Georgiou and Secretary, Department of Social Services (Social services second review) - [2021] AATA 3317

Georgiou and Secretary, Department of Social Services (Social services second review) [2021] AATA 3317 (16 August 2021)
Division:GENERAL DIVISION
File Number: 2020/6448
Re:Tasos Georgiou
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member C. J. Furnell
Date:16 August 2021
Date of written reasons: 15 September 2021
Place:Melbourne

The Tribunal affirmed the decision the subject of review under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) pursuant to a decision made on 16 August 2021. The following are the written reasons for that decision.
................[SGD]........................................................
Senior Member C. J. Furnell
Catchwords
SOCIAL SECURITY – application for Disability Support Pension refused – whether conditions were fully diagnosed, treated and stabilised in the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – Applicant did not actively participate in a program of support – Applicant did not have a continuing inability to work – 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
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Social Services v Sziva [2019] FCA 23
REASONS FOR DECISION
Senior Member C. J. Furnell
15 September 2021

On 2 February 2020, the Applicant applied for a disability support pension (DSP).[1]
[1] T10.
The rejection of that application on 12 May 2020[2] was affirmed by a Centrelink authorised review officer on 12 August 2020.[3] That decision was, in turn, affirmed on 7 October 2020 by the Tribunal’s Social Services and Child Support Division (SSCSD).[4]
[2] T16, p.276.
[3] T3.
[4] T2.
The Applicant applied to the General Division of the Tribunal for review of the decision as affirmed by the SSCSD.[5]
[5] Social Security (Administration) Act 1999 (Cth), s 179(2); T1.
The hearing of that application was conducted on 16 August 2021. The underlying question in issue addressed at the hearing was whether the Applicant qualified for the DSP for which he applied. I was not satisfied that he did so qualify and, accordingly, decided to affirm the decision under review. I outlined my reasons for that decision at the conclusion of the hearing. The Applicant subsequently asked that I give him a statement in writing of those reasons, and I do so now.
Put shortly, none of the Applicant’s permanent medical conditions caused him to suffer from a severe impairment. Accordingly, to qualify for a DSP, the Applicant was required to have actively participated in a program of support. He did not do so.
WHEN DOES A PERSON QUALIFY FOR A DSP?
An application for a DSP is required to be either granted or rejected.[6]
[6] Social Security (Administration) Act 1999 (Cth), s 36.
It is required to be granted if the Applicant qualifies for the pension and the pension is payable.[7] Hence, two conditions are of relevance; qualification and payability.
[7] Ibid, s 37.
The provisions governing a person’s qualification for a DSP are found in Part 2.3 (and, in particular, in s 94) of the Social Security Act 1991 (Cth) (the Act).
Section 94 sets out criteria to be satisfied in order to so qualify. Those criteria include that:
(a)the person concerned has a physical, intellectual, or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the “Impairment Tables”; and
(c)the person has a continuing inability to work (where, as here, there is no involvement in a scheme known as the ‘supported wage system’). Absent a “severe” impairment as a result of a “permanent” medical condition, the person will not have a continuing inability to work unless he or she actively participated in a program of support.
As for payability, the provisions governing this issue are found in the Social Security (Administration) Act 1999 (Cth) (SSA).
Pursuant to the SSA, a DSP is payable on the “start day” in relation to the pension.[8]
[8] Ibid, s 41.
The start day in relation to a DSP is generally the day on which the claim for the pension is made.[9] If the person does not then qualify for it, however, the start day is the first day in the 13-week period after the claim is made on which the person qualifies for the pension.[10]
[9] If the Applicant had contacted the Respondent about his DSP claim prior to actually making the claim, then the earlier date might have been the date on which the 13-week period commenced. There is nothing before the Tribunal, however, suggesting that he did so – see SSA, s 13.
[10] SSA, s 42 and Schedule 2, cls 3(1) and 4.
Hence “…[i]t follows that …[an applicant’s] entitlement to the DSP must be considered as at the date of his claim and in the 13 weeks thereafter, and that any change in …[the applicant’s] health after that 13 week period is irrelevant save insofar as it may cast light on the position at the relevant time.”[11]
[11] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
Accordingly, for the Applicant to be entitled to a DSP, he must have satisfied the pension qualification criteria on the date of his claim (2 February 2020) or on a day in the period commencing on that date and ending on the day being 13 weeks thereafter (being 3 May 2020).
Hence, the question in issue in this proceeding is whether the Applicant qualified for the DSP in the period from 2 February 2020 to 3 May 2020 (the QP).
DID THE APPLICANT HAVE AN IMPAIRMENT IN THE QP?
The Respondent conceded that the Applicant had a physical, intellectual or psychiatric impairment in the QP.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions of 21 April 2021 (SFIC) at [34].
The nature of the impairment that he then had, or may then have had, appears not to be in dispute. It comprises (or at least results from) an eye condition, migraine, shoulder and upper arm disorder, lower limb deficiencies (relating to the Applicant’s knees), a spinal condition (arising from lumbosacral disc disease) and a psychological disorder (albeit that, at the time of the claim, no such disorder was identified by the Applicant).[13]
[13] T10, pp.127-8.
DID THE IMPAIRMENT ATTRACT A RATING OF 20 POINTS OR MORE IN THE QP?
I am satisfied that the Applicant’s impairment is of 20 points or more under the “Impairment Tables”.
Those tables are currently found in an instrument made under s 26 of the Act and which is entitled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables). That instrument not only sets out certain tables but also determines rules to be complied with in applying the Tables.
Under the Tables, a rating is assigned to an impairment in an endeavour, essentially, to measure the loss of functional capacity affecting a person’s ability to work that results from a person’s medical condition.[14]
[14] Tables, s 3: definition of “impairment”, being a loss of functional capacity affecting a person’s ability to work that results from the person’s medical condition.
In considering the Tables, I mention that:
(a)an impairment to which a rating can be assigned is not a necessary result of a diagnosed or permanent condition;[15]
(b)of the Tables, the correct one or ones to be utilised in any particular case generally depends on the nature of the relevant impairment.[16] Multiple tables can be used if a particular condition causes multiple losses of function,[17] but the same impairment cannot be double counted, whether through the use of multiple tables[18] or because multiple conditions cause or contribute to the same impairment;[19]
(c)self-reported symptoms are generally insufficient to justify assignment of a rating under the Tables, absent corroborating evidence.[20]
[15] The Tables, 6(8), 10(5).
[16] The Tables, 10(1).
[17] The Tables, 10(3).
[18] The Tables, 10(4).
[19] The Tables, 10(5)-(6).
[20] The Tables, 8(1).
For an impairment to be assigned any points under the Tables, let alone 20 points, it must be capable of being assigned a rating.
In order to be so capable, first, the condition causing the impairment must be permanent and, second, the impairment must be more likely than not to persist for more than two years.[21]
[21] The Tables, 6(3).
When is a condition permanent?
In order for a condition (being a medical condition)[22] to be permanent it needs to be:[23]
(a)fully diagnosed by an appropriately qualified medical practitioner;
(b)fully treated;
(c)fully stabilised; and
(d)more likely than not, in the light of available evidence, to persist for more than two years.
[22] The Tables, 3.
[23] The Tables, 6(4).
For a condition to be fully diagnosed, the evidence must show that the DSP applicant suffered from the condition in the relevant QP and that the condition has been diagnosed by an appropriately qualified medical practitioner. It is not necessary, however, to show that such a diagnosis was made in the QP.[24]
[24] Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88]. Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
In considering whether a condition is fully diagnosed and fully treated, it is necessary to consider:[25]
(a)whether there is corroborating evidence for the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
[25] The Tables, 6(5).
Lastly, a condition will only be considered to have been fully stabilised if, in circumstances where the treatment for the condition that had been undertaken by a person:
(a)was “reasonable treatment,”[26] any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)was not “reasonable treatment,” either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result from the undertaking of reasonable treatment or there is a medical or compelling reason for the person not to undertake reasonable treatment.[27]
[26] A concept defined in the Tables, 6(7).
[27] The Tables, 6(6).
I turn now to consider whether each condition as a result of which the Applicant was said to suffer impairment is permanent and, insofar as it is, what rating ought to be assigned to it under the Tables. Before doing so, however, I again mention that the Applicant would only be relieved of the requirement to have actively participated in a program of support if an impairment resulting from a permanent medical condition is “severe”. An impairment will only be severe if it is assigned a rating of 20 points or more under a single Table.[28] The Applicant submitted that he was entitled to a DSP and that his eye condition alone justified such an entitlement.[29] He did not, however, address the descriptors in any particular Table that might have warranted a rating of 20 points or more under the Table.
[28] The Act, s 94(3B).
[29] Oral submission of the Applicant at the hearing of this proceeding.
Eye condition
The Respondent conceded that the Applicant’s eye condition is permanent, that is, that it is fully diagnosed, treated and stabilised.[30] The Respondent was right to do so.
[30] Respondent’s SFIC [36]
As the permanence of the eye condition was not in issue, I merely note that:
(a)in December 2019, an ophthalmologist, Associate Professor O’Day (AP O’Day), reported that the Applicant had a right cataract extraction and lens implantation.[31]
(b)in August 2020, a general practitioner, Dr Berera, was reported as having confirmed in May 2017 that the Applicant had laser surgery to his left eye.[32]
(c)in a report of June 2021,[33] AP O’Day opined that there was a small, stable, macular hole in the Applicant’s right eye. The Applicant’s left eye was said to have an early nuclear cataract and a posterior vitreous detachment, as well as lattice degeneration and chorioretinal scars. Visual acuity in the right eye was said to be 6/36, with or without correction, while in the left eye it was said to be was 6/7.5 without correction, but 6/6 with correction.
(d)in that June 2021 report, AP O’Day opined that the Applicant’s eye condition was permanent and that no further treatment was required “at this stage”.
[31] T15, p.241.
[32] T11, p.144: Job Capacity Assessment report of 12 August 2020.
[33] While dated well outside the QP, this report is relevant, given that the Applicant’s symptoms were said in the report not to have changed “over the last 12 months” and the diagnoses and opinions expressed in it were largely consistent with those expressed by AP O’Day in earlier reports of January 2021 and November 2020.
As to the nature and extent of the impairment suffered by the Applicant as a result of his permanent eye condition, I find that in the QP he had difficulty in looking at near and distant objects for any period of time (which served to reduce his ability to read and watch television), photophobia with bright sunlight,[34] occasional double vision, difficulty with night vision and in reading street signs (which can appear blurry)[35] and used spectacles when reading.[36] He was, however, able to drive his car, albeit not for long distances.[37]
[34] T15, p.241: AP O’Day’s report of December 2019.
[35] T15, p.252: Dr Berera’s report of May 2020.
[36] T11, p.138: Job Capacity Assessment report of May 2020.
[37] Ibid. See also T15, p.252: Dr Berera’s report of May 2020.
The Table related to impairment resulting from the Applicant’s eye condition is Table 12. It is to be used where, as here, the person concerned has a permanent condition resulting in functional impairment when performing activities involving visual function.
I find that a five-point rating ought to be assigned under that Table.
Such a rating applies if the person concerned:
…can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:
(a) …
(b) the person has some difficulty seeing road signs, street signs…or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance...[38]
[38] The Tables, Table 12, description of ‘mild functional impact’.
Given the nature and extent of the impairment suffered by the Applicant as a result of his permanent eye condition, I am satisfied that the Applicant is such a person. He is not, however, a person who, for example, needs to use vision aids or assistive devices other than spectacles and contact lenses for some (let alone many) tasks or is unable to move around independently in unfamiliar environments. Hence, his impairment does not attract a higher than five-point rating (such as a 10-point rating or a 20-point rating) under Table 12.
Migraine
While I do not doubt that the Applicant suffers from migraines,[39] I find that his migraine condition is not permanent. I am not satisfied that it was fully treated or fully stabilised in the QP.
[39] T15, p.257: letter of June 2020 from Dr Herodotou, based at a medical centre, confirming that the Applicant has a long history of migraines. See also AP O’Day’s report of December 2019 at T15, p.241 where reference was made to the Applicant having a problem of episodic headaches for which he had been prescribed certain medication. See also Dr Berera’s letter of May 2020 at T15, p.252 in which it is stated that the Applicant has migraines one to two times per week, with duration being two to three days at a time.
I am not satisfied that a full range of treatment options has been investigated in relation to the condition. For instance, it would not appear that the use of Botox has been considered[40] or that the Applicant has sought specialist assistance. The Applicant’s evidence was that he was yet to see a neurologist. According to the Applicant, he had not yet had an opportunity to do so, despite having a referral.
[40] T11, p.146: Job Capacity Assessment report of August 2020.
Shoulder and upper arm disorder
I find that the Applicant’s shoulder and upper arm condition is permanent.
As conceded by the Respondent, the condition was fully diagnosed in the QP. The Applicant was receiving treatment since around 2001 or 2002 from an orthopaedic surgeon, Mr Owen,[41] who, in June 2014, opined that the Applicant was suffering from mild lateral epicondylitis and mild subacromial impingement.[42]
[41] Oral evidence of the Applicant at the hearing of this proceeding. See also T15, p.175-6.
[42] T15, p.179.
Apart from treatment from Mr Owen (who, apparently, injected the Applicant’s shoulders and elbow joints with cortisone),[43] the Applicant:
(a)saw a rheumatologist in 2014;[44]
(b)received extensive treatment from an acupuncturist (since around 2015);[45]
(c)attended a pain management program with a Dr Lim for around eight months;[46] and
(d)underwent physiotherapy[47] (albeit that, as contended by the Respondent, no details of the extent of that physiotherapy were before the Tribunal).
[43] T11, p.146
[44] T15, pp.179-185. The Applicant, in his oral evidence before the Tribunal, stated that it was the rheumatologist who suggested the cortisone injections.
[45] T15, p.258.
[46] T15, pp.186 and 253. The Applicant, in his oral evidence before the Tribunal, stated that this took place as an in-patient in around 2014 or 2015.
[47] Ibid.
In his 2014 report, Mr Owen described treatments that the Applicant had received and opined: “I do not think that any other treatment option has been omitted”.[48] In May 2020, Dr Berera opined that significant improvement from further interventions was unlikely.[49]
[48] T15, p.180.
[49] T15, p.253.
In these circumstances, the Applicant’s shoulder and upper arm condition was fully treated and stabilised in the QP. This is so despite there being no suggestion in the material before me of recent, significant, treatment for the condition.
As to the nature and extent of the impairment suffered by the Applicant as a result of that condition, I find that, in the QP, he:
(a)had restricted movement;
(b)sometimes had difficulty with fine motor tasks such as buttoning up clothing and turning taps, had pain carrying groceries (which limited his capacity to carry light items to around 5 minutes);[50]
(c)could not raise his hands to wash his hair (such that his wife assisted him with showering and dressing);
(d)could open a jar and pick up a two-litre carton of milk;[51]
(e)was unable to lift weights;
(f)had difficulty with above shoulder tasks; and
(g)sometimes had difficulty in writing and using a computer.[52]
[50] T15, p.253: report of Dr Berera of May 2020.
[51] Evidence of the Applicant before the SSCSD.
[52] T11, p.133.
At the hearing of this proceeding, the Applicant suggested that he still washed his car (albeit that he could only do so for 10 minutes at a time), that he still mowed a lawn (albeit that it caused him pain and required that he rest after doing so)[53] and was able to use a computer. I note his evidence that he had attended a “computer course”, albeit that he only used a computer for short periods of time.
[53] A capacity of the Applicant to wash his car and mow a lawn is consistent with the report of the Applicant’s acupuncturist of July 2020 in which it was suggested that doing these things was difficult for the Applicant: see T15, p.258.

The Table related to the impairment resulting from the Applicant’s shoulder and upper arm disorder is Table 2. It is to be used where, as here, the person concerned has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
I find that under that Table, a five-point rating ought to be assigned.
Such a rating applies if the person concerned can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a two-litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons; and
(d)reaching up or out to pick up objects.
Given the nature and extent of the impairment suffered by the Applicant as a result of his permanent shoulder and upper arm condition, I am satisfied that the Applicant is such a person. On the material before me, however, I am not satisfied that he is a person who, for example, has difficulty picking up a one-litre carton of liquid, picking up a light but bulky object, unscrewing a soft-drink bottle lid or has severe difficulty in turning the pages of a book, in using a pen or pencil or in handling, moving or carrying most objects. Hence, his impairment does not attract a higher than five-point rating (such as a 10-point rating or a 20-point rating) under Table 2.
Psychological disorder
While it may be that the Applicant suffers from a psychological disorder in the form of a somatic symptom disorder and a chronic adjustment disorder,[54] I find that it is not a permanent condition. I am not satisfied that it was fully treated or fully stabilised in the QP.
[54] T15: July 2020 report of Mr Kamateros, clinical psychologist.
While it may be that, in around 2014 or 2015, the Applicant saw a psychologist two or three times in connection with a pain management program,[55] the material before me is not suggestive of the Applicant having undergone any treatment for his psychological condition by either a psychologist or psychiatrist either in or before the QP. In July 2020, a clinical psychologist, Mr Kamateros, reported that he had seen the Applicant on several occasions. It is clear, however, that the Applicant first saw Mr Kamateros after the expiry of the QP, as the Applicant’s referral to Mr Kamateros was in “late May” 2020.[56] In his oral evidence, the Applicant stated that, at the time of the QP, he was not taking medication for his psychological condition.
[55] T11, p.133.
[56] T15, p.260.
Lower limb deficiencies
I find that the Applicant’s lower limb condition is permanent.
As implicitly conceded by the Respondent,[57] the condition was fully diagnosed in the QP. MRI scans conducted in 2015 revealed that, in relation to the Applicant’s:
(a)right knee, there was a complex flap tear of the medial meniscus;[58] and
(b)left knee, there was a complex tear of the body and posterior horn of the medial meniscus.[59]
[57] Respondent’s SFIC [81].
[58] T15, p.233.
[59] T15, p.235.
In July 2015, an orthopaedic surgeon, Ms Manolopoulos, confirmed the existence of these tears,[60] as did Dr Berera.[61]
[60] T15, p.182.
[61] T15, p.181.
In terms of treatment, in his 2015 report, Dr Berera stated that the Applicant was then being treated by a physiotherapist (albeit that Ms Manolopoulos did not believe that the Applicant had been involved in any particular physiotherapy program),[62] undergoing pain management with acupuncture and engaging in hydrotherapy, and was on medications.
[62] T15, p.268: September 2015 report of Ms Manolopoulos.
In 2020, Dr Berera opined that the Applicant was unlikely to experience significant improvement from further interventions.[63] This is despite the Applicant not having undertaken certain treatment which, in 2015, Ms Manolopoulos had stated that he required (being arthroscopic debridement of both knees).[64] The Applicant apparently obtained a second opinion about the need for such treatment which was to the effect that it was not advisable.[65] At the hearing of this proceeding, the Applicant explained that the source of that second opinion was another orthopaedic surgeon, Mr Owen.
[63] T15, p.254.
[64] T15, p.182.
[65] T15, p.254.
In these circumstances, the Applicant’s lower limb condition was fully treated and stabilised in the QP.[66] This is so despite there being no suggestion in the material before me of recent, significant, treatment for the condition.
[66] I note that this was also the conclusion arrived at in the context of the Job Capacity Assessment report of August 2020: T11, p.148.
As to the nature and extent of the impairment suffered by the Applicant as a result of that condition, at the hearing of this proceeding, the Applicant’s evidence was to the effect that in the QP he could walk up to 15 minutes and stand for up to 10 minutes. This evidence is largely corroborated in a report of May 2020 of Dr Berera, albeit that he stated that the Applicant could stand for 10 to 15 minutes.[67] Mr Sharma, an acupuncturist who commenced treating the Applicant in around 2015, estimated the Applicant’s endurance with respect to standing was between five and 10 minutes.[68] As for stairs, Dr Berera in his May 2020 report, noted that the Applicant could negotiate them, slowly.[69] In October 2018, however, he had stated that the Applicant was unable to use stairs[70] but this seems to overstate the difficulty the Applicant had with stairs given the view he expressed in 2020 and given the existence of four steps within the Applicant’s home.[71]
[67] T15, p.254.
[68] T15, p.259.
[69] See report of Dr Berera of May 2020 at T15, p.254. See also Job Capacity Assessment report of May 2020 at T11, p.135.
[70] T15, p.222.
[71] T11, p.135.
The Table related to the impairment resulting from the Applicant’s lower limb condition is Table 3. It is to be used where, as here, the person concerned has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
I find that, under that Table, a five-point rating ought to be assigned. Such a rating applies if, for example, the person concerned has some difficulty climbing stairs and is unable to stand for more than 10 minutes.
Given the nature and extent of the impairment suffered by the Applicant as a result of his lower limb condition, I am satisfied that the Applicant is such a person. On the material before me, however, I am not satisfied that he is a person who, for example, is unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities, unable to use stairs or steps without assistance or unable to stand for more than five minutes. Hence, his impairment does not attract a higher than five-point rating (such as a 10-point rating or a 20-point rating) under Table 3.
Spinal condition
I find that the Applicant’s spinal condition is permanent.
As implicitly conceded by the Respondent,[72] the condition was fully diagnosed in the QP. An MRI scan of the Applicant’s lumbar spine in 2015 revealed multilevel degenerative change, multifactorial moderate canal narrowing and bilateral subarticular recess narrowing at the L3/4 level with possible impression upon traversing L4 nerve roots, and moderate bilateral neural foraminal narrowing at L3/4 and L4/5 levels.[73] In May 2017, Dr Berera reported that the Applicant suffered from lumbosacral disc disease.[74]
[72] Respondent’s SFIC [93].
[73] T15, p.231.
[74] T15, p.200.
In terms of treatment, in an October 2015 report, Dr Berera stated that the Applicant had seen a spinal surgeon, Mr John Cunningham, and had been given an ultrasound guided steroid injection in his hip and a CT guided L4 steroid injection.[75] In May 2020, Dr Berera reported that the Applicant had also received physiotherapy and had seen Mr Owen, orthopaedic surgeon, about his back condition.[76] Moreover, the Applicant also received treatment for that condition from an acupuncturist since around 2015.[77]
[75] T15, p.186.
[76] T15, p.253.
[77] T15, p.258.
In 2020, Dr Berera opined that the Applicant was unlikely to experience significant improvement from further interventions.[78]
[78] T15, p.254.
Again, in these circumstances and despite there being no suggestion in the material before me of recent, significant, treatment for the Applicant’s spinal condition, I find that it was fully treated and stabilised in the QP.
As to the nature and extent of the impairment suffered by the Applicant as a result of that condition, in the QP, his tolerance for remaining seated was limited to around 30 minutes, he would experience pain in bending forward to touch his knees[79] and only drove his car in his local area.[80]
[79] As stated by the Applicant at T11, p.136 and corroborated by Dr Berera at T15, p.254, albeit that the Applicant’s acupuncturist opined that the Applicant could only remain seated for 20 minutes: T15, p.259.
[80] T11, p.136.
The Table related to the impairment resulting from the Applicant’s spinal condition is Table 4. It is to be used where, as here, the person concerned has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
I find that, under that Table, a 10-point rating ought to be assigned. Such a rating applies if, for example, the person concerned can sit in a car for at least 30 minutes and, for example, the person is unable to bend forward to pick up a light object placed at knee height.
Given the nature and extent of the impairment suffered by the Applicant as a result of his spinal condition, I am satisfied that the Applicant is such a person. On the material before me, however, I am not satisfied that he is a person who, for example, is unable to perform any overhead activities, turn his head, or bend his neck, without moving his trunk, bend forward to pick up a light object from a desk or table or remain seated for at least 10 minutes. Hence, his impairment does not attract a higher than 10-point rating (such as a 20-point rating) under Table 4.
DID THE APPLICANT HAVE A CONTINUING INABILITY TO WORK IN THE QP?
I am not satisfied that the Applicant had a continuing inability to work in the QP.
As is clear from what was just said, the Applicant does not suffer from an impairment assigned 20 points or more under the Tables, of which 20 points or more are under a single table. Hence, he does not suffer from a “severe” impairment.[81]
[81] The Act, ss 94(2)(aa) and 94(3B).
Hence, for him to be considered to have a continuing inability to work, it is necessary that (amongst other things):[82]
(a)he has actively participated in a program of support; and
(b)the impairment suffered by him as a result of his relevant medical conditions be of itself sufficient to prevent him from doing any “work” independently of a program of support within the next two years.
[82] The Act, s 94(2). There is an additional requirement concerning training activity participation.
Both these requirements would need to have been satisfied for the Applicant to be considered to have a continuing inability to work. The first one is not satisfied and, as such, it is not necessary that I reach a conclusion on the latter one (albeit that I note that inconsistent opinions on the matter were expressed in two job capacity assessment reports).[83]
[83] T11, p.139. Cf T11, p.154.
Program of support
The Applicant did not actively participate in a program of support. The requirements he would need to have met to be considered to have done so are set out in cl 7 of an instrument made for the purposes of s 94(3C) of the Act.[84] Under that clause, subject to several qualifications, it is generally necessary to have participated in a program of support for at least 18 months in the three-year period preceding the relevant DSP application. Here, in the three-year period from 2 February 2017 to 2 February 2020, the Applicant is said by the Respondent not to have participated in a program of support at any time.[85] Indeed, the Applicant acknowledges his zero participation in programs of support.[86]
[84] Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
[85] T17, p.277.
[86] T10, p.123.
The 18-month participation requirement is subject to a number of exceptions. I am not, however, satisfied that any of them apply in the circumstances (and the Applicant did not submit that any of them applied). In particular, on the material before me, I am not satisfied that:
(a)the duration of the Applicant’s program of support was less than 18 months and the applicant completed the entire program in the relevant three-year period;[87]
(b)any of the Applicant’s programs of support was terminated before expiry of the relevant three-year period because he was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program;[88] or
(c)the Applicant was participating in a program of support at the end of the relevant three-year period and was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation in the program.[89]
[87] POS Determination, cl 7(3).
[88] POS Determination, cl 7(4).
[89] POS Determination, cl 7(5).
CONCLUSION
The Applicant does not qualify for the DSP as he does not have a continuing inability to work.
Hence, I decided at the hearing of this proceeding on 16 August 2021 to affirm the decision the subject of review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the written reasons for the decision of Senior Member C.J. Furnell.

....................... [SGD]...........................................
Associate
Dated: 15 September 2021

Date of Hearing 16 August 2021

Applicant: Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Cailin Farrell

Sparke Helmore Lawyers