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

McGinnis and Secretary, Department of Social Services (Social services second review) [2020] AATA 2421 (22 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/5800
Re:Grant McGinnis
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:22 July 2020
Place:Perth

The decision under review is affirmed.
.....................[sgd]...................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant’s conditions fully diagnosed, fully treated and fully stabilised – applicant has 25 impairment points – whether applicant has severe impairment – osteoarthritis condition – spinal condition – carpal tunnel syndrome – mental health condition – whether applicant has continuing ability to work –
whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(3)–(5)
Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Tables 2-5, ss 3, 5(2), 6(1), 6(3), 6(4)–(8), 8(1), 8(2), 10(1)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Larkin and Secretary, Department of Social Services [2018] AATA 342
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Policy Law: Social Security Guide – Chapter 3
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – Section 3.6.3
REASONS FOR DECISION
L M Gallagher, Member
22 July 2020
BACKGROUND

Centrelink records indicate that on 15 December 2017, Mr McGinnis lodged an application for Disability Support Pension (DSP) with the (then) Department of Human Services
[1] The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.
(now, the Agency)[1] (R1, T19 and T45, page 254), relating to a number of claimed conditions.
On 11 June 2018, a Job Capacity Assessment (JCA) was undertaken face to face by a Registered Occupational Therapist and an Occupational Therapist and a report was produced on 27 July 2018 (R1, T28). The JCA reported that Mr McGinnis’ osteoarthritis in his knees, spine and hands was fully diagnosed, but not fully treated and fully stabilised (FDTS) and therefore could not be assigned an impairment rating. The JCA also assessed Mr McGinnis’ depression condition as not fully diagnosed.
In addition, the JCA dated 27 July 2018 (R1, T28, pages 182, 184):
(a)Noted that Mr McGinnis’ baseline work capacity and his capacity for work within two years with intervention were both zero to seven hours per week.
(b)Recommended that Mr McGinnis be referred to an Employment Service.
On 31 July 2018, the Agency rejected Mr McGinnis’ claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (R1, T29).
On 10 August 2018, Mr McGinnis requested an internal review of the Agency’s decision dated 31 July 2018 (R1, T45, page 261).
On 19 February 2019, a further JCA was undertaken face to face by a Registered Occupational Therapist and an Occupational Therapist and a report was produced on
20 February 2019 (R1, T36). This JCA reported that:
(a)Mr McGinnis’ osteoarthritis in his knees, his spinal disorder and his
carpal tunnel syndrome were all FDTS and therefore could be assigned an impairment rating under the tables contained in the
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination)
(the Impairment Tables), as follows:
(i)Bilateral osteoarthritis – 10 points under Table 3 of the Impairment Tables (being for Lower Limb Function).
(ii)Spinal disorder – 10 points under Table 4 of the Impairment Tables (being for Spinal Function).
(iii)Carpal tunnel syndrome – 5 points under Table 2 of the Impairment Tables (being for Upper Limb Function).
(b)Mr McGinnis’ depression condition was not fully diagnosed and therefore could not be assigned an impairment rating.
The JCA dated 20 February 2019 (R1, T36):
(a)Noted that Mr McGinnis’ baseline work capacity and his capacity for work within two years with intervention were both zero to seven hours per week.
(b)Recommended that Mr McGinnis be referred to an Employment Service with the aim that he could achieve eight+ hours work per week with ongoing support.
On 7 June 2019, an Authorised Review Officer of the Agency (ARO) affirmed the Agency’s decision dated 31 July 2018 (R1, T38). The ARO found that:
(a)Mr McGinnis achieved a rating of 25 impairment points under the Impairment Tables in accordance with the JCA’s findings at paragraph [6] above.
(b)However, Mr McGinnis could not be found to have a continuing inability to work (CITW) as he had not actively participated in a program of support (POS).
Mr McGinnis applied to the Administrative Appeals Tribunal (the Tribunal) for a first review of the ARO decision dated 7 June 2019.
On 9 September 2019, the Tribunal’s Social Services & Child Support Division (AAT1) affirmed the ARO decision dated 7 June 2019 (R1, T2) on the basis that:
(a)Mr McGinnis achieved a rating of 25 impairment points across Tables
2, 3 and 4 of the Impairment Tables for his various conditions.[2]
(b)Mr McGinnis could not be found to have a CITW as he had not actively participated in a POS.
[2] These findings were in accordance with the ARO’s findings with regards to impairment points referred to at paragraph [8] above and, in turn, in keeping with the JCA’s findings with regards to impairment points at paragraph [6] above.
On 16 September 2019, Mr McGinnis applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 9 September 2019, claiming that the decision is wrong because he passes all the requirements (R1, T1, page 5).
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to Mr McGinnis’ application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The Guide to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645).
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Part 3.6.3 of the Guide).
Qualification criteria

15. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are that the person has a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b) of the Act); and that the person has a CITW (s 94(1)(c)(i) of the Act).

In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mr McGinnis’ eligibility for DSP on 15 December 2017, the date the claim was lodged.
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3 of the Determination). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions
(s 5(2) of the Determination).
Section 6 of the Impairment Tables set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables,
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination, refer also to
ss 6(4) to 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (s 8(1) of the Determination). Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account (s 8(2) of the Determination),
To select the applicable Impairment Table, one must take the following steps (s 10(1) of the Determination):
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention. Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not 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 the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity -- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
In relation to s 94(2) of the Act, extracted at paragraph [23] above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[3]
(b)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 (s 94(3B) of the Act);
(c)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 (s 94(3C) of the Act); and
(d)work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5) of the Act).
[3] See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
With regards to participation in a program of support (POS), the POS Determination relevantly provides the following guidance:
(a)the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person (s 5 of the POS Determination); and
(b)the requirements for active participation in a POS are contained in s 7 of the POS Determination. Generally, a person must have participated in the POS for at least 18 months during the relevant period (s7(2) of the POS Determination). The Tribunal notes that ss 7(3) to 7(5) of the POS Determination relate to situations where a person can participate in a program of support for less than 18 months and still satisfy the program of support requirement (provided that person had commenced in a program of support prior to lodging their claim for DSP).[4]
[4] See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
ISSUES FOR DETERMINATION
The issues which arise in this matter are whether, at the date of Mr McGinnis’ claim for DSP:
(a)Mr McGinnis suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)Mr McGinnis’ impairments receive an impairment rating of 20 points or more under the Impairment Tables; and if so,
(i)whether those 20 impairment points are achieved under a single Impairment Table such that Mr McGinnis has a severe impairment; and
(c)Mr McGinnis has a CITW, which includes:
(i)that he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)if, and only if, Mr McGinnis does not have a severe impairment,
Mr McGinnis has actively participated in a program of support.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 16 June 2020. Mr McGinnis was self-represented.
[5] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday 26 March 2020.
The Secretary was represented by Mr Kelvin Defranciscis, Seconded Lawyer. The parties appeared at the hearing via telephone.[5]
At the hearing, the Tribunal admitted the following documents into evidence:
(a)Applicant’s statement dated 27 November 2019 (A1);
(b)T documents (280 pages) (T1 – T45) (R1); and
(c)The Secretary’s Statement of Facts, Issues and Contentions dated
2 April 2020, including Annexure A and Secretary’s List of Authorities (R2).
Following the hearing, and at the Tribunal’s request, the Agency provided additional evidence further clarifying Mr McGinnis’ referral to and participation in, if any, a program of support.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Mr McGinnis’ evidence
Mr McGinnis told the Tribunal he has been self-employed in brick paving and concrete work in the building industry since he was 17 or 18 years old (transcript, page 15 [5]-[15]).
Mr McGinnis stated that he had had four back surgeries from when we was around
19 or 20 years old, another at about 30 years old, another at about 43 years old and one in 2016 (transcript, page 14, [30]-[35]). Mr McGinnis said that on each occasion, other than his most recent surgery in 2016, he has been able to recover and return to work (transcript, page 15 [5]).
Mr McGinnis said that he ceased self-employment in 2016 (transcript, page 16 [5]) and was “hardly working” by the time he applied for the DSP in 2017, because his medical conditions were starting to affect him (transcript, page 16 [30]-[35]). Mr McGinnis said that any work he did leading up to December 2017 was “under duress, like with pain” (transcript, page 16 [40]).
Mr McGinnis said that since sometime in 2017, he had been living in a shack on Wedge Island. Mr McGinnis said that he pays an annual licence for the shack (transcript, page 17 [10]-[30]).
Mr McGinnis said that in his shack, he is able to sit on a chair to prepare basic meals (transcript, page 18 [25]) and a vehicle in which he can drive the short distance to the beach (transcript, page 19 [5]). Mr McGinnis said he owns a dinghy, and while he cannot go out on it anymore, he maintains it as an asset and for family use (transcript, page 19 [5]-[40]).
Mr McGinnis stated that he receives help with his shopping from his brother when his brother visits and from others on Wedge Island (transcript, pages 20 [5]-[35] and 23 [5]).
Mr McGinnis stated that in the past his daughter also assisted with meals, etcetera when she visited, however she is presently unwell and unable to assist (transcript, page 20 [20]). Mr McGinnis said that he is able to travel to the local supermarket to buy basic grocery items, however he needs to stop on the way (to rest on the side of the road) and leaves some items safely stored in his car fridge until he needs them (transcript, pages 21 [5] and 22 [20]). Mr McGinnis said that when he shops, he requires a shopping trolley in order to be able to walk around, to “push around on” (transcript, page 24 [20]).
When asked by Mr Defranciscis, Mr McGinnis said that on a regular day in late 2017 to early 2018, he would get out of bed around 9 or 10 o’clock in the morning, lie on the lounge or on his bed to do a bit of reading, eat a meal around two or three o’clock in the afternoon and perhaps take a two minute drive to the beach and back and then go to bed around 7.00pm or 7.30pm. Mr McGinnis said that he does get up during the night (transcript, pages 22 [30]-[45] and 23 [5]-40).
As to his pain medication, Mr McGinnis said that he takes about six or eight Osteo Panadol each day (transcript, page 24 [10]).
When asked by Mr Defranciscis, Mr McGinnis said that while he can use a smart phone to read articles and use online banking, he has to concentrate in order to do so as he has no feeling in his fingers (transcript, page 25 [10]). Mr McGinnis said that he is able to use a pen or pencil if he concentrates and pays for things on “card” (transcript, page 25 [15]-[30]).
Mr McGinnis said he had now reached the stage where he is in severe pain all of the time, he cannot sit, he cannot drive and cannot walk anywhere (transcript, pages 14, [40], 15 [25] and 16 [5]).
Mr McGinnis said that recently, “just after the last hearing”, he had been back to his general practitioner to request a referral to a psychiatrist, to see if he could get some further evidence “to help [him]self” and “he just went off at me basically, saying, I’ve already diagnosed you, why do I have to send you to someone else; we’re treating you.”
Mr McGinnis also said that he was disappointed with the impairment points rating for his carpal tunnel syndrome and thought it would have been a lot higher (transcript, page 26
[5]-[20]).
Mr McGinnis gave evidence that he attended an employment service provider in May 2016 (refer to R1, T43, page 234) and when he went, he did not understand what the program was for nor did he continue to attend (transcript, pages 10 [20]-[35] and 12 [30]-[35]).
CONSIDERATION
Whether Mr McGinnis suffered from a physical, intellectual or psychiatric impairment or impairments

It is not in dispute that Mr McGinnis has suffered from impairments, and the Tribunal finds on the evidence that at the date of claim, Mr McGinnis suffered from various physical impairments being bilateral osteoarthritis in the lower limbs, spinal disorder and carpal tunnel syndrome. The Tribunal notes the medical report dated 8 February 2108 (R1, T21) and related medical certificates (R1, T22, T23 and T25) of Dr John Haygarth, General Practitioner, along with radiological reports and specialist medical evidence (R1, T20, T26 and T27).
As such, the Tribunal finds that Mr McGinnis satisfies s 94(1)(a) of the Act.
Whether Mr McGinnis’ impairments receive an impairment rating of 20 points or more
It is not in dispute that Mr McGinnis has not participated in, and is yet to commence,
a POS (refer to R2, Annexure A and to paragraphs [42] above and [68] below).
Further, Mr McGinnis has not claimed, nor is there any evidence to suggest, that he has been specifically exempted from this requirement.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of Mr McGinnis’ claimed conditions attracts 20 impairment points for that single condition. That is, the Tribunal must find that McGinnis suffers from a severe impairment (refer to paragraphs [23] and [24(b)] above).
Before considering whether Mr McGinnis suffers from a severe impairment,
the Tribunal must first determine whether any of Mr McGinnis’ claimed conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
The Secretary’s position regarding the rating of Mr McGinnis’ impairments under the Impairment Tables is that it accepts Mr McGinnis had a total impairment rating of 25 points at the date of claim on the basis that those points are achieved across three Impairment Tables[6], being:
(a)Bilateral osteoarthritis – 10 points under Table 3 of the Impairment Tables (being for Lower Limb Function).
(b)Spinal disorder – 10 points under Table 4 of the Impairment Tables
(being for Spinal Function).
(c)Carpal tunnel syndrome – 5 points under Table 2 of the Impairment Tables (being for Upper Limb Function).
[6] The Secretary’s position regarding Mr McGinnis’ depression condition is that this condition was not fully diagnosed at the date of claim and therefore cannot be assigned an impairment rating (R2, page 9, 5.26).
Therefore, in the Secretary’s submission, Mr McGinnis meets the qualification criteria under s 94(1)(b) of the Act.
Mr McGinnis’ position, however, is that he achieves a total impairment rating of 20 points at the date of claim on the basis of his spinal condition across one Impairment Table only, being Table 4 (Spinal Function).
Mr McGinnis’ position regarding his various conditions can be summarised as follows (transcript, pages 27 [35]-[45] and 28 [5]-[15]):
MEMBER:So I’ll take it to be, from what you’ve said in opening and also your responses you’ve given to Mr Defranciscis, is really that it’s the back pain that’s the real focus of your pain and grief, and what you say limits your ability to perform certain tasks and whatnot, but you’re also dissatisfied with the way that your carpal tunnel and lower limb impairments were rated and that in your view, from having discussion with your GP, and that was a discussion that took place after the tier one review, that your GP’s satisfied that he or she’s managing your treatment by way of – – -?
MR McGINNIS: ---Yes, that’s correct.
- – – not requiring there be sessions with a, say, qualified psychiatrist/psychologist, that sort of thing. So I just want to make sure I understand that properly. I don’t want to go away thinking one thing from what you’ve said when really it’s another?
MR McGINNIS: ---Yes, for all my life I’ve never been able to have physio. I have tried physio, but it aggravates my back. As soon as someone touches it, it just flares it up. So that’s why I’ve never ever done any more physio, because it just flares it up.
Mr McGinnis submitted that he cannot see how he achieves 10 impairment points only in relation to his spinal condition given that he has had “three or four” back operations and has limited movement in his spine (transcript, page 9 [15]).
Mr McGinnis submitted that he believes he should achieve 20 impairment points for his spinal condition alone (transcript, pages 9 [35]-[45]) and 11 [35]-[40]), on the basis that
(A1, page 3):
I have been too [sic] see two review center link [sic] officers in Joondalup both reqermended [sic] me for disability insurance.
My local doctor say [sic] the same with physiotherapy doc testing me and saying I [sic] current condition is severe function [sic] impact on spinal function is 20 points severe.[7]
(Emphasis added.)
[7] When asked by the Tribunal at hearing, Mr McGinnis confirmed his doctor had communicated this to him at the point in time following the review by the AAT1 (therefore, after September 2019).
Mr McGinnis did not present any additional evidence nor did he make any submissions seeking to disturb the impairment ratings previously awarded or challenge the Secretary’s submissions regarding his bilateral osteoarthritis or carpal tunnel syndrome conditions other than to say that he was of the view that his impairment rating for his carpal tunnel syndrome would have been “a lot higher” (refer to paragraph [41] above). Mr McGinnis also did not seek to present any additional evidence or make any submissions regarding his depression condition other than that his General Practitioner had advised him that further evidence was unnecessary (refer to paragraph [41] above).
At hearing, the Tribunal afforded Mr McGinnis the opportunity to ensure he was satisfied that he had given all of his evidence and submissions in relation to all of these claimed conditions notwithstanding that his main submission related to his claimed severe impairment regarding his spinal condition (transcript, pages 25 [35] to 28 [20]).
Having regard to the available medical evidence and the JCA addressing Mr McGinnis’ various relevant areas of functioning, the Tribunal is satisfied that Mr McGinnis’ bilateral osteoarthritis and carpal tunnel syndrome are FDTS and attract 10 points under Table 3 and 5 points under Table 2 of the Impairment Tables, respectively. The Tribunal relies upon the available documentary evidence in this regard (at R1, T34, T36 and T37) and on
Mr McGinnis’ evidence at hearing (refer to paragraphs [36] and [39] above).
In relation to Mr McGinnis’ depression condition, having regard to the available medical evidence from Mr McGinnis’ General Practitioner regarding diagnosis and symptoms
(refer to R1, T26, page 171) and Mr McGinnis’ evidence that he is yet to see a psychiatrist or clinical psychologist[8] given his General Practitioner’s view that this is unnecessary,
[8] The Tribunal notes that the Introduction to Table 5 of the Impairment Tables states that the diagnosis of a mental health 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)”.
the Tribunal is satisfied that Mr McGinnis’ depression condition was not fully diagnosed at the date of claim and therefore cannot be assigned an impairment rating.
Regarding Mr McGinnis’ spinal condition, the Tribunal accepts that it was FDTS at the date of claim; consistent with the available medical evidence, the opinions referred to in the JCA report dated 20 February 2019 and Mr McGinnis’ evidence at hearing (refer to R1, T36 and T37 and to paragraphs [32], [33], [35] and [36]).[9]
[9] The Tribunal notes that Mr McGinnis’ evidence at paragraph [40] regarding his pain levels relates to the present time rather than at the date of claim, the date of claim being relevant for present purposes (refer to paragraph [16] above).
The Tribunal is also of the view that the appropriate rating under Table 4 of the Impairment Tables to be assigned to Mr McGinnis regarding his spinal condition is 10 points, given that:
(a)The available corroborating evidence best supports the functional impact on activities listed under the 10-point descriptors in Table 4 (refer to R1, T31,
pages 189 to 190, T33 and T36).
(b)The Tribunal has not been provided with any documentary evidence regarding Mr McGinnis’ submission at paragraph [53] above or any other evidence to corroborate that his functional impairments relating to his spinal condition correspond to those listed in the 20 point descriptors under Table 4 of the Impairment Tables. As stated in the Introduction to Table 4 of the Impairment Tables, “[s]elf-report of symptoms alone is insufficient” and there must be corroborating evidence of the person’s impairment from the person’s treating practitioners.
In light of the Tribunal’s findings at paragraphs [56] to [59] above, it allocates a total of
25 impairment points to Mr McGinnis’ functional impairments, in satisfaction of
s 94(1)(b) of the Act. As those 25 impairment points were not achieved under a single table, but rather, under multiple tables in the Determination, Mr McGinnis does not have a “severe” impairment as defined. Therefore, the Tribunal’s consideration of whether Mr McGinnis has a CITW necessarily includes consideration of whether he has actively participated in a program of support (s 94(2)(aa) of the Act).
Whether McGinnis has a continuing inability to work
Given the Tribunal’s finding that none of Mr McGinnis’ claimed conditions achieve a 20 point or “severe” impairment rating under the Impairment Tables, Mr McGinnis must be found to have a CITW in order for his application to succeed.
The criteria for a CITW are two-fold, namely the required participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
Based on the available JCA evidence regarding Mr McGinnis’ work capacity
(refer to paragraph [3] above), the Tribunal is satisfied that Mr McGinnis was unable to work for 15 or more hours per week at the relevant date. Therefore, the outcome of Mr McGinnis’ application turns on whether he meets the POS requirement.
In relation to Mr McGinnis claim for DSP made on 15 December 2017, the relevant period for having participated in a program of support is the 36 months prior to that date,
being from 14 December 2014 to 14 December 2017 (s 5 of the POS Determination, referred to at paragraph [25(a)] above).
The Secretary submitted that the crux of its case is that Mr McGinnis does not have a CITW under s 94(1)(c) of the Act, in particular because he fails to meet the POS requirements in s 94(2)(aa) of the Act (transcript, page 7 [10]). To summarise, the Secretary added:
…we say that Mr McGinnis can’t meet the program of support requirements, because prior to his claim, being the relevant period, which is referred to in the program of support legislation – the act of dissipation legislation – the act of participation has to have occurred before the claim for DSP is made. I’m referring to DSP as in disability support pension. And because Mr McGinnis hadn’t commenced in a program of support before putting in his claim for DSP,
he can’t meet the program of support requirements, and therefore we say he doesn’t have a continuing inability to work and therefore doesn’t qualify for DSP.
(transcript, page 7 [10]-[15].)
The Tribunal notes that Centrelink records indicate that:
(a)On 15 March 2016, a job plan was devised for Mr McGinnis
(R1, T43, page 236);
(b)Mr McGinnis commenced with an employment service provider on
22 December 2017, his placement ending on 22 January 2018;
the reason given being “Job seeker is no longer considered FEP”[10]
(R1, T43, page 234);
(c)Mr McGinnis has zero days participation in a POS in the relevant date range, being from 14 December 2014 to 14 December 2017.[11]
[10]
[11] Refer to POS record provided by the Agency, at the Tribunal’s request, following the hearing and to paragraph [25] above.
The Tribunal notes, for completeness only, that Mr McGinnis was referred to an employment service provider following his contact with the Agency on 18 December 2019.[12]
[12] Refer to R2, Annexure A and to Centrelink records provided by the Agency, at the Tribunal’s request, following the hearing.
This does not assist Mr McGinnis in the present matter as it is concerned with a period of time well beyond the relevant date.
The Tribunal also notes that Mr McGinnis has not sought to produce any evidence or advance any argument that he did in fact actively participate in a POS as required
(being for 18 months in the 36 months prior to lodging his claim for DSP). Mr McGinnis’ evidence was, rather, that at no stage was he aware that he had to complete the POS (transcript, page 37 [10]) and, basically, he worked for himself up until he lodged his claim for DSP (paragraph [33] above).
Given that Mr McGinnis has failed to actively participate in a POS as required, he fails to satisfy s 94(2)(aa) of the Act, he cannot be found to have a CITW and, in turn, fails to satisfy s 4(1)(c) of the Act.
CONCLUSION
While the Tribunal considers that Mr McGinnis achieves 25 impairment points under the Impairment Tables, there is no evidence to support that he has a severe impairment under a single Table. Therefore, Mr McGinnis is required to satisfy the program of support requirements within the CITW criterion. As the Tribunal has found that Mr McGinnis,
having never commenced a POS, fails to satisfy the POS requirement, it therefore necessarily follows that the Tribunal finds that Mr McGinnis did not have a CITW and did not qualify for DSP at the date of claim.
DECISION
The decision of the AAT1 dated 9 September 2019, which affirmed a decision of the Agency dated 7 June 2019 to reject Mr McGinnis’ application for DSP lodged on 15 December 2017, is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

..........................[sgd].............................................

Associate
Dated: 22 July 2020

Date of hearing: 16 June 2020

Applicant: Self-represented

Counsel for the Respondent: Mr Kelvin Defranciscis

Solicitors for the Respondent: Services Australia

Following the hearing, and at the Tribunal’s request, the Agency advised the Tribunal that the code

“FEP” means that Mr McGinnis was not a ‘fully eligible participant’ at that date. The Agency advised that this essentially means that because Mr McGinnis was not in receipt of a social security payment, he was not eligible to participate with the service provider and would need to do so voluntarily. The Agency maintains that this does not assist Mr McGinnis in satisfying the POS requirement in any event.

[2020] AATA 2421

22 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	16 June 2020
Applicant:	Self-represented
Counsel for the Respondent:	Mr Kelvin Defranciscis
Solicitors for the Respondent:	Services Australia