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

TCVR and Secretary, Department of Social Services (Social services second review) [2019] AATA 778 (1 May 2019)
Division:GENERAL DIVISION
File Number: 2018/5371
Re:TCVR
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:1 May 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that
TCVR satisfies all the requirements of section 94 of the Social Security Act 1991 and is thereby qualified for the Disability Support Pension as at the date of his claim.
.......[sgd]..........................................................
Ms Anna Burke AO, Member
CATCHWORDS
SOCIAL SECURITY – application for disability support pension – whether qualified – mental health condition, lumber spine condition, cervical spine condition, bilateral shoulder condition and left elbow pain – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION
TCVR (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 8 February 2018, Centrelink found that TCVR was not entitled to the DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 18 March 2019. TCVR was self‑represented and
Ms Jenna Molan, a government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the Respondent. The Tribunal was assisted by an interpreter in the Urdu language. The Applicant gave evidence under oath and was cross-examined by Ms Molan.
THE ISSUES IN CONTENTION
The issues in contention are whether TCVR:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
TCVR is a 55-year-old male who migrated from Pakistan over 30 years ago, lives with his wife and three children and last worked full time as a security guard/caretaker at a private boarding school in 2012, when his position was made redundant. TCVR completed a Bachelor of Arts degree in Pakistan, but his qualification was not recognised in Australia. TCVR undertook factory work for many years where he suffered numerous work place injuries. In 1991 he had a fall resulting in a left knee injury and in 1995 he experienced back pain. Both of these conditions were previously accepted and covered under WorkCover, but this has long been terminated. He retrained in security and worked for 15 years at a private girl’s school as caretaker/security guard for the boarding house. TCVR trialled security work at RMIT in 2015 but had to discontinue due to persistent difficulty with standing. Since lodging his claim for DSP, TCVR has travelled to Pakistan from January to March 2018 and then to Austria from June to August 2018.
On 27 July 2017 TCVR made an application for DSP, citing his medical conditions as: chronic mental illness which causes depression and anger; back injury which causes permanent back pain and left knee injury which causes permanent pain and operation done in the past.
On 30 January 2018, Centrelink had a job capacity assessment (JCA) conducted on TCVR. The JCA report found the following under the Impairment Tables:
·Anxiety and depression were considered to be fully diagnosed, treated and stabilised having been verified by a psychiatrist and medical documentation indicated that the condition and level of functioning were not improving over time. 10 points were awarded under Table 5 - Mental Health Function (Table 5) of the Impairment Tables as it was assessed the condition was having a moderate impact on his activities.
·Spinal disorder was considered to be fully diagnosed, but not fully treated, and stabilised as he had not attended for physical therapy or seen a medical specialist in recent years, and there was potential for further medical assessment and treatment which may improve symptoms and level of functionality. Nil points were awarded under Table 4 – Spinal Function (Table 4) of the Impairment Tables.
·Left knee pain was considered to be fully diagnosed, but not fully treated, and stabilised as he had not attended physical therapy or medical specialists in recent years and there was potential for further medical assessment and treatment which may improve symptoms and level of functionality. Nil points were awarded under Table 3 - Lower limb function (Table 3) of the Impairment Tables.
·Kidney disorder was considered to be fully diagnosed, but not fully treated and stabilised; given there was no medical evidence of past or current treatment nil points were awarded under the Impairment Tables.
·TCVR was assessed as having a reduced baseline work capacity of 8 to 14 hours per week due to restrictions imposed by ongoing conditions. It was felt that disability specific support structures such as job matching, role modification and a graduated return to work program would be able to assist in finding a suitable role for TCVR that would accommodate his reduced functioning work capacity. With this support his base line work capacity would likely increase to 15 to 22 hours per week.
On 14 June 2018, a departmental Authorised Review Officer (ARO), on internal review, affirmed the earlier Centrelink decision that TCVR’s total impairment rating was 10 points under Table 5. His condition, described as depression and anxiety, was considered permanent and impacting his ability to function. The ARO also noted TCVR’s back and knee pain were long-standing but no physical therapy or medical specialists review had occurred in recent years. They stated medical evidence indicated the conditions were expected to improve with further treatment and specialist management, awarding nil points for these conditions. The ARO made no finding in respect of TCVR’s continuing inability to work.
On 28 August 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO to reject TCVR’s DSP claim. The AAT1 awarded an impairment rating of 10 points for his depressive disorder under Table 5 and nil points for his left knee and lower back pain as he had not undertaken specialist evaluation or treatment for more than 20 years and was recently able to undertake long haul international flights from Australia to Pakistan and Europe. As TCVR did not have the 20 points required under the Act, the Tribunal did not address the issue of whether he had a continuing inability to work.
On 12 September 2018, TCVR sought a review of the AAT1 decision by this division of the Tribunal; stating in his application: I do have permanent knee and back problem plus depression and anxiety... I struggle all my life with that and had been working but now in the age of 55+ it’s hard for me to carry on so request for pension [sic].
On 21 December 2018, Centrelink conducted an additional file assessment of TCVR, as he had had provided additional medical evidence. The JCA report awarded 10 points under Table 5 as his condition was having a moderate impact upon him. He was still capable of independent self-care, had been able to travel independently overseas and was able to concentrate for up to 20 to 30 minutes on activities. No points were awarded to the spinal function as TCVR had not had active treatment for over 20 years, and medical evidence indicated he may benefit from treatment. Additionally, nil points were awarded to his left knee condition as medical evidence indicated he may benefit from physiotherapy. The shoulder/upper arm and kidney disorders were also awarded nil points, as it was considered there was potential for further medical assessment and treatment which would improve the level of functionality. They assessed TCVR’s baseline work capacity as 8 to 14 hours per week and with mainstream intervention work capacity would increase within two years to 15 to 22 hours per week.
In accordance with Schedule 2, section 4(1) of the Social Security (Administration) Act 1999, TCVR’s qualification for DSP is to be determined from the date of claim, 27 July 2017, to a date 13 weeks thereafter.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table indicates that the self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 6(7) states that, for the purposes of section 6(6) of the Impairment Tables, “reasonable treatment” is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether, at the time of the claim, TCVR suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based, and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment, not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not reflect any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and “supplementary T documents”. Additionally TCVR provided numerous medical reports.
DOES TCVR HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance, a person must suffer from a physical, intellectual or psychiatric impairment.
The parties accept that TCVR is suffering from a mental health condition, spinal disorder – lower back pain, lower limb deficiency – left knee pain, upper limb deficiency – shoulder disorder and a kidney disorder. Accordingly, the Tribunal finds that TCVR meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES TCVR HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Mental Health Condition
Doctor Roy Nallatram, consultant psychiatrist, in a medical report 26 April 2016 certified that TCVR had been under his care for the treatment of anxiety and depression he stated:
Since his dismissal he has become increasingly depressed. He has applied to various agencies for a suitable job but has been turned down at interview.
At the initial interview on 22^nd June 2012 he complained of loss of sleep, loss of appetite, inability to concentrate and general Anxiety and Depression
…..There has been no improvement whatsoever. I do not imagine him holding down a job in the foreseeable future.
Doctor Nallatram in a subsequent medical report on 27 September 2018 stated:
The depression is caused by the fact that he has been dismissed from his work without any reason. As a result he is getting persecutory ideas. This has impacted on his family life, in that members of his family are getting fragmented. This is causing unnecessary worry and severe anxiety.
I consider him suffering from Severe Depression and Anxiety both of which seem to be resistant to treatment for so many years. I consider him totally unable to hold down a job in the future.
In a medical report dated 28 November 2018 Ms Amanda Wallis, clinical psychologist, reports that she had been providing psychological therapy under the Better Access to Psychology program since October 2018 and reports, from a psychological perspective, her diagnosis of chronic severe depression and chronic severe anxiety with panic disorder symptoms as well as moderate Post-Traumatic Stress Disorder. She noted TCVR experienced feeling generally uneasy, feeling down a lot of the time, sleep disturbance, nightmares, hypervigilance, loss of interest and motivation to do anything; feeling worthless and guilty; loss of pleasure in all activities; definitely impaired thinking and concentration. He was persistently worried and this anxiety interfered with his ability to function, feel safe or take pleasure in day-to-day life. She observed that the symptoms would definitely impact on his ability to work, interact with other people, concentrate and communicate. The Tribunal noted this report but did not consider its contents, as TCVR consulted Ms Wallis outside the qualification period.
The Tribunal explored the functional impact of TCVR’s impairment under Table 5, as all parties accepted this condition was impacting his functionality. The Tribunal focused on whether or not he has a moderate impairment.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
TCVR gave evidence that during the qualifying period:
·he was totally reliant on his wife for all his care, that she performed all household functions and looked after him and the children, he can’t cook and would not eat unless his wife reminded him;
·he fundamentally did nothing most days, maybe read a few passages of the Koran or walked the few meters from his home to the mosque to pray or collect his children from school, explaining they lived in a house owned by the mosque which is where the children also attend school;
·he did not watch TV as it is not allowed by his religion; he did not use a computer but communicated regularly with his family in Pakistan via WhatsApp;
·he is presently feeling more anxious and vulnerable in Australia following the Christchurch attack especially as they live so close to the mosque;
·He could not concentrate, make decisions or complete tasks—he finds it all too hard, explaining his mind wanders and he relies heavily on his wife to make decisions, describing her as very capable;
·he did not socialise, had limited friends in the community, used to enjoy his position at the boarding school where he was liked and respected by the students and staff but since his job went that has all gone; and
·he did not walk far from his home, did not use public transport or drive.

TCVR also gave evidence that:
·     his life fell apart when his mother died. He lost his job and his investments, so he returned to live in Pakistan for a while. He felt safer there with his father and brother, but his wife’s health had suffered and the educational opportunities are not as great there as in Australia for his children so they returned to Australia;
·     when he is stressed and anxious he needed to be with his family so he has travelled to be with them; but never alone, he always found another member of the community to travel with as he would not manage by himself;
·     he attempted to sponsor his father to Australia for a visit but without any success, so he needs to return to Pakistan to see his father for his own mental wellbeing;
·     he is presently feeling more anxious and vulnerable in Australia following the Christchurch attack especially as they live so close to the mosque; and
·     he used to be an energetic young man who did a lot for his community, especially helping Pakistani students settle in Australia, was active in the mosque but can no longer engage in any activities.
Doctor Peter Pereira, TCVR’s general practitioner for 16 years, provided numerous medical reports in respect of TCVR over many years The Tribunal relied upon Doctor Pereira’s response to Centrelink’s request for additional information in a medical report of 27 November 2018. Whilst this was outside the qualification period, all information contained in the report related to TCVR’s condition at the time of qualification.
Doctor Pereira stated, in regard to TCVR’s depression, the patient is unable to concentrate on any task and as a result of feeling sad is unable to engage in any meaningful type of work. He suffers from a high level of anxiety and becomes very irritable. This is impacting on his marital life and his relationship with his three children. As a result of his depressed mental state, and irritability his wife has been requesting a separation and his children are not listening to him. This has escalated the patient’s depressed mood and made him even more tense and anxious. His sexual life has suffered immensely due to the depression and the back pain. He suffers from insomnia as a result of depression and requires taking temazepam 10 mg at night for this. He will need to continue taking Effexor XR 150 mg daily for the rest of his life. He will also need to keep consulting psychiatrist and a psychologist indefinitely.
The Respondent contends that TCVR’s mental health condition was fully diagnosed treated and stabilised during the qualifying period and would attract a moderate 10 point impairment rating, but was not severe as it did not meet most of the descriptors. The Respondent argued that, on balance, the evidence does not demonstrate that TCVR:
·required regular support to live independently, noting TCVR had managed multiple trips overseas;
·travelled alone only in familiar areas, as he had been able to travel locally and overseas;
·had very limited social contacts and involvement unless these are organised for him, as he was able to stay connected by his internet enabled mobile phone with family overseas;
·had difficulty concentrating on any task or conversation for more than 10 minutes as he was able to drive, utilise his internet enabled mobile phone and study religious texts; and
·had behaviour, thoughts and conversations that were significantly and frequently disturbed. His fatigue and mood disorder aligned with a mild descriptor.
The evidence did suggest that TCVR’s work training capacity was significantly affected by his mental health condition and would meet the severe descriptor at the qualification period.
The Tribunal, on balance, finds that TCVR’s mental health condition—described as chronic severe depression and chronic severe anxiety—had been fully diagnosed, treated, and stabilised and was having a moderate functional impact on his activities in the qualification period. The Tribunal finds it difficult to distinguish whether TCVR’s inability to perform activities such as self-care, independent living, and concentration were caused by the pain from his spinal condition or whether it was a result of his mental health condition.
The Tribunal finds that TCVR could not live independently and relied upon his wife for constant support and assistance with self-care; did not engage in social recreational activities, but had engaged in international travel. Further, the Tribunal accepts that he struggled with interpersonal relationships including with his wife and children; found it extremely difficult to concentrate and complete tasks; had difficulty coping with planning/decision-making, relying upon his wife to make all decisions and had no capacity for work or training.
The Tribunal awarded 10 points under Table 5 of the Impairment Tables in respect of this condition. The Tribunal finds that TCVR’s mental health condition is having a moderate impact on his functionality. The Tribunal finds that TCVR was able to travel overseas to reconnect to his family as this contact was vital to his health and well-being.
Spinal disorder – lower back pain
Doctor Pereira, stated:
He is suffering from lower back pain with disc bulges at that the L3-4 and L4-5 level. MRI scan of the back revealed central canal stenosis at the L3/4, L4/5 level with disc desiccation of the L3/4 and L4/5 disc. The back pain commenced in July 1995 whilst working as a factory hand. He was initially treated at Cedar Court Rehabilitation (under a pain physician Dr Danny Lewis) with physiotherapy and hydrotherapy and also had a steroid injection. He has also consulted an orthopaedic surgeon Mr. Peter Hannon. Following this he consulted Mr. Gary Speck (orthopaedic surgeon) in May 1996. He was referred to a physiotherapist Mr. George Kokovas for physiotherapy and hydrotherapy in July 2003 by me. Following this he was referred to another orthopaedic surgeon Mr. Gary Grossbrand by me in August 2004.
The lower back pain… will persist well and truly beyond 27 April 2019.
As said before the patient has had a steroid injection to the lower back as well extensive treatment at a pain clinic with extensive physiotherapy and hydrotherapy following his back injury. He has consulted a pain physician and various orthopaedic surgeons for his back condition. Despite this he has continued to experience severe lower back pain with restricted movement to a daily basis which has persisted and become chronic.
The patient has been fully compliant with the treatment that has been requested by his various treating doctors. However the patient is unable to obtain physiotherapy and hydrotherapy for his back, left knee and right shoulder as his Workcover claim has long been terminated. He is financially destitute and cannot pay for such services. In fact in July 2012, the patient had to apply for an early release of his superannuation money on medical grounds as he was unable to work and was financially incapable of supporting his family. He is only allowed five visits a year for physiotherapy therapy under the Medical Enhanced Primary Care system and this is not enough for treatment of his chronic condition. Irrespective of this even if he was able to afford physiotherapy and hydrotherapy more often, his condition will never improve to the extent to allow him to work as he has a chronic condition concerning his three major physiological pathologies which will never improve.
At the hearing, Table 4 was explored in respect of the functional impact of TCVR’s lower back pain, with a focus on whether or not he has a moderate impairment. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
(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).
TCVR gave evidence that during the qualifying period:
·he had been through four operations and did not want to undertake anymore as none had resolved his pain;
·he had quit security work as he could no longer stand for long periods of time;
·he did not walk far because of pain, has to drive or take public transport;
·he found it difficult to sit for long periods of time;
·he took regular pain medication;
·he walked in the pool to relieve the pain;
·he couldn’t afford any more physiotherapy;
·his back and knee conditions where long standing resulting from accidents in 1991 and 1995 when he worked as a factory hand; and
·he could not bend or lift light objects.
Dr Pereira stated that TCVR cannot sit or stand for long, is unable to bend his back repetitively or continuously, is unable to repeatedly or continuously lift any weight greater than 7 kg and will continue to require analgesia and anti-inflammatory medication for his back pain.
The Respondent contends that TCVR’s spinal condition was fully diagnosed, but not treated and fully stabilised at the qualifying period as further treatment may lead to significant functional improvement; referring to Dr Pereira’s report which indicated that he may benefit from physiotherapy for his back and knees.
The Respondent argued that if it was accepted that TCVR’s spinal condition was fully diagnosed, treated and stabilised it could only meet the moderate 10 point descriptor under Table 4 as TCVR gave evidence he could sit for 30 to 60 minutes but had difficulty lifting, had a reduced tolerance for bending forwards twisting, sitting and driving for approximately 30 minutes.
On balance, the Tribunal finds that TCVR’s spinal condition, which is long-standing, had been fully diagnosed, treated and stabilised and was having a moderate impact on his functionality. The Tribunal did not find that the medical evidence indicated that there was planned future treatment which would lead to significant functional improvement. Indeed Dr Pereira, TCVR’s long-term treating general practitioner, indicated that whilst TCVR may benefit from physiotherapy and hydrotherapy in managing his chronic pain condition, that treatment would not improve his underlying physical pathologies to allow him to return to the workforce.
Based upon the medical evidence supplied to the Tribunal, and the additional evidence provided by TCVR at the hearing, the Tribunal has awarded 10 points under Table 4 of the Impairment Tables in respect of this condition. The Tribunal finds that TCVR’s spinal condition is having a moderate impact on his functionality, that he is unable to stand or sit for long periods and that he has difficulty bending and lifting light objects. This has been corroborated by the medical evidence before the Tribunal.
The Tribunal found it difficult to reconcile various claims made by the JCA assessments and TCVR. The JCA report of 8 February 2018 states: TCVR reported difficulty sustaining concentration for many daily tasks, including driving (can manage approximately 20-25 minutes), watching news on television (can manage approximately 30 minutes) and using computer/Internet (can manage approximately 20 to 25 minutes). Whilst TCVR told the Tribunal he was not driving, he did not watch television because of religious reasons and was not utilising a computer. The Tribunal accepts that TCVR lead a sedentary lifestyle to manage both his spinal and mental health conditions, and that his overseas travel had been tailored in respect of these restrictions.
Lower limb deficiency – left knee pain
Dr Pereira, in a medical report provided to Centrelink of 27 November 2018 stated:
…also suffers from a left knee pain which commenced in February 1991 following a fall whilst working in a factory. He initially consulted an orthopaedic surgeon Mr. Michael Fogarty and had an arthroscopy performed on 15^th March 1991 where a cleavage tear of the lateral meniscus was exercised. He was also found to have a Grade 2 chondromalacia on the medial aspect of the patella though nothing was done about this. Following this he consulted another orthopaedic surgeon Mr. Owen Deacon. By then he had undergone a series of arthroscopies of the left knee with resection of a torn lateral meniscus. Following this he had a course of physiotherapy and hydrotherapy. However he has continued to have ongoing pain and instability with decreased movement in the left knee which has persisted until today.
... left knee pain… will persist well and truly beyond 27 April 2019.
At the hearing, Table 3 was explored in respect of the functional impact of TCVR’s knee condition, with a focus on whether or not he has a moderate impairment.
Table 3 – Lower Limb Function –10 points
There is a moderate functional impact on activities using lower limbs.
(1)       At least one of the following applies:
(a)       the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)       the person is unable to use stairs or steps without assistance; or
(c)       the person is unable to stand for more than 5 minutes; and
(2)       The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)       This impairment rating level includes a person who can:
(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note:      The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility
TCVR gave evidence at the hearing that during the qualifying period he was unable to walk far outside of his home or sit for long periods.
Dr Pereira stated that TCVR cannot walk or stand for long and needs to change his posture to avoid weight bearing; he suffers from persistent left knee pain and instability of the joint, he will continue to require analgesia and anti-inflammatory medication for his pain.
The Respondent contends that TCVR’s left knee condition was fully diagnosed but not fully treated and stabilised during the qualifying period, as further treatment may lead to a significant functional improvement. The Respondent referred to Doctor Pereira’s report, which stated TCVR may benefit from physiotherapy for his back and knees and he was being referred to rheumatologist for his Baker’s cyst on his left knee.
The Respondent argued that if it was accepted that this condition was fully diagnosed, treated and stabilised, it could only meet the mild point descriptor under Table 3 as there was no evidence that TCVR was unable to stand for more than 10 minutes or required a walking stick to mobilise effectively.
On balance, the Tribunal finds that TCVR’s left knee condition, which is long standing, had been fully diagnosed, treated and stabilised and was having a mild impact on his functionality. The medical evidence does not indicate that there was planned future treatment that would lead to significant functional improvement. Indeed, Dr Pereira indicated that whilst TCVR may benefit from physiotherapy and hydrotherapy in managing his chronic pain condition, treatment would not improve his underlying physical pathologies to allow him to return to the workforce.
Based upon the medical evidence supplied to the Tribunal, and the additional evidence provided by TCVR at the hearing, the Tribunal has awarded 5 points under Table 2 of the Impairment Tables in respect of this condition. The Tribunal finds that TCVR’s left knee condition is having a mild impact on his functionality, that he has some difficulty walking and standing for long periods finding that this had been corroborated by medical evidence.
Upper limb deficiency – shoulder disorder
Dr Pereira, in a medical report provided to Centrelink of 27 November 2018 stated:
.. also developed right sided shoulder pain around August 2012. Ultrasound revealed a chronic partial tear of the right supraspinatus tendon. The patient was referred for a steroid injection to the right shoulder under ultrasound controlled followed by a course of physiotherapy.
…right shoulder pain… will persist well and truly beyond 27 April 2019.
The patient also has a chronic tear the right supraspinatus for which he has required a steroid injection, a course of physiotherapy as well as daily analgesia and anti-inflammatories. This tear of the rotator cuff is permanent in nature.
At the hearing, Table 2 was explored in respect of the functional impact of TCVR’s lower back pain, with a focus on whether or not he has a mild impairment. Table 2 states:
Table 2 – Upper Limbs Function – 5 points
There is a mild functional impact on activities using hands or arms.
(1)       The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)       picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)       handling very small objects (e.g. coins);
(c)       doing up buttons;
(d)       reaching up or out to pick up objects
TCVR gave evidence that during the qualifying period he struggled with most daily activates, and could not reach above his head or carry heavy objects.
Dr Pereira stated that TCVR is unable to use his right shoulder with any force or externally rotate it to its full extent. TCVR will need to continue taking analgesia and anti-inflammatory medication for pain, as well as the limited physiotherapy to which he can avail himself.
The Respondent contends that TCVR’s shoulder disorder was fully diagnosed, but not fully treated and stabilised qualifying period. The Respondent argued there was no evidence that TCVR had difficulty handling small objects or doing up buttons as a result of his shoulder condition.
The Tribunal finds that TCVR’s shoulder condition was fully diagnosed during the qualifying period; but there was limited corroborating medical evidence in respect of treatment undertaken for this condition or the functional impact it was having on TCVR’s use of his hands or arms. Therefore the Tribunal awards nil points to this condition.
DOES TCVR HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, TCVR must not only satisfy the requirement that he has impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate he has a continuing inability to work. TCVR would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP and his impairment is of itself sufficient to prevent him from doing any work, independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act, and it is irrelevant whether an Applicant was aware of the requirement or not.
TCVR has not been found to have a severe impairment—requiring of 20 points under a single table—therefore, he must have participated in a program of support for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that TCVR had completed such a program within the required timeframe and accepted that he satisfied section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly finds that TCVR had completed a program of support and therefore does satisfy section 94(3C) of the Act.

The Respondent contended that in these circumstances the JCA is best placed to assess the Applicant’s work capacity. The Tribunal notes that the JCA report dated 21 December 2018 found that TCVR’s baseline work capacity was 8 to 14 hours per week due to re restrictions imposed by ongoing condition. The claimant experiences symptoms of anxiety and depression, which impact on daily functioning, ability to sustain concentration and ability to cope with workplace demands. In addition, the claimant experiences pain to the lower back, right shoulder and both knees, which impacts on range of movement and ability to persist with sitting, lifting, driving, walking, standing and climbing.
The Tribunal notes that there seems to be no uniform preference in the previous decisions of the Tribunal on whether the conclusions in a JCA report, or a medical report, should be preferred for the purpose of assessing continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report, rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the reporting, the writer’s relationship with the person who is the subject of the report and the reliability and depth of the analysis within the report.
The Tribunal finds TCVR has a continuing inability to work and concurs with the findings of TCVR’s general practitioner, Dr Pereira, who stated that TCVR’s four conditions are all long-term, chronic and permanent and will require ongoing treatment for the rest of his life; describing TCVR as totally and permanently incapacitated to perform any meaningful duties in a long-term and permanent future.
CONCLUSION
The Tribunal is satisfied that, at the date of application, TCVR was qualified to receive the DSP as his impairments attracted 25 impairment points under the Impairment Tables based on his chronic depression and anxiety attracting 10 points under Table 5 — Mental health function, his spinal condition attracting 10 points under Table 4 — Spinal function and his left knee condition attracting 5 points under Table 3 — Lower limb deficiency. Additionally, he satisfies s 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that
TCVR satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

.........[sgd].........................................
Associate
Dated: 1 May 2019

Date of hearing: 18 March 2019

Applicant: Self-Represented

Advocate for the Respondent: Ms Jenna Molan

Solicitors for the Respondent: Department of Human Services

[2019] AATA 778

1 May 2019

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Administrative Law

Statutory Interpretation

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Date of hearing:	18 March 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Jenna Molan
Solicitors for the Respondent:	Department of Human Services