Kara and Secretary, Department of Social Services (Social services second review) - [2021] AATA 699

Kara and Secretary, Department of Social Services (Social services second review) [2021] AATA 699 (30 March 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5209
Re:Emine Kara
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Puplick
Date:30 March 2021
Place:Sydney

The Tribunal decides that the decision under review is affirmed.
.................... [sgd]....................................................
Senior Member Chris Puplick, AM
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation of disability support pension – re-application for disability support pension – whether the Applicant qualified for disability support pension – whether the Applicant had a physical, intellectual or psychiatric impairment under s 94(1)(a) of the Social Security Act 1991 (Cth) – whether the Applicant’s impairment was of 20 points or more under s 94(1)(b) of the Social Security Act 1991 (Cth) – whether the Applicant participated in a program of support under s 94(1)(c)(ii) of the Social Security Act 1991 (Cth) – whether the Applicant qualified for an exemption from program of support requirements – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Emine Kara and Secretary, Department of Social Services [2020] AATA 393

Nash and department of Family and Community Services [2003] AATA 378
Rekic and Secretary, Department of Social Services [2015] AATA 369
Budisa and Secretary, Department of Social Services [2014] AATA 79
Karaman and Secretary, Department of Social Services [2016] AATA 597
Govedarica and Secretary, Department of Social Services [2016] AATA 1068
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables)
REASONS FOR DECISION
Senior Member Puplick
30 March 2021

This application for review is a continuation of a matter which has been before this Tribunal on a previous occasion.[1]
[1] Emine Kara and Secretary, Department of Social Services [2020] AATA 393.
In the immediate, it is an appeal against a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 3 August 2020 to deny payment of the Disability Support Pension (DSP) to Mrs Emine Kara (the Applicant).
That appeal was lodged with the Tribunal on 27 August 2020 and heard on 8 March 2021. Due to COVID-19 protocols the hearing was conducted on the Microsoft Teams platform. The Applicant was not, on this occasion, required to give evidence herself, but was most competently represented by her daughter as her advocate.
The relevant legislation to be considered in this matter is the Social Security Act 1991 (Cth) (the Act).
Background
On 28 January 1993, the Applicant was first granted the DSP on the basis that she was eligible, having been assessed as having 20 points on the (then) impairment tables.
Between 1993 and 1 November 2016, the Applicant had her DSP suspended on a number of occasions as she was overseas for periods longer than those provided for under the portability provisions of the Act.
On 2 August 2016, the Applicant’s DSP was suspended, and was subsequently cancelled on 1 November 2016, at which time the Applicant was overseas.[2]
[2] Section 37 Tribunal documents (T docs) at 368 and 427.
The Applicant returned to Australia on 2 December 2016, and on 30 December 2016 lodged a new application for the DSP. That application was refused on the basis that the Applicant did not have a rating of 20 points on the new impairment tables.
That decision was affirmed by an Authorised Review Officer (ARO) of the Department (the Respondent) and by the AAT1.
On 5 March 2020, the AAT1 decision was set aside by this Tribunal (AAT2) (constituted by this Senior Member) on the basis that the Applicant did rate an assessment of 20 points on the impairment tables. The AAT2 found that this 20-point score was arrived at cumulatively, and that no singular impairment of the Applicant rated at 20 points (“severe impairment”).
As a result of the AAT2 decision, the application was remitted to the Respondent for reconsideration in accordance with the AAT2 findings.
The Respondent thereupon considered the application and refused it on the basis that the Applicant, although meeting the impairment requirements, did not qualify for the DSP as she had not undertaken the required Program of Support (POS) within the relevant period as required by the Act, which ended with the date of her new application (30 December 2016).
That decision was affirmed by an ARO and by a further decision of the AAT1 (the reviewable decision).
The Applicant now seeks a review of the AAT1 decision in this Tribunal.
The matter before this Tribunal is a very narrow one, namely, was the AAT1 correct in upholding the decision of the Respondent that the Applicant’s application for DSP should be refused on the basis that she has failed the requirements of the program of support test?
More recently, the Applicant has qualified for and has commenced receipt of the Age Pension as from 24 June 2020. Receipt of the age pension precludes an applicant from receipt of another social security payment such as the DSP.
Relevant legislation
In order to qualify for DSP, an applicant must fulfil certain criteria which are set out in section 94 of the Act. Section 94 has three distinct limbs:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
On this basis, the requirements or criteria for DSP eligibility can be stated as follows:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment. Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to a claim for DSP, and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[3] as follows:
[3] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) section 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … 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.
It is not necessary to rehearse the details of the Applicant’s 20-point assessment other than to note that it comprises three separate elements: knee osteoarthritis (10 points – Table 3); lumbar spine disease (5 points – Table 4) and diabetic retinopathy (5 points – Table 12). No singular condition rates 20 points, and hence there is no finding of the Applicant suffering a “severe disability” which may have exempted her from the provisions of the Continuing inability to work (CITW) requirements.
It is also important to note that the question of the points-assessment, although disagreed with by the Applicant, is not a matter before the Tribunal. That decision has been conclusively made and stands.[4]
[4] Nash and Department of Family and Community Services [2003] AATA 378.
Secretary’s position
The Respondent’s position is simple. The Respondent contends that the Applicant, in order to qualify for the DSP via her application of 30 December 2016, could only be successful had she participated in, or at least commenced participation in, a POS prior to the lodgement of that claim.
The POS requirements are set out in a Direction[5] made under section 94(3C) of the Act. The Direction provides that a person must participate in a program of support for at least 18 months during the 36 months ending immediately before the relevant date of claim before they can be taken to have actively participated in a program of support.[6]
[5] Social Security (Active Participation for Disability Support Pension) Determination 2014. (POS Determination).
[6] POS Determination, sections 5(1)(a)(ii) and 5(2).
The relevant dates under this Determination, that is the dates during which the Applicant would have been required to participate in a POS, are from 29 December 2013 to 29 December 2016 (the relevant period).
The Determination further provides that there are certain exemptions from the POS requirements[7]:
(a) the person has completed a programme that ran for a period less than 18 months;
(b) the person was participating in a programme that was terminated before the person claimed pension, because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation; or
(c) the person is participating in the programme at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation.
[7] Ibid at sections 7(3), 5(4) and 5(5).
The Secretary accepts that during the relevant period, the Applicant was absent from Australia from 14 September 2014 to 1 January 2015 and from 5 July 2016 to 2 December 2016[8] and that the Applicant was in receipt of the DSP through the relevant period up until its cancellation on 1 November 2016.
[8] Section 37 Tribunal documents (T docs) at 454.
Thus, to have satisfied the requirement to have commenced a POS prior to the application date of 30 December 2016, the Applicant would have had to enrol between the date of her return to Australia (Friday 2 December 2016) and the date of application (Friday 30 December 2016).
It is unfortunate for the Applicant that, had she successfully challenged the cancellation decision of 1 November 2016, her DSP would have been continued – as it had with minor suspensions for some 23 years[9] – and she would not have had to lodge a new application, which enlivened the POS requirements of the Act.
[9] Since 28 January 1993.
The Applicant’s position
The Applicant draws attention to the obvious issue that throughout the relevant 36-month period, with an exception of some 26 days (21 business days) she was in receipt of the DSP and had not been required to participate in a POS.
Furthermore, she claims, as the documentary evidence demonstrates, that previous assessments by Job Capacity Assessors has led to a conclusion that:
Capacity for work within 2 years with Intervention Work Capacity: 0-7 Hours per week
Suitable Work: Not applicable.[10]
[10] Section 37 Tribunal documents (T docs) at 191. Job Capacity Assessment Report submitted 22/10/2009.
A more contemporaneous report by the Health Professional Advisory Unit (HAPU) of the Department of Human Services, dated 29 August 2019, records[11]:
Continuing inability to Work (CTIW)
In my opinion, it would seem unlikely that Ms Kara would have been able to work for more than 15 hours per week within 24 months of her DSP claim dated 30/12/16. She has several chronic entrenched medical conditions making it difficult to work in Open Employment.
[11] T docs at 302.
Nevertheless, that HAPU report continues to a conclusion that the Applicant would not be eligible for DSP, as per the December 2016 claim, because she has not completed a POS and did not have the rating of a severe impairment.
The Applicant also supplied the Tribunal with both medical certificates and a detailed “medical timeline” showing her extensive engagement with medical interventions between January 2014 and December 2016. There are nearly 100 such entries within the relevant period.
Evidence of POS engagement
Departmental records indicate that the Applicant has a considerable history of engagement with the POS regime.[12] She has been either an active enrolee or granted an exemption from participation on a number of occasions dating back to September 2009. The record shows several periods of “activity” between April 2017 and May 2019.
[12] T docs at 478.
The Applicant provided a report from MatchWorks, which is a registered provider of employment services based at Prestons, NSW.[13] The Applicant has been a client of that service provider on a number of occasions as shown in the departmental report.
[13] Applicant’s Submission at Tab [2]; >
Their report indicates that the Applicant was currently enrolled with them from 18 May 2019 and had, from October 2017 to the present, been in a program for 100 weeks and three days.
Unfortunately, in relation to this application there is no evidence of enrolment in anything qualifying as a POS during the relevant period. The departmental record indicates the granting of a POS exemption in the period 24 September 2009 to 11 November 2009 and there is no further entry until another exemption was granted on 15 February 2017. There is no evidence of any engagement of the Applicant with MatchWorks until October 2017.[14]
[14] T docs at 478.
Discussion
The dilemma faced by the Applicant arises from the fact that when her DSP was cancelled in November 2016, she did not seek to have that cancellation decision reviewed but instead pursued an entirely new application for the DSP. Her actions in that regard, as it were, re-set the process and engaged the full set of requirements contained in section 94 of the Act de novo.
Her previous history of receipt of DSP, and any exemptions from the associated POS requirements ceased to be of any relevance.[15] The POS requirements admit of no flexibility or discretion when considering a new claim.[16]
[15] Rekic and Secretary, Department of Social Services [2015] AATA 369 at [31]-[32].
[16] Budisa and Secretary, Department of Social Services [2014] AATA 79; Karaman and Secretary, Department of Social Services [2016] AATA 597; Govedarica and Secretary, Department of Social Services [2016] AATA 1068.
The new application engaged both the question of her rating on the impairment tables and her POS obligations.
Once it had been decided that she qualified with 20 points, but that such points were cumulative, and hence no “severe impairment” was assessed, it followed automatically that the POS requirements had to be met.
There are provisions in sections 94B and 94F of the Act which do repose some degree of discretion in the Secretary (and hence would be available to this Tribunal), but they relate to circumstances where a DSP has been granted and the issue to be determined is the basis of its continuation.
As noted above, there is no evidence that the Applicant ever participated in a POS during the relevant period. The reasons for this are understandable – she had been granted and was receiving, the DSP.
The reasons may be understandable but, in relation to the new application of December 2016, they are insufficient. The Respondent recognises this in their SFIC stating:
6.45. While the operation of the POS requirements might be perceived to be unfair in circumstances where an applicant has been in receipt of DSP within the three years prior to a new claim for DSP, the law is clear.
6.46. Ms Kara did not appeal the cancellation of her DSP on 2 August 2016, but instead put in a fresh claim for DSP on 30 December 2016. Therefore, the POS requirements apply.
6.47. While the Tribunal has rightly found that Ms Kara was receiving the DSP at times during the three year period prior to 30 December 2016, she had ceased receiving the DSP on 2 August 2016 but did not start a POS prior to 29 December 2016. Therefore, the exceptions in clauses 7(3)-(5) and s 7(6) of the POS determination do not apply.
While the Respondent is in error in stating the date of the DSP cancellation (2 December 2016 was the date of suspension, the cancellation date was 1 November 2016), its submission is, notwithstanding that, clearly a correct statement of the law.
To have been eligible for the DSP on the basis of the December 2016 claim, the Applicant needed to have either participated in a POS in the preceding relevant period or to have sought enrolment in a POS between 2 December and 30 December 2016, from which she may or may not have been granted a POS exemption.
She did neither and her claim must fail. That is what the law says.
DECISION
The decision under review is affirmed.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Puplick

.........................[sgd]...............................................
Associate
Dated: 30 March 2021

Date(s) of hearing: 8 March 2021

Advocate for the Applicant: Dilek Kara

Solicitors for the Respondent: Dr Stephen Thompson, Services Australia

Date(s) of hearing:	8 March 2021
Advocate for the Applicant:	Dilek Kara
Solicitors for the Respondent:	Dr Stephen Thompson, Services Australia