Eom and Secretary, Department of Social Services (Social services second review) - [2019] AATA 662

Eom and Secretary, Department of Social Services (Social services second review) [2019] AATA 662 (8 April 2019)
Division:GENERAL DIVISION
File Number: 2018/4860
Re:Jin Sug Eom
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:8 April 2019
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[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
Blake and Secretary, Department of Social Services [2018] AATA 1822
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
Member D Mitchell
8 April 2019
INTRODUCTION

On 12 December 2016, Ms Jin Sug Eom (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 12, pages 84-114, DSP claim form.
The claim was rejected on 28 April 2017,[2] on the basis that the Applicant had not actively participated in a program of support (POS). This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 26 April 2018.[3]
[2] Exhibit 1, T Documents, T 20, pages, 144-145, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T 31, pages 180-185, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

25 July 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 2-7, 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 27 August 2018.[5]
[5] Exhibit 1, T Documents, T 1, page 1, Application for Review.
On 4 March 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, was self-represented with the assistance from her son Mr Leo Eom. The services of a Korean interpreter were provided by telephone. The Hearing was adjourned, part heard, to allow the Tribunal to arrange for an interpreter to be present in person.
On 18 March 2019, a resumed Hearing was held for this application. At the resumed Hearing, the Applicant appeared in person, self-represented with assistance from her son Mr Leo Eom, and gave evidence under oath. The in-person services of a Korean interpreter were provided.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form,[6] she lists the following disabilities, illnesses or injuries:[7]
1.Rheumatoid arthritis
2.Osteoarthritis
3.Fibromyalgia
4.Chronic shoulder pain
5.Headache (sharp pain) (lack of sleep)
6.Tiredness
7.Severe body pain
8.Feet pain (walking difficult)
[6] Exhibit 1, T Documents, T 12, pages 84-114, DSP claim form.
[7] Exhibit 1, T Documents, T 12, page 110, DSP claim form.
On 11 April 2017, the Applicant attended a face-to-face appointment with a Job Capacity Assessor (JCA).[8] In a report dated 13 April 2017, the JCA made the following assessments:
[8] Exhibit 1, T Documents, T 19, page 135, Job Capacity Assessment Report.
·The Applicant’s rheumatoid arthritis condition was fully diagnosed, fully treated and fully stabilised which caused a functional impairment which could be assessed under the Impairment Tables.
·The Applicant’s impairments relating to her rheumatoid arthritis condition are assigned:
o5 points under Table 2 – Upper Limb Function
o5 points under Table 3 – Lower Limb Function
o10 points under Table 4 – Spinal Function
·The Applicant’s depression condition was not fully diagnosed, fully treated and fully stabilised.
·The Applicant has not met participation in Program of Support (POS) requirements, having only attended 460 days of the required 547 days in the 3 years prior to her claim for DSP.
·The Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.[9]
[9] Exhibit 1, T Documents, T 19, page 135-143, Job Capacity Assessment Report.
A decision was made to reject the Applicant’s DSP application on 28 April 2017, on the basis that the Applicant had not actively participated in a program of support.[10]
[10] Exhibit 1, T Documents, T 20, pages144-145, Centrelink Notice: Rejection of DSP claim.
The Applicant sought review of the decision and provided further medical evidence. On

9 April 2018, the Applicant attended a face to face Employment Services Assessment (ESA) with an Assessor, whose professional disciple is listed as a ‘Rehabilitation Counsellor’.[11] The Assessor provided an ESA report dated 9 April 2018, opining that the Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.[12] The Assessor provided the following rationale:
A temporary exemption is recommended until 30.06.2018 to allow time for [the Applicant] to complete ankle fracture treatments including physiotherapy and moon boot.
Symptoms limit [the Applicant’s] ability to perform daily tasks that require a sustained physical effort and also impact upon the type and duration of work that she can reliably engage in. [The Applicant] has a recommended baseline work capacity of 8-14 hours per week due to functional restrictions imposed by her permanent conditions.
With disability specific intervention such as job matching, short-term vocational training, work conditioning, disability management counselling and post placement support, work capacity may increase to 15-22 hours per week of suitable employment.[13]
[11] Exhibit 1, T Documents, T 29, page 173, Employment Service Assessment Report.
[12] Exhibit 1, T Documents, T 29, pages 173-178, Employment Service Assessment Report.
[13] Exhibit 1, T Documents, T 29 page 176, Employment Service Assessment Report.
On 26 April 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[14]
·     You have the following permanent conditions: rheumatoid arthritis.
·     Your condition of depression is not accepted as being permanent as it has not been fully treated and stabilised.
·     Your total impairment rating is 20.
·     You do not have a severe impairment.
·     You have not actively participated in a program of support.
·     You do not have a continuing inability to work 15 hours per week or more because of your impairment.
[14] Exhibit 1, T Documents, T 31, pages 180-185, Authorised Review Officer Decision and Notes.
On 9 May 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[15] On the 25 July 2018, the SSCSD affirmed the decision under review.[16]
[15] Exhibit 1, T Documents, T 32, pages 186-187, Referral to Social Services & Child Support Division.
[16] Exhibit 1, T Documents, T 2, pages 2-7, Decision of the SSCSD.
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) Act 1999 (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).
Section 94 of the Act prescribes the criteria that must be met 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;[17]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[18] and
3.Does the Applicant have a continuing inability to work?[19]
[17] Section 94(1)(a) of the Act.
[18] Section 94(1)(b) of the Act.
[19] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[20] 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.[21] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[22]
[20] Section 6(1) of the Determination.
[21] Section 6(2) of the Determination.
[22] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[23]
[23] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[24]
(a) have been fully diagnosed by an appropriately qualified medical practitioner; and
(b) have been fully treated; and
(c) have been fully stabilised; and
(d)more likely than not, in light of available evidence, to persist for more than 2 years.
[24] 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 planned in the next 2 years.[25]
[25] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[26]
(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.
[26] 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.[27]
[27] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[28] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[29] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[30]
[28] Section 10 of the Determination.
[29] Sections 10(3) and (4) of the Determination.
[30] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[31]
[31] Section 11(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; and
(b) be unable to work for at least 15 hours per week independently of a program of support; 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 program of support within the next 2 years.
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.[32]
[32] Section 94(3B) of the Act.
The requirements that must be met for a person to be considered to have actively participated in a program of support[33] are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Active Participation Determination).
[33] Section 94(3C) of the Act.
The Active Participation Determination sets out that a person has actively participated in a program of support if the person has complied with the requirements of the program of support and participated in a program of support during the relevant period,[34] provided the required information regarding the applicable program of support[35] and one of the following applies:[36]
(a)The person participated in the program of support for at least 18 months during the relevant period;[37] 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;[38] 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;[39] 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.[40]
[34] Section 7(1)(a) of the Active Participation Determination.
[35] Section 7(1)(c) and section 7(6) of the Active Participation Determination.
[36] Section 7(1)(b) of the Active Participation Determination.
[37] Section 7(2) of the Active Participation Determination.
[38] Section 7(3) of the Active Participation Determination.
[39] Section 7(4) of the Active Participation Determination.
[40] Section 7(5) of the Active Participation Determination.
The relevant period (POS Period) in relation to the requirements set out in the Active Participation Determination in relation to a person whose impairment is not a severe impairment is the 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.[41]
[41] Section 5 of the Active Participation 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 become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[42]
[42] Sections 41 and 42; clause 3 and clause 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. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[43]
[43] 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].
Relevant Period
The Relevant Period in this matter commences on 12 December 2016, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 12 March 2017. 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
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[44]
[44] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 31.
The Respondent contended that the Applicant’s rheumatoid arthritis was fully diagnosed, fully treated and fully stabilised at the Relevant Period.[45] The Respondent further contended that the medical evidence indicates that the condition impacts on the Applicant’s upper limb, lower limb and spinal functions,[46] and that the Applicant’s functional impairments should attract the following impairment ratings:
-    5 points under Table 2 of the Impairment Tables - mild functional impact on activities using upper limbs;[47] and
-    5 points under Table 3 of the Impairment Tables – mild functional impact on activities using lower limbs;[48] and
-    10 points under Table 4 of the Impairment Tables – moderate functional impact on activities involving spinal function[49]
[45] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 32.
[46] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 33.
[47] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraphs 34-35.
[48] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraphs 36-37.
[49] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraphs 38-39.

The Respondent notes the letter to Basic Rights Queensland, provided by Dr Kent Fu, the Applicant’s general practitioner, dated 15 June 2018. The letter makes reference to the Applicant’s rheumatoid arthritis and fibromyalgia as well as their treatment and functional impact upon the Applicant. The Respondent contends that, given the extent of the reported deterioration in the Applicant’s condition between the date of claim for DSP and the SSCSD Hearing, that the June 2018 report from Dr Fu does not reflect the Applicant’s level of function as at December 2016, when the Applicant made her claim for DSP. The Respondent contended that as per Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, and as found by the SSCSD, the Applicant’s reporting and the medical evidence at the date of claim should be preferred when determining the appropriate impairment ratings.[50]
[50] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 40-41.
The Tribunal notes that it is not clear whether all of the information provided by Dr Fu relates to the Relevant Period, as the first point commences with “1. As at 12/12/2016 …” and the other points do not make reference to a time period.[51]
[51] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, Letter authored by Dr Kent Fu dated 15 June 2018.
At the Hearing, it was clear that the Applicant had concerns in relation to how her claim for DSP was processed by Centrelink. She told the Tribunal that the ARO’s decision was wrong as she has two conditions which should have been assessed, being rheumatoid arthritis and fibromyalgia. The Applicant also told the Tribunal that her mental health condition was irrelevant for the purpose of this application. The Applicant told the Tribunal that her fibromyalgia symptoms include tightness and ache in her muscles, and that the affected functional impairments relate to her upper limbs, neck, head and other muscles.
When asked by the Tribunal whether the Applicant considered that she had a functional impairment, which should be assigned 20 points under a single table during the Relevant Period, the Applicant told the Tribunal that during the Relevant Period the doctor estimated she had 30 points in total. The Applicant acknowledged that she would not attract 20 points under a single table.
When asked by the Tribunal whether the conditions had worsened since the time she made her claim for DSP, noting what she had previously told the SSCSD, the Applicant told the Tribunal that her conditions were incurable and will stay the same or get worse.
The Respondent contended that, based on the medical evidence and the evidence provided by the Applicant at the Hearing, the Applicant’s impairments do not attract 20 impairment points under a single table.
In relation to the Applicant’s fibromyalgia condition the Respondent contended that there is limited medical evidence before the Tribunal in relation to the condition and the evidence that is available is outside the Relevant Period. The Respondent contends that the Applicant’s fibromyalgia condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period.
I accept the Applicant has fibromyalgia and that this condition results in functional impairments. However, based on the limited medical evidence in relation to the Applicant’s fibromyalgia condition, I find that it was not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Therefore this condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Based on the medical evidence before the Tribunal and evidence provided by the Applicant at the Hearing, I find that the Applicant’s rheumatoid arthritis was fully diagnosed, fully treated and fully stabilised during the Relevant Period, causing functional impairments which could be assessed under the Impairment Tables.
Based on the evidence provided by the Applicant at the Hearing and the contentions of the Respondent, I do not consider that the letter authored by Dr Fu in June 2018 should be preferred to the evidence received at the time of claim and during the Relevant Period. The assignment of impairment ratings is academic where 20 or more points are awarded across a number of Impairment Tables, as the requirements of section 94(1)(b) of the Act have been met.
Considering all the medical evidence, and evidence provided by the Applicant at the Hearing, I do not consider that the Applicant’s rheumatoid arthritis condition results in a severe impairment. I agree with the impairment ratings contended by the Respondent.
Based on the evidence before the Tribunal, I find that the Applicant’s rheumatoid arthritis condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned a functional impairment rating of 20 points being made up of 5 points under Table 2, 5 points under Table 3 and 10 points under Table 4 of the Impairment Tables.
The remaining issue for the Tribunal to consider is did the Applicant have a continuing inability to work?
Continuing inability to work
As I have 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 I have found that the Applicant does not have a severe impairment,[52] to have a continuing inability to work she must:
(a)have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; 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 program of support within the next 2 years.
(d)All of these requirements must be met in order for the continuing inability to work requirements to be met.
[52] 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.
The Active Participation Determination sets out that a person has actively participated in a program of support if the person has complied with the requirements of the program of support and participated in a program of support during the relevant period;[53] provided the required information regarding the applicable program of support;[54] and, one of the following applies:[55]
(a)The person participated in the program of support for at least 18 months during the relevant period;[56] 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;[57] 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;[58] 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.[59]
[53] Section 7(1)(a) of the Active Participation Determination.
[54] Section 7(1)(c) and section 7(6) of the Active Participation Determination.
[55] Section 7(1)(b) of the Active Participation Determination.
[56] Section 7(2) of the Active Participation Determination.
[57] Section 7(3) of the Active Participation Determination.
[58] Section 7(4) of the Active Participation Determination.
[59] Section 7(5) of the Active Participation Determination.
The POS Period in relation to active participation in relation to a person whose impairment is not a severe impairment is the 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.[60] For the Applicant, that means the three years directly before 12 December 2016.
[60] Section 5 of the Active Participation Determination.
Information in relation to the Applicants POS calculation was provide by the
[61] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, POS calculation provided by Department of Jobs and Small Business.
[62] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 52.
[63] Exhibit 1, T Documents, T 35, ESS Referral History, pages 196-202; Exhibit 1, T Documents, T 35, ESS/DSS Employment Support Records, pages 203-213.
Department of Jobs and Small Business and outlined that the Applicant had participated in a POS during the period 12 December 2013 to 12 December 2016 for 460 days.[61] Based on this information the Respondent contended that the Applicant had not participated in a POS for the required 547 days.[62] At the Hearing, the Applicant disputed the calculation stating that she had participated in two programs, a DSP program and a skills program relating to skills for English literacy and numeracy. The Respondent contended that all qualifying participation formed part of the POS calculation that concluded the Applicant had participated in a POS for 460 days. This position appears to be supported by the Applicant’s ESS Referral History and other relevant ESS/DSS Employment Support records which outline the Applicant’s exemptions and activities during the relevant period.[63]
Based on the evidence before the Tribunal, I find that the Applicant had not participated in a POS for at least 18 months (547 days) at the time of making her claim for DSP.
The Respondent contended that the Applicant did not meet any of the other POS requirements, as at the end of the relevant POS period, the Applicant’s functional impairments, in and of themselves, did not prevent her from benefitting from continued engagement in a POS. The Respondent relied upon the following evidence in making these contentions:[64]
(a)The Applicant's Appointment History screen (T35, p212) indicates that the Applicant was capable of attending regularly scheduled fortnightly appointments with her job provider and did not have any medical or other exemptions relieving her from her participation requirements in the period leading up to her claim for DSP in December 2016.
(b)In a report dated 21 March 2017, Rebecca Skinner, an employee of the Applicant's employment services provider Epic Assist Indooroopilly provided information as to the Applicant's participation with that provider. Ms Skinner reported that the Applicant engaged with the provider on 11 August 2016, was still with the program despite being currently suspended as she had a temporary exemption as she had made a claim for DSP and that the Applicant had attended mostly as required. No comment was made by Ms Skinner as to whether the program was not fit for the Applicant or whether the Applicant was prevented solely due to her impairment from improving her capacity to prepare for or find or maintain work through continued participation in the program (T15, p118).
(c)In a report dated 25 May 2017, Shannon Butler, an employee of Epic Assist Indooroopilly also provided information as to the Applicant's participation with that provider. Similar to the report of Ms Skinner, Ms Butler made no comment as to whether the program was not fit for the Applicant or whether the Applicant was prevented solely due to her impairment from improving her capacity to prepare for or find or maintain work through continued participation in the program (T21, p147).
[64] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraph 55.
At the Hearing the Applicant acknowledged that she had not been exited from her POS and told the Tribunal that Ms Skinner had told her that it was not possible for her to exit the Applicant from the POS even though the doctor had said the Applicant could not attend. The Applicant told the Tribunal that when she was very unwell she could not attend her POS appointments however she was told she still need to attend so she did attend most of the time, albeit walking to her appointment with her walking stick.
Based on the evidence provided by Ms Skinner of Epic Assist, in her report dated

21 March 2017;[65] by Ms Butler of Epic Assist, in her report dated 25 May 2017[66] and that provided by the Applicant at the Hearing I find that the POS had not been completed or terminated before the end of the relevant period.
[65] Exhibit 1, T Documents, T 15, pages 118-121, Information about participation in a program of support completed by Ms Rebecca Skinner.
[66] Exhibit 1, T Documents, T 21, pages 147-150, Information about participation in a program of support completed by Ms Shannon Butler.
The Applicant was claiming a DSP exemption in relation to her POS between 28 November 2016 and 28 April 2017,[67] however was still enrolled in a POS. The Respondent relies on the evidence set out at paragraph 54 above that the Applicant was not prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the POS.[68]
[67] Exhibit 1, T Documents, T 35, page 198, ESS Referral History.
[68] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 55-59.
The Respondent referred the Tribunal to the decision in Blake and Secretary, Department of Social Services [2018] AATA 1822 providing:[69]
56. ……. In Blake, the applicant was assigned a cumulative 20 points under the Impairment Tables for her fibromyalgia and bipolar disorder, but had only completed 136 days of a POS. In support of her appeal the applicant in Blake provided a letter from an employment services provider the applicant engaged with several months after the end of the qualification period, with the letter outlining some health improvements but still maintaining that the applicant was not capable of sustaining meaningful employment. Despite the applicant having completed over four months of a POS and the provision of the letter actively supporting a s7(5) POS exemption, the Tribunal commented at [40] that:
'Ms Blake provided a letter from Mr Luke Papallo (DES counsellor, Afford Employment) dated 10 August 2017, which outlined that Ms Blake 'has displayed willingness to attempt approaches in improving her mental, emotional and physical we/I-being, but is still nowhere near capable enough to sustain meaningful employment'.[7] Ms Blake told the Tribunal that she commenced her program of support with Afford Employment on 4 January 2017. As this was more than seven months after Ms Blake lodged her claim for disability support pension, I find that subsection 7(5) of the Active Participation Determination is not relevant in this matter.'
57.The Secretary notes the similar nature of the Applicant's circumstances to those in the applicant in Blake, specifically the significant period of time spent participating in a POS and the provision of reports dated outside of the qualification period providing an assessment of her inability to improve her capacity for employment. Noting this similarity, the Secretary submits that consistent with Blake, a s7(5) POS exemption does not apply to the Applicant in this matter.
[69] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, page10, paragraphs 56-57
The Respondent again noted the letter to Basic Rights Queensland, provided by

Dr Fu, the Applicant’s general practitioner dated 15 June 2018, which opined that the Applicant was prevented from benefitting from continued engagement in a POS due to her severe impairments. The Respondent contends that given the extent of the reported deterioration in the Applicant’s condition between the date of claim for DSP and the SSCSD Hearing, that the June 2018 report from Dr Fu does not reflect the Applicant’s level of function as reported at 12 December 2016 when the Applicant made her claim for DSP. The Respondent contended that as per Harris v Secretary, Department of Employment and Workplace Relations, and as found by the SSCSD, the Applicant’s reporting and the medical evidence at the date of claim should be preferred when determining the Applicant’s capacity to engage in and benefit from participation in a POS.[70]
[70] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 58-59.
The Tribunal notes that it is not clear whether all of the information provided by Dr Fu relates to the Relevant Period as the first point commences with “1. As at 12/12/2016 …” and the other points do not make reference to a time period.[71]
[71] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, Letter authored by Dr Kent Fu dated 15 June 2018.
Based on the evidence provided by the Applicant at the Hearing and the contentions of the Respondent, I do not consider that the letter authored by Dr Fu in June 2018 should be preferred to the evidence received at the time of claim and during the Relevant Period.
While I accept that the Applicant’s conditions cause her impairments that affect her ability to function, there is no evidence before the Tribunal that supports that she was prevented, solely because of her impairments, from improving her capacity to prepare for, find or maintain work through continued participation in the POS.
Consequently, based on the evidence before the Tribunal, and that provided by the Applicant at the Hearing, I find that the Applicant had not actively participated in a program of support for the purposes of the requirements set out in section 7 of the Active Participation Determination and as such does not meet the continuing inability requirement under section 94(1)(c) of the Act.
Post Hearing Submissions
After the Hearing, the Applicant provided two further submissions on 20 and 26 March 2019. The Applicant provided additional medical reports and raised concerns in relation to the handling of her matter by the Respondent’s representative and Centrelink. The Respondent provided a submission in reply dated 28 March 2019, providing further details in relation to the Applicant’s POS calculation and submitted that the further submissions provided by the Applicant do not change the Respondent’s contentions.
While I accept the difficulties that the Applicant has experienced during the process of making a claim for DSP, the actions of Centrelink outside their application of the legislation is not a matter for this Tribunal. Further I find that the conduct of the Respondent’s representative during the hearing process was appropriate.
The post hearing submissions and reports do not alter the views of the Tribunal set out above.
It should be noted that the Applicant is able to test her eligibility for DSP at any time and may choose to make a new claim for DSP if she has not already done so.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant, for the purposes of section 94(1)(b) of the Act, has an impairment of 20 points under the Impairment Tables.
I find that the Applicant’s rheumatoid arthritis condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned a functional impairment rating of 20 points being made up of 5 points under Table 2, 5 points under Table 3 and 10 points under Table 4 of the Impairment Tables.
I find that the Applicant’s fibromyalgia condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.

I find that the Applicant for the purposes of section 94(1)(c) of the Act did not have a continuing inability to work during the Relevant Period.
Accordingly, the decision under review is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............................[SGD]........................................
Associate
Dated: 8 April 2019

Dates of hearing: 4 and 18 March 2019

Applicant: In person

Advocate for the Respondent: Mr Andrew Summers

Solicitors for the Respondent: Department of Human Services

Dates of hearing:	4 and 18 March 2019
Applicant:	In person
Advocate for the Respondent:	Mr Andrew Summers
Solicitors for the Respondent:	Department of Human Services