Rasekh Fard and Secretary, Department of Social Services (Social services second review) - [2024] AATA 358

Rasekh Fard and Secretary, Department of Social Services (Social services second review) [2024] AATA 358 (7 March 2024)
Division:GENERAL DIVISION
File Number: 2022/5809
Re:Roonhangiz Rasekh Fard
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:7 March 2024
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 3 June 2022, to reject the Applicant’s claim for the Disability Support Pension lodged on 2 August 2021, is affirmed.
.............................[Sgd]...........................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s spinal condition and mental health condition were fully diagnosed, fully treated and fully stabilised – whether Applicant’s impairments attracted an impairment rating under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – whether Applicant has a severe impairment – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) - ss 94, 94 (1)(a), 94(1)(b), 94(1)(c)(i), 94(2), 94(2)(a), 94(2)(b), 94(2)(aa), 94 (3B), 94(3C), 94(5)
Social Security (Administration) Act 1999 (Cth) - cl 4(1) of sch 2.
Social Security (Active Participation for Disability Support Pension) Determination 2014 - Table 4; ss 5, 7(2), 7(3)-(5).
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011– ss 3, 5(2), 6, 6(1),6(3), 6(4), 6(7), 6(8), 8, 8(1), 8(2), 10(1).
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
GALLACHER V SECRETARY, DEPARTMENT OF SOCIAL SERVICES [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
MINISTER FOR HOME AFFAIRS V G AND ANOTHER [2019] FCAFC 79
RE FANNING AND SECRETARY, DEPARTMENT OF SOCIAL SERVICES [2014] AATA 447
SECONDARY MATERIALS
Australian Government ‘Guides to Social Policy Law: Social Security Guide’ (version 1.314, 5 February 2024) – 3.6.3, 3.6.3.05
REASONS FOR DECISION
Member L M Gallagher
7 March 2024
THE APPLICATION

The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 3 June 2022 that affirmed a decision of an Authorised Review Officer (ARO) of Services Australia (the Agency) dated 7 December 2021 to reject the Applicant’s claim for Disability Support Pension (DSP) (the Reviewable Decision).[1]
[1] R1, T2.
ISSUE
The issues for determination in this matter are whether, at the date of the Applicant’s claim for DSP:
(a)The Applicant suffered from a physical, intellectual or psychiatric impairment or impairment; and if so,
(i)Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (the Impairment Tables); and if so,
(ii)Whether those 20 impairment points are achieved under a single Impairment Table such that the Applicant has a severe impairment; and
(b)The Applicant has a continuing inability to work (CITW), which includes:
(i)That she be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)If, and only if, the Applicant does not have a severe impairment, the Applicant has actively participated in a program of support (POS).
BACKGROUND
On 2 August 2021, the Applicant lodged a claim for DSP with the Agency, in relation to her “neck problem” and “depression”.[2]
[2] R2, T32.
Following a face to face Job Capacity Assessment (JCA) on 6 September 2021, it was reported that:[3]
(a)The Applicant’s “neck disorder” was fully diagnosed, fully treated and fully stabilised (FDTS) and could therefore be assigned a rating under the Impairment Tables. The JCA considered that a rating of 0 points under Table 4 of the Impairment Tables was appropriate as the condition had no functional impact on activities involving spinal function.[4]
(b)The Applicant’s “psychological/psychiatric disorder” was fully diagnosed but not fully treated or stabilised.[5]
(c)The Applicant had an ability to work 15 to 22 hours per week within two years of intervention.[6]
[3] R2, T38.
[4] R2, T38, pp 168 and 169 and pp 171 to 172.
[5] R2, T38, pp 169 and 170.
[6] R2, T38, p 173.
On 29 September 2021, the Agency rejected the Applicant’s claim for DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables (the Original Decision).[7]
[7] R2, T39.
On 5 November 2021, the Applicant requested an internal review of the Original Decision.[8]
[8] R2, T57, p 229 and T40, p 178.
On 7 December 2021, an ARO of the Agency affirmed the Original Decision (ARO Decision).[9] The ARO found in accordance with the JCA.
[9] R2, T41.
On 2 March 2022, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the ARO Decision.[10]
[10] R2, T47.
On 3 June 2022, the AAT1 made the Reviewable Decision.[11] The AAT1 found that:
(a)The Applicant’s degenerative cervical and lumbar spinal condition was fully diagnosed but not fully treated or fully stabilised.[12]
(b)The Applicant’s anxiety and depression condition was fully diagnosed but not fully treated or fully stabilised.[13]
(c)Both of the Applicant’s claimed conditions above at (a) and (b) attract no impairment points.[14]
[11] R2, T2.
[12] R2, T2, p 5.
[13] R2, T2, p 6.
[14] R2, T2, p 6.
On 15 July 2022, the Applicant applied to the Tribunal’s General Division for review of the Reviewable Decision.[15]
[15] R2, T1.
RELEVANT LEGISLATION AND PRINCIPLES
The statutory principles relevant to the Applicant’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Social Security Guide[16] (the Guide) assists those who administer the Act. As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[17]
[16] Australian Government ‘Guides to Social Policy Law: Social Security Guide’ (version 1.314, 5 February 2024).
[17] G at [57]-[62].
The Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies.[18]
[18] Section 3.6.3 of the Guide.
Qualification criteria

14.     Section 94(1) of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are that:
(a)The person has a physical, intellectual or psychiatric impairment;[19]
(b)The person’s impairment is of 20 points or more under the Impairment Tables;[20] and
(c)The person has a CITW.[21]
[19]    Section 94(1)(a) of the Act.
[20]    Section 94(1)(b) of the Act.
[21]    Section 94(1)(c)(i) of the Act.

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance.[22]
[22] Topic 3.6.3.05 of the Guide.
In accordance with clause 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine the Applicant’s eligibility for DSP on 2 August 2021, the date the claim was lodged.[23]
[23] Evidence, such as medical reports, that come into being after the relevant period may still be relevant,
The Determination contains the Impairment Tables. The Impairment Tables set out the rules regarding when an impairment rating can be assigned as well as a system for rating impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[24]
[24] Section 3 of the Determination.
The Impairment Tables are utilised to describe functional activities, abilities, symptoms and limitations; and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions.[25]
[25] Section 5(2) of the Determination.
Section 6 of the Determination sets out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment 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. To be given a rating under the Impairment Tables,
[26] Section 6(3) of the Determination. Refer also to sections 6(4) to 6(7) of the Determination.
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years.[26]
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[27]
[27] Section 6(8) of the Determination.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[28] Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[29]
[28] Section 8(1) of the Determination.
[29] Section 8(2) of the Determination.
To select the applicable Impairment Table, one must take the following steps:[30]
(a)Identify the loss of function; then
(b)Refer to the Table related to the function affected; then
(c)Identify the correct impairment rating.
[30] Section 10(1) of the Determination.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in section 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under section 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
In relation to section 94(2) of the Act, extracted at para [25] above, relevantly:
(a)The Tribunal has no power to dispense with the operation of the POS requirement in s 94(2)(aa) of the Act and it is irrelevant whether an Applicant was aware of the requirement or not;[31]
(b)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table;[32]
(c)A person has actively participated in a POS if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection;[33] and
(d)Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[34]
[31]    See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
[32]    Section 94(3B) of the Act.
[33]    Section 94(3C) of the Act.
[34]    Section 94(5) of the Act.
With regards to participation in a POS, the POS Determination relevantly provides the following guidance:
(a)the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person;[35] and
(b)the requirements for active participation in a POS are contained in s 7 of the POS Determination.
(i)Generally, a person must have participated in the POS for at least 18 months during the relevant period.[36]
(ii)Sections 7(3)-7(5) of the POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[37]
[35]    Section 5 of the POS Determination.
[36]    Section 7(2) of the POS Determination.
[37]    See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 22 August 2023. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr Christian Visser, Principal Government Lawyer, Services Australia, who appeared via Microsoft Teams.
At the hearing, the Tribunal admitted the following documents into evidence:
(a)Medical Report by Dr Michael Miu, Pain Medicine Specialist and Anaesthetist, dated 7 August 2023 (A1);
(b)Respondent’s Statement of Facts, Issues and Contentions dated 17 April 2023, with:
(i)List of Authorities; and
(ii)Annexure 1 (R1); and
(c)Respondent’s Section 37 T-Documents, labelled T1 – T57, consisting of pages 1 – 233, filed 12 August 2022 (R2).
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
The Applicant’s evidence
The Applicant gave the following evidence in relation to her claimed conditions:
(a)As to her cervical and lumbar spine condition, she continues to have injections.[38] The injections are very painful and make her very sick. She continues to suffer neck pain.[39]
(b)She is taking Cymbalta and Amitriptyline for her depression. The Cymbalta is better for her than the Amitriptyline as the Amitriptyline makes her feel dizzy, very sleepy and gives her a vomiting sensation. She was also taking Lexapro but stopped as it made her very sick.[40]
(c)She was prescribed Cymbalta after her accident in June 2022 and was prescribed Amitriptyline sometime beforehand.[41] Her GP prescribed her with these medications.[42] She does not see a psychiatrist because it is very expensive and she does not have the money. Rather, she sees a psychologist through her care plan.[43]
(d)Her spinal and mental health conditions have worsened since her accident in June 2022.[44]
(e)She suffered tinnitus in her left ear in the three months prior to 1 March 2022.[45]
[38] See A1.
[39] Transcript, p 8.
[40] Transcript, pp 10 and 11.
[41] The Applicant’s medical records show she was prescribed Amitriptyline and Lexapro as early as 10 September 2021 (R2, T36, p 163):
[42] Transcript, pp 11 and 12.
[43] Transcript, p 14.
[44] Transcript, p 15.
[45] R2, T42, p 184. The Applicant provided related medical evidence at R2, T43 to T46.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
The Tribunal is required to assess the medical evidence concerning the Applicant’s functional ability resulting from her impairments as at the date of claim.
It is not in dispute that the Applicant suffers from impairments.[46] The Tribunal finds on the evidence that at the date of claim, the Applicant suffered from various impairments resulting from her claimed conditions. The Tribunal notes the medical evidence in this regard and the Applicant’s evidence at hearing.[47]
[46] R1 [4.22].
[47] See [31]; R2, T34 to T38 and transcript, pp 8 to 15.
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more
It is not in dispute that the Applicant has not participated in a POS for the required 18 months.[48] Further, the Applicant has not claimed, nor is there any evidence to suggest, that she has been exempted from this requirement.
[48] Transcript, p 20; see R1 [5.7]. The Applicant had actively completed in a POS for 166 days of the required 18 months (or 547 days) in the 36 months prior to her claim for DSP: R2, T53, p 201.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of the Applicant’s claimed conditions attracts 20 points for that single condition.[49] That is, the Tribunal must find that the Applicant suffers from a severe impairment.[50]
[49]The Tribunal emphasises that this is in addition to the requirement that an applicant demonstrate that he or
she is unable to work for 15 hours or more per week, within the next two years, with intervention.
[50] See [25] and [26] above.
Before considering whether the Applicant suffers from a severe impairment, the Tribunal must first determine whether any of the Applicant’s claimed conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
While the Applicant has not espoused a particular view as to whether she is severely impaired by either or both of her claimed conditions,[51] the Tribunal understands the Applicant’s position to be that the claimed conditions were FDTS at the relevant time.
[51] Similarly, the Applicant has not made submissions as to how many impairment points each claimed condition should be afforded.
The Respondent contends that the Applicant was not qualified for DSP at the relevant time as she did not have an impairment rating of at least 20 points and a CITW.[52] The Respondent submitted that while the Applicant’s spinal condition was FDTS at the date of claim, her mental health condition was not FDTS and in any event her spinal condition does not attract an impairment rating.[53] Specifically, the Respondent contended that:
(a)Spinal condition – The Applicant’s cervical spine condition, while FDTS at the relevant time, does not attract impairment points under Table 4 of the Impairment Tables, due to the lack of corroborating medical evidence of any functional impairment arising from her condition.[54] The Applicant’s circumstances are complicated by the fact she was involved in a motor vehicle accident in June 2022, which she claims worsened her neck pain.[55] The assessment of the Applicant’s functional impairment must be confined to the qualification date.[56]
(b)Mental health condition – The Applicant’s mental health condition is fully diagnosed, but was not fully treated and fully stabilised at the relevant time because she has never seen a psychiatrist and takes no antidepressant medication.[57]
[52] R1, [4.23] and [5.17] and transcript, p 8.
[53] R1 [4.29], [4.34], [4.35] and [4.43].
[54] R1 [4.34], [4.35], [4.38].
[55] R1, [4.37]. See reports of Dr Melanie Wise, General Practitioner, dated 26 June 2022 (R2, T52, p 200) and 12 December 2022: R1, Annexure 1, p 7.
[56] R1 [4.37].
[57] R1 [4.29] and [4.30].
Applicant’s spinal condition

The Applicant has experienced neck pain since 2005 and back pain since 2009.[58] Radiological evidence from 2020 showed moderate cervical disc degeneration at the C5/6 and C6/7 levels of the cervical spine as well as a shallow right foraminal disc protrusion at the C7/T1 level and no convincing nerve root impingement.[59]
[58] R2, T2 [10].
[59] R2, T27.
While Dr Braad Sowman, Orthopaedic Surgeon, recommended cervical fusion in 2018, albeit as a last resort, on further review he indicated the Applicant would be best served with non-surgical treatment.[60]
[60] R2, T17, T18, T19 and T38, p 168. See also R1, Annexure 1, p 2.
The Applicant attended the pain management clinic at Royal Perth Hospital and completed a multidisciplinary programme for persistent pain in 2020.[61] The Applicant attended physiotherapy in 2020 and at the time of her JCA maintained a treatment regime of exercise, physiotherapy and 3 monthly reviews with the pain clinic.[62]
[61] R2, T38, p 168.
[62] R2, T38, pp 168 and 169.
Having had regard to the entirety of the available medical evidence and the relevant evidence above, the Tribunal is therefore satisfied that the Applicant’s spinal condition was FDTS at the date of claim.
The Tribunal has considered the Applicant’s reports of her functional abilities involving her spinal function.[63] While the Tribunal considers the Applicant’s spinal condition was FDTS at the qualification date, there is no corroborative medical evidence before the Tribunal that her spinal condition caused her any functional impairment at this time and no impairment points can be allocated to her spinal condition.
[63] See summary at R2, T38, pp 171 and 172, reports from Dr Bhazad Alizadeh, General Practitioner dated 10 September 2021 (R2, T36) and 8 February 2022 (R2, T45), transcript, p15 and R2, T2, p 5.
Applicant’s mental health conditions
The Tribunal accepts the Applicant suffers from long standing depression and anxiety and refers to diagnoses by Dr Alizadeh[64] and Mr Christopher Semmens, Clinical Psychologist[65] in this regard.
[64] See medical certificate dated 31 May 2021 (R2, T29)
[65] See letter dated 28 July 2021 (R2, T31). Mr Semmens considers that the Applicant also suffers from traumatic stress and chronic persistent pain, however these conditions do not fall within the Applicant’s current claim.
The Applicant has attended clinical psychology therapy under the GP Mental Health care Plan since September 2018.[66] The Applicant has accessed various medications through her general practitioners[67] to treat her anxiety and depression which she has taken since at least September 2021[68] and continues to take Cymbalta and Amitriptyline. The Applicant is yet to see a psychiatrist and gave evidence that it is not within her financial means to do so.[69]
[66] R2, T31.
[67] See [31(c)] above.
[68] See fn 41.
[69] Transcript, p 14.
On this basis, the Tribunal finds that the Applicant’s depression and anxiety conditions are FDTS.
The Tribunal accepts the Applicant’s accounts of her functional limitations resulting from her mental health conditions.[70]
[70] Transcript, pp 13 and 14; R2, T2, p 6 and R2, T38, p 70.
As to the corroborative evidence required for the purpose of assigning impairment points under Table 5 of the Impairment Tables:[71]
(a)Mr Semmens considers the Applicant’s mental health conditions have a mild functional impact on activities involving mental health function:[72]
(b)However, it is unclear from Mr Semmens’ letter whether he holds this opinion in relation to the degree of functional impairment on the Applicant’s activities at the qualification date, or at the time of writing on 28 February 2022.[73]
[71] Table 5 being the table relevant to Mental Health Function. See the Introduction to Table 5 of the Impairment Tables in this regard.
[72] A mild functional impact relating to an impairment rating of 5 points under Table 5 of the Impairment Tables. See Mr Semmens’ letter dated 28 February 2022 (R2 T46).
[73] See also fn 23 in this regard.
Therefore, the Tribunal cannot be satisfied that Mr Semmens’ opinion relates to the Applicant’s functional impairment at the relevant time and it concludes that there is no evidence that the Applicant’s mental health conditions caused her any functional impairment. Therefore, no impairment points can be allocated to these conditions.
In light of the matters addressed and findings made at paras [40] to [50] above, the Tribunal is unable to allocate impairment points to the Applicant’s functional impairments and she fails to satisfy s 94(1)(b) of the Act.
Whether the Applicant has a continuing inability to work
For completeness only, the Tribunal notes that the available JCA report indicates that the Applicant would have the capacity to work 15 to 22 hours per week within two years, with intervention.[74]
[74] See [4(c)] above.
Therefore, on the available evidence the Applicant’s application for DSP is likely to have failed:
(a)Regardless of whether any or all of the claimed conditions were FDTS; and
(b)If any or all of the claimed conditions had been found to be FDTS, regardless of whether 20 impairment points were assigned under a single condition, or cumulatively.
CONCLUSION
The Tribunal accepts that, at the date of claim, the Applicant suffered from medical conditions impacting her health such that she satisfies s 94(1)(a) of the Act. However, the Tribunal has found that while these conditions are FDTS, there is insufficient evidence to establish that either of the claimed conditions can be assigned any impairment points.
This being so, the Applicant fails to satisfy the second qualification criterion under s 94(1)(b) of the Act and in turn fails to qualify for DSP.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 3 June 2022, to reject the Applicant’s claim for the Disability Support Pension lodged on 2 August 2021, is affirmed.

I certify that the preceding 56 (fifty six) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.............................[Sgd].........................................
Associate
Dated: 7 March 2024

Date of hearing: 22 August 2023

Applicant’s Representative: Self-represented

Respondent’s Representative: Mr Christian Visser, Services Australia

but only insofar as they are referable to the Applicant’s condition or conditions during the relevant period (Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [27]-[28].

Date of hearing:	22 August 2023
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Mr Christian Visser, Services Australia