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

Thomas and Secretary, Department of Social Services (Social services second review) [2018] AATA 459 (28 February 2018)
Division:GENERAL DIVISION
File Number: 2017/1284
Re:Danny Thomas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:28 February 2018
Date of written reasons: 9 March 2018
Place:Brisbane

The decision under review is affirmed.
....................[sgd]....................................................
Senior Member Theodore Tavoularis
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised – relevant period – whether Applicant had 20 or more impairment points – diabetes – hypertension – chronic kidney disease – high cholesterol and obesity – obstructive sleep apnoea – gout – where Applicant’s conditions only attract 10 impairment points – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42; Schedule 2, Part 2, cl 3, 4
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
The Guide to Social Security Law
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 March 2018
INTRODUCTION: HISTORY OF THE MATTER

On 18 August 2016, Mr Danny Thomas (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) relating to three core issues: lower back pain, listing his medical conditions as “diabetes type II, heart disease, kidney disease chronic, high blood pressure, asthma, headaches and blood noses since insertion of pacemaker, swelling and numbness of feet, diziness [sic]”.[1]
[1] Exhibit 4, T Documents, T 37 p 140.
The issue before the Tribunal is whether the Applicant qualified for the DSP at the date of his claim, 18 August 2016, or within 13 weeks thereafter, that being up until 17 November 2016.
The Department of Human Services (“the Department”) rejected the Applicant’s claim on 6 September 2016, relying on a report from a Job Capacity Assessor (“JCA”) dated 5 September 2016. In this JCA report, the Applicant’s conditions were assessed as follows:
(a)Severe hypertension with coronary artery disease
(i)Condition is verified by medical evidence and fully diagnosed, treated and stabilised. It was found that this condition may continue to impact on functioning for more than 24 months.
(ii)There was found to be a mild functional impact on activities requiring stamina from this condition. The JCA recommended that 5 impairment points be given for this condition under Table 1: Functions requiring Physical Exertion and Stamina.
(b)Chronic kidney disease
(i)The treatment of this condition is unclear. However, due to its deteriorating nature, it is reasonable to consider the condition fully diagnosed, treated and stabilised. No points were awarded for this condition under Table 1.
(c)Diabetes – non-insulin dependent
(i)This condition was considered fully diagnosed, treated and stabilised as the Applicant was at the time participating in reasonable treatment. No points were awarded for this condition under Table 1.
(d)Morbid obesity
(i)While this condition was fully diagnosed, it was not considered fully treated or stabilised as there was insufficient evidence as to what treatment the Applicant participated in. Consequently, no impairment points could be awarded for this condition.
(e)Gout
(i)This condition was fully diagnosed, treated and stabilised, but was considered well-managed on medication. As this condition was well managed on medication, this was found to have no impact on the Applicant’s capacity to function. Thus, no points were awarded for this under Table 3 – Lower Limb Function.
The total impairment rating recommended by JCA for all reported conditions was 5 points.
Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as 15-22 hours per week with a predicted capacity of 15-22 hours per week within 2 years with intervention.
The Applicant subsequently requested a review of the Department’s decision to refuse him the DSP.
In a decision dated 24 October 2016, an Authorised Review Officer (“ARO”) affirmed the decision that was under review. The ARO made the following findings of fact:
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·You have the following permanent conditions: severe hypertension with coronary artery disease, kidney disorder, diabetes and gout.
·Your condition of obesity is not accepted as being permanent as it has not been fully treated and stabilised.
·Your total impairment rating is 5 points.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
Dissatisfied, the Applicant applied for review to the Social Services and Child Support Division of this Tribunal (“AAT1”).[2] AAT1 affirmed the ARO’s decision in a decision dated 9 February 2017.
[2] Exhibit 4, T Documents, T 43, p 162.
AAT1 considered the following conditions:
·Hypertrophic cardiomyopathy and hypertension;
·Chronic kidney disease;
·Diabetes;
·High cholesterol/metabolic syndrome and obesity;
·Obstructive sleep apnoea; and
·Gout.
AAT1 found that each of these conditions with the exception of gout could be assessed under Table 1. Looking at the totality of their effect on the Applicant, AAT1 determined that 10 points could be assigned for these conditions.
AAT1 considered the gout condition to be “well controlled, with only occasional symptoms”. Consequently, it could not assign any impairment points for this condition.
Overall, AAT1 found that the Applicant’s conditions only warranted a rating of 10 impairment points. Consequently, it affirmed the decision under review.
On 7 March 2017, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“this Tribunal”).[3]
[3] See Exhibit 4, T Documents, T 2, p 3.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 9 June 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[4] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 18 August 2016 and 17 November 2016 (“the Relevant Period”).
[4] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
(emphasis added)
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[5] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[6] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[7]
[5] See s 26(1) of the Act.
[6] See s 5(2) of the Determination.
[7] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[8] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[9]
[8] See s 6(3) of the Determination.
[9] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[10]
[10] See s 6(5) of the Determination.
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.[11]
[11] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[12]
[12] See s 6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[13]
[13] See s 11(1) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, treated and stabilised;
(b)whether the Applicant’s condition(s) warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy s 94(1)(b) or (c) of the Act.[14]
[14] See Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions (“SFIC”), [5.1].
I accept that the Applicant had an impairment(s) for the purpose of s 94(1)(a) of the Act. I propose to deal with the calculation of impairment points by reference to each of the Applicant’s various medical conditions.
Hypertrophic cardiomyopathy and hypertension – Table 1
The Respondent helpfully concedes that this condition was fully diagnosed, treated and stabilised during the Relevant Period. On the weight of the medical evidence available to me, this concession is appropriate and I accept that these conditions were fully diagnosed, treated and stabilised.
The further contention is that the relevant table for assessment of any impairment points is Table 1, which relates to functions requiring physical stamina and exertion.
I will deal with the allocation of impairment points to this condition when I talk about a combined impairment rating for the Applicant’s various conditions.
Chronic kidney disease – Table 1
The Respondent has conceded that this condition, too, was fully diagnosed, treated and stabilised. I accept this concession and find that this condition was also fully diagnosed, treated and stabilised. Once again, this condition is to be assessed under Table 1, and I will refer to it when I discuss a combined impairment rating below.
Diabetes – Table 1
This is an additional condition that the Respondent considers to have been fully diagnosed, treated and stabilised. I agree. My findings as to allocation of any impairment points for this condition will follow as part of my discussion about a combined impairment rating.
High cholesterol/metabolic syndrome and obesity – Table 1
While the Respondent has accepted that this condition was fully diagnosed, it has submitted that it was not fully treated and stabilised. Accordingly, the Respondent contends that no impairment rating can be awarded for this condition.
It is clear from the evidence that the Applicant’s obesity has never been the subject of a treatment regime, nor any other therapy for its stabilisation and ultimate control. There is evidence from Dr Chan’s report of 7 April 2016 that the Applicant is taking medication to control his cholesterol. This medication seems to be working when one has regard to his blood test results, which indicate the Applicant has a total cholesterol reading of 3.4 as against a Current Reference range of less than 5.5. I consider this to be well-managed.
But the obesity condition seems unresolved, and there is no medical evidence before the Tribunal as to what treatment is planned in the next two years for this condition. I cannot find any evidence telling the Tribunal whether any reasonable treatment was planned in the Qualification Period and the likelihood of that treatment or management plan improving the functional capacity of the Applicant, such that he could undertake work in the next two years.
Accordingly, I cannot find that the high cholesterol and obesity conditions have been fully treated and stabilised. While medication, predominantly blood thinners, is having a good effect on the Applicant’s cholesterol reading, there is no overall treatment or management plan for the treatment of both that cholesterol condition and the obesity condition. Consequently, no impairment points can be allocated to this condition.
Obstructive sleep apnoea – Table 1
This is another condition for which the Respondent accepts as being fully diagnosed during the Qualification Period. However, evidence received by the Tribunal today indicates that, for one reason or another, the condition has not been fully treated and stabilised.
To be fair to the Applicant, it would have been expensive for him to have achieved full treatment and stabilisation of the condition during the qualification period. He was advised to acquire and start using a continuous positive airway pressure machine – or CPAP machine – by his doctors. He has not purchased such a machine. Primarily, he says, because of its cost. He has also been advised to acquire some type of mouth guard device to control his sleep apnoea, but has not purchased this item either.
The absence of treatment for this condition has been noted by Dr Chan, who said on 7 April 2016 that the Applicant was not in receipt of any treatment for this condition.
While the Applicant told AAT1 that he had participated in a sleep study, there is no report before the Tribunal that could inform us about any full treatment or stabilisation of it during the qualification period.
There is, therefore, no corroborating evidence confirming the commencement or completion of treatment for this condition. Nor is there any report about the capacity of that treatment to improve the functional capacity of the Applicant to a level enabling him to undertake work in the next two years.
I thus agree with the Respondent that while his condition may have been identified and diagnosed, there is no evidence that it is permanent, nor is there any evidence about treatment and stabilisation. Accordingly, no impairment points can be allocated to it.
Combined impairment rating
Respondent has grouped together three conditions –the cardiomyopathy/hypertension, the chronic kidney disease and the diabetes –to give the combined effect of those conditions one impairment rating pursuant to Impairment Table 1.
In my view, this is the correct approach to take with these three conditions. This is because sub-section 10(5) of the Rules governing application of the impairment tables makes it clear that, when multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single table.
As mentioned, each of these three combined conditions has been fully diagnosed, treated and stabilised during the qualification period. The question now is to determine what level of impairment rating should be allocated to the combined effect of these conditions.
There is a deal of medical evidence supporting a finding that at least some level of impairment points should be allocated to these combined conditions.

In his report of 7 April 2016, Dr Chan told the Applicant that the:
Causes of [the Applicant’s] hypertrophic cardiomyopathy include familial, sporadic and poorly-controlled hypertension. Regardless of what the underlying cause of your hypertrophic cardiomyopathy is, you will need to be on long-term cardio follow-up and require good treatment of your blood pressure and diabetes. Currently, you are describing NYHA II functional status. However, you are probably aware that some of your symptoms are also contributed by other health issues.
In her report of 5 September 2016, the JCA considered that the combined effects of these conditions produced a mild functional impact on the Applicant’s activities requiring stamina. The JCA thought the Applicant experienced occasional symptoms when performing physically-damanding tasks and, as a result of these symptoms, he had occasional difficulty in performing physically active tasks, but was nevertheless able to perform light tasks. The JCA accepted Dr Chan’s observation that the Applicant had NYHA II functional status.
What is NYHA II functional status? It is described at Annexure A of the Respondent’s Statement of Facts, Issues and Contentions (Exhibit 3). NYHA II classes patient symptoms as “Slight limitation of physical activity. Comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea [shortness of breath].”
There is a patient discharge summary from the Royal Brisbane and Women’s Hospital, dated 7 March 2015. It confirms the Applicant was taking his numerous medications to control and manage the combined effect of his conditions. The medication he takes is quite voluminous. In the written material, the Applicant refers to being on something like 4,000 tablets a year. In his evidence today, he told the Tribunal that this number had gone up to something like 7,000 tablets a year. To his credit, the Applicant seems to be sticking to his regime of medication, extensive as it is.
The question now is what level of impairment rating does the combined effect of these Table 1 conditions achieve?
To be awarded 20 impairment points under Table 1, the Applicant must satisfy the following requirements:
1The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)    walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)    walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)    use public transport without assistance; or
(iv)   perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
I do not think the combined effect of these Table 1 conditions achieves 20 points. I listened to the Applicant’s evidence at the hearing, and it is clear that he can walk around – if required – a shopping centre or a car part without assistance. He did say his sister does much of his domestic shopping for him, but there seems little doubt from his evidence that he can, for example, drive his car to a destination, park it, get out from the car and do a task, and then get back in the car and drive home. The Applicant says he has not used public transport for 10 or 15 years, but this is not to say that the combined effect of these impairments prevents him from doing so. He told the Tribunal that he can do light activities around the house such as putting away the dishes or putting a shirt back into a cupboard.
His evidence was less clear about being able to sustain work-related tasks of a sedentary nature for at least 3 hours. I do not consider that he meets any of the (a) descriptors in this 20-point category and thus, technically at least, this descriptor in (b) does not need to be considered. However, although the Applicant’s evidence was that he could not sit idle and still for a continuous period of 3 hours, I have difficulty in accepting that even on the basis of being able to periodically move around or stand up, he would be completely incapable of performing a task for a 3-hour period.
Accordingly, I cannot find on the evidence any basis to conclude that this group of Table 1 impairments places the Applicant in the 20-point descriptor category.
To be awarded 10 impairment points under Table 1, the Applicant must satisfy the following requirements:
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).
It is clear from the Applicant’s evidence that, for the purposes of descriptor (a) above, he does experience frequent symptoms as a result of his various Table 1 impairments – even when he is doing day-to-day activities around his house. He is able to walk and reach a destination, but I think it is fair to say he cannot travel – by walking – “far outside” his home and clearly needs to drive to a given destination. While he can do light domestic duties, I also think he would have experienced (during the qualification period) some difficulty in performing his daily activities, such as changing the sheets on his bed or sweeping.
I also find – as per my comments above – that even though he has not been a frequent user of public transport, the Applicant does have the physical capacity to, if required, use public transport to get to, and walk around a given shopping centre. Further, again as per my comments above, even though he talks about some discomfort in sitting and doing a task for up to three hours, I nevertheless think he can make a meaningful contribution to a given workplace by performing clerical or sedentary tasks for up to a 3-hour period.
I am therefore of the view that the Applicant satisfies the 10-point descriptor regime and should thus be allocated 10 points for the combined impairment impact on his functional capacity from this group of conditions.
There is, therefore, no requirement to discuss the 5 point descriptors. While I note the comments of Dr Chan, the findings of the JCA and the provisions of NYHA II, I am of the view that those respective findings can have application to a finding of a 10 point impairment rating for the combined effect of these decisions. To my mind, NYHA II is consistent with a finding of both 5 points and 10 points under Table 1. While there might be perhaps more than slight limitation on the Applicant’s physical activity, it is clear that his management regime of his conditions nevertheless causes him to be sufficiently comfortable at rest.
Accordingly, I allocate 10 impairment points to the combined effect of these three conditions.
Gout – Table 3
The Respondent contends that this condition was fully diagnosed, treated and stabilised, but has a minimal impact on the Applicant’s ability to function and so warrants an impairment rating of 0 points. For the following reasons, I agree.
It is clear from the medical records and evidence that this condition, although real and genuine for the Applicant for a number of years, cannot be said to interfere with his capacity to get on with his life in a functional way.
Dr Dela Cruz in her medical certificate of 9 November 2011 thought the gout condition started in November 2011. That said, in his evidence today, the Applicant thought this condition had been part of his life for a deal longer than that. Dr De la Cruz thought the gout made the Applicant unfit for work or study for less than one week. There is no other evidence before the Tribunal of any functional impairment caused by the gout condition.
As well, in his oral evidence today, the Applicant frankly and honestly said his gout is being managed by medication he has been taking for some time now. This is confirmed in the discharge medication records of a pharmacist Brooke Myers, dated 7 March 2015. That report indicates the gout condition has been well-managed by medication.
To the Applicant’s credit, he is doing everything he can to properly manage any functional impact the gout condition may have on his capacity to get on with his life. For the purposes of this application, however, the reality is that while his gout has been fully diagnosed, treated and stabilised during the qualification period, it is not possible to identify and functional impairment and, therefore, no impairment points can be allocated to it.
Additional Conditions
The Applicant has, throughout the hearing, raised the prospects of certain other conditions which may warrant impairment ratings. These include tendonitis in one of his arms and in his toes, as well as osteoarthritis of his subjacent posterior subtalar joint and more generally of his feet and ankles.
The Respondent contends that what evidence exists regarding these conditions, contained in Exhibits 1 and 2, does not relate back to the Relevant Period, and thus that these conditions should not be awarded any impairment points.
I find this submission compelling. The reports contained in Exhibits 1 and 2 and which are relevant to these conditions all seem to be dated from 2017, and most are from July 2017 onwards. Additionally, they make no mention of the Applicant’s state during the Relevant Period, or the functional impact of these conditions on the Applicant. They also make no mention of any treatment recommended for the Applicant.
Consequently, I cannot find that these other conditions were fully diagnosed, treated or stabilised during the Relevant Period. No impairment points can be awarded for them.
Summary of Impairment Points
As I have already stated, the Applicant’s conditions only attract a rating of 10 points under Table 1. No points were awarded under any other table.
As the Applicant does not have a total of 20 or more impairment points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). He therefore does not qualify for DSP via this application.
Continuing Inability to Work?
Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.
An additional observation
The Applicant has failed to reach 20 points or more via this application. I note his conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent medical evidence. I note the Applicant has already filed a fresh application and has been waiting some months now for a response to that application.
As I sought to make clear to the Applicant today, no-one is suggesting there is nothing wrong with him. However, for the purposes of this application, involving as it does a qualifying period approaching almost two years ago, the medical evidence is simply not before the Tribunal for 20 impairment points to be found or allocated to any one or group of claimed conditions. This position may well change with some updated medical reports as part of a fresh application.
CONCLUSION
The Applicant does not qualify for DSP because his conditions cannot be assigned any impairment points during the Relevant Period.
Accordingly, the decision under review is affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.......................[sgd].................................................
Associate
Dated: 9 March 2018

Date of hearing: 28 February 2018

Applicant: In person

Advocate for the Respondent: Ms Ellen Curran

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 459

28 February 2018

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Statutory Interpretation

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Date of hearing:	28 February 2018
Applicant:	In person
Advocate for the Respondent:	Ms Ellen Curran
Solicitors for the Respondent:	Sparke Helmore