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

Yonan and Secretary, Department of Social Services (Social services second review) [2018] AATA 1856 (26 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3777
Re:Ms Raeda Yonan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:26 June 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Ms Yonan satisfies all the requirements of section 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of her claim.
........................................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – disability support pension –– whether qualified – whether spinal disorder, left knee meniscal tear, bilateral tennis elbow and adjustment disorder are fully diagnosed, treated and stabilised - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security Act 1991
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 2014
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
26 June 2018
INTRODUCTION

Ms Yonan (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 her Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 13 July 2016 Centrelink found that Ms Yonan was not entitled to DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 23 April 2018. Ms Yonan was self-represented and accompanied by her sister. Ms Marie-Elaina Bakas, of Sparke Helmore appeared for the Respondent and the Tribunal was assisted by an Arabic interpreter via phone.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Yonan:
(a)had a physical, intellectual or psychiatric impairment;
(b)had a diagnosed condition or conditions which have been fully diagnosed, treated and stabilised and are likely to continue for at least two years;
(c)had a fully diagnosed, treated and stabilised condition or conditions which attracted 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)has a continuing inability to work.
BACKGROUND
Ms Yonan, who is now 47 years of age, currently lives with her siblings in Melbourne after having fled Iraq for Syria and then having to flee the war in Syria. Ms Yonan completed year 12, has undertaken training through the United Nations in the refugee camps in Iraq/Syria and worked with numerous charities in a voluntary capacity in the refugee camps before migrating to Australia in 2013.
On 23 May 2016 Ms Yonan made an application for DSP, citing her medical conditions as ‘lumbar spine surgery, cartilage (left Knee), disease of the cervical spine, breathing difficulties, stress because of the pain, uncomfortable sleeping, sever pain in the arms (tennis elbow), anaemia, weakness, difficulty sitting on the toilet, numbness in the left toes, vertigo, chronic headaches and chronic stiffness in the neck, back and leg’.
On the 13 July 2016 Centrelink had a job capacity assessment (JCA) conducted on Ms Yonan. The JCA report found the following:
·Spinal Disorder (other) was considered to be fully diagnosed, treated and stabilised as she had undergone reasonable treatment for this condition and it was anticipated that future intervention would be for management and maintenance purposes only. The condition is chronic and likely to persist and 10 points were awarded under Table 4 - Spinal Function
·Lower limb deficiencies, left knee meniscal tear was considered to be fully diagnosed treated and stabilised but nil points were awarded under Table 3 - Lower Limb Function as the assessor was unable to determine the level of functional impact related to the knee condition
·Shoulder and upper arm disorder, was not considered permanent and nil points were awarded
·Musculoskeletal disorder, bilateral tennis elbow was considered to be diagnosed but not fully treated or stabilised and nil points were awarded
·Psycho/psychiatric disorder was considered permanent but not to be fully diagnosed, treated or stabilised and she would benefit from specialist assessment and consistent specialist treatment which may result in functional gain
·Ms Yonan was assessed as having a work capacity 8 -14 hours per week and 15 -22 hours per week in 2 years with intervention.
On 13 July 2016 Centrelink wrote to Ms Yonan to inform her that her DSP had been refused as she did not have an impairment rating of 20 points or more under the Impairment Tables.
On 24 January 2016 on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier JCA report finding that Ms Yonan’s total impairment rating was nil and found the following:
·conditions of lumbar disc degeneration, non-allergic rhinitis, meniscal tear of left knee, bilateral tennis elbow, and adjustment disorder are not accepted as being permanent as they have not been fully treated and stabilised
·Ms Yonan did not have a continuing inability to work 15 or more hours per week because of her impairment
On 24 May 2017 the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Ms Yonan ‘s DSP claim and found:
·spinal disorder is fully diagnosed, treated and stabilised and is likely to last for more than two years and is having a moderate functional impact on activities. Accordingly, 10 impairment points were awarded under Table 4 - Spinal Function
·left knee meniscal tear condition was not considered fully treated and stabilised and accordingly an impairment rating was not able to be assigned
·rhinitis had not been fully diagnosed treated and stabilised and accordingly an impairment rating could not be assigned for this condition
·bilateral tennis elbow was considered not fully treated and stabilised and no impairment rating could be assigned for this condition
·adjustment disorder was considered fully diagnosed but not fully treated and stabilised and therefore an impairment rating could not be assigned for this condition
·other conditions of bilateral plantar fasciitis, carpal tunnel syndrome, migraine, headaches, arthropathy, hypoparathyroidism, asthma, chronic obstructive airway disease and anaemia were not considered by the Tribunal due to lack of clinical information
On 27 June 2017 Ms Yonan sought a review of the AAT1 decision by this division of the Tribunal, stating in her application ‘I am not satisfied with the decision because of my health condition, which is constantly deteriorating due to the chronic diseases I have suffered for a long time and there is no improvement despite treatment and the existence of new medical reports’.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (Administration Act) Ms Yonan’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 22 August 2016.
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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
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.
For the purposes of section 6(7), 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, at the time, Ms Yonan suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
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 (see Part 2, section 5(2)).
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, referred to as the “T documents”, supplementary T documents and additional medical reports which were provided by Ms Yonan.
DOES MS YONAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, that a person suffers from an impairment.
The parties accept that Ms Yonan is suffering from spinal disorder, left knee meniscal tear, bilateral tennis elbow, adjustment disorder, rhinitis, bilateral planter fasciitis and other conditions (carpal tunnel syndrome, migraine, headaches, arthropathy, hypoparathyroidism, asthma, chronic obstructive airway disease and anaemia). Accordingly, the Tribunal finds that Ms Yonan 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 disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS YONAN HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Spinal disorder
Dr V. I. Karloa, consultant physician, provided a medical report to Ms Yonan’s general practitioner Dr B. Francis on 21 October 2014 in which he reported that an MRI of the lumbar spine:
showed laminectomies at L3/4 and L4/5 and L3/4 contact with but no appreciable mass effect on the traversing L4 nerve root. At L4/5 there was minor bilateral subarticular recess canal stenosis with minor compromise of the traversing L5 nerve root on the left.
Dr Karloa provided a further medical report on 30 November 2014 in which he reported that Ms Yonan:
had an MRI of the lumbar spine which showed mild-to-moderate discovertebral changes at L3/4 and L4/5 with disc osteophytes complex protrusion at L3/4 causing mild impression on the left L4 nerve root in the lateral recess. At L4/5 there is diffuse symmetric disc protrusion and facet joint and ligamentum hypertrophy causing the mild impression on the left L5 nerve root in the lateral recess.
There is a decrease in size of the disc at L3/4.
Her MRI showed minor changes in the cervical spine but whereas she wouldn’t be able to do heavy physical lifting or anything involving repetitive spinal movements the changes are not severe.
Dr Shatha Minas, General practitioner, in a medical report dated 19 May 2015 reported:
Miss Yonan has multiple medical conditions these conditions are post-traumatic stress disorder, anxiety, depression, lumbar disc disease with history of laminectomy at L3/4 and L4/5 and contact with L3/4 broad based disc bulge and ligamentum flavum bulging prison with mass effect on the traversing L4 nerve root; minor bilateral subarticular recess canal stenosis compromising of the traversing L5 nerve root on the left, sacralisation of the right L5 traverse process. Cervical disc bulge is associated with vertigo, broad-based disc bulges at C3/4 to C7T1, left C5/6 perineural cyst, mild level cervical spondylosis. Left knee injury and ongoing symptoms, migraine, headache, arthropathy, vitamin D deficiency, hypoparathyroidism, asthma, coad and anaemia.
Due to the above condition she has been very limited by her abilities to perform her daily living activities she is unable to lift, bend, stand or sit for only short periods of time nor able to concentrate, focus affecting her to great deal therefore she is not in a position to work or study either now or in the future.
Dr Talib Tahir, consultant rheumatologist physician, provided a medical report on 22 June 2017 in which he opines:
I review Raeda today for the management of chronic health issues, generalise joint pain, chronic neck and lower back pain with features of degenerative disc disease of moderate severity. This is a chronic condition and she has been trying different treatments with some help, she also has bilateral planter fasciitis and calcaneal spur and Achilles tendinitis. Raeda also has fibromyalgia and chronic depression.
All these conditions have had a significant impact on her function and quality of life, which makes it difficult for her to do daily activities and also affected her sleep and she is currently on pain management. Raeda is also trying some water aerobics and physiotherapy. This is a chronic condition; surgical intervention is not feasible at this stage.
The Respondent accepted that this condition is longstanding, has been fully diagnosed, treated and stabilised and the evidence provided by Ms Yonan and her treating doctors indicates it has a moderate impact on her functional ability to support an impairment rating of 10 points under Table 4.
Ms Yonan advised the Tribunal that she is in constant pain, has extreme difficulty undertaking daily activities, that she can’t sit for long periods and needs to change her position regularly to get comfortable. She often feels embarrassed in public because she can’t sit down because she is in pain, can’t go shopping on her own and has to go with with her sisters, can’t reach up to grab items from the supermarket shelves, particularly heavy ones, and has difficulty turning her neck which has prevented her from getting her driver’s licence. She said she rarely left the house and told the Tribunal she had travelled by car and train to the hearing as she could not sit in the car for any length of time and the train provided her the opportunity to stand up and move around when needed.
Ms Yonan advised the Tribunal her brother is currently acting as her carer and she is very dependent on her sisters to perform many daily activities such as preparing meals, shopping, getting dressed and washing herself. Ms Yonan said that her sister assists her with washing her hair and body; that she can’t shampoo her own head as putting arms are above her head is difficult and her hands cramp straight away; that she choose clothes that she can put over her head as she cannot do buttons up and needs assistance getting dressed.
Her elder sister has recently come from Sweden to assist with looking after both her and their elderly mother as Ms Yonan is unable to look after herself let alone her mother.
The Tribunal is satisfied that Ms Yonan’s spinal condition had been fully diagnosed, treated and stabilised. In assessing Ms Yonan’s the level of impairment arising from the condition, the Tribunal considered the evidence from her doctors and herself regarding her daily activities as against the descriptors for a severe impairment under Table 4:
There is a severe functional impact on activities involving spinal function.
(1)       The person is unable to:
(a)       perform any overhead activities; or
(b)       turn their head, or bend their neck, without moving their trunk; or
(c)       bend forward to pick up a light object from a desk or table; or
(d)       remain seated for at least 10 minutes.
The Tribunal considers that whilst the available evidence corroborated that Ms Yonan had significant difficulties with the above activities, it could not be satisfied that she was unable to perform them. She gave evidence that she was able to bend to pick up items off a table and could lift her arms whilst she dressed, although she often avoided doing so. The Tribunal finds the evidence relating to the functional impact and limitations resulting from Ms Yonan’s spinal condition accords with the majority of the descriptors for a moderate impact under Table 4 and therefore awarded 10 points for the condition.
Left knee meniscal tear
An MRI of Ms Yonan’s left knee performed on 14 May 2014 indicated signal abnormality of the anterior horn of medial meniscus with meniscal exclusion suspicious for a complex tear.
Dr Tahir provided a medical report on 26 September 2016 in which he noted:
I reviewed Raeda today for the management of complex soft tissue rheumatism with chronic neck and lower back pain with features of a disc disease and disc prolapse, left knee meniscus injury and severe depression and fibromyalgia pain and bilateral planter fasciitis. She’s going to see you to have her pain management optimised and she might need gentle physiotherapy and water aerobics.

Ms Yonan contended at the hearing that at the time of the DSP application:
·     she couldn’t walk around the shopping centre or supermarket without assistance - she had to lean on the supermarket trolley to get around, she had previously used a walking stick but it was too difficult to use the stick and push the trolley;
·     she couldn’t walk any distance;
·     she couldn’t use stairs as she cannot control her legs:
·     she can stand up from a sitting position without assistance;
·     she rarely used public transport as she was unable to do so without assistance and it takes too long getting on and off the bus and the drivers will not wait for her; and
·     she has had several falls and is now fearful of falling in public
Ms Yonan also indicated that she undertakes minimal household activities or chores as she can’t stand for long periods, gets cramps in her hands, has had several falls and can’t lift heavy objects. She spends most of her days sleeping, walking a little bit and watching television.
The Respondent accepted that this condition was fully diagnosed as demonstrated by the MRI of 14 May 2014 but did not accept it was fully treated and stabilised as Ms Yonan had indicated that surgery had been recommended and not undertaken. The Respondent indicated that if the Tribunal did accept the condition was fully diagnosed, treated and stabilised it should only attract 5 points under Table 3.
In assessing the functional impact of this condition, 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.
Ms Yonan presented at the hearing as an honest and forthcoming individual. She displayed difficulty sitting for any length of time constantly getting up from her chair to make herself comfortable. The Tribunal accepts that this condition is fully diagnosed, treated, and stabilised as Ms Yonan has undertaken all relevant treatment for this condition, particularly physiotherapy, which appears to have little benefit It notes the evidence provided does not indicate a strong preference for surgical intervention and accepts her evidence that she did not decline surgery but that it was raised as a possibility while other treatment options were considered.
Whilst the Tribunal found that Ms Yonan had extensive difficulties with her mobility, it was not satisfied that it could award 20 impairment points under Table 3. It notes that a person must be unable to perform any of the activities under paragraph (1) of the 20 point descriptor table, and this was not satisfied as Ms Yonan was still able to stand from a sitting position. The Tribunal considered that her inability to use stairs without assistance and difficulties walking, resulting in some reliance on public transport indicated a moderate impairment as per the relevant descriptors. The Tribunal therefore awarded 10 impairment points.
Bilateral tennis elbow
Dr Francis in the medical report for Ms Yonan’s disability support pension claim of 29 August 2014 notes that Ms Yonan is suffering from bilateral tennis elbow which is generally well managed and causes minimal or limited impact on her ability to function.
Ms Yonan told the Tribunal that she:
·   has great difficulty doing up buttons, relies on her sisters to assist her with dressing;
·   can’t use her mobile phone
·   carries a small purse but can get coins out
·   no longer cooks as she can’t use her hands as they cramp.
The Respondent contends that there is insufficient corroborating medical evidence to demonstrate there was any functional impact caused by or associated with this condition during the qualifying period.
Whilst the Tribunal accepted Ms Yonan‘s description of her functional difficulties as a result of her bilateral tennis elbow, it concurred with the Respondent that there was insufficient medical evidence to independently corroborate the functional impact of this condition.
Mental Health Condition
A Northern Health Clinical Health Psychology Discharge Summary of 16 July 2015 notes that Ms Yonan has had 11 assessment/therapy sessions and on the original assessment it was noted:
Raeda reported symptoms consistent with somatic symptom disorder and post-traumatic stress disorder, triggered by injuries and multiple traumatic events experienced in Iraq and Syria. She also appears to be experiencing symptoms consistent with adjustment disorder with depressed mood. Raeda was born in a country experiencing significant instability. She also reports her father left for war while she was quite young. Upon migration to Syria to escape the war in Iraq, further war broke out, leading to further experiences of traumatic events. Raeda’s management strategy was to throw herself into voluntary and social work, deriving great fulfilment and joy in helping others. However a car accident and significant repetition from physical work appeared to have led to current experiences of persistent pain, low mood, trauma and decrease in function. As such Raeda’s usual management strategies are unavailable to her.
Dr Raid Al Humrany, consultant psychiatrist, in a medical report of August 2016 noted:
Ms Yonan described few years history of an adjustment disorder with a mixture of anxiety and low depressive mood getting worse for the last few months due to chronic physical condition/pain disorder which has ongoing negative impact on mood behaviour and attitude.
He notes they discussed the option of medication but Ms Yonan described a strong fear of using antidepressants and preferred to first start psychotherapy and then commence on antidepressant if these sessions did not provide enough positive impact. It was advised to link Ms Yonan with an Arabic speaking psychologist.
Dr Juliette Hooper, clinical psychologist, in a report of 30 January 2018 opined that:
The impact of the trauma and numerous losses resulted in development of physiological symptoms including insomnia, loss of appetite, crying a lot, depressed mood, anhedonia, fatigue, social withdrawal/isolation, low tolerance to frustration, low motivation, cognitive difficulties (including memory loss and poor concentration) and lack of interest in activities. She also experienced post-traumatic syndromes including flashbacks, intrusive distressing memories, hyperarousal and hypervigilance. Based on her presentation, history provided and symptoms, it was my opinion that she had developed moderately severe PTSD and Major Depressive Disorder (chronic, moderate to severe, ongoing). She also reported symptoms which included claustrophobia and panic disorder.
There is no doubt that this lady had endured a lot and the impact on her psychological well-being has been significant. She is not coping well at present, cannot sleep, spends a lot of time crying and ruminating over the past.
Due to strong maintaining factors and severity of her condition, there has been minimal improvement over the time I have seen her and she will require care assistance into the future
Ms Yonan contended at the hearing that at the time of the DSP application she was having difficulty doing the following:
·self-care and independent living, she relied upon her brothers and sisters to assist her with showering cooking and cleaning
·travelling alone
·socialising, while she still attend church regularly she stays at the rear as she finds it easier to go in and out because of her back pain
·she still has friends who are in regular contact and encourage her to participate in the Saturday school at church
·making decisions and planning
The Respondent contends that this condition is unable to be assigned an impairment rating under Table 5 - Mental Health Function as, although it was fully diagnosed, it was not fully treated and stabilised during the qualifying period.
Under Table 5 the diagnosis of the condition must be made by either a clinical psychologist or psychiatrist. The Tribunal accepts that Ms Yonan’s mental health condition had been assessed by a psychiatrist during the qualifying period as evidenced by the report of Dr Humrany dated August 2016, with subsequent reports from Dr Hooper based on the clinical findings in this report confirming a diagnosis of PTSD and Major Depressive Disorder. The Tribunal was satisfied that Ms Yonan was suffering from a mental health condition which is impacting her greatly and is fully diagnosed based on these reports,
However the Tribunal concurs with the Respondent’s contention that the condition could not be regarded as fully treated and stabilised during the qualifying period. Relevant reports from the period, namely that of Dr Humrany are limited to considerations of Ms Yonan’s symptoms and prospective treatment options, with no evidence to indicate that these were undertaken during the qualifying period. Subsequent reports from Dr Hooper regarding treatment and management are dated from 2017 onwards. The Tribunal is therefore unable to assign an impairment rating for the condition.
Rhinitis
A report from the Royal Melbourne Immunology and Allergy Clinic at the Royal Melbourne Hospital of 11 March 2016 opines that Ms Yonan:
is still very sensitive to smoke, perfume and chlorine, does report chest tightness if she is exposed to these inhalants. Her symptoms do get worse with an infection, associated with some slight cough or sputum production, and some blocked nose as well. She is currently not prescribed any nasal sprays at the moment.
Ms Yonan advised the Tribunal that since arriving in Melbourne she had suffered greatly from allergies and was exceptionally sensitive to smells such as perfume and chlorine. She told the hearing her sister had not worn perfume at her recent engagement celebration so that Ms Yonan would not have an allergic reaction.
The Respondent contends that the condition was fully diagnosed but not fully treated and stabilised during the qualifying period. Additionally they argued there is insufficient corroborating medical evidence to demonstrate there was any functional impact caused by the condition.
The Tribunal accepted the condition was fully diagnosed, treated and stabilised and whilst very sympathetic to Ms Yonan’s condition there was no evidence it was having any impact on her functional activities, abilities, symptoms and limitations and accordingly does not award any impairment points for it.
Bilateral planter fasciitis
Dr Tahir provided a medical report on 26 September 2016 noting:
I reviewed Raeda today for the management of complex soft tissue rheumatism with … and bilateral planter fasciitis. She’s going to see you to have her pain management optimised and she might need gentle physiotherapy and water aerobics.
This was followed by a further report of 2 February 2017 which stated that the condition had a significant impact on her function and quality of life, and that she would continue pain management and physiotherapy to manage her symptoms.
Ms Yonan advised the Tribunal she suffers from severe pain in her feet and this has been ongoing for some time. She has been undertaking physiotherapy and is on a waiting list to see a podiatrist about specialist orthotics. Her doctor has also advised her that injections into her feet may offer some relief from the pain but that it would only be temporary.
The Respondent contends that this condition cannot be considered fully diagnosed treated and stabilised during the qualifying period and as a result no impairment points should be assigned for this condition. The Tribunal concurred with the Respondent in respect of this condition. Both the diagnosis and treatment recommendations occurred after the qualifying period and there is little to no evidence as to the effectiveness of treatment to date and whether symptoms have stabilized. It therefore awarded no points.
Other conditions (carpal tunnel syndrome, migraine, headaches, arthropathy, hypoparathyroidism, asthma, chronic obstructive airway disease and anaemia
Dr Minas, in a medical report dated 21 March 2016 reported that Ms Yonan has:
…ongoing symptoms, migraine, headache, arthropathy, vitamin D deficiency, hypoparathyroidism, asthma, coad, anaemia, allergy and asthma.
In a medical certificate of 5 April 2016 Dr Minhas further noted that Ms Yonan is suffering from carpal tunnel syndrome which is significantly impacting on her ability to work or study.
In a further medical report of 22 June 2017 which again lists Ms Yonan’s numerous medical conditions Dr Minhas opines that:
Due to the above conditions she has been very limited by her abilities to perform her daily living activities as she is unable to lift, bend, stand or sit for only short period of time nor able to concentrate, focus affecting her to a great deal therefore she is not in a position to work or study neither now or in the future.
The Respondent contends that there is a lack of corroborating medical evidence in respect of these numerous conditions and it is hard to ascertain if they were all fully diagnosed, treated and stabilised during the qualification period and if there was any resulting functional impact experienced by Ms Yonan during the qualifying period. The Tribunal concurred with the Respondent in respect of these conditions and found no points could be awarded.
IMPAIRMENT RATING
The Tribunal has found that Ms Yonan has an overall impairment rating of 20 points and therefore satisfies section 94(1)(b) of the Act, with 10 points allocated under both Table 3 - Lower Limb Function and Table 4 – Spinal Function.
DOES MS YONAN HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Ms Yonan must not only satisfy the requirement that she has impairment with a rating of 20 points or more under the Impairment Tables, she must also demonstrate she has a continuing inability to work. Ms Yonan would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to her claim for DSP and her impairment is of itself sufficient to prevent her from doing any work independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal has strictly enforced the program of support requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not.
Ms Yonan has not been found to have a severe impairment of 20 points under a single table so therefore she must have participated in program of support for the requisite 18 months prior to her claim. The Respondent provided evidence in its supplementary materials of a program of support calculation which indicated that Ms Yonan had completed a total of 687 days of such a program within the required timeframe and accepted that she satisfied section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly found Ms Yonan had completed a program of support and therefore does satisfy section 94(3C) of the Act.
The Respondent notes that the JCA’s dated 13 July 2016 and 19 December 2016 found that the Applicant’s baseline work capacity was 8-14 hours per week and that this capacity would be increased within the next two years with intervention to 15-22 hours per week. The Respondent therefore argues Ms Yonan was not prevented by reasons solely of her impairment from undertaking work of at least 15 hours per week.
I note that 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 medical opinions of Dr Minas and Dr Hooper both indicate that Ms Yonan has a continuing inability to work. The Tribunal places weight on the opinion of Dr Minas given her considerable contact with the Applicant as evidenced by several reports which detail a significant number of conditions. Dr Minas found Ms Yonan was not in a position to work or even study now or in the future due to her multiple conditions which not only affected her physically but also impaired her concentration and focus. As noted Dr Hooper’s reports were based on clinical findings made during the qualification period and opined that Ms Yonan had shown minimal improvement despite psychotherapy and medication and would require care and assistance into the future. The Tribunal is therefore satisfied that Ms Yonan has a continuing inability to work.
CONCLUSION
I am satisfied that, at the date of application, Ms Yonan was qualified to receive the DSP, as her impairments attracted 20 impairment points under the Impairment Tables based on her spinal condition attracting 10 under Table 4 - Spinal Function and her left knee meniscal tear attracting 10 points under Table 3 - Lower Limb Function. Additionally, she satisfies s 94(1)(c) of the Act in that she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Ms Yonan satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of her claim.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

.........................[sgd].............................................
Associate
Dated: 26 June 2018

Date of hearing: 23 April 2018

Applicant: Self-Represented

Advocate for the Respondent: Ms Marie-Elaina Bakas

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 1856

26 June 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Remedies

Date of hearing:	23 April 2018
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Marie-Elaina Bakas
Solicitors for the Respondent:	Sparke Helmore