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

[2016] AATA 242

Hill and Secretary, Department of Social Services (Social services second review) [2016] AATA 242 (18 April 2016) 

Division	GENERAL DIVISION
File Number(s)	2015/3428
Re	Linda Hill
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	18 April 2016
Place	Brisbane

The decision under review is affirmed

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

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension – whether 20 points or more under impairment tables during the relevant period – whether fully diagnosed treated and stabilised – whether severe impairment – continuing inability to work – where applicant has not completed a program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6, 10, 11

CASES

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

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

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

Richardson and Secretary, Department of Families, Community Services and Indigenous Affairs [2013] AATA 220

Kumar and Secretary, Department of Social Services [2014] AATA 442

REASONS FOR DECISION

Senior Member A C Cotter

18 April 2016

INTRODUCTION

1. Ms Linda Hill lodged a claim for Disability Support Pension (“DSP”) on 13 December 2013.[1] Following an inquiry by Ms Hill, it was subsequently discovered that although the lodgement was recorded by Centrelink, the documents were unable to be located.[2] She was given new paperwork to complete, with a new claim being lodged on 26 March 2014.[3]

   [1] Exhibit 1, T Documents, T 46, page 275, electronic file note dated 13 December 2013.

   [2] Exhibit 1, T Documents, T 46, page 274, electronic file note dated 26 March 2014.

   [3] Exhibit 1, T Documents, T 33, pages 189-217 Claim for DSP dated 24 March 2014.

2. The claim subsequently lodged by Ms Hill described her disabilities as Sjögren’s syndrome and PTSD (Post-Traumatic Stress Disorder).[4]

   [4] Ibid, page 201.

3. A medical report completed by Ms Hill’s general practitioner, Dr Juliana Crispin, in support of her claim nominated the conditions having the greatest functional impact on Ms Hill as “PTSD- Major depressive disorder” and “Sjogren’s syndrome” (sic.).[5]

   [5] Exhibit 1, T Documents, T 31, pages 180 and 183, medical report of Dr Juliana Crispin dated 5 December 2013.

4. In May 2014, Ms Hill attended a face to face assessment with a Job Capacity Assessor (“JCA”), who recommended that a total of 15 impairment points be assigned to her impairments, being five points in respect of Sjögren’s syndrome (incorrectly described as Sjogren-Larsson syndrome) and 10 points in respect of PTSD.[6]

   [6] Exhibit 1, T Documents, T 34, page 221, JCA report dated 12 May 2014.

5. Ms Hill’s claim was subsequently rejected on the basis that she did not have 20 points or more under the Impairment Tables.[7]

   [7] Exhibit 1, T Documents, T 35, pages 226-227, letter to Ms Hill dated 15 May 2014.

6. She unsuccessfully applied for a review by an Authorised Review Officer (“ARO”) who assigned no points for the mental health impairment, but allowed 15 points (under two different tables) in respect of the Sjögren’s syndrome (again incorrectly described as Sjogren-Larsson syndrome) impairments.[8]

   [8] Exhibit 1, T Documents, T 42, pages 250-254, ARO’s letter to Ms Hill dated 23 March 2015.

7. An application for review to the then Social Security Appeals Tribunal (“SSAT”) was similarly unsuccessful, with the SSAT finding that the claim did not attract the necessary 20 impairment points or more.[9]

   [9] Exhibit 1, T Documents, T 2, pages 4-9, SSAT’s decision and reasons for decision dated 28 May 2015.

8. Still dissatisfied, Ms Hill has sought a review of the SSAT’s decision by this Tribunal.

9. Before I deal with the issues raised by this application, it is useful to set out in some detail the key legislative provisions.

   THE LEGISLATIVE FRAMEWORK

10. Section 94 of the Social Security Act 1991 (Cth) (“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.

11. 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, 13 December 2013 and 26 March 2014). 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.[10] Therefore, the relevant periods for considering whether Ms Hill qualified for DSP are between 13 December 2013 and 14 March 2014, and 26 March 2014 and 25 June 2014. 

    [10] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; cll 3 and s 4(1), Schedule 2, Part 2.

12. Those periods are particularly relevant in the present case, where there has been a considerable passage of time between the lodging of the claims and the hearing of this application. Previous decisions of both the Tribunal and the Federal Court have emphasised that 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 13 weeks which followed it. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referable to an applicant’s condition during the relevant period.[11]

    [11] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34] (Member Breen); Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher  v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).

13. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“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 Social Security Act 1991 (Cth) s 26(1).

    [13] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 5(2).

    [14] See Ibid s 6(1).

14. 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 Ibid s 6(3).

    [16] See Ibid s 6(4).

15. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors 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 Ibid s 6(5).

16. 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 Ibid s 6(6).

17. “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 Ibid s 6(7).

18. 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.[20]

    [20] See Ibid s 11(1).

19. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

20. A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[21]

    [21] See Social Security Act 1991 (Cth) s 94(3B).

    ISSUES FOR THE TRIBUNAL

21. Based on the evidence that has been provided, there is no dispute that Ms Hill suffered from a number of medical conditions and that she had physical and psychiatric impairments arising as a consequence.[22] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.

    [22] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 December 2015, paragraph [40].

22. The remaining issues for me to consider are therefore:

    (a)Whether, at the relevant times, Ms Hill’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

    (b)If so, whether Ms Hill had a continuing inability to work within two years of the relevant periods.

    CONSIDERATION

    Ms Hill’s Contentions

23. At the hearing, Ms Hill appeared for herself by telephone. She contended that there were a variety of errors in the findings of both the ARO and the SSAT. While I indicated that I was hearing the matter afresh and was not bound by the earlier findings, I asked her to provide me with some examples, which she did. I pointed out that some of the examples she gave me were in fact accurate, which Ms Hill readily acknowledged once that was pointed out to her. Nevertheless, she told me there were other errors that she wanted to highlight. Conscious of the time involved in that process, I adjourned the matter and directed that Ms Hill provide further written submissions. I indicated that while the content of her submissions were a matter for her, I would expect her to at least address what emerged during the hearing as the “live” issues, namely whether she could establish that any of her impairments were “severe” (in the sense understood under s 94(3B) of the Act, of attracting 20 points or more under a single table) and if not, whether any of the exceptions to the program of support requirement were applicable in her case.

24. Ms Hill’s submissions were contained in an email she sent to the Tribunal on 15 March 2016, marked to my attention. Where Ms Hill has made a specific submission in respect of an issue, I refer to it in the following discussion.

    Did Ms Hill’s impairments attract 20 points or more under the Impairment Tables?

25. I address this issue by reference to the impairments arising from Ms Hill’s mental health conditions and her Sjögren’s syndrome.

    Mental health conditions

26. The SSAT concluded that at the time of her claims, Ms Hill’s mental health conditions were not fully diagnosed, treated and stabilised, and as such, could not be assigned any impairment points. Having considered the evidence before me, I am inclined to agree.

27. Dr Crispin’s supporting medical report nominated “PTSD-Major depressive disorder” as the condition having the most impact on Ms Hill’s ability to function. She stated that the diagnosis had been confirmed by a psychiatrist, Dr Mohamed Milad. Ms Hill’s current treatment was listed as “Psychotherapy. Nil medications”; and the report indicated that she may need further psychiatric support in the future. Dr Crispin noted that Ms Hill’s relevant history dated back to 1989, following a family tragedy. Ms Hill suffered a breakdown as a consequence and was hospitalised in a psychiatric unit in Lismore. Dr Crispin noted that Ms Hill “refused” to take any medications. She concluded that it would be difficult for Ms Hill to adjust and to work under pressure or in a group; her anxiety attacks were “very high”. Dr Crispin thought that the impact of the condition would persist for more than 24 months.[23]

    [23] Exhibit 1, T Documents, T 31, pages 180-182, medical report of Dr Juliana Crispin dated 5 December 2013.

28. A medical certificate by the psychiatrist, Dr Milad, was produced. In addition to listing Sjögren’s syndrome, he described two psychiatric conditions, namely Adjustment Disorder with mixed anxiety and depressive symptoms, and PTSD. Contrary to what Dr Crispin noted in her report, the diagnosis of the latter condition was not confirmed by Dr Milad. Rather, he described the condition as “probable (but) not confirmed yet”. The diagnosis of the other condition appears to have been confirmed by Dr Milad. He stated that the prognosis was uncertain but indicated that the condition was likely to show considerable improvement within two years.[24]

    [24] Exhibit 1, T Documents, T 25, page 162, medical certificate of Dr Mohamed Milad, undated.

29. One of the difficulties for Ms Hill’s current claims is that Dr Milad’s medical certificate does not confirm Dr Crispin’s diagnosis of PTSD; rather, as mentioned earlier, it describes that as “probable (but) not yet confirmed.” The Introduction to Table 5 (Mental Health Function) expressly states that diagnosis of the mental health condition must be made by an appropriately qualified medical practitioner with evidence from a clinical psychologist if the diagnosis had not been made by a psychiatrist. Dr Milad’s qualified statement is not sufficient for that purpose; put at its highest, it is tentative and pending. I therefore do not consider that it provides sufficient evidence to confirm Dr Crispin’s diagnosis of PTSD. Consequently, it cannot be said that Ms Hill’s PTSD was fully diagnosed as that term is understood under Table 5.

30. I also have doubts as to whether Ms Hill’s condition could be considered fully treated and stabilised.

31. It appears from Dr Crispin’s report that medication was recommended to Ms Hill but she declined to take it. The reason given by Ms Hill was that she has her own way of managing her condition, as she is against taking any pharmaceutical treatment; she believes only in natural methods of management.[25]  In that context, the Secretary relied on the report of Dr Sandra Armstrong of the Health Professional Advisory Unit. She noted that the evidence did not indicate any obvious medical contra-indication to anti-depressant medication, and that explanations such as those offered by Ms Hill for refusing medication can often be overcome with appropriate education. She concluded:

    Natural therapies are not considered to be an evidence based treatment for significant mental health conditions and are not recommended in treatment guidelines. Ms Hill appears to have a bias against pharmacological treatment, but this appears to be simply her preference and in my opinion this is not “a medical or other compelling reason for the person not to undertake reasonable treatment”. So I additionally consider that Ms Hill had not been fully treated for either DSP claim, as there had been no trials of anti-depressant medication.[26]

    [25] Exhibit 2A, Attachment A to Secretary’s Statement of Facts and contentions dated 18 December 2015, letter Dr Juliana Crispin to Dr Sandra Armstrong dated 19 October 2015.

    [26] Exhibit 2B, Attachment B to the Secretary’s Statement of Facts and Contentions dated 18 December 2015, medical report of Dr Sandra Armstrong dated 27 October 2015, page 11/13.

32. At the hearing, Ms Hill outlined that part of the reason she does not wish to take pharmaceutical medication is because of the negative effect certain anti-depressants had on her sister. However, Ms Hill did not provide any other explanation as to why she refuses medication. In the absence of any compelling explanation or reason by her in that regard, I accept the opinion of Dr Armstrong that her condition is not fully treated. Pharmacological treatment, such as anti-depressants or anti-anxiety medication, is readily available and at reasonable cost, is regularly used, and has a high success rate, especially when used in conjunction with psychological counselling.

33. Nor is it clear what psychotherapy Ms Hill received at the times relevant to each claim. From the material produced, it is apparent that the psychologist whom Ms Hill consulted, Ms Annette Wenn, conducted six therapy sessions with Ms Hill between 5 November 2014 and 2 February 2015. However, that is well after the relevant periods for both claims. Importantly, incremental gains were reported by Ms Wenn after those sessions concluded.[27] That also raises questions as to whether Ms Hill’s mental health conditions could be considered fully treated and stabilised at the relevant times.

    [27] Exhibit 1, T Documents, T 40, page 238, final report by Ms Annette Wenn to Dr Juliana Crispen (sic.), dated 3 February 2015.

34. It is also significant that the psychiatrist, Dr Milad, formed the view that the mental health conditions he identified were likely to show considerable improvement within two years, with an uncertain prognosis for each.[28]

    [28] Exhibit 1, T Documents, T 25, page 162, medical certificate of Dr Mohamed Milad, undated.

35. Having regard to those matters, I do not believe that, at the relevant times, Ms Hill’s mental health conditions could be said to have been fully treated and stabilised.

36. Since Ms Hill’s mental conditions were not fully diagnosed, treated and stabilised at the relevant times, no points can be assigned under Table 5 in respect of those impairments.

    Sjögren’s syndrome

37. Although at times during the life of these claims the condition has been incorrectly described by some, there is no dispute that Ms Hill’s Sjögren’s syndrome was fully diagnosed, treated and stabilised.[29] Ratings can therefore be assigned in respect of the impairments arising from the condition. In her supporting report, Dr Crispin noted that as there was “no curative treatment”, future treatment would involve treating the symptoms.[30]

    [29] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 December 2015, paragraph [47].

    [30] Exhibit 1, T Documents, T 31, page 184, medical report of Dr Juliana Crispin dated 5 December 2013.

1. It is clear that this condition causes multiple impairments, and therefore it is necessary to assess each impairment under the relevant tables.[31] From the material before the Tribunal, the following tables fall for consideration:  Table 12 (Visual Function); Table 1 (Functions requiring Physical Exertion and Stamina); Table 10 (Digestive and Reproduction Function); and Table 14 (Functions of the Skin). I consider the application of each table below.

   [31] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 10(3).

   Table 12 (Visual Function)

2. Dr Crispin noted that that in around 2009, Ms Hill reported feeling sand in the eye, with watering and associated redness and soreness. She said that blood tests in November 2011 confirmed Sjögren’s syndrome, with that diagnosis confirmed by ophthalmologist Dr Ioanne Anderson.[32] Dr Crispin described the impact on Ms Hill’s ability to function as:

   Chronic irritation of the eyes affects working outside. Bright lights are hurting. General lethargy impairs her physical functioning.[33]

   [32] Exhibit 1, T Documents, T 31, page 185, medical report of Dr Juliana Crispin dated 5 December 2013 and T 16, page 126, medical report of Dr Ioanne Anderson dated 3 November 2011.

   [33] Exhibit 1, T Documents, T 31, page 185, medical report of Dr Juliana Crispin dated 5 December 2013.

3. Her later report described “ongoing burning itching, irritant conjunctivitis in spite of using lubricants”.[34]

   [34] Exhibit 2A, Attachment A to Secretary’s Statement of Facts and Contentions dated 18 December 2015, letter from Dr Juliana Crispin to Dr Sandra Armstrong dated 19 October 2015.

4. The JCA noted that Ms Hill demonstrated good vision and was still driving independently.  Ms Hill reported using non-prescribed reading glasses and at the assessment demonstrated no difficulty in reading at a close distance. There was no report of the use of additional visual aids. Ms Hill said she had not seen an ophthalmologist since 2011 but continued to take the same medications.[35]

   [35] Exhibit 1, T Documents, T 34, page 221, JCA report dated 12 May 2014. I note from Exhibit 3(3) that she consulted an ophthalmologist, Dr Joshua Hann, in October 2015, but that is a considerable time after both relevant periods.

5. In evidence before the SSAT, Ms Hill said that she had to administer eye drops to her eyes whenever needed and that her eyes were okay when they were shut. She reiterated that there was nothing wrong with her vision that was not corrected with reading glasses, and that she was able to drive.[36]

   [36] Exhibit 1, T Documents, T 2, page 7, SSAT’s decision and reasons for decision dated28 May 2015, paragraph [19].

6. In her submissions lodged after the hearing, Ms Hill added that because of the chronic irritation she suffers from floaters and foreign bodies entering her eyes, she needs to constantly use an eye bath, which takes a considerable amount of time, causing her to struggle with her day to day commitments and duties.[37]

   [37] Ms Hill’s submissions, email to Tribunal dated 15 March 2016

7. Based on Dr Crispin’s reports and Ms Hill’s self-report, I consider that Ms Hill suffered from a mild functional impairment of her visual function, in that she experienced some discomfort when performing day to day activities involving the eyes. Her vision not being affected, I do not think there is sufficient evidence to satisfy the descriptors for moderate functional impact. I therefore consider that five points should be assigned in respect of this impairment.

   Table 1 (Functions requiring Physical Exertion and Stamina)

8. As mentioned earlier, Dr Crispin noted that Ms Hill suffered from general lethargy which affected her physical functioning. Apart from that reference, however, there was no other medical evidence to support that impairment.

9. In her claim for DSP, Ms Hill answered that her disabilities did not make it difficult for her to care for herself or to use public transport.[38]

   [38] Exhibit 1, T Documents, T 33, page 215, DSP claim form dated 24 March 2014.

10. She told the SSAT that she does her housework but must stop to flush her eyes and use drops. She does her own grocery shopping, but finds that going into air-conditioning and the light of shopping centres, as well as dust downtown, aggravates her symptoms. Those matters, however, have already been taken into account under Table 12.

11. In her submissions after the hearing, Ms Hill stated that her sleep patterns were “non existent”, as she struggles to sleep due to severe dry mouth and blocked sinuses. Further, drinking so much fluid during the day has her going to the toilet frequently during the night, further interrupting her sleep.  Ms Hill also complained of irritating rashes and swollen glands which also affect her sleep, and presumably, contribute to the lethargy she experiences.[39]

    [39] Ms Hill’s submissions, email to Tribunal dated 15 March 2016.

12. While there is little specific evidence about the impact on Ms Hill’s ability to perform activities requiring physical exertion or stamina, I note Dr Crispin’s statement that Ms Hill’s general lethargy impairs her physical functioning. That is consistent with the general observation of Dr Armstrong who notes that about 70 percent of patients with Sjögren’s syndrome report fatigue.[40] When those comments are taken with Ms Hill’s additional submission concerning the effect on her sleeping patterns, I am inclined to assign five impairment points under this table, representing a mild impact on function.

    [40] Exhibit 2B, Attachment B to the Secretary’s Statement of Facts and Contentions dated 18 December 2015, medical report of Dr Sandra Armstrong dated 27 October 2015, page 9/13.

    Table 10 (Digestive and Reproductive Function)

13. Ms Hill provided a report from Dr Imogen Foster dated 23 July 2014, which confirmed that she presented for treatment some four months earlier. Dr Foster said that her teeth were in a “disastrous state”; the lack of saliva associated with Sjögren’s syndrome resulted in “rampant uncontrolled caries”. The effect on Ms Hill was that she suffered severe pain and sensitivity associated with the poor condition of her teeth and that she had extreme anxiety relating to potential tooth loss and the fact that the condition was untreatable.[41] In her submissions after the hearing, Ms Hill also reported soreness from the ulceration of her lips and gum sensitivity, as well as painful swollen glands. She complained that because of her lack of saliva, she has difficulty eating and swallowing.[42]

    [41] Exhibit 1, T Documents, T 36, page 228, medical report of Dr Imogen Foster dated 23 July 2014.

    [42] Ms Hill’s submissions, email to the Tribunal dated 16 March 2016.

14. Dr Foster’s report came some four months after the relevant period for the first claim. As there is little or no relevant corroborating medical evidence relating to that period, I accept the Secretary’s contention this impairment does not attract any points for the first claim.[43]

    [43] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 December 2015, paragraph [54].

15. However, I note Dr Armstrong’s observation that dry mouth symptoms and extensive dental caries are common in Sjörgen’s syndrome and that it would be reasonable to allocate a rating at least in respect of the second claim.  I accept her opinion that it is likely that Ms Hill’s attention and concentration would sometimes be interrupted or reduced by the pain associated with her digestive system, and that accordingly, five points should be assigned under the table in respect of the second claim.[44]

    [44] Exhibit 2B, Attachment B to Secretary’s Statement of Facts and Contentions dated 18 December 2015, medical report of Dr Sandra Armstrong dated 27 October 2015, page 9/13. 

    Table 14 (Functions of the Skin)

16. Apart from Dr Crispin’s reference to Ms Hill suffering from body rash and itching,[45] there is no other medical evidence to support this impairment. Ms Hill told the SSAT that while she used calamine lotion on her rash,[46] Dr Crispin had not prescribed any other creams or ointments.[47] Given the absence of other medical evidence and Ms Hill not reporting any functional impact on her normal activities due to her rash (apart from its effect on sleep and contribution to lethargy, for which I have already made allowance under Table 1), I assign no points to this impairment under the table.

    [45] Exhibit 1, T Documents, T 31, page 184, medical report of Dr Juliana Crispin dated 5 December 2013.

    [46] I note that Ms Hill says that she told the SSAT that she in fact used Calendula: see Ms Hill’s submissions, email to Tribunal dated 16 March 2016.

    [47] Exhibit 1, T Documents, T 2, page 9, SSAT’s decision and reasons for decision dated 28 May 2015, paragraph [29].

    Summary- impairment points

17. To summarise, I consider that in respect of the first claim, Ms Hill’s impairments attracted 10 points (being five points each under Tables 12 and 1). As regards the second claim, I assign her 15 points, being five points each under Tables 12, 1 and 10.

18. It therefore follows that Ms Hill did not qualify for DSP in respect of either claim, as she did not have 20 points or more under the Impairment Tables.

    Continuing Inability to Work

19. In view of the conclusion I have reached above, it is unnecessary to consider whether Ms Hill met the third principal requirement for DSP, namely that she had a continuing inability to work. However, in case I am wrong in that conclusion, I briefly consider this requirement.

20. None of Ms Hill’s impairments were rated “severe”, in the sense of attracting at least 20 points under a single table (see s 94(3B) of the Act).

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

22. 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).

23. The relevant legislative instrument made by the Minister is the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) (“Active Participation Determination”).

24. Effectively, the Active Participation Determination requires a person who has claimed DSP to have participated in, and complied with, a POS for at least 18 months during the 36 months before the claim was made.

25. According to the POS Referral Summary produced by the Secretary,[48] there is no evidence that Ms Hill participated in a POS for the requisite 18 month period in the three years preceding the lodging of either of her claims on 13 December 2013 or 26 March 2014. Calculations by the Secretary reveal that Ms Hill participated in a POS for a period of 395 days (about 13 months) in the three year period ending 13 December 2013. As to the second claim, it is calculated that she participated for 454 days (about 15 months) in the 36 months to 26 March 2014.[49]

    [48] Exhibit 1, T Documents, T 47, page 315, POS Referral Summary.

    [49] Exhibit 2C, Attachment C to Secretary’s Statement of Facts and Contentions dated 18 December 2015, POS calculations.

26. By way of response, Ms Hill produced with her submissions a letter from a Mr Clinton Nagle of Epic Employments Service Inc., stating that she was an active participant with that company from 28 February 2013 to 28 April 2015.[50] On my calculations, that meant that her participation with that company was almost 10 months before 13 December 2013 and almost 13 months before 26 March 2014. If so, that nominated period would still be insufficient to satisfy the relevant requirement.  Further, the Secretary’s lawyer pointed out that the POS Referral Summary records a temporary medical incapacity exemption for the period 25 February 2013 to 25 November 2013,[51] which is unable to be counted towards the required period of 18 months of active participation.[52] That further reduces the period for which Ms Hill can claim to have actively participated in a POS. It therefore follows that she was unable to satisfy the POS requirement in respect of either claim.

    [50] Ms Hill’s submissions, email to Tribunal dated 16 March 2016.

    [51] Secretary’s Supplementary Statement of Facts and contentions dated 23 March 2013 and Exhibit 1, T Documents, T 47, page 315, POS Referral Summary.

    [52] See Richardson and Secretary, Department of Families, Community Services and Indigenous Affairs [2013] AATA 220, [22] (Deputy President Groom); Kumar and Secretary, Department of Social Services [2014] AATA 442.

27. In those circumstances, I find that Ms Hill had not actively participated in a POS and therefore, did not satisfy s 94(2)(aa) of the Act.

28. As a result, Ms Hill could not be found to have had a continuing inability to work, even if (contrary to my conclusion above) she were able to attract 20 points or more under the tables. She therefore did not satisfy the last of the requirements for DSP in s 94(1) of the Act.

    CONCLUSION

29. I do not consider that Ms Hill qualified for DSP in respect of either of her claims, as she did not have 20 points or more under the Impairment Tables at the relevant times. None of her impairments being “severe”, as that term is understood under the Act, I do not think that she satisfied the requirement, in respect of either claim, that she actively participated in a POS for 18 months in the 36 months preceding each claim. It therefore could not be said that she had a continuing inability to work in respect of either claim. Consequently, she did not qualify for DSP at the relevant times.

30. Accordingly, the decision under review is affirmed.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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

Associate

Dated 18 April 2016

Date(s) of hearing	10/02/2016
Date final submissions received	24/03/2016
Applicant	Appeared by phone
Solicitors for the Respondent	Department of Human Services