Plant and Secretary, Department of Social Services (Social services second review)
[2018] AATA 3860
•15 October 2018
Plant and Secretary, Department of Social Services (Social services second review) [2018] AATA 3860 (15 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4078
Re:Maurice Plant
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member K Parker
Date:15 October 2018
Place:Melbourne
The Tribunal affirms the reviewable decision to reject the Applicant’s claim for disability support pension under the Social Security Act 1991 (Cth).
[sgd]........................................................................
Member K Parker
SOCIAL SECURITY – claim for disability support pension – whether the applicant has physical, intellectual or psychiatric impairments –diabetes mellitus type II – Charcot foot – haemochromatosis – retinopathy – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised – whether the impairments attracted 20 points or more under Impairment Tables – interpretation of “without assistance” in Table 3 – function of executive policy in decision-making process of the Tribunal – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – s 23, 26, 94
Social Security (Administration) Act 1999 (Cth) s 16
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 – s 6, 8 and 11CASES
Braganza v Minister for Immigration [2003] FCAFC 170
DPP v Walters (2015) 49 VR 356
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elliot v Minister for Immigration and Multicultural Affairs [2007] 156 FCR 559
Green v Daniels [1977] 13 ALR 1
Hneidi v Minister for Immigration and Citizenship [2010] 182 FCR 115
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 50 FCR 189
Negri v Secretary, Department of Social Services [2016] FCA 879
Nevistic v Minister for Immigration and Ethnic Affairs [1981] 119 FCR 454
Re Death and Secretary, Department of Social Services (Social services second review) [2017] AATA 1107
Re O’Bryan and Secretary, Department of Social Services [2014] AATA 590
Re Secretary, Department of Social Services and Davidson [2015] AATA 533
Re Secretary, Department of Social Services and Seyfang [2016] AATA 243
Re Spry and Secretary, Department of Social Services and Anor [2014] AATA 722Re Summers and Secretary, Department of Social Security [2014] AATA 165
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member K Parker
15 October 2018
Mr Maurice Plant, aged 65, is unemployed and lives on his own in a house in Mount Martha. Mr Plant previously worked for the BBC for a period of 24 years as a floor manager. He completed Year 12 at secondary school and holds a Diploma in Architectural Drafting at RMIT.
On 12 May 2016, Mr Plant made a claim to receive the disability support pension (DSP).[1] This application is about whether Mr Plant was entitled under the Social Security Act 1991 (Act) to receive the DSP on the date he made his claim or within the 13-week period to follow. The relevant qualification period in this application is 12 May 2016 to 11 August 2016 (Qualification Period).
[1] Refer s 16 of the Social Security (Administration) Act 1999 (Cth).
On the medical report submitted with Mr Plant’s DSP claim form, Dr Tim Dillon, Mr Plant’s treating general practitioner since 2013, listed the following three medical conditions as having a significant impact on Mr Plant’s ability to function:
(a)Charcot foot in the right foot (a condition causing weakening of the bones in the foot that can occur in people who have significant nerve damage (neuropathy);
(b)diabetes (insulin dependent); and
(c)haemochromatosis.
In a letter by Dr Dillon dated 5 January 2016, he states that Mr Plant’s condition of Charcot foot is a severe complication that has developed from his diabetes. In a letter/certificate by Dr Dillon dated 4 April 2016, Dr Dillon referred to a new diagnosis of Charcot foot in the left foot in March 2016.[2]
[2] The Secretary, Department of Social Services lodged a set of documents with the Tribunal on 7 August 2017 in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents). Refer T-Documents T17/61.
Centrelink arranged for Mr Plant to undergo a Job Capacity Assessment (JCA) on 18 July 2016.[3] The JCA was undertaken by an occupational therapist. The assessor formed the view that:
(a)Mr Plant’s condition of Charcot’s foot in the right foot was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 3 of the impairment tables (Impairment Tables) determined, under s 26(1) of the Act, by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination);
(b)his conditions of Diabetes – Insulin Dependent and Hemochromatosis were both fully diagnosed, treated and stabilised and attracted an impairment rating of 0 points under Table 1, as it was considered that neither of them caused any functional impacts on functions requiring physical exertion and stamina; and
(c)his condition of Diabetic Retinopathy causing low vision in both eyes was recorded, but the assessor considered that there was insufficient evidence to determine whether it as fully diagnosed, treated or stabilised.
[3] Two earlier JCA’s were also undertaken as referred to in paragraphs [38] to [47] of these Reasons for Decision.
Accordingly, on 19 July 2016 Centrelink rejected Mr Plant’s DSP claim on the basis that he was assessed as not having an impairment rating of 20 points or more.[4]
[4] Refer T-Documents T29/97.
On 26 September 2016 Mr Plant sought review by an Authorised Review Officer (ARO) of the decision made to reject his claim.[5]
[5] Refer T-Documents T31/100.
On 3 February 2017 the ARO affirmed Centrelink’s decision to reject Mr Plant’s claim for DSP on the bases that his total impairment rating was 10 points and that he did not have a continuing inability to work because of his impairments.[6] In assessing the points that applied under Table 3, the ARO asserted that the term “assistance” meant assistance by another person, rather than by aids or equipment the person has and usually uses.[7]
[6] Refer T-Documents T33/104-108.
[7] Refer T-Documents T33/107.
On 24 February 2017, Mr Plant sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 allocated 10 points under Table 3 to Mr Plant’s conditions of right and left Charcot foot; nil points under Table 1 for his diabetes mellitus and hemochromatosis; nil points under Table 12 for his retinopathy; and found that there was no basis to assess whether his condition of subdural haematoma was fully diagnosed, treating or stabilised, so no rating was assigned for this condition. The AAT1 concluded that Mr Plant did not meet the eligibility requirements for the DSP because his impairment rating was not 20 points or more.
The Tribunal affirms the AAT1’s decision to reject Mr Plant’s DSP claim for the reasons set out below.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(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;
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
‘Impairment Tables’ is defined in s 23 of the Act as the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of functional impact of each impairment.
The following subsections of section 6 of the Determination are relevant to the assessment of impairment ratings:
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
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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.
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is 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.
Section 6(1) of the Determination provides: “the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person”. Section 6(2) also provides that the person’s medical history must be considered before applying the Impairment Tables to a person’s impairment. 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.
Further, section 11(3) of the Determination provides that a descriptor applies when the person can do the activity normally and on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Section 11(4) of the Determination provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined in this application are, as at the time of the Qualification Period:
(a)whether Mr Plant had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised and were more likely than not to persist for more than two years);
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under any one or more of the Impairment Tables;
(d)if so, whether Mr Plant had a continuing inability to work; and
(e)unless the Tribunal finds that Mr Plant had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), it will also be necessary for the Tribunal to assess whether he had satisfied the program of support requirements.
MEDICAL EVIDENCE
On 31 December 2014 Mr Plant was diagnosed with Charcot foot in the right foot following an X-ray and examination. The X-ray report states:[8]
There is extensive destruction, deformity and peri-articular lucency within the mild foot consistent with Charcot’s joint. Marked collapse of the navicular bone is present. Moderate vascular calcification noted.
[8] Refer T-Documents T8/31.
Ms Alison Schenk, orthotist/prosthetist, at The Alfred Hospital commenced treating Mr Plant for his foot condition.
On 2 January 2015 a plaster and fibreglass cast was applied to Mr Plant’s right foot and subsequently re-applied on a regular basis. The Tribunal notes the undated letter by Mr Nick Puli, podiatrist, stating that the treatment involved weekly application of the cast.[9] Mr Puli advised that treatment would continue on average for about six months, following which Mr Plant was to wear a custom-made boot for a period of 12 months.
[9] Refer T-Documents T7/30.
In a letter dated 18 February 2015, Dr Yvonne Chow, Registrar of the Department of Endocrinology & Diabetes at The Alfred, states that Mr Plant had been diagnosed with haemochromatosis and diabetes about seven years previously (i.e. in about 2008).[10] Dr Chow states that Mr Plant had been an inpatient in December 2014 in relation to his acute right foot Charcot joint and he continued to be reviewed by the Podiatry Service at The Alfred. Dr Chow states that Mr Plant was “doing better” and was mobilising in “a total contact cast”. Dr Chow commenced Mr Plant on Metformin XR 500mg daily, seemingly to improve his glycaemic control which she states was poor over the previous few years.
[10] Refer T-Documents T9/32.
In a letter dated 17 March 2015, Dr William Kemp, consultant gastroenterologist, from the Gastroenterology Department at The Alfred Hospital, states:[11]
Maurice has haemochromatosis although I do not have access to previous gene testing. He certainly has hyperferritinaemia with a ferritn above 700 and has now had a venesection now for 2 [and a half]-3 years. His other significant past history includes insulin requiring diabetes mellitus with complications of charcot joint. He denies any cardiac or kidney disease. He also had a complicated appendicectomoy a couple of years ago.
Today on examination he had an obese abdomen but no stigmata of chronic liver disease. I suggested that we do a venesection today and perhaps do a couple more over the coming twelve months.
I will see Maurice back here in the Clinic in six months and he has already coordinated with the Blood Bank in Frankston for a venesection which he will have done in a couple of months down there.
[11] Refer T-Documents T10/33.
In a letter dated 4 May 2015, Mr Jeffrey Loffel, optometrist, states that Mr Plant had moderate to severe non-proliferation diabetic retinopathy in the right eye with three cotton wool spots and moderate non-proliferation diabetic retinopathy in the left eye with five cotton wool spots in the mid-peripheral retina.[12] In this report, Mr Loffel states:
As Mr Plant was considering going away for a while next week (for his business), I suggested presenting to the Eye and Ear Hospital (A&E Department) to have a retinal ophthalmologist assessment urgently.
[12] Refer T-Documents T14/42.
On 5 May 2015 Mr Plant was fitted into an orthotic-moulded pneumatic walking boot.
On 23 September 2015, Mr Plant was issued with a specifically engineered “crow” boot, an expensive custom-moulded walking boot.
On 23 November 2015, Ms Schenk confirmed that Mr Plant suffered from a condition called Charcot foot which she described as debilitating and destructive, where the bones and joints become soft and remodel over time leaving devastating and permanent deformity. Ms Schenk states that Mr Plant was wearing a fully-enclosed Charcot Restraint Orthotic Walker which is designed to fully immobilise his foot and ankle to allow his bones to strengthen. However, Mr Schenk states the position that Mr Plant’s foot was “remodelling into”, was “not typical of a normal foot”, as he had a rigid permanent deformity of the mid-foot and fore-foot joints.
Ms Schenk states that Mr Plant would continue to be subject to orthotic management and mobility restrictions for the rest of his life. Ms Schenk states that prolonged periods of mobilising will be limited, due to the chance of the Charcot reactivating and triggering another “Charcot episode”.
On 7 December 2015, Dr Jonathan Cohen, endocrinologist, from the Diabetes Centre at Peninsula Endocrine Associates in Frankston, saw Mr Plant to review his management of diabetes which he states was complicated by a “right Charcot foot” and “retinopathy”.[13] Dr Cohen reports that Mr Plant had longstanding relatively complicated diabetes with the Charcot foot being the biggest problem. He states that Mr Plant was on “Novomix 30, 40 units bd” and was commenced on “Metformin” earlier in 2015, as an insulin sensitiser. He states that Mr Plant had “proliferative retinopathy” for which he had received laser treatment and it was “relatively stable” with “no microalbuminuria or renal impairment”.
[13] Refer T-Documents T22/77&78.
Dr Cohen, in this letter, states that Mr Plant had lost the arch in his foot and had slight overlapping of his first and second toe on the right foot. Dr Cohen observed that Mr Plant’s foot problem had been well managed and was thankful there had been no foot ulcers. Dr Cohen recommended that Mr Plant increase his intake of Metformin to 1mg (insulin sensitiser), to control his “high fasting sugars”. He observed there were plenty of other options Mr Plant could use, including Dapagliflozin, which he states would eventually be reintroduced. Dr Cohen also recommended that Mr Plant commence taking Simvastatin 20mg.
On 28 December 2015, Mr Ashley Mahoney, a podiatrist, states in an open letter that he assessed Mr Plant in Doha in May 2015 and in the Gold Coast in December 2015, and made the following observations:[14]
(a)Mr Plant’s extrinsic and intrinsic muscular strength of his foot/ankle had deteriorated significantly and would continue to decline until “only trace elements of muscle contraction were detectable”; and
(b)his occupation involved continuous standing for prolonged periods and his continual decline in strength would limit him from performing his occupation at the same level in the future.
[14] Refer T-Documents T23/79.
On 5 January 2016, in an open letter, Dr Dillion states that Mr Plant’s most significant medical condition related to a complication of his diabetes mellitus, being the Charcot foot, which he had developed in his right leg.[15] Dr Dillon states that this condition had prevented Mr Plant from driving a motor vehicle “for the immediate and also the long term”, as he required a supportive cast which would prevent movement of his ankle and foot. He states Mr Plant was at severe risk of further complications of the right leg and foot. This letter records Mr Plant’s current problems as including:
2014 Charcot; foot – Right;
2014 Haemochromatosis;
2014 Diabetes Mellitus;
2013 Head injury (large scalp haematoma and small SDH. Non surgical);
2013 Traumatic Subdural Haematoma (Alfred Hospital)
[15] Refer T-Documents T24/80&81.
On 24 March 2016, an X-ray was taken of Mr Plant’s feet leading to the following findings by Dr Anthony Kam:[16]
Comparison with images dated 5 January 2016 show mild progression of charcot arthropathy at the right mid foot. Flattening of the plantar longitudinal arch, fragmentation of the navicular, sclerosis of the tarsus and thick periosteal reaction proximal metatarsais are again demonstrated. Vascular calcification and circumferential soft tissue around the tarsus are unchanged.
Images of the left foot also show early changes of Charcot’s arthropathy. There is fragmentation of the navicular and sclerosis of the medial cuneiform. The left plantar longitudinal arch appears preserved at this stage.
[16] Refer T-Documents T25/82.
Mr Plant’s left foot was secured in a plaster and fibreglass cast following this diagnosis.
In a letter dated 11 April 2016, Dr Cohen states that the treatment for Mr Plant’s condition in his right foot and more recently, in his left foot, will prevent deterioration but was unlikely to “see a return to normal architecture of the foot and hence normal mobility or any ability to stand for prolonged period”.[17] He said Mr Plant’s current orthotics were cumbersome but over time, “perhaps in a couple of years” that will change to fixed footwear.
[17] Refer T-Documents T18/62.
In a letter dated 20 April 2016, Mr Gavin Burchall, orthotist, Manager of the Orthotic Department at The Alfred Hospital, states that Mr Plant had been treated at The Alfred since January 2015 in relation to his “chronic diabetic foot disease”.[18] He states that Mr Plant had diabetes mellitus Type II complicated with bilateral lower limb peripheral neuropathy and had consequently developed bilateral Charcot neuroarthropathy. Mr Burchall states that Mr Plant’s right foot was considered a Chronic Charcot Foot Stage 3 (Coalescence Stage) with permanent foot deformities, effecting foot structure and function. He states that the right foot is at high risk of ulceration.
[18] Refer T-Documents T26/83.
Mr Burchall states that Mr Plant’s left foot had been diagnosed with Acute Charcot Neuroarthropathy Stage 1 (Fragmentation Stage) in February 2016.
Mr Burchall makes the following observations:
…
Mr Plant will require ongoing monitoring and maintenance of his feet for the rest of his life by a Podiatrist and an Orthotist.
The changes to the right foot, including gross flattening of the medial longitudinal arch, will require ongoing orthotic management. A custom foot orthotic and footwear modifications, such as extra depth footwear and the addition of a rigid sole plate and a “rocker” sole, will be required to improve function the protect the foot from ulceration.
Functionally Mr Plant will be limited to only walking short distances and no prolonged standing to also protect against ulceration.
In a letter dated 27 March 2017, Dr Cohen confirms a diagnosis of type II diabetes; right Charcot neuroarthropathy foot in 2014 and on the left in 2016.[19] He states that those conditions have rendered Mr Plant unable to normally weight bear or walk, without special footwear which is likely to remain a permanent fixture into the future, to prevent complication such as joint destruction and foot ulcers. In relation to the resulting impairment, Dr Cohen states as follows:
With respect to his lower limbs, it means he requires assistance to mobilise. He requires a stick or crutch at most times to reduce pressure in the most affected foot. This has a severe impact on his activities, at times potentially requiring assistance to complete his ADLs and certainly he can’t walk far without transport, and mobilising up and down stairs is a near impossibility. This includes walking around a shopping centre without assistance and the assistance is with both “boots” or appliances on his feet.
He is unable to walk without assistance into a shopping centre or carpark without assistance – the assistance again are the bilateral appliances on his feet, as is the case from sitting to standing and accessing public transport.
[19] Refer T-Documents T35/113.
JCA
The Tribunal has considered the three JCA assessment reports issued in respect of Mr Plant.
First JCA report
The first JCA report is dated 9 April 2015.[20] It was carried out by a registered occupational therapist (as the assessor) and registered nurse (as the contributing assessor). The report states that the JCA assessor contacted Mr Peter Luke, podiatrist, (as Mr Nick Puli was unavailable) at The Alfred podiatry service. The reports states that Mr Luke had advised that with adequate treatment and monitoring, it was reasonable to expect that the Mr Plant would be able to mobilise and function independently with a specialised shoe in the future.
[20] Refer T-Documents T12/35-40.
Mr Plant’s “temporary work capacity” was assessed as 0-7 hours per week with an “end date” of 9 June 2016, based on the following rationale:
Work capacity is temporarily reduced due to foot pain and immobility associated with right foot plaster cast. The customer is currently 4 months into a podiatry treatment plan that is likely to continue for over 12 months. During this period, he will have difficultly engaging in program of support due to reduced mobility, inability to drive and regular treatment and review appointment.
Mr Plant’s baseline work capacity was assessed as 15-22 hours per week doing “light semi-skilled work”, based on the following rationale:
Work capacity is reduced due to foot pain and joint degeneration that is likely to impact on mobility and endurance. It is expected that this condition will impact upon the customer’s ability to maintain required productivitiy/work pace without tiring, move around safely, manage pain, carry/lift/move everyday objects and sustain suitable employment.
The second JCA report
The second JCA report is dated 1 October 2015.[21] It was carried out by a registered occupational therapist. The report states that Mr Plant reported the following at this assessment:
Customer reports that his foot was immobilised in plaster from January 2015 to May 2015. He was observed to be in a Pneumatic boot at the time of the assessment and is ambulating independently with a limp. He reports that he is having regular reviews at the Alfred Hospital and that they are considering provision of a “Crow boot”, which may lead to speed to healing process. He reports difficulty with negotiating uneven ground. He reports a walking tolerance of 10-15 minutes, and reports a similar standing tolerance. He reports that he finds stairs difficult, and must lead with his left foot. He reports he currently does not have a licence as a result of the foot condition, and that he is managing public transport. He reports that he is going to the supermarket and requires a friend to drive as he has limited carrying ability.
[21] Refer T-Documents T16/54-60.
In relation to Mr Plant’s eye condition, the JCA assessor states that Mr Plant had reported as follows:
Customer reports that he had laser treatment last week and is required to wait a 6 week period of time for review to see if it has improved his vision. He reports that this will determine if he requires additional treatment. Customer reports that he requires glasses to read find print however had these prior to the condition, indicating that his reduced vision is aged(sic) related.
In relation to Mr Plant’s diabetes condition, the JCA assessor states that Mr Plant had reported as follows:
Customer reports that he is managing his Diabetes with insulin twice a day and diet. He reports that his sugar levels are stable, and there is no functional impact from the condition.
In the report, the JCA assessor states that Mr Plant confirmed that the haemochromatosis condition was “chronic, well managed and has no/minimal impact on function”.
Mr Plant’s “temporary work capacity” was assessed as 0-7 hours per week with an “end date” of 9 June 2016 based on the following rationale:
Temporary exemption of work capacity due to the associated immobility associated with right foot condition. The customer is likely to continue for the next 9 months and customer will have reduced mobility during this time and medical reviews.
Mr Plant’s baseline work capacity was assessed as 15-22 hours per week doing “light semi-skilled work” (for example, light security), based on the following rationale:
Work capacity is reduced due to the moderate impact of the customer’s permanent conditions. Lower Limb condition results in significantly reduced mobility, reduced capacity to negotiate steps/inclines and sustain weight bearing from prolonged periods with pain component affected endurance, concentration and efficiency restriction capacity for work requiring sustained standing or use of steps. Restrictions may affect capacity for work requiring sustained standing or use of steps. Restrictions may affect capacity to crouch and kneel affecting capacity for lower level work. Instability may place at risk of falls. Diabetes, Haemochromatosis and vision have limited impact on work capacity.
The third JCA report
The third JCA report is dated 18 July 2016.[22] It was carried out by an occupational therapist. The report states that Mr Plant reported the following at this assessment:
Customer reports… He was observed to be in an orthotic boot on his left foot and CROW boot on his right foot at the time of the assessment and is ambulating independently with an antalgic gait. He reports that he is having regular reviews at the Alfred Hospital, every 7-10 days. He reports difficulty negotiating uneven terrain, negotiating steps and inclines. He can drive around the local area, and he is managing public transport. He reports that he is independent with personal care, simple meal preparation, accessing the community, grocery shopping and light house work. He is able to transfer from bed, chair, toilet and shower independently. Task execution for all essential living tasks – takes longer, requires pre-planning, results in pain and fatigue, frustration and he is developing consequent problems in other joints such as his left knee. He attributes this to altered gait.
[22] Refer T-Documents T28/87-96.
The JCA assessor states that the medical condition was reported as unlikely to improve to the point of wearing orthotic shoes within the next two years, particularly given it had also developed in his left foot. On pages 6 and 7 of the third JCA report there is a detailed account of the impact of this condition on Mr Plant’s lower limb function referrable to the descriptors in Table 3 of the Impairment Tables.[23] The Tribunal will set out this evidence in greater detail under the heading of Consideration (see paragraphs [93] and [94] of these Reasons for Decision).
[23] Refer T-Documents T8/92&93.
In relation to Mr Plant’s eye condition, the JCA assessor states:
Customer reports that he had laser treatment. Since his treatment he only requires glasses for reading. However had these prior to the condition.
In relation to Mr Plant’s diabetes condition, the JCA assessor states that Mr Plant had reported as follows:
Customer reports that he is managing his Diabetes with insulin twice a day and diet. He reports that his sugar levels are stable, and there is no functional impact from the condition.
Regarding the condition of haemochromatosis, in the report, the JCA assessor states that Mr Plant confirmed that he had venesection (removal of blood to reduce iron levels), once a month and that he did not experience any functional impact from this condition.
Mr Plant’s “temporary work capacity” was assessed as 0-7 hours per week with an “end date” of 1 May 2017, based on the following rationale:
A temporary incapacity to work is recommended until 1.5.17, so that the customer can access regular medical treatment at The Alfred Hospital.
Mr Plant’s baseline work capacity was assessed as 15-22 hours per week with intervention, doing “light semi-skilled work” (for example, “clerical”). The interventions identified in the report included secondary rehabilitation, disability management education/counselling, and further diagnostic/medical intervention. Specifically, the JCA assessor suggested workplace modifications and job matching.[24] Under the heading “Referral Recommendation” in the report, the JCA assessor states as follows:
In consideration of Mr Plant’s identified circumstances, a referral to Disability Employment Services – Employment Support Service would be appropriate. This would provide access to flexible support which can compensation for and manage injuries or disabilities by building work capacity and develop new work strategies.
Customer did not consent to referral, and a deferred referral has been indicated with action required by Centrelink to initiate the referral after 1/5/17.
[24] Refer T-Documents T28/94.
OTHER EVIDENCE
Centrelink’s records indicate that Mr Plant travelled overseas on three occasions in 2015; four occasions in 2016; and five occasions in 2017.[25] At the hearing, Mr Plant was asked where he travelled, to which he responded that he went to Europe to attend a friend’s wedding and that he also went to “Rio” to see if he could get any work with the television networks. Mr Plant said he was unable to travel on a plane when his foot was in plaster.
[25] Refer T-Documents T38/118.
Mr Plant gave evidence at the hearing that in his previous role at the BBC, he organised interviews at sporting events. Mr Plant said he was unable to continue working for the BBC. He said he “did not think they wanted a person who could not walk or stand properly”.
Mr Plant also said he previously did some security work, on and off, but he was unable to stand for too long. The Tribunal notes the Employment Separation Certificate dated 13 December 2015, evidencing that Mr Plant was employed by Monjon Australia Pty Ltd, a corporate security company, for three years (from September 2011 to January 2015). The reason for separation given on the certificate was: “unable to complete duties”.
Mr Plant was asked by the Tribunal whether the still had his security licence and a “red card”. He said his security licence had lapsed the previous year as “it was expensive to renew it”. He said he did not think he had a “red card” any longer.
When Mr Plant was asked whether he thought he could do an office job, he responded, “That’s a very nebulous question: where is the job located?” Mr Plant was invited to answer the question on the basis that a clerical role was available close to where he lived; he said he would not know if he had the capacity. Mr Plant was asked whether he had any private business interests, to which he answered, “No”. Mr Plant was asked how long it took him to complete the architectural drafting course and he said, “one and a half years”.
Mr Plant was asked what level of participation had occurred with respect to his attendance at a program of support to which he answered, “went there in 2015, 2016 and have been just recently”.
In his closing submissions at the hearing, Mr Plant said that he was generally dissatisfied with the whole process. He said he had “never shirked work” in his life. He said he did not like “living in pain” or “seeing people”. He said he had “two crook feet” which had affected his life in every aspect and that he had been “ostracised” from friends and family.
CONSIDERATION
Permanent conditions - Charcot foot, left and right
The Secretary accepts that at least in relation to the right foot, Mr Plant suffers the condition of “Charcot foot” and that this condition is diagnosed, treated and stabilised.[26] On account of this concession and as supported by the medical evidence, the Tribunal finds that Mr Plant’s Charcot foot condition in the right foot is fully diagnosed, treated and stabilised and is likely to persist for longer than two years.
[26] Refer [28] of the Secretary’s SFIC.
The Tribunal is also satisfied that Mr Plant’s Charcot foot condition in the left foot is fully diagnosed, treated and stabilised and is likely to persist for longer than two years. Although the condition in the left foot developed more recently, it was diagnosed over two years ago (i.e. in March 2016) and the evidence before the Tribunal was that Mr Plant had received treatment for this condition in the left foot, including the fitting of corrective footwear/appliance.
The Tribunal concludes that Mr Plant’s condition of Charcot foot, right and left, were permanent conditions.
Impairment to lower limb function – Table 3
Both of these permanent conditions have resulted in physical impairment to Mr Plant’s lower limb function. The next task of the Tribunal is to assess the degree of this impairment under Table 3 of the Impairment Tables.
The Introduction to Table 3 specifies that this table is to be used where the person has a permanent condition resulting in functional impairment performing activities requiring the use of legs or feet. The Introduction also requires that there must be corroborating evidence of the person’s impairment and that self-reporting of symptoms alone is insufficient. Corroborating evidence includes (without limitation) treating doctors’ reports; medical specialists’ reports; allied health practitioners’ reports; results from diagnostic tests or results of physical tests or assessments.
The Secretary accepts that the degree of impairment on activities using the lower limbs was moderate and attracted a rating of 10 points under Table 3.[27] Mr Plant’s representative, on the other hand, contends that the degree of impairment for these conditions attracts a 30-point rating. A 30-point rating under Table 3 requires the Tribunal to be satisfied that there is an extreme functional impact on activities using the lower limbs. Table 3 also provides for a level between moderate and extreme, being severe, for which a 20-point rating applies. The Tribunal will now consider which level of impairment in Table 3 applied to Mr Plant as at the time of the Qualification Period.
[27] Ibid at [42].
The descriptors for a 10-point rating are set out below:
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
a. the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b. the person is unable to use stairs or steps without assistance; or
c. the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
a. move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
b. move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
The descriptors for a 20-point rating are set out below:
There is a severe functional impact on activities using lower limbs.
(1) The person:
a. is unable to do any of the following:
i.walk around a shopping centre or supermarket without assistance;
ii.walk from the carpark into a shopping centre or supermarket without assistance;
iii.stand up from a sitting position without assistance; and
b. requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
a. move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
b. move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not walk independently around a workplace or training facility, even when using a walking aid.
The descriptors for a 30-point rating are set out below:
There is an extreme functional impact on activities using lower limbs.
(1) The person is unable to mobilise independently.
Dealing first with the 30-point rating, there was no evidence before the Tribunal that Mr Plant was unable to mobilise independently. As at the Qualification Period, and at least up to the time of the hearing before this Tribunal, Mr Plant has lived independently. Mr Plant gave evidence that he is able to stand and walk, provided he is wearing his corrective footwear/appliances. He was able to drive, as required, provided also that he was wearing his corrective footwear/appliances. For these reasons, there is no basis upon which the Tribunal could be satisfied that the above descriptor applied to Mr Plant at the relevant time; and consequently, that a 30-point rating applied to him. The sole descriptor for this rating is whether he was unable to mobilise independently. There is no qualification to this descriptor referrable to whether Mr Plant requires assistance (in whatever form) to do so.
The Tribunal will consider next whether the descriptors for a 20-point rating applied to Mr Plant at the time of the Qualification Period.
One of the descriptors for this point rating (i.e. paragraph (1)(a)) is whether the person is unable to, without assistance, walk around a shopping centre or supermarket; walk from the carpark into a shopping centre or supermarket or stand up from a sitting position.
Interpretation of the word “assistance” in Table 3 of the Impairment Tables
The Secretary contends that the reference to “assistance” as appearing in Table 3 should be interpreted by the Tribunal as a reference to assistance by another person.
In support of this contention, the Secretary’s representative referred the Tribunal to the decision in Re Summers and Secretary, Department of Social Security [2014] AATA 165 (Summers). In this decision, the Tribunal accepted that the reference to “assistance” as referred to in Table 3 of the Impairment Tables meant a reference to assistance by a person and not from an object or physical aid. It accepted the contention by the Secretary in that case that it would be superfluous to mention “aids, equipment or assistive technology” in the descriptors, because the rule in s 9 of the Impairment Tables Determination required them to be taken into account. Section 9 provides that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
The above interpretation was also considered and adopted in Re Secretary, Department of Social Services and Davidson [2015] AATA 533 (Davidson). The applicant in Davidson needed to hold onto a rail when ascending or descending stairs.[28]
[28] Other cases before the Tribunal adopting this interpretation of “assistance” to mean a reference to personal assistance include: Re O’Bryan and Secretary, Department of Social Services [2014] AATA 590; Re Spry and Secretary, Department of Social Services and Anor [2014] AATA 722; and Re Secretary, Department of Social Services and Seyfang [2016] AATA 243.
The Secretary also helpfully referred the Tribunal to Death and Secretary, Department of Social Services (Social services second review) [2017] AATA 1107. In that matter, the Member was required to interpret a reference to “without assistance” which qualified one of the descriptors in Table 1 of the Impairment Tables. The Tribunal notes the observations of Member Grigg as follows:
[69] The Macquarie Dictionary Online defines “assistance” as “the act of assisting; help; aid” and “aid” is defined as “someone or something that aids or yields assistance”. I see no reason or basis to import the additional words “from a person” after “without assistance” to Table 1.
In Mr Plant’s Statement of Facts, Issues and Contentions (Mr Plant’s SFIC) lodged with the Tribunal on 12 January 2018; Mr Plant’s representative contends that the above definition is “too narrow and restrictive” and that “the more sensible view of “assistance” should include devices without human intervention”. Mr Plant’s representative contends:
The intervention of human assistance is to add another layer of cost that is unnecessary and impractical, given the financial situation of the applicant. The definition should rightfully include aids as assistance and the Tribunal should consider the definition in its proper broader context that relates to the applicant’s circumstances.
The Tribunal notes that the word “assistance” was addressed in government policy as expressed in the Guide to Social Security Law (Guide) at 3.6.3.30 and 3.6.3.05 as follows:
[3.6.3.30]The 10- and 20- point ratings in Table 3 use the term “assistance”. Assistance means assistance from another person, rather than any aids or equipment the person has and usually use (see 3.6.3.05 (E) Use of aids, equipment & assistive technology).
[3.6.3.05] Use of the term “assistance” within the Tables
The term assistance is used in numerous descriptors within various Impairment Tables. In all of these cases assistance means from another person, rather than from any aids, equipment or assistive technology the person had and usually uses.
Given that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology they have and usually use, any further assistance would be from another person.
The Tribunal has considered the role executive policy should play in interpreting the word “assistance” in Table 3.
The Full Court of the Federal Court in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake) considered the function of policy in the decision-making process of this Tribunal. In the majority judgment (Bowen CJ and Dean J), it was held that (emphasis added):
[69] Ordinarily …an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy.
[70] …In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant fact for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
Upon remission to the Administrative Appeals Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake No 2), Justice Brennan made the following further observations (emphasis added):
[on page 644] Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister’s policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.
…
[on page 645] When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
…
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
The Tribunal notes that in the recent decision in G v Minister for Immigration and Border Protection [2018] FCA 1229 (G v MIBP), Justice Mortimer considered extensively the leading authorities relating to the use of executive policy in the decision making process including the decisions of Drake and Drake (No 2).[29]
[29] The Tribunal acknowledges that the policy under consideration in G v MIBP (unlike the policy relevant in this application), was made under a specific provision of the relevant statute. The Tribunal considers that this does not detract from the principles as articulated by Justice Mortimer.
The Tribunal notes and agrees with Justice Mortimer’s condensation of the relevant principles arising from these authorities in G v MIBP, as follows (emphasis added):
[201] It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:
·A decision must not be “so truncated by a policy as to preclude consideration of the merits of specified classes of cases” (Drake No 2 at 640);
·A decision-maker must not “abdicate” her or his exercise of power to the terms of the policy (Nevistic:[30] Frank J at 642, Deane J at 646; Lockhart J at 651-652; Gray[31] at 205-206; Hneidi[32] at [42]);
·The policy should not “superimpose” a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute (Green[33] at 9);
·The policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context (Green at 10); and
·A policy statement should not be applied so as to prejudice a Tribunal’s independent assessment of the merits of the case (Gray at 211).
[202] There may be circumstances where the value of equality of treatment that policy can support, and the legitimate role for the executive in forming policy to guide statutory power that is based on political considerations, prevail over the interests of the individual, or individual justice. So much can be accepted as an appropriate consequence of the relationship between different branches of government.
[203] Nevertheless, the core authorities to which I have referred make it clear that if, and when, the AAT makes a decision on the merits review which has this outcome, it is a conscious choice, being fully aware that it has a choice, and having carefully and thoroughly considered whether an outcome of that kind is the correct, or the preferable, decision in the circumstances of that individual.
[204] Finally, I consider it is clear from Drake (No 2) and from Gray, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task. It will be an error of law if it fails to do so, or if it misunderstands or misconstrues the content of the policy in a way that is material to the exercise of power in its review: Gray at 2018; Drake (No 2) at 645-646, Elliot v Minister for Immigration and Multicultural Affairs [2007] FCAFC; 156 FCR 559 at [23]-[23], [41]-[42], Braganza v Minister for Immigration [2003] FCAFC 170 at [31]. To say this much is not to contradict the statements I have set out in [201] above, which are all directed to the appropriate limits on the role of executive policy, once taken into account.
[30] Nevistic v Minister for Immigration and Ethnic Affairs [1981] 119 FCR 454.
[31] Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 50 FCR 189.
[32] Hneidi v Minister for Immigration and Citizenship [2010] 182 FCR 115.
[33] Green v Daniels [1977] 13 ALR 1.
The issue presently before this Tribunal about the meaning that should be given to the term “assistance” as it appears in Table 3, requires the Tribunal to engage in an exercise of statutory interpretation. This is different from the task of exercising discretion. Consistent with the authorities referred to above, in particular Drake and Drake (No 2), executive policy will be a relevant factor for consideration in the exercise of discretion. However, the Tribunal considers that it should not follow an executive policy, if to do so would steer the Tribunal away from applying established principles of statutory interpretation, if the exercise before it is one of statutory construction.
The Tribunal notes the principles established in the Supreme Court of Victoria Court of Appeal in DPP v Walters (2015) 49 VR 356 as follows:
[2] Interpreting statutory provisions requires consideration of the legislative context and – where relevant – the legislative history. But, as the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used. For it is through the statutory text that the legislature expresses, and communicates, its intention.
To that end, The New Shorter Oxford English Dictionary, 1993 Edition, defines “assistance” as:
1 the action of helping; help, aid, support;
2 a helper; a body of helpers;
3. persons present; bystanders;
4 presence, attendance.
“Assistance” is defined in The Macquarie Dictionary Online as, “noun the act of assisting; help, aid”. The term “assist” is defined as:
1. to give support, help, or aid to in some undertaking or effort, or in time of distress.
2. to be associated with as an assistant.
3. Medicine to act as a surgical assistant to (a surgeon).
–verb (i) 4. to give aid or help.
5. to act as an assistant.
6. Obsolete to be present, as at a meeting, ceremony, etc.
–noun Sport a play which helps a teammate to score.
According to those definitions, the Tribunal agrees with Member Grigg in Death that the term “assistance” does not seem to necessarily import a requirement that the assistance or help be provided by another person, even though this is certainly encompassed within its broad scope. In a vacuum, the term “assistance” should not be confined to mean only assistance provided by another person unless that specific qualification is added after the term “assistance”. But the descriptors within Table 3 do not operate in a vacuum.
The Tribunal considers that it was open to the Secretary to interpret the references in Table 3 to the word “assistance”, taken in conjunction with s 9 of the Determination, to mean assistance other than assistance in the form of aids, equipment or assistive technology that the person has and usually uses. The Tribunal considers that this rule informs the interpretation that the Tribunal should give to word “assistance” in Table 3, i.e. to determine where the edges of the potentially broad scope of that term lie, importantly, in the context of the legislation within which that word appears.
The Tribunal also notes the observations of Justice Bromberg in Negri v Secretary, Department of Social Services [2016] FCA 879:
[43] The examples [in the descriptors] are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
[44] The proper course is to consider the "particular examples" (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact - no, mild, moderate, severe, or extreme - applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.
In the specific circumstances of this case, the Tribunal considers that this interpretation renders the descriptor referred to in paragraph [73] consistent with it being a measure of a person with moderate lower limb impairment, namely, that a person required another person and not just the use of corrective footwear/appliances to enable them to do any one of the three activities referred to in paragraph (1)(a). The Tribunal considers that someone who is able to do those things independently, provided they are using the corrective footwear or appliances, is more appropriately characterised as having a mild functional impact on activities using the lower limbs, in contrast to either a moderate or no functional impact.
Returning to Mr Plant, on his own evidence as corroborated in the third JCA report (which took place on 13 July 2016, two months after the end of the Qualification Period), he was limited to standing for five minutes and walking for ten minutes. He said he could drive to the local supermarkets, had a “disabled sticker” and could walk into the supermarket.[34] He reported that task execution took longer, resulted in fatigue, pain and frustration and that he needed to pre-plan his movements. He said he felt vulnerable, was worried about falling and had fallen twice in the previous 12 months (i.e. in the period July 2015 to July 2016).[35] He said he could walk around a supermarket and stand for long enough to queue and manually handle a small number of groceries.
[34] Refer T-Documents T28/92.
[35] Ibid.
The assessor who conducted the third JCA made the following observations as noted in the third JCA report:[36]
Assessor Observations: Customer was observed to walk slowly with an antalgic gait, he had an orthotic CROW boot on his right foot and an immobiliser on his left foot. He was able to transfer independently on an off a regular chair. Customer reported that he is independent with personal care and all transfers, light meal preparation, light grocery shopping, light housework, can drive around the local area.
[36] Refer T-Documents T28/93.
Based on the evidence set out in paragraphs [93] and [94], the Tribunal is satisfied that as at the time of the Qualification Period, Mr Plant was able walk around a shopping centre or supermarket; walk from the carpark into a shopping centre or supermarket and stand up from a sitting position without assistance, provided he was wearing his corrective footwear/appliances (which the Tribunal considers to be “an aid or equipment” that Mr Plant “has and usually uses” within the meaning of s 9 of the Determination). Accordingly, the Tribunal finds that the descriptor for a 20-point rating as set out in paragraph (1)(a) did not apply to Mr Plant as at the time of the Qualification Period.
The Tribunal accepts the evidence as set out in the third JCA report that Mr Plant had reported that he was “managing public transport”. This was later confirmed in the medical report by Dr Cohen as referred to in paragraph [37] who states that Mr Plant was able to access public transport with the use of his “bilateral appliances”. Based on this evidence, the Tribunal finds that the descriptor for a 20-point rating in paragraph (1)(b) did not apply to Mr Plant as at the time of the Qualification Period.
Irrespective of whether the descriptor in paragraph (2) for a 20-point rating applied to Mr Plant, the Tribunal has concluded that the descriptor in paragraph (1) did not apply to him. The Tribunal is satisfied that Mr Plant’s lower limb impairment was not severe and did not attract 20-points under Table 3 as at the time of the Qualification Period.
Accordingly, the Tribunal accepts the contention by the Secretary that Mr Plant’s lower limb impairment was moderate and attracted 10 points under Table 3 as at the time of the Qualification Period. In this regard, the medical evidence and the evidence referred to in paragraphs [93] and [94] above; the Tribunal considers that the descriptors in paragraphs (2) for a 10-point rating applied, in that Mr Plant was able to use public transport. He was also able to use a motor vehicle. He was also able to walk around a shopping centre or supermarket.
The Tribunal also considers that paragraph (3) applied, in that he could move around independently. In fact, he could do so without the use of the assistive equipment specifically referred to in this paragraph.
Finally, Mr Plant reported to the assessor during the third JCA that he was able to negotiate steps slowly although “he required the use of a bannister, task execution takes longer, results in fatigue, pain and frustration and he needs to pre-plan his movements”. Consistent with the interpretation of “without assistance” as referred to above, the Tribunal considers that Mr Plant was still able to use the stairs, even though he required the use of the bannister to do so. The Tribunal finds that the descriptor in paragraph (1)(b) did not apply to Mr Plant as at the time of the Qualification Period.
However, the Tribunal is satisfied that Mr Plant was unable to stand for more than five minutes and that the descriptor in paragraph (1)(c) of the 10-point rating applied to him. On this basis, and given that the descriptor in paragraph (2) applied to him, and that the descriptor in (3) was not relevant to Mr Plant’s circumstances, the Tribunal concludes that the functional impairment to Mr Plant’s lower limbs on account of Charcot foot in his feet attracted a rating of 10 points under Table 3 as at the time of the Qualification Period.
Permanent condition – Diabetes Mellitus Type II
The Secretary did not dispute that this condition was fully diagnosed, treated or stabilised. As confirmed in the letter by Dr Chow dated 18 February 2015 as referred to in paragraph [20], and also by the letter by Dr Cohen dated 7 December 2015 as referred to in paragraph [27], Mr Plant has suffered from diabetes since about 2008. Mr Plant has received continued treatment by specialist endocrinologists to assist him to manage this condition. The Tribunal is satisfied that this condition is fully diagnosed, treated and stabilised and likely to persist for longer than two years.
Functional impairment
There was no evidence that the condition of diabetes mellitus type II, of itself, was causing Mr Plant any functional impairment. It was being managed by the ongoing injections of insulin and by other medication prescribed from time to time to Mr Plant. Mr Plant’s representative did not contend otherwise.
Accordingly, the Tribunal finds that as at the Qualification Period Mr Plant’s condition of diabetes mellitus type II, of itself, did not cause any functional impairment and as such did not attract an impairment rating as at the time of the Qualification Period.
Permanent condition – Haemochromatosis
The Secretary did not dispute that this condition was fully diagnosed, treated or stabilised. As confirmed in the letter by Dr Chow dated 18 February 2015 as referred to in paragraph [20], and also by the letter by Dr Kemp dated 17 March 2015 as referred to in paragraph [21], Mr Plant has suffered from haemochromatosis since about 2008. Mr Plant he has received continued treatment by specialist endocrinologists to assist him to manage this condition. The Tribunal is satisfied that this condition is fully diagnosed, treated and stabilised and likely to persist for longer than two years.
Functional impairment
There was no evidence that the condition of haemochromatosis, of itself, was causing Mr Plant any functional impairment. It was being managed by the treating specialists. Mr Plant’s representative did not contend otherwise.
Accordingly, the Tribunal finds that as at the Qualification Period Mr Plant’s condition of haemochromatosis, of itself, did not cause any functional impairment and as such, did not attract an impairment rating as at the time of the Qualification Period.
Permanent condition – Retinopathy in both eyes
The Secretary did not dispute that this condition was fully diagnosed, treated or stabilised. As confirmed in the letter by an optometrist, Mr Loffel, on 4 May 2015 as referred to in paragraph [22] and in the letter by Dr Chow dated 18 February 2015 as referred to in paragraph [20], Mr Plant has suffered from retinopathy in both eyes. This condition resulted from Mr Plant’s primary condition of diabetes. The Tribunal is satisfied that this condition is fully diagnosed, treated and stabilised and likely to persist for longer than two years.
Functional impairment
There was no evidence that the condition of retinopathy in both eyes caused Mr Plant any functional impairment as at the Qualification Period. Mr Plant’s representative did not contend otherwise. Mr Plant received laser treatment which has restored his vision, provided he wears corrective eyewear (i.e. spectacles) as he had done previously.
Accordingly, the Tribunal finds that as at the Qualification Period Mr Plant’s condition of retinopathy in both eyes, did not cause any functional impairment and as such, did not attract an impairment rating.
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that as at the time of the Qualification Period:
(a)Mr Plant had impairment to his lower limb function arising from the conditions of Charcot foot, right and left;
(b)these conditions were fully diagnosed, treated and stabilised and likely to persist for more than two years. Therefore, these conditions were permanent within the meaning of s 6(4) of the 2011 Determination;
(c)a rating of 10 points applied to Mr Plant’s impairment arising from his conditions of Charcot foot, right and left: 10 points under Table 3 (impairment to function of the lower limbs);
(d)Mr Plant also suffered from other conditions that were full diagnosed, treated and stabilised and likely to persist for longer than two years being:
(i)diabetes mellitus type II;
(ii)haemochromatosis; and
(iii)retinopathy; and
(e)Mr Plant’s conditions referred to in the above subparagraph did not cause any functional impairment to him and did not attract any impairment ratings as at the time of the Qualification Period.
The Tribunal concludes that Mr Plant did not meet the eligibility requirements for DSP as his permanent conditions did not attract at least 20 impairment points as required under s 94(1)(b) of the Act as at the time of the Qualification Period. This being so, there is no need for the Tribunal to consider whether Mr Plant also met the mandatory “continuing inability to work” requirement under s 94(1)(c) of the Act, except to make an observation that with Mr Plant’s extensive employment background and also noting his qualifications, including his qualification in architectural drafting, the Tribunal considers that Mr Plant would be well-placed to undertake employment in a clerical or administrative role. This role would allow Mr Plant to remain seated for a substantial part of the day while he is at work, or there may be other roles where he is permitted to work from home with the benefit of modern technology. The Tribunal also considers that Mr Plant would be capable of working at least on a part-time basis for more than 15 hours per week.
Accordingly, the Tribunal affirms the decision of the AAT1 to reject Mr Plant’s claim for the DSP.
I certify that the preceding one-hundred and thirteen (113) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
[sgd]......................................................................
Associate
Dated: 15 October 2018
Date of hearing:
17 January 2018
Representative for the Applicant:
Peter Jess, Principal
Peter W Jess & AssociatesRepresentative for the Respondent: Ailsa Bramley, Senior Government Lawyer
Department of Human Services
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