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

Paiker and Secretary, Department of Social Services (Social services second review) [2020] AATA 4533 (11 November 2020)
Division:GENERAL DIVISION
File Number: 2019/8140
Re:Alan Paiker
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:11 November 2020
Place:Perth

The decision of the Authorised Review Officer dated 4 September 2019, as affirmed by the AAT1 on 13 November 2019, is set aside and substituted with the new decision that the Applicant met the eligibility requirements for a DSP during the Qualification Period.
.....................[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – whether the Applicant had an impairment rating of 20 points or more under a single Impairment Table – Impairment Tables 1, 2, 3, 7 – rheumatoid arthritis, peripheral neuropathy, depression – Applicant found to have a severe impairment rating – Reviewable Decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(5)
Social Security (Administration) Act 1999 (Cth) – s 179(2)(a), sch 2, cl 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(4), 6(5), 6(6), 10, 10(5), 10(6), 11, Table 1, Table 2, Table 3, Table 7
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Kuzmanovic and Secretary, Department of Social Services [2016] AATA 749
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

SECONDARY MATERIAL
Guides to Social Policy Law: Social Security Guide – [3.6.2.112]
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
11 November 2020
OVERVIEW

The Applicant is a 63-year-old man who is seeking review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of the Administrative Appeals Tribunal (Tribunal).
He initially lodged a claim for a disability support pension (DSP) on 9 August 2017

(T15/143–172). However, his claim was rejected by Centrelink on 17 August 2017 (T17/174–175) (Original Decision). The basis for the rejection was that the Applicant was not eligible for a DSP because he did not have 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 (Cth) (the Impairment Tables).
After the rejection, the Applicant provided additional medical evidence to Centrelink in support of his application. This included letters from his neurologist, Dr Silbert, and medical certificates from various medical practitioners (T19-T23/178-182).
A Centrelink rehabilitation counsellor assessed the Applicant’s medical eligibility for DSP on 26 May 2018 (T26/185-186). The rehabilitation counsellor recommended a Job Capacity Assessment (JCA) be undertaken “to further assess medical eligibility and apply an impairment rating/s if appropriate” (T26/186).
A face to face JCA was undertaken by a registered psychologist and a registered occupational therapist on 24 July 2018. The results of this assessment were recorded in a JCA Report, dated 30 July 2018 (T29/189-198).
The assessors found that the Applicant’s rheumatoid arthritis and peripheral neuropathy conditions were fully diagnosed, treated and stabilised. They recommended an impairment rating of 10 points under Table 2 of the Impairment Tables for the Applicant’s rheumatoid arthritis. They also recommended an impairment rating of 5 points under Table 7 for the Applicant’s peripheral neuropathy condition (T29/193-194).
However, the assessors found that the Applicant’s depression was not fully diagnosed, because although there was medical evidence from his neurologist and general practitioner as to the Applicant’s depression, it had not been diagnosed by a psychiatrist or clinical psychologist (T29/192).
They further assessed the Applicant as having a capacity for work within two years with intervention of 15 to 22 hours per week (T29/195).
The Applicant asked for an internal departmental review of the Original Decision. However, on 4 September 2019, an Authorised Review Officer (ARO) of Centrelink wrote to the Applicant to advise him that his review was unsuccessful (T36/205) (ARO Decision).
The Applicant then sought review of the ARO Decision in the AAT1 (T37–T38). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 13 November 2019 (T2/5-22).
The AAT1 decision of 13 November 2019, which affirmed the ARO Decision of 4 September 2019, is the Reviewable Decision that is currently before the AAT2

(s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth) (Administration Act)).
On 9 December 2019, the Applicant lodged an application (which was dated 3 December 2019) seeking review of the Reviewable Decision in the AAT2 (R2, Annexure A).
ISSUE
The overall issue for determination by this Tribunal is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment;
(b)if so, whether the impairment was fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work”.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 20 August 2020. The parties appeared by telephone.
The Applicant was self-represented. Ms Zinn of Mills Oakley Lawyers appeared for the Respondent. Oral submissions were made by both parties. The Applicant also gave oral evidence to the Tribunal.
The following documentary material was admitted into evidence at the hearing:
(a)
email from the Applicant dated 24 March 2020, with attached statement dated

21 March 2020 regarding his “appeal against decision – dissability [sic] support pension” (Exhibit A1);
(b)section 37 (T-documents) numbered T1 to T45, comprising 282 pages (Exhibit R1); and
(c)Respondent’s Statement of Facts and Contentions, dated 1 May 2020 with:
(i)Annexure A – Application for second review of decision with attached submissions filed with the Tribunal on 9 December 2019;
(ii)Annexure B – Program of Support calculation.
(Exhibit R2).
LEGISLATION
Qualification for DSP
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(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; …
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… 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.
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
Fully diagnosed and fully treated
(5)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.
Fully stabilised
(6)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.
Sections 10 of the Impairment Tables sets out the applicable Table to apply when assessing impairments. It provides:
Selection steps
(1)Table selection is to be made by applying the following steps:
(a)      identify the loss of function; then
(b)      refer to the Table related to the function affected; then
(c)       identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
“Table 1 – Functions requiring Physical Exertion and Stamina”; “Table 2 – Upper Limb Function”, “Table 3 – Lower Limb Function” and “Table 7 – Brain Function” are the Impairment Tables relevant to the Applicant’s claim for a DSP and are discussed in more detail below.
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
Section 11 of the Impairment Tables states:
(1)In 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; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(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.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied …
Continuing inability to work
One of the qualification criteria for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
Paragraph 3.6.2.112 of the Guides to Social Policy Law: Social Security Guide (the Guide) lists factors to consider in determining whether a person has a continuing inability to work:
The following factors are also considered when determining whether a person has a [continuing inability to work]:
·physical and intellectual characteristics which would be required to perform any work,
·the impact of a person's impairment/s on their ability to demonstrate those characteristics, currently and within the next 2 years,
·the impact of a person's impairment/s on their ability to:
oregularly report to work,
opersist at work tasks,
ounderstand and follow work instructions,
ocommunicate with others in the workplace,
otravel to/from work,
omove around at work,
oattend to their personal care needs in the workplace,
omanipulate objects at work,
oexhibit appropriate behaviour at work,
oundertake a variety of tasks and to alternate between tasks,
olift, carry and move objects at work,
·whether a person requires a moderate to high level of ongoing assistance to maintain the employment,
·the impact of a person's impairment/s on their ability to undertake training activities (including mainstream training programs and programs designed specifically for people with physical, intellectual or psychiatric impairments),
·whether such training is likely to enable the person to do any work within the next 2 years.
The Guide also lists factors to be disregarded by decision-makers in determining whether a person has a continuing inability to work:
The following factors are not considered when determining whether a person has a [continuing inability to work]:
·the availability of the person's usual work in the locally accessible labour market…
·the availability of any work the person could do or be trained for, within the locally accessible labour market,
·the availability to the person of a training activity … that would assist in developing work skills,
·the availability to the person of any kind of transport (public or private) to travel to and from work,
·the person's motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment, e.g. psychiatric disability,
·difficulties with literacy, numeracy or language which are not directly attributable to a medical condition,
·the person's preferences regarding the type of work or training,
·the person's potential attractiveness to an employer in a particular area of work, and
·employer preferences and discriminatory practices that may exist in the open labour market.
Section 94(3B) of the Act provides that “[a] person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table” (Original emphasis).
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment, they will not be required to actively participate in a program of support.
Program of Support

A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Section 94(5) of the Act continues to define “work” as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
(Original emphasis.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. The Applicant lodged his claim for a DSP on 9 August 2017. Consequently, the relevant qualification period is

9 August 2017 to 8 November 2017 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)

68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the court concerning the operation of these important provisions.

It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at 7 [27] and [28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from impairments during the Qualification Period?
The Respondent accepted that the Applicant had physical impairments during the Qualification Period (transcript/6), and therefore satisfied s 94(1)(a) of the Act. This is supported by the medical evidence before the Tribunal, which confirms that the Applicant suffered from rheumatoid arthritis, peripheral neuropathy and depression during the Qualification Period (see two letters from Dr Silbert, both dated 14 September 2017, in R2/Annexure A). Accordingly, the Tribunal finds that the Applicant suffered from these impairments during the Qualification Period.
Were the impairments permanent at the time of the Qualification Period?
The Respondent accepts that the Applicant’s rheumatoid arthritis and peripheral neuropathy conditions were permanent because they were fully diagnosed, treated and stabilised at the time of the Qualification Period (R2 [41] and [45]).
This is confirmed by the medical evidence before the Tribunal showing that the Applicant’s peripheral neuropathy condition was diagnosed in 2010 (T6/124). A letter to general practitioner Dr Cullingford from neurologist Dr Ho, dated 6 December 2016, stated that the Applicant was investigated by neurologists Dr Tuch and Dr Silbert for peripheral neuropathy, suggested a diagnosis of peripheral neuropathy and recommended that he be referred to Dr Silbert (T10/136). In a letter dated 14 September 2017, Dr Silbert confirmed the diagnosis of peripheral neuropathy for the Applicant, described the condition as “permanent”, and stated that the Applicant was undergoing treatment (T19/178). Further, a letter from Dr Silbert dated 15 June 2017 confirmed that the Applicant was diagnosed with peripheral neuropathy in 2012 and that this condition had been “extensively investigated” (T12/139). This letter further describes treatment in terms of managing the Applicant’s condition. The Tribunal finds that the medical evidence before it corroborates that the Applicant’s peripheral neuropathy was permanent at the time of the Qualification Period.
Similarly, with respect to the Applicant’s rheumatoid arthritis condition, in a letter dated 5 July 2016, the Applicant’s general practitioner, Dr Cullingford, confirms that the condition was diagnosed in 2003, that after a period of remission it flared up again in 2015 and that the Applicant’s rheumatologist, Dr Will, had put him on medication (T6/124). A letter from rheumatologist Dr Ng dated 22 December 2016 stated that the Applicant’s “arthritis was active despite ongoing treatment” (T11/138). A further letter from Dr Ng dated 12 June 2018 also refers to the Applicant’s rheumatoid arthritis condition remaining active despite continuing with his medication (T27/187). The Tribunal finds that this evidence corroborates that the Applicant had been fully diagnosed, and that that he was undertaking ongoing treatment which had stabilised his condition at the time of the Qualification Period.
In his letter dated 14 September 2017, neurologist Dr Silbert referred to the chronic pain from the Applicant’s peripheral neuropathy condition having resulted in depression and referred to medication that the Applicant was taking for his depression (T19/178). In a medical certificate dated 17 May 2018, the Applicant’s general practitioner referred to the Applicant having depression, with the symptom of “low mood” and with his treatment as “will see psychiatrist” (T25/184). However, the evidence indicates that the Applicant did not see a psychiatrist, Dr Das, until approximately 9 August 2018, which was approximately nine months after the Qualification Period (T30). In a letter of this date, Dr Das confirmed that the Applicant was suffering from “major depression”, was taking anti-depressant medication and had started seeing a psychologist for “CBT” (Cognitive Behavioural Therapy) (T30/199). Therefore, the Tribunal finds that at the time of the Qualification Period, the Applicant had not yet been diagnosed by a psychologist or a psychiatrist (as required by the second dot point to Table 5). Also, he had only started seeing a psychologist after the Qualification Period, which indicates that his depression had not been fully treated and stabilised at the time of the Qualification Period.
This means that the Tribunal cannot determine any points for the Applicant’s depression because it was not permanent at the time of the Qualification Period. However, it can determine the functional impact of the Applicant’s rheumatoid arthritis and peripheral neuropathy conditions at the time of the Qualification Period in addition to how many points should be allocated to these conditions under the relevant Impairment Tables.
Did the Applicant have an impairment rating of at least 20 points under the Impairment Tables?
This section will outline the numerous functional impacts caused by the Applicant’s rheumatoid arthritis and peripheral neuropathy impairments.
Rheumatoid arthritis
The Applicant’s evidence at the AAT2 hearing was that during the Qualification Period he could use a computer keyboard “finger by finger…one key at a time”. He had some difficulty turning the pages of a newspaper. The Applicant could do some basic shopping such as buying a small amount of milk but required assistance to put shopping in a bag. He had difficulty gripping a pen, and had to change the way he did so due to stiffness and pain in the joints in his fingers. He stated that he could not bend the small joints in his fingers (transcript/19-22).
The Applicant could hold onto the steering wheel of his car. His evidence was that he had difficulty getting in and out of a car and was “incredibly stiff” after long car trips and sitting in the same position due to his rheumatoid arthritis. He could, however, drive his son to school each day which took approximately 10 minutes (transcript/21).
The Applicant explained that he found buttons and laces to be difficult so he would wear clothing without them, for example t-shirts that he could slip over his head and shorts. He thought that he could pick up an empty cardboard box if he got “right underneath” it and used his arms rather than his hands because his joints were very stiff, making it difficult to grasp. He could not open bottles or open screw lids. The Applicant thought he would be able to put a few shirts back in the cupboard, but that he could not change sheets on a bed. He has cleaners, and otherwise his wife does most of the housework (transcript/21-26).
In a letter dated 18 March 2016 (T4/114), Dr Will stated that the Applicant’s “standing and walking tolerance is… restricted to no more than about 30 minutes”. Dr Will further described the functional impact of both the Applicant’s rheumatoid arthritis and peripheral neuropathy (T4/114):
He is significantly restricted with regard to his daily activities due to his Rheumatoid Arthritis and peripheral neuropathy. All activities of daily living are restricted due to his current joint symproms [sic] and neuropathy. He has some difficulty with dressing, getting out of chairs, eating, walking on flat ground, showering and gripping. He has much difficulty with doing any household chores such as vacuuming or light gardening. He has been unable to take on any accounting assignments. He used to play social tennis and squash but has given up these activities. he [sic] has not taken on any work assignments for a number of months because of his constant pain and stiffness and inability to concentrate.
A letter from general practitioner Dr Cullingford dated 5 July 2016 stated that the after Applicant’s rheumatoid arthritis flared in 2015 he experienced symptoms including “shortness of breath and eye discomfort and [j]oint pain and swelling” and that the Applicant “continues to have pain in all joints and experiences fatigue on a daily basis” (T6/124).
In an attachment to a letter dated 15 July 2016 (T7/126), the Applicant described his symptoms as:
[J]oint pain, stiffness and fatigue on a daily basis. The small joints under my feet are inflamed making walking a painful experience for me as well as swollen ankles. I also experience pain and stiffness to a number of my joints which includes my elbows, knees, hips, shoulders, ankles, hands and feet.
In a letter dated 22 December 2016 (T11/138), rheumatologist Dr Ng stated that:
His arthritis is active with functional impairment in his hands, knees and ankles limiting tolerance of repetitive hand activity, prolonged standing and walking. Tiredness which impairs concentration stems from both active disease and disrupted sleep. Although sedentary duties are appropriate he won’t be able to work at a competitive pace as he needs frequent rest breaks to alleviate pain. Until his arthritis is better controlled this is his handicap with respect to gainful employment.
A letter from Dr Ng, dated 12 June 2018 (T27/187), records that the Applicant’s rheumatoid arthritis remains active despite the combination of medication the Applicant was taking.

Dr Ng stated that:
Treatment is well tolerated but he has residual synovitis in his ankles which are mildly swollen and tender, worse on the left. Knees are also puffy and tender precluding crouching and kneeling. Tenderness is present over right greater trochanter from greater trochanteric bursitis. Although there is only minimal swelling in his hands, on clenching fists lightly his knuckles hurt and both wrists are mildly swollen and tender whilst elbows and shoulders are fine with no palpable rheumatoid nodules or extra articular rheumatoid manifestation.
Peripheral neuropathy
In his evidence at the AAT2 hearing the Applicant described the symptoms of his peripheral neuropathy condition (transcript/10-11):
So, technically I’m dealing with a number of ongoing - or pain on a daily - neuropathic pain on a daily basis where, you know, I walk it feels like I’m walking on little broken pebbles and that’s 24/7 and then I have electric shocks up and down my legs every day and a burning sensation under my feet. That’s just from a sensory point and that started moving up my legs. I’ve got numbness from my toes leading past my shins and then you’ve got the automated function where you’ve got bowel, bladder dysfunction, that can keep you up all day and night, you just never know what’s going to happen.
At the AAT2 hearing, the Applicant stated that he could not walk for more than 10 minutes because of the significant pain underneath his feet. A five-minute walk was manageable, but he described being in extreme pain if he walked for more than 10 minutes. The Applicant described walking as “like walking on raw copper and you know, and that’s – as you put more and more pressure on your feet, so obviously, the pain gets worse”. The Applicant’s evidence was that if he went to the shops, he would always drive because it was too far for him to walk. He stated that he tried to park close to where the shopping trolleys were located, and that he would use a trolley to assist him to walk. He stated that holding onto a trolley helped him to walk because of the sensations in his feet which he described as, “it’s a very strange feeling, because the front part of my feet from my toes, leading up towards my shin, that’s numb and then, but the bottom part isn’t numb” (transcript/19-25).
The Applicant’s evidence was that his peripheral neuropathy condition causes him to have difficulty sleeping due to pain and due to the dysfunction that results from the condition. He described this as follows (transcript/25):
I’ve got sensory as well as autonomic dysfunction, so from a sensory point, you’ve got this terrible burning sensation under your feet and then you’ve got electric shocks going up and down your legs and so that’s just from the sensory. But then from an autonomic side of things, you have to, you know, there’s bowel and bladder dysfunction, so you have to really go to the toilet many times a night. So, it’s yes, no, you can’t get into a deep sleep and which one really needs to function properly in order to – especially if you’re working, holding down a job, you’ll notice that that would be a big problem. So, in my case, because I’m not working, I tend to nap in the daytime. I can just fall asleep, you know, just in a chair and I think that’s also because you know, you haven’t slept. So, sleep deprivation is a big problem with regard to this.
The Applicant also described experiencing shortness of breath and difficulty swallowing, which caused him to nearly choke on a few occasions (transcript/25-26).
The Applicant further described cognitive difficulties he had due to the medications that he was taking for his conditions. He stated that he could not concentrate enough to read a novel but could read a newspaper. He described trying to watch documentaries, but that he would fall asleep whilst watching them, which he also thought was possibly due to his issues with lack of sleep. The Applicant used to be an accountant but described no longer being able to do calculations in his head and needing to use a calculator. Household budgeting was now done by his wife. The Applicant had to use a calendar to remember appointments and write down anything he needed to remember (transcript 28-29).
In a written statement to the Tribunal dated 21 March 2020, the Applicant further outlined the functional impact of his peripheral neuropathy condition (A1). The Applicant described some of the symptoms of his peripheral neuropathy condition as follows (page 1–2 of statement dated 21 March 2020 in A1):
Ongoing neuropathic pain to my feet and legs. I deal with this pain every day and night 24 7.
Numbness from my toes leading up to the front of my feet towards my knees .
Electric shocks felt day in and night up and down my feet and legs and occasionally to my hands and fingers.
Extreme burning sensation under my feet especially at night.
Sticky feet when having a shower ,my feet stick to the tiles ,,, [sic] feet are extremely sensitive to touch .Often have to sleep with socks on ..
The small unmylenited [sic] C fibres in the skin of my feet have been damaged and the result being that when I walk it feels like I am walking on broken glass .I can only stand for very short periods of time before the pain becomes unbearable .I try and be as pro active as possible when going to a shopping centre .Always park near the trolley stand .Grab onto a trolley before proceeding into a shopping centre .Thankfully most shopping centres provide benches which enables me to rest my feet at frequent intervals .Because of the chronic pain ,I am only able to walk very short distances and then have to rest my feet as the pain becomes unbearable.
My feet are extremely sensitive to touch.
Further, the Applicant described some of the other symptoms that were related to his peripheral neuropathy condition (page 3–4 of statement dated 21 March 2020 in A1):
I do not experience occasional symptoms, my symptoms are chronic, painful and ongoing 24 7 . I experience daily chronic pain and have to deal with ongoing automated dysfunction of my Organs, especially bowel and bladder issues. .Please read my Points that I have discussed re my sensory and autonomic dysfunctions.
I experience chronic pain when performing physically demanding activities and always have difficulty when walking very short distances .I never walk to a local facility .When shopping I always park very close to the trolley stand and use a trolley for physical support .I always have to stop and sit on the chairs provided by the shopping centre and walk very short distances so not to inflame the damaged unmylenited [sic] c fibres in the skin under my feet which have been damaged .as my toes and the front part of my lower legs ,below my knees are numb ,the support of a trolley helps me to balance myself when walking through a shopping mall .I always have to stop and rest after walking very short distances .
Because of my chronic pain ,sensory and autonomic dysfunction as well as ongoing fatigue I am unable to perform most work related tasks.
In this statement, the Applicant also described having bowel and bladder dysfunction, swallowing issues, low blood pressure which causes him to feel dizzy when he stands up, excessive sweating, cracking skin, sticky feet, pain and swelling in his lower legs, frequent dryness to his eyes and mouth, hand tremors and itchy spells (page 2 of statement dated 21 March 2020 in A1).

Additionally, the Applicant described difficulty with physical stamina as follows (page 4 of statement dated 21 March 2020 in A1):
I experience frequent chronic pain and fatigue on an ongoing basis and am unable to walk far outside because of the damage to the unmylenited small c fibres in the skin of my feet which feels like walking on small uneven pebbles or broken pieces of glass ... I always drive to the local shopping centres .I have difficulty walking around a shopping centre and have to sit down on benches at frequent intervals .I have difficulty performing work related tasks of a clerical sedentary or stationery nature because of the pain and stiffness to my joints ,electric shocks to my feet ,legs ,hand and fingers as well as on going fatigue .I also have to deal with on going bowel and bladder issues.
The letter from Dr Will, dated 18 March 2016 (T4/114), stated that the Applicant had burning pain in his feet at night and difficulty sleeping. Dr Will wrote that the Applicant could not stand for more than 30 minutes and that he had “a lot of difficulty concentrating and functioning as an accountant because of his inability to sleep”.
A letter from neurologist Dr Ho, dated 6 December 2016 (T10/136), stated that she had assessed the Applicant for his peripheral neuropathy. She referred to numbness in the Applicant’s fingers and toes and the Applicant’s description of “‘burning electric shock’ sensations in the soles of his feet causing difficulty with walking”. She further referred to this burning sensation keeping the Applicant awake at night. Dr Ho also stated that the Applicant, “has had difficulty breathing, intermittent dysphagia, frequent bowel actions, fatigue and flare-up of his rheumatoid arthritis”. Dr Ho observed that, “[o]n examination, his gait was guarded because of painful souls of feet”, “[r]eflexes were diminished” and that the Applicant had “increased pinprick sensation[s] in sock distribution to lower third of his legs”.
In a letter dated 15 June 2017 (T12/139), neurologist Dr Silbert noted the Applicant’s description of his symptoms as follows:
He describes the feeling in his feet as ‘like walking on glass’. At night the feet can burn, and the pain tends to gradually build up during the day whilst he is active. His feet feel very sensitive if he treads on anything irregular.
A letter from Dr Silbert dated 14 September 2017 (T19/178) described some of the limitations that the Applicant’s conditions caused him to experience:
At the time of my initial review [15 June 2017] I noted that he was not working as a result of fatigue and chronic pain in his feet.
His chronic painful feet were attributed to a sensory motor peripheral neuropathy with a significant small fibre component.
As a result of the small fibre peripheral neuropathy, he has chronic pain that limits his ability to walk distances, and with the constant discomfort he has disturbance of sleep, and it affects his ability to concentrate.
His chronic pain has resulted in depression (that further aggravates his fatigue and concentration ability), and he is now taking [name of medications omitted]. [One of these medications] is an additional factor that interferes with his concentration ability.
Similarly, in another letter dated 14 September 2017 (T20/179), Dr Silbert said that the Applicant:
[I]s battling with his symptoms of neuropathy, primarily because of his painful feet that tends to limit his walking distances, but also interferes with his sleep quality…
As a result of his painful neuropathy and his other medical problems (rheumatoid arthritis and cardiac issues), he does have low mood with fatigue.
Now that the evidence of the functional impact of the Applicant’s conditions has been outlined, the following section will assess the functional impacts against the relevant Impairment Tables in order to assign impairment ratings.
Assigning impairment ratings for the Applicant’s conditions
As is evident from the above discussion, the Applicant’s conditions of rheumatoid arthritis and peripheral neuropathy have caused numerous functional impacts, and in totality, they affect multiple areas and systems in his body. For these reasons, in the Tribunal’s opinion, the most relevant Table is “Table 1 – Functions requiring Physical Exertion and Stamina”.
Relevant to Table 1, Dr Ho and Dr Silbert both described the Applicant as suffering from fatigue. In 2016, Dr Ho referred to the Applicant having difficulty with his breathing. Dr Cullingford also referred to the Applicant having shortness of breath in 2016. In addition, Dr Will referred to the Applicant having difficulty doing any household chores such as vacuuming or light gardening and indeed, to all activities of daily living being restricted due to the Applicant’s conditions. The medical evidence also confirmed that the Applicant has difficulty sleeping due to pain and ongoing bowel and bladder issues. He has difficulty swallowing and, as discussed above, difficulty with and significant pain when walking including feeling like he is walking on broken glass and pinprick sensations in his lower legs.
Based on the evidence of the Applicant, which is supported by the medical evidence, the Tribunal finds that the Applicant’s conditions have a “severe” functional impact on activities requiring physical exertion or stamina and should therefore be afforded 20 points under Table 1. This is because the Applicant experienced symptoms when performing light physical activities; he could not walk around a shopping centre without reliance on a shopping trolley, and as confirmed by Dr Will, he had difficulty even performing light household activities. The medical evidence before the Tribunal, including the evidence about the Applicant’s shortness of breath, issues with swallowing and choking, fatigue and bowel and bladder issues support a finding that the Applicant is unlikely to be able to sustain even sedentary work due to his issues with physical stamina, including being unable to undertake clerical, sedentary or stationary tasks for at least three hours. Dr Will also referred to the Applicant being unable to undertake his work as an accountant due to the functional impacts of his conditions. The fact that the Applicant could not even undertake sedentary work further indicates the seriousness of the functional impact of his conditions on his physical stamina.
Although the Tribunal has assigned the Applicant 20 points under Table 1, for the sake of completeness, and given the complex and at times overlapping symptoms and functional impacts, other relevant Tables will now be considered.
An application of “Table 2 – Upper Limb Function”, particularly with respect to the Applicant’s rheumatoid arthritis condition, would support a rating of 10 points for a “moderate” functional impact. This is because the Applicant has difficulty picking up a light bulky object such as a cardboard box, difficulty holding a pen or pencil, difficulty doing up buttons and tying shoelaces, difficulty using a computer keyboard and cannot unscrew a lid on a soft drink bottle. The medical evidence from Dr Ng and Dr Will referred to the Applicant’s joint pain and swelling, and Dr Will referred to the Applicant being “significantly restricted with regard to his daily activities due to his Rheumatoid Arthritis and peripheral neuropathy” and “[a]ll activities of daily living [being] restricted”, including dressing himself, eating, showering and gripping (T4/114). The Applicant does not, in the Tribunal’s opinion, fall within the “severe” functional impact rating of 20 points under Table 2. This is because a severe rating requires “most of” the five examples stated to apply to the Applicant. These examples require the Applicant to have “limited movement or coordination in both arms or both hands”, “severe difficulty handling moving or carrying most objects”, difficulty using a computer keyboard despite adaptions, “severe difficulty using a pen or pencil” and “severe difficulty turning the pages of a book without assistance”. The Applicant was, however, able to undertake activities such as turning pages. He had some difficulty holding a pen, and he could use an unadapted keyboard, but with some difficulty. Thus, if Table 2 were applied, it is the Tribunal’s opinion that a “moderate” rating of 10 points would be applicable.
If “Table 3 – Lower Limb Function” were applied, the Applicant’s impairments would support a “moderate” rating of 10 points. This is based upon the evidence of the Applicant that he was unable to walk far outside of his home and that he always drove to the shops, parked near trolleys (which he would use to assist him to walk), had some difficulty walking without a rest and was in severe pain after walking for 10 minutes. The Applicant’s evidence is corroborated by the medical evidence, which described the Applicant’s symptoms to be of a severe nature, including pain and electric shock sensations in his feet and legs and difficulty walking. For example, Dr Silbert referred to the Applicant having chronic pain in his feet that limited his ability to walk distances. Dr Will also stated that the Applicant had difficulty getting out of chairs and walking on flat ground. Dr Ng stated that the Applicant had difficulty with prolonged standing and walking. In the year prior to the Qualification Period, in a letter dated 18 March 2016 (T4/114), Dr Will stated that the Applicant’s “standing and walking tolerance is restricted to no more than about 30 minutes”. However, based on the medical evidence more proximate to the Qualification Period, this tolerance was likely significantly reduced since the letter was written. For these reasons, the Tribunal would apply a “moderate” rating of 10 points under Table 3.
If “Table 7 – Brain Function” were applied, the cognitive issues experienced by the Applicant would support a rating of 5 points. The Applicant’s evidence regarding his difficulties with concentration was corroborated by Dr Silbert who referred to the Applicant’s sleep disturbance and medication affecting his ability to concentrate. Dr Will also noted the Applicant’s inability to concentrate as a symptom of his conditions. This functional impact would warrant greater than a rating of zero under Table 7. A zero rating is reserved for “no functional impact resulting from a neurological or cognitive condition”. A rating of five for a “mild” functional impact can be awarded under Table 7 if a person can “complete most day to day activities without assistance” and has mild difficulties in at least one of the areas listed in that part of the Table. This includes “attention and concentration”, “problem solving” and memory, which are areas the Applicant had trouble with. For these reasons, if Table 7 were applied, the Tribunal would assign an impairment rating of 5 points.
However, as noted above, the Tribunal has found that the most relevant Table is “Table 1 – Functions requiring Physical Exertion and Stamina”. This is because it most accurately covers the functional impacts of the Applicant’s various losses of function throughout his body caused by his conditions in a single Table. The application of Table 1 also avoids any double counting of functional impacts across more than one Table, which is not permitted by the Impairment Tables (s 10(4) and 10(6) of the Impairment Tables).
Does the Applicant have a continuing inability to work?
As the Tribunal has found that the Applicant had a severe impairment, he is not required to have actively participated in a program of support. However, he must satisfy the “continuing inability to work” requirement under s 94(1)(c)(i) of the Act to be eligible for a DSP.
The Respondent contends that the Applicant does not have a continuing inability to work and relies upon the JCA reports dated 22 September 2016 (T8/128-134) and 30 July 2018 (T29/189-198). Both JCA reports assessed the Applicant as having a work capacity of
15-22 hours per week within two years with intervention (T8/132; T29/195).
The assessors identified “light skilled work” such as accounting or business coaching as suitable. With reference to Kuzmanovic and Secretary, Department of Social Services [2016] AATA 749 at [57], the Respondent contends that the Tribunal should accept the assessment of the assessors because “[t]he JCA assessors have specialist knowledge and experience in identifying barriers to employment, interventions (such as Disability Employment Services), available programs and suitable occupations and are qualified to determine a person’s work capacity” (Exhibit R2).
The Tribunal respectfully disagrees with the findings of the JCA assessors on these occasions. The findings of the JCA assessors were premised on a different, and less severe, assessment of the Applicant’s functional impairments than this Tribunal has arrived at. This Tribunal has also had the advantage of considering further medical evidence submitted by the Applicant’s treating medical practitioners, which was not before the JCA assessors. This included evidence from Dr Will who referred to the Applicant being unable to undertake his work as an accountant. Dr Silbert also noted that the Applicant was not working as a result of fatigue and chronic pain in his feet and noted that the Applicant’s concentration ability had been affected.
Having regard to the factors in the Guide, and the totality of the medical evidence before it, the Tribunal finds that the Applicant did not have a work capacity of 15-22 hours at the time of the Qualification Period. Indeed, as subsequent medical evidence has confirmed, he did not have any capacity for any type of work or training with or without assistance in that
two-year period. The Tribunal has also had regard to the factors in the Guide in forming this conclusion. The medical evidence shows that the Applicant would have had difficulty performing work tasks, even those of a clerical, sedentary or stationary nature, with or without support. Similarly, the Applicant would most likely have been unable to undertake any work or training due to the pain and stiffness in his joints, electric shock sensations in his feet, difficulty with mobility including walking, carrying items, holding a pen or using a keyboard, ongoing fatigue, difficulties with concentration and memory, and ongoing bowel and bladder issues.
Accordingly, the Tribunal finds that the Applicant satisfies the eligibility criteria in s 94(1)(c) and 94(2) of the Act because, at the time of the Qualification Period, he had a continuing inability to work.
CONCLUSION
During the Qualification Period the Applicant met the eligibility requirements in s 94(1) of the Act and was therefore qualified to receive a DSP. This was because his conditions were physical, intellectual or psychiatric impairments that attracted an impairment rating of 20 points under Table 1. He also had a continuing inability to work.
DECISION
The Reviewable Decision is set aside and substituted with a new decision that the Applicant met the eligibility requirements for a DSP during the Qualification Period.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......[Sgd]..............................................................
Associate
Dated: 11 November 2020

Date of hearing: 20 August 2020

Applicant: Self-represented

Representative for the Respondent: Ms A Zinn, Mills Oakley Lawyers

[2020] AATA 4533

11 November 2020

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Statutory Interpretation

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Date of hearing:	20 August 2020
Applicant:	Self-represented
Representative for the Respondent:	Ms A Zinn, Mills Oakley Lawyers