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

[2016] AATA 89

Fidge and Secretary, Department of Social Services (Social services second review) [2016] AATA 89 (19 February 2016)

Division	GENERAL DIVISION
File Number	2015/1396
Re	John Fidge
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	19 February 2016
Place	Adelaide

The Tribunal affirms the decision under review.

....................[Sgd]....................................................

Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – whether applicant had a severe impairment during the assessment period – whether Program of Support requirements met – whether applicant qualified for disability support pension during assessment period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 42, Schedule 2, clauses 3 and 4(1)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member R W Dunne

19 February 2016

INTRODUCTION

1. The applicant in this case is John Fidge.  On 24 February 2015, the (former) Social Security Appeals Tribunal (“SSAT”) affirmed an earlier decision made by an Authorised Review Officer (“ARO”) of the Department of Human Services (Centrelink) on 11 September 2014 to reject a claim for Disability Support Pension (“DSP”) lodged by the applicant.  The applicant has applied to this Tribunal for review of the decision of the SSAT.

2. At the hearing, Mr Fidge represented himself and Centrelink was represented by Mr C Visser (from the Program Litigation and Review Branch, Department of Human Services).  I admitted into evidence the T Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

   ·report of Dr John Baranoff, Clinical and Health Psychologist, dated 25 June 2015;[2] and

   ·letter from Sureway Employment and Training Pty Ltd dated 11 June 2015.[3]

   [1] Exhibit R1.

   [2] Exhibit A1.

   [3] Exhibit A2.

   ISSUE FOR THE TRIBUNAL

3. The issue for the Tribunal in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether the applicant was qualified to receive disability support pension on the date of his claim, being 10 June 2014, or within 13 weeks thereafter, that is by 9 September 2014 (“Assessment Period”).

   LEGISLATION 

4. The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:

   “Qualification for Disability Support Pension

   (1)  A person is qualified for disability support pension if: 

   (a)   the person has a physical, intellectual or psychiatric impairment; and

   (b) the person's impairment is of 20 points or more under the Impairment Tables; and

   (c)   one of the following applies: 

   (i)     the person has a continuing inability to work;

   (ii)   the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)   the person has turned 16; and

   (da) in a case where the following apply:

   (i)     the person is under 35 years of age;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e) the person either: 

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

   (A) is not an Australian resident; and

   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea) one of the following applies: 

   (i) the person is an Australian resident;

   (ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.

   Continuing inability to work

   (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) -- the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)   in all cases --either: 

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:  For work see subsection (5).

   (3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

   (a)   the availability to the person of a training activity; or

   (b) the availability to the person of work in the person's locally accessible labour market.

   (3A) If:

   (a)a person is receiving disability support pension; and

   (b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

   then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   Severe impairment

   (3B)A person’s impairment is 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.

   Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table.  The person has a severe impairment.

   Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table.  The person has a severe impairment.

   Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables.  The person does not have a severe impairment.  

   Active participation in a program of support

   (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   Doing work independently of a program of support

   (4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person: 

   (a) is unlikely to need a program of support; or

   (b) is likely to need such a program of support provided occasionally; or

   (c) is likely to need such a program of support that is not ongoing.

   Other definitions

   (5)       In this section: 

   program of support means a program that:

   (a)is designed to assist persons to prepare for, find and maintain work; and

   (b)either;

   (i)is funded(wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

   (a) education;

   (b) pre-vocational training;

   (c) vocational training;

   (d) vocational rehabilitation;

   (e) work-related training (including on-the-job training).

   work means work: 

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person's locally accessible labour market.

   …”

5. Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“Administration Act”), which reads:

   “4  Start day—early claim

   (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.

   …”

   SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)

6. The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the Determination, which relevantly reads:

   “6.      Applying the Tables

   Assessing functional capacity

   (1)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.

   Applying the Tables

   (2)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.

   Note:For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (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.

   Permanency of conditions 

   (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. 

   Fully diagnosed and fully treated 

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a)    whether there is corroborating evidence of the condition; and

   (b)    what treatment or rehabilitation has occurred in relation to the condition; and

   (c)    whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised 

   (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

   (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.

   Note:For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (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.

   …”

   SOCIAL SECURITY (REQUIREMENTS AND GUIDELINES – ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“REQUIREMENTS AND GUIDELINES”)

7. The Requirements and Guidelines set out what must be taken into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for DSP. The Requirements and Guidelines relevantly read:

   “Part 1 Preliminary

   …

   3.      Interpretation

   In this Determination:

   Act means the Social Security Act 1991.

   designated provider means any of the following:

   (a)    a Job Services Australia provider;

   (b)    a Disability Employment Service;

   (c)    an Australian Disability Enterprise;

   (d)    a provider authorised by a State or Territory government to conduct a transition to work program;

   (e)    a provider authorised by the relevant workers’ compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory;

   (f)     a provider authorised by an insurer as a result of a claim under a contract of insurance for an accident (including a motor vehicle accident), sickness or other trauma;

   (g)    a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.

   …”

   “Part 2    Requirements for active participation

   5.Requirements for active participation

   (1)A person has actively participated in a program of support if:

   (a)   the person has:

   (i)     complied with the requirements of the program of support; and

   (ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

   (b)   subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

   (c)   subsection (6) is satisfied in relation to the person and the program of support.

   (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

   (3)This subsection is satisfied in relation to a person and a program of support if:

   (a)   the duration of the program of support was less than 18 months; and

   (b)   the person completed the program.

   (4)This subsection is satisfied in relation to a person and a program of support if:

   (a)   the program of support was terminated before the relevant date of claim; and

   (b)   the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.

   (5)This subsection is satisfied in relation to a person and a program of support if:

   (a)   at the relevant date of claim, the person is participating in the program of support; and

   (b)   the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.

   (6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:

   (a)   the details of the designated provider of the program;

   (b)   the dates when the person began the program and, if applicable, ceased the program;

   (c)the reason for ceasing the program (if any);

   (d)   any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;

   (e)the reason for any period of non-participation in the program;

   (f)    the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;

   (g)   the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;

   (h)   the vocational, rehabilitation or employment activities the person participated in as a part of the program;

   (i)    the frequency of contact that the person had with the designated provider of the program.

   Part 3 Guidelines

   6.      Program of support

   In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:

   (a)   was provided by a designated provider; and

   (b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and

   (c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and

   (d)includes at least one of the following activities;

   (i)job search;

   (ii)job preparation;

   (iii)education and training;

   (iv)work experience;

   (v)employment;

   (vi)return to work;

   (vii)vocational or occupational rehabilitation;

   (viii)injury management;

   (ix)an activity designed to assist the person to return to, maintain or obtain employment.

   7.      Material to be taken into account

   In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary may take into account any material or document that:

   (a)   relates to the person’s participation in a program of support; and

   (b)relates to a program of support undertaken in the 36 months prior to the relevant date of claim.”

   BACKGROUND

8. The material facts in this case are largely not in dispute.  For the most part, they are extracted from the respondent’s statement of facts and contentions.

1. As part of his claim for DSP, the applicant also lodged a medical report form dated 21 May 2014 and completed by Dr Jill Maxwell.  The report was lodged together with a specialist report from Ms F V Stevens, Clinical Psychologist, dated 14 April 2014.  These reports indicated that the applicant’s medical conditions were spondylolisthesis, depressive anxiety disorder and GORD. 

2. A Job Capacity Assessment was conducted on 27 June 2014 to assess the applicant’s impairments for qualification for DSP.  The assessor assessed the applicant’s conditions as spinal disorder, gastroenterological condition and psychiatric disorder.  The assessor found that only the spinal disorder was fully diagnosed, fully treated and fully stabilised, and assigned 10 impairment points for that disorder under Impairment Table 4.  The other conditions were assessed as permanent and fully diagnosed, but not fully treated and stabilised.  No impairment points were assigned.

3. When the SSAT conducted its review, it agreed with the assessment of the ARO in assigning 10 impairment points for spondylolisthesis under Impairment Table 4. The SSAT considered that the applicant definitely did not meet the 20 point descriptor under Table 4. Thus, the JCA and the ARO had found that the applicant’s spinal disorder should be rated 10 impairment points under Impairment Table 4 and the SSAT had agreed with that assessment. In relation to the applicant’s anxiety and depression, the SSAT found that this condition was fully diagnosed, fully treated and fully stabilised as it was long-standing and had been treated for many years. It considered that the 10 point descriptor best fitted the applicant’s depression under Impairment Table 5 and it found accordingly. The applicant’s total impairment rating was thus 20 points and he satisfied s 94(1)(b) of the Act.

4. However, the SSAT found that none of the applicant’s medical conditions attracted 20 points under a single table and, as such, he did not have a severe impairment. In these circumstances the Program of Support requirements applied. In considering whether the applicant had actively participated in a Program of Support, the SSAT found that a person (and hence the applicant) needed to be involved with a disability employment provider or similar for 18 months of the 3 years prior to lodging their DSP claim. As the applicant had not done this at the time he lodged his claim, he did not meet this requirement. In these circumstances, he did not have a “continuing inability to work” under s 94(2)(aa) of the Act.

5. As part of the review process, the applicant provided additional medical evidence in the form of a new medical report from Dr John Baranoff dated 25 June 2015.  The applicant also lodged a further application for DSP dated 17 July 2015.  As a result, a new Job Capacity Assessment was conducted, face to face, on 28 July 2015.  This new assessment was said to have considered the applicant’s impairments as at 10 June 2014, which was the date of the DSP claim before this Tribunal.  The assessment confirmed that a total of 20 impairment points should be assigned to the applicant, that is, 10 points under Impairment Table 4 and 10 points under Impairment Table 5.  The assessment also found that the active participation in a program of support criteria were not met.

6. Also included as part of the review process, the Program of Support requirements are analysed. If the applicant is found to have 20 points or more under the Impairment Tables, but is also found not to have a single impairment that is a “severe impairment” as set out in s 94(3B) of the Act, then he must have actively participated in a “program of support” (see s 94(2)(aa)). If he has not done so, the applicant cannot be found to have a continuing inability to work. The term “program of support” is defined in s 94(5) of the Act. As the SSAT inferentially said in paragraph 42 of its decision, Part 2 of the Requirements and Guidelines sets out the requirements for active participation. In essence, a person (and in this case, the applicant) must participate in a program of support for 18 months within the 36 months prior to the date of claim, before the person can be taken to have actively participated in a program of support (see s 5(2) of the Requirements and Guidelines).

7. The applicant has provided information about his participation in a program of support.  The applicant’s Sureway Employment and Training satisfied the requirements of a program of support from 21 July 2014.  However, there is no evidence which indicates that the applicant had participated (or continued to participate) in a program of support prior to commencing the program with Sureway Employment and Training Pty Ltd on 21 July 2014.  The information provided by Sureway indicates that there were breaks in the program, such as periods of in-activity or non-attendance.  The reasons for the breaks in the program were said to be because of “sporadic attendance face-to-face due to chronic pain of health conditions.”

   EVIDENCE

8. It was the applicant’s evidence that he had been suffering back pain since 2008.  He said that he was born with spondylolisthesis, which was discovered at age 16 when he was playing football.  He said he can’t sleep and suffers from depression and anxiety.  He was unable to work and he regularly attended a gymnasium as his safety zone.  In 1995, he had two spinal fusion operations to stabilise the spine.  He is currently 49 years of age and has 4 children.  In 2008, after an affair, his wife left him.  They divorced in 2012.  He cannot afford his living expenses and his mother gives him money.  He lives in accommodation owned by a friend, which he rents.  Because he has been unable to pay his rent, he owes his friend a significant sum.  He does not socialise, but acquaintances he knows help him with meals.  He has been involved with internet dating, but has a restraining order against him avoiding contact by phone.  He has worked in the past, but has not done so since 2008.  He has tried working as a bar tender and in sales, but he has lacked experience.  He has also tried to work as a personal trainer, but he was unable to demonstrate the training involved.  In July 2014, he commenced a program of support and was referred to Disability Employment Services – Employment Support Services (DES-ESS) with Sureway Employment and Training Pty Ltd.  In June 2015, he met with Dr John Baranoff.  At the applicant’s request, Dr Baranoff summarised in writing the presentation the applicant gave on 11 June 2015.

9. The applicant accepted that he did not have a severe impairment. His impairment was not of 20 points under a single Impairment Table. However, he believed he had actively participated in a program of support within the meaning of s 94(3C) of the Act.

   CONSIDERATION

   Was the applicant qualified to receive disability support pension on the date of his claim or within 13 weeks thereafter?

10. Put specifically, the question in this case is whether, under the criteria in s 94 of the Act, Mr Fidge was entitled to receive the DSP in the Assessment Period, rather than whether he currently satisfied those criteria. To be entitled, he had to have a physical, intellectual or psychiatric impairment, his impairment (or impairments) had to be of 20 points or more under the Impairment Tables, and he had to have a “continuing inability to work”.   

11. When Mr Fidge lodged his DSP claim, he claimed to be suffering from spinal fusion, chronic depression and GORD.  In the medical report of Dr Maxwell dated 21 May 2014, she indicated that the applicant’s medical conditions were spondylolisthesis, depressive anxiety disorder and GORD.  In the Job Capacity Assessment report dated 2 July 2014, the assessor assigned 10 impairment points for the spinal disorder under Impairment Table 4.  This assessment was consistent with the assignment of 10 points under Impairment Table 4 for the spinal function reached by the ARO.  The assessor assigned no impairment points for the gastroenterological condition and the psychiatric disorder.

12. In its decision dated 24 February 2015, the SSAT agreed with the assessment of the ARO in assigning 10 impairment points for spondylolisthesis under Impairment Table 4.  In its reasons[4] the SSAT said:

    “The Tribunal considers Mr Fidge definitely does not meet the 20 point descriptor as he can sit for 10 minutes and pick an object up off a table.”

    [4] Exhibit R1, page 7 (paragraph 28)

13. Moreover, in its reasons the SSAT found that the applicant’s anxiety and depression was fully diagnosed, fully treated and fully stabilised. It considered that this condition could be assigned 10 impairment points under Impairment Table 5. The SSAT found that the applicant’s depression was only moderately severe as he still managed to look after himself and go to the gym daily. The SSAT found that the applicant’s total impairment rating was 20 points and he therefore satisfied s 94(1)(b) of the Act. In considering whether the applicant had a severe impairment, the SSAT found that none of his medical conditions attracted 20 impairment points in themselves. Hence, the applicant did not have a severe impairment and the program of support requirements applied. In analysing these requirements, I note the SSAT said (at paragraphs 42-44 of its reasons);

    “42. Generally to meet the requirement to have actively participated in a program of support a person needs to have been in (sic) involved with a disability employment provider or similar for 18 months of the 3 years prior to lodging their Disability Support Pension claim.

    43. Mr Fidge had not done that at the time he lodged his claim and so did not meet this requirement.

    44. Hence Mr Fidge does not have a continuing inability to work and does not qualify for a Disability Support Pension.”

14. I note that the applicant provided additional medical evidence in the form of a new medical report from Dr John Barenoff dated 25 June 2015. The applicant also lodged a further application for DSP dated 17 July 2015, and a new Job Capacity Assessment was undertaken on 28 July 2015. I note that this assessment considered the applicant’s eligibility for DSP at 10 June 2014, the date of his claim. The assessment confirmed that a total of 20 impairment points were assigned to the applicant, that is, 10 points under Impairment Table 4 and 10 points under Impairment Table 5. The assessment also noted that the applicant did not actively participate in a program of support. In other words, if the applicant is found to have 20 or more points under the Impairment Tables, but is also found not to have a “severe impairment”, he must have actively participated in a program of support (see s 94(2)(aa) of the Act).

15. As I am satisfied on the evidence that the applicant does not have a “severe impairment”, it is necessary for me to review the program of support requirements as set out in s 94(5) of the Act and whether the applicant has actively participated in such a program pursuant to s 94(3C), (3D) and (3E). It is also necessary for me to consider whether the applicant may be treated as doing work “independently of a program of support” under s 94(4) of the Act.

16. Part 2 of the Requirements and Guidelines sets out the requirements for active participation in a program of support. In the applicant’s case, he must have complied with the requirements of the program and participated in it during the 36 months ending immediately before the relevant date of claim, that is, in the period from 10 June 2011 to 9 June 2014. The applicant satisfies that requirement if he participated in the program of support for at least 18 months. The requirement is also satisfied if the duration of the program of support was less than 18 months and the applicant completed the program. Alternatively, the requirement is satisfied if the program of support was terminated before the date of claim. More particularly, the requirement is satisfied in relation to the applicant and the program of support if at the relevant date of claim the applicant is participating in the program of support.

17. I note from the letter from Sureway that the applicant was referred to DES-ESS with Sureway on 21 July 2014.  Due to lack of progress on this program as a result of his ongoing medical conditions, the program was discontinued.  On page 31 of the DSP claim dated 17 July 2015, the applicant said:

    “… but because of my not being on a employment program for the specific amount of time I was told I would have to wait 18 months. 

    I was then told if a got a letter from the provider that said the [sic] couldn’t help me because of my conditions I could be given the DPT [sic] straight away.

    I have done that and included it in my forms.”

18. In the information about participation in the program of support, Daniel Shane at Sureway said (on 20 May 2015):

    “Sureway has engaged with John from commencement in July 2014.  During this time, limited progress has been achieved due to the observed impact of John’s ongoing health issues.

    …

    John has been unable to attend all scheduled appointments due to ongoing health issues, conflicting medical appointments.  Provider discretion was utilised on some occasions due to impact of health conditions as observed in attended appointments.”

19. Moreover, in response to a question whether the applicant undertook “any activities to find, gain or remain in employment”, Nikki Gilbert at Sureway said:[5]

    “Due to significant back pains & depression, John has stated that he is unable to engage in these activities.”

    [5] Exhibit R1, page 152.

20. The respondent contended that the applicant did not participate in a program of support for the required 18 months within the 36 months prior to the date of claim on 10 June 2014 (see s 5(2) of the Requirements and Guidelines). I agree with this contention. The respondent also submitted that the applicant’s Sureway employment satisfies the requirements of a program of support from 21 July 2014. However, apart from some employment assistance with CRS Australia between 1/10/2013 and 4/7/2014 and Sureway between 4/7/2014 and 17/7/2014,[6] there is no evidence to indicate that he had participated in an ongoing program of support prior to him commencing the program with Sureway on 21 July 2014.  I also agree with this contention.

    [6] Exhibit R1, page 154.

21. In my view, on the evidence before me, the applicant does not have the required 18 months, or any periods of participation, in an ongoing program of support within the 3 years prior to the date of his claim. Hence, as the applicant was not participating in a program of support either before, or at the time of, his claim for DSP he cannot satisfy s 5(1)(a)(ii) of the Requirements and Guidelines. There is also no evidence that there was a program of support of less than 18 months and that the applicant completed that program. Nor is there any evidence that there was a program of support that was terminated before the date of his claim. Thus, the exceptions to the requirement to participate for at least 18 months in a program of support contained in s 5(3), s 5(4) and s 5(5) of the Requirements and Guidelines are not relevant in this case.

22. As I am also of the view that it is not unlikely that the applicant needs a program of support either ongoing or provided occasionally, I am not satisfied that he may be treated as a person doing work independently of a program of support within the meaning of s 94(4) of the Act.

    CONCLUSION

23. On all the available evidence, Mr Fidge has not participated in a program of support. Notwithstanding what he has said before me, the relevant provisions in the Requirements and Guidelines have not been complied with by the applicant, and I have no discretion to allow him to avoid those Requirements and Guidelines. It follows that he does not have a continuing inability to work within the meaning of s 94(1)(c)(i) and s 94(2)(aa) of the Act. His claim for DSP cannot therefore succeed.

    DECISION

24. For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

.....................[Sgd].............................................

Administrative Assistant

Dated 19 February 2016

Date(s) of hearing	24 November 2015
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Dept of Human Services