Blake and Secretary, Department of Social Services (Social services second review) - [2019] AATA 330

Blake and Secretary, Department of Social Services (Social services second review) [2019] AATA 330 (6 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1121
Re:Tristian Blake
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:6 March 2019
Place:Sydney

The decision under review is affirmed.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – applicant’s impairments total twenty points or more under the Impairment Tables – fibromyalgia – type II bipolar disorder – no continuing inability to work at date of claim – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Administration of the Territory of Papua New Guinea v Daera Guba (1973)130 CLR 353
Blake v Secretary, Department of Social Services [2018] AATA 1822
Eid v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] 138 ALD 180
Marchlewski v Secretary, Department of Family and Community Services [2004] AATA 1027
Muir v Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Soames and Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2012] AATA 699
Uebergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
6 March 2019

Ms Tristian Blake (the Applicant) seeks a review by this Tribunal of a decision made on 30 January 2018 by the Social Services and Child Support Division of this Tribunal (AAT1) to uphold a decision of the Secretary, Department of Social Services (the Respondent) to reject the Applicant’s claim for a Disability Support Pension (DSP).
The claim for the DSP was lodged by the Applicant on 18 August 2017. The initial decision to reject that application was made on 5 December 2017 and affirmed by a decision made by an Authorised Review Officer (ARO) on 18 December 2017.
The Applicant lodged an earlier claim for DSP on 17 May 2016 which was eventually unsuccessful, having been the subject of both an initial review by the Social Services and Child Support Division of this Tribunal (AAT1)[1] and a second tier review by the Tribunal’s General Division (AAT2).[2] The details of that claim do not need to be examined further by this Tribunal in relation to these current proceedings, although in that matter the Tribunal made certain findings in relation to the applicant’s level of impairment to which reference will be made.
[1] Section 37 Tribunal Documents at [149]-[154].
[2] Blake v Secretary, Department of Social Services [2018] AATA 1822.
The Applicant appeared at the hearing on 27 February 2019 self-represented but was assisted by her husband Alexander (Lex) Wills. Mr Wills also provided a written statement in support of the Applicant’s claim.[3] The Tribunal is grateful to both the Applicant and Mr Wills for their assistance and their clear presentation on evidence.
[3] Tribunal Exhibit [A1].
THE DISABILITY SUPPORT PENSION
The application for a DSP was made on 18 August 2017 and that triggers an assessment process to determine the eligibility of the applicant for the DSP which must take place as of the date of the claim or within 13 weeks thereafter. That is any time between 18 August 2017 and 17 November 2017.
This is what may be referred to as “the qualification period.”
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the applicant’s health, changes in their status or acquisition of additional medical or psychological conditions.
These may be material factors in any future application/claim made but they are not germane to the present assessment.
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the review of DSP matters. The Tribunal can consider only matters within the qualifying period and it has no legislative authority to do otherwise.
In order to qualify for the DSP an applicant must fulfil certain criteria which are set out in the Social Security Act1991 (the Act) in section 94.
In essence these requirements or criteria are:
1.The person has a physical, intellectual or psychiatric impairment
2.The person rates 20 points or more on the Impairment Tables (which are a set of criteria established to assess the level of impairment set out in a Determination made under s. 26 of the Act). Points may be accumulated for a variety or number of conditions or in certain circumstances awarded directly for one condition of particular severity.
3.The person has a continuing inability to work or the Secretary is satisfied that the person is participating in a programme known as the supported wage system
4.The person has turned 16
5.The person is an eligible citizen or resident.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing those Points, the condition (however defined) giving rise to the impairment must be :
·Fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These terms are also defined in the Impairment Tables, but since there is no dispute in this instance about whether or not the Applicant’s medical conditions meet these requirements, it is not necessary to examine these definitions.
Again, each of these conditions must be met before any Points on the Impairment Table can be awarded.
An inability to work is also defined in the legislation. In effect it means that the impairment prevents the person from
·Doing any work independently of a programme of support within the next 2 years.
·Undertaking a training activity within the next 2 years.
·OR “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 programme of support within the next 2 years.”
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
RELEVANT LEGISLATION
For the sake of completeness, the immediately relevant parts of s 94 of the Act are set out below:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
THE APPLICANT’S IMPAIRMENTS
In her application of 18 August 2017 the Applicant claimed to be suffering impairments arising from two conditions, namely:
·fibromyalgia; and[4]
·Bipolar Type II.
[4] A chronic pain condition characterised by widespread musculoskeletal aching and stiffness.
The Respondent concedes that the applicant suffers from these two conditions and that they are both fully diagnosed, treated and stabilised. As such, the extensive medical evidence before the Tribunal is relation to initial diagnoses, treatment and management of these conditions needs no further interrogation.
Furthermore, the Respondent accepts that in relation to each a rating of 10 points should be awarded from the relevant Impairment Tables, Table 1 (Functions requiring physical exertion and stamina) and Table 5 (Mental Health function).[5]
[5] Respondent’s Statement of Facts, Issues and Contentions at [5.2].
These ratings were determined in a previous decision of this Tribunal related to the Applicant’s application of May 2016 and have been adopted, for the purposes of this application, by the Respondent.
It is however the responsibility of this Tribunal to come to its own independent assessment of the impairment rating, although this must be a rating of the applicant’s condition as of 18 August 2017 (plus 13 weeks).
In this regard, the Respondent initially asserted that this Tribunal was bound to accept the findings of the AAT2 review in 2018 on the basis that a principle was established in Soames and Secretary, Department of families, Housing, Community Services and Indigenous Affairs[6] to the effect that “no new evidence” has been produced before this Tribunal which was not before the previous Tribunal when it made its decision on exactly the same evidence.
[6] Soames and Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2012] AATA 699 at [24]-[26].
That case lays out authority summarised in Marchlewski v Secretary, Department of Family and Community Services[7], including High Court authority which makes it clear that where there is “no new developments and no new evidence”[8] then such previous determinations should be respected.
[7] Marchlewski v Secretary, Department of Family and Community Services [2004] AATA 1027 at [9]-[12].
[8] Soames and Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2012] AATA 699 at [25].
While respecting those principles, in this instance the Tribunal cannot accept the Respondent’s urgings on this matter. This is because at the AAT1 hearing, the Member assessed the Applicant’s claim against the criterial set out in Impairment Table 2 (Upper Limb Function) and Impairment Table 4 (Spinal Function), whereas in this instance the assessment is against the criteria in Tables 1 and 5. Thus, while the evidence in these proceedings may be exactly the same as that before a previous Tribunal, it was applied in that previous Tribunal, to a different purpose.
In fairness to the Respondent, when this matter was pointed out by the Tribunal, the Respondent withdrew any reliance upon findings in either of the previous AAT hearings related to the May 2016 claim.
In order to make its assessment, the Tribunal turns to consideration of the relevant Tables in order to determine the points which should be awarded relevant to each impairment during the qualification period.
Table 1: Functions requiring Physical Exertion and Stamina
10 Points:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)       is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).
20 Points:
There is a severe functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)      use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)       has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The Applicant’s description of her “daily routines” during the qualification period clearly indicate that she had a compromised ability to walk, to perform daily chores (such as changing sheets or making full use of dishwasher or cooking) and suffered from significant chronic and ongoing pain. Nevertheless she was able to make limited use of public transport and perform some sedentary tasks, such as those related to her activities as either a student or her attempts to develop her skills as a game developer.
All parties agree that the Applicant qualifies at the 10 point threshold.
In her testimony to the Tribunal and under cross-examination by the Respondent, the Applicant outlined her daily routine and the nature of her activities during the qualification period. She indicated that, at that time, she was able to walk short distances with the aid of a walking stick; to access some forms of public transport (in particular the tram system); she spent time online both studying and posting comments on a chat page (related primarily to game development) and that she was able to undertake some very limited light household duties.
Given this evidence, it does not appear that the Applicant is able to meet the threshold established for the award of 20 points on Impairment Table 1 and, as such, the Tribunal concludes that she should be assessed at the 10 point level.
Table 5: Mental Health Function
10 Points:
There is a moderate functional impact on activities involving mental health function.
(1)The person has moderate difficulties with most of the following:
(a)self-care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making;
(f) work/training capacity.
20 Points:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self-care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making;
(f) work/training capacity.
Again there is agreement that the Applicant meets the 10 point threshold. She is compromised in her ability to take full care of herself, needing assistance with showering and with daily routines of meal preparation and eating. She is unable to concentrate for other than short periods of time and has limited ability in terms of planning and decision-making.
In order to qualify for 20 points, an applicant must meet the criteria on “most” of a list of six items, that is, they must have “severe difficulties” with at least four of them.
The evidence suggests that, during the qualification period, the Applicant was able to manage well enough in relation to a number of them. She was able, for example, to make at least two trips to the United States,[9] one for the purposes of attending a convention related to her game developer interests and the other for family reasons. She was able to undertake courses of study and/or participate in intelligent conversations on a chat page related to game development. She had, albeit a somewhat limited social life, but did maintain contact with friends and family members.
[9] Section 37 Supplementary Tribunal Documents, dated 26 February 2019, attachment [2].
It is also apparent that she was essentially dependent upon her husband in terms of self-care and independent living arrangements.
The Tribunal is aware that medical evidence supplied by Dr Mark Liew (a consultant Rheumatologist) suggests that the Applicant’s impairment rating should be set at 20 points.[10] However his opinion is based primarily upon self-reporting by the Applicant and even if taken at face value, does not, in the opinion of the Tribunal meet the 20 point threshold. There is also some inconsistency in the evidence in terms of Dr Liew’s reports and the Applicant’s own activities, as for example, he states at one stage that the Applicant is unable to travel,[11] although her trips to the United States demonstrate that this is not the case.
[10] Section 37 Tribunal Documents at [190].
[11] Ibid at [130].
Taken as a whole, it must be concluded that, during the qualification period, the Applicant did not meet the 20 point threshold.
IMPAIRMENT RATING
The Tribunal agrees with several of the previous assessments that, during the qualification period, the Applicant qualified for a rating of 20 points (10+10) on the Impairment Tables. As such the Applicant satisfies the first limb of s 94 of the Act.
The Tribunal also notes that from the evidence it appears that the Applicant’s level of impairment (e.g. need to use a walking frame rather than walking stick; being less able to use public transport etc) has increased to a marked extent since the qualification period and that, as a result, any assessment of her impairment rating against her current situation may result in a higher rating being determined.
APPLICANT’S QUALIFICATIONS AND EXPERIENCE
The Applicant has completed a Bachelor of Arts degree and later a Master of Teaching. She has also enrolled in a Master of Teaching Librarianship, but apparently not completed that.[12] On social media she describes herself as a game dev(eloper)” and reports both studying as an “incubator student” and an “intensive student”[13] apparently related to obtaining some qualification as a game developer through the Academy of Interactive Entertainment.[14]
[12] Section 37 Tribunal Documents at [120].
[13] Respondent’s Supplementary Tribunal Documents dated 29 February 2019.
[14] AIE: SPECIALIST EDUCATORS IN GAMES, ANIMATION & FILM VFX, About AIE < Its webpage states: “The Academy of Interactive Entertainment (AIE) is Australia's most awarded 3D animation, game design and visual FX educator. Created as a non-profit organisation to grow the creative digital sector, AIE pioneered the development of specialist game qualifications and continues to innovate through industry partnerships and dynamic teaching.”
The Respondent, in cross-examination sought to cast aspersions on the Applicant’s honesty in listing these activities as “Experience”, but this reading of the information is rejected by the Tribunal. It sees these blogs as being merely at the level of chatter which is typical of such social media platforms.
The Applicant has also worked as a telemarketer raising funds, and for a two year period in administrative services for a property service. This latter employment ended in 2006 and it does not appear that the Applicant has had any paid employment since November 2011.[15]
[15] Section 37 Tribunal Documents at [107].
CONTINUING INABILITY TO WORK
As has been set out above, s 94 of the Act consists of two limbs: the first relates to an applicant for the DSP satisfying the requirement to show that they have a rating of 20 points on the Impairment Tables and then, if they do, that they satisfy the requirements related to a continuing inability to work.
These requirements are set out in s 94(2) of the Act as follows:
A person has a continuing inability to work because of an impairment, if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support-the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity-- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).

Subsection 94(5) provides that work means work of at least 15 hours per week that exists within Australia, rather than in the local labour market.
Working one’s way through the processes and requirements set out in the Act is a labyrinthine process.
Subsection 94(3B) (referred to above in s. 94(2)(aa)) defines a “severe impairment” as one which attracts 20 or more points under the Impairment Tables related to a single impairment. As the Applicant has been awarded 20 points, but on a cumulative (10+10) basis, she does qualify as having a “severe impairment”.
In the process of determining whether a person has a continuing inability to work, the decision maker must disregard a number of factors, including:
(a)any impairments that have not been assigned a rating under the Impairment Tables;
(b)the availability of work in the person’s locally accessible labour market;
(c)the availability to the person of a training activity;
(d)the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment;
(e)the person’s preferences regarding the type of work or training;
(f)the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities; and
(g)difficulties with language, literacy or numeracy that are not directly attributable to a medical condition.
As the Applicant has not been allocated 20 impairment points from a single Table, she has to have adequately and actively participated in and completed a program of support before she can be found to have a continuing inability to work. A legislative instrument has been issued to assist in determining what a program of support is and whether a person has actively participated in a programme of support.
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination), sets out the requirements for active participation.
Thus, to qualify for the DSP a person must complete a programme of support or otherwise participate in and comply with programme requirements for at least 18 months in the previous three years, or until the person’s participation in the program is terminated because of their impairments.
THE POS DETERMINATION
The relevant sections of section 7 of this Instrument are:
(1) A person has actively participated in a program of support if the person satisfies
the following requirements:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the
program of support;
(c) subsection (6) is satisfied in relation to the person and the program of
support.
(2) This subsection is satisfied in relation to a person and a program of support if the
person participated in the program of support for at least 18 months during the
relevant period.
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the entire program during the relevant period.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant
period; and
(b) the program of support was terminated because the person was unable,
solely because of his or her impairment, to improve his or her capacity to
prepare for, find or maintain work through continued participation in the
program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program
of support; and
(b) the person is prevented, solely because of his or her impairment, from
improving his or her capacity to prepare for, find or maintain work through
continued participation in the program.
The POS Determination states that the requirement is also satisfied if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
There are exceptions to this requirement as set out in sections 7(3), 7(4) and 7(5) of the POS Determination:
(a) the person has completed a program that ran for a period less than 18 months;
(b) the person was participating in a program that was terminated before the person claimed pension, because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation; or
(c) the person is participating in the program at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation.
It is thus clear that participation in a programme of support must be completed in accordance with the requirements unless an applicant cannot meet this requirement, solely on the basis of their impairment.
Evidence before the Tribunal establishes that the Applicant, as at 18 August 2017 had completed only 269 days (less than 9 months) since commencing the programme on 23 March 2012 and that, in the three year period from 18 August 2014 to 18 August 2017 less than 269 days had been completed.[16]
[16] Ibid at [241].
The Applicant withdrew from the POS on 22 November 2017. In her written report, Ms Grace Ciempka (employed by Afford Employment to run POS services) indicated that the reasons for this withdrawal was that “Client is voluntary. The client states it is very difficult physically and emotionally to attend appointments” and that “client has attended most appointments, but these have mainly been to see in-house counsellor due to her mental health issues and to address barriers to employment.”[17]
[17] Ibid at [195] and [196].
Ms Ciempka gave evidence to the Tribunal to the effect that she had counselled the Applicant not to withdraw from the programme and that it was not in her (the client’s) best interests to do so. The Applicant however maintains that she withdrew from the POS on the basis of advice which she says she received from “the Tribunal” and from “the Department”. There is no way to establish the veracity of these claims.
In any event it is the Applicant’s claim that she was “exited” by Afford Employment from the POS. However this is not the case as Afford Employment has no authority or capacity to “exit” clients from a POS on medical grounds.[18] The Applicant’s departure from the POS was entirely voluntary.
[18] Respondent’s Statement of Facts, Issues and Contentions at [7.22].
The Applicant has subsequently re-joined the programme, but that has prospective, not retrospective application.
On 5 December 2017, a Centrelink job capacity assessor (JCA) found that the Applicant had a baseline work capacity of eight to 14 hours a week, with a future expected work capacity of 15-22 hours a week with intervention. The JCA recommended that the Applicant was suitable for a continuing referral to Disability Management Services (DES) for ongoing psychological intervention, an exercise programme, weight loss support and goal setting, which Centrelink believed was likely to result in the client achieving a work capacity of 15-22 hours a week within 24 months.[19].This report was made just shortly after the qualification period and is generally reflective of a similar report made approximately a year before, on 30 August 2016.[20]
[19] Section 37 Tribunal Documents at [208].
[20] Ibid at [144].
These assessments are contrary to that of Dr Liew who assessed the Applicant as:
“Unfit for any gainful employment for which she is suited by her education, training and experience at least in the foreseeable future (at least 2 years).”
Where there are conflicting opinions between JCA and medical reports, the Tribunal has to seek guidance from other sources. In Eid,[21] the Tribunal cautioned against the uncritical acceptance of JCA reports whereas in Uebergang[22] and particularly in Muir[23] the Tribunal strongly favoured the JCA assessments because of their particular focus on the capacity requirements of s 94(1)(c) of the Act.
[21] Eid v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] 138 ALD 180 at [63] and [75].
[22] Uebergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642 at [28].
[23] Muir v Secretary, Department of Employment and Workplace Relations [2005] AATA 902 at [43].
In this instance the balance, as far as the Tribunal is concerned, tips in favour of a preference for the JCA reports, not only for the reasons outlined in the authorities cited above, but also because that was the position taken by the AAT1 decision of 30 January 2018. Although that decision was assessing the Applicant on different Tables, it nevertheless had the same material before it and accepted the JCA reports and assessments. The member presiding at that Tribunal was Dr Tim Bohane who noted that: “The tribunal consisted of a professor of medicine, experienced in the management of each of Ms Blake’s medical conditions.”[24] This Tribunal consequently gives some weight to those preferences and findings.
[24] AAT Social Services and Child Support Division in Ms Tristian Blake and Secretary, Chief Executive Centrelink 2018/S118310 (30 January 2018).
CONSIDERATIONS
The Tribunal accepts that, during the qualification period, the Applicant certainly suffered from a number of difficulties arising from her impairments. However they were not of a sufficient level, at that stage, to prevent her from attending a programme of support or rendering her unfit for all future work at the date of application for the DSP.
Although the Applicant had significant pain and mobility issues, the Tribunal concludes that there was a reasonable prospect of her successfully completing a programme of support and being able to work for at least 15 hours per week without a programme of support, albeit in perhaps a limited range of occupations.
The Tribunal thus has to conclude that the Applicant did not meet the requirements of either s 94(2)(a) or 94(2)(b) of the Act, and thus could not qualify for the DSP.
PROSPECTIVELY
The decisions which this Tribunal has been required to make relate to a situation which appertained some years ago – in the qualification period of August/November 2017.
Things have moved on since that time. The evidence of Ms Ciempka and the observations of the Tribunal, together with the testimony of the Applicant and her husband speak to a significant increase in the extent, manifestation and impact of her impairments.
It is also the case that the Applicant has now completed POS for DSP eligibility, a matter relevant to any future claim but not affecting the claim made on 18 August 2017.[25]
[25] Respondent’s Statement of Facts, Issues and Contentions at [7.23].
Were the Applicant to now lodge a new DSP claim it is highly likely that it would attract more favourable consideration than was the case in 2017. That however is a matter for separate determination at a future date.
At the time of the qualification period, the Applicant had an impairment rating of 20 points derived from two separate impairment tables. However she did not meet the requirements of section 94(1)(c)(i) of the Act as she did not have an ongoing incapacity to work.
DECISION
The decision under review is affirmed.

I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.............................[sgd]...........................................
Associate
Dated: 6 March 2019

Date(s) of hearing: 27 February 2019

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

Date(s) of hearing:	27 February 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services