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

[2018] AATA 1848

JTDC and Secretary, Department of Social Services (Social services second review) [2018] AATA 1848 (22 June 2018)

Division:GENERAL DIVISION

File Number:           2017/4347

Re:JTDC

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:22 June 2018

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualifies for disability support pension – spinal condition – hypothyroidism – migraines – irritable bowel syndrome – cataracts – cognitive dysfunction – depression – anxiety – whether applicant meets Australian residency requirements – whether applicant meets requirements of the social security agreement between Australia and Germany – whether applicant’s conditions rated at 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

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

Social Security (Administration) Act 1999 (Cth) ss 42, 192, sch 2

Social Security (International Agreements) Act 1999 (Cth) sch 14

Agreement on Social Security between Australia and the Federal Republic of Germany

Concluding Protocol to the Agreement between Australia and the Federal Republic of Germany on Social Security

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

REASONS FOR DECISION

Dr L Bygrave, Member

22 June 2018

INTRODUCTION

1. The applicant is 62 years old. She was born in Egypt and subsequently resided in Germany from January 1995 to August 2005, where she worked as a paediatrician. The applicant first arrived in Australia on 22 August 2005 and was granted a permanent residence (subclass 155) visa on 23 July 2008.

2. On 18 January 2016, the applicant lodged a claim for disability support pension.

3. The claim was rejected by the Department of Human Services (Centrelink), both initially and on review, on the basis that the applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act) and schedule 14 of the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act).

4. The applicant then applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 13 June 2017, the SSCSD affirmed Centrelink’s decision to reject the applicant’s claim for disability support pension.

5. On 24 July 2017, the applicant lodged an application for review to the General Division of the Tribunal.

6. The matter was heard in Sydney on 3 May 2018 and 25 May 2018. The applicant was self-represented; she attended the hearing in person and gave oral evidence with the assistance of an Arabic interpreter.

   RELEVANT LEGISLATION AND ISSUES

   Qualification for the disability support pension

7. To qualify for disability support pension, the applicant must satisfy the criteria set out in subsection 94(1) of the Act, which require her to show she has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

8. Further, the applicant must satisfy these criteria on 18 January 2016 when she applied for disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Residence test

9. The applicant must also satisfy Australian residency requirements to qualify for the disability support pension. Relevantly, paragraph 94(1)(e) of the Act requires that a person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside of Australia and, at the time when the person first satisfies paragraph (c), the person:

   (A)            is not an Australian resident; and

   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident.

10. I have had regard to the relevant provisions in the Act and the Migration Act 1958 (Cth), and considered the facts of the applicant’s visa status and her arrival date in Australia. Based on this information, I am satisfied the applicant:

    ·did not have 10 years qualifying residence at the date of her claim for disability support pension on 18 January 2016;

    ·does not have qualifying residence exemption; and

    ·is not the dependent child of an Australian resident.

11. l find that the applicant does not satisfy the residency requirements to qualify for the disability support pension under paragraph 94(1)(e) of the Act. This means that she can only qualify for the disability support pension in accordance with the International Agreements Act.

    International Agreements Act

12. Schedule 14 of the International Agreements Act sets out the agreement on social security between the governments of Australia and the Federal Republic of Germany (the Germany Agreement).

13. Article 2 of the Germany Agreement provides that social security law applies to benefits including the disability support pension. In accordance with article 7(1), the German period of coverage shall be deemed, only for the purposes of meeting any minimum qualifying periods for disability support pension set out in the Australian legislation, to be a period in which that person was an Australian resident.

14. The Concluding Protocol to the Agreement between Australia and the Federal Republic of Germany on Social Security (Concluding Protocol) at paragraph 3(d) prevents the use of ‘equivalence of territories’ (i.e. Article 5) unless the applicant is ‘severely disabled’.

15. At my request, the Secretary provided supplementary submissions about the applicant’s Australian periods of residency and German ‘periods of coverage’. The Secretary submitted that:

    …at the time of claim, the applicant would be able to utilise the totalisation provisions of the Agreement between Australia and Federal Republic of Germany on Social Security according to Article 7. The applicant is able to combine her Australian periods of residence and German contributions to meet the minimum residence requirements for disability support pension...[1]

    [1] Secretary’s Supplementary Submissions dated 12 June 2018, paragraph 9.

16. I am therefore satisfied the applicant’s circumstances of her residence in Germany and Australia meet the requirements of the Concluding Protocol, provided the applicant is ‘severely disabled’.

17. In accordance with the provisions of the Act and the International Agreements Act, the Tribunal must determine whether the applicant meets the following criteria to qualify for disability support pension during the claim period; she must:

    ·have a physical, intellectual and psychiatric impairment; and

    ·have 20 or more points in accordance with the Impairment Tables; and

    ·have a continuing inability to work; and

    ·be ‘severely disabled’.

    CONSIDERATION

    Does the applicant have a physical, intellectual and psychiatric impairment?

18. I am satisfied the medical evidence shows the applicant has a spinal condition, hypothyroidism, migraines, irritable bowel syndrome, cataracts, cognitive dysfunction, and depression and anxiety. I find the applicant met the requirement in paragraph 94(1)(a) of the Act during the claim period.

    Does the applicant have medical conditions that can be rated at 20 points or more under the Impairment Tables?

19. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination). The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

20. An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

21. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

22. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

23. It is relevant in this matter to make the following observations about the applicant and her evidence to the Tribunal. The applicant, both prior to and at the hearing, provided multiple medical reports to the Tribunal that are dated significant periods of time after the claim period I must consider, which was more than two years prior to the hearing dates. While I set out relevant information from these reports in my reasons below, the weight I place on this information is limited by the extensive lag of time between the claim period and the report dates, and the medical practitioners’ lack of explanation of the applicant’s medical conditions and functionality during the claim period. I also note that, while the applicant has previously practiced as a paediatrician and was assisted by an interpreter at the hearing, her oral evidence to the Tribunal about her medical conditions and her interpretation of information in medical reports was at times oblique and misleading. I accept the applicant suffers from multiple medical conditions and symptoms. Unfortunately, however, some of the evidence before me, both in terms of medical reports and the applicant’s oral evidence, was not consistent.

24. I now consider each of the applicant’s medical conditions in accordance with the Impairment Tables Determination.

    Spinal disorder

25. Dr Patrick Choueifati (general practitioner) provided medical reports and certificates that verify the applicant suffers from chronic back pain. A medical report for disability support pension completed by Dr Choueifati on 13 May 2015 noted the applicant was diagnosed with lumbar disc prolapse L4/L5, osteochondrosis, chronic lumbar disc pain with regular aggravation and sciatic pain. Dr Choueifati noted the applicant had symptoms of ‘back pain radiating down bilateral legs’, ‘pain on prolonged standing/sitting’ and ‘reduced tolerance to standing/sitting/bending squatting and lifting’; he recorded that she had been treated with physiotherapy and analgesia.[2]

    [2] Exhibit T, T27.

26. In an MRI of the applicant’s spine on 8 April 2016, Dr Lynette Masters (radiologist) reported:

    There is spondylotic change at C5/6 and C6/7…

    There is right-sided facet joint arthrosis at C3/4 and left-sided facet joint arthrosis at C4/5 but at neither level is there significant foraminal stenosis…

    There is mild mid thoracic spondylotic change…

    There is spondylotic change from L3/4 to L5/S1…

    At L3/4 there is a disc bulge and early posterior degenerative change but no central stenosis…

    At L4/5 there is a left-sided disc protrusion which is superimposed on underlying disc bulge and posterior degenerative change…[3]

    [3] Exhibit ST, ST7.

27. A Health Professional Advisory Unit (HPAU) assessment report of the medical evidence on 3 March 2016 opined that the applicant’s condition of lumbar disc prolapse, sciatica and osteochondrosis was fully diagnosed, fully treated and fully stabilised during the claim period. The HPAU assessed the applicant’s condition was mild and assigned 5 points under Table 4 – Spinal Function because she satisfied criteria 1(b). The HPAU report stated:

    A higher score in Table 4 is unable to be assigned as there is no evidence [the applicant] is unable to sustain overhead activities, has difficulty moving her head to look in all directions, is unable to bend forward pickup light object at knee height, or needs the assistance from another person to get up out of a chair. [The applicant] self-reported that she lives alone independently, does her own shopping, can carry light objects and do her own laundry.[4]

    [4] Exhibit T, T58 page 257.

28. The HPAU report further noted that the applicant’s spinal condition and the sciatic referral of the low back pain causes her moderate lower limb functional impairment, and assigned the applicant 10 points under Table 3 – Lower Limb Function as she satisfied criteria 1(a), 2 and 3(b).

29. Dr Vikram Cleophas (general practitioner) provided a report on 13 December 2017, almost 20 months after the claim period. Dr Cleophas noted the applicant has ‘permanent, severe disabling lumbar disc prolapse L4-5 Discopathy’ and has suffered from ‘debilitating pain and regular aggravation to sciatic pain since 1982’.[5] He observed the applicant’s impairment reduced her ability for prolonged standing, twisting of back, sitting and lying, and assessed her at 20 points in accordance with Table 4 – Spinal Condition of the Impairment Tables. Dr Cleophas further noted the applicant has cervical spondylosis and significant foraminal stenosis at C5-6 and C6-7, right and left sided; she is unable to turn her head upwards, undertake overhead work, has severe restricted neck movements, and uses a walking stick.

    [5] Exhibit ST, ST27 page 472.

30. At the Tribunal hearing, the applicant gave evidence that she continues to live alone and she receives little or no assistance from other people. She uses a cane to assist her to walk to her local shops (which she said is approximately three minutes away) to attend doctor’s appointments and shop for light food items. She repeatedly said that her condition is continuing to deteriorate.

31. The information in Dr Cleophas’ report, almost 20 months after the claim period, and the applicant’s evidence to the Tribunal indicate the applicant’s spinal and cervical condition has deteriorated since the claim period. However, I place limited weight on Dr Cleophas’ assessment of the applicant’s functionality as this was undertaken on 13 December 2017, almost two years after the applicant lodged her claim for disability support pension.

32. Based on the medical evidence, I find the applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have reference to Table 4 – Spinal Function and am satisfied that during the claim period, this condition had a mild functional impact on activities involving the applicant’s spinal function and assign 5 points. I also find this condition had a moderate functional impairment on the applicant’s lower limbs during the claim period and assign 10 points in accordance with Table 3 – Lower Limb Function.

    Hypothyroidism

33. The following medical reports discuss the applicant’s hypothyroidism and treatment:

    ·Dr Malgorzata Brzozowska (consultant endocrinologist) provided reports on 15 October 2008, 6 September 2014 and 21 May 2016. On 15 October 2008, Dr Brzozowska stated the applicant is ‘thyrotoxic because of previous excessive thyroxine replacement’.[6] On 6 September 2014, Dr Brzozowska recorded the applicant had ‘self-increased her Oroxine dose in spite of being euthyroid as she wants to feel more energetic and to lose weight’.[7]

    ·Dr Mridula Lewis (consultant endocrinologist) reported on 30 July 2009 that the applicant has long-term hypothyroidism and symptoms of fatigue.

    ·Dr Jonathan Seeff (radiologist) reported on 11 February 2016 that an ultrasound of the applicant’s thyroid showed she has a small thyroid gland.

    ·Dr Christian Girgis (consultant endocrinologist) provided reports dated 2 March 2016 and 27 July 2016 verifying the applicant’s diagnosis of hypothyroidism and treatment of thyroxine.

    [6] Exhibit T, T7.

    [7] Exhibit T, T21 page 144.

34. Dr Girgis provided further reports after the claim period. On 4 January 2017, almost 12 months after the applicant lodged her claim for disability support pension, Dr Girgis observed the applicant’s thyroid and adrenal condition has:

    …impacted on her quality of life considerably such that she experiences muscle pains, lethargy and episodes of dizziness throughout the day. She is under active investigation for these symptoms and finds it very difficult to concentrate or attempt to work whilst suffering from these symptoms. She is receiving medical treatment, which may contribute to difficulty in concentration and the potential for side-effects. These problems have had a very significant adverse impact on [the applicant’s] quality of life.[8]

    [8] Exhibit ST, ST11.

35. Dr Girgis further reported on 23 February 2018, two years after the claim period, that the applicant has a long history of hypothyroidism that has been difficult to control, and her ongoing lethargy has resulted in physical and intellectual distress. While I accept Dr Girgis was treating the applicant during the claim period, his reports on 4 January 2017 and 23 February 2018 that describe the impact of hypothyroidism on the applicant’s functionality are significantly after the claim period and I therefore place limited weight on this information.

36. A HPAU assessment of the medical evidence was undertaken by Dr Catherine Moore (medical adviser), who provided a report on 31 January 2018. Dr Moore considered the applicant’s condition of hypothyroidism was fully diagnosed, fully treated and fully stabilised during the claim period; she noted that the relevant table for assessment is Table 1 – Functions requiring Physical Exertion and Stamina due to this condition causing the applicant’s fatigue. Dr Moore referred to Dr Girgis’ observation that the applicant is tired for several reasons including food intolerance and iron deficiency, and opined the applicant’s condition of hypothyroidism could be assigned a maximum of 5 impairment points under Table 1 as the ‘majority of people with hypothyroidism once stabilised on thyroxine medication do not experience any fatigue’.[9] Dr Moore further noted that the applicant ‘consistently would seem to have Thyroid Function test results showing she is taking too much thyroxine… [and it] is likely that she could be fatigued from this…’[10]

    [9] Exhibit ST, ST29 page 485.

    [10] Exhibit ST, ST29 page 485.

37. Dr Choueifati also reported on 13 May 2015 that the applicant had anxiety, depression and migraines secondary to her hypothyroid condition. At the Tribunal hearing, the applicant stated that she has suffered from migraines since she lived in Egypt. She contended that migraines related to her condition of hypothyroidism and she has been on Imigran therapy but her symptoms have not resolved. The applicant’s conditions of migraines, anxiety and depression are discussed further in relation to the applicant’s cognitive dysfunction and mental health.

38. Based on the medical evidence, I am satisfied the applicant’s condition of hypothyroidism was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with Table 1 – Functions requiring Physical Exertion and Stamina of the Impairment Tables Determination, I assign an impairment rating of 5 points for this condition. In assigning these points, I have weighed the medical evidence available during the claim period, particularly regarding the applicant’s compliance with thyroxine dosages recommended by her treating specialists, and the extent to which the applicant’s fatigue is affected by her other medical conditions.

    Irritable bowel syndrome

39. Dr Choueifati reported on 28 April 2015 that the applicant presented with symptoms of wind, bloating, diarrhoea, constipation and pain in her rectum following defecation, and diagnosed the applicant with irritable bowel syndrome.[11]

    [11] Exhibit T, T23.

1. The applicant underwent investigation at the gastroenterology clinic at the Sutherland Hospital on 31 August 2015 and was then referred for a gastroscopy and a colonoscopy. The colonoscopy report summary on 17 February 2016 noted:

   -    Non-thrombosed internal haemorrhoids found on perianal exam.

   -    Diverticulosis in entire examined colon.

   -    One 5 mm polyp in the caecum. Incomplete resection. Resected tissue not retrieved.

   -    Non-bleeding internal haemorrhoids. Banded.[12]

   [12] Exhibit T, T55 page 248.

2. In a telephone conversation with Centrelink on 23 February 2016, Dr Choueifati stated that the applicant has diverticulitis, irritable bowel syndrome and food intolerances; he noted she ‘does not have anaphylactic food allergy, but rather food intolerances’.[13]

   [13] Exhibit T, T56 page 251.

3. Ms Nella Mary Puz (dietician) reported on 7 June 2017, more than 15 months after the claim period, that the applicant:

   …has irritable bowel syndrome and chemical food intolerance. She has a limited diet as most foods cause symptoms that can lead to anaphylaxis reaction which involves swelling of the throat that can result in suffocation… [The applicant] also requires regular biochemical laboratory tests to monitor any nutrient deficiency such as iron, which has been an ongoing issue.[14]

   [14] Exhibit A12.

4. The Job Capacity Assessment (JCA) report dated 21 March 2016 considered this condition was fully diagnosed, but not fully treated or stabilised during the claim period because the applicant had recently consulted a gastroenterologist and was expected to benefit from further specialist investigations and treatment.

5. Based on the medical evidence, I am satisfied this condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. This is because there is minimal evidence the applicant received treatment and the condition was stabilised during the claim period. As this condition was not permanent during the claim period in accordance with the Impairment Tables Determination, I cannot assign an impairment rating for this condition.

   Cataracts

6. I have had regard to the following reports regarding the applicant’s vision:

   ·On 19 May 2015, Ms Bonnie Wong (optometrist) reported the applicant has early signs of cataract.

   ·On 23 November 2016, Dr Peter Cohen (ophthalmology surgeon) noted the applicant needs left cataract surgery; the left cataract is mild.

   ·On 19 December 2016, Ms Cafa Huynh (optometrist) stated the applicant’s vision has deteriorated in her left eye and she may need cataract surgery in the next few years.

7. The applicant told the Tribunal she requires contact lenses and spectacles to assist her vision. There is no medical evidence before the Tribunal that shows this causes the applicant any functional impact in accordance with Table 12 – Visual Function. I find the evidence shows that, while the applicant has cataracts in her left eye, this condition has not been treated and therefore cannot be considered as permanent in accordance with the Impairment Tables Determination. I am satisfied that no points can be assigned in relation to this condition.

   Cognitive dysfunction

8. At the Tribunal hearing, the applicant contended that an MRI of her brain and neurology investigations showed she had cognitive decline/dysfunction.

9. An MRI of the applicant’s brain on 28 July 2015 reported by Dr Masters (radiologist) found:

   There is mild cerebellar volume loss; there is no intrinsic cerebellar signal abnormality.

   The brainstem is within normal limits…

   There is some prominence of the supratentorial ventricles and sulci; the cervicomedullary junction is normal in appearance.[15]

   [15] Exhibit T, T37.

10. On 22 December 2015, Dr Choueifati referred the applicant to the Department of Neurology at St George Hospital for an opinion and management of headaches. Dr Sully Fuentes (neurologist) reported on 3 March 2016 that the applicant was investigated for cognitive decline, ongoing unsteadiness and long-standing headaches. Dr Fuentes’ report provided no diagnosis but noted that the applicant ‘performed a mini-mental examination today that is 30/30 which is reassuring’.[16]

    [16] Exhibit A7.

11. Dr Cleophas reported on 6 November 2017, more than 20 months after the claim period, that neurological opinion and management has failed to improve the applicant’s functional/cognitive ability. He noted that the applicant has ‘[h]eadaches, memory loss, confusion, decreased concentration [and] dizziness, all resulting in decreased cognitive performance’.[17]

    [17] Exhibit A10.

12. There is no neurological/specialist evidence before the Tribunal that supports Dr Cleophas’ diagnosis that the applicant has cognitive dysfunction. I therefore cannot be satisfied that the applicant’s condition of cognitive dysfunction was fully diagnosed, fully treated and fully stabilised during the relevant claim period, and I cannot assign points for this condition in accordance with the Impairment Tables Determination.

    Mental health

13. Dr Choueifati reported on 13 May 2015 that the applicant suffers anxiety and depression secondary to hypothyroid condition. In a telephone discussion with Centrelink staff on 23 February 2016, Dr Choueifati stated the applicant ‘has anxiety and depression… [but] is reluctant, and possibly paranoid about having her mental health further investigated…’[18]

    [18] Exhibit T, T56 page 251.

14. A report by Ms Karen Towers (Pure Insights Counselling Service) on 5 November 2015 identified the applicant’s ‘psychological concerns involve social anxiety and PTSD [post-traumatic stress disorder], resulting in major depression’.[19] There is no information in this report about how the applicant was diagnosed or current/future treatment.

    [19] Exhibit T, T46.

15. The Introduction to Table 5 – Mental Health Function states that the diagnosis of a mental health condition:

    …must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

16. Based on the evidence before the Tribunal, I am not satisfied the applicant has been diagnosed by either a psychiatrist or a clinical psychologist. I am therefore unable to find the applicant’s condition was permanent in accordance with the Impairment Tables Determination and I am unable to assign points for this condition.

    Other conditions

17. At the Tribunal hearing, the applicant provided submissions that she suffers from regular urinary tract infections, a hernia, ovarian cyst and insulin resistance. She directed the Tribunal to a CT of her abdomen and pelvis undertaken on 29 March 2016. I note the findings of this imaging reported by Dr Guy O’Connell (radiologist) are:

    The liver, gallbladder, biliary tree, pancreas, portal vein and spleen appear normal. No urinary tract abnormality. The uterus appears normal. No ovarian lesion. No lymphadenopathy, free gas or fluid in the abdomen or pelvis…

    Comment:

    1.    There is a 30mm left adrenal lesion, which has not changed significantly since 11/02/16.

    2.    Persistent large sliding hiatus hernia.[20]

    [20] Exhibit T, T62.

18. While I note the presence of a hernia, there is no information before the Tribunal regarding possible treatment and whether this condition has stabilised. There is no evidence of any other conditions affecting the applicant during the claim period.

19. In conclusion, I find the applicant’s medical conditions result in a total impairment rating of 20 points and she met the requirement in paragraph 94(1)(b) of the Act during the claim period.

    Does the applicant have a continuing inability to work?

20. Pursuant to paragraph 94(1)(c) of the Act, the applicant must have a continuing inability to work because of her impairments.

21. Pursuant to subsection 94(2) of the Act, a person has a ‘continuing inability to work because of an impairment’ where:

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

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

    (b) in all cases—either:

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

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

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

23. As the Tribunal has found the applicant does not suffer from a severe impairment because she does not have an impairment rating of at least 20 points from one of the Impairment Tables, the Act requires that she has participated in a program of support.

24. The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Active Participation Determination). To meet the requirements for active participation, the applicant must have participated in a program of support for at least 18 months in the three years before she lodged her claim for disability support pension on 18 January 2016, and her impairment must prevent her from improving her capacity to find, gain or remain in employment through continued participation in the program.

25. Centrelink records show that the applicant commenced a program of support with Mission Providence on 15 October 2015[21] and completed 95 days of a program of support in the period 18 January 2013 to 18 January 2016.[22]

    [21] Exhibit R1.

    [22] Exhibit ST, ST20.

26. At the hearing on 3 May 2018, the applicant provided extensive oral submissions to the Tribunal that she had completed her program of support requirements as she had attended CatholicCare since 2008.

27. The Secretary wrote to CatholicCare (now Direct Employment) on 7 May 2018 requesting information about the applicant’s attendance at CatholicCare pursuant to section 192 of the Social Security (Administration) Act 1999 (Cth). Documents subsequently filed with the Tribunal show the applicant attended CatholicCare from 24 September 2008; the date of the final signed document is 31 May 2011.[23] I am satisfied the evidence does not show the applicant attended CatholicCare to participate in a program of support in the period from 18 January 2013 to 18 January 2016. Based on the evidence, I find the applicant did not complete the requirements of a program of support.

    [23] Exhibit R2.

28. Subsection 7(5) of the Active Participation Determination provides that the requirements of a program of support are satisfied if, at the end of the claim period, the applicant was participating in a program of support and was prevented, solely because of her impairment, to improve her capacity to prepare for, find or maintain work through continued participation in the program.

29. There is no evidence before the Tribunal that the applicant was unable to complete a program of support by the end of the claim period and therefore, I find that subsection 7(5) of the Active Participation Determination is not relevant in this matter.

30. The next issue I must consider is whether the applicant’s impairment is of itself sufficient to prevent her from doing any work independently of a program of support within the next two years; and either her impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years, or such activity is unlikely to enable her to do any work independently of a program of support within the next two years.

31. The JCA report dated 21 March 2016 stated that the applicant had a baseline work capacity of 0-7 hours per week and a capacity for light less skilled work within two years with intervention of 15-22 hours per week. I am satisfied that this JCA report and assessment, undertaken more than two years before this decision, is relevant to the applicant’s claim for disability support pension on 18 January 2018 and showed the applicant may be able to undertake training or work within the next two years as defined by the Act with targeted and supported intervention specifically aimed at accommodating her impairments. While I accept the medical evidence, particularly reports from Dr Cleophas and Dr Girgis dated in 2017 and 2018, show the applicant’s impairments deteriorated after the claim period I am unable to place weight on these reports as they do not relate to the claim period.

32. For this reason, I cannot conclude the applicant had a continuing inability to work at the date of her claim and therefore does not satisfy the requirements in paragraph 94(1)(c) of the Act.

    CONCLUSION

33. As I find that the applicant did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether she was ‘severely disabled’.

    DECISION

34. The decision under review is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 22 June 2018

Dates of hearing:	3 & 25 May 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Mahony & Ms B Salaji, Department of Human Services