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

Sue and Secretary, Department of Social Services (Social services second review) [2018] AATA 2157 (11 July 2018)
Division:GENERAL DIVISION
File Number: 2017/1749
Re:David Sue
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:11 July 2018
Place:Perth

The decision under review is affirmed.
............[sgd]............................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – disability support pension cancelled – whether applicant had conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant had 20 points at date of cancellation – chronic degeneration of the lumbar spine – diabetes – chronic degeneration of the right hip, right knee and both shoulders – asthma and COPD – depression – obesity – hypertension – other conditions after date of cancellation – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 94(1), s 91(1)(a),(b), and (c), s 94(2), s 94(3B),
s 94(3C)
Social Security (Administration) Act 1999 (Cth) – s 63, s 80, s 80(1), s 118(13), s179
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(6),
s 6(7), s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1), Table 1, Table 4, Table 5
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 7(1), s 7(2)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 103 ALD 467
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
11 July 2018
THE APPLICATION

The Applicant’s Disability Support Pension (DSP) was cancelled on 23 September 2016 pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Administration Act.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.
Relevant date
The decision to cancel the Applicant’s DSP was made under section 80 of the Administration Act. Section 80 of the Administration Act states:
1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
The Tribunal notes that the decision to cancel the Applicant’s DSP was an adverse determination as defined under section 117 of the Administration Act due to the decision being made under section 80 of the Administration Act. The decision falls within the meaning of subsection 118(13) of the Administration Act, which provides that adverse determinations ordinarily take effect on the day on which the determination was made. The Tribunal considers that review of this decision to cancel a social security payment requires consideration of whether the person is qualified for a DSP at the date of the cancellation, not at any other time. Due to the temporal element involved, the Tribunal finds it is irrelevant that a person may satisfy the qualification criteria on a subsequent day (Shi v Migration Agents Registration Authority (2008) 103 ALD 467 at [143]).
Provisions relevant to the Applicant’s continuing eligibility for DSP
Section 63 of the Administration Act allows the Secretary to require a person to undergo a medical assessment or complete a questionnaire if the person is in receipt of payments, including DSP.
The Tribunal notes that the Applicant’s qualification for DSP must be assessed in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This instrument was in force on 30 March 2016 when the Applicant was required to provide medical information in order to review her continuing eligibility for DSP. The Determination includes the impairment tables referred to in subsection 94(1)(b) of the Act (the Impairment Tables).
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
5The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
6The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account when there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, subsection 11(1)(c) of the Determination states that “if an impairment is considered as falling between impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
2A 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:
(a) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(b) 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.
(Emphasis added.)
‘Severe impairment’ is defined in subsection 94(3B) of the Act:
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.)
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
BACKGROUND
The Applicant received DSP from 22 December 2002.
The Applicant’s DSP was cancelled on 23 September 2016 as it was found that the Applicant did not have an impairment rating of 20 points or more (T24 169) (R1).
On 12 November 2016, a review was undertaken by an Authorised Review Officer (ARO) (T27 174-180) (R1). The review affirmed the Department’s original decision.
The Applicant applied for a review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 17 November 2016 (T2 4) (R1).
In a decision dated 2 March 2017, the AAT1 affirmed the ARO’s decision dated 12 November 2016 (T2 3-9) (R1).
The AAT1 determined:
·The Applicant’s condition of chronic degenerative disease of the lumbo-sacral spine was assigned five impairment points under Table 4 – Spinal Function.
·The Applicant’s degenerative conditions of right hip, right knee and both shoulders did not generate any impairment points as they were not considered fully diagnosed, fully treated or fully stabilised.
·The Applicant’s condition of diabetes was accepted as being fully diagnosed, treated and stabilised and did not generate any impairment points under Table 1 – Functions requiring Physical Exertion and Stamina as the condition had no significant functional impact.
·The Applicant’s condition of obesity was considered by the Tribunal. It was considered that there was insufficient evidence to allow the Tribunal to assess the condition and any resultant functional loss.
·The Applicant’s condition of depression was found to have not been fully diagnosed at the time of cancellation of the DSP.
·The Applicant’s condition of Asthma and chronic obstructive pulmonary disease (COPD) was not fully treated and stabilised at the time of cancellation of DSP.
·The Applicant’s condition of Parkinsonism and the mention of a stroke were considered as conditions not reported at the time of cancellation.
·The Applicant’s total impairment rating was five points.
On 29 March 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a further review of the decision (T1 1-2) (R1).
EVIDENCE
The matter was heard in Perth on 27 June 2018. The Applicant attended in person with the assistance of his daughter; and Mr Bishop from Mills Oakley appeared on behalf of the Respondent.
The Tribunal would like to thank all parties to this application for assisting the Tribunal.
The Tribunal received the following evidence:
·Exhibit A1 – Letter from Dr Mario Terri dated 26 June 2017.
·Exhibit A2 – Letter from Dr Basudeb Saharay dated 16 July 2017.
·Exhibit R1 – The Tribunal documents (T1-T32, pp 1-216) and the Supplementary Tribunal Documents (ST1-ST11, pp 217-228).
·Exhibit R2 – The Respondent’s Statement of Facts, Issues and Contentions dated 22 August 2017.
·Exhibit R3 – Letter to Applicant in response to the two letters provided by Dr Mario Terri and Dr Basudeb Saharay.
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
Under cross-examination, the Applicant, with the assistance of his daughter, stated:
·he was very unfit for work;
·he had significant breathing, back and shoulder problems;
·AAT1 had not considered his asthma condition;
·he has had asthma since a child and was on Ventolin, steroids, preventatives and nebuliser;
·he agreed with the treatment specified in the Job Capacity Assessment (JCA) Report with respect to his asthma and COPD (T23 165) (R1);
·he has been referred to a specialist for COPD (August 2016) and is still waiting for an appointment;
·he was on a waiting list for specialist treatment for depression;
·the conditions of obesity, hypertension and diabetes were not relevant to this application;
·he had a stroke in November 2016;
·the first investigations for his hip, knee and shoulders occurred in September 2016 with an X-ray;
·he agreed in respect to his back condition – he did not live alone, he could shave, shower and dress himself, he could tie his shoe laces, he drove his car to go shopping, he could walk around the shop, he could put the shopping away at home, he could turn his head when driving, he could bend down, and he could get out of a chair without assistance; and
·he can complete the qualifiers under the Impairment Tables. However, he stated that whilst he can undertake these functions, he can do so with difficulty governed by the pain he is having on a particular day.
Chronic degeneration of the lumbar spine
The Tribunal notes the Secretary’s contentions in respect to the Applicant’s medical condition of chronic degeneration of the lumbar spine:
44The Secretary accepts that the Applicant’s chronic degeneration of the lumbar spine (spinal condition) was fully diagnosed, fully treated and fully stabilised at the relevant date, and that the condition may therefore be assigned an impairment rating under the Impairment Tables.
45The Secretary considers that the Applicant’s spinal condition should be assessed under Table 4 of the Impairment Tables. The introduction to Table 4 states that it ‘is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck’ [T3, p.41].
46The Secretary contends that the Applicant’s impairments arising from his spinal condition have a mild functional impact warranting an impairment rating of 5 points under Table 4 [T3, p.42].
47The descriptors for impairment ratings under Table 4 relevantly state that there is a mild functional impact on activities involving spinal function where:
(1)The person has some difficulty in:
(a)    activities over head height (e.g. activities requiring the person to look upwards); or
(b)    bending to knee level and straightening up again without difficulty; or
(c)    turning their trunk or moving their head (e.g. to look to the sides or upwards).
48The evidence before the Tribunal concerning the functional impact arising from the Applicant’s spinal condition, on or about the relevant date, is as follows:
48.1 A medical report from Dr Basudeb Saharay, general practitioner, dated 3 July 2016, reported that, as a result of the spinal condition, the Applicant changed posture regularly and was ‘unable to sit/ walk for longer than 30m due to pain’. [T21, p.147]
48.2 According to the JCA report dated 22 August 2016, the Applicant ‘reported he is able to bend down to pick up a light object from the floor and can bend down to put his shoes on. He reported sitting is restricted to one hour and he cannot drive long distances.’ [T23, p.166]
48.3. Dr Basudeb Saharay, in a medical certificate dated 12 February 2017, indicated that the Applicant’s symptoms relating to his spinal condition were ‘pain 24/7 in back’ [ST4, p.220], and in a medical certificate dated 12 May 2017, indicated the Applicant had back pain ‘24/7’ and could not do physical work [ST7, p.224].
48.4. Dr Mario Terri, general practitioner, in a letter dated 20 February 2017, reported that the Applicant ‘has chronic low back pain for more than 20 years’ and ‘is not fit for any duties’ [ST5, p.221], and in a medical certificate dated 15 May 2017 stated that the applicant was ‘unable to work due to pain’ in relation to his back [STS, p.222].
49The Applicant advised the AAT1 at the hearing on 2 March 2017 that he has constant lower back pain, he can sit for 10 to 15 minutes and then has to get up and move, he can bend to the ground to pick up a peg, and he can usually get up from chairs by himself [T2, p.6].
50The Secretary contends that the Applicant’s claimed sitting tolerance of 10 to 15 minutes is not corroborated by the other evidence before the Tribunal.
51On 17 July 2017, the Applicant provided further material from his doctors, which contained the following relevant details:
51.1.A letter from Dr Mario Terri dated 26 June 2017 stated that as a result of his spinal condition, the Applicant has been unable to work [ST9, p.226].
51.2.A letter from Dr Basudeb Saharay dated 16 July 2017 stated that he considered the Applicant ‘all in all’ to be totally and permanently unfit for work in which he is trained and qualified [ST10, p.227].
52However, the Secretary submits that the letters dated 26 June 2017 and 16 July 2017 should be afforded less weight because they were written many months after the relevant date, they do not specify whether the opinions given relate to the Applicant’s conditions as at the relevant date, and they do not provide any specific details about the functional impact arising from the Applicant’s spinal condition.
53The Secretary contends that there is insufficient corroborating evidence to find that the Applicant had a moderate functional impairment of 10 points under Table 4, which requires the following [T3, p.42]:
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)    the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)    the person is unable to bend forward to pick up a light object placed at knee height; or
(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
54Whilst the Applicant told the AAT1 he has a sitting tolerance of 10 to 15 minutes, this differs from the report from the Applicant’s doctor, Dr Basudeb Saharay, dated 3 July 2016, which indicates a sitting tolerance of 30 minutes. Whilst it may be accepted that the Applicant has a reduced sitting tolerance of at least 30 minutes, there is no evidence indicating that the Applicant is unable to sustain overhead activities, or has difficulty moving his head to look in all directions, or that he needs assistance to get up out of a chair. Furthermore, the Applicant has indicated himself that he is able bend forward to pick up a light object from the ground.
55In conclusion, having regard to all the matters set out above, it is contended that the medical evidence supports a finding that there was a mild functional impact on activities involving spinal function arising from the Applicant’s spinal condition at the relevant date, warranting an impairment rating of 5 points under Table 4 (R2 8-10).
The Tribunal accepts the Applicant has had chronic degeneration of the lumbar spine condition over a significant period of time. The Tribunal particularly notes: the medical reports available; the assessment of the Dr Saharay (T21 147) (R1); and the JCA report (T23 162) (R1).

The Tribunal notes that Dr Basudeb Saharay had stated in his report that the Applicant has undergone review by an orthopaedic surgeon and has received a pain injection into the lumbar spine (T23 163) (R1). The Applicant is on non-steroidal anti-inflammatory medication (ST9 226) (R1).
The Tribunal accepts on the basis of the assessment by Dr Basudeb Saharay and the JCA that this condition is fully diagnosed, treated and stabilised (FDTS).
Diabetes
The Secretary contends:
56The Secretary accepts that the Applicant’s diabetes was fully diagnosed, fully treated and fully stabilised at the relevant date, but contends that this condition has no functional impact on the Applicant.
57In a report dated 3 July 2016, Dr Basudeb Saharay indicated that the Applicant’s diabetes was stable [T21, p.147]. In a letter dated 16 July 2017, Dr Saharay indicated that the Applicant’s diabetes was controlled well [ST10, p.227].
58The Secretary considers that the Applicant’s diabetes should be assessed under Table 1 of the Impairment Tables. The introduction to Table 1 states that it is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina [T3, p.33].
59There is no evidence that the Applicant has any functional loss in relation to his diabetes. The Secretary contends that an impairment rating of zero points under Table 1 is appropriate in relation to the Applicant’s diabetes.
60The Secretary contends that no impairment rating should be allocated for the Applicant’s other conditions … (R2 10).
The Tribunal accepts the assessment by Dr Basudeb Saharay that the condition of diabetes has been diagnosed and is stable. The Applicant has been treated with medication and therefore, the condition is under control.
The Tribunal accepts this medical condition to be FDTS.
Chronic degeneration of the right hip, right knee and both shoulders condition.
The Secretary contends:
61The Secretary contends that the Applicant’s degenerative conditions of the right hip, right knee and both shoulders were not fully diagnosed, treated or stabilised at the relevant date.
62In the report dated 3 July 2016, Dr Saharay noted the diagnosis of chronic degeneration of the right knee, right hip and both shoulders, with symptoms of chronic shoulder pain and right knee and hip pain [T21, p.145-146].
63A report dated 27 September 2016 from radiologist Dr N. Masoudi indicates that the Applicant was referred for x-rays of his right shoulder and right hip/pelvis on 25 September 2016, which were carried out on 27 September 2016 [T26, p.173]. However, this was after the relevant date when the Applicant’s DSP was cancelled. There is no evidence of imaging or further diagnostic investigations on or before the relevant date. On that basis, the Secretary considers that the conditions had not been formally diagnosed.
64The Applicant advised the AAT1 at the hearing on 2 March 2017 that he has pain in his knee with walking, pain in his right hip, pain all the time in his shoulders, and that he cannot lift arms above shoulder height. The Applicant said he had x-rays done but had not done any physiotherapy for any of his peripheral joints. [T2, p.2] There is no evidence that any specific treatment has occurred. On that basis, the Secretary considers that the conditions cannot be considered fully treated and stabilised as at the relevant date.
65The Secretary contends that, as the degenerative conditions of the right hip, right knee and both shoulders were not fully diagnosed, treated or stabilised at the relevant date, they cannot be rated under the Impairment Tables (R2 10-11).
The Tribunal notes the evidence given by the Applicant to AAT1:
24Dr Saharay, on 3 July 2016, noted the diagnosis of chronic degenerative disease of the right hip, right knee and both shoulders. The symptoms were chronic shoulder pain, and right knee and hip pain. There was no evidence of recent therapy for these joints, except the Physeptone medication. The tribunal noted that X-rays were ordered by Dr Saharay and done on 27 September 2016 (this was after the cancellation) of the right shoulder, and pelvis and right hip. The X-ray of the right hip showed no significant osteoarthritis. The X-ray of the right shoulder showed no glenohumeral arthritis but some acromioclavicular arthropathy with signs suggestive of rotator cuff calcific tendinosis.
25Based on the available evidence, the tribunal considers that the multiple joint conditions were not fully diagnosed (X-rays after the cancellation), treated (no physiotherapy) and stabilised at the time of cancellation. No impairment rating can be assigned (T2 7) (R1).
The Tribunal notes the JCA report states:
Condition cannot be considered fully diagnosed, treated or stabilised; there is no evidence of imaging investigations to confirm cause of hip and knee symptoms and no specific treatment has occurred (T23 162-163) (R1).
The Tribunal accepts these conditions are not FDTS.
Asthma and COPD
The Secretary contends:
66The Secretary contends that the Applicant’s asthma and COPD condition was not fully diagnosed, treated or stabilised at the relevant date.
67A report dated 9 January 1996 from Dr P.F.G. Pratten (general medical practitioner) of Diagnostic Radiology (YV.A.) indicates that a chest examination was carried-out and states [TS, p.57]:
The patient has made a suboptimal inspiratory effort. Allowing for this the cardiothoracic ratio is within normal limits. There is a very slight increase inperibronchial markings in the right base posteriorly seen in the lateral projection and the appearance suggests some minimal patchy peribronchial inflammatory change here. The remaining lungfields appear clear and the pulmonary vascular pattern appears normal. The skeletal outline is unremarkable.
68A report dated 15 February 1996 by Dr N. O’Brien from the Australian Government Health Service [T7, p.64] stated ‘Asthma not seen as fully treated without adequate ongoing assessment treatment’ and indicated the Applicant’s asthma was likely to improve [T7, p.70].
69A general assessment report dated 21 February 1996 by the same Dr N. O’Brien [TS, p.78] reported that the Applicant attended Fremantle Hospital three times in the previous year on self referral (sic) due to exacerbation of his asthma, and stated:
He has gone to various doctors about his asthma but does not seem aware of the asthma campaign and what he needs to do to gain proper control of the asthma ... [T]he condition is considered temporary at present as he can hopefully gain greater control over it.
70A treating doctor report dated 29 December 2006 by Dr Mario Terri, general practitioner, indicated that the Applicant had (sic) had asthma since he was a child and that his symptoms were cough, shortness of breath and wheezing. The report indicated that the impact on ability to function was shortness of breath with exertion, and that the impact was expected to persist for more than 24 months and remain unchanged [T15, p.126].
71In his report dated 3 July 2016, Dr Saharay noted a diagnosis of ‘asthma/ COPD’, which he indicated was being treated with Ventolin and Seretide since 2010, and caused the Applicant to experience shortness of breath [T23, p.148-150].
72According to the JCA report dated 22 August 2016, the Applicant ‘reported experiencing shortness of breath on exertion such as running, walking up a flight of stairs but not with walking at a gentle pace’, and that he was able to do the grocery shopping and vacuum floors. [T23, p.164-165]
73A medical certificate dated 2 February 2017 from Dr C.R. Russell-Smith, general practitioner, noted in relation to the Applicant’s COPD that he was awaiting a respiratory physician appointment [T30, p.186]. However, the Secretary notes that this medical certificate was from after the relevant date.
74The Applicant advised the AAT1 at the hearing on 2 March 2017 that he is very short of breath even when sitting and cannot do anything because of shortness of breath [T2, p.8].
75In the letter dated 16 July 2017, Dr Saharay stated that the Applicant suffers from chronic asthma/COPD, is short of breath on minimal exertion and ‘gets frequent acute infective exacerbation of COPD’ [ST10, p.227]. However, the Secretary notes that this letter was prepared well after the relevant date.
76In Johnson and Secretary, Department of Social Services [2017] AATA 1095 at [22] – [26], Senior Member Nolan considered the applicant’s COPD, and the medical evidence which stated that the applicant had 61 percent of normal lung function with no increase post Ventolin. Senior Member Nolan found that there was ‘insufficient medical evidence, or spirometer results, before the Tribunal to establish a diagnosis, prognosis or the function limitations in relation to the COPD’. In that case, it was not in dispute that the COPD was fully diagnosed. As such, the Tribunal determined the condition was fully diagnosed but not treated and stabilised, and no impairment rating was assigned.
77In the present case, the Secretary submits that the Applicant’s asthma and COPD condition was not fully diagnosed, and cannot be considered optimally treated or stabilised, as there is no evidence of spirometry testing or any diagnostic investigation by a respiratory specialist to confirm the diagnosis, or of any treatment recommendations from a specialist.
78The Secretary contends that, as the asthma and COPD condition was not fully diagnosed, treated or stabilised at the relevant date, it cannot be rated under the Impairment Tables (R2 11-12).
The Tribunal notes the JCA report that states that the:
Condition is assessed as permanent but not fully diagnosed; according to Lung Foundation Australia, because COPD is defined by demonstration of airflow limitation which is not fully reversible, spirometry is essential for its diagnosis. Evidence of spirometry testing has not been provided for consideration, and as such condition cannot be considered fully diagnosed (T23 165) (R1).
The Tribunal notes that Dr Mario Terri states that the Applicant suffers from “moderately severe asthma” which is controlled by being prescribed occasionally with “oral steroids” (ST9 226) (R1).
AAT1 found in respect to this condition:
31The tribunal accepts that Mr Sue has a diagnosis of COPD and asthma. However Mr (sic) described significant symptoms of shortness of breath on sitting and no review with a specialist. Given the level of symptoms, the tribunal considers that reasonable treatment would be review with a respiratory specialist for investigations and to maximise therapy. The tribunal finds that the condition was not fully treated and stabilised at the time of cancellation (T2 8) (R1).
The Tribunal finds that there is evidence before it to indicate whether this condition has been fully treated and stabilised at the time cancellation. The Tribunal also notes the evidence of the JCA report that further testing of the condition is required in order for a proper diagnosis to occur.
The Tribunal therefore finds, at the time of cancellation, this condition was not FDTS.
Depression
The Secretary contends:
79The Secretary contends that the Applicant’s depression was not fully diagnosed, treated or stabilised at the relevant date.
80The report dated 3 July 2016 by Dr Saharay noted a diagnosis of ‘major depression’ [T21, p.148]. There is no evidence confirming this diagnosis from a psychiatrist or clinical psychologist. On that basis, the Secretary contends that the condition cannot be considered as fully diagnosed for the purposes of Table 5 of the Impairment Tables.
81A Work Capacity – Customer Information form dated 3 July 2016, signed by the Applicant, indicates that his treatment included Zoloft [T10, p.154]. However, this is not corroborated by the medical evidence.
82A medical certificate dated 2 February 2017 from Dr C.R. Russell-Smith, general practitioner, noted the Applicant’s diagnosis of depression and indicated that he was increasingly depressed and was awaiting a psychology appointment [T30, p.186]. However, the Secretary notes that this medical certificate was from after the relevant date.
83There is no evidence to indicate that the Applicant had engaged with a psychologist or other treatment program at the relevant date.
84The Secretary contends that, as the Applicant’s depression was not fully diagnosed, treated or stabilised at the relevant date, it cannot be rated under the Impairment Tables (R2 12).
The assessment of the Secretary is that this condition was not FDTS. The JCA report indicates that the Applicant was unaware that he was being treated for this condition. There are no specialists’ reports before the Tribunal to confirm assessment or treatment for major depression. Therefore, the Tribunal finds that this condition was not FDTS.
Obesity
The Secretary contends:
85The Secretary contends that the Applicant’s obesity was not fully diagnosed, treated or stabilised at the relevant date.
86The report dated 3 July 2016 by [Dr] Saharay noted the Applicant’s obesity as a condition that was generally well managed and caused minimal or limited impact on ability to function [T21, p.151].
87According to the JCA report dated 22 August 2016, the Applicant “advised he has to watch what he eats but has not received any specific treatment or intervention for this condition” [T23, p.163].
88The Applicant advised the AAT1 at the hearing on 2 March 2017 that he weighed about 108 kilograms and not seen a dietician for management of his weight problem [T2, p. 7].
89The Secretary considers that the condition has not been fully diagnosed, treated or stabilised, as there is no insufficient evidence of medical diagnostic information or of any treatment attempted by the Applicant.
90The Secretary contends that, as the Applicant’s obesity was not fully diagnosed, treated or stabilised at the relevant date, it cannot be rated under the Impairment Tables (R2 13).
The Tribunal notes that the JCA report that states that the:
Condition cannot be considered fully diagnosed, treated or stabilised; there is no evidence of diagnostic medical information such as Body Mass Index confirming obesity and no evidence that any treatment or intervention has been attempted (T23 163) (R1).
AAT1 found:
27Dr Saharay notes a diagnosis of obesity as a condition that is well managed and which causes minimal functional impact. Mr Sue said he weighs about 108 kilograms. He said he has not seen a dietician for management of his weight problem. The tribunal considers that there is insufficient evidence to allow the tribunal to assess this condition and any resultant functional loss (T2 7) (R1).
The Tribunal concurs with both of these findings and concludes that the depression was not FDTS at the time of cancellation.
Hypertension
The Secretary contends:
91… that the Applicant’s hypertension was not fully diagnosed, treated or stabilised at the relevant date. The Secretary relies on the following evidence:
91.1.The report dated 3 July 2016 by Dr Saharay noted a diagnosis of hypertension, but did not provide any further details regarding this condition [T21, p.144].
91.2.The letter dated 26 June 2017 (after the relevant date) from Dr Mario Terri, general practitioner, states that the Applicant suffers from hypertension and that his medications include Coversyl and Lipitor [ST9, p.226].
91.3.The letter dated 16 July 2017 (after the relevant date) from Dr Saharay states that the Applicant’s hypertension is well controlled [ST10, p.227].
92There is insufficient evidence to support a finding that the Applicant’s hypertension was not fully diagnosed, treated or stabilised at the relevant date. The Secretary contends that it cannot be rated under the Impairment Tables (R2 13).
The Tribunal finds no medical evidence to support this condition being FDTS.
Stroke and Parkinson’s Disease
The Secretary contends:
93As stated above in paragraph 13, a medical certificate dated 2 February 2017 from Dr C.R. Russell-Smith (general practitioner) indicated that the Applicant had a further condition, being Parkinson’s disease [T30, p.186]. In a similar medical certificate dated 2 February 2017, that does not have the certifying medical practitioner’s name and details, the Applicant was said to have a diagnosis of stroke [ST3, p.219].
94The Secretary contends that the Applicant’s Parkinson’s disease and stroke were identified after the relevant date and cannot be considered in the current application for review (R2 13-14).
The Tribunal finds this condition to be outside the relevant date. This was confirmed by the JCA report which stated that:
Mr Sue attended the JCA alone. Assessor observed him to be softly spoken, with a slight head tremor throughout. Tremor was raised with Mr sue (sic) and he advised this mainly affects his right arm but on an intermittent basis and he has not discussed it with his GP (T23 167) (R1).
ISSUES FOR DETERMINATION
The issue falling for determination is whether the Tribunal is satisfied that the decision to cancel the Applicant's DSP on the relevant date, 23 September 2016, was correct.
This requires consideration of whether or not, on 23 September 2016, the Applicant was qualified for DSP under subsection 94(1) of the Act and, in particular, whether he had:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment of 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
CONSIDERATION
The Tribunal will consider relevant issues, legislation and evidence before it in determining if the Applicant was eligible for DSP on 23 September 2016.
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
The Tribunal accepts at the date of the claim of the Applicant, the Applicant suffered from severe chronic degeneration of the lumbar spine, diabetes, chronic degeneration of the right hip, right knee and both shoulders, asthma and COPD, depression, obesity, and hypertension.
The Tribunal finds the conditions of stroke and Parkinson’s disease to be diagnosed after the date of cancellation.
The Tribunal therefore accepts that the Applicant satisfies subsection 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Chronic degenerative lumbo-sacral spine
The Tribunal has noted that the medical reports submitted clearly show that he has pain in his lower back as a result of an accident in early 2000. Whilst the condition was assigned a 20 point impairment rating at the time, the 20 point impairment rating was assigned under superseded Impairment Tables.
The Tribunal notes that the Applicant’s General Practitioner, Dr Basudeb Saharay, stated that the Applicant was “Unable to sit/walk for longer than 30 mins due to pain & changes posture regularly” (T21 147) (R1).
The JCA report outlines that the Applicant’s general practitioner’s recommended treatment included “review by orthopaedics and pain specialist for injection to lumbar spine” (T23 162) (R1). He was also medicated with Physeptone tablets since 2002 by his General Practitioner (T23 162) (R1). The pain was managed with hot showers and repositioning (T23 162) (R1).
The Applicant told the Job Capacity Assessor that he can bend down in order to pick up a light object or to put his shoes on and he can walk his dog for 30 minutes (T23 162 and 166) (R1).
Under cross-examination, the Applicant advised the Tribunal that he could undertake a number of the functions as described at paragraph 27 above.

The evidence before the Tribunal supports the contention that the Applicant suffers from a mild impairment at Table 4. This generates an impairment rating of five points under Table 4.
Diabetes
This condition has been described as “stable” by Dr Basudeb Saharay, the Applicant’s General Practitioner (T21 149) R1). Whilst the Tribunal accepts on the evidence before it that the condition is FDTS, the Tribunal has limited evidence before it as to the functional impact of the Applicant’s diabetes.
The JCA report describes the condition as “stable on medication with limited/minimal impact on ability to function” (T23 166) (R1).
An analysis of the medical reports and the JCA report indicate the treatment of this condition has resulted in it being stabilised and to last for five years before there is an impact on functionality. The Applicant’s General Practitioner, Dr Saharay, states ‘Diabetes stable’ and that ‘the impact of this condition on ability to function is expected to persist for more than 5 years and is expected to deteriorate within this time’ (T23 164) (R1). The JCA report assessed the condition as FDTS and assigned the condition an impairment rating of zero (T23 164) (R1).
On the basis of the medical reports and JCA reports before the Tribunal, the Tribunal finds that the condition of diabetes generates an impairment rating of zero.
Chronic degeneration of the right hip, right knee and both shoulders
The Tribunal notes that the Applicant claims he has not undertaken any recent physiotherapy to assist with this condition.
The report of the Applicant’s General Practitioner, Dr Basudeb Saharay, states that the Applicant suffers pain in the shoulders, hip and knee (T21 146) (R1).
The radiology report of Dr Masoudi shows that X-rays were undertaken on 27 September 2016 on the Applicant’s right shoulder and right hip pelvis (T26 173) (R1).
The 22 August 2016 JCA report stated that there were no images or treatment plan available (T23 162-163) (R1).
AAT1 stated that “The X-ray of the right hip showed no significant osteoarthritis. The X-ray of the right shoulder showed no glenohumeral arthritis but some acromioclavicular arthropathy with signs suggestive of rotator cuff calcific tendinosis” (T2 7) (R1).
AAT1 found that this condition had not been fully diagnosed, given X-rays were conducted after the date of cancellation and as no physiotherapy had been undertaken, the condition was not fully treated (T2 7) (R1).
The Tribunal agrees with the decision of AAT1 that this condition has not been fully diagnosed at the time that the DSP was cancelled and therefore, the Tribunal cannot assign an impairment rating.
Asthma and COPD
AAT1 found that whilst the Applicant has a diagnosis of this condition, there is no evidence of recent specialist treatment and review and therefore, the condition was not fully treated and stabilised at the time of cancellation (T2 8) (R1). Diagnosis of these conditions, appear in reports in 1996 and 2006 (T5 57; T8 78; T14 119 and T15 126) (R1).
AAT1 found that the Applicant has been receiving medication since 2010 in the form of Ventolin and Seretide (T2 8) (R1). It also determined that this condition had been diagnosed, but was not fully treated and stabilised (T2 8) (R1).
The JCA report states that the Applicant “reported experiencing shortness of breath on exertion such as running, walking up flight of stairs but not with walking at a gentle pace” (T23 165) (R1).
At the hearing, the Applicant stated that this condition was being controlled through the use of Ventolin, nebulisers and preventatives.
The Applicant stated that he could walk at a gentle pace.
The Tribunal agrees with the Secretary’s contention on the basis of the evidence before it that this condition has not been fully treated or stabilised. The Secretary held the view that there was no evidence of spirometry testing or specialist assessment.
The Tribunal finds that this condition was not FDTS and therefore, an impairment rating cannot be assigned.
Depression
As the Applicant had no knowledge that he was being treated for depression and there is no evidence of specialist treatment before the Tribunal, the Tribunal finds this condition is not FDTS.
He is waiting for a specialist appointment and is on a waiting list.
Obesity
The JCA report stated that the Applicant’s General Practitioner, Dr Basudeb Saharay, “lists diagnosis of obesity as a condition which is generally well managed and causes minimal/limited ability to function” (T23 163) (R1).
The Applicant indicated to the Job Capacity Assessor that he managed this condition through watching what he eats (T23 163) (R1).
The Tribunal agrees that this condition is not FDTS, as there is no evidence before it as to treatment. The Applicant confirmed to AAT1 that he had not seen a dietician for his weight condition (T2 7) (R1).
Hypertension
Whilst there is mention of hypertension, there is no evidence before the Tribunal to indicate if this condition has been FDTS (ST9 226) (R1).
The Applicant’s General Practitioner, Dr Basudeb Saharay, states that the Applicant’s hypertension is under control (ST10 227) (R1).
Other conditions – stroke and Parkinson’s disease
As these conditions were diagnosed after the date of cancellation, the Tribunal agrees with the Secretary at paragraph 53 above. These conditions should not receive consideration within the existing application. This does not preclude these conditions from falling within the category of a future application for DSP, should the Applicant decide to pursue such a claim.
Whether the Applicant has a continuing inability to work
Based on the reasons above, the Tribunal finds that the conditions that the Applicant claimed generate an impairment rating of five points under the Impairment Tables (Table 4 in particular). Therefore, the Applicant fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether the Applicant had a continuing inability to work in satisfaction of subsection 94(1)(c) of the Act at the date of his claim.
CONCLUSION
The Applicant does not qualify for DSP as his conditions can only be assigned five impairment points as at the date that his DSP was cancelled.
DECISION
The decision of the AAT1 dated 24 November 2016, is affirmed.

I certify that the preceding 95 (ninety -five) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

..................[sgd]......................................................
Administrative Assistant Legal
Dated: 11 July 2018

Date of hearing: 27 June 2018

Applicant: In person

Representative for the Respondent: Christopher Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

[2018] AATA 2157

11 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	27 June 2018
Applicant:	In person
Representative for the Respondent:	Christopher Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers