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

Suddhoo and Secretary, Department of Social Services (Social services second review) [2022] AATA 4305 (13 December 2022)
Division:GENERAL DIVISION
File Number: 2022/2905
Re:Kevin Suddhoo

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Brigadier AG Warner, AM LVO (Retd)
Date:13 December 2022
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 2 March 2022, which affirmed a decision of a delegate of the Respondent, made on 8 January 2018, to reject the Applicant’s claim for disability support pension, is affirmed.
................[Sgd]........................................................
Brigadier AG Warner, AM LVO (Retd)
Catchwords
SOCIAL SECURITY – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – Applicant found not to have 20 or more impairment points – continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) – ss 23(1), 26, 92, 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(5), 94(3B)
Social Security (Administration) Act 1999(Cth) – s Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 6, 6(4), 6(5), 6(6)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd)
13 December 2022
Introduction

Mr Suddhoo seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1), dated 2 March 2022, (Reviewable Decision). The Reviewable Decision affirmed a decision of an Authorised Review Officer (ARO) of the Department of Human Services, now Services Australia (Centrelink), dated 8 January 2018, which rejected Mr Suddhoo’s claim for Disability Support Pension (DSP) lodged on 21 June 2016.
The application was heard by the Tribunal on 8 November 2022. The parties appeared via MS Teams audio. Mr Suddhoo was self-represented and gave evidence on affirmation. The Respondent was represented by Mr James Bernasconi of Services Australia.
Background
Mr Suddhoo was born in 1985, and on 21 June 2016, he lodged a claim for DSP with Centrelink (T108/455).
On 17 November 2016, Centrelink rejected Mr Suddhoo’s claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) (T79/313).
On 17 January 2017, Mr Suddhoo requested a review of a decision made on “17/10/16” (T80/315). In answer to the question “Which decision do you want reviewed?” Mr Suddhoo stated: “Rejection of my claim for Disability Support Pension” (T80/315).
On 8 January 2018, ARO reviewed the decision made on 17 November 2016. The ARO did not assign Mr Suddhoo an impairment rating and affirmed the decision under review (T85/321-322).
On 13 November 2021, Mr Suddhoo applied to the AAT1 (T100/371-372) for a review of a decision made on “17 Oct 2016”. In this Application, Mr Suddhoo indicated that he was seeking a review of a decision relating to “Disability support pension” (T100/372).
On 23 November 2021, Centrelink sent a letter to Mr Suddhoo confirming that he had asked the AAT1 to review the Centrelink decision dated 17 November 2016. The letter also requested that he contact the AAT if he had any questions about the application for review (T101/377). Centrelink has not received any correspondence indicating that Mr Suddhoo disputes the decision date of 17 November 2016 stated in this letter.
On 2 March 2022, the AAT1 made a decision in relation to whether Mr Suddhoo met the medical qualification requirements for DSP. The AAT1 assigned Mr Suddhoo a total impairment rating of five points and affirmed the decision under review (T2/5-14).
On 10 April 2022, Mr Suddhoo lodged an application for review of the AAT1 decision with this Tribunal (T1/1-4). In his application, Mr Suddhoo claimed that the AAT1 decision was wrong because “[t]he decision is wrong as the member of the tribunal failed to counter my review of the decision. He concluded his decision based just by listing the medical evidence with no attention to counter any part of my submissions. decision is bias.” (T1/4).
Issues
The Tribunal must decide whether Mr Suddhoo was qualified for the DSP on the day he lodged his claim or within 13 weeks thereafter. The claim for DSP was lodged with Centrelink on 21 June 2016, and consequently the period for assessing Mr Suddhoo’s eligibility is from 21 June 2016 until 20 September 2016 (the Qualification Period).
The Tribunal’s consideration requires the assessment of whether Mr Suddhoo suffered from a physical, intellectual or psychiatric impairment or impairments; if so, whether the impairment(s) were fully diagnosed, treated and stabilised (FDTS) and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and whether Mr Suddhoo had a continuing inability to work (CITW) in accordance with s 94(1)(c) of the Social Security Act 1991 (Cth) (the Act).
Legislative Framework
The Tribunal is required to consider the provisions of the Act; the Social Security (Administration) Act 1999 (Cth) (the Administration Act); the Impairment Tables; and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Tribunal must also have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are any cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).
Section 94 of the Act contained the qualification criteria for DSP and states in part:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)     the person has a continuing inability to work;
(ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis; notes omitted.)
The term “severe impairment” is defined under s 94(3B) of the Act as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Original emphasis; notes omitted.)
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(c)the person’s condition causing that impairment is permanent; and
(d)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
(Notes omitted.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim and states in part:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
It follows that Mr Suddhoo’s claim for DSP must be assessed on the basis of his medical conditions as at the date of claim, or within 13 weeks of that date (see above). In relation to the importance of the Qualification Period, the Respondent relevantly cites authorities which affirm the principles that “medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period”, and that should circumstances have changed subsequent to the Qualification Period, a fresh DSP claim may be appropriate (Exhibit R1, paras 5.7–5.8).
EVIDENCE
The Tribunal had the following material before it:
·The “T-Documents” (T1-T109, pp 1-496);
·Applicant’s submission dated 10 October 2022 (Exhibit A1);
·Applicant’s submissions dated 10 April 2022 (Exhibit A2);
·Secretary’s Statement of Issues, Facts and Contentions dated 9 August 2022 (Exhibit R1); and
·The oral evidence of the Applicant.
CONSIDERATION
In its considerations which follow, the Tribunal has regard to Mr Suddhoo’s submissions contained in Exhibit A2. However, the Tribunal notes and sets aside Mr Suddhoo’s rather threatening submission, dated 10 October 2022, which states (Exhibit A1):
I wish to point out that the Respondent submission has failed to counter to why the has stabilize and every component of the Respondent submission has relevance to the matter. This has now become a matter of Fraud and Corruption and will be reported to the Federal ICAC as soon as the commission is established. The matter will also be taken up with the Honourable Minister of Social Security. The AAT needs to consider that due to fraudulent Claim of the Respondent, it depriving myself of my human rights to access social security. Please note that I do not wish for a backpay if the AAT grants the matter in my favour but access to my DSP on the date of the decision.
The Respondent accepts that Mr Suddhoo had impairments and that s 94(1)(a) of the Act was satisfied during the Qualification Period (Exhibit R1, para 5.21). Having regard to the extensive material before it, the Tribunal agrees.
Do the Applicant’s impairments attract an impairment rating of 20 points or more?
The Respondent contends that as of the Qualification Period, none of Mr Suddhoo’s conditions could be considered FDTS. As such, the Respondent’s contends that Mr Suddhoo’s impairments did not attract 20 points or more under the Impairment Tables during the Qualification Period.
Right Shoulder Tendinopathy, Intra-Substance Tear and Impingement
The Respondent contends that it is open to find that this condition was diagnosed during the Qualification Period, however, also contends that the available evidence does not indicate that this condition was fully treated and stabilised during the Qualification Period because further treatment options remained available and further medical review was required (Exhibit R1, para 5.23).
The Tribunal has regard to the following medical evidence in considering this condition:
(a)On 26 February 2015, Dr Kanchana Sirisuriya (general practitioner) referred Mr Suddhoo to a rehabilitation centre after he sustained a right shoulder injury due a work accident. Dr Sirisuriya opined that the Magnetic Resonance Imaging (MRI) had revealed “moderate tendinopathy of the diatal SS tendon with minor probable interstitial tearing”. Dr Sirisuriya also reported that Mr Suddhoo had commenced his medication and physiotherapy and that he was not keen on getting a cortisone injection at that time (T17/137).
(b)In a letter to Dr Sirisuriya dated 27 May 2015, Professor Allan Wang (clinical professor of orthopaedic surgery) reported that the MRI scan dated 24 February 2015 showed “bursal surface fraying and probable minor interstitial tearing of the distal supraspinatus”. Upon examination, Professor Wang opined that Mr Suddhoo had “tenderness over the anterior supraspinatus” and that there was a clear painful arc. Professor Wang offered Mr Suddhoo a “subacromial cortisone injection under image guidance” but stated that Mr Suddhoo was concerned about steroid injections. Professor Wang referred Mr Suddhoo to a hospital physiotherapist for cuff strengthening, gentle stretches and postural exercises. Professor Wang also indicated that he would review Mr Suddhoo in two months and that he would need either a cortisone injection or possibly an arthroscopic subacromial decompression if he is not much better (T19/139).
(c)On 6 August 2015, Dr Dirk Sweeney (radiologist) recorded that there was a “[k]nown supraspinatus tendinosis/interstitial tear. No scapular or periscapular pathology identified” following an MRI of the right scapular region (T24/145).
(d)On 8 September 2015, Dr Timothy Unsworth-Smith (orthopaedic registrar) reviewed Mr Suddhoo and reported that Mr Suddhoo told him that his ongoing shoulder pain was actually more through his upper trapezius muscles and paraspinal muscles. Dr Unsworth-Smith opined that Mr Suddhoo had some “very mild impingement symptoms”. Dr Unsworth-Smith noted that Mr Suddhoo was still not keen on a cortisone injection and recommended that “we just run with a course of physiotherapy and that we will review him in approximately three or four months…” (T25/146).
(e)On 15 December 2015, Dr Andrew Duthie (orthopaedic registrar) reported that, on examination, Mr Suddhoo had a good range of movement, but pain still impinged when he worked above his head. Dr Duthie also recorded that Mr Suddhoo had had some relief with the physiotherapist and “at this time he is happy to have a subacromial cortisone injection to see if this will resolve his pain” (T41/185).
(f)Under cover of a letter dated 4 January 2016, Shine Lawyers (Shine) provided Mr Suddhoo with a report by Dr Tony Robinson (orthopaedic and knee surgeon). Shine told Mr Suddhoo that Dr Robinson was of the view that his condition was not sufficiently stable to determine the degree of his impairment in order to finalise the compensation claim, and therefore, the termination date of the claim should be extended from 16 January 2016 to 1 September 2016. Shine stated that Dr Robinson recommended a steroid injection in the right shoulder, and he opined that: “If this is (steroid injection) not successful then he needs to undergo an arthroscopic decompression of his right shoulder and possible rotator cuff repair” (T45/190).
(g)On 21 January 2016, Wayne Tsang (student clinician) and V. Cascioli (clinic director, Murdoch University Chiropractic Clinic) opined that a review performed in December 2015 revealed positive changes to Mr Suddhoo’s shoulder range of motion and that Mr Suddhoo stated that he is able to perform tasks requiring overhead movement with limited hesitation (T52/217). On the basis of Mr Suddhoo’s situation and the severity of his injury, they recommended that Mr Suddhoo receive at least six months of ongoing care at Murdoch University Chiropractic Clinic (T52/218).
(h)On 9 February 2016, Dr Aman Sidhu (orthopaedic registrar) confirmed a diagnosis of supraspinatus tendinopathy and a down shaping acromion. Dr Sidhu reported that Mr Suddhoo’s range of movement was improved by attending physiotherapy. However, Mr Suddhoo told him that the ultrasound guided injection actually made things much worse, resulting in a painful arc and a reduced range of movement. Dr Sidhu viewed the MRI scans with Mr Li-On Lam (orthopaedic consultant), who agreed with the diagnosis that there was “some increased signal through the attachment of the supraspinatus but no obvious tearing”. They noted the possibility of frozen shoulder. Dr Sidhu and Mr Lam determined “to watch and wait to see if things do improve over the next six weeks” (T54/220).
(i)In a letter to Shine dated 15 March 2016, Dr Karen Moller (writing on behalf of the Director of Clinical Services, Fremantle Hospital and Health Service) commented on an X-ray of Mr Suddhoo’s right shoulder, stating that there was no evidence of a fracture (T62/243). Dr Moller confirmed that Mr Suddhoo had been seen in the physiotherapy department from 7 October 2015 to 25 January 2016 and was due to be reviewed in the Orthopaedic Outpatient Clinic on 29 March 2016 (T62/244).
(j)On 5 April 2016, Dr Tony Robinson (orthopaedic and knee surgeon) provided a further medico/legal report regarding Mr Suddhoo’s right shoulder injury. Dr Robinson reported that Mr Suddhoo had a further MRI scheduled by his orthopaedic surgeon, had not had any operations on his right shoulder and “has been told he will need to have an operation on his right shoulder in the future” (T65/253-4). Dr Robinson affirmed that Mr Suddhoo had been treated with various medications and a steroid injection into the right subacromial space bursa which was not helpful. Dr Robinson also reported that Mr Suddhoo had ceased physiotherapy, continued to see a chiropractor and had been attending the gym once a week, but had only been once since his steroid injection in January 2016 (T65/253-254). Upon examination, Dr Robinson found that there was generalised tenderness throughout the whole of the right shoulder, among other findings. Dr Robinson diagnosed Mr Suddhoo with “Refractory impingement syndrome of the right shoulder”’ (T65/255). With respect to his recommendations, Dr Robinson indicated that he would await the result of the MRI due to be conducted on 19 April 2016. Notwithstanding this, Dr Robinson recommended that Mr Suddhoo be assessed by his surgery regarding “possible arthroscopic decompression of the right shoulder” in the future and vocational retraining so that he could re-enter the workforce in a less strenuous job (T65/256). Dr Robinson also indicated that Mr Suddhoo’s overall prognosis was guarded and that although he believed that Mr Suddhoo may need to undergo an operation on his right shoulder in the future, his injuries had stabilised sufficiently for finalisation of his worker’s compensation and injury management claim (T65/256).
(k)On 9 May 2016, Dr Mahbub Talukder (general practitioner) provided a medical certificate stating that Mr Suddhoo had right shoulder pain and a “tear” (T69/270).
(l)On 25 May 2016, Dr Paul Roche (radiologist) examined an MRI of Mr Suddhoo’s right shoulder and commented that there was “[p]rogressive supraspinatus tendinosis and interstitial tearing predominantly bursa” and “[a]cromial morphology as noted with mild lateral downsloping” (T73/286).
(m)On 27 September 2016, a Job Capacity Assessor (JCA) reported that Mr Suddhoo had reported that “he will require surgery, and he had received a letter informing him that he will be seen at Fremantle hospital for surgery, sometime within the next 365 days” (T78/305). The JCA assessed the condition as permanent and fully diagnosed, however found that it “cannot be assessed as fully treated or fully stabilzisd [sic] as Mr Suddhoo is yet to have surgery and rehabilitation; both of which are expected to take place in less than 24 months” (T78/305-306).

Having regard to the extensive medical opinion in the paragraphs above, the Tribunal agrees with the Respondent’s observation that the precise diagnosis of Mr Suddhoo’s right shoulder condition is “somewhat unclear” (Exhibit R1, para 5.25). Notwithstanding this lack of clarity, the Tribunal accepts the finding of the JCA (see para 29(m) above) and consistent with the Respondent, accepts that this condition was fully diagnosed during the Qualification Period.
The Respondent does not accept that this condition was fully treated and stabilised during the Qualification Period because of the availability of further treatment options and the requirement for further medical review. The Respondent notes that this contention is supported by the decision of the AAT1 (Exhibit R1, para 5.28).
The Tribunal considers that Mr Suddhoo’s right shoulder condition, as at the Qualification Period, must be viewed as still being evaluated and treated, for the reasons detailed in the following sub-paragraphs:
(a)On 9 February 2016, Dr Sidhu raised the possibility of frozen shoulder, however there is no information related to further orthopaedic opinion or management. On 21 January 2016, the clinical director of Murdoch University Chiropractic Clinic recommended at least six months’ further treatment, with that recommended duration extending well into the Qualification Period.
(b)Dr Robinson’s evidence indicates that Mr Suddhoo had not had any operations on his right shoulder and that he had been told by his orthopaedic surgeon that he will need to undergo “an operation on his right shoulder in the future” (T65/253-254). This is corroborated by the JCA report, which informs that Mr Suddhoo received a letter in 2016 informing him that he would be seen at Fremantle Hospital for surgery within 365 days (T78/305). Dr Robinson also reported that Mr Suddhoo had ceased physiotherapy at the time of writing, 5 April 2016, but did not explain whether this was an appropriate or medically endorsed change in Mr Suddhoo’s treatment regime. Additionally, Dr Robinson stated that he had to wait until he had received upcoming MRI results before he could make any recommendations (T65/256). The results of the MRI became available on 25 May 2016, some four weeks prior to Mr Suddhoo submitting his DSP claim, yet there is no available evidence from Dr Robinson, or any other orthopaedic specialist, in relation to these results. Notwithstanding this, Dr Robinson recommended arthroscopic decompression of the right shoulder in the future and the material before the Tribunal does not indicate whether this treatment had been undertaken before the end of the Qualification Period. Finally, the Respondent notes that “Dr Robinson did not provide a definitive prognosis” (Exhibit R1, para 5.26).
(c)Mr Suddhoo submits that his shoulder condition should be considered fully treated and stabilised on the basis of Dr Robinson’s statement that the condition was sufficiently stabilised for the finalisation of his worker’s compensation and injury management claim. Mr Suddhoo told the Tribunal that if his shoulder condition had stabilised enough for workers compensation purposes, it should also be enough for DSP (Transcript/10). However, the Respondent submits, correctly in the Tribunal’s view, that the criteria for DSP eligibility is distinct and that Dr Robinson’s statement in relation to a separate process does not in-and-of itself sufficiently negate the abovementioned contentions.
(d)On 27 September 2016, the JCA was unable to assess this condition as FDTS, and was therefore unable to assign an impairment rating (T78/305-6; para 29(m) above refers).
Section 6 of the rules for applying the Impairment Tables (the Rules) allows that a condition can be considered fully stabilised when the person has not undertaken reasonable treatment and “there is a medical or other compelling reason for the person not to undertake reasonable treatment” (T3/48). Mr Suddhoo submits that the JCA did not have regard to his financial hardship and living conditions when determining that his right shoulder condition was not FDTS as at the Qualification Period. Mr Suddhoo states (Exhibit A2/9):
The assessor was aware that I received never any of my loss of wages payment from my employer who denied paying for my past/future treatments, Surgery, Medication, G.P appointments, rehabilitation and I was suffering from financial hardship. She had the tools for checking this information because I am comply to report any earnings gained through employment.
She knew my living conditions and had no carer as my parents are overseas. I told her that I will have Surgery which has been booked in the future with the condition that my employer accepts to pay for my loss of wages, past/current and future treatment before the surgery so that I could manage my treatment. I also told her that I will have to plan and confirm with my parents because they are employed or busy with their schedules.
Given that the JCA report was submitted on 27 September 2016, a week after the end of the Qualification Period, and in the absence of any further relevant contemporaneous evidence, the Tribunal is not satisfied that Mr Suddhoo’s circumstances were such as to enliven the provisions of s 6(b)(ii) of the Rules.
As the evidence is that further treatment options remained available and further medical review was required during the Qualification Period, the Tribunal finds that this condition was not fully treated and stabilised at that time. Consequently, the condition cannot be rated under the Impairment Tables and does not attract any impairment points. Although this review is de novo, the Tribunal notes that this finding is consistent with the conclusion of the AAT1 (T2/10).
Chronic Obstructive Pulmonary Disease/Asthma
The Respondent contends that there is no available information relating to this condition that is applicable to Mr Suddhoo’s current DSP claim (Exhibit R1, para 5.29).
Mr Suddhoo told the AAT1 that he was diagnosed with chronic obstructive airways disease in 2019 and that he earlier attended hospital for the condition. However, the AAT1 noted that there was no indication of this condition in the available evidence and determined that the condition could not be assessed as FDTS (T2/10).
This Tribunal is also unable to identify relevant medical evidence related to this condition and consequently is unable to find that the condition was FDTS as at the Qualification Period. Therefore, impairment points cannot be assigned to this condition. The Tribunal further notes that Mr Suddhoo did not address this condition in his written submissions (Exhibit A2), and on questioning specifically told the Tribunal that he had no evidence of this condition (Transcript/11).
Attention Deficit Hyperactivity Disorder (ADHD), Generalised Anxiety Disorder, Panic Attacks and Intellectual Impairment
At the outset the Tribunal notes the Respondent’s approach to submissions relevant to these conditions and considers it appropriate to adopt the same approach in its considerations which follow (Exhibit R1, para 5.30):
The Secretary acknowledges that the abovementioned conditions are distinct. However, for the sake of clarity, the Secretary will address these conditions simultaneously. The Secretary notes that this approach is consistent with much of the available evidence and that the Secretary’s contentions will address each condition separately where necessary.
The Respondent contends that the available evidence does not indicate that any of these conditions were fully treated and stabilised during the Qualification Period (Exhibit R1, 5.31).
The Tribunal notes that the AAT1 assigned the condition five points under Impairment Table 7 – Brain Function (T2/11-12). However, this review is de novo and the Tribunal has regard to the following medical evidence in considering these conditions:
(a)In a medical certificate dated 30 August 2012, Dr Dan Xu (general practitioner) stated that Mr Suddhoo had a diagnosis of attention deficit disorder, noting that this was a temporary condition, and that Mr Suddhoo would be unfit for work until 14 February 2013. Under the heading “Treatment”, Dr Xu wrote “seeing psychiatrist” (T5/120).
(b)On 17 October 2012, an Employment Services Assessor (ESA) spoke to Mr Suddhoo and recorded that he was scheduled to see psychiatrist Dr Joanne Combrick on 12 November 2012 to obtain a prescription for medication. According, to the record of this conversation in the ESA report, Mr Suddhoo ceased taking medication approximately six years before because he was able to sustain employment without it. However, his symptoms (difficulty concentrating) re-appeared after he re-commenced study in August 2012 (T6/122).
(c)On 19 September 2013, Dr. Bogdan Ceranic (general practitioner) indicated that Mr Suddhoo’s anxiety, low mood and suicidal ideation were symptoms of a diagnosis of “adjustment disorder” (T7/125).
(d)Mr Suddhoo told the Tribunal that while on holiday in Mauritius in 2014, he saw Dr T Ramkoosalsing, a psychiatrist. Mr Suddhoo told the Tribunal that he was not sick when he saw Dr Ramkoosaling, rather that he “wanted to get my diagnosis…I was having trouble studying at the university…to help me with my equity at the university, equity on the equity plan” (Transcript/18). On 16 July 2014, Dr Ramkoosalsing opined that Mr Suddhoo’s symptoms “suggest Hyperactivity Disorder” and that he strongly fitted the DSM IV criteria for a diagnosis of ADHD (Combined Type). Dr Ramkoosalsing recommended that Mr Suddhoo be started on medication with a specific regimen (T9/127).
(e)On 21 August 2014, Dr Daniel Xu reported that Mr Suddhoo was waiting for review by a psychiatrist in Fremantle Hospital (T10/128).
(f)On 25 August 2014, Dr June EE Chen reported that Mr Suddhoo had been an inpatient at Alma St Centre from 12-15 August 2013 and was treated for depressive symptoms, anxiety and suicidal ideation. Dr Chen advised that Mr Suddhoo would be followed up as an Alma St Centre outpatient (T11/129).
(g)On 26 October 2015, Dr Navneet Jalani reported that Mr Suddhoo presented to the Fiona Stanley Hospital Emergency Department following a panic attack at his workplace. Dr Jalani advised Mr Suddhoo to consult his general practitioner for a counsellor to manage his panic episodes and also advised him that he could consult his university counsellor (T26/147-148).
(h)On 16 December 2015, Mr Suddhoo presented at Abbotsford Psychiatry in order to complete an application form for DSP. Dr Sanjay Khanna (psychiatrist) reported that Mr Suddhoo worked part time and presented with a “complex picture suggestive of Generalised Anxiety Disorder, Panic attacks and probably ADHD”. Dr Khanna also felt that Mr Suddhoo had “an intellectual impairment, which needs to be further clarified.” Dr Khanna increased the dosages of Mr Suddhoo’s medications and suggested that he be referred to a psychologist for further diagnostic clarification, cognitive assessment and cognitive behaviour therapy (T43/187). Dr Khanna assessed Mr Suddhoo again on 12 February 2016 and adjusted his medication dosages (T43/188).
(i)In a medical certificate dated 27 January 2016, Dr Jayaendran Karivandan (general practitioner) recorded that Mr Suddhoo had a diagnosis of attention deficit disorder and that it was a temporary condition with an uncertain prognosis (T53/219).
(j)In a report to Shine dated 22 May 2016, Ms Gillian Yee (registered psychologist) reported that Mr Suddhoo had undertaken only four sessions with her, which was not enough for her to make a comprehensive and adequate report (T70/272). Regarding a diagnosis, Ms Yee reported that in two of their sessions, Mr Suddhoo had been tangential and too confusing for her to elucidate details from him. Ms Yee also reported that she found Mr Suddhoo’s speech somewhat confusing and unclear which made communication somewhat difficult and prolonged. Ms Yee opined that she was unable to provide a diagnosis or prognosis at the time of writing and that psychological treatment had not commenced (T70/274).
(k)On 31 May 2016, three weeks prior to Mr Suddhoo lodging his DSP claim, Dr Karivandan referred him to Ms Gillian Yee for an opinion and management with respect to his anxiety/depressions and for further counselling. Dr Karivandan reported that Mr Suddhoo had attended six counselling visits, was feeling better and would like more counselling sessions. Dr Karivandan also reported that Mr Suddhoo was being treated with multiple medications at the time, and listed ADHD, bronchial asthma, anxiety/depression and mood disorder (31/05/2016) under the heading “Past Medical History” (T74/287).
(l)The AAT1 decision details that Mr Suddhoo told the AAT1 that he was no longer taking any medication for his generalised anxiety disorder and panic attacks because of problems with his stomach (T2/12). He also told the AAT1 that he had seen Ms Yee ten times since Dr Khanna’s recommendation on 16 December 2015 and had received further management from Dr Khanna beyond 12 February 2016 (T2/12-13).
Rule 4(a) of the rules for applying the Impairment Tables provides that a condition must be fully diagnosed by an appropriately qualified medical practitioner in order to be considered permanent (T3/44; para 22 above). This requirement is expressly reiterated in both Table 5 – Mental Health Function (T3/63) and Table 7 – Brain Function (T3/72).
Applying this provision to the extensive medical evidence outlined above with respect to Mr Suddhoo’s conditions, the only evidence provided by appropriately qualified medical practitioners does not definitively diagnose Mr Suddhoo with generalised anxiety disorder, panic attacks, ADHD or an intellectual impairment. On 16 December 2015, Dr Khanna opined that Mr Suddhoo had a “complex picture suggestive of Generalised Anxiety Disorder, Panic attacks and probably ADHD” and advised that he be referred for “further diagnostic clarification and cognitive assessment” (T43/187). In light of Dr Khanna’s uncertainty and his suggested referral, the Tribunal is satisfied that Dr Khanna’s evidence does not constitute a definitive diagnosis. Rather, it implies that Dr Khanna was not entirely certain of Mr Suddhoo’s specific diagnoses and that further psychological intervention was required in order to confirm what condition or conditions Mr Suddhoo suffered from. The evidence of the psychologist Ms Lee on 22 May 2016, only one month before the submission of Mr Suddhoo’s DSP claim, was also unable to provide any definitive diagnoses (T70/274). The Respondent notes, as does the Tribunal, that the evidence of Dr Khanna and Ms Lee is the most recent available specialist evidence applicable to the Qualification Period (Exhibit R1, para 5.33).
On the basis of the 16 July 2014 evidence of Dr Ramkoosalsing (para 41(d) above refers), Mr Suddhoo submits that his ADHD is fully diagnosed and that the scores included in Dr Ramkoosalsing’s letter (Attention Deficit: 9/9, Hyperactivity: 7/9) (T9/127) should result in 20 points under the Impairment Tables (Transcript/12).
The Respondent acknowledges the evidence provided by Dr Ramkoosalsing, however contends that Dr Ramkoosalsing “is not an Australian medical professional, meaning that his credentials cannot be verified and his evidence cannot be reasonably viewed as applicable to Commonwealth social security law”. The Respondent also notes that Dr Ramkoosalsing diagnosed Mr Suddhoo by reference to the DSM IV, which had been superseded by the DSM V in 2013 (Exhibit R1, para 5.34).
Having regard to the totality of the medical evidence detailed in para 41 above, the Respondent’s contentions with respect to Dr Ramkoosalsing’s evidence, the absence of evidence of confirmation of Dr Ramkoosalsing’s opinion after Mr Suddhoo’s return from his holiday in Mauritius, and the fact that Dr Ramkoosalsing’s letter pre-dated the abovementioned evidence provided by Dr Khanna and Ms Lee, the Tribunal gives the evidence of Dr Khanna and Ms Lee more weight than that provided by Dr Ramkoosalsing.
Having carefully considered and weighed the material relevant to the claimed conditions ADHD, generalised anxiety disorder, panic attacks and intellectual impairment, the Tribunal finds that as at the Qualification Period, these conditions were not fully diagnosed and therefore cannot be rated under the Impairment Tables.
Overall Impairment rating
The Tribunal is satisfied that the available evidence does not support a finding that Mr Suddhoo had any FDTS conditions during the Qualification Period.
Before the Tribunal, Mr Suddhoo claimed that Centrelink maladministration over a period of five years had prevented him from obtaining further medical evidence relevant to the Qualification Period (Transcript/10, 17). However, Mr Suddhoo did not offer any evidence in support of this claim.
It follows from all the above that Mr Suddhoo’s conditions cannot be rated for impairment points under the Impairment Tables. Accordingly, Mr Suddhoo’s total impairment rating is zero points and therefore, he does not satisfy s 94(1)(b) of the Act during the Qualification Period.
Continuing Inability to Work
If the Tribunal had been satisfied that Mr Suddhoo had conditions which were FDTS as at the Qualification Period, and the resulting impairment attracted an impairment rating of at least 20 points under the Impairment Tables, then the Tribunal would also need to determine whether Mr Suddhoo had a CITW for the purposes of s 94(1)(c) of the Act.
In the present matter, there is no requirement to consider whether Mr Suddhoo has a CITW. However, for the sake of completeness, the Tribunal notes and accepts the Respondent’s submissions supporting the contention that Mr Suddhoo does not have a CITW (Exhibit R1, para 5.44 – 5.66). Those submissions include evidence that Mr Suddhoo had a work capacity of more than 15 hours per week (T78/309), and that Mr Suddhoo has not participated in a program of support (POS) as required by s 94(2)(aa) of the Act (T107/429). In his oral evidence, Mr Suddhoo incorrectly said that there was no POS requirement at the time he lodged his DSP claim on 21 June 2016 (Transcript/21).
Conclusion
Mr Suddhoo did not satisfy s 94(1)(b) of the Act as at the Qualification Period, therefore, he does not qualify for DSP, and the Tribunal finds that the decision to reject Mr Suddhoo’s claim for DSP was correct.
Decision
The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 2 March 2022, which affirmed a decision of a delegate of the Respondent, made on 8 January 2018, to reject the Applicant’s claim for disability support pension, is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd)

.........................[Sgd]...............................................
Associate
Dated: 13 December 2022

Date of hearing: 8 November 2022

Applicant: Self-represented

Counsel for the Respondent: James Bernasconi

Solicitors for the Respondent: Services Australia

[2022] AATA 4305

13 December 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	8 November 2022
Applicant:	Self-represented
Counsel for the Respondent:	James Bernasconi
Solicitors for the Respondent:	Services Australia