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

[2023] AATA 4209

Rich and Secretary, Department of Social Services (Social services second review) [2023] AATA 4209 (20 December 2023)

Division:GENERAL DIVISION

File Number:          2022/7919

Re:Heather Rich

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Professor Ann O'Connell

Date:  20 December 2023

Place:Melbourne

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 12 August 2022 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for the Disability Support Pension at the date of her claim on 3 March 2021.

....................[sgd]....................................................

Senior Member Professor Ann O'Connell

Catchwords

SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – whether the impairments rated 20 points or more under a single heading of the Impairment Tables – whether there was a continuing inability to work – decision under review set aside and substituted with decision that Applicant met eligibility requirements

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4

Cases

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Pignat and Secretary, Department of Social Services [2017] AATA 2745

Secondary Materials

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023

REASONS FOR DECISION

Senior Member Professor Ann O'Connell

20 December 2023

INTRODUCTION

1. This case involved an application for a Disability Support Pension (‘DSP’) by the Applicant, Ms Heather Rich. Ms Rich lodged a claim for a DSP on 3 March 2021, in which she referred to several physical conditions that impacted her ability to work. The claim was rejected by Centrelink on 28 June 2021, and, on 8 October 2021, this decision was affirmed by an Authorised Review Officer (‘ARO decision’) at Centrelink. Ms Rich’s appeal to the Social Services and Child Support Division of this Tribunal (‘AAT1 decision’) was heard on 12 August 2022 and was unsuccessful. On 21 September 2022, the Applicant lodged a further appeal with the General Division of this Tribunal.

2. The hearing was conducted on 7 December 2023 in person. Ms Rich was self-represented and gave evidence under affirmation. The Respondent (‘Secretary’) was represented by Mr Tim Noonan from Services Australia.

3. For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’) and was qualified for DSP at the date of her claim on 3 March 2021.

   BACKGROUND

4. Ms Rich is 53 years old.[1] She lives with her partner and although she manages her self-care, he takes responsibility for most of the shopping, housework and meal preparation.  Her partner assists with tasks such as putting on her shoes. Ms Rich previously worked as a disability support team leader but opted to take a redundancy package in early 2021 because she was struggling to meet her work commitments. She drives a car but does not travel far. She had some work driving a patient to equine therapy at the time of the AAT1 hearing in 2022 but found this to be too difficult. Ms Rich has multiple medical issues and has struggled for many years to address those issues, including financially. It was clearly stressful for her to sit through another Tribunal hearing, and she required frequent breaks. 

   [1]T Documents, 2.

   LEGISLATIVE FRAMEWORK

5. The qualifying requirements for DSP are set out at s 94(1) of the Act. It must be established, inter alia, that:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)…

   (i)the person has a continuing inability to work;

6. Under s 94(2) a person has a ‘continuing inability to work’ if the Secretary is satisfied that:

   (aa)where the impairment is not a severe impairment, the person has actively participated in a program of support (‘POS’);

   (a)the impairment is of itself sufficient to prevent the person from doing any work independently of a POS within the next two years; and

   (b)the impairment is of itself sufficient to prevent the person undertaking a training activity during the next two years; or if the impairment does not prevent the person undertaking a training activity, such activity is unlikely to enable the person to do any work independently of a POS within the next two years.

   ‘Work’ is defined in s 94(5) as 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.

7. Under s 94(3B) of the Act, a person has a severe impairment if the impairment is 20 points or more under a single Impairment Table. Where a person has a severe impairment under a single Impairment Table, it is still necessary to consider if they have an inability to work for at least 15 hours per week due to their impairment. Where a person’s impairment is not a severe impairment under a single Impairment Table, they must have an inability to work and have actively participated in a POS under s 94(3C) of the Act.

8. Ms Rich satisfies the age requirement (s 94(1)(d)) being over 16 years of age, and as she is not under 35 years of age, she was not required to meet the participation requirements in s 94(1)(da). Ms Rich also satisfies the residency requirements (s 94(1)(e) and (ea)) as she was born in and is a resident of Australia.

9. The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the 2011 Determination’).[2] The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Section 6(3) of the 2011 Determination states that an impairment rating can only be assigned if a condition causing an impairment is ‘permanent’ (s 6(3)(a)) and the impairment is ‘more likely than not, in light of available evidence, to persist for more than two years’ (s 6(3)(b)).

   [2]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 came into force on 1 April 2023, but it was accepted that the 2011 Determination was the applicable Determination to deal with the Applicant’s claim.

10. Subsection 6(4) further states that a condition is permanent if the condition has been ‘fully diagnosed by an appropriately qualified medical practitioner’, has been ‘fully treated’, has been ‘fully stabilised’ and ‘is more likely than not, in light of available evidence, to persist for more than two years’.

11. In relation to whether an impairment is ‘fully diagnosed and fully treated’ and ‘fully stabilised’, ss 5, 6 and 7 of the 2011 Determination relevantly state:

    Fully diagnosed and fully treated

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    Note: For reasonable treatment see subsection 6(7).

    Reasonable treatment

    (7)For the purposes of subsection 6(6), reasonable treatment is treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    EVIDENCE

12. The Tribunal took into evidence documents lodged by the Secretary numbering 327 pages and 3 documents lodged by Ms Rich – a report from Dr Marks dated 27 September 2023, a report from Dr Gerard dated 14 June 2023 and a report from her new GP, Dr Wijesena, dated 6 July 2023. The Tribunal also considered oral evidence given by Ms Rich at the hearing. 

13. The Tribunal considered the medical evidence provided which included the following:

    ·A report from Dr Sivapalan dated 14 April 2015 documenting hypertension, depression and morbid obesity;

    ·A discharge note from Box Hill Hospital documenting ulcerative colitis dated 26 April 2018;

    ·Notes from Emergency Department of Eye and Ear Hospital dated 6 January 2016 and 8 January 2017;

    ·Note from Eye and Ear Hospital noting placement on surgical waiting list dated 16 May 2018;

    ·A report from Dr Rizvi documenting ulcerative colitis and morbid obesity dated 29 August 2018;

    ·Reports from colonoscopies dated 13 December 2018 and 13 February 2020; 

    ·A letter from Dr Vasudevan, gastroenterologist, dated 26 March 2020, referring to ongoing treatment of the bowel condition;

    ·A letter from Eye and Ear Hospital dated 24 July 2020 confirming a surgery on 7 August 2020;

    ·A letter from Dr Dodd, Eye and Ear Hospital, notifying postponement of surgery due to high blood pressure and co-morbidities dated 7 August 2020;

    ·A report from Dr Con, gastroenterologist registrar, documenting ulcerative colitis and arthralgias dated 25 February 2021;

    ·A report from Dr Gerard documenting bilateral ear condition dated 20 April 2021;

    ·A report from Mountain Gate Medical Centre documenting chronic disease management arrangements dated 4 May 2021. A further report is dated 7 October 2021;

    ·A report from Monash Health documenting bariatric assessment and possible gastric sleeve surgery dated 22 June 2021;

    ·A referral from Dr Tung to FernHills Clinic for management of depression/anxiety dated 23 June 2021;

    ·A colonoscopy report from Dr Fang documenting ulcerative colitis and reflux dated 9 July 2021;

    ·A letter from Austin Health confirming mastoidectomy and myringoplasty surgery on left ear dated 10 August 2021;

    ·A report from Dr Yeow in support of Ms Rich’s application for a DSP documenting ulcerative colitis, recurrent ear infections and cholesteatoma and class 4 obesity dated 18 August 2021;

    ·A report from Dr Dutt, Box Hill Hospital, documenting ulcerative colitis and joint pain dated 18 October 2021;

    ·A report from Dr Fong, rheumatologist, documenting possible fibromyalgia dated 26 October 2021;

    ·A report from Dr Ghazanfari, Melbourne Arthritis Specialist Centre, documenting possible rheumatism or arthritis dated 16 May 2022;

    ·A report from Dr Yeow in support of Ms Rich’s application for DSP, documenting ulcerative colitis, recurrent ear infections and cholesteatoma, class 4 obesity, anxiety, depression and stress and polyarthralgia, polymyalgia dated 8 August 2022;

    ·A report from Dr Marks documenting attendance at the bariatric clinic since 2015 and noting polycystic ovarian syndrome, impaired glucose tolerance, obstructive sleep apnoea and fibromyalgia dated 27 September 2022;

    ·A report from Dr Gerard documenting bilateral chronic otitis media with cholesteatoma in the right ear and left retraction pocket of the tympanic membrane with pre-cholesteatoma features dated 14 June 2023;

    ·A report from Dr Wijesena documenting ulcerative colitis (inflammatory bowel disease); ear issues (including multiple surgeries), obesity, depression, joint pain, urinary incontinence, obstructive sleep apnoea, polycystic ovary syndrome dated 6 July 2023.

    The Tribunal also considered:

    ·Employment Services Assessment Reports dated 4 May 2015 and 20 October 2016;

    ·A Medical Eligibility Assessment recommendation dated 9 March 2021;

    ·A Job Capacity Assessment Report (‘JCAR’) dated 28 June 2021.

    ISSUES

14. The issues for the Tribunal to determine are:

    (i)the relevant period for Ms Rich’s claim;

    (ii)whether Ms Rich has a physical, intellectual or psychiatric impairment under s 94(1)(a) of the Act; and, if so,

    (iii)whether Ms Rich has a physical, intellectual or psychiatric impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and, if so,

    (iv)whether Ms Rich also has a ‘continuing inability to work’ as defined in the Act as required by s 94(1)(c) of the Act.

    (i) The relevant period

15. The Social Security (Administration) Act 1999 (‘Administration Act’) relevantly provides, at cl 4(1) of sch 2:

    If:

    (a) a person … makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    [emphasis added]

16. As the date of Ms Rich’s claim is 3 March 2021, the period for assessing the Applicant’s entitlement to DSP is, therefore, the 13-week period from that date until 2 June 2021 (‘the relevant period’).

17. In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle, as discussed in Re Fanning and Secretary, Department of Social Services [2014] AATA 447, and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, that medical reports that come into being after the relevant period will only be relevant to the extent that they refer to a person’s condition during the qualification period. The Secretary accepted that the reports dated after the qualification period did relate to Ms Rich’s impairments at the relevant time.

    (ii)Does Ms Rich have a physical, intellectual or psychiatric impairment?

18. Ms Rich has a number of physical impairments. In her application for a DSP, she listed the following (T29, 143):

    ·Inflammatory bowel disease ('the bowel condition’);

    ·Cholesteatomas in both ears;

    ·Obesity; and

    ·Sleep apnoea.

19. The original decision to refuse the application for a DSP was made on 28 June 2021 (T86, 309]. On 8 October 2021, an ARO affirmed that decision. The ARO found that the Applicant had the following conditions (T56, 200-205):

    ·Ulcerative colitis (‘the bowel condition’);

    ·Hearing loss;

    ·Morbid obesity;

    ·Chronic pain.

    The ARO found that the bowel condition was fully diagnosed, fully treated and fully stabilised, the conditions relating to the ears and morbid obesity were fully diagnosed but not fully treated or stabilised, and the chronic pain was not fully diagnosed, fully treated or fully stabilised. The ARO assessed the bowel condition as moderate under Table 10 – Digestive and Reproductive Function, giving a total rating of 10 points under the Impairment Tables. According to the ARO, the other conditions were not permanent and could not be assigned impairment ratings.

20. On 12 August 2022, the AAT1 affirmed the ARO decision (T2, 7-13). It made the following findings:

    (a)The Tribunal accepted that Ms Rich suffered from ulcerative colitis, hearing loss, morbid obesity, chronic pain and a psychological disorder;

    (b)In relation to ulcerative colitis the Tribunal concluded that the condition was permanent i.e. fully diagnosed, fully treated and fully stabilised and likely to last for more than two years;

    (c)In relation to hearing loss the Tribunal appears to conclude that the condition was permanent and could be assigned a rating under the Impairment Tables;

    (d)In relation to morbid obesity the Tribunal appears to conclude that the condition was fully diagnosed but as she was on a waiting list for gastric sleeve surgery, the condition would not be considered fully treated and stabilised;

    (e)In relation to chronic pain the Tribunal noted that she had ongoing symptoms of arthralgia affecting fingers, wrists, knees and ankles, but that she had been referred to a rheumatologist in May 2022 who considered further tests were required to determine the cause of the pain. She had been told that she may have fibromyalgia. As these tests were continuing, the Tribunal concluded the condition had not been fully diagnosed, treated and stabilised in the relevant period;

    (f)In relation to the psychological disorder the Tribunal noted that the condition had not been diagnosed by a psychiatrist or clinical psychologist and so could not be assigned a rating under Table 5 – Mental Health Function. The Tribunal described the condition as not fully treated and stabilised; and

    (g)In relation to other conditions the Tribunal noted that Ms Rich suffered severe sleep apnoea that had been fully diagnosed, treated and stabilised but found it attracted a rating of 0 points (no particular Table was identified). The Tribunal also noted various conditions referred to in medical reports and certificates including: having a single kidney, urinary incontinence and gastro oesophageal reflux but concluded that there was insufficient information to consider these conditions.

21. The Secretary accepts that during the qualification period Ms Rich suffered from impairments, namely ulcerative colitis, hearing loss, obesity, chronic pain, obstructive sleep apnoea, urinary incontinence, anxiety and depression, such that s 94(1)(a) is satisfied. Having considered the evidence before it in the medical reports provided and Ms Rich’s oral evidence, the Tribunal finds that she had these conditions. The Tribunal therefore finds that Ms Rich satisfies s 94(1)(a) of the Act.

    (iii)Does Ms Rich have an impairment rating of 20 or more points under the Impairment Tables?

22. Under s 94(1)(b) of the Act, Ms Rich’s medical conditions must attract an impairment rating of at least 20 points according to the Impairment Tables set out in the 2011 Determination.

1. As noted above, to apply the Impairment Tables, s 6(3) of the 2011 Determination provides that the condition must be considered ‘permanent’ and ‘more likely than not, in light of available evidence, to persist for more than 2 years’. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised (ss 6(4), (5) and (6) of the 2011 Determination) during the relevant period.

2. It is necessary to consider each of Ms Rich’s medical conditions and then consider which, if any, Impairment Table(s) apply. It is then necessary to assess the level of functional impact under the relevant Impairment Table.

   Ulcerative colitis

3. The Tribunal finds, and the Secretary accepts, that Ms Rich’s bowel condition is fully diagnosed. There are hospital admissions in 2016 and 2018 relating to issues with her bowels. There are also two colonoscopy reports (in 2018 and 2020) and a report from a gastroenterologist, Dr Vasudevan, dated 26 March 2020 confirming the disease.  A report from Dr Dutt, a bowel disease specialist at Box Hill Hospital, dated 18 October 2021 confirmed the diagnosis and noted this was a lifelong condition. Reports from her GP, Dr Yeow dated 18 August 2021 and 7 October 2021 confirmed the diagnosis of ulcerative colitis from 2018. 

4. The next issue is whether this condition is fully treated and fully stabilised. In order to assess whether a condition is fully diagnosed, treated and stabilised, it is necessary to consider: what treatment or rehabilitation has occurred (s 6(5)(b) of the 2011 Determination); whether treatment is still continuing or is planned in the near future (s 6(5)(c) of the 2011 Determination); and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years (s 6(6)(a) of the 2011 Determination).

5. In relation to treatment that has occurred, Dr Dutt notes that Ms Rich has 8-weekly infusions and although she has been found to be intolerant of certain medications, has responded well to infusion therapy. This treatment is likely to continue for the foreseeable future. This treatment has improved her symptoms but according to a report from her GP in August 2022 she was still suffering from abdominal discomfort, stool urgency and loose motions.

6. Based on the medical evidence and Ms Rich’s oral evidence, the Tribunal concludes that the ulcerative colitis condition is fully treated and fully stabilised and is likely to last from more than 2 years.

7. As this condition is permanent, it is necessary to consider the Impairment Tables. The original decision maker, the ARO and AAT1 considered the appropriate Table to be Table 10 – Digestive and Reproductive Function. There was some discussion as to whether Table 13 – Continence Function, might be more appropriate but ultimately the Tribunal concludes that Table 10 is most appropriate to deal with the symptoms which include but are not limited to incontinence. The introduction to Table 10 provides that symptoms of digestive conditions ‘include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue’.

8. Table 10 of the Impairment Tables, like the other Tables, lists 5 possibilities:

   (a)     No functional impact (0 points);

   (b)     Mild functional impact (5 points);

   (c)      Moderate functional impact (10 points);

   (d)     Severe functional impact (20 points); and

   (e)     Extreme functional impact (30 points).

9. Previous decision makers have assigned a rating of Moderate i.e. 10 points under Table 10:

10

There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1)        At least two of the following apply to the person:

(a)       the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b)       the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;

(c)       the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

1. The evidence before the Tribunal relating to the functional impact of the ulcerative colitis includes reports from her GP, Dr Yeow, in August 2021 that she suffered abdominal discomfort and loose motions that impacted her ability to work in disability support. A bowel disease specialist concluded in October 2021 that her condition was ‘lifelong’ but that symptoms are mild and fluctuate. Ms Rich gave evidence that her bowel condition was debilitating and embarrassing and required her to always be near a toilet. She said she found it difficult to sit for 3 hours without a break. She needed several breaks during the hearing to go to the toilet. Based on the medical reports and Ms Rich’s oral evidence, the Tribunal finds that this condition is moderate and attracts a rating of 10 points.

   Loss of hearing

2. The Tribunal finds, and the Secretary accepts, that Ms Rich suffers from hearing loss and has frequent ear infections bilaterally, causing tinnitus, earache, hearing loss and vertigo. She initially presented at the Eye and Ear Hospital in January 2016 and again in January 2017. She had surgery on her right ear in 2018 and in 2019 but this has not significantly improved her hearing and balance. There are audiograms that show hearing loss in both ears (T45). Her GP, Dr Yeow, noted in August 2021 that she had been diagnosed with cholesteatoma and external ear polyp and that she had received right mastoidectomy and myringoplasty in 2018. He noted that she was on a waiting list for surgery to the left ear. A report by Mr Gerard, an ENT specialist, dated 20 April 2021 confirmed the diagnosis. The Tribunal finds that the condition is fully diagnosed.

3. The next issue is whether the ear condition is fully treated and fully stabilised. The ARO concluded that the condition was not fully treated and stabilised as a result of the pending surgery on the left ear. The Tribunal in AAT1 concluded that as her right ear surgery had not resulted in any real improvement it was unlikely that further surgery would result in much functional improvement. The Tribunal in AAT1 appears to accept that the condition is fully treated and stabilised. Given the lack of success in relation to the right ear, the Secretary accepts that the proposed treatment is unlikely to result in significant functional improvement. The Secretary accepts, and the Tribunal finds, that the ear condition is fully treated and fully stabilised and therefore permanent, and likely to persist for more than 2 years.

4. It is therefore necessary to consider the Impairment Tables. The relevant Table is Table 11 – Hearing and other Functions of the Ear. Ms Rich gave evidence that she had chronic ear infections and experienced dizzy spells and balance issues. She has difficulty hearing conversations in a room with background noise and on the telephone. She has not been able to use hearing aids and often feels nauseous. The Tribunal in AAT1 assigned a rating of mild and attracts a rating of 5 points.

5

There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.

 (1)       The person:

(a)      has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and

(b)       may use a hearing aid, cochlear implant or other device; and

(c)       has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or

(2)       The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).

1. Ms Rich gave evidence that she has trouble hearing conversations in a room with background noise and on the telephone. She also has balance issues and ringing in the ears that impact on her ability to communicate. The Tribunal accepts, and the Secretary agrees that this condition attracts a rating of 5 points.

   Morbid obesity

2. The Tribunal finds that Ms Rich suffers from morbid obesity and the Secretary accepts that this condition was fully diagnosed at the relevant time. She presented at Box Hill Hospital in August and October 2018 and the report from the gastroenterologist notes ‘Morbid obesity – awaiting bariatric surgery’. An assessment by Monash Health dated 22 June 2021 notes that Ms Rich had a BMI of 58.3 resulting in Class 4 obesity. The assessment notes that gastric band surgery is an option, but ideally ulcerative colitis needs to be in remission.

3. The next issue is whether the condition is fully treated and fully stabilised. A report from her GP, Dr Yeow, in August 2021, noted that Ms Rich is on a waiting list, but that surgery was delayed as a result of ulcerative colitis. He noted that Ms Rich is on medications ‘Ozempic injections to control her weight and [to keep] blood pressure under control’. In August 2022, Dr Yeow noted that Ms Rich had stopped having the injections as she could not afford them. A report from Dr Marks of Monash Health, dated 27 September 2023 confirmed that she had been a patient of the bariatric clinic since 2015. Although gastric sleeve surgery is proposed, the ongoing ulcerative colitis means that there is unlikely to be any improvement in the condition in the foreseeable future. The Tribunal finds that the obesity condition is fully treated and stabilised (i.e. permanent) and likely to persist for more than 2 years.

4. The next issue concerns assessing the functional impact of the condition and identifying the relevant Table. Dr Yeow reported in 2021 and 2022 that Ms Rich’s weight had been causing pain in her joints especially in her low back and knees and that this restricted her ability to walk, stand and sit. He noted (T65, 222):

   Recently [Ms Rich] was assessed by a rheumatologist Dr Farshad Ghazanfari, and tests and investigations were ordered to exclude inflammatory bowel related arthropathy.

   This condition has impacted her life significantly…

   The pain in her low back, hips and knees affected her ability to walk, stand or sit. She has reduced endurance. She requires help from her partner to put on shoes, clothing and assistance with shower.

   Her weight is also affecting her quality of sleep. She needs to use CPAC mask due to obstructive sleep apnoea and the pressure from the mask is causing discomfort. 

   Dr Yeow opined that the condition should be rated as moderate. Ms Rich no longer sees Dr Yeow as the practice does not bulk bill. Her new GP, Dr Wijesena, in a report dated 6 July 2023 noted that obesity was ‘debilitating her mobility’, noting she ‘uses a 4 wheeler for walking’, and that she suffers from joint pain. Dr Marks noted the need to delay gastric sleeve surgery due to the bowel condition, but that she was ‘in constant pain and is unable to be active’. Dr Marks also noted that Ms Rich’s ‘weight is now impacting dramatically on her ability to be active’. The Tribunal notes that the reports from 2022 and 2023 are outside the qualifying period, but the representative of the Secretary accepted that the situation was unchanged from the relevant period.

5. The Secretary argued that there was insufficient evidence to conclude that any functional impairment was solely caused by the obesity. The Secretary contended that the loss of functional capacity was the result of several conditions as well as obesity i.e. polyarthralgia, polymyalgia, rheumatoid arthritis and fibromyalgia, and that some of these conditions were not (at the relevant time) fully diagnosed, treated and stabilised. The Secretary referred to the case of Pignat and Secretary, Department of Social Services [2017] AATA 2745, where it was said:

   21. I accept that, at least in some cases, it will be impractical to isolate the contribution of a particular condition towards an impairment when a number of other conditions also contribute to that impairment. I also accept this is beneficial legislation. In those circumstances, I accept a permanent medical condition need not be the only contributor to impairment before that impairment can be assessed, at least in cases where it would be practically impossible to isolate the contribution made by a permanent condition as opposed to another, non-permanent condition.

   In that case, the Tribunal decided that based on the medical evidence, the applicant’s impairment did not result from the permanent medical condition of hypothyroidism because that condition did not make an appreciable or real contribution to the fatigue.

6. The Tribunal finds that, on the basis of the medical evidence and Ms Rich’s oral evidence, it is possible to say the obesity, being a permanent medical condition, made a real or operative contribution to the functional impairment. 

7. It is therefore necessary to consider which Table is most appropriate to apply. The Secretary referred the Tribunal to Table 3 – Lower Limb Function and Table 4 – Spinal Function, but accepted that Table 1 – Functions requiring Physical Exertion and Stamina, would also be appropriate. The Tribunal takes the view that Table 1 is most appropriate on the facts as it takes into account functions of the whole body. The Tribunal also notes that ss 10(3) and (4) of the 2011 Determination provide that where a single impairment causes multiple impairments, impairment ratings under more than one Table must not be assigned. The issue therefore is what rating to apply. Dr Yeow opined that the appropriate rating was moderate which would give 10 points, but it is not clear how much experience he had in applying the Tables. The relevant items in Table 1 are as follows:

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).

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.

1. In addition to the medical reports noted above, Ms Rich gave evidence that she cannot walk around the supermarket unassisted, cannot use public transport and has difficulty sitting for a period of 3 hours. She relies on her partner to do cooking and shopping and household duties. On the basis of the evidence, the Tribunal finds that her condition is severe and attracts a rating of 20 points under Table 1.

   Chronic pain

2. Ms Rich suffers from joint pain that has been variously attributed to polyarthralgia, polymyalgia, rheumatism and/or fibromyalgia. Dr Yeow noted in August 2022 that she complained of pain in her neck, arms, lower back, hips and legs and had weakness in her arms and fingers. Dr Ghazanfari, musculoskeletal physician, reported in May 2022 that a likely diagnosis was fibromyalgia or rheumatism, but suggested a nerve conduction study through private health rather than waiting for the public health system.

3. The Secretary contends that the reference to future investigations means that the impairment cannot be treated as fully diagnosed (or treated or stabilised).

4. However, it may be that her other conditions (i.e. ulcerative colitis and/or morbid obesity) are causing the chronic pain – the Secretary accepts that her pain is multifactorial (Respondent’s SFIC, [52]). As the bowel and obesity conditions are fully diagnosed, treated and stabilised and have been given a rating under the Impairment Tables, it seems likely that a consideration of the chronic pain would not result in any additional rating. In this regard, it is noted that where multiple conditions cause a common impairment a single rating should be applied (ss 10(5) and (6) 2011 Determination).

   Other conditions: obstructive sleep apnoea, urinary incontinence, anxiety and depression

5. Various medical reports and certificates mention other conditions. In relation to sleep apnoea, Dr Yeow reported on 7 October 2021 that Ms Rich wore a CPAP mask. She gave evidence in the AAT1 hearing that she had done so for 6 years. The Secretary accepts that this condition is fully diagnosed, treated and stabilised. The Tribunal in AAT1 determined that the condition had little or no functional impact and therefore attracted no rating under the Tables. The Tribunal notes that wearing a mask will cause discomfort but in the absence of any additional information accepts that the condition does not attract an impairment rating.

6. In relation to urinary incontinence, this is verified by Dr Wijesena (July 2023) where it is noted ‘uterine prolapse +/- on wait list to GYNEACOLOGY CLINIC -EH- - as unable to afford private GYNEACOLOGIST’. The Secretary accepts that the condition is fully diagnosed, but as the applicant is awaiting treatment, it is not fully treated or stabilised. No other information was provided in relation to the condition and so it is not possible to consider its functional impact.

7. In relation to anxiety and depression, it is clear that Ms Rich suffers from a psychological condition. This was documented by her then GP, Dr Sivapalan in 2015 with onset noted as 2012. This was verified by her GP, Dr Yeow, in October 2021. Ms Rich gave evidence that she suffers from depression and anxiety with panic attacks and feelings of hopelessness. No doubt the condition is exacerbated by her other chronic health conditions. Ms Rich has taken antidepressants on and off for years and has seen a psychologist intermittently. The problem for the Tribunal is that the 2011 Determination, Table 5 – Mental Health Function, requires a diagnosis to have been made by a psychiatrist or clinical psychologist. As this has not occurred, it is not possible to assign any points under the Impairment Tables for this condition.

   Total Impairment Rating

8. The Tribunal determines that Ms Rich has the following impairment ratings:

   ·10 points under Table 10 for ulcerative colitis;

   ·5 points under Table 11 for hearing loss;

   ·20 points under Table 1 for morbid obesity.

   This gives a total rating of 35 points. This means that Ms Rich has satisfied the requirements of s 94(1)(b).

   (iv)Does Ms Rich also have a ‘continuing inability to work’?

1. Under s 94(1)(c) Ms Rich must have a ‘continuing inability to work’ because of the impairments. Under s 94(2) the test differs depending on whether the person has a ‘severe impairment’. Under s 94(3B) a ‘severe impairment’ means an impairment of 20 points or more under a single Impairment Table. Only in cases where the person’s impairment is not a ‘severe impairment’ the person must have actively participated in a POS (s 94(2)(aa)); and in all cases:

   ·the impairment must prevent the person from doing any work independently of a POS whether skilled or unskilled within the next two years (s 94(2)(a)); and

   ·the impairment must also prevent the person from undertaking a training activity during the next two years (s 94(2)(b)).

   As noted above, ‘work’ means work that is of at least 15 hours per week at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5)).

2. Ms Rich has an impairment rating of 20 points under a single Table. There is, therefore, no need to consider whether Ms Rich has actively participated in a POS as required by s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014). The Determination requires the person to have actively participated in a POS for at least 18 months in the 3 years immediately prior to making the claim i.e. before 3 March 2021 (s 5(1)(a) definition of relevant period). The Secretary submitted that there was no participation during the relevant period. Ms Rich gave evidence that she had participated in a POS, but this occurred after she made her claim for DSP. According to Ms Rich the POS did not assist in helping her to find suitable employment.

3. In relation to the continuing inability to work requirement under s 94(2)(a) and (b), the Tribunal must also be satisfied that Ms Rich’s impairments prevent her from doing any work, or training activity independently of a POS whether skilled or unskilled within the next two years. The JCAR dated 28 June 2021 assessed her work capacity at less than 15 hours per week over the next 12 months to enable for treatment of ear condition, morbid obesity and chronic pain. The report concluded:

   ‘Overall, client is expected to have difficulty meeting the attendance and performance requirements of paid employment at more than 15 hours per week, however, with [further treatment and support] it is reasonable to expect that she may achieve this work capacity within two years’.

   As there has been no change in her conditions over the past 2 years, such an assessment seems overly optimistic.

4. Dr Yeow’s report dated 8 August 2022, comments on the functional impact of her conditions:

   ·In relation to ulcerative colitis, he notes Ms Rich ‘has found it difficult to complete her task’ [as a disability support worker]. He notes that ‘the pain and discomfort has also affected her mental health significantly… She often feels fatigue easily and complains of brain fog’.

   ·In relation to her ear condition, Dr Yeow notes, ‘[s]he is having difficulty hearing and talking to her clients due to earache, ringing noise and hearing impairment. This has impacted on her ability to do her work’.

   ·In relation to obesity, Dr Yeow notes that ‘[t]his condition has impacted her life significantly… The pain in her lower back, hips and knees affected her ability to walk, stand or sit. She has reduced endurance’.

   ·In relation to her mental health condition, Dr Yeow notes that this has had a significant impact on her, including that she has ‘lost the motivation to work and help others’.

   ·In relation to chronic pain, Dr Yeow notes that she has ‘generali[s]ed pain daily’ and that this has affected her ability to do normal household tasks and that the pain has also affected her ability to walk or exercise and that in turn has caused her to put on more weight. 

5. Dr Marks’ report dated 27 September 2022 notes that Ms Rich’s weight ‘is now impacting dramatically on her ability to be active’. Dr Wijesena’s report dated 6 July 2023 states, ‘[i]n my opinion she needs financial support (deserves NDIS) so she can access health services to minimise getting worse from the Multiple co morbidities. She struggles with the very little work she is doing due to her underlying medical conditions’. The reference to Ms Rich working was referred to in the hearing.  Ms Rich gave evidence that although she had worked for a short period of time in 2022 providing disability support for a couple of hours per week, she no longer did that work as the driving was exhausting her. Based on the evidence of Ms Rich’s medical advisers, and Ms Rich’s oral evidence, the Tribunal concludes that Ms Rich is unable to undertake any work and that this was also the case in the qualifying period. The Tribunal finds further that this is likely to continue for the foreseeable future with little prospect of improvement.  

6. The Tribunal finds that Ms Rich’s impairments prevent her from doing any work of at least 15 hours per week for the next two years. Ms Rich has a continuing inability to work as required by s 94(1)(c) of the Act.

   CONCLUSION

7. The Tribunal finds that Ms Rich did satisfy ss 94(1)(a), (b) and (c) of the Act during the relevant period. As a result, Ms Rich did meet the qualification requirements for DSP at the date of claim on 3 March 2021.

   DECISION

8. The Tribunal sets aside the decision of the Social Services and Child Support Division
   of the Administrative Appeals Tribunal dated 12 August 2022 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act1991 (Cth) and was qualified for the Disability Support Pension at the date of her claim on 3 March 2021.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Professor Ann O’Connell

.................[sgd].......................................................

Associate

Dated: 20 December 2023

Date(s) of hearing:	7 December 2023
Date final submissions received:	16 November 2023
Applicant:	In person
Advocate for the Respondent	Tim Noonan, Services Australia