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

[2024] AATA 413

Heimdall and Secretary, Department of Social Services (Social services second review) [2024] AATA 413 (6 March 2024)

Division:                  GENERAL DIVISION

File Number:          2022/1995

Re:Michael Heimdall

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:6 March 2024

Place:Sydney

The reviewable decision is affirmed.

..........................[SGD]..............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) application – whether the applicant qualified for the DSP during the relevant qualification period – right knee arthritis – adjustment disorder with mixed depressed and anxious mood/mental health conditions – Hearing loss­ – whether the applicant has a physical, mental or psychiatric impairment – whether the applicant’s disabilities may be assigned a relevant impairment rating – whether the applicant has a continuing inability to work – whether he has participating in a relevant program of support – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

CASES

Augustynski and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 507

Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753

Re Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634

VMXC and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 663;

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

Department of Social Services, ‘Social Security Guide’ Guides to Social Policy Law

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

6 March 2024

The decision under review

1. This decision is about the refusal of Mr Heimdall’s application for Disability Support Pension (DSP) lodged on 24 August 2021. Mr Heimdall will be referred to as the Applicant. He suffers from a number of medical conditions.

2. The decision being reviewed was made on 8 February 2022 by the Social Services and Child Support Division of the Tribunal (AAT1). AAT1 affirmed the decision made on 22 November 2021 by an Authorised Review Officer who affirmed the primary decision made on 3 November 2021 by the Secretary, Department of Social Services (the Secretary) to refuse the application.

3. The Applicant’s claim for DSP was rejected because he did not have 20 points or more under the Impairment Tables.

   The question to be answered

4. The question to be answered is did the Applicant satisfy the qualification criteria for DSP at the date he made his claim on 24 August 2021, or within 13 weeks after that date, that is 23 November 2021. That requires careful consideration of the eligibility criteria for DSP set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) and the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).  The Applicant was born in March 1969 and was 52 years of age when he lodged his application.

5. The Social Security (Administration) Act 1999 (Cth) is relevant but because the effect of its provisions are not in issue, it is unnecessary to address it further.

6. Government policy set out in the Social Security Guide is also relevant and should be applied in the absence of cogent reasons to not follow such policy (Re Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634 at 644-5).

7. I will also try to explain why the Applicant was confused and frustrated by his attempts to be granted DSP while he was continuing to benefit from JobKeeper or JobSeeker Payment. In simple terms, it was because he was trying to satisfy, at the same time, different requirements to receive DSP and either JobKeepr or JobSeeker.  

   Qualification criteria for Disability Support Pension

8. The relevant qualification criteria for DSP are set out in subsection 94(1) of the Act:

   94. Qualification for disability support pension–continuing inability to work

   (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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…

9. Points under the Impairment Tables cannot be allocated to a condition unless that condition is permanent which requires that the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated and stabilised and the resulting impairment must be likely to persist for more than two years (subsections 6(3), (4), (5) and (6) and (7) of the Impairment Tables).

10. If a condition is found to be permanent, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (subsection 8(1) of the Impairment Tables).

11. If an impairment falls between two impairment ratings, the lower rating is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (paragraph 11(1)(c) of the Impairment Tables).

12. The Impairment Tables set out very specific criteria for assessing the points to be allocated for assessing extent of the functional impact of a particular condition. For that reason, I set out the relevant tables in full, below.

13. A ‘severe impairment’ is one that attracts 20 points or more under a single Impairment Table (Section 94(3B) of the Act).

14. Provisions relating to section 94(1)(c) of the Act will be considered after I have considered the impairments that arise on the evidence.

15. Medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the Applicant’s condition/s during the qualification period.[1]

    [1]  Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

    The Secretary’s position at the time of the hearing

16. The original refusal decision was made because the decision-maker was not satisfied that the Applicant had 20 points under the Impairment Tables. That primary decision took into account the available evidence, including a Job Capacity Assessment (JCA) report completed on 15 October 2021 by a registered occupational therapist with assistance from a registered psychologist. The report found that:

    (a)the Applicant’s anxiety, PTSD and depression were fully diagnosed, treated and stabilised and could be assigned nil points under Table 5 – Mental Health Function;

    (b)the Applicant’s right knee arthritis was fully diagnosed, treated and stabilised and could be assigned 5 points under Table 3 - Lower Limb Function;

    (c)the Applicant’s hearing loss was fully diagnosed but was not fully treated and stabilised; and

    (d)the Applicant had a work capacity within 2 years with intervention of 15-22 hours per week.

17. AAT1 found that the Applicant’s impairment rating was 15 points and consequently the Applicant was not qualified for DSP.

18. At the time of the hearing before me, the Secretary accepted that the Applicant satisfied paragraphs 94(1)(a) and (b) of the Act at the date of claim, that is, he had conditions that were fully diagnosed, treated and stabilised and could be assigned 20 points under the Impairment Tables.

19. That position seems to have been based on a report from a general practitioner who provided to the Secretary, a Health Professional Advisory Unit Report (the HPAU report) dated 11 October 2022. The HPAU report took into account the available evidence about the Applicant’s various conditions.  

20. At the hearing, the Secretary contended that the Applicant did not have a ‘severe impairment’ of 20 points or more under a single impairment table, had not actively participated in a program of support, and his impairments would not have prevented him from doing 15 hours of work per week independently of a program of support within two years. Accordingly, the Secretary contends the Applicant did not have a continuing inability to work under paragraph 94(1)(c) of the Act and therefore, was not qualified for DSP during the qualification period.

21. There are a number of medical reports, the HPAU report and the JCA that establish that the Applicant has physical and psychiatric impairments and therefore satisfies section 94(1)(a) of the Act.

22. I accept that the conclusion of the HPAU report that the Applicant has 20 points under the Impairment Tables and therefore satisfies section 94(1)(b) of the Act. The question to be decided is whether the Applicant has a severe impairment, that is, whether he has 20 points under the Impairment Tables for one condition, or if not, do the Applicant’s circumstances otherwise have the effect that he did not have to comply with the requirement to have actively participated in a Program of Support (POS).  

23. The Applicant does not dispute that he has not actively participated in a POS, but explained why that is the case. He believes that his circumstances excuse him from having to comply with the POS requirement.

    Does the Applicant have a severe impairment?

    Right knee arthritis

24. The Secretary accepted that the Applicant’s right knee arthritis was fully diagnosed, treated and stabilised during the qualification period but contended that it attracted an impairment rating of no more than 10 points under Table 3, as attributed by the HPAU report. 

25. To appreciate the Applicant’s frustration with his present situation, it is useful to provide some detail about his right knee arthritis condition which has a long and complex history, including sustaining various injuries.

26. The Applicant provided a detailed document addressing ‘Table 3. Under lower limbs’ to explain why this condition merited 20 points under that table.[2] He also provided a Chronology of Events. The Applicant explained that he first injured his knee in 2015 ‘whilst stepping a elevator’. He made an appointment with Dr Leong (orthopaedic surgeon) before going overseas. On his return, he made an appointment with an orthopaedic surgeon in Brisbane who advised him to have a tibial osteotomy which was a ‘very scary’ decision.  The Applicant then made an appointment with Dr Kevin Boundy, sports physician, who specialised in stem cell replacement. The Applicant proceeded with that treatment, as recounted by Dr Boundy in his letter to Centrelink dated 20 July 2021.  

    [2] Exhibit A3.

27. Dr Boundy set out the consequences for the Applicant of a motor vehicle accident in 2016.  The Applicant suffered a rupture of his posterior cruciate ligament (PCL) which was surgically repaired. The trauma of the accident led to a breakdown of articular cartilage.  When Dr Boundy first saw the Applicant, he already had medial tibiofemoral compartment osteoarthritis with areas of bone on bone articulation, subchondral sclerosis and bone marrow oedema. Osteophytes were developing around his femoral notch.  

28. On 11 March 2016, Dr Boundy treated the Applicant with an injection of bone marrow derived stem cells to the right knee, which he described in detail. Thereafter, the Applicant had supplemental injection of platelet rich plasma and other related stem cell procedures in May 2016, July 2017, October 2017, January and July 2018. Initially the Applicant was able to return to work as a judo instructor but that was ‘shortlived’. However, in his report dated 20 July 2021, Dr Boundy wrote that ‘We have been able to slow the rate of osteoarthritic change in his knee with regular treatments of regenerative medicine. If it were not for regenerative medicine treatments (the Applicant) would possibly have had a knee replacement by now and he will probably need one in the future’. The Applicant had a further injection and excess fluid was drained on 10 August 2021. Dr Boundy explained that further stem cell treatment would be expensive due to changes in the classification by the Therapeutic Goods Administration so that these procedures are no longer eligible for Medicare funding or for financial support from private health insurers.

29. The opinion of the writer of the HPAU report was that because knee replacement and stem cell treatment were not available at the time the Applicant applied for DSP and were not available for two years from that date, the lower limb condition was fully treated and stabilised.

30. Table 3 of the Impairment Tables sets out the criteria for severe functional impairment for using lower limbs for which 20 points is attributed.

    20     There is a severe functional impact on activities using lower limbs.

    (1)      The person:

    a)    is unable to do any of the following:

    i.walk around a shopping centre or supermarket without assistance;

    ii.walk from the carpark into a shopping centre or supermarket without assistance;

    iii.stand up from a sitting position without assistance; and

    b)    requires assistance to use public transport.

    (2)      This impairment rating level includes a person who requires assistance to:

    a)   move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

    b)   move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

31. In his letter dated 20 July 2021, Dr Boundy assessed the Applicant as having a mild functional impairment under the Impairment Tables (for which 5 points are allocated) at that time because the Applicant had difficulty walking to the local shops and difficulty pushing a shopping trolley around the supermarket. He had difficulty climbing stairs and was particularly troubled by pain when coming downstairs. The Applicant tried to stand for 20 minutes at a time when working at a standing desk because if he sat for more than 20 minutes at a time the knee stiffened up and was very painful when he began to walk. He would normally experience pain if he stood unsupported for more than 10 minutes. He could not stand for more than 20 minutes without needing to take a rest.

32. In his letter dated 2 December 2022, Dr Boundy wrote that he is a sports physician and had been helping the Applicant since 2016 to manage his osteoarthritis of both knees ‘so that he can continue teaching judo and competing at an international level’.  In response to the treatment, the Applicant was initially able to return to his teaching and competing in judo. He was competing at an international level before travel was restricted due to COVID-19. The Applicant had received platelet rich plasma on both knees on 10 August 2021. 

33. Dr Boundy described the Applicant’s functional ability in terms that showed a marked deterioration since his July 2021 report. He reported that the Applicant had been vaccinated against COVID-19 in August 2021 and on 26 December 2021 he contracted COVID and developed numerous blood clots and breathing difficulties that ultimately affected his lungs. In accordance with his findings, on 2 December 2022, Dr Boundy assessed the Applicant as having moderate functional impairment (10 points) under the Impairment Tables.

34. Dr Leong’s assessment in his 2021 letter is the best evidence of the functional impact of the Applicant’s right knee arthritis during the qualification period. Dr Leong wrote that following the motor vehicle accident in 2016, the Applicant had had worsening pain and disability.  He regularly limps and is unable to carry any weight on the right side.  He has trouble going up and down stairs and has to stop driving after 25 minutes. He gets regular locking. His walking distance is approximately 1 kilometre. He is unable to run and go into the surf. He struggles even with cycling going up and down hills.

35. Dr Leong’s letter of 20 December 2022 shows how much the Applicant’s condition had deteriorated since his first letter.  He wrote that the Applicant required a right total knee replacement which had to be delayed for at least 12 months due to a combination of medical issues that made it unsafe to proceed to surgery.  Shortness of breath of breath and knee pain resulted in the Applicant being unable to walk more than 50 metres or participate in domestic duties, and it hurt him to drive more than 30 minutes.  

36. In his letter dated 4 February 2023, Dr Leong confirmed that the Applicant had been able to walk 1 kilometre during the qualification period and described the deterioration of his arthritic process, as well as multiple pulmonary embolisms after he suffered from COVID-19, thereafter.  Dr Leong wrote that he did not specifically address the Applicant’s ability to stand from a sitting position during the qualification period, but the Applicant had indicated that he had trouble going up and down stairs and had regular locking.

37. The report of Mr Loveridge, physiotherapist, dated 10 August 2021 is consistent with the contemporaneous evidence of Doctors Boundy and Leong in 2021, including that the Applicant had a walking tolerance of approximately 1 kilometre.

38. Dr Wighton is a general practitioner.  His report of 25 August 2022, is consistent with the 2022 reports of Dr Boundy and Dr Leong, reflecting the deterioration of the Applicant’s condition since the qualification period.

39. Other medical evidence explains in detail what followed after the Applicant contracted COVID-19 during December 2021. He was left with shortness of breath and very limited exercise tolerance.  He could not walk more than 50 metres. These events occurred after the end of the qualification period and are not relevant to this decision.

40. The Applicant claims that his disability parking permit is crucial evidence of his disability. He has had such a permit since 2016. It has to be renewed every five years.

41. I accept that the Applicant has had the disability parking permit since 2016, however, the criteria that must be satisfied for the issuing of the disability parking permit are not before the Tribunal. This decision is concerned with the very specific criteria in the Impairment Tables and the evidence before it, particularly the medical evidence.

42. I have considered the Applicant’s detailed analysis of the evidence, particularly that of Dr Boundy and Dr Leong. However, as stated in the previous paragraph, the Impairment Tables set out very specific criteria. I have considered the evidence against those criteria.

43. The evidence of Dr Boundy and Dr Leong, supported by the evidence of Mr Loveridge, supports a finding that the appropriate assessment during the qualification period was mild functional impairment (5 points) under the Impairment Tables. The HPAU assessed moderate functional impairment (10 points) under the Impairment Table. The Respondent accepted the 10-point rating (moderate impairment) because the Applicant was unable to walk far outside his home and needed to drive or get other transport to local shops or community facilities, citing Dr Boundy’s comments to similar effect.

44. The evidence does not establish that the Applicant’s right knee arthritis condition satisfies the severe functional impairment criteria in Table 3 of the Impairment Tables (20 points).

    Adjustment disorder with mixed depressed and anxious mood / mental health conditions

1. The Secretary accepts that the Applicant’s adjustment disorder with mixed depressed and anxious mood was fully diagnosed, treated and stabilised during the qualification period and contended that the condition attracts an impairment rating of no more than 5 points under Table 5, relying on the HPAU.  

2. Table 5 of the Impairment Tables provides that:

   There is a severe functional impact on activities involving mental health function.

   (1)The person has severe difficulties with most of the following:

   a)    self care and independent living;

   Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

   b)    social/recreational activities and travel;

   Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

   c)    interpersonal relationships;

   Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

   Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

   d)    concentration and task completion;

   Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

   Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

   e)    behaviour, planning and decision-making;

   Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

   f)     work/training capacity.

   Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

3. On 7 December 2020, Mr Rodney Ward, clinical psychologist wrote that he had been supporting the Applicant with psychological counselling since 2015. Mr Ward had assessed that the Applicant was showing the signs and symptoms of Adjustment Disorder with mixed depressed and anxious mood. The stressors were the Applicant’s physical injuries and limitations. The Applicant had ongoing symptoms which he did his best to manage. The Applicant reported ongoing impact and limitations regarding social, occupational and activities of daily living. He supported the Applicant applying for DSP.  The Applicant’s work and finances were an added stressor.

4. On 2 February 2021, Dr Pescud, general practitioner, reported that the Applicant experienced poor sleep, depressed mood, feeling anxious when driving, flashbacks of traumatic events, nightmares, poor concentration, and tendency to isolate himself from others.

5. On 6 August 2021, Mr Ward provided the same diagnosis and opinion as to how the Applicant managed his condition. He added that the Applicant’s physical injuries and limitation resulted from a motor vehicle accident. The Applicant reported symptoms consistent with his diagnosis such as low mood, motivation, and energy. He experienced symptoms of anxiety such as increased breathing and heart rate and cognitive worry.  He also reported the limitations he experienced as a result of his physical injuries and the interplay with his psychological symptoms and self-esteem as a result of lowered physical abilities given his sporting background. In Mr Ward’s opinion, the Applicant had reached maximum medical improvement and would need ongoing psychological support and medical support for his physical injuries. He believed that this ‘will impact on his ability to gain and maintain employment’.

6. Mr Ward sent the Applicant an undated text message. He was not doing any more reports before Christmas.  In his opinion ‘their expectations’ were ridiculous, and they should not dictate how to do a report. It appears from an email from the Applicant that the Christmas referred to was 2021.

7. The HPAU assessor provided the following opinion. The Applicant’s adjustment disorder was a response to a motor vehicle accident in 2016. The Applicant’s form of that condition was adjustment disorder with mixed depressed and anxious mood which in many cases resolves within three to six months. Unfortunately, the Applicant’s symptoms continued over a five-year period prior to this DSP application. He had had regular psychotherapy, an appropriate treatment for the condition. He satisfied the criteria in Table 5 of the Impairment Tables for 5 points to be assigned. He lacked motivation to leave the house and was reluctant to travel to unfamiliar environments. He was described as having heightened anxiety and possible panic attacks in stressful situations and it was likely that this led to strained interpersonal relationships. Due to low mood and/or anxiety, the Applicant would have difficulty on concentrating on tasks for more than one hour and due to anxiety and poor concentration, would have slight difficulty planning and organising complex activities.

8. The HPAU assessor found no evidence that the Applicant satisfied the descriptors for 10 or 20 points to be assigned to this condition under Table 5 of the Impairment Tables.

9. The evidence does not establish that the Applicant satisfied the criteria for severe functional impact under Table 5.

   Hearing loss

10. Having been diagnosed with sensorineural deafness in 2012, audiology reports from 2020 and August and December 2021 confirm severe sensorineural deafness in the left ear and mild sensorineural deafness in the right ear. The Applicant was using two hearing aids at the time he applied for DSP and was most likely to have done so for a number of years, according to the writer of the HPAU report.

11. AAT1 reported that the Applicant said that that he cannot afford $5000 or more for sophisticated hearing aids to replace the ones he got in 2016 at no cost.  He has to both turn his head towards the television and have the volume turned up, even with the hearing aids in place. He has not ridden his motor bike since 2020 mainly because of the impact of his hearing loss. AAT1 assigned 5 points under Table 11 – Hearing and Other Functions of the Ear.

12. Table 11 of the Impairment Tables provides that:

    There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.

    (1)The person:

    a)has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. „Look out!‟)); and

    b)is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and

    c)is reliant on captions to follow a television program or movie; and

    d)needs to use a captioned telephone; and

    e)is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non verbal communication method (e.g. note taking) to converse with others; or

    (2)The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere‟s disease or tinnitus).

13. The most relevant evidence is the report of Ms Naomi Lopez, udiologist, dated 2 August 2021. The Applicant had been assessed on that day.  He reported increased difficulties with his hearing, especially in environments with substantial amounts of background noise. In Ms Lopez’s opinion, the Applicant would benefit from the use of hearing devices. She recommended that he be fitted with binaural hearing devices.

14. Ms Lopez’s recommendation and the SA466 form that the Applicant completed in which he reported that he was yet to engage in treatment, indicates that he was not using the hearing aids he got in 2016 when he saw Ms Lopez.  I infer from his evidence before AAT1 that they were no longer meeting his needs.

15. The JCA assessor’s opinion was that his hearing could improve with the use of hearing devices and therefore his condition was not fully treated and stabilised.

16. On 23 December 2021, (outside the qualification period) Mr Svraka, provisional audiologist, and Ms Lopez prepared a report.  They stated that the Applicant reported increased difficulties with hearing especially in environments with amounts of background noise and difficulty hearing conversations when using a standard telephone, particularly in a room with background noise and in group situations. They reported that he suffered major loss in the left ear that required assistance.

17. Both those reports support a finding that the Applicant’s hearing loss was not fully treated, however, the HPAU assessor found that it was, and assigned 5 points under Table 11 because the Applicant had difficulty hearing a conversation at an average volume in a room with background noise and difficulty hearing conversations on a standard phone, even when using a hearing aid. 

18. In any event, the evidence does not support a finding that the Applicant’s hearing loss should be assigned 20 points for severe functional impact under Table 11 of the Impairment Tables.

    Other conditions – Deep Vein Thrombosis and Pulmonary Embolus

19. As stated above, after contracting COVID-19 on 26 December 2021, the medical evidence shows that the Applicant developed a number of complications, including deep vein thrombosis and pulmonary embolus, which adversely the Applicant’s functional capacity. He suffered shortness of breath and could not exercise.  He could walk only 50 metres. These events were after the qualification period and are not relevant to this decision.

    Does the Applicant satisfy section 94(1)(c) of the Act?

20. Section 94(1)(c)(i) refers to ‘continuing inability to work’, which is defined in section 94(2) of the Act:

    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)      in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

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

    b)       in all cases--either:

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

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

21. For the reasons stated above, I have found that the Applicant does not have a severe impairment, that is, he does not have 20 points under a single Impairment Table (section 94(3B) of the Act).

22. Therefore, he must have actively participated in a POS. That means that the person must have satisfied the relevant legislative instrument (subsection 94(3C) of the Act), that is, the POS Determination.

23. The POS Determination provides that a person must participate in a POS for at least 18 months within the 36 months ending immediately before the day on which the claim for DSP is made, in order to be taken to have actively participated in a POS (subsections (5) and 7(2) of the POS Determination). The Applicant did not complete any days in a POS. He cannot satisfy the provision.

24. There are a number of exceptions to that requirement in subsections 7(3) – 7(5) of the POS Determination. They can be summarised as:

    (a)the person has completed a POS where the duration of the POS was less than 18 months, and the entire program was completed during the relevant period; or

    (b)the person was participating in a POS that was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the POS; or

    (c)the person was participating in the POS at the end of the relevant period, and be prevented, solely because of his or her impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the POS.

25. Section 8 of the POS Determination provides that any period during which a person who has started a program, does not participate in the program for any reason (including as a result of an exemption, relief or suspension from the program) is not to be counted for determining the length of period during which the person has participated in the program.

26. The Applicant cannot satisfy the exemptions in subsections 7(3) or 7(4) of the POS Determination because has not completed a POS before he claimed DSP and he was not participating in a POS that was terminated prior to his date of claim due solely to his impairments.

27. He cannot satisfy subsection 7(5) of the POS because he was not participating in a POS at the end of the relevant period and he was not prevented solely because of his impairment from improving his capacity to prepare for, find, or maintain work through continued participating in the program.

28. Therefore, the Applicant has not actively participated in a POS. He cannot satisfy subsection 94(2)(aa) of the Act.

29. The Applicant accepts that he has not actively participated in a POS but feels very aggrieved because he claims that departmental staff never advised him that he was required to take part in such a program and that it was necessary to qualify for DSP. He provided a chronology, submissions and documentation supporting that claim. 

30. The Respondent referred to a number of decisions where the Tribunal has found that no power exists under the Act to dispense with the operation of section 94(2)(aa).[3] They must be satisfied. I agree with that conclusion.

    [3]           See Augustynski and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 507; VMXC and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 663; Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753; Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158.

31. That means that I am unable to alleviate the Applicant’s grievance that he was not advised by the agency that he needed to participate in a POS. He claimed that there were periods during COVID-19 lockdowns during 2020 and 2021 when ‘programmes ceased’.  However, I have been directed to no relevant legislative instrument or other relevant ruling that would assist the Applicant. I infer that as the Respondent is subject to the requirement to be a Model Litigant, it would have provided any such instrument or ruling.  

32. The Applicant had other grievances with the agency.  For example, correspondence he provided indicates he was receiving JobSeeker payment and then during the COVID-19 pandemic there was some confusion about whether he had to satisfy the requirements for JobSeeker payment or JobKeeper payment.  He was also providing ‘SU415’ medicals which I understand excused him from obligations in respect of his JobSeeker payment.  He also complained of sudden reductions in his payment and unanswered complaints.  

33. In summary, I am unable to find any basis for favourably addressing the Applicant’s increasing frustration arising from his dealings with the agency since 2015.   

34. As I have found that the Applicant does not have a severe impairment and was required to actively participate in a POS, which he did not, it is unnecessary to consider whether he satisfies paragraphs 94(2)(a) and (b) of the Act.

35. The Respondent did not address whether the Applicant satisfied section 94(1)(c)(ii) of the Act, that the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.

36. I infer that was because there is no suggestion in the evidence that the Applicant was participating in such a program.   

    DECISION

37. For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[SGD]........................................

Associate

Dated: 6 March 2024

Date of hearing:	18 January 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Smith, Services Australia