Markou and Secretary, Department of Social Services (Social services second review) - [2021] AATA 5292

Markou and Secretary, Department of Social Services (Social services second review) [2021] AATA 5292 (16 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6904
Re:Arista Markou
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:16 August 2021
Place:Adelaide

The Tribunal affirms the decision under review.
............................[SGND]..........................
Senior Member K Millar
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant had a continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Bourke v Secretary, Department of Social Services [2019] AATA 2365.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Mongan and Secretary, Department of Social Services [2016] AATA 344.
Noall v Secretary, Department of Social Services [2016] AATA 509.
O’Cass and Secretary, Department of Social Services [2016] AATA 876.
O’Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277.
Gordon and Secretary, Department of Social Services [2019] AATA 805.
Schurmann and Secretary, Department of Social Services [2020] AATA 1247.
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014.
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
REASONS FOR DECISION
Senior Member K Millar
16 August 2021
BACKGROUND

Ms Markou owned and ran a catering business until she had complications following surgery to remove a fibroid. She was subsequently diagnosed with fibromyalgia and depression. This has had a profound impact on her life and has required significant change to the way she lives and the activities she undertakes.
Ms Markou claimed a disability support pension on 28 August 2019. Her claim was refused, and subsequent reviews by an Authorised Review Officer and the Social Services and Child Support Division of this Tribunal affirmed this decision. Ms Markou seeks a review of the decision to refuse her application.
To be granted a disability support pension, Ms Markou must have a physical, intellectual or psychiatric impairment, her impairment must attract 20 or more points on the Impairment Tables, and she must have a continuing inability to work. If she does not have a severe impairment, she must have actively participated in a program of support to be considered to have a continuing inability to work.
The Authorised Review Officer found that Ms Markou’s impairments had a rating of 25 points, but she did not meet the program of support requirements. The Social Security and Child Support Division found that while Ms Markou’s impairments attracted 30 points on the Impairment Tables, she did not meet the program of support requirements and therefore did not have a continuing inability to work.
Ms Markou submits that she met these requirements. The Secretary submits that Ms Markou’s impairments do not attract 20 points on the Impairment Tables, or even if they do, she does not have a continuing inability to work.
DOES MS MARKOU HAVE A CONTINUING INABILITY TO WORK?
In this case, it is convenient to start with whether Ms Markou had a continuing inability to work.
As it applies to Ms Markou, to qualify for a disability support pension, s.94(1)(c)(i) of the Social Security Act 1991 (the Act) requires that she had a continuing inability to work.
The Tribunal must look to Ms Markou’s circumstances as they were at the time of the claim and the period of 13 weeks after the claim was lodged.[1] In this case, this is the period 28 August 2019 to 27 November 2019 (the claim period). Information after this period is only relevant if logically probative of the facts as they were during this period.
[1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
As it applies to Ms Markou, s.94(2) of the Act provides that a person has a continuing inability to work if:
·     the person does not have a severe impairment and the person has actively participated in a program of support; and
·     the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years; and
·     either the impairment is of itself sufficient to prevent the person undertaking a training activity during the next two years, or if it does not prevent the person undertaking a training activity, the training activity is unlikely because of the impairment to enable the person to do any work independently of a program of support within the next two years.
Does Ms Markou have a severe impairment?
The requirement to have actively participated in a program of support only applies if the person does not have a severe impairment as defined in the Act.
Ms Markou will have a severe impairment if her impairments are of 20 or more points under the Impairment Tables, of which 20 or more points are under a single Impairment Table.[2]
[2] s94(2)(3B) of the Act.
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). Part 2 of the Impairment Tables contain rules on applying the tables, and state an impairment rating can only be assigned if the person’s condition is permanent and is likely to persist for more than two years.[3] To be permanent, the person’s condition must be fully diagnosed, fully treated and fully stabilised.[4]
[3] cl.6(3) of the Impairment Tables.
[4] cl.6(4) of the Impairment Tables.
In applying the Impairment Tables, the information provided by health professionals specified in the Tables must be taken into account, together with any additional medical or work capacity information, and any other information specified in the Tables including the introduction to the Tables.[5] Symptoms reported by the person can only be taken into account where there is corroborating evidence.[6]
[5] cl.7(1) of the Impairment Tables.
[6] cl.8(1) of the Impairment Tables.
It was not suggested by Ms Markou that she could attract 20 or more points on a single Table other than Table 1 of the Impairment Tables, which relates to functions requiring physical exertion or stamina. The Secretary does not dispute that Ms Markou’s condition of fibromyalgia, which affects activities involving physical exertion or stamina, is permanent in that it is fully diagnosed, treated and stabilised, and is likely to persist for more than two years. Ms Markou’s condition of fibromyalgia was diagnosed by a neurologist, who is an appropriately qualified medical practitioner as required by the introduction to the Table. This diagnosis is also listed by a rheumatologist.[7]
[7] T16, page 301.
Ms Markou provided an information sheet on fibromyalgia at the hearing which was prepared by Arthritis Australia which lists symptoms of pain, extreme fatigue, poor sleep, problems with concentration and memory and irritable bowel. These are symptoms listed by the specialist as reported by Ms Markou.
Her general practitioner provides further diagnoses of chronic fatigue and a functional neurological condition. While a functional neurological condition was raised as a possible diagnosis by Ms Markou’s neurologist,[8] and a later report states she has functional neurological symptoms,[9] this was subsequently replaced with a diagnosis of fibromyalgia.[10]
[8] T16, page 343.
[9] T16, page 327.
[10] T16, page 311.
The Tribunal does not consider there is a need to distinguish between the effect of chronic fatigue or a functional neurological disorder and fibromyalgia, as the symptoms Ms Markou states she experiences are all symptoms of fibromyalgia, and it is accepted this condition is fully diagnosed, treated and stabilised. The Impairment Tables measure the functional effect on a person, and the functional effect of Ms Markou’s symptoms on physical exertion and stamina is considered under Table 1.
To rate 20 impairment points under Table 1, the person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening) …
Ms Markou must meet one of the items in (i) to (iv) for her impairment to be rated at 20 impairment points. Ms Markou described being able to walk to the supermarket and do her shopping in the claim period. She said she generally used the support of the trolley, and occasionally had to abandon her trolley and leave the supermarket if her shopping was taking too long, although this was a total of 6 or 7 times in a period of two years. The Tribunal does not consider leaning on the trolley shows she requires assistance.
Ms Markou described being able to walk from the carpark to the supermarket without assistance, and at times walked from her home to the supermarket.
In the claim period she was using public transport without assistance to attend her appointments with the disability employment service. She described being able to perform light day to day household activities.
As Ms Markou does not meet any of the descriptions in items (i) to (iv), she does not meet the criteria for 20 impairment points and does not have a severe impairment.
Ms Markou also suffers depression, which was diagnosed by a psychiatrist at the Pain Management Unit in 2018. She has seen a psychologist for a long period of time. While it was submitted she would currently meet the definition of severe impairment due to the effect of her mental illness, she had a further diagnosis of Post-Traumatic Stress Disorder (PTSD) after the claim period, and the impact of this diagnosis cannot be taken into account for the purposes of this claim.
Has Ms Markou actively participated in a program of support?
As Ms Markou does not have a severe impairment, she is required to have actively participated in a program of support.
A program of support is defined in s.94(5) of the Act as a program that is designed to assist a person to prepare for, find or maintain work, and is funded by the Commonwealth or is similar to such a program.
Ms Markou will have actively participated in a program of support if she satisfies the requirements in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Determination).[11] These guidelines are made under s 94(3E) of the Act. The Secretary, and the Tribunal in the place of the Secretary, must comply with guidelines in force under s.94(3E) in deciding if the person has actively participated in a program of support.[12]
[11] s 94(3C) of the Act.
[12] s.94(3D).
Part 2 of the Determination sets out the requirements for active participation, and a person has actively participated in a program of support if he or she satisfies the requirements in cl.7(1) of the Determination. These are:
(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;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support… if the person has complied with the requirements of the program of support and participated in the program of support in the relevant period.[13]
Has Ms Markou complied with the requirements of the program of support and participated in a program of support?
[13] cl.7(1) of the Determination.
The first requirement in cl.7(1)(a) is that the person has complied with the program of support and participated in the program of support.
It is not straightforward identifying what was required of Ms Markou in the program of support to determine if she had complied with the program as this is not clearly identified in the documents before the Tribunal.
Ms Markou attended appointments with Workskil Australian 2016 and sporadically as required in 2017. She was referred to a disability employment service, Maxima, and attended her first appointment with Maxima in March 2018.[14] A job plan was made for the period 28 February to 2 April 2018 with Maxima, however the Tribunal has not been provided a copy of this plan. Ms Markou then had a job plan made with Centrelink directly that required her to attend quarterly appointments with Centrelink.[15] A further plan was entered with Maxima on 7 March 2019. This is also not before the Tribunal. The job plan would have provided some indication of what was required of Ms Markou to participate in a program of support.
[14] T17, page 380.
[15] T17, page 381 and T16, page 226.
The evidence that is available for the program of support is contained in a form completed by an employee of Maxima called Information about participation in a program of support.[16] This records that Ms Markou started the program on 1 July 2018, and that the program is ongoing until she exits the program. The form records details of breaks in the program. The breaks include 31 October 2018 to 29 January 2019 and 18 February to 16 October 2019 due to medical exemptions. She had a further exemption from 18 August 2019 to 20 December 2019 due to her claim, and then another medical exemption 6 February 2020 to 6 July 2020.
[16] Exhibit A5.
In answer to the question “What would they normally need to do to fulfil the objectives of the program”, it is stated “Attend f/n (fortnightly) appointments, attend third party medical appointments to address her health condition, and apply for jobs when she was ready.” Ms Markou is reported to have attended appointments “as agreed.”
In answer to the question, “Did the customer comply with other program objectives?”, the box “no” is marked. The comment provided is “Customer’s focus was health and not seeking employment. The focus was non vocational”. It is reported that Ms Markou undertook activities to address a disability, injury or health condition, and that she saw her GP and health professionals on a regular basis.
Further information provided by Maxima[17] states, “Due to Ms Markou’s medical conditions, apparent mental state and emotional displays referring her to study or employment was not yet an option.” It also states, “Ms Markou was often emotional over the phone and struggled to speak and engage, often stating she was too sick or too tired to look for work.”
[17] Exhibit A4.
Ms Markou attended appointments with Maxima, with the records of her appointments showing she either attended appointments, rescheduled the appointment or had a valid reason not to attend.[18] Ms Markou told the Tribunal that her contacts with Maxima were mostly over the phone, and she talked about what was going on in her life, and felt they became an emotional support system. She said they were obligated to ask her if she had looked for work, but she was on a lot of medical certificates and was told nothing was suitable.
[18] T17, page 380.
There is no clear information about what the program of support required of Ms Markou. The form completed by Maxima does not state specifically what Ms Markou was required to do to participate in the program of support, or if she had any obligations under the program of support in the periods during which she had a medical exemption.
On the information before the Tribunal she was to attend appointments fortnightly, seek third party medical advice and apply for jobs when she was ready. As there are no records of her failing to attend or cancelling appointments, the Tribunal infers this was not required of her during periods of medical exemption. There is no suggestion she had failed to see third party medical providers. It is stated it was not yet an option for her to apply for jobs.
In the absence of any further information on what was required of Ms Markou to comply with the program of support, the Tribunal finds she has complied with the program of support and satisfies cl.7(1)(a)(i) of the Determination.
Ms Markou must also have participated in a program of support during the relevant period as defined in the Determination, which in this case is 27 August 2016 to 27 August 2019. The Centrelink records show she has attended appointments with Maxima and Workskil in this time,[19] and the Tribunal finds she has participated in a program of support and satisfies cl.7(1)(a)(ii) of the Determination.
[19] T17, page 380.
Requirement for the period of participation in a program of support
In addition to participating in and complying with a program of support, the person must meet one of the four requirements set out in cl.7(2) - (5) of the Determination.[20]
[20] cl.7(1)(b) of the Determination.
While it was initially submitted that Ms Markou met the requirements to have actively participated in a program of support as she had participated in a program of support for at least 18 months in three years before the claim, this was correctly not pursued at hearing as the period of medical exemption cannot be counted as participation under cl.8 of the Determination. Ms Markou is recorded as having completed significantly less than the required 18 months.[21]
[21] T15, page 195.
Ms Markou submits she meets cl.7(5) of the Determination. This is satisfied if:
(a)at the end of the relevant period, the person is participating in a program of support;
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
Was Ms Markou participating in a program of support on 27 August 2019?
The form completed by Maxima states that as at 15 February 2021 Ms Markou was participating in a program of support and that the program is ongoing.
At the end of the relevant period on 27 August 2019, Ms Markou was subject to a temporary medical exemption. This is described in the form completed by Maxima as a break in the program, for example, a period of inactivity, non-attendance or suspension of the program. This gives rise to the question of whether on 27 August 2019 she was participating in a program of support.
Clause 8 of the Determination states that:
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program.
While at first glance, this may appear to have relevance to the assessment of Ms Markou’s participation in the program at the end of the relevant period, clause 8 is directed to determining the length of time the person has participated in the program. This is relevant to the calculation of time for the purposes of cl.7(2), which requires the person to have participated in the program of support for at least 18 months during the relevant period. It is not directed to whether the person was participating at a specific point in time, which is the question posed by cl.7(5)(a).

In O’Cass v Secretary, Department of Social Services,[22] the Tribunal drew a distinction between the term “active participation” and “participation”, stating that just as a person can be temporarily absent from employment without ceasing their employment, the person can also be temporarily absent without ceasing to participate in a program of support.[23] This approach was applied in Schurmann v Secretary, Department of Social Services[24] and Mongan v Secretary, Department of Social Services.[25]
[22] [2016] AATA 876.
[23] [2016] AATA 876 at [147].
[24] [2020] AATA 1247.
[25] [2016] AATA 344.
Ms Markou sought, and was given, a temporary medical exemption that applied at the end of the relevant period and did not have obligations under the program at this time. In seeking and being provided with an exemption from the requirements, she continued to participate in the program.
The circumstances may be different where a person has disengaged from the program of support, has failed to seek an exemption or failed to comply with any requirements under the program of support at that time, however these are not the circumstances in this case.
Is Ms Markou prevented, solely because of her impairments, from improving her capacity to prepare for, find or maintain work?
Whether a person is prevented from improving his or her capacity to prepare for, find or maintain work will depend on the individual circumstances and the effect of his or her impairment. If the effect of the impairment makes a program of support of no utility, this will be sufficient to prevent the person improving his or her capacity to prepare for, find or maintain work. If the impairment makes it impracticable for the person to participate to some degree, even when the person’s disabilities are accommodated by the program, this will be also sufficient to prevent the person from improving his or her capacity to prepare for, find or maintain work. To be prevented from improving his or her capacity, the impairment must render improving this capacity impractical or impossible,[26] or keep improvement from occurring.[27]
[26] see Oxford English Dictionary (online at 5 August 2021) ‘prevent.’
[27] see Macquarie Dictionary (online at 5 August 2021) ‘prevent’.
Clause 7(5) of the Determination requires that the person is prevented from improving his or her capacity to prepare for, find or maintain work. It does not require that the person is able to prepare for, find or maintain work at the time. There may be rehabilitation or other steps required before the person is able to prepare for, find or maintain work.
In looking first to Ms Markou’s impairments, she has provided medical certificates from her general practitioner. These certificates cover the periods 31 August 2019 to 28 February 2019, 5 August 2019 to 18 November 2019, and 14 November 2019 to 14 February 2020 and are in similar terms. These medical certificates are in similar terms and refer to two sets of conditions.
The first set of conditions are depression, fibromyalgia, chronic fatigue and functional neurological disorder. The effect of these conditions is stated to be back, groin and lower limb pain, shakes and tremors, memory and concentration difficulties, significant nausea, new onset of experience of periodic paralysis and mood disturbance. The second set of conditions is a temporary exacerbation of pelvic pain from a uterine fibroid. This is reported to result in pelvic pain remaining persistent and getting worse in cold weather with urinary disturbance.
In considering if her impairments prevent Ms Markou from improving her capacity to prepare for, find or maintain work, the Tribunal has taken into account the factors specified by Ms Markou’s general practitioner that have an impact on her ability to participate in a program of support including pain, shakes and tremors, memory and concentration difficulties and mood disturbance. Her general practitioner strongly recommends a Centrelink independent medical specialist review.
The medical certificates state she is unable to do her usual work/study and is unable to do any other work for 8 or more hours per week. The conditions are reported to be temporary exacerbations of permanent conditions. It was submitted by Ms Markou this was because Centrelink would not accept medical certificates for the same condition if it was likely to continue for more than two years, so a temporary exacerbation was required for Centrelink to accept the medical certificate. Ms Markou’s general practitioner was not at the hearing to respond to this proposition, and the Tribunal is not prepared to accept that at the time her general practitioner completed the certificates this was not an accurate reflection of his assessment.
It was submitted by Ms Markou that as the medical certificates consistently state she has a capacity of less than 8 hours per week in the medial certificates over a lengthy period of time, this shows she is unable to improve her capacity as required by cl.7(5). It is submitted the job capacity assessments of 2015, 2016 and 2018 all assessed that she had a current capacity to work of 0 – 7 hours per week, and this also shows her impairments prevent her from improving her capacity to prepare for, find or maintain work.
Both the medical certificates and the job capacity assessments refer to her current ability to work, and this argument conflates her ability to work with her ability to improve her capacity to prepare for, find or maintain work. These are different tests, and evidence of her current ability to work does not of itself show she is prevented because of her impairments from improving her capacity to prepare for, find or maintain work.
Other information that relates to Ms Markou’s ability to improve her capacity to prepare for, find or maintain work is contained in the job capacity assessments.
The job capacity assessment dated 14 November 2019 was conducted by a registered psychologist, with contribution from a registered nurse and rehabilitation counsellor. The support requirements identified in the job capacity assessment report are to build work capacity, concentrate or remain task focussed, cope with work-related stress or pressure, learn new tasks and maintain sustainable employment. Interventions identified were disability management education and counselling, functional capacity evaluation and assessment, pain management program, psychological/cognitive assessment and intervention, job matching and job placement support. This assessment did not include Ms Markou’s diagnosis of depression, as no evidence had been provided at that time that she had received a diagnosis from a psychiatrist, nor was there any evidence from a clinical psychologist. Ms Markou later provided the diagnosis from the psychiatrist at the pain management unit.
A further job capacity assessment was conducted on 1 July 2020, which is after the claim period, and also includes details of the incident that occurred on 25 December 2019 after the claim period that led to her psychologist stating she had symptoms of PTSD and which had exacerbated her symptoms of depression.[28] The exacerbation of her symptoms and a possible diagnosis of PTSD are not matters which can be taken into account for the purpose of this review as they occurred after the claim period. Nevertheless, this assessment concludes that with the assistance of a disability employment service Ms Markou’s future work capacity may increase to 15- 22 hours per week with vocational guidance, retraining for a sedentary to light work role and ergonomic modifications and workplace support. It was submitted this is an overly optimistic assessment of Ms Markou’s abilities at that time.
[28] T16, page 346.
In looking to the effect of her impairments on her memory and concentration, Ms Markou stated that over time she has been able to research and engage with information about her conditions, finding that the FND-Hope website contained the most useful resources as it contains the stories of people living with neurological conditions. She was able to access and use resources on the internet about training the brain to control pain. She said she would refer to these resources “all the time”. However, a previous attempt to train to be a yoga instructor or as a personal trainer were not successful, and she said this was because she had difficulty sitting in front of a computer and absorbing the information. She states she still has problems absorbing information and gets distracted after reading a book for 10 minutes and does not watch television as she drifts off due to the distraction caused by pain.
In the claim period, it is stated Ms Markou had difficulty managing her house and on 18 May 2020, nearly six months after the end of the claim period, moved to a smaller house where she had less garden. Ms Markou gave evidence about the difficulties she had managing the house at that time, particularly keeping up with cleaning the house and maintaining the garden. The Tribunal accepts that her conditions and the fatigue she experienced made it difficult for her to manage in this property, however notes that her description of the difficulty she had managing also encompasses a period after 25 December 2019, when she suffered an event that led to an exacerbation of her symptoms. Ms Markou continues to live independently with modifications to her daily routine to accommodate her conditions, walks to the shops, plans and pre-prepares meals and attends medical and other appointments including more recently with her disability employment service Maxima.
At the hearing, Ms Markou was able to give evidence and answer questions for approximately two hours with one 10-minute break, with occasional lapses of concentration. Ms Markou said she was exhausted at the end of the hearing and did not want to provide further answers in re-examination. Ms Markou said, and the Tribunal accepts, that considerable planning is involved when she participates in activities, for example having to plan and pre-prepare her meals, limit her the food and fluid intake and plan not to do any other activity on the same day. However, her ability to plan for and participate in activities show that she is not prevented from participating in a fortnightly interview with a disability employment service provider or attending medical appointments to explore options to improve her capacity to prepare for, find or maintain work.
While Ms Markou participated for a period in the program at Workskil, she has had very limited contact with the disability employment services provider Maxima. She was referred to Maxima in February 2018 and up to the end of the claim period had attended two appointments in March 2019 and five in February 2019. Whether she can improve her capacity to prepare for, find or maintain work was not yet been tested by attending appointments or participating in activities under a program of support.
The Tribunal was referred to previous decisions where it was found the person was prevented from improving his or her capacity to prepare for, find or maintain work. While they are not binding, the Tribunal has considered these decisions.
In O’Gorman-Watson and Secretary, Department of Social Services, [29] the Tribunal found on the evidence before it that Ms O’Gorman-Watson would be unlikely to benefit from a program of support unless it was tailored to her specific needs. The is some information before the Tribunal in the response from Maxima that it is able to tailor a program of support to Ms Markou’s specific needs.
[29] [2014] AATA 277.
In Gordon and Secretary, Department of Social Services,[30] the Tribunal had direct evidence from the provider of the program of support about Ms Gordon’s participation in that program and the skills she had attempted to acquire. The Tribunal also had direct evidence of work trials Ms Gordon had undertaken and the outcome of those trials. This is not the case for Ms Markou, who has only consistently attended appointments with Maxima for a period of approximately five weeks in February and March 2019. She has not undertaken any other activities recommended by Maxima.
[30] [2019] AATA 805.
In Bourke v Secretary, Department of Social Services,[31] Ms Bourke had previously undertaken work trials and had been advised to exit the program, however she had declined. The disability employment service did not recommend recommencement in the program. The Tribunal found the nature of Ms Bourke’s conditions resulted in her being unable to benefit from a program of support as the program would not improve her capacity to prepare for or find work. The evidence before it included that Ms Bourke was invited to exit the program, which was not the case for Ms Markou.
[31] [2019] AATA 2365 at [77] and [82].
In Noall v Secretary, Department of Social Services,[32] the Tribunal found Mr Noall had completed the requirements to have undertaken 18 months in a program of support, however found that in any event he was refused access to employment services by the employment service provider because of his work capacity rating. These circumstances do not exist in this case as Ms Markou is currently provided services by Maxima.
[32] [2016] AATA 509
In Mongan v Secretary, Department of Social Services[33] Deputy President McCabe preferred the evidence of the medical practitioner which, while after the claim period, related to the person at the time of the claim. The medical evidence specifically stated Mr Mongan would not improve any more with the help of a support program. There is no such assessment of Ms Markou in this case, and in addition, her general practitioner strongly recommends assessment by a Centrelink independent medical specialist. This is also the assessment of Maxima, who states she is to attend third party medical appointments to address her health condition.
[33] [2016] AATA 344.
As can be seen from these cases, an assessment of whether the person is prevented solely by reason of his or her impairment from improving his or her capacity to prepare for, find or maintain work turns on the facts of the particular case, including the nature and effect of the impairment, other skills the person may have, and whether it has been demonstrated through participation in the program that the person cannot improve their capacity.
At the time of the claim period, Ms Markou was able to walk to the supermarket and care for herself independently. She was able to answer questions with occasional lapses of concentration for two hours at the hearing. The Tribunal is not satisfied that her impairments prevented her from participating in a program of support in the claim period.
Ms Markou has not yet had the benefit of having fortnightly appointments with Maxima, or assistance in applying for any suitable jobs as she has been medically exempt for much of the time from her referral to this service to the date of her claim. She attended a short series of appointments in February/March 2019 but has otherwise not attended. The extent to which Maxima could assist Ms Markou to improve her ability to prepare for, find or maintain work was largely unknown during the claim period.
CONCLUSION
Ms Markou has experienced considerable hardship after she developed fibromyalgia. She described having difficulty accepting the significant limitations this condition imposed on her, and her condition requires her to carefully plan her activities. However, the Tribunal considers she is not prevented from improving her capacity to prepare for, find and maintain work through participation in a program of support. As a result, it finds that she does not meet the requirements in cl.7(5) of the Determination.
Ms Markou does not otherwise meet any of the other requirements in cl.7(2) – (5) of the Determination and does not meet the requirements to have actively participated in a program of support. This means she does not meet s.94(2)(aa) of the Act, which is a requirement to qualify for a disability support pension.
The Tribunal appreciates Ms Markou has faced considerable challenges after developing fibromyalgia, and this has caused a major change to her life. The finding that she does not meet the criteria on this application, which applies to the period ending 27 November 2019, does not preclude her from applying again for a disability support pension. Any change to her condition or subsequent participation in a program of support can be considered at that time.
DECISION
The Tribunal affirms the decision under review.
………………[SGND]……………………
Associate
Dated: 16 August 2021

Date of hearing:
2 August 2021

Advocate for the Applicant: Ms Margaret Riley

Advocate for the Respondent: Mr Riley Calaby, Services Australia

Date of hearing:	2 August 2021
Advocate for the Applicant:	Ms Margaret Riley
Advocate for the Respondent:	Mr Riley Calaby, Services Australia