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

Primmer and Secretary, Department of Social Services (Social services second review) [2019] AATA 2508 (7 August 2019)
Division:GENERAL DIVISION
File Number: 2018/6781
Re:Paul Anthony Primmer
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. R Baldwin, Member
Date:7 August 2019
Place:Sydney

The decision under review is affirmed.
.........................................................
The Hon. R Baldwin, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualifies for disability support pension pursuant to section 94 of the Social Security Act 1991 – whether applicant’s impairments total twenty points or more under the Impairment Tables – whether applicant participated in a program of support in the three years prior to lodging his claim for DSP – whether participation in the Commonwealth Rehabilitation Services ‘Return to Work’ program satisfies the requirements for active participation in a program of support – whether applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) sch 2
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
SECONDARY MATERIALS
Social Security Guide
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
REASONS FOR DECISION
The Hon. R Baldwin, Member
7 August 2019
INTRODUCTION

The applicant, Mr Paul Anthony Primmer, worked for Centrelink as a Customer Service Officer in excess of 30 years.
On 29 November 2012, Mr Primmer was involved in a motor vehicle accident in which he suffered significant injuries to his back, right knee, right ankle and right shoulder.
Mr Primmer returned to work at Centrelink initially on a 4 hour per day, 5 day a week work plan on 31 January 2013 through a Comcare provided Commonwealth Rehabilitation Services (CRS) Return to Work program.[1]
[1] T-documents, T20 at p.292.
Mr Primmer previously applied for and was granted a Disability Support Pension (DSP) from 15 December 2014. The qualifying approval for the DSP was on the finding of the Job Capacity Assessment (JCA) report dated 19 June 2014 assessing Mr Primmer as having a ‘severe’ impairment rating under Table 3, Lower Limb Function in that he “requires a walking aid to mobilise and is unable to walk around a shopping centre or supermarket without assistance of his walking aid, or stand up from a sitting position without assistance of his walking aid”.’[2]
[2] T-documents, T5 at p.158.
In January 2017 the DSP ceased when Mr Primmer received a compensation payout and Total Invalidity Pension from ComSuper for injuries resulting from a motor vehicle accident on the 29 November 2012.
After the end of the benefit preclusion period on 22 November 2017, Mr Primmer lodged a new claim for DSP on 6 December 2017.[3]
[3] T-documents, T7 at p.165.
On 14 February 2018, the Department of Human Services (Centrelink) rejected Mr Primmer’s claim for DSP because he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act) despite previously satisfying the requirements on 15 December 2014.[4]
[4] T-documents, T10 at p.210.
On 10 April 2018 Mr Primmer was issued an Invalidity Retirement Certificate on behalf of the Commonwealth Superannuation Corporation.[5]
[5] T-documents, T13 at p.235.
An authorised review officer of Centrelink affirmed this decision not to grant a DSP on 7 August 2018.[6]
[6] T-documents, T18 at p.270.
Mr Primmer applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (AAT1) for review on 27 August 2018.[7] On 22 October 2018 the SSCSD affirmed the decision of Centrelink.[8]
[7] T-documents, T19 at p.277.
[8] T-documents, T2 at p.6.
Mr Primmer subsequently applied to the General Division of the Tribunal for review.[9]
[9] T-documents, T1 at p.1.
The matter was heard in Sydney on 18 June 2019. Mr Primmer attended the hearing in person; he did not have legal representation.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
To qualify for the disability support pension, Mr Primmer must satisfy the criteria in s 94(1) of the Act, which requires him to show he has:
(i)a physical, intellectual or psychiatric impairment; and
(ii)an impairment rating of 20 or more points according to the Impairment Tables; and
(iii)a continuing inability to work.
Furthermore, Mr Primmer must satisfy these criteria on the date he applied for disability support pension on 6 December 2017, or within the following 13 weeks: s 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).[10]
[10] See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 (17 August 2009) at [7]-[8].
In this case the 13-week qualification period is 6 December 2017 to 7 March 2018.
RULES FOR ASSIGNING IMPAIRMENT RATINGS
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).
The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.
An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: s 6(4) of the Act.
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: s 6(5) of the Act.
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: s 6(6) of the Act.
Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition:
…must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The Respondent accepts, and the Tribunal agrees, that Mr Primmer has medical conditions that cause impairment during the qualification period and the evidence supports a conclusion that those impairments are fully diagnosed, treated and stabilised conditions which attract at least 20 points under the Impairment Tables. Therefore, the applicant satisfies ss 94(1)(a) and (b) of the Act.
It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, Mr Primmer had:
·A severe impairment rating of 20 points or more under the Impairment Tables; and
· A continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION
Does Mr Primmer have an impairment rating of 20 or more points under the Impairment Tables?
Mental Health Function
Mr Primmer suffers from a depressive and chronic adjustment disorder; this has been exacerbated by the motor vehicle accident. Mr Primmer does not take psychotic medication and does not need support to maintain his hygiene and nutrition.
A report by Dr Chow (Consultant Psychiatrist), dated 14 March 2018 (the Applicant was assessed on 27 February 2018), stated that the Applicant’s condition and ability to function would not improve within the next two years.[11]
[11] T-documents, T12 at pp.226-228.
In terms of functional impact, Dr Chow recounted that the Applicant reported “ongoing fluctuating low mood, anxiety, reduced resilience to cope with stress...”[12]
[12] T-documents, T12 at p.225.
A report by Dr Osmotherly (General Practitioner), dated 4 July 2018, also addressed the Applicant’s depression providing evidence consistent with most of the functional impact descriptors at the mild level. Dr Osmotherly ticked the examples corresponding to a mild functional impact in relation to self-care and independent living, social/recreational activities and travel, concentration and task completion and work/training capacity.[13]
[13] T-documents, T15 at p.240.
In oral evidence, Mr Primmer agreed with the assessment by Dr Osmotherly relating to that section of the report.
Based on the medical evidence of Dr Chow and Dr Osmotherly, the Tribunal is satisfied that Mr Primmer’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period.[14]
[14] T-documents, T12 at p.222.
For the reasons set out above, the Tribunal finds that in accordance with Table 5 (Mental Health Function) of the Impairment Tables Determination, Mr Primmer’s condition is a ‘mild’ impairment arising from his depressive mental health function and assigns an impairment rating of 5 points.
Spinal Function - Back Condition (musculo-skeletal disorder)
On 1 November 2017, Dr Chase reported Mr Primmer’s back pain was:
Mechanical low back pain likely due to a combination of factors including spondylolysis and spondylolisthesis as well multilevel degenerative changes.[15]
[15] T-documents, T7 at p.195.
On 13 February 2018, Dr Osmotherly’s report verified that Mr Primmer self-reported ‘yes’ in response to the following:[16]
(a)Mr Primmer advised that he is able to drive a vehicle/ride his tricycle for 40 to 60 minutes at a time;
(b)Mr Primmer advised that he has some difficulty moving his head to look at the sides or upwards; and
(c)Mr Primmer advised that he has some difficulty walking to his local facilities.
[16] T-documents, T9 at p.209.
On 4 July 2018, Dr Osmotherly provided a further and more detailed assessment relevant to all of Mr Primmer’s conditions and the application of the Impairment Tables.[17]
[17] T-documents, T15 at p.240.
In relation to Mr Primmer’s back condition, Dr Osmotherly indicated most of the functional impact descriptors at the ‘moderate’ level applied.
Dr Osmotherly ticked the boxes indicating that the Applicant could “sit in or drive a car for at least 30 minutes”; that he is “unable to bend forward to pick up a light object placed at knee height’; and that he is ‘unable to sustain overhead activities”.[18]
[18] (see functional impact descriptors (1)(a), (c)-(d) at the moderate level).
Critically, Dr Osmotherly did not tick any of the boxes setting out the functional impact descriptors at the ‘severe’ level.
In his oral evidence, Mr Primmer, when questioned on Dr Osmotherly’s assessments, item-by-item, agreed with the assessment by Dr Osmotherly in that section of the report.
The Tribunal observed that Mr Primmer was able to sit in a chair for periods of more than 10 minutes during the Tribunal hearing.
Based on the medical reports in evidence, the Tribunal is satisfied Mr Primmer’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period.
The medical evidence before the Tribunal does not support a finding that Mr Primmer’s back condition causes a ‘severe impairment’ under Table 4 (Spinal Function).
In accordance with Table 4 – Spinal Function of the Impairment Tables Determination, the Tribunal finds this condition causes a ‘moderate’ functional impact for Mr Primmer on activities involving spinal function, and assigns an impairment rating of 10 points.
Lower Limb Function - Knee Condition (osteoarthritis)
On 1 November 2017, Dr Chase (Occupational Physician) reported that Mr Primmer:
…. has osteoarthritis of the right knee is in fact of mild to moderate severity. As at 26 October (2017) his knee was not actually painful, and he was uncertain whether some of the knee symptoms are referred pain from his lower back.[19]
[19] T-documents, T7 at p.195.
On 1 November 2017, the JCA report recorded that Mr Primmer advised that he has “some difficulty walking to his local facilities” and that he was “observed to utilise a walking cane”.[20]
[20] T-documents, T11 at p.216.
On 14 March 2018 the JCA report recorded that Mr Primmer was “observed to mobilise independently and without assistance from another person, including transfers between sitting and standing, and utilised a...walking cane”.[21]
[21] T-documents, T16 at p.252.
Based on the medical reports in evidence, the Tribunal is satisfied that Mr Primmer’s knee condition was fully diagnosed, fully treated and fully stabilised during the claim period.
On 13 February 2018, Dr Osmotherly’s report verified that Mr Primmer self-reported by circling ‘yes’ in response to the statement: “Mr Primmer advised that he has some difficulty walking to his local facilities”.[22]
[22] T-documents, T9 at p.209.
On 4 July 2018, Dr Osmotherly’s report provided further detailed assessment relevant to all of Mr Primmer’s conditions and the application of the Impairment Tables.[23]
[23] T-documents, T15 at p.240.
In relation to Mr Primmer’s lower limb function condition, Dr Osmotherly did not indicate or support the descriptor/assessment that Mr Primmer “requires personal assistance from another person to: Walk around a shopping centre or supermarket; AND walk from the car park into a shopping centre or supermarket; AND stand up from a seated position; AND to use public transport”.[24]
[24] T-documents, T15 at p.242.
Dr Osmotherly confirmed various functional impact descriptors at the ‘moderate’ levels applied to the Applicant.[25]
[25] Ibid.
In oral evidence, Mr Primmer, in addressing the report, said he “could” move independently around using a walking aid, therefore on that that basis alone does not qualify as ‘severe impairment’ under Table 3 (Lower Limb Function) subparagraph (2)(b).[26]
[26] T-documents, T3 at p.51.
A requirement of all the functional impact descriptors at the ‘severe’ level is that the applicant requires ‘assistance’ to perform the described activities. The Social Security Guide 3.6.3.30 Table 3 (Lower Limb Function) provides:
Interpretation & application of the terms:
The 10- and 20-point ratings in Table 3 use the term 'assistance'. Assistance means assistance from another person, rather than any aids or equipment the person has and usually uses (see 3.6.3.05 (E) Use of aids, equipment & assistive technology).
The interpretation of the term ’assistance’ has been adopted in a number of decisions by the AAT (General Division), including Summers and Secretary, DSS [2014] AATA 165
20 point impairment rating level:
… if a person usually USES a wheelchair or walking aids, ADDITIONAL considerations and requirements apply in determining whether a person qualifies for an impairment rating of 20 points. The person must meet ALL of the descriptor points (1)(a)(i), (1)(a)(ii) and (1)(a)(iii) AND point 1(b), AND IN ADSDITION they must also satisfy descriptor point 2(b) if they use walking aids. If the person who uses a wheelchair or walking aids meets 2(a) or 2(b) but does not meet ALL of the descriptor points in (1)(a) and/or does not meet (1)(b) they cannot be allocated 20 points.
In examining the medical evidence before the Tribunal and consulting the Impairment Table 3 Guidelines, the Tribunal does not support a finding that the Applicant’s knee condition causes a ‘severe impairment’ under Table 3 (Lower Limb Function).
In accordance with Table 3 (Lower Limb Function) of the Impairment Tables, the Tribunal finds this condition causes a ‘moderate’ functional impact for Mr Primmer on activities involving knee function and assigns an impairment rating of 10 points.
Upper Limb Function - Shoulder Condition
Dr Robin Chase[27] and Professor Ghabrial (Orthopaedic and spinal surgeon)[28] reported that Mr Primmer has shoulder adhesive capsulitis and post traumatic stiffness in his right shoulder and that Mr Primmer’s shoulder condition arising from an operation in 2014 was permanent.
[27] T-documents, T7 at p.195.
[28] T-documents, T4 at p.125.
The JCA report dated 31 July 2018 states:
Mr Primmer advised that he uses his right arm to pick up, handle, manipulate and use most objects encountered on a daily basis.[29]
[29] T-documents, T16 at p.251.
On the evidence before the Tribunal, the Tribunal finds that Mr Primmer’s shoulder condition causes no or minimal impairment and attracts 0 points under Table 2 (Upper Limb Function).
During the hearing, Mr Primmer did not contest the Table 2 (Upper Limb Function) impairment rating.
The Tribunal has assessed that Mr Primmer’s condition, as at the qualification period, attracts a total impairment rating of 25 points:
§Table 5 (Mental Health Function) - 5 points;
§Table 4 (Spinal Function) - 10 points;
§Table 3 (Lower Limb Function) - 10 points; and
§Table 2 (Upper Limb Function) - 0 points.
The Tribunal is therefore satisfied Mr Primmer meets the requirement of s 94(1)(b) of the Act for a rating of 20 points or more under the Impairment Tables.
Does Mr Primmer have a continuing inability to work?
Pursuant to s 94(1)(c) of the Act, to qualify for DSP Mr Primmer must have a continuing inability to work because of his impairment.
Section 94(2) of the Act provides that a person has a “continuing inability to work because of an impairment” where:
(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.
Section 94(3B) of the Act provides that 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”.
As the Tribunal has determined Mr Primmer does not suffer from a ‘severe’ impairment, as he does not have an impairment rating of at least 20 points from one of the Impairment Tables, the Act requires that he participate in a program of support (POS).
To meet the requirements for active participation, Mr Primmer must have participated in a program of support for at least 18 months in the three years before he lodged his claim for disability support pension on 6 December 2017, and his impairment must prevent him from improving his capacity to find, gain or remain in employment through continued participation in the program.
The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
Section 5 of the POS Determination defines a ‘designated provider’ as follows:
Designated provider means any of the following:
(a) a Job Services Australia provider;
(b) a Disability Employment Services provider;
(c) an Australian Disability Enterprise:
(d) any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
Program of support has the meaning given by subsection 94(5) of the Act

Section 94(5) of the Act defines a program of support as:
(a)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 it funded (wholly or partly) by the Commonwealth.
The Respondent contends that there is no evidence that Mr Primmer engaged in, or completed, the program of support requirement at the date of his claim for disability support pension, on 6 December 2017, or in the qualifying period between 5 December 2014 and 5 December 2017 in accordance with the requirements of the Act. On that basis, the Respondent contends Mr Primmer has not satisfied s 7(2) of the POS Determination, as Mr Primmer had not started a program of support within the relevant POS period, 5 December 2014 and 5 December 2017,[30] none of the POS exemptions in ss 7(3) – (5) can apply.[31]
[30] T-documents, T1 at p.11, T16 at p.256 and T18 at p.275.
[31] per SM Toohey’s reasons in Budisa and Secretary, Department of Social Services [2014] AATA 79 (20 February 2014) at [33].
At the hearing, Mr Primmer contended that his Certificate of Invalidity, issued by the Commonwealth Superannuation Corporation, satisfies the Guideline 3.6.2.112 of Social Security Guide.
Mr Primmer contends that the Comcare - Commonwealth Rehabilitation Services (CRS) program to assist in his return to work satisfies s 94(5)(a) of the Act in that it was a supported Commonwealth return to work program, and s 94(5)(b)(i) in that it is funded by the Commonwealth.
Mr Primmer’s submission to the Tribunal is that:
DHS enlisted the services of Commonwealth Rehabilitation Services (CRS) to assist in my return to work. CRS, DHS and my treating doctor determined I was only capable of working 16 hours per week.
I actively maintained this work pattern right up until DHS determined I was totally and permanently incapacitated and impaired for all employment, immediately prior to my current claim.
Section 94(5) of the Social Security Act 1991 defines a program of support as being a program that: is a program that (a) is designed to assist persons to prepare for, find or maintain work.
I submit that the program put in place by CRS was designed specifically for me to maintain work, and therefore my participation in that program satisfies the element of actively participating in a program of support.
Guideline 3.6.2.112 of the Social Security Guide states that a person will not be required to have participated for 18 months if the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or remain in employment through continued participation in the program.
at the time of my claim for DSP, I was unable, solely because of my impairment, to improve and capacity to prepare for, find, or indeed remain in employment through participation in any program of support.
… that the Certificate of Invalidity issued by the Commonwealth Superannuation Corporation … satisfies this policy.[32]
[32] T-documents, T1 at p.4.
The Tribunal must now determine whether the Commonwealth Rehabilitation Services (CRS) is qualified to provide a “Program of Support” under s 94(5)(a) of the Act.
CRS Australia is a division of the Department of Human Services (DHS), an agency under the Financial Management and Accountability Act 1997 (FMA Act). Although part of an FMA Act agency, CRS Australia does not receive direct budget funding; instead, it funds its operations through payments received for services delivered. CRS Australia provides vocational rehabilitation and employment related services to the Australian Government.
The Department of Human Services, whilst a government agency, is not itself a ‘designated provider’, as defined in s 5(1)(d) of the POS Determination, as it does not provide a program of support that is funded (wholly or partly) by the Commonwealth.
On this basis, the Tribunal finds that CRS satisfies the definition of a designated provider (emphasis added) pursuant to s 5(d) of the POS Determination which states:
Any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
The next issue for the Tribunal to examine is whether the Comcare provided CRS Return to Work program is qualified to be defined as a “Program of Support” under the Act.
Whilst the ‘designated provider’ list does not include CRS as a service provider, the Tribunal considers it cannot be argued that the CRS ‘return to work’ programs are not “designed to assist persons to prepare for, find or maintain work” nor can it be argued that as a Commonwealth Government agency that they are not funded (wholly or partly) by the Commonwealth as it is an Agency under the Financial Management Act.
Accordingly, the Tribunal is satisfied, in this case, that s 94(5)(a) and s 94(5)(b)(i) of the Act are satisfied. The Tribunal must now examine if (or whether) it is reasonable that s 94(5)(b)(ii) would also be satisfied.
The CRS Return to Work (RTW) plan commenced when Mr Primmer returned to work on 31 January 2013 and concluded on 19 July 2013.[33] The evidence in the CRS documents indicates that the Applicant had returned to duties working part-time hours, and, at the conclusion of the program with CRS, the expectation was that he would graduate to a return to his full-time, pre-injury duties. The program was therefore concluded on the basis that the Applicant had achieved a successful return to work outcome.
[33] T-documents, T20 at pp. 292-296.
At a Fitness for Duty assessment on 5 November 2013 with Dr Matthew Paul (Consultant Occupational Physician),[34] following the CRS closing his case-file, Mr Primmer was directed to continue to work the hours and take the breaks originally set out in the CRS RTW plan.[35] Subsequently, Mr Primmer was issued a Certificate of Invalidity by the Commonwealth Superannuation Corporation and granted a Partial Invalidity Pension from ComSuper. Mr Primmer ceased employment on 24 October 2017.
[34] T-documents, T5 at pp. 128-140.
[35] T-documents, T4 at pp. 141-142.
The Tribunal is satisfied the Return to Work program provided by the CRS between 31 January 2013 and concluded on 19 July 2013 meets s 94(5)(b)(ii) of the Act in that it:
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 it funded (wholly or partly) by the Commonwealth.
The requirements in s 94(2)(aa) and s 94(3C) of the Act are that Mr Primmer “actively participate” in a POS during the ‘relevant period’ between 5 December 2014 to 5 December 2017, and be of 18 months duration to satisfy the requirements of the Act as defined in section 5 of the POS Determination.
Mr Primmer does not satisfy subsection 7(1)(a)(ii) of the POS Determination as he did not participate in a POS during the relevant period. Additionally, Mr Primmer does not satisfy s 7(1)(b) of the POS Determination, because:
(a)Mr Primmer does not satisfy s 7(2) of the POS Determination as he did not participate in a POS for at least 18 months during the relevant period and as such Mr Primmer does not satisfy s 7(3) of the POS Determination as he did not complete the entire POS during the relevant period;
(b)Mr Primmer does not satisfy s 7(4) of the POS Determination as there is no evidence the Return to Work program was terminated because Mr Primmer was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation. The evidence in the CRS documents indicates that the Applicant had returned to duties working part-time hours, and, at the conclusion of the program with CRS, the expectation was that he would graduate to a return to his full-time, pre-injury duties by 30 June 2013. The program was therefore concluded on the basis that the Applicant had achieved a successful return to work outcome; and
(c)Mr Primmer does not satisfy s 7(5) of the POS Determination as he was not participating in a POS at the end of the relevant period.
Furthermore, the Secretary contends and the Tribunal agrees that the Department of Human Services itself is not a ‘designated provider’; Mr Primmer’s ordinary ongoing employment with the Department of Human Services, following the cessation of the POS undertaken with CRS from February to mid-2013, does not constitute ‘active participation’ in a program of support, even though Mr Primmer’s evidence is that his ongoing employment with the Department of Human Services, after his involvement with CRS ceased, continued on the same basis as recommended by the return to work program. This was soundly reasoned by Senior Member Friedman in the Administrative Appeals Tribunal decision Thompson and Secretary, Department of Social Services (an unreported oral decision of 30 June 2014).
Under s 7(1)(a)(ii) of the POS Determination, to have actively participated in a program of support, it is necessary that the person has participated in a program of support during the relevant period. The ‘relevant period’ is defined in s 5(1) of the POS Determination to mean (in Mr Primmer’s circumstances) “the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person”.
In this case, Mr Primmer made his claim for DSP on 6 December 2017, as such the ‘relevant period’, as defined in subsection 5(1) of the POS Determination, is the 36-month period from 5 December 2014 to 5 December 2017. The evidence establishes that the RTW program undertaken with CRS in the course of Mr Primmer’s employment commenced on 1 February 2013 and ceased in around mid-2013. That predates the relevant period by approximately 18 months, and Mr Primmer has no periods of active participation during the relevant period.
The Tribunal finds there is no evidence that Mr Primmer participated in a POS during the relevant period. As such, Mr Primmer does not satisfy s 7(1)(a)(ii) or s 7(b) of the POS Determination; he in turn did not satisfy s 94(2)(aa) and s 94(3C) of the Act, and therefore he did not have a continuing inability to work as required under s 94(1)(c)(i) of the Act.
From all of the evidence provided and for the reasons provided above, the Tribunal finds that Mr Primmer did not participate in a POS for at least 18 months in the three years before he lodged his claim for disability support pension on 6 December 2017.
The Tribunal must now consider whether, as required by s 94(2)(b)(i) and s 94(2)(b)(ii), if Mr Primmer’s impairment is of itself sufficient to prevent him from undertaking any work independently of a program of support within the next two years; and whether his impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years.
On 16 February 2018 the JCA reported that Mr Primmer had a work capacity of 15-22 hours within 2 years.[36] Following this, on the 31 July 2018 the JCA reported that Mr Primmer had a reduced work capacity of 8-14 hours within 2 years.[37] In determining this, the JCA relied on Dr Chow’s report, dated 14 March 2018,[38] and Dr Osmotherly’s report, dated 4 July 2018.[39] It is noted by the Tribunal that these reports were not available to the JCA on 16 February 2018.
[36] T-documents, T11 at p.218.
[37] T-documents, T16 at p.257.
[38] T-documents, T12 at p.222.
[39] T-documents, T15 at p.240.
On the 31 July 2018 Mr Primmer advised the JCA he last worked in October 2017, and had sought medical retirement.[40]
[40] T-documents, T16 at p.258.
The Tribunal considered a letter from Dr Osmotherly dated 14 March 2019 wherein he states:
Mr Paul Primmer, due to injuries sustained in a 2012 motor vehicle accident, is unlikely to benefit from any program of support to increase any capacity to return to the workforce. Paul’s incapacity has been such since October 2017.
The Tribunal has also considered a letter from Laith Cunneen, a Physiotherapist at Peak Physio dated 14 March 2019, which stated:
Mr Paul Primmer has undertaken extensive physiotherapy and rehabilitation to injuries sustained following a motor vehicle accident in 2012.
His treatment has included functional exercises and Work-Related Activity Programs
It is unlikely that any program of support or further intervention would improve his capacity for work at this stage
Mr Primmer’s incapacity has been sustained since October 2017.
On the basis of the medical evidence and the JCA reports, the Tribunal considers Mr Primmer’s impairment is of itself insufficient to prevent him from undertaking a training activity during the next two years. The Tribunal is therefore satisfied that the requirement in s 94(2)(b)(i) is not met.
CONCLUSION
The Tribunal acknowledges that whilst Mr Primmer had been granted DSP in December 2014 on the basis of a ‘severe’ impairment rating and that benefit ceased on 17 January 2017, this application for DSP is a new application and accordingly all requirements of the Act must be met to be granted DSP.
On the evidence provided and for the reasons set out above, Mr Primmer does not meet the requirements under s 94(3B) of the Act in that he does not have a ‘severe’ impairment assessment of 20 points or more under a single Impairment Table. Mr Primmer has accumulated 25 points across the Impairment Tables and as such satisfies the requirement of s 94(1)(b) of the Act.
For Mr Primmer to qualify for DSP, he must prove he has a continuing inability to work. To satisfy s 94(2)(aa) of the Act, Mr Primmer must have completed a program of support in the period between 5 December 2014 to 5 December 2017 (the relevant POS period). The evidence before the Tribunal shows that Mr Primmer had engaged in a program of support, but not during the required relevant period.
For the reasons set out above, the Tribunal finds that Mr Primmer does not have a continuing inability to work as required by s 94(1)(c) of the Act.
Consequently, the Tribunal finds Mr Primmer is not qualified under the requirements of the Act to receive the disability support pension.
DECISION
The decision under review is affirmed.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of The Hon. R Baldwin, Member

..............................[sgd]...............................
Associate
Dated: 7 August 2019

Date(s) of hearing: 18 June 2019

Date final submissions received: 12 July 2019

Applicant: In person

Solicitors for the Respondent: Mr D McLaren, Department of Human Services

[2019] AATA 2508

7 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date(s) of hearing:	18 June 2019
Date final submissions received:	12 July 2019
Applicant:	In person
Solicitors for the Respondent:	Mr D McLaren, Department of Human Services