The Applicant 0108 of 2014 and Secretary, Department of Social Services

[2015] AATA 446

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/0108

Re

The Applicant 0108 of 2014

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Members Dr Christopher Kendall and Dr William Isles

Date 22 June 2015

Place Perth
The decision under review is affirmed
..(Sgd) C Kendall..................
Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY -- Disability Support Pension -- Portability of payments -- Whether Applicant qualifies for unlimited portability -- Severe impairment -- Whether no future work capacity -- Whether prevented from undertaking any work independent of a program of support because unable to work for two hours per week or more -- Decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35(2)(b)
Social Security Act 1991 -- s 94(1), s 94(2), s 94(3B), s 1218AAA(1)(a)-(d)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149
Stojanovski v Secretary, Department of Social Services [2014] AATA 466
Re Morton and Secretary, Department of Social Services [2014] AATA 949
REASONS FOR DECISION
Dr Christopher Kendall and Dr William Isles, Members
22 June 2015
BACKGROUND AND ISSUES

Pursuant to section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal can restrict the publication of the names of parties to proceedings and allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149.
The Applicant in these proceedings asked that her personal history not be publicly disclosed. The Tribunal agreed and made orders restricting the publication of the name of, and any information that might identify, the Applicant.
In these reasons, the Applicant will simply be referred to as “the Applicant”.
At the hearing of this matter, the Applicant was unrepresented. She was, however, able to give verbal evidence. She also assisted the Tribunal with a lengthy, well researched and well written Statement of Facts, Issues and Contentions.
The Applicant is aged 60. She was last employed in 2001, when she was employed as the Principal of an International Thai School. Prior to this, she was employed as a Special Needs Teacher.
The Applicant has been in receipt of the Disability Support Pension (“DSP”) since 13 December 2010. Under the Social Security Act 1991 (Cth) (the “Act”), DSP is generally not payable where the recipient is continuously absent from Australia for more than the "portability period"; in this case, six weeks. The Act contains a number of exemptions to that rule. The only one of these exceptions that might apply to the Applicant requires her to be suffering from a “severe impairment”, which will continue to be severe and which will prevent her from performing any work independently of a program of support within the next five years.
The Applicant seeks a review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 28 November 2013, which affirmed a decision of a Centrelink Authorised Review Officer (“ARO”), dated 27 June 2013, to reject the Applicant’s claim for unlimited portability of her DSP.
The Respondent, Secretary, Department of Social Services (the “Department”) accepts that the Applicant qualifies for DSP. The Department contends, however, that none of the Applicant's conditions can be regarded as severe. In the alternative, the Department contends that even if the Applicants impairments are severe, there is insufficient evidence to find that the Applicant is unable to work within the next five years.
The Tribunal is asked to determine whether the Applicant qualifies for unlimited portability of her DSP.
PRIOR PROCEEDINGS
An accurate overview of the procedural background relevant to these proceedings was provided by Dr Adrian Tabart in her Health Professional Advisory Report dated 24 September 2014. That Report was received as evidence by this Tribunal and will be discussed further below.
This Tribunal notes the following facts as detailed by Dr Tabart, none of which were disputed by the Applicant.
The Applicant was granted DSP on 13 September 2010 for chronic malabsorption. Medical evidence submitted for this claim (the Medical Report Disability Support Pension, dated 7 September 2010) identified one medical condition: chronic malabsorption. A face-to-face Job Capacity Assessment (“JCA”) on 16 September 2010 assigned 20 impairment points on the then Table 20 of the Impairment Tables (discussed further below) for the condition and determined the Applicant had a current baseline and future work capacity of 8-14 hours per week.
On 26 November 2012, the Applicant underwent a further JCA for a DSP Portability Medical Review. Medical evidence submitted for this review (the Medical Report Disability Support Pension Review for Portability, dated 14 November 2012) identified three medical conditions: chronic malabsorption, pulmonary aspergillosis, and tricuspid regurgitation. Chronic malabsorption was determined fully diagnosed, treated and stabilised. An impairment rating of 10 points on Table 1 and 10 points on Table 7 from the new Impairment Tables, the Social Security (Table for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”) were assigned for this condition. Pulmonary aspergillosis was determined not to be fully diagnosed, treated or stabilised. It appears tricuspid regurgitation was not assessed. Baseline work capacity and capacity for work within two years was determined to be 0-7 hours per week.
This decision was then reviewed by an ARO. On 27 June 2013, an ARO determined that the Applicant did not have a “severe impairment” as per Table 1 of the Impairment Tables; that is, an impairment rating of 20 points on one Table. Further, based on an assessment of “fully diagnosed, treated and stabilised conditions” only, she had an impairment rating of 10 points on Table 1. Review of ongoing entitlement to the DSP was therefore recommended.
The ARO’s decision was reviewed by a Centrelink Officer on 15 July 2013. Following a discussion with the Applicant’s General Practitioner, Dr Igor Tabrizian, impairment ratings of 10 points on Table 1, 10 points on Table 10 and 5 points on Table 7 were assigned for chronic malabsorption. As such, it was determined that the Applicant remained eligible for the DSP.
The decision regarding eligibility for unlimited DSP portability was then reviewed at the Social Security Appeals Tribunal (SSAT). On 28 November 2013, the SSAT determined that, at the time of the original decision, impairment ratings of 10 points could be assigned on Table 1 and Table 10 for chronic malabsorption, and 5 points on Table 12 for visual fatigue. The SSAT also determined that there was insufficient medical and psychological evidence to fully assess cognitive impairment, that respiratory symptoms were still under investigation, and that there was no medical evidence to assess urinary incontinence symptoms described by the Applicant to the SSAT. Consequently, these complaints were considered not fully diagnosed, treated and stabilised at the time of the original decision. The SSAT thus determined that the Applicant was not qualified for unlimited portability of the DSP on the grounds of a severe impairment and affirmed the ARO decision under review.
LEGISLATION
In order to qualify for unlimited portability of her DSP, the Applicant must satisfy the Tribunal that she has a “severe impairment” and, if so, that she further has no future work capacity.
As outlined by the Department in its Statement of Facts Issues and Contentions dated 4 September 2014, the relevant legislation is contained in ss 94 and 1218AAA of the Act, as well as the Impairment Tables.
Section 94 of the Act sets out the qualification for DSP. It provides:
94 Qualification for disability support pension
(1)        A person is qualified for disability support pension if:
(a)   the person has a physical, intellectual or psychiatric impairment; and
(b)   the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)   one of the following applies:
  (i) the person has a continuing inability to work;
  …
  (ea) one of the following applies:
(i)    the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)   the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Continuing inability to work
(2)       A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)     in all cases—either:
(i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)   if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
Severe impairment
(3B)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.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
The Impairment Tables provide that, before a condition can be assigned a rating, it must be accepted as a “permanent condition”. Specifically, the condition must be “fully diagnosed, fully treated and fully stabilised” and is more likely than not, in the light of available evidence, to persist for more than two years.
Section 1218AAA of the Act relates to unlimited portability. It provides:
(1)The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
The term “any work” in section 1218AAA (1)(d) is not defined in the Act. That terms was, however, explained by Professor R McCallum, Member, in Stojanovski v Secretary, Department of Social Services [2014] AATA 466, as follows:
[13] … section 1218AAA(1)(d) requires that the severe impairment “...would prevent the person from performing any work...” in the open labour market. In order to give guidance to delegates making decisions under section 1218AAA(1), the Secretary has laid down policy in the Centrelink E-reference Guide. This guide is not generally available to the public and is for internal use. E-Ref 102.10480 of the guide states:
‘No future work capacity’ portability provisions
A customer is allowed indefinite portability of Disability Support Pension (DSP) if they are either:
·assessed in Australia as;
ohaving a 'severe impairment' and that this level of impairment is likely to remain for at least 5 years, and
ohaving no (less than 2 hours per week) future work capacity independently of an ongoing program of support and that this level is likely to remain for at least 5 years, or
·assessed as manifestly qualified for DSP under the current manifest guidelines.
[14] For present purposes, it is relevant that the reference to no future work capacity is qualified by the words in parentheses “(less than 2 hours per week)”. Even where a person does perform some work (for less than two hours per week), the Secretary can be satisfied that the person's “severe impairment would prevent the person from performing any work”.
Applying this analysis to the present case, it is necessary for the Applicant to demonstrate that she was incapable of working for two hours or more per week independently of a program of support. She does not need to show that she was unable to undertake any work at all.
MEDICAL EVIDENCE
The Tribunal is entitled to make its decision on the Applicant’s eligibility for unlimited portability as at the date of the decision taking into account all material that is relevant and available to it: Re Morton and Secretary, Department of Social Services [2014] AATA 949 at [48].
A useful summary of the medical information available to the Tribunal in relation to this matter was provided by the Department in its Statement of Facts, Issues and Contentions dated 4 September 2014 at paragraphs 16-36.
That overview and the evidence it cites can generally be summarised chronologically as follows.
A Medical Report in Support of a DSP Claim from Dr Igor Tabrizian, dated 7 September 2010
Dr Igor Tabrizian has been the Applicant’s General Practitioner since 2006 (nine years).
In his report of 7 September 2010, Dr Tabrizian provides the following medical opinion:
Diagnosis
Chronic Malabsorption.
History
After cancer surgery started to deteriorate healthwise and prolonged legal proceedings (divorce) amplified this
Current Symptoms
Fatigue, sleep disorder, digestion issues
Current Treatment
Digestive support, enzymes, probiotics and nutrients that were malabsorbed
Past treatment
As above for 4 years
Future/planned treatment
As above with measurement
Impact in ability to function
Can’t stand for more than 30 minutes, poor stamina, poor cognitive function, unrefreshed sleep
The current impact of this condition on patient’s ability to function is expected to persist for:
More than 24 months
Within the next two years the effect of this condition on the patient’s ability to function is expected to be:
Uncertain
Job Capacity Assessment Report dated 10 December 2012
In the JCA report dated 10 December 2012 the assessor concluded that the Applicant’s “immunodeficiency” condition could be rated under Tables 1 and 7 of the Impairment Tables and attracted a rating of 10 points under each.
The JCA report further stated that, with intervention, the Applicant had a capacity for work within 2 years of 0-7 hours per week.
A Medical Report for DSP Review from Dr Igor Tabrizian dated 14 November 2012
In this report Dr Tabrizian provides the following medical opinion:
Condition 1
Diagnosis
Chronic Malabsorption
The diagnosis is
Confirmed
Treatment
Digestive support, Vitamins and minerals (since 2006)
Past treatment
Supportive
Future/planned treatment
Ongoing measurement, diet advice, supplement advice
Patient’s compliance with recommended treatment
Very compliant
Current symptoms
Fatigue, cognitive impairment
History
Started with stress of cancer treatment and domestic abuse
Impact on ability to function
Poor concentration, easy physical fatigue
Current impact of the condition on patient’s ability to function is expected to persist for
2-5 years
Within the next 5 years the effect of this condition on the patient’s ability to function is expected to
Improve – with better adjustments and monitoring
Condition 2
Diagnosis
Pulmonary Aspergillosis
The diagnosis is
Presumptive. Will refer to specialist
Current Treatment
Antibiotic Therapy
Current symptoms
Breathlessness, chronic cough
History
2-3 years of progressive SOB, cough
Impact on ability to function
Fatigue, shortness of breath
Current impact of this condition on patient’s ability to function is expected to persist for:
3-24 months
Within next 2 years the effect of this condition on the patient’s ability to function is expected to
Significantly improve
Does this patient have any other medical conditions that are generally well managed and that cause marginal or limited impact on ability to function?
Tricuspid regurgitation of the heart
Is there any other information that you would like to provide?
I disagree completely this patient was assessed as capable of 8 hours work/week.
A Medical Certificate Addendum from Dr Igor Tabrizian dated 30 March 2013
In this report Dr Tabrizian writes in relation to the Applicant:
On her last TDR I wrote that she had presumed Aspergillums of the lung and that this would improve over the next 2 years.
However, after review from a Thoracic specialist, this was considered to be unlikely.
From further testing, it seems that she may well have a Sarcoidosis (a second opinion is being sought from another Thoracic Medicine Specialist), and this will definitely not be improving in the next 2 years.
Moreover, we need to consider that it will be unchanged.
Letter from Dr Tabrizian dated 23 September 2013
This letter is an addendum to Dr Tabrizian’s Medical Report of 14 November 2012. It reads:
As already reported (the Applicant) has Chronic Mal-absorption, and I wish to clarify several points at this moment in time.
The condition (Chronic Mal-absorption) is more likely than not, in light of available evidence, to persist for more than 5 years.
(The Applicant’s) Chronic Mal-absorption has multiple impairments resulting from this one condition.
She has shown me the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
As of 14 November 2012 her Chronic Mal-absorption affected her functioning in the following areas:
Table 1 – Functions Requiring Physical Exertion and Stamina
I have observed excessive tiredness in (the Applicant’s) everyday functioning which has been evident in her consultations with me over the years since 2006. She reports tiredness leaving her body feeling heavy, particularly from the knees down and of dragging herself around. She reports stopping many of her activities within the home and outside. I consider she fulfils the requirements of the 10 point Table.

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)         is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)        has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)        is able to:

(i)         use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)        perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

From her written notes to me:-
1 February 2006
“Extreme tiredness, often my body will get a wave of tiredness that leaves it feeling heavy, particularly from the knees down and of dragging myself around. I frequently get a headache from being so tired.
·Now fall asleep in the evening, previously husband would complain that I was always doing something.
·Can feel desperate for a sleep at various points in the day.
·Tiredness begun about 1999, increased about 2002 to the point I had to do things in the evening to stay awake, to late 2004 haven’t had any energy to even think about doing something to stay awake.”

12 December 2006
“In general I feel so drained it is all I can do to cook for myself. I have to rest all day to be able to do the ironing.”
8 July 2008
“breathing shallow, exercises difficult”.
I have to walk 1748 metres to nearest bus stop from my home.
Table 3 – Lower Limb Function
Local amenities (shops, transport) are too far for (the Applicant) to walk as she lives 1748 metres from her nearest stop and 5.9km from her local shops. She has repeatedly complained to me of her difficulties in using stairs which can leave her breathless and/or needing to sit down immediately. (The Applicant) does not have the stamina to stand and avoid doing so.

10

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.

Guidelines to Table 3
An activity listed under a descriptor is not taken to have been performed if it can only be done once or rarely.
From her written notes to me:-
“I have to walk 1748 metres to nearest bus stop and 5.9km to my nearest shops.”
1 February 2006
“find walking up hill very tiring and laboured breathing.”
“After sitting down I find getting up and moving painful and constricted. I limp a few steps until it eases off. This is particularly in my legs, knees and hips.”
16 October 2007
“I live in a house that has the living room upstairs. I have now get to the stage that on climbing the stairs I now almost every time have to immediately go and sit (sic. sit) down.”
Table 4 – Spinal Function
(The Applicant) reports that she now only drives for short trips. From since I first saw (the Applicant) in 2006 she has been complaining of her arms aching whenever she performs activities which require her to raise her arms, such as writing on a blackboard, hanging out washing, looking at clothes on eye level racks. This would correspond to a score of 10 points in the Impairment tables.

10

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).

From her written notes to me:-
1 February 2006
“Arms ache when I:
·Write on a blackboard. I am a teacher
·Hang out washing
·Scrape ice off wind screen
·Look at clothes on eye level racks

as told it was Carpal tunnel syndrome but I don’t think so.”
19 April 2006
“Some things I lifted into boxes in December I can no longer lift.”
5 July 2007
“I now notice that in hanging out the washing I have to lower my arms because they ache but that it affects my breathing in that I have to also take a deep breath.”
Table 4 – Brain Function
I have observed (the Applicant) demonstrating poor cognitive functioning during consultations in all areas of the 10 point chart except behavioural regulation and self-awareness since 2006.

10

There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)        The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)        memory;

Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.

Example 2: The person often misplaces items.

Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.

(b)        attention and concentration;

Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.

Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.

(c)         problem solving;

Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.

(d)        planning;

Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).

(e)         decision making;

Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.

(f)         comprehension;

Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.

(g)        visuo-spatial function;

Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.

(h)        behavioural regulation;

Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).

(j)         self awareness.

Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.

From her written notes to me:-
February 2006
“Cognitive functioning.
·Memory appalling, more so not just a part of aging. A thought gone in a moment before I can make a note of it.
·Unable to do two things at once.
·No longer organised, at times unable to even figure out how to be organised.
·Decision making very difficult and likely to be changed not because of changing circumstances but because I realise decision was not the best decision. At times almost paralysed with indecision.
·Easily confused. Often have to make a conscious effort to concentrate and think things through.
·Difficult in transferring skills/routines to differing but similar situations“

Table 10 – Digestive and Reproductive Function
As a result of (the Applicant’s) Mal-absorption she experiences fatigue and unpredictable bowel habits. The fatigue means she takes longer to complete tasks. She makes frequent trips to the toilet, hourly or less. Her on-going hunger means that she frequently snacks throughout the day, even during the night. Consequently her trips to the toilet and for snacks means she would exceed any normal rest breaks during a standard 3 hour work period. These have been reported over the years since 2006 and meet the requirements of 20 points on the Table.

20

There is a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1)        At least two of the following apply to the person:

(a)        the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b)        the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;

(c)         the person’s condition may affect the comfort or attention of co-workers;

(d)        the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.

From her written notes to me:-
December 2006
“last week of November frequently hungry and drinking more.”
16 Feb 2007
“… some nights go to the toilet up to three times a night…feel hungry w/in 30 mins of a meal. These days immediately after breakfast.”
19 May 2009
“in the past two weeks I have noticed an urgency to urinate and increased need to urinate.”
11 Dec 2009
“Since I last saw you my hunger levels are enormous: Almost immediately after a meal I can be starving. I invariable have to snack between meals. I seem to feel constantly hungry.”
7 Feb 2013

Urination Times 24 hour period

7.20am, 8.40, 10.50, 11.50, 1.20, 2.10, slept, 5.00, 5.40, 6.20, 7.20, 8.05, 9.05, 11.50, 5.20, 6.20, 7.15. – This was a very good night in that I only went to the toilet once.

Last night I snacked an hour after dinner (Pumpernickel and peanut butter) and then again an hour later (almonds). Twice during the night I woke up hungry and snacked each time on almonds.
Table 12 – Visual Function
Since 2006 (the Applicant) has been complaining on the instability of her eyes. In 2009 she reported that her Optometrist had said that due to her on-going health problems she was too tired for her eyes to focus. This caused her to experience headaches and discomfort when wearing her prescription glasses. Consequently she tries not to wear her glasses. Without using her glasses she scores 10 points on Table 12. She has been referred to Dr Jeremy Raiter now.

10

There is a moderate functional impact on activities involving visual function.

(1)        The person:

(a)        has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and

(b)        needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and

(c)         has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and

(d)        has at least one of the following:

(i)         some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;

(ii)        moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);

(iii)       only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and

(2)        The person:

(a)        is able to function independently in familiar environments (that is, without regular assistance from other people); and

(b)        is able to travel independently using public transport when using any assistive devices that they have and usually use.

From her written notes to me:-
12 December 2006
“Jean-Pierre has prescribed prescription lenses to be probably changed in 3 months.”
2 Oct 2009
“Dr Jean-Pierre Guillon has diagnoses my left eye drifting out but suspects my tiredness may be responsible and is holding off treatment until you have looked at the situation”.
21 April 2010
“Since last seeing you I have experienced not being able to see at times with or without my glasses, last prescribed 18 February. At times I have even returned to my old prescription glasses. I saw Jean-Pierre who quickly measured my eyes and said that was a marked deterioration and that when I was tired it was reflected in my ability to see”.
Based on the below definitions, (the Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer.
Sustainability of work
… in assessing capacity for work, it is expected that a person will be capable of reliably performing work on a sustainable basis, that is, for a reasonable period of time without requiring excessive sick leave or work absences. In this context, a reasonable period of time generally means 26 weeks and work means work in open, unsupported employment. Sick leave or absences of one month or more (in total) taken in any given 26 week period are considered excessive.

Eye Examination Report from Dr Jean-Pierre Guillon dated 5 March 2013

This Report states as follows:
(The Applicant) was tested on 19/03/2013
Please find below the results of the extensive eye examination undertaken.
Presenting complaint / Signs and Symptoms:
(The Applicant) presents a variety of visual symptoms caused by binocular instability
The refraction was Right +1.50/-0.25 x 100 (6/6) Left +1.50 / -0.50 x 95 (6/6) Add 2.50.
Corrective Prism:
Right: 0:50IN
Examination notes:
Visual Stress Testing:
Correction and advice.
I have advised the use of intermediate correction that includes a realigning prism to promote visual fusion and a reading addition to support the accommodative effort needed for close tasks.
Despite the correction, (the Applicant) still presents some weakness and variation in her binocular system that will reduce her ability to read and carry day to day near task with efficiency.
A Laboratory Report titled “QuantiFERON-TB Gold Assay for Mycobacterium tuberculosis” dated 9 May 2013
This Report provides the following relevant information:
Evidence of exposure to M. Tuberculosis as detected by gamma interferon response to specific M Tuberculosis antigens. This result may represent either latent or active disease.
Health Professional Advisory Unit Assessment dated 18 June 2013
On 18 June 2013 a referral was made to the Health Professional Advisory Unit (HPAU) for assessment of the Applicant’s medical conditions and the assignment of any impairment points
The HPAU considered all of the Applicant’s medical conditions which had been the subject of various medical reports, being her chronic malabsorption, respiratory condition, tuberculosis and visual condition.
The HPAU concluded that, at the time of its review, the Applicant did not have any medical condition that could be assessed as having a severe functional impact such that it could be assigned a rating of 20 points under a single Impairment Table.
The HPAU also concluded that the Applicant’s future work capacity could be assessed at 15 to 22 hours per week.
Letter from Jeremy Raiter, Optomitist to Dr Igor Tabrizian
This letter reads:
Thank you for referring (the Applicant) who has cognitive impairment and difficulty reading as a result of chronic malabsorption syndrome. She feels this is related to the cervical cancer and surgery to treat this condition which caused a reduction in her immune system. She has had various spectacle corrections over this time to try and help with the difficulty she is noting. She has to wear glasses to see and read but cannot use them for any length of time as it leads to other symptoms. She becomes particular tired which becomes part of the problem. Medications including nutritional supplements are fish oil, olive leaf, selenium, iodine. There is an obscure allergy to a medication used to treat allergic rhinitis in Hong Kong from a product from Canada which lead to a rash on her wrist.
EXAMINATION:
Visual acuity with her hypermetropic spectacle correct is right 6/6 and left 6/6 -2. There was slight improvement with pin hole. Reading vision through the multifocal spectacle is N4.5 in each eye. Amsler grid examination is normal on the left but on the right she describes an oblique elliptical patch where there is a slight indistinct blur although she is able to see the horizontal and vertical lines in this region. The degree of blur was dependant on the power of the spectacle correction. Colour vision was normal scoring 15/15colour plates correction on the Ichihara colour chart. She had good stereoscopic vision achieving 80 seconds of arc (best stereo acuity is at 40 seconds of arc). Cover test with her spectacles incorporating prisms showed a slight exophoria and a slight vertical phoria measuring 1 to 2 prism diopters base in the right and 1/2 prism diopter base up in the right for distance. For near the exodeviation was 1 prism diopter base in the right and 1/2 a prism diopter base upon right. With her current spectacles she was able to converge to 20 cm and able to accommodate to 30 cm in each eye. Ocular motility was normal with smooth pursuits, sacca des and oculokinetic nystagmus. Her pupils reacted normally with no relevant afferent pupil defect. Visual fields confrontation were with in normal limits. Anterior segments appeared healthy with normal intraocular pressures measured at 1:00 prn being 17 mm of Hg in each eye. The central corneal thickness was 558 microns on the right and 575 microns on the left. The adjusted intraocular pressures were calculated at 16.4 mm of Hg in the right and 15.6 mm of Hg in the left. Dilated examination revealed healthy discs, Maculae; retinal vessels and retinal periphery.
ASSESSMENT:
1.Mild exophoria and difficulty holding accommodation for any length of time.
2.        hypermetropia.
3.        Presbyopia.
4.        Mild exotropia and hypotropia on the right.
MANAGEMENT:
OCT appeared normal. Field test showed some fixation losses likely due to fatigue and difficulty concentrating. I would recommend review by Usa Biggs to see if there are any exercises that may help and to establish fine line measurements and recommendation for any prisms to be further incorporated into any spectacle correction. I suspect that (the Applicant) would need a variable prism and accommodative lens depending on the level of tiredness and this is very difficult to achieve. I have not made a further appointment to review her at this stage but would be happy to do if necessary. In the mean time I have recommended that she persevere until the malabsorption syndrome resolves.
Letter dated 8 March 2014 from Dr Igor Tabrizian Commenting on the SSAT’s decision.
In this letter, Dr Tabrizian writes as follows:
I wish to make comments about the SSAT doctor's remarks pertaining to (the Applicant’s) Centrelink case.
I am fully aware that (the Applicant) (as a Disability Support Pension recipient) does struggle to afford her, mainly non PBS, medication yet fund the most nutrient rich diet that she can. I would normally request extensive testing and specialist's opinions as a matter of course. However, I believe it is unreasonable to place such a financial burden on a vulnerable member of the community.
Because I have many patients experiencing the same complaint as (the Applicant) who have the resources to afford testing and specialist reports, I am generally able to draw on my experiences from those patients with the characteristics of the same ailment (malabsorption) to guide me in my assessment of (the Applicant’s) condition.
I do not believe that my training as a fully qualified doctor renders me incapable to make a diagnosis without specialist consultation. In the field of malabsorption the number of areas that a body can be implicated is broad and would incur a wide range of specialists who would usually only be able to speak in their narrow domain. It would still remain my role, as (the Applicant’s) doctor, to pull the separate findings into an all-encompassing diagnosis. It has been my experience with the specialists that (the Applicant) has consulted thus far that they struggle to understand her condition within their speciality.
Medical Report from Dr Igor Tabrizian dated 14 July 2014

On 13 June 2014 the Secretary sent the Applicant a letter to provide to her doctor requesting specific information about her medical condition with regard to the Impairment Tables. Dr Tabrizian responded as follows:
(The Applicant) has informed me that following a Directions Hearing you now wish to know her current medical condition as it applies under The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, Impairment Table 10, Digestive and Reproductive Function, for which she is claiming 20 points for portability of her Disability Support Pension. Using your questions in your letter to her, the following is my assessment of her current condition under Table 10.
(a)Describes the diagnosis and date of onset. Any details you can provide regarding the nature of any condition causing impairment would be appreciated.
As I stated in the Medical Reports that I have completed on behalf of this patient, (the Applicant) has Chronic Mal-absorption and its onset was 1 February 2006. (The Applicant) was diagnosed with Cervical Cancer in 2005. Subsequent to this she began to fail to digest nutrients. At this time she was also going through a challenging divorce from an abusive partner.
(b) Provide a detailed description of the symptoms suffered by the person, as well as the frequency and severity of the symptoms. Of particular interest, are the details about the impacts that these symptoms have on (the Applicant)’s ability to function.
My comments in my report of 23 September 2013 still apply.
As Mal-absorption refers to the body’s inability to function efficiently, various areas of the body begin to malfunction. In terms of Table 10, (the Applicant)’s failure to adequately digest results in:
·        Frequent visits to the toilet, often every hour, sometimes more frequently, day and night.
·        Recurrent hunger often within an hour of eating means she needs to snack throughout the day and during the night.
·        Excessive tiredness renders (the Applicant) without the stamina to sustain normal physical exertion levels.
·        (The Applicant)’s tiredness also impacts on her vision causing her eyes to frequently fail to coordinate producing eye strain when wearing prescription glasses. As a result she tries to avoid using her glasses wherever possible despite needing them for the majority of activities.
·        Poor cognitive functioning in most areas, particularly in attention and concentration.
In a three hour work period (the Applicant) would require at least hourly breaks for toilet visits as well as additional breaks to snack. She would need to use her prescribed glasses which would cause her eye strain producing headaches, fogging etc. The foregoing would impact on her attention and concentration levels without even taking into account her on-going cognitive impairments. To expect her to sustain any activity for three hours is unrealistic.
(c) Describe the treatment that the person has received for the condition. What date(s) were such treatment(s) provided?
(The Applicant)’s treatment remains consistent with the Medical Reports previously submitted on this patient. She continues to experience problems absorbing whether via tablet, capsule, including slow-release, liquid or intravenous means.
(d)Are there any treatments reasonably available to the person that, in your opinion would be likely to lead to an improvement in the person’s condition within two years? What risks (if any) may be associated with such treatments?
Not that the patient can reasonably afford.
(e)Has specialist opinion been sought for the condition(s)? If so, please provide the name and qualifications of the specialist and advise when the consultation(s) took place. What was the specialist’s opinion regarding management and treatment of the condition? If the specialist provided a report to you, please provide (the Applicant) with a copy so that she can submit it in support of her application.
Kindly refer to my report of 8 March 2014 which deals with this in depth.
(f)Importantly: What is your assessment of the impairment under the relevant Impairment Table?
Although (the Applicant)’s condition has shown a decline since her application in November 2012 I still remain of the opinion that (the Applicant) has meet the requirements of 20 points on Table 10, Digestive and Reproductive Function.
In my opinion (the Applicant) has a physical impairment of 20 points under the Impairment Tables with a continuing inability to work. Her condition is likely to persist for 5 years based on your definition of ‘Sustainability of work’. (The Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer.
HPAU Report from Dr Mieka Tabart dated 24 September 2014
On 4 September 2014 the Department filed its Statement of Facts, Issues and Contentions and sought leave to file a report from the Health Professional Advisory Unit (HPAU) on the issue of the Applicant's future work capacity.
On 11 September 2014 the Tribunal made directions that the Department file any further evidence on or before 26 September 2014.
On 24 September 2014 the Department received a report from the HPAU which assessed the Applicant's medical conditions and her future capacity for work. That report was written by Dr Mieka Tabart.
On 2 October 2014 the Department filed Supplementary Submissions specific to Dr Tabart’s medical report. Relevantly, the Department highlighted the following:
The HPAU report that was provided to the Respondent on 24 September 2014 contained a comprehensive review by Dr Mieka Tabart of all medical evidence for the Applicant's medical conditions and other related documentation that was currently available (see pages 3-4 of the report).
In her report Dr Tabart also discussed the symptoms and effects of a range of medical disorders which were referred to in those medical reports (see pages 9-12).
In her opinion, Dr Tabart concluded that:
Medical evidence reviewed in preparation of this report, along with [the Applicant's] self-report, describes long-standing, wide-ranging and systemic symptoms causing significant disruption in everyday activities. As outlined in the 'Discussion' section of this report, and based on medical evidence available for this review, it is unclear to me the extent and result of testing and specialist assessment and management of the complaints described, including follow-up of possible TB and sarcoidosis.
Based on medical evidence reviewed for the preparation of this report, and in the absence of further clarification, it appears uncertain whether the symptoms suffered by [the Applicant] have been fully diagnosed, treated and stabilised .... [and] it would seem premature to be recommending impairment ratings at this stage.
... without being certain that medical conditions are fully diagnosed, treated and stabilised, and with regard to the Rules for applying the Impairment Tables, my opinion must be that it is not reasonable for an impairment rating or ratings to be assigned.
There are no details of investigations performed to establish the presence of mal-absorption, to determine the nutrients affected, and to try to identify the underlying cause of the problem. In the evidence reviewed by Dr Tabart, it was not clarified whether an underlying cause had been identified.
To appreciate the Applicant's overall health, it would seem imperative for the presence or absence of sarcoidosis (which Dr Tabrizian indicated in his report dated 30 March 2013 may be a possible diagnosis for the Applicant), to be confirmed and, if present, the extent of the disease, and symptoms and functional impacts attributable to it, to be identified.
Letter dated 2 December 2014 from Dr Gino Mastaglia, Physician of Rheumatology
In this letter, Dr Mastaglia writes:
This patient has recently been diagnosed as having Ankylosing Spondylitis with peripheral joint involvement, explaining a significant amount of her pain and stiffness of the trunk and peripheral joints. She is now on a regimen of treatment in the form of weekly Etanacept injections.
She has in addition to this a chronic pain and fatigue syndrome relating in part to her chronic malabsorption and specifically of late her Manganese and Chromium levels are depleted.
Not surprisingly her level of endurance has become depleted affecting adversely her functional capacity on a day to day basis in all capacities of daily living. There is a strategy to replace what is currently lacking.
The patient will continue to be managed by Dr Tabrizian and myself in the near future and I concur with Dr Tabrizian's opinion regarding her severe functional impairment.
Can she be reassessed with regard to a Disability Support Pension please.
TRIBUNAL’S CONSIDERATIONS
Severe Impairment: Contrasting Medical Evidence
If the Applicant is to succeed the evidence must show that she has an impairment rating of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
As noted above, the Department provided the Tribunal with a Statement of Facts, Issues and Contentions dated 4 September 2014.
In this Statement, the Department noted the numerous medical reports filed by the Applicant’s own doctor, Dr Igor Tabrizian and various other medical reports.
Based on these reports, some of which had not been available at the time the ARO and SSAT made their determinations, the Department acknowledged that the Applicant's treating doctor, Dr Tabrizian, was of the view that the Applicant had impairments from her medical condition of chronic mal-absorption which attracted a rating of 20 points under Table 10 of the Impairment Tables.
The Department noted in particular (at para 35) Dr Tabrizian’s report dated 14 July 2014, wherein Dr Tabrizian states:
othe Applicant has chronic mal-absorption with an onset date of 1 February 2006;
othe Applicant’s condition results in:
·frequent visits to the toilet, often every hour, and sometimes more frequently day and night;
·recurrent hunger within an hour of eating which means snacking throughout the day and during the night;
·excessive tiredness which renders her without the stamina to sustain normal physical exertion levels;
·tiredness which also impacts her vision causing her eyes to frequently fail to coordinate producing eye strain when wearing prescription glasses
·poor cognitive functioning in most areas, particularly in attention and concentration;
oin a 3 hour work period the Applicant would require at least hourly breaks for toilet visits as well as additional breaks to snack; and
oalthough there has been a decline in the Applicant’s condition since November 2012, she has met the requirements of 20 points under Table 10.
Based on Dr Tabrizian's assessment and all of the medical reports filed as of 4 September 2014, the Department accepted that the Applicant had satisfied s 1218AAA(1)(a)-(c) of the Act.
Specifically, the Department contended:
For the purposes of s 1218AAA(1)(a)-(c) of the Act, the Secretary is satisfied the Applicant is receiving DSP, has a severe impairment and will have that severe impairment for at least the next 5 years.
The Department also submitted:
Other impairment tables
In light of the Secretary’s view of the Applicant’s severe impairment rating under Table 10, for the purposes of assessing eligibility for unlimited portability of DSP, it is not necessary for the Tribunal to consider any other medical conditions of the Applicant and whether they result in impairments which attract further ratings.
As also noted above, on 2 October 2014, the Department filed Supplementary Submissions. In effect, these submissions sought to withdraw the Department’s earlier submissions of 4 September 2014 that the Applicant suffered from a severe impairment. In that regard, the Department contended that the Tribunal should place greater weight on Dr Tabart's report over Dr Tabrizian's assessment and find that no impairment ratings points could be assigned to the Applicant for her impairments under the Impairment Tables. The effect on the Applicant would be that she would be denied unlimited portability of her pension because there was insufficient evidence that she suffered from a severe impairment, as required by the Act.
In relation to Dr Tabart’s report, the Department explained as follows:
Although further clarification from Dr Tabrizian could not be sought (due to his absence from his clinic when contact was made), the Respondent submits that the review conducted by Dr Tabart offered a clearer and more detailed analysis and understanding of the potentially wide-ranging medical disorders suffered by the Applicant.
Based on the HPAU Report, the Respondent now contends that the Applicant does not have a “severe impairment”.
The Respondent further contends that the Applicant's medical conditions have not yet been fully diagnosed, treated and stabilised.
The Respondent submits that (Dr Tabart’s) comments are examples of recommendations for further investigations to be undertaken for a clear and complete diagnosis of the Applicant's medical conditions.
It was not disputed before the Tribunal that the Applicant receives DSP. As such, the first question the Tribunal needs to address is whether the Applicant has a severe impairment and will have that severe impairment for at least five years.
As noted above, in relation to these issues, the Tribunal has before it two conflicting medical opinions. One (that of Dr Tabrizian) finds that the Applicant’s impairment is severe and will last for five years. The other (that of Dr Tabart) disagrees and finds that no assessment or rating as required by the Impairment Tables can be made without further medical testing.
The Department asks the Tribunal to:
…place greater weight on Dr Tabart’s report over Dr Tabrizian’s assessment, and accordingly find that no impairment rating points can be assigned to the Applicant for her impairments under the Impairment Tables.
During the hearing for this matter, counsel for the Department was invited to explain further why Dr Tabart’s assessment should be preferred. No detailed response was forthcoming. The Tribunal was advised that the ultimate decision was that of the Tribunal’s.
Without further information, the Tribunal can only make a choice of this sort based on the limited evidence it has before it. In that regard, the Tribunal notes that Dr Tabrizian has been the Applicant’s doctor since 2006 – some 9 years. It also notes that Dr Tabart has never met the Applicant and did not speak to Dr Tabrizian about the Applicant’s medical history and treatments to date. Much of Dr Tabart’s report seems to query Dr Tabrizian’s diagnostic conclusions and seems to focus a great deal on whether the Applicant should have received DSP in the first place – a question the Tribunal was not asked to determine. Further, until quite recently, the Department had never expressed any concerns to the Tribunal in relation to the assessment provided by Dr Tabrizian, his qualifications or the diagnosis and rating of the Applicant’s medical conditions. Indeed, as noted above, in its written submissions of 4 September 2014, the Department asked the Tribunal to accept Dr Tabrizian’s findings that the Applicant suffered from a severe impairment – agreeing with Dr Tabrizian that the Applicant’s chronic mal-absorption was fully diagnosed and treated, rated 20 points on the Impairment Tables and was likely to last for 5 years.
Based on the evidence before it, the Tribunal finds that the evidence provided by Dr Tabrizian is to be accepted. This is not a criticism of Dr Tabart. Rather, it simply recognises the value to be attached to Dr Tabrizian’s long history with the Applicant as her general practitioner and the Department’s previous position that Dr Tabrizian’s assessment is accurate and sound.
In the circumstances, the Tribunal agrees with the submissions made by the Department in its Statement of Facts, Issues and Contentions dated 4 September 2014 that, based on the assessment provided by Dr Tabrizian, the Applicant had a severe impairment that would exist for at least five years.
Based on this evidence, the Tribunal is satisfied that the Applicant has satisfied the requirements of s 1218AAA(1)(a)-(c).
The Applicant’s Future Capacity for Work
Having found that the Applicant has satisfied that the requirements of s 1218AAA(1)(a)-(c) of the Act, the Tribunal must now turn its attention to s 1218AAA(1)(d) of the Act. This section requires the Secretary to be satisfied that, due to her impairment, the Applicant would be unable to perform any work independently of a program of support within the next 5 years.
As noted above, it is necessary for the Applicant to demonstrate that she is unable to work for two hours or more per week independently of a program of support.
As also noted, the Applicant provided the Tribunal with very detailed and well written submissions. These submissions were of considerable assistance to the Tribunal. In relation to whether she would be able to work again, the Applicant described herself as a 60 year old woman, who:
- needs to wear prescription glasses to read or do close work but cannot wear them for any length of time as confirmed by an Ophthalmologist and consequently avoids wearing them;
- has cognitive impairment which is described by her treating doctor;
- needs to use the toilet sometimes hourly, sometimes more frequently;
- has recurrent hunger which can mean snacking within 30 minutes of a meal; and
- suffers from excessive tiredness..
This, she explains, will make it impossible for her to find 2 hours of employment a week.
It was noted by the Department in its Statement of Facts, Issues and Contentions dated 4 September 2014 that at paragraph [21] of the SSAT decision it is noted that the Applicant was recorded as stating that she spent several hours every morning on her computer and could undertake odd jobs around the house, including watering the garden.
The Applicant did not dispute that she was able to do daily tasks, albeit with difficulty. Nor did she dispute her ability to type and prepare written documents. In relation to the work needed to prepare her own written submissions to the Tribunal, for example, the Applicant wrote:
If we pull back for a moment and look at this Statement of Facts, Issues and Contentions the Applicant has had to work every day on it excepting for medical appointments and actual debility. Actual debility, of course, includes vomiting but usually means days when she is unable to focus from mental fogging or focus her eyes. When this occurs, not even a strong cup of coffee is able to clear it and she has no option but to give up. Otherwise a day's work means about 2 hours irrespective of whether her back aches, her fingers take on a will of their own or sciatica type pain makes sitting torture.
Normally the Applicant would be sensible and stop work and rest. However the Applicant does not have this luxury as she needs to meet the deadline for submission of her Statement of Facts, Issues and Contentions. So she pushes on as much as she is able before her body just refuses to cooperate altogether. She already experiences the consequences of this in all areas of her functioning and knows that once the pressure is off, i.e. the Statement of Facts, Issues and Contentions is submitted, she will pay dearly in the form of days in bed, the cost of additional massages, headaches, lethargy and inability to think or even make decisions. This is not responsive to any interventions that the Applicant is aware of.
Elsewhere, in relation to the same issue, the Applicant writes:
Fortunately the Applicant has had the benefit of help from a friend who regards this as a mental exercise, similar to doing Sudoku and cryptic crosswords. This gives her the frame work in which to write. She though has to pull her weight and write up the document which she is not given help with. This help though has diminished markedly as the years since applying have gone by. This document has only been possible because the Applicant has had months in which to correct, revise and amend. The Applicant frequently loses sight of the direction she is writing in and fears that even now this document tends to ramble for which she apologises.

This leads the Applicant to conclude:
In a business environment, time is money. The labour market is based on efficiency. The Applicant's performance is not efficient. So yes, she could work two hours but from the employers point of view she would be wasting their time, and, they would have to pay her an Australian rates salary. Who would reasonably do that?
In relation to evidence before the Tribunal that specifically addresses “capacity to work” within the meaning of s 1218AAA(1)(d), the Tribunal notes the reports from JCA and HPAU.
The JCA report stated that, with intervention, the Applicant had a capacity for work within 2 years of 0-7 hours per week.
The HPAU stated that the Applicant’s baseline work capacity could be assessed at less than 15 hours per week but her future work capacity would be assessed at 15 to 22 hours per week.
The Tribunal also notes the evidence of the Applicant’s doctor, Dr Tabrizian, whose evidence in relation to this issue can be summarised as follows.
Notes of conversation between Centrelink Specialist Officer and Dr Tabrizian dated 15 July 2013
These notes read as follows:
Dr Tabrizian returned call. Details confirmed as follows:
-- chronic malabsorption does cause digestive system symptoms
* regularly experiences pain and bloating and would struggle to concentrate / persist at a task for more than 1-2 hours due to this symptom
-- with respect to cognitive impairment, the major impact on CUS' functional capacity is an impact on attention and concentration, comprehension and decision making
* Dr Tabrizian confirms that CUS can have good days (these are rare);
However, on her bad days she is sometimes affected by "brain fog" to the extent that she is unable to do anything
* Dr Tabrizian stated that he would not suggest that CUS requires assistance from another person on a regular basis as CUS would be upset at this suggestion; CUS maintains her independence by using a system of writing everything down, planning well in advance (with notes and diary etc)
-- I asked if Dr Tabrizian has any other comments to make and he advised that due to the complexity and lack of predictability of CUS' medical conditions, she does not have enough consistency to be able to commit to anything (ie work) except getting herself better
* advised that CUS is a very philanthropic person who tends to put other's needs ahead of her own and that due to this CUS can have a tendency to over-commit and on occasion attempts to drive herself harder than her medical condition would warrant
A Medical Report for DSP Review from Dr Igor Tabrizian dated 14 November 2012
In this report, Dr Tabrizian, when asked to provide any further information in relation to the Applicant, states:
“I disagree completely this patient was assessed as capable of 8 hours work/week”
Letter from Dr Tabrizian dated 23 September 2013
In this letter, Dr Tabrizian states that his comments relate to the following definitions:
Sustainability of work
… in assessing capacity for work, it is expected that a person will be capable of reliably performing work on a sustainable basis, that is, for a reasonable period of time without requiring excessive sick leave or work absences. In this context, a reasonable period of time generally means 26 weeks and work means work in open, unsupported employment. Sick leave or absences of one month or more (in total) taken in any given 26 week period are considered excessive.
In relation to this, he comments:
Based on the below definitions, (the Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer.
Medical Report from Dr Igor Tabrizian dated 14 July 2014
Dr Tabrizian appears to be commenting again on the same definition of “sustainability of work” (as above), when he writes in this letter:
In my opinion (the Applicant) has a physical impairment of 20 points under the Impairment Tables with a continuing inability to work. Her condition is likely to persist for 5 years based on your definition of ‘Sustainability of work’. (The Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer.
The Tribunal does not doubt that the Applicant suffers a great deal from the physical impairments she has described. Nor does the Tribunal doubt the Applicant’s sincerity when she states that her daily activities are minimised. The Tribunal is, however, bound by the terms of Act and policies relevant to this matter and, as such, requires clear evidence that the Applicant cannot work more than 2 hours per week.
Based on the evidence before it, the Tribunal is not satisfied that the Applicant is incapable of working more than two hours per week. Her own written evidence and her appearance before this Tribunal evidence a determined individual with a strong work ethic who, can, when it is required, undertake written and reflective work of a sort that would allow her to work at least 2 hours in a given week. The legislation allows no scrutiny of whether or not the Applicant will work in the future. Rather it only allows scrutiny of evidence that she can work. Evidence that the employment market is difficult and that people with disabilities are discriminated etc., while troubling, are not the sort of evidence this Tribunal can look to when assessing whether the Applicant meets the requirements of section 1218AAA(1)(d).
In relation to the medical evidence before it, the Tribunal is left with insufficient evidence that the Applicant will be unable to work independently of a program of support within the next five years.
None of Dr Tabrizian’s reports refer to the Applicant’s ability to work within the meaning of the relevant legislative provision and the words “independently of a program of support” as included in subs 1218AAA of the Act. Dr Tabrizian simply states that he disagrees “completely this patient was assessed as capable of 8 hours work/week”. This comment does not clarify whether she might be able to work at all and, if so, when and under what circumstances.
Further, in relation to his noted phone conversation comments of 15 July 2013, the Tribunal notes that while Doctor Tabrizian says that “due to the complexity and lack of predictability of CUS' medical conditions, she does not have enough consistency to be able to commit to anything (i.e. work) except getting herself better”, he then seems to clarify that statement by saying that “CUS is a very philanthropic person who tends to put other's needs ahead of her own and that due to this CUS can have a tendency to over-commit and on occasion attempts to drive herself harder than her medical condition would warrant.” This latter statement seems to imply that the Applicant can work when needed. Without further evidence, the Tribunal is unable to conclude that Dr Tabrizian is stating that the Applicant is unable to work for a five year period as per the terms of s 1218AAA of the Act.
Further, when Dr Tabrizian states in his letter of 23 September 2013 that “(the Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer”, the Tribunal notes that he is referring to the following definition:
Sustainability of work
… in assessing capacity for work, it is expected that a person will be capable of reliably performing work on a sustainable basis, that is, for a reasonable period of time without requiring excessive sick leave or work absences. In this context, a reasonable period of time generally means 26 weeks and work means work in open, unsupported employment. Sick leave or absences of one month or more (in total) taken in any given 26 week period are considered excessive.
Without more, it is unclear from Dr Tabrizian’s comments whether he is suggesting that the Applicant cannot work full time over 26 weeks, rather than part time or 2 hours per week during this period. Again, no reference is made to the requirements of 1218AAA of the Act and it is unclear to the Tribunal what, precisely, Dr Tabrizian is referring to in relation to work capacity and sustainability.
Similar concerns arise in relation to Dr Tabrizian’s comments of 14 July 2014, when Dr Tabrizian again seems to be referring to the definition of sustainability provided above and states “… based on your definition of ‘Sustainability of work’, the Applicant is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer.” Again, it is simply unclear whether Dr Tabrizian is stating unequivocally that the Applicant cannot work a full work week, part time or, importantly, 2 hours per week.
Finally, in relation to the recent one page medical report from Dr Mastaglia, it is not clear on the evidence before the Tribunal whether the disease to which Dr Mastaglia refers (Ankylosing Spondylitis) has been stabilised as required by the Impairment Tables. Importantly, there is no information in this report that assists the Tribunal in determining whether the Applicant will be unable to work within the next five years as per section 1218AAA(1) of the Act.
In the circumstances, the Tribunal is not satisfied that the Applicant has met the requirements of s 1218AAA(1)(d) of the Act in relation to her capacity for future employment.
FINDINGS
The Tribunal makes the following findings in relation to whether the Applicant is entitled to unlimited portability of her DSP:
(a)The Applicant is receiving DSP (a requirement of s 1218AAA(1)(a) of the Act);
(b)The Applicant’s diagnosis of chronic malabsorption constitutes a severe impairment within the meaning of s 94(3B) of the Act (a requirement of s 1218AAA(1)(b) of the Act);
(c)The Applicant will have that severe impairment for at least the next five years (a requirement of s 1218AAA(1)(c) of the Act); and
(d)There is insufficient evidence for the Tribunal to be satisfied that the Applicant is unable to perform any work at two hours or more per week independently of a program of support (a requirement of s 1218AAA(1)(d) of the Act).
DECISION
On the basis of the evidence presented at the hearing of this matter and all the material before the Tribunal, the Tribunal is not satisfied that the Applicant meets the legislative requirements for indefinite portability of her DSP.
Accordingly, the decision under review is affirmed.

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

...(Sgd) T Freeman.............
Associate
Dated 22 June 2015

Date of hearing

Applicant

11 May 2015

In Person

Representative for the Respondent Solene Yik Long

Solicitors for the Respondent Australian Government Solicitor

[2015] AATA 446

22 June 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0108
Re	The Applicant 0108 of 2014
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Members Dr Christopher Kendall and Dr William Isles
Date	22 June 2015
Place	Perth