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

[2023] AATA 3309

Roos and Secretary, Department of Social Services (Social services second review) [2023] AATA 3309 (17 October 2023)

Division:GENERAL DIVISION

File Number:2022/8254          

Re:Mr Kevin Roos  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:17 October 2023

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 6 September 2022, to reject the applicant’s claim for the Disability Support Pension.

..............................[SGD]..........................................

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – Appeal of decision of Social Services and Child Support Division – whether applicant had impairments during the Qualification Period that were fully diagnosed, stabilised and treated – where submissions included self-diagnosis not corroborated by medical evidence – where reasonable treatment measures not followed in their entirety – section 94(1)(b) of Social Security Act 1991 (Cth) not satisfied – decision affirmed

LEGISLATION

SOCIAL SECURITY (ADMINISTRATION ACT) 1999 (CTH)

SOCIAL SECURITY ACT 1991 (CTH)

SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (CTH)

SOCIAL SECURITY (ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2014 (CTH)

CASES

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

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Senior Member B. Pola

17 October 2023

BACKGROUND

1. On 24 August 2021, the applicant, Mr Kevin Roos, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Centrelink[1].

   [1] Exhibit TR1, Section 37 T Documents, T10, page 124.

2. On 31 December 2021, the applicant was advised by Centrelink that his claim for the DSP was rejected[2].

   [2] Exhibit TR1, Section 37 T Documents, T12, pages 176 and 177.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) on 19 April 2022, after an internal review by Centrelink on 31 December 2021[3].

   [3] Exhibit TR1, Section 37 T Documents, T12, pages 176 and 177, T16, pages 217 to 222.

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review Centrelink’s decision to reject his claim for the DSP. On 6 September 2022, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[4].

   [4] Exhibit TR1, Section 37 T Documents, T2, pages 13 to 22.

5. The applicant applied to the General Division of the Tribunal for a second review of this decision on 15 November 2022[5].

   [5] Exhibit TR1, Section 37 T Documents, T1, pages 1 to 12.

   JURISDICTION

6. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

7. The applicant’s claim of 24 August 2021 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, as per the decision dated 19 April 2022. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on 6 September 2022.

8. In accordance with section 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 24 August 2021.

   ISSUES

9. The issue before the Tribunal for consideration is whether the applicant was qualified to receive the DSP in relation to his claim lodged on 24 August 2021 and ending 13 weeks later, on 23 November 2021 (herein referred to as the ‘Qualification Period’)[6].

   [6] The Qualification Period is discussed in later paragraphs of this decision.

10. The issues for the Tribunal to determine in respect of the applicant’s claim for the DSP are:

    (a)Whether the applicant had impairments during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’)?

    (b)Whether the applicant’s impairments attract 20 points or more under the Impairment Tables, contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

    (i)If so, did the applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    RELEVANT LEGISLATIVE FRAMEWORK

11. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    94 Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

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

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

    (c)one of the following applies:

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

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system

12. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of 20 points or more under one (or several) Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as ‘POS’).

13. Section 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[7] and determine whether the decision was the correct or preferable one based on the material before it[8].

    [7]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [8]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

15. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

16. Section 6 of the Determination provides that, “the impairment of a person must 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”[9]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[10].

    [9]     Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), section 6(1).

    [10] Ibid, section 6(2).

17. An Impairment Rating may only be assigned to an impairment if[11]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of the evidence, to persist for more than two years.

    [11] Ibid, section 6(3).

18. Further, for a condition to be considered permanent pursuant to section 6(3)(a) of the Determination, the condition must also[12]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [12] Ibid, section 6(4).

19. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[13]:

    (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 two years.

    [13] Ibid, section 6(5).

20. A condition is considered fully stabilised if[14]:

    (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 two 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 two 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.

    [14] Ibid, section 6(6).

21. Reasonable treatment is a treatment that[15]:

    (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.

    [15] Ibid, section 6(7).

22. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

23. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence and how to assign Impairment Ratings.

24. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

25. Meanwhile, section 11(1) of the Determination provides that in assigning an Impairment Rating, “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

26. As previously detailed in paragraph 10 of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act stipulates that:

    (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.

27. A “severe impairment” is defined in section 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.

28. 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.

29. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on 3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate that they have actively participated in a POS.

    QUALIFICATION PERIOD

30. Schedule 2, Part 2, section 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[16].

    [16]    Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

31. For the purposes of this decision, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 24 August 2021[17] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 23 November 2021.

    [17]   Exhibit TR1, Section 37 T Documents, T10, page 124.

32. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or otherwise) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[18].

    [18]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at [31].

    CONSIDERATION

33. The application was heard in Brisbane on 20 September 2023 with all parties appearing by telephone. The applicant was self-represented, and the respondent was represented by                 Mr Samuel Harvey from Services Australia (also present was Ms Simone Cameron from Services Australia but in an observing capacity). The Tribunal considered oral submissions made by the applicant and respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

    Section 94(1)(a) of the Act (physical, intellectual, or psychiatric impairment)

34. There is mention in the submissions before the Tribunal that the Applicant has in the past suffered from a range of medical conditions, some of which were detailed in a discharge summary with respect to the applicant’s hospital admissions in both late February 2021 and June 2021[19]. These past medical conditions were stated as being hyperlipidaemia, hypertension, gastro-oesophageal reflux disease, Barrett’s oesophagitis, and Bell’s palsy.

    [19] Exhibit TR1, Section 37 T Documents, T13, page 194 and 199.

35. With respect to these listed medical conditions, there is a lack of detail in the evidence before the Tribunal which indicates the following:

    (i)a prognosis;

    (ii)whether the conditions had been treated and stabilised;

    (iii)confirmation of whether the conditions were permanent;

    (iv)past or current recommended treatments; or

    (v)whether the conditions were more likely than not to exist for more than two years.

36. Therefore, given the lack of further corroborative medical evidence with respect to the above-mentioned conditions, the Tribunal was unable to consider them as part of the application.

37. Additionally, there is reference in a Health Professional Advisory Unit report dated    21 April 2023 of the applicant suffering from a mental health condition with reference to medication prescribed and dispensed per the applicant’s pharmaceutical records[20].  During the course of the hearing the applicant referred to himself as suffering from mental health issues[21]. The Tribunal observes that there is no corroborative medical evidence in the form of a diagnosis from either a psychiatrist, or clinical psychologist with respect to any active or inactive mental health condition of the applicant.

    [20] Exhibit TR2, Updated Supplementary Section 37 T Documents, ST1, page 8; ST2, pages 30 to 39.

    [21] Transcript, 20 September 2023, page 8, lines 32 to 36.

38. The Tribunal notes that the introduction to Table 5 – Mental Health Function within the Direction, stipulates that diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner including a psychiatrist, with evidence from a clinical psychologist (in circumstances where the diagnosis has not been made by a psychiatrist). In the absence of a diagnosis from a psychiatrist, or clinical psychologist referable to the Qualification Period, any mental health condition of the applicant cannot be considered diagnosed. Therefore, the Tribunal was unable to assess the condition or assign an Impairment Rating as part of this application.

39. When the applicant was asked to indicate his disabilities or medical conditions in his application for the DSP, the applicant indicated he suffered from “sleep apnea (severe)” [sic], and “heart condition”[22]. The Tribunal is satisfied, after careful review of the evidence, that the applicant suffered impairments during the Qualification Period with respect to satisfying section 94(1)(a) of the Act, a point which was accepted by the respondent[23]. On review of the evidence before the Tribunal, the Tribunal finds the following impairments relevant to this application:

    (a)Heart condition;

    (b)Sleep apnoea; and

    (c)Chronic Fatigue Syndrome.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

    [22] Exhibit TR1, Section 37 T Documents, T10, page 148.

    [23] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 8, paragraph 36.

40. The Tribunal will now consider each impairment identified with respect to the application of section 94(1)(b) of the Act, and whether they meet the relevant provisions contained within the Determination.

    (a)Heart condition

41. A patient health summary dated 10 January 2012 refers to the applicant’s past history of acute coronary syndrome from 27 November 2010 and myocardial infarction from  3 December 2010[24].

    [24] Exhibit TR1, Section 37 T Documents, T6, page 117.

42. On 17 and 18 June 2021, the applicant was admitted to Prince Charles Hospital, and was diagnosed with coronary artery disease by a treating specialist. The discharge summary from this admission confirmed the applicant received treatment by way of a planned Percutaneous Coronary Intervention (or “PCI”) to his Left Anterior Descending (or “LAD”) artery and the treating specialist instructed the applicant’s general practitioner (in addition to other recommendations) to, “… please ensure he has ongoing follow-up with his local cardiologist…”[25]. The Tribunal notes the applicant’s pharmaceutical record confirms he is also treating this condition with medication[26].

    [25] Exhibit TR1, Section 37 T Documents, T13, page 196.

    [26] Exhibit TR2, Updated Supplementary Section 37 T Documents, ST2, page 35.

1. It is clear from the corroborative evidence in the above-mentioned paragraphs that for the purposes of satisfying section 6(3)(a) of the Determination, the applicant’s heart condition is considered fully diagnosed.

2. In terms of assessing whether the applicant’s heart condition would be considered fully treated and fully stabilised in accordance with the Determination, the Tribunal refers to the following evidence:

   (a)A letter dated 15 August 2022 by a General Medicine Physician at Rockhampton Hospital stated that the applicant, “… hasn’t had any cardiology follow up since he had the stent done in 2021…”[27].

   (b)A treating specialist recommended in the discharge summary from the applicant’s admission to Prince Charles Hospital in June 2021, that the applicant, “… continue to optimise his cardiac risk factors…”[28]. A further recommendation from the treating specialist to the applicant’s General Practitioner stated[29]:

   “… 1. Optimise medical therapy.

   2. Risk factor modification including: no smoking, cholesterol reduction and regular exercise as per guidelines.

   3. Aspirin 100mg/d indefinitely.

   4. Clopidogrel 75mg/d for 12 months.

   5. Switch Perindopril to Ramipril and uptitrate to target 10mg.

   6. Follow up in Rockhampton…”

   [27] Exhibit A2, pages 6 and 7 of 12.

   [28] Exhibit TR1, Section 37 T Documents, T13, page 196.

   [29] Exhibit TR1, Section 37 T Documents, T13, page 199.

3. The Tribunal is of the view that the above recommendations of the applicant’s treating specialist would be considered reasonable treatment in accordance with the Determination[30].

   [30] Section 6(7) of the Determination.

4. With respect to whether the applicant had taken measures to optimise his cardiac risk factors as recommended by the treating specialist, the Tribunal heard evidence from the applicant during the course of the hearing that he had until recently been a heavy smoker for most of his life. The applicant stated that around the time of June 2021 he would have been smoking more than 20 cigarettes a day. He further stated that approximately 12 months ago (September 2022), this had been cut down to 10 cigarettes a day. To the applicant’s credit, he stated that he recently ceased smoking altogether approximately three to four months ago without any assistance[31].

   [31] Transcript 20 September 2023, page 12, lines 34 to 43.

5. The applicant submitted that he recently had engaged a dietitian and exercise physiologist to assist in reducing his weight, as he had only recently learnt that such services were possible through bulk billing[32].

   [32] Transcript 20 September 2023, page 14, lines 24 to 25, page 30, lines 23 to 25.

6. When the applicant was questioned as to whether he had a follow up appointment with a cardiologist following the planned PCI in June 2021 at Prince Charles Hospital, the applicant during cross examination stated that he had seen his General Practitioner within a fortnight of returning to Rockhampton from Brisbane where he sought treatment[33]. He stated that it was difficult to access a cardiologist that would bulk bill and private costs of such appointments were too expensive[34].

   [33] Transcript 20 September 2023, page 16, lines 8 to 9.

   [34] Transcript 20 September 2023, page 30, lines 24 to 29.

7. In assessing whether the applicant’s heart condition would be considered fully treated and fully stabilised in accordance with the Determination, the evidence of the applicant at the hearing was that they had only recently begun to address the recommendations which the treating specialist set out in their report of June 2021. Additionally, it is self-reported evidence; it is not evidence from an appropriately qualified medical practitioner. The Tribunal is of the view that this has occurred well outside the Qualification Period for this application (being 24 August 2021 to 23 November 2021). Additionally, no follow up consultation occurred with respect to seeing a cardiologist.

8. The Tribunal is of the view that the applicant’s heart condition is not considered fully treated or fully stabilised prior to, or during the Qualification Period, therefore an Impairment Rating could not be assigned.  

9. The Tribunal notes at the commencement of the hearing, the respondent recanted their position in their Statement of Facts, Issues and Contentions (paragraphs 40 to 44) with respect to the applicant’s heart condition due to the lack of a follow up appointment by the applicant with a cardiologist following their planned PCI in June 2021[35]. Exhibited evidence of the applicant confirmed that no follow up appointment had occurred with a cardiologist per a letter dated 15 August 2022 by a General Medicine Physician at Rockhampton Hospital[36].

   [35] Transcript 20 September 2023, page 5, lines 25 to 31.

   [36] Exhibit A2, page 6 of 12.

   (b)      Sleep apnoea

10. With respect to the applicant’s sleep apnoea condition, the Tribunal notes a sleep study was conducted on 16 July 2021, and it was recommended by a specialist that[37]:

    (a)the applicant trial CPAP therapy;

    (b)general measures of weight reduction sleep hygiene optimisation, and avoidance of alcohol and sedatives should be implemented; and

    (c)consider evaluation of nasopharyngeal airway.

    [37] Exhibit TR1, Section 37 T Documents, T1, page 8.

11. The Tribunal is of the view that the above recommendations of the applicant’s treating specialist would be considered reasonable treatment in accordance with the Determination[38].

    [38] Section 6(7) of the Determination.

12. During the course of the hearing when the applicant was questioned as to his use of the CPAP machine, he stated that he found it difficult to sleep with the machine, as he was a stomach sleeper, and did not find it helpful[39]. A letter dated 15 August 2022 by a General Medicine Physician at Rockhampton Hospital made the following findings with respect to the applicant[40]:

    “… The clinic referral is for ongoing shortness of breath. As per the patient he has shortness of breath on minimal exertion as well as rest for 18 months. He denies any cough. He doesn't have evidence of orthopnoea or paroxysmal nocturnal dyspnoea however he complains of bilateral lower limb swelling for a few months. He denies any chest pain.

    He was diagnosed to have obstructive sleep apnoea after a sleep study and he was advised to use a CPAP machine at night. However, he is not using the CPAP machine at night as he is sleeping in a prone position and he couldn't wear the machine at night because of that position. He is also a heavy smoker having 30 to 40 pack years however he has been able to cut down his cigarette smoking to 10 cigarettes per day. He is a non alcoholic and has been unemployed for 18 months due to this shortness of breath.

    On examination his BMI is 44.7, saturation 99 on room air and blood pressure was 152/83. His lungs were clear and he had bilateral mild pedal oedema.

    His shortness of breath could be multifactorial. It could be because of obstructive sleep apnoea as well as chronic lung disease caused by smoking. My plan is to do a cardiology referral as he hasn't had any cardiology follow up since he had the stent done in 2021. I have also ordered a TTE and lung function test.

    I am going to do a chart review in 1 months' time to chase the results of the above investigations. I also note that he is awaiting further ENT follow up. I will update you once I get these results…”  

    [39] Transcript 20 September 2023, page 22, lines 15 to 20.

    [40] Exhibit A2 page 6 of 12.

13. Again, the Tribunal is of the view that the recommendation of the above clinician that the applicant undergo review with an Ear Nose and Throat (herein referred to as “ENT”) specialist, and relevant cardiac follow up and lung function tests, all constitute reasonable treatment in accordance with the Determination[41].

    [41] Section 6(7) of the Determination.

14. The Tribunal is of the view that the applicant’s sleep apnoea is considered fully diagnosed and is corroborated by medical evidence outlined in the above paragraphs for the purposes of satisfying section 6(3)(a) of the Determination.

15. In assessing whether the applicant’s sleep apnoea would be considered fully treated and fully stabilised in accordance with the Determination, the Tribunal observes the applicant stated that he was still awaiting an appointment with an ENT specialist[42].

    [42] Transcript 20 September 2023, page 24, lines 32 to 34.

16. During the course of the hearing the applicant confirmed that he had not had discussions with his General Practitioner with respect to improving his sleep hygiene[43].

    [43] Transcript 20 September 2023, page 23, lines 17 to 19.

17. Further, as outlined in earlier reasons with respect to the applicant’s heart condition, the applicant has only recently begun to undertake measures to address his weight (through the engagement of a dietician) and attempted to improve his functional mobility (through the engagement of an exercise physiologist), although this was self-reported evidence of the applicant and not confirmed by an appropriately qualified medical practitioner. The Tribunal is of the view that this has occurred well outside the Qualification Period for this application (being 24 August 2021 to 23 November 2021).

18. With respect to the applicant’s sleep apnoea condition, the Tribunal is of the view that it is not considered fully treated or fully stabilised prior to, or during the Qualification Period, therefore an Impairment Rating could not be assigned. 

    (c)       Chronic Fatigue Syndrome

19. Centrelink records before the Tribunal confirm the applicant was a past recipient of the DSP, which had been granted to him from March 2000 through to May 2012, and it was cancelled from 1 March 2016[44]. Evidence before the Tribunal refers to a past diagnosis for Chronic Fatigue Syndrome, which was documented in a Job Capacity Assessment Report dated               20 June 2008, which stated the applicant was assigned a severe Impairment Rating of 20 points. The report stated the following[45]:

    “… Condition: Chronic Fatigue Syndrome

    Type: Permanent

    This condition is: Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised.

    Remarks: The client advised that he is receiving supportive treatment through his GP. He has previously been treated for Glandular Fever and Ross River Fever which resulted in his current chronic fatigue…”

    [44] Exhibit TR1, Section 37 T Documents, T21, page 228.

    [45] Exhibit TR1, Section 37 T Documents, T4, page 103.

20. An Employment Services Assessment Report dated 12 January 2012 referred to the applicant’s Chronic Fatigue Syndrome and stated that, “… The client was diagnosed with Chronic Fatigue Syndrome in 2001. This condition was unable to be verified at the current assessment. There is no treatment available…”[46].

    [46] Exhibit TR1, Section 37 T Documents, T5, page 112.

21. The only contemporaneous medical evidence before the Tribunal with respect to this condition is a medical certificate signed on 24 October 2022 and 8 February 2023 by the applicant’s treating General Practitioner, which listed the primary condition as Chronic Fatigue Syndrome. This medical certificate further stated that the condition was temporary and gave a prognosis that the symptoms would last more than 24 months, further stating the applicant was unable to work more than 8 hours per week[47]. This evidence falls outside the Qualification Period for this application and therefore is unable to be considered as part of this application.

    [47] Exhibit TR2, Supplementary Section 37 T Documents, ST4, page 42.

22. Although the applicant did not state Chronic Fatigue Syndrome on his signed application for the DSP, at the hearing he told the Tribunal that he considered this condition the primary condition impacting his health and functional ability[48]. During cross-examination the applicant stated that he has had difficulties getting this condition diagnosed, due to difficulties accessing a specialist, in addition to medical practitioners taking the view that his obesity and physical condition was the cause of his fatigue, not Chronic Fatigue Syndrome[49].

    [48] Exhibit TR1, Section 37 T Documents, T10, page 148.

    [49] Transcript, 20 September 2023, page 30, lines 35 to 36.

23. The Tribunal is of the view that there is a lack of corroborative evidence to support the applicant’s self-reported symptoms and views as to this condition. The Tribunal notes that with respect to the self-reported symptoms of the Applicant, 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”. Further, the introduction to all Impairment Tables in the Determination requires there to be corroborating evidence, and that self-reported symptoms alone are insufficient.

24. With respect to the applicant’s Chronic Fatigue Syndrome, the Tribunal is of the view that it is not considered fully treated or fully stabilised prior to, or during the Qualification Period, therefore an Impairment Rating could not be assigned. 

    Summary

25. The Tribunal has found that none of the applicant’s conditions were able to be assigned Impairment Ratings under section 94(1)(b) of the Act.

26. As the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

27. Although the Tribunal has found the applicant was not successful in his application for the DSP, the Tribunal notes that this decision does not prevent the applicant from making a new claim for the DSP.

    DECISION

28. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 6 September 2022, to reject the applicant’s claim for the Disability Support Pension.

    I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ……………[SGD]….……………

    Associate

    Dated: 17 October 2023

    Date of hearing:  20 September 2023

    Applicant:  Mr Kevin Roos

    Solicitor for Respondent:       Mr Samuel Harvey (Services Australia)

    Observer for Respondent:     Ms Simone Cameron (non-participant at the hearing, Services Australia)

    Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
TR1.	Section 37 T-Documents (T1-T24, pp 1-274)	R	-	13.12.2022
TR2.	Updated Supplementary Section 37 T-Documents (ST1-ST8, pp 1-82)	R	-	17.07.2023
R1.	Respondent Statement of Facts, Issues and Contentions	R	17.07.2023
A1.	Application For Administrative Access to Health Records	A	27.09.2022 (Acknowledgment letter) 21.09.2022 (Application form)	27.09.2022
A2.	Ambulatory Registration & Clinical Notes	A	-
A3.	Referral Refusal Letter	A	29.08.2022
A4.	Applicant email enclosing written information (part of application for review correspondence)	A	11.11.2022	11.11.2022