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

[2019] AATA 2375

Apostolides and Secretary, Department of Social Services (Social services second review) [2019] AATA 2375 (2 August 2019)

Division:  GENERAL DIVISION

File Number(s):  2018/2613

Re:         Michael Apostolides

APPLICANT

And        Secretary, Department of Social Services

RESPONDENT

Decision

Tribunal:  Member I F Thompson

Date:      2 August 2019

Place:     Adelaide

The Tribunal affirms the decision under review.

..............................[sgnd]...................................

Member I F Thompson

Catchwords

SOCIAL SECURITY- disability support pension- whether conditions fully diagnosed, treated and stabilised- requirements of a program of support – whether continuing inability to work – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

Cases

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

Secretary, Department of Social Services and Seyfang [2016] AATA 243

REASONS FOR DECISION

Member I F Thompson

2 August 2019

INTRODUCTION

1. The applicant, Michael Apostolides, lodged a claim for disability support pension (DSP) on 2 February 2017. Centrelink rejected the claim in the first instance and Mr Apostolides requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision to reject the claim.

2. Mr Apostolides requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Mr Apostolides applied to the General Division of the Tribunal for a second review.

3. The hearing took place on 7 June 2019. Mr Apostolides attended the hearing and was self‑represented. Ms L Odgers represented the respondent, the Secretary, Department of Social Services.

4. Mr Apostolides gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

5. Mr Apostolides is now 63 years old. He suffers from a number of medical conditions which include conditions relating to his upper limbs, lower limbs and spine. He suffers also from migraines, benign oesophageal tumour and diabetes.

LEGISLATION AND ISSUES

1. Section 94(1) of the Act provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The assessment period in this case is 2 February 2017 to 4 May 2017. While the DSP form appears to be signed and dated in December 2016, it seems that it was “received” by Centrelink on 2 February 2017.

2. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (i)        They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (ii)       They have actively participated in a “program of support”.

3. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

4. Accordingly, Mr Apostolides will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work.

5. The Secretary accepted that Mr Apostolides suffers from an impairment and therefore satisfied s 94(1)(a) of the Act.

6. In the statement of facts and contentions, the Secretary contended that Mr Apostolides’ overall impairment rating for impairments arising from fully diagnosed, treated and stabilised conditions is no more than 10 points and that he does not satisfy s 94(1)(b) of the Act. In particular, the Secretary contended that the left knee and left ankle conditions could attract a rating of 10 points, and that none of the other conditions attracted a rating of impairment points.

7. It was not disputed that Mr Apostolides had not actively participated in a program of support within the meaning of s 7, Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).

8. Accordingly the Secretary contended that Mr Apostolides did not have a continuing inability to work and was not qualified for the DSP during the assessment period.

9. The main issue for determination is whether Mr Apostolides’ impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.

CONSIDERATION

1. The Tribunal notes the comments of Deputy President Bean in Secretary, Department of Social Services and Seyfang:

   I am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period.

2. The rationale for that approach is highlighted in the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:

   In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

3. In fact, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services, Deputy President Handley stated that:

   The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether ‘any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’ (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

4. Those comments are particularly relevant to the present case given the significant and unfortunate lapse of time between lodging the DSP claim on 15 August 2016 and the hearing before this Tribunal on 7 May 2019. This is a period approaching three years. The general effect of the medical evidence is that Mr Apostolides’ medical conditions have deteriorated over the last two and a half years. However, the task for the Tribunal is to assess his condition at the time of the DSP claim and during the assessment period.

EVIDENCE OF MR APOSTOLIDES

1. Mr Apostolides gave evidence on oath. His evidence was honest and forthright.

2. Mr Apostolides has a long history of employment since leaving school in his teenage years. Unfortunately he has been unable to work following a serious motor vehicle accident in July 2016 when he was severely injured. Previously he had worked as a self-employed truck and taxi driver for many years, and earlier he had worked in a variety of heavy, labouring jobs in mines and on railways. Various accidents and injuries have caused problems for him intermittently over a long period. They have affected his upper and lower limbs and his back. He had a total knee replacement in the 1980s. About 14 years ago he sustained a serious injury to his left ankle which required surgery. However, he had always kept on working despite the numerous setbacks.

3. The effect of the July 2016 motor vehicle accident was extreme. It changed his life. Mr Apostolides has not been able to return to work since that time. He had to close his trucking business He was physically disabled. Suffering from pain in the upper and lower limbs, he was confined to bed during the day and watched television. He spends a lot of time with his family although he has not been able to help with physical activities. Some short walks were possible, provided he used a walking stick. He used a walking frame with a seat for longer walks, for example around a supermarket; climbing stairs was possible provided there is a guard rail. Sitting down in one position was uncomfortable, and he could only drive short distances. He has not been able to help with household tasks, such as cooking and cleaning and he told the Tribunal that he cannot lift anything. He has needed assistance with putting on socks and shoes. All of these restrictions and difficulties have continued to affect him both at the time of the DSP claim and through to today.

4. In addition, Mr Apostolides thought that his memory had suffered following the accident. He was more forgetful which affected him in his conversations. Sometimes cues and prompts would assist his recall. Unfortunately he has suffered from migraines since childhood. The migraines still occur regularly.

MEDICAL EVIDENCE

1. A report from the Lyell McEwin hospital refers to Mr Apostolides’ admission to hospital on 13 July 2016 following involvement in a motor vehicle accident in which he sustained a right patella fracture. The report mentions that he “recovered well post-operatively”.

2. Mr Apostolides has been under the care of an orthopaedic specialist, Dr Savvoulidis who wrote in a report dated 11 August 2017 that Mr Apostolides had conditions of left shoulder acromioclavicular joint arthritis, glenohumeral joint osteoarthritis, right shoulder acromioclavicular joint osteoarthritis and right shoulder tendonitis.

3. In a medical certificate dated 21 December 2017, Dr Savvoulidis referred to symptoms from the bilateral shoulder conditions that included pain, stiffness and difficulty with activities of daily living.

4. In a report dated 21 February 2018, Dr Savvoulidis wrote that Mr Apostolides has:

   (i)        A long term injury to the left shoulder as result of a motor vehicle accident pre-dating Dr Savvoulidis’ first contact with Mr Apostlidies in 2006. The shoulder was functioning “reasonably well” until another motor vehicle accident in 2016 which caused a “significant aggravation”. Further surgery on the left shoulder is recommended;

   (ii)       Significant disability and pain which affect him with daily activities and self-care because of problems with his left arm;

   (iii)       A long-standing issue with his right shoulder, which was treated with surgery in November 2012;

   (iv)      Reasonable functionality with the right shoulder; and

   (v)       Bilateral knee replacement surgery and post-traumatic arthritis affecting his left ankle and foot.

5. Dr Wright is an occupational physician. His report dated 15 June 2018 refers to the motor vehicle accident in July 2016 in which Mr Apostolides sustained multiple injuries, including injuries to both shoulders. By mid-2018, Dr Wright reported that:

   (i)        The right total knee replacement is “comfortable at rest, painful with activity”;

   (ii)       The left total knee replacement is “comfortable”, while the left ankle is “ uncomfortable all the time”;

   (iii)       The left shoulder is painful, the right shoulder is “comfortable at rest, but he can’t use it too much”;

   (iv)      He has low back pain and inter-scapular pain; and

   (v)       He has migraines for which he takes pethidine.

6. In that report, Dr Wright wrote that Mr Apostolides:

   … is so stiff and inactive that his best opportunity for pain management is to have a graded paced approach to exercise and activity… going to a pool would be a good start given his multiple problems. He really does need to be more active…the solution to this pain problems is only marginally to do with medication, and much more to do with activity.

This was the situation when Dr Wright wrote his report about 12 months after the assessment period.

1. In an earlier report written on 15 April 2016, Dr Wright referred to the migraine headaches which Mr Apostolides has suffered form since childhood.  Over the years, a number of medications were trailed without long term success, leading to the prescription of pethedine “as an exception to the general rule”. Mr Apostolides was using pethidine at night to enable him to sleep when he has residual issues form a migraine during the day. He was taking panadeine forte at a rate of eight per day for musculoskeletal pains. If he had to take pethidine during the day for migraines, he would not work on that day.

2. In relation to management of pain, Dr Wright summarised two categories, namely migraine for which pethidine is prescribed, and secondly, chronic musculoskeletal problems for which pethidine should not be used. Dr Wright recommended assessing alternative analgesic medication for treating the musculoskeletal problems.

3. Mr Apostolides has a benign gastro-oesophageal junction tumour. A report by Dr Bucholz dated 14 December 2016 from the Lyell McEwin hospital confirms that there is no urgency in performing an operation as apart from reflux symptoms, Mr Apostolides is asymptomatic.

4. A report from a neuropsychologist, Mr Reid, dated 16 July 2018 summarised the results of neuropsychological assessment that included findings on cognitive function in the aftermath of the July 2016 motor vehicle accident. Broadly, the findings were unexceptional in terms of possible loss of cognitive function. Mr Reid concluded that no treatment was indicated for the “very mild cognitive impairments”. There was no psychiatric history.

IMPAIRMENT TABLES

1. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

2. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

3. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

4. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.

5. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

6. Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.

7. The applicable impairment rating for each of Mr Apostolides’ conditions will be considered in turn by reference to the Impairment Tables.

Upper limb condition

1. Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms. The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not sufficient.

2. A Job Capacity Assessment (JCA) Report dated 15 March 2017 noted that Mr Apostolides referred to functional impacts from bilateral shoulder problems:

   (i)        That he could not lift objects weighing more than 1.5 kilograms;

   (ii)       That he was unable to lift above shoulder height; and

   (iii)       That he had difficulty with writing, for example with filling out forms.

The JCA notes that Mr Apostolides mentioned that he was under the care of the orthopaedic surgeon, Dr Savvoulidis, and there was a possibility of future shoulder operation but not until his knee surgery had stabilised. He had physiotherapy for the shoulders in the past and was now managing the condition through medications. Household chores were problematic and he has difficulty with self-care and getting dressed.

1. For a moderate functional impact Impairment Table 2 states:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

1. The person has difficulty with most of the following:

   (a)      picking up a 1 litre carton full of liquid;

   (b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

   (c)      holding and using a pen or pencil;

   (d)      doing up buttons or tying shoelaces;

   (e)      using a standard computer keyboard;

   (f)       unscrewing a lid on a soft-drink bottle.

2. Taking into account all of the evidence about Mr Apostolides’ condition, the Tribunal is satisfied that his upper limb conditions were fully diagnosed during the assessment period and fully treated and stabilised. The Tribunal considers that the effects of these conditions on Mr Apostolides’  upper limb function attracts a rating of 10 points under the Impairment Tables for a moderate functional impact, in particular in meeting the descriptors in (1)(a), (b),(c) and (d)

Lower limb condition

1. Impairment Table 3 relates to lower limb function. It provides the descriptors relating to the use of the lower limbs. It is used where a person has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.

1. The Secretary contended that Mr Apostolides’ left knee condition and left ankle condition were fully diagnosed, treated and stabilised at the assessment period. However, it was contended that the right knee condition was not fully diagnosed, treated and stabilised as full knee replacement operation occurred during the assessment period. The Tribunal agrees with that contention. As Dr Wright indicated, Mr Apostolides had fractured the right patella in the motor vehicle accident in July 2016, which eventually led to the total knee replacement.

2. By contrast, the left knee replacement had occurred in the mid-1980s. The left ankle osteoarthritis followed an injury in a motor vehicle accident about 14 years ago.

3. For a moderate functional impact Impairment Table 3 states:

Points

Descriptors

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

1. The JCA Report dated 15 March 2017 noted that Mr Apostolides was having difficulty with pain in both knees. He told the assessor that he could not “static stand” for 15 minutes, and had an inability to walk short distances or navigate uneven terrain. He could not squat or kneel and was unable to do any housework.

2. Taking into account all of the evidence about Mr Apostolides’ condition, the Tribunal is satisfied that his lower limb condition concerning the left knee and left ankle were fully diagnosed during the assessment period and fully treated and stabilised. The Tribunal considers that the effects of these conditions, as distinct from those related to his right knee condition, on Mr Apostolides’ lower limb function is capable of being identified and, as such, attracts a rating of 10 points under the Impairment Tables for a moderate functional impact, in particular in meeting the descriptors in (1)(a),(2) and (3)(b).

Spinal condition

1. Impairment Table 4 – Spinal function, is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.

2. Medical evidence about the spinal condition is not plentiful. A radiological report from the Lyell McEwin hospital dated 13 July 2016 mentions early spondylosis at the C5/6 and C 6/7 levels of the cervical spine and mild spondylosis in the lower spine.

3. Dr Wrights report written on 15 June 2018 provides some evidence of the impact of the spinal conditions over a year after the assessment period. That report mentions significant limitation in range of motion of the cervical spine and thoracic spine. However that report provides limited assistance to the Tribunal in determining whether an impairment rating can be assigned in respect of the assessment period.

4. The JCA Report dated 15 March 2017 noted that Mr Apostolides reported problems with back pain, an inability to remain seated for ten minutes, inability to bend his knees, with difficulty turning his neck. The JCA assessor contacted Mr Apostolides’ general medical practitioner, Dr Adzanku who reportedly confirmed the presence of chronic pain but was unable to provide specific information about the back and neck condition.

5. The Tribunal is satisfied that there is sufficient medical evidence to conclude that the spinal disorder was diagnosed at the assessment period. However, the evidence about treatment and outcomes is sparse and it cannot be concluded that the spinal condition was fully treated and fully stabilised as at the assessment period. Accordingly no impairment rating can be given.

Migraines

1. In the DSP claim form, Mr Apostolides listed migraines as one of the disabilities, injuries or illnesses that he has.

2. The JCA report concluded that the migraine condition was fully diagnosed, fully treated and fully stabilised. The report noted that the migraines do not have a functional impact on daily activities, equating to a nil rating under Impairment Table 7. The Secretary submitted that the migraines had not prevented Mr Apostolides from working in the past. And also referred to Impairment Table 15 as a possible alternative to Impairment Table 7.

3. Impairment Table 15 refers to a person who has a permanent condition which results in functional impairment due to involuntary or altered state of consciousness. As examples, it mentions epilepsy, some forms of migraine, and transient ischaemic attacks.

4. The Tribunal is persuaded by Dr Wright’s medical reports, that the migraine condition which affects Mr Apostolides is considered most suitably under Impairment Table 15.

5. Migraines have troubled Mr Apostolides throughout his life. Their regularity has not changed markedly. At the time of the DSP claim, their frequency and impact were the same as always. The resort to pethidine as a response to a continuing and serious condition indicates the disabling form of the migraines. It enables him to function until the next migraine. If the migraine occurs during the day he could not work. Generally, however, they occurred at night. As Dr Wright commented in his report written on 1 April 2016 , Mr Apostolides:

   …had migraines as a child and he saw Dr Burrows , now retired, in the mid 1990s.I saw Dr Burrow’s letter of 2011, which commented on multiple failed trails [sic] of preventive medication, many difficulties with medication and a recommendation to use pethidine for headache. While the use of pethidine for headache is not conventional, it can be assumed that Dr Burrows would have made that recommendation as an exception to the general rule.

6. According to the JCA Report, Mr Apostolides indicated that the migraines do not have a functional impact on daily activities. That would seem to be an under-statement both of the actual impact of the condition and of the way in which Mr Apostolides has learnt to live with it. The impact is temporarily disabling. The method of dealing with it is a combination of an extreme measure through medication, and resting or sleeping pending recovery.

7. The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension refers to altered states of consciousness as ones that include occasions “where a person may not lose consciousness completely and may remain sitting or standing but becomes unaware of their surroundings or actions.”

8. In relation to mild functional impact, Table 15 states as follows:

Points

Descriptors

5

There is a mild functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)      The person:

(a)      either:

(i)       has rare episodes of involuntary loss of consciousness, which:

(A)      occur no more than twice per year; and

(B)      do not usually require hospitalisation; or

(ii)       has episodes of altered state of consciousness, which:

(A)      occur no more than twice per year; and

(B)      do not usually requiring [sic] hospitalisation; and

(b)      is able to perform most activities of daily living between episodes; and

(c)       may have restrictions on a driver’s licence due to the medical condition.

1. For moderate functional impact, Impairment Table 15 states as follows:

Points

Descriptors

10

There is a moderate functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)      The person:

(a)      either:

(i)       has episodes of involuntary loss of consciousness:

(A)      which occur more than twice each year but not every month; and

(B)      which require the person to receive first aid measures and occasionally emergency medication or hospitalisation; or

(ii)       has episodes of involuntary altered state of consciousness:

(A)      which occur at least once per month; and

(B)      which are less than 30 minutes in duration; and

(C)      during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and

(b)      is able to perform many activities of daily living between episodes; and

(c)      is unlikely to be granted a driver’s licence and may have other safety-related restrictions on activities; and

(d)       is not able to attend work, education or training activities on a full‑time basis and is restricted due to safety issues in the work‑related activities that they can undertake.

1. The Tribunal is satisfied that the migraine condition was fully diagnosed during the assessment period and fully treated and stabilised. Clearly, descriptors for a mild functional impact do not properly reflect the frequency and the impact of Mr Apostolides’ migraines. The Tribunal considers that the functional impact of this condition attracts a rating of 10 points under Impairment Table 15 for a moderate functional impact, in particular in meeting the descriptors in (1)(a) (ii) , (b), (c) and (d).

Other conditions

1. Mr Apostolides’ other conditions included benign oesophageal tumour and diabetes. On the evidence before the Tribunal, it is clear that neither of these conditions would attract a rating under the Impairment tables.

Program of Support

1. Mr Apostolides has a total rating of 30 points across the Impairment Tables. However, he does not have an assessment of 20 points or more less than one Table and does not meet the definition of having a severe impairment. Therefore he needs to have a continuing inability to work, as defined in s 94(2) of the Act. He must have actively participated in a program of support and his impairment must be sufficient from preventing him from doing any work or training activity independently of a program of support within the next two years.

2. The next step for the Tribunal is, therefore, to consider whether Mr Apostolides had actively engaged in a program of support for 18 months out of a period of 36 months preceding his DSP application, as required by Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

3. It was common ground that Mr Apostolides had not participated at all in a program of support for at least 18 months during the three years leading up to the date of the DSP claim. Mr Apostolides did not dispute this contention.

4. Further, it was not contended that ss 7(3), 7(4) and 7(5) of the POS Determination apply to Mr Apostolides’ circumstances. In essence, those subsections provide an alternative pathway to compliance with the requirements of the program of support. However, the evidence, or lack thereof, does not raise any suggestion that an exemption could apply. And in any event those exemptions can only apply if an applicant has at least participated in a program of support during the 36 months prior to their DSP claim.

5. Accordingly, the Tribunal finds the program of support requirement has not been met.

SUMMARY

1. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

2. Mr Apostolides’ lower limb condition was fully diagnosed, treated and stabilised during the assessment period and the applicable impairment rating is 10 points.

3. Mr Apostolides’ upper limb condition was fully diagnosed, treated and stabilised during the assessment period and the applicable impairment rating is 10 points

4. Mr Apostolides’ migraine condition was fully diagnosed, treated and stabilised during the assessment period and the applicable impairment rating is 10 points

5. Mr Apostolides' spinal condition was diagnosed during the assessment period, however it was not fully treated and fully stabilised. Accordingly an impairment rating cannot be given.

6. With a total of 30 impairment points, s 94(1)(b) of the Act is satisfied.

7. Mr Apostolides does not have a severe impairment within the meaning of s 94(2)(aa) of the Act as he does not have an impairment rating of 20 points or more under a single Impairment Table. Accordingly, there is a requirement for him to have actively participated in a program of support within the meaning of s 94(3C) of the Act. However, as previously explained, Mr Apostolides does not meet the requirements for participation in a program of support and does not satisfy the criteria for continuing inability to work within the meaning of s 94(1)(c) of the Act.

8. Accordingly, Mr Apostolides has not qualified for DSP at the time he made his claim and during the assessment period.

9. As Mr Apostolides was not qualified for DSP at the time he lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

DECISION

1. For the reasons set out above the Tribunal affirms the decision under review.

   I certify that the preceding 80  paragraphs are a true copy of the reasons for the decision herein of I F Thompson

............................[sgnd]..................................

Associate

Dated:

2 August 2019

Date(s) of hearing:

7 June 2019

Applicant:

In person

Advocate for the Respondent:

Ms. L Odgers

.