitation has occurred in relation to the condition; and
(c) Whether treatment is continuing or is planned in the next 2 years.
Reasonable treatment is defined under subsection 6(7) of the Determination 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.
A condition is fully stabilised for the purposes of subsection 6(6) of the Determination if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b) The person has not undertaken reasonable treatment for the condition and either:
(i)Significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)There is a medical or other compelling reason for the person not to undertake reasonable treatment (subsections 6(5) and 6(6) of the Determination).
Under section 11 of the Determination the following need to be considered when assigning an impairment rating:
(a)An impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)A rating cannot be assigned between consecutive impairment ratings (example: A rating of 15 cannot be assigned between 10 and 20); and
(c)If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)A rating cannot be assigned in excess of the maximum rating specified in each Table.
Application of the framework to the applicant
There is no question that the applicant’s lower limb conditions significantly impair his functioning. However, the functional impairment falls short of what is required to be assessed as severe. Accordingly, the applicant has been consistently and correctly assessed as qualifying for 10 points only under Table 3.
The real question that needs to be addressed in the context of this review is whether any of the applicant’s other conditions should be assessed differently and provide a basis for qualification for the Disability Support Pension.
I am satisfied that the applicant’s Meniere’s disease (when considered in combination with his lower limb impairment) meets the requirements for a grant of Disability Support Pension.
The Secretary does not dispute that the applicant has Meniere’s disease or that it constitutes a physical impairment.
The Secretary contends that an impairment rating cannot be assigned to the applicant’s Meniere’s disease (or more specifically its resulting impairments) because the condition is not ‘permanent’ as defined in subsection 6(4) of the Determination.
Paragraph 6(4) of the Determination provides as follows:
For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised;
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The applicant’s Meniere’s disease has been fully diagnosed by an appropriately qualified medical practitioner. It was diagnosed by ear, nose and throat surgeon Malcolm Robilliard in 1999. In determining whether the condition has been fully diagnosed I note that at the time of making the diagnosis Mr Robilliard had available to him audiometry results, accordingly there was corroborating evidence of the condition. In these circumstances I am satisfied that the condition has been fully diagnosed.
Meniere’s disease is permanent. The applicant has had the diagnosis for more than 20 years. I am satisfied that it will persist for more than two years.
The only real points of contention are whether the condition is fully treated and fully stabilised.
Dealing with whether the condition is fully stabilised first, 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 Rule 6(6) extracted above, reasonable treatment is 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 respondent contends that in light of the audiometrist’s report of 3 March 2020, in which a CROS hearing aid is recommended, the applicant has not undertaken reasonable treatment, the requirements of paragraph (b) above are not satisfied and therefore the condition was not fully stabilised within the assessment period.
I do not accept that submission. I am not satisfied that a CROS hearing aid in Mr O’Connor’s case meets the criteria for reasonable treatment. It is unclear whether such hearing aids are available in the area in which Mr O’Connor lives and there is no evidence before me that they are available at a reasonable cost. Mr O’Connor gave evidence about the limitations on this ability to travel due to living remotely and the cost of petrol, and I am satisfied that Mr O’Connor does not have access to a source of funds to purchase what appears to be a specialised and undoubtedly expensive hearing aid. Further, Mr O’Connor expresses doubts about the effectiveness of the device and given that his ENT Surgeon did not recommend that he have one when he was under his care, is understandably wary about whether it will reliably result in a substantial improvement to his functional capacity. His reservations about the effectiveness of device are clear on the face of the report of Ms Doel.[1] No additional evidence was presented by the respondent to address this question. In circumstances where the applicant has been treated by a specialist, who with full knowledge of the applicant’s hearing loss did not recommend hearing aids as a solution, the mere fact that an audiometrist has suggested one for the applicant does not, without more, establish that the CROS hearing aid is reasonable treatment.
[1] T38.
Proceeding on the basis that the CROS hearing aids are not reasonable treatment, I am satisfied that Mr O’Connor has undertaken reasonable treatment for his Meniere’s disease and I am satisfied that any further reasonable treatment (which would not involve acquiring hearing aids) is unlikely to result in significant functional improvement to a level enabling the applicant to undertake work in the next 2 years.
In considering whether the condition has been fully treated I am satisfied that there is corroborating evidence of the condition, that the applicant has received treatment as recommended by an ENT surgeon and it is a matter of pure speculation that more can reasonably be done to alleviate the functional impacts which the applicant describes.
In these circumstances I am satisfied that the applicant’s Meniere’s disease is permanent and that the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. Indeed it has persisted now for more than 20 years and there is no reason to believe that that will change.
It then falls to assess the applicant’s impairment under Table 11 which covers ‘Hearing and other Functions of the Ear’.
The applicant meets the corroborating evidence requirements for the use of Table 11. The applicant does not ‘usually use’ a hearing aid and so should be assessed without the benefit of one.
According to its terms the applicant is entitled to 20 points under Table 11.
The table relevantly provides:
The person has … continual ringing in the ears that interferes with hearing due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
The evidence of the applicant is that he has continual ringing in the ears that interferes with his hearing. The evidence establishes that the cause of this is the Meniere’s disease from which he suffers. Objective evidence establishes that he is completely deaf in his right ear and he has difficulties with high frequencies in his left ear.
The respondent however has directed my attention to two decisions of the Tribunal that have approached Table 11 on the basis that paragraph (2) of the 20 point descriptor in Table 11 should be read down having regard to paragraph (1) of the descriptor. The most relevant case is Dickson and Secretary Department of Social Services [2018] AATA 1087. In that decision Member Hyman said:
In the individual case of Table 11, it is first apparent that the chapeau of each box must be met – In the 20-point case, the functional impact on hearing (in this instance) must be severe. This means, for example, that the degree of hearing interference from tinnitus under paragraph 2 must approximate the hearing loss set out in paragraph (1) of that box.
I am not satisfied that such an approach is sound as a matter of statutory interpretation. The Determination includes rules for applying the Impairment Tables. Part 2, 5(3) provides:
In the Tables:
(a) subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and
(b) the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it, if any; and
(c) the introduction to each Table sets out further rules with which to apply the Tables and rate an impairment.
descriptor means the information set out under the column headed “Descriptors” in each Table, describing the level of functional impact resulting from a permanent condition.
Paragraph (b) above is a little ambiguous. It can be read as describing either a one step process or a two-step process. In the one step process, the level of impact is assessed by reference to the particular examples set out in the box, and if the case falls within an example written in plain script then it automatically follows that it should be assessed as being of the level identified in italics (mild, moderate, severe). In the two-step process it would appear to require the decision maker to be satisfied that the functional impact falls within the example in plain text but they must also consider whether it meets the adjective specified in italics above (mild, moderate, severe).
In Dickson, the Tribunal appears to have taken a third course which was to read paragraph (2) of the severe category in Table 11 as an adjunct to paragraph (1) such that the descriptors in both paragraphs must be met. This interpretation does not appear to be open. The word ‘or’ is used between the two paragraphs indicating that paragraph (2) provides an independent means by which the ‘severe’ descriptor can be met.
Consequently, I am not prepared to add to the requirements in paragraph (2) by reference to the requirements of paragraph (1). To do so would require me to ignore the text of Table 11. The High Court has repeatedly emphasised that in the process of interpretation the text is critical (see for example FCT v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]). It would be a significant step to simply read the word ‘or’ out of Table 11.
Turning then to the two interpretations which I do think are open – the one or two step process – it is unnecessary for me to make a decision. I am satisfied that the applicant’s condition meets the requirements of example (2) in the ‘severe’ descriptor and I am satisfied that the functional impact is severe. The applicant is deaf in his right ear, has constant ringing. He is unable to hear high frequencies in his left ear and he suffers regular bouts of vertigo followed by debilitating migraines. In combination all of these functional impacts add up to severe functional impact.
The only remaining question is, does the applicant have a continuing inability to work.
Continuing inability to work
A person has a continuing ability to work because of an impairment if the Secretary is satisfied that:
(a) in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of the program of support within the next 2 years.
Subsection (3) specifies matters which are not be had regard to.
Subsection (5) provides that:
In this section:
"work" means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
The Secretary contends that with treatment, the functional impairments arising from the Applicant’s conditions do not prevent him from:
(a)Undertaking work of at least 15 hours per week within 2 years; or
(b)Undertaking a training activity that would equip him to work 15 hours per week within two years.
I do not accept that submission. On 25 November 2020 the ESA assessor identified that the applicant had a temporary work capacity of 0-7 hours. I agree with that assessment. The applicant at the time of assessment had 0 hours of work capacity. For reasons which are not explained in the report or any subsequent report, the claim is made that the applicant’s work capacity improved by February 2021 to 8-14 hours and could with intervention increase to 15-22 hours within 2 years. How this conclusion is reached is not explained.
The experience of the applicant has been that he was working as a chef until 2013. Since that time his lower limbs have crumbled and his ability to sit, stand and walk have been severely curtailed. His lower limbs continue to deteriorate. As problems with his knees have been addressed surgically his ankles have declined. His hearing loss is very significant and he has migraines and issues with his balance. The reports before me make no attempt to explain what can be done for the applicant that will lift his capacity to work to 15 hours per week on wages above the minimum wage. The identified interventions are extremely vague and provide no proper basis for a finding that improvement is likely or possible given the trajectory of the applicant’s medical conditions.
I am satisfied that the applicant’s impairments are sufficient to prevent him from doing any work independently of a program of support within the next two years. I am also satisfied that any training activity is unlikely to enable him to do any work independently of a program of support within the next two years.
The decision under review is set aside and the application for Disability Support Pension is remitted to the respondent for determination in a manner consistent with these reasons for decision.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan
...........................[sgd]...........................
Associate
Dated: 20 December 2022
91. Date(s) of hearing:
92. 11 July 2022, 14 July 2022
93. Date final submissions received:
94. 14 July 2022
95. Applicant’s representative:
96. Self-Represented
97. Solicitor for the Respondent:
98. Ms Cindy Huang, Services Australia
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