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

Peters and Secretary, Department of Social Services (Social services second review) [2015] AATA 896 (20 November 2015)

Division

GENERAL DIVISION

File Number

2015/0721

Re

Christine Peters

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 20 November 2015

Place Melbourne
The Tribunal affirms the decision under review.

[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – disability support pension – whether accepted medical conditions attracted 20 points within 13 weeks of the claim – rigidity of hearing impairment table – program of support - decision affirmed
Legislation
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 4 of Schedule 2
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
20 November 2015

Christine Peters lodged a claim for disability support pension (DSP) with Centrelink on 29 November 2013. Mrs Peters, who suffers from serious hearing difficulties and neck problems, had been in receipt of DSP from August 2000. Her payments were cancelled from 19 November 2013 because of an increase in her husband’s income which put their combined income above the allowable limit for eligibility for DSP. Mr Peters, a dairy farmer, sold some stock and this led to a temporary increase in the couple’s combined income.
On 20 February 2014 Centrelink determined that Mrs Peters was not eligible for DSP under the current legislative scheme. The method of assessment of the impact of a disability on a person has changed since Mrs Peters was first granted DSP. Mrs Peters was also unable to meet the mandatory vocational training requirements that must now be undertaken by most DSP applicants during the three years preceding the claim for DSP.
Mrs Peters sought a review of the original decision by a Centrelink authorised review officer (ARO). On 10 September 2014 the ARO affirmed the original decision.
Mrs Peters lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT) on 12 November 2014. On 8 January 2015 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Mrs Peters’ impairments did not attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 29 November 2013 or within 13 weeks of that date, namely 28 February 2014 (the relevant period).
On 16 February 2015 Mrs Peters lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether Mrs Peters satisfied the requirements for DSP during the relevant period.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Did Mrs Peters’ medical conditions attract an impairment rating of at least 20 points?
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work.
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of his or her application to do so within 13 weeks of that date.
On 29 January 2014 Mrs Peters’ general practitioner, Dr Frank C Fox, completed a medical report indicating that Mrs Peters suffered from severe bilateral sensorineural hearing difficulties, cervical spondylosis and diabetes. Dr Fox indicated that Mrs Peters had been his patient since 2001.
The Tribunal accepts that Mrs Peters suffered from a number of medical conditions during the relevant period and continues to do so. She therefore meets the requirements of section 94(1)(a) of the Act.
The Tribunal must decide whether Mrs Peters’ medical conditions attract an impairment rating of 20 points, subject to satisfying the requirements under sections 6(3) and 6(4) of the Impairment Tables, which require the medical conditions to be fully diagnosed, treated and stabilised to be considered permanent and to attract the required points on the relevant Impairment Table (section 94(1)(b) of the Act).
Section 6 of the Impairment Tables states that:
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(bthe person has not undertaken reasonable treatment for the condition and:
(i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:        For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Hearing loss
Mr Peters represented his wife during the hearing, which was by telephone. Mrs Peters gave some responses to questions but it was apparent that she did not hear all that was asked or said. Mr and Mrs Peters confirmed the difficulties she had with hearing as described by the health professionals.
Dr Fox stated in his January 2014 report that Mrs Peters had suffered from congenital deafness since birth. The diagnosis was supported by specialists from Australian Hearing Services. Mrs Peters has worn bilateral hearing aids from the age of seven. Dr Fox described the clinical features of Mrs Peters’s condition as: Deafness at normal levels of speech despite hearing aids, needs to lip read to cope with face to face discussions. Cannot hear if background noise.
In a report dated 2 April 2014, Chelsea Scott, an Audiologist based at Australian Hearing in Warrnambool, stated:
Christine Peters was first seen at Australian Hearing June 26^th 2002. Christine’s hearing has been assessed regularly since 1975 and a deterioration in hearing levels has been noted over this time.
Christine most recently attended Australian Hearing Portland for audiological review on October 22^nd 2013. Pure tone audiometry (attached) shows a stable moderately-severe to profound sensorineural hearing loss bilaterally. Speech audiometry results obtained on this date revealed poor results with adequate amplification.
Christine’s hearing loss is permanent in nature and without the assistance from conventional amplification she does not have access to the sounds of speech in all listening situations. Christine would experience significant difficulty understanding speech clearly without visual cues and particularly in the presence of competing background noise.
On 14 May 2015 Dr Fox provided another report, in which he noted:
1.    She uses captioned television as her only hope of understanding television.
2.    She cannot use the telephone without a volume control on maximum volume. Her understanding of the speech over the telephone is very limited, even on maximum volume of her hearing aid and maximum volume of the telephone, and is dependent on the cooperation of the person on the other end of the call.
3.    She states that she had tried captioned telephone at her home, and that the interpretation by the captioned telephone did not provide intelligible captions, preventing her using that technology at her home. It is reliant upon a reliable Internet service and a reliable electricity supply which are not available at her house.
4.    She is reliant on text messaging for communication.
5.    She is reliant on a hearing person as a carer.
I would support her appeal that her hearing should reach 20 points, not the assessed 10 points impairment.
Mr Tim Rayner, Audiologist, provided reports dated 30 March 2015 and 22 May 2015 following requests from Mr Noonan, the respondent’s advocate. In the report of 30 March 2015, Mr Rayner stated:
Christine Peters was initially diagnosed back in 1975 by Pat Murphy, Chief Audiologist, State of Victoria National Acoustics Laboratories (Australian Hearing). At that stage a severe hearing impairment was detected for Christine.
Ove the preceding 40 years, Christine’s hearing as would be expected with congenital deaf children has continued to deteriorate.
At this stage it is quite clear that Christine has a significant 98.2% hearing impairment using the NAL 1988 table as prescribed is a severe to profound permanent hearing loss with no chance of any improvement but more so a significant chance of continued deterioration over the next few years. I understand that Christine has been covered by the Disability Pension for many years and at this stage this has been rescinded and is currently being reassessed.
After consulting in an extended session today, 30^th March 2015, it is quite clear to me that any gainful employment would be hampered by this significant hearing impairment:
Any employment that relies on verbal communications would also be quite difficult for Christine even with lip reading in perfect communication environment.
Any communication by phone for her would be near impossible, hence no doubt hamper her work abilities.
Any issue of physical activity required for work environments would be hampered by her significant vestibular issues, which may well be related to the significant long term hearing impairment.
In terms of rehabilitation for employment, I would say there would be very limited chance or employment prospects for Christine.
The plan of action to move forward for Christine is to possibly look at the Bionic Ear/Cochlear Implant team at the Royal Victorian Eye and Ear Hospital where she has had previous contact and this may be a way in improving her communication skills. At this stage receiving any rehabilitation programs for hearing is hampered by her inability to gain access to the Office of Hearing Services Pensioner Related Hearing Aid Schemes.
Tonight I have provided her with a box of batteries, microphone covers and hearing aid supplies to keep her going free of charge due to their difficulties with financial means. I will continue to look after her and support her until her pension is re-established, at which time we will transfer her back to the Office of Hearing Services Pensioner Hearing Aid Scheme, which seems to be the most appropriate way of looking after this very significant long term disability that she does have.
On 1 May 2015, Centrelink prepared a Job Capacity Assessment Report based on the papers. The Job Capacity Assessor, a registered physiotherapist, awarded 10 points for the hearing loss and five points for Mrs Peters’s spinal condition. The JCA physiotherapist had several reports from Dr Fox and Mr Rayner provided to her. She suggested that suitable work for Mrs Peters would be light less skilled such as kitchenhand, cleaning. Her additional comments included:
Previous Job capacity assessment indicated that the client has been living with husband and 11 yr daughter on 350 acres dairy farm. Recently sold cows with plans to lease the property as husband retires from farming. Client ceased working in dairy due to hearing condition but manages self-care, all house duties, shopping, cooking, driving.
…
The client would benefit from a referral to Disability Employment Services – Disability Management Service as they have a permanent medical condition and will require regular support in the workplace.
In a report dated 22 May 2015, Mr Rayner responded to various questions asked of him by Mr Noonan, the respondent’s advocate:
Initially I draw attention to the Job Capacity Assessment Report which using my previous report stated “the condition could be considered fully treated and stabilised as the original date of claim and there are no plans to change stream within the next two year period”. I do find this contradictory to our current plan. Our current plan is to improve her quality of life and also improve her ability to gain employment in the future by accessing;
1. The Pensioner Hearing Aid Scheme under the Office of Hearing Services to improve the quality of hearing aids and hence the ability for her to communicate as soon as possible.
2. Also coinciding with this referral to the Bionic Ear Cochlear Implant Clinic at the Royal Victorian Eye and Ear Hospital would be initiated to start to move down this particular option as implantation would seem to be a likely option for her.
Thus therefore her hearing loss is not fully treated at the moment and cannot due to circumstances be fully treated without accessing new program to prepare her for employment or any programs such as the Office of Hearing services for eligible pensioners.
…
At this particular stage no program of support has I am aware has been offered to retrain her in the area of catering or cleaning that would assist her or any potential employer understanding her special needs and also the requirements in a work place.
There is no doubt that Christine relies specifically on lip reading as her number one communication guide with the assistance of very limited hearing. Her profound hearing loss even though we aid it quite well with the use of hearing aids, would only bring her at the best of times into a moderate to severe hearing impairment. A normal person with a moderate to severe hearing impairment would in itself require hearing aids. I think this request of an employer would be very arduous indeed. The two areas that have been mentioned as possible work environments i.e. cleaning and kitchen work require a significant amount of team work and also communications between people. There is no doubt in this case with profound hearing loss that this would lead to significant frustration on both parties and significant stress for both parties in making this work.
…
There is no doubt the training for employment seems to be very important indeed. However, to my knowledge no such training activity has been suggested or provided so Christine Peters could continue down this particular pathway. An individual worker working one to one training Christine in particular tasks, if conversant with hearing impaired people and understanding the importance of lip reading and excellent communication strategies may well help Christine if it could at all be offered. Programs like this have been seen in the past with Commonwealth Rehabilitation Services (CRS) as we do not appear to be able to access any of these programs like we did in the past.
…
In taking into account the geographic area that Christine lives, and also the services to help train her it will seem very unlikely that there are such employment prospects for her in the Heywood region.
Therefore I think program of support in a perfect world would be excellent for Christine, however, no such program has been offered nor could she take up this particular program. It is believed that such a program would need ongoing support to enable her to do this particular work and hence it would be needed to be funded through the Commonwealth government and also to be a very ongoing long-term relationship.
The two areas of possible work have been indicated as kitchen hand and there is no doubt that this is in a very noisy busy environment which has significant reverberant echoey noise and very poor signal to noise ratio to follow instructions. Also in this particular area due to open flame/hot water and other such dangers within the work place would mean that the communications would be very important indeed and hence I do not believe it is a suitable environment for her to continual to further work employment. In the area of cleaning, no doubt if instructions on training courses can be given, then this may well be a possibility, however yet again, very difficult when working within a team.
At this particular stage Christine Peters has quite a significant disability. This impacts on everyday life, it impacts on ability to communicate within the family let alone within an employment area. The main method of communication is via lip reading which is supplementary by residual hearing. Apart from this her main method of communication is by texting on mobile phone. This particular method has now taken over TTY and Tele Text Systems is a preferred option of adult deaf people. Not only does it provide a visual system of information, it is also one that is recorded and can be reread later to double check information.
At this stage I hope that these supplementary notes are useful in her particular case and it will be clear under the point system for Centrelink. She does have a severe functional impact involving hearing/communications even with the use of a hearing aid. I feel that she satisfied the criteria in that
a)She has severe difficulties with hearing conversation in a room with no background noise let alone in a work environment with significant background noise.
b)Unable to hear sounds that would make it difficult for her in the workplace such as we discussed regarding the kitchen.
c)Does not utilise television to any great degree due to the difficulty that she does have and the use of captions only gives her a very brief insight into the television programs.
d)Does not use captioned telephones as they have now been superseded by the use of test messaging SMS
e)Utilises the importance of lip reading significantly.

In a further letter to the respondent’s advocate provided at his request dated 10 June 2015, Dr Fox stated:
1.    Mrs Peters is impaired to the point of not hearing smoker detectors and was impaired at this level during the qualifying period 02/12/2013-03/03/2014. She may sense an evacuation siren, but not reliably. She often misses hearing car horns, but usually hears truck and bus horns in the stationary vehicle or if the windows down.
2.    Mrs Peters is not totally dependent on Auslan or Lip Reading in a quiet room if the person speaks loudly.
She makes errors if she is not able to lip read, requiring clarification from the speaker.
She is not totally dependent if she has a compliant speaker in a quiet environment.
3.    Mrs Peters would be able to cope with washing dishes but not carrying commercial pots or trays of food. She could not sustain cleaning commercially beyond 1 day a week.
Mr Rayner gave oral evidence during the hearing. An audiologist of 25 years’ standing with practices in major centres in Western Victoria, he confirmed the points described in his written evidence. He said that in the last 10 years or so, he has not had a single client who still used captioned telephones. All of them send SMS messages via mobile phone instead.
Mr Rayner also spoke of the difference between hearing and deciphering what is said. To decipher is to understand speech rather than just hearing the sound. He stated that Mrs Peters uses lip reading to try and help understand what is said. However, understanding is hampered when the person is bearded or covers their mouth. Mr Rayner said familiarity with a person’s views, such as those held by Mr Peters, also helps in understanding what is said.
Mr Rayner said that a person is usually described as suffering from severe deafness when they can hear sounds at 65 to 95 decibels. A person is described as suffering from profound deafness when the sound needs to be at 90 decibels or above. He stated that Mrs Peters is classified as being profoundly deaf.
Mr Rayner stated that whilst Mrs Peters may be assisted by a cochlear implant, there is at least a two year delay in Victoria for public patients for assessment. The implant process itself can be physically and mentally arduous, requiring 15 to 20 visits to Melbourne.
Table 11 of the Impairment Tables details the impairment ratings for Hearing and other Functions of the Ear.
Ten points are awarded under the Impairment Tables in the following scenario:
There is a moderate functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device; or sign language interpreting is required.
(1) The person:
(a) has difficulty hearing a conversation at average volume in a room with no background noise; and
(b) the person has to use a telephone with a T switch and has occasional difficulty with some words ; and
(c) is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip-read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or
(2) The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
To obtain 20 points under Table 11 for hearing loss, all of the factors set out below must be present. It is not an either/or situation unlike most other tables where alternatives are given:
There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.
1The person:
(a)has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’)); and
(b)is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and
(c)is reliant on captions to follow a television program or movie; and
(d)needs to use a captioned telephone; and
(e)is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non-verbal communication method (e.g. note taking) to converse with others; or
2The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
The Tribunal is not satisfied that Mrs Peters meets the very stringent criteria for 20 points in relation to hearing loss. Whilst her hearing is worse than that described for 10 points, she does not meet all the criteria prescribed for 20 points notwithstanding that her hearing loss is described as profound by the specialists.
While it is possible that Mrs Peters might be found suitable for a cochlear implant, this probably cannot be established in the short or medium term because of issues with cost, waiting time and accessibility. The Tribunal is satisfied that Mrs Peters’ condition is fully diagnosed, treated and stabilised. The Tribunal awards 10 points based on the current Impairment Tables.
Based on the evidence in this case, it appears that there may be mandatory requirements in this Table, such as the need to use a captioned phone to gain 20 points, which may need to be revised in light of modern telephone usage.
Cervical spondylosis
Dr Fox in his January 2014 medical report stated that Mrs Peters was suffering from cervical spondylosis. He said the condition had been diagnosed in February 2010 following a radiologist’s report. Dr Fox stated that Mrs Peters suffered neck pain and stiffness for which she took Panadol, undertook exercises and had intermittent chiropractic treatment. He said that he expected the condition to continue for more than 24 months and to deteriorate.
In his letter dated 7 April 2015, Dr Fox described the condition as osteoarthritis (spondylosis is spinal osteoarthritis) and stated that it was adequately controlled, stable and permanent at the time of qualification. He suggested that Mrs Peters should be awarded 10 points for that condition.
The JCA physiotherapist, in her report of 1 May 2015, stated that she contacted Dr Fox and, in her notes on their conversation, wrote:
Dr Fox was contacted by phone as part of this assessment (24/4/2015), he reported that the condition has more of a ‘mild to moderate’ impact on function, he reported that the client is able to manage most tasks apart from heavy activities. He confirmed that the impairment fell between a 5 to 10 point rating. The impact falls between 5-10 points on this impairment table, but as stated in the guidelines the lower of the two ratings is to assigned in this case.
Table 4 of the Impairment Tables is the relevant table for spinal conditions.
To obtain five points, the following applies:
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).
Ten points are allocated in the following circumstance:
There is a moderate functional impact on activities involving spinal function
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 out of a chair (if not independently mobile in a wheel chair).
The evidence before the Tribunal leads it to award 5 points under Table 4.
Other conditions
Mrs Peters has been diagnosed with non-insulin dependent diabetes but this is well managed. The Tribunal concurs with the respondent that no points can be awarded for that condition. Her hypertension is also adequately controlled.
There was also mention of the left ankle in Dr Fox’s 2 May 2014 medical report:
Lumbar spondylosis with a cervical component + degeneration of L ankle.
However, the Tribunal does not have any specific evidence that the condition had a separate ongoing functional impact on Mrs Peters.
The Tribunal finds that on the date of claim, and throughout the relevant period of 13 weeks following that date, Mrs Peters did not achieve 20 points on the Impairment Tables. Therefore, she does not meet section 94(1)(b) of the Act and does not qualify for DSP during the relevant period.
Did Mrs Peters have a continuing inability to work?
Even if Mrs Peters achieved 20 points, there would be another barrier to the grant of DSP, namely whether she had a continuing inability to work under section 94(1)(c) of the Act. This requires participation in a program of support for a regulated period of time.
The relevant provisions are set out in sections 94(2) to (5) of the Act:
3A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); 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.
4In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
(3A) …
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
…
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
…
Doing work independently of a program of support
5A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
6In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)     is funded (wholly or partly) by the Commonwealth; or
(ii)    is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre‑vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work‑related training (including on‑the‑job training).
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.
In addition to the sections from the Act cited above, section 94(3C) of the Act stipulates the need to consider concurrently a Determination by the Minister entitled Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination). Section 5 of the POS Determination states that the person must have participated in a Government funded program for at least 18 months in the 36 months prior to the lodgement of the claim to meet the legislative requirements. A period of exemption for health reasons cannot be taken as participation in a program of support.
Mrs Peters did not have a severe impairment as defined in the legislation. That does not mean that the impact of her disabilities on her activities is not strong but rather that there is no single impairment that alone warrants 20 points.
Centrelink records show that Mrs Peters participated in a program of support for just over four months in the 36 months before claiming DSP on 29 November 2013. Mrs Peters had participated from 11 March 2014 until 28 July 2014 when she decided to exit the program on the basis that she was not ready for work. This was after the relevant period.
As Mrs Peters had not participated in a program of support before the lodgement of the DSP claim under consideration or been found to be unable to be assisted by the provider, she would not have met the criteria for DSP even if she had attained 20 points (which she had not).
The Tribunal finds that Mrs Peters did not satisfy sections 94(1)(b) or 94(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
[sgd]........................................................................
Administrative Assistant
Dated 20 November 2015

Date of hearing 11 September, 2015
Advocate for Applicant Mr Arthur Peters
Advocate for Respondent Mr Tim Noonan, Department of Human Services

[2015] AATA 896

20 November 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Division	GENERAL DIVISION
File Number	2015/0721
Re	Christine Peters
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Regina Perton, Member
Date	20 November 2015
Place	Melbourne