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

VQFV and Secretary, Department of Social Services (Social services second review) [2018] AATA 3152 (31 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0305
Re:VQFV
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:31 August 2018
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY - Disability Support Pension –– whether qualified – right knee, dermatitis allergy condition and hypertension/hypercholesterolaemia conditions - whether impairment attracts rating of 20 points or more under Impairment Tables –program of support had been undertaken – whether continuing inability to work
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
31 August 2018
INTRODUCTION

VQFV (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the her the Disability Support Pension (DSP) pursuant to section 94(1) of the Social Security Act 1991 (the Act).
VQFV lodged a claim for the DSP on 2 March 2018 and on 5 September 2017 Centrelink found that VQFV was not entitled to the DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services (the Department).
On 17 October 2017 this decision was affirmed by an Authorised Review Officer (ARO) from the Department. The Applicant sought a review of this decision in the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), which affirmed the Department’s decision on 10 January 2018.
This application to the General Division of the Administrative Appeals Tribunal (AAT2) was heard on 7 July 2018. VQFV was represented by her husband. Ms Jenna Molan, a government lawyer in the Freedom of Information and Litigation Team of the Department appeared for the Respondent.
ISSUES
The issues which the Tribunal must determine are whether at the time of her application or within the relevant period thereafter VQFV:
(a)had a physical, intellectual or psychiatric impairment;
(b)had a condition which had been fully diagnosed, treated and stabilised and was likely to continue for at least two years;
(c)had a fully diagnosed, treated and stabilised condition which attracted 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); and
(d)had a continuing inability to work.
BACKGROUND
VQFV is 57 years of age, married and is living in her own home with her husband and two adult sons. She left school in year 11, worked predominantly as a process worker. She was last employed delivering catalogues from 2004 until early 2015, when she ceased employment due to increased pain from her worsening knee condition.
On 2 March 2017 VQFV made an application for DSP, citing her medical conditions as osteoarthritis of the right knee, contact dermatitis of the hands, anaphylaxis, vomiting, diarrhoea and nausea, high blood pressure and high cholesterol.
On 6 June 2017 Centrelink had a job capacity assessment (JCA) conducted on VQFV. The JCA reported the following in respect of the Applicant’s medical conditions:
·     lower limb deficiencies – confirmed as osteoarthritis of the right knee - considered fully diagnosed, treated and stabilised, moderate functional impact of the lower limbs. Therefore 10 points were awarded under Table 3 – Lower Limb Function;
·     skin disorder – confirmed as contact dermatitis - assessed as permanent and fully diagnosed, treated and stabilised, having a mild functional impact on activities requiring healthy, undamaged skin. Therefore 5 points were awarded under Table 14 – Functions of the Skin;
·     hypertension and circulatory system - assessed as permanent, fully diagnosed, treated and stabilised, but the condition is well-managed and has no impact on function. Therefore nil impairment points were assigned;
·     immunodeficiency – considered fully diagnosed, treated and stabilised but she does not experience any functional impact from the condition on an ongoing basis. Therefore nil impairment points were assigned;
·     VQFV was assessed as having a baseline work capacity of 8-14 hours per week and 15-22 hours per week in 2 years with intervention.
On 5 September 2017 Centrelink wrote to VQFV to inform her that her DSP application had been refused because she did not have an impairment rating of 20 points or more under the Impairment Tables.
On 17 October 2017, upon internal review, a departmental ARO affirmed the earlier JCA report, finding that VQFV’s total impairment rating was 15 points based on the following:
·10 points under Table 3 for her knee condition as the medical evidence found the functional impact of this condition limited her ability to exercise or walk significant distances. She also had trouble with stairs and had an inability to kneel
·5 points under Table 14 - Functions of the Skin for contact dermatitis at the hands, which required her to use cream and to wear gloves when doing woodwork
·Nil points for hypertension/ high cholesterol under Table 1 - Functions requiring Physical Exertion and Stamina - as the conditions were assessed as fully diagnosed treated and stabilised but both well-managed with medication
·Nil points for anaphylaxis as the symptoms of nausea, vomiting and diarrhoea are yet to be conclusively attributed to an allergic response to an allergen and therefore cannot be considered as part of the functional impacts of the condition of anaphylaxis
·Nil points for gastroenterological condition as it was not considered fully diagnosed treated and stabilised
·VQFV had participated in a program of support and did not have a continuing inability to work
On 10 January 2018 AAT1 affirmed the decision of the ARO to reject VQFV‘s DSP claim, having found her medical conditions attracted a total impairment rating of 15 points. It concluded it was not necessary to make a finding in respect of her undertaking a program of support and whether she had a continuing inability to work as she was found not to have the required 20 points under the Impairment Tables.
On 10 January 2018 VQFV sought a review of the AAT1 decision by this division of the Tribunal, stating in her application:
In the review decision made by Dr H Schwartz he considered my anaphylaxis medical condition and related intermittent experiences of nausea, vomiting and diarrhoea as part of an allergic reaction but extremely difficult to identify my specific allergen.
When I experience these gastrointestinal symptoms, I am lying in bed for one to three days because I don’t have the energy to get up and carry out any of my daily tasks. My bed is closely located to my ensuite (bathroom) so I can immediately go to the toilet and vomit and/or open my bowels (usually both at the same time). I also have a bucket next to my bed in case I am not able to manage to go to the ensuite on time. To ease my symptoms, I take Telfast.
These gastrointestinal reactions occur randomly throughout the year and vary in frequency from year to year. To avoid these reactions, I have reduce the number of times eating out, but still have experienced three of these gastrointestinal reactions in the last year (2017) again from eating out or eating from other people’s food.
Dr Schwartz considered this condition is fully diagnosed, treated and stabilise, based on the reasons above I believe it should warrant a higher rating.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (the Administration Act), VQFV’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 1 June 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
For a condition to be a severe impairment the Act at 94(3B) provides:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person's impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Section 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(c) the condition has been fully stabilised; and
…
(d) the condition is more likely than not, in light of available
evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)      whether there is corroborating evidence of the condition; and
(b)   what treatment or rehabilitation has occurred in relation to the condition; and
(c)       whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)      either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)      the person has not undertaken reasonable treatment for the condition and:
(i)        significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 6(7) of the Impairment Tables provides that for the purposes of section 6(6), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether during the qualification period, VQFV suffered an impairment of 20 points or more under the Impairment Tables and if so, whether she had a continuing inability to work.
Section 5(2) provides that the Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms, and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment, and not to assess conditions.
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment “must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person”.
Section 6(8) of the Impairment Tables further provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.” In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and additional medical reports provided by VQFV.
DOES VQFV HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for the DSP, in the first instance, a person must suffer from an impairment.
The parties accept that VQFV is suffering from osteoarthritis of the right knee, dermatitis, allergy condition and hypertension/hypercholesterolaemia. Accordingly, the Tribunal finds that VQFV is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DID VQFV HAVE MEDICAL CONDITIONS THAT COULD BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Osteoarthritis of the right knee
Doctor Sabeha Muzzafar, general practitioner, in a medical report dated 21 January 2014 for an earlier claim for DSP made by VQFV, stated that VQFV had been a patient since 2011 and had been diagnosed with osteoarthritis in her knees in 2013. Degenerative osteoarthritis of the right knee was shown on MRI with full thickness loss of articular cartilage. The condition was worse in the right knee than the left and was being treated with analgesia, physiotherapy for muscle strengthening, hydrotherapy and specialist review. It resulted in VQFV being constantly in pain, which was aggravated by walking, bending and climbing stairs; and the condition was degenerative.
Dr David Love, orthopaedic surgeon, in a report of 13 January 2014 noted:
On examination of a normal x-ray she has no significant evidence of osteoarthritis except for maybe some subtle joint space narrowing. She also had an MRI that demonstrates quite severe medial compartment osteoarthritis with nearly full cartilage loss noted.
My impression is that she should continue with non-operative treatment at this stage. This is mainly because of her age. Ideally a joint replacement should be postponed as long as possible, if possible, until after the age of 60 years. This is because we know that the outcomes for joint replacement of the knees in patients of this age group are not as good as in the older age group. As such I have recommended that she continue with her physiotherapy and on and non operative measure.
Dr Love, in a report of 12 July 2016 noted:
Unfortunately she is continuing to get pain in the knee which I believe is secondary to osteoarthritis of the knee. She has had a recent x-ray and MRI which confirmed the presence of medial compartment osteoarthritis in the knee. The pain appears to be getting worse with time. It limits her ability to exercise or walk significant distances. She has trouble with stairs and also has inability to kneel. It is placing increasing difficulty on her mobility. When she rests and is more sentry, the pain does subside.
At this stage, I think… needs ongoing regular oral analgesia and physiotherapy strengthening exercises. I do not think she is a position to work significantly because of the pain in her knee and she may have significant disability in the future that would prevent her from working. I have suggested that she come back and see me in about six months time to repeat x-ray. I have asked her to think about her options. Unfortunately there is not much else I can offer at this stage short of surgery which if this does proceed it will need to be well thought out and planned.
Doctor Muzzafar provided a letter to VQFV dated 6 April 2018 to assist with her application currently before the Tribunal, which states:
osteoarthritis of the right knee. She has ongoing and chronic right knee pain which has increased in duration and intensity with time. Her mobility has reduced, unable to walk more than 3 to 5 minutes at a stretch. Needs to sit down and rest after that. This has affected her activities of daily life as she needs to take frequent rest breaks to complete any activities at home. She is limited in going out and while shopping she makes use of a trolley to support herself. She still needs to rest after 10 minutes and is unable to continue. She needs help with the shopping. On most days she has experienced swelling of the right knee and foot and has to lie down in bed in the afternoons to relieve the pain. She is unable to climb stairs, kneel and hence cleaning of the house is done by husband and children.
The Respondent accepted that VQFV’s lower limb condition was fully diagnosed, treated and stabilised and argued that the level of functional impairment reported by the Applicant to the JCA during the qualifying period supports at most a 10-point rating under Table 3.
VQFV contended at the hearing that at the time of the DSP application:
·     she was in constant pain, needing assistance with performing all household tasks and needed to rest every afternoon for two to three hours just to get through the day
·     she couldn’t walk around the shopping centre or supermarket without assistance. She and her son or husband do the shopping and she had to utilise the trolley getting from the car into the supermarket and walking around the aisles for support;
·     she could walk for five minutes but it was a struggle and she was in pain. This has become worse over time;
·     she has difficulty using stairs. She has to take them one at a time and utilise the rail, but tries to avoid stairs at all costs:
·     she was utilising public transport during the qualifying period, but only boarded the bus or train if she was able to get a seat;
·     she was only able to drive short distances
·     she accepted the 10 point rating attributed by various assessors.
In assessing the functional impact of these conditions, the Tribunal considered whether a severe level of impairment could be found under Table 3.
There is a severe functional impact on activities using lower limbs.
(1)       The person:
(a)       is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b)       requires assistance to use public transport.
(2)       This impairment rating level includes a person who requires assistance to:
(a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)       move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
The evidence before the Tribunal would indicate that VQFV had a moderate functional impact on activities using her lower limbs. A severe functional impact was not able to be sustained on the evidence, as all the relevant descriptors must be met for such a finding and VQFV was still able to stand from a sitting position without assistance. Therefore, the Tribunal awards 10 points for this condition under Table 3.
Dermatitis

Dr Terence Connors, dermatologist, in a report of 8 July 2016 noted:
when she presented with a two month history of a rash affecting her hands. On examination at that time, the changes were consistent with a contact irritant dermatitis with a contact allergic dermatitis, as a possible differential diagnosis.
I advised her to avoid touching irritant as much as possible and to wear gloves while doing wet work. I prescribed a cortisone cream (diprosone OV) to be applied twice daily and a moisturising cream to apply frequently.
Doctor Muzzafar’s letter of 6 April 2018 states:
…contact dermatitis of the hands. She needs to use diprosone OV cream a number of times along with moisturising cream. She washes her hands with gentle QV wash. She uses her gloves while washing or doing housework. All this helps to control the condition but she gets breakthroughs of fissures and cracks in the fingertips.
The Respondent accepted that VQFV’s dermatitis was fully diagnosed treated and stabilised and would attract a (mild) 5-point impairment under Table 14. It contended a (moderate) 10-point impairment rating could not be found as the evidence does not demonstrate that VQFV needs to make adaptions to several daily tasks to meet any of the descriptors under the moderate impairment rating.
VQFV contended at the hearing that at the time of the DSP application:
·that this was a long-standing condition;
·she used gloves to prepare and wash food;
·she had the condition under control most of the time but on occasion her hands would sting and became very dry and scaly; and
·she accepted the 5 point rating attributed by various assessors
In assessing the functional impact of these conditions, the Tribunal considered whether a mild level of impairment could be found under Table 14:
There is a mild functional impact on activities requiring healthy, undamaged skin.
(1)       Regarding the minor adaptations to some daily activities that the person has to make, at least one of the following applies:
(a)       the person has minor difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia) and may need to wear protective gloves for some tasks, apply protective cream to the hands, or limit repetitive tasks involving use of the hands;
(b)       the person has minor difficulties performing activities involving use of other parts of the body due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia);
(c)       the person has minor difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications or past history of skin cancers) and needs to take higher than normal precautions to limit exposure to sunlight.
The evidence before the Tribunal would indicate that VQFV has a mild functional impact on performing activities due to dermatitis, as she did need to wear protection gloves for some tasks and apply protection cream to her hands. The Tribunal agrees with the view of the Respondent that the evidence does not indicate that VQFV has had to make adaptations consistent with any of the moderate impairment descriptors. Therefore, the Tribunal awards her 5 points under Table 14.
Allergy condition
Dr Antony Jacob, consultant Gastroenterologist and Hepatologist, in a report to 9 January 2017 noted:
She has been having episodes of vomiting and diarrhoea lasting for a few hours since childhood. These episodes occur few times a year. These are occasionally associated with mild skin rash and feeling hot. She denies any gastroenterologist symptoms in between these episodes. She had an episode of anaphylaxis reaction in November 2015 requiring treatment with adrenaline and is under the follow-up of immunologist. She had skin prick tests done and showed a borderline reaction to Ginger. Her symptoms almost always start after two hours of food intake and never had symptoms after eating food cooked by self. However she had symptoms after eating from her mother-in-law’s place and multiple restaurants.
Her other medical problems include hypertension, dyslipidaemia and osteoarthritis. She was found allergic to nickel, chromium and cobalt.
My impression is that her symptoms of vomiting and diarrhoea are part of an allergic reaction. It seems that she is allergic to either some food, food ingredients or cooking utensils. It will be very difficult to isolate the actual culprit.
Doctor Muzzafar’s letter of 6 April 2018 states:
anaphylaxis – this has happened once has not re-occurred since. She does use telfast in case she needs it. She carries an epi-pen with her.
Gastroenteritis symptoms of intermediate vomiting and diarrhoea secondary to allergic reaction – these reactions occur randomly and vary in frequency throughout the year. She avoids eating out but she cannot abstain completely as at times it is unavoidable. She has the symptoms of vomiting and diarrhoea and she needs to rest in bed for the next 2 to 3 days. She needs to be housebound as well to be near a toilet. The gastroenterological symptoms of intermediate vomiting and diarrhoea secondary to an unknown allergic trigger cause a mild functional impairment on her daily activities as per the impairment tables. The condition of anaphylaxis and gastroenteritis symptoms are related and are secondary to an allergic reaction (unknown culprit). The symptoms of this reaction have been ranging from mild to severe.
The Respondent accepted that VQFV’s allergic reaction, including anaphylaxis and gastroenterological conditions were fully diagnosed treated and stabilised but did not attract an impairment rating under Table 10 - Digestive and Reproductive Function as the condition does not result in a functional impact when allergens are avoided.
VQFV and her husband argued strenuously at the hearing that the main reason they disagreed with the initial assessments is that a zero rating had been awarded to this condition; they took exception to the finding that this condition could be avoided by not eating out. They contended that the condition was debilitating and that most years on average she had three reactions resulting in her requiring two to three days to recover from an episode. The symptoms range from mild to severe and she has had to make adjustments to accommodate this condition, such as not eating at the La Porchetta restaurant because she suspected the marinara sauce may have been implicated in a reaction; or not eating her mother-in-law’s cooking anymore, which has caused tension. There were occasions when she was required to eat out and it was ridiculous to argue that she could avoid this condition as the doctors had not determined what was causing her allergic reaction.
In assessing the functional impact of these conditions, the Tribunal considered whether a mild level of impairment could be found under Table 10:
There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1)        At least one of the following applies:
(a)        the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b)        the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
The evidence before the Tribunal would indicate that VQFV suffers from an allergic reaction to an unknown allergen that is causing her gastroenterological issues on an infrequent basis, which results in her needing bedrest of two to three days. It is not reasonable to expect that VQFV can avoid this condition by never eating out again. However, the frequency of occasions when this condition had an impact on her; and it was limited and was something that could be managed within the framework of sick leave provisions at a place of employment. It was also not impacting her to the degree that it was having a functional impact on work-related or daily activities due to symptoms of personal care associated with her digestive system. The Tribunal therefore does not award any impairment points for this condition.
Hypertension/hypercholesterolaemia
The Respondent contended that these conditions did not cause any functional impact on VQFV during the qualifying period, or all were well-managed by medication and as such nil points should be awarded for these conditions.
VQFV did not seek to press these conditions as she agreed they were well managed and not causing any functional impairment. As such the Tribunal awards nil points these conditions nil points.
DID VQFV HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP VQFV must not only satisfy the requirement that she has an impairment with a rating of 20 points or more under the Impairment Tables, but she must also demonstrate that she has a continuing inability to work. The Tribunal has awarded her a total of 15 points and she therefore does not satisfy the 20 point requirements under section 94(1)(b). However, it will still consider whether she had a continuing inability to work during the qualifying period. VQFV would be considered to have had a continuing inability to work if she actively participated in a program of support within the meaning of section 94(3C) of the Act prior to her claim for DSP, and if her impairment was of itself sufficient to prevent her from doing any work independently of a program of support. The Tribunal must strictly enforce the program of support requirement, finding that no power exists to dispense with its operation.
VQFV has completed a program of support and therefore satisfies section 94(3C) of the Act.
The JCA report of 6 June 2017 found that with specific intervention combined with ongoing medical intervention, it was anticipated that VQFV’s work capacity would increase to 15 to 22 hours per week in a suitable role. However, she would be unsuitable for any physically demanding work due to knee conditions or roles that requires her working with chemicals.
Dr Love clearly identifies in his numerous assessments of VQFV that her osteoarthritis condition is causing and will continue to cause significant pain and disability into the future that would prevent her from working. Doctor Muzzafar also assesses that VQFV’s numerous conditions are having significant impact upon her functionality and therefore her ability to work.
There seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work. I do not think an absolute preference should be expressed for either report. Rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
The Tribunal concurs with the findings of VQFV’s treating doctors that she has a continuing inability to work. This was recognised by the JCA undertaken on 6 June 2016, which identified VQFV had significant functional barriers to her finding work and as such the Tribunal found she had a continuing inability to work.
CONCLUSION
VQFV has been awarded 10 points under Table 3, as during the qualifying period she had significant but not severe issues with her knees. Additionally, VQFV was awarded 5 points under Table 14, as her dermatitis was causing a mild functional impairment. Whilst her allergy condition is causing her ongoing issues which she cannot completely avoid, they occur only two to three times a year, which should more appropriately be accommodated under the statutory provision of sick leave and not through the granting of a DSP.
VQFV was encouraged to consider reapplying for the DSP on the basis of her worsening lower limb conditions, as her knee condition was deteriorating and causing significant issues with her functionality.
Additionally, she has completed a program of support. Although the JCA assessment during the qualification period in 2017 found she has a capacity to work 15-22 hours per week with intervention, the recent report from her orthopaedic surgeon indicates her deteriorating condition results in her not being able to work because of significant pain issues. This would indicate she currently has a continuing inability to work.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

[sgd].....................................................................
Associate
Dated: 31 August 2018

Date of hearing: 9 July 2018

Advocate for the Applicant: Applicant’s Husband

Advocate for the Respondent: Ms Jenna Molan

Solicitors for the Respondent:
Department of Human Services,

Freedom of Information & Litigation Branch

[2018] AATA 3152

31 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Date of hearing:	9 July 2018
Advocate for the Applicant:	Applicant’s Husband
Advocate for the Respondent:	Ms Jenna Molan
Solicitors for the Respondent:	Department of Human Services, Freedom of Information & Litigation Branch