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

[2016] AATA 787

Stuart; Secretary, Department of Social Services and (Social services second review) [2016] AATA 787 (7 October 2016)

Division	GENERAL DIVISION
File Number	2015/2676
Re	Secretary, Department of Social Services
APPLICANT
And	Leith Stuart
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	7 October 2016
Place	Adelaide

The Tribunal affirms the decision under review.  Mr Stuart is qualified to receive the disability support pension from 22 September 2014.

.........................[Sgd]...............................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether conditions attracted 20 points or more under the Impairment Tables - applicant has a severe impairment - decision under review is affirmed.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, ss 41 and 42, clauses 3 and 4 of Part 2 to Schedule 2

CASES

Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Member I Thompson

7 October 2016

INTRODUCTION

1. Mr Stuart lodged a claim for disability support pension (DSP) on 22 September 2014.  Centrelink rejected the DSP claim both initially and on internal review.  Mr Stuart applied to the Social Security Appeals Tribunal (SSAT) for review of Centrelink’s decision.  His application succeeded and the decision under review was set aside.  The outcome of the SSAT decision was that Mr Stuart was eligible to receive the DSP from the date of his claim.

2. The Secretary filed an application for review of the SSAT decision.  The hearing before this Tribunal took place on 18 August 2016.  Mr Stuart was represented by Ms M Riley, Welfare Rights Centre (SA) Inc and Mr A Hay, Department of Human Services, represented the Secretary.  Mr Stuart gave evidence.  The Secretary called oral evidence from Dr W Weightman.  The Tribunal received in evidence as exhibits various medical reports together with reports from Centrelink. 

   LEGISLATION AND ISSUES

3. The issue for the Tribunal is whether Mr Stuart satisfied the qualification criteria for the DSP which are set out in s 94 in the Social Security Act 1991 (the Act).  In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mr Stuart’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 22 September 2014 to 22 December 2014.

4. Section 94 of the Act provides that a person is qualified for DSP if:

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

   (b)The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)The person has a continuing inability to work.

5. In accordance with s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

   This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

6. The Secretary concedes, and the Tribunal accepts, that Mr Stuart suffers medical conditions that cause impairment. Accordingly s 94(1)(a) of the Act is satisfied at the time of Mr Stuart’s claim for DSP.

7. The Secretary conceded that Mr Stuart’s medical conditions included hypermobility syndrome of joints, eczema, asthma, depression and fibromyalgia.

8. The Secretary conceded that Mr Stuart’s hypermobility syndrome attracted a rating of 5 points under Table 4 (spinal function) of the Impairment Tables and a rating of 5 points under Table 3 (lower limb function).  The Secretary also conceded that a rating of 10 points should be assigned to Mr Stuart’s eczema under Impairment Table 14 (functions of the skin).  It was not conceded that any of the other conditions attracted a rating of impairment points. 

9. With the concession of a total of 20 impairment points, the Secretary accepted that Mr Stuart satisfies s 94(1)(b) of the Act. However the Secretary contended that Mr Stuart could not satisfy s 94(1)(c) of the Act as he did not have a continuing inability to work because he had not actively participated in a program of support which is a requirement of s 94(2)(aa) of the Act.

10. In Mr Stuart’s statement of facts and contentions, it was contended that an impairment rating of 5 points under Impairment Table 3 (lower limb function) and an impairment rating of 5 points under Impairment Table 4 (spinal function) were both appropriate.  It was also suggested that the Tribunal could allocate a mild or moderate impairment rating under Impairment Table 1 (functions requiring physical exertion and stamina) for the condition of fibromyalgia.  Mr Stuart contended that the condition of eczema should be allocated 20 points under Impairment Table 14 (functions of the skin). In those circumstances it was submitted that Mr Stuart did not need to meet the requirements of a program of support. 

    CONSIDERATION

11. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the Rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

12. The applicable impairment rating, if any, for each of Mr Stuart’s conditions will be considered in turn by reference to the Impairment Tables.  As indicated, consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating, as the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

13. Mr Stuart is 47 years old.  He resides with his wife and 18 year old son in suburban Adelaide.  In his 20’s he was employed as a dancing instructor.  Problems with his legs caused him to cease that work.  Through natural abilities as a singer and a musician he tried to make a living as a musician.  He succeeded in that career for many years, notably as a solo performer.  He played the guitar and sang.  He was forced to stop working in 2014 because of his medical conditions.  Then he applied for the DSP.

14. In his DSP claim, Mr Stuart listed his disabilities, illnesses or injuries as hypermobility syndrome of all joints, severe eczema, asthma, depression, insomnia, cervical fusion, perianal abscess and anaemia.  He listed his treatment as multiple medications which had mild to severe side effects in different areas from various medications, in particular liver and kidney function impairment.  In the DSP claim form Mr Stuart listed his activities as home duties, parenting, managing his illness and medications, attending medical appointments and procedures and handling the family budget.

    Hypermobility syndrome of joints

15. In a report dated 27 August 2014,[1] Mr Stuart’s general medical practitioner, Dr S Klaric, stated a diagnosis of hypermobility syndrome of joints.  The diagnosis had been confirmed by further specialist opinion from a rheumatologist.  Specialist consultations had occurred since the diagnosis in 1994 and they included multiple consultations with a rheumatologist, a neurosurgeon and an orthopaedic surgeon. 

    [1] Exhibit 1, T16.

16. Treatment in 2014 comprised medication and Dr Klaric confirmed symptoms of pain, locking, swelling and giving way of joints which were constant.  Dr Klaric reported that the joint problems commenced in 1994 and had become steadily worse in the following years.  He reported that Mr Stuart had undergone multiple X-rays, scans and procedures.  Dr Klaric wrote that the impact on Mr Stuart’s ability to function through pain and locking of multiple joints included inability to lift, bend, stand or sit to any extent together with restrictions in mobility particularly with walking and climbing.  Within the next two years Dr Klaric expected the condition to deteriorate because of aging.  The joints will become more worn, inflamed and painful and Dr Klaric expected the impact of the condition to persist for more than 24 months and to affect Mr Stuart’s ability to function.

17. Professor L Cleland is the Director of the Rheumatology Unit at the Royal Adelaide Hospital (RAH).  In a report dated 11 December 2014 [2] he wrote about his assessment of Mr Stuart.  He noted Mr Stuart’s history of cervical pain, lumbar pain and multifocal joint pain, myalgia, generalised hyperalgesia, pins and needles and numbness in the upper and lower arms. 

    [2] Exhibit 1, T17.

18. Professor Cleland reported symptoms of fibromyalgia affecting shoulders, elbows, wrists, hips, knees, ankles, from the early 1980’s.  He reported problems with the cervical spine since 2003, noting C6/7 and C7/T1 fusion.  He reported pain in Mr Stuart’s lumbar spine from 2010 and right sided thigh pain radiating to the lower leg.  In addition, he noted Mr Stuart’s severe atopic dermatitis, eczema and asthma since birth, depression from the early 1990’s which worsened from 2012, anaemia on occasions from 2008, hypertension from 2012, alopecia commencing in 2006 and including two episodes of complete hair loss, with the most recent episode occurring in October 2014, intermittent chest pain, vitamin D deficiency, osteoporosis from early 2014 and a diagnosis of diabetes in 2014.  Professor Cleland recorded the 13 different types of medication prescribed for Mr Stuart and listed the primary issues at that time as fibromyalgia, chronic and widespread pain, poor sleep patterns, a history of depression, abuse of alcohol, pancreatitis, and long tern steroid use for atopic dermatitis. 

19. Mr Stuart gave evidence about the frequency and impact of the pain which he has in his hips, legs and knees.  The pain is constant and aggravated with quite minor movements.

20. The Secretary accepted that Mr Stuart suffers from joint hypermobility syndrome which was fully diagnosed, fully treated and fully stabilised at the time of the DSP claim.  Impairment Table 3 provides the descriptors of impairment relating to lower limb function.  The Secretary conceded that Mr Stuart’s lower limb function attracts a rating of 5 points for a mild functional impact under Table 3.  The Tribunal considers that the Secretary’s concessions are correct.

21. In relation to the impact of hypermobility syndrome of joints on the spinal function the Secretary conceded that there was a mild functional impact which attracted a rating of 5 points under Table 4.  The Tribunal considers that the Secretary’s concession is correct.

    Fibromyalgia

22. In a report dated 19 December 2014,[3] Dr Klaric confirmed a diagnosis of chronic fibromyalgia with a date of onset in 2011.  He confirmed that the diagnosis was supported by Professor Cleland.  Treatment in 2014 included medication which was expected to continue.  Symptoms of the fibromyalgia affected all aspects of Mr Stuart’s life and had steadily worsened since 2011.  Dr Klaric reported that the impact on Mr Stuart’s ability to function was expected to persist for more than 24 months.  It included widespread muscular and joint pain and joint stiffness which made routine activities of daily living either difficult or impossible. 

    [3] Exhibit 1, T15.

23. Mr Stuart gave evidence about difficulties he has walking, bending, and the adverse effects on him of performing routine physical activities.  Taking into account the medical evidence together with Mr Stuart’s evidence, the Tribunal is satisfied that the fibromyalgia was fully diagnosed at the time of the DSP claim and was fully treated and stabilised.   

24. Impairment Table 1 provides the descriptors of impairment relating to functions requiring physical exertion and stamina.  A mild functional impact attracts a rating of 5 points.  Noting the medical evidence and Mr Stuart’s evidence the Tribunal considers that the fibromyalgia attracts a rating of 5 points under Table 1.

    Eczema

25. Dr Klaric’s report dated 27 August 2014[4] confirmed a diagnosis of severe eczema from birth.  The diagnosis was confirmed by a specialist dermatologist Dr J Wayte.  Treatment by medication included Prednisolone and Methotrexate together with multiple cortisone creams.  Dr Klaric reported symptoms including inflamed and constantly itchy skin.  The side effects of Prednisolone included cataracts, muscle weakness, weight gain, and glaucoma.  Side effects of Methotrexate included nausea and decreased concentration.  Dr Klaric reported that the eczema had steadily worsened over Mr Stuart’s lifetime.  There was a considerable impact on Mr Stuart’s ability to function because of irritation and itchy skin which caused difficulties with concentration, poor memory, insomnia and an inability to rest.  The impact of the condition was expected to persist for more than 24 months.

    [4] Exhibit 1, T16.

26. Dr J Wayte is a dermatologist practicing at Dermatology SA.  Records were received in evidence outlining summaries of Dr Wayte’s treatment of Mr Stuart from 2007.[5]  In his report dated 13 August 2015 [6] Dr Wayte confirmed that Mr Stuart had a lifelong history of atopic dermatitis and asthma.  In that report he outlined the treatment Mr Stuart had received since 2005 which included admissions to the Royal Adelaide Hospital (RAH).  From 2005 treatment for dermatitis had included intensive topical treatment and systemic therapy with Cyclosporin.  Side effects of medication included interference with vocal chords, renal impairment, a history of cataracts requiring intra-ocular lens implant, type 2 diabetes, osteoporosis, glaucoma and, possibly steroid related, myopathy, and avascular necrosis of both hips.  Dr Wayte reported that all of these problems are a combination of long term steroid therapy required for the management of Mr Stuart’s dermatitis. 

    [5] Exhibit 5.

    [6] Exhibit 3.

27. In January 2014 when Mr Stuart was seen by Dr Wayte, he had dermatitis on his face and upper trunk and he was ‘cushingoid’.  Dr Wayte prescribed Methotrexate with a slight reduction in Prednisolone dose to 10mg daily.  However, if the Prednisolone was reduced further then the control of the dermatitis becomes unacceptable.  Dr Wayte concluded his 13 August 2015 report[7] about Mr Stuart, confirming that he:

    “… has life long atopic dermatitis which in the past 10 years has been very severe and difficult to control with a variety of systemic therapies.  His eczema is currently satisfactorily controlled with Methotrexate 15 mg a week, Prednisolone 10 mg a day and regular use of emollient and topical steroid.  Unfortunately long term Prednisolone has resulted in numerous very significant adverse effects which in combination will make it difficult for him to seek employment…”

    [7] Exhibit 3.

28. The Secretary arranged for a dermatologist, Dr W Weightman, to assess Mr Stuart.  Dr Weightman provided a report dated 5 November 2015.[8]  He also gave evidence to the Tribunal by telephone.  Dr Weightman confirmed Mr Stuart’s diagnosis of lifelong atopic dermatitis which became more severe after the year 2000.  When it worsened Mr Stuart was prescribed Cyclosporin which led to renal impairment after several years and the medication was changed.  Dr Weightman noted that Mr Stuart had moved temporarily to southern Queensland in the hope that the climate would be better for him.  However the long term effects were not beneficial and Mr Stuart resumed treatment with Cyclosporin.  Dr Weightman also confirmed that the dosage of Prednisolone had a number of side effects including bilateral necrosis of the femoral heads as well as problems with his muscles. 

    [8] Exhibit 4.

29. Dr Weightman confirmed that Mr Stuart avoids triggers such as dust, pollen, animals and house dust.  Itching is always present.  Sleeping is problematic because of the itching.  Dr Weightman confirmed that most activities involving use of the hands cause them to flare from friction, irritation or sweating.  He reported that Mr Stuart cannot wear a hat because of overheating of his scalp and he cannot use sunscreen because of itching.  Dr Weightman reported that Mr Stuart cannot go outside for more than 10 minutes at a time as he burns easily.  Going into the garden will cause a flare of the eczema.  So too does exposure to lawn clippings to the extent that he has to go inside when his neighbour mows the lawn.  Any of these types of activities will cause Mr Stuart’s eczema to flare and become more severe.  Avoiding those triggers and those activities enables the eczema to remain under control with the dosage of Methotrexate 15mg once weekly and Prednisolone 10 mg per day.  It contains the eczema at a mild level on Mr Stuart’s chest, forearms, palms, fingers, feet and face.

30. The impacts on Mr Stuart’s daily activities from his eczema which were described in the reports by Dr Klaric and Dr Wayte reflected the evidence which Mr Stuart gave to the Tribunal.  In that evidence, which the Tribunal accepts, Mr Stuart quietly and at length described the lifelong difficulty, deterioration and impact of his eczema condition and the side effects of the medication which he is obliged to take to keep it under control.  He said that each day is a struggle for him and his life is totally reactionary to his medical conditions.  He acknowledged that he is under a great deal of duress all of the time.  His social life is limited.  He spends most of the day at home.  He uses a computer for recreational interest.  His routine is mainly sedentary, occasionally walking around the house, doing some light household activities and managing his medication.  He is embarrassed by his appearance. 

31. Mr Stuart is always conscious of a flare up in his eczema.  He manages to keep the eczema only just under control through the medication.  However it is always itchy and the itchiness is all consuming.  He spends little time outside because of the sun.  His skin bleeds if he scratches it.  This was the situation at the time of his DSP claim.  He applied for the DSP as a last resort.  He could no longer continue as a musician because of the pain in his hands and fingers and the medication that he was taking affected his voice.  He acknowledged previous alcohol and substance abuse which worsened in his struggle with the daily effects of eczema and the medications.  He understood that he had to make a decision about use of alcohol and he has been alcohol free since June 2013. 

32. Impairment Table 14 provides the descriptors of impairment relating to functions of the skin.  It is to be used where a person has a permanent condition that caused functional impairment related to disorders of, or injury to, the skin.  There must be a diagnosis of the condition by an appropriately qualified medical practitioner.  For a severe functional impact Table 14 states:

Points

Descriptors

20

There is a severe functional impact on activities requiring healthy, undamaged skin.

(1)   Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:

(a)   the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving the hands;

(b)   the person has severe difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

(c)   the person has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

(d)   the person has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;

(e)    the person is not able to wear clothing or footwear likely to be required in their workplace, including items of personal protective equipment (e.g. protective glasses, ear defenders, safety jacket, gloves, safety boots, safe shoes or hard hat).

1. The Tribunal is satisfied that Mr Stuart’s condition of eczema was fully diagnosed at the time of the DSP claim.  The evidence of Dr Klaric and Dr Wayte confirms the diagnosis at that time.  The Tribunal is also satisfied that the condition of eczema was fully treated and stabilised at the time of the DSP claim.

2. A Job Capacity Assessment report (JCA) report submitted on 27 January 2015[9] recommended a rating of zero points under Impairment Table 14 with the assertion that there was no functional impact on activities requiring healthy, undamaged skin.  The Tribunal does not accept that assessment as it is not in accordance with the medical evidence and the evidence of Mr Stuart.  The Secretary contended that Mr Stuart’s impairment for the condition of eczema could be described as moderate with a rating of 10 points under Impairment Table 14.  It was submitted for Mr Stuart that the eczema attracted a rating of 20 points for a severe functional impact.  The SSAT concluded that there was very clear medical evidence that Mr Stuart has lifelong severe eczema with a rating of 20 points.

   [9] Exhibit 1, T18 p 230.

3. In his report Dr Weightman concluded that Mr Stuart had a severe functional impact as criteria (d) and (e) of the 20 point descriptor were fulfilled.  In evidence Dr Weightman acknowledged that Mr Stuart’s treatment is standard for severe eczema.  The main symptom is itching and Dr Weightman likened it to troublesome and chronic pain.  At this time there are no other known treatments that would keep Mr Stuart’s eczema under control.  The control itself is a relative term as it is a balancing act between keeping the effects of eczema at a level where Mr Stuart can function, while maintaining the side effects of medication at a tolerable level.  Dr Weightman acknowledged that a decrease in the dosage of Prednisolone would reduce the side effects, however it would then cause the eczema to flare up. 

4. In his oral evidence Dr Weightman tended towards the descriptors in (a) and (d) in the 20 point rating.  He explained that even though Mr Stuart’s eczema might be controlled from a medical perspective, nonetheless, the functional impact may still be severe.  The dilemma for Mr Stuart is to try to avoid activities which will involve a flare up of the eczema.  Avoidance of those activities could reduce the functional impact from a severe one to a moderate one.  However, this is simply a reflection of the difficulties that Mr Stuart always has in balancing daily, routine activities involving use of the hands, movement of limbs and all aspects of self-care.

5. The Secretary contended that there were significant periods where Mr Stuart’s eczema is mild and causes only a mild impairment.  Reference was made to s 11(4) of the Rules for applying the Impairment Tables in the context of episodic and fluctuating conditions.  However the evidence is clear that the impact of Mr Stuart’s functional impairments from eczema are constant rather than episodic or fluctuating. 

6. For the Tribunal to be satisfied that Mr Stuart has a severe functional impact on activities involving the functions of the skin at least two of the descriptors in Table 14 of the 20 points criteria must apply.  He is unable to perform some tasks involving the use of hands (descriptor (a)).  He has severe difficulties performing daily activities (descriptor (c)).  He also has severe difficulties performing activities involving exposure to sunlight and he can only spend a brief period of time in sunlight each day, (descriptor (d)). 

7. The Tribunal is satisfied that the eczema condition was fully diagnosed at the time of the DSP claim and was fully treated and stabilised. The Tribunal is satisfied that a rating of 20 points is appropriate for the severe functional impact on Mr Stuart’s activities regarding functions of the skin.

   Other conditions

8. Mr Stuart has a diagnosis of depression which was confirmed by Dr Klaric.[10]  Symptoms included low mood, poor concentration, difficulty coping with stress and insomnia.  The clinical symptoms of a mental health condition largely followed from the physical symptoms.  The depression had deteriorated to the point of suicidal thoughts and self‑harm. 

   [10] Exhibit 1, T 15.

9. Unfortunately Mr Stuart’s emotional resilience deteriorated to the point that he was admitted to hospital in October 2014 for treatment for depression and anxiety.  On discharge it was suggested that Mr Stuart’s general medical practitioner organise a care plan to access psychological therapy and a referral to facilitate pain management and mobility. 

10. The Tribunal finds that Mr Stuart’s mental health condition was fully diagnosed during the assessment period. However, it was not fully treated and stabilised.  Accordingly an impairment rating cannot be given.

11. Other conditions relating to anaemia, cataract removal, asthma were not relied upon in a substantive way to support the DSP claim.

    CONTINUING INABILITY TO WORK

12. The next issue for determination is whether Mr Stuart had a continuing inability to work as required by s 94(1)(c)(i) of the Act.

13. Section 94(2) of the Act defines a continuing inability to work as follows:

    (2)  Continuing inability to work

    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

    (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.

    Note:  For work see subsection (5).

14. With an impairment rating of twenty points under a single Impairment Table, it follows that Mr Stuart has a severe impairment within the meaning of s 94(3B) of the Act and he does not need to meet the requirement of actively participating in a program of support.

15. In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded. They were set out in Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664 as follows:

    23. …

    ·any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);

    ·the availability of work in the person’s locally accessible labour market (s94(3)(b));

    ·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451);

    ·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department  of Family and Community Services [2004] AAT 864 [34]);

    ·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and

    ·the existence of a benign employer of sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517).

16. The first JCA report submitted on 17 October 2014 recorded a temporary work capacity of 0-7 hours per week until 31 March 2015 and thereafter a base line work capacity of 15‑22 hours per week.  Capacity for work within two years with intervention was estimated at 23‑29 hours per week.

17. A second JCA report submitted on 27 January 2015 varied from the first report in relation to temporary work capacity.  It recorded a temporary work capacity of 0-7 hours per week with an end date at 22 January 2016.  The baseline work capacity was recorded at 15-22 hours per week with capacity for work within two years with intervention at 23-29 hours per week.  Suggested suitable work was of the less skilled type and an example given in each of the JCA reports was work as a music/singing teacher/tutor. 

18. The Tribunal accepts Mr Stuart’s evidence that he was obliged to give up work as a professional musician in early 2014.  He had also tried other types of work as a bingo caller and a quizmaster.  Because of the difficulties with his skin condition and hypermobility syndrome of joints, he could not sustain work.  From his evidence, the Tribunal has a clear impression that he has always endeavoured to work.  Because of his multiple difficulties he has opted for self-employment which brings more control over the type, frequency and capacity for work with a suitable remuneration.  In his work over two decades Mr Stuart has endeavoured to develop his natural skills and interests in dancing, music and singing to forge a self-made career.  However, his various conditions reached a point where he made the reluctant decision that he could not continue.  In a real sense, it was not his decision.  The decision was brought about by the severe deterioration in his health and he could not continue to meet the work commitments.

19. In his report, Dr Weightman wrote that Mr Stuart would be precluded from physical work because of his eczema.  Dr Weightman also wrote that an office job would not cause significant worsening of the eczema and part-time work of 15 hours or more would be feasible.  However Dr Weightman added the proviso that Mr Stuart has other health issues which would need to be taken into account in assessing whether a particular work activity would be suitable.

20. The dermatologist, Dr Wayte, in his report previously referred to, wrote that it would be difficult for Mr Stuart to seek employment.[11]  Also, in the reports previously summarised, Mr Stuart’s general medical practitioner Dr Klaric had noted that the eczema was steadily worsening, the joint problems were becoming steadily worse with time, that Mr Stuart was unable to get sufficient rest to enable him to be in a fit condition for work, and the impact of the various conditions was expected to persist for more than 24 months.[12]

    [11] Exhibit 3.

    [12] Exhibit 1, T15 & T16.

21. Work is defined in s 94(5) of the Act as follows:

    work means work: 

    (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b) that exists in Australia, even if not within the person's locally accessible labour market.

22. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399, the Tribunal (Senior Member Isenberg) considered the meaning of “work” in the context of s94(2)(a) as defined in s94(5) of the Act and stated [at 58] :-

    When considering whether a person is prevented from doing ‘any work’ in s 94(2)(a), the capacity of the person to attract an employer in the open labour market having regard to the level and nature of the disabilities suffered and the type of work that the person was capable of undertaking without retraining, should be taken into account: Secretary, Department of Families, Community Services and Indigenous Affairs Harris [2010] FCA 360

23. In that case the applicant’s condition included a psychiatric condition and the Tribunal went on to say[at 59] :-

    …the Applicant has little, if any, to attract an employer in the open labour market having regard to the debilitating effect of her psychiatric condition in particular. She has few work skills and in my view is it is highly unlikely that any normal workplace could tolerate her symptoms, especially the manifestation of her despair and her fatigue: Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Hamal and Secretary, Department of Social Services [1993] AATA 283; Secretary, Department of Family and Community Services and Bell [1998] 52 ALD 472.

24. Noting the definition of work in s 94(5) of the Act and taking into account all of the evidence, it is clear that Mr Stuart’s conditions of eczema and hypermobility syndrome of joints have resulted in a loss of functional capacity which adversely affects his ability for work. The loss of functional capacity was profound and deteriorating steadily. At the time of the DSP claim, the functional impact of the impairments caused by those medical conditions was disabling. Dr Klaric wrote in a report dated 8 September 2015[13] that: 

    “The severe consequences to Mr Stuart’s health are as much due to the side effects of his medication as the conditions themselves.  His need for strong cortisone medication (Prednisolone) to control his skin condition has caused such problems as severe diabetes, and avascular necrosis of both hips.  The latter condition means that bone inside the hip joints has collapsed, causing severe pain and disability.  He is, at the age of 46, using a walking stick to get around, and waiting for hip replacements on both sides.

    He is clearly not fit to work.  As well as his physical problems he also has significant depression…”

    [13] Exhibit 2.

25. Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:

    training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

    (a) education;

    (b) pre-vocational training;

    (c) vocational training;

    (d) vocational rehabilitation;

    (e) work-related training (including on-the-job training).

26. However, as with Mr Stuart’s inability to work, it is clear that he would have extreme difficulty undertaking and maintaining a relevant training activity.  The Tribunal considers that the impairments that he has were sufficient to prevent him from undertaking a training activity within two years of the assessment period.

    SUMMARY

27. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

28. As outlined above, the Tribunal finds that Mr Stuart’s condition of joint hypermobility syndrome was fully diagnosed, treated and stabilised during the assessment period with impairment ratings of 5 points under Table 4 (spinal function) and an impairment rating of 5 points under Table 3 (lower limb function) of the Impairment Tables. The Tribunal finds that the condition of fibromyalgia was fully diagnosed, treated and stabilised during the assessment period and the applicable rating is 5 points under Impairment Table 1. The Tribunal also finds that the function of the skin, namely eczema, was fully diagnosed, treated and stabilised during the assessment period and the applicable rating for that condition is 20 points under Impairment Table 14. With a total of 35 impairment points, the criterion in s 94(1)(b) of the Act is satisfied.

29. Mr Stuart has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single Impairment Table.

30. Accordingly there is no need for Mr Stuart to have actively participated in a program of support within the meaning of s 94(3C) of the Act.

31. In all of the circumstances the Tribunal is satisfied that Mr Stuart has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    DECISION

32. For the reasons set out above the Tribunal affirms the decision under review.  Mr Stuart is qualified to receive the DSP from 22 September 2014.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.....................[Sgd]...................................................

Administrative Assistant

Dated 7 October 2016

Date(s) of hearing	18 August 2016
Advocate for the Applicant	Mr A Hay
Solicitors for the Applicant	Department of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc