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

[2017] AATA 81

Mitchell and Secretary, Department of Social Services (Social services second review) [2017] AATA 81 (27 January 2017)

Division:GENERAL DIVISION

File Number:           2016/2726

Re:Lesley Mitchell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:27 January 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

Catchwords

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – Applicant has 30 impairment points – where impairments not severe – continuing inability to work – program of support – whether s 7 of the Active Participation Guidelines applies – s 7(3) does not apply – s 7(4) does not apply – whether an applicant can self-provide a POS – whether subsequent success in a DSP claim is relevant to the decision at hand – decision under review affirmed

Legislation

Social Security Act 1991 (Cth), ss 26, 94

Social Security (Administration) Act 1999 (Cth) ss 41 and 42 and cl 4 and cl 4(1), Schedule 2, Part 2

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Secondary Materials

The Guide to Social Security Law

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Senior Member T. Tavoularis

27 January 2017

INTRODUCTION

1. On 28 July 2015, Ms Lesley Mitchell (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) with the Department of Human Services (“the Department”), listing her medical conditions as:[1]

   [1] Exhibit 1, T Documents, T 41, pp 173-203.

   ·Diabetes

   ·Obesity BMI 42

   ·(L) Medial + Lateral Epicondilitis

   ·(R) Lateral Epicondilitis

   ·Major Depressive + Adjustment Disorder

   ·15% permanent loss (R) Hand

   ·30% permanent loss (L) Arthritis ankle and tibia

   ·Arthritis (R) Ankle

   ·(L) Plantar forefoot

2. The Applicant supported this application with a number of medical reports, including, inter alia, a medical certificate dated 21 July 2015 by Dr Chaim Meital,[2] radiology reports from March and October 2015,[3] and a Medical Assessment Tribunal Decision dated 21 October 2014.[4]

   [2] Ibid, T 40, p 172.

   [3] Ibid, T 39, p 171; T 44, p 206.

   [4] Ibid, T 36, pp 164-168.

3. I note that the Applicant lodged a further application for DSP while she was seeking review of the decision to reject her claim of 28 July 2015. The facts before me indicate that the Applicant was granted DSP for her application lodged on 16 February 2016.[5]

   [5] Department’s SFIC, [14], Attachment A.

4. Consequently, the issue before the Tribunal is a relatively narrow one – whether the Applicant was entitled to receive DSP between the date of her claim, 28 July 2015, and the date of her subsequent success in claiming DSP, 16 February 2016. I must therefore determine whether the Applicant qualified for DSP at the date of her claim, 28 July 2015, or within 13 weeks thereafter, that being up until 28 October 2015.

   HISTORY OF THE MATTER

5. On 28 July 2015, the Applicant lodged a claim for DSP with Centrelink. She attended an assessment with a JCA who subsequently produced a report dated 13 November 2015. The JCA listed the Applicant’s conditions as follows:

   (a)Lower limb deficiencies – osteoarthritis in both ankles. This condition was considered to be verified by medical evidence and fully diagnosed, treated and stabilised. The JCA thought this impairment attracted a rating of 10 impairment points.

   (b)Urinary incontinence. This condition was considered to be permanent. However, as it was first identified only four days before the JCA report and no treatment had at that time been pursued, it was not found to be fully diagnosed, treated or stabilised. Consequently, no impairment points could be awarded.

   (c)Musculo-skeletal Disorder – left elbow medial and lateral epicondylitis; right elbow epicondylitis. This condition was found to be fully diagnosed, treated and stabilised. The JCA recommended this condition be awarded 10 impairment points.

   (d)Psychol/psychiatric Disorder – chronic adjustment disorder with mixed anxiety and depression. This condition was found to be fully diagnosed, treated and stabilised. The JCA determined that this condition warranted a rating of 5 points.

   (e)Diabetes – non-insulin dependent. Though the JCA found that this condition was likely to persist for more than 24 months, it was not evidenced as being fully treated or stabilised. Consequently, no impairment points could be awarded.

   (f)Morbid obesity. The JCA did not consider that there was sufficient evidence of treatment for this condition to be found to be fully treated or stabilised. The JCA therefore found that this condition could not attract any impairment points.[6]

   [6] Exhibit 1, T Documents, T 46, pp 208-218.

6. Consequently, the JCA found that the Applicant’s conditions attracted a total of 25 impairment points. Additionally, the Applicant’s Baseline Work Capacity was assessed as being 8-14 hours per week with a predicted capacity of 15-22 hours per week within 2 years with intervention. No temporary work capacity was assigned.[7]

   [7] Ibid.

7. On 27 November 2015, the Department wrote to the Applicant advising her that her application for DSP had been rejected. Although the JCA had found that the Applicant’s conditions together reached a total of 25 impairment points, she had not completed the mandatory program of support (“POS”).[8]

   [8] Ibid, T 47, pp 219-220.

8. The Applicant sought a review of this outcome and her claim was subsequently reviewed by an Authorised Review Officer (“ARO”), who affirmed the decision under review. The ARO reviewed the JCA report and additional other relevant evidence provided to the Department and made the following findings of fact:

   Findings of Fact

   After careful consideration of the evidence, I have made these key findings:

   ·     You have the following permanent conditions: osteoarthritis of both ankles, epicondylitis of both arms and adjustment disorder with mixed anxiety and depressed mood.

   ·     Your conditions of urinary incontinence, morbid obesity, left foot flexor tendon fibroma, morbid obesity and diabetes mellitus are not accepted as being permanent as they have not been fully treated and stabilised.

   ·     Your total impairment rating is 25 points.

   ·     You do not have a severe impairment.

   ·     You have not actively participated in a program of support.

   ·     You do not have a continuing inability to work 15 hours or more because of your impairment.[9]

   [9] Ibid, T 53, p 234.

9. Dissatisfied with this result, the Applicant again sought to review this decision. On 21 April 2016, at first review, this Tribunal (“AAT1”) (via the Social Services and Child Support Division of the AAT) also affirmed the decision under review on the grounds that the Applicant “had not actively participated in a program of support for the purposes of the Act at the time of her pension claim in July 2015.”[10] This decision was posted to the Applicant on 29 April 2016.

   [10] Ibid, T 3, p 12.

10. On 23 May 2016, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“the Tribunal”).

    LEGISLATIVE FRAMEWORK

11. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

12. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 28 July 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[11] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 28 July 2015 and 28 October 2015 (“the Relevant Period”).

    [11] See ss 41 and 42 and cl 4 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

13. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

    …the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. 

    [my underlining]

14. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[12] The Tables are function based rather than diagnosis based; and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[14]

    [12] See s 26(1) of the Act.

    [13] See s 5(2) of the Determination.

    [14] See s 6(1) of the Determination.

15. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[15] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] See s 6(3) of the Determination.

    [16] See s 6(4) of the Determination.

16. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[17]

    [17] See s 6(5) of the Determination.

17. A condition is “fully stabilised” if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[18]

    [18] See s 6(6) of the Determination.

18. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[19]

    [19] See s 6(7) of the Determination.

19. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[20]

    [20] See s 11(1) of the Determination.

20. Additionally, an applicant must also show, inter alia, that they have a continuing inability to work.[21] In respect of this requirement, all the criteria in s 94(2) of the Act need to be satisfied. That is, an applicant must show that: they either have a severe impairment (that is 20 points under a single Impairment Table) or have a total of 20 or more points and have actively participated in a program of support (“POS”); that their impairment is sufficiently great that they cannot do any work independently of a POS within the next two years; and either that the impairment itself is sufficient to prevent them from undertaking a training activity within the next two years, or that such training is unlikely to enable them to do work independently of a POS within the next two years.[22]

    [21] The Act, s 94(1)(c).

    [22] Ibid, s 94(2).

21. An applicant has actively participated in a POS where “the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.”[23]

    [23] Ibid, s 94(3C).

    ISSUES FOR THE TRIBUNAL

22. From the history of this matter, and indeed as is conceded by the Department, I have no doubt that the Applicant suffers from a number of medical conditions which constitute physical impairments.[24] Consequently, it is clear that the Applicant meets the first requirement under s 94(1) of the Act.

    [24] Department’s SFIC, [20].

23. With both the history of this matter, and the relevant legislative framework in mind, the remaining issues for me to consider are:

    (a)whether, during the relevant period, the Applicant’s medical conditions were fully diagnosed, treated and stabilised;

    (b)whether the Applicant’s medical conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a POS; and

    (d)whether the Applicant has a continuing inability to work.

    CONSIDERATION

    Did the Applicant have a medical condition or conditions that were permanent and attracted 20 points or more under the Impairment Tables?

24. Both at AAT1,[25] and before me at the hearing, the Applicant has not sought to contest that she should be awarded 25 impairment points, as determined by the JCA. Similarly, the Department has accepted the JCA report as providing an accurate statement of the Applicant’s conditions and their impact on her.[26] I find each of these concessions to be appropriately made with respect of the Applicant’s physical conditions. Although I do not propose to deviate from these assessments, I note that the Applicant’s treating GP,
    Dr Chaim Meital, considers each of the two conditions which attract impairment points to be “stable and stationary”.[27] I consider the use of the word “stationary” significant –
    

    [25] Exhibit 1, T Documents, T 3, p 7.

    [26] Department’s SFIC, [25].

    [27] Exhibit 1, T Documents, T 49, pp 223, 225.

    Dr Meital does not appear to have considered that there would be a risk that either condition would deteriorate within the next two years. Nor, it would seem, has either condition deteriorated meaningfully since the time the Applicant first participated in a POS.

25. However, there is compelling evidence that the Applicant’s mental health issues have remained at a consistently high level of impairment for quite some time. This condition has caused the Applicant moderate difficulties with socialising, her memory, and fatigue.[28] Indeed, Dr Meital noted that her “condition has remained stable and stationary for an extensive time”, although “this condition may deteriorate with age.”[29] This was the basis upon which a JCA report dated 11 March 2016 increased the Applicant’s rating for mental health functions from 5 to 10 impairment points.[30] I consider this to be an appropriate assessment; the Applicant’s condition has not deteriorated, but rather subsequent evidence has shown it to be worse than determined by the first JCA. I therefore find that the Applicant’s mental health conditions should be assigned 10 points under Table 5.

    Summary of Impairment Points

    [28] Exhibit 1, T Documents, T 49, p 225.

    [29] Ibid, p 226.

    [30] Ibid, T 61, p 291.

Condition	Table	Points Assigned
Osteoarthritis – both ankles	Table 3	10 points
Musculo-skeletal disorder – epicondylitis in both elbows	Table 2	10 points
Psychological/psychiatric disorder	Table 5	10 points
Morbid Obesity	-	Requirements not met
Diabetes – non insulin dependent	-	Requirements not met
Urinary incontinence	-	Requirements not met
Total Points =	30 points

1. To summarise, I consider that the Applicant’s impairments attract a total of 30 points under the relevant Impairment Tables, being Table 3 for her condition of osteoarthritis of both ankles, Table 2 for her epicondylitis in both elbows, and Table 5 for her chronic adjustment disorder with mixed anxiety and depressed mood. Accordingly, I consider that the Applicant satisfies the second of the requirements under section 94(1)(b) of the Act.

   Continuing Inability to Work?

2. Although the Applicant’s impairments attract 30 points in total under the relevant Impairment Tables, none of those impairments are “severe” in the sense that they attract 20 points under a single Table.

3. Pursuant to s 94(2)(aa) of the Act, where a person’s impairment is not severe, they are required to have actively participated in a POS. If they have not done so, they cannot be found to have a continuing inability to work.

4. A person is considered to have actively participated in a POS if they have satisfied the requirements set out in a legislative instrument made by the Minister for the purposes of
   s 94(3C) of the Act. The Minister may also make relevant guidelines under s 94(3E).

5. The relevant legislative instrument made by the Minister is the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014 (“APD”).

1. The APD requires a person who has claimed DSP to have participated in, and complied with, a POS for at least 18 months during the 3 years before the claim for DSP was made.

2. From the evidence before me, it is apparent that the Applicant actively participated in a POS for about 7 months of the 36 months prior to her claim for DSP on 28 July 2015. This period of participation, in a rehabilitation program managed by an occupational therapist and funded by Workcover,[31] has been accepted by the Department as a period of active participation in a POS.[32]

   [31] Exhibit 1, T Documents, T 56, pp 268-271.

   [32] Department’s SFIC, [59]-[60].

3. The Applicant does not contend that she participated in a POS prior to that 7-month long participation. However, she does claim to have effectively self-administered a POS subsequent to that.[33] For reasons I explore in more detail later, I do not accept that contention. I therefore find that the Applicant had only participated in a POS for 7 months in the 36 months prior to her claim for DSP. She was not enrolled in a POS at the time of her claim.

   [33] Applicant’s SFIC, [1]-[4].

4. There are certain exceptions set out in s 7 of the APD. Particularly relevant here are the exceptions appearing in ss 7(3)-(5) of the APD. I will address each provision in turn.

   Additional Considerations

5. Before I do, I note that two additional and somewhat novel questions are raised in this application. The first is whether an individual can provide a POS to themselves. The second is whether, given the short period of time between the application at hand and her successful application, the Applicant’s later success with respect to the POS requirements can be transported onto the earlier application. For the reasons I explain below, I consider the correct answer to each question is “no”.

6. The Applicant contended that, due to her unique training and work experience (including approximately 12 years working as an occupational health and safety manager), she was her “own Rehabilitation and Injury Management Provider”.[34] Alternatively, she argued that a provider need not be involved in the entirety of the POS. Rather, after a provider has withdrawn its services, an applicant could meet the POS requirements if they continued on, and completed, the recommended course.[35] Ultimately, she concluded:

   This case should be a test case and the legislation should be worded to include:

   1The provider to be involved for the entirety of the Program of Support; and

   2Allowance made for such cases as to include qualified and experienced individuals that can complete a Program of Support, wholly, partly, or without the aid of an Injury Management Provider due to their experience and qualifications.[36]

   [34] Ibid, [2].

   [35] Ibid.

   [36] Ibid, [4].

7. With respect to the Applicant, this conclusion is misplaced. It is not for the Tribunal to reword legislation. That would far exceed my role. It is, however, my role to interpret the legislation to come to the most preferable decision on the facts of the case, as if I were in the shoes of the original decision-maker.

8. It is on this basis that I must reject the Applicant’s contentions on this point. Although it is admirable that the Applicant has continued on her path of injury management without support from a POS provider, and has completed tertiary studies during that period, that is not enough to meet the requirements of participation in a POS.

9. I understand the POS requirements to exist to assist applicants to prepare to find work beyond what they otherwise could. Indeed, this is clear from the explanatory statement to the APD:

   Long term dependence on disability support pension is not the best outcome for people who have skills and capacity to participate in the labour market or who are able to build such skills with appropriate assistance.[37]

   [37] ADP Explanatory Statement.

10. There are two limbs to this statement: the first deals with people who already have or are capable of achieving the requite skills and capacity to participate in the labour market by virtue of their own efforts; and the second deals with people who require “appropriate assistance” to develop those skills or capacity. It appears to me that the latter limb refers to a POS.

11. The above statement does not point to a dichotomy so much as acknowledge a natural two-step process – individuals ought to first try and help themselves, and if that fails, seek outside help. Only then should they seek assistance from the government. I consider it to the Applicant’s credit that she has undertaken steps to educate and train herself in the hope of seeking future employment. However, it is apparent from the JCA’s report on her work capacity that this training has not helped the Applicant to prepare for work.[38] This is precisely why it is necessary that she look to external providers of support – POS providers – for further assistance. Without completion of a POS, or unless she meets the exceptions contained in s 7 of the APD, there is simply no way of knowing whether the Applicant could work again in the future.

    [38] Exhibit 1, T Documents, T 46, pp 215-216.

12. Ultimately, it is for these reasons that I find the very idea that a person can self-provide a POS to be anathema to the POS requirements. Individuals can only do so much to help themselves, but a team of others with experience in the field (i.e. POS providers) might well be able to make a meaningful change in an applicant’s ability to find work.

13. Consequently, I find that the Applicant could not provide a POS to herself.

14. The report dated 15 December 2016 of the Red Cross Employment Services, a POS provider, indicates that she could not gain the benefits of a POS at the time of her latter application in February 2016.[39] For the reasons listed below, I do not consider this to shed light on the Applicant’s ability to meet the standard active participation in a POS requirement or the exceptions contained in s 7 of the ADP in the relevant period for the application at hand.

    [39] Ibid, T 50, p 228.

15. In Harris v Secretary, Department of Employment and Workplace Relations,[40] Justice Giles determined that because the Tribunal must only consider the facts as they stood at the time of review or within 13 weeks thereafter, subsequent evidence is only relevant insofar as it sheds light on the applicant’s conditions during that period.[41] This is crucial for the determination of the second additional question.

    [40] (2007) 158 FCR 252.

    [41] Ibid, p 253.

16. I note that there is a JCA report dated 11 March 2016 that determines that the Applicant’s capacity for work was considerably lower than the JCA report for the current application,[42] and a Red Cross letter stating that the Applicant could not continue to participate in or gain any benefit from a POS.[43] However, neither refers to the Applicant’s state at the time of her application on 28 July 2015. Indeed, I consider the Red Cross letter to only shed light on whether or not it could have assisted her at the time she sought its assistance. Unfortunately for the Applicant, this was outside the relevant period for her application. Although it appears to me – as indeed it must have appeared to the Department – that the Applicant could successfully meet the requirements of s 7(5) of the ADP due to this letter at the time of her second application, it is simply irrelevant to resolving the issue before me today. This is particularly true as the Applicant was not even enrolled in a POS at the time of her application in July 2015.

    [42] Exhibit 1, T Documents, T 61, pp 285-295.

    [43] Ibid, T 50, p 228.

17. Consequently, the Applicant’s success in her most recent DSP application has no bearing on the decision before me. I will now address each of the APD ss 7(3)-7(5) exceptions in turn.

    Subsection 7(3)

18. With reference to subsection 7(3) of the APD, these questions arise:

    (a)was the duration of the POS less than 18 months? There is no evidence to suggest that it was; and

    (b)did the Applicant complete the entire POS during the relevant period? On the evidence before me, it appears that the Applicant’s POS ceased because Workcover ceased its funding, not because she completed it.[44] Consequently, I must answer this question “no”.

    [44] Exhibit 1, T Documents, T 56, pp 269-270.

    Subsection 7(4)

19. With reference to subsection 7(4) of the APD, these questions arise:

    (a)was the POS terminated before the end of the 36 month period ending immediately prior to the Applicant’s claim for DSP? For reasons outlined above, it is clear to me that the POS was in fact terminated. However, this termination occurred in October 2013,[45] more than 20 months before the application at hand. Thus, the answer is clearly “no”; and

    (b)was the POS terminated because the Applicant was unable, solely because of her impairment, to improve her capacity to prepare for, find, or maintain work through continued participation in the POS? The answer to this question is “no”, as the POS was cancelled for an altogether different reason.[46]

    [45] Ibid.  

    [46] Ibid.

    Subsection 7(5)

20. Third, with reference to subsection 7(5) of the APD, these questions arise:

    (a)at the end of the relevant period, was the Applicant participating in a POS? I see no evidence before me indicating that the Applicant was; and

    (b)was the Applicant prevented, solely because of her impairments, from improving her capacity to prepare for, find, or maintain work through continued participation in the POS? This question need not be answered, as the Applicant has not passed the first hurdle for this exception.

    Capacity to Work or Undertake a Training Activity

21. As the Applicant does not have a ‘severe’ impairment and has not actively participated in a POS, there is no need for me to consider whether she has a capacity to work or undertake a training activity.

    CONCLUSION

22. In consideration of all of the above, I have found that the Applicant has not met all requirements contained in s 94 of the Act for the grant of DSP. She has impairments that attract a total of 30 points under the relevant Tables. However, I am not satisfied that she has a severe impairment or has actively participated in a POS for the purposes of the Act, either in fact, or through application of the exceptions contained in ss 7(3)-(5) of the APD. In any event, I am not satisfied that the Applicant had a continuing inability to work during the Relevant Period.

23. Accordingly, the decision under review is affirmed – the Applicant was not entitled to receive DSP at the time of her claim on 28 July 2015 or during the Relevant Period.  

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated: 27 January 2017

Date of hearing:	30 September 2016
Applicant:	By phone
Solicitor for the Respondent:	D. Smith, Department of Human Services - FOI and Litigation Team