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

WHYW and Secretary, Department of Social Services (Social services second review) [2018] AATA 1050 (24 April 2018)
Division:GENERAL DIVISION
File Number: 2017/2232
Re:WHYW
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member R W Dunne
Senior Member B J Illingworth
Date:24 April 2018
Place:Adelaide

The Tribunal affirms the decision under review.
....................[Sgd]....................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – physical, intellectual or psychiatric impairment – whether an impairment rating of 20 points or more exists under the Impairment Tables – medical reports considered – Job Capacity Assessment report considered – whether continuing inability to work – whether applicant actively participated in a program of support – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) 1999 (Cth), Clause 4(1) of Schedule 2
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2011 & Determination 2014
REASONS FOR DECISION
Senior Member R W Dunne
Senior Member B J Illingworth
24 April 2018
INTRODUCTION

Pursuant to a confidentiality order made, the applicant in this case has been referred to as WHYW. He lodged a claim for disability support pension (“DSP”) with the Department of Human Services (“Department”) on 5 January 2016. When an officer of the Department decided to reject the claim, an Authorised Review Officer (“ARO”) affirmed the decision.
The applicant applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) for review. After AAT1 reached its decision, the applicant applied to this Tribunal for further review of that decision.
At the hearing before the Tribunal the applicant represented himself and the respondent was represented by Mr Visser (from the FOI and Litigation Branch of the Department of Human Services). The T Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975[1] were admitted into evidence, together with the following exhibit:
·Consumer Self Report Measure K10+ dated 19 April 2016 completed by the applicant, together with attached Progress Notes from a Social Worker (Sarah Atkinson) from the Flinders Medical Centre provided pursuant to the Freedom of Information Act 1991 (SA).[2]
[1] Exhibit R1.
[2] Exhibit R2.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant was qualified to receive the DSP in relation to a claim lodged at the Department on 5 January 2016, or within the 13 weeks thereafter.
LEGISLATION
The legislation relating to claims for DSP and the reference to the Impairment Tables is set out in the provisions of s 94 of the Social Security Act 1991 (the “Act”), which relevantly reads:
“Qualification for Disability Support Pension
(1)    A person is qualified for disability support pension if:
(a)    the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)      one of the following applies:
(i)   the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d)    the person has turned 16; and
(da)    in a case where the following apply:
(i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e)    the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)   is not an Australian resident; and
(B)   is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea)    one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)    the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)    If:
(a)    a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension; and
(c)the person is not a reviewed 2008-2011 DSP starter;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)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 this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)      is unlikely to need a program of support; or
(b)    is likely to need such a program of support provided occasionally; or
(c)      is likely to need such a program of support that is not ongoing.
Other definitions
(5)    In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)    is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)    education;
(b)    pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
…”
Also relevant in these proceedings is clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the “Administration Act”), which reads:
“4 Start day—early claim
(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.”
The provisions in clause 4(1) of Schedule 2 to the Administration Act mean that the applicant’s qualification and impairment ratings must be determined as at the date of his claim, and the only exception is where he is not qualified at the date of claim, but “will become qualified” and “becomes so qualified” within 13 weeks of lodging his claim (see Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs;[3] Re Fanning and Secretary, Department of Social Services;[4] re Harris v Secretary, Department of Employment and Workplace Relations[5]) In the applicant’s case, the start-day is the day he lodged his claim form, that is, 5 January 2016 and the applicant’s qualification for DSP is to be determined during the period 5 January 2016 to 5 April 2016 (the “Qualification Period”).
[3] [2012] AATA 922.
[4] [2014[ AATA 447, 144 ALD 133
[5] [2007] FCA 404.
IMPAIRMENT TABLES
Paragraph 94(1)(b) of the Act refers to the Impairment Tables. The Impairment Tables themselves are contained in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination 2011”). Determination 2011 has been made pursuant to subsection 26(1) of the Act and it relevantly reads:
“6.     Applying the Tables
Assessing functional capacity
(1)The impairment of a person 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.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)     An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example:     A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) 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
Note:For fully diagnosed and fully treated see subsection 6(5).
(c)    the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)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.
Fully stabilised
(6)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.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
7         Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
8         Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note:Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9         Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10       Selecting the applicable Table and assessing impairments
Selection steps
(1)       Table selection is to be made by applying the following steps:
(a)      identify the loss of function; then
(b)      refer to the Table related to the function affected; then
(c)      identify the correct impairment rating.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
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.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11       Assigning an impairment rating
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(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; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5)To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
…”
PROGRAM OF SUPPORT

As the requirements in paragraphs 94(1)(b) and (c) of the Act are cumulative, if a person does not have an impairment rating of at least 20 points under the Impairment Tables it may be necessary to consider whether the person has a continuing inability to work. If the person is also found not to have a single impairment that is a “severe impairment”, the person must have actively participated in a “program of support”. Paragraph 94(2)(aa) of the Act refers to a program of support. The requirements for determining whether a person has actively participated in a program of support are containing in Social Security (Active Participation for Disability Support Pension) Determination 2014 (“Determination 2014”). Determination 2014 reads:
“Part 1—Preliminary
1 Name
This is the Social Security (Active Participation for Disability Support Pension) Determination 2014.
2 Commencement
This instrument commences on the day after it is registered.
3 Authority
This instrument is made under subsections 94(3C) and (3E) of the Social Security Act 1991.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 Definitions
(1)      In this instrument:
Act means the Social Security Act 1991.
designated provider means any of the following:
(a)      a Job Services Australia provider;
(b)      a Disability Employment Services provider;
(c)      an Australian Disability Enterprise;
(d)any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
program of support has the meaning given by subsection 94(5) of the Act.
relevant period means:
(a)in relation to a person (other than a reviewed 2008-2011 DSP starter) whose impairment is not a severe impairment—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; or
(b)in relation to a person who is a reviewed 2008-2011 DSP starter and who:
(i)     is participating in a program of support at the time the person becomes a reviewed 2008-2011 DSP starter; or
(ii)    was participating in a program of support at any time during the period of 6 months before the person becomes a reviewed 2008-2011 DSP starter;
the period of 36 months starting on the day the person begins the program of support; or
(c)in relation to any other reviewed 2008-2011 DSP starter—the period of 36 months starting on the day the person is notified in writing that the person has become a reviewed 2008-2011 DSP starter.
reviewed 2008-2011 DSP starter has the meaning given by subsection 94(5) of the Act.
severe impairment has the meaning given by subsection 94(3B) of the Act.
(2)To avoid doubt, for the purposes of paragraph (b) of the definition of relevant period, a person may be participating in a program of support at a time:
(a)whether or not the person is actively participating in the program at that time in accordance with section 7 of this instrument; and
(b)even if the person is not participating in the program at that time as a result of an exemption, relief or suspension from the program.
6 Requirements and matters to be taken into account
(1) Part 2 specifies requirements for subsection 94(3C) of the Act.
Note 1:Subsection 94(3C) of the Act provides that 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).
Note 2:A person whose impairment is not a severe impairment and certain reviewed 2008‑2011 DSP starters are required to have actively participated in a program of support (see paragraph 94(2)(aa) of the Act).
(2)Part 3 sets out, for subsections 94(3D) and (3E) of the Act, matters that the Secretary must take into account in deciding whether he or she is satisfied that a person has actively participated in a program of support within the meaning of subsection 94(3C) of the Act.
Part 2—Requirements for active participation
7 Requirements for active participation
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i)       complied with the requirements of the program of support; and
(ii)       participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note:A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of support if:
(a)at the end of the relevant period, the person is participating in the program of support; and
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
Information required to be provided to the Secretary
(6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following information in relation to the program of support:
(a)the details of the designated provider of the program;
(b)the dates when the person started to participate in the program and, if applicable, ceased to participate in the program;
(c)the reason for ceasing to participate in the program (if any);
(d)any period during which the person did not participate in the program, including as a result of any exemption, relief or suspension from the program;
(e)the reason for any period during which the person did not participate in the program;
(f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g)the terms with which the person had to comply in order to satisfy the requirements of the program and the level of compliance with those terms;
(h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i)the frequency of contact that the person had with the designated provider of the program.
8 Periods of non-participation not to count
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program.
Part 3—Matters to be taken into account in assessing active participation
9 Matters to be taken into account relating to the program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a)was provided by a designated provider; and
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work (including self-employed work); and
(d)       includes at least one of the following activities:
(i)job search;
(ii)job preparation;
(iii)education and training;
(iv)work experience;
(v)employment;
(vi)return to work;
(vii)vocational or occupational rehabilitation;
(viii)injury management;
(ix)an activity designed to assist the person to prepare for, find or maintain work.
10 Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must take into account any relevant material or document that:
(a)       relates to the person’s participation in a program of support; and
(b)      relates to a program of support participated in during the relevant period.”
MATERIAL FACTS
The material facts in this case are largely not in dispute. For the most part they have been extracted from the Secretary’s statement of facts and contentions. Nevertheless, the Tribunal is satisfied of the material facts on the balance of probabilities.
The applicant lodged a claim for DSP on the basis that he suffered eosinophilic oesophagitis, L4/5 disc prolapse, right posterosuperior labral tear and post-traumatic stress disorder. Medical reports in relation to the claim appear to have been signed by Dr David Williams on 17 March 2015. A face to face Job Capacity Assessment report was completed on 4 April 2016. The assessor found that the applicant’s conditions of eosinophilic oesophagitis, L4/5 disc prolapse, right posterosuperior labral tear and post-traumatic stress disorder were not fully diagnosed, treated or stabilised and therefore could not be given an impairment rating. On 4 April 2016 the Department made a decision to reject the applicant’s claim for DSP. When the applicant requested an internal review of the rejection decision by an ARO, the ARO affirmed the original decision.
The applicant then requested a review of the ARO decision by AAT1 and on 22 March 2017 AAT1 affirmed the decision. AAT1 found that:
(a)the applicant’s condition of PTSD was not fully diagnosed, treated and stabilised;
(b)the condition of eosinophilic oesophagitis was fully diagnosed, treated and stabilised and attracted an impairment rating of zero points under Table 10, Digestive and Reproductive function, of the Impairment Tables;
(c)the condition of L4/5 disc prolapse was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 4, Spinal function, of the Impairment Tables; and
(d)the condition of the right shoulder impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 2, Upper Limb function, of The Impairment Tables.
AAT1 considered the applicant’s chronic pain as a separate condition, however, it found that the condition was not fully diagnosed, treated and stabilised. AAT1 concluded that the applicant had a total impairment rating of 15 points for all conditions and therefore was not medically qualified for the DSP.
The respondent submitted that the applicant did not qualify for DSP during the Qualification Period because:
·the applicant did not have a rating of at least 20 points under the Impairment Tables; and
·the applicant did not have a continuing inability to work as he did not have 18 months of active participation in a program of support in the three years immediately prior to the claim, or he did not satisfy an exemption in the program.
The respondent accepted that the applicant satisfied paragraph 94(1)(a) of the Act in that he had a physical and psychiatric impairment during the Qualification Period.
The Secretary made contentions in relation to all of the applicant’s conditions. These were as follows.
Eosinophilic Oesophagitis
The Secretary contended that the applicant’s condition of eosinophilic oesophagitis was not fully diagnosed, treated and stabilised for the following reasons. On 3 February 2014, Su Yin Lau, Gastroenterology Registrar reported that the applicant had been diagnosed with eosinophilic oesophagitis and an endoscopy undertaken in October 2013 showed normal oesophagus with no oesophageal strictures and a barium swallow test was undertaken and the results came back normal. The applicant was referred to have an oesophageal manometry to see what was causing his dysphagia. The test results of the manometry showed
“Normal study apart from mild impairment of normal antegrade oesophageal peristalsis, i.e. mild evidence of ‘hit and miss’ oesophageal peristalsis”.
The applicant reported to the Job Capacity Assessor in April 2016 that he had not had an endoscopy since 2013, whilst on 17 March 2015 Dr Williams, the applicant’s GP, reported that the applicant needed further endoscopy and dilatation and is on the waiting list. Alternatively, the Secretary contended that the condition of eosinophilic oesophagitis should not be allocated any impairment points under Table 10 because on 17 March 2015 Dr Williams reported that symptoms of the condition were dysphagia with some foods, such as bread and apples, and the impact on function was that the applicant needed to take care when eating, especially firm foods such as bread and meat. The applicant reported to AAT1 that he was not having any medical treatment for the condition and he could manage his symptoms by taking care when chewing and swallowing.
L4/5 Disc Prolapse
The Secretary accepted that the medical evidence showed that the applicant suffered from L4/5 focal disc protrusion, together with facet joint hypertrophy in mid-2014. However, the Secretary contended that the applicant’s condition of L4/5 disc prolapse was not fully diagnosed, treated and stabilised during the Qualification Period, based on the following evidence:
a)    On 31 October 2014, Mr YH Yau reported that the applicant had undergone a “second right L4/5 epidural steroid injection” which had not provided as much relief as the first injection. He further reported that the applicant should continue with exercise therapy and increased flexibility (through yoga) may help.[6]
b)    On 18 December 2014, the applicant’s treating GP, Dr Williams, reported that the Applicant had undertaken intensive physiotherapy for the injury and the “CT cervical spine was unremarkable”. [7]
c)    There is an absence of any medical evidence between late 2014 and mid-2016 to show what, if any, symptoms of the condition persisted during the period in question and if any treatment was undertaken during that time.
d)    On 4 July 2016, Dr Peter Slattery, Senior Consultant of the Flinders Pain Management Unit reported that the applicant presented with “marked and inappropriate pain behaviour” and “widespread body pain not congruent with the relatively restricted degenerative changes reported on CT in 2014; more recent CT and MRI scans of the cervical and lumbar spine do not report progressive degenerative changes”. Dr Slattery further reported that he suspected the applicant had a “somatic symptom disorder with pain predominant”, meaning there could have been significant psychosocial contributors to his pain experience.[8]
[6] Exhibit R1, T21, p263.
[7] Exhibit R1, T21, p392.
[8] Exhibit R1, T21, p405-406.
Given the uncertainty in the medical evidence regarding the causation of the applicant’s spinal and thigh pain and indeed whether it was organically caused, in conjunction with the lack of medical evidence during the Qualification Period regarding the spinal condition, the Secretary contended that it was not possible to be satisfied that reasonable treatment would have been unlikely to result in functional improvement to a level enabling the applicant to undertake work in the two years after the Qualification Period.
AAT1 concluded that the spinal condition and chronic pain were related, but functionally separate.[9] The Secretary disagreed with that conclusion, given that it was impossible to extricate the two conditions whilst the condition and cause of the chronic pain remained undetermined. Further, it was impossible to determine whether the impairment caused by the combined conditions was likely to persist for more than two years in circumstances where, during the Qualification Period, the applicant may have had undiagnosed and untreated somatic symptom disorder.
[9] Exhibit R1, T2, p14.
Alternatively, the Secretary contended that the condition of L4/5 disc prolapse should be allocated no more than 10 impairment points under Table 4- Spinal Function, for the following reasons:
a)    On 9 April 2014, Dr Tony Thoo, Occupational Physician reported that the Applicant “had full ranges of movement of his neck and both shoulders with no impingement signs”.[10]
b)    On 12 July 2014, Mr YH Yau, Consultant in Neurosurgery & Spinal Surgery reported that the Applicant had showed “cautious forward bend of fingers to mid thigh level inducing some back pain”.[11]
c)    The applicant reported to AAT1 that he can sit for 20 to 30 minutes at home and tolerates up to 50 minutes in lectures, he can manage cooking and cleaning and a little yard work and gardening and he was able to do a limited amount of overhead work using his left hand.[12]
d)    There was no corroborated medical evidence to suggest that the applicant met one of the indicators of severe functional impact.
[10] Exhibit R1, T21, p345 – 347.
[11] Exhibit R1, T21, p256.
[12] Exhibit R1, T2, p10.
Right Posterosuperior Labral Tear
The medical evidence showed that the applicant had a right shoulder arthroscopy and labral repair in August 2014 in order to treat a posterosuperior labral tear. On 18 December 2014, Dr Williams reported that the right shoulder strain “was treated with physiotherapy and the injury resolved.”[13] The Secretary contended that the condition was not fully diagnosed, treated and stabilised during the Qualification Period because the applicant had reported to the Job Capacity Assessor on 1 April 2016 that he had been unable to recover from the shoulder condition as he was unable to do the required physiotherapy. He was on the waiting list for the Pain Management Unit at both the RAH and the Flinders Medical Centre and was about to commence fortnightly physiotherapy and hydrotherapy. During the Qualification Period there remained further unexplored treatment options for the applicant’s shoulder condition. Further, there was a lack of specialist medical evidence on the functional impact of the applicant’s condition during the Qualification Period.
[13] Exhibit R1, T21, p 392.
Post-Traumatic Stress Disorder.
The Secretary accepted that the applicant’s condition of PTSD was fully diagnosed in the Qualification Period. However, the Secretary contended that the condition was not fully treated and stabilised. Following numerous attendances with Kenzie Gentle, Clinical Psychologist, she reported on 10 April 2014, that the applicant had made significant improvements, had been managing his anxiety well and had begun graded exposure therapy in order to reduce any residual avoidance.[14] Dr Barry Rowe, Psychiatrist, reported that the applicant’s PTSD symptoms had gone away since the applicant had successful Cognitive Behavioural Therapy from Kenzie Gentle[15] and subsequently reported that the applicant had told him that his PTSD symptoms had all abated substantially in recent months.[16] In the report of 20 August 2015, Dr Rowe noted that the applicant had reported as experiencing a recrudescence of PTSD symptoms, particularly persistent free-floating anxiety, severe insomnia and poor concentration. Dr Rowe suggested to the applicant that he try another form of antidepressant medication in order to reduce his arousal levels and reduce the frequency and severity of his PTSD symptoms. The applicant refused the medication and chose to continue using insomnia medication and accepted a prescription for Modafinil in order to improve his concentration. On 28 February 2015, according to his Bupa report, the applicant was back on prescriptions. On 6 November 2015, Dr Michael Warhurst, Consulting Psychiatrist, reported that the applicant described some PTSD symptoms, but had managed to minimise his avoidances and was better able to handle his anxiety symptoms. Dr Warhurst reported that the applicant needed psychology.[17]
[14] Exhibit R1, T21, p 348.
[15] Exhibit R1, T21, p 259-261.
[16] Exhibit R1, T21, p 266-284 at [278].
[17] Exhibit R1, T21, p 289-293.

The evidence suggested that the applicant’s condition of PTSD was episodic in nature. However, all of the specialist medical evidence suggested that even during periods when the applicant’s symptoms seemed to have abated, ongoing psychological treatment was necessary to consolidate his progress. Nevertheless, if the applicant’s condition during this time was as severe, as suggested by him in his statement, it could not be said that he was undertaking reasonable treatment in accordance with Part 2 of the Impairment Tables.
Alternatively, the Secretary contended that the applicant’s PTSD should be allocated no more than 5 points under Table 5 – Mental Health Function for the following reasons:
(a)Dr Warhurst further reported that, on 6 November 2015, the applicant’s “mood has actually been good recently. He says he manages to keep going, but once every 3 to 6 months he has a breakdown for a few days”. Given that the applicant’s condition is episodic in nature, the applicable rating is that which reflects the person’s overall functional ability, taking into account the severity, duration and frequency of the episodes, in accordance with the Introduction to Table 5.
(b)On 6 November 2015, Dr Warhurst also reported that the applicant’s PTSD caused some hypervigilance, nightmares, and occasional anger outbursts, anxiousness in big crowds causing the applicant to sit at the back of lecture theatres and to avoid shopping centres and crowds. He further reported that the applicant had “appropriate and reactive Mental State Examination. He was a bit flat, but there were no other overt abnormalities”.
(c)Although there was medical evidence to support the applicant’s claim to have difficulties in concentration, Dr Rowe reported that, based on his presentation in June 2015, his capacity to work and/or study was mildly to moderately impaired.
(d)There was no corroborated medical evidence to suggest that the applicant met any of the other indicators of functional impact under Table 5, during the Qualification Period.
The applicant’s written submissions contend that the condition of PTSD should be rated under Table 7 – Brain Function. However, the medical evidence does not suggest that the applicant experienced issues with neurological or cognitive function, during the Qualification Period. Accordingly, Table 7 is not an appropriate Table for the assessment of the applicant’s PTSD. In any event, the Secretary has contended that the applicant would receive nil points under Table 7 for this condition.
Chronic Pain
AAT1 considered chronic pain as a separate condition. The Secretary contended that there was no medical evidence to suggest that this condition was fully diagnosed, treated and stabilised during the Qualification Period.
Conclusion
The Secretary contended that the applicant’s conditions did not attract an impairment rating of 20 points and therefore paragraph 94(1)(b) of the Act was not satisfied.
EVIDENCE OF THE APPLICANT
At the beginning of giving his evidence, the Tribunal referred the applicant to the AAT1 decision that was being reviewed. He said he had read the decision a long time ago. He said he had also read the Secretary’s statement of facts and contentions. When asked why the Tribunal should not affirm the AAT1 decision, he said that there are a number of PTSD factors that had not been considered, but these were in the FOI documents forwarded to the Tribunal Registry on 22 December 2017. There were numerous AXIS references in the FOI documents that had not been taken into account. The AXIS documents refer to the ongoing support that had been provided to the applicant, and he said that the FOI documents showed that his medical conditions had been fully diagnosed, treated and stabilised in the Qualification Period. The applicant was unable to explain clearly how the FOI documents did this, but he said that AAT1 was wrong in paragraph 28 of its decision when it said that the applicant’s mental health condition was not fully treated and stabilised, such that an impairment rating could not be assigned. In relation to the Qualification Period, he said that there were many other things that had not been mentioned, but must be referrable to the Qualification Period. Further, he said that there was a material spread of dates in time where his conditions had not been referred to in the Qualification Period.
The applicant acknowledged that the medical conditions referred to in paragraph 13 of the AAT1 decision were broadly correct, but that his mental health condition was the most relevant. He referred to car accidents that had taken place in June 2015 and August 2015. He also referred to an assault that had taken place against him in a friend’s house in Edithburgh, which is near Yorktown on the Yorke Peninsular. He had been hit with a bar stool several times and went to hospital in Yorktown, and then to hospital in Adelaide for nose reconstruction and bands on his teeth. He said these injuries impacted on his claim for DSP.
The applicant then referred to Table 5 of the Impairment Tables and to the mental health function. He said that there was an extreme functional impact on activities involving his mental health and, as such, he should be assigned a rating of 30 points under Table 5. He said that evidence of this rating was referred to “somewhere” in the T Documents. He referred to the Interdisciplinarian Team Assessment(FMC) which showed a GAF (Global Assessment of Functioning) of 30/100. The applicant then referred to letters sent to the Registry which were dated September 2016 (from Dr Pols) and December 2016 (from Dr Slattery). In doing so, he acknowledged that the letters covered a period outside the Qualification Period. The applicant said that only his GP and Ms Atkinson, Social Worker referred to matters in the Impairment Tables. He said that these were in the FOI documents and were all within the Qualification Period. He specifically referred to a letter from Ms Atkinson which was dated 21 January 2016. The applicant was asked why Ms Atkinson could not give evidence before the Tribunal. He said she would have to be paid to do that, he hadn’t worked for five years and had no money. But he also said that Ms Atkinson did not know what the Impairment Tables were on 21 January 2016. Her letter dated 21 January 2016 was also referred to in pages 295-296 of the T Documents.
In cross-examination, Mr Visser asked the applicant whether he had read through all the FOI documents, which included document K10+ that had been filled out by the applicant. He said that K10+ was outside the Qualification Period, but in being dated 19 April 2016 it had referred to the last four weeks. Notwithstanding that, the applicant said that K10+ was not correct. He referred to Ms Atkinson’s notes accompanying the K10+ document, but then said that his responses were not correct. He said they were bogus and were “deliberately incorrect”. He said this was because sometimes he faked responses in order to get into hospital. He also said that, in April 2016, he was facing life imprisonment and there was no way he would have answered the way it was in K10+.
It was clear that the applicant was obviously depressed and went over a number of things. Emotionally, he said he had no friends, no house and no car. He was referred to page 13 of the AAT1 decision and to the references to his condition of eosinophilic oesophagitis. The applicant said that that condition did not have to be referred to because physically there was no problem with it. The applicant was referred to the condition of shoulder injury in the AAT1 decision. It was pointed out to him that Dr Williams had said that the condition should be rated 5 points under Table 2. The applicant said that he should be assigned 10 points instead. Mr Visser asserted that the shoulder injury had not stabilised and therefore the correct rating was 5 points as indicated in the AAT1 decision.
When asked to comment on his medical conditions, the applicant said that all the relevant material was in the medical reports. However, his severe mental and emotional issues had stopped him from identifying the conditions and preparing his written submissions. He said again emotionally, “I am simply doing my best”. The applicant then said he wanted to refer to other Tables, particularly those relating to chronic pain. However, Mr Visser asserted that the condition of chronic pain was considered by AAT1 in its decision, where it was said that there was no evidence of a medical pain clinic assessment and thus the condition could not be considered fully diagnosed, treated and stabilised. Hence, an impairment rating could not be assigned. The applicant then referred to paragraph 3 of the letter from Dr Williams dated 27 June 2017 where he stated that the applicant suffered from a chronic disability secondary to his back, neck and shoulder. The applicant asserted that his chronic condition could be rated under Table 1 and he would get 10 points.
The applicant was referred to the prescriptions list prepared by Dr Rowe and the antidepressants in it. Mr Visser said that the applicant had not been taking them. When the applicant referred to several antidepressants at different dates, Mr Visser argued that the antidepressants had not been claimed in the Qualification Period. The applicant referred to his Yorketown assault and to the fight that occurred involving Seacliff hotel security guards, but then said the police had deleted all the records involved, including the many emails he had sent to them. He said he had been accused of making false witness statements to the police. He then said he had collided into the back of a taxi involving passengers in August 2015 and had been charged with failure to drive with due care. He had made complaints to the police, but he still wanted to get into the law following his studies. He then became abusive because he could not obtain ratings under the Impairment Tables.
The applicant was then referred to the K10+ exhibit[18] which had been part of the FOI documents. He asserted that his answer to question 13 in K10+ was deliberately incorrect and it was not worth the paper it was written on. He said consideration of the FOI documents would show this.
[18] Exhibit R2.
After further discussion, the applicant agreed to make written submissions to AAT2 which Mr Visser could also read and consider. He agreed to make further submissions about the documents sent to the Tribunal Registry on 17 January 2018 and to the FOI documents sent there on 22 December 2017. The applicant then said that his physical representations before AAT2 of what he had been going through were nothing like what he had been going through in January 2016 when he lodged the DSP claim. The applicant was advised to make submissions in writing in relation to all the documents forwarded to the Registry on 16 January and 17 January 2018. He was advised to examine and refer to all the relevant FOI documents and include submissions in relation to them at the same time, including the letter apparently forwarded to the Registry on 7 August 2017. Following further discussion, the applicant acknowledged that he would specifically refer to those documents in the FOI material in respect of which he intended to make submissions and would then make written submissions on them.
CONSIDERATION
Was the applicant qualified to receive the disability support pension in relation to a claim lodged on 5 January 2016, or within the 13 weeks thereafter?
The decision under review in this matter is that made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (“AAT1”) on 22 March 2017. The AAT1 decision affirmed a decision made by an Authorised Review Officer of the Department of Human Services to reject the applicant’s claim for disability support pension.
It was on 5 January 2016 that the applicant lodged his claim for disability support pension. The claim was on the basis that he suffered eosinophilic oesophagitis, L4/5 disc prolapse, right posterosuperior labral tear and post-traumatic stress disorder. In its decision, AAT1 found that:
(a)the applicant’s condition of PTSD was not fully diagnosed, treated and stabilised so an impairment rating could not be assigned;
(b)the condition of eosinophilic oesophagitis was fully diagnosed, treated and stabilised and attracted an impairment rating of zero points under Table 10;
(c)the condition of L4/5 disc prolapse was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 4; and
(d)the condition of the right shoulder impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 2.
AAT1 considered the applicant’s chronic pain as a separate condition. However, it found that the condition was not fully diagnosed, treated and stabilised. AAT1 concluded that the applicant had a total impairment rating of 15 points for all his conditions and therefore was not medically qualified for the DSP.
Qualification Period
Schedule 2, subclause 4(1) of the Administration Act provides that the applicant’s qualification for DSP is to be determined during the period 5 January 2016 to 5 April 2016 inclusive, which is known as the Qualification Period. The Secretary (as the respondent) submitted that the applicant did not qualify for DSP during the Qualification Period essentially because:
(a)the applicant did not have a rating of at least 20 points under the Impairment Tables; and
(b)the applicant did not have a continuing inability to work as he did not have 18 months of active participation in a program of support in the 3 years immediately prior to the claim, or he did not satisfy an exemption from the program.
Relevant Caselaw
In giving his evidence, the applicant said that he thought the AAT1 decision was wrong because there were a number of PTSD factors that had not been considered by the AAT1 Member. The applicant said these were in the FOI documents forwarded to the Tribunal Registry on 22 December 2017 and in other documents forwarded to the Registry on 16 and 17 January 2018. In hearing this, the Tribunal reflected on decisions of tribunals and Courts dealing with an applicant’s qualification for DSP within the Qualification Period. For WHYV, the period is set out above in paragraph 41. To emphasize, in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the Tribunal there looked at the DSP qualification issue and at [34] said:
“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 in 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 decision 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 open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
In re Fanning and Secretary, Department of Social Services [2014] AATA 447 Deputy President Handley said at [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.”
In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 Gyles J in the Federal Court said at [1]:
“This case concerns the application of s 94 of the Social Security Act 1991(Cth) which deals with the conditions the grant of a disability support pension. …the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. 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.”
In Gallacher v Secretary, Department of Social Services [2015] FCA 1123 Besanko J in the Federal Court, more recently in 2015, said he respectively agreed with the approach taken in the above cases.
The Applicant’s Case
In broad terms, the applicant’s case in relation to his claim for the DP may be outlined as follows:
(a)Firstly, the applicant asserted that there were documents in the FOI material which showed that his medical conditions had been fully diagnosed, treated and stabilised in the Qualification Period. However, the Tribunal noted that these documents had not been specifically identified by the applicant and until they were it would not be possible to determine whether they related to matters or conditions within the Qualification Period. There had been exhibited by the respondent a particular document called “Consumer Self Report Measure” K10+ from within the FOI documents.[19] The document K10+ was dated 19 April 2016, but it was expressed to refer to the last four weeks to make it relevant to the Qualification Period. Moreover, in his closing submissions the applicant indicated that he was willing to accept the K10+ document, but because of a large number of outside stressors occurring during the Qualification Period he said there was no way the information in that document could be accurate. The applicant also said in his evidence that his responses in the K10+ document were “deliberately incorrect”.
(b)Secondly, there were documents relating to the applicant’s medical conditions emailed by him to the Tribunal Registry on 16 and 17 January 2018 which the applicant asserted related to and/or supported his claim for the DSP.
[19] Exhibit R2.
The Applicant’s Medical Conditions for DSP
The Tribunal now examines the applicant’s medical conditions referable to his claim for DSP:
(a)In relation to the condition of eosinophilic oesophagitis, the applicant said that physically there was no problem with it and it would follow that he does not wish to continue the review of the AAT1 decision.
(b)In relation to the applicant’s condition of shoulder injury, AAT1 had assigned an impairment rating of 5 points under Table 2 of the Impairment Tables. Although it was outside the Qualification Period, in a letter dated 27 June 2017, Dr David Williams suggested a rating of 5 points for moderate functional impact on activities involving upper limb function. Mr Visser contended that there was a mild functional impact on activities and a rating of 5 points under Table 2 was appropriate. The Tribunal accepts that a rating of 5 points under Table 2 is correct.
(c)In relation to the condition of L4/5 disc prolapse, AAT1 had assigned an impairment rating of 10 points under Table 4. For the Secretary, Mr Visser disagreed with the AAT1 conclusion that the applicant’s spinal condition and chronic pain were related but functionally separate and that the spinal condition could be separately assessed. Alternatively, Mr Visser accepted that the condition of L4/5 disc prolapse should be allocated no more than 10 points under Table 4 – Spinal Function. The Tribunal agrees with this assessment.
(d)In relation to the applicant’s condition of post-traumatic stress disorder, AAT1 found that the applicant was not engaged in regular psychotherapeutic work, his consultations with Dr Rowe were sporadic and he had not seen his psychologist since early 2016. As a result, the main part of the recommended treatment had not proceeded and its effect on function could not be evaluated. AAT1 found that the mental health condition was not fully treated and stabilised, so an impairment rating could not be assigned. For the Secretary, Mr Visser accepted that the applicant’s PTSD was fully diagnosed in the Qualification Period and agreed with AAT1 that the condition was not fully treated and stabilised. Based on the reports of Kenzie Gentle and Dr Rowe, there were significant improvements in the applicant’s condition and his PTSD symptoms had gone away. In November 2015, Dr Warhurst reported that, although the applicant’s condition was episodic in nature, recently his mood was good and although he was a bit flat there were no other overt abnormalities. Mr Visser contended that the applicant’s PTSD should be allocated no more than 5 points under Table 5. Although there may be evidence or material in the FOI documents that has not been identified by the applicant, the Tribunal accepts that a rating of 5 points under Table 5 is reasonable.
(e)In relation to the condition of chronic pain, AAT1 found that there was no evidence of a medical pain clinic assessment and the condition could not be considered fully diagnosed, treated and stabilised. An impairment rating could not be assigned. For the Secretary, Mr Visser contended that there was no medical evidence to suggest that this condition was fully diagnosed, treated and stabilised during the Qualification Period. The Tribunal agrees that an impairment rating cannot be assigned.
Closing Submissions

At the conclusion of the hearing on 18 January 2018, it was necessary for the Tribunal to consider the issue of closing submissions. It was clear that the applicant was upset and had been distressed by the proceedings. The Tribunal had given him the opportunity to withdraw his application for review and to lodge a fresh application, but the applicant was intent on continuing. Mr Visser’s oral closing submissions followed the Secretary’s statement of facts and contentions. The applicant was granted a period of 7 days (until 25 January 2018) to file and serve his closing submissions with the Tribunal and on the respondent. It was made clear to the applicant that his closing submissions had to include:
(a)identification of the specific documents in the FOI material and the documents in the emails he had sent to the Registry on 16 and 17 January 2018 to which his submissions relate; and
(b)particulars in each of them which enable the documents to which they relate to be properly matched.
The Tribunal noted that the applicant was unable to file and serve his closing submissions in writing by 25 January 2018. He requested several extensions of time and eventually complied with the extended period by filing and serving his written closing submissions on 26 February 2018. Supportive material relating to the applicant was also forwarded to the Registry by or on behalf of the Posttraumatic Stress Research Unit at Flinders University on 27 February 2018 but, given the circumstances, it was not able to be of assistance.
SUMMARY
During the course of these proceedings, it was necessary for the Tribunal to examine the various medical reports relating to the applicant’s conditions at the particular time. Unfortunately, the reports all came into being or were prepared outside the Qualification Period and the principle(s) established in the cases referred to in paragraphs 42 to 44 above apply.
To summarise the findings that have been made in paragraph 47, the Tribunal confirms that the impairment ratings for the applicant’s medical conditions are:
(a)       shoulder injury – 5 points under Table 2;
(b)       L4/5 disc prolapse – 10 points under Table 4; and
(c)       post-traumatic stress disorder – 5 points under Table 5.
It follows that the applicant has a total of 20 points under the Impairment Tables for these conditions. As the applicant’s impairments attract 20 points, it is necessary to consider whether he has a continuing inability to work as provided in the Act. To demonstrate a continuing inability to work, the applicant must either have a severe impairment, which is an impairment that has been given 20 points or more under a single Impairment Table, or the applicant must have actively participated in a program of support for at least 18 months in the 3 years immediately prior to his claim for DSP.
On all the material available, the Tribunal is satisfied that the applicant did not have an impairment that has been given 20 points or more under a single impairment table (and hence, is not a severe impairment) and he did not actively engage in a program of support for at least 18 months immediately prior to 5 January 2016. The Tribunal notes that, even if there are higher points allocated to the impairments in any of the conditions in paragraph 47, for an impairment to be a severe impairment for a condition there must be a rating of 20 points under a single table.
CONCLUSION
For the reasons outlined above, the applicant does not satisfy the provisions of s 94(1)(c) of the Act. The applicant was not qualified to receive the DSP in relation his claim lodged on 5 January 2016, or within the 13 weeks thereafter.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne, Senior Member B J Illingworth

.........................[Sgd]...............................................
Administrative Assistant
Dated: 24 April 2018

Date(s) of hearing: 18 January 2018

Date final submissions received: 2 March 2018

Applicant: In person

Advocate for the Respondent: Mr C Visser

Solicitors for the Respondent: Department of Human Services

[2018] AATA 1050

24 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	18 January 2018
Date final submissions received:	2 March 2018
Applicant:	In person
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Department of Human Services