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

[2016] AATA 3

Incicau and Secretary, Department of Social Services (Social services second review) [2016] AATA 3 (6 January 2016)

Division	GENERAL DIVISION
File Number	2015/2670
Re	Peter INCICAU
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	6 January 2016
Place	Melbourne

The decision under review is affirmed.

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

Mr C Ermert, Member

Catchwords

SOCIAL SECURITY – disability support pension – qualification period - physical, intellectual or psychiatric impairments – whether impairments attracted a rating of 20 points or more - continuing inability to work - decision affirmed  

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr C Ermert, Member

6 January 2016

INTRODUCTION

1. In 2001 while working as a crane driver Mr Incicau, the Applicant, had an accident at his workplace.  He suffered injuries to his back, left ankle and left knee, for which he had treatment and rehabilitation.  In 2012, while on a fishing boat, he had another accident, aggravating his lower back injury and fracturing his pelvis in two places, including the right hip joint.

2. On 10 November 2014 Mr Incicau lodged a claim for Disability Support Pension (DSP) with Centrelink.  Centrelink is the service provider for the Department of Social Services, the Respondent.  In his claim he listed as his disabilities and injuries: broken left ankle, left knee, lower back fracture, neck fracture, right pelvis fracture, right hip fracture, pain and ache continually. 

3. On 20 November 2014 a Centrelink officer determined that Mr Incicau was not qualified for DSP because his impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  On 19 January 2015 a Centrelink authorised review officer (ARO) affirmed this decision.  Mr Incicau sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT).  On
   28 April 2015 the SSAT affirmed the ARO’s decision.  However, the SSAT found that, although his impairments attracted a total of 20 impairment points, Mr Incicau was not qualified for DSP as he had not completed a program of support prior to his claim. 

4. This matter is a review of the SSAT decision.

   HEARING

5. At the hearing Mr Incicau represented himself and gave his evidence under oath. 
   Ms Anna-Lisa Short, a solicitor with Sparke Helmore, represented the Respondent. 

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). 

7. For Mr Incicau I took in as evidence the following documents:

   ·Exhibit A1 – report by Dr Akinbiyi dated 5 December 2015;

   ·Exhibit A2 – ultrasound of the right groin dated 28 July 2015;

   ·Exhibit A3 – reports by Dr Akinbiyi dated 4 August 2015 and 28 March 2015;

   ·Exhibit A4 – reports by Dr Hooper dated 20 October 2015 and 6 November 2015; and

   ·Exhibit A5 – report by Dr Andrianakis dated 3 December 2015; with attachments:

   oReport by Dr Lovell dated 5 September 2003;

   oReport by Dr Robilliard dated 28 August 2002;

   o

   Magnetic Resonance Imaging (MRI) report cervical spine dated

   
   

   26 August 2015;

   oBone scan dated 8 April 2015;

   oReport by Mr Schneider dated 7 July 2015; and

   oReport by Mr Schneider dated 29 July 2015.

8. For the Respondent I considered the Respondent’s Statement of Facts, Issues and Contentions dated 26 November 2015.  As Exhibit R1 I took into evidence an email from Simon Turner of Campbell Page dated 6 October 2015.

   LEGISLATION

9. The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).

10. Section 94 of the Act  relevantly prescribes qualification for DSP:

    (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.

11. A person’s impairment is assessed by reference to the Impairment Tables.

    QUALIFICATION PERIOD

12. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

13. In this case the qualification period runs from 10 November 2014, the day on which the claim was lodged, to 9 February 2015. 

    ISSUES

14. The issues are whether, during the qualification period, Mr Incicau:

    ·had any physical, intellectual or psychiatric impairments; and, if so,

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·he had a continuing inability to work.

    EVIDENCE

15. Mr Incicau recounted the details of his industrial accident in 2000 (the first accident).  He said he recovered from the accident to a reasonable level.  He then described the accident in a fishing boat in 2012 (the second accident) which caused a fracture of his right hip, damaged his right shoulder and aggravated his neck injury.  Mr Incicau said he went to a gymnasium to make himself strong again.  He obtained a security job but the job entailed climbing too many stairs.  He worked in that job for only three days after which he was hospitalised because of the increase in pain from his injuries.  He stated he was affected both physically and mentally by the work. 

16. Mr Incicau said he received no help from Campbell Page, the employment organisation.  When he applied for DSP he was told he would not receive DSP and to go back to Campbell Page.  Mr Incicau said he was about one month short of completing the Program of Support requirement.  Mr Incicau said he is not strong enough, physically or mentally, to go back to work.

17. Mr Incicau said the Job Capacity Assessor (JCA) assessed him only by asking him questions over the telephone.  Mr Incicau referred to the comment in the JCA report that he is able to sit and drive for 30 minutes.  He said that sometimes he can drive longer but sometimes he cannot drive at all.

18. In answer to questions from Ms Short, Mr Incicau said:

    ·He lives alone in a single level dwelling with no steps;

    ·He uses a walking stick sometimes, when he needs it;

    ·He could not remember when he first went to Mr Schneider but it would be recorded in the reports;

    ·He cooks his own meals;

    ·All the normal activities of life cause him pain and he needs medications all the time;

    ·He keeps his cutlery on the bench where he can reach it easily;

    ·He bends down to take items out of the bottom shelf of the refrigerator; it hurts but there is no one else to do it for him;

    ·He buys his groceries in small quantities most days; he buys only two or three items at a time and puts them in a box to carry them out;

    ·He drives an automatic car; he turns his head with difficulty and has to take medication for the pain;

    ·It takes him 15 minutes to drive to the Aldi supermarket and 20 minutes to drive to Point Cook;

    ·He parks near the entrance to the supermarket; he can walk into the supermarket and can walk for 10 to 15 minutes at most;

    ·He washes his clothes in his washing machine; his clothes line lowers and raises by use of a handle; and

    ·His conditions have become worse since November 2014.

19. In answer to questions about his depression, Mr Incicau said:

    ·He cannot remember when he first went to see Dr Akinbiyi, but it could be 24 March 2015 as shown in the report;

    ·He cannot remember when he first had treatment for his depression and relies on the reports of Dr Andrianakis; and

    ·Dr Andrianakis looked after his medications.

    TRIBUNAL CONSIDERATIONS

    Does Mr Incicau have an Impairment? (section 94(1)(a))

20. The Respondent concedes, correctly in my opinion, that during the qualifying period

    
    

    Mr Incicau had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    ·Lower limb injuries (arthritis / left ankle / left foot / pelvis / right hip / right knee);

    ·Spinal disorder;

    ·Depression;  and

    ·Upper limb condition.

21. The concession is supported by the evidence, and I find accordingly.

    Do the Impairments attract an Impairment Rating of 20 points or more?
    (section 94(1(b))

22. I must now determine whether Mr Incicau’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

23. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

24. Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:

    (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 2 years.

25. I will consider each of the conditions in turn.

    Lower Limb Injuries

26. In the Secretary’s Statement of Facts, Issues and Contentions the Secretary accepts that the lower limb injuries date from 2001 and they are fully diagnosed, treated and stabilised.  There is considerable medical evidence to support this concession.  I find that the lower limb injuries are fully diagnosed, treated and stabilised.  As a result the impairment resulting from these injuries can be assessed by reference to the Impairment Tables.

27. In considering the evidence on the impairment resulting from Mr Incicau’s lower limb injuries I note the following provisions in the Introduction to Table 3 – Lower Limb Function of the Impairment Tables:

    ·Self-report of symptoms alone is insufficient.

    ·There must be corroborating evidence of the person’s impairment.

    ·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

    oa report from the person’s treating doctor;

    oa report from a medical specialist ….. ;

    oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

    oresults of diagnostic tests (e.g. X-Rays or other imagery);

    oresults of physical tests or assessments.

28. The relevant corroborated evidence is contained in the following reports:

    ·Employment Services Assessment Report dated 5 August 2014 (T-Documents, page 42) which records:

    Client has difficulty completing activities around the house and reported he varies between sitting 10 minutes, standing 10 minutes and walking in between while trying to complete chores.

    ·Report by Dr Andrianakis dated 21 October 2014 (T-Document T14) which records:

    oImpact on ability to function – Not coping with basic ADLs (activities of daily living), not able to walk (page 85).

    oImpairment > 20 points each condition as per centrelink tables (page 89).

    ·Job Capacity Assessment Report dated 20 November 2014 which records:

    Symptoms: Pain in various joints (hip, leg and foot), stiffness and some reduced mobility exacerbating in cold weather.  Client usually walks for 30 minutes a day, and reports constant pain / discomfort that does not usually restrict him in getting around.

    ·Report by Dr Andrianakis dated 12 March 2015 which records:

    The impairment rating for the left lower limb according to centrelink impairment table 3 – Lower limb is at 10 points.

29. The requirements in Table 3 for an impairment rating of 10 points are:

    (1)  At least one of the following applies:

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

    (b)  the person is unable to use stairs or steps without assistance; or

    (c)  the person is unable to stand for more than 5 minutes; and

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

30. The documentary evidence detailing Mr Incicau’s ability to walk varies in scope from not able to walk (Dr Andrianakis) to client usually walks 30 minutes a day (JCA).  I do not accept Dr Andrianakis’ assessment that Mr Incicau is not able to walk.  It is clear from his own evidence that Mr Incicau is able to walk around a supermarket to do his shopping.  The ESA report also shows that Mr Incicau is able to walk in-between sitting and standing.  I do accept, however, that Dr Andrianakis’ opinion corroborates the description of

    
    

    Mr Incicau that he is unable to walk far and needs to drive to the local shops and other facilities.

31. In regard to the JCA assessment I accept Mr Incicau’s evidence that the assessment was conducted over the telephone.  I am not satisfied that a telephone assessment without an examination warrants as much weight in evidence as that of a treating doctor.

32. From the evidence I am satisfied that Mr Incicau is unable to walk far outside his home and needs to drive to local shops or community facilities.  I am also satisfied that he is able to use a motor vehicle and walk around in a shopping centre or supermarket.  Accordingly, I am satisfied that he meets the requirements for a rating of 10 impairment points from Table 3.

33. The relevant requirements for a rating of 20 points are:

    (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;

    …

34. The only evidence in support of this rating is the assessment by Dr Andrianakis.  However, I note that Dr Andrianakis provides no detail to support his assessment. 

    
    

    Mr Incicau’s own evidence is that he drives himself to the shops, walks into the shops, and walks around doing his shopping without assistance.  I prefer the direct evidence of Mr Incicau over the unexplained assessment of Dr Andrianakis.  I find that Mr Incicau does not meet the requirement for an impairment rating of 20 points from Table 3.

35. I find that Mr Incicau’s lower limb injuries attract an impairment rating of 10 points.

    Spinal Disorder

36. In the Secretary’s Statement of Facts, Issues and Contentions the Secretary accepts that Mr Incicau’s spinal disorder is fully diagnosed, treated and stabilised.  There is considerable medical evidence to support this concession.  I find that the spinal disorder is fully diagnosed, treated and stabilised.  As a result the impairment resulting from this disorder can be assessed by reference to the Impairment Tables.

37. The relevant table is Table 4 Spinal Function.  The Introduction to this table provides that self-reported symptoms are insufficient and must be corroborated by health professionals.

38. The relevant corroborated evidence is contained in the following reports:

    ·Employment Services Assessment Report dated 5 August 2014 (T-Documents, page 42), which records:

    Client has difficulty completing activities around the house and reported he varies between sitting 10 minutes, standing 10 minutes and walking in between while trying to complete chores.

    ·Report of Dr Andrianakis dated 21 October 2014 (T-Document T14)  which records relevantly:

    oCurrent symptoms – Poor mobility / lower back pains and stiffness, tender L4-5-S1, muscle spasm, reduced ROM (range of movement) (page 84).

    oImpact on ability to function – Not coping with basic ADLs (activities of daily living), not able to walk (page 85).

    oImpairment > 20 points each condition as per centrelink tables (page 89).

    ·JCA report dated 20 November 2014 (T-Documents, page 92) which records:

    Symptom impact: Back and neck pain, stiffness and muscle spasm at times, worse in cold weather.  Client can bend with some difficulty, and he is able to drive and sit for at least 30 mins.  GP notes reduced range of movement, and client reports he is unable to unable to (sic) sustain overhead activities.  Client is personally independent and manages his domestic ADLs by pacing himself and making regular postural change. … Recommended rating 10 – Can sit for at least 30 mins and (a) is unable to sustain overhead activities.

    ·Letter signed by Dr Andrianakis dated 4 December 2014 (T-Documents, page 97), which records:

    I would like to appeal the decision to reject my DSP based on serious error made by the JCA who has not taken into account the disruption of various joints due to injury and deformity as per the xa=rays I am providing.

    Further he states that my mobility is not severely affected BUT I disagree completely.

    I am severely restricted in mobility for most activities of daily living.

    ·Report of Dr Andrianakis dated 12 March 2015 (T-Documents, page 111) which records:

    More importantly Mr Incicau suffers significant lower back pain and stiffness which is also well documented and diagnosed by numerous specialists.  The lower back injury has been made worse since his fall on the fisshing [sic] boat which now also involves a fractured pelvis at the base of his spine.

    Mr Incicau is assessed with an impairment rating of 20 points (as per the centrelink impairment tables, Table 4 – Spinal Function).

39. In the Secretary’s Statement of Facts, Issues and Contentions the Respondent accepts that the impairment from the spinal disorder attracts an impairment rating of 10 points.  I am satisfied that the medical evidence supports a rating of 10 impairment points and accept the Respondent’s concession on this point.  I now need to consider whether the impairment attracts a rating of 20 points or more.

40. The descriptors in Table 4 for a severe  impairment attracting 20 points are:

    (1)  The person is unable to:

    (a)  perform any overhead activities; or

    (b)  turn their head, or bend their neck, without moving their trunk; or

    (c)  bend forward to pick up a light object from a desk or table; or

    (d)  remain seated for at least 10 minutes.

41. There is evidence that Mr Incicau has difficulty completing activities around the house, that he is not coping with basic ADLs and he is unable to sustain overhead activities.  However, there is no evidence that Mr Incicau is unable to perform any overhead activities. 

42. There is no evidence that Mr Incicau is unable to turn his head or bend his neck without moving his trunk.  Additionally, Mr Incicau’s evidence is that he regularly drives his car to the local shops.  I accept that this inevitably involves some turning of his head and bending of his neck without moving his trunk. 

43. There is no evidence that Mr Incicau is unable to bend forward to pick up a light object from a desk or table.  Mr Incicau’s evidence was that he would place his shopping in a box to carry it out to the car.  He emphasised that he bought only a few items at a time. However, I consider this activity can be described correctly as picking up a light object from a desk or table.

1. The ESA report shows Mr Incicau as being able to sit for 10 minutes.  His own evidence was that he could drive his car for 15 to 20 minutes. 

2. I note the opinion of Dr Andrianakis that Mr Incicau’s impairment from this disorder attracts a rating of 20 points.  However, Dr Andrianakis provides no detail in support of his opinion.  In particular he provides no particulars that relate to the descriptors in Table 4. 

3. I am satisfied that there is no evidence that Mr Incicau meets the descriptors for a 20 point impairment rating under Table 4.  I find that Mr Incicau’s spinal disorder attracts a rating of 10 impairment points.

   Depression

4. Mr Incicau contends that his mental condition is fully stabilised.  His depression has not gone away since his first accident.  He said it became worse following his second accident and is still there. 

5. Ms Short contends that the condition is not fully diagnosed nor fully treated and stabilised and cannot be assigned an impairment rating.

6. In regard to the diagnosis of the condition I note the following reports:

   ·Dr Polonowita, Consultant Psychiatrist, dated 4 February 2004 (T-Documents, page 75) which records Mr Incicau suffers from post-traumatic stress disorder and an adjustment disorder;

   ·Report of Dr Andrianakis dated 21 October 2014 (T-Documents, page 86-87) which records the onset of depression in 2001, with specialist consultations in 2001, 2003 and 2010. 

   ·JCA report dated 20 November 2014 (T-Documents, page 92-93) which records:

   oThis condition is: Verified by medical evidence; Fully Diagnosed.

   oRemarks: … No further treatment is planned, but client reports that his condition has worsened over the past few months, and it would be appropriate for referral to a specialist for an assessment / treatment plan.  This condition is considered not fully treated.

   ·Report of Dr Andrianakis dated 12 March 2015 (T-Documents, page 110) which records:

   Mr Incicau also suffers significant Post traumatic stres [sic] Disorder for which he was seeing Dr Polonowita (psychiatrist).  This condition is well documented, diagnosed by an appropriate specialist It is fully treated and stabilised and still attracts an impairment of 20 points as per the centrelink impairment tables (Mental health table 1).

   This depression and PTSD has been made worse by the recent fall and Mr Incicau contiues [sic] to struggle with his psychiatric disorder.

   ·Report of Dr Akinbiyi dated 24 March 2015 (Exhibit A3) which records:

   Thank you for referring Mr Peter Incicau for an assessment and management of his depressive illness and PTSD … Peter admits to feeling depressed, worse since Christmas and Easter period. … Plan: 4. I will review again in four weeks.

   ·Report of Dr Akinbiyi dated 4 August 2015 (Exhibit A3) which records:

   Mr Peter Incicau is a 57 yrs old who is being managed for the following conditions

   ·Major Depressive Disorder

   ·Generalised Anxiety Disorder

   ·Agoraphobia with Panic disorder

   ·Post-Traumatic Stress Disorder (PTSD)

   I am hereby referring Peter for psychotherapy …

   ·Report of Dr Akinbiyi dated 5 December 2015 (Exhibit A1) which records:

   Mr Peter Incicau was referred to me by his GP for an assessment and management of his depressive illness and Post Traumatic Stress Disorder (PTSD).  … Plan

   1.Peter was giving (sic) psychoeducation about his illness

   2.He was commenced on an antidepressant, Escitalopram

   3.He was referred to see a psychologist for CBT-based psychotherapy.

   4.Chlorpromazine 25mg to 100mg nocte prn.

   5.Peter is been (sic) reviewed every 2-4 weeks by the psychiatrist to monitor mental state and optimise medication.

7. In 2004 Mr Incicau was diagnosed by Dr Polonowita, a psychiatrist, with PTSD.  This diagnosis remained unchanged before and during the qualifying period.  As the diagnosis was made by a psychiatrist, I accept that the Mr Incicau suffered a mental disorder that was fully diagnosed.

8. Although Dr Andrianakis maintains that the condition was fully treated and stabilised during the qualification period, I note the evidence of the JCA that Mr Incicau reported his condition had deteriorated over the previous months.  This account is supported by the evidence of Dr Akinbiyi in his report of 24 March 2015, in which he records Mr Incicau saying that his condition had become worse since Christmas and Easter.

9. A deterioration in Mr Incicau’s condition can also be implied from Dr Andrianakis’ referral of Mr Incicau to Dr Akinbiyi for another assessment in March 2015, shortly after the qualifying period.  As a result of his examination, Dr Akinbiyi saw a need for Mr Incicau to undertake further psychotherapy and further reviews to monitor his mental state and optimise his medication.

10. I accept the contemporaneous opinion of the JCA that during the qualifying period

    
    

    Mr Incicau’s mental condition was not fully stabilised.  The merit of this opinion was subsequently supported by Dr Akinbiyi, who saw the need for further assessment and treatment. 

11. From the evidence I am not satisfied that during the qualifying period Mr Incicau’s mental condition was fully stabilised.  Accordingly I cannot assign an impairment rating to this condition.

    Upper Limb Condition

12. In considering whether this condition is fully diagnosed, treated and stabilised I note the following medical reports:

    ·Report of Dr Brian Lovell dated 5 September 2003 (Attachment to Exhibit A5) which records:

    His main complaints consist of neck and arm referred pain, as well as low back pain with radiation down through the buttock, the leg and to the foot.  Given the complexity of his current pain pattern, some time was spent evaluating this, including his neck, arm and head pain, but today we chose to focus on his low back pain and associated leg pain. … I suggest we explore this in a few weeks time, but I have left it to him to make an appointment to do so.

    ·MRI Cervical Spine report dated 26 August 2015 (Attachment to Exhibit A5) which records:

    There is multilevel degenerative disc disease as described, which appears to be most severe at C5/6 and C6/7 where there is neurocentric joint osteophyte formation and foraminal narrowing.

    ·Report of Dr Andrianakis dated 3 December 2015 (Exhibit A5) which records:

    Radiology in 2002 confirms significant pathology in his cervical spine.  It was examined diagnosed and managed by a specilaist [sic] (Dr Lovell) from 2003.

    Recent MRI scans of the cervical spine confirm ongoing significant pathology in his cervical spine and affecting his upper limbs. …

    This evidence should satisfy the FDTS for the qualifying period as Mr Incicau has not been without neck pains and upper limb pains since 2002.

13. I am satisfied from the evidence that Mr Incicau has a condition of his cervical spine affecting his upper limbs.  I am also satisfied from the report of the specialist, Dr Lovell, supported by the attached scan reports that the condition was fully diagnosed.  However, I am not satisfied that the condition has been fully treated or stabilised.  Dr Lovell left it to Mr Incicau to initiate treatment.  There is no evidence of treatment of the condition resulting from this recommendation prior to or during the qualifying period.  The next examination of the condition appears to be the MRI scan undertaken in August 2015, after the qualifying period.

14. I find that the upper limb condition has not been fully treated or stabilised during the qualifying period.  As a result the condition is not permanent in the terms of the Impairment Tables and I cannot assign an impairment rating to it.

    Total Impairment Rating

15. For Mr Incicau’s conditions at the time of qualifying period I have found the following:

    (a)Lower limb injuries (arthritis, left ankle, left foot, pelvis, right hip, left knee) – 10 impairment points;

    (b)Spinal injuries – 10 impairment points;

    (c)Depression – diagnosed but not fully stabilised – unable to assign an impairment rating; and

    (d)Upper limbs – diagnosed but not fully treated and stabilised – unable to assign an impairment rating.

16. The total impairment rating at the time of the qualifying period is 20 impairment points.  Accordingly, Mr Incicau satisfies s 94(1)(b) of the Act.

    Does Mr Incicau have a Continuing Inability to Work? (section 94(1)(c))

17. Section 94(1)(c) of the Act provides that to qualify for DSP a person must have a continuing inability to work.  Section 94(2) of the Act provides:

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

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C) …

18. Section 94(1)(3B) provides that A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

19. Although Mr Incicau has impairments rating a total of 20 points, none of his impairments attract 20 points from a single Impairment Table.  Accordingly, none of Mr Incicau’s impairments are severe in terms of the Act.

20. As Mr Incicau does not have a severe impairment, he must have actively participated in a program of support.  The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination) provides, in paragraph 5, that a person has actively participated in a program of support if he has participated in a POS for 18 months within the 36 months prior to the date of claim and complied with the requirements of the program. 

21. Ms Short referred to Campbell Page’s records of Mr Incicau’s attendance in a POS (Exhibit R1).  Ms Short submitted that the records show that Mr Incicau completed only 13 months of his program of support.  Ms Short submitted that Mr Incicau exited the program in April 2015, after the qualifying period, because he no longer wished to participate in the program.  Ms Short contends that Mr Incicau’s reasons for leaving the program do not fall into any of the exceptions in paragraphs 5(3) to 5(5) of the POS Determination.  Ms Short submitted that Mr Incicau does not satisfy the POS requirements.

22. Mr Incicau did not contest that he has not completed the requirements of a program of support. 

23. From the evidence, I find that Mr Incicau has not actively participated in a POS.  As a result Mr Incicau does not satisfy the provisions of section 94(2) of the Act and cannot be found to have a continuing inability to work.  

24. There are no other sections of the Act which can provide an exemption from this requirement.  Accordingly, I find that, during the qualifying period, Mr Incicau did not satisfy the provisions of section 94(1)(c) of the Act.

    CONCLUSION

25. To qualify for the DSP a person must, during the qualification period, satisfy all subsections of section 94(1) of the Act.  Mr Incicau did not satisfy the requirements of section 94(1)(c) of the Act.  As a result, he could not satisfy all the provisions of section 94(1) of the Act.  The result is that during the qualification period Mr Incicau was not qualified for DSP and I find accordingly.

26. If Mr Incicau’s conditions have changed since the qualifying period he is entitled to submit a new application at any time.

    DECISION

27. I affirm the reviewable decision.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

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

Associate

Dated 6 January 2016

Date of hearing	9 December 2015
Applicant	In person
Advocate for the Respondent	Ms A Short
Solicitors for the Respondent	Sparke Helmore