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

May and Secretary, Department of Social Services (Social services second review) [2016] AATA 1061 (21 December 2016)

Division

GENERAL DIVISION

File Number

2016/2641

Re

Edward May

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 21 December 2016

Place Canberra
The decision under review is affirmed.
...............[sgd].........................................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – claim for disability support pension – generalised osteoarthritis accepted as ‘permanent’ – diagnosis of depression – meaning of ‘clinical psychologist’ – rating of impairments resulting from ‘permanent’ conditions – no severe impairment – assessment of continuing inability to work – job capacity assessment not consistent with medical evidence – work capacity within two years below minimum threshold of ‘work’ definition - active participation in a ‘program of support’ – program of support provided by insurer under a State workers’ compensation scheme – meaning of ‘designated provider’ – temporal component not satisfied - assessment of ability to work independently of a program of support within two years – lack of evidence – evidentiary basis for inference – assessment of ability to undertake training activities – training activities unlikely to enable claimant to work independently of a program of support – active participation requirement not satisfied – decision affirmed
LEGISLATION
Social Security Act 1991, s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Mr S. Webb, Member
21 December 2016

From the age of 16, Edward May worked on farms as a shearer and labourer. He did so for 41 years. Over time, he developed medical conditions, including osteoarthritis and arthralgia, affecting his arms, shoulders, back, hips and knees. He sustained a work injury, in respect of which he claimed and was paid compensation. He returned to work for a time, but, ultimately, the symptoms he experienced prevented him continuing. Later, he claimed disability support pension (DSP). A delegate of the Secretary decided to deny his claim. This decision was affirmed on review. Unhappy with this result, Mr May applied for further review.
Issues
In order to determine whether Mr May’s DSP claim can be granted, it is necessary to decide if he satisfies the qualification requirements for DSP that are set out in s 94 of the Social Security Act 1991 (the Social Security Act). Essentially, it must be established that –
(a)Mr May has a physical, intellectual or psychiatric impairment;
(b)the impairment or impairments attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination); and
(c)he has a continuing inability to work 15 or more hours per week.
With regard to the continuing inability to work test, if Mr May does not have a ‘severe impairment’ under s 94(3B), being an impairment attracting a rating of 20 or more points under a single Impairment Table, it is necessary to determine if he ‘actively participated in a program of support’ and met the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Participation Determination).
It is important to note that, for DSP to be payable under Mr May’s claim, it must be established that he satisfied the qualification requirements for DSP on the day he made the claim (4 June 2015), or within 13 weeks thereafter (to 4 September 2015) (the qualification period). Otherwise, DSP is not payable and his claim must fail.
As is common in cases of this kind, there are materials before the Tribunal from outside the qualification period. Insofar as this material relates to Mr May’s impairments and inability to work during the qualification period, it is appropriate to have regard to it.
Impairment
The Secretary accepts that Mr May had physical and psychiatric impairments arising from conditions of generalised osteoarthritis, low back and hip pain, right arm and shoulder condition, depression, knee pain, left shoulder pain and deafness during the qualification period.
More specifically, the medical evidence of Dr Mackey (Mr May’s treating general practitioner),[1] Dr Howard (a treating orthopaedic surgeon)[2] and Dr Dixon (a consultant orthopaedic surgeon),[3] and a job capacity assessment by ‘Laurie’ (a rehabilitation counsellor),[4] establish that Mr May had the following impairments during the qualification period –
(a)reduced mobility and altered gait;[5]
(b)reduced bending and sitting;[6]
(c)reduced range of neck and shoulder movement;[7]
(d)reduced endurance;[8]
(e)difficulty using right arm and lifting,[9] including reduced grip strength,[10] loss of sensation, weakness and loss of power and muscle mass in the hand and right lower arm;[11]
(f)impaired mental health, characterised by depression;[12] and
(g)hearing loss in the right ear.[13]
[1] See reports in T10, T20, T25 and Exhibit 1.
[2] See reports in Exhibit 4.
[3] See report in T6.
[4] See report in T17.
[5] T10 folio 44, T19 folio 93 and T17 folio 86.
[6] Ibid.
[7] T10 folio 47 and T17 folio 86.
[8] T10 folio 47.
[9] T19 folio 93 and T17 folio 86.
[10] T17 folio 86.
[11] Exhibit 1, page 2; see also Exhibit 4, 8 August 2012 report by Dr Howard.
[12] T10 folio 44.
[13] T10 folio 48, Exhibit 1, page 3 and T17 folio 87.
It follows that the first DSP qualification criterion set out in s 94(1)(a) of the Social Security Act is satisfied.
There is evidence that Mr May suffered an inguinal hernia that was surgically repaired on 5 November 2010.[14] It is not established that this hernia caused any impairment during the qualification period.
[14] T4.
Mr May gave oral evidence that he suffers from vision impairment – he is virtually blind in his right eye. There is no medical evidence in respect of diagnosis of this condition or to corroborate the extent of Mr May’s visual impairment during the qualification period.
Impairment rating
The second DSP qualification criterion requires a rating of 20 or more points under Impairment Tables set out in the Impairment Determination.
The Secretary concedes that Mr May satisfies this requirement.
Osteoarthritis and epicondylitis
At the hearing, the Secretary’s advocate informed me that Mr May’s generalised osteoarthritis condition may be accepted as ‘permanent’, and that resulting impairments of his upper limbs, lower limbs and spinal functions attract ratings totalling 20 points - 5 points under Table 2, 5 points under Table 3 and 10 points under Table 4, respectively. On this basis the Secretary argues that, while Mr May satisfies the test under s 94(1)(b) of the Social Security Act, he does not have a ‘severe impairment’ for the purposes of s 94(3) – he does not have an impairment that attracts a rating of 20 or more points under a single Table.
This is consistent with my assessment of the relevant evidence.
On the evidence of Dr Mackey,[15] Mr May suffers from generalised osteoarthritis and right elbow epicondylitis. The report of Dr Dixon on 18 October 2012 establishes that these conditions were stabilised and fully treated at that time. I note that Mr May’s epicondylitis was surgically treated, albeit without resolution of symptoms, by Dr Howard.[16] I am satisfied that these conditions were fully diagnosed, fully treated and fully stabilised within the qualification period commencing on 4 June 2015, and resulting impairments were likely to persist for more than two years.
[15] See Exhibit 1, page 2, T10, T19 and T20.
[16] See reports in Exhibit 4.
I am also satisfied that these impairments are most appropriately rated under Tables 2, 3 and 4, rather than under Table 1. A rating under Table 1 would not adequately reflect the degree of impairment and the related impact on Mr May’s ability to function.
At this point it is necessary to observe that the upper limb impairments resulting from the osteoarthritis and epicondylitis conditions Mr May suffers are not adequately differentiated to permit separate assessment. The upper limb impairments are: reduced range of motion in the shoulders, especially on the right, difficulty using right arm and lifting, including reduced grip strength, loss of sensation, weakness and loss of power and muscle mass in the hand and right lower arm. These impairments cannot be counted twice – only a single rating under Table 2 can be given.
Mr May’s upper limb impairment has a moderate impact on activities using his arms and hands. Mr May confirmed in his oral evidence, which was not challenged, that he cannot pick up a litre of liquid using his right hand and he has difficulty with small objects as his hands shake. He suggested that Dr Mackey suspected this may be related to Parkinson’s disease, but there is no medical evidence to corroborate this proposition.
I am satisfied that Mr May’s upper limb impairment attracts a rating of 10 points under Table 2.
Mr May’s lower limb impairments result from osteoarthritis in his hips and knees and bi-lateral sub-patellar crepitus. The evidence of Dr Dixon and Dr Mackey establishes that both conditions are ‘permanent’ and resulting impairments are likely to persist for two years from the qualification period.
Even though Mr May’s lower limb impairments stem from two different medical conditions, his lower limb impairments cannot be counted twice – only a single rating can be given.
By Mr May’s own account he has some difficulty walking far outside his home, he told me that, now, he can only walk 50 metres, whereas before he could walk for 100 metres. On a good day, he can walk around a supermarket or shopping centre if he leans on a trolley, but he is not able to do so when the pain is severe, on a bad day. He can stand for 10 minutes or so, but if he stands for long he experiences pain in his hips and knees, worse in the right knee, which “locks up and collapses” “a couple of times each week”. Mr May’s account is consistent with Dr Mackey’s report that Mr May had reduced mobility and altered gait as of 1 May 2015, just prior to the date of his DSP claim. On 18 August 2016, Dr Mackey reported that Mr May’s lower limb impairment had a mild impact on activities using the lower limbs.[17]
[17] Exhibit 1, page 2.
I am satisfied, therefore, that Mr May’s lower limb impairments had a mild impact on his ability to function during the qualification period. That being so, a rating of 5 points under Table 3 is appropriate.
Mr May’s spinal function is impaired by osteoarthritis affecting his cervical spine and his lumbar spine. Considering Mr May’s oral evidence and Dr Mackey’s contemporaneous reports, it is probable that Mr May had reduced range of motion with radicular complaint in his cervical spine, reduced range of motion and chronic pain in his lumbar spine, and difficulty bending, moving his head in all directions, lifting and sitting for long periods during the qualification period. Dr Mackey subsequently reported that “there is a moderate functional impact on activities involving the spinal function”.[18]
[18] Ibid.
Mr May told me that he cannot remain seated for 10 minutes. If he does so, in a car for example, it is necessary for him to “squirm around” and change position until he can stand the pain no more, whereupon he obtains some relief by alighting from the car to stand up and move around. This evidence is only partly consistent with the medical report of Dr Mackey – “He can sit in a car for less than 30 minutes and needs to stop and alight and stretch”.[19] While I accept Mr May’s account, the rules in the Preamble to Table 4 require corroborating evidence of the person’s impairment. For this reason, I am driven by Dr Mackey’s evidence to conclude that there is a moderate impact on activities involving spinal function, attracting a rating of 10 points. The medical evidence is not sufficient to establish that Mr May’s spinal impairment had a severe functional impact during the qualification period. The present evidence relating to the qualification period does not meet the rating criteria at the 20 point level under Table 4.
[19] Exhibit 1, page 2.
There is a question whether the functional impact of Mr May’s cervical spine impairment and his lumbar spine impairment should be assessed separately. To my mind, it is anomalous that a lumbar spine impairment and a cervical spine impairment might each attract a rating of 10 points, for example, if separately assessed, but when assessed together the same result would be obtained (a rating of 10 points), even though the functional impact of both impairments would be expected to exceed that of only one.
I do not need to address this question for present purposes, however. Even if two ratings were assigned under Table 4, each rating would not exceed 10 points and it would not assist Mr May or change the result – it is accepted that he satisfies the requirement of s 94(1)(b) of the Social Security Act, and an impairment attracting a rating of 10 points under a single Table is not within the meaning of a ‘severe impairment’ under s 94(3B).
Depression
The Secretary argues that no rating can be assigned for Mr May’s mental health impairment as the available materials are not sufficient to establish that his depression was fully diagnosed, fully treated and fully stabilised during the qualification period. This, so the argument goes, is because it was not diagnosed by a psychiatrist or by a clinical psychologist as required by the second rule in the Preamble to Table 5.
The second rule in the Preamble to Table 5 is in the following terms –
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
In the Secretary’s submission, this rule is to be applied when determining whether a mental health condition is ‘permanent’. The Secretary asserts that for a mental health condition to be considered ‘permanent’ it must be diagnosed by a psychiatrist or by a ‘clinical psychologist’ - diagnosis by a general practitioner with supporting evidence from a registered practising psychologist is not sufficient.
There are some difficulties with this interpretation. Quite plainly, the text requires diagnosis by an ‘appropriately qualified medical practitioner’. This term is defined in s 3 of the Impairment Determination –
appropriately qualified medical practitioner means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.
The term ‘medical practitioner’ is given meaning under s 23(1) of the Social Security Act –
medical practitioner means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.
It is quite clear that the term ‘appropriately qualified medical practitioner’ may include a qualified medical doctor in general practice, but it would not include a clinical psychologist unless the psychologist is also legally registered as a medical practitioner.
For this reason, I reject the Secretary’s submission that diagnosis is required by a psychiatrist or by a ‘clinical psychologist’. The diagnosis must be made by an ‘appropriately qualified medical practitioner’.
Where a mental health condition is diagnosed by a medical practitioner other than a psychiatrist the requirement is that the diagnosis is made ‘with evidence from a clinical psychologist’.
The word ‘with’ in this context leaves open a number of constructions. On one construction, the formulation requires diagnosis by a medical practitioner ‘with’ contemporaneous evidence from a clinical psychologist at the time. Alternatively, it may be sufficient if the evidence from a clinical psychologist precedes or follows the medical practitioner’s diagnosis, perhaps resulting from the doctor’s referral of the claimant for assessment or treatment. Furthermore, there is an open question whether the evidence from a clinical psychologist must be placed before the medical practitioner. Evidence from the claimant’s treating doctor that a clinical psychologist supported the diagnosis may be sufficient. Conceivably, it may be sufficient if a decision maker has evidence of the diagnosis by a medical practitioner ‘with’ separate but supporting evidence from a clinical psychologist, whether or not that evidence was provided to the medical practitioner who made the diagnosis.
However the rule is construed, to my mind, the requirement is for evidence from a clinical psychologist that is consistent with or supportive of the diagnosis made by an appropriately qualified medical practitioner other than a psychiatrist. To satisfy this requirement, the evidence must relate, directly or indirectly, to the mental health condition of the person at or about the time the diagnosis was made. There may be cases in which evidence from a clinical psychologist arises before or after a diagnosis by a non-psychiatrist doctor – commonly, for example, a medical practitioner may diagnose a mental health condition and prepare a treatment plan involving referral to a psychologist in clinical practice for treatment. The rule is sufficiently broad to allow for this, so long as the relational element is satisfied.
There is a dispute about the meaning of the term ‘clinical psychologist’, which is not given any special meaning in the Impairment Determination or in the Social Security Act.
The Secretary argues that, for the purposes of the Impairment Determination, a ‘clinical psychologist’ is a psychologist with additional qualifications and a formal ‘clinical’ endorsement registered under the Australian Health Practitioners Registration Authority (the Authority).
The Authority is at the heart of the cooperative national legislative scheme for registration of health practitioners (the AHPRA scheme). The applicable legislation in New South Wales is the Health Practitioner Regulation National Law (NSW) (the NSW Law). Under these legislative arrangements, all practicing psychologists providing assessment or treatment to patients must be registered under the AHPRA scheme. A registered psychologist may seek endorsement in respect of specialist practice in one of nine practice ‘subtypes’ recognised by the National Board of Psychologists (the National Board). Clinical psychology is a subtype area of psychological practice recognised by the National Board. Under the AHPRA scheme, ‘clinical’ endorsement of registration as a practicing psychologist confirms that the psychologist has an additional qualification in this subtype area of practice that is approved by the National Board.
I have not been taken to any requirement under the NSW Law or under the AHPRA scheme requiring registered practicing psychologists to be formally endorsed as ‘clinical’ in order to provide treatment to patients.
In the Secretary’s submission ‘clinical psychologist’ does not include a registered psychologist without a ‘clinical’ endorsement under the AHPRA scheme, even though the registered psychologist may have additional qualifications or an endorsement in one of the other eight ‘subtype’ areas of psychological practice recognised by the National Board, or a practice that involves the assessment and treatment of patients in a clinical setting.
As I understand Mr May’s submission, he argues that Dr Mackey referred him to a psychologist for assessment and treatment, and the psychologist reported progress to Dr Mackey. This, he says, should be sufficient evidence to satisfy the requirements and purposes of the Impairment Determination.

On this reasoning, two constructions of ‘clinical psychologist’ may be open – the meaning of the term advanced by the Secretary and a broader meaning that would include a psychologist providing assessment and treatment to patients under referral from a medical practitioner, in a clinical context.
It is necessary to consider the purposes of the legislation.
The Impairment Determination is made for the express purposes of s 94(1)(b) of the Social Security Act and the assessment and rating of work-related impairment. The second rule in Table 5 has the purpose of ensuring that diagnosis of a mental health condition is made by an appropriately qualified medical practitioner and, where a diagnosis is not made by a psychiatrist, the diagnosis is supported by or is consistent with evidence from a clinical psychologist. The sole purpose of this rule relates to determining whether the particular mental health condition is ‘fully diagnosed’ and ‘permanent’ for the purposes of s 6(3) of Part 2 of the Impairment Determination.
It can be accepted that the involvement of a clinical psychologist is specified to ensure that the diagnosis of a mental health condition by a non-psychiatrist medical practitioner is supported by or is consistent with a clinical psychological assessment by a psychologist with relevant expertise. The requirement is not for a ‘clinical psychologist’ to formulate a diagnosis, that is exclusively to be undertaken by an ‘appropriately qualified medical practitioner’, rather it relates to evidence arising from a clinical assessment of the psychological signs, symptoms or presentation of the person.
The psychologist’s expertise to make an assessment of this kind may be confirmed by ‘clinical’ endorsement under the APHRA scheme, as the Secretary contends. This construction of ‘clinical psychologist’ is supported by the medical meaning of ‘clinical psychology’ set out in Blacks Medical Dictionary–
Clinical psychology is concerned with the practical application of research findings in the fields of physical and mental health. Training in clinical psychology involves a degree in psychology followed by postgraduate training. Clinical psychologists are specifically skilled in applying theoretical models and objective methods of observation and measurement, and in therapeutic interventions aimed at changing patients’ dysfunctional behaviour, including thoughts and feelings, as well as actions…
For Mr May’s submission to be accepted, a broader meaning of ‘clinical psychologist’ is required. This might include a psychologist who is registered under the AHPRA scheme with a practice providing for the assessment and treatment of patients in a clinical setting, in a hospital or a medical centre, or under referral from a medical practitioner for example. A psychologist of this kind would satisfy the qualification and training requirements for general registration to practice but would not, necessarily, have a ‘clinical’ endorsement under the AHPRA scheme.
There is no medical or legal requirement for a practicing psychologist to have a ‘clinical’ endorsement under the AHPRA scheme in order to provide assessment and treatment to patients in a clinical setting, and no such endorsement is required for such treatment to be subsidised under the public health Medicare scheme.
While the adoption of the medical meaning of ‘clinical psychologist’ has some attraction, particularly as the evidence required is in a medical framework relating to diagnosis, the arguments in support of a broader meaning are quite compelling.
Many are the cases in which a medical doctor in general practice may be called upon to diagnose and treat a mental health condition. It is common in such cases for the doctor to formulate a mental health treatment plan involving referral of the patient to a psychologist for psychological assessment and treatment in a clinical setting. The content of a treatment plan and referral to a particular psychologist are matters involving medical judgement in each case that may be informed by issues relating to the nature of the condition, urgency, treatment options, and the feasibility and practicality of obtaining such treatment, including the availability of suitably skilled health practitioners, for example. In some cases, referral to a registered psychologist with a ‘clinical’ endorsement under the AHPRA scheme may not be financially feasible or geographically practical in the particular circumstances, especially in regional, rural or remote areas without reasonable access to a practicing psychologist with a ‘clinical’ endorsement for assessment or treatment. In cases of this kind, should the medical meaning of ‘clinical psychologist’ be adopted, the absence of reasonable access to a psychologist with a clinical endorsement under the AHPRA scheme may prevent grant of DSP, even though a registered psychologist with an established clinical practice might be available to provide assessment and treatment on referral by the medical practitioner. A narrow or medical construction of that kind may result in unfairness or disadvantage to a DSP claimant who resides in a place without reasonable access to a psychologist with a ‘clinical’ endorsement, when DSP claimants in other places may not suffer the same disadvantage.
I do not think that the Impairment Determination should be construed in a manner that is likely to cause unfairness or arbitrary disadvantage of this kind without express authority. That is especially so in the context of beneficial legislation. In the presence of ambiguity, where two or more constructions lie open, the construction which is more beneficial should be preferred.
I have not been taken to any legislation, extrinsic materials or authoritative cases that support a narrow medical construction of the term ‘clinical psychologist’ in the context of the Impairment Determination, such that it would not include a registered psychologist providing publicly subsidised psychological assessment and treatment to patients in a clinical setting, under supervision of or referral from a medical practitioner.
Apart from anything else, if it had been the Minister’s intention to limit the term ‘clinical psychologist’ in the manner contended for by the Secretary, it would have been a matter of simplicity to include a definition or express qualification requirement in the Impairment Determination. No such definition or qualification was included.
Without a compelling reason or binding authority, I am not presently persuaded that the term ‘clinical psychologist’ should be construed narrowly, as the Secretary contends. But I need go no further with these considerations in order to determine Mr May’s application. As will appear, however these issues of construction are resolved, no different result is obtained.
The evidence of Dr Mackey is that Mr May’s depression has been present for over 10 years, and treatment for this condition has been anti-depressant medication and psychological counselling.[20] The condition was diagnosed by Dr Mackey and psychological treatment was provided by Elvina Fitzpatrick, a registered psychologist practising in the country town where Mr May resides. Mr May confirmed that he has not consulted a psychiatrist.
[20] Exhibit 1, page 1.
The medical report of Dr Mackey on 1 May 2015 notes depression as a condition that had a significant impact on Mr May’s ability to function, but no details are provided.[21]
[21] T10 folio 47.
The Job Capacity Assessment report on 20 August 2015 does not refer to the condition of depression.[22]
[22] T17.
The medical certificate issued by Dr Mackey on 30 September 2015 and his medical report on 9 October 2015 do not refer to Mr May suffering from depression.[23]
[23] T19 and T20.
Thus, even if a broad construction of the term ‘clinical psychologist’ is adopted, the present evidence is not sufficient to establish that Mr May’s depression was ‘permanent’ during the qualification period – the present materials do not establish that this condition was fully treated and fully stabilised, or that resulting impairments (which are not adequately described with reference to the qualification period) were likely to persist for more than two years.
Dr Mackey’s report dated 18 August 2016 sets out matters relevant to assessment of impairment resulting from Mr May’s depression condition – Dr Mackey reported a moderate functional impact.[24] It is not presently established, however, that the nature and extent of the mental health impairment Dr Mackey identified existed during the qualification period. When all of the relevant materials are considered, even though Mr May’s depression may have been present during the qualification period, it is probable that Dr Mackey’s medical certificates accurately reflect the increased effect of this condition on Mr May’s ability to function from 1 January 2016, well outside the qualification period.
[24] Exhibit 1, page 3.
Even if Dr Mackey’s assessment of a moderate mental health impairment were to be accepted with respect to the qualification period (and I make no such finding), it does not change the result - Mr May satisfies s 94(1)(b) without any points being assigned in respect of his mental health impairment under Table 5. And furthermore, if what I have said in respect of the meaning of ‘clinical psychologist’ is not correct, such that Mr May’s depression condition is not accepted as ‘fully diagnosed’ and ‘permanent’ and no rating is assigned under Table 5, as the Secretary contends, this, too, does not change the result. As will appear, Mr May’s claim is determined on other grounds.
Severe impairment
The present evidence does not establish that Mr May has a severe impairment as defined under s 94(3B) of the Social Security Act. During the qualification period, he did not have an impairment attracting a rating of 20 or more points under a single Impairment Table.
Continuing inability to work
The third qualification criterion for DSP is whether Mr May has a continuing inability to work 15 or more hours per week. There are three elements to this consideration –
(a)as Mr May did not have a severe impairment during the qualification period, for the purposes of s 94(2)(aa) of the Social Security Act, it must be established that he ‘actively participated in a program of support’ to the extent required by the Participation Determination; and
(b)the impairments rated under s 94(1)(b), alone, prevent Mr May from doing any work as defined in s 94(5) (being work of 15 or more hours per week) independently of a program of support; and
(c)the impairments prevent Mr May from undertaking a training activity as defined in s 94(5) within two years or such activity is unlikely to enable him to work for 15 or more hours per week independently of a program of support within that period.
The Secretary asserts that, on the available materials, Mr May does not meet any of these tests.
There is much force behind this submission – there is only scant material addressing these matters.
Active participation in a program of support
It appears that Mr May undertook a work trial and a job placement in the context of a compensation claim for a work injury. There are but few details of the work trial and the job placement, particularly in respect of the extent to which they were tailored to assist Mr May to return to work after the injury for which he was compensated.
Doing the best with the available materials, it appears that the Work Trial Agreement (the Agreement) with Stephen Matthews, a farm owner/manager, was signed by Mr May on 5 September 2012.[25] The Agreement states –
“A work trial is a voluntary agreement between a work trial host (‘host’), a work trial trainee (‘trainee’), a workplace rehabilitation provider (‘provider’) and WorkCover NSW. It involves a short term placement of the trainee with a host who is not the pre-injury employer. The placement is to provide a suitable work environment for either:
- Increasing the trainee’s capacity to return to their pre-injury job
- Increasing the trainee’s transferable skills to gain a different job with either the pre-injury employer or a new employer”.[26]
[25] Exhibit 2, page 2.
[26] Ibid, page 1.
The Agreement makes provision for induction and on-the-job training monitored by the rehabilitation provider. Mr May informed me that the rehabilitation provider was ‘Koneckt’, but this has not been independently verified.
I am unable to determine with any precision when the work trial commenced or its duration.
It appears that Mr May commenced a JobCover placement program with Mr Matthews on or about 25 November 2012.[27] There is very scant information about the details of this program and what it entailed - see Exhibit 3 and the details provided by Mr May in his oral evidence. Doing the best with this evidence, it can be accepted that the placement was for full-time work conforming to medical restrictions as certified (although no such certificates are in evidence). The signed form was to be provided to the “rehabilitation provider (where applicable)”.[28]
[27] Exhibit 3, page 2.
[28] Ibid, page 3.
On Mr May’s evidence, which was not challenged, the placement involved general duties within his capability, but his capability decreased as he became more impaired by osteoarthritis in various parts of his body.
Two features of the placement program are very clear: the program and the work trial that preceded it were established under a NSW government scheme covering work injury; and they were paid for by GIO General Limited, the insurer of Mr May’s pre-injury employer - the Commonwealth did not contribute to the cost of Mr May’s work trial or placement.
The significance of this latter point is that the work trial and the job placement were not provided by a ‘designated provider’ as defined in s 5 of the Participation Determination. This notwithstanding, by operation of the transitional provision in s 11 of the Participation Determination, the previous definition of ‘designated provider’ in s 3 of the repealed Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the 2011 Determination) continues to apply in relation to a program of support which was not wholly or partly funded by the Commonwealth and that started before Part 4 of the Participation Determination commenced on 15 December 2014. That definition is in the following terms –
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.
The term ‘program of support’ is defined in s 94(5) of the Social Security Act in the following way –
program of support means a programs that:
(a) is designed to assist persons 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.
Even though there is very little evidence to go on, I am prepared to accept that the work trial Mr May undertook after 5 September 2012 and the job placement program he commenced on or about 25 November 2012 are within the meaning of ‘program of support’ for present purposes – each was designed to assist Mr May ‘prepare for, find or maintain work’ and is similar to programs of that kind funded by the Commonwealth, through the Commonwealth worker’s compensation scheme for example.
While I am satisfied that Mr May complied with and participated in a program of support during the ‘relevant period’ of 3 years ending on the day before he claimed DSP (from 4 June 2012 to 3 June 2015), it is not presently established that he did so for more than 18 months of that period.
Mr May commenced the WorkCover work trial on or about 5 September 2012. How long this trial continued is not presently established. It is clear enough that Mr May commenced the JobCover placement program on or about 25 November 2012. It is not presently established when this program came to an end. The Agreement by which the placement program was established suggests that a wage subsidy applied for 12 months - $400 for the first 12 weeks, $500 for the next 14 weeks and $600 for the next 26 weeks.[29]
[29] Exhibit 3 page 3.
On 5 May 2015, Mr Matthews signed an Employment Separation Certificate in respect of Mr May, in which he records that Mr May’s employment commenced on 6 December 2013.[30]
[30] T12 folio 51.
From this evidence it may be inferred that Mr May’s JobCover placement program came to an end on or soon before 6 December 2013, 12 months after it commenced and before he commenced unsubsidized employment with Mr Matthews.
The present evidence does not establish that Mr May commenced any other program of support during the relevant period prior to lodging his claim for DSP.
It follows that, at the highest, Mr May participated in a program of support from 5 September 2012 to 5 December 2013. As this period is less than the minimum 18 month threshold specified in s 7(2)of the Participation Determination, he does not satisfy the requirements of s 7(1)(b). This means that he cannot be taken to have actively participated in a program of support to the required extent.
This is fatal to his claim.
As he did not satisfy the active participation test in s 94(2)(aa) of the Social Security Act, he cannot be found to have a ‘continuing inability to work’ for the purposes of s 94(1)(c).
That being so, he does not qualify for DSP during the qualification period and his claim must fail.
In these circumstances, it is not strictly necessary to proceed on to determine whether Mr May satisfies the requirements of s 94(2)(a) and (b). This notwithstanding, I will address these points for completeness.
Work 15 or more hours per week independently of a program of support
The Secretary relies on the 20 August 2015 report of a Job Capacity Assessor that Mr May has capacity to work 15 to 22 hours per week with “disability specific interventions” within two years. [31] On this evidence, the Secretary argues that Mr May does not satisfy the requirement set out in s 94(2)(a), which provides that -
(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;
[31] T17 folio 88.
The phrase ‘independently of a program of support’ is explained in s 94(4), which provides that -
(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 a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
The Job Capacity Assessor reported symptoms and impairments in Mr May’s spine, upper limbs and lower limbs but concluded that the underlying conditions were not fully diagnosed, fully treated and fully stabilised. Even though it is not consistent with information Dr Mackey set out in his 1 May 2015 report,[32] this conclusion appears to have been based on the Assessor’s inability to contact Dr Mackey to obtain further medical evidence.[33] The Assessor did not refer to Dr Mackey’s diagnosis of generalised osteoarthritis, although this diagnosis is set out in the doctor’s 1 May 2015 report,[34] to which the Assessor referred.
[32] See T10 folios 42-47.
[33] See T17 folio 86, for example.
[34] T10 folios 44 and 47.

The Assessor reported the following barriers and support requirements –
“Barriers to be addressed
Barrier: Chronic pain (H12)
Barrier: Physical limitations restricting type of work (V03)
Barrier: Endurance limitations (H07)
Support requirements
Requirement: Physically complete work tasks     Duration: 6 to 12 months
Requirement: Learn new tasks  Duration: 6 to 12 months
Requirement: Maintain sustainable employment   Duration: Less than 6 months”.
The Assessor reported that Mr May had the following work capacity –
“Baseline Work Capacity: 8-14 Hours per week
…
Rationale: Work capacity is reduced due to chronic back and shoulder pain, and functional limitations related to verified medical conditions that limit his ability to perform physical work tasks
Suitable work: Light less skilled (W03)
Examples: Light process work
Capacity for work within 2 years with Intervention: 15-22 Hours per week
Rationale: Work capacity should increase through disability specific interventions.
…
Interventions that were identified for this client
Intervention: Further diagnostic/medical investigation (M51)
Intervention: Secondary rehabilitation (M54)
Intervention: Job matching (V54).”
The evidence on which the Assessor relied when making the assessment of increasing work capacity with the specified interventions is not explained. As the Assessor was not called to give oral evidence, the rationale for the assessment remains opaque.
The Secretary urged me to accept that the Job Capacity Assessor has training and qualifications necessary to make an expert assessment of Mr May’s work capacity. The Assessor’s “Professional discipline” is recorded to be “Rehabilitation Counsellor (RCAA/ASORC eligible)”. The Secretary’s advocate was not able to assist me with information about training undertaken by the Assessor of relevance to the Job Capacity Assessment function. Whatever training, skills and expertise the Assessor might have had, a rehabilitation counsellor is not a medically trained doctor.
The medical evidence of Dr Mackey and Dr Dixon clearly establishes that –
(a)for several years, Mr May has suffered from generalised osteoarthritis affecting his spine, upper limbs and lower limbs which is “permanent and gradually deteriorating”;[37]
(b)he has impairments that were assessed by Dr Dixon on 18 October 2012, who reported that Mr May’s “condition has stabilised. He has reached maximum medical improvement”; [38]
(c)treatment for Mr May’s osteoarthritic condition during and after the qualification period has been palliative: “to ease the pain and promote activity”; [39]
(d)Mr May’s condition has a progressive, deteriorating character that is not stayed by medical treatment: “No treatment is available to reduce the severity or to halt his progress”[40] - “He has failed to improve with medication and physiotherapy intervention”[41] and he has “responded poorly to treatment and continues to slowly deteriorate from this level as assessed on 18 October 2012”; [42]
(e)on Dr Mackey’s medical certificates, Mr May’s upper limb, spine and lower limb impairments rendered him unfit for work or study from 30 September 2015 to 31 July 2016, although depression and anxiety contributed to his unfitness from 1 January 2016.[43]
[37] T20 folio 94.
[38] T6 folio 33.
[39] Exhibit 1, page 2.
[40] Ibid.
[41] T20 folio 94.
[42] T25 folio 104.
[43] T19, T22, T23 and T24.
As can be seen, the medical evidence before the Tribunal does not provide any support for the Job Capacity Assessor’s report that Mr May’s work capacity might increase with medical intervention.
No explanation or supporting evidence has been provided in respect of the “Secondary rehabilitation” intervention reported by the Assessor. Precisely what the Assessor meant by the term ‘secondary rehabilitation’ has not been explained and, despite the reference code cited, it remains opaque. The available medical evidence does not refer to any further rehabilitation that may enable any improvement in Mr May’s work capacity during or after the qualification period. The extent to which, if at all, an intervention involving ‘secondary rehabilitation’ would increase Mr May’s work capacity and enable him to work for 15 or more hours per week independently of a program of support within two years is not presently established.
The “Job matching” intervention identified by the Assessor is not explained. If this simply means matching Mr May with a job or jobs, one can understand that it may assist him into paid work within his capacity and for which he is suited. But I struggle to see how an intervention of that kind would increase his capacity for work.
The Job Capacity Assessor’s report that Mr May’s work capacity “should increase with through disability specific interventions” is not consistent with the medical evidence that is before the Tribunal. The Assessor is a rehabilitation counsellor and not a medically trained doctor. I prefer the evidence of Dr Dixon and Dr Mackey.
Considering the medical reports and certificates issued by Dr Mackey since the qualification period, Mr May’s osteoarthritis has slowly progressed and his condition has deteriorated. There is nothing in the present materials to suggest that Mr May’s fitness increased after 31 July 2016, or at all. I note that the medical certificates Dr Mackey issued on 9 February 2016 and 5 April 2016 add “Depression & Anxiety” as a condition that contributed to Mr May’s unfitness for work or study at those times.
With regard to assessment of Mr May’s future work capacity within two years of the qualification period, it is quite clear that his osteoarthritis condition and related impairments have been deteriorating slowly since 18 October 2012. Without the possibility of effective treatment, and considering the nature and extent of Mr May’s impairments at that time, it is difficult to see how his work capacity might increase from 8 to 14 hours per week to 15 to 22 hours per week in the two years thereafter with the interventions identified by the Job Capacity Assessor. To my mind, the Assessor’s report of Mr May’s prospective work capacity is not consistent with the present medical evidence and it is not made out.
Dr Mackey’s medical certificates establish that Mr May did not have any capacity for work as a result of his impairments alone from 30 September 2015 to 31 December 2015.
At this point there is a difficulty concerning the state of the evidence, as the Secretary contends. It is necessary to carefully consider what may be drawn from the evidence, if anything, by way of relevant inference, first being mindful to consider whether the evidence reasonably admits a different conclusion. [44]
[44] See Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34], for example.
Considering the whole of the medical evidence, the progressive nature of Mr May’s ‘permanent’ medical conditions and the deteriorating extent of resulting spinal, upper limb and lower limb impairments, are clearly established. From this it may be inferred that Mr May’s impairments, absent evidence of improvement, have the ongoing effect of rendering him unfit for work. The medical reports and certificates of Dr Mackay and the medical report of Dr Dixon establish that no improvement in Mr May’s impairments was expected, or was likely to occur, and there is no treatment to reduce the severity or progress of the condition – the only treatment being of a palliative character. The present evidence, including Mr May’s account, does not establish that any improvement was realised; on the contrary, Dr Mackey reported continuing progression of the disease and deterioration of Mr May’s condition. The logical conclusion to be drawn from this is that the impairments to his spine, upper limbs and lower limbs continued to render him unfit for work. The present evidence does not reasonably admit any other conclusion and, that being so, the inference may be drawn.
On balance, I am satisfied that it is more likely than not Mr May’s impairments resulting from generalised osteoarthritis and right elbow epicondylitis would prevent him from working 15 or more hours per week independently of a program of support within two years of the qualification period.
It follows that he satisfies the requirement under s 94(2)(a) of the Social Security Act.
Training activity within two years
The Secretary argues that Mr May’s impairments do not prevent him from undertaking training of a vocational kind within two years of his DSP claim and that training of this kind would enable him to work for 15 or more hours per week independently of a program of support. In the Secretary’s submission, the available materials are not sufficient to establish that either Mr May’s impairments prevent him from undertaking training or that, if he undertook training, he would in any event be unable to work for 15 or more hours per week independently of a program of support within two years.
It is helpful to consider the language of s 94(2)(b) –
in all cases-either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The term ‘training activity’ is defined in s 94(5) –
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).
As can be seen, for the first limb of s 94(2)(b) to be satisfied, it must be established by evidence that the person is prevented by impairment, alone, from undertaking training activity within two years. If this test is not satisfied, then it is necessary to determine whether, because of the impairment, training activity is unlikely to enable the person to work for 15 or more hours per week independently of a program of support within two years.
While there is but little evidence addressing these points, as the Secretary contends, it is necessary to consider the evidence as a whole insofar as it relevantly bears upon and informs a proper assessment of Mr May’s inability to work during the qualification period.
Dr Mackey’s evidence, and in particular the medical certificates he issued in the period spanning 30 September 2015 to 31 July 2016, establishes that Mr May was prevented from undertaking work or study during the period from 30 September 2015 to 31 July 2016. The stated causes of unfitness on 30 September 2015 and 6 January 2016 are “Knee pain with arthritis”, “Right elbow epicondylitis” and “Hip pain and lower back”.[45] In the medical certificates issued on 9 February 2016 and 5 April 2016, the epicondylitis condition is replaced by “Depression & Anxiety”.
[45] T19 folio 93.
On 9 October 2015 Dr Mackey reported that Mr May’s osteoarthritis was “severe” and he was “no longer fit for useful employment”. [46] Dr Mackey was not called to give oral evidence and his reference to ‘useful employment’ has not been explained. Nonetheless, when this assessment is considered in the context of medical certificates Dr Mackey issued from 30 September 2015, I think it can be accepted that the doctor was referring to employment in work for wages on the open labour market. I would not construe the doctor’s words to refer only to employment of the kind Mr May had previously engaged in on farms. To do so would not be consistent with the medical certificates Dr Mackey issued on 30 September 2015 and subsequently.
[46] T20 folio 94.
As I have said, the medical evidence is that Mr May’s osteoarthritis condition is progressive and no treatment exists to reduce the severity or to halt progress of this condition. From this, and from Dr Mackey’s medical certificates and reports, it is open to infer that this condition and related impairments to his spine, upper limbs and lower limbs are likely to persist throughout the two years after the qualification period, and that during this period, these impairments are likely to render Mr May unfit for work or study. Even if this was not so, and the present materials were not sufficient to establish that the impairments prevent him from undertaking training activities, I am satisfied that the evidence of Dr Mackey is sufficient to establish that no amount of training is likely to increase Mr May’s work capacity. It follows that, in the language of the legislation, training activity is unlikely (because of these impairments, alone) to enable Mr May to work for 15 or more hours per week independently of a program of support within the two year period I must consider. I so find.
For these reasons, on the balance of probabilities, I am satisfied that Mr May’s impairments resulting from generalised osteoarthritis and right elbow epicondylitis, alone, either prevented him from undertaking training activity, or that training activity is unlikely to enable him to work for 15 or more hours per week independently of a program of support, within two years of the qualification period commencing on 4 June 2015.
Conclusion
The present materials establish, with reference to the qualification period, that Mr May has impairments that attract a rating of 20 or more points under the Impairment Tables. But he does not satisfy the active participation in a program of support requirement necessary to establish that he had a continuing inability to work. This is so even though his impairments prevented him from working for 15 or more hours per week independently of a program of support within two years, and no amount of training would be likely to enable him to do so within that time.
For this reason, he does not meet the qualification criteria for grant of DSP pursuant to the claim he lodged on 4 June 2015.
Decision
The decision under review is affirmed.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
.............[sgd]...........................................................
Associate
Dated 21 December 2016

Date of hearing 12 December 2016

Applicant In person

Solicitors for the Respondent Department of Human Services

[35] T17 folio 88.

[36] T10 folios 88-89.

[2016] AATA 1061

21 December 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Appeal

Division	GENERAL DIVISION
File Number	2016/2641
Re	Edward May
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	21 December 2016
Place	Canberra

Date of hearing	12 December 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services