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

Childs and Secretary, Department of Social Services (Social services second review) [2016] AATA 979 (1 December 2016)

Division

GENERAL DIVISION

File Number

2016/2490

Re

Darren Childs

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Member D K Grigg

Date 1 December 2016

Place Brisbane
The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed.
LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES

Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368.
REASONS FOR DECISION
Member D K Grigg
1 December 2016
INTRODUCTION

In 1996 Mr Childs fell from height at work causing disc protrusion in his spine.[1]
[1] Exhibit 1, T Documents, T9, page 95, Medical Report completed by Dr Doolan dated 20 May 2015.
On 21 April 2015 Mr Childs lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “back injury, nerve damage, left shoulder rotator cuff, bowel problems, depression” (“Claimed Medical Conditions”).[2]
[2] Exhibit 1, T Documents, T8, pages 62-89, Mr Childs’ Claim for DSP dated 21 April 2015.
To date Mr Childs’s claim for DSP has been rejected. Mr Childs seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Mr Childs’s claim was rejected by a Centrelink officer on 11 August 2015.[3] The JCA concluded that Mr Childs’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[4]
[3] Exhibit 1, T Documents, T11, page 108, Centrelink Decision dated 11 August 2015.
[4] Exhibit 1, T Documents, T10, pages 101-107, Job Capacity Assessment report dated 7 August 2015.
Mr Childs then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Childs had not completed the required program of support in the 36 months prior to the DSP Application being lodged.[5]
[5] Exhibit 1, T Documents, T12, pages 110-115, Centrelink letter to Mr Childs dated 21 October 2015.
On 15 February 2016 Mr Childs lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[6] The SSCSD rejected Mr Childs’s claim and affirmed the ARO’s decision on 27 April 2015.[7]
[6] Exhibit 1, T Documents, T13, page 120, Centrelink letter to Mr Childs confirming application for
review dated 4 March 2016.
[7] Exhibit 1, T Documents, T3, pages 8-13, SSCSD’s Decision and Reasons for Decision dated 27 April
2015.
Mr Childs has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T2, pages 3-7, Application for Review of Decision dated 11 May 2015.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Childs must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Childs’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[9]
(c)Mr Childs must have a continuing inability to work.
[my emphasis]
[9] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Childs meets the Section 94 Requirements is the date of the claim (in this instance as at 21 April 2015), unless Mr Childs becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[10] Therefore, in order to qualify for DSP Mr Childs must have met the Section 94 Requirements between 21 April 2015 and 21 July 2015 (“Qualification Period”).
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Childs’ impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[11]
DID MR CHILDS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]
[12] Determination, s 3.
Mr Childs’s Medical Conditions
In his DSP Application Mr Childs says:
(a)his Claimed Medical Conditions affect his functional ability as follows:[13]
I have trouble walking due to severe pain in my back and legs. Can’t lift due to my shoulder
(b)his conditions do not make it difficult for him:[14]
(i)    to use public transport; or
(ii)    to care for himself.
[13]          Exhibit 1, T Documents, T8, at page 75, Mr Childs’s Claim for DSP dated 24 April 2015.
[14]          Exhibit 1, T Documents, T8, at page 87, Mr Childs’s Claim for DSP dated 24 April 2015.
Mr Childs’ DSP application was accompanied by a medical report of Dr Thomas Doolan. Dr Doolan, Mr Childs’s general practitioner, described Mr Childs’ medical conditions in his report supporting Mr Childs’ claim as:[15]
(c)“lumbar intervertebral disc protrusion; laminectomy performed”. Dr Doolan reports this condition has resulted in limited mobility and endurance and that Mr Childs cannot lift. Dr Doolan reports that, as a result, Mr Childs experiences “severe lumbar back pain, dysaesthesia in both thighs, pain in both feet”;
(d) “diverticular disease”. Dr Doolan reports that, as a result, Mr Childs experiences “recurrent diverticulitis” and “recurrent abdominal pain”;
(e)“arthritis right shoulder” which he noted was well managed and caused minimal or limited impact on Mr Childs’ ability to function.
[15] Exhibit 1, T Documents, T9, pages 90-100, Medical Report completed by Dr Doolan dated 20 May
2015.
The JCA was conducted face-to-face with Mr Childs on 5 August 2015 by a Registered Psychologist and Registered Occupational Therapist. The JCA assessors’ report states that Mr Childs suffered from:[16]
·Diverticular disease (which was found to be fully diagnosed and fully treated but not fully stabilised);
·Spinal disorder – lumbar intervertebral disc protrusion (which was found to be fully diagnosed and fully treated but not fully stabilised);
·Shoulder and upper arm disorder (which was found to be fully diagnosed, but not fully treated and not fully stabilised)
·Depression (which was found to be not fully diagnosed, not fully treated and not fully stabilised);
[16] Exhibit 1, T Documents, T10, pages 101-107, Job Capacity Assessment report dated 7 August 2015.
The Secretary accepts that Mr Childs had Impairments which satisfied section 94(1)(a) during the Qualification Period.[17]
[17] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, at para 5.9.
I am satisfied on the medical evidence that that is correct.[18]
[18] Exhibit 1, the Section 37 Documents (T Documents) contain numerous medical reports, clinical
notes, x-ray and radiology reports concerning Mr Childs’s conditions – see Exhibit 1, T Documents, T1, T4, T5, T8, T9, T10, T11, T13, T14, T17, T18, T19, T21, T23, T25, T27, T28, T29, T31.
Conclusion on Impairments
In light of the above evidence I conclude that during the Qualification Period Mr Childs suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
·Diverticular disease
·Lumber spine impairment
·Shoulder impairment
Mr Childs reported he suffered from nerve damage in his DSP Application,[19] however there is no medical evidence concerning this condition and therefore I do not consider that as an Impairment for the purpose of s 94(1).
[19] Exhibit 1, T Documents, T8, pages 62-89, Mr Childs’ Claim for DSP dated 21 April 2015.
Whilst acknowledging that Mr Childs suffers from arthritis in the right shoulder, there is no evidence to establish that this condition affects his functional capacity or caused impairment during the Qualification Period. Dr Doolan report that this condition causes minimal or limited impact on Mr Childs’ ability to function.[20]
DO MR CHILDS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[20] Exhibit 1, T Documents, T9, pages 90-100, Medical Report completed by Dr Doolan dated 20 May
2015.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[21] They are function based[22] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[23]
[21] Determination, ss 4(2) and 5(2)(a).
[22] Determination, s 5(2)(b) and (c).
[23] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[24]
(a)Mr Childs’ condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[24] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[25]
[25] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Childs’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[26]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[26] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[27] the following is to be considered:[28]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[27] For the purposes of ss 6(4)(a) and (b) of the Determination.
[28] Determination, see s 6(5).
A condition is fully stabilised[29] if:[30]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)    significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[31] or
(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[29] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[30] Determination, see s 6(6).
[31]          For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
However, before applying the Impairment Tables I must first consider Mr Childs’ medical history, in relation to the condition causing the Impairments.[32]
[32] Determination, see s 6(2).
I will now consider each of Mr Childs’ Impairments.
Lumbar Spine/Lower Limb Impairment
Is Mr Childs’ lumbar spine impairment permanent and likely to persist for at least 2 years?
Dr Doolan reports that the onset of Mr Childs’ lumbar spine Impairment was in 1996.[33] Dr Doolan reports the diagnosis was confirmed by Dr Kim Bulwinkel, an orthopaedic surgeon and that a laminectomy was performed in 1998. A copy of the relevant medical data from 1998 has not been provided. Dr Doolan reports that this condition is likely to impact on Mr Childs’ ability to function for more than 24 months and is likely to deteriorate.[34] Dr Doolan notes that Mr Childs may need a C5 MRI scan.[35]
[33]          Exhibit 1, T Documents, T9, page 93, Medical Report completed by Dr Doolan dated 20 May 2015.
[34]          Exhibit 1, T Documents, T9, page 95, Medical Report completed by Dr Doolan dated 20 May 2015.
[35]          Exhibit 1, T Documents, T9, page 94, Medical Report completed by Dr Doolan dated 20 May 2015.
The Secretary accepts that Mr Childs’ lumbar spine Impairment is longstanding and that all optimal treatment has been received. The Secretary considers this Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[36]
[36] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, para 5.23.
I agree with the Secretary.
During the Qualification Period Mr Childs’ lumbar spine Impairment was permanent and likely to persist for at least 2 years.
USING THE IMPAIRMENT TABLES
I have to assess the level of impact of Mr Childs’ spinal impairment against the descriptors[37] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[38]
[37]Determination, see ss 3 and 5(3).
[38] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[39]
[39] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[40]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[40] Determination, see s 7.
I must not take into account the following information in applying the Tables:[41]
1)symptoms reported by Mr Childs in relation to his condition where there is no corroborating evidence;
2)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Childs’ local community.
[41] Determination, see s 8.
Which Tables are appropriate are determined by:[42]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[42] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[43]
[43]Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[44]
[44]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[45]
[45]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[46]
[46]Determination, see s 11(5).
EVIDENCE IDENTIFYING THE LOSS OF FUNCTION
In relation to the spinal condition Dr Doolan reports that this condition has resulted in limited mobility and endurance and that Mr Childs cannot lift. Dr Doolan reports that, as a result, Mr Childs experiences severe lumbar back pain, dysaesthesia in both thighs and pain in both feet. [47]
[47] Exhibit 1, T Documents, T9, pages 90-100, Medical Report completed by Dr Doolan dated 20 May
2015.
The JCA reported on the functional impact of Mr Childs’ condition:-[48]
[48]Exhibit 1, T Documents, T10, pages 101-107, Job Capacity Assessment report dated 7 August 2015.
·Constant low back pain interfering with sleep.
·Mr Childs was observed to transfer independently though with difficulty.
·[Mr Childs] sat for over 10 yet less than 30 minutes before having to stand.
·[Mr Childs] is able to drive…30-40 minutes
·Queuing has become difficult due to leg pain.
·Mr Childs reported only being able to walk several hundred metres at a time; a tendency to trip over objects or steps was mentioned; he reported avoiding sudden movement;
·Mr Childs reported keeping regularly used items at bench height…no longer able to wash the car, change a tyre, go camping or fishing
·Mr Childs reported lifting up to a 3 litre milk container
·Mr Childs remains independent for self-care
·Mr Childs reported no longer doing gardening…limits his housework…has to sit in order to clean shower recess…hanging out washing is hard; transferring from ground level to standing requires use of upper body…unable to pick up objects from ground height…struggles to put on shoes and tie the laces…relies on mirrors whilst driving
The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
RELEVANT IMPAIRMENT TABLE AND IMPAIRMENT RATING
In light of the evidence I consider that Table 4 of the Determination which deals with Spinal Function and Table 3 which deals with Lower Limb Function are the relevant Table.
Table 4 – Spinal Function Impairment Rating

The introduction to Table 4 provides that:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
The Secretary submitted that the appropriate Impairment Rating under Table 4 is 10 points.[49]
[49]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, para 5.26.
In order to assign an Impairment Rating of 20 points under Table 4 the evidence would need to show that Mr Childs is unable to:
(a)perform any overhead activities; or
(b)turn his head, or bend his neck, without moving his 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.
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Childs:
a)is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
a)    he is unable to sustain overhead activities (e.g. accessing items over head height);
b)    he has difficulty moving his head to look in all directions (e.g. turning his head to look over their shoulder); or
c)    he is unable to bend forward to pick up a light object placed at knee height; or
d)    he needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
There was no evidence presented that Mr Childs is unable to:
a)perform any overhead activities;
b)bend forward to pick up a light object from a desk or table;
c)remain seated for at least 10 minutes; or
d)get out of a chair without assistance.
Mr Childs can drive a car for at least 30 minutes but he does have difficulty moving his head to look in all directions.
The evidence supports an Impairment Rating of 10 points.
Table 3 – Lower Limb Function Impairment Rating
The introduction to Table 3 provides that:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes
The Secretary submitted that the appropriate Impairment Rating under Table 3 is 10 points.[50]
[50]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, para 5.25.
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Childs:
(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.
An Impairment Rating of 20 points is not applicable here because Mr Childs does not need assistance to use public transport[51] and can walk without assistance.
[51] Exhibit 1, T Documents, T8, at page 87, Mr Childs’s Claim for DSP dated 24 April 2015.
Based on the evidence set out in paragraph 45 above, I agree with the Secretary that an appropriate Impairment Rating under Table 3 is 10 points.
Diverticular Disease
Is Mr Childs’ diverticular disease impairment permanent and likely to persist for at least 2 years?
In May 2015 Dr Doolan, Mr Childs’s general practitioner, reported that:[52] Mr Childs’ diverticular disease began in 2011 and he was awaiting sigmoid collection.
[52] Exhibit 1, T Documents, T9, page 96, Medical Report completed by Dr Doolan dated 20 May 2015.
The JCA reported that Mr Childs:
a)had a sigmoid collection on 26 May 2015 and suffered from acute diverticulitis;
b)had gastroenterology review;
c)was recovering from bowel surgery; and
d)was prescribed antibiotics to treat the acute diverticulitis.
There is no other medical evidence available concerning this condition.
The Respondent contends that as at the Qualification Period this Impairment was under review and while fully diagnosed, was not fully treated and not fully stabilised.[53]
[53] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, para 5.21.
There is no evidence that Mr Childs was continuing to have medical review, although it can be inferred given that he was recovering from surgery.
In the circumstances I find that there is insufficient evidence to determine whether Mr Childs’s diverticulitis is fully treated and/or fully stabilised. Therefore, no impairment rating can be assigned.
Depression
Mr Childs claims he is suffering from depression.[54]
[54] Exhibit 1, T Documents, T8, pages 62-89, Mr Childs’ Claim for DSP dated 21 April 2015.
There was no mention in Dr Doolan’s medical report accompanying the DSP Application that Mr Childs suffered from depression.[55]
[55] Exhibit 1, T Documents, T9, pages 90-100, Medical Report completed by Dr Doolan dated 20 May
2015.
In a medical certificate dated 17 October 2014 Dr Hayley Skidmore reported that Mr Childs suffered from depression.[56]
[56] Exhibit 1, T Documents, T5, page 59, Medical Certificate completed by Dr Skidmore dated 17
October 2014.
The JCA reported that Mr Childs had previously been given antidepressants following original back injury in 1996. However, there is no other medical report or indication of diagnosis or treatment plan. The JCA noted that there is no sufficient corroborating evidence and the condition has not been diagnosed by a psychiatrist or clinical psychologist and therefore is not fully diagnosed and not fully treated and not fully stabilised.[57]
[57] Exhibit 1, T Documents, T10, pages 103-104, Job Capacity Assessment report dated 7 August 2015.
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.
As a result I find that Mr Childs’s mental health condition was not fully diagnosed, treated or fully stabilised. Therefore, no impairment rating can be assigned.
As I have concluded that Mr Childs’ Impairments attract an Impairment Rating of 20 points during the Qualification Period it is necessary for me to consider whether Mr Childs had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
DOES MR CHILDS HAVE A CONTINUING INABILITY TO WORK: SECTION 94(1)(C)
Mr Childs’ Impairments have not attracted 20 points under one single Impairment Table (i.e. they are not “severe impairments” as defined in s 94(3B)), therefore s 94(2)(aa) is the appropriate section under consideration.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (s 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mr Childs must have actively participated in a program of support for at least 18 months between 21 April 2012 and 21 April 2015.
Attachment A to the Secretary’s Statement of Facts, Issues and Contentions sets out the number of days Mr Childs has participated in a program of support in the relevant period.[58]
[58] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, Attachment A.
Attachment A shows that in the relevant period Mr Childs actively participated for a total of 69 days, which is less that the amount required under s 94(2)(aa).
Mr Childs did not dispute the calculation, however he said he had only done what he had been advised by his then employment provider, Mission Australia, and that part way through, Mission Australia became unable to provide the program of support. In April 2016 Mr Childs recommenced a program of support with Mylestone.[59] However, the period of time he has engaged with Mylestone is not within the relevant period and cannot be included in the calculation for the purpose of this DSP Claim.
[59] Exhibit 1, T Documents, T15, page 132.
Mr Childs has not satisfied s 7 of the POS Determination and as a result does not satisfy the requirements in s 94(2). Therefore, Mr Childs has not fulfilled the requirement in s 94(c).
CONCLUSION
Mr Childs’ claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(c)(i).
The decision under review is affirmed.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
...........................[Sgd].............................................
Associate
Dated 1 December 2016

Date of hearing 23 November 2016

Applicant By phone

Solicitors for the Respondent Department of Human Services

[2016] AATA 979

1 December 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Division	GENERAL DIVISION
File Number	2016/2490
Re	Darren Childs
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Member D K Grigg
Date	1 December 2016
Place	Brisbane

Date of hearing	23 November 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services