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

Case

[2017] AATA 1386

29 August 2017


Bibani and Secretary, Department of Social Services (Social services second review) [2017] AATA 1386 (29 August 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0116

Re:Ashti Bibani

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:29 August 2017

Place:Sydney

The decision under review is affirmed.

.....................[sgd]..............................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – multiple impairments – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – active participation in a program of support – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447
Kumar v Secretary, Department of Social Services [2017] FCA 158
O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277
Malcolm and Secretary, Department of Social Services [2016] AATA 440

Mongan and Secretary, Department of Social Services [2016] AATA 344

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

REASONS FOR DECISION

Ms N Isenberg, Senior Member

29 August 2017

BACKGROUND

  1. On 7 April 2016 the Applicant, Ashti Bibani, who is presently aged 52, lodged a claim for disability support pension (DSP) with the Department (Centrelink).  In her application, she claimed she was suffering from various impairments, mostly as a result of a car accident in 2009.  Her claim was refused.  That decision was affirmed on internal review and by the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1). 

  2. The Applicant previously received DSP while awaiting the outcome of her litigation in respect of the motor vehicle accident.  When that matter was settled in 2014 she was required to pay back to Centrelink the DSP she had received and was precluded from making another application for DSP for some months. 

    LEGISLATIVE SCHEME

  3. The relevant legislation is contained in:

    ·The Social Security Act 1991(Cth)(the Act);

    ·The Social Security (Administration) Act 1999(Cth)(the Administration Act);

    ·The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

    ·The Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

    THE RELEVANT PERIOD

  4. An Applicant’s claim for DSP must be assessed based on medical conditions as at the date of claim or within 13 weeks of that time: Schedule 2, Part 2, clause 4 of the Administration Act.  As the Applicant lodged her claim for DSP on 7 April 2016 (the date of claim), the relevant period, in this case, is 7 April 2016 to 7 July 2016: see Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

    ELIGIBILITY CRITERIA FOR DISABILITY SUPPORT PENSION

  5. The relevant eligibility criteria for DSP is set out in s 94(1) of the Act as follows:

    94. Qualification for disability support pension-continuing inability to work

    (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) …

    (i) The person has a continuing inability to work.

  6. There was no dispute that the Applicant had impairments during the relevant period and therefore satisfies s 94(1)(a) of the Act. 

    APPLICATION OF THE IMPAIRMENT TABLES

  7. The Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP: s 26(1) of the Act.  The Impairment Tables are function-based and describe functional activities, abilities, symptoms and limitations and ratings are assigned based on those descriptions.  The Impairment Tables further provide that a person’s impairment is to be assessed on the basis of what the person can, or could do, rather than on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables.

  8. The Impairment Tables may only be applied if the condition giving rise to the impairment is ’permanent’: s 6(3)(a) of the Impairment Tables.  ‘Permanent’ is defined to refer to a condition that is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: ss 6(4) of the Impairment Tables.

  9. When determining whether a condition has been fully diagnosed and fully treated, s 6(5) of the Impairment Tables requires a decision maker to consider the following:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.

  10. A condition can be ‘fully stabilised’ only 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 two years; or

    (b)the person has not undertaken reasonable treatment for the condition and either:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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.

  11. ‘Reasonable treatment’ is defined in s 6(7) of the Impairment Tables to mean treatment that is:

    (a)available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost;

    (c)can be reliably expected to result in substantial improvement in functional capacity;

    (d)is regularly undertaken or performed;

    (e)has a high success rate; and

    (f)carries a low risk to the person.

  12. In Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33], Deputy President Handley made the following observations:

    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.

    Spinal conditions: neck and back

  13. There was no dispute that the Applicant’s neck and back conditions were fully diagnosed, treated and stabilised during the relevant period.  These conditions are to be assessed under Table 4 (Spinal Function).

  14. The Applicant gave evidence that she has strong pain in her neck which extends into her head, ears, mouth and eyes.  The pain is so severe that it affects her concentration.  She said she is unable to move her neck, although she reportedly told AAT1 that she could turn her head without moving her trunk but that she finds it difficult to move her head from side to side and up and down.  As to that disparity, she said she was very nervous appearing before AAT1. 

  15. She said that a couple of years ago she installed cameras in her car as she is unable to move her neck so as to check traffic; before that she drove little – only to the doctor, to a friend’s or to nearby shops. 

  16. The Applicant told AAT1 that she finds it difficult to retrieve a book from a shelf; when she picks something up from the floor it is not easy for her to get up again; at that hearing it was observed that she could reach forward to pick up what was on the table in front of her; and could remain seated for more than 10 minutes.

  17. She told AAT1 that she could not do any vacuuming or mopping because of her back. 

  18. Her evidence before me was that she has problems standing, getting up from a seated position and difficulty with stairs.  If she stands for 10 minutes, she needs to then sit, and vice versa.  She then might have to lie down. Her doctor wants her to walk more than the 20 minutes she can manage.  The pain goes into her legs and to her feet, and is with her ‘24/7’.  She came to the hearing accompanied by her son, and had used the lift at the station, but had walked from the station to the hearing.  She has a walking stick but leaves it in the car.  She did not bring it to the hearing, she said, because she was accompanied by her son.  Her house has 2 storeys and she is contemplating installing a lift because of the difficulty with stairs; she may have to sell the house. 

  19. She said her sons do the shopping because she is unable to push the trolley.  If she needs milk, she can drive to the shops which are only 5 minutes’ drive away.  For other shopping, her niece will take her.  Her son does the vacuuming and hangs washing on the clothesline.  She does little cooking, buying hot food almost daily.  Her sons cook for themselves, because they are vegan.

  20. In a report, dated 14 March 2016, Dr M Sheridan wrote that the Applicant was:

    Restricted in her day to day activities. She cannot sit, stand or walk very long. Her sleep is disturbed. She has trouble with other physical activities. 

  21. On 29 June 2016, Dr Sheridan reported:

    Her neck and arm pain limit her day to day activities and interfere with her ability to do physical chores.

  22. In a medical certificate dated 18 August 2015 Dr E Lai, the Applicant’s General Practitioner, reported in respect of her neck, back, left and right arm and right shoulder that she was:

    Unable to lift, unable to back bend. Unable to lift above shoulder height. Prolonged walking, Standing and sitting aggravating pain in all the above sites. 

  23. These observations were repeated in Dr Lai’s reports dated 12 January 2016 and 16 February 2016.

  24. In a detailed report dated 5 April 2016 Dr Lai reported in relation to the Applicant’s neck condition:

    The pain is impacting greatly in (sic) her ability to perform her daily functions. She has difficulty turning her neck. Upward gaze is painful and affecting her ability to perform overhead work. Working on the computer causes neck pain as prolonged period with neck in one position causes pain.

  25. In relation to the Applicant’s lower back condition, in his report of 5 April 2016, Dr Lai wrote:

    She is unable to stand, sit or walk for prolonged periods. She is unable to back bend and to lift. As well as being unfit for work permanently the back disability is (sic) affected her ability to perform her home duties as (sic) cleaning and cooking and performing her house hold (sic) chores are difficult and slow and she would need constant resting.

  26. The Applicant provided a more recent medical report from Dr Lai, dated 16 March 2017, in which the doctor repeated his earlier observations and added that in his view the Applicant has a ‘severe functional impact on activities involving the spinal function’ and that she ‘should qualify for 20 point for impairment for spinal function’

  27. I was asked by Centrelink to place little weight on the conclusions by Dr Lai in his most recent report, given that it was written some 8 months after the end of the relevant period. I note however that the doctor repeated his observations made in his earlier report which was immediately prior to the relevant period.  Although Dr Lai, concluded that, in his view, the Applicant’s spinal condition should attract an impairment rating of 20 points, in my view the doctor’s description of the functional impact of the Applicant’s condition is more consistent with the functional impact descriptors at the moderate level.  That conclusion was confirmed, in my view, by the account of Dr Sheridan, and the Applicant’s own evidence.

  28. Table 4 (Spinal Function) relevantly provides:

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1)       The person has some difficulty in:

(a)       activities over head height (e.g. activities requiring the person to look upwards); or

(b)       bending to knee level and straightening up again without difficulty; or

(c)       turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)       The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)       the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)       the person is unable to bend forward to pick up a light object placed at knee height; or

(d)       the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

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.

  1. Therefore in respect of the Applicant’s spinal conditions I find that an impairment rating of 10 is appropriate.

    Upper limbs

  2. The Applicant said she has numbness in her fingers and right hand and that Dr Sheridan, her treating neurologist, said this was radiating from her neck.  I accept, on the basis of his report of 29 June 2016 that there is a link between her neck and arm pain. 

  3. Because I am obliged to assess impairment according to functionality, rather than the condition giving rise to the impairment, I consider it appropriate to assess the Applicant’s upper limb condition separately. 

  4. The Applicant said she has no ‘power’ in her right hand, and is unable to lift ‘at all’.  She said she is unable to open the lid of a bottle and is unable to clean.  Her handwriting is bad now and her hand ‘freezes’ which affects her use of a computer.  Before the operation on her shoulder (in June 2016) she could carry a jug of water, but since that time is unable to lift even one kilogram.  She is able to lift a glass of water with her left hand though.

  5. The Applicant told AAT1 that she finds it difficult to retrieve a book from a shelf; when she picks something up from the floor it is not easy for her to get up again; she finds it difficult to move her head from side to side and up and down; it was observed that she could reach forward to pick up what was on the table in front of her; and could remain seated for more than 10 minutes.

  6. She told me she now wears stretch clothes, and while she can put on a jumper over her head, it is ‘not easy’ and she threads her arm through the jumper. It takes her 1-2 hours to get dressed to go out and now she mostly wears her pyjamas around the home, and spends most of the day in bed, although she might go for a sauna or a spa.  She now only showers once a week, instead of twice daily as she did before the motor vehicle accident.

  7. On 29 June 2016, Dr Sheridan reported:

    Her neck and arm pain limit her day to day activities and interfere with her ability to do physical chores.

  8. In his medical certificates of 18 August 2015, 12 January 2016 and 16 February 2016 Dr Lai reported in respect of the Applicant’s neck, back, left and right arm and right shoulder that she was unable to lift above shoulder height. He did not indicate the extent this may have been due to the Applicant’s neck condition as distinct from her shoulder condition.  In his more detailed report of 5 April 2016 Dr Lai’s observations in relation to the Applicant’s neck condition (referred to at para [24] above) did not include any specific impairments of the upper limbs other than that pain was impacting greatly upon the Applicant’s ability to perform her daily functions.  His observation that working on the computer causes neck pain has been considered in respect of spinal impairment. 

  9. The relevant portions of Table 2 (Upper Limb Function) provides:

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)       The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

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

(1)       The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)       picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)       handling very small objects (e.g. coins);

(c)       doing up buttons;

(d)       reaching up or out to pick up objects.

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.

  1. I consider that the evidence supports a finding that the appropriate impairment rating is 5 impairment points. In coming to this view, I have, as best I can, disregarded the impact of the Applicant’s shoulder condition, and, in particular l note the evidence of Dr Sheridan, that the Applicant’s functional impairment in relation to her right upper limb is as a result of her neck condition.        

    Knee condition

  2. There was no dispute that the Applicant’s knee condition was fully diagnosed, treated and stabilised in the relevant period. The condition is to be assessed under Table 3 (Lower Limb Function). 

  3. The Applicant gave evidence that she has difficulties with both her knees, the left being worse than the right.  She said she had seen Dr M Johnson, orthopedic surgeon and another specialist and has been advised that she needs a knee replacement but that she should wait until she is 65.  Her physiotherapist gave her a knee guard which she wears whenever she goes out.  She said she had 50 - 100 physiotherapy sessions since 2010 but said she had stopped in 2011, because ‘they’ said her condition was stable.  

  4. In his report dated 19 November 2015 Dr Lai wrote:

    painful to walk ~ restricted walking to short distances. Unable to kneel and squat Difficult walking on uneven ground due to weakness and knees giving way.

  5. Dr Lai’s reports, dated 5 April 2016 and 1 July 2016, state the Applicant:

    is unable to kneel and squat … and is affecting her ability to perform her home duties.

  6. AAT1 recorded that the Applicant’s evidence was that she:

    ·was able to stand for 10 minutes;

    ·hangs on to the rail while using stairs;

    ·finds it difficult to kneel and squat; and

    ·can walk places but needs to rest after 10 minutes.

  1. The Table provides, relevantly:

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)       The person can:

(a)       walk without difficulty on a variety of different terrains and at varying speeds; and

(b)       walk without difficulty around the home and community; and

(c)       kneel or squat and rise back to a standing position without difficulty; and

(d)       stand unaided for at least 10 minutes; and

(e)       use stairs without difficulty.

5

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

(1)       At least one of the following applies:

(a)       the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)       the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)       the person has some difficulty climbing stairs; and

(2)       At least one of the following applies:

(a)       the person is unable to stand for more than 10 minutes;

(b)       the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

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. I find that the Applicant’s evidence both to AAT1 and before me is consistent with her knee condition being assigned 5 points under Table 3: she had some difficulty walking places and climbing stairs; she can stand for 10 minutes and does not routinely use a walking stick.  The evidence does not support a conclusion that the Applicant needs to drive or get other transport to local facilities, or that she is unable to use stairs without assistance, or unable to stand for more than 5 minutes. 

    Mental health condition

  2. There was no dispute that the Applicant’s mental health condition was diagnosed by Dr T Clark, forensic psychiatrist, in his report dated 28 June 2011.  That diagnosis was subsequently confirmed by Dr T French, clinical psychologist, in her report, dated 18 July 2016.  I accept that the Applicant’s condition has been diagnosed.

  3. Centrelink, contended however, that the Applicant’s mental health condition cannot be considered, in the relevant period, to be fully treated and stabilised.

  4. In his report dated 28 June 2011, Dr Clark stated that the Applicant’s prognosis was ‘uncertain’ and recommended that she ‘attend a treating psychiatrist’ for an initial course of treatment for nine months. 

  5. The Applicant said she was referred to the pain management clinic at Liverpool hospital in 2010 and it was from there that she was referred to a psychologist for pain management.  The Applicant confirmed in her evidence that she had only seen Dr Clark once in 2011, and not since.  She could not remember if she was medicated for her psychiatric condition in 2010-2011. 

  6. The only evidence of any subsequent treatment was the Applicant’s attendance at two appointments with Dr French on 7 October and 23 November 2015.  The Applicant’s evidence was that she had seen Dr French solely for the purpose of obtaining a report.  While in a letter dated 19 July 2016, the Applicant stated that she had seen a psychologist in 2011 and two psychiatrists in 2012 and 2013, there is no medical evidence about that treatment.  In those circumstances, I find that there is no evidence the Applicant has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement. 

  7. Accordingly, I find that the Applicant’s mental health condition cannot be considered fully treated and stabilised during the relevant period. Consequently, no impairment rating can be assigned to that condition.

    Other conditions: shoulder, thyroid, and stomach problems

  8. In relation to the Applicant’s shoulder condition, during the relevant period, the Applicant had planned to undergo surgery (which subsequently occurred in July 2016). She considers the operation to have been a failure, as she would have expected recovery by now. 

  9. Because, during the relevant period, her condition had not been fully treated and stabilised, no impairment rating can be assigned. 

  10. I accept the Applicant’s thyroid condition, for which she has been medicated since 2010, is permanent. Her evidence was that it caused her no functional impact. It must be assigned 0 points under Table 1 (Functions requiring Physical Exertion and Stamina).

  11. At the hearing the Applicant gave evidence, it appears for the first time, about stomach problems which she said had been brought about by her use of painkilling medication. She said that she has had stomach problems since 2010, and has been for four colonoscopies/endoscopies.  The Applicant produced an ‘patient schedule summary’ from Liverpool hospital which is consistent with this evidence, although not determinative.  She said she sees Dr Koo, gastroenterologist at Liverpool hospital every 6-12 months.  She has been advised to cease all painkillers as, she claimed, she has ulcers in her colon. I do not have sufficient evidence to be able to regard this condition as ‘permanent’ and therefore no impairment rating can be assigned.  

    OVERALL IMPAIRMENT RATING

  12. I therefore find that the Applicant’s impairments can be assigned 10 points under Table 4 (Spinal Function), 5 points under Table 2 (Upper Limb Function) and 5 points under Table 3 (Lower Limb Function).  Accordingly, the Applicant’s impairments attract an impairment rating of at least 20 points and, therefore, the Applicant meets the criterion set out in s 94(1)(b) of the Act.

    CONTINUING INABILITY TO WORK

  13. Having found that the Applicant’s fully diagnosed, treated and stabilised conditions could be assigned a rating of at least 20 points under the Impairment Tables, I turn to consider whether the Applicant had a continuing inability to work during the relevant period.

  14. Continuing inability to work is defined in s 94(2) of the Act, which states:

    (2) A person has a continuing inability to work because of an impairment if [the Tribunal on review] 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.

  15. Severe impairment is defined in section 94(3B) of the Act as follows:

    (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. (Emphasis added).

  16. As Ms Bibani has a combined impairment of 20 or more, she cannot be said to have a severe impairment.  Consequently, in order to be found to have had a continuing inability to work, she must have actively participated in a program of support (POS): section 94(3C).  That subsection provides that a person has actively participated in a program of support where they satisfy the requirements of a relevant legislative instrument made by the Minister for the purpose of that section: Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination 2014). (See also sections 94(3D) and 94(3E)).  Importantly, section 7 of the POS Determination requires that a person has participated in a program of support for at least 18 months in the 36 months ending immediately before the date of claim. 

  17. I was informed that, during the relevant period the Applicant had not completed at least 18 months in a program of support in the 36 months preceding the date of her claim for DSP.

  18. The operation of the Act is such that, without 18 months participation in a program of support prior to the date of her claim, Ms Bibani, while her condition cannot be regarded as ‘severe’ as defined, cannot be eligible for the DSP.  There are some limited circumstances where a person may be excused from continued participation, but these do not apply to Ms Bibani: see O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277, Malcolm and Secretary, Department of Social Services [2016] AATA 440and Mongan and Secretary, Department of Social Services [2016] AATA 344. The Tribunal has strictly enforced the program of support requirement to date, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act and that it is irrelevant whether an Applicant was aware of the requirement or not: Kumar v Secretary, Department of Social Services [2017] FCA 158 at [46].

  19. The requirements of section 94(2) are cumulative. Consequently, as the Applicant did not participate in a POS as required, she cannot be said to have a continuing inability to work, as defined, during the relevant period.  She therefore cannot meet all the criteria under section 94(1)(c).  As a result she was, during the relevant period, ineligible for the disability support pension.

    DECISION

  20. The decision under review is affirmed. 

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

..........................[sgd]....................................

Associate

Dated: 29 August 2017

Date(s) of hearing: 9 August 2017
Applicant: In person
Solicitors for the Respondent: Mr L Dennis, Department of Human Services