Vasta and Secretary, Department of Social Services (Social services second review) - [2020] AATA 423

Vasta and Secretary, Department of Social Services (Social services second review) [2020] AATA 423 (5 March 2020)
Division:GENERAL DIVISION
File Number(s) 2019/0156
Re:Michael VASTA
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:The Hon. S Parry, Member
Date:5 March 2020
Place:Hobart

The decision under review is affirmed.
........................[sgd].........................................
The Hon. S Parry, Member
SOCIAL SECURITY – disability support pension – qualification at date of claim – qualification period – whether the applicant met the residency requirements – social security international agreements – whether the applicant had a physical or psychiatric impairment – impairment rating – decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Cases
Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Materek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2003] FMCA 14
Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470
Tamua and Secretary, Department of Social Services [2016] AATA 757
Secondary Materials
Social Security Guide
REASONS FOR DECISION
The Hon. S Parry, Member
5 March 2020
DECISION UNDER REVIEW

The decision under review is a decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 21 December 2018. In that decision, the AAT1 affirmed the decision of the Department of Social Services (the Department) to reject the claim for disability support pension (DSP) lodged by the Applicant on 7 November 2017.
A hearing was conducted on Friday 19 July, 2019 with the Applicant appearing by telephone.
The hearing was conducted at a time that was conducive to all parties because of the international time differences.
Difficulty was experienced during the hearing with the telephone connection dropping out on many occasions. The Applicant asserted that the call he was receiving was from Greece. Assurances were made several times that the call was in fact from Australia.
ISSUES
The issue to be decided in this matter is whether the Applicant satisfied the qualification criteria for DSP at the date he made his claim (7 November 2017), or within 13 weeks thereafter (the qualification period).
This requires consideration of whether the Applicant satisfied the residency requirements at section 29 of the Social Security (Administration) Act 1999 (the Administration Act) and section 94(1)(ea) of the Social Security Act 1991 (the Act), or was otherwise entitled to DSP pursuant to Schedule 2 of the Social Security (International Agreements) Act 1999.
Government policy set out in the Guide to Social Security Law (the Guide) is also relevant, and should be applied in the absence of cogent reasons to not follow such policy (Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634 at 645).
The Respondent contended that the Tribunal must also consider whether the Applicant satisfied the criteria set out in sections 94(1)(a) and (b) of the Act during the qualification period, in particular, whether:
(a)the Applicant had a physical, intellectual or psychiatric impairment(s); and if so
(b)whether the Applicant’s impairment(s) attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
FACTS
The following facts are taken from the Respondent’s Statement of Facts, Issues and Contentions and are not in dispute.
The Applicant was born in Sydney, Australia in 1973.
The Applicant moved to Italy on in February 2013.
On 7 November 2017, the Department received a claim for DSP from the Applicant.
On 5 May 2018, the Health Professional Advisory Unit (HPAU) considered the Applicant’s DSP claim and found that he had a mental health condition of Borderline Personality Disorder with Anxiety and Depression. The HPAU found this condition to be fully diagnosed, treated and stabilised. In the opinion of the HPAU assessor, the Applicant’s condition attracted an impairment rating of 10 points under Table 5 of the Impairment Tables.
On 11 May 2018, a decision was made to reject the Applicant’s DSP claim.
By an application dated 12 May 2018, the Applicant requested a review of the decision to reject his DSP claim.
On 17 August 2018, a further HPAU opinion was produced, which again found that the Applicant’s mental health condition attracted an impairment rating of 10 points under Table 5 of the Impairment Tables. The HPAU assessor found that the additional evidence provided by the Applicant did not confirm that the Applicant had an intellectual disability.
On 27 August 2018, the original decision to reject the Applicant’s claim for DSP was affirmed by an Authorised Review Officer.
On 21 December 2018, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP. The AAT1 assigned a total rating of 20 points for the Applicant’s impairment under Table 5, however it found that the Applicant did not satisfy the requirement of having a continuing inability to work.
On 27 December 2018, the Applicant applied to this Tribunal for review of the AAT1 decision.
CONTENTIONS
Qualification Period
The Tribunal notes that the extensive contentions of the Respondent regarding the Italian Agreement were not contested. For clarity and convenience, the Tribunal has repeated these contentions (from Paragraph 20 through to Paragraph 99 of these reasons) with minor amendments.
Schedule 2, Part 2, Clause 4 of the Administration Act provides as follows:
4 (1) If:
(a)A person (other than a detained person) makes a claim for a relevant social security payment; and
(b)The person is not, on the day on which the claim is made, qualified for the payment; and
(c)Assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)The person becomes so qualified within that period;
The claim is taken to be made on the first day on which the person is qualified for the social security payment.
It follows that the Applicant’s claim for DSP must be assessed based on his medical conditions as at the date of claim or within 13 weeks of that time (the qualification period): (Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 (17 August 2009), at [7] to [8]).
The Applicant’s claim for DSP was submitted on 7 November 2017. Accordingly, the Respondent contended that the qualification period is from 7 November 2017 to 6 February 2018.
In Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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.
Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following pertinent observations:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition/s during the qualification period.
Residential Requirements
Residential requirements for DSP under the Act
Section 29 of the Administration Act sets out residence requirements regarding a claim for social security;
2Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a)is an Australian resident; and
(b)is in Australia.
3Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
Specifically, in relation to residential qualification for DSP, subsubsection 94(1) of the Act provides as follows:
94. Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(ea) one of the following applies:
(i) the person is an Australian resident;
…
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Section 7(2) of the Act further provides that an Australian resident is a person who:
(a)
resides in Australia; and

(b)
is one of the following:

(i)
an Australian citizen;

(ii)
the holder of a permanent visa;

(iii)
a special category visa holder who is protected a SCV holder.
As the Applicant has resided in Italy since 26 February 2013 (T43, 276), at no stage during the qualification period was the Applicant residing in Australia.
Therefore, the Respondent contended and the Tribunal agrees, that the Applicant does not satisfy the residential requirements set out in section 29 of the Administration Act and s 94(1)(ea) of the Act.
Residential requirements for DSP under the Italian Agreement
Although the Applicant does not satisfy the residential requirements in section 29 of the Administration Act and s 94(1)(ea) of the Act in relation to his DSP claim, as an Italian resident consideration needs to be given as to whether he qualifies for DSP under the Italian Agreement.
On 23 April 1986, Australia and Italy entered into a social security agreement – Agreement on Social Security Between Australia and the Republic of Italy (the Italian Agreement).
In terms of the interplay between the Act and the Italian Agreement, s 6 of the Social Security (International Agreements Act) 1999 provides that the provisions of a scheduled international social security agreement have effect despite anything in the social security law, only insofar as the provision is in force and affects the operation of social security law.
Specifically sections 6(1) and (2) of the International Agreements Act relevantly provide:
1The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
2 Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.
Article 1(b) of the Italian Agreement provides:
Australian resident means an Australian resident as defined in the legislation of Australia
Article 2 of the Italian Agreement provides:
Subject to paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any laws that subsequently amend, supplement or replace them:
(a)in relation to Australia: the Social Security Act 1991 in so far as the Act provides for, applies to or affects the following benefits:
…
(ii) disability support pension
…
Article 3 of the Italian Agreement provides:
This Agreement shall apply to any person who:
(a)is or has been an Australian resident
Article 5 of the Italian Agreement further provides:
Subject to paragraph 2, where a person would be qualified for a benefit under the legislation of Australia or under this Agreement except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:
(a)is an Australian resident or residing in the territory of Italy or of a third country with which Australia has implemented an agreement that includes provision for co‑operation in the lodgement and determination of claims for benefits, and
(b)is in Australia, the territory of Italy or the territory of that third country,
that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purpose of lodging that claim, to be an Australian resident and in Australia.
The Italian Agreement therefore permits the Applicant to lodge a claim for DSP despite residing in Italy.
The Respondent accepted that the Applicant was an Australian resident from the date of his birth, 26 October 1973, until he moved to Italy on 26 February 2013 (T43, 276).
Therefore, the main issue in determining whether the Applicant can successfully satisfy the requirements for DSP under the Italian Agreement is whether he is ‘severely disabled’.
The meaning of Severely Disabled – ‘totally unable to work’
For the purposes of being granted DSP under the Italian Agreement, the Applicant must be able to demonstrate that he is ‘severely disabled’ under the legislation of Australia. .This is outlined in Article 1(f) of the Italian Agreement as follows:
Disability support pension – means, in relation to Australia, the payment made under the legislation of Australia to people who are considered to be severely disabled under that legislation
(a)
The definition of ‘severely disabled’ is contained section 23(4B) of the Act : a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 of all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i)
to work for at least the next 2 years; and

(ii)
unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b)
the person is permanently blind.
The phrase ‘totally unable to work’ in section 23(4B) of the Act is not expressly defined.
One may be tempted to conclude that the definition of ‘work’ in section 94(5) of the Act means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia.
However, if the definition of ‘work’ in section 94(5) of the Act were applied, it would remove the object or meaning from “severely disabled”, and the phrase “totally unable to work”. This is because the work capacity test for a severely disabled person would be no different to that which applied for disability support pension applicants who are not severely disabled.
The Respondent noted the definition of ‘severely disabled’ in subsection 23(4B) of the Act originally applied to assess whether a person qualified for the now defunct ‘special needs disability support pension’ in section 773 of the Act. A ‘special needs disability support pension’ was available as a separate and distinct type of disability support pension until 20 September 2000 for those who had not resided in Australia at any time after 7 May 1973, were first severely disabled when in Australia or temporarily absent and were considered by the Secretary to be in special need of financial assistance.
Guidance on the definition of ‘severely disabled’ may be taken from cases dealing with the Social Security Agreement between Australia and New Zealand (the New Zealand Agreement). This is because the definition of ‘severely disabled’ in the New Zealand Agreement mirrors the definition in subsection 23(4B) of the Act.
As with the New Zealand Agreement, an Applicant for DSP under the Italian Agreement must be able to demonstrate that they are severely disabled. Under the New Zealand Agreement – as under section 23(4B) of the Act – ‘severely disabled’ only extends to those who are ‘totally unable to work’.
As under the New Zealand Agreement, there is no guidance given in the Act as to what number of hours of work, if any, qualifies as ‘totally’ unable to work.
The Social Security Guide (at Instruction 1.1.S.110) states that:
A [DSP] recipient is accepted as being severely disabled if their impairment prevents them from:
- doing any work for 8 hours a week or more for the next 2 years, and
- benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week.
This interpretation as set out in the Guide has not, however, been followed by the Tribunal.
Member Wulf in Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470 interpreted ‘totally unable to work’ as follows (at [19]–[20], [23]–[24]):
… Article 1, para 1(l) of the New Zealand Agreement defines severe disablement as being a physical impairment that will render him “totally unable” to work for a period of at least the next two years and also prevent him benefiting from participation in an assistance or rehabilitation program. While Mr Mohamed may have a physical impairment, to meet the requirements of that paragraph he must also be “totally unable” to work for the next two years.
Neither the International Agreement nor the New Zealand Agreement defines “work”. However, Article 1, para 2 states that terms not defined are to be interpreted according to the social security law of the relevant country. Section 94(5) of the Act relevantly defines “work” to mean work of at least 15 hours per week at or above the minimum wage for that type of work.
…
The definition of severely disabled in Article 1, para 2 is qualified in that the person must be “totally” unable to work. There is no guidance given in either the Act or the International Agreement as to what number of hours of work, if any, qualifies as “totally” unable. The Macquarie Dictionary (4th edn.) defines “totally” to mean “wholly; entirely; completely”. It is therefore reasonable to suggest that “totally” unable to work would mean the Applicant could not work at all; whereas Ms Myers indicates that Mr Mohamed could work seven hours a week in the first year.
I am satisfied that Mr Mohamed cannot be considered to be severely disabled and, therefore, he cannot qualify as an Australian resident under the International Agreement with New Zealand for the purposes of DSP. It follows then that he cannot qualify for DSP under the Act.

Similarly, in the decision of Tamua and Secretary, Department of Social Services [2016] AATA 757, Deputy President Alpins noted the following at [35]:
As a general matter, it is appropriate for the Tribunal to have regard to the policy expressed in the Guide in reviewing the respondent’s decisions; however, the Tribunal is not bound by it, as the law lies in the statutory text rather than in the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J). In my view, the definition of “severely disabled” expressed in the Guide is inconsistent with the definition of “severely disabled” in Article 1(1)(l)(i) upon its proper construction and accordingly should not be followed (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J; cf. Materek v DFACS [2003] FMCA 14)).
The Respondent contended that McInnis FM in Materek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2003] FMCA 14, noted the Tribunal’s attempt to combine both the definition of ‘severely disabled’ and the policy that imposes an inability to work 8 hours or more per week in order to give effect to a workable definition of ‘severely disabled’ in a beneficial jurisdiction. Notwithstanding, McInnins FM correctly observed:
17. It is clear from the reading of that section that the legislation does not in fact define what is meant by "severely disabled" in the manner described by the tribunal; that is, the legislation does not define "severely disabled" as being "unable to work for the next two years up to eight hours per week". (emphasis added)…
20. … Ironically, if one were to strictly interpret the legislative provision to which I have referred, then the suggestion of an inability to work for up to 8 hours per week would not be relevant given that the section specifically refers to a person being severely disabled if that person totally unable to work…
The Respondent submitted and the Tribunal agrees that, in the absence of a statutory definition, the phrase ‘totally unable to work’ in section 23(4B) of the Act must be given its plain and ordinary meaning; and therefore requires that a person must be totally unable, due to their impairment(s), from doing any work in the next two years and from benefitting from training, education or rehabilitation.
Was the Applicant ‘severely disabled’?
The Respondent contended that the Applicant is not ‘totally unable to work’, but that the Applicant was able to work more than 8 or 15 hours per week within the next 2 years at the time of his DSP claim. The Respondent further contended the Applicant cannot rely on the Italian Agreement to satisfy the residence requirement, because he cannot be considered ‘severely disabled’ in order for the Italian Agreement to apply.
The Secretary relied on the report of Dr Federico Fortugno dated 5 October 2017, which was submitted with the Applicant’s DSP claim. In that report, Dr Fortugno stated that the Applicant has a work capacity of 15–29 hours per week, without any intervention programs, currently and over and beyond the next 24 months (T9, 189). Dr Fortugno also assessed the Applicant to have a work capacity with intervention of 15–29 hours per week currently and within six months, and a work capacity with intervention of more than 30 hours per week within 6–24 months and in the period of more than 24 months (T9, 190).
This is the medical report most contemporaneous to the qualification period, and the doctor provided an explanation of his work capacity assessment. Specifically, Dr Fortugno noted that suitable work for the Applicant would include structured work in a quiet environment (noting that the Applicant had previous experience in an office job), and that the Applicant could undertake tasks that are easily divided into small parts if appropriate training is provided.
The Applicant disputed Dr Fortugno’s conclusion explained above (T37, 247–248) and sought to rely on the subsequent report of Dr Fortugno dated 4 October 2018 (a translation was provided at T36, 246). The translation of the report states as follows with respect to the Applicant’s work capacity:
No working experience of any kind is referred from the time he transferred to Italy. Currently he does not feel capable of sustaining a working commitment of more than 10 hours per week. We highlight objective relational difficulties that have a role in such limitation and that are part of the basic disorder. The cognitive function could be affected by humoral alterations and by the anxiety component.
As the AAT1 noted, while this report recounts the Applicant’s own opinion of his work capacity, it does not demonstrate that Dr Fortugno adopts or confirms that view. In any event, this report substantially post-dates the qualification period, and does not appear to relate to the qualification period (noting that the doctor expressly states that the Applicant’s condition has shown a resistance to treatment, a persistent humoral instability and a worsening of his relational difficulties, and states that this certificate should be ‘taken as an update of the previous ones, given the clinical evolution observed’).
The Respondent contended that the above report does not demonstrate that Dr Fortugno assessed the Applicant to have a work capacity of no more than 10 hours per week at the qualification period, or at all. However, the Respondent noted that even if it did, this would not, in any event, satisfy the Tribunal that the Applicant would be ‘totally unable to work’ for at least the next two years at the qualification period.
The Respondent also noted the content of a further translated report by Dr Fabio Parigi, psychologist, provided by the Applicant in the course of the Tribunal proceeding, dated 24 January 2019. That report addressed the Applicant’s work capacity following him undertaking a WAIS-R Scale Intelligence test on 27 September 2018. It concluded that, ‘…keeping in mind the diagnosis by Dr Fortugno, specialist psychiatrist (report 04-10-2018) and the cognitive results, work activity in a protected environment, not above 10-12 hours per week, can be considered’.
Respondent noted that this report is provided substantially after the qualification period, and takes into account an additional condition that had not been identified or assessed at all as at the qualification period. The report also suggested that the Applicant had, at the time of the report, a work capacity of 10-12 hours per week. This demonstrates that the Applicant was not ‘totally unable to work’.
On this basis, the Respondent contended that the Applicant cannot qualify for DSP under the Italian Agreement, and that if the Tribunal were to agree, it must affirm the decision under review.
Qualification criteria for Disability Support Pension
Having regard to the above, the Respondent contended that it is strictly unnecessary to consider the remaining qualification criteria for DSP. However, for completeness, the Tribunal will consider whether Applicant satisfies ss 94(1)(a) and (b) of the Act.
The relevant qualification criteria for DSP is set out in s 94(1)(a), (b) and (c) of the Act as follows:
94. Qualification for disability support pension–continuing inability to work
(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
In considering this, the Respondent contended that the requirement of the Applicant to be ‘severely disabled’ in relation to the Italian Agreement covers the same subject matter as s 94(1)(c) of the Act, but applies a stricter test of being totally unable to work. Therefore, in accordance with section 6 of the International Agreement Act, the provision in the Italian Agreement requiring the Applicant to be ‘severely disabled’ takes effect over the requirement to have a ‘continuing inability to work’ as found in s 94(1)(c) of the Act.
Section 94(1)(b) of the Act – Impairment rating of 20 points or more
The respondent accepted that the Applicant had a psychiatric impairment during the qualification period, and therefore that he satisfies s 94(1)(a) of the Act. However, the Respondent contended that these impairments do not attract an impairment rating of 20 points or more under the Impairment Tables. As such, the Respondent contended that the Applicant did not meet the criterion set out in s 94(1)(b) of the Act.
Application of the Impairment Tables
Section 94(1)(b) of the Act requires a person’s impairments to attract 20 points or more under the Impairment Tables, which are applied per s 27 of the Act. Section 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
The Impairment Tables are used to assess impairments affecting different body functions and the rules for their application. The tables are function based rather than diagnosis based. They describe functional activities, abilities, symptoms and limitations with impairment ratings assigned to impairments, not to medical conditions.
The Impairment Tables provide that a person’s impairment is to be assessed on the basis of what the person can, or could do, rather than on the basis of what the person chooses to do or what others do for the person. This is outlined in paragraph 6(1) of the Impairment Tables.
Paragraph 6(3) of the Impairment Tables provides that an impairment rating can only be assigned if a condition causing that impairment is ‘permanent’ and likely to persist for more than two years. ‘Permanent condition’ is defined, at subsection 6(4) of the Impairment Tables, to mean a condition that is fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised and likely to persist for more than 2 years
When determining whether a condition is fully diagnosed and treated, subsection 6(5) of the Impairment Tables requires the Tribunal to consider the following:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next 2 years.
Paragraph 6(6) of the Impairment Tables provides that a condition is fully stabilised if:
(d)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 two years; or
(e)the person has not undertaken reasonable treatment for the condition and either:
(i)significant functional improvement to a level enabling the person to undertake work in the next two 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.
‘Reasonable treatment’ is defined at Paragraph 6(7) of the Impairment Tables to mean treatment that:
(a)is available at a location reasonably accessible to the person,
(b)is at a reasonable cost,
(c)can reliably be expected to result in a substantial improvement in functional capacity,
(d)is regularly undertaken or performed,
(e)has a high success rate, and
(f)carries a low risk to the person.
If a condition is found to be permanent, paragraph 8(1) of the Impairment Tables provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Finally, paragraph 11(1)(c) of the Impairment Tables provides that if an impairment falls between two impairment ratings, the lower rating is to be assigned and the higher rating must not be assigned unless all the required descriptors for that level of impairment are satisfied.
Mental health condition
The Applicant was diagnosed with Depression and Anxiety in Australia by Dr Carter in late 2012 (T6, 165; T7, 166). At that stage, Dr Carter stated that the conditions were temporary, with a date of onset of April 2012, and that the Applicant’s symptoms were likely to show improvement in the next two years.
Following his move to Italy, the Applicant engaged with Dr Federico Fortugno, Specialist in Psychiatry. In the medical report portion of the Applicant’s DSP claim form, Dr Fortugno confirmed that the Applicant had commenced engaging with him on 22 February 2017, and that he had attended a number of consultations in 2017 (T9, 173). Dr Fortugno diagnosed the Applicant with Borderline Personality Disorder with Anxiety and Depression (see T15, 202), and stated that he had chronic difficulties with the possibility of good achievements (T9, 175). The Applicant had undertaken pharmacological treatment, as well as other support (medical reviews and occupational therapist input) (T9, 176). Dr Fortugno noted that the Applicant had also reported several different treatments, including pharmacological and psychological intervention, while he was in Australia (T9, 176).
An assessment was undertaken by an HPAU officer on 5 May 2018, which found that the Applicant’s mental health condition was fully diagnosed, treated and stabilised at the qualification period (T15, 202–204). The respondent and the Tribunal accept this conclusion.
With respect to functional impairment, Dr Fortugno noted that the Applicant had no difficulties with self-care and independent living, or with social/recreational activities and travel (T9, 178). Dr Fortugno reported the following functional impact of the condition (T9, 179):
Interpersonal relationships – difficulties in maintaining relationships;
Concentration and task completion – needs prompts and strategies to maintain attention;
Behaviour, planning and decision-making – significant difficulties in planning and decision-making; and
Work, education or training activities – the Applicant would benefit from support, and doing specific tasks and an overall work environment would offer a good option for symptom management if in positive conditions.
The HPAU report of 5 May 2018 found that, based on Dr Fortugno’s report, the Applicant’s mental health condition attracted 10 points under Table 5 of the Impairment Tables. This was on the basis that the evidence established that the Applicant satisfied four of the six descriptors of a ‘moderate’ impairment rating. The Respondent agreed with this conclusion.
The Respondent noted the AAT1’s finding that the Applicant’s mental health condition attracted an impairment rating of 20 points under Table 5, on the basis that he experiences a severe functional impairment in relation to most of the activities under the descriptors for a ‘severe’ impairment. The Respondent also noted a further report of Dr Fortugno dated 12 April 2019 that was provided in the course of the Tribunal proceeding, which recommends that the Applicant has a severe impairment with respect to descriptors (c), (d), (e) and (f) of Table 5. However, the Respondent noted that this report substantially postdates the qualification period, and takes into account an additional ‘diagnosis of attention deficit and hyperactivity disorder … in the context of mild cognitive difficulties’. Therefore, the Respondent contended that this does not provide an accurate picture of the Applicant’s impairment arising from his mental health condition at the qualification period.
The Respondent contended that the evidence available should not satisfy the Tribunal that the Applicant should attract a 20 point rating. That is because there is insufficient corroborative evidence that the Applicant had severe difficulties with descriptors (a) (self-care and independent living), (b) (social/recreational activities and travel), (d) (concentration and task completion) and (f) (work/training capacity) to attract a 20 point rating under Table 5 at the qualification period.
The Tribunal notes the above reasons and agrees with the Respondent’s contention that the Applicant’s mental health condition attracts an impairment rating of no more than 10 points under Table 5.
Intellectual function
Following the initial rejection of his DSP claim, the Applicant provided the Department with a report from Dr Fabio Parigi, Psychologist, dated 5 July 2018 (a translation was provided at T22, 218–219). This report stated that the Applicant had undergone the Raven 38 test and WAIS-R memory subtest. The Applicant was reported to have received a score on the Raven 38 test that placed him lower than the fifth percentile, and the report noted that it ‘can be assumed that Mr Vasta has an intellectual disability, with evident difficulty regarding attention and concentration’. On the WAIS-R memory subtest, the Applicant was assessed to have a raw score of 9 points, giving a score of 6 points when adjusted for age, which is ‘significantly lower than average’.
Following receipt of this report, the HPAU officer undertook a further review on 17 August 2018 (T25, 223–225). The HPAU officer noted that no diagnosis had been made confirming that the Applicant has an intellectual disability, and noted that memory and concentration are often affected by both symptoms of mental health conditions and associated treating regimen. The HPAU officer concluded that the report of Dr Parigi did not confirm that the Applicant has an intellectual disability, and that an impairment rating could therefore not be assigned.
The Applicant subsequently provided a further report from Dr Fortugno, dated 19 August 2018 (a translation of which was provided at T26, 226). That report stated that the Applicant ‘has a long psychiatric history consistent with a diagnosis of attention deficit disorder and borderline personality disorder’. It is noted that Dr Fortugno had earlier made reference to the Applicant having a ‘long psychiatric history consistent with an attention disorder and a personality disorder with borderline aspects’ in his report of 23 October 2017 (T12, 198).
The Applicant has provided a further letter from Dr Fabio Parigi dated 26 September 2018 (T34, 241). In that report, Dr Parigi stated that the Applicant’s result on the WAIS-R intelligence test was a score of ‘24 (equivalent to an IQ of 68) and a performance result of 18 (IQ of 68). Total is 42 (with IQ of 67)’. That report further noted that the oral subtests for information were low, ‘suggesting cultural deprivation due to a different cultural and linguistic environment, and also low for arithmetic reasoning suggesting numerical literacy problems dating from school’. The report summarised the Applicant to have ‘slight mental retardation partly due to anxiety and attention factors’.
The Applicant has provided additional documents to the Tribunal in this proceeding, being a report of Dr Fortugno dated 12 April 2019, and a report of Dr Parigi dated 24 January 2019. The report of Dr Parigi refers to testing undertaken on 27 September 2018 (which the Respondent confirmed should read 26 September 2018), and notes that the Applicant had undertaken a WAIS-R test. The report states that the result of the WAIS-R was ‘deficient’, and that it ‘confirms that [the Applicant], who according to medical history was already affected during school age (under 18 years of age), had learning problems probably due to Attention Hyperactivity Disorder (ADHD) evident before 12 years of age’, and that he had ‘evident and permanent cognitive limitations’. Accordingly, Dr Parigi recommended that the Applicant could be considered for work activity in a protected environment for not above 10-12 hours per week.
The subsequent report of Dr Fortugno, dated 14 April 2019, refers to the Applicant’s clinical presentation, and confirms a diagnosis of a ‘combination of mood disorder and personality disorder … with previous diagnosis of attention deficit and hyperactivity disorder in the context of mild cognitive difficulties’.

In summary, it is apparent that the Applicant has undergone some testing of his intellectual function after the qualification period. The Introduction to Table 9 of the Impairment Tables, which deals with intellectual function, states that this Table ‘is to be used where the person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment, which originated before the person turned 18 years of age’ (emphasis added). The Introduction further states that ‘[a]n assessment of intellectual function is to be undertaken in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment’.
There is no evidence in this case that the Applicant had been diagnosed with a condition resulting in low intellectual function specifically before the age of 18. The earliest assessment of intellectual function in the material before the Tribunal is the report of Dr Parigi dated 5 July 2018, which noted ‘low cognitive ability and serious limitations in memory capacity’. It is noted that the report of Dr Parigi dated 24 January 2019 refers to the Applicant having learning problems, probably due to ADHD, evident before 12 years of age. The original reports on which this opinion is based were not been provided. In any event, an ADHD condition is distinct from the purported ‘mental retardation’ in Dr Parigi’s report of 26 September 2018
Further, the evidence suggests that the Applicant’s intellectual functioning at the time of the assessments is affected by his mental health conditions. This is confirmed by Dr Fortugno’s report of 4 October 2018, which states that the Applicant had been assessed ‘from a neuro cognitive point of view, with result to follow later’, and that ‘[w]e highlight a performance characterised by a slight delay conditioned in part by anxiety and depression’. Dr Fortugno went on to state that the ‘depression symptoms seem to have an impact on his cognitive function’, and that ‘[t]he cognitive function could be affected by humoral alterations and by the anxiety component’.
In sum, the Respondent submitted that there is insufficient evidence to find that the Applicant had an intellectual disability that was fully diagnosed, treated and stabilised at the qualification period. There is no evidence of a diagnosis of a specific intellectual disability predating the qualification period. The evidence regarding the diagnosis of ADHD is scant, and in any event such a condition does not appear to account for the Applicant’s apparent intellectual difficulties.
Further, the Respondent submitted that the Applicant’s intellectual function is, on the evidence before the Tribunal, impacted by his mental health condition. Accordingly, his intellectual function is not clearly referrable to an intellectual impairment specifically, but difficulties in cognitive function are impacted by other factors. The Respondent contended that the Applicant’s intellectual function condition was not fully treated and stabilised at the qualification period and therefore the condition could not attract any impairment rating.
The Respondent noted that the additional evidence regarding the Applicant’s intellectual function, including that which had not been before either the Department or the AAT1, had been referred to the HPAU for the purpose of preparing an updated report in relation to the Applicant’s intellectual function.
CONCLUSION
The Tribunal finds that as the Applicant is not totally unable to work in the next two years, he is not “severely disabled” within the meaning of the Act, and for the purposes of the Italian Agreement. The Applicant is therefore unable to qualify for DSP under the Italian Agreement, for the purpose of satisfying the residence requirement.
The Tribunal finds that the Applicant’s impairments do not attract the required DSP impairment threshold of 20 points under the Impairment Tables. As such the Applicant does not satisfy s 94(1)(b) of the Act, and cannot qualify for DSP. Accordingly, the decision to reject his DSP claim is upheld.
I affirm the decision under review

I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of The Hon. S Parry, Member

..........................[sgd]...........................
Associate
Dated: 5 March 2020

Date(s) of hearing: 19 July 2019

Applicant:
By telephone

Solicitor for the Respondent: Liam Dennis

Date(s) of hearing:	19 July 2019
Applicant:	By telephone
Solicitor for the Respondent:	Liam Dennis