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

Pascoe and Secretary, Department of Social Services (Social services second review) [2021] AATA 2884 (17 August 2021)
Division:GENERAL DIVISION
File Number: 2020/2445
Re:Joseph Pascoe
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:17 August 2021
Place:Perth

The Authorised Review Officer’s decision dated 16 January 2020, as affirmed by the AAT1 on 31 March 2020, is affirmed.
..........................[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 – assigning impairment ratings – whether the Applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables –Impairment Table 4 – Spinal Function – Impairment Table 5 – Mental Health Function – spinal condition – mental health condition – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 23(1), 26, 94(1), 94(1)(a), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s 7
Social Security (Administration) Act 1999 (Cth) ss 179(2)(a), sch 2, pt 2, s 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 6, 5(2), 5(2)(b), 5(2)(c), 6(4), 6(5), 6(6), 10, 11
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
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
17 August 2021
BACKGROUND

The Applicant seeks review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of this Tribunal.
The Applicant initially lodged a claim for a disability support pension (DSP) on 20 June 2016 which was rejected by Services Australia (Centrelink) on 23 July 2016. An authorised review officer (ARO) of Centrelink affirmed the decision on 11 November 2016 and the Applicant unsuccessfully appealed this decision to the AAT1 (see AAT1 decision dated 28 April 2017 in Exhibit R3).
The Applicant lodged a subsequent claim for a DSP on 12 September 2018 (T37/227–257).
On 27 September 2018, the Applicant’s claim for a DSP was rejected by Centrelink because he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T40/266) (Original Decision).
The Applicant requested a review of the Original Decision, which was referred to an ARO. However, on 16 January 2020, an ARO of Centrelink wrote to the Applicant to advise him that the ARO had found the Original Decision to be correct, and that his review was unsuccessful (T46/284) (ARO Decision).
The ARO found that while the Applicant’s spinal condition was permanent in that it was fully diagnosed, treated and stabilised, it could only be assigned an impairment rating of five points under Table 4 – Spinal Function of the Impairment Tables. The ARO further found that the Applicant’s mental health condition was not permanent because it had not been fully diagnosed, and therefore could not been assigned an impairment rating (T46/285–287).
On 13 February 2020, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T48/293). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 31 March 2020 (T2/5–12).
The ARO Decision of 16 January 2020, as affirmed by the AAT1 on 31 March 2020, is the reviewable decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth)) (Administration Act).
ISSUES
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 or impairments;
(b)if so, whether the impairment(s) were fully diagnosed, treated, and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work”.
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal on 9 June 2021. The Applicant appeared in person, gave evidence, and was cross-examined.
Mr K Defranciscis of Sparke Helmore Lawyers appeared for the Respondent by telephone.
The following documentary material was admitted into evidence at the hearing:
(a)letter from Professor Tampin to Dr Koh, dated 23 July 2020 (Exhibit A1);
(b)s 37 T-documents, labelled T1–T52 and consisting of pages 1–408 (Exhibit R1);
(c)supplementary s 37 document, labelled ST1–ST2 and consisting of pages 1–2 (Exhibit R2);
(d)decision of the AAT1, dated 28 April 2017 (Exhibit R3); and
(e)letter from Dr Kosterich, dated 5 April 2017 (Exhibit R4).
LEGISLATION
The legislation applicable to this matter is contained in:
(a)the Act;
(b)the Administration Act;
(c)the Impairment Tables; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …
Each criterion must be satisfied before a person will be qualified for a DSP.
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:
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 in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply 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, in part:
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:
Permanency of conditions
(4)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; 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.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated, and fully 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.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments:
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.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
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.
Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor and medical specialists.
Section 11 of the Impairment Tables states, in part:
(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.
The applicable Impairment Tables in the Applicant’s circumstances are:
(a)Table 4 – Spinal Function;
(b)Table 3 – Lower Limb function; and
(c)Table 5 – Mental Health Function.
Qualification period
Schedule 2, pt 2, s 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 12 September 2018 (T37/227–257). Consequently, the relevant qualification period is 12 September 2018 to 12 December 2018 (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 that, 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]) also 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 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 in so far as they are referrable to the applicant’s condition during the relevant period.
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.)
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:
(5)In this section:
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.

A person is considered to have actively participated in a program of support if they meet the requirements set out in s 7 of the POS Determination. These requirements include that the person must have participated in the program of support for at least 18 months in the 36 months ending immediately prior to the date the person claimed a DSP.
SPINAL CONDITION
The medical evidence before the Tribunal confirms that the Applicant had a spinal condition during the Qualification Period.
A medical certificate dated 27 June 2006 states a diagnosis of “severe discogenic low back pain” which is “likely to persist” (T6/95; see also medical certificates at T19).
The Applicant had surgery (a laminectomy to decompress the nerve roots impingement – T47/291) in 2006. Dr Koh reported in a letter dated 7 February 2020 that the Applicant had a “significant benefit” from this surgery. A letter from Dr Brankov, Orthopaedic Registrar, dated 2 November 2006 (ST1/1), written approximately seven weeks after the surgery reported that “[a]part from minor sensory changes on his left foot, over the area of the little toe, he does not have pain in his left leg or back” and that the Applicant was “back at work … and [was] not taking any more medication”. However, Dr Koh reported in his letter of 7 February 2020 that the Applicant was “quite well until 2010 when his old condition relapsed” (T47/291).
On 1 March 2016, the Applicant underwent a CT scan of his spine which showed “L4/5 and L5/S1 disc spondylotic change with disc height loss” (T17/136). In a letter written on 30 October 2018 during the Qualification Period, general practitioner Dr Koh confirmed that the Applicant (T41/268):
… suffers from chronic severe lower back pain with left sided weakness and numbness of his lower limb from damage to his sciatic nerve. This condition is permanent and will not improve with any treatment.
Accordingly, the Tribunal finds that the Applicant suffered from a spinal condition during the Qualification Period and therefore, s 94(1)(a) of the Act is satisfied.
With respect to whether this condition was permanent (fully diagnosed, treated, and stabilised), the Secretary contends that it was not permanent because the Applicant had not undertaken all reasonable treatment at the time of the Qualification Period (Statement of Facts, Issues and Contentions (SFIC) paragraph [33]). In support, the Secretary relies upon a report dated 1 February 2018 from consultant rheumatologist Dr John Hayes who stated (T34/222–223):
His back pain will only improve if he is prepared to take up regular physical exercise and reduce his weight. I have suggested he take up swimming three times per week, however, Mr Pascoe showed little interest in this.
The Tribunal also notes medical certificates from Dr Kosterich dated 18 May 2016,

20 February 2017 and 2 June 2017, which state a diagnosis of “lumbar strain” as being “permanent” and records the Applicant’s current and planned treatment as being “analgesia [and] physio exercises” (T19/152; T29/210–211).
At the AAT2 hearing, the Applicant said that he went to physiotherapy for approximately two weeks and was told he was doing well and that he could just continue with exercise. The Applicant also felt that Dr Hayes misunderstood his reluctance to swim which was because he could not afford the cost of going to a pool and that he instead started walking more for exercise (transcript/9). At the AAT2 hearing, the Applicant admitted to using cannabis during the Qualification Period to help manage his pain (transcript/17).
In his letter dated 30 October 2018 (T41/268), Dr Koh stated that the Applicant’s back condition “is permanent and will not improve with any treatment”. Further, advanced scope physiotherapist, Professor Tampin, stated in a letter to Dr Koh dated 23 July 2020 (Exhibit A1) that:
Plan: I had reviewed the MRI with one of our neurosurgeons who commented that surgical intervention would likely be of low yield as there is not significant nerve root compression on MRI present. However, as Mr Pascoe gets the numbness mainly in weighbearing [sic], I do wonder if there might be increased nerve root compromise in standing. The MRI was obviously performed in lying.
I did offer him to see a surgeon to discuss possible surgical options, however he does not want to consider surgery. He wants to maintain the status and continue with conservative management. I have discharged him from the Neurosurgery Department.
(Original emphasis.)
The Tribunal prefers the more recent opinion of Dr Koh because it was given during the Qualification Period and therefore likely to be an accurate summary of the position during that period. This is supported by Professor Tampin’s letter, which refers to surgery being of “low yield”, and the “plan” to “maintain the status and continue with conservative management”, and was written after but nevertheless in proximity to, the Qualification Period. Also, the Applicant’s evidence assists to put the evidence of Dr Kosterich and

Dr Hayes in context and to explain why he did not continue with physiotherapy and swimming. Consequently, the Tribunal finds that the Applicant’s spinal condition was fully diagnosed, treated, and stabilised during the Qualification Period.
The Tribunal will now review the evidence of the functional impact of the Applicant’s spinal condition to assign an impairment rating.
The Applicant gave the following evidence at the AAT1 hearing on 31 March 2020 concerning the functional impact of his spinal condition, as summarised by Member Jones (T2/10):
He lives with chronic pain, which becomes very severe with physical activity such as lifting heavy shopping. He takes Panadeine Forte about three or four times a day and has an anti-inflammatory tablet which he takes when the pain flares up.
He lives alone in a rented flat and manages domestic tasks in stages. He can walk for about 100–150 metres. Sitting is painful after 10–20 minutes. He drives a car but avoids long journeys of more than 30–35 minutes. Turning his neck is painful and he relies on wing mirrors. His GP is about 15 minutes away and he usually goes by car. He sometimes uses the bus for this trip and has a very short walk at either end of the journey. If he picks things up off the floor he has trouble getting back up. He normally lies on the couch to watch TV. He can manage personal care such as showering, washing his hair and using the toilet but has to be careful not to sit on the toilet for too long.
The Applicant confirmed that this evidence was correct at the AAT2 hearing (transcript/22).
Also at the AAT2 hearing, the Applicant described having difficulty sitting and that after a matter of minutes he needed to shift around and stretch himself out into a straight position. He also described having difficulty standing. For example, if he is in a queue, he will usually try to sit to wait because after a minute or two his foot starts to become numb, followed by his knee and hip (transcript/11). The Applicant confirmed that he could walk around a shopping centre for approximately 100–200 metres if he kept moving. He is scared to carry anything heavy for fear of pinching a nerve. The Applicant also described doing housework over several days and that he will have to sit down two to three times while doing the dishes. He could sweep or vacuum for short periods (transcript/12). The Applicant said that he could hang out washing on an indoor clothesline at waist height but sometimes needs to sit down whilst doing so because he cannot stand for long. With effort he can hang sheets on a higher washing line outside which he does monthly to avoid doing it weekly or fortnightly (transcript/13; 23).
The Applicant also confirmed at the AAT2 hearing that he could walk for 20 minutes around the block and that he could catch the bus and walk around the city for approximately 30 minutes, with the bus trip taking approximately 20 minutes (transcript/19; see also 21–22). When he is on the bus, he would stand up after five or 10 minutes of sitting down and “do a bit of bending”. He described being able to bend into his washing machine to pick up light washing, but that he had difficulty bending down enough to tie his shoelaces. If he dropped his television remote control, he would get down on his knees to pick it up (transcript/24).
A letter by Dr Kosterich dated 5 April 2017 (R4) described some of the Applicant’s symptoms and functional impacts of his back condition:
This man has longstanding back pain and prior surgery in 2006. He continues to experience pain in the low back on a daily basis and also experience pain in the left buttock and leg. His previous work and training is as a welder which he hasn’t done for a number of years due to his back problems. …
It seems unlikely, due to his symptoms, that he will be able to ever work again as a welder or in any physically demanding role.
I understand that attempts were made at retraining but these were unsuccessful due to pain with sitting in a chair whilst travelling to classes and also sitting in lecture rooms.
Given this and his age, it is highly questionable as to whether or not he will be able to be gainfully employed in the future
A report by Dr Koh dated 7 February 2020 provided further detail about the functional impact of the Applicant’s back condition (T47/291–92):
Mr Pascoe reported his difficulty in turning his head from side to side as well as up and down. He has to turn his body to compensate for the reduced range of neck movement whenever he has to look to the back. This is caused by degenerative cervical condition. He is not able to handle things above his shoulder level without causing neck and shoulder pain.
Clinical examination revealed there is a significant loss of range of neck movement to the extent that will cause him pain if he tries to reach for objects above his shoulder level or turning his head to look backward. Consequently he will not be able to work above shoulder level if employed.
Limitation of his lumbar spine movement is moderately severe due to severe pain that is associated with bending his body forward. He is not able to maintain in this posture for more than a few minutes. He struggled to return his body to upright position.
Kneeling and squatting actions are also difficult to perform.
There is sensory deficit in the front of his left leg and foot due to sciatic nerve damage (permanent).
Other evidence of damage to his sciatic nerve is the absence of ankle and knee reflexes.
Mr. Pascoe said sitting for about 10 minutes or standing at one spot for a few minutes always aggravate his back pain and numbness/weakness in his left lower limb. He has to move away or change body position to ease off these symptoms temporarily. He is not able to walk continuously for more than 10 minutes without increasing pain and weakness in his left lower limb.
In my opinion, Mr. Pascoe’s condition will render him unemployable permanently.
The relevant impairment tables are Table 4 – Spinal Function and Table 3 – Lower Limb function. Based on the corroborated medical evidence, the Tribunal finds that the functional impacts of Applicant’s back condition can only be afforded 10 points under Table 4, being a “moderate” functional impact.
This is because, to have a “severe” functional impact of 20 points, the person must be “unable” to perform one or more of the activities listed in the 20-point section of Impairment Table 4. However, the Applicant:
(a)can perform overhead activities but experiences pain in doing so;
(b)has difficulty moving his head from side to side without moving his trunk, especially when looking to the back, but can do so;
(c)can pick up a light object from a desk or table (see transcript/23–24); and
(d)can remain seated for 10 minutes, but with difficulty.
The Tribunal is also of the opinion, based on the Applicant’s evidence and the corroborating medical evidence, that the Applicant can also be given an impairment rating of five points under Table 3 – Lower Limb Function, being a “mild” functional impact. That is because he has difficulty walking around a shopping centre without a rest, and he is unable to stand for more than 10 minutes.
In summary, the Tribunal finds that:
(a)the functional impacts of the Applicant’s back condition attract an impairment rating of 10 points under Table 4 – Spinal Function; and
(b)the functional impacts on his lower limb functioning attracts an impairment rating of five points under Table 3 – Lower Limb Function.
MENTAL HEALTH CONDITION
The Applicant’s mental health history from when he was a young man was summarised in the AAT1 decision at paragraphs [38]–[40].
Hospital notes indicate that the Applicant sought treatment and was admitted to hospital for mental health issues on 25 and 26 August 2006 (T7/96–105). The notes recorded that the Applicant was admitted to a psychiatric hospital with “depression and overdose” at age 21 (T7/96; see also T4/92–93). The note of 25 August 2006 also recorded a discharge diagnosis of “suicide risk” (T7/96).
Medical certificates from general practitioner Dr Kosterich dated 20 February 2017, 2 June 2017 and 24 November 2017 state that the Applicant has “depression secondary to stress”, that the condition is “temporary” and that the planned and current treatment was “counselling” (T29/210–211; T32/214).
Closer to the Qualification Period, a medical certificate from Dr Koh dated 1 June 2018 stated that the Applicant suffered from the secondary condition of “depression” with a date of onset stated as “several years”, but the condition being “temporary” (T35/224).
In his evidence at the AAT2 hearing, the Applicant confirmed that he was having some issues with depression around the time of the Qualification Period but that his mother started to assist him financially which “took a bit of the pressure off”. He said that his depression affected his ability to socialise (transcript/14).
The Tribunal finds that the Applicant was suffering from a mental health condition during the Qualification Period and therefore, s 94(1)(a) of the Act is satisfied.
However, other than a diagnosis by the Applicant’s general practitioners in 2017 and 2018, it does not appear that the Applicant has been formally reviewed by a psychiatrist since 2006, and any diagnosis in the hospital notes from 2006 is unclear. Table 5 – Mental Health of the Impairment Tables requires the diagnosis of a mental condition to be made by a psychiatrist or clinical psychologist (T3/48). Consequently, the Applicant’s mental health condition cannot be regarded as permanent because it has not been fully diagnosed by an appropriately qualified medical practitioner. The Tribunal further notes that even if the medical certificates from the Applicant’s general practitioners could suffice as confirmation of a diagnosis, the condition was stated on those certificates as being “temporary”. Therefore, there is insufficient information before the Tribunal to allow the Tribunal to find that the condition is permanent (that is, fully diagnosed, treated, and stabilised).
Even if the Tribunal did conclude that the condition was permanent, a further difficulty for the Applicant is that there is insufficient evidence of the functional impact of the Applicant’s mental health condition to enable the Tribunal to assess the condition under Table 5 – Mental Health Function of the Impairment Tables.
In conclusion, no points can be assigned under Table 5 – Mental Health Function because there is insufficient evidence to enable the Tribunal to conclude that the Applicant’s mental health condition is permanent.
CONCLUSION
Based on the evidence before the Tribunal the Applicant did not meet the eligibility requirements in s 94(1) of the Act during the Qualification Period and was therefore not qualified to receive a DSP.
Although the Applicant suffered from impairments at the time of the Qualification Period, there is insufficient evidence to conclude that his mental health condition was permanent and therefore it cannot be assigned an impairment rating. Further, his lower back condition (including the functional impact of the condition on his lower limbs) only attracted a total of 15 points under Table 4 – Spinal Function and Table 3 – Lower Limb Function.
It is therefore unnecessary to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act.
Fortunately, however, the Applicant is now in receipt of a DSP, having been granted it in approximately August 2020 (transcript/5).
DECISION
The Authorised Review Officer’s decision dated 16 January 2020, as affirmed by the AAT1 on 31 March 2020, is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

....[Sgd]....................................................................
Associate
Dated: 17 August 2021

Date of hearing: 9 June 2021

Applicant: Self-represented

Solicitors for the Joined Party: Mr K Defranciscis, Sparke Helmore Lawyers

[2021] AATA 2884

17 August 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	9 June 2021
Applicant:	Self-represented
Solicitors for the Joined Party:	Mr K Defranciscis, Sparke Helmore Lawyers