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

Ronaldson and Secretary, Department of Social Services (Social services second review) [2019] AATA 4234 (17 October 2019)
Division:GENERAL DIVISION
File Numbers: 2018/5022
Re: Mr Craig Ronaldson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Ms Anna Burke AO, Member
Date:17 October 2019
Place:Melbourne

The Tribunal affirms the decision under review.
....[sgd]....................................................................
Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – from cardiomyopathy/congestive cardiac failure; bilateral inguinal hernia; substance abuse - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna Burke, AO
17 October 2019
INTRODUCTION

Mr Craig Ronaldson (the Applicant) is seeking a Second Tier review of the decision made by Centrelink to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Human Services.
Mr Ronaldson lodged a claim for DSP on 14 September 2017. On 24 November 2017, Centrelink decided that Mr Ronaldson was not entitled to a DSP as he did not meet the requirements of the Act. On 12 June 2018, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Mr Ronaldson sought review of the decision by the ARO to the Social Security and Child Services Division of this Tribunal (Tier 1) which affirmed the decision on 8 August 2018. It is the decision of the Tier 1 which is under review by this Tribunal.
The application was heard on 7 August 2019. Mr Ronaldson was self-represented and Mr Pietro Nacion, Solicitor of Sparke Helmore, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Mr Nacion.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Ronaldson:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a fully diagnosed, treated and stabilised condition or conditions which result in impairments attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)has a continuing inability to work.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999, Mr Ronaldson’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 14 September 2017 to 14 December 2017 (the qualifying period).
BACKGROUND
Mr Ronaldson is 41 years of age and currently living in stable accommodation, but for a period of years he was homeless and couch surfing amongst friends. He has two daughters by different partners; one is 9 years of age and is cared for by Mr Ronaldson’s mother; and the other is approximately 15 years of age and lives in country Victoria with her mother. Mr Ronaldson completed year 12 and has worked full-time in numerous roles including forklift driving, working in a store, construction and as a truck driver. He last worked in a recycling centre for a few weeks in 2017 but had to stop when the company went bankrupt. Mr Ronaldson reported significant medical conditions which had resulted in periods of hospitalisation for months at a time, particularly in respect of a significant infection. He reported that he had not driven for many years as he had lost his license and utilised public transport with difficulty. Mr Ronaldson has a history of drug use.
Mr Ronaldson has made several DSP claims prior to the current claim. In a medical report for an earlier DSP claim in 2014 Dr Tang, Mr Ronaldson’s GP, stated he has severe dilated cardiomyopathy; a medical condition that may significantly reduce his life expectancy. Dr Tang also stated that Mr Ronaldson will not be able to exert himself in whatever work he is involved with as he will become short of breath quite easily. When Mr Ronaldson lodged his current DSP claim on 14 September 2017, he did not list any disabilities, illnesses or injuries; nor did he provide any supporting medical, evidence or list of doctors who could speak to his claim.
On 17 November 2017, Centrelink conducted a face-to-face job capacity assessment (JCA) on Mr Ronaldson. The JCA report awarded him nil points under the Impairment Tables, having found the following:
·Mr Ronaldson’s cardiomyopathy/congestive heart failure was fully diagnosed but not fully treated and stabilised. Nil impairment points were awarded.
·His hernia was fully diagnosed but not assessed as optimally treated or stabilised as he was on the waiting list for surgery at the time and the condition was expected to persist for 3 to 12 months. Whilst Mr Ronaldson reported that he was uncertain if he would be able to have surgery due to his heart condition, the medical information stated that outpatient surgery was planned. Nil impairment points were awarded.
·His work capacity was temporarily reduced to 0 to 7 hours for a period of time, predominantly due to the impact of his health issues. He had baseline work capacity of 8 to 14 hours per week but this could improve with intervention
On 12 June 2018, on internal review, an ARO of the department affirmed the earlier Centrelink decision that Mr Ronaldson’s total impairment rating was nil. The ARO made no comment on Mr Ronaldson’s continuing ability to work. The ARO stated:
Based on the medical evidence, although fully diagnosed your bilateral inguinal hernia and severe dilated cardiomyopathy cannot be considered to be fully treated and stabilised in the qualification period. I agree with the assessor’s recommendation that if you have the recommended surgery, your bilateral inguinal hernia may improve to enable an accurate assessment of your severe dilated cardiomyopathy. Since your bilateral inguinal hernia and severe dilated cardiomyopathy cannot be considered to be fully treated and stabilised in the qualifying period (pursuant to sections 6(3) and (4) of the Impairment Tables) no impairment rating can be assigned for these impairment[s]under the impairment tables in the qualification period
I note that in the medical certificate provided by Dr Tang on 1 August 2018, mention was made that you suffer from hypertension, hepatitis B, hepatitis C and intravenous drug use. However there is no information about your current functionality or your functionality during the qualifying period or whether any treatment has occurred. Therefore these conditions cannot be considered fully treated and stabilised. Accordingly no impairment rating can be assigned to these conditions under the impairment tables in the qualification period.
On 8 August 2018, the Tier 1 affirmed the decision of the ARO to reject Mr Ronaldson’s DSP claim. The Tier 1 awarded Mr Ronaldson an impairment rating of nil impairment points based on evidence which indicated that his bilateral inguinal hernia only had a minor functional impact on impairment. The Tier 1 did not consider Mr Ronaldson’s cardiomyopathy and congestive cardiac failure to be fully treated as Mr Ronaldson was non-compliant with his medication and further specialist treatment was ongoing and planned. The Tier 1did not address Mr Ronaldson’s continuing inability to work.
On 3 September 2018, Mr Ronaldson sought a review of the Tier 1 decision by this division of the Tribunal. His representative at the time stated in the application:
The Tribunal member states that Mr Ronaldson’s cardiomyopathy and congestive cardiac failure are not fully treated and stabilised. On the contrary, these conditions are in further medical material is being requested to substantiate this.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for a DSP 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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)The condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
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.
Section 6(6) of the Impairment Tables states:
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.
For the purposes of section 6(7), 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.
The determinative issue in this review is whether, during the qualifying period, Mr Ronaldson suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Program of Support (POS) determination sets out a number of exemptions to the general requirements and that a person must participate for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) The program of support was terminated before the end of the relevant period; and
(b) The program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents and additional medical reports provided by Mr Ronaldson
Does Mr Ronaldson have a physical, intellectual or psychiatric impairment?
Section 94(1) (a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Mr Ronaldson is suffering from cardiomyopathy/congestive cardiac failure; a bilateral inguinal hernia and substance abuse. The also Tribunal finds that Mr Ronaldson meets the requirements of s 94 (1) (a) of the Act.
As noted above, s 94(1) (b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
Does Mr Ronaldson have medical conditions that can be rated at 20 points or more under the Impairment Tables?
Dr Andrew Taylor, Mr Ronaldson’s general practitioner, provided a written report dated 25 June 2018. In that report he said that Mr Ronaldson suffers from:
Alcohol dependency
Amphetamine abuse
Hepatitis B
Hepatitis C
Infective endocarditis
Inguinal hernia bilateral
Homelessness 2017
Cardiac failure 2 October 2017
Zepatier 4 June 2018
Patient records for Mr Ronaldson from Peninsula Health indicate an extensive interaction with the healthcare service:
·4 November 2018 - oral and dental
·8 November 2018 - fracture of head
·1 November 2018 - maxillary wall fracture and oral and dental
·20 May 2018 - scratched to Oesophagus post swallowing Doritos
·17 October 2017 - other specified nature of injury, one body region
·21 September 2017 - acute exacerbation of chronic congestive heart failure
·5 September 2017 - congestive heart failure
·28 August 2017- constipation
·2 August 2017 - inaugural hernia
·1 May 2017 - injury to muscle/tendon of lower leg
·5 December 2015 - sepsis, unspecified
·27 September 2015 - cellulitis of leg
·27 September 2015 - congestive heart failure
·26 August 2015 - poisoning/overdose, Amphetamine/Methylenedioxymethamphetamine (Ecstasy)
·19 August 2015 - cellulitis of leg
·14 August 2015 - congestive heart failure
·17 August 2015 - sepsis, unspecified
·17 July 2015 - acute exacerbation of chronic congestive heart failure
·17 July 2015 - lower respiratory tract infection
·13 July 2015 - cardiac failure complicated with cellulitis
·26 June 2015 - biventricular failure
·28 June 2016 – infective endocarditis
·9 October 2013 - congestive cardiac failure
·9 October 2013 – staphylococcus aureus infection
·1 October 2013 - frozen shoulder
Cardiomyopathy/congestive cardiac failure
Dr Thomas Ngai, medical practitioner, in a letter of 12 September 2017, stated:
Because of the medical conditions he has severe dyspnoea with minimal exertion. He has difficulty walking for more than 10 metres. He has recurrent chest pain….The prognosis is poor. It is unlikely that he will be able to work again. He therefore needs ongoing disability support pension
Dr Ny Min Htun, Cardiologist at Peninsula Health, in a medical report dated 21 September 2017, stated:
I reviewed this 39-year-old gentleman in the Cardiology Outpatient Clinic today. He was recently discharged from the hospital in early September 2017. Unfortunately the discharge summary is not available on our system although it looks like he was admitted with exacerbation of his heart failure needing intravenous frusemide.
Looking at all our records he seems to have severe LV dysfunction since 2013 and was reviewed in our Heart Failure Clinic and for some reason he was lost to follow up.
He also had hepatitis B and C and never had gastroenterology follow-up. His other history includes hypertension, chronic leg ulcers and an inguinal hernia. He is an active smoker and uses ice now and again.
He seems to be quite lost with no clear insight into his cardiac condition and how to manage it at home.
I think he really needs to be followed up in a special Heart Failure Clinic. I have emphasised the importance of fluid restriction and given him dietary advice. I have also advised him to increase is frusemide to 40 mg bd as his renal functional is normal on the previous blood tests on our system. I have also emphasised the importance of stopping smoking and illicit drugs as well as the importance of bringing the up to date medication list so that at least we can adjust his medication. There is no way we can adjust his medication without knowing what they are and what the doses are.
Dr Nicholas Jones, Cardiology Registrar at Peninsula Health, in a medical report of 27 September 2017 stated:
As you are no doubt aware, Craig has been referred to us a number of times over the years for investigation of heart failure with reduced ejection fraction thought to be secondary to methamphetamine use.
…
Craig has had a recent admission under the General Medical Unit here at Frankston Hospital with an exacerbation of his chronic heart failure with an echocardiogram showing severe LV systolic dysfunction with an ejection fraction between 15 and 20%. He also has severe global impairment of the right ventricular, bilateral dilation, mild to moderate central mitral regurgitation.
Dr Robert Lew, cardiologist, in a review letter of 4 October 2017 states:
I reviewed Craig today after his recent admission to Frankston Hospital in September with congestive cardiac failure.
Since discharge from hospital he is feeling well. He is asymptomatic. He has been trying to stick to the 1.5 L fluid restriction. Unfortunately he continues to use ice. He continues to smoke.
…
As you know he has a history of
1Hypertension
2Hepatitis B
3Hepatitis C
On examination today had a blood pressure of 110/70, his chest was clear and had no peripheral oedema.
Craig is actually doing quite well in terms of managing his heart failure. I explained to him the fluid restrictions. I have increased his ramipril to 5 mg daily. It would be good to get him on treatment for hepatitis C, which he will see you for.

Dr Ngai, in a letter of 7 February 2018, stated:
This is to certify that Mr Craig Ronaldson is suffering from congestive heart failure. He has shortness of breath even with minimal exertion. He has very low physical tolerance. This is the main reason for his disability. The heart problem can only be treated with medication. Further improvement is unlikely.
A medical certificate from Dr Taylor dated 15 June 2018 indicates that Mr Ronaldson is permanently unfit for work or study and the prognosis is that he is likely to deteriorate within two years. His diagnosis is CCF (severe), which is permanent and his symptoms are described as:
severe and permanent breathlessness and a dramatically reduce life expectancy due heart failure. Is on maximal therapy and only transplant can possibly prolong life. However patient has BBV infections and transplant thus contraindicated.
Dr Taylor’s report of 25 June 2018 states:
I have known Craig Ronaldson... for over 12 months. He has dramatically reduced life expectancy and reduced capacity to be active due to severe and permanent cardiac damage as Craig suffers addiction seriously he continues to use needles and he also continues to smoke. It is thus the case that Craig is continuing to damage his heart.
Craig can walk on flat ground a maximum of about 100m. He has no capacity to climb stairs nor can he manage longer inclines.
Craig certainly meets criteria as published for DSP. He is 10 points or more disabled on the addiction parameters and is certainly 10 points on the physical capabilities.
Craig is currently deemed unfit for hernia surgery due to his poor cardiac reserve/function.
Mr Ronaldson gave evidence that during the qualifying period his heart condition made everything difficult, particularly walking, lifting things, utilising public transport and daily living. He explained that his heart condition precluded him from undertaking any surgery as his heart was simply not strong enough to handle anaesthetic. He advised the Tribunal that shortly after he had applied for the DSP his jaw had been broken and he was unable to have the necessary surgery to repair the injury as his underlying health issues would make any such procedure precarious.
Mr Ronaldson was adamant that during the qualifying period he was compliant with all medication and treatment. However, he did concede he had struggled with the fluid limitations over time as he found it difficult to restrict himself to 1.5 L per day. Mr Ronaldson also argued that his numerous other health conditions particularly the swelling in his legs, his hernia, his long stint in hospital following the blood clot in his heart, and the subsequent virus, all impact upon his functionality.
Mr Ronaldson advised the respondent under cross-examination that he:
·was constantly drowsy and tired;
·suffers shortness of breath and wheezing;
·suffered blackouts;
·was compliant with his medication;
·did not accept that he had refused to participate in treatment (arguing why would he do so, when it was about saving his life);
·could not walk for 10 minutes flat out but would need to stop constantly, and he cannot walk up hills;
·could stand for more than five minutes;
·utilised public transport without assistance but would need to use a rail on and off transport;
·can perform light house work such as cooking light meals and doing dishes - however vacuuming, washing windows and gardening would take it out of him;
·can ride his bike (he tries to do it a bit but it does take it out of him); and
·that currently he was feeling better than he had when he applied because the medication was working; but he seriously doubted he would be able to do a shift of three hours, and he was exhausted from simply attending the Tribunal and sitting through the hearing.
The respondent accepts that Mr Ronaldson’s cardiomyopathy and congestive cardiac failure conditions were fully diagnosed and long-standing. However, they contended that the Tribunal could not be satisfied that the heart condition was fully treated and stabilised due to Mr Ronaldson’s non-compliance with recommended treatment. They also noted that further treatment had been recommended by Dr Jones on 27 September 2017.
The respondent argued that even if it was accepted that the condition had been fully treated and stabilised, it was having minimal impact upon Mr Ronaldson’s functionality. The respondent relied upon the evidence provided by Mr Ronaldson to the JCA on 17 November 2017, where they recorded Mr Ronaldson:
can walk for up to 10 minutes;
is able to go grocery shopping;
is able to change the sheets on his bed;
gets dizzy if he stands up or bends quickly and has multiple falls due to dizziness;
is unable to mow the lawn to do gardening; and
is independent with personal care as he can cook light meals vacuum and wash dishes.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Ronaldson’s long-standing cardiomyopathy/congestive cardiac failure (heart failure) was fully diagnosed, treated and stabilised during the qualifying period relying upon the medical evidence of Dr Lew 4 October 2017 where he observes:
“Craig is actually doing quite well in terms of managing his heart failure”.
The Tribunal observed medical evidence indicating that Mr Ronaldson’s heart failure is chronic, and managing his condition had been complicated by his numerous other medical conditions, periods of homelessness and drug use. The Tribunal finds that Mr Ronaldson had been attempting over the years to manage this condition through medication and adherence to a strict fluid regime. The Tribunal relies upon the medical evidence of Dr Ngai of 7 February 2018 which indicated that Mr Ronaldson’s condition can be managed with medication, but this was unlikely to result in significant improvement in his functional ability. Additionally, the Tribunal notes the advice of Dr Taylor of 15 June 2018 which indicated that Mr Ronaldson had a dramatically reduced life expectancy and was not a candidate for a transplant because of his BBV infections.
The Tribunal concludes that Mr Ronaldson’s chronic heart failure was having a moderate functional impact on activities requiring physical exertion or stamina in accordance with Table 1 (Functioned Requiring Physical Exertion and Stamina). Mr Ronaldson reported (and this was corroborated by his treating practitioners) that during the qualifying period he experienced frequent symptoms of shortness of breath and fatigue when performing day-to-day activities around the home and the community. He stated that he was unable to walk far outside his home, needed to rely upon public transport and had difficulties performing day-to-day household activities such as vacuuming or gardening.
The Tribunal therefore awards Mr Ronaldson 10 points under Table 1 of the Impairment Tables in respect of this condition.
Bilateral inguinal hernia
Dr Nerendrakumar Morris, General Practitioner at Frankston Healthcare, in a referral letter to Frankston Hospital of the 4 September 2017 requesting admission for assessment and stabilisation of Mr Ronaldson’s uncontrolled cardiac failure, noted an inguinal hernia in his past history.
Dr Ngai, in a medical certificate dated 24 March 2017, diagnosed a right inguinal hernia. He noted the date of onset as 6 March 2017, symptoms of right groin pain and that Mr Ronaldson was likely to show considerable improvement within the next two years.
Dr Ngai, in a letter of the 12 September 2017, stated:
Inguinal hernia (bilateral)
…
He also has pain at the inguinal area due to bilateral inguinal hernia.
A medical certificate from Frankston Hospital dated 1 August 2017 notes a diagnosis of a right inguinal hernia and a planned outpatient hernia repair.
Dr Ngai, in a letter of the 7 February 2018, stated:
He also suffers from bilateral inguinal hernia, which is not directly related to his heart condition. He may require surgery to repair them. However further assessment of his heart condition will be required if he can take the surgery or not.
Mr Ronaldson gave evidence that during the qualifying period his inguinal hernia was of significant size occasionally caused discomfort and made lifting things and bending very difficult. He had been scheduled for surgery on the hernia on numerous occasions, but each time he was advised that he was too unwell to proceed with any form of surgery due to his heart condition. He advised the Tribunal that he simply would have died had they used an anaesthetic. Mr Ronaldson stated that fundamentally, he had learnt to live with his hernia and that activities like riding his bike were okay, except when he got on and off. He noted that he couldn’t remember everything that had been recommended to him over the qualifying period as he had been in and out of hospital because of the significant infection he suffered after his blood clot.
The respondent accepts that Mr Ronaldson’s inguinal hernia was fully diagnosed, but not fully treated and stabilised during the qualifying period as medical certificates indicate that the condition is temporary and that surgery for the condition had been recommended.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Ronaldson’s long-standing bilateral inguinal hernia condition was fully diagnosed, treated and stabilised during the qualifying period. The Tribunal relies upon the medical information of both Dr Taylor and Dr Morris, which indicates that whilst surgery was required for this condition, it could not be performed on Mr Ronaldson during the qualifying period because of his chronic heart failure. The Tribunal notes this indicated he was deemed unfit for surgery because of poor cardiac reserve/function.
The Social Security Guide lists abdominal hernia as a condition causing impairment commonly assessed under Table 10 (Digestive and Reproductive Function). The Tribunal notes that both Mr Ronaldson and his treating doctors indicated that the condition was having a minimal impact on his functional ability. The table indicates that a functional impairment occurs when a person’s attention and concentration on a task is sometimes interrupted or reduced by pain. Whilst there was evidence the condition was causing Mr Ronaldson’s pain, there was no evidence that the condition was having a functional impact upon his ability to concentrate.
The Tribunal therefore awards Mr Ronaldson nil points in respect of this condition.
Substance abuse
Dr Morris, in a referral letter to Frankston Hospital of the 4 September 2017, notes Mr Ronaldson’s past history substance abuse.
An Electronic progress file note of 4 April 2018 from the Mobile Integrated Program at Peninsula Health states:
… reports Mr Ronaldson has recently been placed on a corrections based order for 12 months and is required to engage with an AOD service.
In a report dated 31 May 2018 from the Australian Community Support Organisation (ASCO) (an organisation who provide drug and alcohol, mental health and disability support services particularly for people transitioning from prison) states:
Ronaldson maintained injecting one point 2 - 3 times per week but due to being diagnosed cardiomyopathy in 2014, he decided to reduce his usage in the past 12 months, in the aims of being abstinent, and has not had the substance since December 2017. The six months prior to this, Mr Ronaldson stated he had reduced his pattern of use to injecting less than one point, once per week.
Past Treatment
Mr Ronaldson reported that he has never participated in any type of AOD counselling or treatment. He denied experiencing withdrawal and related complications, as well as hospitalisation or overdose caused by AOD use.
Mr Ronaldson gave evidence that during the qualifying period he had simply given up taking drugs as he could not have been using as he was in and out of hospital for periods of six months’ at a time. He advised the hearing that he had decided to wean himself off using because he couldn’t use when in hospital and of the impact it was having on his heart condition.
Mr Ronaldson gave evidence that during the qualifying period he had attended counselling for drug use, not for alcohol. The respondent took Mr Ronaldson to a referral from Peninsula Health to MI Health which indicated:
…client did not attend assessment and there were no goals for health.
Mr Ronaldson argued that this referral was not in respect of his health but his housing issues as he was struggling to maintain his medication regime due to being homeless at the time.
The respondent accepts that Mr Ronaldson’s substance abuse was fully diagnosed as numerous medical reports note that he suffers from addiction and amphetamine abuse. However, they contended that the condition was not fully treated and stabilised during the qualifying period as there was no evidence he had participated in any type of drug counselling or treatment program.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Ronaldson’s long-standing substance abuse was fully diagnosed, but not treated and stabilised during the qualifying period as there is no corroborating evidence that Mr Ronaldson sought treatment for this condition. Whilst the Tribunal applauds Mr Ronaldson’s efforts to personally manage this condition, there is no medical evidence to substantiate his claims that he has stopped using drugs. As such, nil points can be assigned to this condition under Table 6 (Functions Relating to Alcohol, Drug and Other Substance Use).
Other conditions
The Tribunal notes that Mr Ronaldson’s health records referred to numerous other complex medical health conditions including hypertension, hepatitis B, hepatitis C and depression. Mr Ronaldson advised the Tribunal he believed his hepatitis B and C had been treated. He did not press the other conditions as his chronic heart failure resulted in significant functional impairment.
The Tribunal, whilst noting numerous references to these conditions in the medical evidence, finds that there is insufficient evidence to determine whether they were causing Mr Ronaldson any functional impairment and therefore awards nil points to these conditions.
Impairment Rating
The Tribunal finds that Mr Ronaldson has an overall impairment rating of 10 points, with 10 points allocated under Table 1 (Functions Requiring Physical Exertion and Stamina) and nil points under Table 10 (Digestive and Reproductive Function) and Table 6 (Functions Related To Alcohol, Drug And Other Substance Use).
Does Mr Ronaldson have a continuing inability to work?
To qualify for the DSP, Mr Ronaldson must not only satisfy the requirement that he has impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate that he has a continuing inability to work. Mr Ronaldson would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to his claim for DSP and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program.
A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
Mr Ronaldson has not been found to have a severe impairment attracting 20 points under a single Table. Therefore, he must have participated in a program of support for the requisite 18 months prior to his claim.
The Respondent contended that Mr Ronaldson had not completed a POS as he had only actively participated in the POS for 341 days during the relevant period and there was insufficient evidence to satisfy any of the exemptions to the requirements.
Mr Ronaldson advised the Tribunal he had complied with all Centrelink requests in respect of the program of support. He advised that he attended all the sessions they had made for him and was of the opinion he had fulfilled this obligation.
The Tribunal finds that Mr Ronaldson had not completed a program of support as there is no evidence confirming that he had participated in such a program for the requisite 18 months prior to his claim. He therefore cannot be found to have a continuing inability to work to satisfy section 94(1)(c) of the Act. Accordingly, Mr Ronaldson cannot satisfy all the requirements under section 94(1) of the Act in order to qualify for DSP.
The respondent relied upon the findings of the JCA, which indicated that with targeted intervention Mr Ronaldson would be equipped to work at least 15 hours per week within two years.
The Tribunal notes that during the qualifying period, Dr Nagi had observed it was unlikely that Mr Ronaldson would be able to work again.
Whilst the Tribunal is of the view that Mr Ronaldson’s numerous complex impairments appear to be having a significant impact upon his functionality, however, the current medical evidence available to the Tribunal does not corroborate this finding for the qualifying period. Additionally, the Tribunal is of the view that Mr Ronaldson has no capacity for work however as none of his conditions were severe and he had not completed a program of support, he did not qualify for the disability support pension during the relevant qualifying period.
The Tribunal wishes Mr Ronaldson well and encourages him to reapply for the DSP.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of his DSP application on 14 September 2017, Mr Ronaldson did not have had the required 20 impairment points to satisfy section 94(1)(b) of the Act. Whilst the Tribunal did not need to consider whether Mr Ronaldson had a continuing inability to work as he did not have a severe impairment within the meaning of the Act, for completeness the Tribunal did consider if he had completed a program of support. As Mr Ronaldson did not have the required 20 impairment points, nor had he completed a program of support, he cannot have met all the requirements to be eligible for DSP and therefore the application cannot succeed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

......[sgd].............................................
Associate
Dated: 17 October 2019

Date of hearing: 7 August 2019

Applicant: Self-Represented

Advocate for the Respondent: Mr Pietro Nacion

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 4234

17 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	7 August 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore