Edmonds and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4138

Edmonds and Secretary, Department of Social Services (Social services second review) [2022] AATA 4138 (6 December 2022)
Division:GENERAL DIVISION
File Number: 2022/5178
Re:Darren Edmonds
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member D Mitchell
Date:6 December 2022
Place:Brisbane

The decision under review is affirmed
................................[SGD]...............................
Member D Mitchell

Catchwords
SOCIAL SECURITY – disability support pension – DSP – 20 points across multiple impairment tables, whether there is a continuing inability to work, whether the Applicant had actively participated in a program of support, whether an exemption to participation applied – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Aird and Secretary, Department of Social Services [2020] AATA 153
Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133;[2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753
Logue and Secretary Department of Social Services [2017] AATA 1272
Morgan and Secretary, Department of Social Services [2017] AATA 236
VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663
Wykes and Secretary, Department of Social Services [2020] AATA 1010
YPKN and Secretary, Department of Social Services [2018] AATA 425

REASONS FOR DECISION
Member D Mitchell
6 December 2022
Introduction

On 3 December 2021, Mr Darren Edmonds (the Applicant) lodged a claim for Disability Support Pension (DSP) (December 2021 claim).[1] On the Applicant’s claim for DSP form, he listed his disabilities or medical conditions that significantly affect his ability to work to include chronic back pain, surgery on right foot, mental health and chronic pain in right foot and chronic back pain.[2]
[1] Exhibit 1, T Documents, T17, pages 157-166, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T17, page 162, Claim for Disability Support Pension.
On 19 December 2021, the Applicant started participating in a program of support with the Disability Employment Services.[3]
[3] Exhibit 1, T Documents, T38, page 260, File notes for period 14.01.2020 to 21.03.2022.
On 14 February 2022, a job capacity assessment was undertaken by a registered psychologist and registered occupational therapist.[4] In the resulting Job Capacity Assessment (JCA) report dated 24 February 2022, the Assessors made the following findings and recommendations:[5]
[4] Exhibit 1, T Documents, T24, page 183, JCA report.
[5] Exhibit 1, T Documents, T24, pages 183-196, JCA report.
(a)
The Applicant’s right foot condition was fully diagnosed, fully treated and fully stabilised and resulted in financial impairment assessable at 10 points under

Table 3 of the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination);
(b)The Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised and resulted in financial impairment assessable at 10 points under Table 4 of the Impairment Tables;
(c)The Applicant’s depression from chronic pain was not fully diagnosed, fully treated and fully stabilised and could not be assessed under the Impairment Tables;
(d)The Applicant’s diabetes was fully diagnosed, however was not fully treated and fully stabilised and could not be assessed under the Impairment Tables;
(e)The Applicant had no active participation in a program of support prior to making his claim for DSP; and
(f)
The Applicant had a baseline work capacity of 8-14 hours per week and within

2 years, with intervention, has a work capacity of 15-22 hours per week.
On 25 February 2022, the Applicant’s claim was rejected on the basis that he had not actively participated in, nor completed a program of support prior to the day of making his claim for DSP.[6]
[6] Exhibit 1, T Documents, T25, pages 197-198, Centrelink Notice: Rejection of DSP Claim.
On the same day the Applicant sought review of that decision.[7]
[7] Exhibit 1, T Documents, T26, pages 199-200, Centrelink Letter: Your application for formal review of decision.
On 11 March 2022, the Applicant lodged a new claim for DSP in respect of chronic back pain, surgery on right foot and mental health (March 2022 claim).[8]
[8] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, paragraph 7.
On 16 March 2022, a Health Professional Advisory Unit (HPAU) Opinion was completed recommending that the:[9]
(a)Applicant’s right foot condition and spinal conditions were fully diagnosed, fully treated and fully stabilised and resulted in functional impairments that could respectively be assigned 10 points under Table 3 and Table 4 of the Impairment Tables;
(b)Applicant had a work capacity of less than 15 hours per week.
[9] Exhibit 1, T Documents, T29, pages 207-212, HAPU opinion.
On 17 March 2022, an Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s December 2021 claim.[10] The Applicant made an application for review of that decision by the Social Services and Child Support Division (SSCSD) of the Tribunal.[11]
[10] Exhibit 1, T Documents, T30, pages 213-218, Authorised Review Officer Decision and Notes.
[11] Exhibit 1, T Documents, T32, pages 222-223, AAT1 request for statement.
On 17 March 2022, a further JCA report was completed for the purposes of the Applicant’s March 2022 claim. The assessor’s findings and recommendations differed from the previous JCA report dated 24 February 2022 to the extent that they found that the Applicant:[12]
(a)had three days of participation in a program of support;
(b)did not have the ability to engage in a program of support; and
(c)had a work capacity of 0-7 hours per week.
[12] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, attachment A.
On 18 March 2022, the Applicant’s March 2022 claim for DSP was granted with effect from 9 March 2022.[13]
[13] Exhibit 1, T Documents, T37, page 234, Customer Record extracts.
On 15 June 2022, the SSCSD affirmed the decision to refuse the Applicant’s December 2021 claim for DSP.[14]
[14] Exhibit 1, T Documents, T2, pages 3-15, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 22 June 2022.[15]
[15] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 30 November 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
The Law
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant’s application and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[16]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[17] and
3.does the Applicant have a continuing inability to work?[18]
[16]    Section 94(1)(a) of the Act.
[17]    Section 94(1)(b) of the Act.
[18]    Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[19]
[19] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[20] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[20] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[21]
[21] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[22]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[22] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[23]
[23] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[24] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[25]
[24] Section 6(2) of the Determination.
[25] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during 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 POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[26]
[26] Section 94(3B) of the Act.
The requirements that must be met for a person to be considered to have actively participated in a POS[27] are set out in the POS Determination.
[27] Section 94(3C) of the Act.
The POS Determination sets out that a person has actively participated in a POS if the person has complied with the requirements of the POS and participated in a POS during the relevant period,[28] provided the required information regarding the applicable POS[29] and one of the following applies:[30]
(a)The person participated in the program of support for at least 18 months during the relevant period;[31] or
(b)The duration of the program of support was less than 18 months and the person completed the entire program during the relevant period;[32] or
(c)The program of support was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve his or her capability to prepare for, find or maintain work through continued participation in the program;[33] or
(d)At the end of the relevant period, the person is participating in the program of support and 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.[34]
[28]    Section 7(1)(a) of the POS Determination.
[29]    Section 7(1)(c) and section 7(6) of the POS Determination.
[30]    Section 7(1)(b) of the POS Determination.
[31]    Section 7(2) of the POS Determination.
[32]    Section 7(3) of the POS Determination.
[33]    Section 7(4) of the POS Determination.
[34]    Section 7(5) of the POS Determination.
The relevant period (POS Period) in relation to the requirements set out in the POS Determination regarding a person whose impairment is not a severe impairment is the period of 3 years prior to the day on which the claim for disability support pension is made or is taken to have been made by the person.[35]
[35] Section 5 of the POS Determination.
The Administration Act sets out that qualification for DSP and, therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for DSP is the date the person becomes qualified.[36]
[36] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[37]
[37] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
IMPAIRMENT TABLES
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Table 3 of the Impairment Tables deals with functional impairment when performing activities requiring the use of legs or feet and relevantly provides as follows:[38]
Table 3 – Lower Limb Function
[38] Impairment Table 3 – Lower Limb Function, Part 3 of the Determination.

Introduction to Table 3

·   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:

a report from the person’s treating doctor;

a 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);

a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

results of diagnostic tests (e.g. X-Rays or other imagery);

results of physical tests or assessments.

·   For the purposes of this Table lower limbs extend from the hips to the toes.

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.

20

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

(1)      The person:

(a)      is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

Table 4 of the Impairment Tables deals with functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck and relevantly provides as follows:[39]
Table 4 – Spinal Function
[39] Impairment Table 4 – Spinal Function, Part 3 of the Determination.

Introduction to Table 4

·   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:

a report from the person’s treating doctor;

a 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);

a 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.

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.

relevant period

The Relevant Period in this matter commenced on 3 December 2021, being the date the Applicant lodged his claim for DSP and ended 13 weeks later on 4 March 2022. The Tribunal is, therefore, limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
issues
The issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant had impairments;
2.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so
3.did the Applicant have a continuing inability to work?
consideration
Did the Applicant have a physical, intellectual or psychiatric impairment – section 94(1)(a) of the Act?
Based on the evidence before the Tribunal, it is clear that during the Relevant Period, the Applicant had right foot, spinal, mental health and diabetes conditions.
Therefore, the Tribunal finds that during the Relevant Period, the Applicant met the requirements of section 94(1)(a) of the Act. This point is not in contention.[40]
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
[40] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 7, paragraph 35.
Throughout the assessment of the Applicant’s December DSP claim, and as subsequently confirmed by the Respondent to the Tribunal at the Hearing, the Respondent contended that during the Relevant Period, the Applicant’s:
(a)right leg and spinal conditions were fully diagnosed, fully treated and fully stabilised and could respectively be assigned no more than 10 points under Tables 3 and 4 of the Impairment Tables;
(b)mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period and could not be assigned an impairment rating under the Impairment Tables; and
(c)diabetes condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period and could not be assigned an impairment rating under the Impairment Tables.
Having reviewed the evidence before it, the Tribunal accepts that the Applicant’s right foot and spinal injuries were fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned an impairment rating under the Impairment Tables.
At the Hearing, the Applicant told the Tribunal that in his opinion, he should have been assigned 20 points for both his right leg and spinal conditions. The Tribunal took the Applicant through the 20-point descriptors on both Table 3 and Table 4 of the Impairment Tables. The Applicant told the Tribunal that:
·Other than on a really bad day, he was able to walk around a shopping centre or supermarket and to walk from the carpark into the shopping centre or supermarket without assistance from another person. He said that he used a trolley or his wheelie walker and that when he got home, he would be in pain and would need to go to bed for the rest of the day.
·He was able to stand up from a sitting position without assistance. For example, he could get on and off the toilet by himself and in and out of a chair.
·He could not manage public transport.
·He could not hang clothes on the line but could get a glass down from a cupboard at head height.
·He was unable to turn his head or bend his neck without moving his trunk.
·He could bend forward to pick up his dinner plate from the dining table and take it to the sink.
·He could remain seated for no longer than 10 minutes at a time.
·While he had driven distances longer than 10 minutes because he had to, he then experienced extreme pain.
·His spinal condition relates to lower back problems.
On cross-examination, the Applicant:
·Said that he agrees that during the Relevant Period, he could mobilise with his wheelie walker.
·When put to him that his spinal condition related to his lower back which would not stop him from moving his neck, said that he never had a problem moving his neck and shoulders.
The Respondent contended that the Applicant did not meet the 20-point descriptors on either Table 3 or 4 of the Impairment Tables. The Respondent provided:[41]
[41] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 8-10.
39.A medical report dated 25 October 2021 by Dr Raj Krishnan, Orthopaedic Surgeon, states that the Applicant’s main issue is ‘swelling of the foot and pain when he walks for a long distance’. It also states that the Applicant was ‘mobilising with a wheelie-walker and a lumbar support brace’ on that day (T13/148).
40.A medical certificate dated 2 December 2021 by Dr Ing chi Leon Tang, General Practitioner, states that the Applicant uses a ‘4 wheel walker to mobilise’ (T14/150).
41.The JCA report dated 24 February 2022 states that a job capacity assessor spoke to Dr Tang on 15 February 2022 (T24/191), who confirmed the Applicant was:
(a)   able to use stairs with handrails and stand for 5-10 minutes;
(b)   unable to walk far outside of his home and would need to drive to access local facilities;
(c)   able to drive a car;
(d)   could use public transport; and
(e)   able to independently walk around a shopping centre with the aid of his wheelie walker (T23/182).
…..
43.The Secretary notes that ‘assistance’ means assistance from another person, rather than any aids or equipment the person has and usually uses, as provided in the Guide at instruction [3.6.3.30].
44.The Secretary contends that to attract a severe impairment rating a person must satisfy all of the descriptors under (1)(a) in addition to the descriptor at (1)(b). This is because of the use of the language ‘is unable to do any of the following’. The Guide at [3.6.3.30] confirms this when stating ‘the 20-point descriptor requires that any person considered for this rating must be UNABLE to perform ALL of the activities set out in descriptor point 1(a) and 1(b)’. The Secretary submits there is no evidence that the Applicant meets any of the descriptors under descriptor (1)(a) for a severe rating.
45.The Secretary contends that the evidence of Dr Krishhnan dated 25 October 2021 and Dr Tang dated 24 February 2022 would indicate that the Applicant was able to walk around a shopping centre or supermarket without assistance and was also able to walk from the carpark into a shopping centre or supermarket without assistance during the qualification period and therefore the Applicant could not satisfy all of the descriptors under (1)(a).
46.The Applicant reported to the JCA assessor that he was ‘unable to use public transport due to mobility issues’ (T24/191). However, as mentioned above, Dr Tang confirmed with the job capacity assessor on 15 February 2022 that the Applicant was able to use public transport (T23/182). Although Dr Tang subsequently opined that the Applicant cannot stand or sit in public transport in the mobility report dated 28 February 2022 (T27/201-204), this does not refer to the qualification period.
47.Notwithstanding, the Secretary contends that even if the Applicant were found to be unable to use public transport without assistance during the qualification period and thus meeting descriptor (1)(b) for 20 points under Table 3 of the Impairment Tables (which is not conceded), descriptor (1)(a) and descriptor (1)(b) are cumulative such that both descriptors must be met. The Secretary contends there is no evidence that the Applicant meets any of the descriptors under descriptor (1)(a) and that there is some evidence that the Applicant was able to perform some of activities outlined in descriptor (1)(a)(i) and (ii).
48. The Secretary contends that the Applicant’s ability to engage in the activities set out in paragraph 41 above, as confirmed by Dr Tan, is more consistent with a 10 point rating under Table 3. There is no evidence that the descriptors to assign 20 points under Table 3 of the Impairment Tables were satisfied during the qualification period. Accordingly, it would not be open to assign an impairment rating of more than 10 points under Table 3.
…..
52.The JCA report dated 24 February 2022 notes that the Applicant reported to the job capacity assessor that he:
(a)   had reduced tolerances for lifting (5kg maximum), sitting (10 minutes), standing/walking (10-15 minutes) and driving (15 minutes);
(b)   was able to bend forward to pick up objects at table height; and
(c)   was unable to bend forward to lift a light object from the ground or knee height, relying on his wheelie walker to lean on/ sit down and use tongs when required (T24/190).
53.Dr Tang confirmed with the job capacity assessor over the phone on 15 February 2022 that the Applicant was completely unable to bend forward to pick up a light object from floor or knee height due to his back condition but was able to do so from a table (T23/182).
54.The Secretary contends that the Applicant’s functional impairments were consistent with a rating of 10 points under Table 4 based on meeting descriptor (1)(c).
55.The Secretary contends that the Applicant’s ability to sit for at least 10 minutes and bend forward to pick up a light object from a table are inconsistent with meeting descriptors (1)(c)-(d) for a 20 point rating under Table 4. The Secretary further contends that there is no evidence that descriptors (1)(a)-(b) to assign 20 points under Table 4 of the Impairment Tables were satisfied during the qualification period.
Based on the evidence before it, the Tribunal considers that during the Relevant Period, the Applicant’s right leg condition could not be assigned more than 10 points on Table 3 of the Impairment Tables as he was able to independently mobilise and as a consequence, did not meet the descriptors required to be assigned a 20 point rating.
Having considered the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s right leg condition could be assigned 10 points on Table 3 of the Impairment Tables.
In relation to the Applicant’s spinal condition, the evidence before the Tribunal, as confirmed by the Applicant at the Hearing, shows that during the Relevant Period, he was able to bend forward to pick up a light object from a desk or table and was able to remain seated for at least 10 minutes. There is no corroborating evidence before the Tribunal that during the Relevant Period, the Applicant was unable to perform overhead activities or turn his head or bend his neck without moving his trunk. In fact, the evidence given by the Applicant in this regard as set out above was contradictory. Consequently, the Tribunal considers that during the Relevant Period, the Applicant’s spinal condition could not be assigned more than 10 points on Table 4 of the Impairment Tables.
Having considered the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s spinal condition could be assigned 10 points on Table 4 of the Impairment Tables.
At the Hearing, the Applicant told the Tribunal that he does not have diabetes. Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s diabetes was not permanent for the purposes of applying the Impairment Tables. Consequently, the Tribunal is unable to assign an impairment rating under the Impairment Tables for this condition.
At the Hearing, the Applicant told the Tribunal that he disagrees that his mental health condition was not fully diagnosed, fully treated and fully stabilised. The Applicant said that he had seen a pain specialist psychiatrist as part of his Workcover claim. The Tribunal notes that outside of a mental health care plan and diagnosis of mental health conditions by the Applicant’s general practitioner,[42] there is no evidence before it to corroborate that he has received a mental health diagnosis from a psychiatrist or clinical psychologist. Further, at the Hearing, the Applicant told the Tribunal that he had not actioned the mental health care plan as he was unable to afford to do so and on cross-examination by the Respondent, said that he did not need to see a psychiatrist or psychologist.
[42] Exhibit 1, T Documents, T15, pages 151-155, Dr Tang’s Medical Report (MHCP).
To be considered as a fully diagnosed mental health condition under Table 5 of the Impairment Tables, which relates to Mental Health Function, it requires that the diagnosis 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).[43]
[43] Impairment Table 5 – Functions of Mental Health, Part 3 of the Determination.
Based on the evidence before it and in the absence of evidence that the Applicant had received a diagnosis from a psychiatrist or clinical psychologist during the Relevant Period, the Tribunal finds that during the Relevant Period, the Applicant’s mental health condition was not fully diagnosed. Further, the Applicant’s evidence was that he had not sought treatment for a mental health condition. As such, the Tribunal finds that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period.
Consequently, the Tribunal finds that during the Relevant Period, the Applicant’s mental health condition was not permanent for the purposes of applying the Impairment Tables. As such, the Tribunal is unable to assign an impairment rating under the Impairment Tables for this condition.
In conclusion, the Tribunal finds that during the Relevant Period, the Applicant’s permanent conditions for the purposes of applying the Impairment Tables were able to be assigned 20 impairment points across Tables 3 and 4.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant has a total of 20 impairment points cumulative across multiple Impairment Tables, it is necessary to consider whether the Applicant met the requirements of section 94(1)(c) of the Act and had a continuing inability to work.
As the Tribunal has found that the Applicant does not have a severe impairment,[44] to have a continuing inability to work, he must:
(a)have actively participated in a program of support;[45] and
(b)due to the impairments themselves, be unable to work for at least 15 hours per week independently of a program of support within the next 2 years;[46] and
(c)due to the impairments themselves, be unable to participate in a training activity during 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 program of support within the next 2 years.[47]
[44]    Section 94(3B) of the Act provides that a person’s impairment is considered to be 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.
[45]    Section 94(2)(aa) of the Act.
[46]    Section 94(2)(a) of the Act.
[47]    Section 94(2)(b) of the Act.
All of these requirements must be met in order for the continuing inability to work requirements to be met.
Based on the evidence before the Tribunal, it is not in dispute that the Applicant was unable to, at the time of making his December 2021 claim, due to his permanent impairments of themselves, work at least 15 hours or undertake a training activity that would assist such a work capacity to be established within the following 2 years.[48]
[48]
As such, the determinative issue relates to whether or not the Applicant had actively participated in a POS during the POS Period.
The POS Determination sets out that a person has actively participated in a program of support if the person has complied with the requirements of the POS and participated in a POS during the relevant period;[49] provided the required information regarding the applicable POS;[50] and, one of the following applies:[51]
(a)The person participated in the program of support for at least 18 months during the POS Period;[52] or
(b)The duration of the POS was less than 18 months and the person completed the entire program during the POS Period;[53] or
(c)The POS was terminated before the end of the POS Period because the person was unable, solely because of their impairment, to improve their capability to prepare for, find or maintain work through continued participation in the program;[54] or
(d)At the end of the POS period, the person is participating in the POS and the person is prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program.[55]
[49]    Section 7(1)(a) of the POS Determination.
[50]    Section 7(1)(c) and section 7(6) of the POS Determination.
[51]    Section 7(1)(b) of the POS Determination.
[52]    Section 7(2) of the POS Determination.
[53]    Section 7(3) of the POS Determination.
[54]    Section 7(4) of the POS Determination.
[55]    Section 7(5) of the POS Determination.
As the POS Period is the period 3 years prior to the day on which a person makes their claim for DSP, the Applicant’s POS Period commenced on 3 December 2021.
The evidence before the Tribunal reflects that the Applicant did not enrol in a POS until 19 December 2021 which is outside his POS Period which commenced on 3 December 2018 and ended on 3 December 2021.[56]
[56] Exhibit 1, T Documents, T39, page 270, Work capacity information and Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, attachment B.
At the Hearing, the Applicant told the Tribunal that when he made the December 2021 claim for DSP, he was not told that he was required to participate in a POS. The Applicant said that, to the contrary, he was advised by Centrelink officers that he was exempt from all activities. He told the Tribunal that if he had of known about the POS requirement, he would have started to participate prior to making his claim for DSP. The Applicant said that he only found out about the POS requirements after having telephoned Centrelink on a number of occasions regarding his application.
Essentially, the Applicant told the Tribunal he realised he was not enrolled in a POS prior to making the December 2021 claim for DSP and he did not know he needed to be. He had been told that he did not have to participate in anything further and just to wait for the outcome of his application. He told the Tribunal that due to this misinformation, there was a period of time that he believed he should have been eligible for and receiving the DSP of which he did not and that he believes it is an unfair outcome.

Unfortunately for the Applicant, as he does not have a severe impairment, in order for the POS exceptions set out in the POS Determination[57] to apply, he needed to have been enrolled in and have at least 1 day of active participation during the POS Period. In the absence of any such participation, the legislation is clear that a person is not eligible at that time to receive the DSP.
[57] Section 7 of the POS Determination.
The Tribunal accepts that the Applicant sought to enrol and actively participate in a POS as soon as he was aware of the requirement and while he is not the first person to have submitted to the Tribunal that they were unaware of the POS requirements prior to applying for DSP, there is no power for the Tribunal to dispense with the requirement of active participation pursuant to section 94(2)(aa) of the Act. The active participation requirements have been applied strictly in a long line of Tribunal decisions, where it has been found that it is irrelevant whether an Applicant is aware of the requirement or not.[58]
[58] Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507; VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663; Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753; Morgan and Secretary, Department of Social Services [2017] AATA 236; Logue and Secretary Department of Social Services [2017] AATA 1272; YPKN and Secretary, Department of Social Services [2018] AATA 425; Aird and Secretary, Department of Social Services [2020] AATA 153 and Wykes and Secretary, Department of Social Services [2020] AATA 1010.
Consequently, based on the evidence before the it, and that provided by the Applicant at the Hearing, the Tribunal finds that the Applicant had not actively participated in a program of support for the purposes of section 94(2) of the Act and as such, does not meet the continuing inability to work requirement pursuant to section 94(1)(c) of the Act.
Conclusion
Based on the evidence before it, the Tribunal finds that during the Relevant Period the Applicant:
(a)had impairments for the purposes of section 94(1)(a) of the Act;
(b)had impairments that attract 20 points under the Impairment Tables for the purposes of section 94(1)(b) of the Act;
(c)did not have a continuing inability to work pursuant to section 94(1)(c) of the Act as:
(i)he did not have a severe impairment, in that the 20 points under the Impairment Tables were assigned under multiple tables rather than one; and
(ii)had not actively participated in a POS in the three year period immediately prior to his claim for DSP.
Accordingly, the decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...........................[SGD].............................
Associate
Dated: 6 December 2022

Date of hearing: 30 November 2022

Applicant: By phone

Solicitors for the Respondent: Ms Sharon Chiu
Services Australia

Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 12, paragraph 72; Exhibit 1,

T Documents, T29, pages 207-212, HAPU opinion.

Date of hearing:	30 November 2022
Applicant:	By phone
Solicitors for the Respondent:	Ms Sharon Chiu Services Australia