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

Stain and Secretary, Department of Social Services (Social services second review) [2019] AATA 3503 (13 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6396
Re:Gavin Stain
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A Burke AO, Member
Date:13 September 2019
Place:Hobart

The decision under review is affirmed.
............................[sgd].....................................
Ms A Burke AO, Member
SOCIAL SECURITY – application for indefinite portability for disability support pension – whether qualified – peripheral vascular disease, post-traumatic stress disorder, diabetes, spinal disorder and coronary artery disease – whether impairment severe – attracts rating of 20 points or more under Impairment Tables – continuing inability to work – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Health Insurance Act 1993 (Cth)
National Health Act 1953 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security Act 1991 (Cth)
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A Burke AO, Member
13 September 2019

The Applicant, Mr Stain, is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to cancel his Disability Support Pension (DSP) pursuant to s 80(1)(a) of the Social Security (Administration) Act 1999 (the Admin Act).
On 7 February 2018 a delegate of the Respondent cancelled Mr Stain’s DSP as he did not meet the requirements of s 94 of the Social Security Act 1991 (the Act), determining he was not medically qualified for the payment.
The application was heard on 26 June 2019. Mr Stain represented himself and appeared by telephone from the Philippines and Mr Simon Agnello, a Seconded Lawyer with the Litigation and Information Release Branch of the Department of Human Services, appeared by telephone for the Respondent. Mr Stain gave evidence under affirmation and was cross-examined by Mr Agnello.
Mr Stain’s qualification for DSP is to be determined on the date of cancellation being 7 February 2018.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Stain:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables);
(c)has a continuing inability to work; and
(d)if the above criteria are satisfied, if he is a severely impaired disability support pensioner to qualify for an unlimited portability period.
BACKGROUND
Mr Stain is a 56 year old Australian citizen who currently resides in the Philippines with his Filipino wife, whom he married in 2017. Mr Stain grew up in South Africa where he first served in the Navy and then the police force prior to immigrating to Australia in 1987. Mr Stain has two adult daughters who reside in Sydney. Whilst living in Australia Mr Stain held various roles, the last in 2012 as a debt collector, before he ceased working on ill-health grounds following complications from his coronary artery bypass surgery.
On 26 September 2012 Mr Stain was granted a DSP as his heart disorder was considered fully diagnosed, treated and stabilised. The job capacity assessment (JCA) report of 29 October 2012 found the condition impacted his endurance and caused significant pain due to claudication, which reduced his work capacity to 8-14 hours per week. The assessor found Mr Stain had undergone significant previous surgery, was not awaiting any additional treatment, and that the functional impacts of the condition were unlikely to significantly improve within the next two years.
On 5 October 2017 Centrelink sent a letter to Mr Stain acknowledging his request for an assessment of maximum portability for his DSP. The letter states:
This assessment must be undertaken in Australia. It will consist of a Medical review of your Disability Support Pension qualification and will apply the 1 January 2012 Impairment Tables which may mean you are no longer assessed as qualified for Disability Support Pension.
Mr Stain lodged a medical report dated 17 October 2017 for Disability Support Pension Review for portability in which he listed his illnesses as ischemic heart disease, diabetes mellitus, peripheral neuropathy and post-traumatic stress disorder (PTSD).
On 29 November 2017 Centrelink conducted a face-to-face JCA with Mr Stain and, after gathering additional medical information, provided a final report on 14 December 2017. The JCA report awarded Mr Stain nil points under the Impairment Tables, having found the following:
·That peripheral vascular disease attracted a recommended rating of nil points as Mr Stain reported he is ‘independent in shopping however noted he needs to drive to the shops as is unable to walk long distances due to leg pain’. Dr Kumaran reported he was unable to comment on Mr Stain’s walking tolerance. Dr Keech reported that Mr Stain’s mobility was ‘severely limited related to back and leg pains with canal stenosis’ and peripheral vascular disease. The nil point impairment rating was applied under Table 3 because the assessor was ‘unable to verify if walking restrictions were primarily related to the clients FTDS peripheral vascular disease.’
·Mr Stain’s baseline work capacity was assessed at 8-14 hours per week, noting the impacts of his medical conditions included reduced walking and standing tolerances, reduced concentration, low mood and poor anger control. Ongoing medical management and support was noted as likely to increase Mr Stain’s work capacity to 15-22 hours per week.
On 18 April 2018 Mr Stain’s DSP was cancelled as he had departed Australia permanently to reside in the Philippines. Mr Stain’s payment of DSP had continued from cancellation on 7 February 2018 until 18 April 2018 whilst his request for a review of the determination was being undertaken.
On 26 April 2018 a clinical psychologist provided an opinion from the Health Professional Advisory Unit (HPAU) in which they opined:
·Mr Stain’s PTSD could be considered fully diagnosed as there was evidence that it was diagnosed by a psychiatrist but it could not be considered fully treated as Mr Stain had not accessed reasonable treatment. The medical evidence indicated Mr Stain had commenced psychological therapy however did not continue attending. It was the opinion of the HPAU that a combination of further psychological therapy and psychiatric treatment, in addition to medication if clinically indicated, was likely to improve the symptoms and functional impact associated with the PTSD.
·Coronary artery disease (CAD) could be considered fully diagnosed, treated and stabilised but nil points were awarded as there was no medical evidence of functional impairment associated with the condition.
·Peripheral vascular disease (PVD) could be considered fully diagnosed, treated and stabilised and as having an impairment rating of five points under Table 3 as Mr Stain had some difficulty walking around a shopping centre and was unable to stand for more than 10 minutes. Dr Kumaran confirmed that the majority of Mr Stain’s mobility issues were due to the long-standing condition of PVD and that spinal canal stenosis has not been confirmed. Dr Kumaran indicated that Mr Stain has difficulty walking for long periods but is able to walk around a shopping centre unaided if he has frequent rest breaks.
·Spinal canal stenosis (SCS) had not been verified.
On 27 April 2018, on internal review, an Authorised Review Officer (ARO) of the Department affirmed the earlier Centrelink decision that Mr Stain’s total impairment rating was five points for his medical conditions and he was not eligible for indefinite portability because he did not have a severe impairment as he had not been assessed as 20 points or more under a single impairment table. The ARO did not consider Mr Stain’s continuing inability to work as he did not have an overall impairment rating of 20 points of more. The ARO affirmed that Mr Stain’s DSP had been correctly cancelled from 18 April 2018 as he was no longer living in Australia on a permanent basis. The ARO stated:
Disability Support Pension recipients applying for indefinite portability are required to undergo an assessment of their impairment and their future work capacity in Australia prior to departure. On 27 October 2017 you returned medical review forms to the department applying for indefinite portability of your disability support pension. Our records show that when these forms were initially issued to you on 5 October 2017 you were advised there was a risk that as a result of the assessment of your eligibility for indefinite portability, it may be determined that you no longer satisfy the medical requirements for Disability Support Pension.
…
In relation to your peripheral vascular disease, Table 3 of the Impairment Tables is used to assess the impairment of your lower limb function caused by this condition. The opinion of the HPAU is that a rating of 5 points under Table 3 is appropriate as Dr Kumaran has indicated that you have difficulty walking for long periods, however, you are able to walk around a shopping centre unaided if you have frequent rest breaks. You are also unable to stand for more than 10 minutes…
In relation to your post-traumatic stress disorder, this condition is accepted as being fully diagnosed as there is evidence it has been diagnosed by a psychiatrist (Dr Tsang). The opinion of the HPAU is that this condition could not be considered fully treated as you have not accessed reasonable treatment.
On 1 October 2018 the Social Services and Child Support Division of the Tribunal (Tier 1) affirmed the decision of the ARO to cancel Mr Stain’s DSP claim, finding his conditions attracted a total rating of five points under the Impairment Tables and he did not qualify for DSP. The Tier 1 awarded Mr Stain an impairment rating of: nil impairment points for his diabetes and CAD as these were well-managed and resulted in no functional impairments; five points under Table 3 for PVD; and nil points for PTSD as this condition had not been fully treated and stabilised during the qualification period. The Tier 1 did not address the issue of whether Mr Stain had a continuing inability to work as he did not have the requisite 20 impairment points.
On 5 November 2018, Mr Stain sought a review of the Tier 1 decision by this division of the Tribunal, stating in his application:
… I do not agree with Dr Kumarand’s (sic) medical statement …
I wish to apply for a second appeal and also for additional time to allow me to be examined by a Psychiatrist and other medical practitioners here in The Philippines and to forward their reports to you via email.
RELEVANT LEGISLATION AND ISSUES
Section 94 of the Act provides that a person is qualified for a DSP if:
1
(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;
… …
5
"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.
Section 94(3B) of the Act defines severe impairment:
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.
The Impairment Tables require that an impairment rating only be assigned if the condition causing that impairment is ‘permanent’.[1] Section 6(4) of the Impairment Tables states that a condition is ‘permanent’ if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
The introduction to each relevant Impairment Table requires that ‘self-report of symptoms alone is insufficient’ and that ‘there must be corroborating evidence of the person’s impairment’.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of s 6(6) of the Impairment Tables, s 6(7) defines ‘reasonable treatment’ as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The determinative issue in this review is whether, at the time of the claim, Mr Stain suffered an impairment rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment, not to assess conditions (Part 2, s 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider Mr Stain’s medical conditions with reference to the applicable Impairment Tables.
Section 1218AAA of the Act provides that a person qualifies for unlimited portability for DSP if:
1The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
2The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b)the person's portability period for disability support pension had not ended at the time the event occurred.
3The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
4A determination under subsection (1) is not a legislative instrument.
5In this section:
"work" means work:
(a)that is 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.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the ‘T documents’. Additional medical reports, submissions and statements were lodged by Mr Stain.
Does Mr Stain have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance, a person suffers from an impairment.
The parties accept that Mr Stain is suffering from PVD, PTSD, diabetes, spinal disorder and CAD. Accordingly, the Tribunal finds that Mr Stain meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables. To qualify for unlimited portability, a person’s impairment must be severe and attract 20 points or more under the one impairment table.
Does Mr Stain have medical conditions that can be rated at 20 points or more under the Impairment Tables?
Dr Kumaran, Mr Stain’s general practitioner since 2009, listed Mr Stain’s conditions in order of functional impact in the Centrelink medical report for DSP review for portability on 20 October 2017 in the following order: CAD, insulin-dependent diabetes, hypertension, hypercholesterolemia and PVD. Dr Kumaran did not provide any advice in respect of the impact of these conditions on Mr Stain’s ability to function. He did state that Mr Stain’s hypertension, hypercholesterolemia and PVD were generally well-managed and caused minimal or limited impact on ability to function.
Mr Stain’s Medicare and Pharmaceutical Benefits Scheme information for the period 1 May 2014 to 11 April 2019 was released to the Tribunal in accordance with s103(3)(a) of the Health Insurance Act 1993 and s 135A(3)(a) of the National Health Act 1953. The records demonstrate Mr Stain has had extensive medical and pharmaceutical interventions in this period.
Mr Stain repeatedly argued that he had not been afforded natural justice as he had not been examined by Centrelink’s own contracted doctors, which he had requested on more than one occasion. He was adamant that if he had been examined by medical practitioners on behalf of Centrelink then the findings in respect of his DSP would have been completely different. Mr Stain disputed the findings of the job capacity assessor as they were not undertaken by a medically qualified practitioner and were done in a perfunctory manner. Indeed, he expressed the opinion that he felt the determination to cancel his DSP had been reached before he had even undergone the JCA.

The Respondent advised Mr Stain during the hearing that the purpose of the consultation at the JCA is to assess the medical evidence and determine whether an individual meets the qualification criteria to be awarded a DSP. The Respondent also advised that the interaction was not to conduct a medical assessment of Mr Stain but to assess whether he had the necessary 20 points for DSP, as well as assess his work capacity. The Respondent stated that it was Mr Stain’s responsibility to provide any medical evidence that he wished to be considered by Centrelink.
The Tribunal reiterated to Mr Stain that the DSP was based not on an individual’s medical condition but the impact that condition was having on an individual’s functionality. The assessment of an individual for the DSP does not require Centrelink to undertake an independent medical assessment of an individual but to assess the medical evidence and determine the functional impact the medical condition has on the individual in accordance with the Impairment Tables. It is up to the individual to have his treating doctor or doctors confirm the diagnosis, treatment and stability of the claimed conditions and provide the corroborating medical evidence for the claim.
The Tribunal noted that although Mr Stain had significant and complex medical issues and had been seen by numerous medical specialists, there was limited medical evidence available to assess the impact of his numerous conditions on his functionality.
Coronary artery disease (CAD)
Dr Kichkin, a general practitioner, stated in a medical report for DSP dated 21 June 2012:
Diagnosis
Ischaemic heart disease
Triple Vessel Bypass Heart Surgery on 2/9/09
…
Current symptoms
Suffering from quite limiting claudication at around 100m following his coronary artery surgery, needs peripheral vascular restriction or stenting.
Dr Kichkin then stated ‘patient unable to work – financial stressors and depression. Needs regular review with doctors, specialists, hospital and medication – financial expense. Needs support in activities of daily living.’ Dr Kichkin indicated that the condition will persist for more than 24 months.
In a telephone conversation with the HPAU on 12 April 2018 Dr Kumaran is reported as confirming that Mr Stain continued to use medication for CAD, that the condition has been stabilised for years and that it does not cause Mr Stain any functional impairment.
Mr Stain, in an email dated 5 September 2018 for his Tier 1 hearing, rated himself as moderate under Table 1 for ‘Functions requiring Physical Exertion and Stamina’ indicating that:
·he experienced shortness of breath when he engaged in day-to-day activities such as cleaning his room or simply sweeping, as well as trying to climb stairs or any gradient of road or path, which he said he did with extreme difficulty; and
·he found it extremely painful to walk any distances in excess of 200m without experiencing tiredness and extreme pain in the lower legs. Mr Stain indicated that approximately two years ago he had undergone vascular surgery and blockages removed were removed from his right leg. Whilst this had improved the pain moderately, it had not removed it completely and he still experiences severe pain when walking for short distances.
Mr Stain advised the Tribunal that he completely disagreed with the Respondent’s claim that the CAD did not cause dysfunction or impairment. He said he has reported to Dr Kumaran and Dr Keech, his cardiologist, that since the surgeries he has always experienced shortness of breath, as well as a great reduction of physical stamina. Mr Stain said he had also reported to both doctors that he has issues with concentration, can’t do most things, that he was severely impacted and has an element of fear in his day-to-day life.
The Respondent accepts that Mr Stain’s CAD was fully diagnosed, treated and stabilised at the cancellation date but contended nil points could be assigned under Table 1 as there was no medical evidence of any functional impairment associated with the condition at the date of cancellation.
The Tribunal, based upon the medical evidence before it, is satisfied that Mr Stain’s CAD was fully diagnosed, treated and stabilised at the cancellation date and the condition was having a moderate functional impact on activities requiring physical exertion and stamina. Mr Stain reported he experienced frequent symptoms of shortness of breath and fatigue when walking and undertaking day-to-day activities. This was corroborated by a cardiologist, Dr Keech, in a report of 5 June 2018. The Tribunal therefore awards this condition 10 points under Table 1, as this best reflects the functional impact of this condition at cancellation.
Peripheral vascular disease (PVD)
In a report dated 29 November 2017 compiled by the medical assessment team seeking additional medical evidence for DSP, Dr Kumaran states ‘Dr Keech, cardiologist is better able to provide information related to the clients walking tolerance.’
The HPAU report of 26 April 2018 notes that in a telephone conversation on 12 April 2018 Dr Kumaran confirmed that the majority of Mr Stain’s mobility restrictions are due to the long-standing condition of PVD and spinal canal stenosis. He indicated that Mr Stain has difficulty walking for long periods but is able to walk around a shopping centre unaided if he has frequent rest breaks.
Dr Keech, a cardiologist, in a medical report dated 5 June 2018 opined:
I note that Dr Kumaran appears to describe Mr Stain’s condition as being compatible with an eight hours work per day but walking limitation of 300m or less due to claudication. His ability to stand is limited to 15-20 minutes and driving is limited apparently to one hour continuously due to lower back pain. He can undertake desk work apparently and lifting up to 5 kg in weight according to Dr Kumaran’s report.
…
I would generally regard him as very difficult to re-employ at a real life practical level … … I agree with … conclusion that Mr Stain’s functional restrictions are consistent essentially with sedentary work only including frequent breaks which I suspect may limit opportunities for reemployment.
…
Because I am a cardiologist and not an occupational therapist or rehabilitation consultant, as previous explained in writing to Mr Stain, I am not in position to provide more detailed information. In passing, I would note that a bullet in his shoulder continues to provide a source of pain as does his spinal canal stenosis and his peripheral vascular disease through claudication as described with walking.
The JCA referred to a report by Dr Keech of 25 July 2017 that has not been cited by the Tribunal and will not form part of this determination. Additionally, the JCA and the HPAU were unable to contact Dr Keech for clarification and comment.
Mr Stain submitted an undated medical report from Dr Calinawagan, a cardiologist in the Philippines, which notes: ‘patient was seen as outpatient complaining of exertional dyspnea on walking approximately 200 meters; mild chest tightness but no angina at rest. He also complains of back pains and leg pains.’ The report recommends Mr Stain continue present medications and make dietary and lifestyle modifications before concluding:
This abstract is given to Mr Gavin Stain for his application in the consideration of reinstituting his pension. He has Stable Coronary Artery Disease post Bypass Grafting that has limitations in his activities of daily living due to his condition along with his peripheral arterial disease and spinal stenosis. He is advised not to overexert himself in heavy strenuous physical activity as this provokes his dyspnea.
The Tribunal, in accordance with the Act, was unable to afford this report any weight as it was conducted in the Philippines, making it both outside of the qualifying period and undertaken outside of Australia.
Under questioning from the Respondent Mr Stain advised the Tribunal:
·that he experienced difficulty with walking when living in Sydney, prior to the cancellation of his DSP, and that he could not walk the 400m from his home to the bus stop, as it was uphill, advising he would drive to the bus stop and then take the bus;
·that at the supermarket he would park in the disabled spot, which was right next to the trolley bay, and then lean on a trolley to enter the supermarket and do his shopping;
·that he would take a long time at the supermarket because his legs hurt and he could never do anything in a rush; and
·that it was not very pleasant as he couldn’t walk for longer than five or ten minutes without needing either to rest or simply go home.
The Respondent accepts that Mr Stain’s PVD was fully diagnosed, treated and stabilised at the date of cancellation but contended there was limited corroborative medical evidence of the functional impact caused by this condition and relied upon the report of Dr Kumaran of 20 October 2017, which found that the condition was generally well-managed and caused minimal or limited impact on ability to function.
The Respondent submitted the HPAU’s assessment, which found that the functional impact from Mr Stain’s PVD condition was mild and should be awarded five points under Table 3, should be preferred as there was insufficient evidence that Mr Stain met the descriptors for a moderate or severe impact under Table 3.
The Respondent submitted at the Tribunal hearing that:
unfortunately, in this case, it appears that there is very limited evidence for – on which the tribunal can base a finding that Mr Stain’s functional impact from his peripheral vascular disease is more than five points. And in saying that, I note that Mr Stain has indicated that he lived alone, he was able to drive as well as catch public transport without assistance. And that assistance in the impairment tables is taken to be a reference to assistance from another person. Mr Stain has indicated that he is able to walk around the shopping mall, albeit he does require the assistance of the trolley which he routinely leans on.
So on that basis; we say that an appropriate impairment rating is five points under table 3. And that is because Mr Stain meets the descriptor that is 1(b) as well as 2(a) of the mild functional impact.
The Tribunal is satisfied that Mr Stain’s PVD was fully diagnosed, treated and stabilised at the time of cancellation and that it was having a mild functional impact on his daily activities, but awards nil points for this condition as the functional impact of his difficulties with walking has been considered in respect of his CAD condition and rated under Table 1. The Impairment Tables clearly state that when two or more conditions cause a common or combined impairment, a single rating should be assigned. Therefore, the Tribunal awarded nil points under Table 3 for Mr Stain’s PVD.
Post-traumatic stress disorder (PTSD)
In a report dated 21 June 2012, Dr Kichkin stated:
patient is a lovely gentleman despite his many medical problems. He tries very hard to cope with his activities of daily living and very compliant his treatment despite his financial stresses, anxiety and depression.
Mr Young, a caseworker with the Salvation Army, provided Mr Stain a letter of 10 August 2017 in respect of his housing issues. In the letter he observes:
As you can see from his medical assessment, Gavin has numerous chronic physical health issues which his GP describes as severe and on-going. He was referred to a Clinical Psychologist six weeks ago for associated mental health treatment. Gavin experienced torture and trauma as a prisoner in Mozambique, while he was employed with the South African security services. His Psychologist has confirmed diagnosis of Post-Traumatic Stress Disorder and highlighted the fact that Gavin needs to “avoid crowded units with high-density population”.
Mr Jeong, a psychologist, in a report of 15 August 2017 in respect of a housing claim by Mr Stain provided the following clinical opinion:
Assessment results together with Mr Stain’s reported symptoms meet the DSM-5 diagnostic criteria for Posttraumatic (sic) Stress Disorder. His traumatic memories are related to the past activities of secret service operative including killing, torture, and witnesses of colleagues’ deaths.
Dr Tsang, a consultant psychiatrist, in a medical report 1 March 2018 observed that Mr Stain:
provided me with clinical history that is consistent with chronic post-traumatic stress disorder based on DSM5 criteria with ongoing symptoms that have been severely impairing his day to day life and work functioning. His prognosis is uncertain at this stage and he is willing to engage in treatment in future.
I would support continuation of his disability support pension as such for mental health reason.
Mr Stain has obtained and submitted, at considerable expense and difficulty to himself, additional corroborating medical evidence from Dr Lozada, a consultant psychiatrist. The two undated reports obtained in the Philippines opined that Mr Stain is suffering from PTSD and severe chronic depression with the following symptoms:
·difficulty falling or staying asleep;
·instability or outbursts of anger, including thoughts of suicide;
·difficulty concentrating;
·hypervigilance;
·exaggerated startle response and physiological reactivity upon exposure to events that symbolise or resemble an aspect of the traumatic event, that is, fear of symptoms of heart attack and shooting incidents.
The Tribunal, in accordance with the Act, was unable to afford this report any weight as it was both outside of the qualifying period and undertaken outside of Australia.
Mr Stain, in an email for his first tribunal hearing dated 5 September 2018, rated himself as moderate under Table 5 for Mental Health Function stating:
1. I do not travel alone to most places, I prefer to stay at home where I feel completely safe behind locked doors or in the company of others.
2. I have 2 friends as all of the others have since distanced themselves from me due to my psychological mood swings
3. I left Australia with not one single person coming to see me leave or call to say goodbye
4. My concentration span is minimal since my cardiac operations. I cannot concentrate on any task for a period of 10 minutes before I need to get up and go outside or do something else. My Cardiologist explained that this is normal after bypass surgery but it’s extremely frustrating that I cannot do things which I have been able to do in the past
5. I tend to become very upset or angry at people or things which impede on my routine way of life, whether this be in a supermarket queue (taking too long) or people outside my room, talking loudly or arguing. I become very annoyed at others drivers who are inconsiderate on the roads or blatently (sic) break the law and feel compelled to do or say something
6. I tend to keep to myself more often than not and always find excuses not to go out with others (swimming, bbq or outings etc)
The Respondent contended that Mr Stain’s PTSD was fully diagnosed at the cancellation date but not fully treated and stabilised as he had not undertaken possible treatment for this condition, such as a combination of further psychological therapy, psychiatric treatment and medication, which was likely to improve the symptoms and functional impact associated with this condition.
Mr Stain vehemently disagreed with this proposition, advising the Tribunal he did not continue treatment with his psychologist as he did not feel this form of therapy was helping his condition at all. He also disputed the findings of the Tier 1 that found the professional views that Mr Stain would most likely benefit from treatment as recommended by his psychologist were more persuasive than his own. At the hearing, Mr Stain stated:
I’ve suffered this condition since 1986. I would not have benefited from further sessions. Talking about your past doesn’t erase it, nor does it make it any easier to cope with it … spoken with many defence force veterans. …but all of them were suffering PTSD, those that I spoke to agreed that no psychiatric prevention has ever helped nor could ever help what each person is experiencing.
This was and still is my opinion that, as many PTSD sufferers will testify, there is no cure for PTSD, especially when it relates to lives being lawfully taken.
…
I would like to challenge the tribunal’s findings that the views of a professional to be more persuasive (sic). It is not a matter of being more persuasive, but rather who has first-hand knowledge of individual cases. Although I respect the professional opinion I do not accept that every professional is able to draw a conclusion that every case is clear cut. If this was true then I ask the court why are there thousands of cases of PTSD still untreatable? Surely, the professionals would have that experience and expertise to treat every case of PTSD successfully if they could. Not many professionals, if any, have ever experienced what I’ve endured. I am experiencing … endless flashbacks of the faces of those who I eliminated. I think constantly of the families that have been left without their loved ones.
I constantly look over my shoulder and I jump when there’s voices outside or who’s in the car, you know, that stops outside my house? Are they watching my every move? I’m the one who finds it totally impossible to get a complete night’s rest without waking in a sweat and dreaming of my past. I live my previous horrendous experience every single day and I would give everything to wind that back, but we know that’s impossible and no amount of therapy or medication can cure that. So why did the tribunal decide that the views of the professional is more persuasive than mine when the professional has never experienced what I have. Not many people in the world have …..
The Respondent submitted that the Tribunal hearing that:
... specifically dealing with the PTSD condition, for the reasons we have discussed today, the Secretary says that we accept that … the condition was fully diagnosed but do not accept that it was treated and stabilised at the date of cancellation. The reasons for which are that ... both parties’ own admission and as outlined in the PDS reports has, at no time, been in receipt or of or been prescribed medication to treat post-traumatic stress disorder.
As Mr Stain has just indicated, he was not on a mental health care plan at any stage. Although we know there are a number of sessions that he attended with Mr Jeong who is a registered psychologist. We note also the report from Dr Tsang, who is a consultant psychiatrist albeit that post-dated the cancellation date. And in that report Dr Tsang indicates that the prognosis is uncertain and that Mr Stain has indicated he would like to continue treatment in the future. Mr Stain has today given evidence that whilst in Australia he lived alone. There is evidence that Mr Stain was able to travel to unfamiliar environments, being on a plane internationally and travelling throughout the Philippines where he spent, it appears, four weeks immediately prior to the date of cancellation.
Mr Stain has indicated that in going to the Philippines in December 2017 - that the purpose of that trip was to see a couple of friends. And so on that basis, we say, while we do not concede that the PTSD condition was fully treated and stabilised, we say then that if the tribunal does find that it was fully treated and stabilised, we say, then, that that (sic) should award or should attract an impairment rating of zero points, that is nil impairment for that PTSD condition and that would be under table 5 mental health.
The Tribunal found that at the time of cancellation Mr Stain’s PTSD had been fully diagnosed but not fully treated and stabilised as he had not successfully engaged with treatment. The Tribunal was sympathetic to Mr Stain’s opinion that further treatment would not assist him to block out the horrors that haunt him but the Tribunal could not rule out the possibility that treatment may assist him to function at a greater level. Additionally, the Tribunal noted that if the condition had been assessed as fully diagnosed, treated and stabilised it would have assessed the impact of the condition on Mr Stain’s functionality in accordance with Table 5 ‘Mental Health Function’ as mild at the time of cancellation. The Tribunal found Mr Stain was:
·able to live independently and self-care as demonstrated by his living on his own;
·maintain interpersonal relationships as demonstrated by his marriage to his current wife;
·had difficulty with concentration and task completion;
·was able to plan and make decisions as indicated by his relocation to the Philippines; and
·did not have a work or training capacity.
Diabetes

Dr Kichkin stated on 21 June 2012:
Diagnosis type II Diabetes since 2006
Current symptoms
Diabetic systems requires constant diabetic monitoring blood tests, specialist reviews, eye checks, preventative foot care and dietetics. Dizziness.
He stated that Mr Stain needed constant diabetes monitoring, medication and ‘regular reviews with specialist – financial expenses & stressors. Hypoglycaemic attacks.’
The HPAU report of 12 April 2018 reports a telephone conversation with Dr Kumaran in which he confirms that Mr Stain’s diabetes was well-managed and did not lead to any significant symptoms of functional impairments.
Mr Stain made no submissions in respect of his diabetes condition.
The Respondent accepted that Mr Stain’s diabetes condition is fully diagnosed, treated and stabilised but contended there was no evidence of any functional impact and accordingly a rating of nil impairment points should be assigned.
The Tribunal was satisfied that Mr Stain’s diabetes was fully diagnosed, treated and stabilised during the qualifying period but caused minimal functional impact and as such nil points were awarded for this condition.
Spinal canal stenosis
Dr Healy reviewed a lumbar spine CT scan performed on 8 December 2015 and concluded:
there are degenerative changes seen in the lumbar spine, as described. There is canal stenosis, which is most marked at L5/S1, and to a lesser degree at L3/4. For symptomatic relief, the patient may benefit from a CT guided L5/S1 epidural steroid injection.
Mr Stain’s email of 5 September 2018 indicates that he experiences severe pain in his lower back and that this has been thoroughly investigated by a neurosurgeon but they were unable to diagnose the cause and the pain continues to limit his walking ability and ability to stand.
The Respondent contended that Mr Stain’s spinal condition was not fully diagnosed at the cancellation date as there was no evidence of any special assessment or investigation of results at the date of cancellation.
The Tribunal found that Mr Stain had been diagnosed with spinal canal stenosis, as evidenced by the CT scan of 8 December 2015, but had no corroborating medical evidence to indicate that the condition had been treated and stabilised. As such nil points were awarded for this condition.
IMPAIRMENT RATING
The Tribunal has found that Mr Stain has an overall impairment rating of 10 points under Table 1 for his combined CAD and PVD conditions. As Mr Stain does not have an impairment of 20 impairments points or more he does not satisfy s 94(1)(b) of the Act.
THIS DOES MR STAIN HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr Stain must not only satisfy the requirement that he has impairment with a rating of 20 points or more under the Impairment Tables but must also demonstrate that he has a continuing inability to work. As Mr Stain’s DSP has been cancelled he does not need to satisfy s 94(2)(aa) of the Act and is not required to participate in a program of support.
Mr Stain advised the JCA on 14 December 2017 that he did not believe he was able to work due to his health conditions and this was obviously reinforced by the fact he had been on DSP for the past seven years.
Whilst Mr Stain did not directly address the issue of his continuing inability to work or train during the hearing, he advised the Tribunal that:
·his attention span was limited and he got easily bored when listening to someone talking or holding a decent conversation for longer than a few minutes and at such times he would desperately feel the need to go and do something else;
·his memory was less than it was in the past and he had to use various technology to assist him with remembering basic things such as taking his medication or attending medical appointments; and
·when undertaking simple tasks he had to repeatedly ask individuals to explain what was required and he found this embarrassing and got very annoyed. He indicated he had started many projects but abandoned them after a short while.
The Respondent contended that the best evidence of Mr Stain’s work capacity was in the JCA report of 14 December 2017, which assessed Mr Stain baseline work capacity at 8-14 hours per week and noted the impacts of his medical conditions included reduced walking and standing tolerance, reduced concentration, low mood and poor anger control. The assessor observed that Mr Stain’s work capacity was likely to increase to 15-22 hours per week with intervention to address prevocational barriers and the impacts of his mental health condition.
The Respondent contended that the assessment of Dr Keech in his report of 5 June 2018 that ‘he would be very surprised if Mr Stain was unable to secure any such position based on the significance of his medical illness. I would generally regard him as very difficult to re-employ at a real life practical level’ should not be given any weight.
The Tribunal notes that there seems to be no uniform preference in the past decisions of the Tribunal as to whether the conclusions in a JCA report should be preferred to those in a medical report for the purpose of assessing a continuing inability to work. The Tribunal had insufficient evidence on which to determine whether Mr Stain had a continuing inability to work. The Tribunal found that an absolute preference could not be expressed for either report before it and found that Dr Keech’s report lacked the reliability and depth of analysis necessary to assess the probative value of his determination, the report having been written for an exercise unrelated to a determination for DSP. Additionally, the JCA report was contradictory and seemed to indicate that Mr Stain had significant barriers for re-entry to the workforce, which the Tribunal interpreted may well imply Mr Stain had a continuing inability to work.
PORTABILITY
Mr Stain has not been found to have a severe impairment as defined by the Act, namely an impairment attracting a rating of 20 points under a single table, and as such he does not qualify for indefinite portability of his DSP.
POSSIBLE RECOURSE FOR THE APPLICANT
The Tribunal and the Respondent both advised Mr Stain that the Tribunal could not address his grievance with Centrelink’s handling of his application for portability of his DSP but that he did have other avenues by which he could explore his grievance.
Mr Stain relayed to the Tribunal both during the hearing and in written submissions that, while his DSP has been cancelled, he has been struggling to make ends meet or purchase necessary medical requirements and food. He advised the Tribunal that he felt the situation was totally inhumane and unfair as he had been treated unfairly. Mr Stain outlined at length the background to his claim for portability of his DSP and his observation that Centrelink had contributed to his current financial crisis. Mr Stain advised the Tribunal that he had proceeded with his application for portability of his DSP on the advice of a Centrelink officer who had advised that over 90% of applications for portability were denied but that he could not see why Mr Stain’s application would be denied based on his having undergone two open heart surgeries, one of which resulted in a life-threatening infection. Mr Stain said he had then proceeded to leave Australia to be with his wife in the Philippines but that if he had known his DSP would be cancelled he would not have left Australia. Instead, he would have tried everything to get his wife to come to Australia because moving overseas had always been about his need for companionship in his life, as he was struggling with isolation and depression on his own in Australia.
The Tribunal explained to Mr Stain that his complaint about his perception of defective administrative actions undertaken by Centrelink during his application for portability of his DSP were not matters the Tribunal could review but advised Mr Stain that he could seek redress for these actions by making a claim for compensation under the Scheme for Compensation of Detriment caused by Defective Administration (the CDDA Scheme), which is administered by the Department of Finance. Defective administration is defined as:
·a specific and unreasonable lapse in complying with existing administrative procedures; or
·an unreasonable failure to institute appropriate administrative procedures; or
·an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
·giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
Applications under the CDDA Scheme are discretionary and are assessed on their individual merits. A finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal advised Mr Stain that it had no jurisdiction in respect of perceived defective administrative matters of the Department of Human Services and had no jurisdiction over the administration of the CDDA scheme. Whilst the Tribunal advised Mr Stain that it had no way of assessing if his claims might be successful if he lodged a request, it nevertheless encouraged him to lodge an application as it would appear on his evidence that inappropriate advice may have been provided to him.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that, at the time of his DSP cancellation on 7 February 2018, Mr Stain did not have the required 20 impairment points to satisfy s 94(1)(b) of the Act. The Tribunal was unable to determine if Mr Stain had a continuing inability to work to satisfy s 94(1)(c). Having found Mr Stain did not qualify for a DSP and did not have a severe impairment, the Tribunal finds he was not eligible for unlimited portability of his DSP.
DECISION
The decision under review is affirmed.

I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms A Burke AO, Member

..........................[sgd].....................................
Associate
Dated: 13 September 2019

Date(s) of hearing: 26 June 2019

Applicant: By telephone

Solicitors for the Respondent: Mr S Agnello, Litigation and Information Release Branch, Department of Human Services

[2019] AATA 3503

13 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date(s) of hearing:	26 June 2019
Applicant:	By telephone
Solicitors for the Respondent:	Mr S Agnello, Litigation and Information Release Branch, Department of Human Services