Rade and Secretary, Department of Social Services (Social services second review)
[2016] AATA 919
•18 November 2016
DECISION AND REASONS FOR DECISION [2016] AATA 919
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/5318
GENERAL DIVISION )Re: Kieffer Rade
Applicant
And: Secretary, Department of Social Services
RespondentCORRIGENDUM TO DECISION NO [2016] 919
TRIBUNAL: Member I Thompson
DATE: 28 November 2016
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application on the first page to read:
The Tribunal sets aside the decision under review and in substitution decides that the applicant is qualified for disability support pension from 17 February 2015.
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I THOMPSON
(Member)
Rade and Secretary, Department of Social Services (Social services second review) [2016] AATA 919 (18 November 2016)
Division
GENERAL DIVISION
File Number
2015/5318
Re
Kieffer Rade
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member I Thompson
Date 18 November 2016 Place Adelaide The Tribunal sets aside the decision under review and in substitution decides that the applicant is qualified for disability support pension from17 February 2016.
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Member I Thompson
CATCHWORDS
SOCIAL SECURITY - disability support pension – whether applicant’s medical condition was fully diagnosed, fully treated and fully stabilised during the assessment period – whether the applicant has a severe impairment – decision under review set aside.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999
CASES
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
Re Fanning and Secretary, Department of Social Services 2014 AATA 447
Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 664
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
18 November 2016
INTRODUCTION
The applicant Mr Rade lodged a claim for disability support pension (DSP) on 17 February 2015. The basis of the claim was that he suffers severely from primary pulmonary hypertension. Mr Rade was born in 1997 and at the time of the hearing before this Tribunal he was 18 years old.
Centrelink rejected the DSP claim and on review the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed Centrelink’s decision. Mr Rade applied to the General Division of the Tribunal for a second review.
The hearing took place on 1 September 2016. Ms M Riley, Welfare Rights Centre (SA) Inc, represented Mr Rade. Ms Wells represented the respondent, the Secretary, Department of Social Services. Mr Rade and his mother attended the hearing and they gave evidence. Dr C Burdeniuk, a Consultant Cardiologist, gave evidence by telephone. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 and various medical reports.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables which are set out in Schedule 1B to the Act. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 17 February 2015 to 17 May 2015.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Mr Rade will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is active participation in a program of support.
The Secretary conceded that Mr Rade suffers from impairment arising out of the condition of pulmonary arterial hypertension (PAH). On the evidence, the Tribunal is satisfied that the concession was correct and that the first requirement under s 94(1)(a) of the Act is satisfied.
The main issue for determination is whether Mr Rade’s impairment could be assigned 20 points or more under the Impairment Tables during the assessment period and if so, whether he had a continuing inability to work.
Evidence of Mr Rade
In January 2015, Mr Rade was admitted to the Flinders Medical Centre cardiac unit. At the time he was 17 years old. He was admitted to hospital because he was coughing blood. In the months leading up to his admission to hospital he had suffered from breathlessness and fatigue. He had difficulty walking between classrooms at school where he was a Year 11 student. He had stopped playing sport at school because of problems with his breathing and his favourite activity, BMX riding, was severely curtailed. In hospital he received a diagnosis of PAH and treatment commenced. It has continued thereafter and it will be lifelong treatment.
The diagnosis and treatment for the condition changed his life. He did not return to school. He had completed a base grade certificate in automotive studies. However he did not pursue that line of study any further. Under the guidance of the Flinders Medical Centre and his general medical practitioner he commenced a self-managed and complex daily routine around medication intake which was designed to bring an element of stability to his health and comfort.
Since January 2015 Mr Rade has taken medication to control the PAH including daily dosages of Macitentan, Sildenafil, and Iloprost. He inhales Iloprost seven times a day. The first inhalation is shortly after waking up in the morning and the last inhalation is shortly before going to sleep at night. Side effects include headaches and drowsiness. Preparing and administering the medication and cleaning up afterwards is time-consuming on each occasion. It must be done carefully and in a quiet environment.
Mr Rade’s primary focus every day is the management of his medication and the avoidance of activity which will adversely impact on his heart condition. He said in evidence that he cannot do much physical activity. He has a girlfriend and he now resides with her and her mother. His girlfriend is both carer and companion. She helps him with his self-care, his household routines, meal preparation and medication. At home he watches TV and is unable to contribute to ordinary domestic activities. Bending causes breathlessness. Moving his arms also results in breathlessness. He walks slowly around the house. He does not do any outdoor, domestic work such as gardening or lawn mowing. He has a limited social life.
Mr Rade does not go shopping by himself. He can walk slowly around a supermarket and he can push a trolley with light items. On medical advice he is not meant to carry items over three to four kilograms. He likes to go for a walk near home. He can now walk about 300 metres and then he gets short of breath. Some days are more exhausting for him than others and the pattern is not predictable. He struggles to climb stairs and takes one step carefully at a time. He goes to the movies with his girlfriend and he can walk from the car into the picture theatre. He does not use public transport as he fears that he might cough blood while he is in the bus or that he may have a problem with medication. He is frightened of going anywhere alone because something might happen to him with breathing, or exhaustion, or problems with medication. Prior to the diagnosis, BMX bike riding was his hobby. He is now permitted to ride the bike twice per week for half an hour on each occasion. When he is riding the bike he focuses on his breathing and keeping his heart rate down. In evidence he said it is very discomforting if his heart rate goes up. He said it is frightening. He can see his heart pushing against his ribs and it causes him to panic.
The impact of Mr Rade’s PAH condition on routine, daily activities has been severe since diagnosis in January 2015. Physical work of any type has been beyond his capacity. He considers that he is unemployable and incapable of being trained for work because of his medication routine, the extreme limitations that he has with mobility and problems maintaining concentration and focus. He gets exhausted from minor physical activity. By the time he tries to go to sleep at night, he feels his heart pounding and discomfort sets in. Falling asleep is problematic and his poor sleeping routines increase his fatigue during the day.
Evidence of Ms Rade
Ms Rade gave evidence about the effects of PAH on her son. She confirmed the problems with his health prior to his admission to hospital in January 2015. She described the medication routine since diagnosis and she stated that missing medication can cause him to deteriorate very quickly. She confirmed that he had a interest in mechanics when he was at school and that he is disappointed that he cannot pursue that interest now. Ms Rade confirmed the family history of PAH which had caused the premature deaths of her mother, her sister and her aunt.
Evidence of Dr R Johns
Dr Johns is Mr Rade’s general medical practitioner. In a report dated 15 August 2015, Dr Johns confirmed the severity of Mr Rade’s PAH condition. He wrote that the treatment is highly specialised with the need to administer medication every three hours. The condition causes severe fatigue and extreme breathlessness. Dr Johns wrote that he did not believe it would possible for Mr Rade to work 15 hours per week. The condition which Mr Rade has is familial and life limiting. While it is feasible that the life expectancy would be in the order of two years, Dr Johns would hope for a better outcome.
Evidence of Dr C Burdeniuk
Dr Burdeniuk is a Consultant Cardiologist at the Flinders Medical Centre. She has been in charge of Mr Rade’s treatment since he was first diagnosed in January 2015. She wrote four reports which were received in evidence. She also gave evidence to the Tribunal by telephone.
Dr Burdeniuk confirmed that Mr Rade presented to the Flinders Medical Centre cardiac unit in January 2015 with a life threatening condition of PAH in association with pulmonary haemorrhage. In evidence she said that Mr Rade was in dire straits on admission. Following diagnosis, assessment and commencement of a powerful regime of medication, Mr Rade’s condition improved somewhat. In a report dated 17 March 2015, Dr Burdeniuk recommended that he continue with the current medications and a review was recommended in three months time. He was due to see the clinical genetic service in late March 2015 and pulmonary rehabilitation exercise options would be also considered.[1]
[1] Exhibit 1, T18, p 172.
In a report dated 15 May 2015 Dr Burdeniuk wrote that Mr Rade had withdrawn from school as he could not cope with his symptoms, the administration of medication and school work. He had responded to treatment through oral medication three times a day and inhaled medication eight to nine times per day. Under clinical conditions, he could walk 450 meters in six minutes. This is considerably less than somebody of his age should be able to achieve. In a report dated 9 June 2015 Dr Burdeniuk confirmed that PAH is incurable, and ultimately it is a progressive disease with a poor prognosis.[2]
[2] Exhibit 1, T16, p 169.
In evidence Dr Burdeniuk stated that the aim of the treatment was to try to stabilise the condition. The process around inhaling Iloprost, which Mr Rade was generally following seven to eight times in a 24 hour period, would take about 25-35 minutes on each occasion. The process involves preparation and inhalation of the medication and then washing of materials. In her report dated 15 December 2015, Dr Burdeniuk wrote that the routine around inhaling medication is Mr Rade’s greatest limitation. If he is late with his medication he will suffer “significant rebound symptoms and shortness of breath”.[3]
[3] Exhibit 2.
In an email dated 23 August 2016, Dr Burdeniuk wrote:[4]
“Keiffer’s medication regime remains stable as he is already on optimal triple therapy for PAH. Unless he deteriorates this treatment would continue indefinitely. If his conditions worsens he will need to be considered for upgrade to continuous iv infusion of epoprostenol +/- lung transplantation.
His functional capacity remains stable, despite enrolment in pulmonary rehab. As most teenagers, Keiffer tends to downplay his symptoms as he wants to be perceived as ‘normal’. On repeated questioning he does not have a normal exercise capacity for an 18 yo. He attempts to ride a bike but then has to rest for hours afterwards due to significant fatigue. He is unable to do chores such as making a bed due to dyspnoea on exertion. He has a great deal of anxiety surrounding his need for regular medication and is always frightened of missing a dose. He achieved some marginal improvements in functional capacity with pulmonary rehab but this has now plateaued. The role of ongoing rehab is not to achieve further improvements but to help manage his anxiety and symptomatology.
His prognosis remains guarded. At this point in time he is stable with aggressive triple therapy of pulmonary arterial hypertension. He has not returned to a ‘normal’ exercise capacity and is not likely to do so. At some stage as per the natural history of PAH, the disease will progress and he will become increasingly debilitated. In general the life expectancy of PAH patients without treatment had been 50% or less at 3 years. In current times with the treatment modalities we have available 2 year survival is approximately 90% - but this does not translate to ‘normal’ quality of life … simply being alive.
If Keiffer misses a dose (or more) of Iloprost he is at risk of rebound worsening pulmonary hypertension. This is to be avoided as it is associated with poor outcomes.”
[4] Exhibit 3.
IMPAIRMENT TABLES
The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). That document also contains the Rules for the application of the Impairment Tables.
In Re Ulukut and Secretary, Department of Social Services[5], Senior Member Isenberg explained the operation of the Impairment Tables in this way:
… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. …
[5] [2014] AATA 399.
Section 6(5) of the Impairment Tables provides that a decision whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment in unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
CONSIDERATION
While the Secretary accepted that the condition of PAH was fully diagnosed at the date of the claim, it was not accepted that the condition was fully treated and stabilised in the assessment period.
On first review, the tribunal (SSCSD), noted that PAH is a serious chronic condition and significant functional improvement over the period of two years following diagnosis and initial treatment was unlikely. The tribunal found that the condition was fully diagnosed, fully treated and fully stabilised.
Mr Rade’s DSP claim was lodged on 17 February 2015, not long after admission to the Flinders Medical Centre and the diagnosis of the PAH condition. The treatment which was commenced in January 2015 was aggressive treatment for an aggressive condition. The treatment which was commenced prior to the DSP claim, has continued virtually unchanged through the assessment period and to the present time. The treatment which Mr Rade undertook during the assessment period was reasonable.
By the time of her report on 15 May 2015, which is during the assessment period, Dr Burdeniuk confirmed the consistency of the treatment regime and the only outstanding matter was an exercise program to see if further improvements could be made. However useful the exercise program might turn out to be, with marginal assistance in relation to problems with breathlessness and fatigue, Dr Burdenuik’s next report, dated 9 June 2015, confirmed nonetheless that the condition itself remained incurable and the overall prognosis for this progressive disease remained poor. It is clear that further reasonable treatment was not likely to lead to significant functional improvement.
The Tribunal notes the remarks of Deputy President Handley in Re Fanning and Secretary, Department of Social Services [6][at 33]:
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether ‘any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’. While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, and efficacy of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”
[6] 2014 AATA 447
The Tribunal accepts Mr Rade’s evidence and the evidence of his mother. The Tribunal is satisfied that Mr Rade’s condition of PAH was fully diagnosed at the time of the DSP claim and it was fully treated and stabilised during the assessment period. Having regard to all of the evidence, the Tribunal considers that as at 17 February 2015 or within 13 weeks of that date (the assessment period), Mr Rade’s condition of PAH was permanent and his impairment was likely to persist for more than two years. Therefore an impairment rating can be given for this condition.
The Applicable Impairment Rating
Impairment Table 1 provides the descriptors of impairment relating to functions that require physical exertion and stamina. For a moderate functional impact Table 1 states:
Points Description 10 There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
For a severe functional impact Table 1 states:
Points Description 20 There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
In the assessment period, Mr Rade experienced adverse symptoms including breathlessness and fatigue when he performed light physical activities. As a result of those symptoms he had difficulty walking around a shopping centre or a supermarket. His ability to use public transport by himself was curtailed. He was unable to perform light day to day household activities. Those symptoms and the impact of them have remained to the present time. He is likely to have difficulty in any work related tasks that are clerical, sedentary or stationary and which involve a continuous shift of at least three hours. Mr Rade has a severe functional impact on activities that require physical exertion or stamina. The appropriate rating is 20 impairment points in accordance with the descriptors in Table 1.
CONTINUING INABILITY TO WORK
The next issue for determination is whether Mr Rade had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines a continuing inability to work as follows:
(2) Continuing inability to work
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) … the person has actively participated in a program of support within the meaning of subsection (3C) …; 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.
Note: For work see subsection (5).
With an impairment rating of 20 points under a single impairment table, it follows that Mr Rade has a severe impairment within the meaning of s 94(3B) of the Act and he does not need to meet the requirement of actively participating in a program of support.
In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded. They were set out in Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 664 as matters to be disregarded, namely:
23. …
·any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person’s locally accessible labour market (s94(3)(b));
·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451);
·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AAT 864 [34]);
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and
·the existence of a benign employer of sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517).
A Job Capacity Assessment report (5 May 2015) recorded a temporary work capacity of 0-7 hours per week with an end date on 4 November 2015. The report recorded a capacity for work within two years with intervention at 30 hours per week. The rationale was that there are no conditions which are fully diagnosed, treated and stabilised which reduce long term work capacity and light semi-skilled work, such as clerical duties, would be suitable.
The JCA report went on to say that Mr Rade:
“… has a heart condition which would preclude heavy effort work and would be more suited to light effort work and can be assisted by ESS programs of assistance when his heart condition is more stable. He has another review with his cardiologist on 26/6/15.”
The JCA report under-estimated the functional impact of Mr Rade’s impairment. He withdrew from school because he could not manage his symptoms and maintain his medication regime. The symptoms were severe and constant at that time. They still are. The medication regime was constant and demanding. It still is. Mr Rade told Dr Burdeniuk that he hoped he could ultimately return to some form of employment or schooling.[7] However, as Dr Burdeniuk noted, there is a need to be realistic and practical about the type and extent of work that Mr Rade could undertake successfully.
[7] Exhibit 1, T16 P 170.
Work is defined in s 94(5) of the Act as follows:
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
In Re Ulukut, the Tribunal Member goes on to consider the meaning of “work” in the context of s94(2)(a) as defined in s94(5) of the Act and stated [at 58] :-
“When considering whether a person is prevented from doing ‘any work’ in s94(2)(a), the capacity of the person to attract an employer in the open labour market having regard to the level and nature of the disabilities suffered and the type of work that the person was capable of undertaking without retraining, should be taken into account: Secretary, Department of Families, Community Services and Indigenous Affairs v Harris [2010]FCA 360”
In that case the applicant’s condition included a psychiatric condition and the Tribunal went on to say[at 59] :-
“…the Applicant has little, if any, to attract an employer in the open labour market having regard to the debilitating effect of her psychiatric condition in particular. She has few work skills and in my view is it is highly unlikely that any normal workplace could tolerate her symptoms, especially the manifestation of her despair and her fatigue: Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Hamal and Secretary, Department of Social Services [1993] AATA 283; Secretary, Department of Family and Community Services and Bell [1998]52ALD 472.”
On all of the evidence, it is clear that Mr Rade’s impairment has resulted in a loss of functional capacity which adversely affects his ability for work. That loss of capacity is debilitating. The particular, unique requirements for daily self-administration of medication interfere with any prospects that Mr Rade might hold for any work, including light duties. In fact, his daily work is self-administration of medication that enables him to function slowly and quietly in light activities at home and occasionally outdoors.
The Tribunal considers that Mr Rade’s impairment led to a loss of functional capacity which prevent him from working at least 15 hours per week, even with support.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
The Secretary contended that Mr Rade’s impairments did not of themselves prevent him from undertaking a training activity that would enable him to work at least 15 hours per week within two years of the assessment period.
However, as with Mr Rade’s inability to work, it is clear that he would have extreme difficulty undertaking and maintaining a relevant training activity. The Tribunal considers that the impairments that he has are sufficient to prevent him from undertaking a training activity within two years of the assessment period.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied. As outlined previously, the Tribunal finds that Mr Rade’s life threatening condition of pulmonary arterial hypertension was fully diagnosed, treated and stabilised during the assessment period. The appropriate rating for that condition is 20 points under the Impairment Tables. That is a severe impairment within the meaning of s 94(3B) of the Act. With a total of 20 impairment points, the criterion in s 94(1)(b) of the Act is satisfied.
In view of the finding that Mr Rade has a severe impairment, there is no need for him to have actively participated in a program of support within the meaning of s 94(3C) of the Act.
In all of the circumstances the Tribunal is satisfied that Mr Rade has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Mr Rade is qualified to receive the disability support pension from 17 February 2015.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson .......................[Sgd].................................................
Administrative Assistant
Dated 18 November 2016
Date(s) of hearing 1 September 2016 Advocate for the Applicant Ms M Riley Solicitors for the Applicant Welfare Rights Centre (SA) Inc Advocate for the Respondent Ms L Wells Solicitors for the Respondent Sparke Helmore
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