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

[2020] AATA 676

Searles and Secretary, Department of Social Services (Social services second review) [2020] AATA 676 (20 March 2020)

Division	GENERAL DIVISION
File Number:	2019/1167
Re	Vicki Searles
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	20 March 2020
Place	Adelaide

The Tribunal sets aside the decision under review.

......................[sgnd]...............................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - pensions benefits and allowances - disability support pension -disability support pension – cancellation of existing payment - medical review – whether Tribunal satisfied that applicant not qualified for DSP as at the date of cancellation – decision under review set aside

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

CASES

Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64

Crossland and Secretary, Department of Family and Community Services [2004] AAT 864

Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606

Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444

Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Member I Thompson

20 March 2020

INTRODUCTION

1. This is an application for review of Centrelink’s 27 September 2018 decision to cancel Ms Searles’ disability support pension (DSP) under s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

2. Ms Searles was granted the DSP on 29 August 2006 due to a spinal disorder. Centrelink commenced a review in January 2018 and decided on 27 September 2018 that Ms Searles no longer qualified for the DSP. She sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP. The ARO identified two conditions, namely spinal disorder and asthma. The ARO found that the condition of spinal dysfunction/lower back spinal nerves dysfunction and cervical radiculopathy are permanent and a rating of 10 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) was appropriate. The ARO did not consider Ms Searles’ asthma could be assigned an impairment rating.

3. Ms Searles applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink’s decision. The AAT1 concluded that the spinal condition was permanent and fully diagnosed, treated and stabilised and applied 10 impairment points under Table 4 of the Impairment Tables. The AAT1 concluded that the asthma condition did not cause sufficient impairment to attract impairment points and that a condition of anxiety and depression was not fully diagnosed, treated and stabilised at the relevant time. In all, the AAT1 concluded that Ms Searles did not meet the requisite 20 points on the Impairment Tables and the decision of the Centrelink ARO was affirmed.

4. Ms Searles applied to this Tribunal for a review of the AAT1 decision claiming that that decision was wrong.

5. The hearing took place on 20 February 2020. Ms Searles attended the hearing and was self‑represented. Mr Visser represented the Respondent, the Secretary, Department of Social Services.

6. Ms Searles gave evidence. She called five witnesses, four of whom gave evidence in person and the other one by telephone. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

   LEGISLATION AND ISSUES

7. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP. Section 94(1) of the Act provides that an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

8. Under s 94(2) of the Act a person is regarded as having a “continuing inability to work” if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

9. Section 80 of the Administration Act requires the Secretary to determine that a social security payment be cancelled or suspended where the Secretary is satisfied that the recipient is not or was not qualified for the payment. In full, s 80 provides:

   (1)  If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)  who is not, or was not, qualified for the payment; or

   (b)  to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);

   the Secretary is to determine that the payment is to be cancelled or suspended.

10. Under s 63 of the Administration Act the Secretary may require a person who is receiving a social security payment to undergo an assessment to determine the functional impact of the person’s health condition. The Secretary issued Ms Searles with a s 63 notice on 29 January 2018. She attended a job capacity assessment and a report was provided.

11. Section 27(3) of the Act required the Secretary to apply the Impairment Tables in force on the date the s 63 notice was provided to Ms Searles when making a determination under s 80 of the Administration Act.

12. Ms Searles had been granted the DSP under qualification criteria that were different from the qualification criteria in force from 1 January 2012 when the Act was amended.

13. In the statement of facts, issues and contentions the Secretary concurred with the findings of the job capacity assessor, the ARO and the AAT1, namely that 10 Impairment points should be assigned for the spinal condition. Furthermore, the Secretary contended that Ms Searles does not have a continuing inability to work as required by s 94(1)(c) of the Act. The Secretary sought an order affirming the AAT1 decision under review.

    CONSIDERATION

14. In Conaghan and Secretary, Department of Social Services (Social services second review)[1]  the Tribunal, comprising Senior Member Sosso, confirmed in relation to a DSP cancellation on 15 April 2015 at:[2]

    The central question to be determined by the Tribunal is whether the Applicant was qualified for the DSP on the day it was cancelled … and not at the time the cancellation decision was reviewed by the Tribunal – Freeman v Secretary, Department of Social Security [1988] FCA 294; 19 FCR 342 at [9] per Davies J.

    In reaching its decision the Tribunal is not limited to considering the material that was presented to the original decision-maker. The Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 – Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.

    In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.

    [1] [2017] AATA 64

    [2]  [29-31]

    Impairment Tables

15. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

16. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

17. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

18. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.

19. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

    EVIDENCE

20. Ms Searles gave evidence to the Tribunal. She is now 49 years old. She has a large family with five children, the youngest age 12. For the last 30 years she has devoted herself to bringing up her children, four of whom still reside with her. Two of them have additional needs which increase her role and responsibilities as full-time parent and carer. She has also assisted actively with the day-to-day care of other family members.

21. Ms Searles told the Tribunal she has had problems with her back for over 20 years. She suffered from spasms, throbbing and a burning, stabbing sensation in her back. There were occasions when she could not walk and needed a walking frame to move from one room to another. She took anti-inflammatory medication and Panadeine Forte to reduce the pain.

22. When she was granted the DSP in 2006, Ms Searles was having problems with her back which have continued in the intervening years until the cancellation in September 2018. She has tried various types of treatment. In the early stages she had physiotherapy and chiropractic treatment and she also tried hydrotherapy. She has regularly consulted her general medical practitioner for medication. Ms Searles has relied on medication for treatment since the onset of the back and neck problems. In the early stages she consulted a hospital pain clinic and received a recommendation for treatment by administration of morphine. She was and still is unimpressed by that prospect and resists it. At one point she was referred to a neurosurgeon or a neurologist and she was placed on a waiting list. She has been waiting without success for 14 years to get off the waiting list and into a consultation with the specialist. The medication prescribed by her general medical practitioner has been the consistent and most successful method for dealing with the pain.

23. At the time of the DSP cancellation Ms Searles was continuing to have difficulty with her back and her neck. She had difficulty sitting, walking and carrying out every day, domestic tasks. In evidence, she said that her legs would give way on her, the legs felt numb and she would have to take medication and rest until the pain went away. Her left arm would go numb and she got migraines and neck pain which she attributes to a bulging disc. She attempts to ensure that she keeps her neck in an upright position.

24. In describing the impact of her medical conditions at the time of the DSP cancellation and through to the present time Ms Searles said that she can sit for 10 minutes but she cannot sit still. She said that she cannot move her head in all directions because of the pain that she has in her neck and shoulders. Effectively she has half range of movement of her head amounting to about 45° in each direction. In relation to overhead activities she acknowledged that she can wash her hair and she demonstrated how she places her hands on her hair in the shower. In ordinary day-to-day activities she cannot do any overhead activities. If she has to try any overhead activity, such as getting an item from a shelf in the supermarket, she resorts to balancing herself by holding onto the trolley and reaching up and out to the shelf. She said that she cannot hang washing on the clothesline and she has not used the clothesline for four years. She puts the clothes into a clothes dryer. Bending forward to pick up light objects causes pain. She has asthma and uses a puffer to control it.

25. A general medical practitioner, Dr Nakone, provided a  report dated 16 September 2019[3] in which he wrote that Ms Searles reported that she suffers from pain if she attempts to pick a light object off the floor, and she cannot bend forward without experiencing pain. In evidence, she agreed with that comment and added that she struggles to pick up an object from the floor. Dr Nakone wrote that she has pain if she turns her trunk from side to side and cannot turn her head without moving her trunk. In evidence, Ms Searles agreed with that description and said that she has limited ability to turn her head because the pain is excruciating. Dr Nakone wrote that she suffers pain on any neck movements, with an inability to perform any overhead activities. In evidence Ms Searles agreed with that comment and added that if she puts her hands over her head she feels sick and has to sit down.

    [3]  Ex4.

26. Subsequent to the DSP cancellation Ms Searles consulted her general medical practitioner for a mental health treatment plan because of depression and anxiety. In mid-2019 she participated in a program called Living Well with Persistent Pain which included five sessions of physiotherapy and six sessions with a mental health social worker. The feelings of depression and anxiety relate to a combination of factors which include but are not confined to her medical conditions. As she said in evidence, it: ‘got to the point where I was suicidal, getting too hard, everything on top of me.’

    Family members

27. Evidence from Ms Searles’ eldest daughter, her father and husband (from whom she is separated) confirmed the general theme about her activities during the day. Each of those witnesses resides independently of each other and independently of Ms Searles. Each of them visit her from time to time and occasionally she visits each of them. Each witness spoke about the general pattern of Ms Searles’ daily routines and the limitations physically which she has and the manner in which she deals with them. The observations are broadly consistent between themselves and provide a consistent picture over a period of about 20 years.

28. The evidence from family members includes observations about Ms Searles having difficulty with any heavy work around the house, her avoidance of work such as vacuuming and mopping, trouble that she has standing up from a seated position, and an avoidance of overhead activities. Generally the witnesses provide an impression that Ms Searles’ physical difficulties have deteriorated over a number of years and she has come to rely more and more on family members with domestic activities.

    Medical evidence

29. Ms Searles’ general medical practitioner in 2006 was Dr Dean. He reported at that time that she was suffering mechanical low back pain with a date of onset in 1992. He described the symptoms as constant low back pain which was treated by analgesics and Panadeine Forte. The impact on ability to function was described as an inability  to sit or stand in one position for any extended time.[4]

    [4]  Ex1, T10/128.

30. In 2009 Dr Dean provided another report which confirmed the diagnosis of mechanical lumbar back pain which required regular analgesia. The condition had been investigated at the Royal Adelaide Hospital neurosurgery clinic.[5]

    [5] Ex1, T 10/142.

31. The results of x-rays and an MRI in 2014 confirmed early degenerative changes at the left C3 – 4 facet joint and posterior joint degenerative changes causing right C6 canal stenosis.[6]

    [6] Ex1, T10/160 – 161.

32. In 2017 Ms Searles’ general medical practitioner was Dr Miller. In fact he was her GP for many years. He reported on 24 April 2017 that Ms Searles had a long established spinal dysfunction, namely a cervical disc injury with consequent neural dysfunction, as radiculopathy, together with damage to the lumbosacral spine.[7]

    [7] Ex6.

33. Significantly in relation to the continuation of symptoms over the years, Dr Miller wrote in that report that Ms Searles:[8]

    …continues to suffer, as during the intervening years, with cervical radiculopathy and low back spinal nerves dysfunction; which each and collectively render her disabled for fulfilment of work engagement, and proper execution in any reliable manner of ADLs. We are not in a position to execute a remedy now, anymore than at any other time in the last 20 years.

    [8] Ex6.

34. Dr Miller confirmed that Ms Searles was continuing to have medication prescribed which included daily doses of Lyrica, Mobic and Panadeine Forte.

35. Dr Miller’s report was written only a few months before Centrelink commenced its review. It is important to note that Ms Searles had consulted Dr Miller regularly over several years. Dr Miller retired in November 2018 and Ms Searles became a patient of his colleague, Dr Nakone. On 4 August 2019, Dr Nakone wrote a report[9] in which he confirmed the content of Dr Miller’s report and also noted the results of a radiology report dated 22 February 2019. Dr Nakone concluded that Ms Searles:

    …has not been able to work for a very long time (possibly as far back as 1998), and concur with my colleague Dr Miller that she was not able to work, at least since 24 April 2017 when he wrote the above letter.

    (The reference to the above letter is a reference to Dr Miller’s report of the 24 April 2017.)

    [9]  Ex5.

36. The 22 February 2019 x-ray report regarding the cervical spine noted moderate degenerative disc disease at the C5/6 level and moderate left C3/4 facet joint arthropathy. At C5/6 there was moderate to severe right neural exit foraminal narrowing with possible contact of the exiting left and likely contact of the exiting right C6 nerve root along with mild to moderate spinal canal narrowing. In the lumbosacral spine at L5/S1 moderate to severe degenerative disc disease was noted.[10]

    [10] Ex7.

37. On 28 August 2018, shortly before the cancellation decision, a Centrelink officer recorded details of a conversation with Dr Miller.[11] According to the notes of the conversation Dr Miller confirmed the chronic pain problem arising out of Ms Searles’ spinal condition. Dr Miller’s assessment of the prognosis and the nature of the condition was recorded in this way:

    …symptoms vary – some days able to perform overhead activities and some days requires assistance from her children, needs to be careful when bending to knee height, needing to stop and plan how to perform the movement, some days she may leave items at desk height for another day.

    [11]  Ex1, T10/163.

38. The notes continued in relation to limitations in activities of daily living: ‘sitting tolerance hard to estimate – moves around and shifts weight all the time in the waiting room – around 10 – 15 minutes limit.’ Dr Miller also advised of social and housing difficulties which Ms Searles encountered because of problems performing activities of daily living.

39. A mental health social worker, Ms Fitzgerald gave evidence about the therapeutic assistance which she provided to Ms Searles. It included cognitive behavioural therapy and therapeutic support for depression and anxiety. It appears that these sessions commenced and occurred subsequent to the DSP cancellation. It appears also that Ms Searles committed herself to seeking this support over a number of fortnightly sessions at a time when she was undergoing considerable amounts of stress.

1. A physiotherapist, Mr Fearenside, wrote a report dated 25 September 2019.[12] Ms Searles received physiotherapy treatment from him from August 2019. Mr Fearenside also gave evidence by telephone. His understanding was that Ms Searles had long-term, low back pain together with intermittent pain and numbness referring down both of her legs. In an incident in November 2018 she landed on her back which resulted in an aggravation of pre-existing low back condition and displaced two cervical vertebrae.

   [12] Ex3.

2. The physiotherapy treatment, which commenced and continued after the DSP cancellation, included manual soft tissue release for tight muscles, neural stretching of the sciatica and cervical nerves, spinal mobilisation for joint stiffness and education about strengthening exercises to be undertaken at home. The treatment is continuing.

3. Mr Fearenside stated in evidence that walking for 10 to 20 minutes causes pain in Ms Searles’ legs, he confirmed that that she has limited overhead reach, and prolonged postures aggravate pain in her back and legs. Mr Fearenside commented that Ms Searles does not have the ability to perform overhead activities because of problems with the arms, neck and shoulders which relate to joints in the neck and tightness of muscles. With the continuation of physiotherapy he considered that there was potential for improvement, however the improvement in progress would be slow and difficult and would require active management in gentle exercise.

4. While Ms Searles appears to have committed herself to a genuine engagement with physiotherapy, including attempts at home-based exercises for muscle strengthening and neural stretches, the overall, positive effects have been minimal up to this stage. This is perhaps not surprising. In the 5 September 2018 JCA report[13]  the contributing assessor, a physiotherapist, indicated that because of the longevity of the condition, physiotherapy may only provide limited improvement and is unlikely to provide significant improvement. That is not to detract from the attempts which Ms Searles may make to engage in treatment for conditions which the physiotherapist, Mr Fearenside, described as very significant neural tightness in her arms and legs and muscle tension, together with stiffness in the spinal vertebrae.

   [13]  Ex1, T9/114.

   Job Capacity Assessment reports

5. A JCA report dated 5 September 2018[14] followed an interview with Ms Searles. According to the report she told the assessor that she has constant pain, trouble with walking and also lifting her left leg into the car. She has difficulty getting in and out of chairs. She reported apparently that on good days she can drive her children to school and drive to her parents’ place. She reported that she assists her mother with showering and she leans on the wall to do it, however her back goes into spasms and she tries to squat down to wash her mother’s legs. The assessor noted that Ms Searles asks her son to lift things and put them in the trolley when she is shopping. Her adult children visit her and help with the cleaning, including cleaning the bathroom. She can clean benches and will “potter around and does what she can”.[15]

   [14]  Ex1, T9/114.

   [15]  Ex1, T9/114.

6. A JCA report dated 3 April 2009[16] recorded that Ms Searles’ education was completed to year nine level. With a brief work history in hospitality and factory positions, she last worked at the age of 20. Subsequently she has had the full-time care of her children. A JCA report dated 25 October 2006[17] noted she suffered chronic pain with decreasing ability to carry out many activities of daily living. She would avoid tasks such as hanging out the washing, vacuuming, and making beds.

   [16]  Ex1, T9/103.

   [17]  Ex1, T9/97.

   CONSIDERATION

7. Impairment Table 4 – Spinal function, is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.

8. A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:

Points

Descriptors

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:

(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).

1. Severe functional impact on activities involving spinal function attract 20 points as set out in Impairment Table 4 as follows:

Points

Descriptors

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.

1. The Tribunal accepts the evidence which Ms Searles gave about her inability to perform any overhead activities. Her difficulty is greater than an inability to sustain those types of activities. Her evidence is supported by the medical evidence, which has been summarised above. At the DSP cancellation date, she was not able to carry out any overhead activities. She cannot carry out those types of activities at home. She cannot undertake them when she is in a supermarket.

2. Having regard to Ms Searles’s evidence, the evidence of family members, and taking into account all of the medical evidence, the Tribunal is satisfied that the descriptors for a severe functional impact more closely approximate her functional impairment than the descriptors for a moderate functional impact. For a severe functional impact, four descriptors are in the alternative and one of the descriptors must be met. The descriptor in (1)(a) is met as Ms Searles is unable to perform any overhead activities.

3. Accordingly the Tribunal finds that the appropriate rating is 20 impairment points under Table 4 for Ms Searles’ activities involving spinal function.

   Other conditions

   Asthma

4. Ms Searles has suffered from asthma for many years. In the JCA report dated 3 April 2009 the asthma condition was noted and regarded as permanent based on medical information from the GP, Dr Dean. The condition was considered fully diagnosed at that time, optimally treated and stabilised. Treatment included a puffer when needed.

5. Dr Dean’s report dated 3 March 2009 acknowledged a diagnosis of asthma with intermittent episodes of shortness of breath.[18]

   [18] Ex1, T10/142.

6. In evidence Ms Searles stated that she uses a puffer when she has problems with asthma.

7. The Tribunal is satisfied that the condition of asthma was fully diagnosed treated and stabilised at the cancellation date. However the evidence does not support a finding of any functional impairment in relation to functions requiring physical exertion and stamina (Impairment Table 1). Accordingly no impairment points can be assigned for the condition of the asthma.

   Mental health condition

8. Subsequent to the cancellation date Ms Searles embarked upon treatment for mental health problems. The major part of the engagement commenced in March 2019 with the development of a mental health care plan.[19] Ms Searles received assistance from Adelaide Medical Solutions (Headspace) for problems relating to depression and anxiety. As described earlier, a mental health social worker, Ms Fitzgerald, gave evidence about her interactions with Ms Searles.

   [19] Ex9.

9. However, the evidence about mental health function and treatment relates largely to developments after the cancellation date. The Tribunal is not satisfied that a mental health condition was fully diagnosed, treated and stabilised at the cancellation date. Accordingly impairment points cannot be assigned to that condition.

   CONTINUING INABILITY TO WORK

10. The next issue for determination is whether Ms Searles had a continuing inability to work as required by s 94(1)(c)(i)of the Act.

11. Section 94 (2) of the Act defines a continuing inability to work as follows:

    Continuing inability to work

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b) in all cases--either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    Note:     For work see subsection (5).

12. In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded. They include:

    (a)any impairments that have not been assigned a rating under the impairment tables: Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500.

    (b)the availability of work in the person’s locally accessible labour market: s 94(3)(b);

    (c)the availability to the person of a training activity: s 94(3)(b));

    (d)the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment: Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451);

    (e)the person’s preferences regarding the type of work or training: Crossland and Secretary, Department of Family and Community Services [2004] AAT 864 [34]);

    (f)the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities: Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and

    (g)the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517).

13. The JCA report dated 5 September 2018 recorded Ms Searles’ base line work capacity at 0 – 7 hours per week, together with capacity for work within two years with intervention also at 15 – 22 hours per week.[20]

    [20]  Ex1, T9/114.

14. In relation to the baseline work capacity, the JCA report noted that Ms Searles’ lumbar and cervical spinal dysfunctions affect her capacity to both engage in and persist with work-related activities. The report noted the comment of her general medical practitioner confirming her inability to complete activities of daily living with any reliability or to engage in work. The report went on to say that the impacts upon her work capacity include:[21] “chronic pain, stiffness, and these limit endurance, walking and postural tolerances, manual handling.”

    [21]  Ex1, T9/122.

15. In relation to a capacity for work within two years, the JCA report suggested that examples of possible, suitable work would include light process work which involves no bending and no lifting. Those limitations would seem to be quite restrictive in any potential form of light process work. In any event, the JCA report noted that improvement of work capacity to 15 – 22 hours per week might be assisted by support through disability employment services. There would be a need to identify:[22] – “medically suitable jobs, exploring retraining, assisting with work placement and providing post placement support.”

    [22]  Ex1 T9/123.

16. The JCA report concluded that this forecast was based on moderate impairment only of spinal function. However the Tribunal finds that the impairment is severe. Based on all of the evidence, and noting that she has not participated in the non-domestic workplace for almost 30 years, the Tribunal considers that Ms Searles’ spinal impairment has led to a loss of functional capacity which adversely affects her ability to work at least 15 hours per week.

17. Similar to her inability to work, it is clear from the evidence that Ms Searles would have extreme difficulty undertaking and maintaining a training activity. Her impairment is sufficient to prevent her from undertaking a training activity within the relevant period.

18. It follows that she has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    SUMMARY

19. As noted earlier in these reasons, the Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied. Ms Searles’ condition affecting spinal function was fully diagnosed, fully treated and fully stabilised. The appropriate rating for that condition is 20 points under the Impairment Tables. That is a severe impairment within the meaning of s 94(3B) of the Act .The Tribunal is satisfied that Ms Searles has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

20. This is an application for review of a decision to cancel Ms Searles’ DSP under s 80 of the Act. For the reasons set out above the Tribunal is not satisfied that Ms Searles was not qualified for the DSP at the date of cancellation.

    DECISION

21. The Tribunal sets aside the decision under review.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.....................[sgnd]...............................

Administrative Assistant

Dated 20 March 2020

Date(s) of hearing	20 February 2020
Applicant:	In person
Respondent’s representative	Mr C Visser, Department of Human Services