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

[2016] AATA 398

Neasham and Secretary, Department of Social Services (Social services second review) [2016] AATA 398 (17 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5373
Re	Scott Neasham
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	17 June 2016
Place	Perth

The Tribunal affirms the decision under review.

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Brigadier AG Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments attract 20 points under the Impairment Tables – whether applicant has severe impairment – continuing inability to work – program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(1)(c)(i) – s 94(2)

Social Security (Administration) Act 1999 – Schedule 2

CASES

Augustynski and Secretary, FaHCSIA [2013] AATA 507

Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158

Tey and Secretary, Department of Social Services [2013] AATA 753

VMXC and Secretary, FaHCSIA [2013] AATA 663

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 1 – Table 3 – Table 4 – Table 11

Social Security (Requirement and Guideline – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Brigadier AG Warner, Member

17 June 2016

INTRODUCTION

1. On 25 September 2015, the Administrative Appeals Tribunal Social Services and Child Support Division (AAT1) affirmed a Centrelink decision to reject a claim for Disability Support Pension (DSP) lodged by Mr Neasham on 18 March 2015.

2. Mr Neasham lodged an appeal with this Tribunal on 12 October 2015 (T1/1-4).

   BACKGROUND

3. Mr Neasham was born in June 1967.

4. In his DSP claim dated 18 March 2015, Mr Neasham identified his medical conditions as “osteoarthritis, ankylosing spondylitis (sic), vertigo, fibromyalgia (sic)” (T35/226).

5. Mr Neasham provided a medical report by Dr Simon Torvaldsen, general practitioner, dated 12 March 2015 (T34/203-213).  Dr Torvaldsen records that Mr Neasham suffers from fibromyalgia and inflammatory arthritis – probably ankylosing spondylitis.  He also mentions that Mr Neasham has sleep apnoea and vertigo, and that these conditions are well managed and cause minimal impact on the ability to function (T34/212).

6. Mr Neasham attended a Job Capacity Assessment (JCA) on 22 April 2015.  The JCA report recommended a total impairment rating of 30 points – 10 points for spinal disorder under Table 4, 10 points for tinnitus under Table 11 and 10 points for fibromyalgia under Table 1.  The JCA also assessed Mr Neasham as having a baseline future work capacity within two years with intervention of 8 – 14 hours per week (T37/246-252).

7. Mr Neasham’s DSP claim was rejected on 3 May 2015 on the basis that he had not participated in a Program of Support (POS) (T38/253-254).

8. On 2 June 2015, an Authorised Review Officer (ARO) affirmed the decision to reject Mr Neasham’s claim for DSP (T40/256-240).

9. On 25 September 2015, AAT1 – the first tier reviewer – affirmed the ARO decision (T2/5-27).

   ISSUE

10. The Tribunal must decide whether Mr Neasham was qualified to receive DSP at the time of lodging his claim on 18 March 2015 or within 13 weeks thereafter. This depends on:

    a)Whether Mr Neasham had any physical, intellectual or psychiatric impairments pursuant to section 94(1)(a) of the Social Security Act 1991 (the Act); and

    b)If so, whether any such impairments had a combined rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2001 (Impairment Tables) pursuant to section 94(1)(b)of the Act; and

    c)If so, whether Mr Neasham had a continuing inability to work pursuant to section 94(1)(c)(i) of the Act because of any such impairment.

    RELEVANT LEGISLATION

11. Section 94 of the Act sets out the qualification criteria for DSP. It provides that a person is qualified for the DSP if:

    a)They have a physical, intellectual or psychiatric impairment (s 94(1)(a)), and

    b)That impairment (or impairments in combination) attracts an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)), and

    c)The person has a continuing inability to work (s 94(1)(c)).

12. The Impairment Tables contain rules (the Rules) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.

13. An impairment rating can only be assigned if the condition causing that impairment is permanent (that is, fully diagnosed, treated and stabilised and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) – 6(4) of the Rules).

14. The following must be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated:

    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 two years (s 6(5) of the Rules).

15. 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 two years, or

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

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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 (ss 6(6) and 6(7) of the Rules).

16. The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If the impairment has no functional impact, then no rating can be assigned (s 6(8) of the Rules).

17. The term “continuing inability to work” is defined in s 94(2) of the Act as:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in all cases – the impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and

    (a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases – either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

18. A POS means a program set up to assist a DSP applicant with preparation for job seeking, as well as finding and maintaining employment.  To be eligible for DSP an applicant must have:

    ·actively participated in a POS for at least 18 months in the preceding 3 years; or

    ·completed a POS; or

    ·been with a POS which had to be terminated because the applicant’s medical conditions alone meant that continuing would not improve the applicant’s capacity to work; or

    ·been undertaking a POS at the time of the DSP claim but continuing it would not improve the applicant’s chances of obtaining and maintaining employment.

    EVIDENCE

19. The evidence before the Tribunal comprised:

    ·The “T Documents” (T1-49, pp 1-351) (Exhibit R1)

    ·Secretary’s Statement of Issues, Facts and Contentions, dated19 February 2016 (Exhibit R2)

    ·Photograph of Mr Neasham (Exhibit R3)

    ·“Wedding DJ Packages” advertisement (Exhibit R4)

    ·Applicant’s Response to the Secretary’s Statement of Issues, Facts and Contentions, dated 17 March 2016 (Exhibit A1)

    ·Mr Neasham email dated 23 November 2015, 6 pages (Exhibit A2)

    ·Additional Information to Exhibit A1, under cover of email dated 13 April 2016 (Exhibit A3)

    ·Mr Neasham email dated 18 March 2016 including Annexes A – P (Exhibit A4)

    CONSIDERATION

    General

20. The Tribunal notes that the previous assessments of Mr Neasham’s impairment rating in relation to the present claim have produced different results:

    ·The JCA report on 30 April 2015 recommended a combined impairment rating of 30 points – 10 points for spinal disorder under Table 4, 10 points for tinnitus under Table 11, and 10 points for fibromyalgia under Table 1 (T37/250).

    ·The ARO on 2 June 2015 determined an impairment rating of 30 points – 10 points for fibromyalgia under Table 1, 10 points for inflammatory arthritis under Table 4, and 10 points for tinnitus under Table 11 (T40/257). 

    ·AAT1 on 25 September 2015 assigned an impairment rating of 20 points – 10 points for lumbar spine arthritis under Table 4, 5 points for lower limb impairment (arthritis right ankle, contribution from fibromyalgia, back condition and vertigo) under Table 3, and 5 points for vertigo and tinnitus under Table 11 (T2/9-14).

    ·The respondent contends in the present proceedings that Mr Neasham has a total impairment rating of 20 points – 10 points for inflammatory arthritis under Table 4 and 10 points for fibromyalgia under Table 1 (Exhibit R2 pp 7-11).  In relation to impairment of Mr Neasham’s hearing and functions of the ear, the respondent stated:

    If, contrary to these submissions, the Tribunal finds that the Applicant’s condition does result in an impairment of functioning, it is submitted that a maximum impairment rating of 5 points under Table 11 of the Impairment Tables is appropriate, as determined by the first reviewer (Exhibit R2 p9).

21. Mr Neasham submitted that his impairments should attract a total impairment rating of 60 points – 20 points under Table 1, 20 points under Table 4 and 20 points under Table 11.

22. The Tribunal now considers Mr Neasham’s medical conditions and their functional impacts.

    Fibromyalgia

23. The respondent accepts that Mr Neasham’s fibromyalgia was fully diagnosed, treated and stabilised during the relevant period (Exhibit R2 paragraph 5.28).

24. The respondent disagrees with the AAT1 selection of Impairment Table for the assessment of this condition, submitting that Table 1 rather than Table 3 is appropriate (Exhibit R2 paragraph 5.30)  The Tribunal agrees, and the relevant assessment in these proceedings is made under Table 1.

25. Having carefully considered the evidence in its entirety, the Tribunal agrees with the respondent that Mr Neasham’s fibromyalgia caused a moderate impairment to the functions requiring physical exertion and stamina. This assessment is supported by:

    ·Dr Torvaldsen’s medical report dated 12 March 2015 which states: “walking restricted to 1 hour” and “unable to work more than about 3-4 hours without a break, more than this causes a major flare up” (T34/208).

    ·In describing the functional impact of Mr Neasham’s fibromyalgia, the JCA report dated 30 April 2015 states:

    Client experiences frequent symptoms when performing day to day activities around the home and community and due to these symptoms is unable to walk far outside the home and need to drive to community facilities.  Has difficulty performing day to day household activities and has a carer who completed ADL (T37/250).

    ·The JCA report also reported that Mr Neasham “continues to work as a DJ” and that his medical condition: “does not prevent them [sic] from using public transport without substantial assistance” (T37/249).

    ·In evidence to the AAT1, Mr Neasham said that he lived by himself and undertook all his own personal care, tried to go for a walk of about 200 metres on most days, and occasionally worked as a disc jockey.  The AAT1 decision also detailed the following information provided by Mr Neasham:

    Was experiencing excessive sleepiness and muscle twitching and he saw neurologist Dr Goodheart, who excluded multiple sclerosis or any other neurological cause for his symptoms.

    He cannot do any excessive exercise, e.g. on a stationary bicycle, as he experiences burning pain in his legs for hours afterwards.  He does use the bike, though, on those days when he has no pre-existing pain in his legs (T2/12).       

26. Having regard to all the relevant evidence, the Tribunal does not consider that Mr Neasham’s impairment of function related to his fibromyalgia satisfies the descriptors for a severe functional impact under Table 1 – Functions requiring Physical Exertion and Stamina.

27. The Tribunal finds that Mr Neasham’s fibromyalgia attracts an impairment rating of 10 points under Table 1.

    Spinal Disorder

28. The respondent accepts that Mr Neasham’s inflammatory arthritis consistent with ankylosing spondylitis was fully diagnosed, treated and stabilised during the relevant period (Exhibit R2 paragraph 5.20).  The respondent agrees with the finding in the JCA report dated 30 April 2015, that Mr Neasham’ spinal disorder had a moderate functional impact under Table 4 – Spinal Function and attracts 10 Impairment points.  The JCA report stated:

    There is moderate functional impact on activities involving spinal function.  Client is unable to sustain overhead activities, the client is unable to bend forward to pick up a light object placed a (sic) knee height.  Mr Neasham’s level of function does not meet descriptors for severe impairment (T37/250).

29. The AAT1 decision contains a comprehensive overview of Mr Neasham’s activities and the functional impact of his spinal condition (T2/21-28).

30. In his report dated 12 March 2015, Dr Torvaldsen stated that Mr Neasham was:

    Not able to do physical work esp of longer duration, i.e. can pick up something once but not repeatedly.  Unable to prolonged [sic] sit/stand (more than 20 minutes).  Unable to repeatedly bend over (T34/211).

31. Relevantly, in assessing Mr Neasham’s spinal condition, the AAT1 decision includes the following paragraph:

    Within the letters from Dr Ang, there was only one specific reference to the functional impact of Mr Neasham’s back condition, where he stated: “I have written a further letter supporting his disability pension given he cannot even touch his toes and has limited range of movement of the lumbar spine”.  Although this letter was dated 11 August 2015, well after the date of claim, it clearly does not indicate an inability to bend forward and pick up a light object from a table or desk.  At the hearing Mr Neasham frequently moved papers around the desk in front of him and he was able to regularly turn to the left and right to talk to Mr Cohen and Ms Murdoch.  It is assumed that his work as a disc jockey would also involve at least a similar level of activity (T2/11).

32. Mr Neasham told this Tribunal that he could remain seated for around 20 minutes with some recent improvement because he had been doing less work.  He had previously told the AAT1 that he could sit for about 20 minutes and stand up for up to 20 minutes without needing to change posture, and that he was able to drive an automatic car for about 20 minutes but usually needed to take a break at that time (T2/11).

33. Having regard to all the evidence relative to Mr Neasham’s spinal disorder, the Tribunal is reasonably satisfied that there is a moderate functional impact on activities involving spinal function.  The Tribunal is also reasonably satisfied that the evidence does not support a conclusion that Mr Neasham satisfies the descriptors for a severe functional impact under Table 4 – Spinal Function.

34. The Tribunal finds that Mr Neasham’s spinal disorder attracts an impairment rating of 10 points under Table 4.

    Vertigo and Tinnitus

35. In his medical report dated 12 March 2015, Dr Torvaldsen described Mr Neasham’s vertigo as a condition that was well managed and that caused minimal or limited impact on Mr Neasham’s ability to function (T34/212).

36. A report dated 3 May 2013 by Dr V Seet, neurologist and neuro-otologist, includes:

    His vertigo started in August 2010 following exposure to a high pitched sound through a right earphone which immediately caused a dazed feeling, imbalance, right tinnitus and aural fullness………The main provoking factors for the vertigo were turning the head quickly in either direction, walking in a dark room and alcohol intake……… ears showed reduced hearing on the left to the shoulder, normal hearing on the right (T24/154-155).

37. The JCA report records that Mr Neasham reported:

    Impaired balance resulting in falls, most recently yesterday… use of a walking stick outside of the home and work, uses walls as support at home.”  In concluding that there was moderate impact on activities involving hearing functions or other functions of the ear, the JCA report included the statement:  “Mr Neasham has been working and is able to hear conversation at average volume in a room with background noise (T37/248, 250).

38. The Tribunal is reasonably satisfied that there is insufficient corroborating evidence to support the JCA recommendation of an impairment rating of 10 points under Table 11 – Hearing and other Functions of the Ear.  Relevantly, the Tribunal has regard to the Introduction to Table 11 which states:

    Self-report of symptoms is not sufficient.

    There must be corroborating evidence of the person’s impairment.

39. Having regard to all the evidence related to Mr Neasham’s vertigo/tinnitus condition, the Tribunal assigns an impairment rating of 5 points under Table 11.  This is because the condition satisfies the criteria for mild functional impact:

    The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).

    Other conditions

40. In his report dated 12 March 2015, Dr Torvaldsen listed Mr Neasham’s sleep apnoea as a condition that is generally well managed and causing minimal or limited impact on ability to function (T34/212).  Mr Neasham told the AAT1 that he was not having any treatment for this condition, and that he could not use a CPAP (Continuous Positive Airway Pressure) machine because it creates an excessive force through his damaged ear (T2/13).

41. The Tribunal agrees with the respondent’s contention that Mr Neasham’s sleep apnoea is fully diagnosed but that there is insufficient evidence to conclude that it is fully treated or stabilised. Consequently, the condition cannot attract an impairment rating under the Impairment Tables.

42. The respondent accepts that Mr Neasham suffers from an arthritis condition in his ankle that was fully diagnosed, treated and stabilised during the relevant period (Exhibit R2 para 5.31). This condition was not included in Mr Neasham’s DSP claim (T35), and no assessment is included in the JCA report (T37).   

43. Dr Ang’s letter dated 25 November 2014 noted that Mr Neasham had experienced pain in his joint for a number of years (T41/267), and in his letter dated 27 January 2015 advised the presence of synovitis in the ankle and recommended a strict dietary regime and exercise to lose weight (T41/268).

44. For the Tribunal to find under Table 3 – Lower Limb Function that Mr Neasham’s ankle condition causes a mild functional impact, it would need to be satisfied that at least one of the following applies:

    ·The person is unable to stand for more than 10 minutes;

    ·The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

1. The AAT1 recorded that Mr Neasham gave evidence that: “When it flares up he has problems standing for any more than 10 minutes” (T2/12).  In considering any impairment rating, the Tribunal notes the requirement that “When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate” (the Rules 11(4)).  The Tribunal did not see corroborating evidence that Mr Neasham experienced impairment other than when his ankle flared up, and so is not satisfied that the condition meets the first requirement in the paragraph above.

2. In its consideration of Mr Neasham’s vertigo and tinnitus, the AAT1 recorded that: “He experiences a feeling of the room spinning, which causes a tendency to fall, and for which he uses a walking stick at times… He does not usually use the walking stick at home unless the symptoms are particularly severe” (T2/12-13).  This Tribunal had no evidence before it that would satisfy the walking stick criteria as it applies to the ankle condition, and described above as a criteria related to lower limb function.

3. The Tribunal assigns Mr Neasham’s ankle condition a rating of 0 points under Table 3.

   Continuing inability to work

4. In the considerations above, the Tribunal finds that Mr Neasham has a combined impairment rating under the Impairment Tables of 25 points, thus satisfying s 94(1)(b) of the Act. The Tribunal did not find that Mr Neasham has a severe impairment.

5. The provisions of the Act in relation to the “continuing inability to work” requirement are clear and mandatory. In every case where impairment is 20 points or more, the applicant must persuade the Tribunal that the “continuing inability to work” requirements are satisfied, unless at least 20 points are assigned under a single table. Mr Neasham’s conditions have not attracted 20 points under a single table. It follows that in order to qualify for DSP in the relevant period, Mr Neasham must satisfy this requirement including participation in a POS.

6. Mr Neasham conceded that he had not completed a POS at the relevant time.  Before the Tribunal and in his written submission, Mr Neasham submitted that a POS was not required:

   On May 3rd 2015, the claim for DSP was rejected based on the applicant has not completed a POS, however, the applicant contends that the JCA was not completed with the correct information and the applicant’s impairment rating is higher than assigned.  Furthermore, the applicant claims that the POS was not  required and if was required should have been exited within the relevant period (Exhibit A1 para 4.5).

7. The AAT1 decision includes a comprehensive consideration of the requirement for a POS as it relates to Mr Neasham’s application for DSP (T2/15-18).  The AAT1 concluded:

   Based on the documented evidence, thetTribunal finds that Mr Neasham had been actively participating in a program of support from 8 January 2015 until his date of claim, however no outcome had been achieved in that time.  There is no evidence provided that the program of support had been terminated because Mr Neasham was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program.  As a result, the tribunal finds that Mr Neasham had not actively participated in a program of support and did not satisfy subsection 7(1) of the Participation Determination at the date of claim (T2 para 55).

8. Mr Neasham’s Referral Placement List, attached to Exhibit R2, shows that he actively participated in a POS for a period of only nine weeks and six days in the 36 months before 18 March 2015, the date of his DSP application (Exhibit R2 Annex C).

9. The respondent submitted that although subsections 7(3)-(5 ) of the POS Determination contain a number of exceptions to the requirement that a person participate in a POS for at least 18 months, there was no evidence that these exceptions apply to Mr Neasham.  Having reviewed the evidence, the Tribunal agrees.

10. The respondent reminded the Tribunal of its established position on the POS requirement, stating:

    The Tribunal has strictly enforced the program of support requirements to date, finding that no power exists to dispense with the operation of paragraph 94(2)(aa) of the Act, and that it is irrelevant whether an applicant was aware of the requirement or not (Augustynski and Secretary, FaHCSIA [2013] AATA 507; VMXC and Secretary, FaHCSIA [2013] AATA 663; Kok Yong Tey and DSS [2013] AATA 753; Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158) (Exhibit R2 para 5.43).

11. The Tribunal notes that in the interval between the expiration of the relevant period and the present proceedings, Mr Neasham has satisfied the requirements for, and is in receipt of DSP.

12. As a consequence of receiving DSP, Mr Neasham submitted:

    In October 2015, the applicant reapplied for the DSP after the submittal of a Centrelink Information About a Participation in a Program of Support by the applicant’s DES provider. (T43)  This document indicates that the applicant had completed 13 weeks of the Post Placement Support Program (T43, p 281)

    As the applicant was a successful in obtaining the DSP from the October 2015 documents, it is argued that during the relevant period the applicant had in fact actively participated in a program of support.  This is supported by the January 2016 JCA report (Annex Q) as the assessor notes that “Dr Ang (8/5/15) indicated indefinite inability to work due to significant lesions of spondylitis and fibromyalgia and Discussions with DES provider, Ms Scott (12/1/16) indicated he is unlikley (sic) to benefit from further POS intervention secondary to deterioration in physical and psychological state.” (Annex Q, p14)

    As there has been no further progress towards the POS since 8th May 2015 and the applicant satisfies the criteria for actively completing a POS in October 2015, the applicant contends that they did satisfy the criteria of Actively Participated in a POS (If it was required that the applicant complete a POS) during the relevant period and as such the applicant has demonstrated a CITW (Exhibit A3, letter dated 7 April 2016).  

13. The Tribunal considered Mr Neasham’s submission above very carefully. The Tribunal accepts that the JCA report dated 29 January 2016, and completed in relation to his “DSP New Claim”, contributed positively to the outcome of that claim.  The Tribunal notes that this JCA report, consistent with the JCA report dated 30 April 2015, recommends a combined impairment rating of 30 points without concluding that Mr Neasham had a severe impairment. 

14. It does not follow that the JCA conclusion of 29 January 2016, that “Active participation in a program of support criteria are met”, can be applied retrospectively to the situation prevailing at the relevant time in these proceedings.  This conclusion was supported by the statement:  “Discussions with DES provider, Ms Scott (12/1/16) indicated he is unlikely to benefit from further POS intervention secondary to deterioration in physical and psychological state.” However, importantly the opinion of the same provider at the relevant time is detailed in the AAT1 decision of 25 September 2015 as follows:

    A Centrelink employee, in the document dated 1 June 2015, recorded:  “Spoke with Vida from Atwork (sic) (DES provider).  Vida is not going to exit CUS from POS as she feels he is gaining some benefit from it.  We spoke of various barriers to employment but at this stage, CUS has not met POS (T2 para 54).

15. There is no corroborating evidence before the Tribunal that the deterioration in Mr Neasham’s physical and psychological state, as mentioned in the 29 January 2016 JCA report, represented Mr Neasham’s condition at the relevant period in the present matter before this Tribunal.

16. On the evidence before it, the Tribunal is reasonably satisfied that at the relevant time Mr Neasham had not actively participated in a POS for at least 18 months, and therefore does not satisfy s 94(1)(c) of the Act.

    CONCLUSION

17. Having regard to all the evidence before it, the Tribunal finds that:

    ·Mr Neasham has a combined impairment rating of 25 points under the Impairment Tables.

    ·Mr Neasham does not have a severe impairment under a single Impairment Table.

    ·Mr Neasham has not completed a POS, and therefore at the relevant time did not have a continuing inability to work as required by section 94(1)(c) of the Act.

18. Although the Tribunal is satisfied that at the relevant time, Mr Neasham had permanent medical conditions which attracted a combined impairment rating of 25 points, he does not qualify for DSP because he did not satisfy the requirements of continuing inability to work.

    DECISION

19. For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant

Dated 17 June 2016

Date(s) of hearing	20 April 2016
Applicant	In person
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers