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

Morgan and Secretary, Department of Social Services (Social services second review) [2017] AATA 236 (24 February 2017)
Division:GENERAL DIVISION
File Number: 2016/1985
Re:Philip Morgan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:24 February 2017
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether Applicant’s conditions attract 20 points or more – whether conditions fully diagnosed, treated and stabilised – whether conditions permanent – impairment ratings – continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991, ss 27, 94
Social Security (Administration) Act 1999, s 63, Sch 2 Pt 2 Cl 4
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 922

Gallacher v Secretary, Department of Social Security
[2015] FCA 1123
Augustynski and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 507

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011
Social Security (Active Participation for Disability Support Pension) Determination2014

REASONS FOR DECISION
Senior Member J Sosso
24 February 2017
INTRODUCTION

Mr Philip John Morgan (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 24 February 2016 which affirmed the decision of the Department of Human Services (the Department) to reject the Applicant’s application for the disability support pension (DSP).
On 4 June 2015 the Applicant lodged a claim for the DSP - Exhibit 1 T6 p.57.
The Applicant was born in 1954 and was 61 years of age when he first lodged his claim. He listed the following disabilities and injuries (Exhibit 1 T6 p.70):
“Stiff neck, bad lower back, shoulder limitation & surgery elbow surgery, pain right hip, vertigo, ear ringing, numb feet.”
The Applicant noted his most recent employment was with Turner’s Transport between 25 March 2012 and 6 April 2013 – Exhibit 1 T6 p.71.
A medical report prepared in the standard form in support of DSP was submitted by Dr Michael Clutterbuck of the Kawana Family Clinic and dated 26 May 2015 – Exhibit 1 T7 p.95. At Question 3 of the Form, which asks which medical condition has the most impact on the patient, Dr Clutterbuck provided the following information (p.96):
“Cervical spondylosis; cervical disc degeneration, (L) shoulder impingement; (RD) hip pain, L/S spine pain & tinnitus.”
Dr Clutterbuck noted that the Applicant’s then treatment was “Physio; HCI; Specialist assessment” and that his future/planned treatment was: “Physio/Anaglesia” – Exhibit 1 T7 p.97.
The Applicant was involved in two accidents which resulted in serious injuries.
The first was on 25 July 2001 when he suffered a “crush type injury whilst working. He was hit by a heavy can and pinned between the can/drum and a backboard of a vehicle. He required surgical treatment by Dr W Ryan, Orthopaedic Surgeon” – Exhibit 1 T9 p.107.
The second accident occurred on 6 April 2013. The Applicant was driving on the Sunshine Motorway when he observed that a vehicle burst into flames and the driver of the vehicle had jumped out. He pulled over and unlocked his seatbelt and turned his hazard lights on. As he was about to get out of his vehicle he was hit from behind by another vehicle. The Applicant was transported to emergency services at Nambour Hospital with injuries to both elbows, his head and with pain in the left shoulder, neck and lower back.
The Applicant has had persistent ongoing issues with his left shoulder and left upper limb. He was assessed by Dr Bansi, an Orthopaedic Surgeon and diagnosed with a tendon tear in the left shoulder, bicipital problems in the left arm and shoulder and left elbow issues related to nerve decompression. Dr Bansi performed two surgical procedures; the first in February 2014 to the left shoulder and the second in June 2014 to the ulnar nerve at the elbow.
The Applicant has suffered from ongoing pain and discomfort and stopped working in 2013.
Prior to the 2013 accident the Applicant had worked in a variety of jobs. Following the 2001 injury he worked as a self-employed butcher at Redcliffe and then obtained employment driving trucks, usually transporting fruit and vegetables from Palmwoods to the Rocklea Markets.
On 21 October 2015, the Applicant’s claim was rejected by the original decision-maker – Exhibit 1 T11 p.125, and that decision was affirmed by the Authorised Review Officer (ARO) on 2 December 2015 – Exhibit 1 T13 p.129.
The ARO found that the Applicant had the following permanent conditions: spinal disorder, shoulder and upper arm disorder and tinnitus. She awarded the Applicant, under the Impairment Tables, a total of 20 points, but not under a single Table. Additionally she found that the Applicant did not have a severe impairment and had not actively participated in a program of support. Finally she found that he did not have a continuing inability to work 15 hours per week or more because of his impairment – Exhibit 1 T13 p.130.
The AAT1 was constituted by Member Sheffield. She found that s 94(1)(b) of the Social Security Act 1991 (the Act) was satisfied as the Applicant had an impairment at the time he made his claim, and that his impairments, save vertigo, were permanent – Exhibit 1 T2 p.5. Member Sheffield found that the Applicant had an impairment rating of 20 points under Tables 2, 3, 4 and 11 but that 20 points could not be assigned under any single Table – Exhibit 1 T2 p.11. Finally, she found that the Applicant had not satisfied the program of support requirements as mandated by s 94(1)(c) of the Act – p.12, and, consequently, he was not qualified for the DSP at the date of his claim.
The Applicant participated in the hearing of 23 January 2017 by teleconference. He was self-represented. The Respondent was represented by Ms Maleah Underhill, Government Lawyer of the Department.
ISSUES
Set out in the Secretary’s Statement of Facts and Contentions (SSFC) - para 2, are the issues to be determined in this matter. As they accurately state the task presently required of the Tribunal I set them out below:
Was the Applicant qualified to receive the DSP in relation to his claim lodged on 4 June 2015 or within 13 weeks thereafter. In particular, did the Applicant have:
(a)A physical, intellectual or psychiatric condition(s); and, if so
(b)Condition(s) that were fully diagnosed, treated and stabilised that attract an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; and
(c)A continuing inability to work.
THE LEGISLATION
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Act. So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations - Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions - Cl.5(2)(d).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
more likely than not, to persist for more than two years – Cl 6 (4).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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 of 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 preferred 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.”
CONSIDERATION
Introduction
The Respondent concedes (SSFC para 20) that the Applicant had impairments for the purposes of s 94(1)(a) of the Act.
Amongst the evidence is a medical report dated 26 August by Dr Greg Gillett, Orthopaedic Surgeon – Exhibit 1 T9 p.106. The report was prepared one day outside the 13 week time period. The Tribunal is, however, at liberty to admit into evidence medical reports prepared outside that period, whether it be one day, one month or even one year, if those reports relate to the relevant Applicant’s medical condition at the time the claim was made - Gallacher v Secretary, Department of Social Security [2015] FCA 1123. I accept that Dr Gillett’s report reflect the Applicant’s impairments at the time he made his claim.
Upper limb conditions
The Respondent accepts (SSFC para 31) that the Applicant’s left shoulder and elbow conditions were fully diagnosed, treated and stabilised when he lodged his claim for the DSP. Further, it is also accepted that the upper limb conditions are permanent, and can be rated under Impairment Table 2 – Upper Limb Function.
This concession was appropriate, as the Applicant has been the subject of extensive medical intervention since the road traffic accident of April 2013, and the nature of that intervention is set out comprehensively in the medical report of Dr Gillett – Exhibit 1 T9 p.106.
Dr Allan McKenzie performed a MRI of the Applicant’s left shoulder on 21 August 2013. Dr McKenzie noted that the Applicant was still experiencing pain and a decreased range of movements. The conclusion he formed was as follows (Exhibit 1 T7 p.93):
“Partial thickness bursal surface tear infraspinatus tendon. Smaller partial thickness bursal surface tear supraspinatus tendon. Moderate subacromial impingement morphology. Moderate degenerative change at the AC joint. Denervation signal abnormality in the teres minor muscle indicating partial quadrilateral space syndrome.”
In his medical report of 26 May 2015 Dr Michael Clutterbuck stated that the Applicant had “(L) shoulder impingement” and that he was suffering “chronic pain in neck, (L) shoulder”, which together with his other ailments “Impacts adversely on all aspects of daily life” Exhibit 1 T7 pp.96-97.
Dr Gillett noted (Exhibit 1T9 p.108) that the Applicant has “persistent issues associated with his left shoulder and he gets discomfort at the acromioclavicular joint surgical area. He has diminished range of motion in his left shoulder. Using his arm away from the body above shoulder height is problematic.” Dr Gillett also observed that the Applicant’s “left elbow is good but he has a scar. ..The function of his hand has improved with the surgery.”
Dr Gillett gave the following opinion on the degree of impairment in relation to the Applicant’s left elbow (p.115):
“this has been surgically treated and he has been left with 0% impairment of whole person function with reference to chapter 16 methodology.”
With respect to the left shoulder condition Dr Gillett stated (p.115):
“this is assessed with reference to table 16-27 (excision AC joint) as 10% impairment of upper extremity function and combined with the loss of motion (figure 16-40, 16-43 and 16-46) of 4%. Using combined value methodology this equates to 14% impairment of upper extremity function of which 5% would reflect the underlying pathological process of degeneration in the AC joint. That is, due to this accident he has 9% impairment of upper extremity function which equates to 5% loss of whole person function.
Scarring regarding his left shoulder would be assessed as 2% impairment of whole person function with reference to table 8-2.”
The Job Capacity Assessor observed (Exhibit 1 T10 p.121) that the Applicant could manage mostly daily activities but had difficulty reaching up or out to pick up objects. The Assessor recommended a rating of five points because he did not meet criteria for a higher rating as there was no verified reduction in fine motor hand function, and the Applicant reported that he was right hand dominant.
The ARO, who had a discussion with the Applicant, made the following observations (Exhibit 1 T13 p.131):
“You advised that you have ongoing discomfort and diminished range of movement above shoulder height. You have no loss of fine motor function in your hands. You advised the assessor that you write with your right hand but generally use your left hand for most other activities. You have lost the ability to use your left hand to carry any bulky object. You are able to manage zips and fastenings and can manipulate smaller objects such as coins.
I consider that there is a mild functional impact on activities requiring the use of your hands and arms and agree with the impairment rating of 5 points assigned under Table2 of the Impairment Tables.”
The Applicant was cross-examined by Ms Underhill at the hearing of 23 January 2017. He testified that he could hold a pencil with both hands and pick up a carton of milk with both hands. He also said that he could use a keyboard with both hands and could text. Finally, he testified that he could pick up a cardboard box without difficulty.
At the AAT1 hearing, the Applicant testified that he used his left hand for using a shovel or an axe and that prior to that hearing he was working on a model truck and trailer to keep active – Exhibit 1 T2 p.8.
Under Table 2 a person has a mild functional impact on activities using hands or arms if they can manage most daily activities, but having difficulty with most of the following:
(a)Picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)Handling very small objects (e.g. coins);
(c)Doing up buttons;
(d)Reaching up or out to pick up objects.
The evidence presented is that the Applicant does have difficulty reaching up and picking up objects, does have difficulty picking up heavier objects and does have some difficulty with smaller objects and fine motor skills, although not to a significant degree. In these circumstances, I have come to the conclusion a five point impairment rating is appropriate. Clearly the Applicant does not have difficulty in holding or using a pen or pencil, or using a keyboard or picking up a light but bulky object, and accordingly cannot be assigned a 10 point impairment rating.
Lumbar and cervical spine conditions
The Respondent accepts (SSFC para 40) that the Applicant’s cervical and lumbar spine conditions are fully diagnosed, treated and stabilised, and contends that the functional impairments arising from these conditions can be rated under Impairment Tables 3 (Lower Limb Function) and 4 (Spinal Function). The concession is appropriate as are the identified Impairment Tables.
The Applicant’s lumbar and cervical spine conditions are longstanding, having arisen, initially, from a workplace accident in July 2001 and which were aggravated following the traffic accident in 2013.
Dr Clutterbuck diagnosed the Applicant with cervical spondylosis, cervical disc degeneration and lumbosacral spine pain in his medical report of 26 May 2015 – Exhibit 1 T7 p.96. The treatment he was then receiving included physiotherapy and analgesia, including Endone (p.97).
Dr Gillett reported that he had examined the Applicant in 2003 and 2004 where he opined that he had a DRE V impairment of the lumbar spine under AMA 5 methodology. Dr Gillett assessed him as having a 25% impairment of the whole person function, 10% of which related to pre-existing pathological process and 15% from the 2001 accident. Exhibit 1 T9 p.107
Dr Gillett also observed (p. 108) that the Applicant has ongoing issues associated with his lower back affecting his back and right hip. He has difficulty bending, sitting causes increased pain in the lower back and gets intermittent right leg symptoms radiating towards the ankle. With respect to the activities of daily life, Dr Gillett said (p. 109):
“He lives in a house and the landlord does the mowing. Vacuuming is a problem. It takes him a couple of days to do the vacuuming. This causes pain in his back. Low tasks and bending tasks are problematic. Dressing and undressing is not too bad but getting jeans on causes discomfort.”
Dr Gillett’s examination of the Application produced this diagnosis (p.112)
“In relation to the lumbar spine, he has scars of his previous surgery. Flexion range is to the knees and he walks up his thighs with extension dysrhythm. Rotation is normal and lateral flexion is limited by a few degrees. He has the diminished right calf size.
Cervical spine examination reveals a tilt to the right side with diminished rotation. Flexion range is 50o, extension range is 50o lateral flexion to the right is 10o and the left side is 20o. Right sided rotation is 40o and the left side is 60o. The neck is generally stiff.”

The Job Capacity Assessor, who is an accredited exercise physiologist, had a face to face meeting with the Applicant, and made the following observations – Exhibit 1 T10 p. 120):
“the client reports is generally able to sit in a car for 20 mins, was observed to be able to sit for more than 10 minutes during the assessment. Whilst vacuuming is difficult, client reports no difficulty with self care and reports is able to do a full two week grocery shop at a time and manoeuvre the grocery trolley around the store and to his car.”
At the AAT1 hearing the Applicant testified (Exhibit 1 T2 p.7) that he cannot squat and while he can bend to the knees this causes a sharp pain in his back and a pain going down his leg. Further, he said that he could not do the mowing and uses the vacuum cleaner once a fortnight, with some difficulty. The Applicant does the grocery shopping every fortnight and leans on the shopping trolley for support. He cannot wear shoes as his feet go completely numb and cannot put a sock on his right foot due to hip pain and restricted movement.
When sitting the Applicant hears a sound like broken glass if he turns his head and experiences pain in his shoulder and throat following by a sensation of pins and needles down his neck and up into his face. He has to turn his whole body to look to the right and cannot look up too far.
At the hearing of 23 January 2017, the Applicant testified that in 2015 he did not use a wheelchair or walking aid. Further he said that he walks on most days, usually for between five and fifteen minutes. He holds onto hand rails to get up stairs, and uses shopping trolleys to navigate around shopping centres. In addition, the Applicant testified that if he stands in one place for more than three minutes his hip starts throbbing.
The Applicant testified that he can sit for 10 minutes, but when sitting cannot bend forward to pick up an item off the floor. He said that he cannot change light bulbs above his head, but can tilt his head backwards and look up. He re-iterated that his feet are numb most of the time and he does not use shoes. When visiting a shopping centre he wears thongs.
With respect to the Applicant’s lower limb functional impairment, the Respondent accepts (SSFC para 43) that the Applicant’s back conditions radiating into his right hip causes pain and that he is unable to stand for more than ten minutes on a regular or repetitive basis. The Respondent also accepts that the Applicant’s ability to walk to local facilities is limited. It is contended that the Applicant should be assigned a rating of five points as his functional impairments are mild.
Table 3 (Lower Limb Function) provides that there is a mild functional impact if at least one of the following applies:
(a)The person has some difficulty walking to local facilities (e.g. shops or a bus-stop);
(b)The person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)The person has some difficulty climbing stairs.
In addition, at least one of the following must apply:
(a)The person is unable to stand for more than ten minutes;
(b)The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
The Tribunal accepts that the Applicant has difficulty walking around local facilities and shopping centres and, further, has difficulty climbing stairs. The evidence before the Tribunal also indicates that the Applicant is unable to stand for more than ten minutes on a regular or repetitive basis. As such the Applicant can be assigned five points under Table 3.
Conversely, the Tribunal is unable to award the Applicant ten points (moderate functional impact) as he is able to use stairs without assistance and he is able to walk far outside his home. At the time he made his claim, the Applicant was not using a wheelchair or walking aids.
Spinal function impairment is assessed under Table 4 (Spinal Function). In order to be assigned five points for mild functional impairment, the person must have some difficulty in:
(a)Activities overhead height (e.g. activities requiring the person to look upwards);
(b)Bending to knee level and straightening up again without difficulty; or
(c)Turning their trunk or moving their head (e.g. to look to the sides or upwards).
As previously set out, the Applicant experiences difficulty with each of the above enumerated tasks. Accordingly, consideration must be given to whether a more serious functional impairment exists. In order to be assigned ten points the person must, in addition to not be able to sit or drive a car for 30 minutes, have at least one of the following impairments:
(a)Unable to sustain overhead activities;
(b)Difficulty in moving head to look in all directions;
(c)Unable to bend forward to pick up a light object placed at knee height;
(d)Needs assistance to get up out of a chair.
The evidence suggests that the Applicant would have difficulty sitting or, if he could, driving a motor vehicle for 30 minutes, and has difficulty in moving his head in all directions. Indeed he also has problems in being able to pick up a light object placed at knee height. In these circumstances, the most appropriate assignment would be 10 points for a moderate functional impairment.
Tinnitus; episodic vertigo
The Applicant stated in his original claim that he experienced vertigo and “ear ringing” – Exhibit 1 T6 p.70. In his medical report, Dr Clutterbuck also noted that the Applicant experiences episodes of vertigo – Exhibit 1 T7 p.96.
Dr Gillett noted that the Applicant “has vertigo as an ongoing issue” – Exhibit 1 T9 p.108. He then went on to recommend (p.116):
“Expert opinion should be sought from Neurologist or an Ear Nose and Throat Surgeon regarding his tinnitus and psychological assessment should be considered.”
The Applicant testified at the 23 January 2017 hearing that he had not obtained the specialist medical intervention that Dr Gillett recommended. Indeed, he informed the Tribunal that his physiotherapy treatment at Kawana had “almost fixed” his vertigo.
The Job Capacity Assessor was of the view that the Applicant’s tinnitus was fully diagnosed, treated and stabilised (Exhibit 1 T10 p.119). The Assessor noted that the Applicant was receiving some physiotherapy but the condition persisted, and was likely to do so for greater than 24 months and to deteriorate during that time. The Assessor therefore assigned the Applicant five points under Table 11 on the basis that the physiotherapy intervention had significantly improved his condition and that he had no apparent difficulty in communicating (p.121).
Table 11 (Hearing and other Functions of the Ear) provides in the Introduction that (Exhibit 1 T4 p.38):
“The diagnosis of this condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist”.
Later in the Introduction, examples of corroborating evidence for the purposes of Table 11 are outlined:
·A report from the person’s treating doctor;
·A report from a medical specialist (e.g. an ENT specialist or neurologist) confirming diagnosis of conditions associated with hearing impairment or other impaired function of the ear (e.g. congenital deafness, presbyacusis, acoustic neuroma, side-effects of medication, Meniere’s disease or neurological conditions including Multiple Sclerosis);
·Results of audiological assessment undertaken by a fully qualified audiologist or ENT specialist.”
It is a condition precedent to the assignment of points under Table 11 that an Applicant has been assessed by an audiologist or ENT specialist who has provided supporting evidence. In this matter, the Applicant has been assessed and a diagnosis made by Dr Clutterbuck, but there is no supporting evidence from a specialist. This course of action was specifically recommended by Dr Gillett, but it has not been carried out. This may be due, as the Applicant testified, to the fact that his vertigo symptoms have been significantly alleviated by the intervention of physiotherapy. However, whatever the reason may be, the Tribunal cannot assign any points under Table 11.
Overall Impairment Rating
The Tribunal is able to assign points to the Applicant under Tables 2, 3 and 4, which cumulatively amount to 20 points, thereby satisfying s 94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
Having been satisfied that the Applicant has met the requirements of s 94(1)(a) and (b) of the Act, the Tribunal now has to consider if the Applicant has a continuing inability to work.
The first issue is that although the Applicant has been assigned 20 points under the Impairment Tables, he has not achieved a rating of at least 20 points under a single Impairment Table. Accordingly, he has not a “severe impairment” as defined by s 94(3B) of the Act. Consequently, the Act requires that he must have actively participated in a program of support (POS) to ensure he has complied with the continuing inability with work requirements.
For claims lodged from 4 January 2015 a person is required to participate in a POS for a minimum of 18 months in the 36 months ending before the day the DSP claim is made.
It is not contested that the Applicant completed 226 days of active participation in a POS in the relevant 36 month period (SSFC para 57) and there is no evidence that the Applicant satisfied the exemptions provided for in s 7(3), (4) or (5) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Determination).
There is a long line of Tribunal decisions that there is no power vested in a Tribunal Member to dispense with the obligations imposed by the operation of s 94(2)(aa) of the Act, and this principle applies irrespective of whether the Applicant was aware of the requirements and operation of this provision or not – Augustynski and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 507.
It follows that the Applicant has not satisfied any of subsections 7(2), (3), (4) or (5) of the Determination, and he therefore cannot be found to have a continuing inability to work. As I have found that the Applicant does not have a “severe impairment” it is not necessary to determine whether he satisfies paragraphs 94(a) and (b) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

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Associate
Dated: 24 February 2017

Date of hearing: 23 January 2017

Applicant: By Phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 236

24 February 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	23 January 2017
Applicant:	By Phone
Solicitors for the Respondent:	Department of Human Services