Marlene Manhire and Secretary, Department of Social Services

[2014] AATA 585

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/5864

Re

Marlene Manhire

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne

Date 22 August 2014

Place Adelaide
The Tribunal affirms the decision under review.
............................[Sgd]............................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a "continuing inability to work" – reports of medical practitioners considered – Job Capacity Assessments conducted – decision under review affirmed.
LEGISLATION
Social Security Act 1991(Cth) s 94
Social Security (Administration) Act 1999 (Cth) cl 4 of Schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member R W Dunne
22 August 2014
INTRODUCTION

The applicant in this case is Marlene Manhire. On 14 October 2013, the Social Security Appeals Tribunals (“SSAT”) affirmed an earlier decision made by an Authorised Review Officer (“ARO”) of the respondent on 13 August 2013 to reject the claim for disability support pension (“DSP”) lodged by the applicant on 6 May 2013. The applicant has applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Ms Manhire was self-represented and the respondent was represented by Mr C Visser (from the Program Litigation and Review Branch, Department of Human Services). I admitted into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·six pages of handwritten notes by the applicant about her medical conditions, filed with the Tribunal on 12 May 2014;[2]
·letter from Dr Patrick Walker to Dr Francis Fung, dated 30 July 2013;[3]
·letter from Dr Patrick Walker to Dr Francis Fung, dated 8 November 2013;[4]
·medical report for DSP from Dr Francis Fung, dated 9 October 2013;[5] and
·medical report for DSP from Dr Julie Forsythe, dated 11 October 2013.[6]
[1] Exhibit R1.
[2] Exhibit A1.
[3] Exhibit R2.
[4] Exhibit R3.
[5] Exhibit R4.
[6] Exhibit R5.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether Ms Manhire was qualified to receive DSP on the date of her claim, being 6 May 2013, or within 13 weeks, that is by 5 August 2013 (“Claim Period”).
In respect of the Claim Period, the respondent accepted that Ms Manhire had a physical, intellectual or psychiatric impairment. The respondent did not accept:
(a)that the impairment attracted an impairment rating of at least 20 points under s 94(1)(b) of the Act; and
(b)that Ms Manhire had a “continuing inability to work”, because of her impairment, within the meaning of s 94(1)(c)(i) and ss 94(2), (3), (3B) and (3C) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“Qualification for Disability Support Pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)     the person has a continuing inability to work;
(ii)   the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i)     the person is under 35 years of age;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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 a severe impairment within the meaning of subsection (3B) -- the person has actively participated in a program of support within the meaning of subsection (3C); 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.
Note: For work see subsection (5).
(3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(3A) If:
(a)a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(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.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under on Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under on Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
Other definitions
(5)       In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find and maintain work; and
(b)either;
(i)is funded(wholly or partly0 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.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
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.
…”
Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“Administration Act”), which reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION DETERMINATION 2011 (“Determination”)
The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the Determination, which relevantly reads:
“6.      Applying the Tables
Assessing functional capacity
(1)The 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 choses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)     the person’s condition causing that impairment is permanent; and
Note:    For permanent see subsection 6(4).
(b)     the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example:    A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
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
Note:   For fully diagnosed and fully treated see subsection 6(5).
(c)   the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)     the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)   whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)     either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)     the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment 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.
…”
SOCIAL SECURITY (REQUIREMENTS AND GUIDELINES – ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Requirements and Guidelines”)
The Requirements and Guidelines set out what must be taken into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for DSP. The Requirements and Guidelines relevantly read:
“Part 1 Preliminary
…
3.      Interpretation
In this Determination:
Act means the Social Security Act 1991.
designated provider means any of the following:
(a)     a Job Services Australia provider;
(b)     a Disability Employment Service;
(c)    an Australian Disability Enterprise;
(d)     a provider authorised by a State or Territory government to conduct a transition to work program;
(e)   a provider authorised by the relevant workers’ compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory;
(f)   a provider authorised by an insurer as a result of a claim under a contract of insurance for an accident (including a motor vehicle accident), sickness or other trauma;
(g)     a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.
…”
“Part 2     Requirements for active participation
5.Requirements for active participation
(1)A person has actively participated in a program of support if:
(a)   the person has:
(i)     complied with the requirements of the program of support; and
(ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c)subsection (6) is satisfied in relation to the person and the program of support.
(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.
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)   the duration of the program of support was less than 18 months; and
(b)   the person completed the program.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the relevant date of claim; and
(b)   the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.
(5)This subsection is satisfied in relation to a person and a program of support if:
(a)   at the relevant date of claim, the person is participating in the program of support; and
(b)   the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
(6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:
(a)   the details of the designated provider of the program;
(b)   the dates when the person began the program and, if applicable, ceased the program;
(c)the reason for ceasing the program (if any);
(d)   any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;
(e)the reason for any period of non-participation in the program;
(f)    the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g)   the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;
(h)   the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i)    the frequency of contact that the person had with the designated provider of the program.
Part 3 Guidelines
6.      Program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a)   was provided by a designated provider; and
(b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and
(d)includes at least one of the following activities;
(i)job search;
(ii)job preparation;
(iii)education and training;
(iv)work experience;
(v)employment;
(vi)return to work;
(vii)vocational or occupational rehabilitation;
(viii)injury management;
(ix)an activity designed to assist the person to return to, maintain or obtain employment.
7.      Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary may take into account any material or document that:
(a)   relates to the person’s participation in a program of support; and
(b)relates to a program of support undertaken in the 36 months prior to the relevant date of claim.
…”
BACKGROUND

The material facts in this case are not in dispute and are largely extracted from the respondent’s statement of facts and contentions.
As part of her claim for DSP, Ms Manhire also lodged medical reports on 3 April 2013 and 8 July 2013. These were both completed by Dr Francis Fung and stated that her medical conditions were epicondylitis, bilateral shoulder pain/bursitis, pemphigoid (bullous) feet and cervical spondylosis. Dr Fung listed conditions that were generally well managed and caused minimal or limited impact as recurrent back pain/disc prolapse/ scoliosis, diverticular disease, blisters, GORD, “knees OA”, tennis elbow and urinary incontinence.
A Job Capacity Assessment (“JCA”) was conducted on 21 May 2013 to assess the applicant’s qualification for DSP. The assessor assessed the applicant’s conditions as follows: left elbow epicondylitis;[7] bilateral shoulder pain/bursitis;[8] spinal disorder;[9] diverticular disease;[10] lower limb deficiencies;[11] a gastroenterological condition;[12] osteoarthritis;[13] and a liver disorder.[14] The assessor found that only the spinal disorder and the diverticular disease were fully diagnosed, fully treated and fully stabilised, and assigned “0” impairment points for all of the applicant’s medical conditions. Another JCA was conducted on 24 July 2013, which confirmed the findings in the JCA on 21 May 2013. A decision was then made to reject the applicant’s claim for DSP, and an ARO reviewed and affirmed the decision.
[7] Exhibit R1, T19/215.
[8] Exhibit R1, T19/216.
[9] Exhibit R1, T19/216.
[10] Exhibit R1, T19/217.
[11] Exhibit R1, T19/217.
[12] Exhibit R1, T19/218.
[13] Exhibit R1, T19/218.
[14] Exhibit R1, T19/218.
On 14 October 2013, the SSAT reviewed and affirmed the decision under review. It found that the applicant should be assigned 10 impairment points under Impairment Table 2 (upper limbs), 10 impairment points under Impairment Table 3 (lower limbs) and 10 impairment points under Impairment Table 4 (back condition). However, the SSAT found that, as the applicant had not actively participated in a program of support within the meaning of s 94(3C) of the Act, she did not have a continuing inability to work, could not satisfy s 94(1)(c) of the Act, and, as such, was not qualified to receive DSP.
EVIDENCE
Evidence of Ms Manhire
In giving her evidence, Ms Manhire referred to various medical conditions she had outlined in her notes.[15] She said the job capacity assessor had been wrong in saying that her diverticulitis did not cause any problems and that it was not fully diagnosed, treated and stabilised. The condition had been diagnosed around 2000 at the Modbury Hospital when she had a colonoscopy. Her back problem caused her a lot of pain and she did not indicate to Dr Fung that it did not cause her any problems. Her pemphigoid bullous eruptions on foot had been treated with steroids, but she could not take them any more as her weight gain had been too great. She said her reflux disease had also been fully diagnosed, treated and stabilised, but she had a lot of problems with that as well. She had a liver disease and three tumours on her liver. She had rotator cuff problems with her left shoulder and had received steroid injections between October 2011 and April 2013 which had not been successful. She also had parathesia in the middle of her hands. She suffered from edimia in her feet and ankles and nothing could be done to help her. She suffered from a sleep disorder and her asthma had been diagnosed around 1995. As a result of her various medical conditions, she had suffered from panic attacks and chronic depression, but had refused to take medication. She also suffered from cysts on her liver which had not been fully treated and stabilised. Her lung was not expelling air, but had not been diagnosed. Because of her increasing obesity, she was suffering from spondylosis and Vitamin D deficiency.
[15] Exhibit A1.
In cross-examination by Mr Visser, Ms Manhire was referred to the letter from Dr Patrick Walker dated 8 November 2013 and to her presentation to him of tinea pedis. She acknowledged that her partner had a problem with his feet, which may have been the source of her recurrent tinea infection. She said she had taken medication in November to address the tinea infection. She acknowledged that the condition in her hands was now better than at the time of her DSP claim. However, she could still not reach high levels. She still had problems using her hands and could not open cans or perform other household tasks. When questioned about her back condition, she said she believed that more points should be assigned under Table 4 of the Impairment Tables. She could sit down and bend forward, but experienced pain in doing so. She could turn her head in different ways, but would suffer from dizziness. She would wash her clothes and hang them up if she wanted to. She said she was 53 years old and had been receiving the widow’s allowance. She said she had been advised by Centrelink that “job search” was not required.
Ms Manhire then said she had medical reports from Dr J Forsyth, which she had lodged with Centrelink at Murray Bridge or Mt. Barker. She agreed that there were no copies of the medical reports from Dr Forsyth in the T documents.
Evidence of Dr Forsyth
Dr Forsyth gave her evidence by telephone. She said that the applicant had ceased working because of blisters on her feet. When questioned by Ms Manhire, she said that, in her opinion, the applicant would be entitled to DSP. However, when questioned by the Tribunal she did not know how the Impairment Tables would be assigned to Ms Manhire’s medical conditions. The blistering on her feet was severe in April 2013 and she had chronic back problems. Her feet condition had been reviewed by Dr Patrick Walker for possible bullous pemphigoid. She acknowledged that the blisters had not been fully diagnosed, treated and stabilised and she agreed with what Dr Fung had said in his reports about the recurrent pemphigoid eruptions being generally well managed or having limited impact.
CONSIDERATION
Was the applicant qualified to receive DSP during the Claim Period from 6 May 2013 to 5 August 2013?
In order to qualify for DSP, Ms Manhire must satisfy the relevant requirements of s 94 of the Act. In other words, she must be qualified for DSP on the date of her claim or within the period of 13 weeks following. Thus, the primary question is whether she satisfied the relevant criteria in s 94 at any time during the Claim Period, rather than whether she currently satisfied those criteria.
One of the relevant criteria for DSP is whether an applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see s 94(1)(b) of the Act). In this regard, the rules for applying the Impairment Tables in Part 2 of the Determination are relevant. Section 6(3) to s 6(6) of Part 2 relevantly require that:
(a)the person’s condition causing that impairment is permanent;
(b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and
(c)a condition is fully stabilised if 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 two years.
When Ms Manhire lodged her DSP claim, she claimed to be suffering from epicondylitis, bilateral shoulder pain/bursitis, pemphigoid (bullous) feet and cervical spondylosis. In his medical reports dated 3 April 2013 and 8 July 2013, Dr Fung said that Ms Manhire’s recurrent back pain/disc prolapse/scoliosis, diverticular disease, blisters, GORD, knees OA, tennis elbow and urinary incontinence were generally well managed and caused minimal or limited impact.
There were two later medical reports that were not included in the T documents. In a medical report of Dr Fung dated 9 October 2013, he said that the applicant’s diverticular disease, shakes/tremor and lymphoedema were generally well managed and again caused minimal or limited impact. In a medical report of Dr Forsyth dated 11 October 2013, she said that the applicant’s asthma, back pain, sciatica and diverticulitis were well managed and again caused minimal or limited impact.
In the JCA report dated 21 May 2013, the assessor assessed the applicant’s conditions referred to in paragraph 11 of these reasons. He found that only the spinal disorder and the diverticular disease were fully diagnosed, fully treated and fully stabilised. However, he assigned “0” impairment points for all of the applicant’s medical conditions. Another JCA was conducted on 24 July 2013 and the assessor there confirmed the findings in the JCA on 21 May 2013. I note that the assessors in the JCAs and the ARO agreed that the applicant’s medical conditions should be rated at “0” impairment points under the Impairment Tables. However, the SSAT found that 30 impairment points should be assigned to the applicant’s upper limbs (10 points under Table 2), lower limbs (10 points under Table 3) and back condition (10 points under Table 4).
The respondent submitted that the finding of the assessors in the JCA reports on 21 May 2013 and 24 July 2013 should be preferred to the finding of the SSAT. In my view, it is not necessary for me to address that submission. In its decision, the SSAT was satisfied that none of Ms Manhire’s functions were impaired to the extent that a rating of 20 points could be achieved under any single Impairment Table. As such, she did not have a severe impairment as defined in s 94(3B) of the Act and she could only have a continuing inability to work if she satisfied the condition in paragraph (aa) of s 94(2), that is, she actively participated in a program of support within the meaning of subsection (3C) of s 94 of the Act.
Ms Manhire said that Centrelink had granted her exemption from undertaking a program of support. She also said that she was unaware that she was required to undertake such a program to be entitled to DSP, and had not been advised by Centrelink that it was necessary for her to do so. She contended that she had been part of a “job network”. However, there was nothing in the evidence before me to support this contention, and Mr Visser said that Centrelink knew nothing about it.
Part 2 of the Requirements and Guidelines set out the requirements for active participation in a program of support. Part 3 of the Requirements and Guidelines sets out guidelines that the respondent Secretary (or this Tribunal, upon review) must comply with in deciding whether he or she is satisfied that the person has actively participated in a program of support. Section 5(1) of Part 2 states that a person has actively participated in a program of support if the person:
(a)has complied with the requirements of a program of support; and
(b)has participated in the program of support during the 36 months ending immediately before the relevant date of claim; or
(c)has participated in the program of support for at least 18 months, or if the duration of the program of support was less than 18 months, the person has completed the program.
CONCLUSION
On the evidence, Ms Manhire has not participated in a program of support. She has said that she was not aware that she had to do so. The relevant provisions in the Requirements and Guidelines have not therefore been complied with by Ms Manhire and the Tribunal has no discretion under them to allow her to avoid those Requirements and Guidelines. It follows that she does not have a continuing inability to work within the meaning of s 94(1)(c)(i) and s 94(2)(aa) of the Act. Her claim for DSP cannot therefore succeed.
It is possible for Ms Manhire to make another claim for DSP and to actively participate in a program of support before making the claim. She must also ensure that all the other requirements of s 94 of the Act are complied with.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
......................[Sgd]..................................................
Administrative Assistant
Dated 22 August 2014

Date(s) of hearing 24 July 2014

Applicant In person

Advocate for the Respondent Mr C Visser

Solicitors for the Respondent Department of Human Services

[2014] AATA 585

22 August 2014

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Continuing Inability to Work

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5864
Re	Marlene Manhire
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member R W Dunne
Date	22 August 2014
Place	Adelaide

Date(s) of hearing	24 July 2014
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services