Tawodros and Secretary, Department of Social Services (Social services second review) - [2021] AATA 1484

Tawodros and Secretary, Department of Social Services (Social services second review) [2021] AATA 1484 (26 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2227
Re:Hanna Tawodros
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member C.J. Furnell
Date:26 May 2021
Place:Melbourne

The Tribunal affirms the decision under review.
................[SGD]...............................
Senior Member C.J. Furnell
Catchwords
SOCIAL SECURITY – application for disability support pension refused – whether conditions were fully diagnosed, treated and stabilised in the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – whether Applicant had a continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Services v Sziva [2019] FCA 23
Summers and Secretary, Department of Social Services [2014] AATA 165
REASONS FOR DECISION
Senior Member C.J. Furnell
26 May 2021

On 21 February 2018 the Applicant applied for a disability support pension (DSP).[1]
[1] T25.
The rejection of that application on 25 July 2018[2] was affirmed by a Centrelink authorised review officer on 20 September 2019.[3] That decision was, in turn, affirmed on 16 March 2020 by the Tribunal’s Social Services and Child Support Division (SSCSD).[4]
[2] T31.
[3] T50.
[4] T2.
The Applicant has now applied to the General Division of the Tribunal for review of the decision as affirmed by the SSCSD.[5]
[5] Social Security (Administration) Act 1999, s 179(2).
In so reviewing that decision, the question in issue is whether the Applicant qualifies for the DSP for which he applied.
For the reasons which follow, I am not satisfied that he does.
WHEN DOES A PERSON QUALIFY FOR A DSP?
An application for a DSP is required to be either granted or rejected.[6]
[6] Ibid, s 36.
It is required to be granted if the Applicant qualifies for the pension and the pension is payable.[7] Hence, two conditions are of relevance; qualification and payability.
[7] Ibid, s 37.
The provisions governing a person’s qualification for a DSP are found in Part 2.3 (and, in particular, s 94) of the Social Security Act 1991 (Cth) (the Act).
Section 94 sets out criteria to be satisfied in order to so qualify. Those criteria include that:
·the person concerned has a physical, intellectual or psychiatric impairment;
·the person’s impairment is of 20 points or more under the “Impairment Tables”; and
·the person has a continuing inability to work (where, as here, there is no involvement in a scheme known as the ‘supported wage system’).
As for payability, the provisions governing this issue are found in the Social Security (Administration) Act 1999 (Cth) (SSA).
Pursuant to the SSA, a DSP is payable on the “start day” in relation to the pension.[8]
[8] Ibid, s 41.
The start day in relation to a DSP is generally the day on which the claim for the pension is made,[9] unless the person does not then qualify for it, in which case the start day is the first day in the 13-week period after the claim is made on which the person qualifies for the pension.[10] Hence, “…[i]t follows that ….[an applicant’s] entitlement to the DSP must be considered as at the date of his claim and in the 13 weeks thereafter, and that any change in …[the applicant’s] health after that 13 week period is irrelevant save insofar as it may cast light on the position at the relevant time.”[11]
[9] If the Applicant had contacted the Respondent about his DSP claim prior to actually making the claim, then the earlier date might have been the date on which the 13-week period commenced. There is nothing before the Tribunal, however, suggesting that he did so – see SSA, s 13.
[10] Social Security (Administration) Act 1999, s 42 and Schedule 2, cls 3(1) and 4.
[11] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
Accordingly, for the Applicant to be entitled to a DSP, he must have satisfied the pension qualification criteria on the date of his claim for a DSP (21 February 2018) or on a day in the period commencing on that date and ending on the day being 13 weeks thereafter (being 23 May 2018).
Hence, the question in issue in this proceeding is whether the Applicant qualified for the DSP in the period from 21 February 2018 to 23 May 2018 (the QP).
DID THE APPLICANT HAVE AN IMPAIRMENT IN THE QP?
The Respondent concedes that the Applicant had a physical, intellectual or psychiatric impairment in the QP.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions of 6 November 2020 (R’s SFIC) at [23].
The nature of the impairments that he then had, or may then have had, appears not to be in dispute. They comprise (or at least result from) a left lower limb condition (being Mueller Weiss syndrome[13] or left navicular bone necrosis of the left foot[14]), hearing loss, Hepatitis B, chronic adjustment disorder with mixed anxiety and depressed mood, right retinal hole with traction and diabetes.[15]
[13] T23, 149 – report of Mr Curry of 13 December 2017; T36, 207 – report of Mr Goldbloom of 7 August 2018.
[14] T24, 153 – report of Dr Hanna of 23 December 2017; T26,186 – certificate of Dr Hanna of 23 February 2018.
[15] I note that in his application for the DSP, the Applicant listed only the first three of those conditions: T25, 181.
DID THE IMPAIRMENT ATTRACT A RATING OF 20 POINTS OR MORE IN THE QP?
I am not satisfied that the Applicant’s impairment is of 20 points or more under the “Impairment Tables.”
Those tables are currently found in an instrument made under s 26 of the Act entitled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables). That instrument not only sets out certain tables but also determines rules to be complied with in applying the Tables.
Under the Tables, a rating is assigned to an impairment in an endeavour, essentially, to measure the loss of functional capacity affecting a person’s ability to work which results from a person’s medical condition (noting that under s 3 of the Tables the concept of “impairment” is defined so as to capture a loss of functional capacity having that effect).
In order for an impairment to be assigned any points, let alone 20 points, it must be capable of being assigned a rating.
In order to be so capable, first, the condition causing the impairment must be permanent and, second, the impairment must be more likely than not to persist for more than two years.[16]
[16] The Tables, 6(3).
When is a condition permanent?
In order for a condition (being a medical condition)[17] to be permanent it needs to be:[18]
·fully diagnosed by an appropriately qualified medical practitioner;
·fully treated;
·fully stabilised; and
·more likely than not, in the light of available evidence, to persist for more than two years.
[17] The Tables, 3.
[18] The Tables, 6(4).
In order for a condition to be fully diagnosed, the evidence must show that the DSP applicant suffered from the condition in the relevant QP and that the condition has been diagnosed by an appropriately qualified medical practitioner. It is not necessary, however, to show that such a diagnosis was made in the QP.[19]
[19] Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88].
In considering whether a condition is fully diagnosed and fully treated it is necessary to consider:[20]
·whether there is corroborating evidence for the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or is planned in the next two years.
[20] The Tables, 6(5).
Lastly, a condition will only be considered to have been fully stabilised if, in circumstances where the treatment for the condition that had been undertaken by the Applicant:
·was “reasonable treatment,”[21] any further reasonable treatment was unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years; or
·was not “reasonable treatment,” either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result from the undertaking of reasonable treatment or there is a medical or compelling reason for the person not to undertake reasonable treatment.[22]
[21] A concept defined in the Tables, 6(7).
[22] The Tables, 6(6).
I turn now to consider whether those conditions as a result of which the Applicant is said to suffer impairment are permanent and, insofar as they are, what rating ought to be assigned to them under the Tables.
Mueller Weiss Syndrome/Necrosis
At the hearing of this proceeding, the Applicant characterised his lower left limb condition in terms of it being his primary issue.
The Respondent initially conceded that the Applicant’s Mueller Weiss syndrome is permanent.[23] In further submissions, however, the Respondent resiled from that position and submitted that the condition, whilst fully diagnosed, was neither fully treated nor fully stabilised.[24]
[23] R’s SFIC at [35].
[24] Secretary’s Further Submissions of 26 February 2021 at [3].
I accept that the condition was fully diagnosed in the QP. For instance, in December 2017, Mr Curry, orthopaedic surgeon, refers to a diagnosis of Mueller Weiss disease having been made at the Alfred Hospital on 10 September 2015.[25] In February 2018, the Applicant’s general practitioner, Dr Hanna, certified that the Applicant suffered from left navicular bone necrosis.[26]
[25] T23,150.
[26] T26,186.
I am not satisfied, however, that the condition was fully treated or fully stabilised in the QP. Further treatment was, in the QP, planned but had not yet been undertaken.
In December 2017, Mr Curry recommended that the Applicant have an orthotic, engage in a pain management program, have a subtalar joint steroid injection and, ultimately, have further surgery (involving, amongst other things, a subtalar fusion).[27]
[27] T23,150 – according to Mr Curry “surgery would be beneficial to revise the naviculocuneiform joint and remove the dorsal plate to avoid impingement on the ankle. I believe he would also benefit from a subtalar fusion.”
As for engaging in a pain management program, Dr Hanna, in a report in late December 2017, mentioned that the Applicant’s orthopaedic surgeons had recommended global management of the Applicant’s pain in liaison with Dr Nick Christelis at Victoria Pain Specialists.[28] The Applicant stated that he had participated in a pain management program in around January 2018, attending eight sessions.[29] The Applicant did not identify any evidence corroborating this statement in the substantial material before the Tribunal (which included Medicare records).
[28] T24,153.
[29] Applicant’s oral evidence, 29 April 2021.
As for the prospect of surgery, it was referred to not only in the December 2017 recommendation of Mr Curry but was also mentioned in:
(a)Dr Hanna’s report of December 2017. He stated that Messrs Curry and Goldbloom (another orthopaedic surgeon) had recommended, amongst other things, revision of naviculocuniform joint structure and potential surgical intervention that includes removal of the dorsal plate and subtalar fusion.[30]
(b)A report of April 2018 of a consultant psychiatrist, Dr Kolesnikova. In it, the Applicant was said to have seen two orthopaedic surgeons, Mr Curry and Mr Goldbloom, both of whom had suggested that he “might need another operation”.[31]
(c)An undated report from Mr Abdelmalek, physiotherapist, that would appear to have been signed after 2017.[32] In it, reference was made to Mr Curry’s suggestions involving, amongst other things, a pain management program and revision of the surgical procedure. I note Mr Abdelmalek’s opinion in relation to the Applicant that it was “…very difficult at this stage to give a prognosis as he is far from stable.”[33]
(d)A letter of 29 August 2018 from Mr Abdelmalek, who stated that the situation was complicated and required “follow up from the surgical department.”
[30] T24, 153.
[31] T29, 194.
[32] T28.
[33] Ibid 192.
After the QP, in August 2018, Mr Goldbloom, orthopaedic surgeon, stated that no further surgery was planned.[34] There is no material before the Tribunal, however, suggestive of Mr Curry’s December 2017 recommendation concerning further surgery having been reconsidered in the QP. The Applicant was unable to point to any such material when asked to do so on the first full day of the hearing of this proceeding in February 2021. After some delay, he nevertheless then asserted that he had met with his medical advisors in April 2018, at which time the surgical approach was abandoned. However, no indication that such a meeting took place appears in the Applicant’s Medicare records from 22 February 2016 to 22 February 2021. On the second full day of the hearing of this proceeding in April 2021, the Applicant was again asked when the proposal that he undergo further surgery had been reconsidered. In response, the Applicant referred to Mr Goldbloom’s letter of August 2018. When it was pointed out that this was after the QP, the Applicant then said, in effect, that Mr Goldbloom had told him in January 2018 that the further surgery proposal had been abandoned (a circumstance somewhat at odds with Dr Hanna’s understanding in December 2017 of Mr Goldbloom’s position). Medicare records do not reveal any consultation with Mr Goldbloom in January 2018 (albeit that the Applicant suggested that this might be because the cost of some of his consultations with Mr Goldbloom were met from workers’ compensation).
[34] T36, 207.
In these circumstances and noting that the Applicant’s psychiatrist and physiotherapist both referred in 2018 to the prospect of him having further surgery, I do not accept the uncorroborated evidence of the Applicant to the effect that the proposal for further surgery had been abandoned in the QP.
As I am not satisfied that the Applicant’s lower left limb condition was fully treated or fully stabilised in the QP, the condition is not permanent. As such, no rating under the Tables can be assigned to any impairment resulting from that condition.
Nevertheless, out of respect for the parties’ submissions in this regard, I now consider the rating to be so assigned under the Tables should (contrary to the conclusion I have arrived at) the Applicant’s lower left condition be considered permanent.
Before doing so, however, I should mention some general matters concerning application of the Tables.
First, under the Tables an impairment to which a rating can be assigned is not a necessary result of a diagnosed or permanent condition.[35]
[35] The Tables, 6(8), 10(5).
Second, the Tables comprise a number of individual tables. The correct one or ones to be utilised generally depends on the nature of the relevant impairment. As indicated earlier, an impairment is a loss of functional capacity affecting a person’s ability to work that results from a medical condition. The particular loss of function will determine the table to be applied.[36] Multiple tables can, however, be used if a particular condition causes multiple losses of function,[37] but the same impairment cannot be double counted, whether through the use of multiple tables[38] or because multiple conditions cause or contribute to the same impairment.[39]
[36] The Tables, 10(1).
[37] The Tables, 10(3).
[38] The Tables, 10(4).
[39] The Tables, 10(5)-(6).
Third, self-reported symptoms are generally insufficient to justify assignment of a rating under the Tables, absent corroborating evidence.[40]
[40] The Tables, 8(1).
In the case of the Applicant’s left lower limb condition, the table to be utilised is Table 3. It “…is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.”
The Applicant submitted that his impairment ought to be assigned 30 points under Table 3. Such an assignment would only be appropriate if the Applicant was considered to be a person “unable to mobilise independently”. The Applicant was not such a person in the QP.
On the first day of the hearing of this proceeding, in response to a proposition that he was able to walk 100 metres with the aid of crutches, the Applicant stated that he was unable to do anything let alone walk 100 metres. He stated that he never went shopping and that his wife and sons looked after him. In terms of attending medical appointments, he stated that he was taken to them by one of his sons, who would use a wheelchair to transport him to and from the relevant doctor’s rooms. On the second full day of the hearing of this proceeding, the Applicant further stated that he was in such a condition that he was even unable to use a bathroom without the assistance of another.
I had (and have) difficulties in accepting this evidence, some of which the Applicant ultimately resiled from (as will become apparent).
As for his attendances at doctors’ rooms during the QP, I note than none of the reports available in the material before me suggest that the Applicant attended using a wheelchair or was accompanied by one of his sons. In this regard:
(a)In December 2017, Mr Curry stated that the Applicant could walk 100 metres with crutches.[41]
(b)Also in December 2017, Dr Hanna noted that the Applicant had been walking since October 2017 using the “Cam boot” and used crutches for assistance when walking.[42]
(c)In his DSP claim form of February 2018, the Applicant stated that he could walk using crutches.[43]
(d)In April 2018, Dr Kolesnikova stated that when the Applicant attended her rooms he “…walked with the limping gait using walking stick, wearing orthotics special footwear on his left leg.”[44] She also stated that he had been living with a friend in South Yarra for the last six months and saw his sons “infrequently.”
(e)In August 2018, Mr Goldbloom stated that it was likely the Applicant would need the use of a single point stick permanently.[45] While this was after expiry of the QP, the Applicant’s evidence was that his condition had worsened by that time.
(f)In a Job Capacity Assessment report of an assessment conducted in August 2018, it is said that the Applicant was using a walking stick on the day of the interview and had stated that he uses it at all times.[46]
[41] T23, 149.
[42] T24, 152-153.
[43] T25, 182.
[44] T29, 196.
[45] T36, 207.
[46] T38, 211.
When some of the material just mentioned was put to the Applicant in the course of the hearing, he accepted that during the QP he could walk using crutches and then a “moonboot and stick”. He nevertheless disagreed with Mr Curry’s statement as to his ability to walk 100 metres. The Applicant stated it was more like 10 metres.
On the second full day of the hearing of this proceeding, the Applicant was asked where he lived during the QP. He initially stated that he lived at his family’s residential address. It was then pointed out that this was not the address he specified in his DSP claim form (or in his Centrelink records), which was an address in South Yarra.[47] The Applicant’s response to this was somewhat difficult to unentangle. Ultimately, however, his evidence was that he lived for some time in the QP at each of those addresses and that, when he was residing at the South Yarra address, family members would drop by to assist him and a friend who also lived at the South Yarra address provided assistance.
[47] Noting that, as previously mentioned, the Applicant appears to have told Dr Kolesnikova in around April 2018 that he had been living in South Yarra for six months: T29, 193.

As for being assisted by his wife and sons, as mentioned, the Applicant had apparently told Dr Kolesnikova that he saw his sons infrequently.[48] As for his wife, Dr Kolesnikova noted that the Applicant’s condition had affected his relationship with his wife. Indeed, in his DSP claim form of February 2018,[49] the Applicant stated that he was separated from his wife.[50]
[48] Ibid 195.
[49] T25, 158.
[50] I note that in a report of 7 March 2019, Dr Kolesnikova referred to the Applicant as having been separated from his wife for around 12 months at which time he lived with a friend: T44, 224.
As for assistance from a friend who shared his accommodation in South Yarra, the Applicant was asked about his negative response to a question in the DSP claim form asking whether he shared accommodation with anyone other than a family member. The Applicant’s response was, in effect, that this was an error. Nothing from the friend was before me and there was no evidence of the friend and the Applicant sharing any special relationship. Given this, I see it as unlikely that this friend made himself or herself available to such an extent as to be able to render assistance whenever the Applicant went to the bathroom or to do all household and personal tasks for the Applicant (such as shopping, cleaning and laundry).
As I mentioned earlier, the Applicant’s evidence was that his impairment worsened after the QP. Given this, I note that:
(a)He travelled to Egypt in the period November 2019 to February 2020. He did not travel with a companion. In his oral evidence, the Applicant stated that during his flights he was assisted by a flight attendant and was transported to and met at relevant airports by family and friends.
(b)The Applicant is said to have stated to a job capacity assessor that he was driving taxis in March 2019 for around six hours per week[51] (albeit that, in his oral evidence, the Applicant denied having said this).
[51] T48, 244.
During the second full day of the hearing, the Applicant was asked about his capacity to stand up from a seated position. His evidence was that he could not do this without assistance. In a Job Capacity Assessment report of an assessment conducted in August 2018, however, it is said that the Applicant “… was able to get out of his chair without assistance.”[52] When, at the hearing of this proceeding, this statement was pointed out to the Applicant, his response was not to refute the accuracy of the statement but, rather, to say that it only addressed a part of his reality.
[52] T38, 211.
Applying a process of elimination, I find that no more than 10 points would be assigned to the Applicant’s lower left limb condition under Table 3 if it were “permanent” (which I have found it is not). In this regard, 30 points would be inappropriate given that the Applicant was not unable to mobilise independently in the QP. 20 points would also be inappropriate because, in the QP, the Applicant could stand up from a sitting position without assistance and also because he could walk from a carpark to a supermarket without assistance (noting that the concept of “assistance” is one that encompasses assistance from a person and not from an object or a physical aid).[53] The assignment of 10 points appears most appropriate as such an impairment rating is said to include a person who can move around independently using walking aids, accepting that the Applicant was unable to walk far outside his home and needed transport to shops and community facilities.
[53] Summers and Secretary, Department of Social Services [2014] AATA 165.
OTHER CONDITIONS
As stated earlier, the Applicant stated that his major issue concerned the condition affecting his left lower limb. He did, however, submit that he suffered from a number of other conditions being hearing loss, Hepatitis B, chronic adjustment disorder with mixed anxiety and depressed mood, right retinal hole with traction and diabetes.
I have concluded that no rating ought to be assigned to any of these other conditions under the Tables.
Hearing Loss
The Applicant’s hearing loss condition was fully diagnosed in the QP but not fully treated and stabilised.
Dr S Hanna (general practitioner) reported in February 2018 that the Applicant had been hearing impaired since 2015,[54] with testing of the Applicant’s hearing having been completed by Dr A Hanna (audiologist), also in February 2018.[55]
[54] T26, 186.
[55] T27; 188-9.
Mr Shukry, audiometrist, reported in March 2017 that testing of the Applicant revealed mild to moderate sensorineural hearing loss bilaterally, worse in the right (upward) ear.[56]
[56] T19, 145. This “diagnosis” was repeated in August 2018: see T33, 204.
Mr Shukry had, in March 2017, recommended an “ENT referral.”[57] When asked at the hearing of this proceeding whether he had his hearing condition assessed by an ear, nose and throat specialist as recommended by Mr Shukry, the Applicant said he had not. When asked why, he said that Mr Shukry’s diagnosis was correct and that, in any event, the recommended referral was not intended to address his hearing impairment issue. I do not accept this explanation. I note that Mr Shukry expressly stated that the referral was in “…order to further investigate the sudden drop in hearing levels bilaterally.”
[57] T19, 145.
Absent the Applicant having obtained advice from an ear, nose and throat specialist, I am not satisfied that his hearing loss condition was fully treated and stabilised in the QP. Hence, I am not satisfied that the condition was, for the purposes of the Tables, permanent.
Even if, however, the Applicant’s hearing loss condition was permanent, no points could be assigned to it under the Tables.
The table to be utilised in the context of impairment from a loss of hearing is Table 11. It is to be used “where the person has a permanent condition resulting in functional impairment when performing activities involving hearing…”. As so used, it is to be applied “with the person using any prescribed hearing aid, cochlear implant or other assistive listening device that they usually use,” with “self-report” of symptoms alone being insufficient.
The Applicant uses hearing aids and has done so since 2017.[58] When using those aids, there is no evidence of any functional impact on activities involving hearing, other than a self-reported symptom the Applicant expressed at the hearing of this proceeding as to some difficulty hearing when outside, in the open. The Applicant accepted that he hears well when indoors. I note that the assessor who compiled an employment services assessment in late August 2018 observed that the Applicant did not appear to experience any difficulty hearing[59] (as did the assessor who compiled a Job Capacity Assessment report in August 2019).[60]
[58] T33 ,204.
[59] T38, 212.
[60] T48, 238.
Accordingly, I am not satisfied that the Applicant’s hearing loss condition had, in the QP, even a mild functional impact for the purposes of Table 11 (an impact which attracts a rating of 5 points). In particular, I am not satisfied that that Applicant had in the QP “some difficulty hearing a conversation at an average volume in a room with background noise” and “difficulty hearing conversations when using a standard telephone, particularly in a room with background noise.”
Hepatitis B
The Applicant’s Hepatitis B condition is permanent; it was fully diagnosed, treated and stabilised in the QP. In this regard, I refer to:
(a)A report in May 2016 of Professor Thompson, gastroenterologist, who referred to the Applicant having a history of Hepatitis B which was initially diagnosed in Egypt. The Applicant apparently reported to Professor Thompson symptoms including tiredness and weight loss. On examination, he was said to be “not unwell.”[61]
(b)A Centrelink medical certificate of September 2017 completed by Dr Luka, the Applicant’s then general practitioner. In it, Hepatitis B was included as one of three conditions from which the Applicant was then said to suffer. The symptoms of it were said to be “lacking energy, tiredness”.[62]
(c)A similar certificate of February 2018 was completed by Dr Hanna. In this certificate the symptoms were said to not only involve tiredness but also hepatomegaly (which the Tribunal understands to be an abnormal enlargement of the liver).[63]
(d)An employment services assessment report of September 2018 in which it was noted that, while Dr Hanna referred to symptoms of tiredness and hepatomegaly from the Applicant’s Hepatitis B condition, the Applicant reported no symptoms.[64]
[61] T12, 131,
[62] T22, 148.
[63] T26, 186.
[64] T38, 212.
The impairment said to result from the Applicant’s Hepatitis B condition is reflected in the symptoms of it which are, as mentioned, tiredness and lethargy. Given those symptoms, the table to be utilised in the context of that impairment is Table 1. It is to be used “where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.”
No points can be assigned to the Applicant’s Hepatitis B condition under Table 1. There is no evidence before me on which I could be satisfied as to the functional impact of the condition. In this regard, Table 1 would provide for a rating of 5 points where, due to symptoms of the condition, the Applicant has occasional difficulty walking to local facilities or performing physically active tasks or heavier household duties and is able to perform most work-related tasks. The material before me, however, is suggestive of the difficulties encountered by the Applicant in walking and performing physically active tasks as being attributable to his lower left leg condition rather than to tiredness or lethargy.
Mental health disorder
The Applicant’s mental health condition was fully diagnosed in the QP but not fully treated and stabilised.
In her April 2018 report, Dr Kolesnikova, psychiatrist, diagnosed the Applicant as suffering from chronic adjustment disorder with mixed anxiety and depressed mood.[65] In that report, Dr Kolesnikova proposed changes to the Applicant’s treatment. In particular, she proposed ongoing treatment by a psychiatrist and supportive and cognitive behavioural therapy from a psychiatrist or psychologist.
[65] T29, 197.
As for these proposed treatment changes, I note that in March 2019 Dr Kolesnikova reported that she had started seeing the Applicant in December 2017 “…and continued with his treatment.” Dr Kolesnikova provides no details, however, of the timing of that continued treatment.[66] The Applicant’s medical records do not reveal any sessions with Dr Kolesnikova until 2020, while Pharmaceutical Benefits Scheme records reveal that the Applicant obtained some prescriptions from her in 2019. The Applicant did see a psychologist, Ms Isaac, on three occasions[67] but the Applicant’s Medicare records reveal that each of these sessions occurred after the QP (two in October 2018 and one in December 2018).
[66] T44, 224.
[67] T42, 221.
In light of these matters, I am not satisfied that treatment proposed in respect of the Applicant’s mental health disorder had been implemented prior to expiry of the QP.
Right retinal hole with traction and diabetes
The Applicant’s right retinal hole with traction and diabetes conditions are not permanent. They were not fully diagnosed in the QP.
As acknowledged by the Applicant at the hearing of this proceeding, both of these conditions were first diagnosed after the QP.[68]
[68] The visual condition is referred to in a May 2019 letter of referral from Dr Li, optometrist: ST3, 343. The diabetes condition is referred to in an April 2020 letter from Dr Boules: ST3, 347.
DID THE APPLICANT HAVE A CONTINUING INABILITY TO WORK IN THE QP?
I am not satisfied that the Applicant had a continuing inability to work in the QP.
The Applicant would only have had such a continuing inability if (amongst other things[69]):
(a)he had actively participated in a program of support; and
(b)the impairment he suffered as a result of his relevant medical conditions was of itself sufficient to prevent him from doing any “work” independently of a program of support within the next two years.
[69] The Act, s 94(2). There is an additional requirement concerning training activity participation.
Both these requirements would need to have been satisfied for the Applicant to be considered to have a continuing inability to work. Neither is satisfied.
Program of support
The Applicant did not actively participate in a program of support. The requirements he would need to have met to be considered to have done so are set out in cl 7 of an instrument made for the purposes of s 94(3C) of the Act.[70] Under that clause, subject to several qualifications, the general requirement is to have participated in a program of support for at least 18 months in the three-year period preceding the relevant DSP application. Here, in the three-year period from 20 February 2015 to 20 February 2018 the Applicant is said by the Respondent to have participated in a program of support for only around 176 days.[71]
[70] Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
[71] T61, 330.
Details of the programs in which the Applicant participated were found in the material before me. From that material the Applicant would appear to have been engaged in a program of support for around the first three months of the relevant three year period (February to May 2015)[72] and for around eight months in 2017 (March to November 2017 albeit for that period he was medically exempt from participating).[73]
[72] T60, 315.
[73] T60, 314.
The Applicant submitted that there was a third period of participation and took the Tribunal to a document reflective of one found in the supplementary T documents.[74] From that document there would, indeed, appear to have been a third period of participation, being a period of around two months (November 2017 to January 2018).
[74] ST2, 338-9.
However the extent of the Applicant’s participation in a program of support is calculated, nothing in the material before me suggests that it was for at least 18 months in the
three-year period preceding the Applicant’s DSP application.
As I mentioned, there are several qualifications to the 18-month participation requirement. I am not satisfied that any of them apply in the circumstances (and the Applicant did not submit that any of them applied). In particular, on the material before me, I am not satisfied that:
(a)The duration of the Applicant’s program of support was less than 18 months and the Applicant completed the entire program in the relevant three-year period;[75]
(b)Any of the Applicant’s programs of support were terminated before expiry of the relevant three-year period because he was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program;[76] or
(c)The Applicant was participating in a program of support at the end of the relevant three-year period and was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation in the program.[77]
[75] POS Determination, cl 7(3).
[76] POS Determination, cl 7(4).
[77] POS Determination, cl 7(5).
I note that it is not necessary to participate in a program of support in the context of a “severe” impairment.[78] Such an impairment is one that is of 20 points or more under the Tables, of which 20 points or more are under a single table.[79] As is clear from what I said earlier, I do not accept that the Applicant suffered from such an impairment in the QP.
[78] The Act, ss 94(2)(aa) and 94(3B).
[79] The Act, s 94(3B).
Would the impairment prevent the Applicant from working in the next two years?
As for the second requirement of the continuing inability to work criterion, the concept of “work” is limited so that it only extends to 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.[80]
[80] The Act, s 94(5).
Given this concept of “work”, the question in issue is, essentially, whether the Applicant’s impairment prevented him from working for at least 15 hours per week in the next two years, as assessed in the QP. I have concluded that it did not. This is because only an impairment assigned a rating under the Tables is of relevance. In the case of the Applicant, no such rating has been assigned.[81]
[81] Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500 at [2]-[22].
CONCLUSION
For the reasons just outlined, the Applicant does not qualify for the DSP for which he applied.
Accordingly, the decision the subject of review is affirmed.

87. I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell

.....[SGD]........................................
Associate
Dated: 26 May 2021

Dates of hearing:

12 February 2021; 16 March 2021; 29 April 2021

Applicant:

Self-represented

Solicitors for the Respondent:

Services Australia

Dates of hearing:	12 February 2021; 16 March 2021; 29 April 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Services Australia