Pereira Dos Santos and Secretary, Department of Social Services (Social services second review)

[2021] AATA 4663

Pereira Dos Santos and Secretary, Department of Social Services (Social services second review) [2021] AATA 4663 (16 December 2021)

Division:GENERAL DIVISION

File Number:          2020/4072

Re:Mr   Antonio Pereira Dos Santos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member B. Pola

Date:16 December 2021

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 2 June 2020.

.............[SGD].......................

Senior Member B. Pola

Catchwords

SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated, and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period – decision under review affirmed

Legislation

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

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola

16 December 2021

BACKGROUND

1. On 1 July 2019, the Applicant, Mr Antonio Pereira Dos Santos, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency’)[1].

   [1]     Exhibit R1, Section 37 T Documents, T13, pages 128 to 138.

2. On 30 October 2019, the Agency sent a letter to the Applicant advising him that his application for the DSP had been rejected[2].

   [2]     Ibid, T19, pages 168 to 170.

3. A decision to reject the Applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on  13 May 2020[3].

   [3]     Ibid, T28, pages 190 to 196.

4. The Applicant applied to the to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) to review the ARO’s decision to reject the Applicant’s claim for the DSP. On                  2 June 2020, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[4].

   [4]     Ibid, T2, pages 6 to 13.

5. The Applicant applied to the Tribunal for a second review of this decision on  6 July 2020[5].

   [5]     Ibid, T1, pages 1 to 5.

6. The hearing of this application commenced on 6 September 2020, however during the hearing on the first day, the Applicant sought an adjournment so that he was able to obtain additional medical evidence. The Respondent did not oppose this request, and the Tribunal afforded the Applicant six weeks to obtain this additional evidence, as well as providing the Respondent with an opportunity to respond to any additional medical evidence submitted by the Applicant. The Tribunal observes the Applicant did not submit any further medical evidence despite the opportunity afforded to him, and the hearing was reconvened on 18 November 2021.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed a decision to reject the Applicant’s claim for the DSP.

8. The Applicant’s claim of 1 July 2019 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO[6].

   [6]     Ibid, T28, pages 190 to 196.

9. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published reasons on 2 June 2020[7].

   [7]     Ibid, T2, pages 6 to 13.

10. In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 1 July 2019.

    ISSUES

11. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to his claim lodged on 1 July 2019, the relevant qualification period ending 13 weeks later, on 30 September 2019[8].

    [8]     The Qualification Period is discussed in later reasons of this Decision.

12. The issue for the Tribunal to resolve in respect of the Applicant’s claim for the DSP is:

    (a)Whether the Applicant had impairments during the Qualification Period, in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as ‘the Act’)?

    (b)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables, contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (herein referred to as ‘the Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

    (i)If so, did the Applicant have a continuing inability to work as defined in section 94(2) of the Act for the purpose of satisfying section 94(1)(c) of the Act?

    RELEVANT LEGISLATIVE PROVISIONS

13. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one, on the material before it[10].

    [9]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [10]    Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

14. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    94       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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …

15. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables and a continuing inability to work which, in some circumstances, includes participation in a program of support (herein referred to as a ‘PoS’).

16. Section 26(1) of the Act provides that, “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

17. Given this, the Tribunal must make its decision in accordance with the Determination, which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination relevant to this application.

18. Section 6 of the Determination provides that, “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].

    [11]    Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), section 6(1).

    [12] Ibid, section 6(2).

19. An Impairment Rating may only be assigned to an impairment if[13]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

    [13] Ibid, section 6(3).

20. Further, for a condition to be considered permanent, pursuant section 6(3)(a) of the Determination, the condition must also[14]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [14] Ibid, section 6(4).

21. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.

    [15] Ibid, section 6(5).

22. A condition is considered fully stabilised if[16]:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [16] Ibid, section 6(6).

23. Reasonable treatment is a treatment that[17]:

    (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.

    [17] Ibid, section 6(7).

24. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination further sets out the circumstances to be considered in relation to pain.

25. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.

26. Specifically, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

27. Section 11(1)(c) of the Determination further provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

28. As previously detailed in paragraph 10 of this decision, section 94(1)(c)(i) of the Act states that to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act requires that:

    (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.

29. A severe impairment is defined in section 94(3B) of the Act:

    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.

30. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

31. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as ‘the Participation Determination’) came into effect from 3 January 2015 and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a PoS.

    QUALIFICATION PERIOD

32. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[18].

    [18]    Social Security (Administration Act) 1999 (Cth), Part 2, clause 4(1)(d).

33. For the purposes of this decision, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 1 July 2019[19], and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 30 September 2019.

    [19]    Exhibit R1, Section 37 T Documents, T13, pages 128 to 138.

34. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referrable to the Applicant’s condition during the Qualification Period[20].

    [20]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

    CONSIDERATION

35. The application was heard in Brisbane on 18 November 2021, with the Applicant self-represented and the Respondent represented by Mr Andrew Summers from Services Australia, with both parties appearing by telephone. The Tribunal has given consideration to submitted evidence entered into the Exhibit Register at the commencement of the hearing (refer to Annexure 1 at the end of these reasons), in addition to oral evidence from the Applicant and Respondent, respectively.

    Section 94(1)(a) of the Act (Did the person have an impairment prior to or during the Qualification Period?)

36. Upon reflection of the medical evidence, the Tribunal is of the view the Applicant suffered impairments prior to the Qualification Period of this application and therefore satisfies section 94(1)(a) of the Act. The Tribunal observes the Respondent was also of this view[21]. The Tribunal observes the following relevant impairments to this application, being:

    (a)Post-polio syndrome; and

    (b)Ischaemic heart disease condition; and

    (c)Mental health condition.

    [21]    Exhibit R2, Respondent Statement of Facts, Issues and Contentions, page 7, paragraph 40.

37. The Tribunal observes the Applicant has tendered further medical evidence which post-dates the Qualification Period for this application[22]. With respect to these submissions, the Tribunal observes that it is unable to accept evidence which does not relate to the period of time prior to, or during the Qualification Period for this application and therefore is unable to consider this as part of the application.

    [22]    Exhibit A1; A2; A3; A4; A5.

38. The Tribunal observes that a letter, dated 30 May 2019 from Dr Helen Mackie, a consultant in rehabilitation medicine, stated the Applicant suffered a range of conditions which included chronic sinusitis, hypertension, and hyper cholesterolaemia[23].

    39.With respect to these conditions, the Tribunal observes there is no further corroborative medical evidence to confirm: (1) the diagnosis and whether the conditions are permanent; (2) whether the conditions have been optimally treated; (3) whether the conditions are fully stabilised; and (4) the prognosis for each condition. In view of the lack of further corroborative medical evidence, the Tribunal could not assess these conditions as part of this application.

    Section 94(1)(b) of the Act (Is the person’s impairment 20 points or more under the Impairment Tables?)

    [23]    Exhibit R1, Section 37 T Documents, T15, page 148.

    40.The Tribunal will now consider each impairment identified with respect to the application of section 94(1)(b) of the Act and whether they meet the relevant provisions contained within the Determination.

    (a) Post-polio syndrome

39. The Applicant confirmed in earlier evidence to the SSCSD of the Tribunal that he had contracted poliomyelitis as an infant when he lived in Brazil. The Applicant confirmed he had undergone several operations to his feet as a child. With respect to the corroborative medical evidence before the Tribunal regarding this condition, the Tribunal observes the following:

    (a)A letter dated 30 May 2019 from Dr Helen Mackie, a consultant in rehabilitation medicine which confirmed the following with respect to the Applicant’s condition[24]:

    [24]    Ibid, pages 148 to 150.

    …He has seen Dr Barton, a neurologist, who said he is in the second stage of his Polio but he has “an unpredictable future”. He has seen Brazilian doctors who have also advised him that the weak muscles are not recoverable and he should conserve energy…

    … in relationship to his late effects of Polio symptoms he has significant fatigue, it is rest responsive which is characteristic of Polio fatigue, he sometimes reaches a physical impossibility to continue which is often described as “hitting a wall” but can recover in an hour or so. He has significant low back pain associated with shortened left leg. He has a low lumbar scoliosis…

    … On examination he was wasting weakness of the triceps muscle of the right arm at a strength level of 1/5. All other muscles of the arms appear to be of relatively normal strength. He is right handed. He has significant weakness of the left leg with him abduction 0/5, flexion 2/5 (ie. not anti-gravity), hip adduction 4/5. His left knee extension is gain not fully anti-gravity at 2/5. He has significant weakness of knee flexion muscles strength of 1/5. He has a fused ankle but has some toe flexion or about 3/5. When he walks he posts his left leg…

    … His walking distance is now reduced to close to 100 meters only comfortably…

    … At the present time he clearly has significant muscle strength loss in the left leg and in the triceps of the right arm and his strength in those two muscles are below that which would benefit from any specific physical strengthen, it would merely fatigue those muscles…

    … I think he probably needs a more stable stick and a higher one which would still shift his weight. He may be better off with an elbow crutch which can provide actual force through for the left leg but he does need training in the technique of using that crutch…

    … he could have Outpatient physiotherapy assessment here with the support of the Chronic Disease Management plan for a more complete muscle charting and clarification of the appropriate specific exercised including hydrotherapy…

    (b)A letter dated 4 June 2019 from Dr Joshua Barton, Neurologist, who confirms he had been treating the Applicant for two years, and stated the following with respect to the Applicant’s condition[25]:

    … [the Applicant] has a diagnosis of post-polio syndrome, causing weakness particularly in his left leg and right arm. This has progressed over the past 6 years. He has had falls and would benefit from a home OT assessment to improve the safety of his home environment. There is no treatment for post-polio syndrome and it is expected that Antonio’s weakness will gradually progress. He maintains appropriate lifestyle interneurons with non-fatiguing exercise. His mobility is currently limited to 50m with a walking stick…

    (c)The Tribunal observes a further letter from Dr Barton, dated 27 August 2019, essentially confirms his earlier assessment above. In this letter, Dr Barton confirms the Applicant has a, “substantially reduced functional capacity in mobility”, and that, “his condition is permanent and expected to gradually worsen and there is no treatment for post-polio syndrome”[26].

    (d)A letter from Dr T Dang, the Applicant’s treating General Practitioner, dated 21 June 2019, confirming the Applicant was only able to walk 50 meters at a time with the use of stick, and that the Applicant was, “… unable to lift his arm up above 30 degree [sic], and and [sic] easily fatigue for performing work related tasks…”[27].

    [25]    Ibid, T15, page 151.

    [26]    Ibid, T18, page 158.

    [27]    Ibid, T15, page 152.

1. The Tribunal considers the Applicant’s condition of post-polio syndrome to be fully diagnosed, fully treated, and fully stabilised as at the Qualification Period for this application. The Tribunal has formed this view based on corroborative medical evidence submitted from Dr Barton, supported by the medical evidence from Dr Mackie and Dr Dang. Given the Applicant’s condition is permanent, it is appropriate that it be assessed as to the functional impact with respect to the Impairment Tables.

2. The Tribunal notes the corroborative evidence from Dr Barton who confirmed the Applicant’s post-polio syndrome causes weakness in his left leg and right arm. With reference to section 10 of the Determination, the Tribunal is of the view that it is appropriate to assess the Applicant’s post-polio syndrome with respect to the following Impairment Tables: Table 2 – Upper Limb Function; and Table 3 – Lower Limb Function.

   Table 2 – Upper Limb Function

3. With respect to the corroborative medical evidence before the Tribunal, Dr Dang confirmed the Applicant was, “… unable to lift his arm up above 30 degree [sic], and and [sic] easily fatigue for performing work related tasks…”. Dr Mackie’s corroborative evidence was that the Applicant had, “…right arm at a strength level of 1/5. All other muscles of the arms appear to be of relatively normal strength...”.

4. The Applicant’s evidence before the SSCSD of the Tribunal was that he had a weak right arm, he was right-handed, and that he could do most things with his right arm. He further confirmed that he could lift a two-litre milk bottle, unscrew a lid, manage buttons and shoelaces, and use a pen or pencil. He has some difficulties with typing and reaching out to pick up objects. The Applicant stated that anything that needs to be lifted he uses his left arm[28].

   [28]    Ibid, T2, page 9, paragraph 18.

5. During the hearing, the Applicant’s earlier evidence was put to him to confirm if it was accurate. The Applicant stated that he felt the SSCSD of the Tribunal did not contextualise his evidence, with respect to how long he could hold a two-litre milk bottle, as the Applicant stated that his hands “shake”[29]. With respect to his ability to type on a keyboard, the Applicant stated[30]:

   … It depends on what you mean by 'correctly'. If he reports something, is it correct? It depends on who is reading it. It really depends, you know. When they say, 'He can lift a 2', or whatever he said, that, 'He can lift a 2 litre bottle'; yes, I can reach but it depends where. It does not tell me where I can lift, how, for how long. So, this is insufficient information. It's a very poor way of writing about a human being. You know, I'm not a machine. Don't judge me actually because my arm can lift a 2 litre bottle, the arm's good. There are other things to look. You know, at time it shakes, does it read that it shakes? It shakes, people start looking at me, you know, (indistinct words). Does it say that? So, you ask me if it's correct. No, it's poorly written. It's correct, the part that is there is correct. But, it's missing point. That's what bad lawyers do. They just tell the bits that interest them. They are paid for that, that's what they do. So, 10 per cent of the information is missing, 90 per cent. So, I think I answered your question…

   [29]    Transcript (18 November 2021), page 8, lines 41 to 47.

   [30]    Ibid, lines 35 to 46.

6. Despite the Applicant’s qualifications to his earlier evidence to the SSCSD at first review, the Tribunal observes in his application for review to the General Division of the Tribunal that in relation to the SSCSD findings he stated, “… I do have some difficulties in picking up and manipulate [sic] most objects with my right hand, so I use my left hand instead. The fact that I can lift a 2L carton of liquid does not eliminate the fact that I still have difficulty on handling objects and using my right arm…”[31].

   [31]    Exhibit R1, Section 37 T Documents, T1, page 4.

7. The Tribunal is satisfied upon reflection of the evidence before it regarding the functional impact of the Applicant’s post-polio syndrome, that the Applicant’s functional ability with respect to his upper limbs is consistent with the descriptor for no functional impact, and zero points with respect to Table 2 – Upper Limb Function, which the Tribunal transposes for reference:

8. This is primarily because the corroborative medical evidence before the Tribunal with respect to the impact of the Applicant’s post-polio syndrome on his upper limbs, at the time of the Qualification Period, indicates that he had full use of his left arm. Further, the Applicant has given evidence that he can manage most tasks with respect to being able to lift a heavy object, he can manage buttons and shoelaces, use a pen, and can manage typing.

9. It is the Tribunal’s view that the corroborative medical evidence from Dr Mackie and Dr Dang does not suggest the Applicant has some difficulty with most of the descriptors for a mild impairment rating of 5 points with respect to Table 2 – Upper Limb Function. The Tribunal transposes the mild functional impact Impairment Table for reference:

10. The Tribunal observes the Applicant has tendered medical evidence from Dr Chaudary (General Practitioner) dated 2 July 2020, which post-dates the Qualification Period for this application[32]. The Tribunal was unable to consider this submission as per the earlier reasons of this decision but notes that the opinion in this report with respect to the consideration of functional impairment under Table 2 – Upper Limb Function, was effective from 19 May 2020, which is eight months outside the Qualification Period for this application[33].

    [32]    Exhibit A1.

    [33]    Ibid, page 10.

11. The Tribunal notes that it is open to the Applicant to make a new application for the DSP, which could take this new corroborative medical evidence into account, observing the Tribunal makes no finding in these reasons as to the Applicant’s prospects of success if any such application was made.

    Table 3 – Lower Limb Function

12. The corroborative medical evidence before the Tribunal regarding the functional impairment to the Applicant’s lower limbs as a result of his post-polio syndrome from Dr Mackie, was that, “… He has significant weakness of the left leg with him abduction 0/5, flexion 2/5 (ie. not anti-gravity), hip adduction 4/5. His left knee extension is gain not fully anti-gravity at 2/5. He has significant weakness of knee flexion muscles strength of 1/5. He has a fused ankle but has some toe flexion or about 3/5. When he walks he posts his left leg… His walking distance is now reduced to close to 100 meters only comfortably…”.

13. The Tribunal observes there is some inconsistency in the submitted medical evidence regarding the distance the Applicant was able to walk at the time of the Qualification Period of this application, with Dr Dang stating the Applicant’s mobility was limited to, “… 50m with a walking stick”[34] and Dr Barton stating the Applicant had current mobility of, “… 50m on the flat”[35].

    [34]    Exhibit R1, Section 37 T Documents, T15, page 151.

    [35]    Ibid, T10, page 116.

14. In view of the corroborative medical evidence, the Tribunal accepts the Applicant’s distance is limited to between 50 and 100 meters, with respect to how far he can walk, and that given the restrictions in his lower left leg (as described by Dr Mackie), and his use of a walking stick, the ground upon which he walks ideally ought to be flat.

15. The Tribunal is satisfied upon reflection of the evidence before it, regarding the functional impact of the Applicant’s post-polio syndrome, that the Applicant’s functional ability with respect to his lower limbs is consistent with the descriptor for a moderate functional impact, and 10 points with respect to Table 3 – Lower Limb Function, which the Tribunal transposes for reference:

16. The Tribunal is satisfied the Applicant does not meet the descriptor for a severe impairment rating of 20 points with respect to Table 3 – Lower Limb Function, on the basis that the evidence before the Tribunal indicates the Applicant is able to walk around a shopping centre. The Tribunal transposes this table for reference:

17. In summary, with respect to the Applicant’s post-polio syndrome, the Tribunal has found the Applicant’s condition has accumulated a total of 10 points, consisting of 0 points under Table 2 – Upper Limb Function, and 10 points under Table 3 – Lower Limb Function.

    (b)  Ischaemic heart disease condition

18. Corroborative medical evidence before the Tribunal, referable to the Qualification Period, indicates the Applicant presented to hospital in August 2017 with chest pain, where he was referred for cardiothoracic surgery and underwent quadruple artery bypass grafts[36]. A Medical Certificate from Dr Dang, dated 2 February 2018, further confirms the Applicant’s surgery[37].

    [36]    Ibid, T15, pages 142 to 147.

    [37]    Ibid, T9, page 115.

19. A Job Capacity Assessment Report from 19 September 2019, undertaken in a face-to-face interview by a rehabilitation counsellor, indicates the Applicant was prescribed medications and sees a cardiologist every three months. It was noted that Dr Dang did not report any particular symptoms from this condition, nor did the Applicant[38]. The Job Capacity Assessment Report indicates the Applicant reported some fatigue from walking but indicated to the assessor that it may have been due to the post-polio syndrome.

    [38]    Ibid, T19, page 161.

20. The Tribunal accepts the Applicant’s ischaemic heart disease condition was fully diagnosed, fully treated, and fully stabilised at the Qualification Period for this application. The Tribunal accepts the condition is permanent and therefore able to be assessed under the relevant Impairment Tables. The Tribunal is of the view the relevant Impairment Table is Table 1 – Functions requiring Physical Exertion and Stamina.

21. With respect to the Applications comments regarding fatigue and post-polio syndrome, the Tribunal has made findings with respect to the Applicant’s post-polio syndrome under Table 2 – Upper Limb Function and Table 3 – Lower Limb Function; and is of the view that the assigned impairment ratings appropriately capture the Applicant’s exertion and mobility impairments from this condition. Further, the Tribunal is of the view that there is a lack of corroborative medical evidence with respect to the Applicant’s fatigue related to his Post-polio syndrome, distinguishing the impact of this impairment from the Applicant’s other relevant impairments.

22. Upon reflection of the limited corroborative medical evidence referable to the Qualification Period, the Tribunal is of the view the Applicant’s ischaemic heart disease condition is consistent with the descriptor for no functional impact, and zero points with respect to Table 1 – Functions requiring Physical Exertion and Stamina, which the Tribunal transposes for reference:

23. The Tribunal is of the view that there is insufficient corroborative medical evidence referrable to the Qualification Period for this application to make a finding with respect to a functional impairment greater than that which the Tribunal has found, with respect to the Applicant’s ischaemic heart disease condition.

24. The Tribunal makes similar findings to those in earlier reasons of this decision, with respect to tendered medical evidence which post-dates the Qualification Period for this application, referable to this condition[39].

    [39]    Exhibit A4; A5; A6; A8.

25. In summary, with respect to the Applicant’s ischaemic heart disease condition, the Tribunal has found the Applicant’s condition has accumulated a total of 0 points under Table 1 – Functions requiring Physical Exertion and Stamina.

    (c) Mental health condition

26. There is evidence before the Tribunal the Applicant has been treated for anxiety and depression and received pharmacological treatment in the past.

27. A medical report from Dr Chaudary (General Practitioner), dated 2 July 2020, indicates the Applicant had been fully diagnosed with Post Traumatic Stress Disorder and had, in the past, received counselling and could continue with this in the future[40]. As referred to in earlier reasons of this decision, as this medical evidence is not referable to the Qualification Period of this application, the Tribunal is not able to take it into account.

    [40]    Exhibit A4, page 4.

28. Further, the Tribunal observes that the introduction to the relevant Impairment Table, Table 5 – Mental Health Function, strictly stipulates that diagnosis must be made by an appropriately qualified medical practitioner (including a psychiatrist), with evidence from a clinical psychologist (if the diagnosis is not made by a psychiatrist).

29. During the course of the hearing, the Tribunal questioned the Applicant has to whether he had a formal diagnosis from a psychiatrist or clinical psychologist. The Tribunal transposes the relevant exchange below:[41]:

    [41]    Transcript (18 November 2021), page 13, lines 45 to 46; page 14, lines 1 to 10.

    APPLICANT:                 But with psychologist it make things more difficult. And also at that time I did have some mental issue. I was seeing psychologist as well. But I didn’t ask. You know I thought (indistinct words) that they need. So I didn’t focus on that area…

    …

    SENIOR MEMBER:       …in order for the Tribunal to make an assessment of your mental health conditions, it’s a very strict requirement that a diagnosis has to come from a psychiatrist or a clinical psychologist. So, I don’t have a latter or anything like that from anyone treating you.

    APPLICANT:                 No, sure, I understand. It’s not my word, you’re right.

30. In the absence of a diagnosis from a psychiatrist or clinical psychologist referable to the Qualification Period for this application, the Applicant’s mental health condition is not considered diagnosed. Additionally, in the absence of further corroborative medical evidence indicating whether the Applicant’s mental health condition had been optimally treated (if it is considered fully stabilised) and a prognosis, the Tribunal is unable to assess the condition or assign and Impairment Rating as part of this application.

    Summary

31. The Tribunal has found the Applicant’s conditions have been assigned a total impairment rating of 10 points.

32. As the Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the Qualification Period, he therefore does not satisfy section 94(1)(b) of the Act.

33. Accordingly, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

    DECISION

34. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 2 June 2020.

    I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    …………[SGD]………………

    Associate

    Dated: 16 December 2021

    Date of hearing:  18 November 2021

    Applicant:  Mr Pereira Dos Santos (Self-Represented)

    Solicitor for Respondent:       Mr Andrew Summers (Services Australia)

    Annexure 1 – Exhibit Register

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
1	Section 37 T Documents (pages 1 to 251)	R	10 August 2020	10 August 2020
2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 17)	R	02 March 2021	02 March 2021
3	Respondent’s Statement of Facts, Issues and Contentions – Attachment A (Centrelink Customer Record) (pages 1 to 6)	R	19 July 2021	19 July 2021
4	Basic Rights Queensland – Treating Health Professional Request for Information (pages 1 to 12)	A	02 July 2020	06 July 2020
5	Medical report from Dr Vijay Kapadia, Cardiologist	A	07 October 2020	19 October 2020
6	Coronary Angiography and Bypass Graph Study – Dr Atifur Rahman (pages 1 to 2)	A	10 September 2020	19 October 2020
7	Letter Dr Richard Adams, Neurologist (pages 1 to 2)	A	04 August 2020	19 October 2020
8	Medical report from Dr Assad Jadeer, Consultant Cardiologist (pages 1 to 3)	A	27 July 2020	19 October 2020
9	Tribunal Direction	–	27 October 2020	–