Larkin and Secretary, Department of Social Services (Social services second review) - [2018] AATA 342

Larkin and Secretary, Department of Social Services (Social services second review) [2018] AATA 342 (30 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0922
Re:Christine Larkin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member
Date:30 January 2018
Place:Perth

The decision under review is affirmed.
....(Sgd)......................................
Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension - whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has severe impairment – continuing inability to work – whether Applicant actively participated in program of support - decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2) –s 94(3B)
Social Security (Administration) Act 1999 – Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 2 – Table 3 – Table 4 – Table 5 – Table 7
CASES
Drake and minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645
Re Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) AATA 507
Re Harris v Secretary, Department of Employment and Workplace Relations (2007) FCA 404
Re Kok Yong Tey and Secretary, Department of Social Services (2013) AATA 753
Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) AATA 663
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Brigadier AG Warner, Member
30 January 2018
INTRODUCTION

Ms Larkin seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 27 January 2017, which affirmed a decision of the Department of Human Services (Department) made on 31 August 2016 to reject Ms Larkin’s claim for disability support pension (DSP) lodged on 25 July 2016.
Ms Larkin participated in the hearing on 4 October 2017 by telephone conference.
BACKGROUND
Ms Larkin was born in 1961. At the date of her DSP claim on 25 July 2016, she was 54 years of age (T1/2).
On 31 August 2016, Ms Larkin attended a face-to-face Job Capacity Assessment (JCA). In the JCA report dated 31 August 2016, the assessor recorded the following conclusions:
(a)Ms Larkin’s fibromyalgia was fully diagnosed, fully treated and fully stabilised;
(b)Ms Larkin’s ischaemic heart disease was fully diagnosed, fully treated and fully stabilised;
(c)Ms Larkin’s ischaemic vasculitis was fully diagnosed, fully treated and fully stabilised;
(d)Ms Larkin’s psychol/psychiatric disorder was fully diagnosed, but not fully treated and fully stabilised; and
(e)active participation in a program of support criteria was not met (T85/280-288).
On 31 August 2016 the Department rejected the Ms Larkin’s claim for DSP (T87/290-291]. On 15 October 2016, an authorised review officer (ARO) affirmed the decision to reject Ms Larkin’s claim for DSP and found that:
(a)Ms Larkin’s fibromyalgia was fully diagnosed, treated and stabilized and could be assigned an impairment rating of 5 points under Table 2 - Upper Limb Function, 5 points under Table 3 - Lower Limb Function, 5 points under Table 4 - Spinal Function and 5 points under Table 7 - Brain Function;
(b)Ms Larkin’s ischaemic heart disease and hypercholesterolemia do not attract impairment ratings under Table 1 - Functions requiring Physical Exertion and Stamina because they have limited or no impact on her functional ability;
(c)Ms Larkin’s conditions of anxiety and depression were not accepted as being fully treated and stabilized;
(d)Ms Larkin did have an impairment rating of at least 20 points, but not a ‘severe impairment’; and
(e)Ms Larkin did not meet the program of support requirements (T88/292-297).
On 27 January 2017, the AAT1 affirmed the decision to reject Ms Larkin’s claim for DSP. The AAT1 found that Ms Larkin’s chronic pain and mental health conditions were fully diagnosed, treated and stabilised. The AAT1 determined a total impairment rating of 20 points, comprising 5 points under Table 2, 5 points under Table 3, 5 points under Table 4 and 5 points under Table 5 (T2/5-14).
On 17 February 2017, Ms Larkin requested a review of the AAT1 decision by this Tribunal (T1/1 – 4).
ISSUES
In reviewing the AAT1 decision, the Tribunal must apply the criteria for DSP prescribed in s 94(1) of the Social Security Act 1991 (the Act) and determine whether, as at 25 July 2016 (the date of claim) or by 24 October 2016 (13 weeks after the date of claim), Ms Larkin had:
(a)a physical, intellectual or psychiatric impairment for the purpose of s 94(1 )(a) of the Act;
(b)an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for the purpose of s 94(1 )(b) of the Act; and
(c)a continuing inability to work (as defined in s 94(2) of the Act), for the purpose of s 94(1)(b) of the Act
RELEVANT LEGISLATION, POLICY AND AUTHORITIES
The relevant legislation is contained in:
(a)the Act;
(b)the Social Security (Administration) Act 1999 (the Administration Act);
(c)the Impairment Tables; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
Government policy set out in the Guide to Social Security Law is also relevant, and should be applied unless there are cogent reasons to not follow such policy (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645).
Qualification period
Schedule 2 subclause 4(1) of the Administration Act provides that a person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date on which the claim was made.
Gyles J of the Federal Court in Re Harris v Secretary, Department of Employment and Workplace Relations (2007) FCA 404 relevantly stated at (1):
. ..the Applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
Ms Larkin lodged a claim for DSP on 25 July 2016. Thirteen weeks from this date is 24 October 2016. Therefore, Ms Larkin’s claim must be determined for the period 25 July 2016 to 24 October 2016 (qualification period). If her circumstances have subsequently changed, it would be appropriate for her to lodge a fresh claim.
Qualification criteria for DSP
Section 94 of the Act details the qualification criteria for DSP and provides that a person is qualified for DSP if:
(a)the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and
(b)the person's impairment (or impairments in combination) attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)); and
(c)the person has a continuing inability to work (s 94(1)(c).
The qualification criteria set out in s 94(1) are conjunctive, and each element must be satisfied before a person can be accepted to be qualified for DSP. As noted in the Guide to Social Security Law (at 3.6.3.05):
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance. Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied. Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.
Rating under the Impairment Tables
The Impairment Tables contain rules (the Rules) for teir use when deciding if a person is qualified for DSP. 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.
An impairment rating can only be assigned for an impairment that arises from a condition that is permanent (that is, fully diagnosed, treated and stabilized and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) – 6(4) of the Rules).
Paragraph 6(5) of the Impairment Tables provides that, in determining whether a condition is fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b), the following must 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.
Paragraph 6(6) of the Impairment Tables states that a condition is fully 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 to a level enabling the person to undertake work in the next 2 years; or
(b) if the person has not undertaken reasonable treatment for the condition:
(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.
When applying the Impairment Tables, the impairment must be assessed on the basis of what the person can, or could do. Assessment must not be made on the basis of what the person chooses to do or what others do for them (paragraph 6(1) of the Impairment Tables).
The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If an impairment has no functional impact, then no rating can be applied (s 6(8) of the Rules).
Continuing inability to work
The term continuing inability to work is defined in subs 94(2) of the Act, and as at the qualification period this section stated:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a a) 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.
The term severe impairment is defined in subs 94(3B) of the Act, as follows:
(3B) A person’s impairment is a severe impairment if the person s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment Table.
EVIDENCE
The evidence before the Tribunal comprised:
·The “T Documents” (T1-T97, pp1-322) (Exhibit 1);
·Department of Human Services email dated1 May 2017 (Exhibit 2);
·Max Solutions letter dated 27 April 2017 (Exhibit 3);
·Christine Larkin email dated 3 May 2017 10:08AM (Exhibit 4);
·Seek Apply email dated 7 February 2017 (Exhibit 5);
·At Work Australia email dated 28 April 2017 (exhibit 6);
·Christine Larkin email dated 3 May 2017 10:13AM (Exhibit 7);
·Statement by Christine Joy Larkin dated 25 May 2017 (Exhibit 8);
·Max Solutions letter (3 pages) dated 26 May 2017 (Exhibit 9);
·Max Solutions letter (1 page) dated 26 May 2017 (Exhibit 10);
·Respondent’s Statement of Facts and contentions dated 19 June 2017, including Annexures A-E (Exhibit 11); and
·The oral evidence of the Applicant.
CONSIDERATION
The AAT1 found that Ms Larkin had physical impairments caused by chronic pain and a psychiatric impairment caused by generalised anxiety disorder (GAD) with somatoform features and dysthymia. In relation to impairments caused by the chronic pain, the AAT1 assigned 5 points under Table 2, 5 points under Table 3 and 5 points under Table 4. The AAT1 found that Ms Larkin’s GAD was fully diagnosed, treated and stabilised at the time of claim and assigned 5 points under Table 5 (T2/14).
The Respondent accepts, having regard to the medical evidence before the Tribunal, that Ms Larkin’s fibromyalgia was fully diagnosed, fully treated and fully stabilised during the qualification period and that the condition may have caused multiple impairments. The Respondent submits that the functional impacts of the chronic pain attract 5 points under each of Table 2, Table 3, Table 4 and Table 7 (Exhibit 11, para 52).
The Respondent contends that Ms Larkin’s GAD was not fully treated and fully stabilised in the qualification period and that no impairment rating can be assigned (Exhibit11, para 79).
Chronic pain – fibromyalgia
Having carefully considered the medical evidence, the Tribunal agrees with the finding of the AAT1 and the Respondent’s submission that Ms Larkin’s chronic pain was fully diagnosed, treated and stabilized during the qualification period. In the present de novo proceedings, it is appropriate that the Tribunal consider related impairments separately under the relevant Tables and if appropriate, assign points under those Tables. In doing so, the Tribunal must not assign a particular impairment points under more than one Table.
The Tribunal’s assessment of impairments caused by Ms Larkin’s chronic pain – fibromyalgia under the relevant Impairment Tables follows.
Upper limb function
In respect of the impairment caused by fibromyalgia when performing activities requiring the use of hands or arms (Table 2 – Upper Limb Function), the Tribunal has regard to the following:
(a)In a medical report dated 10 October 2011, Ms Zoe Farrant, treating physiotherapist cites “shoulder pain aggravated by repeated overhead work as well as lifting and carrying heavy objects” (T29/129-130).
(b)In a medical report dated 9 June 2016, Dr Costley, general practitioner cites “bilateral shoulder pains from bilateral bursitis and restricted movements” (T82/247).
(c)The JCA report dated 31 August 2016 records: “The client has reported that her husband completes activities such as cooking and hanging out the washing, she has reported independence in self-care activities. She reported sustained activities such as ironing results in increased pain sensation.” The JCA concluded that there was a mild functional impact using hand or arms (T85/284).
(d)The AAT on first review found that Ms Larkin’s functional impairment due to fibromyalgia in the domain of upper limb function attracted 5 impairment points (T2/11-12).
Having carefully considered the evidence and the descriptors in Table 2, the Tribunal assigns 5 impairment points. In doing so, the Tribunal is reasonably satisfied that there is insufficient evidence before it that the functional impact of Ms Larkin’s chronic pain meets the descriptors for moderate or severe functional impact detailed in Table 2.

Lower limb function

In respect of the impairment caused by fibromyalgia in the domain of lower limb function (Table 3 – Lower Limb Function), the Tribunal has regard to the following:
(a)In a medical report dated 22 July 2015, Dr S Kostov, psychiatrist, records that Ms Larkin “has a swollen knee and significant pain and difficulties walking” (T73/227-228).
(b)An imaging report dated 6 December 2012 by Dr Andrew Patrikeos, radiologist, cites “Upper and lower limb arthropathy consistent with degenerative change” (T45/166).
(c)The JCA report dated 31 August 2016 records that: “the client has some difficulty walking around a shopping mall or supermarket without added rests” and that “the client is unable to stand for more than 10 minutes” (T85/284).
(d)The JCA report also records: “The client reported that she is unable to perform activities such as doing the dishes. She had reported increase (sic) walking as recommended for exercise and pain relief, however this had resulted in increased swelling” (T85/284).
(e)The JCA assessor concluded that there was a mild functional impact on activities using lower limbs (T85/284).
(f)The AAT1 on first review found that Ms Larkin’s functional impairment due to fibromyalgia in the domain of lower limb function attracted 5 impairment points (T2/11-12)..
Having carefully considered the evidence and the descriptors in Table 3, the Tribunal assigns 5 impairment points. In doing so, the Tribunal is reasonably satisfied that there is insufficient evidence before it that the functional impact of Ms Larkin’s chronic pain – fibromyalgia satisfies the descriptors for moderate or severe functional impact detailed in Table 3.
Spinal function
In respect of the impairment caused by chronic pain - fibromyalgia when performing activities involving bending or turning the back, trunk or neck (Table 4 – Spinal Function), the Tribunal has regard to the following:
(a)A report dated 10 October 2011 by Ms Zoe Ferranti, physiotherapist, cites Ms Larkin’s mention that her shoulder pain was aggravated by repeated overhead work as well as lifting and carrying heavy objects (T29/129).
(b)In recording Ms Larkin’s difficulties related to spinal function, the JCA report dated 31 August 2016 states: “The client has reported that her husband will complete tasks such as shopping. The client has reported that she has trouble making the bed and information from Dr Kostov has confirmed that the client is able to drive more than 60 minutes on her own to attend appointments. Based on the medical evidence provided, assigned a rating of 5. The current medical evidence has cited painful and tender neck osteoarthritis pains and restricted movements” (T85/285).
(c)A medical certificate dated 9 June 2016 completed by Dr Terry Costley, General Practitioner records “neck osteoarthritis pain and restricted movement” (T82/247).
(d)The JCA assessor concluded that there was a mild functional impact on activities involving spinal function (T85/285).
(e)The AAT1 on first review found that Ms Larkin’s functional impairment due to fibromyalgia in the domain of spinal function attracted 5 impairment points (T2/11-12).

Having carefully considered the evidence and the descriptors in Table 4, the Tribunal assigns 5 impairment points. In doing so, the Tribunal is reasonably satisfied that there is insufficient evidence before it that the functional impact of Ms Larkin’s chronic pain – fibromyalgia satisfies the descriptors for moderate or severe functional impact detailed in Table 4.
Brain function
In respect of the impairment caused by fibromyalgia in the domain of brain function (Table 7 – Brain Function), the Tribunal has regard to the functional impact recorded in the JCA report as follows:
There is a mild functional impact resulting from a neurological condition.
1) The client is able to complete most day to day activities without assistance and has mild difficulties in the following: a) Memory – The medical certificate from Dr Paul dated 24/03/15 has cited ‘poor concentration/memory’. The report from Dr Kostov dated 10/10/14 cites ‘I tried to outline her overall medication regime and made a chart for her to avoid confusion with her medications’. The client has reported poor memory.
5 points based on the above (T85/285).
The Tribunal accepts the impairment rating of 5 points recommended by the JCA assessor. There is no medical evidence before the Tribunal such that the descriptors for moderate or severe impairment could be satisfied.
Impairment rating for chronic pain – fibromyalgia
The Tribunal assigns an impairment rating of 20 points for Ms Larkin’s chronic pain – fibromyalgia condition (5 points under Tables 2, 3, 4 and 7).
Cardiac condition - ischemic heart disease
The Respondent accepts that Ms Larkin’s ischaemic heart disease was fully diagnosed, fully treated and fully stabilized during the qualification period (Exhibit 11, para 64). Having reviewed the relevant medical evidence, the Tribunal agrees.
In considering the impairment caused by ischemic heart disease in the domain of functions requiring physical exertion and stamina, the Tribunal has regard to the following evidence:
a.In a medical report dated 18 August 2011, Professor Gerry O’Driscoll, Cardiologist noted that Ms Larkin had no cardiac symptoms and examination that day was normal (T31/132]. In a later medical report dated 11 October 2012, Professor O’Driscoll, Cardiologist states that Ms Larkin “does not want to have any investigations and as she seems to be asymptomatic from a cardiac point of view, I have not arranged to see her again” (T38/151).
b.In a medical report dated 8 June 2016, Professor O’Driscoll noted: “when I last saw her in October 2012 her cardiac function had returned to normal but her psychological issues had persisted…” (T80/245)
c.In relation to the functional impact of Ms Larkin’s ischaemic heart disease, the JCA report dated 31 August 2016 states in part:
There is no functional impact on activities requiring physical exertion and stamina as a result of this condition…As symptoms of shortness of breath have been associated with her psychological condition, and her cardiologist has confirmed that cardiac function has returned to normal, an impairment rating of 0 has been assigned (T85/285).
The Tribunal assigns 0 impairment points for this condition under Table 1.
Vasculitis – inflammation of blood vessels/Hypercholesterolemia
The Respondent accepts that Ms Larkin’s Vasculitis/Hypercholesterolemia was fully diagnosed, fully treated and fully stabilised during the qualification period (Exhibit 11, para 74). Having reviewed the relevant medical evidence, the Tribunal agrees.
In considering the impairment caused by this condition, the Tribunal has regard to the following evidence:
(a)In a medical report dated 12 May 2011, Professor Gerry O’Driscoll, Cardiologist noted that Ms Larkin had a past history of hypercholesterolemia and cigarette smoking (T18/105). In a later medical reported dated 8 June 2016, Professor O’Driscoll, Cardiologist noted that Ms Larkin also had less significant disease in all of her other coronary vessels and had mild to moderate impairment of left ventricular function (T80/245).
(b)In the JCA report dated 31 August 2016, the assessor considered Larkin’s vasculitis and hypercholesterolemia to be fully diagnosed, fully treated and fully stabilized, but assigned an impairment rating of 0. The assessor noted in relation to functional impact: “The client has reported this condition is well managed with medication. Nil information from the medical evidence to indicate functional impact” (T85/285).
The Tribunal concludes that there is insufficient evidence before it to assign more than 0 impairment points.
GAD with somatoform features and dysthymia
The Tribunal notes that the AAT1 in the decision under review and the Respondent in submissions before this Tribunal have reached different conclusions regarding Ms Larkin’s mental health condition.
The AAT1 was satisfied that Ms Larkin’s GAD was fully diagnosed, fully treated and fully stabilized when she claimed DSP (T2, para 26). As noted above (see paragraph 27), the Respondent contends “that no impairment rating can be assigned to the Applicant’s generalised anxiety disorder with somatoform features and dysthymia, as the condition was not fully treated, fully stabilised in the qualification period” (Exhibit 11, para 79).
These different conclusions suggest the complex nature of this condition, and in its present consideration the Tribunal notes the following descriptions (Wikipedia) related to Ms Larkin’s GAD diagnosis:
A somatoform symptom disorder is a mental disorder which manifests as physical symptoms that suggest illness or injury, but which cannot be explained fully by a general medical condition or by the direct effect of a substance, and are not attributable to another mental disorder.
Dysthymia characteristics include an extended period of depressed mood combined with at least two other symptoms which may include insomnia or hypersomnia, fatigue or low energy, eating changes, low self esteem, or feelings of hopelessness. Poor concentration or difficulty making decisions are treated as another possible symptom. Mild degrees of dysthymia may result in people withdrawing from stress and avoiding opportunity for failure. In more severe cases of dysthymia, people may even withdraw from daily activities….Dysthymia often occurs at the same time as other psychiatric disorders, which adds a level of complexity in determining the presence of dysthymia, particularly because there is often an overlap in the symptoms of the disorder.
Having carefully considered all the relevant material, the Tribunal agrees with the AAT1 analysis and conclusion that Ms Larkin’s GAD, with somatoform features and dysthymia, was fully diagnosed, fully treated and fully stabilized when she claimed disability support pension (T2, paras 22-26). The Tribunal also agrees with the AAT1 assessment of the functional impact of Ms Larkin’s GAD under Table 5 – Mental Health Function (T2, paras 35-39).

The Tribunal notes the Respondent’s submission in relation to any assignment of impairment points for this condition, that: “Even if the condition is considered to be fully diagnosed, treated and stabilized such that an impairment rating may be assigned, the Secretary contends that the Applicant can be allocated no more than 5 impairment points under Table 5” (Exhibit 11, para 93).
The Tribunal assigns this condition 5 impairment points under Table 5.
Carpal Tunnel Syndrome
In a Medical Report Disability Support Pension dated 17 July 2012, Dr Robert Paul records a diagnosis of carpal tunnel syndrome with the history of numbness both hands and confirmed on EMG. Dr Paul lists current treatment as splints, past treatment as injections and future treatment to consider surgery (T36/141).
An Employment Services Assessment Report dated 31 July 2012 records that the condition of carpel tunnel syndrome is verified by medical evidence, and further remarks:
Confirmed via EMG. Currently uses splints as needed. TDR lists consideration for surgery and reports injections in the past. Christine reports injections as effective with nil required for last 5 months. Saw surgeon who recommended wearing splints. Christine not keen to pursue surgery due to fears of limited success (T37/147).
There is no evidence before the Tribunal as to the current prognosis of the condition, whether surgery has been further considered, and no evidence of functional impairment resulting from the condition. The Tribunal notes that the condition of carpal tunnel syndrome was not included in the JCA dated 3 August 2016 (T85) and was not a consideration in the AAT1 decision under review. Accordingly, the Tribunal cannot assign an impairment rating.
Total impairment rating
The Tribunal finds that Ms Larkin’s overall impairment rating is 25 points (5 points under Tables 2, 3, 4, 5 and 7) and that she does satisfy s 94(1)(b) of the Act.
Continuing inability to work
A person who does not have a “severe impairment” as defined in s 94(3B) of the Act, must satisfy the requirement in s 94(2)(aa) of the Act to have actively participated in a program of support (POS). As none of Ms Larkin’s impairments attract an impairment rating of at least 20 points under a single Table, she does not have a severe impairment within the meaning of s 94 (3B). As such, Ms Larkin must have actively participated in a POS before she can be found to have a continuing inability to work.
A person has actively participated in a program of support if they meet the requirements set out in the POS Determination. Generally, a person will be required to participate in a POS for 18 months in the 36 months prior to the date of the relevant claim for DSP (subs 7(1) and subs 7(2) of the POS Determination). Ms Larkin lodged a claim for DSP on 25 July 2016 and consequently must therefore have actively participated in a POS in the period 24 July 2013 to 24 July 2016.
Relevantly, the Respondent cites previous cases in which the Tribunal has enforced the POS requirement, finding that the Tribunal has no power to dispense with the operation of s 94(2)(aa) of the Act, and that it is irrelevant whether an applicant was aware of the requirement or not (Re Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) AATA 507; Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) AATA 663; Re Kok Yong Tey and Secretary, Department of Social Services (2013) AATA 753.
The evidence before the Tribunal indicates that Ms Larkin completed 55 days in a POS at the date of her DSP claim (Exhibit 11, Annexure A). This participation is well short of the prescribed 18 months. Ms Larkin did not dispute this evidence, and in her oral evidence submitted that:
·She had been suspended from her POS because of the impact of her conditions;
·Since 26 October 2015, she and her husband had applied for jobs as a couple as she had qualifications and experience that he did not have;
·Max Employment had lied about her engagement with that agency; and
·It was unfair that her ongoing participation in a program after the cessation of the qualification period could not be taken into account with respect to the decision under review;
·She did not think she could survive without the DSP.
The POS Determination addresses situations where a person can participate in a POS for less than 18 months and satisfy the POS requirement (subs 7(3) and subs 7(5) of the POS Determination). However, there is no evidence before the Tribunal that Ms Larkin:
(a)completed a POS of less than 18 months duration during the qualification period (subs 7(3) of the POS Determination)
(b)was terminated from a POS because she was unable, solely because of her impairments, to improve her capacity to prepare for, find or maintain work through continued participation in the program (subs 7(4) of the POS Determination), or
(c)was participating in a POS at the end of the qualification period and was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation (subsection 7(5) of the POS Determination).

The Tribunal accepts Ms Larkin’s evidence that she had been suspended from her POS, but suspension does not constitute termination, and there is no evidence that her POS had been terminated at the date of her DSP claim.
It follows from the above consideration that Ms Larkin did not satisfy s 94(2)(aa) of the Act during the qualification period, and consequently the Tribunal is satisfied that she did not have a continuing inability to work.
It is not necessary for the Tribunal to address Ms Larkin’s capacity to work 15 hours per week in the next two years. The Tribunal nevertheless notes the detailed consideration of this issue provided in the Respondents submissions (Exhibit 11, paras 102-122), and agrees that the evidence does not support a conclusion that Ms Larkin’s impairment’s prevent her from undertaking any work.
CONCLUSION
Having carefully considered all the evidence and the circumstances of this matter, the Tribunal is satisfied that although Ms Larkin’s overall impairment rating is 20 points or more, she does not have a continuing inability to work as required by section 94(1)(c) of the Act. As such, Ms Larkin was not qualified for DSP as at the qualification period.
DECISION
The Tribunal affirms the decision of the AAT1 dated 27 January 2017.

I certify that the preceding Sixty Four paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

....(Sgd)..........................................
Associate
Dated: 30 January 2018

Date(s) of hearing: 4 October 2017

Applicant: In person

Representative for the Respondent: Mr C Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

Date(s) of hearing:	4 October 2017
Applicant:	In person
Representative for the Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers