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

[2019] AATA 23

RJZQ and Secretary, Department of Social Services (Social services second review) [2019] AATA 23 (15 January 2019)

Division:GENERAL DIVISION

File Number:           2018/3097

Re:RJZQ  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:15 January 2019

Place:Perth

The Tribunal affirms the decision of the AAT1.

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

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension – medical conditions – chronic renal failure – past thyroid cancer – heart disease – epilepsy – depression – gout – hypertension – shingles – qualification period – impairment tables – 10 month program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c),
s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)

Social Security (Administration) Act 1999 (Cth) – s 179, Sch 2 cl 4 (1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 5, s 7(1), s 7(2)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5),
s 6(6), s 6(7), s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1)(c)
Department of Social Security, Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.251, 2 January 2019)

REASONS FOR DECISION

Member C Edwardes

15 January 2019

THE APPLICATION

1. This is an application for review of a decision of the Social Services and Child Support Division of the Tribunal (the AAT1) made on 15 May 2018 (T2).  The AAT1 affirmed a decision to reject the Applicant’s claim for the Disability Support Pension (the DSP) which was lodged by the Applicant on 31 March 2017 (T4, 10).

   INTRODUCTION

2. On 31 March 2017 the Applicant lodged a claim for the DSP detailing medical conditions of “high blood pressure, damaged heart, damaged kidneys, low energy levels from operation, gout, shingles, dizzyness (sic) – sometimes, epilepsy (history of)” (T11, 128).

3. The claim was rejected by a Centrelink officer and the Applicant was advised of this rejection by letter dated 11 November 2017 (T25, 159-160).  The rejection of the claim was on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more.

4. The Applicant requested review of the Centrelink officer’s decision by Centrelink (T36, 192).  The review was undertaken by an Authorised Review Officer (ARO) and the Applicant received notification of the review outcome on 20 February 2018, which was to affirm the decision of the Centrelink officer (T40, 195-202).

5. The ARO advised the Applicant of a number of findings (T40, 196):

   Your conditions of ischaemic heart disease, depression, previous thyroid cancer, uncontrolled hypertension, chronic renal failure, shingles, dizziness and gouty arthritis are not accepted as being permanent as they have not been fully treated and stabilised.

   You do not have an impairment rating for your medical conditions.

6. The Applicant subsequently lodged an application with the AAT1 to review the decision (T41, 203-208).  The AAT1 affirmed the decision on 15 May 2018 (T2, 4-13).  The AAT1 determined that the Applicant had generated an impairment rating of five points under the Impairment Tables (T2, 10).

7. The AAT1 found the following in respect to each of the medical conditions:

   ·the Applicant’s chronic renal failure is fully diagnosed, treated and stabilised (FDTS) with a mild impairment warranting five points;

   ·the Applicant’s past thyroid cancer has no current functional impact and generates no impairment points;

   ·the Applicant’s heart disease arose after the Applicant’s DSP claim was lodged and has no significant functional impact and warrants no impairment points;

   ·the AAT1 had insufficient information before it to consider an impairment rating with regards to the Applicant’s epilepsy;

   ·the Applicant’s depression had not been confirmed by a psychiatrist or clinical psychologist for the AAT1 to be able to consider an impairment rating; and

   ·there was insufficient medical information before the AAT1 to consider an impairment rating for the Applicant’s gout (T2, 8-10).

8. The Applicant lodged an application for review of the AAT1’s decision with the General Division of the Administrative Appeals Tribunal (the Tribunal) on 29 May 2018 (T1, 1-3).

9. The application for review that the Applicant lodged with the Tribunal stated (T1, 2-3):

   I was asked to prove I have an incurable disease which I have done. I’m doing my best to improve my health.  Not being able to work is making this goal alot (sic) harder.  I tire and lose concentration, which can pose a danger.  Struggling financially is making my health worse.  If I could work I would.  But who’s going to employ me with all my conditions.  I have bad teeth and I can’t afford to fix them.  This points system is totally wrong.  I’ve shown how many disabilities I have.  Physical impairments.  I’m not lying.  I’m suffering mentally.  Am seeing my Doctor and a Psychiatrist.  This is because of my health problems.  And the financial situation its put me in.  I can’t find work because im to (sic) physically and mentally unwell.  I am trying my hardest not to be.  Please look at my situation and help me get back to normal.  I need financial stability to get my health back.

10. The Tribunal has jurisdiction to hear this application pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) which states:

    (1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act. (Original emphasis.)

    RELEVANT LEGISLATION

11. The relevant provisions governing eligibility for the DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.

12. Section 94 of the Act provides the criteria for the DSP, relevantly:

    (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)    …

    Assessing impairments and assigning an impairment rating

13. The “Impairment Tables” referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.

14. Section 94(1)(b) of the Act obliges the Tribunal to determine whether the Applicant’s impairments are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    [5]… The Tables are function-based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impairment.  Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6]The Tables may only be applied after the person’s medical history has been considered.  An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. (Original emphasis.)

15. Sections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

16. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied…”

    Continuing inability to work

17. As detailed above in s 94(1)(c)(i) of the Act, a criterion for qualifying for the DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:

    (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.

    (Emphasis added.)

18. “Severe impairment” is defined in s 94(3B) of the Act:

    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. (Original emphasis.)

19. Section 94(3C) of the Act states that:

    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. (Original emphasis.)

20. Relevantly, s 5, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Active Participation Determination) require, generally, that a person is to participate in a program of support (POS) for 18 months in the 36 months prior to the date of the relevant claim for the DSP.

    Qualification Period

21. Section 94 of the Act must be read in conjunction with Sch 2 cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2 cl 4(1) of the Administration Act, there is a 13 week qualification period for the DSP. The Tribunal is required to determine the Applicant’s claim for the DSP in the 13 week period commencing on the day on which the Applicant’s claim for the DSP was registered with Centrelink, and concluding 13 weeks after that day. In the present case, the Applicant’s claim for the DSP was filed on 31 March 2017 (T11, 103). The Tribunal finds that the 13 week period is from 31 March 2017 to 30 June 2017 inclusive, and is known as the “Qualification Period”.

22. For a claim to be successful, a person must be qualified for the DSP during the relevant qualification period.  Changes in medical conditions that occur later are not relevant to the claim.  They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1]).

23. The Tribunal is also assisted by The Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.251, 2 January 2019) (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    ISSUES

24. The key issue for the Tribunal to determine is whether the Applicant was qualified for the DSP during the Qualification Period for the purposes of s 94(1) of the Act.

25. This requires consideration of whether at the time of the Qualification Period:

    (a)the Applicant had a physical, intellectual or psychiatric impairment;

    (b)if so, whether the impairment(s) attracted ratings of at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a “continuing inability to work” as defined in
    s 94(2) of the Act.

    EVIDENCE

26. The application was heard in Perth on 30 November 2018.  The Applicant was self-represented and appeared in person.  The Respondent was represented by Ms Inglis and appeared by phone.

27. The Tribunal would like to thank the parties for the assistance they provided during the hearing.

28. The Tribunal had the following evidence before it:

    ·Medical report by Ms Janet Pinto Correia (Clinical Psychologist) dated 23 July 2018 (Exhibit A1);

    ·T documents (T1-T46, 1-259) (Exhibit R1); and

    ·Secretary’s Statement of Facts, Issues and Contentions dated 31 August 2018, including Annexure A and Annexure B (Exhibit R2).

29. The Tribunal has reviewed all of the material before it.  The Tribunal is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing.  Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

30. The Respondent made the following contentions in respect to the medical conditions of the Applicant (R2, 6-9):

    Epilepsy

    31.In accord with the AAT1 decision, the Secretary contends that this condition was not fully treated and stabilised during the qualification period.

    32.The Applicant reported to the AAT1 that he had a number of seizures in his twenties and was diagnosed with epilepsy.  He took tablets for a while, but gradually ceased taking them.  He has not had a fit for the past 25 years and has been cleared for driving (T2/9).

    33.Reports from Dr Siew Chong, Renal Specialist, dated 1 June 2017 and 8 September 2017 note that the Applicant has been seizure free for over 25 years (T15/144; T22/153).

    34.Epilepsy is listed as one of the Applicant’s conditions in a Patient Health Summary provided by Amazon Family Practice dated 9 January 2018, however, no further information is provided (T33/185).

    35.The Disability Support Pension Medical Assessment (DMA) dated 29 January 2018 considered that this condition was unable to be assessed due to the absence of medical evidence or specialist reports (T36/191). The ARO took the same view (T40/197).

    36.The Secretary contends, therefore, that there is insufficient evidence to consider this condition fully treated and stabilised during the qualification period.  Even if the Tribunal were to disagree, the Secretary contends that there is no evidence of any functional impact, in light of the Applicant’s evidence at the AAT1 hearing.

    Chronic Renal Failure

    37.The Secretary contends that this condition was fully diagnosed, but not treated and stabilised within the qualification period.

    38.The Applicant reported at the AAT1 hearing that his kidney problem cannot be cured, and that one day he may need dialysis or possibly a transplant.  He reported being under the care of kidney specialist Dr Chong, whom he sees every six months.  He is taking blood pressure tablets but apart from lifestyle changes, has no other special treatment (T2/8).

    39.A medical certificate completed by GP Dr Sarit Kanungo. dated (sic) 10 May 2017 notes that this condition is ‘temporary??’; with a prognosis of less than three months; and that the Applicant is awaiting specialist review (T14/143).

    40.In a report dated 1 June 2017, Dr Siew Chong states that the Applicant’s chronic kidney disease is likely secondary to hypertensive nephrosclerosis; that he should have a low salt diet; keep his blood pressure well controlled; and loss (sic) weight (T15/144).

    41.A further letter from Dr Chong dated 22 June 2017 notes that the Applicant’s renal biopsy showed severe acute tubular necrosis with an unknown cause. Dr Chong states:

    The only possible link was ongoing marijuana use which is long standing. I have asked [the Applicant] to stop using marijuana, and he has agreed...I have asked [the Applicant] to have blood tests today. I’ve started him on Prazosin 0.5mg bd and he will check his BP at the local pharmacist…He has an appointment to see the dietitian and I have reminded him to start on his 50mg of Allopurinol.

    42.A DMA dated 8 November 2017 considered that there was insufficient medical evidence to confirm that the condition was stabilised and that optimal treatment had been completed (T24/157).

    43.A letter from Dr Chong dated 7 February 2018 states that:

    ‘[The Applicant] sees me for moderately advance [sic] chronic kidney disease which is likely progressive and incurable.’

    44.The Secretary notes that this letter postdates the end of the qualification period. The Secretary also notes that the AAT1 decision misstated the date of this letter as being 7 February 2017 (T2/8).

    45.The Secretary contends that during the qualification period, treatment was ongoing for this condition. Further, the condition cannot be considered fully stabilised during the qualification period, as the Applicant was yet to cease using marijuana, linked to the acute tubular necrosis.

    46.The Applicant gave evidence to the AAT1 that he gets tired easily; he lives alone; he attends to his own domestic chores including cooking, cleaning and laundry; he can drive and do his own shopping; on most afternoons he is able to complete a 15km bike ride; he may go for a walk; his mother helps him now and then; and he may sleep during the middle of the day (T2/8).

    47.In light of the above evidence, if the Tribunal considers that this condition is fully treated and stabilised (which is not conceded), the Secretary agrees with the AAT1 that the maximum rating this condition can be assigned is 5 points under Table 1 of the Impairment Tables.

    Past Thyroid Cancer

    48.The Secretary accepts that this condition was fully treated and stabilised during the qualification period, but cannot be rated under the Impairment Tables.

    49.A hospital discharge summary dated 6 March 2015 notes that the Applicant had a total thyroidectomy following a diagnosis of thyroid cancer (T5/78). A medical certificate dated 26 June 2015 notes that following surgery, the Applicant was to have radioactive therapy (T8/96).

    50.The Applicant told the AAT1 that he has regular checks, but no further treatment, and that the condition causes no problems.

    51.A DMA dated 8 November 2017 and 29 January 2018 determined there was insufficient evidence to consider the condition was fully treated and stabilised (T24/157; T36/191).

    52.The Secretary therefore contends that while reasonable treatment has been undertaken, there is no evidence to establish that this condition has any significant functional impact.

    Heart Disease

    53.The Applicant reported to the Tribunal that in late 2017, he went to his GP for a routine blood pressure check. His heart rate was very slow, and he was subsequently fitted with a pacemaker (T2/9).

    54.The Secretary notes that the qualification period ended on 30 June 2017. As the key treatment, being the insertion of the pacemaker, took place several months after the qualification period ended, the Secretary contends that this condition cannot be considered fully treated and stabilised during the qualification period.

    Depression

    55.The Applicant told the AAT1 that he has been depressed for much of his life ‘but just got on with things’. He reported that he has not had treatment for this condition (T2/9).

    56.The Amazon Family Practice Patient Health Summary dated 9 January 2018 lists depression as one of the Applicant’s conditions but does not provide any further information (T33/185).

    57.The Applicant has provided a letter dated 23 July 2018 from clinical psychologist Ms Janet Pinto Correia, in which she states the Applicant was initially referred to her on 6 June 2018. He has longstanding symptoms of depression with associated anxiety and features of adjustment disorder (Annexure A).

    58.The Secretary contends that as the Applicant was not referred to a clinical psychologist until almost 12 months after the end of the qualification period, the condition cannot be considered to be fully diagnosed, treated and stabilised, during the qualification period.

    Other conditions

    59.The Secretary notes that the Applicant has also listed gout, uncontrolled hypertension and shingles as other conditions affecting him.

    60.The Secretary contends that there is insufficient evidence to consider these conditions under the Impairment Tables.

1. The Respondent opened by resting on its Statement of Facts, Issues and Contentions, and contended that the Qualification Period was from 31 March 2017 to 31 June 2017.

2. The Respondent claimed that the Applicant’s medical conditions were not FDTS at the time of the Qualification Period and that he had not completed a POS.

3. At the hearing the Applicant opened by stating that he was tired and unwell.  He had been in and out of hospital over the past three years.  He has made a fresh application for the DSP.  He said he has provided numerous medical reports and cannot understand why he is not eligible for the DSP.

4. Under cross-examination the Applicant stated he managed day to day living functions.  He gets up in the morning and goes for a walk.  At the time of the application he walked approximately up to one kilometre.  He also would go for a bike ride.  These activities were designed to improve his health.

5. His gout led him to cease work and since giving up cigarettes in June 2018, his gout condition has receded.

6. He is on the Newstart allowance and lives alone.  He gave up marijuana in June 2018 and had been a user between the ages of 17 years to 50 years.  He is constantly tired and finds it difficult to concentrate.

7. With regards to the continuing inability to work, the Respondent submitted that the Applicant does not satisfy the program of support requirements as he has “completed only 299 days in a POS in the three years prior to lodging his claim” (R2, 10). As a result, the Respondent submitted that the Applicant fails to meet the requirement in s 7(2) of the Active Participation Determination.

   CONSIDERATION

8. The Tribunal will now consider all the evidence before it, including the written and oral submissions made by both the Applicant and the Respondent.

   Does the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?

9. It is not in dispute that the Applicant suffers from the following medical conditions: epilepsy, chronic renal failure, past thyroid cancer, heart disease, depression and gout.  The Tribunal notes these conditions.

10. The Tribunal finds the Applicant does satisfy s 94(1)(a) of the Act as he has “a physical, intellectual or psychiatric impairment”.

    Do the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination?

    Chronic renal failure

11. The Applicant told the AAT1 (T2, 8):

    •This problem was discovered following an emergency admission to SCGH in 2015.

    •At the time he was living in Kalgoorlie, working night shift in a BP retail outlet and doing some part-time work as a plasterer in the daytime. One day he had a funny turn. One of his sons called an ambulance and he was taken to Kalgoorlie Hospital. There they discovered extremely high blood pressure and he was airlifted to SCGH.

    •His blood pressure was got under control but subsequent blood tests showed his kidneys were not working properly. As a result he is under the care of a kidney specialist, Dr Chong. He sees her for regular testing, currently every six months. Apart from blood pressure tablets he is on no special treatment for the kidney problem. He has made significant changes to his lifestyle, with improved diet, more exercise and stopping smoking cigarettes and marijuana.

    •He knows the kidney problem can’t be cured and that one day he may need dialysis or possibly a transplant. He has been to see the dialysis unit.

    •He gets tired very easily. He lives alone in a rented house. After getting up in the morning he attends to domestic chores, may go for a walk, and often has a sleep in the middle of the day. On most afternoons he does a bike ride of about 15km. He is able to manage routine domestic chores such as cooking, cleaning and laundry. His mum comes to help out now and then.

    •He drives his own car and is able to do his own shopping.

12. The Tribunal notes that Dr Kanungo states in the Centrelink medical certificated dated 10 May 2017 that this condition was awaiting specialist review and that treatment required good blood pressure control and diet (T14, 143). This was reconfirmed by Dr Kanungo on 20 June 2017 (T20, 150).

13. The letter of Dr Chong, Consultant Physician and Nephrologist, dated 22 June 2017 states that “[the Applicant]  was seen at the Renal Outpatient Clinic on 22 June 2017. He has seen the Renal Nurse to discuss regarding (sic) his chronic kidney disease. [The Applicant] has interestingly, his renal biopsy showed severe acute tubular necrosis which I am unable to explain the cause of. The only possilbe (sic) link was ongoing marijuana use which is longstanding …” (T21, 151-152). Similar commentary is stated by Doctor Chong in a letter dated 8 September 2017 (T22, 153-4).

14. The Applicant stated at the hearing that he was consistently tired and lacked concentration.

15. The Tribunal finds on the evidence before it that this condition is fully diagnosed but was not fully treated and stabilised during the Qualification Period.

    Past thyroid cancer

16. The Applicant told the AAT1 (T2, 8-9):

    •He has had a lump in his neck for many years, but did nothing about it. When he was admitted to SCGH with high blood pressure the doctors noticed the lump. Tests showed it was a cancer and he had an operation to remove the thyroid gland. Following the operation he had a course of radiotherapy.

    •He has regular checks. He is on no further treatment and understands that there is no sign of recurrence. He is not aware of any symptoms resulting from this problem.

17. The Tribunal notes that the Applicant had surgery for this condition in 2015 (T5, 79). This was followed by radioactive iodine therapy (T8, 96). The Tribunal notes that Dr Ko Ko reported in a “Centrelink Medical Certificate” that this condition was “likely to show considerable improvement within 2 years” (T8, 96).

18. The Tribunal notes various medical reports indicate that the Applicant is required to have regular check-ups. There is no evidence before the Tribunal to assess the functional impact of this condition.

19. Having considered all the evidence before the Tribunal relating to this condition, the Tribunal finds that this condition is FDTS. It notes however that there is no reliable new evidence to indicate any state of impairment. Consequently, the Tribunal cannot assign an impairment rating.

    Heart disease

20. The Applicant told the AAT1 (T2, 9):

    Just before Christmas he went to his GP for a routine blood pressure check. The doctor found he had a very slow heartbeat and sent him to MH. They sent him on to RPH where he was fitted with a pacemaker. He was not aware of any symptoms from the slow heart rate and doesn’t feel much different since having the pacemaker.

21. In a “Centrelink Medical Certificate” dated 30 March 2015, Dr Augustine states that “[h]e had chest pain admitted to hospital and treated” (T7, 95). The condition is described as likely to persist and stabilised (T7, 95).

22. Further, the Tribunal notes the report of 28 July 2015 by Dr Sathiyapal Kulanayagam who describes the condition as permanent and likely to persist (T9, 98).

23. The Tribunal notes that in a “Discharge Summary Referral” dated 20 December 2017 the Applicant is described as being admitted to hospital with a heart block condition with the need for a pacemaker (T29, 170). This is further confirmed in a “Discharge Summary” report dated 21 December 2017 (T30, 175).

24. The Tribunal finds that this condition was not FDTS during the Qualification Period.

    Depression

25. The Applicant told the AAT1 (T2, 9):

    •He has been depressed for much of his life, but just got on with things.

    •He has never had treatment for the problem.

26. The Tribunal notes the report of Ms Janet Pinot Correia (Clinical Psychologist) dated 23 July 2018 describing the treatment that the Applicant is undergoing (A1). Ms Correia states in her report (A1):

    [The Applicant] was initially referred on 06/06/2018 for psychological intervention … [The Applicant] has presented for a total of four sessions and he appears committed to ongoing intervention.

    [The Applicant] was referred for psychological intervention with longstanding symptoms of depression with associated anxiety and features of adjustment disorder. Symptomatology was reportedly exacerbated in 2017 following treatment of multiple medical conditions including the insertion of a pacemaker.

    [The Applicant] was observed to be highly anxious over his physical health despite having implemented a number of healthy changes including the cessation of smoking and significant weight loss through an improved diet. K-, O measures have indicated high levels of distress with DASS 21 scores indicating severe depression, severe anxiety and moderate stress.

    It is my opinion that [the Applicant]’s current capacity to maintain employment is compromised.

27. The Tribunal finds that this condition was fully diagnosed, however as treatment did not properly commence until 2018, in line with Table 5 of the Impairment Tables, treatment commenced outside of the Qualification Period and hence, the Tribunal cannot find that this condition was fully treated and stabilised.

    Epilepsy

28. The Applicant told the AAT1 (T2, 9):

    •In his twenties he had a number of seizures and was diagnosed with epilepsy. He took tablets for a while, but gradually weaned himself off them.

    •He has not had a fit for the past 25 years and has been cleared for driving.

29. The Tribunal notes that there is mention of this condition under significant past problems and procedures in the “Discharge Summary” dated 6 March 2015 (T5, 79).

30. The Tribunal notes the report of Dr Siew Chong (Renal Consultant) dated 1 June 2017 which  states that the Applicant has been “[s]eizure free for over 25 years” (T15, 144). This is again confirmed in a report dated 8 September 2017 (T22, 153).

31. The Tribunal finds that there is no evidence available to suggest the functional impact of this condition. Therefore, the Tribunal cannot assign an impairment rating.

    Gout

32. The Applicant told the AAT1 (T2, 10):

    •Every now and then he gets sore feet, which is due to gout.

    •He has tablets which he he takes now and then, when it bothers him.

33. This condition is mentioned in medical reports as occuring “one attack a year” (T15, 144) and as “Gouty Arthritis” under the heading “Active Past History” in a “Patient Health Summary” of the Applicant dated 9 Janaury 2018 (T33, 185).

34. The Applicant stated at the hearing that he gave up cigarettes in June 2018 and this had greatly assisted with treatment of this condition.

35. As no further evidence is before the Tribunal in respect to this condition, the Tribunal finds this condition is not FDTS.

    Hypertension/Shingles

36. There is no evidence before the Tribunal to indicate that these conditions were FDTS during the Qualification Period. The Tribunal notes the condition of hypertension is described as “temporary” in a “Centrelink Medical Certificate” by Dr Kanungo on 20 June 2017 (T20, 150).

    Does the Applicant have a continuing inability to work?

37. The Tribunal finds that the Applicant has zero points under the Impairment Tables. Therefore, the Applicant fails to satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act and to determine whether the Applicant has a continuing inability to work.

    DECISION

38. For the reasons given above, the Applicant does not qualify for the DSP. The decision under review is affirmed.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Associate

Dated: 15 January 2019

Date of hearing:	30 November 2018
Applicant:	In person
Representative for the Respondent:	Ms C Inglis