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

Pham and Secretary, Department of Social Services (Social services second review) [2021] AATA 2772 (23 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7081
Re:Tuan Pham
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member C. J. Furnell
Date:23 June 2021
Date of written reasons: 10 August 2021
Place:Melbourne

The Tribunal affirmed the decision the subject of review under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) pursuant to a decision made on 23 June 2021. The following are the written reasons for that decision.
.............................[SGD]...........................................
Senior Member C. J. Furnell
Catchwords
SOCIAL SECURITY – application for disability support pension refused – whether conditions were fully diagnosed, treated and stabilised in the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – whether Applicant had a continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Secretary, Department of Social Services v Sziva [2019] FCA 23
REASONS FOR DECISION
Senior Member C. J. Furnell
10 August 2021

On 15 June 2018 the Applicant applied for a disability support pension (DSP).[1]
[1] T9; T11, p.138.
The rejection of that application on 6 September 2018[2] was affirmed by a Centrelink authorised review officer on 1 September 2020.[3] That decision was, in turn, affirmed on 2 November 2020 by the Tribunal’s Social Services and Child Support Division (SSCSD).[4]
[2] T15, p.203.
[3] T3.
[4] T2.
The Applicant applied to the General Division of the Tribunal for review of the decision as affirmed by the SSCSD.[5]
[5] Social Security (Administration) Act 1999, s 179(2).
In so reviewing that decision, the question in issue was whether the Applicant qualifies for the DSP for which he applied. At the hearing of this proceeding on 23 June 2021, I decided to answer that question in the negative.
At the conclusion of the hearing, I outlined my reasons for that decision, orally. The Applicant subsequently requested that I provide a written statement of my reasons, and I do so now.
WHEN DOES A PERSON QUALIFY FOR A DSP?
An application for a DSP is required to be either granted or rejected.[6]
[6] Ibid, s 36.
It is required to be granted if the Applicant qualifies for the pension and the pension is payable.[7] Hence, two conditions are of relevance; qualification and payability.
[7] Ibid, s 37.
The provisions governing a person’s qualification for a DSP are found in Part 2.3 (and, in particular, s 94) of the Social Security Act 1991 (Cth) (the Act).
Section 94 sets out criteria to be satisfied to so qualify. Those criteria include that:
·the person concerned has a physical, intellectual or psychiatric impairment;
·the person’s impairment is of 20 points or more under the “Impairment Tables”; and
·the person has a continuing inability to work (where, as here, there is no involvement in a scheme known as the ‘supported wage system’).
As for payability, the provisions governing this issue are found in the Social Security (Administration) Act 1999 (Cth) (SSA).
Pursuant to the SSA, a DSP is payable on the “start day” in relation to the pension.[8]
[8] Ibid, s 41.
The start day in relation to a DSP is generally the day on which the claim for the pension is made,[9] unless the person does not then qualify for it, in which case the start day is the first day in the 13-week period after the claim is made on which the person qualifies for the pension.[10] Hence, “…[i]t follows that ….[an applicant’s] entitlement to the DSP must be considered as at the date of his claim and in the 13 weeks thereafter, and that any change in …[the applicant’s] health after that 13 week period is irrelevant save insofar as it may cast light on the position at the relevant time.”[11]
[9] If the Applicant had contacted the Respondent about his DSP claim prior to actually making the claim, then the earlier date might have been the date on which the 13-week period commenced. There is nothing before the Tribunal, however, suggesting that he did so – see SSA, s 13.
[10] SSA, s 42 and Schedule 2, cls 3(1) and 4.
[11] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
Accordingly, the question in issue in this proceeding is whether the Applicant satisfied the DSP qualification criteria in the period from 15 June 2018 to 14 September 2018 (the QP), being a period commencing on the date of his claim for a DSP and ending on the day 13 weeks thereafter.
DID THE APPLICANT HAVE AN IMPAIRMENT IN THE QP?
The Respondent concedes that the Applicant had a physical, intellectual or psychiatric impairment in the QP.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions of 6 November 2020 (R’s SFIC) at [33].
The nature of the impairments that he then had, or may then have had, is not in dispute. They comprise (or at least result from) bilateral shoulder conditions and a mental health condition. This is consistent with the Applicant’s application for a DSP, in which he stated that he suffered from conditions concerning his right upper extremity (right shoulder in particular) and left upper extremity (left shoulder in particular), as well as a mental injury.[13]
[13] T9, p.113.
DID THE IMPAIRMENT ATTRACT A RATING OF 20 POINTS OR MORE IN THE QP?
I am not satisfied that the Applicant’s impairment is of 20 points or more under the “Impairment Tables.”
Those tables are currently found in an instrument made under s 26 of the Act entitled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables). That instrument not only sets out certain tables but also determines rules to be complied with in applying the Tables.
Under the Tables, a rating is assigned to an impairment in an endeavour, essentially, to measure the loss of functional capacity affecting a person’s ability to work which results from a person’s medical condition (noting that, under s 3 of the Tables, the concept of “impairment” is defined so as to capture a loss of functional capacity having that effect).
In considering the Tables I mention that:
(a)An impairment to which a rating can be assigned is not a necessary result of a diagnosed or permanent condition.[14]
(b)Of the Tables, the correct one or ones to be utilised in any particular case generally depends on the nature of the relevant impairment (or, more elaborately, depends on the nature of the loss of functional capacity affecting a person’s ability to work that results from the person’s medical condition).[15] Multiple tables can be used if a particular condition causes multiple losses of function,[16] but the same impairment cannot be double-counted, whether through the use of multiple tables[17] or because multiple conditions cause or contribute to the same impairment.[18]
(c)Self-reported symptoms are generally insufficient to justify assignment of a rating under the Tables, absent corroborating evidence.[19] This is of particular importance in this proceeding because much of the evidence before me in relation to the extent of the impairment which the Applicant suffers as a result of his medical conditions was adduced by the Applicant himself, in his evidence-in-chief.
[14] The Tables, ss 6(8); 10(5).
[15] The Tables, s 10(1).
[16] The Tables, s 10(3).
[17] The Tables, s 10(4).
[18] The Tables, s 10(5)-(6).
[19] The Tables, s 8(1).
In order for an impairment to be assigned any points under the Tables, let alone 20 points, it must be capable of being assigned a rating.
In order to be so capable, first, the condition causing the impairment must be permanent and, second, the impairment must be more likely than not to persist for more than two years.[20]
[20] The Tables, s 6(3).
In order for a condition (being a medical condition)[21] to be permanent it needs to be:[22]
·fully diagnosed by an appropriately qualified medical practitioner;
·fully treated;
·fully stabilised; and
·more likely than not, in the light of available evidence, to persist for more than two years.
[21] The Tables, s 3.
[22] The Tables, s 6(4).
In order for a condition to be fully diagnosed, the evidence must show that the DSP applicant suffered from the condition in the relevant QP and that the condition has been diagnosed by an appropriately qualified medical practitioner. It is not necessary, however, to show that such a diagnosis was made in the QP.[23]
[23] Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88].
In considering whether a condition is fully diagnosed and fully treated it is necessary to consider:[24]
·whether there is corroborating evidence for the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or is planned in the next two years.
[24] The Tables, s 6(5).
Lastly, a condition will only be considered to have been fully stabilised if, in circumstances where the treatment for the condition undertaken by the Applicant:
·was “reasonable treatment,”[25] any further reasonable treatment was unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years; or
·was not “reasonable treatment,” either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result from the undertaking of reasonable treatment or there is a medical or compelling reason for the person not to undertake reasonable treatment.[26]
[25] A concept defined in the Tables, s 6(7).
[26] The Tables, s 6(6).
I turn now to consider whether those conditions as a result of which the Applicant is said to suffer impairment are permanent and, insofar as they are, what rating ought to be assigned to them under the Tables.
Bilateral shoulder conditions
The Respondent submitted that the Applicant’s bilateral shoulder conditions were not permanent as they were neither fully treated nor fully stabilised.[27] The Respondent appeared to concede, implicitly, that they were fully diagnosed.
[27] R’s SFIC at [35]
I accept that the conditions were fully diagnosed in the QP. For instance:
(a)Dr Oludare, general practitioner, in a report of 19 December 2019, stated that an MRI scan, conducted consequent upon a referral in September 2013, revealed bilateral subacromial bursitis and that the Applicant developed right adhesive capsulitis in 2014.[28]
(b)Mr Troy, general surgeon, opined in a report of 19 February 2016 that the Applicant suffered from “[a]ggravation of a right acromioclavicular joint arthritis, subacromial bursitis, a tendinopathy of the supraspinatus and subscapularis of the right shoulder and soft tissue injuries to the left shoulder.”[29]
[28] T16, p.219.
[29] T13, p.145.
While fully diagnosed, at the hearing the Respondent submitted that the Applicant’s bilateral shoulder conditions could not be considered to be fully treated because he was receiving ongoing treatment during the QP. In that connection, the Respondent noted that the Applicant was undergoing physiotherapy in the QP (and, in the context of his mental health condition, was attending a psychologist).
I reject that submission. It is not necessary that all treatment for a condition cease before the condition may be considered to be fully treated. Hence, for instance, ongoing treatment intended to mitigate the chances of a condition or its symptoms worsening would not preclude a condition from being characterised as fully treated. Indeed, as I see it, it is inherent in the context of the fully stabilised concept that ongoing treatment is permissible as long as (where treatment in the past has been reasonable) it is unlikely to result in significant functional improvement.
Prior to the QP, the Applicant’s right shoulder had been the subject of a surgical procedure[30]; and he had received ultrasound guided injections in both shoulders, and ongoing physiotherapy.[31] In these circumstances, his conditions had been fully treated. Moreover, the conditions were fully stabilised. No treatment other than of a nature already undergone by the Applicant appears to have been contemplated in the QP (and the Respondent has not submitted that any other procedure or treatment ought to have been contemplated).
[30] T13, p.142.
[31] T13, p.161. In a medical certificate of 27 September 2018, Dr Oludare noted that the Applicant had undergone ultrasound guided injection, physiotherapy, orthopaedic management and analgesics. Surgical management was said in the certificate not to be indicated. As discussed in an Employment Services Assessment Report of 27 November 2018, at T10, p.121, the Applicant reported that he had undergone four cortisone injections to his left hand and five to his right shoulder, surgery on both hands, fortnightly physiotherapy via WorkCover since the injury to 2016 and monthly specialist consultation until 2016.
Further, I find that the Applicant’s bilateral shoulder conditions were, in the QP, more likely than not, in the light of available evidence, to persist for more than two years, noting that he had suffered from those conditions for around five years already prior to the making of his DSP claim.
In the result, I am satisfied that the Applicant’s shoulder conditions are permanent. I note in passing that a conclusion that those conditions are permanent is consistent with that arrived at in the context of an Employment Services Assessment Report of 27 November 2018.[32]
[32] T10, p.121.
I turn now to consider the rating to be assigned under the Tables to the impairment resulting from the Applicant’s shoulder conditions.
In ascertaining the rating to be so assigned, the table to be utilised is Table 2. It is used where the person concerned has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. The Applicant is such a person.
Under Table 2, a range of points might be assigned to a relevant impairment. I mention the circumstances in which five, 10 or 20 points might be so assigned as the circumstances in which that may occur appear to be of most potential relevance to the Applicant, given the impact on him of his shoulder conditions (which I will discuss shortly).
Five points would be assigned if the Applicant could:
“…manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)       picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)       handling very small objects (e.g. coins);
(c)       doing up buttons;
(d)       reaching up or out to pick up objects.”
10 points would be so assigned if the Applicant had:
“…difficulty with most of the following:
(a)        picking up a 1 litre carton full of liquid;
(b)        picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)        holding and using a pen or pencil;
(d)        doing up buttons or tying shoelaces;
(e)        using a standard computer keyboard’
(f)         unscrewing a lid on a soft-drink bottle.”
20 points would be so assigned if most of the following applied to the Applicant. He had
“(a)       limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)       … severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)       … difficulty using a computer keyboard despite appropriate adaptations;
(d)       … severe difficulty using a pen or pencil;
(e)       … severe difficulty turning the pages of a book without assistance.”
The impact on the Applicant of his shoulder conditions is described in various, sometimes conflicting, ways.
In February 2016, Dr Troy described that impact in these terms:
“able to hold a knife and fork and chop sticks, …drives his car short distances…might sweep the floor to help his mother […] [w]hatever he does, it takes a very long time as it causes him so much pain […] able to remove superficial clothing”[33]
[33] T13, p.143-144
Dr Oludare stated in April and December 2018 that the Applicant was “unable to lift weights, unable to do overhead duties, unable to do activities of daily living like cleaning and washing. Unable to drive far.”[34]
[34] T13, pp. 153; 161.
In June 2018, in a medical report, Dr Oludare stated that the Applicant could “only drive for thirty minutes maximum and gets shoulder pain and weakness after this period. He struggles with his activities of daily living especially if they involve repetitive shoulder movements.”[35] In December 2019, Dr Oludare again stated that the Applicant “…struggles with activities of daily living especially if they involve repetitive shoulder movements” but was able to drive for 30 minutes.[36]
[35] Bundle of medical reports provided by the Applicant.
[36] T16, p.220.
In an Employment Services Assessment Report of November 2018, the Applicant was said to have noted that:
“… he managed with all activities of daily living including cleaning but it takes him longer and with rest breaks […] The client's medical condition/s does not prevent them from using public transport without substantial assistance... Client's permanent condition impacts on cognitive function, endurance, concentration and ability to perform physical tasks. Symptoms limit ability to perform daily tasks that require a sustained physical effort…”[37]
[37] T10, pp.121-3.
At the hearing of this proceeding, the Applicant explained that he lived with his parents who did most, if not all, of the cooking and cleaning. He, however, attended to his personal needs, albeit dressing was said to take some time and washing his hair was difficult. He drove his car approximately twice a week to pick up medication and cigarettes and to dine out.
The Applicant’s father also gave evidence at the hearing which corroborated that given by the Applicant. Overall, I accept the thrust of the father’s evidence albeit that it was so strongly supportive of his son’s as to engender some concern about the father’s credibility.[38] In particular, I accept that household tasks such as cooking and cleaning were not undertaken by the Applicant.
[38] For instance, the father’s opening statement was to the effect that the information provided by his son was all correct. Given that the father was not supposed to be present when his son gave evidence over the telephone (and stated that he was not present when that evidence was given), he was asked to identify the information to which he was referring. When the father did not do so, he was then asked to identify a specific aspect of the information to which he was referring. Again, he did not do so, his response being a rhetorical question about how could he be expected to know what information his son had provided.
These descriptions of the impact on the Applicant of his shoulder conditions are somewhat difficult to align with the descriptors employed in Table 2. Nevertheless, none of those descriptions are such as to warrant assignment of a 20 point rating. Put simply, I am not satisfied on the material before me that the Applicant had the difficulties or severe difficulties referred to in the descriptors applicable to such a rating.

Instead, Dr Troy’s description of the impact on the Applicant of his shoulder conditions, when combined with an acknowledgement that the Applicant is able to attend to his personal needs, suggests that the Applicant can manage most daily activities requiring the use of the hands and arms, but has some difficulty with certain activities. In these circumstances, the most appropriate rating to be assigned to his shoulder conditions is a five point rating.
Mental health condition
I turn now to consider the Applicant’s mental health condition. I find it to be permanent.
I accept that the condition was fully diagnosed in the QP. In a medical report of June 2018, Dr Oludare stated that he first started to see the Applicant in June 2016, at which time the Applicant had complained of depressed mood, poor sleep and anger issues. As a result, Dr Oludare had referred the Applicant to a psychiatrist, Dr Asadi, who began to see the Applicant in July 2016.[39] Dr Asadi then diagnosed the Applicant as suffering from a major depressive disorder,[40] a diagnosis confirmed in letters of 15 May 2018[41] and 11 September 2020.[42]
[39] Bundle of medical reports provided by the Applicant.
[40] T16, p.220.
[41] T13, p.155.
[42] T16, p.223.
The Applicant’s mental health condition was also fully treated and stabilised. He had been receiving treatment for his condition since at least 2016 (albeit acknowledging the Applicant’s evidence to the effect that he in fact commenced treatment for the condition in 2013). No treatment modalities, other than of the nature that had already been undertaken, appear to have been contemplated in the QP; and no suggestion has been made in this proceeding that other treatment modalities ought to have been adopted.
I note that my conclusion that the Applicant’s mental health condition is permanent is consistent with that arrived at in an Employment Services Assessment Report of 27 November 2018.[43]
[43] T10, p.121.
It is, however, inconsistent with the conclusion arrived at in a Job Capacity Assessment Report of 11 August 2020. The material seemingly relied on to arrive at that conclusion, however, clearly failed to provide an accurate description of the factual context. The assessor stated that there was “nil evidence of any psychological counselling and intervention”.[44] In fact, it is clear from the material before me that, at the time of the QP, the Applicant had already undergone a significant amount of psychological counselling and intervention.[45]
[44] T10, p.128.
[45] For instance, in a report of June 2018, Dr Oludare stated that the Applicant was seeing a psychologist weekly and a psychiatrist monthly.
As for the two year requirement, I find that the Applicant’s mental health condition was, in the QP, more likely than not, in the light of available evidence, to persist for more than two years, noting that the Applicant had suffered from the condition for at least two years and possibly five years before the QP. Moreover, Dr Asadi opined in September 2018 that the Applicant was unlikely to recover from his psychological condition in the next couple of years.[46]
[46] T13, p.163. See also T16, p.223.
I turn now to consider the rating to be assigned under the Tables to the impairment resulting from the Applicant’s mental health condition.
In ascertaining the rating to be so assigned, the table to be utilised is Table 5. It is to be used where the person concerned has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment). The Applicant is such a person.
Under Table 5, a range of points might be assigned to a relevant impairment. I mention the circumstances in which five points might be so assigned as they appear to be of most potential relevance to the Applicant given the impact on him of his mental health condition (which I will discuss shortly).
Five points might be so assigned where the person suffering from a mental health condition has:
“… mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)       social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)       concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)       behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)        work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.”
In terms of the descriptors employed in Table 5, there is not much in the material before me of relevance. There is some material as to the impact on the Applicant of his mental health condition but how that impact affects the Applicant in terms of the Table 5 descriptors is largely left to inference. In this regard, I arrived at a five point rating at least in part because the material before me is not such as to justify an inference that the Applicant’s mental health condition caused him to have moderate or severe difficulties with most of the various categories of activity listed in Table 5 in the QP. Albeit, that there is before me material suggestive of the Applicant having severe difficulty with the work/training category of activity.[47]
[47] For instance, in May 2018, Dr Asadi opined that the Applicant is unfit for work [T13, p.155] and Dr Oludare provided a certificate in September 2018 stating that the Applicant was unfit for work or study [T13, p.160].
In this regard, in April and September 2018, Dr Oludare certified that the Applicant suffered from “depressed mood, anhedonia, poor sleep, lack of motivation, anxiety.”[48] In June 2018, Dr Oludare opined that the Applicant was unable to sleep and had depressed mood and a lack of motivation.[49]
[48] T13, pp.154 and 160.
[49] Bundle of medical reports provided by the Applicant. See also T13, pp.154 and 160.
In an Employment Services Assessment Report of November 2018, the Applicant is said to suffer from “intermittent suicidal ideations without current plan, intent or means, sleep disturbance, low mood, ruminating thoughts, fluctuating moods, poor concentration, no motivation, forgetfulness and socially withdrawn, feeling anxious around crowd or crowded environment.”[50]
[50] T10, p.122.
In that same report it is, as mentioned earlier, also stated that the Applicant:
“…managed with all activities of daily living including cleaning but it takes him longer and with rest breaks […] The client's medical condition/s does not prevent them from using public transport without substantial assistance... Client's permanent condition impacts on cognitive function, endurance, concentration and ability to perform physical tasks. Symptoms limit ability to perform daily tasks that require a sustained physical effort.”[51]
[51] T10, pp.121-3.
As for the descriptor in Table 5 relating to travel, I note that in the period from November 2012 to May 2017 the Applicant managed eight trips overseas.[52]
[52] T14, pp. 169-170; 178-9.
I note in passing that a decision to cease paying the Applicant workers’ compensation was made on 14 March 2018. That decision was said to have been made in reliance on, amongst other things, a report of December 2017 of a psychiatrist, Dr Entwisle.[53] In it, Dr Entwisle is said to have stated that the Applicant “…presents with signs and symptoms of an Adjustmen Disorder [sic] and Major Depressive Illness in remission […] From a psychiatric perspective alone he can return to work in his pre-injury duties and hours. Mr Pham has a work capacity immediately from a psychiatric perspective alone.” That report was not before me and, as such, I do not place any significant weight on the statements said to have been made in it. I do note, however, that at the hearing of this proceeding the Applicant accepted that the statements so said to have been made were consistent with his understanding of what was said in Dr Entwisle’s report.
[53] T13, p.149.
As previously indicated, I find that a five point rating ought be assigned under the Tables to the impairment resulting from the Applicant’s mental health condition.
Conclusion
As I am not satisfied that the Applicant’s impairment is of 20 points or more under the Impairment Tables, he does not qualify for the DSP. Nevertheless, I now go on to consider whether the Applicant meets the third qualification criterion mentioned earlier, i.e, whether he has a continuing inability to work.
DID THE APPLICANT HAVE A CONTINUING INABILITY TO WORK IN THE QP?
I am not satisfied that the Applicant met this third criterion in the QP.
The Applicant would only have had such a continuing inability if (amongst other things[54]):
(a)he had actively participated in a program of support; and
(b)the impairment he suffered as a result of his relevant medical conditions was of itself sufficient to prevent him from doing any “work” independently of a program of support within the next two years.
[54] The Act, s 94(2). There is an additional requirement concerning training activity participation.
Both these requirements would need to have been satisfied for the Applicant to be considered to have a continuing inability to work. Neither is satisfied.
Program of support
The Applicant did not actively participate in a program of support. The requirements he would need to have met to be considered to have done so are set out in cl 7 of an instrument made for the purposes of s 94(3C) of the Act.[55] Under that clause, it is generally necessary, subject to several qualifications, to have participated in a program of support for at least 18 months in the three-year period preceding the relevant DSP claim. Here, in the three-year period from 15 June 2015 to 15 June 2018, the Applicant is said by the Respondent to have participated in a program of support for zero days.[56] The Applicant did not dispute that calculation of the extent of his program of support participation.
[55] Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
[56] T9, p.116 as confirmed by “SOP calculator” at T12, p.140.
As I mentioned, there are several qualifications to the 18-month participation requirement. I am not satisfied that any of them apply in the circumstances (and the Applicant did not submit that any of them applied). In particular, on the material before me, I am not satisfied that:
(a)The duration of the Applicant’s program of support was less than 18 months and the Applicant completed the entire program in the relevant three-year period;[57]
(b)Any of the Applicant’s programs of support were terminated before expiry of the relevant three-year period because he was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program;[58] or
(c)The Applicant was participating in a program of support at the end of the relevant three-year period and was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation in the program.[59]
[57] POS Determination, cl 7(3).
[58] POS Determination, cl 7(4).
[59] POS Determination, cl 7(5).
I note that it is not necessary to participate in a program of support in the context of a “severe” impairment.[60] Such an impairment is one that is of 20 points or more under the Tables, of which 20 points or more are under a single table.[61] As is clear from what I said earlier, I do not accept that the Applicant suffered from such an impairment in the QP.
[60] The Act, ss 94(2)(aa) and 94(3B).
[61] The Act, s 94(3B).
Prevented from doing any “work” independently of a program of support within the next two years?
As for the second requirement of the continuing inability to work criterion, the concept of “work” is limited so that it only extends to 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.[62]
[62] The Act, s 94(5).
Given this concept of “work”, the question in issue is, essentially, whether the Applicant’s impairment prevented him from working for at least 15 hours per week in the next two years, as assessed in the QP.
In this regard, I note that Dr Asadi opined in May and September 2018 that the Applicant was “unfit for work”.[63] Similarly, Dr Oludare opined in certificates provided in September and December 2018 that the Applicant was “not fit for work or study.”[64]
[63] T13, pp.155 and 163.
[64] T13, pp.160 and 165.
These opinions stand in marked contrast to those apparently relied upon in the context of a decision in March 2018 to cease workers’ compensation payments to the Applicant.[65] I mentioned earlier the report from the psychiatrist, Dr Entwisle, of December 2017. In it, he is said to have stated that the Applicant had “a work capacity immediately from a psychiatric perspective alone.” Another report so relied upon was from an occupational physician, Dr Barton, provided in February 2018. In it, Dr Barton is said to have expressed his belief that the Applicant was “physically capable of normal work now.”[66] Given that these two reports are not before me, however, I do not place significant weight on the statements or beliefs said to have been made or expressed in them.
[65] T13, p.148.
[66] Quoted at T13, p.149.
In any event, the material from Dr Oludare and Dr Asadi which I just mentioned does not expressly address the Applicant’s prospective work capacity and, hence, does not directly address the question in issue in considering the capacity for work requirement. Dr Oludare did, in a report of December 2019, address that capacity and opined that the Applicant not only had no present capacity for work but also no future capacity for work.[67] That report was, however, well after expiry of the QP. Of more temporal relevance is an employment services assessment report of November 2018. In that report the Applicant was said to have not only a baseline work capacity of 15-22 hours per week but also a future work capacity, with intervention, of 15-22 hours per week.[68]
[67] T16, p.220.
[68] T10, p.123.
In light of this material, I am not satisfied that the Applicant was, in the QP, prevented from doing any “work” independently of a program of support within the next two years.
CONCLUSION
For the reasons just outlined, the Applicant does not qualify for the DSP for which he applied.
Accordingly, the decision the subject of review was affirmed at the hearing of this proceeding on 23 June 2021.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the written reasons for the decision of Senior Member C.J. Furnell.

....................... [SGD]...........................................
Associate
Dated: 10 August 2021

Date of Hearing 23 June 2021

Applicant: Self-represented

Advocate for the Respondent:

Solicitors for the Respondent

Anthony Parker

Litigation and Information Release Branch, Legal Services Division, Services Australia

[2021] AATA 2772

23 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness