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

[2024] AATA 452

Kamal and Secretary, Department of Social Services (Social services second review) [2024] AATA 452 (19 March 2024)

Division:GENERAL DIVISION

File Number:          2023/2283

Re:Jawad Kamal

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:19 March 2024

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS

SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4

CASES
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth)

Minister for Social Services (Cth), Social Security (Active Participation for Disability Support Pension) Determination 2014
Department of Social Services (Cth), Guides to Social Policy Law: Social Security Guide (Version 1.315, released 5 February 2024) < align="left">REASONS FOR DECISION

Senior Member A Nikolic AM CSC

19 March 2024

INTRODUCTION

1. The Applicant, Mr Jawad Kamal, seeks review of the decision to refuse his application for Disability Support Pension (“DSP”).

2. The hearing was conducted by telephone on 13 March 2024. Mr Kamal was self-represented and gave evidence under affirmation. The Respondent was represented by Mr Matt Gauci, a solicitor from Hunt & Hunt Lawyers. For the following reasons, the Tribunal affirms the reviewable decision.     

   BACKGROUND

3. The Applicant is 30 years old and stated in oral testimony he was born in Pakistan. This conflicts with references in evidence, including in his DSP application, that he was born in Afghanistan.[1]

   [1] Exhibit R1, 78-79, 134.

4. The Applicant commenced living in Australia in January 2009.[2] He recalled undertaking some English studies and working intermittently, including from September 2019 in a factory for approximately five or six months.[3] He claims to have injured his back while working in the factory.[4] He contends this injury has worsened over time, has a major impairment effect, and significantly impacts his ability to find other work.

   [2] Ibid 80.

   [3] Ibid 25, 79.

   [4] Ibid 25, 45, 58.

5. The Applicant lodged a DSP claim on 15 December 2021,[5] which was rejected by Centrelink on 22 February 2022.[6] On 23 November 2022,[7] an Authorised Review Officer affirmed this decision. On 28 February 2023, the Applicant’s appeal to the Social Services and Child Support Division of this Tribunal (“AAT1”) was unsuccessful.[8] On 6 April 2023, he lodged a further appeal with the General Division of this Tribunal.[9]

   [5] Ibid 77-90.

   [6] Ibid 209-210.

   [7] Ibid 111-114.

   [8] Ibid 7-11.

   [9] Ibid 1-5.

   LEGISLATIVE FRAMEWORK

6. Qualifying requirements for DSP are set out at s 94(1) of the Social Security Act 1991 (Cth) (“the Act”). It must be established that:

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies:

   (i) the person has a continuing inability to work;

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

7. In relation to s 94(1)(c)(i) of the Act, a person has a ‘continuing inability to work’ if:

   (aa) …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.

8. Under s 94(3B) of the Act, participation in a program of support (“POS”) is not required if the person has a severe impairment of 20 points or more under a single impairment table. Where a person’s impairment is not a severe impairment, they must have actively participated in a POS within the meaning of s 94(3C) of the Act. The term ‘actively participated’ means satisfying the requirements in a legislative instrument made by the Minister, titled Social Security (Active Participation for Disability Support Pension) Determination 2014.[10] Under ss 5 and 7 of that instrument, active participation means partaking in a POS, which is wholly or partly funded by the Commonwealth, for a period of at least 18 months during the 36 months prior to the date of claim.

   [10] Minister of Social Services (Cth), Social Security (Active Participation for Disability Support Pension) Determination 2014.

   The Guide and Impairment Tables

9. The Respondent refers to ‘relevant policy’[11] that is contained in the Guide to Social Security Law (“the Guide”).[12] Although such policy is not binding on the Tribunal,[13] decision-makers undertaking merits review should generally apply it unless it is unlawful or ‘there are cogent reasons to the contrary.’[14] The Tribunal is mindful, however, of the need to consider the exercise of delegated powers based on the Act and the specific circumstances of each case. Having considered those aspects of the Guide potentially relevant in this matter, the Tribunal sees no cogent reason to disregard this information.

   [11] Respondent’s Statement of Facts, Issues, and Contentions dated 22 January 2024, 2 [12].

   [12] Department of Social Services (Cth), Guides to Social Policy Law: Social Security Guide (Version 1.315, released 5 February 2024), <

   [13] BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, [11] (Mortimer CJ).

   [14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

10. The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) (“the Determination”). They assign ratings reflecting the level of functional impact a condition has on an applicant. Clause 7(2) of the Determination emphasises the function-based rather than diagnosis-based character of the Tables. They describe functional activities, abilities, symptoms, and limitations, thereby enabling the assignment of ratings to determine the level of functional impact of an impairment. Clause 8(3) of the Determination states that only conditions diagnosed by an appropriately qualified medical practitioner, that are reasonably treated and stabilised, and are more likely than not to persist for more than two years, can be assigned points under the Impairment Tables.

11. The introduction to each Impairment Table states that ‘Self-report of symptoms must be supported by corroborating medical evidence’. Clause 8(4) of the Determination states:

    ‘In determining whether a condition has been diagnosed by an appropriately qualified medical practitioner for the purposes of paragraph 8(3)(a), the following is to be considered:

    (a) whether there is corroborating evidence of the condition, as set out in the requirements of each Table’.

12. Clause 8(5) of the Impairment Tables states:

    ‘In determining whether a condition has been reasonably treated for the purposes of paragraph 8(3)(b), the following is to be considered:

    (a) what treatment or rehabilitation has occurred in relation to the condition; and

    (b) whether treatment is continuing or is planned in the next 2 years and is likely to result in significant functional improvement’.

13. Clause 8(6) of the Impairment Tables states:

    ‘For the purposes of paragraph 8(3)(c) a condition is stabilised if either:

    (a) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or

    (b)       The person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement is not expected, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment’.

14. Clause 8(7) of the Impairment Tables refers to ‘reasonable treatment’ as treatment that:

    (a)     is available at a location reasonably accessible to the person; and

    (b)     is at a reasonable cost;

    (c)     can reliably be expected to result in a significant functional improvement;

    (d)     is regularly undertaken or performed; and

    (e)     has a high success rate; and

    (f)     carries a low risk to the person.

15. Clause 13(6) of the Impairment Tables states that the presence of a diagnosed condition alone does not mean an impairment rating can be assigned. That is because a person may have a condition not resulting in any functional impact because of appropriate treatment.

    EVIDENCE

16. The Tribunal took into evidence:

    (a)Documents lodged by the Respondent numbering 215 pages;[15]

    (b)Record relating to the Applicant’s participation in the Commonwealth’s Supported Wage System Program;[16]

    (c)MRI of the Applicant’s lumbar spine dated 3 October 2023, reported on by Radiologist Dr Ivor Berman;[17]

    (d)Three-page letter of Dr Kilner Brasier dated 7 September 2023 regarding the Applicant’s back pain;[18]

    (e)Two-page letter of Dr Ali Kian Kehr dated 22 August 2023 regarding the Applicant’s back pain;[19] and

    (f)Two hospital discharge summaries as follows:[20]

    (i)From Dandenong Hospital Emergency Department date 2 January 2017 regarding the Applicant’s right ankle injury; and

    (ii)From Southern Health dated 6 December 2010 regarding soft tissue repair of a laceration to the Applicant’s right forearm.

    [15] Exhibit R1.

    [16] Exhibit R2.

    [17] Exhibit A1.

    [18] Exhibit A2.

    [19] Exhibit A3.

    [20] Exhibit A4.

    Key Issues

17. The Tribunal must decide:

    (a)The relevant period for the Applicant’s claim;

    (b)Whether the Applicant had a physical, intellectual, or psychiatric impairment(s) as defined under the Act during the relevant period;

    (c)If yes, were these capable of being assigned 20 points or more under the Impairment Tables during the relevant period;

    (d)If the Applicant’s impairments are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment); and

    (e)If the Applicant did not have a severe impairment during the relevant period, but his impairments nevertheless attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS.

    WHAT IS THE RELEVANT PERIOD FOR THE APPLICANT’S CLAIM?

18. The Applicant’s DSP application was lodged on 15 December 2021.[21] In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), he had to satisfy the DSP criteria within a 13-week period from the date of claim lodgement, which ended on 16 March 2022 (“the relevant period”).

    [21] Exhibit R1, 77-90.

19. During the hearing the Applicant referred to conditions beyond those referred to in his DSP application. This includes an ankle injury sustained in 2017 and a more recent right shoulder problem. In assessing whether the Applicant satisfies the requirements at s 94 of the Act, however, evidence regarding functional impact after the relevant period can only be considered if it casts light on functional impact during the relevant period.[22]

    DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE RELEVANT PERIOD?

    [22] Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, [27]-[28], citing Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 [31].

20. It is not contested the Applicant had a back injury, right ankle injury, and suffered impairments during the relevant period in satisfaction of s 94(1)(a) of the Act.

    WERE THE APPLICANT’S IMPAIRMENTS CAPABLE OF BEING ASSIGNED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES DURING THE RELEVANT PERIOD?

21. When submitting his DSP application, the Applicant only referred to ‘L4/5 Central disc herniation’.[23] His oral evidence is summarised as follows:

    [23] Exhibit R1, 82.

    (a)He sustained a back injury while working in a factory in 2019, which has persisted with varying intensity since. The Applicant said he is able to ‘work but with limits’. He referred to starting a new job ‘a few months ago’, but claims he lost it ‘because of back pain’. No corroborating evidence of this was provided. The Applicant said he has struggled to find a part time job commensurate with his ‘light lifting’ limitations.  

    (b)The Applicant agreed that he refused to proceed with ‘medial branch blocks’ recommended by Dr Kaur in July 2020 to alleviate his back pain, because he ‘can’t do injections’. He was unsure if he undertook a three-month monitored hydrotherapy program recommended by Dr Boffa in December 2021, but agreed he was yet to see a pain specialist as recommended by an occupational physician. He recalled seeing orthopaedic surgeon Dr Phillip Sheard ‘about a month ago’, who also recommended he see a pain specialist.

    (c)The Applicant said he moved house on Saturday 9 March 2024 and ‘didn’t have much pain’ that day while ‘carrying bags and moving stuff’. He said ‘the back pain started’ on Sunday 10 March 2024, which required him to take painkillers.

    (d)The Applicant said he has held a driver’s licence for a long time, used to own a Ford XR6, which he could refuel himself, but has since sold. He catches taxis and public transport to get to appointments. He can sit on the train for 15 to 20 minutes if the seats are cushioned and travels on city trams where he prefers to stand.

    (e)The Applicant said he can walk for 10 minutes or more but takes breaks if his back is painful. He first stated that he has ‘no issue’ standing, then added that his ‘lower back starts hurting’ if he stands ‘for too long’. When asked if the pain was only in his lower back, he responded: ‘yes’.

    (f)The Applicant said he recently started experiencing problems with his knees and was unsure if this was linked to his back problem. He does not use a walking stick or other mobility aids, can go shopping, but is unable to carry ‘heavy shopping bags over 10 kg’. He can access kitchen items overhead and has no difficulty placing clothes on a clothesline at face level. The Applicant said he can shower and dress himself but his ‘back hurts a little bit’ when he washes his legs. He can get in and out of a chair and pick up items from a coffee table. If items are on the ground and he picks them up ‘a few times, it affects [him]’.        

    (g)During Mr Gauci’s cross-examination, the Applicant agreed that his ankle injury was sustained on 2 January 2017 while playing with his brother. He recalled rolling his ankle, having a fracture diagnosed, being in a cast, and undertaking some physiotherapy. He has not sought medical assistance for his right ankle since 2017 and notices discomfort mainly when crossing his legs.

    (h)During oral testimony the Applicant referred to numbness in his right arm, but no expert corroboration was provided for any arm condition.

    (i)When asked by about participation in a Commonwealth supported wage program, or Program of Support, the Applicant said he does not know what these are.

22. Attention now turns to consideration of the Applicant’s claimed condition.

    Back condition

23. The Applicant said he sustained an injury to his back while working in a powder coating factory on 24 September 2019.[24] He received workers’ compensation from 15 October 2019 until 1 August 2020.[25] Expert assessments of his back pain are summarised as follows:

    [24] Ibid 35.

    [25] Ibid 50.

    (a)A report from consultant orthopaedic surgeon, Associate Professor Bruce Love on 21 November 2019, is the most proximate to the date the Applicant claimed to have sustained his back injury.[26] Professor Love diagnosed a ‘musculoligamentous soft tissue injury of the lumbar spine’.[27] He also noted the Applicant had experienced substantial improvement, would benefit from physiotherapy and hydrotherapy, could undertake light duties, and undertake a graduated return to work:[28]

    [26] Ibid 23-28.

    [27] Ibid 26.

    [28] Ibid 26-27.

    ‘With appropriate care he ought to be able to return to work in a graduated fashion where he is not expected to engage in the heaviest of lifting tasks…The worker’s current presenting symptoms are those of mild low back pain which is significantly less than the symptoms when they were at their maximum in late September 2019…His treatment to date has been by way of APC medication, principally including Panadol. There has been no physical therapy offered…I cannot give a reliable expectation of the duration of his incapacity but there is a reasonable probability that over a period of four to six weeks the symptoms should subside significantly…The treatment that I would recommend is an active physiotherapy program associated with pool therapy and the medicine that has been prescribed for pain relief should continue’.

    (b)A report from consultant occupational physician Dr D. Barton on 1 May 2020 is summarised as follows:[29]

    [29] Ibid 45-49.

    ‘The worker describes a situation that would be best diagnosed as a mechanical lower back problem with no red flags. Outside the compensation arena such a problem would not be expected to cause any particular disability or protracted symptoms.

    …To suggest that the minor disc problem is clinically relevant I believe is medically naive. He has no clinical evidence of radiculopathy either on reported symptoms or on clinical examination. Such disc protrusions are considered to be quite common in asymptomatic people.

    Unfortunately with a very limited occupational history, no particular job to go to, inappropriate medical advice to avoid any activity that hurts, it is not surprising that he has gone down this particular path.

    …

    I would accept initially he may have had a mild mechanical lower back problem but I believe that he has physically recovered from this…I believe his condition would be considered to have resolved based on the absence of any clinical evidence with an ongoing problem and the expected normal history of such a condition…I believe his ongoing problems are more to do with his illness belief and the over medicalisation of his problem…I would see this initially as a new minor injury…From a physical point of view I see no reason why he can't undertake his normal duties. In the past I have visited a number of such factories and are fully aware of the duties involved…I do not believe that there is any ongoing incapacity…He has a current work capacity…I believe he is fit and capable of normal work as well as other similar factory jobs’.

    (c)In a letter dated 14 July 2020, Dr Gurbir Kaur sought approval from the Applicant’s workers’ compensation insurer to perform ‘bilateral L3/4/5 medial branch blocks’ as a day procedure in attempting to address the Applicant’s back pain.[30] Dr Kaur foreshadowed that ‘[i]f there is a positive response to diagnostic blocks’, then she would make a further ‘request for radiofrequency denervation of these nerves’.[31]

    [30] Ibid 51-52.

    [31] Ibid 52.

    (d)An MRI of the Applicant’s lumbar spine was undertaken on 10 February 2021.[32] Radiologist Dr Maurice Molan reported that the Applicant had:

    [32] Ibid 60.

    ‘…[A] moderate disc bulge L3-L4 with mild loss of disc height and a small partial thickness annulus tear. No focal nerve root compression or canal stenosis however. Disc desiccation L4-5. No focal nerve root compression or central canal stenosis however’.

    (e)In a letter dated 4 December 2021, Occupational and environmental physician Dr Umberto Boffa stated that the Applicant ‘developed low back and bilateral gluteal pain in the course of his [factory] duties on 24/10/2019’.[33] Dr Boffa concluded that the Applicant has ‘discogenic low back pain without radiculopathy’ and had a work capacity in suitably modified duties. Dr Boffa recommended a three-month ‘monitored hydrotherapy program complemented by a self-managed graduated core-strengthening walking program…’.[34]

    [33] Ibid 75.

    [34] Ibid 76.

    (f)A letter from general practitioner Dr Peter Li dated 25 March 2022 stated the Applicant had not consulted a specialist as recommended because he ‘could not afford the fees’ and that his ‘lower back pain has been fluctuating’.[35] Dr Li stated:[36]

    [35] Ibid 101.

    [36] Ibid 102.

    ‘[p]hysiotherapy and exercise could help his recovery. He should be able to do modified duties with lifting <8kg if it is available. His lower back pain has not improved since the injury…He could drive no more than 20 minutes. He is unable to do garden work and cleaning at home…’.

    (g)A letter from physiotherapist Ashley Haleel dated 23 December 2022 recommended that the Applicant ‘sees a pain specialist to address his chronic pain’.[37]

    [37] Ibid 118.

    (h)A letter from rehabilitation medicine and neurophysiology physician Dr Ali Kian Mehr dated 22 August 2023, stated in part:[38]

    [38] Exhibit A3.

    ‘…I think he can have a trial of return to work not more than 12 hours per week, and therefore, it can be started at three hours per day for three days, but alternate days, and then after trial and settling with this level of work, it can be built up according to tolerance, but I do not believe he can work more than 12 hours per week.

    I think he needs to be reviewed by one of the spinal surgeons and one occupational physician as well and for this reason, I will approach insurance for approval.

    I will review him after review by the above-mentioned specialists.’

    (i)A letter from occupational and environmental medicine physician, Dr Kilner Brasier, dated 7 September 2023, stated in part:[39]

    Opinion and Plan of Management:

    In my opinion, Mr Kamal has no current work capacity for any full-time duties. His best option would be to look for sedentary part-time work. His attempts at a return to work and finding other employment have been unsuccessful.

    I talked with him about potential future employment, he is not sure of what he would prefer to do but certainly in my opinion any work that he is to do in the future would be sedentary work. He certainly has no work capacity for factory process work for which he is primarily qualified.

    The plan would be that he would retrain to gain additional skills, knowledge and experience for more sedentary work. I would at this stage restrict him to part-time work five hours three nonconsecutive days per week to a maximum of 15 hours with appropriate restrictions.

    I have of course advised him that I would be happy to review any job descriptions and provide suitable documentary support for him in future. I have arranged to review him after he sees Dr Philip Sheard, Orthopaedic Surgeon.

    (j)An MRI of the Applicant’s lumbar spine was undertaken on 3 October 2023. Radiologist Dr Ivor Berman reported:[40] ‘No prominent facet joint degenerative change. No pars defect. Sacroiliac joints unremarkable. Conclusion: No neural compromise demonstrated. Small disc protrusions and annular tears at L3/4 and L4/5’.

    (k)A letter from Dr Li dated 5 October 2023 stated that the Applicant had been ‘on analgesic Panadeine forte and undertaking gym work and swimming. Dr Li opined [41]the Applicant was ‘fit to do modified duties without lifting >8kg and without frequent bending up to 15 hours a week although he is unfit to do his preinjury duties’.

    [39] Exhibit A2.

    [40] Exhibit A1.

    [41] Exhibit R1, 63.

    Consideration of back condition

1. The Applicant’s back condition was diagnosed during the qualification period but was not reasonably treated or stabilised. This is because he has not undertaken recommended specialist reviews and treatments. For example, he is yet to consult with a pain specialist or undertake the diagnostic nerve blocks recommended by Dr Kaur. There is no corroboration that he has completed recommended physical therapies, including a three-month monitored hydrotherapy program recommended by Dr Boffa. In a Job Capacity Assessment Report dated 31 January 2022, he is noted to have stated that he only ‘did a couple of sessions of physiotherapy and found that did not help at all [and] did not commence any hydrotherapy due to the pandemic lockdowns’.[42] The Applicant has therefore not undertaken reasonable treatment, which may have reduced his back pain and led to functional improvement. No points can therefore be awarded for this condition under Impairment Table 4.

   [42] Exhibit R2, 96.

2. Even if the Tribunal were to accept that the Applicant’s back condition is reasonably treated and stabilised, which it does not, the evidence does not establish even a mild functional impairment under the impairment tables. This is apparent from his own evidence, considered in conjunction with the expert evidence and job capacity assessment report.

   Right ankle condition

3. There is no evidence of further medical review or diagnosis of the Applicant’s right ankle condition since he fractured it in 2017.[43] The medical records from Monash Hospital refer to this injury as a spiral fracture ‘without significant displacement and intact mortice’. A plaster cast was applied for approximately two months for what was considered a temporary condition requiring physiotherapy.[44] There is no evidence the Applicant’s recovery was complicated or medical evidence about any continuing right ankle symptoms. The Tribunal is not satisfied any persisting right ankle problems were fully treated or stabilised during the relevant period. No points can therefore be awarded for this condition under the Impairment Tables. Even if the Tribunal were to accept the Applicant’s ankle injury was fully treated and stabilised, which it does not, there is no persuasive basis for any impairment effects.

   [43] Exhibit A4.

   [44] Exhibit R1, 119, 121.

   Knee and right arm condition

4. The Applicant referred to problems with his knees and right shoulder during oral testimony. These claims were only faintly advanced and unsupported by expert evidence. For example, the Applicant opined that his knee problems may be linked to his back injury and claimed that numbness in his right arm causes him to lose strength in two of his fingers. The Tribunal does not accept these conditions have been diagnosed, treated, or stabilised. They therefore attract no points under the impairment tables.

   IF THE APPLICANT’S IMPAIRMENT(S) IS/ARE OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES, ARE 20 POINTS ASSIGNED UNDER A SINGLE IMPAIRMENT TABLE (SEVERE IMPAIRMENT)?

5. None of the Applicant’s claimed conditions are capable of being assigned 20 points or more under a single impairment table. It therefore follows he does not have a severe impairment within the meaning of section 94(3B) of the Act.

   IF THE APPLICANT DID NOT HAVE A SEVERE IMPAIRMENT DURING THE RELEVANT PERIOD, BUT HIS IMPAIRMENT(S) NEVERTHELESS ATTRACT A RATING OF 20 POINTS OR MORE, DOES HE HAVE A CONTINUING INABILITY TO WORK OR HAS HE PARTICIPATED IN A POS?

6. The Applicant’s impairments have not been assigned any points under the impairment tables. This means he does not qualify for DSP under section 94(1)(b) of the Act. It is therefore unnecessary to consider whether he has a continuing inability to work or has actively participated in a POS in the three years prior to lodging his DSP claim as required by section 94(1)(c) of the Act. The Tribunal does so for completeness.

7. The Applicant referred in oral testimony to recently having a job, which he claims to have lost because of back pain. He has previously participated in a POS for 281 days,[45] which is well below the required 18 months of participation in the three years prior to lodging his DSP application.[46] He is not covered by any of the permissible exceptions, such as suffering a severe impairment. As such, he does not have a continuing inability to work. The Applicant also has no events recorded for participation in the Supported Wage System Program.[47]

   [45] Ibid 125.

   [46] Minister of Social Services (n 12) ss 5-7.

   [47] Exhibit R2.

   CONCLUSION

8. The Applicant did not satisfy ss 94(1)(b) and 94(1)(c) of the Act during the relevant period.

   DECISION

9. The decision under review is affirmed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 19 March 2024

Date of hearing:	13 March 2024
Advocate for the Applicant:	Applicant via telephone
Advocate for the Respondent:	Mr Matt Gauci
Solicitor for the Respondent	Hunt & Hunt Lawyers