Michael Jones and Secretary, Department of Social Services

Jones and Secretary, Department of Social Services (Social services second review) [2016] AATA 98 (23 February 2016)

Division

GENERAL DIVISION

File Number(s)

2015/2612

Re

Michael Jones

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr C Ermert, Member

Date 23 February 2016

Place Perth

The Tribunal affirms the decision under review.

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Mr C Ermert, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - qualification period - physical, intellectual or psychiatric impairments - whether impairments attract a rating of 20 points or more - participation in a program of support - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)- ss 94 – 94(1) – s94(1)(a) - 94(1)(b) - 94(1)(c) – 94(2)- 94(3B)

Social Security (Administration) Act 1999 (Cth) – ss 41 – 42 – Schedule 2
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 6(3) – 6(4) – 6(5)
REASONS FOR DECISION
Mr C Ermert, Member
23 February 2016
INTRODUCTION

In 2003 Mr Michael Jones, the Applicant, had a motor vehicle accident which resulted in multiple lower limb pains. On 22 August 2014 Mr Jones lodged with Centrelink an application for Disability Support Pension (DSP). Centrelink is the service provider for the Department of Social Services, the Respondent. In his claim he listed his disabilities and injuries as: Hip, Brain, Anorism [sic], Blood Disorder (clots).
On 19 September 2014 a Centrelink officer determined that Mr Jones was not qualified for DSP because his impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 20 January 2015 a Centrelink authorised review officer (ARO) affirmed this decision. Mr Jones sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 12 May 2015 the SSAT affirmed the ARO’s decision. The SSAT found that, although his impairments attracted a total of 25 impairment points, Mr Jones was not qualified for DSP as he had not completed a program of support (POS) prior to his claim.
This matter is a review of the SSAT decision.
HEARING
The hearing was conducted via video-link. At the hearing Mrs Suzanne Jones, the Applicant’s wife, represented Mr Jones. Both Mr Jones and Mrs Jones gave evidence under affirmation. Ms Solene Yik Long, a solicitor with the Australian Government Solicitor, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
For Mr Jones I took in as evidence the following documents provided prior to the hearing:
·Exhibit A1 – report by Dr Chacko Varughese, Consultant Psychiatrist, dated 7 July 2015;
·Exhibit A2 – Medical Certificate by Dr Carl Slusarczyk, dated 2 June 2015;
At the hearing Mrs Jones sought to tender further documents. With the agreement of both parties I accepted the documents and granted an adjournment subsequent to the hearing for Ms Yik-Long to examine the documents and make written submissions. The documents were:
·Exhibit A3 – undated report by Dr Varughese;
·Exhibit A4 – Medical Certificate by Dr Carl Slusarczyk dated 2 November 2015
·Exhibit A5 – Discharge Summary from Osborne Park Hospital dated 12 November 2015
·Exhibit A6 – Discharge Summary from Osborne Park Hospital dated 12 November 2015; and
·Exhibit A7 – Discharge Summary from Sir Charles Gairdner Hospital dated 18 November 2015.
After the adjournment I received and accepted Mrs Jones’ submissions dated 28 January 2016.
For the Respondent I took in as evidence the Statement of Facts, Issues and Contentions of the Respondent dated 6 November 2015.
After the adjournment I received and accepted the Respondent’s Post-Hearing Submissions dated 14 January 2016.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(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.
A person’s impairment is assessed by reference to the Impairment Tables.
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case the qualification period runs from 22 August 2014, the day on which the claim was lodged, to 21 November 2014.
ISSUES
The issues are whether, during the qualification period, Mr Jones:
·had any physical, intellectual or psychiatric impairments; and, if so,
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·he had a continuing inability to work.
EVIDENCE
Mr Jones
In his oral evidence Mr Jones stated that as a result of a motor vehicle accident he suffered a back injury, whiplash injury, shoulder problems, blood clots on the lungs and a brain aneurism. Ms Yik-Long asked about his condition in August 2014. Mr Jones said he suffered from:
·Blood clots for which he was taking warfarin medication;
·A back injury which he had had since he was a teenager;
·Whiplash to the neck;
·Arthritic conditions in his back, shoulders and hips;
·He had a hip replacement in April;
·An aneurism on 2 August 2014 for which he had a coil inserted into his brain; and
·Previous problems with sarcosis.
He added that when he was younger he had problems with checking things such as light switches, gas burners and the like.
When asked, Mr Jones said he could not remember when he first saw Dr Chacko Varughese (Varughese). He agreed that it would have been after he had lodged his claim in August 2014 and was some time this year (2015).
Ms Yik-Long asked Mr Jones about his urological disorder. Mr Jones said he could not go to the toilet when he wanted to. The problem started after his aneurism and is a lot better following his treatment. He said he attends the Sir Charles Gairdner Hospital as an outpatient and is due to go back for further tests and a check on his medication.
Asked about his shoulder and back injuries Mr Jones said that originally the scapula muscle was torn off the bone. He said it was two years before he could lift his arms above his head. Mr Jones said he takes pain killers and is able to perform some overhead activities.
Mr Jones agreed that his hip replacement was improving and was a lot better now.
Mrs Jones
In her oral evidence Mrs Jones said that Mr Jones has not been able to fully function since his brain aneurism in 2014. She said he has bad short term memory loss. She has to give him his medications each morning. She helps him to dress. She has to organise him. He is very slow. His vision is up and down and he can’t read. Mrs Jones said he has permanent vertigo and was in hospital last week for three days. She said his nerve endings have died, he lacks oxygen in the brain, and the doctors are still doing MRI investigations.
She described Mr Jones as being very unbalanced on his feet, his head spins, he is very confused with everyday thoughts and he has to have someone with him to provide help.
Mr Jones
Mr Jones interposed saying he has had bouts of depression for years and has been taking medication although he hates taking tablets. He said his head was spinning the other day and he had to go to bed.
Mrs Jones
Mrs Jones continued, describing Mr Jones’ condition when he was discharged from hospital after having his aneurism. Mrs Jones said Mr Jones would wake up at night and do bizarre things. On one occasion she had to stop him trying to drive the car. She said Dr Chacko treated Mr Jones with medications to control his psychosis.
Mrs Jones handed up more medical certificates (taken in as Exhibits A3 to A7). Mrs Jones submitted that the documents show that Mr Jones’ condition is stabilised, that there is no change to his condition and he has ongoing problems.
Mr Jones
Mr Jones again interposed stating he has dizzy spells and loses his balance a lot. He said that six weeks earlier he had fainted as a result of a clotting problem and was taken by ambulance to hospital.
In answer to questions Mr Jones said:
·He started seeing Dr Chacko early this year but can’t remember exactly when;
·He can’t remember how often he sees Dr Chacko;
·He attends the Fiona Stanley clinic for monthly therapy sessions after which his medications are adjusted as necessary; and
·This treatment started this year.
Mrs Jones
Ms Yik-Long asked Mrs Jones about the evidence Mr Jones gave to the SSAT that he did not know about programs of support. Mrs Jones said that they did not know that the program was involved with the claim. She said Mr Jones was not up to doing a program due to his sickness. She said he was sent to one place, at Morley, for an interview with a lady. He also received a letter to go to the Salvation Army but he could not attend because of his sickness. Mrs Jones agreed that these activities occurred after Mr Jones’ aneurism.
TRIBUNAL CONSIDERATIONS
Does Mr Jones have an Impairment? (s 94(1)(a))
The Respondent concedes, correctly in my opinion, that during the qualifying period Mr Jones had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·Subarachnoid haemorrhage,
·Osteoarthritis of the hips,
·Spinal disorder,
·Urological disorder, and
·Mental health disorder.
The concession is supported by the evidence and I find accordingly.
Do the Impairments Attract an Impairment Rating of 20 Points or More? (s 94(1(b))
I must now determine whether Mr Jones’ impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is likely to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.
Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:
(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.
I will consider each of the conditions in turn.
Subarachnoid Haemorrhage
In the Statement of Facts, Issues and Contentions the Secretary accepts that the condition of Subarachnoid Haemorrhage is fully diagnosed, treated and stabilised and therefore permanent. There is considerable medical evidence to support this concession. I find that the Subarachnoid Haemorrhage is fully diagnosed, treated and stabilised and permanent. As a result the impairment resulting from this condition can be assessed by reference to the Impairment Tables.
In their evidence Mr and Mrs Jones provided details of Mr Jones’ condition. Mrs Jones reiterated her evidence in her final submissions, describing Mr Jones’ headaches, vertigo, memory loss and his need for assistance with daily tasks.
However, in considering the evidence I note the following provisions in the Introduction to Table 7 – Brain Function of the Impairment Tables:
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a specialist health practitioner ….. ;
oresults of diagnostic tests … ;
oresults of cognitive function assessments.
Although corroborating evidence is not limited to the examples in the Table, I accept that the corroborative evidence must arise from investigations by appropriate health professionals. I consider the evidence of Mrs Jones to be an amplification of that of Mr Jones which is not sufficient to meet the corroboration requirements of the Table.
The relevant corroborated evidence is contained in the following reports:
·Report by Dr Slusarczyk dated 8 November 2014 (T-Documents, T28) which records:
oCurrent symptoms – Cognitive impairment, visual field loss, unsteadiness, tendency to urinary retention, depression;
oImpact on ability to function – Requires care of wife, Slowed mentation, indecision, sleep disturbance, visual field deficit, precludes driving, unable to attend to financial management; and
o… other information … - Mr Jones has had long term significant disabilities but had been able to do some work due to lenient employer and specific duties. Has not been employable in open workforce for several years. Recent haemorrhage has significantly impaired him further;
·Report by Dr Tang dated 10 February 2015 (T-Documents, T33) which records:
oCurrent symptoms – Cognitive Issues – reduced insight, poor planning, poor problem solving, reduced carryover. Behavioural Issues – distractable, poor attention, lowered frustration tolerance – anger issues. Fatigue – requires rests during day especially if overstimulated; and
oImpact on ability to function – Michael’s brain injury impacts on his ability to perform many day to day activities independently. He requires constant supervision due to his poor cognition, including poor carryover, slow speed of processing, poor executive skills, poor orientation to time; and
·Report by Dr Varughese dated 8 December 2014 (T-Documents, T29) which records: Current symptoms – memory impairment; Impact on ability to function – poor concentration, memory.
The reports by Dr Tang and Dr Varughese were prepared outside the qualifying period however I accept that the content is sufficiently contemporaneous to apply to Mr Jones’ condition during the qualifying period.
Exhibit A3 is another report by Dr Varughese which is undated, but stamped as having been received by the Tribunal on 4 December 2015. There are no indications in this report that the functional impairments described were experienced during the qualifying period. The descriptions are written entirely in the present tense. I accept the Respondent’s submission that this report relates to Mr Jones’ current condition and does not describe his condition in the qualifying period. Accordingly I cannot accept this evidence for the present matter, however I note it may be relevant to any future application.
In the Statement of Facts, Issues and Contentions of the Respondent the Secretary contends that the appropriate rating to be assigned to this condition is a rating of 10 points under Table 7 of the Impairment Tables. The condition causes a moderate functional impact and the Applicant needs occasional assistance with day to day activities and has moderate difficulties in at least one of the areas listed in paragraph 1 in the Table. I accept that the corroborated evidence supports this concession. I will now consider whether a higher rating should be assigned.
The descriptors for a rating of 20 points under Table 7 provide that a person needs once a day assistance and supervision and has severe difficulties in at least one of a number of neurological and cognitive functions.
Dr Tang reports that Mr Jones requires constant supervision. Dr Slusarczyk reports that Mr Jones requires the care of his wife. I am satisfied that this evidence corroborates the evidence of Mrs Jones that Mr Jones needs daily supervision of his medications and that he is confused with everyday thoughts and needs someone to help him. I accept that the condition meets the requirements of frequent (at least once a day) assistance and supervision specified in sub-section (1).
Sub-section (a) relates to memory. Mrs Jones’ evidence was that each day she had to give Mr Jones his medications and to help him dress. She said that she has to organise him. Dr Slusarczyk records that Mr Jones has slowed mentation. Dr Varughese records that Mr Jones’ memory was impaired and he had (poor) memory. Nevertheless I am not satisfied that the corroborating evidence is sufficient to satisfy the requirement of a severe difficulty.
Sub-section (b) relates to attention and concentration. Mrs Jones gave no direct evidence on this point. Dr Tang records that Mr Jones is distractable and has poor attention. I am not satisfied that this evidence is sufficient to meet the requirement of a severe difficulty with attention and concentration. By itself the word distractable does not indicate the level of distraction required to distract Mr Jones from a task. In addition Dr Tang has described Mr Jones’ attention as poor which does not indicate a severe condition. I do not accept that this evidence satisfies the descriptor for sub-section (b).
Sub-sections (c) and (d) relate to problem solving and planning. Mrs Jones’ evidence was that Mr Jones had to be organised and that he was confused with everyday thoughts. Dr Slusarczyk records that Mr Jones has slowed mentation and that he is unable to attend to financial management. Dr Tang records poor problem solving and poor planning. I am not satisfied that the available evidence is sufficient to meet the requirement for a severe difficulty with problem solving or planning.
Sub-section (e) relates to decision making. The example given in the Table is:
The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
Mrs Jones gave no direct evidence on this issue however she did say that she had to organise Mr Jones and that he was very confused with his everyday thoughts. Dr Slusarczyk recorded that Mr Jones displays slow mentation, indecision. Dr Tang recorded:
…Mr Jones’ brain injury impacts on his ability to perform many day to day activities independently. He requires constant supervision due to his poor cognition, including poor carryover, slow speed of processing, poor executive skills, poor orientation to time.
I am not satisfied that the corroborating evidence is sufficient to meet the requirement for a severe impairment, as exemplified in the Table.
Sub-section (h) relates to behavioural regulation. The example given is:
The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
Mrs Jones offered no evidence on this issue. Dr Tang recorded lowered frustration tolerance – anger issues. I am not satisfied that this evidence is sufficient to meet the requirement of a severe difficulty.

There are no other elements in the Table for which there is corroborated supporting evidence. I find the available evidence does not support the requirements for a severe functional impact which would attract a rating of 20 points. Accordingly I find that the impairment rating for Mr Jones’ subarachnoid haemorrhage is 10 points.
Osteoarthritis of the Hips
In the Statement of Facts, Issues and Contentions the Respondent submits that during the qualifying period Mr Jones was awaiting left hip surgery that had been booked. The Respondent contended that the surgery was expected to experience significant function improvement in his left hip. The Respondent submitted that, during the qualifying period, the condition could not be considered as fully treated and that impairment points could not be assigned to this condition.
In his evidence Mr Jones confirmed that he had left hip replacement surgery in April 2015. Mrs Jones confirmed this evidence in her final submissions.
I find that, during the qualifying period the osteoarthritis of the hips was not fully treated. As a result, during the qualifying period the condition was not permanent in the terms of the Impairment Tables and an impairment rating can’t be assigned.
Spinal Disorder
In the Statement of Facts, Issues and Contentions the Secretary accepts that, at the time of the qualifying period, the condition of spinal disorder was fully diagnosed, treated and stabilised and therefore permanent. There is considerable medical evidence to support this concession and I find accordingly. As a result the impairment resulting from this condition can be assessed by reference to the Impairment Tables.
In his evidence Mr Jones said that at times he has pain when lifting his arms above his head. In her final submissions Mrs Jones described Mr Jones as having:
…restricted movements of head and neck and at times headaches, back pain sciatica … also pain when standing, walking, bending and twisting, leaning back and looking up.
The Introduction to Table 4 Spinal Function provides that self-report of symptoms is insufficient and that there must be corroborating evidence of the impairment from a health professional. The evidence of Mrs Jones is not sufficient to meet the corroborating requirements of the Table.
The corroborating evidence relevant to spinal function during the qualifying period is contained in the following reports:
·Report by Dr Raeiy dated 20 August 2014 (T-Documents T20) which records: chronic back pain;
·Report of Dr Slusarczyk dated 9 December 2014 (T-Documents T30) which records low back pain constant; stiffness of movement; and
·Job Capacity Assessment Report dated 13 January 2015 (T-Documents T31) which records:
oCurrent symptoms (as per the GP) – low back pain constant, stiffness of movements, pain aggravated by movement; and
oChronic lower back pain – aggravated by movement. Difficulties with sitting/standing reported …Has difficulty sustaining any repeated movement of the lower back … client reported that due to mobility difficulties … he would drive the perimeter rather than walk while performing his duties; and
·Report of Dr Slusarczyk dated 17 February 2015 (T-Documents T34) which records: Pain, stiffness aggravated by movements; Difficulty bending and stretching … unable to bend forward to pick up light objects or attend to footwear.
The February 2015 report of Dr Slusarczyk was compiled outside the qualifying period, however as the condition is of long standing and stabilised I am satisfied that the description contained in the report is applicable also to the qualifying period.
The Secretary accepts that the condition attracts a rating of five points on the basis that Mr Jones has difficulty performing some activities, not that he is unable to do them.
I am satisfied that the corroborated evidence supports a rating of five points. I will now consider whether the condition attracts a higher rating.
For a rating of 10 points Table 4 requires relevantly:
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions … ; or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The Job Capacity Assessor accepted Mr Jones history that he would drive the perimeter as part of his work. This is the only evidence available on this issue. It is not contested by either party. I accept this as sufficient evidence to meet the requirement that Mr Jones is able to sit in or drive a car for at least 30 minutes. I accept also from the evidence of Dr Slusarczyk that Mr Jones is unable to bend forward to pick up light objects placed at knee height.
The descriptors for a severe functional impact for a rating of 20 points are:
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
There is no evidence to support this level of functional impact.
Accordingly I find that the impairment rating for the spinal disorder is 10 points.
Urological Disorder
In his evidence Mr Jones stated that he could not go to the toilet when he wanted to. He said the condition started after his aneurism and the condition is a lot better with the new medication.
The report of Dr Malem dated 6 March 2015 records that a condition of prostatomegaly had a date of onset of 2 August 2014 which was diagnosed on 6 March 2015. A new medication treatment commenced on the same date.
There is no evidence that the condition was diagnosed at the time of the qualifying period and I find accordingly. As the condition was not fully diagnosed it can’t be considered as permanent during the qualifying period and can’t be assigned an impairment rating.
Mental Health Condition
In considering whether the condition was fully diagnosed, treated and stabilised during the qualifying period I note the following reports:
·Report of Dr Varughese dated 8 December 2014 (T-Documents T29) which records:
oDiagnosis - Unspecified Organic Psychosis;
o Date of diagnosis - 31 October 2014;
oCurrent treatment – antipsychotic, antidepressant;
oFuture/planned treatment – antipsychotic, psychotherapy; and
oWithin the next 2 years the effect of this condition on the patient’s ability to function is expected to: Uncertain; and
·Undated report of Dr Varughese (Exhibit A3) which repeats the diagnosis as recorded in his 8 December 2014 report.
The Introduction to Table 5 Mental Health Function requires that the diagnosis must be made by an appropriately qualified medical practitioner, including a psychiatrist. Dr Varughese is a qualified psychiatrist. I find that during the qualifying period the condition was fully diagnosed.
In considering whether the condition was fully treated and stabilised I note Dr Varughese recorded future/planned treatment to include psychotherapy.
In his evidence Mr Jones said that he had been referred to the Fiona Stanley Hospital for therapy sessions. He said the sessions started this year, being 2015. He said he still sees Dr Vaughese on a monthly basis for his medication to be adjusted as necessary.
I am satisfied from the evidence that during the qualifying period Mr Jones’ mental health condition was fully diagnosed but not fully treated nor stabilised and I find accordingly. As a result the condition can’t be considered permanent during the qualifying period and can’t be assigned an impairment rating.
Total Impairment Rating
For Mr Jones’ conditions at the time of qualifying period I have found the following:
(1)Subarachnoid haemorrhage – 10 impairment points;
(2)Osteoarthritis of the hips – not fully treated – unable to assign an impairment rating;
(3)Spinal disorder – 10 impairment points;
(4)Urological disorder – not fully diagnosed – unable to assign an impairment rating; and
(5)Mental health condition – diagnosed but not fully treated and stabilised – unable to assign an impairment rating.
The total impairment rating at the time of the qualifying period is 20 impairment points. Accordingly, Mr Jones satisfies s 94(1)(b) of the Act.
Does Mr Jones have a Continuing Inability to Work? (section 94(1)(c))
Section 94(1)(c) of the Act provides that to qualify for DSP a person must have a continuing inability to work. Section 94(2) of the Act provides:
(1) 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) …
Section 94(3B) provides that:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Although Mr Jones has impairments rating a total of 20 points, none of his impairments attract 20 points from a single Impairment Table. Accordingly, none of Mr Jones’ impairments are severe in terms of the Act.
As Mr Jones does not have a severe impairment, he must have actively participated in a program of support. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination) provides, in paragraph 5, that a person has actively participated in a program of support if he has participated in a POS for 18 months within the 36 months prior to the date of claim and complied with the requirements of the program.
In the Statement of Facts, Issues and Contentions the Secretary states:
Centrelink’s records show that the Applicant had not completed the required 18 months with a program of support provider prior to lodging his DSP claim (T40, p232).
In her evidence Mrs Jones said that at the time of submitting the DSP claim they were unaware that the POS required for the claim. She said that Mr Jones was not capable of participating in such a program due to his sickness. She did not contest that Mr Jones had not completed a POS.
From the evidence, I find that Mr Jones has not actively participated in a POS. As a result he does not satisfy the provisions of section 94(2) of the Act and cannot be found to have a continuing inability to work.
There are no other sections of the Act which can provide an exemption from this requirement. Accordingly, I find that, during the qualifying period, Mr Jones did not satisfy the provisions of section 94(1)(c) of the Act.
CONCLUSION
To qualify for the DSP a person must, during the qualification period, satisfy all subsections of section 94(1) of the Act. Mr Jones did not satisfy the requirements of section 94(1)(c) of the Act. As a result, he could not satisfy all the provisions of section 94(1) of the Act. The result is that during the qualification period Mr Jones was not qualified for DSP and I find accordingly.
If Mr Jones’ conditions have changed since the qualifying period he is entitled to submit a new application at any time. Evidence tendered in this matter but determined to be not relevant to the qualifying period may be of assistance in a new application.
DECISION
I affirm the reviewable decision.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
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Administrative Assistant
Dated 23 February 2016

Date of hearing

Date final submissions received

4 December 2015

29 January 2016

Applicant
In person

Representative for the
Applicant Mrs S Jones

Representative for the
Respondent Ms S Yik-Long

Solicitors for the Respondent Australian Government Solicitor

[2016] AATA 98

23 February 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Division	GENERAL DIVISION
File Number(s)	2015/2612
Re	Michael Jones
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr C Ermert, Member
Date	23 February 2016
Place	Perth

Date of hearing Date final submissions received	4 December 2015 29 January 2016
Applicant	In person
Representative for the Applicant	Mrs S Jones
Representative for the Respondent	Ms S Yik-Long
Solicitors for the Respondent	Australian Government Solicitor