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

[2017] AATA 1055

Robertson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1055 (15 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6851

Re:Robyn Robertson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:15 June 2017

Place:Canberra

The decision under review is set aside and in substitution the Tribunal decides that Ms Robertson qualified for DSP on 11 February 2016.

The matter is remitted to the Secretary to determine Ms Robertson’s entitlements.

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

Mr S. Webb, Member

SOCIAL SECURITY – disability support pension claim – impairments – assessment of impairments resulting from ‘permanent’ medical conditions - minimum requirement of 20 points satisfied – ‘severe impairment’ – continuing inability to work 15 or more hours per week – decision set aside

Social Security Act 1991, s 94

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

REASONS FOR DECISION

Mr S. Webb, Member

15 June 2017

1. Robyn Robertson claimed disability support pension (DSP). Her claim was rejected by primary determination and this decision was affirmed on review. Unhappy with this result, Ms Robertson applied to this Tribunal at second tier for further review.

   Issues

2. The issue to be decided is whether Ms Robertson’s DSP claim satisfies the qualification requirements for DSP that are set out in s 94 of the Social Security Act 1991 (the Act). It will do so if she is found to have –

   (a)physical, intellectual or psychiatric impairments;

   (b)that attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination); and

   (c)that result in a continuing inability to work.

3. For DSP to be payable, Ms Robertson must be found to qualify for DSP on the day she made her claim on 11 February 2016, or within 13 weeks thereafter until 6 May 2016.

   Impairments

4. On the evidence of Dr Zin, a general practitioner, Dr Muscio, a general surgeon, Dr Eftekhar, a neurosurgeon, and Ms Sally Thomason, a clinical psychologist, I am satisfied that Ms Robertson has the following impairments –

   (a)pain and reduced spinal function resulting from osteoarthritis in her spine;

   (b)reduced lower limb function resulting from osteoarthritis in her hips and referred pain from her spine;

   (c)post-surgical symptoms and pain affecting her left shoulder, resulting in reduced upper limb function;

   (d)abdominal pain and bowel symptoms that impact upon her digestive function;

   (e)depression and anxiety resulting in mood swings and psychological symptoms that result in reduced mental health function;

   (f)asthma resulting in reduced function in activities involving physical exertion or stamina.

5. It appears that Ms Robertson had an abdominal hernia when she claimed DSP, but this was subsequently surgically repaired.

6. It is also established that Ms Robertson had type II diabetes mellitus and she is a carrier of haemochromatosis. She told me that she has had surgical treatment for cataracts in both eyes, but now requires glasses, and that she consumers more alcohol than is good for her, but she has not yet discussed this with her doctor.

   Impairment ratings

7. The second qualification criterion for DSP in s 94(1)(b) of the Act, requires assessment of Ms Robertson’s impairments under the Impairment Tables set out in the Impairment Determination.

8. Under s 6 of this Determination, a rating can only be assigned to an impairment that is likely to persist for at least 2 years, which results from a ‘permanent’ condition. For a condition to be ‘permanent’, it must be ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’.

9. Each Table sets out measures of the functional impact of an impairment – in the language of s 11(1)(c), ‘descriptors for that level of impairment’. Section 11(3) provides that -

   When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

   Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

10. Thus, three question must be answered –

    (g)Does each impairment under s 94(1)(a) result from a ‘permanent’ medical condition and is the impairment likely to persist for more than 2 years?

    (h)If so, does the impairment cause functional loss and, if so, which Impairment Table applies?

    (i)What is the functional impact of the impairment and what rating should be applied?

11. In Negri v Secretary, Department of Social Services,[1] Bromberg J said at [44] –

    “The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact—no, mild, moderate, severe, or extreme—applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.”

    [1] [2016] FCA 879.

    Spine

12. The Secretary accepts that Ms Robertson’s spinal osteoarthritis is ‘permanent’ and that resulting spinal impairment is likely to persist for more than two years from the date of claim. On the materials before the Tribunal, this is correct.

13. On 22 September 2015, Dr Zin reported “severe multilevel osteoarthritis” in Ms Robertson’s spine with a 10-year history of “chronic pain in neck and lower back” – “Worsening pain affecting Activities of Daily Living”.[2] The extent of osteoarthritis was confirmed by MRI taken on 9 November 2015.[3] Ms Robertson obtained specialist assessment from Dr Eftekhar[4] and subsequently sacroliliac joint block treatment.[5] Dr Eftekhar reported that Ms Robertson had cervical fusion in 2002 and extension of her back was painful. In his opinion “surgery is not a solution to the symptoms”.[6]

    [2] T20 folios 135-136.

    [3] T23.

    [4] T21 and T24.

    [5] T25.

    [6] T21 folio 142.

14. Details of the precise nature and extent of her resulting spinal impairment is somewhat sketchy. Ms Robertson explained that she can lean to pick up a light item from a table, but she has to squat to pick up a peg from the floor. She can sit on a firm couch for more than 10 minutes.

15. She told me that she is able to turn her neck but movement is restricted following previous fusion surgery in or about 2002 – she is able to turn her chin to near her shoulder on the right, but not on the left. And she experiences pain when bending her neck back. She can access something on a shelf at shoulder height, but has difficulty reaching above that level. She is able to wash her hair and dress herself, but needs assistance from her husband when her symptoms are bad.

16. Ms Robertson’s spinal impairment is to be assessed under Table 4. The descriptors at the low, moderate and severe functional impact levels are as follows –

5

There is a mild functional impact on activities involving spinal function.

(1)        The person has some difficulty in:

(a)        activities over head height (e.g. activities requiring the person to look upwards); or

(b)        bending to knee level and straightening up again without difficulty; or

(c)        turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)        the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)        the person is unable to bend forward to pick up a light object placed at knee height; or

(d)        the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)        The person is unable to:

(a)        perform any overhead activities; or

(b)        turn their head, or bend their neck, without moving their trunk; or

(c)        bend forward to pick up a light object from a desk or table; or

(d)        remain seated for at least 10 minutes.

1. Doing the best with the available evidence and considering the descriptors at each level, I am satisfied that Ms Robertson’s spinal impairment has a moderate functional impact under Table 4 and a 10 point rating is appropriate.

   Lower limbs

2. Ms Robertson’s spinal and hip osteoarthritis impacts upon her lower limb function. As I have said, this condition is ‘permanent’ and the resulting spinal impairment is likely to persist for at least two years from the date of her DSP claim.

3. Ms Robertson contends that this condition impacts upon her mobility. I am satisfied that this is correct, although the extent to which it impacts upon her lower limb function is somewhat contentious.

4. The Secretary argues that the present evidence is not sufficient to corroborate Ms Robertson’s account of lower limb impairment.

5. Certainly, there is little medical evidence to corroborate Ms Robertson’s detailed description of the way in which her pain from osteoarthritis in her spine and hips impacts upon her lower limb function.

6. On 20 March 2017, Dr Bell, a general practitioner, reported that Ms Robertson experiences “constant back pain, some days much worse than others, radiates down legs and into toes with numbness along lateral aspect of left leg.”[7] On 13 October 2015, Dr Eftekhar reported that Ms Robertson “does not have major radicular symptoms”.[8] On the present materials, I am unable to determine when the radicular symptoms reported by Dr Bell began.

   [7] Exhibit 1, page 1.

   [8] T21 folio 142.

7. On 18 May 2015, Dr Zin reported that Ms Robertson’s “Osteoarthritis of … hips” was generally well managed and caused minimal or limited impact on her ability to function,[9] but the doctor did not refer to this low limb impairment on 22 September 2015.[10]

   [9] T17 folio 122.

   [10] T20.

8. Ms Robertson gave evidence that she had difficulty walking far because of back pain. She explained that she often uses a stick. She said that she cannot not walk far and needs to be driven to the local shops. She is able to walk from a car into a shopping centre and accompany her husband shopping, although he does “the trolley work”. She told me that she can lift items into the trolley, but not if they are heavy, a 3 litre container of oil or milk for example, or if they are on a high or low shelf. She can rise to standing from sitting, but uses a table for support and when her back pain is very bad she needs assistance from her husband to do so. She cannot stand for long, only 5 to 10 minutes, but this has become worse over the last several months; previously she could stand for about half an hour.

9. I am satisfied that Ms Robertson’s account of the impact of her osteoarthritis on her lower limb function is consistent with the medical evidence. On 22 September 2015 Dr Zin reported that her osteoarthritis was “severe”[11] and this caused “Worsening pain affecting Activities of Daily Living”.[12] On 11 November 2015, Dr Eftekhar reported “extensive degenerative changes with some bilateral foraminal stenosis at the level of L5”, and that “degenerative changes and facet arthropathy have contributed significantly to the pain” requiring “left sided L4/5, L5/S1 and sacroiliac joint block” to alleviate symptoms of pain. On this material it is open to infer that pain at these levels would, in all likelihood, have an impact upon Ms Robertson’s mobility – the action of walking or using her lower limbs involves articulation of her hips and her spine.  That being so, I am satisfied that the symptoms of pain Ms Robertson experienced as a result of osteoarthritis affecting her spine and hips had an impact upon her mobility and her lower limb function. And, furthermore, that this impairment was likely to persist without improvement for more than two years from 11 February 2016, when she claimed DSP.

   [11] Ibid, folio 134.

   [12] Ibid, folio 136.

10. The impact of impairment to lower limb function is to be assessed under Table 3. The descriptors set out at the nil, low, moderate and severe impact levels are –

0

There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

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 in 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).

Note:       The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

  i.    walk around a shopping centre or supermarket without assistance;

  ii.    walk from the carpark into a shopping centre or supermarket without assistance;

  iii.    stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

1. To my mind, at or about the date of her DSP claim, Ms Robertson’s impairment had a mild impact upon her lower limb function, and it is consistent with the descriptors at the 5 point level. I accept that, presently, her impairment has a greater impact upon her lower limb function, and she is now not able to stand for more than 5 or 6 minutes. But I must assess her impairment with reference to the claim for DSP she made on 11 February 2016, which is presently before the Tribunal. I therefore assign 5 points under Table 3.

2. At this point I should say that, even if I am wrong about Ms Robertson’s lower limb impairment, such that no rating can be given, it would not change the result.

   Upper limbs

3. On Dr Zin’s 22 September 2015 report it is quite clear that Ms Robertson experienced left shoulder pain, despite undergoing left shoulder acromioplasty and rotator cuff repair on 11 September 2013.[13] In Dr Zin’s opinion this condition was generally well managed and it caused minimal or limted impact on Ms Robertson’s ability to function.

   [13] T20 folio 140.

4. Even though I accept Ms Robertson’s evidence in respect of limitation on raising her left arm, and pain she experiences in her left shoulder, there is insufficient corroborating material to support a rating greater than 0 points under Table 2.

   Digestion

5. The Secretary accepts that Ms Robertson’s diverticulosis condition is ‘permanent’. This is so despite the possibility of surgical colostomy treatment in the future. I think the Secretary’s concession on this point is well made. The present materials do not establish that surgical colostomy treatment is reliably be expected to result in significant improvement of functional capacity, such that it would be considered ‘reasonable treatment’ for the purposes of s 6(7) of the Impairment Determination. And even if it was, on the present materials, considering the nature and history of this condition, it is unlikely that treatment of this kind would enable Ms Robertson to work within two years. Furthermore, I think Ms Robertson’s reason for not undertaking treatment of this kind is compelling – she does not want to endure a colostomy and a bag. It should be noted that Dr Muscio attempted a sigmoid colectomy procedure, but this was confounded by adhesions discovered and divided during a laparotomy on 30 June 2015. There is no evidence to suggest that this procedure resulted in any improvement of Ms Robertson’s bowel symptoms, rather it appears that her bowel symptoms continued without relief.

6. I note in passing that an abdominal hernia repair was undertaken on 1 December 2015.[14] Ms Robertson explained that this procedure was successful.

   [14] T26 folio 154.

7. On the reports of Dr Muscio and Dr Zin, it is quite clear that Ms Robertson’s bowel symptoms have been on-going from January 2015. On 9 January 2015, Dr Muscio reported “[Ms Robertson] reports several loose bowel motions a day and low abdominal cramps and a feeling of rectal discomfort”.[15] On 14 May 2015, he reported that “her bowel symptoms are only getting worse with time”.[16] On 18 May 2015, Dr Zin reported the impact on Ms Robertson’s ability to function in the following way –

   “On-going abdominal pain.

   On-going bowel incontinence.

   Occasional per rectal bleeding.”[17]

   [15] T15 folio 111.

   [16] T16 folio 112.

   [17] T17 folio 121.

8. On 22 September 2015, Dr Zin reported “On-going abdominal pain interfering with Activities of Daily Living (ADLs)”.[18]

   [18] T20 folio 139.

9. There is no evidence to suggest that there has been any improvement or change in the worsening trajectory of Ms Robertson’s bowel symptoms. I am satisfied that the impairment of Ms Robertson’s digestive function is likely to persist for at least two years from 11 February 2016.

10. The impact of this impairment is to be assessed under Table 10.

11. Ms Robertson gave evidence that she thinks about her bowel symptoms all the time and her usual daily activities are frequently interrupted. Her unchallenged evidence is that she experiences abdominal pain, cramps, bloating, diarrhoea, constipation and a lot of gas most of the time. She explained that she has no control over these symptoms and she experiences “flare-ups” every couple of weeks. When cross-examined on related matters, Ms Robertson explained that she lives with these symptoms every day: sometimes she experiences symptoms more than every hour, she is bloated most of the time, and she has flare-ups once or twice a month. Ms Robertson was understandably embarrassed by expression of her symptoms in public. Her evidence is that she passes a lot of wind and cannot control her bowel function. She told me that she cannot say if this affects people around her as she leaves quickly whenever it occurs. It is for this reason that she is very reluctant to venture into public without adequate preparation, and she is unwilling to attempt public activities, such as work, training or a program of support.

1. To my mind, Ms Robertson’s account of the way in which her symptoms impact upon her ability to function is reasonably consistent with the medical reports of Dr Muscio and Dr Zin. Even though these doctors were not called to give oral evidence, their reports are sufficient to provide general corroboration of Ms Robertson’s detailed evidence describing her symptoms and the way in which they impact upon her ability to function.

2. Table 10 sets out the following descriptors at the mild, moderate, severe and extreme levels –

5

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

(1)        At least one of the following applies:

(a)      the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or

(b)      the person is sometimes (i.e. less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

10

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

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

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

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

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

20

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

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

(a)      the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b)      the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;

(c)      the person’s condition may affect the comfort or attention of co-workers;

(d)      the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.

30

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

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

(a)      the person’s attention and concentration at a task are continually interrupted or reduced by pain or other symptoms or care needs associated with the digestive or reproductive system condition (e.g. pain or other symptoms are present all or most of the time);

(b)      the person is unable to sustain work activity or other task for more than 1 hour without a break due to symptoms of the digestive or reproductive system condition;

(c)      the nature of the person’s condition is likely to affect co-workers adversely;

(d)      the person is rarely able to attend work, education or training activities due to the digestive or reproductive system condition.

1. The frequency with which Ms Robertson’s attention and concentration on a task is interrupted requires careful consideration.

2. Dr Zin reported that symptoms of abdominal pain and bowel incontinence are on-going. Ms Robertson’s evidence is that she has no control over her bowel symptoms, including pain, bloating, passing wind or bowel motions: sometimes her attention is interrupted more than hourly, she experiences unpredictable and sudden flare-ups every couple of weeks, but she lives with the symptoms all of the time.

3. On this evidence it is conceivable that Ms Robertson’s attention and concentration on a task is ‘often’ interrupted (at least once every day but not every hour), or is ‘frequently’ interrupted (at least once every hour), or ‘continually’ interrupted. On balance, doing the best with the present evidence and accepting Ms Robertson’s account, I am satisfied that ‘frequently’ best describes the extent to which her attention and concentration on a task is interrupted by the abdominal pain and bowel symptoms she experiences. The evidence establishes that she had several loose bowel motions each day in January 2015, and that her symptoms worsened through 2015 and were ongoing as of 11 February 2016, when she claimed DSP. From this it may be inferred that she had more than several uncontrollable loose bowel motions each day, as well as abdominal pain, bloating and uncontrolled flatulence. In these circumstances, I think it can reasonably be inferred that Ms Robertson’s attention and concentration on a task were in all likelihood interrupted at least hourly, every day. I so find.

4. Notwithstanding the absence of clear medical evidence, I can accept that Ms Robertson’s bowel symptoms, including uncontrollable flatulence and incontinence, are likely to affect the comfort or attention of others, including co-workers. One does not require medical evidence to understand this - when Ms Robertson uncontrollably passes wind or endures a sudden bowel motion several times or more each day, it is likely to affect the comfort or attention of those around her and in close proximity to her.

5. Furthermore, on Dr Zin’s 22 September 2015 report “occasional flaring of diverticulitis with rectal bleeding and Ms Robertson’s evidence that this occurs every couple of weeks, it is probable that she would frequently (twice or more each month) be absent from work, if employed, during flare-ups of her bowel condition. I note the Grafton Base Hospital record of one such flare-up on 1 May 2016.[19]

   [19] T35.

6. I am satisfied Ms Robertson’s digestive system impairment attracts a rating of 20 points under Table 10.

   Mental health

7. The Secretary accepts that Ms Robertson’s depression and anxiety conditions are fully diagnosed, but contends that these conditions were not fully treated or fully stabilised when Ms Robertson lodged her DSP claim on 11 February 2016 or within 13 week thereafter.

8. Considering the medical history of these conditions, I am satisfied this is correct.

9. On 22 September 2015, Dr Zin reported that Ms Robertson was taking anti-depressant medication and undergoing psychological counselling for anxiety and depression, which was generally well managed and causing minimal or limited impact on her ability to function.[20] On 18 January 2016, Dr Zin reported that Ms Robertson had been taking antidepressant medication and consulting Ms Thomason on a regular basis.[21] On 20 January 2016, Ms Thomason reported that Ms Robertson had attended for four sessions “and will be continuing ongoing treatment”.[22]

   [20] T20 folio 140.

   [21] T27 folio 155.

   [22] T28 folio 156.

10. On 15 February 2016, Dr Mears, a general practitioner, certified that “Anxiety/Depression” was permanent and likely to persist for two years or more with current and future treatment including “counselling”.[23]

    [23] T30 folio 185.

11. On 2 March 2016, a Departmental officer reported “Dr Thomason reported a good prognosis with improvement expected within 24 months with continued treatment” and that future treatment included “psychotherapy”.[24] It is difficult to know what to make of this account. The officer and Ms Thomason were not called to give evidence.

    [24] Ibid, folio 187.

12. On 17 May 2016, Nurse Gibson reported that Ms Robertson had been receiving treatment for anxiety and depression since April 2013 “and this will be ongoing in the future”.[25]

    [25] T36 folio 200.

13. Ms Robertson gave evidence that she stopped consulting Ms Thomason because she could not afford the $180 cost per session. Some time later, she commenced consulting another psychologist, Deborah Thompson, who was cheaper.

14. The conclusion to be drawn from this is that Ms Robertson’s anxiety and depression condition was not fully treated and fully stabilised on 11 February 2016 or within the period of 13 weeks thereafter.

15. This means that it cannot be considered as ‘permanent’ and no rating can be assigned under the Impairment Tables.

    Physical exertion

16. There is very scant medical material dealing with Ms Robertson’s asthma.

17. On 22 September 2015, Dr Zin included this condition as one that was generally well managed with only a minimal or limited effect on Ms Robertson’s ability to function.

18. Thus, even if it is accepted as fully diagnosed, fully treated and fully stabilised as of 11 February 2016, and I note that Job Capacity Assessors came to that conclusion on 14 October 2015[26] and 2 March 2016,[27] no rating greater than 0 points can be made under Table 1.

    [26] T22 folio 143.

    [27] T32 folio 189.

    Overall impairment rating

19. In summary on this point, Ms Robertson’s assessable impairments attract a combined rating of 35 points – 10 points under Table 4, 5 points under Table 3, 0 points under Table 2, 20 points under Table 10 and 0 points under Table 1.

20. This means that she satisfies the second qualification criterion for DSP under s 94(1)(b) of the Act.

    Continuing inability to work

21. The Secretary concedes that Ms Robertson has a work capacity of 8 to 14 hours with interventions within two years, satisfying the test under s 94(2)(a). Considering the medical certificates and Job Capacity Assessment reports in evidence, I am satisfied that this is correct.

22. This is so even though the Job Capacity Assessment reports of her work capacity appear to have proceed on a whole person assessment, rather than on the basis of her assessable impairments, alone.

23. In the Secretary’s submission, the only bar to Ms Robertson qualifying for DSP is that she does not have a ‘severe impairment’ for the purposes of s 94(3B) and she does not satisfy the ‘participation in a program of support’ requirement under s 94(2)(aa).

24. I am satisfied that Ms Robertson does have a ‘severe impairment’ – her digestive system impairment attracts a rating of 20 points under Table 10.

25. That being so, Ms Robertson does not need to meet the requirements of s 94(2)(aa) in respect of a participation in a program of support. It is sufficient that she satisfies the other requirements of s 94(2) for the purposes of s 94(1)(c). And I am satisfied that she does.

26. From this it follows that Ms Robertson has a continuing inability to work and she satisfies the third essential qualification requirement for grant of DSP.

    Conclusion

27. Ms Robertson’s claim for DSP on 11 February 2016 is made out. She has impairments that attract a rating of 20 or more points under Impairment Tables set out in the Impairment Determination. Furthermore, she has a ‘severe impairment’ and a continuing inability to work 15 or more hours per week as a result of her assessable impairments. This means she qualifies for grant of DSP from 11 February 2016.

    Decision

28. The decision under review is set aside and in substitution the Tribunal decides that Ms Robertson qualified for DSP on 11 February 2016.

29. The matter is remitted to the Secretary to determine Ms Robertson’s entitlements.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated: 15 June 2017

Date(s) of hearing:	23 May 2017
Applicant:	By telephone
Advocate for the Respondent:	Kelvin Defranciscis