Pearson and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4441

Pearson and Secretary, Department of Social Services (Social services second review) [2022] AATA 4441 (22 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3190
Re:Stephen Pearson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member Lee Benjamin
Date:22 December 2022
Place:Brisbane

The Tribunal finds that Disability Support Pension (“DSP”) of the Applicant should be cancelled with effect from 29 June 2020, and that the Applicant is not qualified for unlimited portability of DSP. The decision under review is affirmed.
...............................[SGD].........................................
Member Lee Benjamin
Catchwords
SOCIAL SECURITY- disability support pension entitlement after cancellation – portability – whether the qualifying circumstance for unlimited portability were satisfied in accordance with section 1218AAA of the Act – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Alicier and Secretary, Department of Social Services [2017] AATA 538
Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421
Chang and Secretary, Department of Social Services [2013] AATA 772
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Daccache and Secretary, Department of Social Services [2015] AATA 596
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
Morton and Secretary, Department of Social Services [2014] AATA 949
Nash and Secretary, Department of Social Services [2017] AATA 635
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Shi v Migration Agents’ Registration Authority [2008] HCA 31
Singh and Secretary, Department Of Education, Employment and Workplace Relations [2010] AATA 720
Stojanovski and Secretary, Department of Social Services [2014] AATA 466
Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517
WMKR and Secretary, Department of Social Services [2015] AATA 483
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
Secondary Materials
Guides to Social Policy Law - Social Security Guide
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member Lee Benjamin
22 December 2022
The Decision under review

The decision under review is a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 20 April 2021. In its decision, the AAT1 affirmed a decision of Services Australia (“the Agency”), in which it determined that the Disability Support Pension (“DSP”) of Mr Stephen Pearson (“the Applicant”) should be cancelled, and that the Applicant is not qualified for unlimited portability of DSP.
Background
On or around 8 May 2012, the Applicant made a claim DSP.
Along with the claim, the Applicant provided a Medical Report – DSP, completed by Dr Gary Deed, dated 2 May 2012[1] In that report, Dr Deed stated that the Applicant had the following medical conditions:
(a)circadian sleep disorder (“CSD”), which was reported to have commenced two years prior, and to cause severe daytime fatigue and grossly disturbed sleep; and
(b)chronic fatigue syndrome (“CFS”), which was reported to have commenced seven years prior, and to cause post-exertion weakness and slow recovery, and lumbar back discomfort.
[1] Exhibit 1, T Documents (“T”), T8, Centrelink Disability Support Pension Medical Report authored
by Dr Gary Deed, pages 73-80.
On 28 May 2012, a Job Capacity Assessment report (“JCA”) was produced.[2] The JCA concluded that the Applicant's CFS attracted 20 points under Table 1 of the Impairment Tables. The Applicant was also assessed to have a work capacity of less than 15 hours per week.
[2] Exhibit 1, T10, Job Capacity Assessment Report, pages 82-90.
Following the JCA report, the Applicant was granted DSP with effect from 8 May 2012.[3]
[3] Exhibit 1, T32, Centrelink Mainframe Screens, page 177.
On 1 November 2019, the Applicant contacted the Agency to inquire about seeking unlimited portability of DSP.[4] The record of this contact indicates that the Applicant advised that he was intending to go overseas to the United States on 1 June 2020, and requested an assessment of his eligibility for unlimited portability of DSP.
[4] Exhibit 1, T33, Document List (DL) and Customer Contact Files Notes for the period 1 November 2019 to 10 November 2020, page 193.
The Applicant subsequently provided the following documents in relation to his request for unlimited portability of DSP:
(a)Centrelink Medical Report – DSP Review for portability, by Dr Deed, dated
10 December 2019;[5]
(b)Centrelink Medical Report – DSP Review (incomplete), prepared by the Applicant, received 25 December 2019; [6]and
(c)Centrelink Work Capacity – Customer Information form, completed by the Applicant, received 26 December 2019.[7]
[5] Exhibit 1, T14, Centrelink Medical Report – Disability Support Pension Review for portability authored by Dr Gary Deed, pages 99-108.
[6] Exhibit 1, T15, Centrelink Medical Report – incomplete Disability Support Pension Review completed by Applicant, pages 109-112.
[7] Exhibit 1, T16, Centrelink Work Capacity – Customer Information form completed by Applicant, pages 113-122.
On 4 February 2020, the Applicant attended a JCA.[8] The assessor also received information from Dr Deed.[9]
[8] Exhibit 1, T17, Job Capacity Assessment Report, pages 123-130.
[9] Exhibit 1, T18, Centrelink Additional Medical Evidence for Disability Support Pension Record, pages 132-133.
On 19 February 2020, a JCA report was produced, which found that neither the Applicant's CFS or CSD were fully diagnosed, treated and stabilised. The JCA assessed the Applicant to have a work capacity of 15-22 hours per week with intervention.[10]
[10] Exhibit 1, T17, pages 123-130.
On 18 May 2020, the Applicant was notified that the Agency had determined that he was no longer eligible for DSP. [11]The Applicant’s DSP was cancelled with effect from
[11] Exhibit 1, T34, Centrelink Correspondence sent to Applicant in the period 18 May 2020 to 22 September 2020, pages 217-218.
[12] see Exhibit 1, T32, page 177; T34, pages 217-218.
29 June 2020.[12] His application for unlimited portability of DSP was also rejected.
The Applicant sought internal review of these decisions. In support of his request for review, the Applicant provided additional documentation, including a letter from Dr Deed dated
[13] Exhibit 1, T20, Correspondence from Medical & Wellness Coorparoo Pty Ltd authored by Dr Gary Deed, pages 135-136.
[14] Exhibit 1, T22, Letter from Dr Michael d’Emden (Endocrinologist), pages 138-142.
[15] Exhibit 1, T23, Correspondence from Dr Howard Granger (Psychiatrist), page 143.
29 May 2020,[13] a letter from Dr Michael d’Emden, Endocrinologist, dated 5 June 2020,[14] a letter from Dr Howard Granger, Psychiatrist, dated 17July 2020.[15]
On 18 September 2020, an officer within the Agency’s Health Professional Advisory Unit (HPAU) provided an opinion in relation to the Applicant’s conditions. The officer was of the opinion that the Applicant’s CFS should not be considered to be fully diagnosed, treated and stabilised.[16]
[16] Exhibit 1, T25, Health Professional Advisory Unit Opinion, pages 145-147.
On 29 September 2020, an Authorised Review Officer (ARO) affirmed the decisions to reject the Applicant’s application for unlimited portability of DSP and to cancel DSP.[17]
[17] Exhibit 1, T26, Decision and Notes from Authorised Review Officer, pages 148-161.
On 22 December 2020, the Applicant applied to the AAT1 for review of the ARO decisions.[18]
[18] Exhibit 1, T28, Application for Review of Decision (Social Services & Child Support Division), pages 163-170.
On 20 April 2021, the AAT1 affirmed the ARO decisions.[19]
[19] Exhibit 1, T2, Decision of the Social Services & Child Support Division, pages 12-19.
On 17 May 2021, the Applicant applied to this Tribunal for second-tier review of the AAT1 decision.[20]The Applicant also provided a further letter from Dr Deed, dated 8 April 2021.[21]
[20] Exhibit 1, T1, Application for Review with additional medical evidence, pages 1-4.
[21] Exhibit 1, T1, Application for Review with additional medical evidence, pages 5, 9-11.
In the course of the Tribunal proceeding, the parties filed following materials:
(a)the Applicant filed a further Report of Dr Deed dated 8 July 2021; [22] and
(b)the HPAU filed, at the request of the Respondent (also referred to herein as the Secretary), a Report of Dr Catherine Moore dated 29 September 2021, and addendum to report dated 10 March 2022.[23]
[22] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions (‘SFIC”) Attachment A – Report of Dr Deed, 8 July 2021, pages 250-253.
[23] Exhibit 4, R SFIC Attachment B – Report of Dr Moore, pages 254-278.
The Applicant filed a new DSP claim and as a result of the same has been granted DSP with effect from 6 July 2021. This followed a disability medical assessment undertaken by a Government-contracted doctor, who submitted a report dated 23 September 2021.[24]
[24] Exhibit 5, R SFIC Attachment C – Government contracted doctor Disability Medical Assessment (DMA) dated 23 September 2021, pages 279-282.
On 18 July 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation. The Respondent was represented by Mr David McLaren of Minter Ellison Lawyers, who appeared by telephone. Dr Moore also appeared as a witness on behalf of the Respondent.
Accordingly, the Tribunal must consider whether the Applicant met the requirements in subsection 94(1) of the Social Security Act 1991 (Cth) (“the Act”) at the date specified in the determination to cancel DSP, that being 29 June 2020.[25]
[25] see Exhibit 1, T32, page 177; T34, pages 217-218.
Issues
The two issues for this Tribunal to consider are:
(a)Issue 1 – whether the Applicant was entitled to DSP at the date of its cancellation (29 June 2020); and, if the answer to that is yes; and
(b)Issue 2 – whether the Applicant satisfies the ‘qualifying circumstances’ for unlimited portability in section 1218AAA of the Act.
With respect to Issue 1, the Tribunal must consider:
(a)whether the requirements in section 94 of the Act are met; in particular whether the Applicant had:
(i)a physical, intellectual or psychiatric impairment(s);
(ii)condition(s) that are fully diagnosed, treated and stabilised that attract an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Determination”); and
(iii)a continuing inability to work (CITW).
With respect to Issue 2, the Tribunal must consider:
(a)whether the Applicant is receiving DSP;
(b)whether the Applicant’s impairment is a severe impairment within the meaning of subsection 94(3B) of the Act;
(c)whether the Applicant will have that severe impairment for at least the next five years; and
(d)whether, if the Applicant were in Australia, the severe impairment would prevent him from performing any work independently of a program of support within the meaning of subsection 94(4) of the Act within the next five years.
Law
The relevant law in assessing a person’s qualification for DSP is found in:
(a)the Act;
(b)the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”); and
(c)the Determination.
Policy advice contained in the Guides to Social Policy Law - Social Security Guide[26] (“the Guide”) is also relevant. The Respondent contends that to ensure consistency in decision-making, the relevant policy should be followed unless there are cogent reasons to depart from their application[27].
[26] Guides to Social Policy Law – Social Security Guide, Version 1.301, released 5 December 2022. (Using the Social Security Guide | Social Security Guide (dss.gov.au)).
[27] see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Cancellation of DSP
Subsection 80(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides that if the Respondent is satisfied that a social security payment is being, or has been, paid to a person who is, or was, not qualified for the payment, or to whom the payment is, or was, not payable, then the Respondent is to determine that the payment is to be cancelled or suspended. A social security payment for these purposes includes DSP[28].
[28] see definitions of social security payment and social security pension in subsection 23(1) of the Act, and read with subsection 3(2) of the Administration Act.
Section 117 of the Administration Act provides that a determination made under, inter alia, section 80, is an ‘adverse determination’. Under paragraph 118(13)(b), which is applicable in the present case, such a decision takes effect on the day specified in the determination.
Accordingly, the Tribunal must consider whether the Applicant met the requirements in subsection 94(1) of the Act at the date specified in the determination to cancel DSP, that being 29 June 2020.[29]
[29] see Exhibit 1, T32, page 177; T34, pages 217-218.
While noting this as the relevant date of qualification for DSP in the Tribunal review, the Tribunal is permitted to take into account medical evidence concerning the functional impact of the Applicant’s impairments after that date, where it ‘casts light on’ the functional impact of the impairments as at the relevant date[30].
[30] see Nash and Secretary, Department of Social Services [2017] AATA 635 at [10], citing Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1] (and on appeal in Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534); and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
Qualification for DSP
The relevant qualification criteria for DSP is set out in section 94 of the Act, as follows:
“Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work
…”
The qualification criteria set out in subsection 94(1) are conjunctive, and each element must be satisfied before a person can be found to be qualified for DSP. As noted in the Guide to Social Policy Law – Social Security Guide (“Guide”) (at part 3.6.3.05)[31]:
“The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance.
Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied.
Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.”
[31] Guides to Social Policy Law – Social Security Guide – 3.6.3.05 Guidelines to the Rules for Applying the Impairment Tables. (3.6.3.05 Guidelines to the Rules for Applying the Impairment Tables | Social Security Guide (dss.gov.au))
The Impairment Tables
Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
In accordance with section 27 of the Act, the tables to be applied are contained in the Determination, which took effect from 1 January 2012.
The Determination contains the rules for applying the Impairment Tables (“the Rules”). The Impairment Tables are function based rather than diagnosis based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings in respect of the level of functional impairment arising from permanent medical conditions, and not to assess the medical conditions themselves.
‘Impairment’ is defined to mean a loss of functional capacity affecting a person’s ability to work that result from the person’s permanent medical conditions. Subsection 6(1) of the Rules provides that a person’s impairment is to be assessed on the basis of what the person can, or could, do, and not on the basis of what the person chooses to do or what others do for them.
Subsection 6(2) of the Rules provides that the Impairment Tables may only be applied after the person’s medical history has been considered. An impairment rating can only be assigned if the condition causing the impairment is permanent. Subsections 6(3) and 6(6) of the Rules provide that a condition is ‘permanent’ if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.
Subsection 6(5) of the Rules states that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
Subsection 6(6) of the Rules states that 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 within the next two years; or
(b)the person has not undertaken reasonable medical treatment for the condition and either:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes the reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.
For the purpose of subsection 6(6), subsection 6(7) of the Rules defines ‘reasonable treatment’ as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Subsection 6(8) of the Rules provides that the existence of a diagnosed medical condition will not necessarily result in a rating being assigned under the Impairment Tables. Where an impairment has no functional impact, no rating will be assigned.

Subsection 11(1) of the Rules provides that an impairment rating can only be assigned in accordance with the ratings in each table and if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Continuing inability to work
The term ‘continuing inability to work’ is defined in subsection 94(2) of the Act, which states:
(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.”
The term ‘severe impairment’ is defined in the subsection 94(3B) of the Act as follows:
“(3B) 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.”
For the purpose of the review of the Applicant's qualification for DSP, the Applicant is not required to have met the requirements for active participation in a program of support provided at paragraph 94(2)(aa) of the Act.[32]
[32] See the Guide at 6.2.5.03 DSP – Application of DSP Qualification Rules at Review. (6.2.5.03 DSP - Application of DSP Qualification Rules at Review | Social Security Guide (dss.gov.au)).
Portability provisions under the Act
Section 1215 of the Act provides that if a person is absent from Australia, their social security payments are not payable once the absence from Australia exceeds the ‘maximum portability period’ for the payment.
Section 1217 of the Act prescribes the maximum portability periods. Relevantly, for DSP, section 1217 provides for general maximum portability period of up to 28 days in a 12 month period, with an additional 4 weeks allowed if the temporary absence is for the purpose of seeking eligible medical treatment, attending to an acute family crisis or for a humanitarian purpose (see Items 2 and 3 of the Table in section 1217).
The exception of relevance to the above maximum portability periods is that a DSP recipient has unlimited portability if they are a ‘severely impaired disability support pensioner’. There are further exceptions in sections 1218AA, 1218AB, 1218, 1218C and 1218D of the Act, however these are not relevant to the application before the Tribunal.
A ‘severely impaired disability support pensioner’ is defined in section 1212 of the Act to mean a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1) of the Act.
Subsection 1218AAA(1) of the Act relevantly provides:
“(1) The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.”
All the criteria in section 1218AAA of the Act must be met for a person to be qualified for unlimited portability. This was discussed in Chang and Secretary, Department of Social Services [2013] AATA 772 (“Chang”) where the Tribunal held at [31] to [34]:
“The representative for the Secretary said that there was no question that Ms Chang met the criteria in section 1218AAA(1)(b)-(d). However, because she had left Australia prematurely and her DSP has been suspended, she did not meet the terms of section 1218AAA(1)(a), that is, she is not a person ‘receiving disability support pension’.”
Section 1218AAA(2) also provides that the Respondent may not grant unlimited portability under section 1218AAA(1) in relation to someone who is outside Australia unless the reason the person is not in Australia is either ‘a serious accident’ or the ‘hospitalisation’ of the person. In Chang, the Tribunal was satisfied that Ms Chang did not come within either exception. Section 1218AAA(2) is an example of the limited scope of this provision. These two circumstances are the only exceptions to the strict conditions in section 1218AAA(1). The Respondent has no discretion to permit unlimited portability for other reasons.
The legislative restrictions on claiming unlimited portability is reinforced by section 1218AAA(3). This section provides that the Respondent may revoke a decision relating to unlimited portability if ‘any of the qualifying circumstances ceases to exist’ (emphasis added). This provision does give the Respondent discretion, but that discretion may only be applied to a person who has at some point qualified for unlimited portability but has since ceased to meet one or more of the qualifying criteria. It is only in those circumstances that the eligibility could be ‘revoked’.
In Chang, as Ms Chang was ‘not receiving disability support pension’ she was not eligible for unlimited portability of her DSP under section 1218AAA. Ms Chang submitted that the Respondent should have discretion to waive this requirement in a case such as hers. The Tribunal did not accede to this submission - Ms Chang was found not to be entitled to unlimited portability at any time, the criteria for this entitlement are strict, and there is no discretion in relation to the initial finding of eligibility.
In Morton and Secretary, Department of Social Services [2014] AATA 949, the Tribunal relevantly stated at [47]:
“Self-evidently, the requirements in s 1218AAA(1)(a) to (d) of the SSA are cumulative, such that all of them must be satisfied before the discretion to grant a person unlimited portability of his or her DSP can be exercised. This is because s 1218AAA(1) of the SSA states that “all of the following circumstances” (i.e. in s 1218AAA(1)(a) to (d) of the SSA) must exist.”
Subsection 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. As has been noted above, the Impairment Tables are contained in the Determination.
Subsection 94(4) of the Act provides:
“(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.”
The term ‘program of support’ is defined in subsection 94(5) of the Act to mean a program that:
“is designed to assist persons to prepare for, find or maintain work; and
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.”
If a DSP recipient is outside Australia, the Respondent must not make a determination under subsection 1218AAA(1) of the Act unless the Respondent can be satisfied of the following circumstances in subsection 1218AAA(2):
“(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person's portability period for disability support pension had not ended at the time the event occurred.”
As the Applicant was in Australia as at the date of his request for unlimited portability and is currently in Australia[33], subsection 1218AAA(2) does not prevent a determination being made under subsection 1218AAA(1).
[33] Exhibit 1, T32, page 178.
Relevant policy
Instruction 7.1.2.10 of the Guide sets out the general rules of unlimited portability of DSP[34]:
[34] The Guide – 7.1.2.10 Disclosure of information. (7.1.2.10 Disclosure of information | Paid Parental Leave Guide (dss.gov.au)).
“From 1 July 2012 DSP recipients with a permanent and severe impairment and no future capacity to work are eligible for indefinite portability of their pension. DSP recipients applying for portability under these provisions are required to undergo an assessment of their impairment and their future work capacity (JCA).
To be eligible for indefinite portability under these rules, a DSP recipient must:
have a severe impairment (1.1.S.127) which will persist at this level for at least the next 5 years (i.e. no significant improvement is expected to the level of impairment within this period), and
have no future work capacity, that is be prevented by their impairment from performing any work independently of a program of support within the next 5 years, or
be assessed as manifestly eligible for DSP under the current (post December 2002) manifest criteria.
A DSP recipient is accepted as being prevented from performing any work if, because of their impairment, they are deemed unlikely to have any capacity to undertake work in the open employment market in the next 5 years, even with interventions.
For the purpose of these provisions, 'work' means work that:
is on wages that are at or above the relevant minimum wage, and
exists in Australia, even if not within the recipient's locally accessible labour market.
DSP recipients need to apply for indefinite portability under these provisions while in Australia and are required to undergo a portability assessment before departure.
Generally, those recipients who are overseas and intend to apply for indefinite portability will need to return to Australia to undergo a portability assessment under these provisions.
An exception to the requirement to return to Australia for an assessment will apply in limited circumstances where a DSP recipient is unable to return to Australia because they have had a serious accident, or been hospitalised, before the end of their current portability period.”
Date from which determination should take effect
When making a determination under section 1218AAA(1) of the Act, the task of the Tribunal “…is to make the correct or preferable decision based on the facts and circumstances as they exist at the time of its decision”.[35]
[35] Morton and Secretary, Department of Social Services [2014] AATA 949, at [48], citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 103 ALD 467; BC200806838.
The Tribunal in WMKR and Secretary, Department of Social Services [2015] AATA 483 (“WMKR”) at [31] found that the preferable approach to determine the date when an unlimited portability determination should take effect was at the date of claim or request that commenced the decision making process, applying the legislation then in force, and subsequently as circumstances demand (emphasis added).
The Tribunal relevantly stated in WMKR at [30]-[31], [33]:
“… issues of this kind that involve questions of qualification, entitlement or payability during periods in the past require decision makers on review to consider the merits of claim at the relevant and particular points in time – in the past. Failure to do so may render merit review of income support decisions ineffective for periods of time, and may lead to jurisdictional error.
Thus, I think that the correct construction is that the question of eligibility must be determined at the date of claim, applying the legislation then in force, and subsequently as circumstances demand. There is no barrier to the Tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision-making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers.
…
As with many kinds of income support decisions concerning qualification, entitlement or payability, an assessment should be made at the time of claim, or such date as the legislation requires (or allows) – see s 11 of the Social Security (Administration) Act 1999 and related provisions of this Act dealing with start date rules.”
The approach in WMKR should be considered in conjunction with the High Court’ judgment in Shi v Migration Agents’ Registration Authority [2008] HCA 31 (“Shi”). In Singh and Secretary, Department Of Education, Employment and Workplace Relations [2010] AATA 720, Deputy President Forgie gave a detailed analysis of Shi at [126]:
“…The next question is whether I am also required to consider Mr Singh’s entitlement over any subsequent period and, in particular, up to the day on which I give this decision. That question has always arisen. Previously, it required a consideration of the principles in a case such as Freeman v Secretary, Department of Social Security (Freeman), Re Tiknaz and Director-General of Social Services (Tiknaz)... It must now be considered in light of the principles established by the High Court in Shi v Migration Agents’ Registration Authority (Shi). I considered the application of those principles in Re Lobo and Department of Immigration and Citizenship and adopt my reasons in that case at [20] to [39] regarding their application. I will repeat only my summary of the approach that they require me to take. Unless varied by the particular legislation conferring jurisdiction on the Tribunal, its task (as described by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (Drake)) has, since Shi, been as follows:
1. the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;
2. the Tribunal will address the same issues or questions as those addressed by the original decision-maker;
3. unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision (emphasis added);
4. the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review (emphasis added); and
5. the task of the Tribunal:
a. is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
b. is not to decide whether the decision under review is itself the correct or preferable decision.”
In Alicier and Secretary, Department of Social Services [2017] AATA 538, Deputy President Alpins relevantly found at [26] (emphasis added):
“Upon review, “the Tribunal’s task is ‘to do over again’ what the original decision-maker did” (Shi at [100] per Hayne and Heydon JJ) and thus to make its decision pursuant to s 43 of the AAT Act having regard to the circumstances at the time of its decision, including an assessment of the applicant’s condition at that time, rather than as it was at the time a determination under s 1218AAA(1) was sought. I therefore agree with the reasoning of Senior Member Walsh in Morton and Secretary, Department of Social Services [2014] AATA 949 at [48] and Daccache and Secretary, Department of Social Services [2015] AATA 596 at [22]-[26] (cf. Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6], WMKR and Secretary, Department of Social Services [2015] AATA 483 at [27]-[31] and Glinster and Secretary, Department of Social Services [2015] AATA 800 at [11]-[15]).”
The authorities relied on by Deputy President Aplins are not inconsistent with an approach of assessing a person’s qualification for unlimited portability from the date of their request for unlimited portability, up to and including the date of the Tribunal’s decision. In Daccache and Secretary, Department of Social Services [2015] AATA 596 at [26], which is adopted by Deputy President Alpins, the Tribunal relevantly held (emphasis added):
“The Secretary’s contention is that the preferred approach is the approach taken by me in Morton. On this approach, it is open to the Tribunal to take into account all evidence of Mr Daccache’s medical conditions which is available at the time of the hearing of his application. Following what I said in Morton, these reasons consider Mr Daccache’s qualification for unlimited portability of his DSP based on the relevant medical evidence to date, as set out below.
…”
The relevant dates for assessment of DSP unlimited portability are the date of request
(1 November 2019) and ‘subsequently as circumstances demand’ up to the date of the Tribunal decision.
EVIDENCE AND CONTENTIONS
Applicant’s submissions and evidence
The Applicant made written submissions to the Tribunal on 7 March 2022 that are relevantly extracted below:
“I believe this to be a case of discrimination against someone with an invisible disability, by multiple Centrelink staffers who carried it on from each other, who were not equipped to understand my illness, and a corrupt review system…
…
My GP was once the president of Diabetes Australia, he is a respectable doctor with a lot of knowledge about all kinds of diseases, and I can't believe just how much his word has been twisted on the Centrelink reviews. Even in later letters when he clarifies to Centrelink his stance, to correct the record, it seemed that Centrelink ignored this and instead relied on what they had falsely written down in supposed phone calls to my doctor during his busy work schedule.
The JCA worker was not equipped to deal with my invisible illness and cast me out as someone not disabled and just someone lazy. On the report she quoted the full length of a specific video game I used as an example of something I wish I could focus on but just couldn't due to my disability, but instead she seemed to twist that statement and use it against me as a sign of ability rather than disability. Then it seemed she made snide remarks about my mother and myself on the report, but maybe that is just my own interpretation.
I believe reading the JCA statement she wrote about me and comparing it to the other two that Centrelink now have on file for my same illness you can see that something went terribly wrong and there is a very different tone to the one I was rejected with. She was not qualified to identify or judge my invisible illness and I was discriminated against. When I then started submitting the extra information and testing I've had to the ARO, including a letter from my Psychiatrist, my Endocrinologist, more from my specialist GP, it just seemed like I was talking to a brick wall.
The ARO was very abrupt and mean to me, and there was no conversation over the phone but rather her just telling me that I am not disabled and I need to get a job. Despite telling her everything has been ruled out and I have 3 specialists backing up my condition, she told me I needed to see more specialists... I couldn't understand or believe what I was hearing, why was this person trying to act like I should be listening to her? This random nasty woman at Centrelink who isn't my doctor, and her advice over my medical condition, rather than my own doctors. I think this was during the peak of covid that year, and I was feeling very distraught. In a just world I would be paid compensation for the trauma of something like this happening during a pandemic to a disabled person, but I am not here to ask for that.
I have an incredible amount of medical evidence and respectable doctors backing up that I am severely ill with chronic fatigue syndrome. We ruled out everything else, including sleep issues, that has been clarified exceptionally well, despite Centrelink having their unfortunate temporary inability to understand that matter, and I have been sick with this since I was 13 and have a long history of disease.
…
Even though I now have Centrelink themselves paying me the DSP, and them realising that I am disabled, for some reason Centrelink is carrying this case onto the AAT rather than just backpaying me the money of what I've missed out during this period of time…
I also feel that I qualify for what is stated for granting this "unlimited portability" of my DSP. Which is that I am disabled, unable to work, and my doctors agree, and it is written down that they do not see my condition improving in the next 5 years. The reason I applied was for my sense of safety if I ever did leave the country for a short while, as without it I feared I would run into problems due to the limitation of what I believe is only 4 rolling calendar weeks a year, which is scary for me as I have episodes of fatigue that can extend for longer than that. I wanted the unlimited portability for my protection, and safety, and my ability to make connections overseas that I could return to visit again later if that ever happened. I have never left the country before, and I fear leaving for if I have to deal with Centrelink while overseas if I had to stay over the allotted time, because from my perspective Centrelink can not always be trusted to get things correct, even with genuine reasoning. I think what happened with covid strengthens my argument that it's important to give DSP recipient the benefit of the doubt if there even happens to be a doubt, rather than such a hardline approach that has brought me terror for years now due to the mess this process created for me. Please grant me this unlimited portability, as I fear reapplying for it and going through this nightmare all over again.
I have done nothing wrong, I have tried to do everything right. I deserve to win my case and make it seem like I never lost the disability pension at all, and be granted this unlimited portability, whether I use it or not. I have felt awful going through this whole process during covid, but I know that I have all the evidence to back everything I say up. It is impossible for me to be wrong, as Centrelink has already approved me on the same papers they are rejecting me on that I am sick with 20 points on table 1.
Please do not take my ability to form this written statement as judgement of my disability. I am under a lot of stress, and part of my disease is that I can be capable enough to communicate when my life is in danger, which I do feel Centrelink did to me…As my illness is invisible, if we do have a case that is not on paper I think I would prefer it to be a telephone one, as I feel like that has helped shield me from discrimination in my latest DSP application to Centrelink which was granted, as the JCA interview was via phone rather than in person, but I understand it is the AAT's decision on how the hearing will happen.” [36]
[36] Exhibit 6, Applicant’s Correspondence dated 7 March 2022, pages 1-3.

The Applicant made further written submissions to the Tribunal on 7 July 2022 that are relevantly extracted below:
“I have very big concerns over the behaviour from the Respondent, and I fear they are trying to get me to kill myself.
I have chronic fatigue syndrome, as recognised by the Respondent…
…
.. there is no known rehabilitation or recognised treatment which could allow a disabled person with severe CFS to be able to work again.
…
It appears to me they [the Respondent] are trying to manipulate me into agreeing to allow them the ability to contact my Doctor, or have them appear at the hearing.
I give them no permission to contact any of my doctors regarding my case at this point, as there are already MANY written statements from Dr Gary Deed clarifying my disability in its entirety, AND I have been approved on the DSP on those documents already. They are suggesting my doctor be available for a 30 minute interrogation, and somehow book this time with him with less than 2 weeks of the phone hearing date. This is an absolutely ridiculous request, and I believe it is again an attempt by the Respondent's lawyer to undermine my procedural rights and manipulate me into delaying this case even further, as of course this would require a LARGE delay in a hearing if my doctor had to prepare for a 30 minute Tribunal interrogation. I have detailed before that it is important that the statements from my doctors are planned and written statements, as I have personally confirmed with Dr Gary Deed that Centrelink have in the past extracted false or confusing statements from him over the phone, during the Centrelink review process, to which he then had to write statements to re-clarify. Please do not allow them to further harass my treating physicians.
I also have very personal issues with the Centrelink HPAU they are wishing to have present as a witness, as some of what she has said have been hurtful personal statements about me, and her argument is that I should not receive any disability support, and that I am not disabled with CFS…, and such an outcome of stripping away my income would be a threat to my life.
I do not like people who threaten my life, and it will be very difficult to cope with that person if she is allowed to be present during the hearing.
I feel she has made herself out to be an absolute idiot, quite frankly, and could probably receive some points on the DSP tables herself after what she said about me.
Maybe the only reason she wants to be present is to hide the insanity that she submitted in her HPAU reports.
…
… everything I have in writing tells the most accurate picture of my situation, and I do not wish to have this case moved away from the evidence that is contained in the written statements, as my CFS will likely impact my abilities during the phone hearing.
…I fear the Respondent is again trying to coax me into becoming suicidal, or degrade my health for the benefit of their case.
…
My ability to defend a life for myself may not be used as a weapon against me. I've never felt more trapped and powerless in my life.
…
I will not be having Dr Gary Deed present, and if the Respondent's lawyer contacts him, which I do not give him permission for, I will come down with fire and fury the likes of which he has never known. The idea that my doctor could be available and prepared enough in <2 weeks to defend my disability within his busy work schedule is ABSOLUTELY ludicrous.
He has written many statements to perfectly clarify his view, which has granted me the DSP already. Both I and Centrelink know his written statements are very valid, and I fear they are again trying to entrap him over a phone call during his busy work schedule.
…
I do not have any idea what state of mind I will be in at that exact time of the phone hearing, because that is the nature of my disability, and that is why I would really like to focus on WRITTEN stuff, as I am disabled and it is the most organised way that I can get my point across while fearing for my life.
I am of course open to the idea of the Respondent conceding, or the AAT deciding their behaviour has been so egregious that they choose to decide in my favour before this hearing takes place…
… I hope the AAT member refers to my email correspondence mostly to understand my side of the situation.
Please remember that AAT1 found the only reason to not award me the DSP is because more clarification was needed about the sleep issue, which is a part of CFS (a symptom), and that clarification has since been provided and granted me the DSP.
Because my fatigue can intensify randomly and also after pushing myself (like in this email), the main reason I need the indefinite portability is to allow myself the ability to even go overseas at all, as otherwise without it I might fall into a deep fatigue and not be able to receive income if I stay over the allowed time. That is a danger to my safety.
Centrelink have proven to have a deep issue with understanding my invisible disability, and although I am used to receiving this abuse from people in real life, I really hoped that I wouldn't be treated the same way by Centrelink, as I am one of the most vulnerable disabled people to get caught in messes like this.”[37]
[37] Exhibit 8, Applicant’s Correspondence dated 7 July 2022, pages 1-11.
At the hearing, the Applicant told the Tribunal, relevantly, by way of submissions and/or under cross examination that:
·CFS is an invisible disability.
·He was diagnosed and approved over 10 years ago for the DSP and it was with the same tables. He is currently approved for the DSP.
·The disability tables did not change between that time as far as he is aware, and he is still 20 points on table 1 for a physical impairment, so he’s happy that that happened because, it is the way it was 10 years ago. His condition has remained stable and fully diagnosed and treated.
·He is confident in his case because he has a very longstanding illness and he knows the effects that it has on him. He has mountains of documents to prove this.
·His doctors “all kind of think” that his illness is something that’s going to be quite permanent.
·He lives with his mother and two brothers.
·He can barely even take care of himself. He can barely shower every day. He can’t drive. He doesn’t have a car. He doesn’t really have the support he needs. He feels that he needs NDIS support to even just get around because he can’t manage public transport.
·He finished High School to year 11 in Gladstone. He was not able to move on to year 12 due to lack of attendance. He had a part-time job at a newsagency for less than three months but had to quit because he could not perform functions such as handling money correctly.
·He did not undertake any further study in the period 2009 to 2011. At one point, he considered doing year 12 at the University of Southern Queensland. However, he was very fearful that on the day of testing he would not be able to perform because his energy comes and goes, and he was too scared to try because of the illness he was experiencing, so did not undertake further study. He did not undertake employment during this period. He was not on JobSeeker because he knew he couldn’t really - he wasn’t healthy enough to seek a job.
·He undertook a sleep study in around February 2012 with Dr Tolhurst. Dr Tolhurst recommenced some very strict sleep hygiene measures to him, with a view to him putting those in place for the next eight to 10 weeks before seeing the doctor again at that point. He had trouble following Dr Tolhurst’s advice and he did not follow-up with Dr Tolhurst. He did not have further sleep studies:
“Mr McLaren: The document suggests you also underwent essentially a sleep study I think in February 2012. Does that sound right?
Applicant: Yes, I had a sleep study before my diagnosis in 2012, so yes, that sounds right.
Mr McLaren: …just so that I can sort of introduce it I suppose, that’s at T7, page 71 of the T documents. What Dr Tolhurst’s report suggests is that he had been through some very strict sleep hygiene measures with you, with a view to you putting those in place for the next eight to 10 weeks before seeing him again at that point. Can I ask, what was it that led you to have that sleep study undertaken in the first place, was it issues with your sleep, having poor or unrefreshing sleep?
Applicant: Definitely unrefreshing sleep, yes. I also had other symptoms as well, and, you know, a sleep study was of course a test that made sense to take, so, yes.
Mr McLaren: That documentation there from Dr Tolhurst around the implementation of strict sleep hygiene measures, do you recall what that involved?
Applicant: Yes, what it involves, he told me that I need to shut off all lights when I sleep at night and that I need to, no matter what, I need to get up at a set time, I need to go in the sunlight, I need to try to be a bit active as well to wake up, and I need to keep up this for, you know, a certain amount of time to, you know, correct my sleep pattern. That is what I did.
Mr McLaren: So you did that and what was the result of that; was your sleep then - did it develop into being refreshing sleep?
Applicant: It did not develop into - well - no, it did not develop into refreshing sleep, but the timing of it, the timing, which is what the circadian rhythm is about, that did start to change, but then I was having trouble - although I followed the advice I was having trouble following the advice because I was having back pain and I was having all these other symptoms, and so it did not seem to be the full explanation for me.
Mr McLaren: The recommendation by Dr Tolhurst that if you had implemented sleep hygiene measures and still having issues with your sleep, did you follow up with Dr Tolhurst?
Applicant: No, because in the appointment he told me that he does not expect me to come back to see him, and I had actually even talked to him, you know, if it was something else, say if it was chronic fatigue syndrome instead, and that that was more of the thing, he advised me that he would not be able to help me with that because that’s not his field, his is only sleep. It says on the letter, “If he is better and satisfied with his sleep prior to that, I am happy for him to simply cancel that appointment”, and that’s what I did, and I knew that I had this evidence and this thing to present to Dr Garry Deed…
Mr McLaren: Why I’m a little confused, I guess, is on the one hand there’s a recommendation there to have further assessment undertaken if still having trouble with sleep after the sleep hygiene measures are implemented. What I understand you said is that notwithstanding that you implemented those measures you were still having issues with refreshing sleep, et cetera. Why did you think that it was unnecessary for you to then go back to him or why did you cancel your appointment where the circumstances were such that it seemed that the sleep hygiene measures hadn’t led to an improvement in your overall sleep and restfulness for want of a better word?
Applicant: I did improve my sleep. It was improving my sleep but it – so it occurred to me that I am – I am happy that it can improve my sleep but if I was to go back to him, I – he wouldn’t be able to get – although I could have had another test and more testing and testing, it was not the right – it did not make sense.”[38] (Emphasis added)
[38] Transcript, page 25, lines 1-13, 28-45; page 26, lines 1-38.
·He was granted DSP shortly after the sleep study. From 2012 onwards, he has “not really substantially been able to do anything other than lie down and be disabled and try to get [his] prescriptions and go out.”
·Dr Garry Deed, a GP, is his “chronic fatigue doctor”. In 2016, Dr Deed referred him to a psychiatrist, Dr Howard Granger. According to the Applicant, “Dr Garry Deed thought that it made sense to try to see a psychiatrist to get an opinion about if there’s anything that could help me manage his life better.” Dr Granger indicated this his medical issues “aren’t psychological.”
·Other than seeing Dr Granger, there were no substantive medical interventions in the period 2012 to 2019. He has gone for multi-year periods without seeing
Dr Deed. However, he sees Dr Granger every six months or so to obtain amphetamine prescriptions, mainly dexamphetamine. He said that Dr Granger is “treating [him] to stop [his] CFS getting worse”:
“Mr McLaren: I’m just trying to understand, why do you engage with [Dr Granger] rather than, for example, just having prescriptions written by a GP like Dr Deed?
Applicant: Well, Dr Deed is 30 minutes [away] and it would be very expensive to get there. That’s part of why I don’t see him too regularly and I go to a local GP. Now, for a local GP, I - look, I guess I could try to arrange for them to do it but my psychiatrist is quite local and so I – it doesn’t cost that much to Uber there and back and so that’s why I’ve just kept the psychiatrist for that…(Transcript, p 38, lines 1-9)
Mr McLaren: …I’m confused because Dr Granger’s report says, look, Dr Deed believes that there’s an endocrinological explanation for his problems. The adrenal gland, pituitary glands and hypothalamus. As this is a physical problem, counselling will not fix his fatigue and get him doing much more than he’s capable of at the moment. So Dr Granger is saying, well, Mr Pearson’s condition is a physical one and counselling is not going to (indistinct). So I’m just confused as to what actual intervention Dr Granger is providing beyond prescribing a drug that could be prescribed by a GP?
Applicant: I don’t know if dexamphetamine – well, initially I don’t think it could be prescribed by a GP. It’s a controlled medicine.
Mr McLaren: Well, surely Dr Deed could prescribe it. He’s got a specialisation in this field, doesn’t he?
Applicant: Specialisation in CFS, but he is still just a general practitioner has he would be for CFS because there’s no specialist of CFS in existence. Remember that the psychiatrist – there’s a difference between and a psychologist and a psychiatrist can treat, like, you can still have a physical problem in the brain and what Dr Garry Deed was talking about is the adrenal access or the hypothalamus adrenal access problem and that basically means, there might be, like, hormonal kind of issues in my brain which are causing all of the issues and that is why, you know, we use dexamphetamine. That’s why I even explored with the endocrinologist as well, you know, further, just on my own accord. It’s a physical brain kind of issue. Not psychological.
Member: So why then see a psychiatrist if it’s a physical brain issue…
Applicant: …to get a controlled drug…(Transcript, p 38, lines 13-47)
Mr McLaren: Well, has Dr Deed ever referred you to a neurologist for the purpose of – if what Dr Granger says is right, that we’re talking about here is – essentially there’s some sort of endocrinological explanation (indistinct) for the issues relating to issues with your adrenal gland, pituitary gland and the hypothalamus. Have you ever been referred for any sort of neurological intervention?
Applicant: No. Dr Garry Deed thought that would be unnecessary. No further testing was needed.”[39]
[39] Transcript, page 39, lines 14-23.
·In late 2019, he made contact with Centrelink about seeking unlimited portability for his DSP and a JSR was prepared. He “somewhat” agreed with the JSR’s proposition that “his main symptoms impacting his function [are] fatigue and sleepiness and his fear of pain and fatigue”, and clarified that the “fear of pain and fatigue is [him] talking about the fear of the overexertion and the payback that can come with CFS.” He disputed other characterisations in the JSR and “feels like [the report] has used language and twisted it to make it seem like [he’s] a lazy teenager rather than someone severely disabled.” However, he conceded that the JSR is “mostly a summary of the things…from what [he] said” but, equally, “he [feels that it] did not expand enough to fully…describe [his] disability.”
·He said he doesn’t have friends in Brisbane but he has made some “internet friends” in the United States that he talks to at night hour from his bed.
·He does not have unrefreshing sleep. On top of that he sometimes wakes ups with intense pain throughout his back:
“Mr McLaren: …can you just confirm your current sleeping situation, do you still have unrefreshing sleep?
Applicant: Yes…sometimes when I wake up from my sleep I have intense pain throughout my back; intense; I’m waking up in pain, so, yes, I definitely do not feel refreshed after sleep, and I don’t get refreshing sleep a lot of the time”.[40]
[40] Transcript, page 42, lines 4-9.
·He does not have a general pattern (daily routine) - he might need to go to bed even after having breakfast, or not having breakfast, and his breakfast might be inadequate.
·He can heat up dinners made by his mother and make simple meals on his own, for example fish fingers and chips.
·He can shop for your own clothes online and order takeaway food to be delivered on his own.
·He is able to trim his beard on your own, able to brush his teeth, shower and dress himself.
·He undertakes “graded exercise therapy” which involves walking slowly, around 4 kilometres per hour for at least 10 minutes and sometimes 15 minutes. He uses dumbbells for two minutes and do some gentle stretching.
·He “definitely” has not emptied the dishwasher at his home for many years as he did it once and his back felt sore so he has never done this activity again.
·He tries to keep his bedroom neat and clean but he “fails all the time” – he has a lot of rubbish in his room because he doesn’t have the energy to clean; “like maybe a plate where I’ve finished my food and I’ve just kind of left it there and I haven’t had the energy to bring it out.”
·He is “able to use the train but reported anxiety about undertaking a complex trip with a number of different busses or trains.” It’s “hard” for him take a train - he has not do so “for so long on my own” - he finds it “confusing”. He said that he can get on one and get off one but he does not feel like he can use it as a form of transport to get him to the places he needs to go. And he has always had someone with him and guiding him for that:
“Mr McLaren: But why is that, Mr Pearson?
Applicant: To be able to get to a train station, my anxiety and my adrenaline kicks in and I can get a little confused about what train is the one I’m meant to go on and then I might mishear when to get off the train and that is the complexity of using a train for me and that is why I stick to more direct (indistinct) and my family helps with traveling in the car.[41]
Mr McLaren: Okay. But it’s not a physical issue you’re saying. It’s anxiety that causes difficulty for you taking a train?
Applicant: No, it’s actually also physical because just sitting upright in a chair can cause me pain and I get pain from just sitting on the train or even standing on the train. You know, anytime that I’m not lying down is a physical problem for me as well and so if a train takes too long, I have to think about, you know, what that’s going to impact on my health…So it’s physical as well…”[42]
·He intended to travel to Utah in the United States on his own to meet a friend; the friend would support him if he was there.
[41] Transcript, page 38, lines 1-11.
[42] Transcript, page 36, lines 19-31.
Respondent’s submissions and evidence
The Respondent’s submissions to the Tribunal are set here below.[43]
[43] Exhibit 2, R SFIC dated 11 April 2022, pages 12-22 at [4.42-4.110].
The Respondent’s contends that the Applicant does not satisfy the qualification requirements for DSP in subsection 94(1) of the Act as at the relevant date of 29 June 2020. Accordingly, the Respondent contends that the decision to cancel his DSP was correct.

Relatedly, and relevant to the issue of unlimited portability, the Respondent contends that the Applicant did not, at the time of his request for unlimited portability of DSP on
1 November 2019, or thereafter, have a severe impairment attracting 20 points under a single Impairment Table, and therefore he does not satisfy paragraph 1218AAA(1)(b) of the Act.
The Respondent submits that this is fatal to the Applicant’s qualification for unlimited portability of DSP.
The Respondent further contends that the Applicant’s work capacity means that he does not meet the requirement of being unable to perform any work independently of a program of support within the next five years as required by paragraph 121AAA(1)(d) of the Act.
Qualification for DSP
As has been noted, the general qualification requirements for DSP are set out at subsection 94(1) of the Act.
Paragraph 94(1)(a) – physical, intellectual or psychiatric impairment
The Respondent accepts that the Applicant had impairments, and therefore satisfied paragraph 94(1)(a) of the Act, at the relevant date.
Paragraph 94(1)(b) – whether the Applicant’s impairments attract 20 points or more under the Impairment Tables
The Respondent contends that the Applicant did not have any fully diagnosed, treated and stabilised conditions as at the relevant date, and accordingly that he attracted a total of 0 impairment points under the Impairment Tables. The Applicant therefore did not satisfy paragraph 94(1)(b) of the Act. It follows that the decision to cancel DSP was correct.
CFS and CSD
The Respondent accepts that the Applicant's CFS was considered to be fully diagnosed, fully treated and fully stabilised as at the time that the Applicant was originally granted DSP in 2012.
An issue on the review is whether the Applicant's CFS, and CSD, were fully diagnosed, fully treated and fully stabilised at the time of the cancellation of DSP on 29 June 2020.
With respect to the CSD, it is noted that Dr Deed states this should be considered a symptom of the Applicant's CFS, and not as an additional unmanaged condition (letter from Dr Deed dated 8 July 2021).
On 27 October 2011, the Applicant underwent a number of tests to determine whether he may have coeliac disease[44], Ross River virus[45], Vitamin B12 and folate deficiency[46], Barmah Forest virus[47], and Vitamin D deficiency[48]. He also underwent tests with respect to thyroid function[49], iron levels[50], multiple biochemical analysis[51], general haematology[52], cytomegalovirus antibody[53], and Epstein Barr antibodies[54]. The Applicant also underwent a diagnostic polysomnography.[55]
[44] Exhibit 1, T5, Pathology Tests), page 57.
[45] Ibid, page 58.
[46] Ibid, n44, page 59.
[47] Ibid, page 60.
[48] Ibid, n44, page 61.
[49] Ibid, page 62.
[50] Ibid, n44, page 63.
[51] Ibid, page 64.
[52] Ibid, n44, page 65.
[53] Ibid, page 66.
[54] Ibid, n44, pages 68-70.
[55] Ibid.
On 29 March 2012, the Applicant attended a consultation with Dr Sean Tolhurst, Thoracic and Sleep Physician.[56] Dr Tolhurst reported that he suspected the Applicant has a combination of sleep state misperception and prolonged circadian rhythm. It was noted that the Applicant was definitely underestimating his sleep, as he had a diagnostic sleep study where he had fallen asleep after only 19 minutes, though he thought he had stayed awake for more than two hours. The Applicant had achieved five hours of sleep on that study in total, yet reported achieving only two or maybe three hours sleep.
[56] Exhibit 1, T7, page 71.
Dr Tolhurst stated he had been through some very strict sleep hygiene measures with the Applicant, and that he would see the Applicant around eight to ten weeks after the consultation, though noting this may not proceed if the Applicant was satisfied with his sleep after implementing the sleep hygiene measures. Dr Tolhurst stated that, if the Applicant had implemented sleep hygiene measures and was still having trouble with his sleep, he would probably perform actigraphy and then subsequently an MSLT (multiple sleep latency test) to try to gather more information. It is understood that the Applicant never underwent any follow up or further engagement with Dr Tolhurst.
On 2 May 2012, Dr Deed reported, in the Medical Report – DSP form that was provided in support of the original DSP claim, that there was no obvious cause or prior infection causing CFS,[57] but diagnosed the Applicant with CFS and reported that the condition was likely to impact the Applicant's ability to function for more than 24 months and to remain unchanged in the next two years.[58]
[57] Exhibit 1, T8, page 76.
[58] Exhibit 1, T8, page 77.
In May 2012, it was accepted by the JCA that the CFS was fully diagnosed, fully treated and fully stabilised, and that it attracted 20 points under Table 1 of the Determination.[59]
[59] Exhibit 1,T10, pages 82-90.
There is a dearth of contemporaneous evidence regarding the Applicant's CFS between the grant of DSP in 2012 and 2019. It is apparent that the Applicant underwent some further tests in June 2019, relating to Vitamin B12 and folate[60], iron[61], full blood examination[62], fertility hormones[63], cumulative serum biochemistry[64], thyroid[65], adrenal studies[66] and growth hormone.[67]
[60] Exhibit 1, T11, page 91.
[61] Ibid, page 92.
[62] Exhibit 1, T11, page 93.
[63] Exhibit 1, T12, page 94.
[64] Exhibit 1, T13, page 95.
[65] Ibid, page 96.
[66] Exhibit 1, T13, page 97.
[67] Ibid, page 98.
In a Medical Report – DSP Review for portability dated 10 December 2019, submitted by the Applicant in support of his request for unlimited portability, Dr Deed stated that the Applicant's CFS still affected the Applicant, and that its impact on the Applicant's ability to function was expected to remain unchanged for the next five years. Current treatment was stated to be graded exercise and psychologist intervention, with no future treatment planned.[68]
[68] Exhibit 1, T14, pages 99-108.
When the Applicant attended the JCA, he advised that he had not seen Dr Deed or any treating doctor in relation to his CFS for over two years before his consultation with Dr Deed on 10 December 2019, and that he would only see Dr Deed approximately every two and a half years.[69]
[69] Exhibit 1, T17, pages 123-130.
The JCA contacted Dr Deed, and recorded that Dr Deed indicated that the Applicant had not ever seen any specialist regarding his condition other than the sleep specialist (inferentially, Dr Tolhurst in 2012).
Dr Deed stated that he had not referred the Applicant for further testing of his sleep condition and had ceased prescribing medication, indicating that the sleep condition must have normalised. He also confirmed that he sees the Applicant every two to three years.[70]
[70] Exhibit 1, T18, pages 132-133.
Following the cancellation of the Applicant's DSP, Dr Deed provided a further letter dated 29 May 2020.[71] In this, Dr Deed stated that he had diagnosed the Applicant with CFS in 2012, and that he suspects the cause of the CFS to originate from an issue along the Hypothalamus-Pituitary-Adrenal Axis in the brain. He stated that the condition had remained stable and unchanged, and was expected to persist from greater than five years as a lifelong illness. Dr Deed noted that the Applicant had seen a psychiatrist, Dr Granger, since 2016, and noted that a low dose of dexamphetamine was prescribed but did not result in changes to his capacity to work or lessen his disability. Dr Deed also reported that the Applicant underwent an MRI of the pituitary gland under the care of an endocrinologist, Dr Michael, d’Emden, in 2019, but that no tumours or abnormalities were found. Further, additional blood tests returned normal. While low testosterone was identified, this was successfully treated and resulted in no changes to symptoms after 12 months of therapy, and accordingly could be ruled out as a cause of the CFS. Dr Deed noted that recent diagnostic criteria questionnaire remained positive, and the Applicant fulfils the criteria despite multiple and unsuccessful specialist interventions.[72]
[71] Exhibit 1, T20, pages 135-136.
[72] Exhibit 1, T20, pages 134-135.
A letter was provided by Dr d’Emden, dated 5 June 2020. Dr d’Emden reported that the Applicant was reviewed on 2 June 2020, and that the appointment was organised to discuss ongoing management of his androgen deficiency. The Applicant was noted to have had low testosterone levels, and that the use of Reandron 1000 had resulted in an improvement in his wellbeing, but that his energy remains suboptimal and he continues to suffer from symptoms related to CFS for which he remains on dexamphetamine. It was reported that, despite hope that many CFS symptoms would resolve, this did not occur. Dr d'Emden stated he did not consider there to be any reason to change the current management strategy for the Applicant's hypogonadism, and that he would review the Applicant further in three months, before which he would have appropriate biochemistry performed.[73]
[73] Exhibit T22, page 138.
Dr Granger also provided a letter, dated 17 July 2020. This noted that the Applicant had been referred to him in 2016 to seek treatment for debilitating symptoms of CFS. While dexamphetamine had been prescribed at a dose of up to 40mg per day, and the Applicant reported that this was somewhat helpful, the Applicant still had a marked amount of fatigue if he tries to do anything requiring continuous mental or physical application for more than two to three hours. Dr Granger stated that, as Dr Deed believes there is an endocrine explanation for his problem, as this is a physical problem, counselling would not fix his fatigue and get him to do much more than he is capable of at the moment. Accordingly,
[74] Exhibit 1, T23, page 143.
Dr Granger stated that the problem is likely to persist for the next five or more years, and that the condition had been exhaustively investigated and treated as reasonably as possible.[74]
At the internal review stage, a report was provided by an officer of the Agency within its HPAU. The author reported speaking to Dr Deed, who advised that the Applicant only attends him sporadically. Dr Deed confirmed that the Applicant continues to report significant sleep issues with associate fatigue. Dr Deed also stated that the outcome of the recommendations made by Dr Tolhurst in 2012 was not known to him, and that it would be reasonable and appropriate to undertake further investigations regarding the ongoing sleep issues, in order to exclude an alternative diagnosis as a contributing factor to Mr Pearson’s chronic fatigue. Dr Deed was reported to have stated that, without the results of such investigations, he was not able to comment on whether a significant improvement, in the functional impacts experienced by the Applicant, could be expected within two years.[75]
[75] Exhibit 1, T25, pages 146-147.
The HPAU author concluded that the additional information provided by Dr Deed indicates that all possible causes of the Applicant's significant sleep issues and fatigue, other than CFS, had yet to be excluded. Based on this evidence, the author recommended that the CFS should not be considered fully diagnosed, fully treated and fully stabilised, for the purpose of DSP.
Dr Deed provided a further letter following the ARO decision, dated 8 April 2021.[76] In this, Dr Deed disputed having told the ARO that 'appropriate investigations ruling out alternative diagnoses as contributing factors to the Applicant's CFS had not yet been undertaken'.
[76] Exhibit 1, T1, pages 9-11.
Dr Deed stated that, in his opinion, all appropriate investigations ruling out alternative diagnoses as contributing factors to the CFS had been undertaken. He further stated that treatment currently provided is only intended to maintain the Applicant's current level of functioning and prevent further deterioration. He further stated that the test described by the sleep specialist in 2012 was not appropriate or necessary for the Applicant to receive the CFS diagnosis.
On 8 July 2021, Dr Deed provided a further letter, in which he clarified information relating to his diagnosis of the Applicant's CSD. Dr Deed stated that this condition should be considered as a symptom of the Applicant's CFS, rather than an additional unmanaged condition. He stated that with strict sleep hygiene, the Applicant may experience a normalisation of his sleeping issue. Dr Deed states that the Applicant was told to only return to Dr Tolhurst if sleep issues are still present alongside the practice of strict sleep hygiene. Dr Deed emphasises that the Applicant 'followed this advice exactly', and that the letter from Dr Tolhurst clearly stated that no further testing was necessary or possible under this scenario. It is noted that Dr Deed's statement here appears to be inconsistent with the Applicant's own evidence that he suffers poor, unrefreshing sleep.[77]
[77] AAT1 decision, Exhibit 1, T2, page 17, [19].
The Respondent notes that the further HPAU report has been produced, following the receipt of the additional letters from Dr Deed. In the opinion of the author, it would be necessary to understand the results of the apparent abnormalities in the Applicant's pathology test results from 2019 before concluding that the Applicant's fatigue is due to CFS. The author also opined that the Applicant's fatigue could be due to the Applicant staying up for two to three hours per night chatting online to people in the USA. The author also noted that the Applicant's circadian rhythm disorder could not be considered to be fully treated without attempts being made to change the Applicant's sleep cycle permanently so that he sleeps at night and is awake during the day.
The Respondent relies on this report, and contends that for the reasons explained in the report, the Tribunal should find that the Applicant's CFS and CSD was not fully diagnosed, fully treated and fully stabilised at the time of the cancellation of DSP.
It is noted that Dr Deed's statement that there was nothing further that could be done for the Applicant by way of further engagement in sleep hygiene testing appears to be inconsistent with the Applicant's own evidence that he suffers poor, unrefreshing sleep.[78] The Applicant's evidence as recorded by the JCA suggests that his sleep pattern is disrupted. He reported that he would speak on an American chat forum for around two hours per night, and that he can modify his sleep/wake cycle over 12 weeks to normalise it to participate effectively in certain events.
[78] Ibid.
In light of this evidence, it cannot be accepted that at the time of the DSP cancellation, the Applicant's CSD was fully treated and stabilised. The Applicant never sought any follow up:
“Stated that he is able to trim his beard on his own, able to brush his teeth, shower and dress without modification.
Mr Pearson described that most days he will go on the treadmill with incline of 5/10 and walk slowly (4km/hr) for a least 10 mins and sometimes 15mins (and may walk faster also). After this, he will use dumbells for 2 minutes and does some gentle stretches.
He stated that he believes he will become sore after doing activities, so doesn't do some activities (for example tried to empty the dishwasher once many years ago and his back felt sore, so has never done this activity again)
Indicated that he maintains his bedroom without help (apart from his mother changes his bed sheets), when asked what he plans to do if his mother becomes unable to change his sheets, he indicated that he would expect he would do this himself. Stated that he does not want his washing to become lost or mixed with other family members, so is motivated to do this task himself. He stated that he is able to put his clothes in the washing machine and uses the dryer (mother would rather he uses the clothes line but stated that he prefers to the dryer) stated that he puts his own clothing in drawers and keeps his room neat and clean.
Indicated that he heats up dinners made by his mother and can make simple meals on his own. Shops for his own clothes online, can order takeaway food (to be delivered) on his own and has an uber app that he can use on his own.
Pays for his own phone bill (sim card). Stated that he intends to travel to America on his own and will be met at the airport by his friend.”
Accordingly, the Tribunal should not be satisfied that the Applicant meets the descriptor at (1)(a)(iv) of the 20 point rating in Table 1.
Having regard to the above, the Respondent contends that the Applicant's conditions should attract 0, or in any event no more than 10, points under Table 1.
It follows, in the absence of there being any other fully diagnosed, fully treated and fully stabilised conditions that can attract an impairment rating, that the Applicant does not satisfy paragraph 94(1)(b) of the Act. This means that the decision to cancel his DSP was correct. On this basis, the decision under review should be affirmed.
Paragraph 94(1)(c) – continuing inability to work
If, contrary to the above, the Tribunal accepts that the Applicant has a total impairment rating of at least 20 points, the Tribunal is then required to consider whether the Applicant had a continuing inability to work at the qualification period.
The Respondent contends that the Applicant did not have a continuing inability to work during the qualification period.
The term 'work' is defined in subsection 94(5) of the Act, as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market.
In determining whether a person has a continuing inability to work, the decision maker must disregard the following:
(a)any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500);
(b)the availability to the person of work in the person’s locally accessible labour market (see paragraph 94(3)(b) of the Act);
(c)the availability to the person of a training activity (paragraph 94(3)(a) of the Act);
(d)the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
(e)the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864, [34]); and
(f)the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846).
The existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517).
The Guide at 3.6.2.112 also provides that the decision maker must disregard a number of factors, including[79]:
“…
a)the availability of any work the person could do or be trained for, within the locally accessible labour market;
b)the availability to the person of a training activity that would assist in developing work skills;
c)the availability to the person of any kind of transport (public or private) to travel to and from work;
d)difficulties with literacy, numeracy or language which are not directly attributable to a medical condition; and
e)employer preferences and discriminatory practices that may exist in the open labour market.” (emphasis added)
[79] The Guide - DSP assessment of continuing inability to work - 15 hour rule. (3.6.2.112 DSP assessment of continuing inability to work - 15 hour rule | Social Security Guide (dss.gov.au)).

Assessors such as the person who undertook the JCA Report have specialist knowledge and experience in identifying barriers to employment, appropriate interventions, available programs and training activities and suitable occupations to determine a person’s work capacity. Relevantly, Senior Member Dunne and Member Reilley in Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642, observed as follows at [28]–[29]:
“The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. In Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, Mr S C Fisher, Member, recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant’s capacity to work or undertake retraining. At paragraph 43 of his reasons, the learned Member said:
“...The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical pesonnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.”
The Respondent contends that the Applicant has a work capacity of greater than 15 hours per week, and relies on the findings of the JCA report dated 19 February 2020, which concluded that the Applicant had a capacity for work within two years with intervention of 15-22 hours per week.[80] The Respondent also relies on the Supplementary Report of the HPAU dated 10 March 2022 in support of this contention.
[80] Exhibit 1, T17, page 128.
Further, the Respondent contends that the functional impairments arising from the Applicant’s conditions do not prevent him from:
(a)undertaking work of at least 15 hours per week within 2 years; or
(b)undertaking a training activity that would equip him to work 15 hours per week within 2 years.
The Respondent relies on the JCA report dated 19 February 2020[81], which identified numerous interventions for the Applicant which would assist the Applicant in increasing his work capacity to 15-22 hours per week.
[81] Ibid, pages 128-129.
Accordingly, with targeted interventions, the Respondent contends that the Applicant would be able to undertake work of at least 15 hours per week within 2 years, or a training activity that would equip him to work at least 15 hours per week within 2 years.
The Respondent therefore contends that the Applicant did not satisfy paragraphs 94(2)(a) and 94(2)(b) of the Act, and therefore did not have a continuing inability to work, at the date of cancellation. On that basis, the Respondent contends that the Applicant did not satisfy paragraph 94(1)(c) of the Act at that time.
It follows that the decision to cancel the Applicant's DSP was correct.
Qualification for unlimited portability
Paragraph 1218AAA(1)(a) – Whether the Applicant is receiving DSP
The Respondent accepts that the Applicant was receiving DSP at the time of his request for unlimited portability. The Respondent also accepts that the Applicant has subsequently been found to qualify for DSP, and is currently receiving DSP.
Accordingly, the Respondent accepts that the Applicant satisfies paragraph 1218AAA(1)(a) of the Act.
Paragraph 1218AAA(1)(b) – Whether the Applicant’s impairment is a severe impairment
For the reasons given above, the Respondent contends that the Applicant did, and does, not have a severe impairment, either at the time of the DSP cancellation or subsequently.
Accordingly, the Respondent contends that the Applicant does not satisfy paragraph 1218AAA(1)(b) of the Act.
Paragraph 1218AAA(1)(c) – Whether the Applicant will have that severe impairment for at least the next 5 years
The Respondent contends that, as the Applicant does not have a severe impairment, he does not satisfy the further requirement that he suffer from the severe impairment for the next five years, as required by paragraph 1218AAA(1)(c) of the Act.
Paragraph 1218AAA(1)(d) – Whether, if the Applicant were in Australia, the severe impairment would prevent him from performing any work independently of a program of support within the next 5 years.
The requirements in section 1218AAA of the Act are cumulative and as the Applicant does not have a severe impairment, it is unnecessary for the Tribunal to consider whether the Applicant satisfies paragraph 1218AA(1)(d).
For completeness, if the Tribunal is of the view that that the Applicant does have a severe impairment (which is not conceded), the Respondent contends that the evidence does not support a finding that this impairment prevents the Applicant from performing any work, independently of a program of support, within the next five years, as required by paragraph 1218AAA(1)(d).
4.101 The Federal Court in Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421 (“Applicant 0108”), [89] stated that the ‘work’ in paragraph 1218AAA(1)(d) of the Act ‘needs to be identified before the question can be answered whether or not they are prevented, by their impairment, from performing such work’. The Federal Court was also critical of the application of the then-‘two hour rule’ in the Agency's ‘Operational Blueprint’.[82]
[82] Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421, [92].
After comparing the definitions of 'work' in subsection 94(5) and in subsection 1218AAA(5) of the Act, the Federal Court in Applicant 0108 went on to state as follows at paragraphs [85] to [92] (emphasis added):
“One begins to see the constructional difficulty that arises. The s 94 definition of work incorporates the concept of work “that is for at least 15 hours per week on wages ...”. It also includes the concept of that work existing in Australia, as does the s 1218AAA definition.
The s 1218AAA definition of work, however, does not refer to any particular number of hours per week that work on wages etc comprises. Indeed, it is silent in that regard and simply provides that work means work “that is on wages ...” that exists in Australia.
It is in respect of that unqualified concept of work that para (d) operates and provides that the Secretary must be satisfied that, if the person were in Australia, the severe impairment would prevent them “from performing any work independently of a program of support ... within the next five years”.
On one view, pressed by the Secretary, the concept of being prevented from performing “any work” in this context is to be contrasted with the concept of work under section 94, being work “that is for at least 15 hours per week”. Thus, it is submitted, if there is any capacity for work, however small (even less than two hours), para (d) cannot be satisfied.
But that contention, in my view, does not respond to the issue at hand. The question remains not whether, in some theoretical or detached setting, free from the actual labour market in Australia, the severely impaired person is prevented from performing work, but whether their impairment prevents them from performing any work that is on wages that are at or above the relevant minimum wage and that exists in Australia. That work needs to be identified before the question can be answered whether or not they are prevented, by their impairment, from performing such work.
…
I should add that, in my view, the AAT further limited its purview of the question it needed to answer by considering it was bound to apply the two hour rule stated in the E-reference guide, when it was not so bound. See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-71 (Bowen CJ and Deane J); (1979) 46 FLR 409. See also Lee and Secretary, Department of Social Services [2016] AATA 60 at [25]. The two hour rule is apt to lead a decision maker into error when applying para (d), even though its good intentions may be.”
The Respondent accepts that the then-'two hour rule’ in the Agency's ‘Operational Blueprint’ does not apply, and the relevant question for the Tribunal’s determination is whether the Applicant’s severe impairment (if accepted) prevents him from performing any work that is on wages that are at or above the relevant minimum wage and that exists in Australia.
The Agency’s Operational Blueprint at Instruction 008-031-20040 now clarifies the approach to be taken to the term, any work, for the purposes of unlimited portability:
“No future work capacity' portability provisions
A customer is allowed indefinite portability of Disability Support Pension (DSP) under specific conditions set out below.
The customer is either:
assessed in Australia as having:
·a severe impairment, with the level of impairment likely to remain for at least 5 years and
·no future work capacity independent of an ongoing program of support with this level likely to remain for at least 5 years
or
·assessed as manifestly qualified for DSP under the current manifest guidelines
…”
The Respondent notes that previously (as, for example, noted in the case of Stojanovski and Secretary, Department of Social Services [2014] AATA 466, there was a requirement that no future work capacity meant an inability to perform less than two (2) hours per week (commonly called the two hour rule). There is now no reference to the two-hour rule in either the Guide or the Operational Blueprint, as indicated above.
As previously submitted before the Federal Court in Applicant 0108 at [80], the Respondent contends that the ‘sustainability of work’ definition otherwise employed by the Department for other section 94 qualification purposes, is not directly relevant to the question that needs to be addressed under paragraph 1218AAA(1)(d).
The Respondent contends that the Applicant has a baseline capacity to work of 8-14 hours per week and a capacity for work within two years with intervention of 15-22 hours per week in light less skilled work. The Respondent relies on the findings of the JCA as stated in the report dated 19 February 2020.[83]
[83] Exhibit 1, T17, page 128.
Additionally, the Respondent relies on the Supplementary Report from the HPAU dated 10 March 2022, in which the author referred to the Applicant's evidence to the effect that he had no problem reading, writing, speaking or hearing, as well as his ability to engage in speaking with friends over the internet for up to two hours at a time at night-time, that would suggest the Applicant has at least some work capacity. The author also identified the specific type of work that the Applicant can perform, as required by Applicant 0108.
The report relevantly states:
“In this case it is very difficult to assign a future work capacity when Mr Pearson has not been in Employment nor attended any Employment Service for many years. Assumptions regarding work capacity are largely based on Mr Pearson’s accounts of what he can and cannot do. On 26/12/2019 (one day after the application for Indefinite Portability) Mr Pearson filled out an AUS 142 form describing his current capacity to work. Whilst Mr Pearson stated that often he would have difficulty sitting, standing, walking or climbing stairs, he stated he had no problem with reading, writing, speaking or hearing. This would seem to correlate with statements he made to a Job Capacity Assessor that he frequently talked to friends via the internet at night for up to 2 hours at a time. It is of note in this case that Mr Pearson applied for Indefinite Portability on the basis that he wanted to travel (alone) to the USA to meet up with friends. As noted in my original report, if a person is able to travel independently to another country plus is able to manage to speak to friends via the internet for up to 2 hours at a time, in my opinion the person can be stated to have at least ‘some’ work capacity.
With reference to the ANZSCO (Australian and New Zealand Standard Classification of Occupations) I would suggest the Mr Pearson would be best suited to sedentary jobs involving clerical and administrative work (Major Group 5). In particular Mr Pearson should be able to find employment in ‘Sub-major Group: 56 Clerical and Office Support Workers’.”
Accordingly, the Respondent contends that the Applicant has not satisfied paragraph 1218AAA(1)(d) of the Act, and as such, is not qualified for unlimited portability of DSP.
Consideration AND Conclusion
In considering the issues before this Tribunal, I have had regard to the extensive evidence and submissions placed before it, in writing and made at the hearing.
This is an application for review of the original decision made by AAT1. That decision itself considered what are the two issues that arise on the review before this Tribunal. Firstly, the question of whether the Applicant was entitled to the DSP at the time of its cancellation in 2020, and secondly, depending on the answer to the first question, whether the Applicant satisfies the qualifying circumstances for unlimited portability of the DSP. In substance, the issue here, having regard to and within the relevant legislative framework, what is the outcome with respect to those two questions.
Issue 1 – whether the Applicant was entitled to DSP at the date of its cancellation (29 June 2020)
The first issue then for this Tribunal is this question of the Applicant’s qualification for the DSP as at the date on which it was cancelled. Section 94 of the Act is the relevant provision to which regard is to be had, and which is to be applied in the circumstances here.
There do not appear to be any issues in the present review with respect to subsection 94(1)(a) – it is accepted that the Applicant has impairments of a physical, intellectual or psychiatric nature for that purpose, and so there’s no question that subsection 94(1)(a) is satisfied. The Respondent appears to accept that Dr Deed has given a diagnosis of CFS, and that CRD is not necessarily a freestanding condition itself but is a by‑product the CFS. This accords with the Applicant’s view that CSD is “part” of his CFS. In my view, nothing turns on this in the instant case. The Respondent also accepts that that there is a reasonable amount of evidence relating to diagnostic testing that had been undertaken with respect to those conditions.
The main point of contention between the parties appears to be the question of whether the Applicant’s CFS (including CSD) is fully diagnosed, treated and stabilised. Depending on how that question is answered, the second element that then becomes relevant is whether Applicant’s conditions attract 20 points or more under the Impairment Tables, within the Determination.
The relevant law and guidance relating to whether something is fully diagnosed, treated or stabilised is set out above, particularly in paragraphs 35 to 41. It is unnecessary for me to repeat that here.
To my mind the central issue here, as it relates to the question of whether the CFS (including CSD) was fully diagnosed, treated and stabilised, is what testing had been undertaken around the Applicant’s sleep issues.
The evidence before this Tribunal indicates that:
·The Applicant underwent in 2012 a sleep study with Dr Tolhurst, and the doctor prepared a report which made certain recommendations about future testing and on the basis that if the Applicant had implemented sleep hygiene measures and was still having trouble with his sleep, he would probably perform actigraphy and then subsequently an MSLT (multiple sleep latency test) to try to gather more information. The Applicant never underwent any follow up or further engagement with Dr Tolhurst or other sleep specialist.
·The Applicant continued to have very significant issues with his sleep, sleep patterns and sleep arrangements. His sleep remained unrefreshed and fatigued. The Applicant’s sleep problems continue to this day.
·Dr Deed indicated that the Applicant had not ever seen any specialist regarding his condition other than the sleep specialist. Initially, Dr Deed stated that he had not referred the Applicant for further testing of his sleep condition and had ceased prescribing medication, indicating that he thought the sleep condition must have normalised.
·Later, Dr Deed apparently confirmed that the Applicant continues to report significant sleep issues with associate fatigue. Dr Deed also stated that the outcome of the recommendations made by Dr Tolhurst in 2012 was not known to him, and that it would be sensible and proper to commence additional investigations about the Applicant’s continuing sleep problems - to eliminate other possible diagnosis as a contributory factor to the Applicant’s CFS. Dr Deed was recorded to have stated that, without the results of such investigations, he was not able to offer professional views on whether a substantial enhancement, in the functional impacts experienced by the Applicant, could be expected within two years.
·On the basis of Dr Deed’s recorded views, Dr Moore concluded that all possible causes of the Applicant's significant sleep issues and fatigue, other than CFS, had yet to be excluded. Accordingly, Dr Moore recommended that the CFS should not be considered fully diagnosed, fully treated and fully stabilised, for the purpose of DSP.
·On 8 April 2021, Dr Deed provided a further letter disputing Dr Moore’s characterisation of his views. Dr Deed stated that, in his opinion, all appropriate investigations ruling out alternative diagnoses as contributing factors to the CFS had been undertaken. He further stated that the test described by the sleep specialist in 2012 was not appropriate or necessary for the Applicant to receive the CFS diagnosis.
·On 8 July 2021, Dr Deed provided a further letter, in which he clarified information relating to his diagnosis of the Applicant's CSD. Dr Deed stated that this condition should be considered as a symptom of the Applicant's CFS, rather than an additional unmanaged condition. He stated that with strict sleep hygiene, the Applicant may experience a normalisation of his sleeping issue. Dr Deed states that the Applicant was told to only return to Dr Tolhurst if sleep issues are still present alongside the practice of strict sleep hygiene. Dr Deed emphasises that the Applicant 'followed this advice exactly', and that the letter from Dr Tolhurst clearly stated that no further testing was necessary or possible under this scenario. Dr Deed's statement here is obviously inconsistent with the Applicant's own evidence that he suffers poor, unrefreshing sleep.
·The Applicant refused to call Dr Deed as a witness before this Tribunal, meaning that the clear evidentiary inconsistencies set out above could not be properly tested and satisfactorily resolved. Accordingly, I cannot give significant weight to Dr Deed’s evidence as it relates to further sleep testing being unnecessary or impossible. On Dr Tolhurst’s advice and the Applicant’s own evidence (about his continuing sleep issues), it is apparent that further sleep testing is both possible and necessary, and has been so since 2012.
·The report of Dr Moore raises the question of how it could be that the conditions are fully diagnosed, treated and stabilised, and Dr Moore draws particular attention, or draws the conclusion that it would be necessary to understand the results of certain abnormalities in pathology testing that had been undertaking before concluding the fatigue is due to CFS. Dr Moore also opined that the Applicant's fatigue could be due to the Applicant staying up for hours per night chatting online to people in the United States. Dr Moore also noted that the Applicant's CSD could not be considered to be fully treated without attempts being made to change the Applicant's sleep cycle permanently so that he sleeps at night and is awake during the day. I accept this evidence.

Overall, on the current evidence and as at the date of cancellation of the Applicant’s DSP (29 June 2020), I am of the view (and find) that the Applicant’s CFS (including CSD) was not fully diagnosed, treated and stabilised such that it is a condition that is able to attract an impairment rating.
If my finding as set out in the foregoing paragraph is wrong, and the Applicant’s CFS (including CSD) is fully diagnosed, treated and stabilised, the next consideration is whether the Applicant’s CFS (including CSD) attracts an impairment rating of 20 points or more under the Determination.
Table 1 is the relevant table in the Determination. It outlines the functions requiring physical exertion and stamina. The way that the tables work is that there are certain descriptors for different levels of impairment which are preferable to the level of points that may be attracted with respect to each impairment table.
For the Applicant to succeed, it is necessary for the Tribunal to find that his CFS (including CSD) attracts 20 points under Table 1.[84] The Respondent contents that there can be no question that first three of the descriptors in paragraph 1(a), that is the descriptors of paragraph (i), (ii) and (iii) plainly aren’t satisfied here - the reason being that there’s no question, when one has regard to the meaning of assistance in those paragraphs, assistance meaning assistance from a person rather than aides or equipment or assistive technology.
[84] Exhibit 1, T3, page 53.
The Respondent contents that there is no evidence that the Applicant is unable to walk around a shopping centre without assistance (paragraph (i)) or walk from a car park without assistance (paragraph (ii)). These submissions were not contested by the Applicant. The Applicant advanced some evidence that he cannot use some forms of public transport (such as trains and busses) unaided (paragraph (iii)). However, I do not find these claims to be particularly credible. It is impossible to reconcile the Applicant’s evidence that he cannot take a Brisbane suburban train without assistance, but he can (and intended to) take an international flight from Australia to the United States, alone. It appears to me that the Applicant’s evidence about his inability to use some forms of public transport without assistance is self-serving and unbelievable. Accordingly, I reject it.
That leaves for this Tribunal’s consideration the activity outlined in paragraph (iv) which would require that the Applicant is unable to perform light day to day household activities, and the examples given there are such as folding and putting away laundry or light gardening. The Applicant’s evidence confirms that he is able and does indeed undertake light day‑to‑day household activities such as laundry.
It follows (and I find) that, at most, the Applicant may attract an impairment rating of 10 points as at the date of the cancellation of the DSP. The Applicant clearly does not attract 20 points as at the same date. The corollary of this is that subsection 84(1)(b) of the Act is not satisfied, and it follows that the qualification to DSP was not present at the date of the cancellation. I find that the cancellation decision was correct.
Based on my finding about subsection 84(1)(b) above, it is not necessary for me to consider subsection 94(1)(c) of the Act, which is the third element for qualification for DSP, relating to a continuing inability to work. However, I shall deal with this provision for the sake of completeness. Subsection 94(1)(c) of the Act relates to a requirement for a person to have a continuing inability to work. This provision is satisfied if a person is unable to undertake work for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia if not within their locally available labour market.
The Respondent contends that subsection 94(1)(c) is not satisfied and relies on the JCA report dated 19 February 2020 that concluded that, with intervention, the Applicant would have a work capacity of 15 to 22 hours per week. The Respondent also relies on Dr Moore’s supplementary report in support of that contention as well where Dr Moore has referred to potential types of work (e.g., sedentary jobs, clerical and administrative jobs) that Mr Pearson may be able to perform. I accept this evidence and find it persuasive. The Applicant made forceful submissions on subsection 94(1)(c) that largely consisted of criticising and personally attacking the author of JCA report and Dr Moore. I did not find much substance there that was relevant or persuasive on the issue of work capacity. Accordingly, I do not give these submissions much weight. Overall, I find the Applicant has a work capacity of 15 to 22 hours per week, and that subsection 94(1)(c) is not satisfied.
In summary, I find that, as at the date of cancellation (29 June 2020), the Applicant was not qualified for the DSP because he did not satisfy either subsection 94(1)(b) or (c) of the Act. I further find that the decision to cancel the Disability Support Pension was the correct or preferable decision.
Issue 2 – whether the Applicant satisfies the ‘qualifying circumstances’ for unlimited portability in section 1218AAA of the Act
Given my finding on issue 1, it follows (and I find) that the Applicant does not have a severe impairment for purpose of subsection 1218AAA(1)(b) of the Act and therefore that is sufficient for this Tribunal to find (and I do find) that the requirements for unlimited portability, either at the time of the DSP cancellation or subsequently, were not satisfied. The Applicant is not entitled to unlimited portability of DSP.
Decision
For the reasons set out above, this Tribunal finds that the Applicant’s DSP should be cancelled with effect from 29 June 2020, and that the Applicant is not qualified for unlimited portability of DSP.
This Tribunal affirms the decision under review.

I certify that the preceding 157 (one-hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

......................[SGD]....................
Associate
Dated: 22 December 2022

Date of Hearing:
Last Submissions:

18 July 2022

7 July 2022

Applicant: In-person via telephone

Solicitors for the Respondent:
David McLaren (Minter Ellison) via telephone