Richards and Secretary, Department of Social Services (Social services second review) - [2018] AATA 2896

Richards and Secretary, Department of Social Services (Social services second review) [2018] AATA 2896 (16 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/1468
Re:John Richards
APPLICANT

Secretary, Department of Social Services And
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:16 August 2018
Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution, decides that Mr Richards was eligible to receive the disability support pension under the Social Security Act 1991 (Cth) as from the date of his claim on 28 August 2015.
[sgd]........................................................................
Member K. Parker
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – heart condition – right leg injury – reactive depression – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised – mental health condition not diagnosed by psychiatrist or clinical psychologist – whether the impairments attracted 20 points or more – whether the applicant had a continuing inability to work – whether the exception under s 7(5) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 applied which meant applicant was not required to complete the usual 18 months of participation in a program of support - decision set aside
Legislation
Administrative Appeals Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – s 23, 26, 27, 94
Social Security (Administration) Act 1999 (Cth) s 42 and Sch 2 – clause 4
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 – s 5, 6, 8 and 11
Social Security (Active Participation for Disability Support Pension) Determination 2014 s 7, 8
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
Sesalim v Secretary, Department of Social Services [2018] FCA 1159
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
REASONS FOR DECISION
Member K. Parker
16 August 2018
INTRODUCTION

On 28 August 2015, Mr John Richards made a claim for the disability support pension (DSP) under the Social Security Act 1991 (Cth) (Act).[1] Centrelink rejected Mr Richards’ claim on 22 December 2015. Mr Richards requested reconsideration by an authorised review officer (ARO) of Centrelink. On 29 April 2016, the ARO affirmed the decision to reject the claim.
[1] The Secretary, Department of Social Services (Secretary) lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the Administrative Appeals Act 1975 (Cth) on 11 August 2017 (T-Documents). Refer T-Documents T14/101.
Mr Richards sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 17 February 2017, the AAT1 affirmed the decision to reject Mr Richards’ claim for the DSP.
On 16 March 2017, Mr Shehata sought review of the AAT1’s decision by the General Division of the Administrative Appeals Tribunal (this Tribunal).
This Tribunal sets aside the decision under review for the reasons to follow.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2:     For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--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.
Note:    For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
(3B)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.
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii)   is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
“training activity” means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a)      education;
(b)      pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
‘Impairment Tables’ is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (2011 Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of functional impact of each impairment.
The following s of s 6 of the 2011 Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:    For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Section 6(1) in Part 2 of the 2011 Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person. Section 6(2) also provides that the person’s medical history must be considered before applying the tables to a person’s impairment.
Further, s 11(3) of Part 2 of the 2011 Determination provides that a descriptor applies when the person can do the activity normally and on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Section 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined in this application, as at the time of the Qualification Period, are:
(a)whether Mr Richards had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised), and were more likely than not to persist for more than two years;
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables. (At the hearing before this Tribunal, Mr Richards gave evidence that he had voluntarily handed in his driver’s licence to VicRoads on account of his ailments and the risk they presented to himself and others in the community if he continued to drive); and
(d)if so, whether Mr Richards had a continuing inability to work. Unless the Tribunal finds that Mr Richards had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), it will also be necessary for the Tribunal to assess whether he had satisfied the program of support requirements as referred to in more detail below.
CONSIDERATION
Mr Richards’ claim for DSP
11.On 28 August 2015, Mr Richard lodged a DSP claim form with Centrelink claiming as follows:[2]
[2] Refer T-Documents T12.
(a)Mr Richards was born on 19 April 1956 (62 years of age);
(b)his preferred spoken and written language is English;
(c)his “disabilities, illnesses or injuries” were listed as:
5 Heart Attacks
Artificial [right] knee
16 screws in [right femur]
(d)he was receiving treatment in the form of “medication, therapy, counselling” for his conditions;
(e)the treatment affected his ability to work or study being that he was unable to lift objects and his mobility was affected;
(f)he did not expect to have an operation in the future;
(g)he had completed Year 11 and held a multi-combination vehicle (MC) licence and a forklift ticket; and
(h)he was “not sure” at that time whether he could do activities that would help prepare him for work.
In accordance with s 42 and cl 4 of Schedule 2 of the Administration Act, a person must qualify for the DSP on the date of their claim or within the following 13 weeks. The relevant qualification period in this case is 28 August 2015 to 27 November 2015 (Qualification Period).
The Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at paragraph [1]:[3]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[3] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
At the hearing, the Tribunal requested that Mr Richards confine his contentions and his evidence about the degree of his impairment as it was at the time of the Qualification Period (and not as at the present moment). The Tribunal made it clear that the assessment as to eligibility was required to be made as at the time of the Qualification Period.
General approach to assessment under the Impairment Tables
The Tribunal notes and adopts the approach to assessment under the Impairment Tables as outlined by Bromberg J in paragraphs [14] to [23] of the recent Federal Court of Australia decision in Sesalim v Secretary, Department of Social Services [2018] FCA 1159. Although this case involved an assessment under Table 5, the observations of Bromberg J apply equally to the assessment exercise to be undertaken with respect to the other Impairment Tables. In particular, the Tribunal notes the observations at paragraphs [21] and [22] as follows (emphasis added):
21. In my view, in the task of assigning a rating, the Determination exhorts assessors to compare and contrast between descriptors having considered the content of the relative descriptors including to the examples (if any) given in each.
22. However, none of that analysis is intended to suggest that the words “no”, “mild”, “moderate”, “severe” and “extreme” used in Table 5 (in both the first and second lines of each descriptor) have no work to do in the rating exercise which the Determination requires. Table 5 does not utilise a grading system based upon the distribution of the population of persons impaired by percentile according to the severity of the person’s impairment. For example, the criteria for the “severe” level of impairment is not the person falls within the 50^th to 75^th percentile of the population of functionality impaired persons due to a mental health condition. The word “severe” cannot be replaced by a number. It is not merely a label, it is part of the essence of the criteria for the third level or grade in Table 5. The ordinary meaning of that word, and that of each of its counterparts, is intended to have application informed by the exercise of comparing and contrasting the levels required by the Determination.
Secretary’s position
The Secretary, Department of Social Services (Secretary) lodged a Statement of Facts, Issues and Contentions with the Tribunal on 30 August 2017 (Secretary’s SFIC). At paragraph [31] of the Secretary’s SFIC, the Secretary accepted that Mr Richards suffered from ischaemic heart disease, right knee injury and depression and that he satisfied the requirements of s 94(1)(a) of the Act.
In relation to Mr Richards’ heart condition, the Secretary did not dispute that it was fully diagnosed, treated and stabilised and that a 10-point rating could be applied under Table 1 for impairment to function requiring physical exertion and stamina based on “the report of Dr Gunasekare, the job capacity assessment report and the AAT1 decision”.
In relation to Mr Richards’ right knee condition, the Secretary’s position was that there was an absence of corroborating evidence of the impairment. As such, the Secretary contended that no rating could be assigned for any impairment to Mr Richards’ lower limbs under Table 3.
In relation to the mental health condition, the Secretary’s position was that there was insufficient evidence of the requisite diagnosis reasonably proximate to the Qualification Period and his mental health condition was not fully diagnosed, treated and stabilised. For those reason, the Secretary contended that no rating could be assigned under Table 5.
Heart condition
For a five-day period in July 2012, Mr Richards was hospitalised at The Alfred Hospital. The discharge summary stated that Mr Richards presented with “STEMI and cardiogenic shock” and he also had “ischaemic heart disease” and “hypertension”. Mr Richards underwent urgent coronary angiography. The angiogram showed that Mr Richards had “severe LAD disease, total occlusion of LCX and moderate RCA disease”. Stents were surgically inserted.[4] During the surgery Mr Richards became unstable and an intra-aortic balloon pump was inserted and subsequently removed the following day. He was discharged with the following recommendation: “Aspirin for life. Tlocagrelor for at least one year. Reopro. IABP with hepitin infusion”. The discharge follow-up was for a “GP review in one week” and a “CAGE OPC in 4/6 weeks”.
[4] Refer T-Documents T3.

The discharge medication summary dated 5 July 2012 listed Atorvastatin 80mg (one table daily); Metroprolol 50mg (half tablet twice a day); Pantoprazole 40mg (one tablet daily); Perindopril Arginine 2.5mg (half tablet daily); Clopidogrel Hydrogen Sulfate-Aspirin 75mg-100mg (one tablet daily).[5]
[5] Refer T-Documents T3/18.
In October 2013, Mr Richards was hospitalised for three days for his heart condition and received a heparin infusion. The admission report stated that Mr Richards had been working hard (as a truck driver). It stated that Mr Richards had been well, but had not been taking his medications.[6] The hospital discharge summary stated that Mr Richards was advised of his requirement to contact VicRoads in relation to his driving responsibilities, that is, not to drive commercial heavy vehicles for three months.[7] It also stated that an angiogram was performed revealing stents and 90 per cent proximal stenosis of small, diffusely diseased [right coronary artery] which was unattractive for [percutaneous coronary intervention]. Mr Richards was counselled about smoking and about taking his regular medications. The rehabilitation plan was listed as “[outpatient] cardiac rehab at CGMC”.
[6] Refer T-Documents T4/26&27.
[7] Refer T-Documents T4/28.
Mr Richards was hospitalised again in December 2014 after collapsing at home.[8]
[8] Refer T-Documents T7.
As at 4 February 2015, Mr Richards’ employer, CST Logistics, stated that he was employed on a casual full-time basis and that he last attended for work on 20 December 2014.[9]
[9] Refer T-Documents T8.
On 29 April 2015, Dr Raigamage Gunasekare, Mr Richards’ general practitioner, issued a medical certificate certifying Mr Richards unfit for work until July 2015. This report stated that Mr Richards had a permanent condition of “ischemic heart disease” and a temporary condition of “depression”. He stated that Mr Richards’ treatment regime was to continue “the current [ischemic heart disease] medications, Atenolol, Perndopril, Co plavicx, Atrovarstin and GTN spray” and “psychologist follow up”.[10] His symptoms were described as low exercise tolerance with past of history of five heart attacks.
[10] Refer T-Documents T9.
On 20 July 2015, Dr Gunasekare issued a further medical certificate certifying Mr Richards unfit for work until October 2015 and describing his symptoms as “breathlessness and feeling tired” with “low mood, anxiety, low energy and appetite”.[11]
[11] Refer T-Documents T10.
On 26 October 2015, Dr Gunasekare issued a medical certificate stating that Mr Richards had a permanent condition of “ischemic heart disease”, of which the symptoms were described as “exertional dyspnoea, lethargy”; and that those symptoms were likely to persist. He was certified unfit for any work or study for eight hours or more per week.
Centrelink completed an Additional Medical Evidence for Disability Support Pension Record form containing a record of medical information provided verbally by Dr Gunasekare on or about 21 December 2015.[12] This record stated:
Dr Gunasekare reported the condition Ischemic Heart Disease is stabilised for now. Dr Gunasekare reported the last time the customer went to hospital in 2014 he was not reviewed by a cardiologist and due to the customer’s concern about feeling light headed and fatigue with a reduction in energy levels a referral was made to The Alfred Cardiology Department to have a Ecogram and follow-up. Dr Gunasekare reported standard tests indicate no change in Heart condition. Dr Gunasekare reported the customer has not undertaken any cardiac rehabilitation programs. Dr Gunasekare reported main issues(sic) is Depression to which the customer is undergoing counselling for. Dr Gunasekare reported no history of right knee condition on medical file. Dr Gunasekare reported if the customer was able to find work that he could physically do it may help psychologically.
[12] Refer T-Documents T14.
On 1 December 2015, a job capacity assessment (JCA) was conducted by a qualified social worker (and two contributing assessors, being a registered psychologist/rehabilitation counsellor and a registered occupational therapist). In the JCA report dated 22 December 2015 (JCA Report), the assessor stated that she considered Mr Richards’ heart condition to be fully diagnosed, treated and stabilised. The JCA assessor also stated:
(a)Mr Richards reported that he was admitted to hospital for similar [cardiac] conditions while he was in New South Wales;
(b)Mr Richards reported Quit smoking programs, acupuncture and hypnotism to assist with decreasing cigarette smoking and that he had cut down his smoking from 75 to 20 cigarettes per day;
(c)that the medical evidence did not note future treatment and that Mr Richards had reported that he had an appointment with the Cardiology Department at the Alfred Hospital for further tests after suffering a brief lapse of consciousness; and
(d)Mr Richard had reported moving to a unit because he was finding it difficult to maintain a house due to his reduced endurance levels.
On 26 September 2017, Dr Gunasekare issued a medical report stating that Mr Richards’ multiple medical conditions had a functional impact on activities requiring physical exertion and stamina. Dr Gunasekare described that impact as “severe”. He said that Mr Richards’ fitness for physically demanding activities were much reduced due to fatigue. He stated that Mr Richards’ “echo scan” in February 2016 showed a mild to moderate segmentally reduced left ventricular systolic function.
In a report dated 14 May 2017, Dr Jeanette Robinson, clinical psychologist, stated that Mr Richards had reported to her that he experienced daily (chronic) fatigue to the point of not being able to carry out normal activities after lunch time and when he experienced fatigue, he suffered anxiety (and panic) because he was worried he might have another heart attack and he could not drive himself to hospital. Dr Robinson made an observation that she considered that Mr Richards was in no physical condition to manage employment.
On the evidence, the Tribunal is satisfied that Mr Richards has suffered from a serious heart condition since July 2012. His condition was diagnosed by Dr Nick Bingham, cardiologist at The Alfred Hospital, and subsequently by his general practitioner. This is consistent with the conclusions of the assessor who conducted the JCA. The Secretary agrees that the heart condition was fully diagnosed.
The Tribunal finds that Mr Richards’ heart condition is fully diagnosed.
Mr Richards has had five heart attacks and been admitted to hospital on a number of occasions for emergency treatment. Stents were inserted in his heart in July 2012. There are no recommendations on foot for Mr Richards to undergo further surgical intervention. He has been prescribed preventative medication. The Tribunal is satisfied that Mr Richards has undertaken all reasonable treatment that has been recommended to him by his medical practitioners, which can reliably be expected to result in a substantial improvement in his functional capacity.
Accordingly, the Tribunal finds that this condition was fully treated and stabilised at the time of the Qualification Period. This accords with the conclusion reached by the JCA assessor and the Secretary agrees that Mr Richards’ heart condition was fully treated and stabilised.
The Tribunal is also satisfied that given the longevity of this condition and the assessment of Dr Gunasekare, this condition was likely to last for two years from the time that Mr Richards made his DSP claim. For this reason, the Tribunal finds that Mr Richards’ heart condition was permanent as at the Qualification Period. Consequently, functional impairment arising from this condition may be assigned a rating under Table 1.
Impairment rating under Table 1 – Functions requiring Physical Exertion and Stamina
The relevant Impairment Table in relation to Mr Richards’ heart condition is Table 1.
The Tribunal notes that the assessors who conducted the JCA considered that a rating of 5 points under Table 1 applied. The Secretary contended that a higher rating of 10 points applied under Table 1. The assessors did not consider that a rating of 10 points applied because Mr Richards had reported that he was able to walk 30 to 40 minutes without a rest break.
The descriptors relevant to a 5-point rating are set out below:
There is a mild functional impact on activities requiring physical exertion or stamina:
(1) The person:
a. Experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
i.Walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
ii.Performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp in a wheelchair) or heavier household activities(e.g. vacuuming floors or mowing the lawn); and
b. Is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
On the evidence (as highlighted in the following two paragraphs), the Tribunal is satisfied that the descriptors set out in (1)(a) clearly applied to Mr Richards as at the Qualification Period. The evidence indicated that if Mr Richards were to undertake the activities described in (1)(a)(i) or (ii) he would invariably (and not just occasionally), begin to experience shortness of breath and/or cardiac pain.
Accordingly, the Tribunal will examine next whether the following descriptors for a 10-point rating applied to Mr Richards:
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; or
ii.perform work related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
On the evidence, the Tribunal is satisfied that the descriptors in (1)(a) applied to Mr Richards as at the time of the Qualification Period. Mr Richards was required to move from a house into a unit, due to difficulties with maintaining the lawn and gardening.[13] He gave evidence at the hearing that he could use public transport provided he was able to get a seat or to lean comfortably while doing so. He said he gave up driving in March 2015 and had not driven since.
[13] Refer T-Documents T15/55.
Mr Richards told the AAT1 in February 2017 that he lived in a one-bedroom flat and says he vacuumed the house “by lying down”. The Tribunal infers from this that Mr Richard needs to be on all fours to undertake the vacuuming and is unable to remain standing while doing so. Mr Richards gave evidence to this Tribunal that he could not hang out his clothes. At the AAT1 hearing, he said he had difficulty hanging out his washing on the line due to lack of energy.
Mr Richards told this Tribunal that on good days, he could walk up to one kilometre but on other days he could not walk as far as 200 metres. He told the AAT1 in February 2017 that he could walk 750 metres to the local shopping area but had to stop to rest in a park halfway. Mr Richards told the AAT1 that he was experiencing tiredness more and more frequently to the extent that he could no longer push his body.
By the time of the Qualification Period, Mr Richard had ceased his employment as a truck driver. The Tribunal accepts Mr Richards’ evidence that if he was physically able to do so, he would still be working in that role.
Mr Richards told the AAT1 that he was required to stop three times as he walked from the train to the Tribunal offices. He said when walking, sometimes he had to rest for five minutes and at other times, for 45 minutes. The Tribunal is satisfied that this would prevent him from being able to walk (or mobilise in a wheelchair) far outside the house and that he would also have experienced difficulty undertaking household tasks at the time of the Qualification Period.
To complete the examination of what rating should apply, the Tribunal compared the descriptors for a 10-point rating to the descriptors set out for a 20-point rating under Table 1, as they applied to Mr Richards. Those descriptors for a 20-point rating are set out below:
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.
Despite Dr Gunasekare’s assessment that Mr Richards’ level of impairment under Table 1 was “severe”, the Tribunal is not satisfied on the evidence that a 20-point rating should be applied under Table 1. The Tribunal considers that the descriptor set out in (1)(b) applied to Mr Richards at the time of the Qualification Period due to his reported tiredness and lethargy at that time. However, the Tribunal does not consider that the other mandatory descriptors in (1)(a) applied to Mr Richards. For instance, Mr Richards’ own evidence was that he was able to complete light household activities albeit experienced difficulties when doing or that he needed to modify the way he which he would undertake those task.
This is a point of distinction between the descriptors for the 10-point and 20-point table. Mr Richards would need to show that he was unable to complete those tasks for the 20-point table to apply. Similarly, the evidence did not indicate that Mr Richards would be unable to walk around a shopping centre or from the carpark into the shopping centre. He could do so; albeit he was likely to have experience difficulty with such activities due to his heart condition. This is another factor in support of a conclusion that Mr Richards’ had a moderate and not severe functional impact on activities requiring physical exertion or stamina, when comparing the descriptors from the 10-point and the 20-point rows in Table 1.
The Tribunal concludes that there was a moderate impact on Mr Richards’ activity requiring physical exertion or stamina and that a 10-point rating should be assigned to Mr Richards’ heart condition under Table 1.
Right knee condition
Mr Richards sustained a serious injury to his right knee about 25 years ago in Sydney. He was hit with a baseball bat by another person, arising from a dispute between them. He claimed that he had an artificial right knee and 16 screws in the right femur. The JCA Report states that Mr Richards underwent reconstruction surgery to his right leg and knee at the Prince of Wales Hospital.[14] He explained that one of the screws was scrapping against the bone and that his femur “was not connected”. The Secretary did not have any evidence to dispute this medical history.
[14] Refer T-Documents T15/54.
Mr Richards gave evidence that he could not stand for longer than five minutes and that the knee caused him pain 24 hours a day, seven days a week. He said that depending on the day any movement of the knee caused him pain. He said he found it difficult to walk on uneven ground (as confirmed in the JCA Report).[15] Mr Richards had also given evidence to the JCA assessor about his inability to remain standing while vacuuming his home. The JCA Report records that Mr Richards had reported that he had a walking ability of 30 to 45 minutes and that he had to rest three to four times when walking to the supermarket. The Tribunal has taken note of the evidence given by Mr Richards’ in relation to his capacity to walk and undertake other activities as at the time of the Qualification Period. His capacity was extremely limited. He told the ARO on 29 April 2016 that he was able to walk 250 to 500 metres depending on the day, before having to take a 45 minute break. On Mr Richards’ claim form he said that he was unable to lift heavy objects and that he had mobility issues.
[15] Refer T-Documents T15/54.
The ARO concluded that the knee condition was not fully diagnosed, treated and stabilised because Dr Gunasekare was unable to provide any medical evidence regarding that condition. The concern the Tribunal has with this approach is that the doctor that Centrelink elected to contact to obtain medical evidence, Mr Richards’ treating general practitioner, was not involved in the treatment of this condition. The right knee injury was sustained decades ago. It was extensively treated at the Prince of Wales Hospital, including with surgical intervention. This medical intervention took place at a time when Mr Richards was living in New South Wales and in not in Victoria where he lives now and where Dr Gunasekare is based. The fact that Dr Gunasekare has not been called upon to recommend any further medical treatment of Mr Richard’s knee condition is another factor which satisfies the Tribunal that this condition has been stable for a significant period of time.
Mr Richards said at the hearing that Centrelink had been provided with the original X-rays and medical report. The AAT1 recorded that X-rays had been provided to it at the hearing. However, that information was not included in the Secretary’s T-Documents.
The Tribunal is satisfied, based on the history provided about this condition including the extensive surgery performed at the Prince of Wales Hospital in Sydney a number of decades ago, that this condition is fully diagnosed, treated and stabilised. The Tribunal is also satisfied that given the longevity of this condition and the extensive medical treatment that had been provided that this condition was likely to last for two years from the time Mr Richards made his DSP claim. For this reason, the Tribunal concludes that Mr Richards’ right leg condition was permanent, which meant that any impairment arising from this condition may be assigned a rating under Table 3.
The descriptors for a 10-point rating to apply as prescribed in Table 3 are set out below:
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
a.    The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b.    The person is unable to use stairs or steps without assistance; or
c.    The person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
a.    Move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
b.    Move around independently using walking aids (e.g. quad stick, crutches or walking frame).

I am satisfied in consideration of the available evidence that a 10-point rating under Table 3 applied to Mr Richards with respect to impairment to his lower limbs at the time of the Qualification Period. Mr Richards was unable to stand for more than 5 minutes as reflected in Mr Richards’ difficulty using public transport unless he could get a seat or at least he could lean comfortably. It is also reflected in his inability to stand while vacuuming his home as reported to the JCA assessor. Accordingly, I find that the descriptor set out in (1)(c) applied to Mr Richards and the evidence supports a finding that the descriptors set out in (2), noting that he experienced considerable difficulty when doing so, and (3) applied to him.
The Tribunal is satisfied that the 20-point rating under Table 3 did not apply to Mr Richards at the time of the Qualification Period as he was able to do the activities set out in descriptor (1) albeit with considerable difficulty. Nevertheless, the Tribunal is satisfied that Mr Richards’ experienced difficulty walking to any significant extent as at the Qualification Period, he was limited in what activities he could do around the home using his lower limbs and for vacuuming needing to modify the way he undertook that task. As reported to the JCA assessor, Mr Richards’ was unable to kneel or squat and he found it difficult to walk on uneven ground. The pain in his knees was constantly presently and significant hindered Mr Richards’ ability to mobilise. He had to downsize him home from a house to a unit on account of his difficulty to undertake garden maintance.
The Tribunal concludes that Mr Richards’ right knee condition had a moderate impact on his lower leg function and that 10 points under Table 3 is assigned for this condition.
Mental health condition
The Tribunal accepts the Secretary’s contention that Mr Richards was not diagnosed with any mental health conditions as at time of the Qualification Period by a clinical psychologist or a psychiatrist, as required by the Introduction to Table 5 in the 2011 Determination. Mr Richards did not dispute this. The Tribunal notes that Mr Richards has received treatment in the form of counselling by a psychologist but this did not take place until after the end of the Qualification Period.
For these reasons, the Tribunal concludes that the claimed mental health condition of depression or reactive depression was not fully diagnosed, treated and stabilised as the Qualification Period. As such, no rating can be assigned to Mr Richards for impairment to his mental health function.
Continuing inability to work
The next step is to determine whether Mr Richards had a continuing inability to work for the purposes of s 94(1)(c) of the Act at the time of the Qualification Period. The requirements necessary to establish whether a DSP claimant had a continuing inability to work are set out in s 94(2) of the Act, as reproduced in paragraph [5] above.
Mr Richards did not, at the time of the Qualification Period, have a severe impairment as defined in s 94(3B) of the Act, because his physical impairments did not attract 20 points under any one single table. Accordingly, s 94(2)(aa) of the Act applies to Mr Richards. Under this section, for Mr Richards to show that he had a continuing inability to work, he must establish that he actively participated in a program of support within the meaning of s 94(3C) of the Act, and the program of support was wholly or partly funded by the Commonwealth.
Were the requirements of s 94(2)(aa) of the Act met - did Mr Richards actively participate in a program of support?
As reproduced in paragraph [5] above, s 94(5) of the Act defines a program of support as a program designed to assist persons to prepare for, find, or maintain work. Under s 94(5), it must also be either funded by the Commonwealth, or be of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find, or maintain work that is funded by the Commonwealth.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Participation Determination) commenced on 3 January 2015. This instrument specifies that a person actively participated in a program of support for the purpose of s 94(3C) of the Act if he or she satisfies the following requirements:
(a)The person complied with the requirements of the program of support and participated in it during the relevant period – as specified in s 7(1)(a) of the Participation Determination. The relevant period in Mr Richards’s case (not having been found to have a severe impairment at the time of the Qualification Period) was the 36-month period ending immediately before the day he was taken to have made his claim for DSP being 26 August 2012 to 27 August 2015 inclusive.
(b)The person must also satisfy one of the following:
(i)They participated in the program of support for at least 18 months during the relevant 36-month period referred to above - as specified in s 7(2) of the Participation Determination; or
(ii)The duration of the program was less than 18 months but they completed the entire program during the 36-month period – as specified in s 7(3); or
(iii)The program was terminated before the end of the 36-month period and was done so because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program – as specified in s 7(4); or
(iv)If the person was participating in a program at the end of the 36-month period and was prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program – as specified in s 7(5).
(c) The person must also satisfy s 7(6) of the Participation Determination which requires them to provide the Secretary with a range of information about the program as listed in subsection (a) to (i).
During the 36-month period identified above, Centrelink’s records indicate that Mr Richards was referred to KGVZ Matchworks Footscray to undertake a program of support on the following occasions:[16]
(a)from 2 July 2014 to 23 September 2014, during which time he engaged in “Stream 1 Activity”;
(b)from 22 January 2015 to 21 January 2016, during which time he was exempted from participation.
[16] Refer T-Documents T25/83&84.
Mr Richards participated in the program for less than three months (as the exempted periods are not to be counted as specified in s 8 of the Participation Determination), during the relevant 36-month period. For this reason, the Tribunal finds that the requirements of s 7(2) of the Participation Determination were not met by Mr Richards.
The Tribunal also finds that the requirements of s 7(3) of the Participation Determination were not met because the evidence did not show that Mr Richards completed the entire program during the relevant 36-month period.
The Tribunal finds that the requirements of s 7(4) of the Participation Determination were not met. The program was not terminated before the end of the 36-month period for the reason that Mr Richards was unable, solely because of their impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program.
The question remaining is whether Mr Richards could satisfy the requirements of s 7(5) of the Participation Determination. Mr Richards satisfied the first element of this being that he was participating in a program at the end of the relevant 36-month period, i.e. on 27 August 2015. The second element is whether he was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation in the program.
The Tribunal has considered the decision of O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277. The Tribunal in that case made the following observations at paragraph [73]:
[73] Section 5(b) of the [2011 Participation] Determination appears to recognise a situation may arise in which a person who is participating in a program of support may, solely because of their impairment, be prevented from improving their “capacity to find, gain or remain in employment.[17]
[17] Subection 5(b) is the earlier 2011 Determination is equivalent to s 7(5) of the 2014 Determination.
…
[75] Ms O’Gorman-Watson submitted that the nature and severity of her condition had prevented her from obtaining any benefit by participating in this program.
…
[79] On consideration of the available evidence in respect of the nature and severity of Ms O’Gorman-Watson’s condition and its effect on her cognitive, communication and physical capacities I have formed the view that she would be unlikely to benefit from a program of support unless it was tailored to meet her specific needs.
[80] There is no evidence to suggest that the program in which Ms O’Gorman-Watson was participating was such a program or that it would assist her to prepare, find or maintain work.
[81] The IDS document which Ms O’Gorman-Watson was forced to obtain under FOI provides little meaningful information. It is full of acronyms and is barely comprehensible. Nevertheless, the document does support her oral evidence in that the program was unable assist her, that she was in fact suspended from the program by Centrelink and was to exit the program.
[82] Neither the IDS nor the Centrelink documents provide a coherent reason for her “suspension” but seem to suggest that it had something to do with her capacity for work.
[83] Furthermore, although the ORS document refers to a period of participation not directly related to the assessment period it does, in my view, support the proposition that Ms O’Gorman-Watson was not able to be assisted by this type of program.
[84] After having considered all the evidence before the Tribunal and for reasons outlined above I have formed the view that during the assessment period Ms O’Gorman-Watson was prevented, solely because of her impairment, from improving her capacity to find, gain or remain in employment through continued participation in the program that she was participating in at that time.
[85] This means that Ms O’Gorman-Watson satisfied the requirements of s 5(5) of the Determination.
Mr Richards treating general practitioner has repeatedly certified Mr Richards as incapable of working due to his physical condition, as referred to in paragraphs [25] to [27] of these Reasons for Decision.
There was no evidence before the Tribunal indicating that KGVZ Matchworks Footscray had tailored the program of support to address Mr Richards’ significant physical limitations. For example, the case manager’s file notes from Mr Richards’ file held at KGVZ Matchworks were not tendered by the Secretary into evidence. Mr Richards’ evidence of his involvement in the program suggested that it was considered that not much could be done to assist Mr Richards, even if attempts were made at developing a tailored program. Mr Richards was subsequently exempted from participation in the program for a significant period of time spanning 12 months (from January 2015 to January 2016), reflective that his medical condition and resulting impairments were such that his doctor did not consider him fit for any work or participation in a program of support during that time.
The Tribunal has considered Mr Richards’ impairments arising from his physical conditions. From this, the Tribunal is satisfied that in the years immediately prior to 28 August 2015, Mr Richards was unlikely to have benefited from a program of support, unless it was tailored to meet his specific needs and his significant physical challenges. It was not clear from the evidence presented in this case that any meaningful efforts were made by the employment service provider to build a customised program for Mr Richards that accommodated his particular significant physical impairments. Without this, the Tribunal accepts Mr Richards’s evidence, and the supporting medical evidence, that his impairments rendered him unable to work (or study) in any capacity.
For these reasons, the Tribunal finds that Mr Richards was prevented, solely because of his physical impairments, from improving his capacity to find, gain, or remain in employment through continued participation in the program that he was participating in at the end of the relevant 36-month period. The Tribunal considers that the circumstances existing in 2015 warranted the employment service provider exiting Mr Richards from the program at that time when it was likely to have been apparent to it that it could not assist him. The Tribunal concludes that at the time of the Qualification Period, the requirements of s 7(5) of the Participation Determination were met in Mr Richards’ case.
The Tribunal is satisfied that the Secretary had been provided with the prescribed information about the program as required by s 7(6) of the Participation Determination.
Accordingly, the Tribunal concludes that Mr Richards has met the requirements under s 7(1)(a), (b), and (c) of the Participation Determination to establish that he actively participated in a program of support. It follows that, as at the Qualification Period, Mr Richards had actively participated in a program of support within the meaning of s 94(3C) of the Act. It was not in dispute that the program was wholly or partly funded by the Commonwealth. Therefore, the Tribunal finds that Mr Richards met the requirements of s 94(2)(aa) of the Act.
Were the requirements of s 94(2)(a) and s 94(2)(b) of the Act met?
The Tribunal must determine whether under s 94(2)(a) of the Act, his “impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years”. It must then assess under s 94(2)(b) whether his “impairment is of itself sufficient to prevent the person from undertaking a training program during the next 2 years”. Section 94(2)(b) also requires the Tribunal to determine, to the extent that Mr Richards was able to undertake such an activity, whether it was unlikely, because of the impairment, to enable him to do an work independently of the program of support in the two years to follow the Qualification Period.
The Tribunal is satisfied that the evidence supports a finding that Mr Richards’ functional impairments resulting from his right knee condition and heart condition, were sufficient to prevent him from doing work independently of a program of support in the two years following the Qualification Period or from undertaking a training activity as defined in the Act. This Tribunal is also satisfied on the evidence that to the extent he could have engaged in such activity, it was unlikely to enable him to work independently of a program of support within the two years to follow the Qualification Period. This evidence included the medical evidence of his treating general practitioner, Mr Gunasekare, as outlined above and the symptoms as at the time of the Qualification Period that he had reported to the JCA assessor (as confirmed in his evidence to the AAT1 and his evidence at the hearing before this Tribunal). The Tribunal considered Mr Richards to be a credible witness and accepts the veracity of the evidence he gave to the AAT1, to this Tribunal and the previous statements he was reported to have made to his medical practitioners and the JCA assessor. The Tribunal gained an impression that Mr Richards may have in fact understated the extent of his impairment as at the Qualification Period – he struck the Tribunal as a stoic individual who was not comfortable identifying as a person who had significant physical and mental health issues.
The Tribunal is satisfied that Mr Richards met the requirements of s 94(2)(a) of the Act. The Tribunal is also satisfied on the evidence that Mr Richards did not have the capacity to undertake a training activity in the two years to follow the Qualification Period or to the extent that he could, that it was likely to have enabled him to work independently of a program of support for more than 15 hours per week within the two years to follow the end of the Qualification Period. Therefore, the Tribunal concludes that Mr Richards also met the requirements of s 94(2)(b) of the Act at the time of the Qualification Period.
For these reasons, Mr Richards had a continuing inability for work for the purposes of s 94(1)(c) of the Act at the time of the Qualification Period.
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that during the Qualification Period:
(a)Mr Richards met the requirement under s 94(1)(a) of the Act;
(b)Mr Richards had impairment to his:
(i)function requiring physical exertion and stamina arising from the condition of ischemic heart disease; and
(ii)lower limb function arising from his right knee injury;
(c)those two conditions were fully diagnosed, treated and stabilised and they were more likely than not to have persisted for more than two years. Therefore, those conditions are permanent within the meaning of s 6(4) of the 2011 Determination;
(d)Mr Richards had a further impairment to his mental health function arising from a condition of reactive depression but this condition was not fully diagnosed, treated and stabilised at the time of the Qualification Period and could not be assigned a rating under Table 5;
(e)the following ratings under the Impairment Tables applied to Mr Richards’ impairments arising from the right knee and heart conditions, which were found to be permanent:
(i)impairment to functions requiring Physical Exertion and Stamina: 10 points under Table 1; and
(ii)impairment to lower limb function: 10 points under Table 3.
Mr Richards’s combined level of impairment arsing under Table 1 and Table 3 is 20 points. The Tribunal concludes that Mr Richards’ met the eligibility requirement as set out in s 94(1)(b) of the Act.
The Tribunal is also satisfied that Mr Richards complied with the program of support requirements under the Participation Determination by the application of s 7(5), and that otherwise he met the mandatory “continuing inability to work” requirement under s 94(1)(c) of the Act.
Accordingly, the Tribunal sets aside the decision of the AAT1 to reject his claim for the DSP and in substitution, decides that he was eligible to receive the DSP as from the date of his claim, being 28 August 2015.

I certify that the preceding eighty five [85] paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]......................................................................
Associate
Dated: 16 August 2018

Date of hearing:

9 October 2017

Representative for the Applicant:

Self-represented

Representative for the Respondent: Tim Noonan, Principal Government Lawyer, Department of Human Services

Date of hearing:	9 October 2017
Representative for the Applicant:	Self-represented
Representative for the Respondent:		Tim Noonan, Principal Government Lawyer, Department of Human Services