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

[2016] AATA 749

Kuzmanovic and Secretary, Department of Social Services (Social services second review) [2016] AATA 749 (27 September 2016)

Division	GENERAL DIVISION
File Number	2016/1405
Re	Snezana Kuzmanovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	27 September 2016
Place	Perth

The Tribunal affirms the decision under review.

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Senior Member CR Walsh

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) – applicants impairments did not attract 20 points under the Impairment Tables on the date she claimed DSP or within 13 weeks of that claim – no “continuing inability to work” - decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)

Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member CR Walsh

27 September 2016

INTRODUCTION

1. Ms Kuzmanovic seeks a review of the decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1) on 19 January 2016 to reject Ms Kuzmanovic’s claim for Disability Support Pension (DSP) on the basis that she did not qualify for DSP under s 94(1) of the Social Security Act 1991 (the SSA) in the period 30 June 2015 (being the date of Ms Kuzmanovic’s DSP claim) to 29 September 2015 (being 13 weeks from the date of Ms Kuzmanovic’s DSP claim).

   FACTUAL & PROCEDURAL BACKGROUND

2. Ms Kuzmanovic was born on 5 February 1962 and is 54 years of age.

3. On 3 June 2015, Ms Kuzmanovic’s treating doctor, Dr Tai, provided a medical report which indicated that Ms Kuzmanovic suffered from diabetes, degenerative lumbar spine (spinal condition), carpal tunnel syndrome and depression. Dr Tai found that Ms Kuzmanovic’s:

   ·     diabetes affected her concentration and made her tired and forgetful and there was an uncertain impact on her ability to function in the next two years;

   ·     spinal condition affected her endurance and there was an uncertain impact on her ability to function in the next two years; and

   ·     depression was generally well managed and caused minimal or limited impact.

4. Ms Kuzmanovic lodged a claim for DSP on 30 June 2015.

5. On 13 August 2015, a Job Capacity Assessment (JCA) was conducted by a Registered Psychologist (with a Registered Occupational Therapist contributing to the assessment). Ms Kuzmanovic was assessed as suffering from diabetes, spinal disorder, depression, carpal tunnel syndrome and osteoarthritis. The JCA concluded that the diabetes and spinal conditions were permanent, fully diagnosed, treated and stabilised. Ms Kuzmanovic was assigned 5 points for the condition of diabetes under Table 1 of the Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (Functions requiring Physical Exertion and Stamina) and 5 points for the spinal condition under Table 4 of the Impairment Tables (Spinal Function). No impairment points were assigned in relation to the other conditions under the Impairment Tables as the JCA was not satisfied these conditions were fully diagnosed, treated and stabilised. The JCA also found that Ms Kuzmanovic did not have a continuing inability to work and assessed her as having a baseline capacity for work of 8-14 hours per week, which could increase within two years to 15-22 hours per week with intervention (the JCA Report).

6. On 25 August 2015, Centrelink rejected Ms Kuzmanovic’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables (the Original Decision).

7. Ms Kuzmanovic subsequently requested a review of the Original Decision.

8. On 2 October 2015, the Original Decision was affirmed by a Centrelink Authorised Review Officer (ARO). The ARO agreed that Ms Kuzmanovic should be assigned 5 points for the condition of diabetes under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina) and 5 points for the spinal condition under Table 4 of the Impairment Tables (Spinal Function). The ARO found that Ms Kuzmanovic’s carpel tunnel syndrome, osteoarthritis and depression were not fully treated and stabilised. The ARO also found that Ms Kuzmanovic did not have a continuing inability to work such that Ms Kuzmanovic did not qualify for DSP (the ARO Decision).

9. On 5 November 2015, Ms Kuzmanovic applied to the AAT1 for a review of the ARO Decision.

10. On 19 January 2016, the AAT1 affirmed the ARO Decision. The AAT1 agreed with the ARO that Ms Kuzmanovic should be assigned 5 points for the condition of diabetes under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina) and 5 points for the spinal disorder condition under Table 4 of the Impairment Tables (Spinal Function). The AAT1 found that Ms Kuzmanovic’s lower limb condition was fully diagnosed, treated and stabilised but assigned a rating of 0 points to that condition. The AAT1 was not satisfied that Ms Kuzmanovic’s depression and upper limb conditions were fully diagnosed, treated and stabilised and found that these impairments could not be rated under the Impairment Tables. The AAT1 found there was insufficient evidence in relation to Ms Kuzmanovic’s conditions of hypothyroidism and high cholesterol. Consequently, the AAT1 awarded a total of 10 impairment points to Ms Kuzmanovic’s conditions under the Impairment Tables and, it follows, found that she did not qualify for DSP (the AAT1 Decision).

11. On 17 March 2016, Ms Kuzmanovic applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 Decision.

    CONSIDERATION

    Qualification for disability support pension – s 94(1) of the SSA

12. The qualification criterion for DSP is set out in s 94(1) of the SSA, which provides:

    (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; and

    … [Emphasis added]

    Relevant period

13. A person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date when the claim was made, in accordance with clause 4(1) in Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act), which provides:

    4. Start date - early claim

    (1) If:

    (a) a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)     the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

14. The effect of this provision is that Ms Kuzmanovic’s qualification for DSP is to be determined during the period 30 June 2015 (the date of claim) to 29 September 2015 (13 weeks from the date of claim) inclusive (the Relevant Period).[1] 

    [1] Bobera and Secretary, Department of Families, Housing, Community Services and indigenous Affairs [2012] AATA 922 at [34]

    (i) Physical, intellectual or psychiatric impairment – s 94(1)(a) of the SSA

15. The Impairment Tables contain rules for applying the Impairment Tables when deciding if a person is qualified for DSP (the Impairment Table Rules). The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions: s 5(2) of the Impairment Table Rules.

16. “Impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition:  s 3 of the Impairment Table Rules.

17. Section 6 of the Impairment Table Rules requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. The Impairment Table Rules may only be applied after the person’s medical history has been considered.

18. An impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” (that is, it is “fully diagnosed, treated and stabilised” and likely to persist for more than 2 years), and the impairment resulting from that condition is also more likely than not to persist for more than 2 years: ss 6(3) to 6(4) of the Impairment Tables Rules.

19. In determining whether a condition has been “fully diagnosed and fully treated”, the following must be considered:

    (i)Whether there is corroborating evidence of the condition; and

    (ii)What treatment or rehabilitation has occurred in relation to the condition; and

    (iii)Whether treatment is continuing or is planned in the next 2 years: s 6(5) of the Impairment Table Rules.

20. A condition is “fully stabilised” if:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

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

    (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: s 6(6) and 6(7) of the Impairment Tables Rules.

21. The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned under the Impairment Tables: s 6(8) of the Impairment Table Rules.

22. Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence as defined in each Table of the Impairment Tables: s 8(1) of the Impairment Table Rules.

    (i)        Lumbar spondylosis (spinal condition)

23. It is not in dispute that Ms Kuzmanovic suffered from lumbar spondylosis (spinal condition) in the Relevant Period and that this condition is fully diagnosed, treated and stabilised. 

24. Based on the following evidence, the Tribunal finds that Ms Kuzmanovic’s spinal condition had a “mild” functional impact on her in the Relevant Period and that this condition therefore attracts an impairment rating of 5 points on under Table 4 of the Impairment Tables (Spinal function):

    (i)The medical report of Dr Tai, dated 10 July 2014, indicates that this condition caused Ms Kuzmanovic to be "slow to get up after prolonged sitting”, caused pain following a prolonged position (sitting, standing, walking) and that Ms Kuzmanovic cannot bend;

    (ii)The JCA Report, dated 31 July 2014, noted that Ms Kuzmanovic reported that she had reduced range of movement after activities for 30 minutes, but was able to bend forward to pick up light objects at knee height, from a table and from the floor with some difficulty; and

    (iii)The medical report of Dr Tai, dated 3 June 2015, indicates that this condition caused Ms Kuzmanovic to suffer from “poor endurance”;

    (iv)The medical report of Dr Tai, dated 4 November 2015, indicated that her condition was stabilised and caused Ms Kuzmanovic loss of walking/standing time, inability to bend and lift, crouch and work in confined spaces;

    (v)The JCA Report, dated 25 August 2015, noted that Ms Kuzmanovic remained able to pick up items off the floor, drive, walk around a supermarket independently to shop for groceries and turn her head without moving her trunk; and

    (vi)The AAT1 found that Ms Kuzmanovic “experienced back pain and had difficulty with repeated bending and postural changes”: AAT1 Decision at [30].

25. The evidence before the Tribunal does not establish that Ms Kuzmanovic’s spinal condition had a “moderate” functional impact on her in the Relevant Period, thereby attracting 10 points under Table 4 of the Impairment Tables (Spinal function) because Ms Kuzmanovic:

    (i)was able to sustain overhead activities;

    (ii)was able to move her head without moving her trunk;

    (iii)was able to bend forward to pick up a light object placed at knee height; and

    (iv)did not need assistance to get up out of a chair.

    (ii)       Diabetes

26. It is not in dispute that Ms Kuzmanovic suffered from diabetes in the Relevant Period and that this condition is fully diagnosed, treated and stabilised.

27. Based on the following evidence, the Tribunal finds that Ms Kuzmanovic’s diabetes had a “mild” functional impact on her in the Relevant Period and that this condition therefore attracts an impairment rating of 5 points under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina):

    (i)the medical reports of Dr Tai, dated 22 July 2013 and 10 July 2014, indicated that this condition was “generally well-managed and caused minimal or limited impact upon function“;

    (ii)the medical report of Dr Tai, dated 3 June 2015, indicated that this condition caused Ms Kuzmanovic to suffer from “poor concentration” and she was tired and forgetful;

    (iii)the ARO Decision, wherein the ARO noted that this affected Ms Kuzmanovic’s ability to perform heavier household tasks; and

    (iv)the AAT1 Decision, wherein the AAT1 found that this condition caused Ms Kuzmanovic poor concentration and lethargy and that she would have difficulty with heavy manual tasks: AAT1 Decision at [53].

28. The evidence does not establish that Ms Kuzmanovic’s diabetes had a “moderate” functional impact on Ms Kuzmanovic in the Relevant Period, thereby attracting 10 points under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina). That is, there is no evidence that Ms Kuzmanovic suffered from "frequent symptoms” when performing day to day activities around the house and the community in the Relevant Period. Although the AAT1 was concerned that Ms Kuzmanovic’s diabetes was "poorly controlled”, the evidence before the Tribunal supports a “mild” functional impact' on the basis that Ms Kuzmanovic has occasional symptoms when performing physically demanding activities such that this condition attracts an impairment rating of 5 points under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina).

    (iii)Degenerative changes and compartment syndrome to the right knee (lower limb condition)

29. It is not in dispute that Ms Kuzmanovic’s lower limb condition has been fully diagnosed, treated and stabilised.

30. However, the Tribunal finds that Ms Kuzmanovic’s lower limb condition does not attract any points under Table 3 of the Impairment Tables (Lower Limb Function) because the evidence does not establish that this condition had “mild” functional impact on Ms Kuzmanovic in the Relevant Period. More specifically, there is no evidence that Ms Kuzmanovic was unable to stand for more than 10 minutes, or requires a prosthesis or walking stick, in the Relevant Period which is required to establish “mild” functional impact under Table 3 of the Impairment Tables (Lower Limb Function).

31. Although Dr Tai’s medical report, dated 4 November 2015, indicated that Ms Kuzmanovic was unable to stand, there was no further evidence in relation to Ms Kuzmanovic’s period of intolerance/inability. Ms Kuzmanovic’s oral evidence to the AAT1 was that her leg felt tingly and her feet were cold but she conceded that she could walk around without assistance: AAT1 Decision at [37]. Consequently, Ms Kuzmanovic’s lower limb condition does not meet the requirements of “mild” functional impact under Table 3 of the Impairment Tables (Lower Limb Function) in the Relevant Period and, therefore, does not attract any impairment points under that Impairment Table.

    (iv)      Carpal tunnel syndrome (upper limb condition)

32. Based on the evidence, Ms Kuzmanovic’s carpal tunnel syndrome (upper limb condition) was not fully diagnosed, treated or stabilised in the Relevant Period.

33. In a medical report dated 22 July 2013, Ms Kuzmanovic’s treating doctor, Dr Tai, indicated that Ms Kuzmanovic’s carpal tunnel syndrome resulted in Ms Kuzmanovic having “lower dexterity of the right hand” and disturbed sleep and recommended further specialist neurological or orthopaedic review. Dr Tai suggested that with such therapy indicated the condition might resolve within 3-12 months.

34. In a subsequent medical report dated 10 July 2014, Dr Tai indicated that Ms Kuzmanovic’s carpal tunnel syndrome was "generally well-managed” with "minimal or limited impact on ability to function”.

35. In the AAT1 Decision, the AAT1 noted that Ms Kuzmanovic’s carpal tunnel syndrome was surgically treated in 2011, and there had been improvement in symptomatology in the right hand following surgery but subsequent deterioration: AAT1 Decision at [38]. In a medical report dated 3 June 2015, Dr Tai indicated that the surgery in 2011 was unsuccessful. In her oral evidence to the AAT1, Ms Kuzmanovic said that she was told she could return to see the surgeon, but did not want to do so because she fainted when her stitches were removed from her right wrist after the previous operation and was scared: AAT1 Decision at [39].

36. There is no medical evidence before the Tribunal establishing that Ms Kuzmanovic’s carpal tunnel syndrome was an active and fully diagnosed, treated and stabilised condition in the Relevant Period. The evidence indicates that Ms Kuzmanovic has not pursued all reasonable treatment options in relation to this condition and, in the absence of evidence that any further reasonable treatment is unlikely to result in significant improvement to a level enabling Ms Kuzmanovic to undertake work in the next two years, the Tribunal finds that this condition was not fully stabilised in the Relevant Period. Accordingly, this condition does not attract any impairment points under the Impairment Tables.

    (v)       Depression

37. The medical reports of Dr Tai, dated 10 July 2014 and 3 June 2015, indicated that Ms Kuzmanovic’s depression was “generally well-managed" with “minimal or limited impact upon function” in the Relevant Period. There is no other medical evidence suggesting any functional impact on Ms Kuzmanovic in the Relevant Period. Accordingly, Ms Kuzmanovic’s depression cannot attract a rating under Table 5 of the Impairment Tables (Mental Health Function) in respect of the Relevant Period.

38. In any event, Ms Kuzmanovic’s depression was not fully diagnosed, treated and stabilised in the Relevant Period. The “Introduction” to Table 5 of the Impairment Tables (Mental Health Function) requires that a 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). This is a mandatory requirement and, in the absence of any evidence that a diagnosis of anxiety had been confirmed by either a psychiatrist or a clinical psychologist, a rating cannot be assigned under Table 5 of the Impairment Tables (Mental Health Function).

1. Ms Kuzmanovic’s depression was diagnosed by Ms Angela Rebello who is not a clinical psychologist or psychiatrist. Accordingly, the evidentiary threshold required by Table 5 to demonstrate impairment is not met. The legislation clearly requires Ms Kuzmanovic to provide evidence from an “appropriately qualified medical practitioner” and she has not done that.

   (vi)      Other conditions

2. The AAT1 noted that Ms Kuzmanovic suffered from hypothyroidism and high cholesterol. However, in her oral evidence to the AAT1, Ms Kuzmanovic stated that these conditions did not cause impairment: AAT1 Decision at [56]. In any event, there is insufficient medical information before the Tribunal in relation to these conditions to make a finding that they are fully diagnosed, treated and stabilised (i.e. “permanent”).

   Total Impairment Rating

3. For the above reasons, Ms Kuzmanovic’s impairments attract a total of 10 points under the Impairment Tables and, therefore, she does not meet the requisite 20 points to satisfy s 94(1)(b) of the SSA.

   (iii) Continuing inability to work – s 94(1)(c) & s 94(2) of the SSA

4. Having found that Ms Kuzmanovic’s impairments did not attract at least 20 points under the Impairment Tables in the Relevant Period and that she does not satisfy s 94(1)(b) of the SSA (and is not qualified for DSP), it is unnecessary for the Tribunal to proceed to consider whether Ms Kuzmanovic’s has a “continuing inability to work” for the purposes of s 94(1)(c)(i) and s 94(2) of the Act. However, for completeness, the Tribunal makes the following observations in relation to this issue.

5. The expression “continuing inability to work” and related terms are set out in s 94(2) to (5) of the SSA. Broadly, a “continuing inability to work” means:

   ·in the case where the person’s impairment is not a “severe impairment” (meaning that the impairment attracts at least 20 points under a single Table in the Impairment Tables: s94(3B) of the SSA), the person has “actively participated in a program of support; and

   ·in all cases, the impairment is sufficient to prevent the person from undertaking a training activity during the next 2 years; and

   ·in all cases, either:

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

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

6. A “program of support” (POS) means a program that is designed to assist persons to prepare for, find or maintain work and is funded (wholly or partly) by the Commonwealth or is of a type similar to such a program.

7. “Active participation in a program of support” is assessed under provisions of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination): s 94(3C) of the SSA.

8. It is clear from the evidence that Ms Kuzmanovic does not have a “severe impairment” as she does not have an impairment which attracts at least 20 points under a single Impairment Table: s 94(3B) of the SSA.

9. This means that Ms Kuzmanovic has actively participated in a POS within the meaning of s 94(3C) of the prior to her claim for DSP. If she has not done so, she cannot have a “continuing inability to work” as defined in s 94(2) of the SSA.

10. Part 2 of the POS Determination sets out the requirements for active participation in a POS. In essence, a person must participate in a POS for 18 months within the three years prior to the date of claim before they can be taken to have actively participated in a POS: s7(2) of the POS Determination). The exceptions to this requirement (as set out in s 7(3) to s 7(5) of the POS Determination) are:

    (i)The person has completed a program that ran for a period less than 18 months;

    (ii)The person was participating in a program 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 find, gain or remain in employment through continued participation; or

    (iii)The person is participating in the program at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation.

11. Based on the evidence before the Tribunal, Ms Kuzmanovic had not participated in a POS for periods totalling 18 months within the three years prior to lodging her DSP claim on 30 June 2015.

12. Ms Kuzmanovic participated in the following two programs in the three year period prior to lodging her claim (i.e. in the period 30 June 2012 to 30 June 2015):

    (i)12 September 2012 to 4 February 2013 ; and

    (ii)16 July 2013 to 26 June 2015.

13. Ms Kuzmanovic’s participation in the period 12 September 2012 to 4 February 2013 comprised 4 months, 23 days. However, Ms Kuzmanovic was suspended on 4 January 2013 to 19 January 2013 (15 days). Ms Kuzmanovic’s total participation in this period comprised 4 months, 8 days.

14. Ms Kuzmanovic’s participation in the period 16 July 2013 to 26 June 2015 comprised 23 months, 10 days. However, Ms Kuzmanovic was suspended during the following periods:

    (i)6 September 2013 to 27 October 2013 (1 month, 21 days);

    (ii)22 November 2013 to 19 June 2014 (6 months, 28 days);

    (iii)2 January 2014 to 1 February 2014 (30 days);

    (iv)2 August 2014 to 31 January 2015 (5 months, 29 days);

    (v)26 February 2015 to 8 April 2015 (1 month, 13 days); and

    (vi)16 April 2015 to 26 June 2015 (2 months, 10 days).

15. Ms Kuzmanovic’s periods of suspension in this period totalled approximately 19 months. Consequently, Ms Kuzmanovic’s total participation in this period comprised approximately 4 months. 

16. There is no evidence that Ms Kuzmanovic completed a POS of less than 18 months in the three years prior to her DSP claim. As such, that she cannot satisfy the exception in s 7(3) of the POS Determination.

17. There is also no evidence that a POS was terminated in the three years prior to claim because Ms Kuzmanovic was unable, solely because of her impairment to improve her capacity to prepare for, find or maintain work through continued participation in the program. Accordingly, Ms Kuzmanovic cannot satisfy the exception in s 7(4) of the POS Determination.

18. Further, Ms Kuzmanovic was not actively participating in a POS at the date of her DSP claim (on 30 June 2015). Therefore, she cannot satisfy the exception in s 7(5) of the POS Determination.

19. As Ms Kuzmanovic does not have a “severe impairment”, and has not actively participated in a POS prior to the date of her DSP claim, she does not satisfy s 94(2)(aa) of the SSA. In any event, Ms Kuzmanovic does not have a “continuing inability to work” under s 94(2)(a) or (b) of the SSA. Whilst Ms Kuzmanovic’s baseline work capacity in relation to all her medical conditions is 8-14 hours per week, she has been assessed by the JCA as having a work capacity of at least 15 hours per week within two years with intervention: JCA Report. The JCA assessors have specialist knowledge and experience in identifying barriers to employment, interventions (such as Disability Employment Services), available programs and suitable occupations and are qualified to determine a person’s work capacity. The JCA assessors identified light less skilled work as suitable and gave an example of customer service assistance.

20. For the above reasons, Ms Kuzmanovic did not have a “continuing ability to work” on the date of her DSP claim and, therefore, she does not satisfy the requirement in s 94(1)(c) of the SSA. Therefore, even if Ms Kuzmanovic did satisfy s 94(1)(a) and (b) of the SSA in the Relevant Period she would nevertheless not qualify for DSP as she does not satisfy the “continuing inability to work” requirement in s 94(1)(c) of the SSA.

    DECISION

21. For the above reasons, the Tribunal affirms the AAT1 Decision.

I certify that the preceding 59 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

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Administrative Assistant

Dated 27 September 2016

Date of hearing	21 September 2016
Applicant	In person
Representative for the Respondent	Ms B Rayment
Solicitors for the Respondent	Mills Oakley Lawyers