O'Cass and Secretary, Department of Social Services (Social services second review)
[2016] AATA 876
•4 November 2016
O'Cass and Secretary, Department of Social Services (Social services second review) [2016] AATA 876 (4 November 2016)
Division
GENERAL DIVISION
File Number(s)
2016/2962
Re
Danny O'Cass
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Mr S. Webb, Member
Date 4 November 2016 Place Canberra The decision under review is set aside and in place thereof the Tribunal decides that Mr O’Cass qualified for DSP on the date of his claim.
.....................[sgd]...................................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension claim – impairments – rating of permanent impairments – rating of functional impairment of lumbar spine and functional impairment of cervical spine arising from separate conditions – insufficient evidence to establish severe impairment – active participation in a program of support – program of support taken to be terminated when indefinite suspension continues without action after a reasonable period – meaning of ‘participating in a program of support’ – participation may include period of temporary medical incapacity exemption - continuing inability to work – decision set aside
LEGISLATION
Social Security Act 1991, s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014Guide to Social Security Law
REASONS FOR DECISION
Mr S. Webb, Member
4 November 2016
Danny O’Cass claimed disability support pension (DSP). A delegate of the Secretary decided to reject his claim. Mr O’Cass has pressed his rights of review in respect of this decision, thus far without success. He has applied for further review by the Tribunal.
Issues
The issue to be decided is whether the DSP claim Mr O’Cass lodged on 29 October 2015 (the date of claim) can be granted. This will be so if his claim satisfies the qualification requirements set out in s 94 of the Social Security Act 1991 (the Act). Essentially, it must be established that –
(a)Mr O’Cass has a physical, intellectual or psychiatric impairment;
(b)the impairment or impairments attract a rating of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination); and
(c)Mr O’Cass has a continuing inability to work.
With regard to a continuing inability to work, if the evidence establishes that Mr O’Cass does not have a ‘severe impairment’ for the purposes of s 94(3B), it must be established that he ‘actively participated in a program of support’ as defined by s 94(5), satisfying the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Participation Determination).
In order for DSP to be payable under the claim, it must be established that Mr O’Cass met the qualification requirements on the day he made the claim, or within 13 weeks thereafter (the qualification period). If the evidence does not establish that he satisfies the qualification requirements within the qualification period, his claim must fail.
There are medical and other materials before the Tribunal from before, during and after the qualification period. I will have regard to these materials insofar as they relate to the tests that apply during the qualification period in respect of the claim for DSP Mr O’Cass made.
Does Mr O’Cass have a physical, intellectual or psychiatric impairment?
The Secretary accepts that Mr O’Cass has physical impairments.
The materials before the Tribunal establish that, as of the date of claim, Mr O’Cass suffered from the following medical conditions and related impairments –
(a)chronic obstructive pulmonary disease (COPD), emphysema and asthma, resulting in impaired lung function, reduced capacity to perform activities requiring physical exertion and impaired cognitive function;
(b)lumbar disc disease, with pathological changes at the L3/L4 and L4/L5 levels and bilateral radiculopathy, resulting in reduced range of lumbar spine motion and reduced function in the lower limbs;
(c)cervical spine disease, with pathological changes at the C2/C3, C5/C6, C6/C7 levels and bilateral radiculopathy (worse on the left), resulting in reduced range of cervical spine motion and reduced functions of the upper limbs;
(d)cardiovascular disease, including myocardial infarction in 2008, cardiomegaly, ischaemic heart disease, hypertension and hyperlipidaemia, resulting in reduced capacity to perform activities requiring physical exertion;
(e)gastro-oesophageal reflux disease (GORD), resulting in mild digestive impairment;
(f)anxiety and depression, resulting in impaired cognitive function.
These medical conditions and impairments are established by medical reports and certificates of Dr Deighton – a general practitioner, Dr Finnerty – a consultant in general and respiratory medicine, Dr Chenammchetty, a general practitioner, Dr Amalakumar – a general practitioner, and Dr Bazina – a neurosurgeon.
Does the impairment or impairments attract a rating of 20 or more points under the Impairment Tables?
The assignment of ratings under the Impairment Tables is subject to rules set out in Part 2 of the Impairment Determination. This Determination is a legislative instrument and the rules have statutory force under s 26(3) of the Act.
For an impairment to be assigned a rating, it must be established with reference to the qualification period that the impairment results from a ‘permanent’ medical condition and it is likely to persist for more than 2 years.
A ‘permanent’ medical condition is one that has been fully diagnosed, fully treated and fully stabilised.
Sections 10(5) and (6) of the Impairment Determination provide that –
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
Impairment ratings
Mr O’Cass suffers from a number of medical conditions and functional impairments. In order to ascertain which, if any, of Mr O’Cass’s functional impairments can be assigned a rating under the Impairment Tables, it is first necessary to determine if he has ‘permanent conditions’ resulting in impairment that is likely to persist for at least 2 years.
The Secretary accepts that the heart, lung, vascular, gastric and spinal conditions Mr O’Cass suffers are fully diagnosed, treated and stabilised and, therefore, are ‘permanent’, but his depression and anxiety have not been fully treated and stabilised and, for this reason, these conditions cannot be considered to be ‘permanent’.
The present medical evidence establishes that these assessments are correct.
Lungs
Mr O’Cass suffers from COPD, emphysema and asthma. These medical conditions are well documented and fully diagnosed, fully treated and fully stabilised within the qualification period.
On the 21 April 2016 report of Dr Finnerty, Mr O’Cass suffers from “severe COPD/emphysema”,[1] which “has been worse over recent months”.[2] On this evidence, it appears that Mr O’Cass’s COPD worsened after the qualification period. It is the state of this condition during the qualification period that must be assessed.
[1] T29 folio 156.
[2] Ibid, folio 155.
On or about 3 June 2014, before the qualification period, Dr Deighton reported the impact of Mr O’Cass’s lung disease on his ability to function in the following way –
“Poor stamina/ reduced ability to concentrate/ reduced mobility/ recurrent chest infections – debilitating”.[3]
[3] T30 folio 159.
The Team Care Arrangement Summary Care plan Dr Deighton authored on 8 August 2014 refers to adequate support and treatment for this condition.[4]
[4] T16.
At that time, the resulting functional impairment was in two areas: reduced ability to perform activities requiring physical exertion and stamina; and reduced cognition. On the evidence of Dr Deighton, the impact of this condition on Mr O’Cass’s ability to function was likely to persist for at least two years and deteriorate.
The present materials addressing the qualification period are largely consistent with the oral account Mr O’Cass gave in respect of the functional impact of this condition and resulting impairment. It appears that he is able to walk to a local shop, some 200 metres from his home. On a good day he can do this without having to stop along the way to recover his breath. On a bad day he will not attempt to walk to the shop. On a good day he can carry some light groceries, but this will cause him to stop and sit down to recover his breath a number of times on his way home. Mr O’Cass told me he relies upon a ‘mate’ to drive him and assist him with shopping at a shopping centre in Tamworth. He is able to catch a bus to Tamworth in order to undertake household shopping, but he cannot sit for the 30 minute duration of the bus trip and has to stand up from time to time, so it is difficult. His evidence is that he requires assistance to actually do the shopping at the shopping centre in Tamworth and to return home with it. For these things, he relies upon his mate. He explained that if his mate is not available on a particular day, Mr O’Cass would not attempt to go shopping by himself.
Mr O’Cass lives alone in a single storey. He told me that there are three steps from the street up to the front door and he has difficulty negotiating these if he is carrying anything. His evidence is that he is unable to do much around the house. He does no gardening.
The Secretary maintains that the functional impact of impairment to his ability to perform activities requiring physical exertion and stamina, under Table 1, is moderate, such that it should attract a 10 point rating. I think that this is correct.
In consideration of the graded rating criteria at the 5 point – mild functional impact, 10 point – moderate functional impact and 20 point – severe functional impact levels, with reference to the qualification period, I am satisfied, that Mr O’Cass’s permanent lung condition has a moderate functional impact on activities requiring physical exertion and stamina, attracting a 10 point rating under Table 1.
I am satisfied that Mr O’Cass frequently experiences symptoms including shortness of breath and fatigue when performing light physical activities. He is unable to walk far outside his home and relies on a mate to drive him to the shopping centre in Tamworth. He has difficulty performing day to day household activities, but he is able to undertake some household chores, such as using the washing machine and drier, by himself. He is able to use public transport without assistance and he can walk from his mate’s car into the shopping centre in Tamworth, in which he can walk around without assistance (although he requires assistance with shopping and carrying).
As regards the cognitive impairment that is attributable to this lung condition, Dr Deighton reported that this is in the form of “reduced ability to concentrate”.[5] Even though there is very scant information about this impairment, and I am unable to assign a rating under Table 7 for this reason, the reduced ability to concentrate reported by Dr Deighton was reinforced by Mr O’Cass in his oral evidence. Without further probative evidence addressing the nature and extent of Mr O’Cass’s reduced ability to concentrate, however, it is not safe to assign a rating greater than 0 points in respect of this impairment. Mr O’Cass was able to concentrate through the hearing, which lasted for a number of hours, without complaint of cognitive difficulty.
[5] T30 folio 159.
Heart
I am satisfied that Mr O’Cass’s heart and vascular conditions of myocardial infarction, cardiomegaly, ischaemic heart disease, hypertension and hyperlipidaemia have been fully diagnosed, fully treated and fully stabilised. The preventative measures identified in the 8 August 2014 Care Plan do not compel a different conclusion.
The functional impact of these conditions is mild. The conditions are well managed with medications and they have a minimal impact on Mr O’Cass’s ability to function. Certainly, these permanent conditions do not have any greater functional impact under Table 1 than Mr O’Cass’s lung conditions.
Two conditions giving rise to the same impairment should not be rated twice. I would not give Mr O’Cass’s heart and circulatory conditions a rating under Table 1 for this reason.
Oesophagus
The available evidence is that Mr O’Cass’s GORD condition was fully diagnosed, fully treated and fully stabilised and therefore ‘permanent’ during the qualification period.
Furthermore, it appears (and Mr O’Cass confirmed in his evidence) that this condition is well managed by medication and it has minimal impact on his ability to function.
That being so, a rating of 0 points is appropriate under Table 10.
Lumbar and cervical spine
The available materials establish that Mr O’Cass has clearly defined pathological changes in his lumbar spine following a fall injury in 2005. These changes involve canal stenosis and bilateral radiculopathy, which has not been alleviated by recommended treatment. On or about 3 June 2014, Dr Deighton reported that the condition is permanent and likely to deteriorate over time. He described the then present symptoms and functional impact of the condition in the following terms –“chronic pain and severely impaired mobility”[6] and “chronic pain debilitates cognitive function, mechanical causes intermittent sedation”.[7]
[6] T30 folio 160.
[7] Ibid, folio 161.
Even though at some point in the future surgery may be recommended for Mr O’Cass’s lumbar spine condition, when he is completely immobilised by it, the present evidence does not suggest that this is a reasonable medical treatment option for this condition within two years of the qualification period or presently.
I am satisfied that Mr O’Cass’s lumbar spine condition is fully diagnosed, fully treated and fully stabilised. The goals of the 8 August 2014 Care Plan in respect of “BACK COMPLAINTS (ALL)” are “Pain relief and mobility improvement”.[8] It is not established that further improvement was expected within two years of the qualification period, however.
[8] T16 folio 98.
The 18 November 2014 report by Dr Pascoe establishes that Mr O’Cass had clearly defined pathological changes in his cervical spine, including “severe degenerative disc disease” at the C6/C7 level with bilateral radiculopathy.[9] This condition was not reported by Dr Deighton as of June 2014, but it was reported in medical certificates issued by Dr Chenammchetty between 7 January 2015 and 2 February 2016.[10]
[9] T12 folio 87.
[10] T15, T17, T18, T20, T25 and T26.
There is very scant medical evidence addressing the functional impact of Mr O’Cass’s cervical spine condition during the qualification period. It appears that treatment is in the form of analgesic medications. There is no evidence that further treatment is planned or that any other reasonable or rehabilitative treatment has been considered for this condition – Mr O’Cass’s evidence is that no other treatment has been discussed. Nevertheless, the Secretary accepts that this condition is fully diagnosed, fully treated and fully stabilised, and ‘permanent’ for the purposes of the Impairment Determination.
As it appears that Mr O’Cass’s cervical condition is in the form of degenerative osteoarthritic disease, I accept that no other treatment may be reasonable presently or in respect of the qualification period. Insofar as a degenerative condition of this kind can be treated and stabilised, and Dr Chenammchetty has certified that the prognosis of the condition is “uncertain”,[11] I think that it is permissible to accept the Secretary’s concession on this point. I will proceed on the basis that Mr O’Cass’s cervical condition is ‘permanent’ and it is more likely than not, on the present evidence, that the reduced range of motion in Mr O’Cass’s cervical spine and the radiculopathy affecting his shoulders and upper limbs will persist for more than 2 years from the application date.
[11] See T20 folio 103, for example.
The next step is to assess the functional impact of impairment to Mr O’Cass’s spinal conditions and to assign ratings under the relevant Tables.
The evidence is sufficient to establish that Mr O’Cass has “chronic pain and severely impaired mobility”.[12]
[12] T30 folio 160.
Mr O’Cass gave evidence that he can bend to knee level but finds it difficult to tie shoelaces – to do this he raises his foot on a chair. He says that he cannot walk far and on 3 or 4 days each week he is unable to walk to the local store. He says that the pain is getting worse in his hips and groin, and this prevents him from sleeping. He stated that he has difficulty standing for more than 10 minutes and he can only sit for short periods of 15 to 20 minutes. He explained that the bus trip from his home to the shopping centre in Tamworth takes about 30 minutes and, during this trip, his back pain is such that he cannot remain seated for the entire journey. He cannot lift or carry any weight and he says he has difficulty with many household chores, such as sweeping, vacuuming and cleaning. He says it takes him half an hour to make his bed and he is unable to lift the mattress. His neck condition causes bilateral pain in his shoulders, worse on the left, and this prevents him from doing anything that requires him to lift his arms above shoulder height, such as hanging washing on a clothes line, or reaching objects from shelves above shoulder height in the kitchen. When closely examined on this point, he explained that he is able to wash his hair by raising his hands from the elbow with his upper arms raised to lower than shoulder height. He explained that he is able to turn his head and neck to the left if he does so very slowly; it is less painful on the right. He says that he can use the washing machine and drier, but he cannot peg clothes on the washing line because he is unable to lift his arms above shoulder height. He maintains that he cannot sweep or push a vacuum cleaner to clean the floors as it hurts his shoulders and back.
The Secretary asserts that a single rating of 10 points under Table 4 is appropriate. In the Secretary’s submission, impairments resulting from the lumbar spine condition and the cervical spine condition are to be considered as a single impairment for the purposes of Table 4.
Thus, the first consideration is whether only a single rating can be assigned in respect of the lumbar and cervical spine impairments. The impairment resulting from Mr O’Cass’s lumbar spine condition is in the form of reduced range of motion in the lumbar spine and severely reduced mobility. The impairment resulting from his cervical spine condition is in respect of loss of range of motion in the cervical spine and loss of upper limb mobility. As can be seen, the impairments, while affecting spinal function, are separate and different.
The word ‘impairment’ is defined broadly in s 3 of the Impairment Determination –
impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
An impairment resulting from more than one condition must not be assessed twice.
There is an open question whether ss 10(5) and (6) of the Impairment Determination can properly be construed to authorise the assignment of a single rating for separate and different impairments that result from two conditions. The policy underlying s 10(5) is to ensure that the same impairment is not assessed twice. The phrase ‘a common or combined impairment’ is not defined in s 3. It is conceivable, but far from clear, that a lumbar spine impairment and a cervical spine impairment may be within the meaning of a ‘common or combined impairment’ for the purposes of s 10(5) and Table 4. This may be so if all spinal impairments are to be taken together and assigned a single rating under Table 4, as the Secretary contends.
Under this construction, however, a person with a moderate cervical spine impairment, where the person is unable to sustain overhead activities for example, would be assigned a rating of 10 points, and a person with a moderate lumbar spine impairment, where the person is unable to bend forward to pick up a light object placed at knee height for example, would also be assigned a rating of 10 points, but a person with both impairments (a moderate cervical spine impairment and a moderate lumbar spine impairment) would also be assigned a rating of 10 points, even though the functional impact of two impairments may be greater than the functional impact of a single impairment. The Secretary’s construction does not permit differential rating of the functional impact of lumbar spine impairment and cervical spine impairment in such a case when assessing work-related impairment for DSP purposes. The assessment of work-related impairment is expressly related to the functional capacity of the person - what the person can or could do.
To my mind, a person with a moderate cervical spine impairment and a moderate lumbar spine impairment may well have lesser functional capacity for work than a person with only one of those impairments.
I note, furthermore, that the example given in respect of ss 10(5) and (6) does not compel a different construction. The ‘combined or common effect’ is expressed in terms of ‘overall impact on function’ requiring physical exertion or stamina. Quite clearly, the example applies to two conditions causing impairment of the same function, namely functions requiring physical exertion or stamina, such that the functional impact of a ‘combined or common’ impairment should not be assessed twice.
Nevertheless, even though there are serious doubts about the Secretary’s construction, I do not need to resolve this issue for present purposes.
As will appear, even if the Secretary’s construction is adopted, I am satisfied that Mr O’Cass has impairments of more than 20 points under the Impairment Tables, satisfying s 94(1)(b). This is so whether or not his cervical spine and lumbar spine impairments are assessed separately or as one.
The next consideration is the correct rating of spinal impairment under Table 4.
Under s 8(1) and the Introduction to Table 4, there must be corroborating evidence of the person’s symptoms and impairment for a rating to be assigned under the Tables.
The evidence Mr O’Cass gave in respect of the functional impact of his cervical and lumbar spine impairment is supported by the medical evidence of Dr Deighton, Dr Pascoe and Dr Bazina. The specific spinal pathology and the presence of chronic pain and bilateral radiculopathy at the L3/L4 and C6/C7 levels these materials establish, is sufficient to corroborate the restriction of motion, mobility and function Mr O’Cass described. This notwithstanding, the medical evidence does not provide specific details of the functional impacts of Mr O’Cass’s cervical and lumbar spine impairments with any precision, in respect of what he can and cannot do, and the evidence given by Mr O’Cass, alone, is not sufficient.
Table 4 sets out a graded scale of functional impacts that are described by capabilities or limitations of various kinds, as follows:
Points Descriptors 0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(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).
10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
On Mr O’Cass’s evidence, his cervical spine impairment would be consistent with a 20 point rating under Table 4 – he is unable to perform overhead activities. This may be consistent with and supported by Dr Pascoe’s report of bilateral radiculopathy at the C6/C7 level and Dr Deighton’s report of severely restricted mobility. But this restriction on overhead activities is not established by medical or other evidence during the qualification period. For this reason, even though it is possible, even likely, that Mr O’Cass is presently restricted in the manner for which he contends, it is not established that his cervical impairment caused restrictions of the present degree during the qualification period. It follows from this that I am unable to assign a 20 point rating for this impairment.
The present materials establish that Mr O’Cass had difficulty moving his head in all directions during the qualification period and, for this reason, the impairment attracts a rating of 10 points under Table 4.
At this point it is relevant to observe that I provided Mr O’Cass with an opportunity to provide further materials prior to the hearing, but he declined to do so. It follows that I must do the best I can with the present materials.
With regard to his lumbar spine impairment, a rating of 10 points would be appropriate – the evidence establishes that, during the qualification period, Mr O’Cass was not able to sit for 30 minutes in a car, but he was able to remain seated for 15 to 20 minutes. His own evidence is that he is able to bend to knee height, but he cannot lift heavier items and he can rise to standing from a kitchen chair, but he has difficulty rising to standing from a lounge chair.
Under s 11(1)(c) of the Impairment Determination, ‘if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied’.
It follows that Mr O’Cass’s lumbar spine impairment would attract a rating of 10 points under Table 4.
Having regard to s 6(9) of the Impairment Determination, insofar as radicular pain impairs Mr O’Cass’s upper and lower limb functions, it is appropriate to consider the terms of Table 2 and Table 3. The present evidence is not sufficient to assess a rating greater than 0 points under Table 2 in respect of the functional impact on upper limb function.
The restriction on mobility reported by Dr Bazina, Dr Deighton and Dr Chenammchetty is largely consistent with Mr O’Cass’s evidence in respect of the functional impact of his lumbar radiculopathy pain. I accept that he has some difficulty walking to his local shop (although this is largely a function of reduced capacity to perform activities requiring physical exertion and stamina) and he cannot stand for more than 10 minutes without pain. Considering the relevant rating levels and related descriptors under Table 3, I am satisfied that the functional impact of this impairment is mild, attracting a rating of 5 points under Table 3.
In sum, therefore, on the Secretary’s construction, Mr O’Cass’s spinal impairment attracts a rating of 10 points under Table 4. But if that construction is not correct I would assign a 10 point rating in respect of his cervical spine impairment and a 10 point rating in respect of his lumbar spine impairment.
Furthermore, his lower limb impairment is consistent with a 5 point rating under Table 3.
Anxiety and depression
There is some evidence that Mr O’Cass has been diagnosed with reactive anxiety and depression. With regard to the diagnosis of reactive anxiety, this is referred to in a Job Capacity Assessment report on 7 July 2014.[13] It is reported that this condition was “Verified by medical evidence”. In all likelihood, the ‘medical evidence’ was a report by Dr Deighton on or about 3 June 2014 to which the Assessor referred. The Assessor reported that treatment for the ‘reactive anxiety’ condition was “Aropax”. The medical records provided by Dr Chenammchetty record a prescription for ‘Aropax’ on 10 June 2015 being for “Depression”.[14]
[13] T7 folio 68.
[14] T21 folio 104.
The Care Plan of 8 August 2014 does not refer to anxiety or depression.
The present materials do not establish that Mr O’Cass’s anxiety and depression conditions were diagnosed by a psychiatrist or a ‘clinical psychologist’ at any time before or during the qualification period, and it is not presently established that these conditions were fully treated or fully stabilised at that time. The evidence Mr O’Cass gave suggests that he may have obtained some benefit from a recent change in medication.
His anxiety and depression conditions cannot presently be considered as ‘permanent’ conditions during the qualification period, and no rating can be assigned for any resulting impairment under the Impairment Tables.
Overall impairment rating
Considering all of the impairments Mr O’Cass suffers as a result of ‘permanent’ conditions, I am satisfied that these impairments attract an overall rating of 25 points – 10 points under Table 1, 5 points under Table 3 and 10 points under Table 4.
If the Secretary’s construction of Table 4 is not correct, then I would assign a rating of 10 points for cervical spine impairment and 10 points for lumbar spine impairment under Table 4.
It follows that Mr O’Cass satisfies the requirements of s 94(1)(b) of the Act.
Severe Impairment
Under s 94(3B) of the Act, a person has a ‘severe impairment’ if the person has an impairment of 20 or more points under a single Table.
With reference to the qualification period, Mr O’Cass does not meet this test on the present evidence.
Does Mr O’Cass have a continuing inability to work?
The next step is to determine whether Mr O’Cass has a continuing inability to work for the purposes of s 94(1)(c) of the Act. This is to be assessed under s 94(2) –
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
…
94(5)
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
The Job Capacity Assessment report dated 24 December 2015 establishes the following assessment of his work capacity at that time –
“Temporary Work Capacity: 0-7 Hours per week
End Date 8/01/2016
Rationale: A medical certificate dated 13.10.15 by Dr Ajay Chenammchetty [sic] reported: unfit for work/study 8.10.15 to 8.1.16
Baseline Work Capacity: 8-14 Hours per week
…
Capacity for work within 2 years with Intervention: 8-14 Hours per week
…”.[15]
[15] T23 folio 141.
Interventions identified by the Job Capacity Assessor were “Job matching (V54)” and “Workplace modifications (V62)”.[16]
[16] Ibid, folio 142.
On this assessment, even with the specified interventions, Mr O’Cass has a continuing inability to work 15 or more hours per week in satisfaction of s 94(2)(a) of the Act.
The weight of the medical evidence is that Mr O’Cass suffers from permanent “severe COPD/emphysema” and from permanent spinal conditions and chronic pain that “severely restrict mobility”. These conditions are expected to deteriorate, without improvement, over time – the evidence of Dr Finnerty is that Mr O’Cass’s COPD has become worse since the qualification period. Furthermore, the report of Dr Deighton establishes that Mr O’Cass suffers from cognitive impairments (which are not sufficiently documented to be rated under Table 7), including reduced ability to concentrate.
The medical certificates of Dr Chenammchetty and Dr Amalakumar establish that Mr O’Cass was not fit for work or study up to 10 July 2016. I note that further medical certificates have been provided to Centrelink, establishing Mr O’Cass’s incapacity up to 11 October 2016,[17] but these are not before the Tribunal.
[17] Exhibit 1, page 1 refers.
On this evidence, I am satisfied that Mr O’Cass suffers from impairments that, alone, prevent him from undertaking training activities within two years or are such that training activities are unlikely to enable him to undertake work without a program of support in that time. It follows that he satisfies s 94(2)(b) of the Act.
The test in s 94(2)(aa) requires a person to have ‘actively participated in a program of support’ as defined in s 94(5) and in compliance with s 94(3C) and the Participation Determination during the ‘relevant period’.
The ‘relevant period’ in Mr O’Cass’s case is 36 months ending on the day before he lodged the claim for DSP – the relevant period ended on 28 October 2015 and commenced on 29 October 2012.
The Participation Determination sets out requirements for participation in a program of support –
7 Requirements for active participation
(1) A person has actively participated in a program of support if the person satisfies the following requirements:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c) subsection (6) is satisfied in relation to the person and the program of support
Requirements for period of participation in program of support
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the entire program during the relevant period.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
Information required to be provided to the Secretary
(6) This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following information in relation to the program of support:
(a) the details of the designated provider of the program;
(b) the dates when the person started to participate in the program and, if applicable, ceased to participate in the program;
(c) the reason for ceasing to participate in the program (if any);
(d) any period during which the person did not participate in the program, including as a result of any exemption, relief or suspension from the program;
(e) the reason for any period during which the person did not participate in the program;
(f) the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g) the terms with which the person had to comply in order to satisfy the requirements of the program and the level of compliance with those terms;
(h) the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i) the frequency of contact that the person had with the designated provider of the program.
It is difficult to ascertain whether or not Mr O’Cass was provided with a ‘program of support’ in which he could participate.
On 3 June 2014, Mr O’Cass claimed DSP. The Centrelink records reveal that on this date his “Referral Placement” is recorded as “Claiming DSP Exemption”.[18] It appears that he was placed with Max Employment Mount Druitt (Max Employment) in the period from 16 September 2014 to 22 December 2014. Mr O’Cass attended this service on 16 September 2014 and 13 October 2014.[19] Details of this placement and the program of support services Max Employment provided to Mr O’Cass are not before the Tribunal. No evidence was called from Max Employment to address this point.
[18] Exhibit 1.
[19] T34 folio 204.
The available Centrelink records reveal that Mr O’Cass was subject to “Temporary Medical Incapacity Exemption” from 23 September 2014 to 23 December 2014. On 22 December 2014, however, the records are that he was placed with Best Employment Limited (Best Employment) in Tamworth, but this is recorded as “SUS” – which I understand means ‘suspended’. Mr O’Cass told me that he telephoned Best Employment about an appointment and provided information about the medical certificate he provided Centrelink. There is no evidence from Best Employment, however, specifying the services provided to Mr O’Cass and the circumstances in which the program of support was suspended, including the terms of the suspension and the status of the program of support thereafter.
The Job Capacity Assessment Report dated 24 December 2015 states that –
“The customer has a current referral to Employment Support Services (ESS) and is on a temporary medical exemption.
Past referrals are to Stream 3 and Vocational Rehabilitation Services.”
The Referral Placement List in Exhibit 1 and the Centrelink records in T34 reveal that Mr O’Cass was under ‘Temporary Medical Incapacity Exemption’ from 7 January 2015 to 7 April 2015, 14 April 2015 to 14 July 2015, and 24 July 2015 to 11 October 2016. It appears that he was listed for “Quarterly contact for 0-7 and 8-14 job seekers” in the period from 26 July 2016 to 26 October 2016. A quarterly interview was conducted on 7 January 2016.[20] Whether or to what extent, if at all, the reference to quarterly interview relates to the program of support the Secretary alleges is not clear on the present materials. In any event, these references to quarterly contact fall well outside the relevant period for present purposes.
[20] T33 folio 201.
The available materials are not sufficient to enable a thorough consideration of the matters set out in s 9 and s 10 of the Participation Determination. Nonetheless, I am prepared to accept that “Employment Assistance”[21] and a referral to Employment Support Services,[22] namely, Max Employment and Best Employment, are sufficient to establish a ‘program of support’ under s 94(5) for the purposes of s 94(2)(aa).
[21] Exhibit 1, page 1.
[22] T23 folio 142.
As I have said, in order to meet the requirement for active participation in a program of support under s 94(2)(aa) of the Social Security Act, Mr O’Cass must satisfy s 7 of the Participation Determination.
The Secretary asserts that Mr O’Cass did not start a program of support and he does not meet the requirements of s 7.
The materials before the Tribunal are sufficient to establish that Mr O’Cass attended the Max Employment service on 16 September 2014 and 13 October 2014.[23] I think these attendances can be accepted as evidence that he started and participated in a program of support, at least for a time.
[23] T34 folio 204.
On examination of the available records, it appears that Mr O’Cass complied with the requirements of the program of support provided by Max Employment, albeit that the terms and requirements of the program are not clearly established. The present evidence of his attendance supports that conclusion and it does not establish that Mr O’Cass failed to comply with the requirements of the program. The telephone conversation Mr O’Cass had with Best Employment may be sufficient to establish that he was meeting program requirements, at least in terms of his temporary medical incapacity exemption at the time. Whether this is sufficient to establish that he was participating in the program of support at that time is another matter.
It follows that he participated in a program of support for a time and he satisfies s 7(1)(a) of the Participation Determination.
That being so, it is necessary to determine whether he satisfies the remaining requirements set out in ss 7(1)(b) and (c).
No issue was taken and no submissions were made during the hearing in respect of s 7(1)(c) and s 7(6). On the materials before the Tribunal, it appears that the Secretary has all of the information specified in s 7(6). That being so, I think it can be accepted that s 7(6) and s 7(1)(c) are not in issue.
As I understand the Secretary’s submissions, and I must say that the submissions on these points are not especially clear, Mr O’Cass does not satisfy any of the provisions necessary to meet the test in s 7(1)(b).
In order to meet the requirements of s 7(1)(b), Mr O’Cass must be within the terms of either s 7(2), (3), (4) or (5).
In the Secretary’s submission, Mr O’Cass did not participate in a program of support for 18 months during the relevant period.
Plainly enough, this is correct. It is a simple exercise of mathematics to conclude that Mr O’Cass could not have achieved the 18 month minimum participation threshold within that period – at the earliest, he started the program of support on 16 September 2014 and the relevant period ended on 28 October 2015.
Furthermore, under s 8 of the Participation Determination, periods in which a person is exempt from participating in a program of support do not count –
8 Periods of non‑participation not to count
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program.
Applying this provision, the period in which Mr O’Cass was under temporary medical incapacity exemption do not count, and for this reason it can be accepted that he is not within the terms of s 7(2).
With regard to s 7(3), the present materials do not establish that Mr O’Cass has completed an entire program of support of less than 18 months’ duration within the relevant period. He does not satisfy this test.
This leaves ss 7(4) and (5) to be considered in the particular circumstances. It is immediately apparent that issues of construction arise.
How is s 7(4) of the Participation Determination to be construed?
For s 7(4) to apply, both limbs set out in ss 7(4)(a) and (b) must be satisfied. It must be established by evidence that the program of support was ‘terminated before the end of the relevant period’ because ‘the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program’.
The process by which a program of support may properly be taken to be ‘terminated’ for the purposes of s 7(4) is a matter for consideration. In the usual course, a decision to that effect would be expected, and evidence that the decision was communicated to the person would reasonably be looked for.
To my mind it does not follow, and it should not be assumed, that this is the only means by which a program of support might be ‘terminated’. In some circumstances, a program that has ceased to operate and has lapsed may be taken to have been terminated. By definition, when something is ‘terminated’, it is brought or put to an end or ceased with finality. This is to be distinguished from a program that is held over or suspended, deferred or postponed, such that it has ceased from operation for a time, or it has been temporarily brought to a stop or stayed for a time.
There is a point at which a program may be taken to have been ‘terminated’ if the person to whom it applies is under suspension and the program is no longer in existence or has come to an end. This may occur in circumstances where the suspension of the person is, in effect, final, or where the particular program has ceased operating or it is taken to have been brought to an end with finality in the particular circumstances. For example, if the program lies dormant, without action being taken to resume it, and without any confirmation of the continuing status of the program in communications between the person, the service provider and Centrelink over an extended period, these factors may be sufficient to treat the program as one that has come to an end and has been effectively ‘terminated’. It is not difficult to conceive of circumstances where this might arise, in the case of a program that ceases to operate, ends or lapses for some reason while the person to whom it applies is under indefinite, ongoing suspension from taking part in the program, where there is no arrangement for periodic review and no reasonable prospect that the person will be capable of resuming the program.
Thus, where a program of support is suspended without limit, and no action is taken within a reasonable time to reactivate the program or to confirm the continuing status of the program, or the continuing effect of the suspension of the person’s requirement to undertake the program, in the particular circumstances, the program may be taken to have been ‘terminated’ for the purposes of s 7(4) of the Participation Determination.
While suspension of a person from a program of support is not synonymous with termination of the program for the purposes of s 7(4), a careful examination of the facts is necessary to determine whether the program continues to operate or to exist in any meaningful form in circumstances where the person’s suspension has been in place for a long time and is ongoing, with indefinite effect, and without arrangement for periodic review of the person’s capabilities and the suitability and the enduring status of the program. If it is found that a program of support was terminated in such circumstances, the next step is to determine the reasons for the termination and whether the terms of s 7(4)(b) are satisfied. These are matters for evidence.
The Secretary submits that Mr O’Cass was suspended from participation in the program of support on 22 December 2014, but the program of support was not terminated.[24]
[24] T34 folio 203, T34 folio 207 and Exhibit 1.
I should say now that there is no evidence that a decision was taken to terminate the program of support for Mr O’Cass. I note, however, that no evidence was called from Max Employment or from Best Employment in respect of the status of the program of support during the relevant period.
Furthermore, the process by which Mr O’Cass was suspended from the program of support and the reasons for the suspension are not clear on the present materials. Nor is it clear who made the decision, or when the decision was communicated to Mr O’Cass and formalised with any attendant rights to review.
As I understand the Secretary’s explanation of the suspension, this occurred because Mr O’Cass was serially exempt on grounds of temporary medical incapacity. If that is so, one would expect the suspension to have had a temporary rather than an indefinite character, much like the medical certificates underpinning the temporary medical incapacity exemptions that applied from time to time.
As I have said, Mr O’Cass was under temporary medical incapacity exemption from 23 September 2014 to 23 December 2014, 7 January 2015 to 14 July 2015, and 24 July 2015 to 11 October 2016,[25] well after the end of the relevant period. The suspension was not lifted when the medical certificates which caused Mr O’Cass to be temporarily exempt on incapacity grounds came to an end on 23 December 2014, 7 April 2015 and 14 July 2015.
[25] T34 folio 207 and Exhibit 1, page 1.
The materials before the Tribunal, and those available during the qualification period, do not suggest that his medical conditions and related incapacity were likely to change for the better within two years, or at all. The evidence is that Mr O’Cass’s medical conditions and impairments will deteriorate with time, and there is little real prospect of any improvement in his capacity to work or to undertake training. It is quite clear that Mr O’Cass has been under ongoing medical certificates of incapacity well after the end of the relevant period and presently.
There is very scant evidence about the program of support and, in particular, whether it continued to operate after Mr O’Cass was suspended from participation on 22 December 2014. Without evidence from the service provider it is difficult to assess the status of the program of support for Mr O’Cass.
The materials before the Tribunal do not establish that any communication occurred between Max Employment or Best Employment and Mr O’Cass about the continuing status of the program after 22 December 2014 and before the end of the relevant period on 28 October 2015, or subsequently.
Mr O’Cass says that –
“I rang Best Employment, explaining that Centrelink were [sic] in possession of a medical certificate. I have not heard from Best Employment since.”[26]
[26] Exhibit 3.
In these circumstances, I think that the program of support may be taken to have been terminated, for all practical and present purposes, when no further action was taken after Mr O’Cass’s medical certificates came to an end on 7 April 2015, or at the latest, on 14 July 2015. On those dates, if the program had continuing effect, one would expect to find some reference to it in communications between Mr O’Cass, the service provider and Centrelink. There are no such references in the materials before the Tribunal.
That being so, the program may be treated as ‘terminated’ for the purposes of s 7(4)(a) of the Participation Determination.
With regard to s 7(4)(b), I understand that Mr O’Cass’s participation in the program of support was suspended on grounds of incapacity. While this is not free from doubt, it is consistent with the serial medical certificates and the deteriorating nature of the medical conditions that cause the impairments and related incapacity he suffers. I think it can reasonably be concluded that these factors are the sole reason behind the effective termination of the program – Mr O’Cass was unable to take part in the program for an extended period because of his incapacity, and the program ceased to operate, or lapsed, for that reason.
The weight of the present materials is that it was Mr O’Cass’s impairments, alone, that resulted in this state of affairs and I think it can be accepted that it was solely this that prevented him from improving his capacity to prepare for, find or maintain ‘work’ through continued participation in the program.
As I have said, ‘work’ is defined in s 94(5) of the Social Security Act as work of 15 or more hours per week. On the 24 December 2015 Job Capacity Assessment report, Mr O’Cass was not expected to reach this level of ‘work’ capacity within two years with intervention. In other words, the program of support would not assist him to improve his capacity to prepare for, find and maintain ‘work’ of 15 hours per week or more within two years. On balance, the medical certificates and reports within the relevant period before he lodged his DSP claim are sufficient to establish that his work capacity was less than 15 hours per week from at least 23 September 2014. For this reason, I am satisfied that s 7(4)(b) is satisfied.
If this is correct, the requirements of s 7(4) of the Participation Determination are satisfied in the particular circumstances.
If I am wrong in construing the provision in this way, and Mr O’Cass’s indefinite suspension from the program of support is ongoing and the program has not been effectively ‘terminated’, then it is necessary to consider whether Mr O’Cass satisfies the requirements of s 7(5).
How is s 7(5) of the Participation Determination to be construed?
The Secretary asserts that the exception in s 7(5) does not apply in Mr O’Cass’s case.
In order to address this point, it is necessary to consider the correct construction of the section.
Once again, both limbs of s 7(5) must be satisfied. It must be established that ‘the person is participating in the program of support’ at the end of the relevant period, and that ‘the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program’.
While the word ‘participating’ is not defined, and the phrase ‘participating in a program of support’ is not given special meaning, these terms are to be interpreted in the legislative context in which they are found, and with proper regard to the policy or purposes of the Participation Determination and the provisions of the Act it serves.
There are a number of things to say about this.
Under s 7(1) of the Participation Determination the phrase ‘participated in a program of support’ is qualified by the word ‘actively’. The requirement that a person ‘has actively participated in’ a program of support may be satisfied if the tests set out in s 7(1)(a), (b) and (c) are met. The test in s 7(1)(a)(ii) is that the person ‘has participated in’ a program of support.
Clearly enough, the phrases ‘has actively participated in’ and ‘has participated in’ refer to different things: participation is necessary to establish active participation. Thus it can be seen that the requirement in s 7(2) that the person has ‘participated in’ a program of support during the relevant period, and in s 7(5) that the person ‘is participating in’ a program of support at the end of the relevant period, are each elements that are relevant to establish that the person has ‘actively participated’ in the particular program.
A question arises whether a person may be taken to be ‘participating in a program of support’ while not actively taking part, while under a suspension or a temporary medical incapacity exemption from doing so for example, such that s 7(5) might be satisfied. There is some ambiguity in the language used and in respect of the meaning of the phrase ‘participating in a program of support’.
Section 3.6.2.112 of the Guide to Social Security Law provides that –
“Periods in which the person is disengaged from a program FOR ANY REASON, including but not limited to non-compliance with the program requirements or because they have an exemption, are not regarded as, and do not count towards, active participation. Any such periods will reduce the time counted as active participation for any POS the person has undertaken, however, this does not mean the whole program is to be disregarded.”
[Original emphasis]
Thus, on the one hand, it is quite clear that s 7 is subject to the exclusion set out in s 8, such that periods in which the person ‘does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program)’ are not to be counted when assessing the length of the period the person has actively participated in the program. Importantly, the exclusion relates to the calculation of the length of time a person has participated in a program of support.
Language similar to that used in s 8 can be found in s 7(6)(d), for example, in respect of information the person must provide the Secretary – ‘any period during which the person did not participate in the program as a result of any exemption, relief or suspension from the program’.
Thus, the words in s 7(5), ‘at the end of the relevant period, the person is participating in the program’ do not appear to be consistent with a period in which the person is ‘not participating in the program’ while under a temporary medical incapacity exemption or suspension for a time.
On the other hand, the definition in s 5(2), which does not apply to Mr O’Cass, refers to part of the defined meaning of the term ‘relevant period’ in respect of a person who is a reviewed 2008‑2011 DSP starter in specified circumstances –
(2) To avoid doubt, for the purposes of paragraph (b) of the definition of relevant period, a person may be participating in a program of support at a time:
(a) whether or not the person is actively participating in the program at that time in accordance with section 7 of this instrument; and
(b) even if the person is not participating in the program at that time as a result of an exemption, relief or suspension from the program.
Even though this provision is directed with particularity, and it cannot be given a general application, it illuminates the broad possible meaning of the phrase ‘participating in a program of support’, subject to any applicable exclusions or other considerations.
If the participation requirement is construed narrowly, such that the proviso in s 8 would apply generally and not just to the calculation of the period in which a person has participated in a program of support, a person whose impairment is the cause of incapacity for work and, if certified, temporary medical incapacity exemption from the program at the end of the relevant period, the person would not be able to satisfy s 7(5). Why this should be so, is not clear. To my mind, it is not consistent with the language or the purposes of s 7(5), which does not turn on the calculation of time but hinges on whether a person’s impairment prevents him or her from improving capacity to prepare for, find or maintain work through continued participation in the program in which they are participating at the end of the relevant period.
The Participation Determination applies to DSP claimants with impairments that attract a rating of 20 or more points under the Impairment Tables who do not have a ‘severe impairment’. The singular purpose of the Participation Determination is to set out requirements that must be satisfied when determining whether a claimant has ‘actively participated’ in a program of support. The power conferred upon the Minister by s 94(3C) is cast in those terms. More broadly, an assessment of this kind is required under s 94(2)(aa) when determining whether a claimant has a ‘continuing inability to work’ for the purposes of s 94(1)(c).
For the purposes of the DSP ‘continuing inability to work’ test, ‘work’ is defined as work of 15 or more hours per week under s 94(5) of the Social Security Act. In order to meet this test, a claimant’s impairments must, at the minimum, result in a partial incapacity for work of more than 15 hours per week. Thus it can be seen that the requirement for a person to participate in a program of support arises in the context of incapacity.
It is an unfortunate statement of the obvious that DSP claimants who satisfy the requirements of ss 94(1)(a) and (b) share one common characteristic, without exception - they all suffer from impairments that have a mild, moderate, severe or extreme impact upon their functional capacity. One does not need a long bow to draw the conclusion that such impairments may, from time to time, cause incapacity and consequent temporary exemption or suspension from program of support requirements.
While a temporary medical incapacity exemption or a suspension is in effect, and the person is thereby unable to take part in the particular program of support for a time, or the program may be held in temporary abeyance, does it follow that the person is not ‘participating in the program’? I think the answer to this question turns on the difference between active participation and participation.
Just as a person in employment may be temporarily absent from the particular employment for a time without ceasing to be employed, so, too, a person who participates in a program of support may be temporarily exempt or suspended from the program for a time without ceasing to participate in the program. In such circumstances, a person who is under a temporary exemption or suspension from a program of support for a time will not be taken to have ‘actively participated’ in the program for that time, and the time will not count as participation in the program for the purposes of s 7(2) (and it must be reported to the Secretary under s 7(6)), but it does not follow that the person should be taken as not ‘participating in the program’ at the time.
I would not construe the phrase ‘is participating in’ so narrowly to mean active participation only. As I have said, s 7(5) is one of the severable elements that go to determining whether a person ‘has actively participated in a program of support’.
To my mind, the preferable construction is to adopt the broader meaning of ‘participating in’ a program of support, such that, for the purposes of s 7(5) of the Participation Determination, a person may be taken to be participating in a program of support during a period in which the person is temporarily exempt or suspended from active participation on grounds of impairment, alone, if the temporary exemption or suspension is in place when the end of the relevant period is reached.
On that construction, it is necessary to consider the facts and circumstances of the present case. It is quite clear that Mr O’Cass was under temporary exemption on incapacity grounds and then, from 22 December 2014, under suspension from the program of support he commenced on 16 September 2014. He did not take part in the program in any active sense thereafter during the relevant period.
If it is accepted that Mr O’Cass’s suspension from active participation in the program had a temporary character, consistent with a temporary absence during a period of incapacity, he may be able to satisfy s 7(5)(a). There are two difficulties with this, however.
Firstly, Mr O’Cass’s suspension from active participation in program of support requirement had an indefinite character, consistent with the enduring, and in all likelihood increasing, incapacity that resulted from his impairments. On the present evidence, the worsening of his impairments took place after the qualifying period, and not during the relevant period before he claimed DSP. Viewed through the lens of the relevant period, Mr O’Cass’s suspension may well have had a temporary character at that time.
And secondly, the present evidence does not establish that the program of support he started on 16 September 2014 continued to exist or to operate, such that he would have been able to participate in it had he been capable of doing so. Nevertheless, if I am wrong in finding that the program had been ‘terminated’ for the purposes of s 7(4)(a), such that it continued to operate throughout the relevant period, this difficulty for the purposes of s 7(5)(a) would fall away.
For reasons I have given already in respect of s 7(4)(b), I am satisfied that s 7(5)(b) is satisfied. Even though these two provisions serve a different purpose, they are very similar in content, and, on the present materials, no different result is obtained.
Thus, if the program of support is not taken to have been terminated before the end of the relevant period, and it is accepted that Mr O’Cass’s suspension from the program of support requirements had a temporary character, he may be within the terms of s 7(5) of the Participation Determination.
Continuing inability to work
In sum on these points, I am satisfied that Mr O’Cass has a continuing inability to work for the purposes of s 94(1)(c), applying s 94(2) of the Social Security Act and s 7 of the Participation Determination.
I am satisfied that, for a time, Mr O’Cass participated in a program of support and he complied with the requirements of the program. As I have said, it appears that the Secretary has all of the information required by s 7(6). This means he satisfies s 7(1)(a) and (c) of the Participation Determination.
While the present evidence is barely sufficient and the language of the Participation Determination is not as clear as one might hope for, I think it is established that the program of support Mr O’Cass started in 16 September 2014 was effectively terminated on grounds of his ongoing incapacity before the end of the relevant period in circumstances where his impairments, alone, rendered him unable to improve his capacity to prepare for, find and maintain work through continued participation in the program. This means Mr O’Cass satisfies the test in s 7(4) and s 7(1)(b) of the Participation Determination.
If this is not correct, then Mr O’Cass may be taken to have been temporarily absent from but still ‘participating in the program’ of support at the end of the relevant period, and at that time his impairments, alone, prevented him from improving his capacity to prepare for, find and maintain work through continued participation in the program. This means he would satisfy s 7(5) and s 7(1)(b) of the Participation Determination.
From this it follows that Mr O’Cass met the requirements of s 94(2)(aa) of the Social Security Act.
The evidence clearly establishes that Mr O’Cass had a baseline work capacity within two years of less than 15 hours per week and that training activity would not change this assessment. It follows that he satisfies s 94(2)(a) and (b).
For these reasons, Mr O’Cass has a continuing inability for work for the purposes of s 94(1)(c) with reference to the qualification period.
Conclusion
Mr O’Cass has impairments that attract a rating of more than 20 points under the Impairment Tables and he has a continuing inability to work. It follows that Mr O’Cass satisfies the essential requirements to qualify for DSP as of the date of his claim or during the qualification period.
Decision
The decision under review is set aside and in place thereof the Tribunal decides that Mr O’Cass qualified for DSP on the date of his claim.
I certify that the preceding 164 (one hundred and sixty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .................[sgd]......................................................
Associate
Dated 4 November 2016
Date of hearing 13 October 2016 Applicant By telephone Solicitors for the Respondent Department of Human Services
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