Vermeulen and Secretary, Department of Social Services (Social services second review) - [2022] AATA 1367

Vermeulen and Secretary, Department of Social Services (Social services second review) [2022] AATA 1367 (26 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1247
Re:Arnoldus Vermeulen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Dr C Huntly
Date:26 May 2022
Place:Perth

The Reviewable Decision, being the AAT1 Decision dated 16 February 2021, is set aside and substituted with the decision that the Applicant satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
.................[Sgd].......................................................
Member Dr C Huntly
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s conditions
are fully diagnosed, fully treated and fully stabilised – application of impairment tables– bipolar disorder – acquired brain injury – mental health condition – sleep apnoea – spinal disorder – whether applicant has continuing inability to work – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) – s 94
Social Security (Administration) Act 1999 (Cth) – Sch 2 cl 4(1)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(2), 7(3)-(5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 6, 6(1), 6(3), 6(4)-6(7), 6(8), 8(1), 8(2), 10(1)
CASES
Gallacher v Secretary, Dept of Social Services [2015] FCA 1123
Kumar v Secretary of Social Services [2017] FCA 158
Li v Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Secretary, Department of Family and Community Services v Michael (2001) 116 FCA 1811
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560
SECONDARY MATERIALS
Department of Social Services, ‘Guides to Social Policy Law’ Social Security Guide (online guide version 1.281, 9 August 2021) chapters 3.6.2, 3.6.3 < FOR DECISION
Member Dr C Huntly
26 May 2022
INTRODUCTION

Mr Arnoldus Vermeulen (Applicant) is seeking a second-tier review of the decision made by a delegate of the Secretary of the Department of Social Services (Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (Act). Services Australia is the service provider for the Department of Human Services.
Mr Vermeulen lodged a claim for DSP on 16 September 2019. On 10 December 2019 an employee of Services Australia (Agency) decided that Mr Vermeulen was not entitled to a DSP as he did not meet the requirements of the Act (the original decision). On 11 June 2020, an Authorised Review Officer (ARO) of the Agency affirmed the original decision. Mr Vermeulen sought review of the ARO’s decision in the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the original decision on 30 January 2019 (AAT1 Decision). Mr Vermeulen then made an application for second-tier review.
The application was heard in person on 7 October 2021. Mr Vermeulen was self-represented and the Respondent was represented at the hearing by Ms Jones-Bolla of Sparke Helmore Lawyers. The Applicant gave evidence under affirmation and was cross-examined by the Respondent’s representative.
FACTS
The Applicant was born in January 1957 and is presently 65 years old.
On 16 September 2019, the Applicant lodged a claim for DSP with Services Australia with reference to bipolar disorder, severe whiplash injuries, spinal injuries (lower back, mid thoracic and cervical), tinnitus, heel spurs, plantaris fasciitis and urology issues.[1]
[1]T67 p 327.
On 3 December 2019, a Job Capacity Assessment (JCA) was conducted on the papers and the results were recorded in a report dated 10 December 2019.[2] The JCA assigned a total impairment rating of five (5) points based on his claimed conditions:
(a)bipolar affective disorder – permanent, fully diagnosed and treated but not fully stabilised in the relevant sense;
(b)spinal disorder – permanent and fully diagnosed but not fully treated and stabilised in the relevant sense;
(c)traumatic brain injury – not fully diagnosed, treated or stabilised in the relevant sense; and
(d)urinary incontinence– Table 13 – 5 points.
(e)respiratory disorder – Table 3 – nil points.
[2]T71 p 346.
On 10 December 2019, the Applicant’s claim was rejected on the basis the Applicant did not have an impairment rating of at least 20 points.[3]
[3]T72 p 358.
The Applicant was granted a Jobseeker Allowance from 20 March 2020.[4]
[4]T84 p 436.
On 11 June 2020, following a request for review, an ARO affirmed the decision to reject the Applicant’s claim for DSP.[5]
[5]T76 p 364.
On 30 September 2020, the Applicant sought review of the ARO decision by the AAT1.[6]
[6]T79 p 376.
On 16 February 2021, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP, finding the Applicant’s impairments attracted only 15 points under the Impairment Tables.[7]
[7]T2 p 6.
On 3 March 2021, the Applicant exercised his right to lodge an application for second review with this Tribunal.[8]
[8]T1.
LEGISLATION AND POLICY
The statutory principles relevant to the Applicant’s application are contained in the Act, the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies.[9]
[9]Section 3.6.3 of the Guide.
The Guide to Social Policy Law: Social Security Guide (Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so.[10]
[10]Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645.
Qualification for DSP

16. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes, the three primary requirements are that:
(a)the person has a physical, intellectual, or psychiatric impairment;[11]
(b)the person’s impairment is of 20 points or more under the Impairment Tables;[12] and
(c)the person has a continuing inability to work (CITW).[13]
[11]Section 94(1)(a) of the Act.
[12]Section 94(1)(b) of the Act.
[13]Section 94(1)(c)(i) of the Act.

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance.[14]
[14]Topic 3.6.3.05 of the Guide.
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine the Applicant’s eligibility for DSP on 16 September 2019, the date the claim was lodged.[15]
[15]Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they reflect the Applicant’s condition during the relevant period (Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Dept of Social Services [2015] FCA 1123 at [27]-[28].
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[16]
[16]Section 3 of the Determination.
The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions.[17]
[17]Section 5(2) of the Determination.
Section 6 of the Determination sets out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination provides that a person’s impairment “must be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person”. To be given a rating under the Impairment Tables,
[18]Section 6(3) of the Determination. Refer also to ss 6(4) to 6(7) of the Determination.
the impairment must be permanent and be more likely than not, considering available evidence, to persist for more than two years.[18]
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[19]
[19]Section 6(8) of the Determination.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[20] Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[21]
[20]Section 8(1) of the Determination.
[21]Section 8(2) of the Determination.
To select the applicable Impairment Table and assess impairments, one must take the following steps:[22]
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
[22]Section 10(1) of the Determination.
Continuing inability to work, severe impairment and participation in a program of support
Section 94(2) of the Act identifies the criteria that the Secretary must consider when determining whether a person has a CITW, because of an impairment.
Section 94(2) of the Act is as follows:
(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 the program of support was wholly or partly funded by the Commonwealth; 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.
(Original emphasis.)
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person has a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
In relation to s 94(2) of the Act, extracted at para [27] above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[23]
(b)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;[24]
(c)a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C);[25] and
(d)work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[26]
[23]See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
[24]Section 94(3B) of the Act.
[25]Section 94(3C) of the Act.
[26]Section 94(5) of the Act.
With regards to participation in a program of support (POS), the POS Determination provides the following guidance:
(a)the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person;[27] and
(b)the requirements for active participation in a POS are contained in s 7 of the POS Determination.
(i)Generally, a person must have participated in the POS for at least 18 months during the relevant period.[28]
(ii)Sections 7(3)-7(5) of the POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[29]
[27]Section 5 of the POS Determination.
[28]Section 7(2) of the POS Determination.
[29]See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
ISSUES
Whether the Applicant was qualified for DSP, in accordance s 94 of the Act, during the period 16 September 2019 to 16 December 2019 (the qualification period).
This requires consideration of whether, during the qualification period:
(a)the Applicant had any physical, intellectual or psychiatric impairments;
(b)the Applicant’s impairment(s) were capable of being rated at 20 points or more under the Impairment Tables; and
(c)the Applicant had a continuing inability to work.
The Applicant must meet all of the above criteria to be qualified for DSP.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal had reviewed the following material before it:
(a)Application for Review (A1)
(b)Application for Review – supporting documents (A2)
(c)Email Statement Dated 03 July 2021 (A3);
(d)Medical Report of Dr Steppe dated 07 September 2021 (A4);
(e)Email Statement dated 12 September 2021 (A5);
(f)Applicant's Submission dated 28 September 2021 (A6)
(g)Emailed Document Sent to Sparke Helmore dated 04 October 2021 (A7)
(h)Report from Ms Taylor, formerly Ms King, dated 29 May 2021 (A8);
(i)Section 37 T Documents (R1)
(j)Respondent’s Statement of Facts, Issues and Contentions (R2)
(k)Job Capacity Assessment Report (R3)
(l)JCA Supporting Documents (R4)
Having reviewed all the material before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
CONSIDERATION AND FINDINGS
Impairment and ratings (s94(1)(a) and (b))
The Respondent accepts that, during the qualification period the Applicant’s ‘mixed incontinence and severe obstructive sleep apnoea’[30] were permanent conditions that were fully diagnosed, treated, and stabilised (as per s 26(1) and Determination cl.6) and, therefore, eligible for the functional impairment rating for the purposes of s94(1)(a) and (b) of the Act.
[30]T76, 366.
The Respondent assessed the Applicant’s permanent mixed incontinence by reference to the impairment tables referred to at s94(1)(b) of the Act (Determination, Part 3, Table 13 – Continence Function)) at a functional impairment rating of 5 points.[31]
[31]T71, p 353; T76, p 367
The Respondent assessed the Applicant’s permanent severe obstructive sleep apnoea by reference to the impairment tables referred to at s94(1)(b) of the Act (the Determination, Part 3, Table 1 – Functions requiring Physical Exertion and Stamina)) at a functional impairment rating of 0 points.[32]
[32]Ibid.
The Respondent did not accept that, during the qualification period the Applicant’s ‘bipolar affective disorder, lower back pain, sciatica, poor concentration and memory loss’[33] were permanent conditions for the purposes of s94(1)(a) of the Act.
[33]T76, p 366.
Accordingly, no assessment was conducted by the Respondent by reference to the impairment tables referred to at s94(1)(b) of the Act (Determination, Part 3) in relation to the Applicant’s claimed bipolar affective disorder, spinal disorder or brain injury.
With respect to the Applicant’s claimed bipolar affective disorder, the Respondent found that the Applicant’s condition was fully diagnosed but was not fully treated or stabilised.[34]
[34]T76, p 368; Cf T71, p 347.
With respect to the Applicant’s claimed spinal disorder, the Respondent found that the Applicant’s condition was fully diagnosed but was not fully treated or stabilised.[35]
[35]T76, p 368; T71, p 348.
With respect to the Applicant’s claimed acquired brain injury, the Respondent found that the Applicant’s condition was not fully diagnosed, treated or stabilised.[36]
[36]T76, p 368; T71, p 349.
Bipolar affective disorder
Potentially of relevance, and apparently relied upon by the Respondent, is a medical certificate issued by Dr O’Connell (the Applicant’s GP) on 23 January 2019. This indicated that the primary condition for which the particular certificate was issued to the Applicant indicating a temporal impact on his capacity to work or study was ‘stress, anxiety, bipolar disorder’ and that the condition is ‘temporary – likely to last 3-12 months’.[37]
[37]T60.
A further report by Dr O’Connell, dated 08 February 2019, relevantly noted that the Applicant had been a patient since 23 January 2014 and:
[The Applicant] has had no depressive or manic episode [sic] since 2006.
He has experienced stress in the past number of years with legal battles over his daughter [A] and not seeing her has caused him a lot of emotional upset however he has not had any specific flares in his bipolar disorder due to this. He has had some intermittent [sic] psychology to help him with his stress and remains on medication for his bipolar which is currently stable.[38]
[38]T61.
A subsequent medical certificate from Dr McSkimming (GP), dated 07 June 2019, relevantly stated that Applicant had been a patient since March 2019, and his bipolar affective disorder is ‘Likely to persist’.[39] Somewhat ambiguously, the Applicant’s diagnosed ‘emotional stress’ is grouped with his ‘bipolar disorder’ in this certificate, with the related observations that the ‘condition’ [sic] is ‘Temporary’ but the symptoms are ‘likely to persist’.
[39]T62.
Two specialist psychiatric reports from Dr Manners, Consultant Psychiatrist, dated 28 November 2017 and 3 May 2019 respectively, refer to the Applicant as being a patient of more than 10 years. In the first report, Dr Manners stated that the Applicant’s diagnosis was ‘Bipolar I Disorder currently in partial remission’. Dr Manners opined that the Applicant’ ‘is totally and permanently incapacitated for work despite being on appropriate treatment.’[40]
[40]T41.

In the second report, Dr Manners stated that the Applicant’s diagnosis had been revised to ‘Bipolar II Disorder in remission’.[41] Dr Manners stated that:
Over the years he has had a number of depressive episodes and his cognitive functioning has declined. He has trouble remembering and taking in new learning. Over 50% of people with Bipolar II Disorder develop cognitive problems; [the Applicant] is one of these.
[41]T63.
Dr Manners further opined that the Applicant ‘does not have energy and is incapable of working. He does have physical problems as well as Bipolar II Disorder which in my opinion make him permanently unfit for either part time or full time work.’
A ‘DSP Medical Eligibility Assessment Recommendation’ (MEAR) by a departmental psychologist dated 01 November 2019, noted:[42]
Condition of Bipolar Disorder is confirmed by GP Dr McSkimming (5/9/19, 7/6/19) and Psychiatrist Dr Manners (28/11/17). There is evidence of diagnosis, engagement in reasonable treatments and ongoing functional impairment. Previous JCA assessed the condition as diagnosed and treated but not stabilised. Recent medical information confirms the condition remains ongoing with significant functional impact, which is likely to persist. This condition requires reassessment by JCA.
[42]T70.
The MEAR assessor further suggested that the Applicant be afforded a face-to-face JCA assessment.[43] Despite this, the subsequent JCA report for the Applicant, dated 10 December 2019, was based on a file assessment alone.[44] The method of assessment was mis-stated in the Respondent’s Statement of Facts, Issues and Contentions (SFIC).[45]
[43]Ibid.
[44]T71, p 347.
[45]R2, [3.3].
The JCA report dated 10 December 2019 appears to place significant weight on certain of the clinical notes of the Applicant’s GP, Dr O’Connell:[46]
·     Dr S O’Connell – GP, 23/1/19 confirms [the Applicant] is currently participating in psychology and psychiatry treatment and taking medication.
·     Dr S O’Connell – GP, 23/1/19 confirms [the Applicant] this is a permanent condition that is likely to persist for more than 2 years; is likely to improve within 3-13 months.
·     GP Dr S O’Connell confirms that this condition is likely to improve within 3-13 months.
[46]T71, p 347.
The foregoing repeated extraction of somewhat ambiguous summary clinical notes, from a single multi-purpose form completed by the Applicant’s then GP, appears to be the basis on which the Applicant’s Bipolar II disorder was assessed as being ‘not fully stabilised’.
A more holistic assessment of the available expert medical and therapeutic evidence relevant to the Applicant’s bipolar affective disorder was conducted by the AAT1 reviewer.[47] In summary, that review found as follows:[48]
It is the [T]ribunal’s view which is aligned with the view of Dr Manners that [the Applicant’s] bipolar disorder has been fluctuating episodically for a number of years and since 2015 has been exacerbated by [the Applicant] being denied access to his daughter. This has cumulated in symptoms of depression, stress and anxiety. It is on this basis that the evidence supports a finding that bipolar disorder is a mental health condition that is typically characterised by fluctuations in mood and by its very nature is episodic and fluctuating. It is the [T]ribunal’s finding that [the Applicant] has had long standing management and treatment of his bipolar disorder and the [T]ribunal is satisfied that this condition is diagnosed, fully treated and stabilised from the date of [the Applicant’s] claim for disability support pension made on 16 September 2019.
[47] T2, [9]-[11].
[48] T2, [11].
A more contextual reading of the reference; ‘likely to improve within 3-13 months’, might reasonably relate this notation to the specific situational stress-related issues faced by the Applicant (and referred to as such) in two of the relevant reports on file.[49]
[49] See reports of Dr O’Connell (T60) and Dr McSkimming (T62).
The Respondent has since accepted the AAT1 assessment that the Applicant’s bipolar affective disorder is indeed fully diagnosed, treated, and stabilised as at the qualification period.[50] Accordingly, it falls to the Tribunal as presently constituted to conduct the impairment rating exercise required at s94(1)(b). The most appropriate Impairment Table implicated by the Applicant’s bipolar affective disorder is Table 5 ‑ Mental Health Function.
[50] R2, [5.21].
Relevantly, the Applicant’s impairment has been clinically described as follows:
·GP’s Dr O’Connell and McSkimming both declared the Applicant as medically unfit for work 3-12 months, coextensive with the qualification period.[51]
·Consultant Psychiatrist, Dr Manners expressed the view that the Applicant was ‘totally and permanently incapacitated for work despite being on appropriate treatment.’;[52] and, ‘has had a number of depressive episodes and his cognitive functioning has declined. He has trouble remembering and taking in new learning’.[53]
·Psychologist, Ms King stated that; ‘With a diagnosis of various Mental Health issues and also physical health issues [the Applicant] is unable to work. He will have his mental health issues for the rest of his life and so he won't be able to work. I also agree with all these diagnoses and we have been working on the issues on an ongoing basis.’[54]
[51]T61; T62.
[52]T41.
[53]T63.
[54]T36.
Of potential relevance to the concentration and memory impairments identified above, in the context of the Applicant’s mental health function, Medical Registrar Dr Gandhi reported on investigations into these clinical observations. Of note, Dr Gandhi stated, ‘MRI scan showed mild bilateral parietal volume loss and likely small prominent perivascular space with lid surrounding gliosis in the right anterior temporal lobe.’[55] Such pathology is, necessarily, permanent and, potentially, prone to further deterioration.
[55]T46.
Further to the Applicant’s mental health function is the Applicant’s reported tinnitus. This diagnosis was confirmed by GP Dr Armstrong as a ‘regular disabling condition which significantly impacts on his ability to do daily functions.[56] More recent expert audiologist report of Mr Wall also documents this impairment as being ‘caused by cochlear damage and has been triggered by the trauma of various types’.[57]
[56]See reports of Dr Armstrong at T28 (dated 18 July 2017) and T35 (dated 14 September 2017).
[57]T78 (dated 01 September 2020).
As noted by the Respondent, treatment modalities implemented following this report have mediated some of the impact of this condition.[58] However, the Tribunal notes that the condition is of long-standing, is well documented by suitably qualified medical professionals and further treatment cannot reliably be expected to result in a substantial improvement in functional capacity.
[58]R2 [5.44].
The Tribunal finds that the Applicant’s functional mental health impairment to his memory and concentration arises from multiple conditions, namely his diagnosed bipolar affective disorder and his tinnitus. Accordingly, the rating exercise required at s 94(1)(b) of the Act must comply with the particular qualifiers at cl 10(5)-(6) of the Determination.[59] In this respect, the Tribunal notes that no differential submissions were made by the Respondent addressing this multiplicity of conditions, both of which necessarily impact on an applicant’s functional memory and concentration.
[59] 10 Selecting the applicable Table and assessing impairments
…
Multiple conditions causing a common impairment
(5)Where two or more 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.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
The available medical evidence referred to above confirms the Applicant’s evidence that the functional impairments to his mental health (caused by his diagnosed permanent bipolar affective disorder and tinnitus conditions), by reference to the cl 10(5)-(6) assessment rubric, are no less than moderate to severe across the descriptors in Table 5 at (b), (c), (d), (e) and (f). Bearing in mind the instruction at cl 11(1)(c) of the Determination,[60] the impairment rating that must be assigned to the Applicant’s mental health function is the lower of these two ratings, namely moderate, or 10 points.
[60] 11 Assigning an impairment rating
(1)In assigning an impairment rating:
…
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; …
Spinal disorders
Once again, the Tribunal notes that a holistic assessment of the available expert medical and therapeutic evidence relevant to the Applicant’s multiple documented spinal disorders was conducted by the AAT1 reviewer.[61] In summary, that review found as follows:
It seems from the evidence before the [T]ribunal that [the Applicant] has undertaken reasonable treatment for his back pain, which has included management under an allied health plan and monitoring and management [sic] by his GP. [the Applicant] has also paid for extra treatment when he has been able to afford this.[62]
Medical evidence before the tribunal indicates that [the Applicant] has suffered from chronic neck pain due to a whiplash injury to his neck following the same motor vehicle accident in 1980 that caused his back injury.[63]
[61] T2, [11]-[14].
[62] At [13].
[63] At [14].
The Tribunal has reviewed the source materials referred to in the AAT1 decision and concurs with the conclusion therein, regarding those related spinal conditions as to being fully diagnosed, treated and stabilised.[64] The Tribunal further accepts the consequential submissions of the Respondent as follows:[65]
[64] T2, [38],[41].
[65]          At [5.32].
… the Secretary contends the Applicant’s spinal conditions would attract a maximum of five points under Table 4. The Secretary relies on the following evidence:
(a) A report by Mr Xiaoyun Jin (Physiotherapist) dated 1 February 2016 stating the Applicant’s current level of pain is ‘mild’ (T15/131).
(b) A report by Dr Cleary dated 20 December 2017 stating that the functional rating scales completed by the Applicant both showed ‘a mild response in relation to pain and acts of daily living’ (T48/231). Dr Clearly also stated the Applicant is ‘moderately restricted in his mobility due to the minor curvature in his spine and early signs of degeneration. However, his mindset of his perceived restrictions causes him to be limited more.’
(c) A report dated 8 February 2019 by Dr O’Connell stating the Applicant has ‘difficulty standing from a squatting/kneeling position and finds it difficult to go up and down stairs’ (T61/294).
(d)       The Applicant’s oral evidence to the AAT1 (T2/13):
(i) He is unable to do the dishes because of his mid thoracic spinal pain;
(ii) He has difficulties bending forward to remove things from a low cupboard and cannot bend down;
(iii) He can reach above his head to overhead cupboards;
(iv) He cannot sit or stand for long periods and has to alternate between sitting and standing due to the pain;
(v) He attends family functions for two hours because he needs to alternate between sitting and standing and after two hours he finds he has to return home and lie down;
(vi)      He uses the gym daily;
(vii)      He can drive a car for about 40 minutes.
The available medical reports referred to above confirm the Applicant’s evidence that the functional impairments to his spinal function (caused by his documented multiple permanent diagnosed spinal disorders), by reference to the cl 10(5)-(6) assessment rubric, are no less than mild to moderate across the descriptors at Table 4. Bearing in mind the instruction at cl 11(1)(c) of the Determination,[66] the impairment rating that must be assigned to the Applicant’s spinal function is the lower of these two ratings, namely mild, or 5 points.
[66]See above n 51.
Mixed incontinence condition
It is accepted by the Respondent that the Applicant has a longstanding and fully diagnosed, treated and stabilised functional mixed incontinence condition.[67]
[67]R2 [5.39].
The Tribunal finds that the medical evidence referred to by the Respondent confirms this submission.[68]
[68]See T33 (Report of Dr Ooi dated 7 September 2017); T54 (Report of Dr O’Connell dated 28 May 2018); T61 (Report of Dr O’Connell dated 8 February 2019).
The available medical evidence referred to above further confirms the Applicant’s evidence that he suffers impairments to his continence functioning. By reference to the descriptors at Table 13 of the Impairment Tables the Tribunal finds that the impairment rating that should be assigned to the Applicant’s continence function is mild, or 5 points.
Acquired (traumatic) brain injury
As discussed above, both the ARO and AAT1 referred to a report of Medical Registrar Dr Gandhi on 11 December 2017.[69] Of note, Dr Gandhi stated that; ‘MRI scan showed mild bilateral parietal volume loss and likely small prominent perivascular space with lid surrounding gliosis in the right anterior temporal lobe.’[70] Dr Gandhi recommended a clinical review within 12 months and made a referral for the Applicant with the relevant memory clinic. There is no evidence to suggest that these clinical recommendations were subsequently adopted by the Applicant. The Applicant’s GP, Dr O’Connell, stated that the Applicant’s “Memory issues” were “currently under investigation”, without further elaboration, in a report dated 29 May 2018.[71].
[69]T46.
[70]T46.
[71]T54.
While no submissions were made on this aspect of the Applicant’s medical history in the Respondent’s SFIC, on the basis of the foregoing medical evidence, the JCA dated 7 August 2018 found that the Applicant’s acquired (traumatic) brain injury was not fully diagnosed, treated or stabilised.[72]
[72]T59 p 285.
The Tribunal has considered the potential relevance of the report of Dr Gandhi under the rubric of “mental health functioning” above to the extent that this may be relevant. However, the JCA of 7 August 2018 does fairly summarise the available medical evidence relating to this condition.
The Tribunal finds that, at the relevant time, the Applicant’s acquired (traumatic) brain injury was not fully diagnosed, treated or stabilised for the purposes of the Determination at cl 6(4). Accordingly, it cannot be assessed for the purposes of s 94 of the Act.
Respiratory condition
It is accepted by the Respondent that the Applicant has a longstanding diagnosed, treated and stabilised functional respiratory condition, namely obstructive sleep apnoea.[73] This condition falls within the descriptive scope of the functional impairments provided at Table 1 – Functions requiring Physical Exertion and Stamina.
[73]R2, [5.45].
The Tribunal finds that the foregoing submission is confirmed by the medical evidence referred to by the Respondent,[74] together with additional medical evidence before the Tribunal.[75]
[74]T46 (Report of Dr Gandhi dated 11 December 2017); T61 (Report of Dr O’Connell dated 8 February 2019).
[75]T34 (Report of Drs Cunningham and Ling dated 8 September 2017); T35 (Report of Dr Armstrong dated 14 September 2017); T47 (Report of Dr O’Connell dated 15 December 2017) T51 (Report of Dr O’Connell 2 February 2018); T27 (Report of Dr O’Connell dated 22 May 2018); T54 (Report of Dr O’Connell dated 29 May 2018); T73 (Report of Dr McSkimming dated 4 February 2020).
The Tribunal finds that the Applicant’s respiratory condition has no functional impact on activities requiring physical exertion and stamina as described under Table 1. Accordingly, the impairment rating that should be assigned to the Applicant’s functioning requiring physical exertion and stamina is 0 points.
Cumulative impairment rating (s 94(1)(a) and (b))
The Tribunal has found above that the Applicant cumulatively satisfies the impairment requirement at s94(1)(a) and (b) of the Act as follows:
(a)Fully diagnosed treated and stabilised bipolar affective disorder and tinnitus conditions, assigned the Table 5 impairment rating of moderate, or 10 points;
(b)Fully diagnosed, treated and stabilised functional spinal conditions, assigned the Table 4 impairment rating of mild, or 5 points;
(c)Fully diagnosed, treated and stabilised mixed incontinence condition, assigned the Table 13 impairment rating of mild, or 5 points; and,
(d)Fully diagnosed, treated and stabilised functional respiratory condition, assigned the Table 1 impairment rating of 0 points.
Accordingly, the Applicant meets the 20-point impairment threshold at s 94(1)(b) of the Act.
Continuing inability to work (s94(1)(c))
There is a necessary degree of subjectivity in the assessment of an Applicant’s ‘continuing inability to work’ (simpliciter) as required at s 94(1)(c) of the Act, or as provided for (possibly disjunctively?) at s 94(2) where ‘an applicant has a continuing inability to work because of an impairment’—including, as is the case in the present application:
(a)where the impairment-rating comprises a multiplicity of impairment tables; and
(b)the Applicant does not derive 20 points under the tables from a single such table;
and, hence, is not statutorily deemed to be a “severe impairment” as provided at s 94(3B) of the Act.
As discussed by Senior Member Bell in Li v Secretary, Department of Employment and Workplace Relations (Li),[76] the relevant “impairments” that may be considered, regarding the “continuing inability to work” at s 94(1)(c), appear as a simple matter of construction, to extend beyond those applicable to the threshold assessment exercise at s 94(1)(a) and (b) of the Act. Such a construction seems open, given that the functional ‘slicing, dicing and admixing’ required by the assessment tables under the threshold exercise is ill-adapted to form a coherent picture of an individual’s global capacity to work (with, or without a suitable program of support).
[76](2007) 96 ALD 769 [17]-[23].
In passing, the Tribunal notes the finding in Kumar v Secretary of Social Services (Kumar) by Reeves J, that the plurality of Kiefel and Dowsett JJ in Secretary, Department of Family and Community Services v Michael (Michael) rejected the proposition that s94(1)(c) and s94(2), as presently drafted, should be read disjunctively.[77] Certainly, extracted in isolation, the relevant paragraph does give such an impression: [78]
Obviously enough, subs 94(2) is intended to define the expression ‘continuing inability to work’ for the purposes of par 94(1)(c). It is of interest that the expression defined in s 94(2) is “a continuing inability to work because of an impairment”. Impairment is referred to in s 94(1)(a) and (b) but not in conjunction with the expression “a continuing inability work” in s 94(1)(c).
[77][2017] FCA 158.
[78](2001) 116 FCA 1811 [22].
However, two cautionary matters ought to be borne in mind. Firstly, the foregoing statement by the plurality in Michael is clearly obiter, given that the wider context within which it appears is addressed to the different (and particular) question of the time at which an applicant had the relevant continuing inability to work. Secondly, as Greenwood J in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (Harris) discussed at some length,[79] the relevant provisions have been subject to considerable legislative revision by parliament over time. Some care should, therefore, be taken when approaching the constructive task when applying the statutory formula.[80]
[79](2010) 114 ALD 560 [45]-[53].
[80]Consider, for example, the discussion (obiter) of “unrated impairments” by Senior Member Bell in the context of continuing inability to work in Li (above n 68).

As it happens, in the present application, it is not necessary to divine the proper construction of the current drafting of the much-modified provisions of s 94. Nevertheless, it may be of utility to those who come after the Tribunal as presently constituted to point out that s 94 presents neither a simple nor straightforward construction challenge and it is yet to be exhaustively exegeted judicially in its present iteration. In terms of s 94(2)(a) of the Act, the formulation of Greenwood J in Harris appears to be the most authoritative construction, as follows:[81]
As to s 94(2)(a): Does the impairment of itself considered in isolation from other matters that may influence the person’s attitude to working (such as motivational matters and the like) have such an impact on the person’s capacity for work that it prevents him or her from doing at least 15 hours of work per week that exists anywhere in Australia for persons with such an impairment judged in a normal or open workplace in that part of the labour market relevant to the person’s skills and experience (recognising that such work includes less skilled or unskilled work with no regard to discretionary suitability on the part of the claimant), on wages that are at or above the relevant minimum wage, being work which the person is by reason of his or her existing work skills and experience capable of performing without retraining, independently of a relevant program of support designed to assist the person in preparing for, finding or maintaining such work.
[81](2010) 114 ALD 560 [92].
The available medical evidence is in harmony with the Applicant’s “ESS referral history including referral summary, appointment history, job plan status and POS calculation”.[82] In particular, it is noted that, while periods of exemption covered by medical certificates are noted as being authentic and sufficient, the periods so covered amount to periods where the Applicant was not actively participating in a program of support for the purposes of the s 94 eligibility calculus. Such an anomalous outcome appears to be an inevitable consequence of the interaction between the much-amended provision and the relevant applicable regulatory instruments.
[82]T82.
The fact remains, however, that the available evidence demonstrates that the Applicant has been palpably prevented from working the minimum hours under the Act that he was assessed as being capable of accomplishing during the relevant period, due to factors attributable to the functional impairments arising from his medical conditions.
In addition, the reported failures by the Applicant to attend appointments (noted pejoratively in the Agency’s records)[83] could equally be viewed as falling within several of the functional assessment descriptors in “Table 5 — Mental Health Function.”
[83] T82, p 395.
The medical evidence referred to above is consistent, both across treating medical specialists of long standing and over time, regarding the cumulative functional impact of the Applicant’s impairments. On 8 February 2019, Dr O’Connell stated that overall “at present [the Applicant] is unfit for work due to the total burden of disease associated with his ongoing mental and physical illnesses.” On 3 May 2019, Dr Manners stated the Applicant “has trouble remembering and taking in new learning”; and “[h]e does have physical problems as well as his Bipolar II Disorder which, in my opinion, make him permanently unfit for either part time or full time work.”
Based on the available evidence, the Tribunal is satisfied that the Applicant meets the test articulated by Greenwood J in Harris at para 82 above as being applicable to s 94(2)(a) of the Act. Accordingly, the Applicant’s impairment is of itself sufficient to prevent the Applicant from doing any work independently of a program of support within the next two years as provided at s 94(2)(a) of the Act. Based on the same evidence, the Tribunal is further satisfied that the Applicant’s impairment is of itself sufficient to prevent the Applicant from undertaking training as provided at s 94(2)(b)(i) of the Act.
Given the foregoing, the Tribunal finds that the Applicant satisfies the requirements of s94(1)(a), (b) and (c) of the Act.
CONCLUSION
As at the date of application, the Applicant was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment tables for the purposes of ss 94(1)(a) and (b). Additionally, he satisfies s 94(1)(c) of the Act in that he has a continuing inability to work.
DECISION
The Reviewable Decision, being the AAT1 Decision, dated 16 February 2021, is set aside and substituted with the decision that the Applicant satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly

..................[Sgd]......................................................
Associate
Dated: 26 May 2022

Date of hearing: 7 October 2021

Applicant: Self-represented

Representative for the Respondent: Ms D Jones-Bolla, Lawyer, Sparke Helmore Lawyers

Date of hearing:	7 October 2021
Applicant:	Self-represented
Representative for the Respondent:	Ms D Jones-Bolla, Lawyer, Sparke Helmore Lawyers