Farah and Secretary, Department of Social Services (Social services second review) - [2015] AATA 675

Farah and Secretary, Department of Social Services (Social services second review) [2015] AATA 675 (4 September 2015)

Division

GENERAL DIVISION

File Numbers

2015/1629

2015/1628

Re

Nabil Farah

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 4 September 2015

Place Melbourne
The decisions under review are affirmed.

...............................[sgd].........................................
Egon Fice, Senior Member
Catchwords
DISABILITY SUPPORT PENSION – Portability – Absence from Australia for a period exceeding maximum portability period – Whether portability period should be extended – Qualification for Disability Support Pension – Impairment assessment – Whether applicant had 20 impairment points – Insufficient participation in program of support – Decisions under review affirmed
Legislation
Social Security Act 1991 (Cth) ss 94, 1213, 1217, 1218C
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) ss 5, 7
Social Security (Administration) Act 1999 (Cth) sch 2 cls 3–4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5, 6
REASONS FOR DECISION
Egon Fice, Senior Member
4 September 2015

There were two applications before me on the hearing of this matter. The first, 2015/1629 (the Portability Claim), concerned whether Mr Farah should have been paid the disability support pension (DSP) for more than six weeks while overseas. The second application, 2015/1628 (the DSP Claim), concerned whether Mr Farah qualified for payment of the DSP following his lodgement of a claim on 23 October 2014.
THE PORTABILITY CLAIM
Mr Farah was in receipt of the DSP when he left Australia on 7 June 2014 to travel to Lebanon. He advised Centrelink of his travel plans. However, when Mr Farah had not returned to Australia within the 6 week portability period, on 21 July 2014 Centrelink sent him a letter stating that his DSP payments had been stopped. In a letter dated
20 October 2014 Centrelink notified Mr Farah that it had cancelled his disability support pension because its records disclosed he remained overseas. Mr Farah returned to Australia on 22 October 2014.
Mr Farah sought review by an Authorised Review Officer (ARO) of the decision to cancel his DSP. On 17 February 2015 the ARO notified Mr Farah that his review was unsuccessful. On 23 February 2015 Mr Farah lodged an application with the Social Security Appeals Tribunal (SSAT) seeking review of the ARO decision.
On 16 March 2015 the SSAT affirmed the ARO’s decision. On 7 April 2015 Mr Farah lodged an application with this Tribunal seeking review of the SSAT decision.
The only issue which arises on this application is whether the Secretary’s decision to refuse to extend the portability period pursuant to s. 1218C of the Social Security Act 1991 (the Social Security Act) was the preferable decision.
Portability of social security payments
Chapter 4, Pt 4.2, Division 2 of the Social Security Act deals with the portability generally of social security payments. Section 1213 relevantly provides (emphasis in original):
1213 This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:
(a)immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or…
Prior to its amendment effective on 1 January 2015, the table at the end of s. 1217 of the Social Security Act listed the maximum portability period as six weeks. That is the period which applies to Mr Farah. In other words, he was allowed to remain overseas on a temporary absence from Australia until 19 July 2014 and continue to receive DSP payments. For Mr Farah to be eligible to continue to receive DSP payments after that date he needed to be granted an extension of the portability period by the Secretary. The grounds on which the Secretary may extend a person’s portability period are set out in s. 1218C of the Social Security Act. Relevantly, it provides:
1218C(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a)a serious accident involving the person or a family member of the person;
(b)a serious illness of the person or a family member of the person;
(c)the hospitalisation of the person or a family member of the person;
(d)…
1218C(2) The Secretary must not extend the person’s portability period under subsection (1) unless:
(a)the event occurred or began during the period of absence; and
(b)…
1218C(3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.
Inability to return to Australia within six weeks
Centrelink’s records disclosed that Mr Farah contacted the Greensborough office of Centrelink on 6 June 2014 for the purpose of notifying Centrelink that he planned to travel to Lebanon from Australia on the following day, 7 June 2014. Mr Farah also notified Centrelink that he planned to return to Australia on 15 July 2014. Centrelink’s record of that conversation also correctly indicates that from 19 July 2014 Mr Farah’s DSP would either be cancelled or continue.
When Mr Farah had not returned from Lebanon by 19 July 2014, Centrelink sent him a letter dated 21 July 2014 stating that payment of his DSP had been stopped because Centrelink’s records disclosed he remained overseas. A further letter dated 20 October 2014 from Centrelink conveyed the same information.
Although Mr Farah said in evidence that he had planned to return to Australia before 14 July 2014, that statement must be incorrect. That is because I had in evidence Mr Farah’s travel itinerary prepared by the travel agent who had booked his flights to and from Lebanon indicating that he had been booked to return to Australia arriving on Saturday, 25 July 2014. Plainly, even before I examine the reasons given by Mr Farah for being unable to return to Australia within the six week portability period, the evidence discloses that he did not in fact intend to return within that period in any event.
Nevertheless, putting that to one side for the moment, I should examine the reasons given by Mr Farah for claiming that s. 1218C of the Social Security Act dealing with an extension of a person’s portability period should be applied to him.
In his oral evidence, Mr Farah explained that one night while walking down stairs in the dark, he missed a step which caused him to fall. That resulted in him experiencing both back and leg pain. In cross-examination, Mr Farah said he could not remember on which day the fall occurred but thought it was about 16 July 2014. When asked what injury he suffered, he said he suffered shock, bad pain in his back and what felt like an electric shock in his legs.
In support of his claim that he injured his back while in Lebanon, I had in evidence a number of statements from medical practitioners and a physiotherapist from Lebanon. The evidence apparently discloses that he saw a doctor, Georges Nicolas, who described himself as a specialist in neurosurgery, on 15 July 2014, stating Mr Farah needed physiotherapy twice a week starting on 17 July and finishing on 25 September. He described Mr Farah as having a spine deficiency. There was also a document to which was affixed a stamp indicating it was from Centre de Physiotherapie setting out the dates between 17 July 2014 and 25 September 2014 on which Mr Farah attended for what was described as science of physical therapy.
I also had in evidence a letter which had been translated from Arabic stating the following:
I, the undersigned Dr Ziad Khoury reported that, after reviewing the content of the report and the x-ray showing the presence of pressure and calcification in paragraph basic column lumbar and fear of sliding paragraph spondylolisthesis forward or backward must physiotherapy immediately so we hope not to stress and fatigue such as travelling long distances or driving a car or carrying heavy things until the end of treatment.
There was an x-ray report from Radio-Medical-Centre dated 15 July 2014 which is written in French. As best I can interpret what is said on that report, it states:
Severe muscular rigidity of the lumbar rachis.
Absence of traumatic lesions or pathology on the frame of the bone.
Pinch of discs L4 – L5 with osteophytosis.
Osteophytosis anterior lumbar levels.
The soft tissues have a normal aspect/appearance.
There was a further document also dated 15 July 2014 from Dr Khoury described as Order entry Hospital. The translation reads as follows:
The patient Nabil Farah complained of severe pressure to vertebrae fourth and fifth lumbar pain extends the bottom of the feet and the need to treat the nerve sciatique or make the process of installing the lumbar spine
In his oral evidence, Mr Farah said he refused to go to the hospital.
While I accept that the translations of the above documents create some difficulties, it is nevertheless apparent that no doctor has referred to an injury or exacerbation of an existing injury which occurred while Mr Farah was in Lebanon. His back condition is an existing condition which is set out in detail in radiology conducted on 29 July 1998. Relevantly, the report states:
There is moderate loss of disc height at L4/5 and L5/S1, and small marginal osteophytes are seen at the lower lumbar spine.
There is minor irregularity noted at both L5 pars regions, but no definite pars defect is seen.
The L5/S1 facet joints are small, consistent with the transitional nature of this level, but no significant degenerative facet joint disease is demonstrated.
A Centrelink printout of Mr Farah’s customer record reveals an email received from Mr Farah on 25 September 2014 in which he said:
m disablility [sic] to support pension, I’m currently overseas and feeling very ill, so I’m getting treated in Lebanon for my back problem, i’v been having trouble getting in contact with humans services, therefore my flight has been postponed. I would prefer to be contacted on my overseas mobile phone:…
On 3 October 2014 Mr Farah’s customer record was annotated by a customer service officer stating that they were unable to contact Mr Farah due to time zone differences. An email was sent to Mr Farah acknowledging his enquiry and requesting that he call Centrelink via a reverse charge contact number. Mr Farah did not do so. He returned to Australia on 22 October 2014.
In cross-examination Mr Farah said that he called Centrelink some 10 or 15 days after he said he injured his back but that he had difficulty because of the time difference between Lebanon and Melbourne. He also said, at least as I understood him, that he tried to send an email but the time difference was a problem. Plainly, that cannot be correct. In fact there was no evidence on the Centrelink records that an email was received from Mr Farah prior to the email he sent on 25 September 2014.
Centrelink records indicate that on 17 February 2015 an ARO affirmed Centrelink’s decision not to extend Mr Farah’s portability period with respect to DSP payments. On that day, Centrelink records disclose that the ARO telephoned Mr Farah attempting to explain that he did not have a qualifying reason for the grant of an extension of his DSP portability period beyond July 2014. According to that record of conversation, Mr Farah said:
… by not staying overseas longer it causes trouble with his wife because she wants to spend time with family. cus stated he doesn’t always want to go for such periods of time as he has 3 boys at school and it’s no good for them to be out of school for so long. he then said however, that if he doesn’t go o/s his wife just goes and takes the boys with her and leaves him and that is not good either.
To satisfy the requirements of s. 1218C(a), (b) or (c) of the Social Security Act dealing with the extension of a person’s portability period, Mr Farah needs to establish, by evidence, that he had a serious accident; suffered a serious illness; or was hospitalised in the course of his stay in Lebanon. He clearly did not develop a serious illness nor was he hospitalised while he was overseas. In addition, grounds (d) – (k) of s. 1218C also clearly do not apply to Mr Farah. The only basis upon which an extension could be granted therefore is if he had a serious accident. Quite plainly, a serious accident is likely to result in hospitalisation and an inability or delay in being able to withstand a lengthy flight from Lebanon to Australia.
While Mr Farah, in the course of his oral evidence, said that he had a serious fall which caused an aggravation of his existing back condition, because that evidence is necessarily self-serving, it must carry less weight than objective evidence of an accident. I would expect such evidence to be readily available in the case of a serious accident. In fact, Mr Farah provided evidence from Dr Khoury and Dr Nicolas as well as evidence of obtaining physiotherapy between 17 July 2014 and 25 September 2014. The problem with that evidence, including the radiological report, is that it simply describes Mr Farah as having some discomfort with his existing back condition for which he obtained physiotherapy. The radiological report does not say anything new about his back condition. Had he in fact had a serious accident, I have no doubt that the doctors who examined him in Lebanon would have referred to such an accident as well as the fact that it had exacerbated an existing condition. There is no such statement in the medical reports Mr Farah provided. In fact, even the so-called Order entry Hospital provided by Dr Khoury simply states that Mr Farah complained of severe pressure in his lumbar spine. There is no mention of an accident causing an aggravation of his existing condition.
Because the objective evidence produced by Mr Farah which he claimed supported his contention that he was unable to return to Australia within the six week portability period made no mention of any accident, I find that the evidence does not establish that Mr Farah experienced a serious accident, serious illness or was hospitalised while in Lebanon and therefore unable to return to Australia within the portability period. It follows that I must find that there is no basis for extending his portability period.
Even if I were wrong about that, as I have already indicated above [10], Mr Farah’s travel documents prepared before he left Australia to go to Lebanon plainly indicate he did not plan to return until almost one week after the six week portability period had concluded. On that basis alone, his DSP payments would have been cancelled on 19 July 2014. In those circumstances, his portability period could not have been extended in any event because he would not have satisfied s. 1218C(2) of the Social Security Act.
QUALIFICATION FOR RECEIPT OF DSP
Following cancellation of his DSP payments, Mr Farah lodged a fresh application for the DSP on 23 October 2014. To that application was attached a medical report provided by Dr Philip Smith.
There are a number of requirements which an applicant must satisfy before qualifying for the DSP. The statutory provisions relevant to Mr Farah’s case are as follows (emphasis in original):
94 (1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)     the person has a continuing inability to work;
(ii)    …
94 (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.
…
94 (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.
Ordinarily, if a person makes a claim for a social security payment and is qualified for the payment on the day on which the claim is made, the person’s start day in relation to the payment is the day on which the claim is made (see sch. 2, cl. 3(1) of the Social Security (Administration) Act 1999 (the Administration Act)). However, if a person does not qualify for the social security payment on the day on which the claim is made, then cl. 4(1) of sch. 2 applies. It provides:
4 (1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
There are two things which arise out of the provisions in cl. 4(1) of sch. 2 of the Administration Act. The first is that the claimant must in fact lodge a claim if he or she wishes to receive the social security payment. The second is that if the claim is lodged before the person qualifies for the social security payment sought, provided the person qualifies within the period of 13 weeks after the day on which that claim is made (the qualifying period), the claimant will not have to lodge a new claim demonstrating he or she qualifies for the social security payment. In Mr Farah’s circumstances, the qualifying period is between 23 October 2014 and 22 January 2015.
The medical report attached to Mr Farah’s claim for the DSP stated he had the following conditions which caused him some impairment:
·low back pain;
·anxiety/depression;
·bilateral knee pain – tendinitis;
·diverticular disease; and
·shortness of breath on exertion.
The Secretary accepted that Mr Farah had the above conditions and that he satisfied

s. 94(1)(a) of the Social Security Act during his qualification period. However, the Secretary concluded that Mr Farah did not satisfy the requirements for qualification set out in s. 94(1) (b) of the Social Security Act. That is, he did not have an impairment rating of 20 points or more.

The degree of impairment of a claimant for DSP is worked out in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations (s. 5). They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Section 6(1) of the Impairment Tables provides that 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. The 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 (s. 6(2)).
Section 6(3) deals with impairment ratings and provides:
(3) An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Whether a condition is permanent is explained in s. 6(4) which provides (emphasis in original):
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The expression appropriately qualified medical practitioner is defined in s. 3 in the following way:
appropriately qualified medical practitioner means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.
The expression fully stabilised is defined in s. 6(6) of the Impairment Tables as follows:
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or…
The expression reasonable treatment is defined s. 6(7) as follows:
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Mr Farah’s medical conditions each need to be examined to determine the degree, if any, of impairment which might result on the application of the Impairment Tables.
Lower back pain
I had in evidence two reports by Mr John F O’Brien, an orthopaedic surgeon, dated 4 November 1999 and 9 November 1999 respectively. In his first report, Mr O’Brien said that examination revealed some loss of the normal range of lumbar movement and what appeared to be a positive extension catch. He also said there was no neurological abnormality. Mr O’Brien referred to a CT scan taken in the previous year which disclosed significant L4/5 spondylosis which he considered would be worth pursuing with an MRI. It was Mr O’Brien’s opinion that because Mr Farah had not had any active treatment for his back, it would definitely be worthwhile trying a course of physiotherapy which he would arrange. He said he would review him again in a month after some physiotherapy and after examining the MRI.
In his second report, Mr O’Brien said that Mr Farah’s MRI did show specific disc disruption at the L4/5 level. He then said it explained the nature of Mr Farah’s pain and he considered that he should have an intensive conservative program. He arranged physiotherapy for Mr Farah including exercises and suggested a light support on his back would help when he was more active. He hoped this program would get him back to work. Mr O’Brien also said that in a small percentage of cases this conservative program failed and, in Mr Farah’s circumstances, surgery may become appropriate. Nevertheless, he considered Mr Farah to be well away from a surgical solution at that time.
Dr Smith, a General Practitioner, recorded that Mr Farah experienced low back pain for a period greater than 10 years prior to his application. However Dr Smith also indicated in his medical report that the diagnosis was not supported by a specialist opinion.
The legislation has changed significantly since Mr Farah was first granted the DSP. Importantly, the introduction to the Impairment Tables makes it clear that a condition is only fully diagnosed if it is diagnosed by an appropriately qualified medical practitioner. An appropriately qualified medical practitioner is one whose qualifications and practice are relevant, in these circumstances, to diagnosing his lower back condition. That would require a specialist opinion. I had in evidence the two reports by Mr O’Brien and, accordingly, I consider that his back condition has been fully diagnosed.
However, there is a further problem with this condition in that it must not only be fully diagnosed but it must also be fully treated. Unless it has been fully treated, and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling Mr Farah to undertake work in the next 2 years, it cannot be regarded as fully stabilised. The only exception in this case is if there is a medical or other compelling reason not to undertake reasonable treatment. I did not have any evidence of a medical or other compelling reason not to undertake reasonable treatment.
In his report Dr Smith listed the only treatment Mr Farah had received was analgesia. He recorded that treatment having commenced on 9 September 2005. Dr Smith also reported past treatment in the form of physiotherapy. He confirmed that there was no future/planned treatment.
Given the above evidence, I must find that Mr Farah’s lower back condition, while fully diagnosed, has not been fully treated or fully stabilised. In those circumstances, his condition cannot be regarded as permanent and an impairment rating cannot be assigned to that condition.
Anxiety/depression
Dr Smith in his report recorded that Mr Farah had this condition greater than 10 years although the diagnosis was presumptive. He also indicated that no further investigation/tests were planned to confirm the diagnosis. As to current treatment, Dr Smith simply wrote medication. He also indicated that Mr Farah had seen a psychologist in October 2005.
Despite what is recorded by Dr Smith, I had in evidence a report dated 6 January 2006 from Dr LR Turecek, a consultant psychiatrist. Dr Turecek diagnosed severe anxiety and depression with a very poor adjustment to chronic physical problems (particularly his lumbar spine disorder). Dr Turecek was of the opinion that he would need a multidisciplinary team to manage this condition appropriately. He suggested referral to pain management indicating Dr Holwell was an expert in this area. I had no evidence before me indicating that any further attempts had been made to manage this condition.
The introduction to Table 5, which deals with Mental Health Function, states that diagnosis of the condition must be made by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by psychiatrist). While I accept that there has been a diagnosis of anxiety/depression made by a psychiatrist, although Dr Turecek suggested further treatment, there was no evidence that this treatment had been taken up. In my opinion, the treatment suggested by Dr Turecek was reasonable.
In the absence of evidence of further treatment, and the fact that Dr Smith indicated that no further treatment had been planned, I cannot find that this condition has been fully treated and therefore is fully stabilised. In those circumstances, an impairment rating cannot be assigned for this condition under Table 5.
Bilateral knee pain
I had in evidence a report prepared by Mr Anthony Bonomo, an orthopaedic surgeon, dated 8 April 2011. Mr Bonomo reported that on examination, Mr Farah demonstrated a small effusion and significant patellofemoral crepitus and irritability. He said the x-rays were within normal limits. According to Mr Bonomo, clinically, Mr Farah’s symptoms were in keeping with patellofemoral degeneration. Mr Bonomo also said that arthroscopy could be of benefit after exhausting all conservative measures. Apparently Mr Farah told Mr Bonomo that he would like to take up that option and wished to be referred to a public hospital because he did not have private means. Mr Bonomo said he wrote to the Northern (Hospital) on his behalf. There was no evidence before me that Mr Farah proceeded with that referral.
It appears that Dr Smith referred Mr Farah to Mr Roger N Westh, an orthopaedic surgeon. In a report dated 15 January 2013 Mr Westh said Mr Farah had previously seen an orthopaedic surgeon but that there was no follow-up. Mr Westh also diagnosed bilateral patellofemoral crepitus. He said he was arranging for Mr Farah to be reviewed in his orthopaedic clinic as he would need MRI scanning of his knees and possible arthroscopic assessment. I had no evidence before me indicating that Mr Farah had followed up with an MRI scan.
Again, the evidence does indicate that this condition has been fully diagnosed but there was no evidence of the suggested treatment having been undertaken despite the fact that it appears to be reasonable. Therefore, it cannot be said that this condition is fully treated and fully stabilised. Accordingly, it cannot be regarded as permanent and an impairment rating cannot be assigned to it.
Diverticular disease and shortness of breath
Both of these conditions are listed in Dr Smith’s report under medical conditions which are generally well managed and that cause minimal or limited impact on ability to function. The JCA report dated 25 November 2014 recorded Mr Farah stating that he had been diagnosed with this condition some five years ago and that treatment consisted of dietary changes. The JCA reported symptoms as being occasional stomach pain. There was no other evidence before me regarding this medical condition.
As to Mr Farah’s claim that he suffered from shortness of breath, I had a report from Dr Wally Ahmar, a cardiologist, dated 21 March 2014. Dr Ahmar recorded that Mr Farah had significant dyspnoea on exertion. His last exercise stress echocardiograph revealed dyspnoea with exertion. Apparently that was 12 months previous to his examination by Dr Ahmar. Mr Farah expressed keenness to have an invasive procedure given that there was a strong family history of ischaemic heart disease and cardiovascular risk factors. Dr Ahmar said he would make arrangements for this to occur shortly. There was no evidence before me that this has occurred.
According to the JCA report dated 25 November 2014, on interview Mr Farah was unable to recall any treatment or plans for treatment for his shortness of breath condition.
While it may be possible to state that Mr Farah’s shortness of breath condition can be regarded as fully diagnosed, the same cannot be said of his claim for diverticular disease. In any event, both conditions certainly cannot be said to have been fully treated and fully stabilised. Accordingly, an impairment rating cannot be assigned to either condition.
It is clear that Mr Farah does not satisfy the qualifying criterion in s. 94(1)(b) of the Social Security Act. In other words, he does not have an impairment rating of 20 points or more under the Impairment Tables. That means Mr Farah does not qualify for the DSP. Nevertheless, for the sake of completion, I will briefly examine the third qualifying criterion set out in s. 94(1)(c). That is, whether Mr Farah has a continuing inability to work.
CONTINUING ABILITY TO WORK
Where a person does not have a severe impairment, that is an impairment which attracts at least 20 points on a single Impairment Table, that person is considered to have a continuing inability to work only if (s. 94(2) of the Social Security Act):
(a)they have actively participated in a program of support which was wholly or partly funded by the Commonwealth; and
(b)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years; and
(c)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years; or if the impairment does not prevent the person from undertaking a training activity – the activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years.
For the purposes of the Social Security Act, work means work which is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5)).
The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The current instrument is dated 15 December 2014. The requirements for active participation as set out in s. 7 which, relevantly, provides:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
Subsections (3), (4) and (5) deal with the circumstances where a person completes the entire program of support in less than 18 months; 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 their capacity to prepare for, find or maintain work through continued participation in the program; and although the person was participating in a program of support at the end of the relevant period, they are prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program.
The expression relevant period is a defined term and, in relation to a person who does not have a severe impairment, means the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person (s. 5 of the POS Determination).
It has been said that the idea behind the POS requirement is that persons who are not severely impaired but who have mild or moderate impairments in a number of areas of function are not immediately placed on the DSP. A person will not have a continuing inability to work and will not qualify for the DSP until there has been appropriate intervention to determine whether they can be retrained and assisted into a more suitable form of employment, having regard to their impairments. I accept that to be an accurate statement of the purpose underlying the POS Determination.
I had in evidence a record from DES – Employment Support Service which indicated that Mr Farah had attended a program of support conducted by MatchWorks at Greensborough on 4 February 2015. There was no evidence before me that Mr Farah had in fact completed a POS in the 36 month period immediately prior to his claim being lodged for the DSP on 23 October 2014. Because Mr Farah does not have a severe impairment, that is an impairment rating of 20 points on any single Impairment Table, in order to qualify for the DSP he must complete a POS in the 36 month period immediately before a claim is lodged. This failure to do so in this case means he cannot satisfy the qualifying criterion regarding a continuing inability to work.
CONCLUSION
Regarding matter 2015/1629, I have found that Mr Farah remained overseas for a period which exceeded the portability limit for the payment of the DSP, which he was at that time receiving. I have also found that on exceeding the portability period, the correct decision was to cancel his entitlement to the DSP.
Although Mr Farah claimed that the extension provisions found in s. 1218C of the Social Security Act should be applied to him on the ground that he suffered a serious accident while in Lebanon and prior to the expiry of his portability period, I have found that the evidence before me does not disclose that Mr Farah was unable to return to Australia within the portability period by reason of a serious accident. In fact, the evidence before me regarding his travel plans to Lebanon disclose that even prior to departure, Mr Farah did not plan to return to Australia within the six week period. Accordingly, the decision to cancel Mr Farah’s DSP from 19 July 2014 was the correct decision.
As for matter 2015/1268 which concerned Mr Farah’s application for the DSP following his DSP cancellation, I have found that no impairment rating is able to be assigned to any of Mr Farah’s claimed medical conditions essentially for the reason that they are either not fully treated and stabilised or that no impairment results from those conditions.
In any event, I have also found that Mr Farah does not meet the qualifying criterion in s. 94(1)(c) of the Social Security Act regarding a continuing inability to work. That is because Mr Farah had not completed a POS in the 36 month period prior to lodging his claim. Because Mr Farah does not have a serious impairment, it is mandatory that he completes a POS.
I find that the decisions made by the SSAT on 16 March 2015 regarding Mr Farah’s portability period and further claim for the DSP were correct. I affirm those decisions.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
.............................[sgd]...........................................
Associate
Dated 4 September 2015

Date of hearing 4 August 2015

Applicant In person

Advocate for the Respondent Ms J Zhou

Solicitors for the Respondent Department of Human Services

Division	GENERAL DIVISION
File Numbers	2015/1629 2015/1628
Re	Nabil Farah
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	4 September 2015
Place	Melbourne

Date of hearing	4 August 2015
Applicant	In person
Advocate for the Respondent	Ms J Zhou
Solicitors for the Respondent	Department of Human Services