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

Phillips and Secretary, Department of Social Services (Social services second review) [2021] AATA 1046 (29 April 2021)
Division:GENERAL DIVISION
File Number: 2020/3362
Re:Michael Phillips
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 April 2021
Place:Perth

The Authorised Review Officer’s decision dated 1 April 2020, as affirmed by the AAT1 on 14 May 2020, is affirmed.
.....................[Sgd]...........................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – whether the Applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables – Impairment Table 2 – Upper Limb Function – Impairment Table 3 – Lower Limb Function – Impairment Table 4 – Spinal Function – neck and lower back conditions – right shoulder injury and right wrist injury – left foot and ankle conditions – other medical conditions including sleep apnoea and mental health conditions – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed – recommendation made by Tribunal for Department to investigate adequacy of communicating requirement for a program of support to applicants

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(5)
Social Security (Administration) Act 1999 (Cth) – ss 179(2)(a), Sch 2 cl 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(4), 6(5), 6(6), 10, 11
CASES
Badita and Secretary, Department of Social Services [2018] AATA 3884
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 April 2021
BACKGROUND

The Applicant seeks review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of this Tribunal.
The Applicant lodged an online claim on 16 September 2019 for a disability support pension (DSP). In his claim he listed the following medical conditions (T28/202-203):
Back injury …
Lower Back Injury …
Right Shoulder Injury …
Neck Injury …
Right Hand Rist Injury …
Left Foot Ankle …
Right Hip …
Sleep Apnia …
Left Hip Torn Librium
(Original spelling retained.)
On 24 September 2019 a rehabilitation counsellor made a DSP Medical Eligibility Assessment Recommendation that based on the medical evidence provided, the Applicant was not eligible for a DSP because his conditions were not fully diagnosed, treated and stabilised (T30/218–219).
On 28 September 2019, the Applicant’s claim for a DSP was rejected because he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T31/220–1) (Original Decision).
The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO) (T36/248).
The Applicant was referred for an Employment Services Assessment Report on 9 October 2019, which was undertaken by a registered psychologist (T33/224). The report was submitted on 21 October 2019. Although the report recognised that the Applicant had permanent conditions of a spinal disorder, shoulder and upper arm disorder, lower limb deficiencies, fractures and crush injuries, and other conditions, the report assessed the Applicant as being suitable for 15 to 22 hours work capacity within two years with intervention in light less skilled work. The report recommended a 12-month exemption and medical interventions to assist the Applicant to find work and to manage his chronic pain (T33/224–31).
The Applicant was referred for a Job Capacity Assessment (JCA) on 26 February 2020, which was also undertaken by a registered psychologist (T35/234). The JCA assessor produced a report on 9 March 2020 and made recommendations with respect to the Applicant’s conditions, namely that his:
(a)spinal condition attracted 5 points under Table 4 – Spinal Function (T35/241);
(b)shoulder and upper arm disorder attracted 5 points under Table 2 – Upper Limb Function (T35/242);
(c)lower limb deficiencies attracted 5 points under Table 3 – Lower Limb Function (T35/242);
(d)work capacity within two years with appropriate interventions is 15 to 22 hours per week of “light less skilled” work (T35/244).
On 1 April 2020, an ARO of Centrelink wrote to the Applicant to advise him that the ARO had found the Original Decision to be correct, and that his review was unsuccessful (T37/249–56) (ARO Decision).
On 17 April 2020, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T38/257–62). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 14 May 2020 (T2/4–12).
The ARO Decision of 1 April 2020, as affirmed by the AAT1 on 14 May 2020, is the reviewable decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth)) (Administration Act).
ISSUE
The overall issue for determination by this Tribunal is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments;
(b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work”.
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal on 13 April 2021. The parties appeared by videoconference.
The Applicant was self-represented. Ms Underhill of Mills Oakley Lawyers appeared for the Respondent. Oral submissions were made by both parties. The Applicant also gave oral evidence to the Tribunal and was cross-examined.
The following documentary material was admitted into evidence at the hearing:
(a)email dated 1 June 2020 from the Applicant titled “P148751 Appeal Options” (Exhibit 1);
(b)section 37 (T-documents) numbered T1 to T44, comprising 318 pages (Exhibit 2); and
(c)letter dated 5 October 2020 from Dr M J Kent, anaesthetist and specialist in pain medicine, regarding the Applicant’s spinal function (Exhibit 3).
LEGISLATION
Qualification for DSP
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; …
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments:
Selection steps
(1)Table selection is to be made by applying the following steps:
(a)      identify the loss of function; then
(b)      refer to the Table related to the function affected; then
(c)       identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor and medical specialists.
Section 11 of the Impairment Tables states, in part:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Continuing inability to work
One of the qualification criterion for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
Section 94(3B) of the Act provides that “[a] person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table” (original emphasis).
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment, they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. The Applicant lodged his claim for a DSP on 16 September 2019 (T28/202). Consequently, the relevant qualification period is 16 September 2019 to 16 December 2019 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)

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

It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

In Gallacher, Besanko J (at 7 [27] and [28]) also stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
At the hearing it was explained to the Applicant that the Tribunal is required to assess the medical evidence concerning his functional ability resulting from his impairments during the 13-week Qualification Period. The Applicant gave evidence that his conditions had worsened after the Qualification Period (Exhibit A1). The Tribunal explained to the Applicant that he could make a new claim for a DSP where his recent medical evidence could be considered.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from impairments during the Qualification Period?
The Applicant had physical impairments during the Qualification Period. The medical evidence before the Tribunal confirms that the Applicant suffered from neck and lower back conditions (Spinal Conditions), a right shoulder injury and right wrist injury (Upper Limb Conditions), left foot and ankle conditions (Lower Limb Conditions) and other conditions (including benign prostate hypertrophy and a stomach disorder) during the Qualification Period (see summary of medical evidence in the JCA Report dated 9 March 2020 at T35). Accordingly, the Tribunal finds that the Applicant suffered from these impairments during the Qualification Period and therefore, s 94(1)(a) of the Act is satisfied.
As well as the benign prostate hypertrophy and a stomach disorder referred to at paragraph [37] above, the Tribunal notes that the AAT1 Decision referred to the Applicant having dizzy spells and sleep apnoea, mental health problems and painful knees (T2/11). A referral letter dated 21 November 2018 (T27/201) lists the benign prostate hypertrophy under the Applicant’s “past medical history” and so it is unclear whether this condition had resolved prior to the Qualification Period, or whether it was a permanent condition. There is insufficient information about these conditions to enable the Tribunal to determine whether the Applicant suffered from them at the Qualification Period, whether they were permanent, and if they were, what their functional impact would be.
Were the impairments permanent at the time of the Qualification Period?
The Secretary accepts that the Applicant’s Spinal Condition was permanent at the time of the Qualification Period because it was fully diagnosed, treated and stabilised at that time (see Statement of Issues, Facts and Contentions (SIFC) at paragraph [32]). The Tribunal agrees, noting a report from Dr Kent dated 24 October 2019 stating that the Applicant has had chronic and recurrent conditions with his spine for over 20 years (T38/263), and a subsequent report dated 5 October 2020 (Exhibit 3) confirming that the Applicant’s Spinal Conditions are “fully diagnosed, fully treated and fully stabilised and that no further treatment is envisaged”.
Similarly, the Secretary accepted that the Applicant’s Lower Limb Condition was “optimally treated” by the end of the Qualification Period and could be assigned an impairment rating (SIFC at paragraphs [46]). A letter from Dr Kennedy dated 12 June 2015 confirmed that the Applicant had “sustained significant injuries to both lower extremities following a fall at work from the back of his truck” on 21 February 2014 (T10/136). The letter further stated that although the Applicant was still undergoing treatment for chronic hip pain, particularly in the right hip joint (which will be discussed further in the next paragraph), the treatment would not significantly alter his impairment evaluation. In his letter dated 24 October 2019, Dr Kent stated that the Applicant has not been able to work since his “serious ankle injury” at work in 2014, that he required a walking stick and that “it is most unlikely that he would ever be in a position to engage in a meaningful return to work” (T38/263). Based on this evidence the Tribunal agrees that the Applicant’s Lower Limb Condition is permanent.
The Secretary submitted that the Applicant also had a hip condition for which he was anticipating undergoing surgery at the end of the Qualification Period and so the hip condition could therefore not be considered fully treated and fully stabilised at that time (SIFC at paragraph [45]). The Tribunal agrees, noting the Applicant’s evidence at the hearing that he had hip surgery after the Qualification Period in November 2020.
The Secretary further submitted that an impairment rating ought not to be assigned for the Applicant’s Upper Limb Condition. The first condition comprising the Upper Limb Condition was a right shoulder injury sustained by the Applicant at work in 2006. The Secretary submitted that, based on the medical evidence, this injury resolved in approximately 2016/2017. This submission was based on a report from Mr Lim dated 25 July 2016 which stated that the Applicant had a “good result from his right shoulder surgery” where the Applicant “had 80-90% relief of his preoperative pain and returned to work”. The letter later noted that the right shoulder “is quiescent” and that his shoulder and arm pain symptoms may arise from the cervical spine (T13/159). However, in his letter dated 24 October 2019, Dr Kent stated that the Applicant had had “two operations on his right shoulder with continuing right shoulder pain” (T38/263). This suggests to the Tribunal, and the Tribunal finds, that the condition was permanent at the time of the Qualification Period and was continuing to cause the Applicant pain.
It is possible that the cause of the Applicant’s right shoulder issue arose from the cervical spine. This is supported by an MRI scan of 27 July 2016 showing foraminal narrowing which was “most prominent at C5/6 on the right side without cortical spurring and causes moderate encroachment upon the right foramen abutting upon the existing right C6 root” (T14/160). However, the Tribunal disagrees with the Secretary’s submission (SIFC, paragraph [43]) that there is a common or combined impairment with the Applicant’s Spinal Condition, which would make it inappropriate to assign a separate impairment rating for the Applicant’s Upper Limb Condition (s 10(5) and (6) of the Impairment Tables). This is because the functional impacts of the Applicant’s Spinal Condition (affecting his neck and back) and the Applicant’s Upper Limb Conditions (affecting his left arm and overhead activities) have a functional impact on different parts of the body that are covered by different Impairment Tables.
The Tribunal agrees that there is insufficient evidence to conclude that the right wrist condition is permanent, and if it was permanent, what any functional impacts would be. The available evidence is a hospital discharge summary dated 27 July 2018 which stated that the Applicant had been assaulted two months prior and had “right wrist pain radially” (T25/196). However, the summary noted that the MRI showed no evidence of a carpal bone injury, showed “intact intrinsic wrist ligaments” and an “old ununited fracture at the proximal ulnar border of the base of the 5^th metacarpal”. This suggests that the right wrist injury may have resolved, but the medical evidence is equivocal.
In conclusion, the Tribunal finds, based on the medical evidence before it, that the Applicant’s Spinal Condition, Lower Limb Condition (excluding his hip condition) and Upper Limb Condition (being his shoulder injury, and excluding his wrist injury) were permanent at the time of the Qualification Period. Therefore, the Tribunal can assign an impairment rating to those conditions.
Impairment rating for the Applicant’s Spinal Condition, Lower Limb Condition and Upper Limb Condition
The Tribunal will now determine the functional impact of these conditions at the time of the Qualification Period to determine the appropriate impairment rating. The Tribunal observes that, except for the Applicant’s Spinal Condition, there is very little corroborating medical evidence as to the functional impact of these conditions.
With respect to the Applicant’s Spinal Condition, the Tribunal notes the report of Dr Chan, a chiropractor, dated 4 August 2016, which referred to the Applicant’s chronic neck pain and that he had a “painfully decreased neck range of movement on flexion and left lateral flexion, 70% of full range and painless reduced neck movement on right lateral flexion …” and “pain and restriction” at L4 (T16/164).
The JCA Report dated 9 March 2020 stated that the Applicant (T35/235):
was observed to use a walking stick placed in his right hand for mobility and he reported using this at home and in the community. He reported that at home he tries to help his wife as much as possible as she has physical impairments as well, and they have two young children … He reports double dosing his medication to undertake chores such as vacuuming and washing floors, he helps with the laundry (placing items in a front loader washing machine, getting onto the ground and using his walking stick and the machine to lever himself back up), placing items in a dryer just above shoulder height (with difficulty) and pushing the washing trolley with the basket placed on this. He notes when undertaking grocery shopping, he leans on a trolley for support. He notes undertaking dish-washing for the family of four, only being able to maintain static standing for five to ten minutes before having to rest. Mr Phillips was observed to be able to sit for the length of the 45 minute interview without displaying pain behaviours. He was noticeably stiff upon standing to exit the interview room.
The JCA Report further stated that the Applicant (T35/241):
reports some difficulty with bending, he reports that he is able to squat to place laundry into and out of a front loader washing machine, place in a basket and push a washing trolley to a dryer, where he places items just above head height into. He was noted to be able to sit for the duration of the 45 minute interview without displaying observable pain behaviours. He reported that he can undertake most daily activities, however has to break the heavier tasks, such as vacuuming and mopping down into manageable chunks.
The Applicant disagreed with some of this assessment, stating at the hearing that he was unable to squat, had difficulty remaining seated in the one position and was unable to vacuum or mop, although he could possibly do one room at a time (transcript/24). In Exhibit A1, the Applicant stated:
My last appointment with a Centrelink Psychologist was face to face at the Midland office which i recorded the conversation. She could clearly see that I was having difficulty moving. Her report is false in the fact i was holding a walking stick in my right hand when it was actually in my left hand. She also stated that i didn't have difficulty sitting for the 45 minutes i was in interview room, i was clearly having difficulties as i can't sit for more than 5 minutes in the same position, I have to move position all the time as it hurts to much to stay seated and this is also whilst driving my car. The Psychologist told e at the end of the interview that she is going to refer me to Sonic Health to get a physical review, she lied! She also states that i can go to the shops and pick up groceries without to much difficulty, not true i can't use my right hand to lift almost anything as i drop almost everything, i have no strength in my right hand, I can't grip anything tight. I use my left hand to do most things and I can't do heavy lifting. Household chores are shared with difficulty with my wife as she also has health issues. My 4 year old daughter helps where she can when asked, she puts the cloths in the washing machine, gets things when asked. My cloths dryer is on top of the washing machine and is not above shoulder height as stated by the Psychologist.
(Original spelling retained.)
The Tribunal accepts the opinion of Dr Kent, who has been treating the Applicant for over 20 years for a variety of conditions (T38/263). Dr Kent stated in his letter of 5 October 2020 (Exhibit 3) that there is “a moderate functional impact on activities involving spinal function”. This would attract a moderate rating of 10 points under Table 4 – Spinal Function of the Impairment Tables. The Applicant confirmed in his evidence to the Tribunal that Dr Kent had directly observed him before making this assessment, and that although Dr Kent was not an occupational physician, he was in a good position to know what the Applicant could and could not do. The assessment by Dr Kent accords with the other available evidence before the Tribunal that the Applicant was able to perform some overhead activities, but with difficulty, that he did have some flexion in his neck without moving his trunk, that he could bend forward (for example, to put washing in a washing machine), and that he was able to remain seated for more than 10 minutes (albeit with discomfort). The Tribunal notes the Applicant’s evidence at the hearing that he was able to drive (transcript/26).
With respect to the Applicant’s Lower Limb Condition, a letter from Dr David Kennedy dated 12 June 2015 states that the Applicant “sustained significant injuries to both lower extremities following a fall at work from the back of his truck” on 21 February 2014. As mentioned at paragraph [40] above, Dr Kennedy noted that the Applicant was undergoing treatment for chronic pain including in his left ankle and hind foot and that if he returned to work he would need to find work “that avoids excessive load or stress on his lower extremities” (T10/136). In his letter dated 24 October 2019 (T38/263), Dr Kent stated that “[i]n 2014 [the Applicant] suffered a serious ankle injury whilst at work as a truck driver. He has not been able to work since, he now needs a stick to ambulate.” At the hearing, the Applicant stated that if he goes to the shopping centre he uses his stick and leans on a shopping trolley when walking. He also stated that he cannot lean forward due to his left foot condition. In a written submission the Applicant stated that he could not run or jump and had to stop regularly when walking (Exhibit A1).
The JCA Report dated 9 March 2020 described (T35/238):
Symptoms include chronic pain in the left ankle and hind foot. Instability around the ankle/heel, numbness of [the outer] three toes, reduced ROM [range of movement].
Applying Table 3 – Lower Limb Function, and based on the evidence available to the Tribunal, there appears to be a mild functional impact of the Applicant’s Lower Limb Condition, which would attract an impairment rating of five points. This is because the Applicant has difficulty walking around a shopping centre without a rest and needs a walking stick to mobilise effectively. Unfortunately, there is insufficient evidence regarding the functional impact of the Applicant’s Lower Limb Condition available to the Tribunal to enable the Tribunal to determine whether there is a higher functional impact under Table 3. There is no corroborating medical evidence about whether, for example, the Applicant can walk far outside his home, whether he is unable to use stairs or steps without assistance and whether he is unable to stand for more than five minutes.
With respect to the Applicant’s Upper Limb Condition, the JCA Report dated 9 March 2020 stated (T35/242) that the Applicant:
reports being able to undertake most daily activities, he may require frequent rest breaks with heavier activities such as vacuuming and mopping. He is able to lift and carry most household items, however would struggle with heavier items. The undertake shopping chores, lifting bags of groceries and is able to use everyday appliances without difficulty. His self-care is unaffected.
At the hearing, the Applicant stated that he cannot raise his right arm above his head and has difficulty sustaining overhead activities. As mentioned above at paragraph [42], Dr Kent’s letter dated 24 October 2019 states that the Applicant “has had two operations on his right shoulder with continuing right shoulder pain” (T38/263). The Tribunal notes the Applicant’s evidence about the functional impact of his conditions (see paragraph [50] above), including his evidence that “tapping the keyboard with my right hand fingers hurts and writing is out of the question as i cannot hold a biro and write as it hurts to much even after 1 minute” (Exhibit A1). The Applicant also stated that he could not pick up his small children (Exhibit A1).
There is, however, insufficient medical evidence to enable the Tribunal to form an opinion about the appropriate impairment rating under Table 2 – Upper Limb Function. This is because the Tribunal does not have any corroborating medical evidence as to whether the Applicant has the functional impacts specified in Table 2. Specifically, the Tribunal does not have any corroborating medical evidence (for example, from his treating medical practitioners) as to whether the Applicant can pick up heavier objects, handle very small objects such as coins, do up buttons, pick up a light but bulky object requiring the use of two hands, hold or use a pen and use a computer keyboard, and so on. Unfortunately, this means that the Tribunal is unable to assign an impairment rating for the Applicant’s Upper Limb Condition.
CONCLUSION
Based on the evidence before the Tribunal, during the Qualification Period, the Applicant did not meet the eligibility requirements in s 94(1) of the Act and was therefore not qualified to receive a DSP.
This was because the Applicant did not satisfy the requirement in s 94(1)(b) of the Act of having 20 points or more under the Impairment Tables. In summary, the Tribunal found above that the Applicant’s Spinal Condition would attract an impairment rating of 10 points under Table 4 and that his Lower Limb Condition would attract an impairment rating of five points under Table 3. The Tribunal also found that the Applicant’s Upper Limb Condition could not be afforded an impairment rating due to a lack of corroborating medical evidence regarding the functional impact of this condition.
It is therefore unnecessary to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act. However, the Tribunal observes that even if the Applicant’s impairment ratings across the relevant Tables totalled 20 points, the Applicant would nevertheless not be eligible for a DSP because he has not participated in a program of support, as required by s 94(2)(aa) of the Act. The Tribunal accepts the Applicant’s evidence that he did not know about the requirement for a program of support until after his application commenced with the Tribunal.
Too often before the Tribunal applicants are not aware of the requirement to participate in a program of support (see for example, Badita and Secretary, Department of Social Services [2018] AATA 3884 at [50]). The effect is that, unless an applicant is suffering from a severe impairment attracting 20 points under one Impairment Table, they will fail to meet the eligibility requirements even if the functional impacts of their conditions attracts 20 points across several Tables. The lack of awareness of the program of support requirement means that applicants are proceeding with applications in the Tribunal that have poor prospects of success. This can be stressful and time consuming for applicants, and negatively impacts the Tribunal’s resources. The Tribunal can make recommendations in the interests of good government to improve accountability, transparency and government processes. Accordingly, the Tribunal requests that the Secretary investigate the departmental processes and procedures for communicating the requirement for applicants to undertake a program of support. The Tribunal requests the Secretary should seek to identify any deficiencies in communicating this requirement and to ensure that applicants are able to access programs of support as early as possible in the departmental processes.

The Tribunal notes the Applicant’s frustration with the process of applying for a DSP which he described in Exhibit A1 as follows:
The whole process of applying for disability has been going on for to long, since 2016 when my compensation term finished for the twelve months after the payout when i first applied for disability pension. I received a blue pension concession card and i was under the impression that my application for disability was approved. In 2019 Centrelink called me to go and do a job capacity assessment, I told centrelink there must be a mistake as i was on disability and she said no your not and could not find any record of this and for me to make a new claim, which I did. A Centrelink employee called me to discuss my new claim 3 months later apologizing for the length of time someone got in touch with me as my file was put to one side and forgotten and this only happened because i put another complaint in because it was taking to long. When i asked about my original claim i was told that it has been archived and couldn't be retrieved, so this is why a new claim came about.
(Original spelling retained.)
The Tribunal also requests that the Secretary investigate the issues identified by the Applicant in this submission, namely the length of time of the process for applying for a DSP, the allegation that the Applicant’s records were missing and/or could not be retrieved, and how the Applicant thought he had been approved for, and was receiving a DSP when he had not been.
The Applicant suffers from numerous health conditions and it appears likely to the Tribunal that some of the Applicant’s conditions may have developed or worsened since the Qualification Period. Additionally, other conditions such as the Applicant’s hip condition may now be permanent and could possibly be assigned an impairment rating. Also, further medical evidence regarding the Applicant’s wrist and his other medical conditions, where there is currently insufficient corroborating evidence before the Tribunal, may warrant further consideration regarding the Applicant’s eligibility for a DSP. If the Applicant wishes to make a new claim for a DSP, the Tribunal requests that Centrelink work with the Applicant and his medical practitioners to assist him, including providing his medical practitioners with copies of the Impairment Tables to ensure that Centrelink has the relevant information to be able to determine any new DSP claim. This will enable any developments in the Applicant’s health conditions and medical evidence after the Qualification Period to be properly considered.
DECISION
The ARO Decision dated 1 April 2020, as affirmed by the AAT1 on 14 May 2020, is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......................[Sgd].............................................
Associate
Dated: 29 April 2021

Date of hearing: 13 April 2021

Applicant: Self-represented

Representative for the Respondent: Ms M Underhill, Mills Oakley Lawyers

[2021] AATA 1046

29 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	13 April 2021
Applicant:	Self-represented
Representative for the Respondent:	Ms M Underhill, Mills Oakley Lawyers