Stafford and Secretary, Department of Social Services (Social services second review) - [2018] AATA 1276

Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 1276 (2 May 2018)
Division:GENERAL DIVISION
File Number: 2017/1665
Re:Stephen Stafford
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Member C Edwardes
Date:2 May 2018
Place:Perth

The Tribunal sets aside the decision under review and in substitution decides that Mr Stafford, on 22 March 2016, was not qualified for the disability support pension under s 94 of the Social Security Act 1991 (Cth).
.....[sgd]...................................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant has 20 impairment points – whether applicant has severe impairment – application of multiple Impairment Tables – osteoarthritis condition – mental health condition – sleep apnoea condition – whether applicant has continuing inability to work – whether applicant has completed program of support – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) –– ss 94(1) – ss 94(2)– ss 94(3) – ss 94(3A) – ss 94(3B) – ss 94(3C) – ss 94(5)
Social Security (Administration) Act 1999(Cth) – Sch 2, Cl 4(1)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Larkin and Secretary, Department of Social Services [2018] AATA 342
SECONDARY MATERIALS
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – pages 8, 19 – 23, 34 – 35, 44
Social Security (Active Participation for Disability Support Pension) Determination 2014 – s 5 – s 7, ss 7(2) – (5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, ss 5(2), ss 6(1), ss 6(3)–(9), s 8(1), Tables 1, 2, 3, 4, 5 and 7
The Guide to Social Security Law – Part 3.6.3
REASONS FOR DECISION
Member L M Gallagher
Member C Edwardes
2 May 2018
INTRODUCTION

On 22 March 2016, Mr Stafford lodged an application for Disability Support Pension (“DSP”) with the Department of Human Services (“the Department”) (T26 and T38 at page 315).
On 10 May 2016, a Job Capacity Assessment (“JCA”) (face to face) was undertaken by a Social Worker and by a Rehabilitation Counsellor and a report was produced on the same date (T27). The JCA report states that Mr Stafford’s conditions of osteoarthritis, adjustment disorder with depressed and anxious mood and sleep apnoea were all fully diagnosed, fully treated and fully stabilised (T27, pages 260, 262 and 263) and together, achieved a total impairment rating of 20 impairment points as follows (T27, page 265):
(a)Osteoarthritis – 10 points under Table 4 (Spinal Function), 5 points under Table 2 (Upper Limb Function) and 5 points under Table 3 (Lower Limb Function);
(b)Adjustment disorder with depressed and anxious mood – 0 points under Table 5 (Mental Health Function); and
(c)Sleep apnoea – 0 points under Table 1 (Functions Requiring Physical Exertion and Stamina).
The JCA report dated 10 May 2016 also noted that:
(a)Mr Stafford’s baseline work capacity and his capacity for work within two years with intervention were both 8 to 14 hours per week (T27, page 267); and
(b)Mr Stafford was yet to participate in a program of support (T27, page 266) and the JCA recommended that Mr Stafford be referred to a Disability Management Service (T27, page 268).
On 23 June 2016, the Department rejected Mr Stafford’s claim for DSP on the basis that Mr Stafford had not “actively participated in a program of support to help [Mr Stafford] find and keep work” (T32, page 279).
On or about 4 July 2016, Mr Stafford was referred to Essential Personnel (a program of support provider) in Armadale (T36, page 297 and T39, page 316). Mr Stafford’s referral history records his participation start date as 4 July 2016 and his participation end date as 25 August 2016, the “End Reason” recorded as being “Work Cap with Intervention 8-14 hrs requested Exit” (T36, page 297).
An “Information about participation in a program of support” form (Centrelink form SA437) dated 1 September 2016 and issued to the Department by an officer from Essential Personnel indicates that in the last three years, the officer had not provided a program of support to Mr Stafford and “customer never commenced” (T28, page 271, refer also to A1 and A2, pages 2 and 3).
An electronic record of the Department regarding Mr Stafford’s request for an internal review of the Department’s decision dated 23 June 2016 states that a document was created on the Department’s file on 28 October 2016 which states relevantly and in part (T37, page 313):
Why does the customer want the decision reviewed?
…cus [sic] said DES provider said they can not [sic] help him or work with him based on his medical condition/s – I have asked customer to contact provider and put into writing as to what has been tried and cus [sic] would not benefit from the program via SA437 – cus [sic] has attended one appointment with DES on 28.07.2016, [sic] and SA437 says cus [sic] has not participated in any program as yet – definitely not made a decision as [sic] he would benefit or not, nor exited…
On 17 November 2016, an Authorised Review Officer of the Department (“ARO”) affirmed the Department’s decision dated 23 June 2016 (T34). The ARO found that Mr Stafford’s osteoarthritis condition achieved a total impairment rating of 20 impairment points across Table 2, Table 3 and Table 4 of the Impairment Tables. The ARO also found that Mr Stafford did not meet the program of support requirements because, although his current and future work capacity was indicated by the JCA to be 8 to 14 hours per week, he had not, in the three years prior to lodging his claim for DSP, actively participated in a program of support as the available evidence indicated that Mr Stafford had never commenced such a program (T34, page 287).
On 3 January 2017, Mr Stafford applied to the Administrative Appeals Tribunal (“Tribunal”) for a first review of the ARO decision dated 17 November 2016 (T35). On his application for review form, Mr Stafford’s reasons for disagreeing with the ARO decision included, relevantly:
·I was told at Essential Personnel [name of officer] that there was no point doing the 18 months employment training because of my incapacity as they would not be able to help me. I was therefore not started [sic].
·Centrelink said that if I provided an exit letter from them they would pay me the disability pension.
·This was provided in September 2016. This is on my Centrelink file.
On 6 February 2017, the Tribunal’s Social Services & Child Support Division (“AAT1”) affirmed the ARO decision dated 17 November 2016 (T2) on the basis that:[1]
(a)on the available evidence, none of Mr Stafford’s impairments are of sufficient severity to rate 20 points on a single impairment table and hence he does not have a severe impairment; and
(b)during the 36 months prior to Mr Stafford’s claim for DSP, he did not actively participate in a program of support.
[1] In its decision on 6 February 2017 the AAT1 refers to Mr Stafford’s claim having been made on 23 March 2016, (refer to T2 at paragraphs 2, 23 and 25). This Tribunal however finds that Mr Stafford lodged his claim on 22 March 2016 (refer to footnote 4 below).
On 24 March 2017, Mr Stafford applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 6 February 2017, claiming that the decision is wrong for a number of reasons, including (T1, page 2):
I am totally incapacitated and my impairment, as it is called, is for one condition – severe osteo arthritis [sic]. This is throughout my entire body in Back [sic], shoulders elbows [sic] wrists, hands, knees, ankles and feet. They are not separate and should not be counted on points separately. they [sic] are all joined together and I should therefore be assessed as at least 20 points for my entire condition and not 5+5+10. So with 20 points [sic] should qualify for disability support Pension [sic] under section 93(3A) of the Act.
I have been assessed by Centrelink as not being able to work 15 hours per week. Hence I am considered totally unfit to work…
...I feel that I am being penalised because the because the [sic] legislation from the program of support states that they cannot start you if you can’t do 15 hours per week. I did go to the agency and was told that they couldn’t do anything for me as I was only rated to work 8 – 14 hours a week. Their minimum is 15 hours a week (combined with my age disabilities etc) [sic] They advised Centrelink of this.
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to the present matter are contained in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999(Cth) (“the Administration Act”), the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”).
The Guide to Social Security Law (“the Guide”) provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (“the Impairment Guidelines”) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Part 3.6.3 of the Guide).
Qualification criteria

15. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes, the three primary requirements are that a person has a physical, intellectual or psychiatric impairment (subsection 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (refer to paragraph 25 below and subsection 94(1)(b) of the Act); and that person has a continuing inability to work (“CITW”) (subsection 94(1)(c) of the Act).

In accordance with subclause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine Mr Stafford’s eligibility for DSP on 22 March 2016, being the date the claim was lodged.
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (“impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (section 3 of the Determination)). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions (subsection 5(2) of the Determination).
Subsection 6(1) of the Determination requires that a person’s impairment 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. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for two years (subsection 6(3) of the Determination, refer also to subsections 6(4) to 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (subsection 6(8) of the Determination).
Assessment of chronic pain
Subsection 6(9) of the Determination states that there is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body;
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing the pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsection 6(5) and (6).
The Impairment Guidelines state, relevantly and in part:
(a)the Tables are function-based rather than diagnosis-based in that they focus on assessing the impact of impairment on normal functions as they relate to work performance and assigning a rating consistent with the identified level of such an impact. As such, the Tables do not just assess a person's medical conditions, the person's overall health status or a loss or abnormality of psychological, physiological or anatomical structure (page 8 of the Impairment Guidelines);
(b)the basis for understanding the concept and design of the Tables as being function-based rather than condition or diagnosis-based, lies in a distinction between the concepts of medical conditions and impairments (page 8 of the Impairment Guidelines);
(c)with regard to assessing the functional impact of pain, there is no longer a Table specifically dealing with pain. Where a person experiences chronic pain as a result of a permanent condition, such as rheumatoid arthritis, chronic pain is not a separate diagnosis but rather a symptom of the underlying autoimmune disorder (page 19 of the Impairment Guidelines);
(d)where a permanent condition results in chronic pain, the first step is to consider the functional impact as outlined in the medical evidence, for example, does it impact spinal function, upper or lower limb function, concentration and memory or physical exertion and stamina (fatigue) (page 20 of the Impairment Guidelines); and
(e)the next step is to determine which Impairment Table/s apply to the impact while avoiding double-counting of the impairment (page 20 of the Impairment Guidelines).
In selecting Impairment Tables for chronic pain affecting particular parts of the body (refer to paragraph 21(e) above), the Impairment Guidelines give the following guidance and examples in determining which Impairment Tables to apply and how to apply them (pages 20 to 23 of the Impairment Guidelines):
·     where chronic pain does not impact physical exertion and stamina there will be no need to consider the use of Table 1 - Functions requiring Physical Exertion and Stamina,
·     where chronic pain does impact physical exertion and stamina and this is adequately assessed by another selected Table, there will be no need to consider the use of Table 1 - Functions requiring Physical Exertion and Stamina,
·     where chronic pain impacts physical exertion and stamina (i.e. results in fatigue symptoms) and this is not adequately assessed by another Table, Table 1 - Functions requiring Physical Exertion and Stamina may need to be considered, while ensuring that the level of impairment is not overstated,
·     …
·     if a person experiences chronic pain as a result of a permanent condition and this pain impacts the person in a particular area of the body such as the upper limbs, the relevant Table should be used to assess the impact of the condition (e.g. Table 2 - Upper Limb Function). A rating under the body area Tables includes consideration of the impact of pain and fatigue on the person's ability to undertake activities within the descriptor,
·     if a person experiences chronic pain as a result of a permanent condition and this pain impacts multiple areas of the body, more than one body area Table may be used to assess the impact of the condition (e.g. Table 2 - Upper Limb Function, Table 3 - Lower Limb Function and/or Table 4 -Spinal Function) as long as the overall level of impairment is not overstated/double counted. A rating under these Tables includes consideration of the impact of pain and fatigue on the person's ability to undertake activities within the descriptor,
·     for systemic conditions that affect one or more areas resulting in chronic pain (such as rheumatoid arthritis) impacts on activities requiring physical exertion and stamina should be assessed under Table 1 - Functions requiring Physical Exertion and Stamina. Table 1 includes assessment of the impact of pain and fatigue on a person's mobility and capacity to undertake daily activities,
·     where a person's concentration and/or memory is also impacted by chronic pain, consideration should be given to whether an additional rating under Table 7 - Brain Function is also required,
·     where a person experiences chronic pain that results in fatigue and another Table adequately assesses these impacts, Table 1 should not be used as well e.g. Table 10 - Digestive and Reproductive Function or Table 14 - Functions of the Skin only should be used.
[emphasis added]
Example 1: A person with stabilised permanent condition that results in chronic lower back pain should be assessed using Table 4 - Spinal Function. The functional impact of the person's impairment on the person's ability to bend, move their trunk and remain seated would be assessed in accordance with the descriptors in that Table. In determining the level of impairment, consideration should be given to the impact of pain resulting from the back condition on the person's ability to undertake activities within the descriptor, e.g. the person cannot bend or move their trunk on a repetitive basis due to the chronic pain they experience on doing so.
Example 2: A person with chronic pain which impairs their ability to use their arms, and their legs should be assessed using Table 2 - Upper Limb Function and Table 3 - Lower Limb Function. The functional impact of the chronic pain on their ability to pick up, handle or manipulate objects for example, would be assessed using the Table 2 descriptors, while the impact of the chronic pain on their ability to walk, stand or use stairs for example, would be assessed using the Table 3 descriptors.
Example 3: …
Example 4: …
Example 5: …
These examples are not exhaustive - it should be remembered that chronic pain may affect a number of different body functions…
In relation to chronic pain, the Impairment Guidelines also relevantly state (at pages 34 to 35 and at page 44):
Chronic pain can be a condition and where it has been fully diagnosed, treated and stabilised, the assessor should assess any loss of functional capacity using the Table relevant to the area of function affected. Chronic pain can also be a symptom and when it stems from a permanent condition the functional impact of the pain should be rated using the relevant Table/s to capture the appropriate level of impairment while ensuring the level of impairment is not overstated or double counted. For example:
·either Table 2 (Upper Limb Function), Table 3 (Lower Limb Function) or Table 4 (Spinal Function) can be used if the pain impacts the person in one of these areas of the body. These Tables can also be used in combination if the pain impacts the person in multiple areas.
·Table 1 (Functions Requiring Physical Exertion and Stamina) can be used if the chronic pain impacts the person's physical exertion and stamina (i.e. fatigue symptoms) and is not adequately assessed by another Table.
·Table 7 - Brain Function can be used if the person has chronic pain which impacts their memory, attention or concentration. Table 7 can be used in conjunction with other Tables, as required…
·…
·Restriction of physical activity due to musculo-skeletal conditions, e.g. severe arthritis, spinal problems, unless the musculo-skeletal Tables 2, 3 or 4 do not sufficiently capture the impairment from any associated impact on physical exertion and stamina.
[emphasis added]
Continuing inability to work, severe impairment and participation in a program of support

In respect of the requirement that a person have a CITW under subsection 94(1)(c) of the Act, unless a person is specifically exempted from this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied, including active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention. Subsection 94(2) of the Act is 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) … 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.
In relation to subsection 94(2) of the Act, extracted at paragraph 24 above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in subsection 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not (refer to paragraph 57 of the decision in Re Larkin and Secretary, Department of Social Services [2018] AATA 342, where the Secretary did, as it has done so in the present matter,[2] refer to a number of authorities to this effect);
(b)in deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to the availability to the person of a training activity or to the availability to the person of work in the person's locally accessible labour market (subsection 94(3) of the Act);
(c)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 (subsection 94(3B) of the Act);
(d)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 (subsection 94(3C) of the Act); and
(e)“work” means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market (subsection 94(5) of the Act).
[2] Paragraph 74 of the Secretary’s Statement of Facts, Issues and Contentions dated 13 October 2017.
With regard to participation in a program of support, the POS Determination relevantly provides the following guidance:
(a)the relevant period for the program of support is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person (section 5 of the POS Determination); and
(b)the requirements for active participation in a program of support are contained in section 7 of the POS Determination as set out below. The Tribunal notes that subsections 7(3) to 7(5) of the POS Determination relate to situations where a person can participate in a program of support for less than 18 months and still satisfy the program of support requirement (provided that person had commenced in a program of support prior to lodging their claim for DSP).[3] Section 7 of the POS Determination is as follows:
[3] Refer to Budisa and Secretary, Department of Social Services [2014] AATA 79 at paragraph [33].
7. Requirements for active participation
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a) the person has:
(i)complied with the requirements of the program of support; and
(ii)participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
(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.
ISSUES
The issues which arise in this matter are whether, at the date of Mr Stafford’s claim for DSP:[4]
[4] The Tribunal finds that the date of claim is the 22 March 2016. In making this finding, the Tribunal relies on the ARO’s decision (T34 at page 286) and the Department’s records (T37 at page 307 and T38 at pages 311 and 315).
(a)Mr Stafford suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)Mr Stafford’s impairments receive an impairment rating of 20 points or more under the Determination; and if so,
(i)whether those 20 impairment points are achieved under a single impairment such that Mr Stafford has a severe impairment;
(c)Mr Stafford has a CITW, which includes:
(i)that he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)if, and only if, Mr Stafford does not have a severe impairment, Mr Stafford has actively participated in a program of support.
EVIDENCE
The matter was heard in Perth on 27 February 2018. Mr Stafford appeared in person with the support of his sister. The Secretary was represented by Mr Ashley Burgess from Sparke Helmore Lawyers.
The Tribunal received the following evidence:
·statutory declaration of Angela Stafford dated 1 December 2017 (“A1”);
·Applicant’s response and attachments dated 23 November 2017 to the Secretary’s Statement of Facts, Issues and Contentions dated 13 October 2017, with annexures (“A2”);
·undated letter from Applicant to Respondent with attached letter from Dr Scott Powell, General Practitioner dated 11 July 2017 (“A3”);
·a 316 page set of T documents (T1 – T39) (“R1”); and
·Secretary’s Statement of Facts, Issues and Contentions dated 13 October 2017, with annexures (“R2”).
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
Mr Stafford gave the following evidence at hearing, including during cross examination by Mr Burgess:
(a)Mr Stafford said that he lives alone on a five acre property in a large “4x2” house;
(b)Mr Stafford said that while he reported to the JCA that he maintains his property and maintains his lawn using a ride on lawn mower, (refer to T27, page 261) his girlfriend comes on the weekend and his son comes once each week (to help him);
(c)Mr Stafford said that he waters the bush plants on his property himself and that he completes the mowing over a two to three day period as he can’t “do it in one bit”, he cooks for himself, he does the washing up, he washes his own clothes and hangs them on the line himself, removes the clothes from the line and puts them back in the cupboard himself and he vacuums “in small bursts” one room at a time;
(d)Mr Stafford said that he is naturally a neat and tidy person and that he has “had to let that go a lot,” that he struggles to look after himself and that he feels inadequate when his girlfriend “does the cleaning”;
(e)Mr Stafford said that he once might have been able to paint his own house but that he would be unable to do so now; and
(f)Mr Stafford said that he was building a granny flat on his property and that his son was going to move to live on his property.
CONSIDERATION
Whether Mr Stafford suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute and the Tribunal finds on the evidence that at the date of claim, Mr Stafford suffered from osteoarthritis, adjustment disorder with depressed and anxious mood and sleep apnoea. The Tribunal notes the medical reports of Dr Scott Powell, General Practitioner, dated 16 March 2016 (T24) and 11 July 2017 (A3) along with specialist medical reports (T4, T5, T7, T9 T14, T15, T20, T23, T24, T25) in this regard.
As such, the Tribunal finds that Mr Stafford satisfies subsection 94(1) of the Act.
Whether Mr Stafford’s impairment receive an impairment rating of 20 points or more
The Secretary’s position regarding the rating of Mr Stafford’s impairments under the Tables is that it accepts Mr Stafford had a total impairment rating of 20 points at the date of claim on the basis that those points are achieved (only) in relation to Mr Stafford’s osteoarthritis condition and are achieved across three Impairment Tables, being:
(a)10 points under Table 4 (Spinal Function);
(b)5 points under Table 2 (Upper Limb Function); and
(c)5 points under Table 3 (Lower Limb Function).
Mr Stafford’s position, however, is that he achieves a total impairment rating of 20 points at the date of claim on the basis of his osteoarthritis condition across one impairment table only, being Table 1 (Functions Requiring Physical Exertion and Stamina), as it is “his best argument” and then the “program of support falls away.”
Mr Stafford’s osteoarthritis condition is considered in further detail at paragraphs 42 to 54 below.
Adjustment disorder with depressed and anxious mood
In relation to Mr Stafford’s adjustment disorder with depressed and anxious mood, the Secretary accepts that this condition is fully diagnosed, fully treated and fully stabilised. However, the Secretary contends that a zero impairment points rating under Table 5 is appropriate for Mr Stafford’s adjustment disorder with depressed mood on the basis that there is no medical evidence to support a positive rating (refer to R2, paragraphs 38 to 43). Mr Stafford has not made any submissions to contest the zero points rating for his mental health condition or otherwise indicated that he disputes this to be the case.
Having regard to the available medical evidence and the job capacity assessment addressing Mr Stafford’s various relevant areas of functioning (T15 and T27, in particular at pages 265 and 266), the Tribunal is satisfied that Mr Stafford’s adjustment disorder with depressed and anxious mood is permanent and attracts zero impairment points under Table 5.
Sleep apnoea condition
As to Mr Stafford’s sleep apnoea condition, the Secretary accepts that this condition has been fully diagnosed, however it considers there is no evidence to support it being considered fully treated and fully stabilised (refer to R2, paragraphs 44 and 45). Again, Mr Stafford has not made any submissions to contest the Secretary’s position that his sleep apnoea condition was not permanent at the date of claim or otherwise indicated that he disputes this to be the case. Mr Stafford has submitted, rather, that his sleep apnoea condition is “totally irrelevant to my case” (A2, page1, third bullet point and page 7).
The Tribunal notes that Dr Powell was of the view in 2015 that Mr Stafford’s sleep apnoea was generally well managed and caused minimal or limited impact on his ability to function (T15, page 177) and the JCAs at various times have referred to Dr Powell’s opinion in concluding that Mr Stafford’s sleep apnoea condition is permanent (T18, page 193 and T27, page 263). There is no evidence before the Tribunal to corroborate the following:
(a)Mr Stafford’s written submission that he hired a Continuous Positive Airway Pressure (“CPAP”) for one month that “made it [his sleep apnoea] worse” (A2, page 7);
(b)that Mr Stafford otherwise undertook the CPAP therapy recommended by Dr Michael Prichard, Respiratory and Sleep Physician, in 2014 (T15, page 186);
(c)that Dr Prichard’s recommendation that Mr Stafford undertake such therapy was not “reasonable” treatment as defined in subsection 6(7) of the Determination; or
(d)that Mr Stafford had a medical or other compelling reason for not undertaking and completing the recommended therapy.
As such, the Tribunal is satisfied that Mr Stafford’s sleep apnoea attracts zero points as it was not fully treated and fully stabilised at the date of claim and hence cannot attract a rating under the Impairment Tables.
Osteoarthritis condition
The Tribunal now turns to its consideration of the parties’ respective and divergent positions regarding Mr Stafford’s osteoarthritis condition (set out at paragraphs 34 and 35 above).
If the Tribunal finds, as Mr Stafford contends it should, that his impairments regarding his osteoarthritis condition are of sufficient severity to rate 20 points on a single impairment table (in Mr Stafford’s submission, Table 1) on the basis of his related chronic pain (refer to paragraph 48 below), then Mr Stafford will have a severe impairment (as defined in subsection 94(3B) of the Act) for the purpose of subsection 94(3A) of the Act. In Mr Stafford’s submission, it then follows that the Tribunal, in considering whether Mr Stafford has a CITW, will be confined to considering whether Mr Stafford is unable to work for 15 hours or more per week, within the next two years, with intervention. That is, if Mr Stafford is found to have a severe impairment, the program of support requirement falls away.
However, if the Tribunal finds, as the Secretary contends it should (refer to R2, paragraph 70), that Mr Stafford does not have a severe impairment (as defined in subsection 94(3B) of the Act), and rather, his impairments should instead be rated under separate Tables (refer to paragraphs 49 to 50 below), then in order to be found to have a CITW, he must also have actively participated in a program of support within the meaning of subsection 94(3C) of the Act (refer to subsections 94(3A) and 94(2)(aa) of the Act).
The Secretary accepts that Mr Stafford’s osteoarthritis condition is fully diagnosed, fully treated and fully stabilised and the Tribunal finds this to be the case on the evidence (refer to T4, T5, T7, T9, T14, T20, T23, T24, T25 and A3).
As to the impairment rating for Mr Stafford’s osteoarthritis condition, the available evidence regarding Mr Stafford’s related functional impairment is that:
(a)Mr Stafford says that his osteoarthritis is throughout his entire body in his back, shoulders, elbows, wrists, hands, knees, ankles and feet (T1, page 2, extracted at paragraph 11 above) and the chronic pain he experiences in relation to it causes him to get very little sleep, experience extreme fatigue and renders him unable to concentrate even for short lengths of time (A3, page1);
(b)Mr Stafford reported to Dr Powell that he was struggling with marked right hip pain and stiffness causing quite severe daily pain at rest and with mobilisation (report dated 23 April 2015 at T20, page 201);
(c)Mr Adrian Spinelli, Physiotherapist, reported in an email to Mr Stafford dated 29 April 2015 that “Stephen’s response to manual therapy has been variable and I have recommended he avoid excessive periods of sitting and weight bearing (standing and walking) based upon levels of discomfort as I believe Stephen’s discomfort is rising structurally from joint degeneration and osteoarthritis” (T21, page 202);
(d)Professor Piers Yates reported to Dr Powell on 11 May 2015 that “[h]e now has pain around the buttock on activity; he did have a lot of night pain until his medications were changed recently. He can walk 10 minutes before he has to stop… He has some back pain also which he feels in his right leg radiating down to the foot… On examination… leg lengths are equal, hip movements are symmetrical and stiff in internal rotation not particularly painful in the groin. Straight leg raise is normal just tension in the hamstrings but no root signs and neurology feels normal” (T22, page 204);
(e)Dr Powell’s report dated 16 March 2016 (T24) provided in support of Mr Stafford’s claim for DSP states that Mr Stafford had:
(i)current symptoms of “daily debilitating pain – neck, shoulder, wrists, hips, elbows, ankles, knees, C, T & L [cervical, thoracic and lumbar] spine causing inability to comfortably attend [sic] any manual activity or mobilise and sleep disturbance” (T24, page 219); and
(ii)an impacted ability to function, the details being “unable to comfortably bend, lift, sit, stand, walk, unable to concentrate due to pain & fatigue, unable to sleep due to pain…” (T24, page 220);
(f)The basis of the impairment ratings in the JCA report dated 10 May 2016, were, according to the JCA, warranted by the following assessments (T27, page 265):
Table 4 – Spinal Function
(i)Mr Stafford was able to sit in or drive a car for at least 30 minutes.
(ii)Mr Stafford had some difficulty in performing activities over head height (e.g. activities requiring the person to look upwards).
(iii)Mr Stafford did not meet the criteria for twenty points as he was observed to sit for at least ten minutes and reported he is able to bend forward to pick up a light object from a desk or table. While restricted in his range of motion, he has some capacity to bend his neck and perform overhead activities.
Table 2 – Upper Limb function
(iv)Dr Powell verified a functional impairment in lifting due to shoulder and wrist pain.
(v)Mr Stafford’s self-reported functional capacities appeared to tally with a mild functional impairment.
Table 3 – Lower Limb Function
(vi)A letter from Mr Stafford’s physiotherapist confirms a pain which impacts his functioning and recommends he restricts his walking and standing.
(vii)Dr Powell’s report states that Mr Stafford was unable to comfortably bend, sit, stand and walk.
(viii)Descriptors 1(b) and 2(a) from Table 3 were reported to apply to Mr Stafford, namely that he has some difficulty walking around a shopping mall or supermarket without a rest and is unable to stand for more than 10 minutes.
(ix)The assessor observed Mr Stafford needed to stand during the assessment but stood for no more than five minutes stating five minutes was about the limit he could usually manage.
(g)Mr Stafford gave oral evidence to the AAT1 that (T2, page 6, paragraph 16):
…he lives independently and takes care of most tasks himself… his partner comes over on the weekends and does some of the heavier work that he cannot manage. He is unable to pick up heavier objects… he has difficulty doing tasks above the head; his house needs painting but he cannot do it. He can drive for about 30 minutes although he experiences pain whilst doing so. He drives to and from the pool five days a week. His routine involves swimming 20 laps, walking 20 laps, swimming 20 laps and walking 20 laps. He does breast stroke as he is unable to do freestyle because of shoulder pain… this exercise regime keeps him flexible… over a day he also manages to do a reasonable amount of walking but in short bursts.
(h)Mr Stafford’s oral evidence given to this Tribunal (referred to at paragraph 31 above) is that he lives alone, maintains his property and lawns, hand waters his plants, cooks, cleans and washes for himself and has some assistance from his girlfriend and his son; and
(i)Dr Powell’s letter dated 11 July 2017 (refer to A3 and R2, Annexure A), which states relevantly and in part:
He suffers severe daily debilitating pain requiring regular very strong opiate pain medications with minimal relief. The [Chronic Pain Syndrome caused by severe unrelenting widespread osteoarthritis] condition results in very poor sleep, extreme fatigue, poor concentration and poor memory with a resultant severe constant daily physical and cognitive impairment. As a result he struggles to perform basic personal care, household tasks and garden tasks.

The Tribunal notes that the evidence provided by Mr Stafford to the JCA (refer to subparagraph 46(f) above), to the AAT1 (refer to subparagraph 46(g) above) and to this Tribunal (refer to subparagraph 31 above) is somewhat inconsistent with what is reported by Dr Powell (refer to subparagraph 46(e) above). Further, Dr Powell’s report appears to refer to Mr Stafford’s impairments as at the time of the letter, which is dated over a year after the qualification date (or at the least, does not report retrospectively on Mr Stafford’s impairments at the date of claim). As such, the Tribunal prefers the contemporaneous evidence recorded by the JCA and Mr Stafford’s affirmed oral evidence.
Applicable Impairment Tables for Mr Stafford’s osteoarthritis condition and whether a severe impairment
Mr Stafford contends that “his best argument” is that he suffers from a severe impairment on the basis that he achieves 20 impairment points for his osteoarthritis condition under Table 1, as he meets the requirements of the 20 point descriptors in (1)(a)(iv) and (1)(b) (Functions Requiring Physical Exertion and Stamina) (refer to paragraph 35 above, A2, page 1, second bullet point and A2, pages 4 to 7 inclusive).
The Secretary contended at hearing that if Table 1 was applicable to Mr Stafford (which it does not concede, for reasons given below at paragraph 50 below), by Mr Stafford’s own evidence he has some ability to perform the tasks listed in the 20(1)(a) point descriptors for Table 1. According to the Secretary, it therefore follows that as the 20 point descriptor for Table 1 requires the person to be unable to perform (not just have difficulty with performing) the activities listed in 20(1)(a) (along with meeting the requirements of 20(1)(b)) in order for a 20 point rating to apply, the 20 point rating under Table 1 cannot apply to Mr Stafford.[5]
[5] The Tribunal notes that the Secretary, at hearing, made alternative arguments regarding a 10 point impairment rating under Table 1 in relation to Mr Stafford’s osteoarthritis condition. Given the Tribunal’s finding that Table 1 does not apply to Mr Stafford’s osteoarthritis condition and that he has no other permanent conditions, it is not required to address those alternative arguments.
The Secretary contends that rather, in accordance with the impairment rating allocations by the JCA (refer to subparagraph 2(a) above), the functional impact reported by Mr Stafford accords with an impairment rating of 5 points under Table 2 (Upper Limb Function), 5 points under Table 3 (Lower Limb Function) and 10 points under Table 4 (Spinal Function) (R2, paragraphs 48, 49, 50, 61). The Secretary also submits that there is insufficient evidence that Mr Stafford’s osteoarthritis condition impacts on his concentration and hence a further rating under Table 7 (Brain Function) is inappropriate (R2, paragraph 62).
In light of Mr Stafford’s own evidence regarding his functional abilities at the date of claim through to the present time, along with the additional available evidence set out at paragraph 46 above (in particular Dr Powell’s report dated 11 July 2017, which states that at worst, Mr Stafford struggles to perform basic domestic tasks, i.e. he still has some ability to perform them), the Tribunal considers Mr Stafford’s functional impairments are not of the nature that would meet the requirements of the 20 point rating under Table 1 (or under any of the potentially applicable Impairment Tables, namely Tables 2, 3, and 4) and hence the Tribunal finds that Mr Stafford’s osteoarthritis condition is not a severe impairment, as defined and cannot be rated as such.
As to how the available evidence regarding Mr Stafford’s impairments regarding his osteoarthritis condition ought to be applied across the Impairment Tables, and to which Impairment Table or Tables those impairments ought to apply, the Tribunal makes the following comments and findings:
(a)while Dr Powell’s letter dated 11 July 2017 (refer to subparagraph 46(i) above) refers to Mr Stafford’s reported symptoms of extreme fatigue, poor concentration and poor memory, which are potentially relevant to Table 1 and Table 7, there is no corroborative medical evidence specifically attributing those symptoms to Mr Stafford’s osteoarthritis condition at the date of claim (nor to his sleep apnoea condition, which does not fall for consideration under the Tables given the Tribunal’s findings at paragraphs 39 to 41 above). The Tribunal also reiterates its comments at paragraph 47 above in this context. Therefore, the Tribunal considers that there is insufficient evidence before the Tribunal to establish that Mr Stafford’s chronic pain impacted his physical exertion and stamina or his brain function at the date of claim and impairment ratings under Table 1 and Table 7 are not required (refer to extract from the Impairment Guidelines at paragraph 22 above, first bullet point);
(b)as such, the next step according to the Impairment Guidelines (refer to paragraph 22 above) is to assess whether Mr Stafford’s impairments arising from his chronic pain which stems from his osteoarthritic condition are adequately assessed by another Table or Tables (if the pain impacts more than one part of the body);
(c)the available evidence (summarised at paragraph 46 above) supports the finding that Mr Stafford’s functional impairments relate to his upper limbs (particularly his shoulder and wrists, which impact his lifting abilities), his lower limbs (hips, buttocks, ankles and knees, which impact his ability to walk, stand, bend and sit) and his back pain (which impacts his ability to drive, bend and perform overhead activities). This being the case, the Impairment Guidelines state that multiple Tables may be used to assess the impact of the condition provided the overall level of impairment is not overstated/double counted (refer to extract from the Impairment Guidelines at paragraph 22 above, fifth bullet point). Given the nature of Mr Stafford’s impairments and the examples given in Example 1 and Example 2 extracted from the Impairment Guidelines at paragraph 22 above, the Tribunal considers multiple tables can be applied without overstating/double counting; and
(d)in making the findings in subparagraphs 52(a) to (c) above, The Tribunal has had regard to the extract from the Impairment Guidelines at paragraph 23 above, first and fourth bullet points.
Aligning Mr Stafford’s functional impairments (refer to subparagraph 52(c) above) with the descriptors in Table 2, Table 3 and Table 4, the Tribunal finds the appropriate impairment ratings under each table is as was found by the JCA (refer to paragraph 2 above) and contended by the Secretary, namely:
(a)5 points under Table 2 (Upper Limb Function);
(b)5 points under Table 3 (Lower Limb Function); and
(c)10 points under Table 4 (Spinal Function).
In light of the Tribunal’s findings at paragraphs 52 and 53 above, it allocates a total of 20 impairment points to Mr Stafford’s functional impairments, in satisfaction of subsection 94(1)(b) of the Act. As those 20 impairment points were not achieved under a single table, but rather, under multiple tables in the Determination, Mr Stafford does not have a severe impairment as defined. Therefore, the Tribunal’s consideration of whether Mr Stafford has a CITW necessarily includes consideration of whether he has actively participated in a program of support (subsection 94(2)aa) of the Act).
Whether Mr Stafford has a continuing in ability to work
In relation to Mr Stafford’s claim for DSP made on 22 March 2016, the relevant period for having participated in a program of support is the 36 months prior to that date (section 5 of the POS Determination, referred to at subparagraph 26(a) above).
While the Tribunal notes Mr Stafford’s contacts with Essential Personnel in 2016 (refer to paragraph 5 and 6 above), it finds those contacts have no bearing on the present application as they were outside the relevant period. The Tribunal also finds in relation to those contacts that in any event, there is no evidence to suggest, nor has Mr Stafford sought to contend, that he actually ever commenced such a program (commencement being a requirement to participation of less than 18 months in circumstances where the program was terminated (refer to subparagraph 26(b) above and subsections 7(2) and 7(3) of the POS Determination).
Mr Stafford contended in his written submissions that he “…essentially completed [his program of support] within [his] employment” over the last 20 years (A2, page 2, third paragraph). The Tribunal notes that such employment does not fall within the requirements of section 94(3C) of the Act.
The Tribunal understands that Mr Stafford believes he was misled and misinformed by Centrelink in this regard (A2, various paragraphs), however Mr Stafford’s concerns are not within the scope of the issues for review and hence do not fall for consideration by the Tribunal.
For completeness only, the Tribunal notes the JCA assessor determined that Mr Stafford had a capacity for work within two years with intervention of 8 to 14 hours per week (T26, page 267 to 268, extracted at paragraph 3 above). As such, Mr Stafford’s capacity for work at the date of claim was less than 15 hours per week.
However, given the Tribunal’s finding at paragraphs 56 and 57 regarding the program of support requirements, the Tribunal finds that Mr Stafford does not have a CITW and therefore fails to satisfy subsection 94(1)(c) of the Act.
CONCLUSION
While the Tribunal considers that Mr Stafford achieves 20 impairment points under the Determination, there is no evidence to support that he has a severe impairment under a single Table. Therefore, Mr Stafford is required to satisfy the program of support requirements within the CITW criterion. As the Tribunal has found that Mr Stafford, having never commenced a program of support, fails to satisfy the program of support requirement, it therefore necessarily follows that the Tribunal finds that Mr Stafford did not have a CITW and did not qualify for DSP at the date of claim.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that Mr Stafford, on 22 March 2016, was not qualified for the disability support pension under s 94 of the Social Security Act 1991 (Cth).

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher, and Member C Edwardes

.....[sgd]...................................................................
Associate
Dated: 2 May 2018

Date of hearing: 27 February 2018

Applicant: In person – self represented

Representative for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	27 February 2018
Applicant:	In person – self represented
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers