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

Slade and Secretary, Department of Social Services (Social services second review) [2020] AATA 2639 (4 August 2020)
Division:GENERAL DIVISION
File Number: 2019/5894
Re:Roy Slade
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:4 August 2020
Place:Perth

The decision of the Authorised Review Officer dated 19 June 2019, as affirmed by the AAT1 on 10 September 2019, is affirmed.
......................[Sgd].............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – whether the Applicant had an impairment rating of 20 points or more – Impairment Table 4 – lower back pain – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(2)(b), 94(3B), 94(5)
Social Security (Administration) Act 1999 (Cth) – s 179(2)(a), Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(3), 6(4), 6(5), 6(6), 11, Table 4
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
4 August 2020
OVERVIEW

The Applicant is a 39-year-old man who is seeking review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of the Administrative Appeals Tribunal (the Tribunal).
The Applicant made a claim for a disability support pension (DSP) relating to his “L4/5 Back/spine” in a claim form dated 31 October 2018 (T41/196, 191) which was lodged with the Department of Human Services (Centrelink) on 1 November 2018 (T42/197). However, his claim was rejected by Centrelink on 10 January 2019 (T44/206–207) on the basis that he was not eligible. This was because he was assessed as not having an impairment rating of 20 points or more (Original Decision).
The Applicant asked for an internal departmental review of the Original Decision and on 19 June 2019, an Authorised Review Officer (ARO) of Centrelink wrote to the Applicant to advise him that his review was unsuccessful (T45/208–211) (ARO Decision).
On 25 June 2019, the Applicant sought review of the ARO Decision in the AAT1 (T46/213). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 10 September 2019 (T2/5–11). The ARO Decision of 19 June 2019, as affirmed by the AAT1 decision of 10 September 2019, is the Reviewable Decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth) (Administration Act)).
On 19 September 2019, the Applicant lodged an application seeking review of the Reviewable Decision in the AAT2 (T1/1–4).
ISSUE
The overall issue for determination by this Tribunal is whether the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment during the Qualification Period;
(b)if so, whether the impairment was fully diagnosed, treated and stabilised during the Qualification Period and attracted a rating of 20 points or more under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and
(c)whether the Applicant had “a continuing inability to work”.
LEGISLATION
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(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; …
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1)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.
Applying the Tables
(2)The Tables 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.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… 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.
(Notes omitted.)
Sections 6(5) and (6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 11 of the Impairment Tables states:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)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; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied …
“Table 4 – Spinal Function” is the table that is relevant to the Applicant’s claim for a DSP and is discussed in more detail below under the heading “Impairment Rating”.
Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(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.
(Original emphasis.)
Section 94(3B) of the Act provides that “[a] person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.” (Original emphasis.)
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Section 94(5) of the Act continues to define “work” as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
(Original emphasis.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility. The Applicant lodged his claim for a DSP on 1 November 2018. Consequently, the relevant qualification period is

1 November 2018 to 31 January 2019 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)

68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions.

It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at 7 [27] and [28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
Impairment rating
The “Introduction to Table 4” in the Impairment Tables states:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
A “mild” functional impairment of five points under Table 4 is defined as follows:
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).
(Original emphasis.)
A “moderate” functional impairment under Table 4, which would attract 10 points, is defined as:
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 the chair (if not independently mobile in a wheelchair).
(Original emphasis.)
Whereas, a “severe” functional impact under Table 4 of the Impairment Tables, which would attract 20 points, is defined as follows:
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.
(Original emphasis.)
To determine the appropriate functional impact to be assigned to the Applicant’s back condition and other medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from physical impairments during the Qualification Period?
The Secretary accepted that the Applicant had physical impairments during the Qualification Period due to his lower back pain condition, and therefore satisfied s 94(1)(a) of the Act (Exhibit R3, [23]). The Tribunal agrees that the medical evidence before the Tribunal (including the evidence contained in the Administrative Appeals Tribunal Act 1975 (Cth) section 37 Tribunal documents), supports a finding that the Applicant suffered from impairments due to his lower back pain condition during the Qualification Period.
Was the Applicant’s impairment permanent?
Before the Tribunal can assign an impairment rating the Tribunal must consider whether, on the medical evidence, the Applicant’s lower back pain condition was permanent (s 6(3) Impairment Tables). That is, whether the condition was fully diagnosed, treated and stabilised at the time of the Qualification Period and likely to persist for more than two years (s 6(4) of the Impairment Tables).

The Secretary submitted that the Applicant’s lower back condition was diagnosed but had not been fully treated and stabilised at the time of the Qualification Period because the Applicant had not undertaken all reasonable treatment at that time (Exhibit R3, [32]).
In support of this submission, the Secretary referred to various medical reports and other medical documentation (see paragraphs [32]–[34] of Statement of Facts Issues and Contentions (SFIC)). The relevant medical evidence will now be discussed.
A letter from an Occupational Therapist/Workplace Rehabilitation Consultant dated 19 February 2016 records a case conference was held with Dr Kern, consultant neurologist, on 4 February 2016 at which Dr Kern, recommended fusion surgery for the Applicant’s spine which “would likely improve his symptoms and function significantly, however may result in issues later in life” (T24/135).
A report of Professor Stokes, a neurosurgeon, dated 21 July 2016, opined that “I would recommend that Mr Slade undergoes a provocative discogram and if that is positive which I believe it will be then he should undergo and [sic] L4/5 fusion in my view rather than a disc replacement”. Professor Stokes further stated that “[i]t is to be understood that should he undergo this procedure, his work as a labourer is going to be very significantly restricted and further occupational retraining will be necessary” (T26/144).
The Applicant underwent the discogram recommended by Professor Stokes. This was confirmed in a report dated 20 February 2017, prepared by neurosurgeon Dr Holthouse, stating that the “discogram … was negative for provocation”, and that the Applicant “obtained substantial relief from a block at the L4/5 level”. After referring the Tribunal to the report of Dr Holthouse in paragraph [32.4] of the Secretary’s SFIC, the Secretary stated that “[t]he Secretary notes, as set out above, Professor Stokes opined that the applicant should undergo spinal fusion surgery if he underwent a provocative discogram that was positive” (Exhibit R3, [32.5]). However, as the Tribunal has just noted, the discogram result recorded by Dr Holthouse was negative.
Notwithstanding this negative result, a letter dated 23 March 2017 from Dr Kern advised that the Applicant had agreed to have a fusion operation (T33/152). A medical certificate from the Applicant’s general practitioner, which described the Applicant’s condition as “L4,5 degenerative changes and impingement”, noted that the condition was “temporary” and noted that surgery was booked for 7 June 2017 (T34/153). Another medical certificate dated 3 July 2017 from the Applicant’s general practitioner also noted that the Applicant’s lower back pain was “temporary” and that he had been referred to a neurosurgeon and pain specialist (T36/161).
A job capacity assessment report dated 30 June 2017 (the 2017 JCA Report), also recorded that although surgery had been booked for 7 June 2017, the Applicant had confirmed that it was not approved by his insurer and was no longer planned (T35/155).
A subsequent report closer to the Qualification Period dated 14 February 2018 written by a registrar in pain management and a consultant in pain management from Fiona Stanley Hospital (in Exhibit A5, page 3 of report) (the Pain Management Report) stated that the Applicant:
… did inquire if there was any avenue for surgical interventions for pain management and I suggested lifestyle modification and managing his pain through non-surgical, pharmacological and non-pharmacological means would probably be the best option moving forward.
Although this report did not recommend further surgical intervention, the report recommended that the Applicant undertake the Pain Understanding Management Program (PUMP), whereby he would receive assistance with his physical therapy from a physiotherapist and occupational therapist. This report further stated that:
… hydrotherapy can be discussed and specific back and core muscle strengthening exercises targeting the multifidus, quadratus lumborum, erector spinae, rectus abdominis and lateral oblique can also be addressed.
He is happy to be discharged from this clinic, but I think ongoing engagement with Pain Understanding Management Program (PUMP) would be important. In the long term, I think it would be ideal for him to return [to] some sort of work as this would have not only a positive effect financially, but also improve mood and physical symptoms.
(Original emphasis.)
However, a further JCA Report of 10 January 2019 (the 2019 JCA Report), written towards the end of the Qualification Period, records that the Applicant was on the waiting list for the PUMP program (T43/200).
Thus, some of the medical evidence before the Tribunal is contradictory. The evidence of Professor Stokes and Dr Kern was that further surgical intervention (spinal fusion) was required. This is supported by the evidence of the Applicant’s general practitioner that his back condition was temporary, and that the spinal fusion surgery had been scheduled. Additionally, it was recorded in the 2017 JCA Report that the Applicant did not have this surgery because his insurer would not pay for it. At the AAT2 hearing, the Applicant also stated that he could not afford the surgery, and that he did not think it was reasonable treatment if he could not afford it (transcript/20).
However, the Pain Management Report, which was closer to the Qualification Period, did not recommend further surgical intervention, but did recommend engagement in the PUMP programme.
The Secretary has submitted that the Tribunal should prefer the evidence of Professor Stokes and Dr Kern from 2016 and 2017, due to their specialisation in neurosurgery, over the opinion of the registrar in pain management and consultant in pain management. The Secretary further noted that the registrar and consultant may not have been aware of the neurosurgeon’s prior opinions that spinal fusion surgery should be undertaken because their opinions were not referenced in the Pain Management Report (Exhibit R3, [34] and [35]).
Although the Tribunal prefers the evidence of the registrar and consultant which is more proximate to the Qualification Period, this evidence also indicates that the Applicant’s back pain condition was not fully treated and stabilised because he had not undertaken the PUMP program, and was on the waiting list for the program towards the end of the Qualification Period.
Consequently, the Tribunal finds that, at the Qualification Period, the Applicant’s lower back condition was diagnosed, but was not fully treated and stabilised. This means that the Tribunal does not need to proceed to assign an impairment rating and does not need to consider whether the Applicant has a continuing inability to work.
However, for completeness, even if the Applicant’s lower back condition was fully diagnosed treated and stabilised at the Qualification Period, the Tribunal is also of the opinion that the Applicant would not have met the other eligibility criteria for a DSP at the Qualification Period for the reasons set out below.
Did the Applicant have an impairment rating of at least 20 points under Impairment Table 4?
Based on the evidence of the Applicant and the medical evidence before the Tribunal, which will be discussed in the following paragraphs, the Tribunal finds that the functional impact of the Applicant’s back condition was “moderate”, as defined by Table 4 of the Impairment Tables, and would therefore have an impairment rating of 10 points.
A medical report by Professor Stokes dated 21 July 2016 recorded that “[b]ending, standing still, sitting, twisting, lifting weights in excess of 5kg always produces significant back pain” (T26/144). Professor Stokes further stated that the Applicant’s:
… lumbar spine… has very restricted movement in all movements of forward flexion, lateral extension and lateral rotation and the restriction is by at least 80% of normal activities. His [sic] is tender in the midline of the lumbar spine. His lower limb examination indicated that his reflexes are all intact and there is no sensory abnormality, but straight leg raising was reduced to 35 degrees bilaterally because of pain.
(T26/144.)
Professor Stokes also stated that:
Since the injury he states he cannot service his own car which he used to do and he keeps tropical fish but has had difficulty and is much slower with water changes because of his back. He can no longer mow the lawn and he states that general house maintenance and housework has been significantly reduce [sic] because of back pain.
(T26/143.)
The 2017 JCA Report stated:
During the JCA Mr Slade reported the following functional impacts; experiences pain across the lower back which travels into the left buttock. He is unable to stand still for more than 5 minutes before experiencing leg spasm/shaking. He can mobilise for up to 10 minutes and remain seated for 5- 10 minutes maximum before significant increase in back pain. Mr Slade said he can bend down to his knees before experiencing ‘major’ back pain. He needs help from his wife with showering, he cannot bend down to put on socks or tie shoes, at times needs help putting his jeans on and getting up off the toilet. He can sit and drive a car for 10-15 minutes before needing to pull over and get out of the car to move around. He can sit in the car as a passenger for a little longer. Mr Slade said he is able to do a little bit of sweeping ‘on a good day’ and struggles to do a load of washing. Assessor observed Mr Slade to appear in discomfort throughout the assessment. He sat on the chair with arms taking his weight through the armrests, so as to relieve pressure on the lower back. He alternated sitting and standing position every five or so minutes throughout the appointment, and repositioned frequently when seated.
(T35/156.)
The Pain Management Report recorded that sitting and walking for more than 10 minutes were aggravating factors for the Applicant. This report also records that the Applicant “needs assistance with personal activities of daily living… such as showering, assistance with dressing his lower limbs and transferring in and out of bed”. The Pain Management Report further stated that the Applicant was able to drive short distances, and that he had “reduced overall balance…[being] unable to perform a single leg stand or perform tandem walking”.
The 2019 JCA Report noted the results from the Pain Management Report (discussed in the paragraph immediately above) and recorded that:
Roy advises that he is able to turn his head without turning his trunk, but is unable to sustain tasks above his head. He also needs assistance with socks and shoes and lifting his feet, but can bend just above his knees. Roy reports that his balance is OK and he is able to drive the children to school. He advised that he has spasms in his knee and is prone to falls, tripping with his right foot. Roy reports that he uses the roof of his car to get in and out and does not use a stick for walking.
As in previous JCA, Roy was observed to sit on his chair with his arms taking his weight through the armrests, so as to relieve pressure from his lower back. He was able to rise from his chair unaided and walk around.
(T43/201.)
In its reasons for decision dated 10 September 2019, the AAT1 recorded the Applicant’s evidence, given at the AAT1 hearing as follows:
Back pain severely restricts his activities. He relies heavily on his wife, who receives a carer’s allowance, for assistance with day-to-day activities. He can only walk slowly and trips over sometimes. Walking to the local shop, about 200 metres, can take 20 minutes. He does not use a walking stick, but thinks he probably should. He drives his car for short journeys of about 10 minutes. He cannot use public transport or go to the shops on his own. He can manage activities at table height but cannot bend to pick things off the floor. He needs help to wash his hair and cannot put on his shoes and socks. He can hang a single shirt on the washing line, but cannot sustain activities above head height.
(T2/10.)
The Applicant’s evidence at the AAT2 hearing was consistent with his earlier evidence at the AAT1 hearing. At the AAT2 hearing, the Applicant emphasised a handwritten note from his general practitioner dated 26 September 2017 (T37/162–163). The handwritten note stated that he had lost almost 86% (the Tribunal notes that the doctor’s handwriting is unclear and could be interpreted to read 80, 85 or 86%) of movement in his back (transcript/22), which the Applicant contended to be “a large thing that needs to be looked at” (transcript/23). The Tribunal infers that the Applicant’s submission was essentially that this is demonstrative of a serious impairment (and a rating of 20 points).
At the AAT2 hearing, the Applicant also described the following functional impacts during the Qualification Period:
I can peg one shirt and one pair of pants on the line, but I can’t sustain it. (Transcript/23.)
I need help putting my socks and shoes on … and I need help to get off the toilet at least three, four times a week... (Transcript/26.)
I can’t sit any longer than five to ten minutes without significant pain and discomfort. (Transcript/27.)
… I could sit, legally and physically drive, I could push it possibly to 15 minutes… But more to the ten. If - I could – like, if I’m driving on the freeway, it’d just take me from Mandurah to Perth two and a half hours to drive because I had to stop and get out. What’s meaning by the 15 minutes is, when my back’s playing up that much and I’ve got to start fidgeting, if I can’t pull up safely, like on the freeway or something, I’ll push it and put myself in tears to make it that extra bit so I can pull up and get off the road and get out. (Transcript/28.)
In the following exchange, the Applicant clarified a finding of the 2017 JCA Report:
MS DINKAH: … you also told the Job Capacity Assessor that you could bend down to your knees before experiencing knee to back pain?
APPLICANT: That’s – that’s taken out of context. My precise words to Centrelink was I could reach just above my knees, which my arms – which is my straight arm standing, at a fraction bent, not bending to my knees… yes, my precise words to the job capacitor was, ‘I can reach just above my knees.’ Which is my arm length, which I’m pretty sure if you check your arm you could reach just above your knee with your hand straight down, without bending.
(Transcript/28.)
The Applicant also agreed that he could manage activities at table height but couldn’t bend to pick things up from the floor (transcript/31).
For the Applicant to have a severe functional impact attracting 20 points under Table 4, he must be “unable” to undertake the listed activities. This means that the person cannot undertake these activities at all. These include being unable to perform any overhead activities, being unable to turn their head or bend their neck without moving their trunk, being unable to bend forward to pick up a light object from a desk or table, and being unable to remain seated for at least 10 minutes.
However, during the Qualification Period the Applicant could peg one shirt and a pair of pants on the line but could not sustain this activity, as opposed to not being able to perform any overhead activities at all. This is more consistent with a moderate 10-point rating.
The 2019 JCA Report also states that he could turn his head or bend his neck without moving his trunk. Additionally, although there was reference to a loss of 80% (or 86%) movement in the Applicant’s back, the medical evidence does not specifically confirm that the Applicant was unable to perform any overhead activities or turn his head or bend his neck without moving his trunk. According to the Applicant’s evidence at the AAT1, he could manage activities at table height but could not bend to pick things off the floor. Other evidence included that the Applicant needed help with his socks and shoes, but could reach to knee level without bending, suggesting that he could not bend to pick up a light object placed at knee height, but that he could at table height. This conclusion is supported by the 2016 report by Professor Stokes which recorded restricted movement in all movements of forward flexion (T26/144). This is also consistent with a moderate rating of 10 points. A severe rating requires an inability to pick up an item from a desk or table. However, the 2019 JCA Report stated that the Applicant could pick up items at table height.
The medical evidence before the Tribunal corroborates the Applicant’s evidence that he could sit or drive for 10 minutes, even though he experienced discomfort. However, for a “severe” impairment rating the Applicant needed to be “unable to” sit for at least 10 minutes.
At the AAT2 hearing, the Applicant also described needing assistance to get up out of a chair or off the toilet on occasion, which is also consistent with a moderate rating.
Thus, during the Qualification Period, the evidence from the Applicant and the medical evidence before the Tribunal supports a finding of a “moderate” functional impairment under Table 4, which would attract a rating of 10 points under that Table.
Continuing inability to work
Even if the Applicant’s conditions did attract the required 20 points under the Impairment Tables, the Applicant would also not have satisfied the eligibility criteria of having “a continuing inability to work” under s 94(1)(c)(i) of the Act at the Qualification Period. Although the Applicant would not have to undertake a program of support if his impairment was “severe” and attracted a rating of 20 points, he would nevertheless need to be unable to work for at least 15 hours per week (see s 94(2)(b) and s 94(5) of the Act).
However, the Tribunal notes that the 2019 JCA Report assessed the Applicant as having a capacity for work, within 2 years with intervention, of 15–22 hours a week of “light less skilled work” (T43/203). It therefore could not be concluded that the Applicant had a continuing inability to work at the Qualification Period. This means that he did not satisfy the eligibility criteria in s 94(1)(c) of the Act.
CONCLUSION
During the Qualification Period the Applicant was not eligible to receive a DSP. This is because his back condition was not fully treated and stabilised at the Qualification Period.
Even if his back condition could be regarded as fully diagnosed, treated and stabilised at the Qualification Period, the Applicant’s back condition could only be afforded 10 points under Table 4 of the Impairment Tables based on the evidence of functional impact at that time and because he did not have a continuing inability to work.
The Tribunal understands that this decision will be disappointing for the Applicant, especially as the Applicant advised the Tribunal at the hearing that he had recently made a new claim for a DSP that had been rejected, based on the 2019 JCA Report. If this was the basis for the rejection, the Tribunal would request that a new assessment should be undertaken, based on up-to-date medical evidence. This up-to-date medical evidence may show that the condition has now been fully diagnosed, treated and stabilised, and may further demonstrate the functional impacts of the Applicant’s back condition, which may have changed since the last qualification period. Depending on the current medical evidence before the decision-maker at the time, the Applicant’s ability to work within the next two years may also have changed.
DECISION
For the reasons set out above, the Applicant did not meet the eligibility requirements for a DSP during the Qualification Period. Consequently, the Reviewable Decision is affirmed.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

....[....................................................................
Associate
Dated: 4 August 2020

Date of hearing: 22 May 2020

Applicant: Self-represented

Counsel for the Respondent: Sarah Dinkha

Solicitors for the Respondent: Services Australia

[2020] AATA 2639

4 August 2020

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Date of hearing:	22 May 2020
Applicant:	Self-represented
Counsel for the Respondent:	Sarah Dinkha
Solicitors for the Respondent:	Services Australia