Re Karaman and Secretary, Department of Social Services
[2016] AATA 597
•12 August 2016
Karaman and Secretary, Department of Social Services (Social services second review) [2016] AATA 597 (12 August 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5718
Re
Oznur Karaman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 12 August 2016 Place Sydney The Tribunal affirms the decision of the Social Services and Child Support Division made on 11 August 2015 to refuse the Applicant’s claim for disability support pension.
.........................[sgd]...............................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – multiple impairments – whether spine condition fully treated and stabilised – whether failure to undergo recommended treatment precludes a finding condition is “fully treated” – reasonableness of refusing treatment – combined impairment rating of 25 points – continuing inability to work – whether applicant actively participated in a program of support at the date of claim – decision affirmed
LEGISLATION
Social Security Act 1991, s 94
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
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358
Kumar and Secretary, Department of Social Services [2014] AATA 442
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Rekic and Secretary, Department of Social Services [2015] AATA 369
Richardson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 220
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130REASONS FOR DECISION
Ms N Isenberg, Senior Member
12 August 2016
DECISION UNDER REVIEW
On 6 November 2014, the Applicant, Mrs Karaman applied for the disability support pension (DSP). Her application was rejected and that decision was affirmed on internal review and on appeal to the Social Services and Child Support Division of this Tribunal (‘AAT1’) on 11 August 2015. Mrs Karaman now seeks a further review.
ISSUES
In determining the correct or preferable decision, I must apply the qualification criteria for DSP in s 94(1) of the Social Security Act 1991 (‘the Act’). In particular, I must determine whether, as at the date of claim, namely 6 November 2014 or within 13 weeks of that date, namely, by 5 February 2015, whether the Applicant:
·had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act; and
·has an impairment rating of at least 20 points on the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(‘Impairment TablesDetermination’) for the purpose of s 94(1)(b) of the Act; and
·had a continuing inability to work, as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
The Tribunal can only consider an Applicant’s qualification for DSP within the relevant claim period: Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 as affirmed in Gallacher v Secretary, Department of Social Services [2015] FCA 1123. Also, medical reports produced after the relevant period are only relevant to the extent they are referrable to the person’s condition during the relevant period.
Impairment Tables
The Impairment Tables Determination (‘the Determination’) is made under s 26(1) of the Act and sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Only "permanent” conditions can be assigned an impairment rating. Subsection 6(4) of the Determination provides the meaning of "permanent” for the purposes of s 6(3). A condition is permanent if it:
(a)…has been fully diagnosed by an appropriately qualified medical practitioner;
(b)…has been fully treated;
(c)…has been fully stabilised; and
(d)…is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(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 s 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 two years.
Subsection 6(6) defines "fully stabilised” for the purposes of s 6(4)(c) and s 11(4) of the Determination. It provides that 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
(b) the 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.
Subsection 6(7) provides that, for the purposes of s 6(6) of the Determination, reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person;
(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.
CONSIDERATION
When the Applicant, who is now aged 52, lodged her claim for DSP, the application was supported by a medical report dated 10 November 2014 by her GP, Dr Anthony Tsamoglou. Dr Tsamoglou noted the following conditions:
·Various bilateral upper limb chronic conditions
·Bipolar affective disorder
·Spine derangements
There was no dispute that the Applicant had impairments during the relevant period for the purpose of s 94(1)(a) of the Act arising from those conditions, although the Respondent submitted that not all were permanent.
In the course of investigation of her claim the applicant underwent two Job Capacity Assessments (‘JCA’) – on 15 December 2014 and 9 March 2015.
Upper Limb Conditions
There was no dispute that the Applicant suffers from upper limb conditions and that the conditions are fully diagnosed, treated and stabilised.
Dr Tsamoglou referred to this condition in his medical reports of 10 November 2014 and 5 February 2015. He described:
Bilateral upper limb chronic deteriorating generalised soft tissue and ulnar and medial nerve compression at the cervical spine and elbows and wrists.
From the report of Dr M Guirgis, consultant orthopaedic surgeon, dated 15 February 2015 the Applicant’s condition is more particularly several conditions:
·DeQuervain’s tenovaginitis in the left wrist
·Right carpel tunnel syndrome and ulnar cubital tunnel syndrome
·Left ulnar cubital tunnel syndrome
·Left carpel tunnel syndrome with left C6/7 radiculopathy
Dr Tsamoglou reported that the Applicant, at the time of her application had been suffering from this condition for 5-6 years and outlined several specialists and surgeries that the Applicant had undertaken.
From the report of her evidence to AAT1 about her upper limbs there appears to have been some overlap in relation to her upper limb and back symptoms. For example – her evidence that she takes Panadol Osteo three times daily as well as a stronger pain-killer at bedtime, permitting about four to five hours sleep each night; that as well as analgesics, she has undertaken five sessions of physiotherapy annually; that she has not been referred to a pain clinic, nor has she been offered further specialist assessments or treatments since 2012 – was evidence she gave in relation to her back. I accept though, that the treatment she described may benefit both her conditions.
In spite of continuing treatments, Mrs Karaman continues to suffer constant pain in both upper limbs and numbness, pins and needles in all her fingers. In her evidence before me she said that the pain starts from her neck, goes out to her shoulder and all down both arms. When she visited the chiropractor in April 2014 he treated her shoulder as well as her back.
As to the functional impact of the condition, Dr Tsamoglou reported on 5 February 2015 that the applicant’s symptoms were:
Constant severe pain day/night; numbness culminating to a chronic disabling physically and psychologically(sic) state … she cannot use both upper limbs for anything but personal care and even these slowly and with frequent rest periods.
The Applicant reportedly told the second JCA that she had difficulty picking up heavy objects; that she had intermittent stiffness and numbness of the fingers of both hands, resulting in difficulties handling small objects; doing up zips and buttons at the back of her clothes; and reduced range of movement.
Mrs Karaman reportedly told AAT1 that she can carry up to 1 kilogram, that she can pick up a light but bulky object requiring the use of both hands together, that she can hold and use a pen or pencil, that she can do up buttons but not tie shoelaces, (although that was because of her back), and can unscrew a previously opened lid, but she cannot unscrew an unopened lid.
As to functional impairment, she said that she is unable to cook because she is unable to chop and to stir. She can carry milk from the fridge to a bench, but her husband decants it into smaller containers which are not as heavy as a carton. This differed from her previous accounts. She thought she could carry an empty cardboard box providing she did not have to extend her arms. She is unable to clean because her arms ache, and she is unable to sweep or use the vacuum cleaner. The household chores are done by her husband and daughters. She is unable to carry anything heavy, such as the washing basket. She can hang items on a clothes airer, but not on the clothesline. She is unable to do up her bra. She said she prefers to wear loose clothes so does not have to manage buttons; she can manage buttons at the front, but not at the back. She does not use a computer, but can turn pages of a book or magazine.
The Applicant also said, that in addition to her upper limb conditions about which Dr Tsamoglou had written, several months ago she has started experiencing internal bleeding of her hands which occurs every couple of months and lasts for a few weeks. Her hands burn and look bruised in appearance. As distressing as these further symptoms may be, they are not relevant to the period under review.
A rating under Table 2 is appropriate for a condition that results in a functional impairment to the Applicant’s upper limbs. That Table provides, relevantly:
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can 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
There is a moderate functional impact on activities using hands or arms.
(1) The person has 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.
I am reasonably satisfied, having regard to the available evidence, that the appropriate impairment rating for her upper limb condition during the relevant period is 5 points.
Spinal Condition
In his medical report of 10 November 2014, Dr Tsamoglou described the Applicant’s spinal condition as being ‘generally well managed’ and as having ‘minimal or limited impact’ on her. The first JCA noted that the Applicant’s spinal condition could benefit from her being referred to a neurosurgeon to ascertain further treatment options. The report of Dr Saunders, dated 6 May 2012, noted that the Applicant had some injections in February 2012, and subsequently but that these provided only 2-4 weeks of relief. Surgery was discussed at that time, and on review in July 2012.
Dr Guirgis in his report of 15 February 2015 noted that he had discussed with the Applicant the ‘pros and cons, expectations, risks and complications of the invasive lines of management’. He noted that there were no guarantees in respect of any of the forms of management of the Applicant’s condition. He wrote that the Applicant had opted to continue conservative treatment and noted that the applicant ‘remains very apprehensive’ about undergoing invasive lines of management for this condition.
In a later report, dated 8 April 2016 Dr Guirgis wrote that he advised the Applicant to continue with conservative treatment, and that ‘there was no role of surgery in managing her musculoskeletal conditions.’
The Respondent submitted that in circumstances where the Applicant does not appear to have undergone any significant treatment for her spinal condition since 2012, including the surgical option that was discussed with her in 2012, this condition cannot be considered fully treated and stabilised.
In Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130, the decision of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, was approved. Gyles J had made the following comments at [17]:
It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis… I remain of that view.
The test for whether a condition is treated and stabilised depends primarily on whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. “Likely” means a “reliable expectation” of significant functional improvement: Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507 at 513 to 515.
However, the more fundamental question in my view is the reasonableness of the medical treatment. Previous decisions of the Tribunal have held that a claimant’s failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been "fully treated": eg. Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment).
In Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358, Heerey J stated at [23]:
…“generally” persons will wish to pursue reasonable treatment but, exceptionally, there may be circumstance when such persons do not, ie where (i) significant functional improvement is not expected, (ii) there is a medical reason for the person not undergoing further treatment, or (iii) there is “other compelling reason” for the person not undergoing medical treatment.
Heerey J continued at [24] that it is not necessary for a person to show “some reason or fact external to his or her decision not to undergo the treatment in question” but that the “emphasis is on subjective good faith…in the person’s decision, however irrational it may seem.”
In circumstances where both Dr Saunders and Dr Guirgis had explained the various risks of surgery to the Applicant I find that her decision not to undergo surgery to be a reasonable one. Accordingly, I find the condition was permanent at the date of claim, and, accordingly, should be assigned an impairment rating.
The Respondent contended that the appropriate impairment rating is no more than 5 points.
The Applicant described her symptomatology to AAT1 as including constant pain which is aggravated by bending, heavy lifting, turning in bed and twisting or turning her spine and radiates from her central lower back down the sides of both legs to her feet. She reportedly told that tribunal that she does not drive but can sit in a car for 30-45 minutes and she goes shopping with her husband about once a week. She said she could attend to some activities of daily living such as dressing, undressing, showering and toileting though she finds shampooing her hair somewhat difficult because of increased pain, and although she can place small items above head height, she does not put clothes on or off the elevated clothes line because of considerable pain and difficulty. She had some limitation moving her head from side to side, but a full range of upwards and downwards head movement. She demonstrated that she has no difficulty alighting from a chair but was unable to bend to knee height, preferring instead to bend her knees.
In her evidence before me she said that she ‘can’t do anything’, and that she can walk only for 5-10 minutes before needing to rest. Similarly, she said she can only sit or stand for 5-10 minutes before needing to change position. She was driven to the Tribunal by her daughter, which trip took about 50 minutes, but, her daughter added, they had to stop en route so her mother could rest.
The relevant portions of the Table 4 – Spinal Function are as follows:
Points
Descriptors
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
I agree with AAT1 that the appropriate impairment rating is 10 impairment points from Table 4. I consider, in particular, that Mrs Karaman’s spinal problems had, at the relevant time, a moderate impact on function in that although she can sit in a car for at least 30 minutes, she is unable to sustain overhead activities, has difficulty moving her head in all directions and is unable to bend forwards to knee level.
I consider that her functionality is best assessed as attracting 10 impairment points.
Mental Health Condition
The Applicant’s mental health condition appears to have been first diagnosed by Dr Tsamoglou in 2009 who diagnosed depression, panic disorder and mental disorder. In a medical report dated 13 November 2014 prepared in support of the Applicant’s DSP claim, her treating psychiatrist, Dr F. Lowden who first saw the Applicant on 7 January 2013, diagnosed the Applicant’s condition as bipolar mood disorder. She referred to the Applicant’s depressed mood, low self-esteem, low confidence, negative thinking, anxiety, agitation, irritability, disturbed sleep and appetite with poor energy and concentration. At the time of the report there were less hallucinations but still paranoia and obsessive features. Dr Lowden considered the prognosis of the condition to be guarded.
The Respondent contended that the medical evidence does not provide a consistent diagnosis as to the Applicant’s condition, and hence it should not be rated because it is not permanent. In relation to these submissions, I note that both JCAs regarded the condition as permanent. That it was not clearly diagnosed until 2013 (by Dr Lowden) does not mean that the condition is not a long-standing one. As Dr Lowden is the Applicant’s treating psychiatrist, I prefer her diagnosis to that of the Applicant’s GP.
The Respondent also contended that there was limited evidence as to treatment. I note that Dr Lowden recorded that the Applicant had been treated by a psychologist from 2009 to 2013, until she came into Dr Lowden’s care. She resumed seeing the psychologist fortnightly, as part of Dr Lowden’s treatment. The Applicant’s evidence was that she sees Dr Lowden every 1-2 months. That Dr Lowden continues to adjust the Applicant’s medication, does not, in my view, mean that the condition is not fully treated. I therefore find the condition to be permanent and therefore able to be considered for an impairment rating.
In his medical report of 5 February 2015, Dr Tsamoglou referred to the Applicant’s mental health condition as being “generally well managed” and as causing “minimal or limited impact” on her ability to function. As the Respondent pointed out, prior to the two JCAs, details as to the functional impact of the Applicant’s mental health condition are scant. Similarly, the various medical reports do not offer extensive detail as to the ways in which the Applicant’s mental health condition impacts on her ability to function.
The Applicant told AAT1 about the ways in which her mental health condition impacts her everyday life and said she is rarely happy and never very happy. She told me she feels her life is ‘upside down’ and that she ‘feels bad’ and that she takes no pleasure in anything. She reportedly told AAT1 that she generally self-cares, performing many activities of daily living including regularly showering (though sometimes second daily), and dressing herself most mornings. Before me, she said that she has to be reminded to shower because she forgets and anyway, she does not want to because her mind is ‘mixed’.
She told AAT1 that she makes breakfast each morning which she shares with her husband and they then do the dishes together. After breakfast, she tends to spend time in the garden or walking around inside. About once a week she and her husband will go out for a coffee and/or do some shopping, and about once a month they will either see a friend who visits them or go out to a friend’s house. She told me that, although her husband wants to take her out, she is unable to go out, even to the shops because she just does not want to because it is too crowded. She dislikes having visitors and, on occasions finds having her grandchildren problematic. She said in cross-examination that this was not a recent change, and had been like this since she has been ill. She just sleeps all day and does not even like watching TV because her ‘mind can’t handle it’ and she can’t remember what happens.
She told AAT1 that she has a good relationship with her children and husband. Mrs Karaman also told AAT1 that one of her daughters invariably assists her with cooking, washing and cleaning. All planning and decision-making is done together with her husband. She told me she only trusts her husband and her children. Her daughter who came to the hearing, appeared very protective of her mother.
The Respondent submitted the evidence supports a finding that the appropriate impairment rating is 5 points, pointing to her evidence to the effect that, with limited support, she was able to self-care; that she has strong interpersonal relationships. It was also submitted that there is no evidence to suggest that the Applicant is incapable of concentrating or task-completion, nor that she is unable to plan or make decisions. Curiously, this was contrary to the rating attributed to the condition by both JCAs.
The condition is properly assessed against Table 5 – Mental Health Function, which relevantly provides:
5
There is a mild functional impact on activities involving mental health function.
(1) The person 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 requires intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Taking the evidence as I whole I am reasonably satisfied that the Applicant’s functional impairment falls within the descriptors for 10 impairment points.
The Applicant therefore has a combined impairment of 25 impairment points. I therefore turn to consider her continuing inability to work.
Continuing inability to work
At the date of application, unless a person had a severe impairment (ie a single condition that attracted an impairment rating of 20) the person was required to actively participate in a ‘program of support’ (‘POS’) (as defined): s 94(2)(aa) of the Act. If they have not done so, they cannot be found to have a continuing inability to work.
A person has "actively participated” in POS if they have satisfied the requirements set out in the relevant legislative instrument: (s 94(3C) of the Act), being the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination). The POS Determination provides, in essence, and with very limited exceptions that are not relevant to this matter, that, a person must participate in a POS for at least 18 months during the 36 months ending immediately before the relevant date of claim before they can be taken to have actively participated in a POS: s 5(1)(a)(ii) and s 5(2).
I was referred to Centrelink records that, at the date of claim, the Applicant had completed 479 days of POS, equating to approximately 16 months, which falls short of the requisite 18 months of active participation in POS that the Applicant was required to have completed prior to her date of claim.
The records show that the Applicant was subject to some medical exemptions for a period and also exemption while she was overseas. The Tribunal has previously accepted that periods of exemption do not count towards periods of active participation in a program of support: Kumar and Secretary, Department of Social Services [2014] AATA 442; Richardson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 220.
The Tribunal has strictly enforced the POS requirement to date, finding that no power exists to dispense with the operation of s 92(2)(aa) of the Act. Further, in Budisa and Secretary, Department of Social Services [2014] AATA 79, the Tribunal held:
33. Because none of her impairments rate 20 points or more on a single impairment table Mrs Budisa does not have a severe impairment for the purposes of a continuing inability to work, meaning that she must have completed 18 months of a program of support prior to her application.
This position was confirmed in Rekic and Secretary, Department of Social Services [2015] AATA 369 where the Tribunal held at [31]:
I note that the wording of s 5(5) is quite specific. It says:
This subsection is satisfied in relation to a person in a program of support if:
(a) At the relevant date of claim the person is participating in the program of support.
In my view the wording of that subsection is very clear. It says at the relevant date of claim. It does not say during the qualification period. It does not say at any time during the 13 weeks after the date of claim. It says, quite specifically at the relevant date of claim.
Consequently I must agree with the Respondent’s submission that even though I have found that the Applicant had the requisite impairment rating, the Applicant cannot properly be qualified for DSP, as she did not meet the POS requirements.
DECISION
The decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
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Associate
Dated 12 August 2016
Date(s) of hearing 27 June 2016 Applicant In person Solicitors for the Respondent Mr A Kennedy, Department of Human Services
5
10
0