Mansour and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4438

Mansour and Secretary, Department of Social Services (Social services second review) [2022] AATA 4438 (22 December 2022)
Division:GENERAL DIVISION
File Number: 2021/7597
Re:Wahid Farid Botros Mansour
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member S Barton
Date:22 December 2022
Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 7 September 2021, is affirmed.
................[Sgd]........................................................
Member S Barton
Catchwords
SOCIAL SECURITY – disability support pension – whether the Applicant met the eligibility requirements for a disability support pension – fully diagnosed, treated and stabilised – Qualification Period – assigning impairment ratings – Applicant has a total impairment rating of 20 points – Applicant has not participated in a program of support – Reviewable Decision affirmed
Legislation
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(3E), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 ss 7(1)
Social Security (Administration) Act 1999 (Cth) – ss 80(1), 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 10
Cases
Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Member S Barton
22 December 2022
BACKGROUND

The Applicant seeks review of a decision made by the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 7 September 2021 (Reviewable Decision) which affirmed a decision to reject the Applicant’s claim for a disability support pension (DSP).
FACTS
The Applicant is 56 years of age.
On 6 April 2021, the Applicant lodged a claim for a DSP with Services Australia (Centrelink). He listed in his application the conditions of meningitis, partial blindness, disk surgery (three times), foot neuroma, “4 time DUT R. leg” [right leg], “1 time DUT L. lung” [left lung], hernia, [left] shoulder repair and mental plan treatment (T92/539).
On 28 May 2021, the Applicant’s claim for a DSP was rejected because he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T100/569) (Original Decision).
The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO). However, on 7 July 2021, an ARO of Centrelink wrote to the Applicant to advise him that the ARO had found the Original Decision to be correct, and that his review was unsuccessful (T104/575-582) (ARO Decision).
The ARO found that the Applicant’s bilateral vision loss was a permanent condition, however his depression was not accepted as permanent as it was considered not to have been fully diagnosed, treated and stabilised. The Applicant’s chronic foot pain, back pain and bilateral shoulder pain were not accepted as permanent as they were not considered fully treated, and stabilised (T104/575).
On 4 August 2021, the Applicant lodged an application seeking review of the ARO Decision in the AAT1. The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 7 September 2021 (T2). Despite the AAT1 affirming the ARO Decision, the AAT1 found that the Applicant did indeed have an impairment rating of 20 points, however, he was not found to have a ‘continuing inability to work’, and therefore did not meet the medical qualification requirements for a DSP.
On 17 October 2021, the Applicant lodged an application for second review in the General Division (AAT2) of this Tribunal.
JURISDICTION
The application for review was made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the AdministrationAct). Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
This application was heard on Wednesday 26 October 2022 at the Perth Registry of the Tribunal. The Applicant was self-represented. The Applicant gave oral evidence and was cross-examined. The Respondent was represented by Mr Liam Dennis of Minter Ellison, instructed by Mr Patrick Deane of Services Australia. Both the Applicant and Mr Dennis appeared in person.
The Tribunal admitted the following documents into evidence at the hearing:
·Information about participating in a program of support Centrelink form with attachment, dated 4 April 2022 (Exhibit A1);
·Section 37 T-Documents, labelled T1-T113, consisting of pages 1-626 (Exhibit R1);
·Supplementary Section 37 T-Documents, labelled T114-T128, consisting of pages 1-23 (Exhibit R2); and
·Respondent’s Statement of Facts, Issues and Contentions with attachments, dated 24 June 2022 (Exhibit R3).
ISSUES
The overall issue for determination by this Tribunal is whether, during the qualification period (discussed below), the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant had a physical, intellectual or psychiatric impairment or impairments for the purpose of s 94(1)(a) of the Act;
(b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of at least 20 points under the relevant Impairment Tables (s 94(1)(b) of the Act); and
(c)whether the Applicant had “a continuing inability to work” for the purposes of s 94(1)(c) of the Act.
LEGISLATION
The legislation applicable to this matter is contained in:
(a)the Act;
(b)the Administration Act;
(c)the Impairment Tables; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
Qualification for DSP
As stated above, the qualification requirements for a DSP are set out in s 94(1) of the Act:
(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; …
The criteria contained within s 94(1) of the Act are conjunctive, meaning for a DSP application to be successful, an applicant must satisfy each sub-section.
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.
Section 5 of the Impairment Tables sets out their purpose and general design principles, being to describe functional impacts associated with certain types of conditions, and to assign ratings to determine the level of functional impact of impairments on applicants.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(1) of the Impairment Tables states that “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do …” (emphasis added). An impairment rating can only be assigned if the condition is permanent (s 6(3) of the Impairment Tables).
With regard to the permanency of conditions, ss 6(4), 6(5) and 6(6) of the Impairment Tables state:
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.
(Notes omitted.)
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) … 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.
(Notes omitted.)
“Reasonable treatment” for the purposes of ss 6(6) of the Impairment Tables, defined in s 6(7), is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments. It is first necessary to identify the loss of function and refer to the Impairment Tables related to that function, and then to identify the correct impairment rating.
Qualification Period
Section 80(1) of the Administration Act provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
The qualifying period for assessing whether or not a person is qualified for a payment has been the subject of a number of decisions in both the Federal Court and the High Court. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, the Court found, at 674:
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect to a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s 19.
Referring to this decision, in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court found, at [144]:
In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account…
The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
(Footnotes removed.)
The effect of these decisions is described by Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066, at [48]:
Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period. That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.
Following these established precedents, the Tribunal is restricted in its consideration of the Applicant’s condition at the date of his claim, or within 13 weeks of that claim, which provides the Tribunal with a qualification period of 6 April 2021 to 6 July 2021 (Qualification Period).
Following the practice in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [31], cited with approval in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, medical reports generated after a qualification period must be relevant to that period.
Continuing inability to work
One of the qualification criteria for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. Subsection 94(2) of the Act defines what is meant by ‘a continuing inability to work’ as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not 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.
Section 94(3B) of the Act provides that “[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” (original emphasis).
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment, they will not be required to actively participate in a program of support.
Program of support
A “program of support” (POS) is defined in s 94(5) of the Act as:
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Section 94(5) continues to define “work”:
“work” means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
A person is considered to have actively participated in a POS if they meet the requirements set out in s 7 of the POS Determination. These requirements include that the person must have participated in the POS for at least 18 months in the 36 months ending immediately prior to the date the person claimed a DSP.
Did the Applicant suffer a physical, intellectual or psychiatric impairment?
As detailed above, on 6 April 2021, the Applicant lodged a claim for a DSP with Centrelink. He listed in his application the conditions of meningitis, partial blindness, disk surgery (three times), foot neuroma, “4 time DUT R. leg” [right leg], “1 time DUT L. lung” [left lung], hernia, [left] shoulder repair and mental plan treatment (T92/539).
On 20 April 2021, the DSP Eligibility Assessment Recommendation form, completed by a Centrelink assessor, characterised those conditions as chronic pain, depression, circulatory system and spinal disorder (T94/547). On 24 May 2021, the Applicant’s Job Capacity Assessment Report was submitted, assessing the following conditions: chronic pain, spinal disorder, shoulder and upper arm disorder, psychological and psychiatric disorder and eye anomaly.
In the AAT1, the various conditions were considered as:
·right L5 radiculopathy, chronic pain, failed back surgery syndrome (back condition);
·right metatarsalgia (foot condition);
·hemianopia (eye condition);
·left supraspinatus (shoulder) tear (shoulder condition);
·recurrent deep venous thrombosis (DVT), pulmonary embolus and Leiden factor (variant);
·depression (mental health condition);
·syncopal episodes; and
·gastric sleeve.
The Tribunal notes that the Respondent accepts that the following conditions were fully diagnosed, treated and stabilised: back condition, foot condition, shoulder condition, eye condition, recurrent DVT, pulmonary embolus and Leiden factor variant (R3 para [5.20]).
The Tribunal accepts these conditions were fully diagnosed, treated and stabilised and for the purposes of 94(1)(a) of the Act that the Applicant suffered from impairments during the Qualification Period. These conditions will be discussed in more detail when they are assessed against the relevant Impairment Table.

The Applicant’s depression, syncopal episodes and gastric sleeve issues are, however, disputed, and are discussed below.
MENTAL HEALTH CONDITION
There are numerous references to the Applicant having depression in the various medical records provided to the Tribunal. On 12 February 2019, the Applicant’s general practitioner, Dr Sam Hanna, stated that the Applicant had chronic depression, with ‘very low mood, insomnia, unable to cope …’ describing the past treatment medication including Lexapro and current and future treatment as Zoloft (T41). Dr Hanna repeated this advice on 27 May 2019, 22 August 2019, 27 December 2019 and 14 December 2020 (T45, T50, T57, T60).
The Applicant was referred to a psychologist for treatment and attended eight sessions (T86, R3 Annex B/18).
On 24 May 2021, the Job Capacity Assessment Report noted that (T99/560-561):
… There is no evidence that this diagnosis [of chronic depression] has been verified by a Clinical Psychologist or Psychiatrist.
… Notes previous trial of Lexapro then Zoloft, with ongoing Clinical Counselling. There is a letter completed by Registered Psychologist Donna Stambulich (also verified as Registered Psychologist on AHPRA [Australian Health Practitioner Regulation Agency] registration site with no clinical endorsements) 05/10/20, which confirms referral and initial consultation …
… This condition is verified by his treating General practitioner as an ongoing and permanent condition. As this diagnosis is not verified by a Psychiatrist or Clinical Psychologist, this condition is currently assessed as not fully diagnosed, treated and stabilised.
In the Health Professional Advisory Unit (HPAU) report, dated 17 February 2022 (R3 Annex A/7) it was noted that:
Although [the Applicant] has been managed for his mental health condition since 2019, with regular GP management and 8 sessions with a psychologist, he has not been formally diagnosed by a psychiatrist or clinical psychologist which is a requirement for consideration of mental health impact in assessing work related impairment for disability support pension … the mental health condition cannot be deemed to be fully diagnosed, treated or stabilised over the claim period.
The Tribunal accepts that it is not open to it to find the Applicant’s depression as fully diagnosed, treated and stabilised during the Qualification Period.
The Applicant told the Tribunal that ‘I’m not a doctor, I’m following my GP instruction for all my medical condition’ (transcript/8). Having been advised by his general practitioner that he had depression, having taken medication, and seen a counsellor, the Tribunal understands this finding may be a source of confusion or frustration for the Applicant.
SYNCOPAL EPISODES
On 2 March 2016, the Applicant was referred to a consultant neurologist regarding neurological symptoms, including headaches and ‘blankness’ (T8). They may have related to childhood meningitis. The Applicant saw the neurologist again on 21 March 2016 and 5 September 2016 with the recommendation of a further period of observation (T9, T14).
On 25 October 2021, outside the Qualification Period, an MRI was requested for unexplained headaches (R2/19). The Applicant also advised the AAT1 that he had further episodes of losing consciousness six weeks before the hearing (T2/12).
This condition, which appears to come and go, is not diagnosed. It appears that it requires further investigation.
GASTRIC SLEEVE
The Applicant had a gastric band installed, which was later removed, and the Applicant subsequently underwent an elective sleeve gastrectomy (T31, T38/318). Reviewed after the surgery at various intervals, the Applicant was reportedly doing well (T39, T40).
There is no evidence before the Tribunal of any issues related to this surgery or suggestion that it is an impairment.
BACK CONDITION
The Applicant has a history of back pain, dating back to 1998, and has had surgical intervention on two occasions (R3, Annex A/2).
The Applicant was referred to a neurosurgeon in April 2021 after ‘worsening pains lower back’ which was also affecting his right leg (T93/546). The Applicant’s general practitioner advised the HPAU that no further interventions are planned. Although it is noted that during the hearing the Applicant suggested that a disc fusion was an option that had been explored (transcript/13).
It is accepted that during the Qualification Period, the back condition was fully diagnosed, treated and stabilised. It is noted that the Applicant’s general condition may have worsened over time, and at various points during the hearing, the Applicant described his condition as how it had become, and how it was during the Qualification Period. This adds to the difficulty in assigning the appropriate impairment rating.
The HPAU reported noted that the Applicant was able to sit in and drive a car for at least 30 minutes but was unable to bend forward to pick up a light object at knee height (R3, Annex A/8).
During the hearing, the Applicant demurred, stating (transcript/13):
Not fully 30 minutes but I say 30 minutes because I’m never doing it. Honestly, I’ve never done it but when you ask me, I evaluate what I can do.
However, the Applicant later stated that a friend would drive him to medical appointments, which was a 30 to 40 minute drive (transcript/16). The Applicant stated that he could not perform overhead activities (transcript/14). The Applicant had difficulty turning his neck to look over his shoulder, noting (transcript/15):
I can turn it to you but little bit with the shoulder, but I can’t – and neck – neck spine here is already tight but I have to wear a neck something – a neck like this to make it little far.
To attract a severe functional impact the Applicant would be unable to perform overheard activities, turn their head or bend their neck, bend forward to pick up an object from a desk or table or remain seated for at least 10 minutes.
The Applicant is able to reach for items off a shelf and is able to sit for extended periods of timing. The hearing of this application went for over one hour. On this basis, the Applicant appears to fall short of the requirements of severe functional impact under the relevant Impairment Table, being Table 4 – Spinal Function.
While it is challenging assigning an impairment rating some time after the Qualification Period, the HPAU and the AAT1 assignment of a moderate impairment, attracting 10 points, appears appropriate. I therefore assign the Applicant’s back condition 10 points under Table 4.
FOOT CONDITION
The Applicant has had long standing issues with chronic pain in his right foot (T43, T48, T49). The diagnosis was chronic right foot dysesthesia and paraesthesia, and further surgery was not recommended (T49). This condition is fully diagnosed, treated and stabilised.
For an impairment rating of 20 points under the relevant Impairment Table, being Table 3 – Lower Limb Function, the functional impact would such that the Applicant would be unable to walk around a shopping centre or supermarket, unable to walk from a carpark, stand up from a sitting position without assistance and require assistance to use public transport. Moreover, the Applicant would require assistance to move in, or transfer to or from a wheelchair, and be unable to move around using walking aids.
The Applicant is able to walk limited distances with walking aids, is able to move around a supermarket and stand up from a sitting position.
The Tribunal concurs with the HPAU and AAT1 assessment that the foot condition attracts 10 points under Table 3, being a moderate impairment, insofar as the Applicant is unable to walk far outside his home and needs to drive or be driven to the local shops, however, can move around independently with walking aids.
eye condition
On 21 June 2017, an ophthalmologist described the Applicant’s vision as follows (T25):
Visual acuity shows 6/6 right eye and 6/18 pinhole left eye. He does have mild optic pallor in both eyes. Visual fields show homonymous hemianopia, which is right sided and incongruous because there is no symmetry between the right and left eye.
It is accepted that the condition is fully diagnosed, full treated and stabilised and that s 94(1)(a) of the Act was satisfied during the Qualification Period.
The Applicant told the hearing (transcript/17):
As the doctor explain it to me, due to the side effect of the meningitis, I was when I was younger have double vision and they treat it for me and it ended up by having to have blind, half in this eye and half in the other eye. It means if I’m like this and I try to see you, I cannot see you without doing that.
It means the outer half is blind. Inner half is blind. Both is working based on the 50/50 available but with movement of the neck – in the neck sometimes it’s painful. But this what I need to – for everyone to consider it, please. Yes, you can make the eyes function but with the pain of the other part, like, the neck, the shoulder. To move like this to make the eyes catch you away from the blind one, I have to move other part, have a problem also.
The Applicant was, however, recorded as fit to drive on 22 November 2019 when he was issued a Medical Assessment Certificate (Fitness to Drive) which tested his visual acuity (T52/342).
Therefore, no impairment points can be assigned to this condition by the Tribunal.
SHOULDER CONDITION
The Applicant has had right shoulder pain since a fall in 2016, and was referred to an orthopaedic surgeon, Mr Homan Zandi (T23). Mr Zandi identified a degree of tendinopathy affecting the shoulder, and recommended he undergo subacromial steroid injections and a future discussion of about the possibility of acromioplasty (T24). He had further treatment on his shoulder in January 2020 (T65).
In April 2020, the Applicant presented to a second orthopaedic surgeon, Mr Geoff Cooper, regarding sever pain in his left shoulder (T67). Mr Cooper recommended a cuff repair as the best option, which the Applicant had in May 2020 (T74, T78). The Applicant had some issues with pain, which was improving, and was undertaking exercise by July 2020 (T80)
It is accepted that the Applicant’s shoulder conditions are fully diagnosed, treated and stabilised and that s 94(1)(a) of the Act was satisfied during the Qualification Period.
When asked about his shoulders during the hearing, specifically that the HPAU report noted some improvement, the Applicant stated (transcript/17):
APPLICANT:             Yes, my shoulder have full cut on the shoulder and we done full repair surgery. And we went to the physio and with the physio some (indistinct) like allergy and some problems with my shoulder, and we treat it. And after this he give me some exercise. My shoulder, not meaning shoulder, the full hand and arm start moving with less pain than when it’s full cut.
RESPONDENT:        That’s good news. That’s good news. Is it both shoulders or just one shoulder?
APPLICANT:             No, one I done the surgery because it’s full cut. The other one which is still 50 per cent cut but honestly I’m not going to do a surgery for it. Because the painkiller is easier for me for surgery with not 100 per cent sure to returning back even the position before you go to the surgery because it’s just a gambling. It might be work, it might be not.
The HPAU report noted that (R3, Annex A/8):
As per the information provided, pain and function has improved and we have not been provided with any evidence of an ongoing functional impairment which would attract an impairment rating on Table 2 – Upper Limb Function.
The Tribunal concurs that there is insufficient enough evidence of functional impairment to enable an assessment against the relevant Impairment Table.
OTHER CONDITIONS
The Tribunal notes various references in the Applicant’s medical records to DVT, pulmonary embolus and Leiden factor variant (T63, T81). However, there is no evidence of functional impairment to enable an assessment against the relevant Impairment Tables.
overall impairment rating
The Applicant’s total impairment rating across his impairments is 20 points, satisfying paragraph 94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
Paragraph 94(1)(c) of the Act requires that the Applicant has a ‘continuing inability to work’ because of the impairment(s).
In accordance with s 94(2)(aa) of the Act, where a person does not have a rating of 20 impairment points under one Impairment Table, they required to have participated in a POS. If they have not done so, they cannot be found to have a continuing inability to work.
The POS Determination is an instrument made under ss 94(3C) and 94(3E) of the Act. It details the requirements a person needs to satisfy to demonstrate they have actively participated in a POS.
Subsection 7(1) of the POS Determination, states that:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
….
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
There is no evidence before the Tribunal that the Applicant has participated in a POS for at least 18 months in the Qualification Period.
The Applicant cannot satisfy s 94(1)(c) of the Act and has not, in accordance with s 94(2)(aa) demonstrated a continued inability to work.
CONCLUSION
The Tribunal accepts that the Applicant has a range of conditions that cause him considerable discomfort and pain. It may be that his condition has worsened since his application, and it is open to him to apply again for a DSP.
The Tribunal finds the Applicant has impairments for the purposes of the Act and has a total impairment rating of 20 points. However, the Applicant has not demonstrated a continued inability to work and has not satisfied s 94(1)(c) of the Act.
DECISION
The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 7 September 2021, is affirmed

I certify that the preceding 88 (eighty-eight paragraphs are a true copy of the reasons for the decision herein of Member S Barton

.................[Sgd].......................................................
Associate
Dated: 22 December 2022

Date of hearing: 26 October 2022

Applicant: In person

Solicitors for the Respondent: Liam Dennis of Minter Ellison, instructed by Mr Patrick Deane of Services Australia

Date of hearing:	26 October 2022
Applicant:	In person
Solicitors for the Respondent:	Liam Dennis of Minter Ellison, instructed by Mr Patrick Deane of Services Australia