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

[2016] AATA 1091

Hansen and Secretary, Department of Social Services (Social services second review) [2016] AATA 1091 (23 December 2016)

Division	GENERAL DIVISION
File Number	2016/1549
Re	Vivienne Hansen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Theodore Tavoularis
Date	23 December 2016
Place	Brisbane

The decision under review is set aside and in place thereof, the Tribunal decides that Ms Hansen qualified for DSP at the date of her claim.

...........................[sgd]........................................

Senior Member Theodore Tavoularis

Catchwords

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – Applicant has 20 impairment points – where impairments not severe – continuing inability to work – program of support – whether s 7 of the Active Participation Guidelines applies – s 7(3) does not apply – s 7(4) does not apply – where Applicant is prevented from completing a program of support solely because of her impairments – where s 7(5) of the Active Participation Guidelines applies – whether Applicant has a continuing inability to work – where Applicant has a continuing inability to work – decision under review set aside

Legislation

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Mongan and Secretary, Department of Social Services [2016] AATA 344

Secondary Materials

The Guide to Social Security Law

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 2014

REASONS FOR DECISION

Senior Member Theodore Tavoularis

23 December 2016

INTRODUCTION

1. On 3 September 2015, Vivienne Hansen (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) with the Department of Human Services (“the Department”), listing her medical conditions as:

   ·Diabetes (insulin dependent)

   ·Eye disease – Retinopathy/detached retina

   ·Charcot foot (left)

   ·Bursitis of right shoulder

   ·High blood pressure

   ·Arthritis in knees

   ·Incontinence when coughing[1]

   [1] T documents, T 7, p 66.

2. To support her claim for DSP, the Applicant has provided a medical report from Dr Olubusayo Kolawole dated 2 September 2015. Dr Kolawole listed the Applicant’s primary two conditions as “Insulin dependent diabetes mellitus with retinopathy and left retinal detachment, glaucoma”, and “Diabitic left Charcot foot”. Additional conditions that Dr Kolawole described as causing “minimal or limited impact on [the Applicant’s] ability to function” were hypertension and tendinopathy of the right shoulder.[2]

   [2] Ibid, T 8, pp 82-92.

3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim, 3 September 2015, or within 13 weeks thereafter, that being up until 3 December 2015.

   HISTORY OF THE MATTER

4. There is some indication that the Applicant first applied for DSP on 23 April 2014. This claim was rejected on the grounds that the Job Capacity Assessor (“JCA”) did not consider that the Applicant could show that her impairments would rate 20 points on the Impairment Tables.[3]

   [3] Ibid, T 15, pp 115-116.

5. On 3 September 2015, the Applicant lodged a second claim for DSP with Centrelink. She attended an assessment with a JCA who subsequently produced a report dated 22 October 2015. The JCA listed the Applicant’s conditions as follows:

   (a)Lower limb deficiencies – diabetic left Charcot foot. This condition was considered to be verified by medical evidence and fully diagnosed, treated and stabilised. The JCA thought this impairment attracted a rating of 10 impairment points.

   (b)Diabetes (insulin dependent) with retinopathy, left retinal detachment and glaucoma. This condition was considered to be verified by medical evidence and fully diagnosed, treated and stabilised. 10 impairment points were assigned for this impairment.

   (c)Hypertension. This condition was considered to be verified by medical evidence, fully diagnosed, treated and stabilised. However, it was found to have no functional impact on the Applicant and so no impairment points were allocated.

   (d)Shoulder and upper arm disorder – right shoulder tendinopathy. As the Applicant had not yet seen a specialist or undergone physical therapy, the JCA found that this condition could not be considered fully treated or stabilised. Consequently, no impairment points could be allocated.[4]

   [4] Ibid, T 9.

6. Additionally, the Applicant was considered as having a Temporary Work Capacity (“TWC”) of 0-7 hours per week. The Applicant’s Baseline Work Capacity was assessed as being 8-14 hours per week with a predicted capacity of 15-22 hours per week within 2 years with intervention.[5]

   [5] Ibid, T 9, 98.

7. On 23 October 2015, the Department wrote to the Applicant advising her that her application for DSP had been rejected. Although the JCA had found that although the Applicant’s conditions together reached a total of 20 impairment points, she had not completed the mandatory program of support (“POS”).[6]

   [6] Ibid, T10. 100.

8. The Applicant sought a review of this outcome and her claim was subsequently reviewed by an Authorised Review Officer (“ARO”), who affirmed the decision under review. The ARO reviewed the JCA report and additional other relevant evidence provided to the Department and made the following findings of fact:

   Findings of Fact
   After careful consideration of the evidence, I have made these key findings:

   ·     You have the following permanent conditions: insulin dependent diabetes mellitus with retinopathy and left retinal detachment and glaucoma, diabetic left Charcot foot and hypertension.

   ·     Your condition of right shoulder tendinopathy is not accepted as being permanent as it has not been fully treated and stabilised.

   ·     Your total impairment rating is 20 points.

   ·     You do not have a severe impairment.

   ·     You have not actively participated in a program of support.

   ·     You do not have a continuing inability to work 15 hours or more because of your impairment.[7]

   [7] Ibid, T 11, p 103.

9. Dissatisfied with this result, the Applicant again sought to review this decision. On 19 February 2016, at first review, this Tribunal (“AAT1”) (via the Social Services and Child Support Division of the AAT) also affirmed the decision under review on the grounds that the Applicant “had not at the time of her pension claim completed participation in a program of support as required by the Act”.[8] This decision was posted to the applicant on 2 March 2016.[9]

   [8] Ibid, T 2, p 11.

   [9] Ibid, T 2, p 6.

10. On 29 March 2016, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“the Tribunal”).[10]

    [10] Ibid, T 1, pp 1-5.

    LEGISLATIVE FRAMEWORK

11. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

12. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 3 September 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[11]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 3 September 2015 and 3 December 2015 (“the Relevant Period”).

    [11] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

13. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

    the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. 

    [my underlining]

14. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[12] The Tables are function based rather than diagnostic based; and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[14]

    [12] See s 26(1) of the Act.

    [13] See s 5(2) of the Determination.

    [14] See s 6(1) of the Determination.

15. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[15] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] See s 6(3) of the Determination.

    [16] See s 6(4) of the Determination.

16. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[17]

    [17] See s 6(5) of the Determination.

17. 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.[18]

    [18] See s 6(6) of the Determination.

18. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[19]

    [19] See s 6(7) of the Determination.

19. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[20]

    [20] See s 11(1) of the Determination.

20. Even where an applicant does meet the requirements for 20 impairment points to be given, they must also show, inter alia, that they have a continuing inability to work.[21] In respect of this requirement, all the criteria in s 94(2) of the Act need to be satisfied. That is, an applicant must show that: if they do not meet the requirements for 20 points to be given under one Table, they have actively participated in a program of support (“POS”); that their impairment is sufficiently great that they cannot do any work independently of a POS within the next two years; and either that the impairment itself is sufficient to prevent them from undertaking a training activity within the next two years, or that such training is unlikely to enable them to do work independently of a POS within the next two years.[22]

    [21] The Act, s 94(1)(c).

    [22] Ibid, s 94(2).

21. An applicant has actively participated in a POS where “the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.”[23]

    [23] Ibid, s 94(3C).

    ISSUES FOR THE TRIBUNAL

22. From the history of this matter, and indeed as is conceded by the Department, I have no doubt that the Applicant suffers from a number of medical conditions which constitute physical impairments.[24] Consequently, it is clear that the Applicant meets the first requirement under s 94(1) of the Act.

    [24] Department’s Statement of Facts, Issues and Contentions dated 27 July 2016, [5.9].

23. With both the history of this matter, and the relevant legislative framework in mind, the remaining issues for me to consider are:

    (a)whether, during the relevant period, the Applicant’s medical conditions were fully diagnosed, treated and stabilised;

    (b)whether the Applicant’s medical conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a POS; and

    (d)whether the Applicant has a continuing inability to work.

    CONSIDERATION

    Did the Applicant have a medical condition or conditions that were permanent and attracted 20 points or more under the Impairment Tables?

24. I propose to deal with this issue by reference to the Applicant’s various medical conditions. I will address each in turn.

    Diabetic Left Charcot Foot

25. The Applicant claims to suffer from a “diabetic left Charcot foot”, and asserts that it was first diagnosed in October 2013.[25] In support of her original claim, the Applicant produced a report from Dr Kolawole, which listed this condition as “Condition 2”.[26]

    [25] Applicant’s Statement of Facts, Issues and Contentions dated 12 September 2016, [1.10].

    [26] T Documents, T8, page 88.

26. As already noted above, this condition was found to be fully diagnosed, treated and stabilised by the JCA, ARO and AAT1. At each tier of review so far, the condition has been given an impairment rating of 10 points.

27. The Department accepts that this condition has been fully diagnosed, treated and stabilised.[27] I agree that it has. This condition should therefore be treated as a permanent condition for the purposes of my considerations here. The question for me, then, is what impairment rating to give this condition under the relevant Tables, here being Table 3 (Lower Limb Function).

    [27] Department’s Statement of Facts, Issues and Contentions dated 27 July 2016, [5.25].

28. Table 3 is to be used where an applicant has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet, and extends from their hips to their toes. As one might expect from this, the relevant activities from which the impairment is to be assessed generally relate to walking and standing.

29. To meet the requirements for 10 points to be assigned, Table 3 stipulates:

    1.    At least one of the following applies:

    a.    The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

    b.    The person is unable to use stairs or steps without assistance; or

    c.    The person is unable to stand for more than 5 minutes; and

    2.    The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

    3.    This impairment rating includes a person who can:

    a.    Move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

    b.    Move around independently using walking aids (e.g. quad stick, crutches or walking frame).[28]

    [28] Found at T Documents, T 3, p 46.

30. Conversely, 20 points are able to be awarded if “(1) The person: (a) is unable to do any of the following:”. The Table then goes on to list three points which include an inability to stand from a sitting position without assistance or to “walk around a shopping centre or supermarket without assistance”.[29]

    [29] Ibid.

31. The critical difference between 10 and 20 points being awarded, at least for present purposes, is great. It is the difference between being unable to do at least one of the core activities, and requiring assistance to do any of them.

32. There can be no doubt from Dr Kolawole’s report that this condition has a negative impact on the Applicant’s mobility. This view was supported by the JCA, who noted that this condition causes the Applicant to have difficulties navigating uneven surfaces or inclines, including stairs. However, the Applicant told the JCA that she was able to stand for 5-10 minutes and the JCA ultimately found that she was able to navigate shopping centres or catch public transport unaided.[30]

    [30] Ibid, T 9, pp 94-97.

33. Though a “[s]elf-report of symptoms alone is insufficient” basis for a claim,[31] when substantiated by Dr Kolawole’s report and the views of the JCA, I have little reason to doubt that this condition does have a very real impact on the Applicant’s ability to function. However, taking into account this evidence, and the evidence given at the hearing, I doubt that this condition can be classified as having a “severe impact” for the purposes of Table 3.

    [31] Ibid, T 3, p 44, Introduction to Table 3.

34. It is therefore apparent that the Applicant fails to meet the requirements for 20 points being awarded under Table 3. I agree with AAT1’s assessment that this impairment should be rated 10 points under that Table.

    Retinopathy with Left Retinal Detachment and Glaucoma

35. The Applicant claims to suffer from retinopathy with left retinal detachment and glaucoma arising from her insulin-dependent diabetes mellitus. Again, this claim was first supported by Dr Kolawole’s report.[32]

    [32] Ibid, T 8, pp 85-87.

1. The Department accepts that this condition, too, has been fully diagnosed, treated and stabilised.[33] This concession is well-founded – the condition should certainly be considered permanent. However, it contends that the condition only meets the requirements for 10 impairment points to be awarded.[34] I will now turn to addressing whether I agree with this contention.

   [33] Department’s Statement of Facts, Issues and Contentions dated 27 July 2016, [5.18].

   [34] Ibid, [5.19].

2. The impacts of this condition clearly affect the Applicant’s visual functions, so I will assess the level of impairment it causes with reference to Table 12 (Visual Function).

3. For this condition to have a “severe functional impact” and therefore be awarded 20 impairment points, it must among other things, mean the Applicant “needs to use vision aids or assistive devices other than spectacles or contact lenses for many tasks” (emphasis added). This element is essential for 20 points to be awarded – even if the Applicant meets all other requirements for 20 points under the Table, if she does not meet this one, I cannot award her 20 points.[35]

   [35] T Documents, T 3, p 50.

4. I do not consider that the Applicant meets this requirement. In her evidence before AAT1, which I have no reason to doubt, she said that she does use a magnifying glass to help her, but only to do “close up work”.[36] I do not consider that this meets the threshold of “many tasks”, so I cannot award this condition 20 points.

   [36] Ibid, T 2, p 9.

5. Conversely, for 10 points to be awarded, an applicant must, among other things, have moderate difficulties in seeing things at a distance or close up when already wearing corrective eyewear (e.g. spectacles) and need to use vision aids or assistive devices other than their corrective eyewear for some tasks.[37]

   [37] Ibid, T 3, p 49.

6. Though there is relatively little medical evidence as to the direct effects of this condition on the Applicant’s ability to function, it is apparent that its impacts were sufficiently serious that she would have three surgical procedures on her eyes in the 18 months from when the condition was first diagnosed in 2014.[38] Indeed, this, and oral evidence was sufficient for the JCA, ARO and AAT1 all to rate this condition 10 points. With this in mind and after considering the Applicant’s evidence at the hearing, I am minded to agree.

   [38] See e.g. T 8, p 85.

7. I am therefore satisfied that the Applicant meets the requirements for 10 impairment points to be awarded under Table 12 for the Applicant’s condition of retinopathy with left retinal detachment and glaucoma.

   Hypertension

8. The Applicant has also listed “high blood pressure” (i.e. hypertension) as a condition from which she suffers.[39] This condition was supported by Dr Kolawole’s report,[40] and the Department concedes that it is fully diagnosed, treated, and stabilised.[41]

   [39] T Documents, T 7, p 66.

   [40] Ibid, T 8, p 91.

   [41] Department’s Statement of Facts, Issues and Contentions dated 27 July 2016, [5.31].

9. Hypertension should be rated according to Table 1 (Functions requiring Physical Exertion and Stamina).

10. However, Dr Kolawole considered this condition to cause “minimal or limited impact” on the Applicant’s ability to function.[42] I see no reason to go behind this report, which has been supported by the JCA’s assessment of the Applicant.[43] Consequently, I cannot award this impairment any points under Table 1.

    [42] T Documents, T 8, p 91.

    [43] Ibid, T 9, 97.

    Right Shoulder Tendinopathy

11. The final condition claimed by the Applicant, and considered here, is right shoulder tendinopathy. This condition was noted by Dr Kolawole as causing “minimal or limited impact”.[44]

    [44] Ibid, T 9, p 91.

12. Table 2 (Upper Limb Function), which is the relevant table here, requires sufficient corroborating medical evidence or evidence from an “allied health practitioner” for points to be allocated. Particularly, there must be evidence of either treatment or even the functional impact of an impairment for the impairment to be considered fully diagnosed, treated or stabilised.[45]

    [45] Ibid, T 3, p 42.

13. I am not satisfied that this impairment can be considered fully diagnosed, treated or stabilised for the purposes of Table 2. Though Dr Kolawole’s report does go some way towards showing that the condition has been diagnosed, it says nothing about the condition’s state or past or ongoing treatment. Consequently, there is simply insufficient evidence for me to make an assessment as to the level of impairment caused by this condition.

14. Even if this were not the case, and an impairment rating could be assigned, Dr Kolawole’s description of the condition causing “minimal or limited impact” indicates to me that a rating of 0 would be likely.

    Summary of Impairment Points

Condition	Table	Points Assigned
Diabetic Left Charcot Foot	Table 3	10 points
Retinopathy with Left Retinal Detachment and Glaucoma	Table 12	10 points
Hypertension	Table 1	0 points
Right Shoulder Tendinopathy	Table 2	Requirements not met
Total Points =		20 points

1. To summarise, I consider that the Applicant’s impairments attract a total of 20 points under the relevant Impairment Tables, being Table 3 for her condition of diabetic left Charcot foot, and Table 12 for her retinopathy with left retinal detachment and glaucoma. Accordingly, I consider that the Applicant satisfies the second of the requirements under section 94(1)(b) of the Act.

   Continuing Inability to Work?

2. Although the Applicant’s impairments attract 20 points in total under the relevant Impairment Tables, none of those impairments are “severe” in the sense that they attract 20 points under a single Table.[46]

   [46] See s 94(3B) of the Act.

3. Pursuant to s 94(2)(aa) of the Act, where a person’s impairment is not severe, they are required to have actively participated in a POS. If they have not done so, they cannot be found to have a continuing inability to work.

4. A person is considered to have actively participated in a POS if they have satisfied the requirements set out in a legislative instrument made by the Minister for the purposes of s 94(3C) of the Act. The Minister may also make relevant guidelines under s 94(3E).

5. The relevant legislative instrument made by the Minister is the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014 (“ADP”).

6. The ADP requires a person who has claimed DSP to have participated in, and complied with, a POS for at least 18 months during the 3 years before the claim for DSP was made.[47]

   [47] See APD, s 7(2).

7. According to the POS Referral Summary,[48] produced by the Department, the Applicant actively participated in a POS for about 12 months of the 36 months prior to her claim for DSP on 3 September 2015.

   [48] Exhibit 12, T Documents, T 16, p 130.

8. There are certain exceptions set out in s 7 of the APD. Particularly relevant here are the exceptions appearing in ss 7(3)-(5) of the APD. To my mind, the one which is of most relevant for present purposes is s 7(5), which says that the requirements are satisfied if, at the date of the claim, the person is participating in the POS and is prevented, solely because of their impairment, from improving their work capacity through continued participation in the POS. For the sake of completeness, I will address each provision in turn.

9. Before I do, I note that the Department put a number of questions to the POS provider, MAX Solutions. These questions were answered in a letter dated 4 July 2016, provided as Attachment D to the Department’s Statement of Facts, Issues and Contentions. This is the most comprehensive evidence available to me about the Applicant’s POS, her participation in it, and the reasons behind any periods of non-participation in it. Consequently, I have accorded it significant weight and referred to it below.

10. First, with reference to subsection 7(3) of the APD, these questions arise:

    (a)was the duration of the POS less than 18 months? There is no evidence to suggest that it was; and

    (b)did the Applicant complete the entire POS during the relevant period? Her POS provider, MAX Solutions, confirms she did not complete the POS, nor was she exited from that program.[49]

    [49] Attachment D to the Department’s Statement of Facts, Issues and Contentions, [7]-[8].

11. Second, with reference to subsection 7(4) of the APD, these questions arise:

    (a)was the POS terminated before the end of the 36 month period ending immediately prior to the Applicant’s claim for DSP? For reasons outlined above, the answer is clearly “no”;[50] and

    (b)was the POS terminated because the Applicant was unable, solely because of her impairment, to improve her capacity to prepare for, find, or maintain work through continued participation in the POS? The answer to this question is also “no”, as the POS has not been terminated.

    [50] Ibid.

12. Third, with reference to subsection 7(5) of the APD, these questions arise:

    (a)at the end of the relevant period, was the Applicant participating in a POS? The Department concedes (and this is plain from the evidence) that the Applicant was still enrolled in a POS with MAX Employment as at the date of her claim for DSP;[51] and

    (b)was the Applicant prevented, solely because of her impairments, from improving her capacity to prepare for, find, or maintain work through continued participation in the POS? The Department does not think so. The Applicant takes a different view, so I will address this question below.

    [51] Department’s Statement of Facts, Issues and Contentions dated 27 July 2016, [5.47]; Exhibit 12, T Documents, T 16, p 130.

    The Applicant’s Contentions about Compliance with s 7(5)(b) of the APD

13. The Applicant has a contrary view to that of the Department in relation to s 7(5)(b) of the APD. She expresses it, with some vigour, in her Statement of Facts, Issues and Contentions. As I read her Statement of Facts, Issues and Contentions,[52] she puts forward three propositions about her participation in the POS:

    [52] Applicant’s Statement of Facts, Issues and Contentions dated 12 September 2016, [4.6]-[4.9].

    (c)That the provisions of s 7 of the APD have been “dishonestly applied”. She said the Department’s conclusion “…has been arrived at based on false information, and the dishonest application of the program of support provisions, since no consideration was given to the alternative means of satisfying POS requirements.”[53] Arguments to the effect that alternative conclusions have been based on false information or any form of dishonesty are both misconceived and misplaced and are uncomplimentary to the model litigant I have always known this Respondent to be;

    [53] Ibid, [4.6].

    (d)The second argument that the Applicant raises is that she was not told about the POS requirements. She claims that, had she been informed of the need to complete a POS, she would have done everything in her power to attend, “despite being medically unwell”.[54] I found this submission less than convincing. There is information readily available on the internet fully explaining the POS requirements. Further, the application form for DSP at question 94 on page 16 of 30 plainly asks applicants if they have engaged in a POS. [55] It reads:

    [54] Ibid, [5.7].

    [55] T Documents, T 7, p 67.

    In the last 3 years, have you participated in any programs to help you find work, stay in a job, return to work, manage your injury or help you with vocational rehabilitation, gaining new skills, work experience or training (e.g. Disability Employment Services, Job Services Australia, Remote Jobs and Communities Program or a workers’ compensation program)?

    I therefore find that, although there may have been a lacuna in the Applicant’s knowledge about POS requirements, she could and should have sought to further investigate a component of her claim that may not have been readily apparent to her.

    (e)The Applicant then seemed to take issue with the legislative regime of the Act as it relates to the stipulated requirement of active participation in a POS, necessary to demonstrate a continuing inability to work. She said:

    8. This applicant does not agree with the interpretation of this determination presented by the Respondent, that this participation in a Program of Support is a legitimate yardstick for determining whether or not a person has a continuing inability to work. The applicant could not find any defined parameters of objective assessment for this requirement, making it meaningless at law.[56]

    This contention by the Applicant is directly at odds with the term “continuing inability to work” as defined in s 94(2) of the Act, which provides that:

    (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);…

    For the purposes of this decision, I do not propose to depart from the abovementioned legislative regime, regardless of the Applicant’s views as expressed in her statement of facts, issues and contentions.

    [56] Applicant’s Statement of Facts, Issues and Contentions dated 12 September 2016, [4.8].

14. In spite of these arguments raised by the Applicant, there still remains a very important stone that has been left unturned. The question of whether or not the Applicant is in fact been prevented from completing a POS solely because of her impairments remains open. I will move to discussing that now.

    Is the Applicant prevented from completing a POS solely because of her impairments?

15. The JCA report dated 22 October 2015 found as follows:

    ·The Applicant has a TWC of 0-7 hours per week, as well as an ability to increase her baseline work capacity from 8-14 hours to 15-22 hours per week within two years, with intervention;

    ·Such intervention can be adequately provided to her via her DES provider as part of its DES DMS program;

    ·That the Applicant had the ability to improve her capacity to prepare for, find, and maintain work, albeit with a permanent work capacity of 15-22 hours per week within the next 24 months;

    ·That this capacity to work would be met through continual management of her ongoing medical conditions.[57]

    [57] T Documents, T 9, p 98.

16. MAX Solutions noted that following meetings with a Health Services Officer to identify any personal, physical or social vulnerabilities, a return to work plan factoring in the Applicant’s strengths and vulnerabilities had been put in place by 6 June 2013. MAX Solutions asserts that the Applicant could realistically be expected (via the program offered to her) to have an improved capacity of returning to work in some capacity.[58]

    [58] Attachment D to the Department’s Statement of Facts, Issues and Contentions, [5].

17. There is no doubt that this statement favours the Department. However, a statement of the potential benefits to the Applicant of fully participating in a POS does not in and of itself explain why she has not apparently fully participated so far or indeed whether her impairments would mean she is unable to fully participate in a POS in the future. Between the time she began participating in the POS on 18 March 2013 and the time of her application, there were five ”breaks” in the Applicant’s participation in the POS. Three of these, in combination lasting for a total of approximately four months, were for “Temporary Medical Incapacity Exemption”. One, lasting for a total of about 12 months, was for “Temporary Reduced Work Capacity” (there was a subsequent “break” of this classification, but it fell after the application date). One, lasting one month, was for “Claiming DSP Exemption”.[59]

    [59] Ibid, [6].

18. To my mind, there can be little or no doubt that the three periods in the table referred to as “Temporary Medical Incapacity Exemption” are referable to the Applicant’s impairments. Indeed, I have seen no evidence to lead me to conclude otherwise. Similarly, I think that the “Claiming DSP Exemption” is also referable to the Applicant’s impairments.

19. I also think it is important to look at the balance of paragraph 6 of MAX Solutions’ letter – that is, the section starting with “Non attendance of case management appointments”. There can be little doubt that the three dates listed clearly refer to episodes where the Applicant simply did not show up for participation purposes and that failure to present cannot be made referable to any of the categories referred to in the immediately preceding table. However, non-attendance on three dates is not enough to show that the Applicant was not participating in the POS.

20. I turn now to the “Temporary Reduced Work Capacity” components of the relevant table prepared by MAX Solutions. I start by noting that, in its report and in answer to some of the Department’s questions, MAX Solutions described this period as “medical suspension”.[60] However, further investigation is necessary to determine the genesis of this exemption.

    [60] Ibid, [7].

21. It appears to me that this suspension must have something to do with the Applicant’s capacity to work. I therefore turn to the JCA report, which made recommendations on the Applicant’s capacity to work. This report was dated 22 October 2015, and its TWC period was to begin on that date and expire on 19 September 2016. The Applicant was given a TWC of 0-7 hours per week.

22. Turning back to the MAX Solutions report, the most recent exemption period for “Temporary Reduced Work Capacity” ran from 23 October 2015 to 19 September 2016. I think this is more than a coincidence. Rather, I surmise that it was the JCA’s conclusions regarding the Applicant’s TWC (i.e. that she was only capable of 0-7 hours per week), that led to this period of suspension. Though evidence on this point is rather sparse, it stands to reason that, if this was the cause of the second “Temporary Reduced Work Capacity” component, it should also be the cause of the first. This again, by virtue of being caused by the JCA’s conclusions based on the Applicant’s impairments, can reasonably be sheeted home to those impairments.

23. It is evident that MAX Solutions considered each of these periods of suspension or exemption to be solely caused by the Applicant’s impairments. When the Defendant asked MAX Solutions whether the Applicant was “solely because of her impairments… prevented from improving her capacity to prepare for, find or maintain work through continued participation in a program provided by [it]?”, MAX Solutions responded “Yes”.[61] Indeed, it appears that MAX Solutions considered each period of non-participation to have the same root cause when, for example, it referred in separate correspondence to the Applicant having “been on a medical exemption for the majority of her servicing with us…”.[62]

    [61] Ibid, [9].

    [62] Exhibit 4, Job Access letter dated 7 September 2016.

24. It is not enough, however, to show that the Applicant’s inability to meet the POS requirements to date have been solely caused by her impairments. Subsection 7(5)(b) looks forwards, not backwards – it requires an assessment of an applicant’s ability to improve her work capacity through a POS into the future.[63]

    [63] See e.g. Mongan and Secretary, Department of Social Services [2016] AATA 344, [17].

25. Based on the current trajectory of the Applicant’s participation in her POS, I think it is very likely that the Applicant will not be able to improve her work capacity, even through a POS, into the future. Before she lodged her application for DSP, the Applicant had spent approximately 17 of her 30 months enrolled in the POS exempted from participating in it due to her impairments. I recognise that one of those periods of exemption was due to a TWC rating arising from a JCA report for a failed application for DSP. However, it is telling that, between the report for the failed application and the JCA report for this application, the Applicant’s conditions deteriorated to the point that she reached the 20 point threshold for the present application. I note that Dr Unuth in a report dated 2 September 2016 said that the Applicant’s overall condition “gets worse with time”.[64] On the balance of the evidence, it consequently appears likely to me that the Applicant would be prevented into the future, solely because of her impairments, from participating in a POS.

    [64] Exhibit 3, Medical Report of Dr Unuth dated 2 September 2016.

1. The above evidence further points towards the fact that the TWC rating does not appear to actually be temporary. If anything, the Applicant’s work capacity has decreased over time. This should be taken alongside another report of Dr Unuth, where she stated that the Applicant’s conditions “…will deteriorate in the next two years. She will not be able to be retrained or do any job for more than 15 hours in a week with these conditions.”[65]

   [65] Exhibit 5, Medical Report of Dr Unuth, received on 8 June 2016.

2. Although I do recognise that Dr Unuth’s reports were made approximately nine months after the relevant period, I do not consider this to be determinative of its evidentiary weight. Dr Unuth works at the same practice – “The Lockyer Doctors” – as Dr Kolawole, who provided the original medical report in support of this claim. Therefore, I am satisfied that through her practice, Dr Unuth would have had sufficient scope for reference to the Applicant’s medical history and previous appointments for her opinions to be relevant to the consideration at hand.

3. In any event, I consider that Dr Unuth’s views regarding future work capacity should be preferred to those of the JCA. With all respect due to the job capacity assessor, I note the assessor’s professional orientation and background is in social work. The JCA therefore lacks the specialised medical training of Dr Unuth and, indeed, the institutional knowledge of the Applicant readily available to Dr Unuth. As such, even in spite of any contemporaneity issues, I consider that Dr Unuth was better placed to make a determination as to the future impact of the Applicant’s conditions on her future ability to gain the benefits of participation in a POS.

4. This leads me to two conclusions. First, contrary to the determination made by the JCA, I accept that the Applicant could not, regardless of her level of participation in a POS, improve her work capacity such that she meets the 15 hour per week minimum threshold over the next two years. Second, and in any event, I consider that the ongoing deterioration of the Applicant’s condition would likely impede her from being able to participate in a POS such that she would be able to reap any benefits from it at all.

5. Consequently, and in consideration of all the evidence before me, I find that the Applicant meets the requirements of s 7(5)(b) of the APD. By operation of s 7(1)(b) of the APD and ss 94(3C)-(3E) of the Act, the Applicant therefore meets the requirements for active participation for the purposes of s 94(2)(aa) of the Act.

   Capacity to Work or Undertake a Training Activity

6. I will now turn to the two remaining requirements: that the Applicant could work independently of a POS for 15 hours or more per week within the next two years; and if the Applicant is able to undertake a training activity in the next two years, that said training activity would enable the Applicant to work independently of a POS within the next two years.

7. I note that there is an additional possible requirement, that the Applicant is unable to undertake a training activity, which runs in the alternative to the latter requirement noted above. In my mind, it is plain that the Applicant would be able to undertake at least a training activity, so I will only refer to its alternative as I have stated above.

8. With respect to each of the above requirements, I refer to my above discussion with respect to the Applicant’s ability to work 15 hours or more per week in the next two years. I have already determined that in consideration of all the evidence before me, she will not be able to work for that long within the next two years. I therefore consider that the applicant meets the requirements of s 94(2)(a) of the Act.

9. With respect to the second requirement, even if I were to recognise as legitimate the Department’s argument that the “retraining” referred to by Dr Unuth is materially different from participating in a training activity, Dr Unuth’s evidence would still mean the Applicant successfully meets this requirement. Dr Unuth’s statement is unequivocal – the Applicant “will not be able to… do any job for more than 15 hours in a week with these conditions” (emphasis added).[66] No amount of training activity will be able to overcome that. Consequently, I find that the Applicant also successfully meets the requirement in s 94(2)(b)(ii) of the Act.

   [66] Ibid.

   CONCLUSION

10. In consideration of all of the above, I have found that the Applicant has met all requirements contained in s 94 of the Act for the grant of DSP. She has impairments that attract a total of 20 points under the relevant Tables. I am satisfied that, by way of the exception contained in s 7(5) of the APD, she meets the active participation in a POS requirements of the Act. Finally, I am satisfied that the Applicant has a continuing inability to work.

11. Accordingly, the decision under review is set aside and in place thereof, the Tribunal decides that Ms Hansen qualified for DSP on the date of her claim.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.......................[sgd]............................................

Associate

Dated: 23 December 2016

Date(s) of hearing:	14 September 2016
Applicant:	In person
Advocate for the Respondent:	Ms Claire Campbell
Solicitors for the Respondent:	Sparke Helmore Lawyers