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

Redman and Secretary, Department of Social Services (Social services second review) [2017] AATA 2748 (23 November 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6119
Re:Justin Redman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:23 November 2017
Date of written reasons: 22 December 2017
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
...............[sgd].........................................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – mental health condition – spinal condition – whether impairments fully treated and stabilised – whether impairments rated at least 20 points under Impairment Tables – whether applicant had a continuing inability to work – decision under review affirmed
LEGISLATION
Mental Health Act 2007 (NSW)
Social Security Act 1991 (Cth) s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
22 December 2017
BACKGROUND

The matter came before this Tribunal as a result of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 26 October 2016 to affirm a decision made by an authorised review officer on 2 August 2016 rejecting Mr Redman’s claim for a Disability Support Pension (DSP). Mr Redman had initially lodged a claim for a DSP on 11 April 2016 which was rejected in June 2016 and then again on internal review on 2 August 2016.
The issue before this Tribunal is whether Mr Redman was qualified to receive the DSP on the date of his claim or within a 13 week period after that date, namely 11 April 2016 to 11 July 2016 (the claim period).
In accordance with section 94 of the Social Security Act 1991 (the Act), the Tribunal has to look at whether Mr Redman had:
(a)a physical, intellectual or psychiatric impairment arising from a fully diagnosed, treated and stabilised medical condition;
(b)an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination); and
(c)a continuing inability to work, including whether he had actively participated in a program of support for 18 months in a period of three years prior to the lodgement of his claim.
Dr Thompson, counsel for the respondent, conceded that the applicant had, in fact, completed 23 months out of a 36 month period in relation to a program of support at the relevant time and accordingly satisfied that criteria.
The applicant was born on 19 February 1969. He started out in the workforce in 1985. He has had some quite impressive jobs over that time until he started having some medical problems. Things seemed to really deteriorate in 2011 when he was hit over the head with a spanner. It was largely downhill after that.
He struggled up until about 2014, attempting to get back into the workforce. The Tribunal accepts his comments that he would very much prefer to be working and doing the things he used to enjoy, including some fairly extreme sports involving riding around in sidecars and motorcycle riding/racing and the like, which he was able to do up until the assault with the spanner incident in 2011.
In this matter, a number of medical certificates were provided to the Tribunal. The AAT1 also looked at this matter, and in its decision posted on 9 November 2016, at paragraph 11 of the decision and reasons, there are number of medical certificates listed. I will not go through those.
Some further certificates and notes were provided to this Tribunal, namely clinical notes from the Royal North Shore Hospital dated 13 March 2017 and filed on the same day, clinical notes of the Ryde Hospital dated 24 August 2016 and filed on 13 March 2017, and clinical notes of the Midway Family Medical Centre, which are undated and filed on 31 July 2017.
The respondent conceded that the applicant did suffer a medical condition that caused the impairments and, accordingly, he satisfied section 94(1)(a) of the Act at the time of his claim for the DSP. The medical conditions that he suffered from are dealt with in the Impairment Tables under Table 5 – Mental Health Function and Table 4 – Spinal Function.
The respondent’s contention was that at the time of the claim period, whilst the applicant suffered from those conditions, they were not fully treated and stabilised. If the Tribunal were to find those conditions were fully treated and stabilised, the respondent submitted that they only warranted 10 points for mental health and zero points for spinal function.
The applicant and his helper, Ms Dodd – who the Tribunal commends for helping him throughout his problems, putting up with his various mood swings and helping him greatly in terms of preparation of his case before this Tribunal – contended that a solicitor for the Department had conceded 5 points under Table 4 for the applicant’s spinal condition in the course of a conversation at a preliminary conference in this matter. This would give him 15 points if that was accepted. That point is now not conceded by the respondent, who felt that as that condition was not fully treated and diagnosed during the claim period, the applicant should not be awarded any points.
The issues the Tribunal has to decide are whether, during the claim period, the applicant had an impairment rating of 20 points or more under the Impairment Tables, and a continuing inability to work as defined in section 94(2) of the Act.
THE APPLICANT’S MEDICAL CONDITIONS
Firstly, the Tribunal needs to look at whether the applicant has medical conditions that can be rated 20 points or more under the Impairment Tables as at the claim period.
The Impairment Tables Determination states that “An impairment rating can only be assigned…if the person’s condition causing that impairment is permanent”.
As set out in paragraph 6(4) of the Impairment Tables Determination:
a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The spinal condition appears to have been diagnosed when the applicant was scheduled in April 2016 to go into hospital for some mental health problems. He was scheduled under the Mental Health Act 2007 (NSW). He went into hospital and was discharged some weeks later.
The AAT1, in its decision, dealt with his bipolar disorder at page 8 of the T Documents at paragraph 17 where it said:
In order for a psychiatric condition such as bipolar disorder to be considered fully diagnosed for the purposes of qualification for disability support pension, it is a requirement that there is evidence of the diagnosis from a clinical psychologist or psychiatrist. To show the condition has been fully treated and fully stabilised, it is required to show a reasonable period of treatment by an appropriately qualified mental health practitioner.
The AAT1 went on to note that the applicant had reported difficulties with mood for many years, at least since 2009.
The applicant told the Tribunal that he had a mechanical fitter’s certificate. He had worked in the past as a heavy vehicle mechanic and he last worked in 2014. The longest work period was eight years in Bathurst.
I must say on the evidence before the Tribunal, the applicant impresses as having a quite impressive work history up until the time he ceased working in Bathurst. Prior to working in Bathurst his work had included working with the Australian Defence Force, including work on a number of warships. It was a very commendable work history. The Tribunal fully accepts the applicant’s statement that he would much rather be working if he was able to.
The AAT1 at paragraph 19 of its reasons for decision stated that the applicant’s earliest medical diagnosis of bipolar disorder was made in April 2016 after admission under the Mental Health Act to Ryde Hospital. He had been seen regularly by the Mental Health Team at Ryde Hospital since 2015, as reported in the letter from Ms Young. There is no letter detailing current or upcoming treatment for his condition from either a clinical psychologist or a psychiatrist.
The AAT1 then went on to assess the applicant. It noted that as at the claim period, he had a small circle of friends, lived with a friend (Ms Dodd) close to his mother’s home whom he would visit weekly, did not see his five children, and would take his dog for walks. The AAT1 further noted that his laundry was done by his mum, although he said he would be physically able to perform those tasks if required.
The applicant told the AAT1 that he did use his mobile phone and computer and read on occasion, but finds he loses interest. He could watch TV for about 60 minutes at a time. He managed his own financial affairs, banking, could read documents and took Seroquel for his mood. The Tribunal, at paragraph 21, said “The tribunal considers the condition of bipolar disorder to be permanent, fully diagnosed treated and stabilised”.
The relevant table for this is Table 5 – Mental Health Function. The AAT1 considered that the applicant’s bipolar disorder had a moderate functional impact on activities and assigned 10 points for this condition.
I would agree, having looked at all the documents in this matter, especially taking note of the fact that he had been scheduled back in April 2016 and, indeed, it appears in a two year period had been scheduled on three occasions. This man clearly had and has some significant mental health problems.
I also consider, having watched him in front of this Tribunal and hearing the evidence, in particular the evidence of Ms Dodd – who impressed the Tribunal as a fair and reliable witness – (and I would, respectfully, agree with the opinion of the AAT1), that his many mental health issues are permanent, fully diagnosed, treated and stabilised. I am satisfied that what has been occurring since April 2016 can be classed as managing the condition as best as possible.
This Tribunal further notes that the applicant is reluctant to get addicted to certain drugs. He has had a drug problem and an alcohol problem in the past. Whilst he takes certain drugs to help manage his problems he is reluctant to take too much. Accordingly, he seems to be very much in a catch-22 situation. He has had significant assistance from the Pain Clinic, and others, over the last 18 months or so in relation to these issues.
There will always have to be ongoing management of this condition but it does not appear to this Tribunal that it is ever going to go away or improve. It is just a question of management. I would agree with the AAT1, but for the sake of completeness I will do my own points assessment under Table 5 and consider the spinal condition under Table 4.
The applicant and Ms Dodd gave evidence in relation to this matter. The applicant indicated what he can and cannot do, and could and could not do as at the claim period.
Ms Dodd and the applicant indicated that things have gotten worse since the applicant was hospitalised in April 2016 and then released. Ms Dodd stated his condition deteriorated after his release and the medication he received was not doing much good. She felt it was a bit like a catch-22 situation. She indicated in the last six months the applicant had been getting worse.
Ms Dodd indicated that in summer the applicant would shower about every four days and in winter every seven days. The applicant told the Tribunal that he did not move around much, so he did not get terribly dirty, but he was worried about slipping in the shower. He sits down in the shower. He said he now lives out the back of his mother’s place at Ryde and around the corner from Ms Dodd. He had, at times, lived with Ms Dodd. His mother and Ms Dodd both took, and indeed continue to take, care of his basic needs. They would do his washing. There were things he probably could do, he thought, like putting washing into a drying machine, and whilst he might be able to put it out on a clothes line, he would have to lie down after that and rest.
The applicant indicated as well (and Ms Dodd backed him up on this point) that whilst he might have a spurt of activity around the backyard cleaning up after the dog, he would have to lie down and recuperate after that. He indicated the maximum amount of time he could spend on such activities was about 20 minutes.
In the last six months, the applicant has started using a walking stick. He is not very good at taking buses and taxis, as there had been some difficulty in him coming to this Tribunal. He is worse at the end of the day.
He told the Tribunal that he did not cook, and his mother and Ms Dodd cooked for him, although apparently he cooked a “mean popcorn” and he could make himself a cup of tea or coffee. Ms Dodd confirmed this.
Ms Dodd, as I said, has had a difficult relationship with the applicant. Around the time of his admission to hospital in April 2016, she had to call the police, who took out a restraining order on him which affected her seeing him in hospital.
She indicated, and the applicant agreed, that 12 months ago he would still be able to get under his car and use his spanners. It was not a case of using manuals – he just knew what to do, but he cannot physically do that anymore. The last time she saw him under a car was probably about 18 months ago.
The applicant saw his two good friends, namely Steve, who was his ex-apprentice and who was his best mate, and Tony, fairly recently. He would see Steve and his girlfriend more than Tony and last saw Steve only a few weeks ago.
In the old days, going back to about the time of the claim period before he went into hospital, the applicant would walk, usually in the early hours of the morning between 3am and 4am, when he had insomnia. This has ceased in more recent times.
The applicant said his last full time job was in 2011, and his last part-time job was tree lopping in 2014. He cannot work now as the anxiety gets the better of him and it is all too hard physically as well. His back started acting up in mid-2014. His back was diagnosed as a result of his admission to hospital in April of last year for the mental health problems. He has degenerative discs, indeed discs that were and are actually dissolving. Clearly it is not going to get better. It is only getting worse.
As a result of his admission for mental health problems, the applicant was sent to the Pain Clinic, which he first saw around 11 August 2016. He saw a number of doctors there, including psychiatrists, and they have been attempting to assist him manage pain and his psychiatric issues as well. Unfortunately, his evidence was that whilst they seemed to be valiantly trying, it was not really helping. All attempts to help seemed to run into a bit of brick wall and, again, he is always very reluctant to take drugs, which whilst understandable, does not help the situation.
The Pain Clinic has helped him manage pain, but there has been no improvement of his issues since his diagnosis. He would attend the Pain Clinic about once a month from August 2016 until the present.
He wears a back brace. He does that when he is doing any work around the house, like picking up after the dog. Unfortunately, whilst he wears it as long as he is exercising, again, it does not help. He cannot keep his arms up and he tends to do a lot of things with his knees.
The applicant has some significant sleep problems. He had not slept for five days when he was scheduled on 11 April 2016. Up until this time last year, he would go fishing. He liked fishing, but he now cannot cast a rod, cannot use spanners and cannot get under his car. So, the clear evidence from both the applicant and Ms Dodd is his back problems are getting worse. Painkillers concern him. He goes manic. He argues with everyone. He clearly has a significant number of problems as indicated by him being scheduled three times in the last two years.
Mental health
I looked at the Impairment Tables and assessed the applicant as at the claim period, namely 11 April 2016 through to 11 July 2016. Firstly in considering Table 5 – Mental Health Function, I looked at two tables: the 20 point table and the 10 point table. If a person gets 20 points for any one table, that person need not complete a program of support (at any rate the applicant had completed a program of support so this does not affect him).
If a person gets 20 points for one table, it is very hard, I think, for anyone to say that he/she has not demonstrated that he/she does not have a continuing capacity to do some work if assisted. It clearly indicates that the person has got some significant problems.
The 10 point table deals with a moderate functional impact on activities involving mental health function. The AAT1 awarded 10 points here. The respondent indicated whilst it did not concede that this condition had been fully treated, diagnosed and stabilised, if the Tribunal were to find that it was, it submitted 10 points was a fair allocation.
This Tribunal would award 10 points under Table 5. The applicant has moderate difficulties with most of the following. There are six descriptors.
Self care and independent living
The example given is:
The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
The applicant can maintain adequate hygiene – just. As he says, it’s not like he is very active and raising a sweat very often. Nutrition, though, without assistance may be a problem. He can make popcorn and a cup of tea and coffee. His meals are provided. His washing is provided. It is fairly clear that, as at the claim period, he would have significant problems if there was not someone to help him. He does need some support under this descriptor.
Social recreation activities and travel
“The person goes out alone infrequently and is not actively involved in social events.” Whilst the applicant certainly does go out alone infrequently in that he might take the dog for a walk and he is not actively involved in social events, he did and still does go out to see his friends Steve and Tony. This is not the action of someone who is anti-social.
Interpersonal relationships
Does the applicant have difficulty making and keeping friends or sustaining relationships? He certainly can be a bit of a pain to Ms Dodd and his mum and frequently he has arguments with both and then would sleep in his car, but he has kept his friends Steve and Tony.
Concentration and task completion
An example given to satisfy this descriptor is “The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book)”.
Whilst the AAT1 indicated the applicant could watch a TV program for 60 minutes at the claim period (he liked River Monsters), he indicated that whilst he may be watching it he would not necessarily be concentrating on it for the full hour. So, I think he probably qualifies there.
He does not have to follow complex instructions, operating manuals and recipes because he is a handyman himself and, as at the claim period, was quite capable of getting under a car and fiddling around and doing a good job. But he certainly would find it difficult to concentrate on longer tasks for more than 30 minutes. The only thing he would possibly manage it for was when he was watching River Monsters.
Behaviour, planning and decision making

The applicant has “difficulty coping with situations involving stress, pressure or performance demands”. That, I think, is obvious from how he appeared at the Tribunal. I had absolutely no issues with him getting aggressive, swearing and expressing himself quite forcefully. It must be immensely frustrating for what was once a very capable, hardworking, active man to have these medical problems now. Such outbursts do show that it is hard for him to cope with situations involving stress, pressure or performance.
Work/training capacity
Whilst we do not have much evidence about work and training capacity, except that the applicant seems to have satisfied the requirement of completing a program of support, that descriptor states that “the person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placements or groupings”.
I think, clearly, that the applicant might have significant problems were he involved in a work or training situation and something got on his nerves. I am sure he would, very forcefully, tell people where they should get off and the like. He may well go further and be quite aggressive (although, thankfully, I think his bark is worse than his bite). I do think there are some significant issues there.
Clearly, to my mind, the applicant satisfies most of the descriptors in this table. He certainly satisfies (a); probably not (b); possibly not (c); but certainly (d), (e) and (f). He clearly qualifies for 10 points at the claim period.
Can he get 20 points, which is where a person’s condition has a severe functional impact on activities involving mental health functions? To do so the person has to have severe difficulties with most of the following.
Self care and independent living
“The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a member family, friend, health worker or support worker.” I think the applicant probably would satisfy that on the basis of him relying on all his meals being made for him.
Social/recreational activities and travel
“The person travels alone only in familiar areas (such as the local shops or other familiar venues).” Maybe.
Interpersonal relations
“The person has very limited social contacts and involvement unless these are organised for the person.” No – the applicant is quite capable of still seeing friends and, as at the claim period, he had a good relationship with his old mates, who he would see frequently.
Concentration and task completion
“The person has difficulty concentrating on any task or conversation for more than 10 minutes.” No – clearly as at the claim period that was not the case. Indeed, at the Tribunal the applicant was able to concentrate for quite considerable periods of time, certainly for periods of greater than 10 minutes. He would not qualify under this descriptor.
Behaviour, planning and decision making
“The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.” Whilst I would say that perhaps about the applicant’s behaviour, his thoughts and conversation were not. He certainly was able to follow proceedings at this Tribunal. He was able to converse quite lucidly. He does not satisfy this descriptor at the claim period.
Work/training capacity
“The person is unable to attend to work, education or training on a regular basis over a lengthy period due to ongoing mental illness.” Certainly I think that would be the case now, and it may well be at the claim period.
The applicant would need to meet four out of these six criteria and the above shows that he would qualify for probably two, and a maximum of three. Accordingly he would not qualify as at the claim period for 20 points under Table 5.
It is possible that he may qualify now for 20 points but he would need to see, ideally, a psychiatrist, psychologist or even his own GP (as he has been properly diagnosed) and, taking along the Impairment Tables so that the health professional he sees can apply the descriptors to his current condition, have another assessment as to exactly what his condition is like now. It is a little bit unclear to me. I have seen him operate. There is not a great deal of medical evidence to indicate how bad his mental health problems are now. Looking at his ability to hold down a job of any description, I do have concerns given his moods.
In conclusion, as at the claim period, for the reasons given above, I certainly agree with the 10 points the AAT1 awarded in its decision.
Spinal function
Counsel for the respondent submitted that spinal function was not fully treated and stabilised. This was a consistent position by the respondent, it seems, except for possibly a solicitor for the respondent who conceded five points. However even if that is so, that is still not a total of 20 points; it is 15.
If this Tribunal were to allocate points for this condition, as at the claim period, what would it award? To award 10 points, Table 4 provides:
There is a moderate functional impact on activities involving spinal function.
(1)The person is able to sit in or drive a car for at least 30 minutes and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height)
It is fairly clear to this Tribunal from the evidence that, as at the claim period, the applicant may well have had difficulties doing that. He could certainly do something over head height. He could put washing on the line but he could not sustain the activity. There was evidence to suggest he could do it for about three minutes but then it was a matter of lying down and that varied from maybe resting for anything from less than an hour to it affecting him for a couple of days. On that basis one would have to say he could not sustain it.
The applicant does not, at the time of the claim period, appear to have any difficulties doing the tasks set out in the other descriptors, namely: moving his head to look in all directions; bending forward to pick up a light object at knee level; and getting up out of a chair by himself. He could do all those tasks and demonstrated as much to this Tribunal.
However as one only needs to satisfy one out of those four criteria, I would think that he may well qualify for 10 points on the basis of (a).
Could the applicant have a severe functional impact on activities involving spinal function i.e. could he qualify for 20 points? To do so, as at the time of the claim period, he has to be unable to (and again, any one is enough):
(a)perform any overhead activities: no – the applicant can perform an overhead activity;
(b)turn his head or bend his neck without moving his trunk: he can do that;
(c)bend forward or pick up a light object from a desk or table: he can do that;
(d)remain seated for at least 10 minutes: he was certainly able to do that during the hearing.
It is possible that now he may not be able to perform any overhead activities, although I think the evidence was he probably still could. He certainly can bend forward and pick up an item and remain seated for 10 minutes. Again, however, it would be interesting to see what assessment would now be made by a health professional such as his GP, having regard to the descriptors in Table 4 as at today, as opposed to April to July 2016.
As at the claim period, the applicant may well have qualified for 10 points under Table 4 as he has demonstrated some difficulty in sustaining activities over head height. I believe he could not sustain overhead activities. I take sustaining activities over head height to be more than just reaching up over one’s head, and maybe putting out a bit of washing. If one cannot do that for more than a few minutes then, to my mind, one cannot sustain it, although one can certainly perform an overhead activity.
Unfortunately for the applicant, whilst he may well be able to qualify for 10 points under Table 4, the problem is that at the claim period his back condition, which I accept had been causing him trouble for four years beforehand, had only just been diagnosed. As a result of the diagnosis, plans were put in place to help him overcome it – not only just live with it but also hopefully improve it. Those plans were activated from August 2016 onwards and, despite the very best efforts by the Pain Clinic and other health professionals, unfortunately did not overcome the back problems. It is clear to me that they are probably not going to be overcome. In fact, they cannot be overcome.
It was obvious from some documentation in early 2017 that surgery was not an option. That was in one of the documents that was before the Tribunal, dated 28 June 2017 from Dr Fiona Napier-Flood from the Midway Family Medical Centre:
This is to certify that Mr Justin Redman has a degenerative multilevel disc disease as per his latest imaging from 2016. As per letter dated 11th August 2016 by Dr Molloy, Justin is not a suitable candidate for surgery for this condition. His condition tends to deteriorate with time. He has explored numerous options for treatment which have not been successful.
The applicant did explore numerous options for treatment from the time he saw Dr Molloy on 11 August 2016 until June 2017. So, as of April through to July 2016, his back had been fully diagnosed but it had not been fully treated or stabilised. There was still some hope that treatment might work. After a further 12 months, it was not helping and, certainly as at 28 June 2017, there was a definitive indication that his back was not suitable for surgery; it was deteriorating. He had explored numerous options which have not been successful. That 12 month period indicates quite clearly that everything conceivable has been tried. It backs up the evidence from both Ms Dodd and the applicant that his back is not getting any better and it is just not going to get any better. It is a degenerative disc disease and, in fact, it sounds like a pretty horrible one due to the fact that it eats away at some of his discs.
Clearly, as at now, it would be fully treated, stabilised and permanent and highly likely to not get better in a two year period. It is only going to get worse and it is a very different situation now to what it was during the claim period. The situation as at the claim period when the condition had been diagnosed was that there still had to be a period of time to see if treatment would work. That treatment started after the claim period. It is now clear that the treatment cannot make his back better. It can only help manage the pain at best.
Accordingly, as the back condition had not been fully stabilised or fully treated at that point in time no points can be allocated. I am certainly satisfied, on the evidence before me, that it is fully treated and stabilised now.
CONCLUSION
For the above reasons, unfortunately for the applicant, I think the decision of the AAT1 is correct.
There are a couple more things I do need to say. Firstly, I accept the evidence of Ms Dodd that there is some discrepancy back in May 2016 in relation to the Job Capacity Assessment report. It was done on the papers and I think it is common knowledge that there was no face to face interview with the applicant, Ms Dodd and the JCAs during the claim period.
I accept Ms Dodd’s evidence that at that time she had a phone, she has checked the phone and no-one called. I took her evidence to mean that she did not get any calls, even from unknown numbers or numbers that come up as restricted and were probably landline numbers, on her mobile phone that would indicate that she was called. This worries me in that the Job Capacity Assessors indicated they did try to call, admittedly saying without success.
So, putting it at its highest and with the most favourable interpretation to the JCAs, maybe they were confused. They do have a lot of work and may well have made a mistake, but I accept Ms Dodd certainly did not get any calls. Whether the JCAs were calling a wrong number I cannot say. That is quite possible and indeed happens from time to time and may well have occurred in this case. The stuff-up theory, rather than the conspiracy theory, is always the most likely in Australia. It is usually a stuff-up rather than someone deliberately lying or attempting to cover up but, for whatever reason, she was not called.
I fully accept Ms Dodd’s evidence there. Accordingly I am not placing any weight on that Job Capacity Assessment report of May 2016 and at any rate I do not really believe I need to. The Tribunal has before it the medical evidence, the evidence of the applicant and Ms Dodd, and the Tribunal’s own observations.
There is another very important matter the applicant and Ms Dodd raised. They told the Tribunal that it was only as they went along through this process that they found out exactly what they had to do. As a result, they probably went down a few blind alleys in terms of working out exactly what they needed to do for Mr Redman’s claim.
They are not alone in that. That is a criticism that sometimes does crop up in this Tribunal. The Department is a big organisation. There are numerous branches. Obviously some individuals working at the shop face are more experienced and/or able than others. So, it is unfortunate that sometimes people do have experiences that are not good and should, in fact, not occur.
It seems to me, and I will certainly recommend this – and counsel for the respondent can take it back to the respondent for the Secretary’s consideration – that a simple pro forma sheet, in terms of what one needs to do to get a DSP, should be prepared by the Department, distributed to shop fronts and put online so that any shop front officer can simply hand it out to a would-be applicant indicating what they need to do. Any officer taking a call from a client could also advise the client to access it online as well.
The sheet should contain information about what the applicant needs to prove and what evidence he/she needs to provide to facilitate the lodgement of a successful claim. An applicant needs to be aware of the need to have any mental illness problems diagnosed by a psychiatrist or clinical psychologist, and the fact that he/she needs medical evidence to back up his/her various claims. A GP is usually good enough but it is even better if an applicant has a specialist’s report if he/she has undergone specialist treatment.
An applicant needs to have the respective health professional walk him/her through the tables and assess him/her on the tables so that he/she can satisfy the various descriptors relevant to their ailment.
Such a pro forma would make the Department’s job a lot easier too because it would act as a ready reckoner. I would strongly urge the Secretary to have the Department prepare a simple one page checklist to give to prospective claimants so they can go away and do it. (The form should also of course be available online too.) That, I think, would save most people a lot of angst and effort in terms of processing these claims.
The law in relation to the granting of DSP is deliberately tough and sets deliberately hard tests that have to be passed before a pension is granted to applicants. It is hardly likely to change in the near future. It is a matter of making it work better, making it easier to understand and easier for people to actually access, whether they are successful or not. It is, at the end of the day, a matter of “dotting i’s and crossing t’s”.
I would suggest to the applicant and Ms Dodd that they go and see a psychologist or psychiatrist for the mental health issues, take the tables with them and have Mr Redman assessed again, because clearly there are some significant issues at present. I must say I have absolutely no idea what he should get for that in terms of how a psychiatrist (or even his own doctor, who probably can do it now because the applicant has already been diagnosed by the appropriate health professional), would assess him.
In terms of his back – that is now fully treated and stabilised, and clearly points can be allocated there, and that is another issue where I think the applicant should see his doctor again, taking the tables with him so he can be assessed against the relevant descriptors
I think it would be very sensible if Mr Redman got updated assessments because he may well find that he is in a very different situation now to what he was at the claim period and may well be successful now as his back especially cannot improve and will only get worse.
Finally, I just would put on the record my observations made during the hearing in relation to the applicant’s capacity to work from between 15 to 23 hours a week onwards after two years. During discussion on that issue I put forward the hypothetical situation of a job becoming available to the applicant in St Kilda working in a Woolies store doing checkout duties and stacking shelves as required. Due to his mood swings and reaction to stress, not to mention his problems with overhead activities such as stacking shelves, the Tribunal concluded that it would be virtually impossible for anyone to employ him in such a role or indeed any other role that sprung to mind. Because of his mental health issues especially insofar as they manifest themselves in his aggressive reactions to stress, it really would seem unrealistic for him to hold down a job.
The applicant is a man who last had a job in 2014. He has made a significant contribution to the Australian workforce when he was employed but, unfortunately, because of his medical problems he clearly cannot now, in my view.
As I am restricted to looking at the period April to July 2016, and as at that time, the applicant did not qualify for the DSP, I think the decision of the AAT1 is correct, and for the reasons I have given above I affirm the decision under review.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...............[sgd].........................................................
Associate
Dated: 22 December 2017

Date(s) of hearing: 16 October 2017, 17 & 23 November 2017

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

[2017] AATA 2748

23 November 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	16 October 2017, 17 & 23 November 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services