Hindmarsh and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3801

Hindmarsh and Secretary, Department of Social Services (Social services second review) [2020] AATA 3801 (1 April 2020)
Division:GENERAL DIVISION
File Number: 2019/2138
Re:Jane Hindmarsh
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member

Date:1 April 2020
Place:Perth

The Tribunal affirms the decision under review.
..........[sgd]..............................................................
Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification period – whether Applicant’s conditions fully diagnosed, fully treated and fully stabilised – whether Applicant’s impairments attract 20 points or more under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c), 94(2)
Social Security (Administration) Act 1999 (Cth) – Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
CASES
Lucas and Secretary, Department of Social Services [2018] AATA 2563
Newman and Secretary to the Department of Family and Community Services [2002] AATA 917
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.262
REASONS FOR DECISION
Brigadier A G Warner, Member
1 April 2020
INTRODUCTION

Ms Hindmarsh seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 22 March 2019 that affirmed a decision made by an Authorised Review Officer (ARO) on 28 November 2018. That decision rejected Ms Hindmarsh’s claim for disability support pension (DSP) lodged on

13 August 2018.
A hearing was conducted on 11 February 2020. Ms Hindmarsh was represented by an advocate from Advocacy WA, participated by telephone conference and gave evidence on affirmation.
Ms L Hinwood represented the Respondent, and also participated by telephone conference.
BACKGROUND
On 13 August 2018, Ms Hindmarsh lodged a claim for DSP with the Department of Human Services (now known as Services Australia) listing medical conditions of osteoarthritis of the knee and hip, spondylosis of the cervical and lumbar spine, and high blood pressure due to chronic pain (T31/209).
On 27 August 2018, Ms Hindmarsh’s claim for DSP was rejected (T35/220).
A Job Capacity Assessment (JCA) was conducted on 23 October 2018 and the results recorded in a report dated 9 November 2018 (T38/225-233).
Ms Hindmarsh requested a review of the 27 August 2018 rejection decision, and on

28 November 2018 an ARO affirmed the decision to reject Ms Hindmarsh’s claim for DSP (T40/235-239).
Ms Hindmarsh sought review of the ARO’s decision by the AAT1 and on 22 March 2019 the AAT1 affirmed the decision to reject her claim for DSP (T2/5-14). The AAT1 found that none of Ms Hindmarsh’s medical and psychological conditions attracted any impairment points at the time of lodgement of the claim for DSP.
Ms Hindmarsh lodged an application for second review with this Tribunal on 18 April 2019 (T1/1-4), claiming that the AAT1 decision was wrong because:
I was applying for disability support pension it was rejected I have a spinal condition that centrelink awarded 10 points to I have also osteoarthritis through out my body that centrelink has said is not fully treated, this is not the case have provided evidence from my gp that this condition was fully diagnosed treated and stabilised as of august of 2018 [sic]. I have provided evidence from my gp that I am unable due to chronic pain that I cannot work and that condition will last longer than 2 years and will deteriorate. All treatment options have been explored. I therefore believe this decision to be wrong (T1/4).
ISSUE
The Tribunal must decide whether Ms Hindmarsh was qualified for DSP, in accordance with s 94 of the Social Security Act 1991 (Cth) (the Act), during the period 13 August 2018 to 12 November 2018 (the qualification period). This requires consideration of whether as at, or during, the qualification period:
(a)Ms Hindmarsh had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)if so, whether Ms Hindmarsh had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) for the purpose of s 94(1)(b) of the Act; and
(c)if so, whether Ms Hindmarsh had a continuing inability to work, a term as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
LEGISLATION AND POLICY
The relevant legislation is contained in:
(a)the Act;
(b)the Social Security (Administration) Act 1999 (Cth) (the Administration Act);
(c)the Impairment Tables; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
Relevant policy is contained in the Guide to Social Security Law (the Guide), and should be applied unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
The relevant legislation, policy and authorities are detailed comprehensively in the Respondent’s Statement of Facts, Issues and Contentions dated 29 October 2019 as follows:
Qualification for DSP
13. The qualification criteria for DSP are set out in section 94 of the Act, which relevantly provides as follows:
94 Qualification for disability support pension
(1)     A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)    one of the following applies:
(i)        the person has a continuing inability to work; ...
14. The qualification criteria for DSP are cumulative, and if any one of the criteria are not satisfied the person will not be qualified for DSP. The Social Security Guide at 3.6.3.05 relevantly notes:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Qualification period
15. Section 42 of the Administration Act provides that a person’s ‘start day’ in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act.
16. Clause 3 of Schedule 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person’s qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with subclause 4(1) of Schedule 2 to the Administration Act. [See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8].]
17. As the date of claim is 13 August 2018, the qualification period for assessing the Applicant’s entitlement to DSP is therefore during the 13 week period from that date until 12 November 2018.
18. As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to her medical conditions suggesting she may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of her impairments at the qualification period: see Shi v Migration and Registration Authority [2008] HCA 31, [144] – [145].
19. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (Bobera), Member Breen stated, at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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 [emphasis added].
20. Bobera was cited with approval in the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447 (Fanning), where DP Handley made the following observations:
31. In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the qualification period.
32.     This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [Harris]. Gyles J stated at [1] that as an Applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
33.     The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.
21. In the more recent decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, the Federal Court affirmed the principle (as outlined in Fanning and Harris) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
22. The Secretary contends that these decisions establish that a decision maker, such as the Tribunal, can only consider the Applicant’s qualification for DSP within the qualification period. If the Applicant’s circumstances have subsequently changed, it may be appropriate for her to lodge a fresh claim for DSP.
Impairment Tables
23. The Impairment Tables are an instrument made under section 26(1) of the Act, which commenced on 1 January 2012.
24. Rule 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
25. Paragraph 6(1) states that a person’s impairment must be assessed taking into account the person’s abilities and not what they choose to do or not to do or what others do for the person.
26. Paragraph 6(3) states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (a term as defined in paragraph 6(4)), and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
27. Therefore, if the Applicant’s condition causing impairment is not permanent, the impairment resulting from this condition cannot be assigned an impairment rating.
28. In accordance with paragraph 6(4), a condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised;
(d)is more likely than not, in light of available evidence, to persist for more than two years.
29. Under paragraph 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
30. Paragraph 6(6) defines ‘fully stabilised’ for the purposes of paragraphs 6(4)(c) and 11(4) of the Impairment Tables. It provides that a condition is ‘fully stabilised’ if:
(a) 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 medical or other compelling reason for the person not to undertake reasonable treatment.
31. Paragraph 6(7) provides that, for the purposes of paragraph 6(6) of the Impairment Tables, ‘reasonable treatment’ is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
32. Rule 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
33. Paragraph 10(1) of the Impairment Tables states that table selection is to be made applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(Original emphasis.)
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T48, pp1-298);
·A bundle of documents filed by the Applicant on 22 November 2019 - including various medical reports (Exhibit A1);
·A bundle of documents filed by the Applicant on 1 August 2019 (Exhibit A2);
·
the Secretary’s Statement of Facts, Issues and Contentions dated

29 October 2019, including Annexures A and B (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
The Respondent accepts that, at the qualification period, Ms Hindmarsh had physical, intellectual or psychiatric impairments for the purpose of s 94(1)(a) of the Act

(Exhibit R1, para 35). The Tribunal’s assessment of Ms Hindmarsh’s conditions and impairments follow.
Ms Hindmarsh’s advocate made only very limited submissions before the Tribunal. He had not read the Secretary’s Statement of Facts, Issues and Contentions (Exhibit R1) prior to the hearing. He cited a medical certificate provided by Dr Nargis Ahmed, general practitioner, in September 2018 (T36/222; see paragraph [29] below) and opined that

Ms Hindmarsh satisfied descriptor (1)(b) for 20 impairment points under Table 4 – Spinal Function of the Impairment Tables.
Mental health condition
The Respondent contends that Ms Hindmarsh’s mental health condition was not fully diagnosed, fully treated or fully stabilised (FDTS) during the qualification period, and therefore, an impairment rating cannot be assigned (Exhibit R1, para [51]).
The AAT1 found that the medical evidence indicated that Ms Hindmarsh had mental health problems for several years, and recorded that Ms Hindmarsh told that tribunal that she had not consulted a psychiatrist nor had she attended any counselling for several years (T2/paras [31]-[32]).
The Introduction to Table 5 of the Impairment Tables provides in part, that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. Ms Hindmarsh has not provided any diagnostic evidence from a psychiatrist or clinical psychologist, and without such evidence, her mental health condition cannot be considered to be fully diagnosed.
Before the Tribunal, Ms Hindmarsh confirmed her evidence to the AAT1 (paragraph [18] above refers) and stated that her mental health should not be a consideration in the current DSP claim (Transcript p 9).
Hypertension
Ms Hindmarsh included high blood pressure due to chronic pain in the current claim for DSP (T31/209). The Respondent submits that there is insufficient evidence to determine whether this condition was FDTS at the qualification period and it therefore cannot attract impairment points (Exhibit R1, para [55]).
In a medical report dated 6 December 2011, Dr Sophie Hopkins, general practitioner, lists hypertension as a condition affecting Ms Hindmarsh but is generally well managed and causing minimal or limited impact on her ability to function (T7/134). In a letter dated

17 April 2013, Dr Neeraj Singh, general practitioner, listed hypertension as a current problem (T9/144). In a medical report dated 4 September 2017, Dr Fahad Ashraf, general practitioner, notes that Ms Hindmarsh ‘is suffering from high BP and has been restarted on medication for that’ (T25/166).
The condition of hypertension was not included in the ARO decision dated

28 November 2018 (T40) and was not mentioned in the JCA report dated

9 November 2018 (T38). Ms Hindmarsh did not make any submissions before the Tribunal with respect to hypertension.

The Tribunal concludes that there is insufficient evidence to determine whether

Ms Hindmarsh’s hypertension was FDTS at the qualification period, and consequently this condition cannot be assigned impairment points. Further, there is no evidence of any impairment to function as a consequence of this condition.
Osteoarthritis – left knee, right hip, spine
The Respondent accepts that Ms Hindmarsh’s osteoarthritis in her left knee, right hip and spine was fully diagnosed at the qualification period, but not fully treated or fully stabilised because she had not completed all reasonable treatment (Exhibit R1, para 37).

The Respondent presupposes in Exhibit R1 that any lower limb impairment suffered by Ms Hindmarsh results from her left knee and right hip conditions, however, consequent to Ms Hindmarsh’s evidence during the hearing, the Respondent accepts that

Ms Hindmarsh’s osteoarthritis of the spine results in impairment of both spinal function and lower limb function (Transcript p 19).
In reports dated 26 July 2017, 9 August 2017 and 4 September 2017, Dr Fahad Ashraf noted that Ms Hindmarsh has ‘severe osteoarthritis in her right hip and left knee’ and that both would need joint replacement surgery, however her left knee could ‘only be replaced after she has turned 60 yrs of age so it will not be offered to her for another 2-3 years’ (T21/162, T23/164, T25/166).
In her testimony in an earlier AAT1 hearing in December 2017, Ms Hindmarsh said that whilst living in Manjimup in 2013 she had seen an orthopaedic surgeon who said that she would eventually need a knee replacement but it would have to wait until she was over

60 years of age. Ms Hindmarsh told the AAT1 that since moving to Bunbury, she had seen another orthopaedic surgeon in 2017 primarily for her hip condition, and that the surgeon also looked at her knee and said that it needed fixing but should wait until her hip has been replaced (T27/173).
The evidence is that Ms Hindmarsh underwent a total right hip replacement in May 2018 and attended eight physiotherapy sessions following the surgery. The AAT1 decision, currently on review before the Tribunal, relevantly considered Ms Hindmarsh’s evidence that ‘[d]uring the last ten months she has gradually improved. She now does not experience the severe pain she had been having in her right hip and is now a little bit more mobile’ (T2/9).
In a medical certificate dated 18 September 2019, Dr Ahmed reported that Ms Hindmarsh had been diagnosed with osteoarthritis of her left knee and spine, and that ‘[s]he has widespread osteoarthritis which is disabling her. She had a right hip replacement with minimal improvement. Her Knee osteoarthritis is not in a state where replacement is required at the moment’. Dr Ahmed opined that Ms Hindmarsh’s osteoarthritis was a permanent condition which could possibly be present for more than two years and that it could get progressively worse (T36/222).
Dr Ahmed provided a very brief medical certificate dated 14 January 2019 in relation to Ms Hindmarsh’s osteoarthritis of hip and knee, and stated: ‘[s]he was diagnosed, treated and stabilised in August 2018’ (T41/240). Dr Ahmed’s opinion seems inconsistent with that detailed in the preceding paragraph, and he does not provide any basis for it.
The JCA report dated 9 November 2018, and coincident with the end of the qualification period, includes the following remarks relative to Ms Hindmarsh’s osteoarthritis of the right hip:
Thus, OA of the right hip is considered fully diagnosed, but not fully treated and stabilised. Surgery was 5-6 months ago, and, based on a lack of any other medical evidence to support otherwise, the client may still be in her recovery phase; and even if not, given minimal improvement as described by Dr Ahmed she may benefit from pain management or other therapies as deemed necessary (T38/226).
There is evidence, including Ms Hindmarsh’s oral evidence, that chronic pain is the significant symptom resulting from Ms Hindmarsh’s osteoarthritis (T2/9-10; T38/227-228), however, at the qualification period she had not attended a pain management clinic.

The Respondent relevantly cites the matters of Newman and Secretary to the Department of Family and Community Services [2002] AATA 917 (at [31]-[32]) and Lucas and Secretary, Department of Social Services [2018] AATA 2563 (at [51]-[52]) in support of the Respondent’s contention that a pain management program would be a reasonable treatment for Ms Hindmarsh to undertake, and that without such treatment her osteoarthritis was not fully treated or stabilised at the qualification period

(Exhibit R1, paras 39-40).
In a report dated 16 May 2019, Ms Laura Lok, physiotherapist, stated that Ms Hindmarsh had engaged in four physiotherapy sessions for her lower back and neck during the period 16 April 2019 and 8 May 2019. Ms Lok’s report concludes: ‘She may benefit from counselling and I do believe she would benefit from further physiotherapy and starting a gentle exercise program (pilates) for strengthening, however is unable to due to affordability’ (Exhibit R1, Annexure A/1-2).
There is evidence of the relationship between Ms Hindmarsh’s spine, hip and knee.

A physiotherapy action plan prepared by Michael Christofis and Rebel Ward on

29 September 2016 diagnosed that Ms Hindmarsh’s spinal condition was ‘aggravated by gait due to knee’ (T15/154). Ms Hindmarsh told the AAT1 in an earlier hearing in December 2017 that the combination of knee pain and hip pain greatly affected her mobility and that an orthopaedic surgeon had said that her left knee could not be replaced until her right hip had been done (T27/173-174). Ms Hindmarsh told this Tribunal that following her hip replacement in May 2018, she had become more aware of her very significant back and neck pain. In the Tribunal’s view, the evidence does not negate the Respondent’s contention that ‘undertaking reasonable treatment for osteoarthritis in one joint may lead to a significant functional improvement in another’ (Exhibit R1, para [41]).
Ms Hindmarsh’s oral evidence before the Tribunal relevant to her osteoarthritis included the following:
·Ms Hindmarsh said that she had not seen a specialist in relation to her left knee since 2017, wears a special brace and takes medication. She said that her knee was under control at the moment, that she was not in constant pain and that her doctor was not advising knee replacement yet.
·Ms Hindmarsh said that prior to her hip replacement in May 2018 her hip pain masked the pain from her lower back, but now ‘it’s my spine that gives me more grief than anything else’ (Transcript p 15). She said that her spinal condition was ‘very, very restricting’ in her daily life. Ms Hindmarsh confirmed that she has never been seen by a spinal specialist.
·Ms Hindmarsh confirmed that pain was the most significant symptom resulting from her knee, hip and spine conditions. She told the Tribunal that prior to attending a pain management conference with a pain management person from Fiona Stanley Hospital on 5 December 2019, she had not undertaken any pain management in relation to her conditions, and had waited a long time for that appointment.
·Ms Hindmarsh agreed that she was aware of an interrelationship between her knee and hip. She told the Tribunal that she used a walking stick to assist her mobility because of the combination of her knee, hip and lower back conditions.
Having regard to the relevant evidence, the Tribunal finds that at the qualification period, Ms Hindmarsh’s conditions of osteoarthritis of the right hip, left knee and spine were fully diagnosed, but not fully treated or fully stabilised, for the following reasons:
(a)
Although pain was the most significant symptom of the osteoarthritis conditions, Ms Hindmarsh has not engaged in a pain management program or treatment.

The Tribunal considers that a course of pain management would be a reasonable treatment for Ms Hindmarsh to undertake and that without such treatment it cannot be concluded that the overall condition of osteoarthritis was fully treated and stabilised.
(b)
Although Ms Hindmarsh underwent a right hip replacement in May 2018,

the evidence is that her hip was still causing pain and had not yet reached the maximum level of improvement following the surgery.
(c)The left knee condition was not fully treated or stabilised at the qualification period as a recommended knee replacement, recommended as needing to be undertaken after Ms Hindmarsh’s hip was fixed, had not yet occurred. Such knee replacement may result in decreased pain, an improvement in the related joint conditions and significant functional improvement.
(d)Ms Hindmarsh told the Tribunal that her spine ‘gives me more grief than anything else’ (Transcript p 15). The evidence, however, indicates that she had not undertaken all reasonable treatment. In particular, Ms Hindmarsh had not been seen by a spinal specialist, had not engaged in physiotherapy until after the qualification period (Exhibit R1, Annexure A/1), and as already stated, had not undertaken pain management for her spinal pain.
As the Tribunal finds that Ms Hindmarsh’s osteoarthritis of the left knee, right hip and spine was not fully treated and stabilised at the qualification period, impairment points cannot be assigned.
Total impairment rating
At the qualification period, Ms Hindmarsh’s medical conditions generated zero points under the Impairment Tables. This is less than the required 20 points needed to satisfy

s 94(1)(b) of the Act. It follows that Ms Hindmarsh does not qualify for DSP.
Continuing inability to work
As the Tribunal has found that Ms Hindmarsh is not qualified for DSP, it is not necessary for the Tribunal to consider whether she has a continuing inability to work (CITW) pursuant to s 94(1)(c) of the Act.
In Exhibit R1, the Respondent provides a comprehensive analysis of the CITW requirement relevant to Ms Hindmarsh’s claim (Exhibit R1, paras [58]-[81]).

The Respondent contends that Ms Hindmarsh did not have a CITW during the qualification period. The Tribunal notes that before the Tribunal, Ms Hindmarsh agreed with the evidence that she had only participated in a program of support for 163 days, well short of the 18 months required in the three years preceding the lodgement of her DSP claim as required in the POS Determination. The Tribunal is of the view that the material before it supports the Respondent’s contention.
DECISION
For the above reasons, the Tribunal affirms the decision of the Social Services and Child Support Division of this Tribunal dated 22 March 2019.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

.......[Sgd].................................................................
Associate
Dated: 1 April 2020

Date of hearing: 11 February 2020

Advocate for the Applicant: Advocate from Advocacy WA

Representative for the Respondent: Ms L Hinwood, Department of Human Services

Date of hearing:	11 February 2020
Advocate for the Applicant:	Advocate from Advocacy WA
Representative for the Respondent:	Ms L Hinwood, Department of Human Services