Smith and Secretary, Department of Social Services (Social services second review)
[2017] AATA 529
•21 April 2017
Smith and Secretary, Department of Social Services (Social services second review) [2017] AATA 529 (21 April 2017)
Division:GENERAL DIVISION
File Number(s): 2016/0536
Re:Terrence Smith
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:21 April 2017
Place:Canberra
The decision under review is affirmed.
...........................[sgd].............................................
Mr S. Webb, Member
SOCIAL SECURITY – disability support pension claim – impairments resulting from multiple conditions – some conditions not ‘permanent’ – meaning of ‘fully treated’ and ‘fully stabilised’ - rating of impairments resulting from opiate dependence, Hepatitis C, spine condition – assessment of physical and cognitive functional impacts under Impairment Tables – consideration of descriptors of cognitive impairment in Tables 5, 6, 7 and 10 - same impairment cannot be rated twice – no ‘severe impairment’ – assessment of continuing inability to work – meaning of ‘program of support’ - requirement for evidence – quarterly Centrelink interviews – placement referrals to Job Service providers – effect of suspension or exemption from compulsory participation – requirement for active participation in a ‘program of support’ not met – decision affirmed
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
21 April 2017
Terrence Smith suffers from medical conditions that affect his ability to function. Since 2011, he has lodged several claims for disability support pension (DSP), without success.[1] The DSP claim he lodged on 30 October 2014[2] is the subject of these proceedings. The decision to reject this claim has been affirmed by previous decision makers, and on review. Mr Smith has applied for further review.
[1] Mr Smith was granted DSP on 20 March 2013, but this decision was overturned on review. Relevant facts are set out in Re Smith and Secretary, Department of Social Security [2014] AATA 379 at [3]-[12].
[2] T35.
The application was listed for hearing on 25 October 2016. On the day, after some delay, Mr Smith appeared by telephone. He told me that he was not ready or able to proceed - he was unwell and he had not received a listing notice for the hearing. After discussion with the Secretary’s representative, I decided to adjourn the hearing to another date and issue orders requiring additional materials to be placed before the Tribunal.
Both parties provided additional materials and written submissions. The application was listed for hearing on 20 January 2017.
The Tribunal contacted Mr Smith on 18 January 2017 to confirm the hearing arrangements. I understand that he was amenable to this and he did not intend to call any witnesses. On 19 January 2017, Mr Smith telephoned the Tribunal requesting an adjournment of the hearing. He asserted that he did not receive a listing notice for the hearing and he was not ready to proceed. With his agreement, a telephone directions hearing was set down to address this application later that day.
The Tribunal file reveals that, on 12 December 2016, the Tribunal sent Mr Smith a listing notice for the hearing. This was sent by registered post to his last notified address. The Australia Post tracking records show that several attempts were made to deliver this registered item to Mr Smith’s address, without success. Ultimately, the listing notice was returned to the Tribunal.
The Tribunal telephoned Mr Smith at the agreed time set down for the directions hearing, but he did not answer his telephone. After several unsuccessful attempts to contact him using the telephone numbers he provided, I determined that the listed hearing would proceed.
Mr Smith attended the hearing by telephone and gave oral evidence.
At hearing, Mr Smith told me that he wanted a further week to prepare, as he was not ready to proceed and he would be disadvantaged if required to do so.
I rejected his application for more time, but issued orders allowing the parties to put on further materials and written submissions after the hearing. To my mind, there is little utility in further delaying the hearing in this application. Mr Smith has been aware since 20 October 2016 that the hearing would be relisted. He has been given adequate opportunity to provide the Tribunal with documents and written submissions responding to issues raised by the Secretary, and he has done so. I am satisfied that Mr Smith has had a reasonable and adequate opportunity to prepare and present his case, and this will be assisted by allowing him time to bring forward any further documents.
Issues
The overarching issue for determination is whether Mr Smith’s 30 October 2014 DSP claim can be granted. This will be so if he satisfies the qualification criteria for DSP at the relevant time. The relevant time is the day on which he lodged his claim (30 October 2014) and the period of 13 weeks thereafter, ending on 30 January 2015 (the qualification period). Should Mr Smith not meet the criteria within the qualification period, DSP is not payable and his claim must fail.
The qualification criteria for DSP are set out in s 94 of the Social Security Act 1991 (the Act). There are three main criteria –
(a)a physical, intellectual or psychiatric impairment;
(b)the impairment or impairments attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination); and
(c)a continuing inability to work 15 or more hours per week.
Impairment
In his DSP claim, Mr Smith referred to “Back injuries, Chronic IA Hep C, Cellulitis, Depression”.[3]
[3] T35 folio 210.
The Secretary concedes that the requirements of s 94(1)(a) are met as, during the qualification period, Mr Smith had impairments resulting from a spinal condition, opiate addiction, hepatitis C, anxiety and depression, reflux, migraine, an eye condition and haemochromatosis.
Considering the available medical evidence, and the contemporaneous report of Dr Cudmore, general practitioner, in particular,[4] I am satisfied that Mr Smith had the following impairments during the qualification period –
(a)reduced spinal function as a result of degenerative retrolisthesis with a disc protrusion at the L5/S1 level and a broad-based disc protrusion at the L4/5 level with radiculopathy in the right lower limb;
(b)cognitive impairment secondary to opiate dependence and drug use;
(c)hepatic damage from chronic hepatitis C infection; and
(d)impaired mental health function resulting from depression.
[4] T33.
It follows that the first qualification criterion for DSP in s 94(1)(a) of the Act is satisfied.
Mr Smith asserts that other conditions, including a right hand injury, Hepatitis A, Hepatitis B, migraine, gastro-oesophageal reflux disease, haemochromatosis and an eye condition, caused impairment during the qualification period.
Mr Smith’s medical history is summarised by Dr Ashrafi, a general practitioner, in a referral dated 2 September 2013,[5] and in Job Capacity Assessment reports over an extended period.[6] As can be seen, these materials lend some support to Mr Smith’s assertions in respect of medical conditions that afflicted him over time. Nevertheless, in order to address his 30 October 2014 DSP claim, the sharp focus of this review centres on impairments that affected his ability to function during the qualification period. To the extent that Mr Smith had other impairments during this period, I will address them below.
[5] T22 folio 152.
[6] See T27 folios 167-170, T36 folios 227-230, and T43 folios 294-298, for example.
Mr Smith referred to other conditions, including a cellulitis infection in his left forearm, which occurred outside the qualification period. There are references to him having a toxic brain injury, but there is not sufficient material to make any such finding with reference to the qualification period.
Impairment rating
In order to meet the second qualification criterion for DSP in s 94(1)(b) of the Act, Mr Smith’s impairments during the relevant period must attract a rating of 20 or more points under the Impairment Tables set out in the Impairment Determination.
The Impairment Determination is a legislative instrument that sets out rules that must be followed. Under s 6, for a rating to be assigned in respect of an impairment, the impairment must result from a ‘permanent’ condition and it must be likely to persist for at least 2 years. For a condition to be ‘permanent’, it must be ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’. Under s 10(5) and (6), a ‘common or combined impairment’ resulting from two or more ‘permanent’ conditions cannot be assigned more than one rating under the Impairment Tables.
The Impairment Tables are function based. They describe functional activities, abilities, symptoms and limitations. Section 5(3) of the Impairment Determination provides guidance about the scaling system and descriptors used in the Tables –
5(3) In the Tables:
(a)subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and
(b)the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the number paragraphs below it, if any; and
(c)the introduction to each Table sets out further rules with which to apply the Tables and rate an impairment.
Under s 3 –
condition means a medical condition.
descriptor means the information set out under the column headed “Descriptors” in each Table, describing the level of functional impact resulting from a permanent condition.
impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
From this it follows that the ‘descriptors’ in each Table are measures of the functional impact of an impairment – they are examples that assist determination of the rating that may be assigned to an impairment and, in the language of s 11(1)(c), they are ‘the descriptors for that level of impairment’.
Guidance about determining when a descriptor applies is provided in 11(3) –
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Thus, for the purposes of s 94(1)(b), three questions arise –
(a)Does each impairment under s 94(1)(a) result from a ‘permanent’ medical condition and is the impairment likely to persist for more than 2 years from the date of claim or the qualification period?
(b)If so, does the impairment cause functional loss and, if so, which Impairment Table applies?
(c)What is the functional impact of the impairment and what rating should be applied?
With regard to this latter point, it is germane to recall what Bromberg J said in Negri v Secretary, Department of Social Services[7] at [39] to [46], including at [44] –
“The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact—no, mild, moderate, severe, or extreme—applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.”
[7] [2016] FCA 879.
Spine
Mr Smith’s spine condition was fully diagnosed when he claimed DSP on 30 October 2014.
The Secretary argues that, because Mr Smith had not obtained surgical assessment and treatment, his spinal condition was not ‘fully treated’ and ‘fully stabilised’ during the qualification period and, for this reason, it cannot be considered ‘permanent’. There are two difficulties in this reasoning, however.
Firstly, the Secretary’s argument assumes a narrow construction of s 6(5) such that, where a treatment option exists for a medical condition and that treatment has not been undertaken, the medical condition cannot be considered as ‘fully treated’. But s 6(5) does not proceed on a test of that kind. It requires consideration of treatment and rehabilitation that has been obtained, as well as treatment that is continuing or planned within 2 years. Plainly enough, this provision allows some latitude to take account of particular circumstances, such that a chronic medical condition of long-standing may be accepted as ‘fully treated’ even though treatment may be continuing or planned within 2 years should the evidence support such a finding in the particular circumstances.
It is commonplace for chronic disabling medical conditions to require ongoing treatment of various kinds to alleviate symptoms, to slow progress or to ameliorate impairment, albeit without expectation of a cure or a significant improvement in function. It would be rather odd if continuing treatment in such circumstances necessarily precludes the chronic condition from being taken to be ‘fully treated’ under s 6(5) and ‘permanent’ for the purposes of s 6(3). I would not construe s 6(5) in that way.
Having regard to the content and language of s 6, as well as to the broader purposes of the Impairment Determination and s 94 of the Act, the section can clearly be understood in its terms. It requires past, continuing and planned treatment to be weighed up in reference to the nature and medical history of the condition that has been diagnosed. Whether or not a medical condition may be taken to be ‘fully treated’ when treatment is continuing or planned is a matter for judgement in the particular circumstances of each case. The possibility of new or additional treatment, alone, is not necessarily determinative.
Secondly, s 6(6) applies when determining if a particular medical condition is ‘fully stabilised’. This should not be confused with the test in respect of treatment under s 6(5). It provides –
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
As can be seen, this section involves findings in respect of three elements: an assessment of ‘reasonable treatment’ for the particular condition; whether treatment of that kind has been undertaken by the person, and if not, whether there is a compelling reason for the person not doing so; and, in either case, whether reasonable treatment “is unlikely to” or “is not expected to” result in significant functional improvement to the specified degree.
Review of the medical documents clearly establishes that Mr Smith’s spinal condition has been chronic for a number of years, in all likelihood since 2006,[8] and it is a progressive or deteriorating condition. I am satisfied that it was chronic during the qualification period. Treatment to that time involved exercises and “pain management”, in the form of Methadone, under supervision of Dr Kammerman and Dr Cudmore.[9] There had not been surgical assessment or treatment.
[8] T33 folio 188.
[9] T12 folio 83; T14 folio 97; T18 folios 142-143; T33 folio 187.
In his 17 October 2014 report, Dr Cudmore noted “Deterioration expected based on recent history and absence of surgical management”.[10] From this it may be accepted that Dr Cudmore expected that surgical treatment might stem further deterioration in Mr Smith’s spine condition. It is not clear whether any significant functional improvement was expected to result from surgical treatment, however, although that possibility remains open. With regard to future treatment, Dr Cudmore reported –
“Potential referral to Dr Mitchell Hansen, Neurosurgeon, if patient is willing to accept surgical management.”[11]
[10] T33 folio 188.
[11] T33 folio 187.
Despite Mr Smith’s apparent willingness to accept surgical management, there is an open question whether surgical treatment might be affected by other chronic conditions he suffers. This is a matter for assessment by a surgeon.
On 24 October 2014, Dr Lewis, a pain management specialist, reported to Dr Alam, general practitioner, and said –
“I ordered an MRI which was reported on 17/09/14 as revealing a broad posterior disc bulge a L4/L5 and a small posterocentral disc protrusion a L5/S1. No significant nerve root compression was seen. In view of this report, which does reveal a disc bulge at L4/L5 and a small disc protrusion at L5/S1, which sites are just in the area where he can experience mild numbness and pain where he feels perhaps something is clicking out, you may like to refer him for orthopaedic opinion.
I was reluctant to do more than prescribe a trial of a Durogesic 25 mcg./Hr patch changed every two days… if he is obtaining worthwhile relief with the patches, I would be aiming to write to you recommending that he is authorised to continue to receive them on a monthly basis, and if you are not happy to be involved with this, then it is futile me proceeding along this path and simply encourage referral for orthopaedic opinion. I have some reservations about possible steroid injection and in any case, an orthopaedic surgeon is well placed to do this if advisable.”
I note that on 27 January 2016, Dr Chennamchetty, a general practitioner, referred Mr Smith to Dr Hansen for neurosurgical opinion and further management.[12] But this referral has not yet produced a surgical assessment – I understand that Mr Smith is on a waiting list to obtain an appointment with Dr Hansen for this purpose.[13] When this might result is not established – the 90 day waiting period specified in the notice issued by the Hunter Valley Regional Hospital is long past.
[12] Exhibit 2.
[13] Exhibit 1, Hunter New England Local Health District letter, 27 September 2016.
Dr Cudmore’s reference to “potential referral” for “surgical management” on 17 October 2014 and Dr Lewis’ 24 October 2014 suggestion to Dr Alam that “you may like to refer him for orthopaedic opinion” are not sufficient to establish that surgical treatment of Mr Smith’s spinal condition was then planned within 2 years. Furthermore, the present materials, including Dr Chennamchetty’s referral letter, are not sufficient to establish that surgical treatment is ‘reasonable treatment’ for this condition. There is no evidence that treatment of this kind can reliably be expected to result in substantial improvement in Mr Smith’s functional capacity, or that treatment of this kind is regularly undertaken with a high success rate and a low risk to the patient.
Mr Smith’s spine condition was reported to be fully treated and fully stabilised in Job Capacity Assessments reported on 2 April 2014[14] and 31 March 2014.[15] I note that earlier Job Capacity Assessment reports on 2 October 2012 and 25 February 2013 referred to a “Chronic pain” condition affecting Mr Smith’s low back which was found to be fully diagnosed, fully treated and fully stabilised at those times.[16]
[14] T27 folio 169.
[15] T26 folio 161.
[16] See T13 folio 90 and T16 folios 130-131.
On 19 February 2015, a Job Capacity Assessment was undertaken and reported by a registered psychologist with contributions from an accredited exercise physiologist and a registered nurse. The Assessor reported that Mr Smith’s spine condition was not fully treated and fully stabilised because –
“the customer has not participated in all reasonable forms of treatment for this condition (eg. pain management clinic, physiotherapy, orthopaedic/neurological surgical review as currently indicated by doctor, and has entered into non-standard treatment of methadone use as pain management, this condition is not considered fully treated/stabilised for the purposes of this current assessment.”[17]
[17] T36 folio 229.
It appears that Mr Smith provided further medical evidence in a further Job Capacity Assessment reported on 16 April 2015. This Assessment concluded that his spine condition was fully diagnosed, fully treated and fully stabilised at that time.[18]
[18] T38 folio 240.
On balance, considering the medical history of Mr Smith’s spinal condition, notwithstanding the possibility of surgical assessment at some point in the future, I am reasonably satisfied that it was ‘fully treated’ and ‘fully stabilised’ during the qualification period.
I note that in previous proceedings in 2014, the evidence placed before the Tribunal was then sufficient to establish that Mr Smith’s spinal condition was fully diagnosed, fully treated and fully stabilised, and permanent.[19] While I am not bound by this decision, which refers to different periods in 2012 and 2013, the present materials do not suggest any different conclusion should be drawn with reference to the qualification period relating to Mr Smith’s 30 October 2014 DSP claim.
[19] T46.
I am satisfied that Mr Smith’s spinal condition was ‘permanent’ during the qualification period and that the resulting impairments were likely to persist for more than two years.
When assessing the impairments resulting from Mr Smith’s spine condition, it is necessary to identify the loss of function and the applicable Impairment Table, noting that the same impairment cannot be rated twice.
On the available evidence, with regard to the qualification period, it is probable that Mr Smith’s spine condition resulted in two functional losses – loss of mobility, and loss of spinal function. Mr Smith’s loss of mobility has two components – reduced capacity to perform activities requiring exertion, and references to “sciatica from time to time”[20] and “radiculopathy right lower limb”[21] suggest impairment of Mr Smith’s lower limb function. There are but few references to functional losses of this kind in the present materials, however, and this makes assessment under Table 3 difficult. To my mind, the functional loss is appropriately assessed in the context of Mr Smith’s reduced function when performing activities requiring physical exertion under Table 1.
[20] T14 folio 96.
[21] T33 folio 187.
Mr Smith’s loss of spinal function is to be assessed under Table 4.
Table 1
On 22 February 2013, well before the qualification period, Dr Kamerman, a general practitioner, reported that Mr Smith was impaired by “Decreased endurance. Decreased ability to sit/stand”[22] as a result of “Low back pain. Decreased flexion some sciatica from time to time moderate to severe”.[23] These impairments were reported in Job Capacity Assessments on 31 March 2014[24] and 2 April 2014.[25] Mr Smith gave evidence that the pain from his back prevents him from walking far (more than a couple of blocks) and doing much by way of household chores or shopping. This is generally consistent with Dr Cudmore’s 17 June 2015 report (well after the qualification period) of reduced mobility.[26]
[22] T14 folio 97
[23] Ibid. folio 96.
[24] T16 folio 130.
[25] T26 folio 161.
[26] T41 folio 285.
Mr Smith’s evidence about using public transport is somewhat contradictory – first, he explained that he would travel to Sydney by train in order to obtain medical treatment, and later he denied being able to use public transport, as the steps and seats were too difficult for him to use. By his own account he is able to walk around a supermarket. This is not consistent with the descriptors at the 10 point ‘moderate impact’ level under Table 1. Even though the functional impact of this impairment falls between the descriptors for mild functional impact at the 5 point level and the descriptors for moderate functional impact at the 10 point level, under s 11(1)(c) the lower rating must be assigned.
It follows that a rating of 5 points under this Table is appropriate.
Table 4
The reports of Dr Cudmore, Dr Kamerman and successive Job Capacity Assessments, to which I have already referred, are sufficient to establish that Mr Smith suffered a loss of motion in his spine, such that during the qualification period, his ability to sit, stand, bend and lift weights was reduced.[27] On 17 October 2014, Dr Cudmore reported that Mr Smith’s spinal impairment had the following impact on his ability to function –
“Patient cannot sit for longer than 10 minutes at a time, cannot meaningfully perform overhead or lifting activity, bending is restricted and patient uses trunk to move head and neck.”[28]
[27] See T33 folio 188 and T14 folio 97.
[28] T33 folio 188.
The impairment descriptors at the 10 and 20 point levels in Table 4 are as follows –
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.
Dr Cudmore’s report that Mr Smith cannot meaningfully perform overhead activities is somewhat ambiguous – what the doctor means by ‘meaningfully’ is not explained. As he was not called to give evidence, this could not be explored or tested. Nevertheless, the implication is that Mr Smith can perform overhead activities to some extent. This suggests some degree of ability to do so, albeit perhaps small or limited. This is consistent with the JCA report on 19 February 2015 that Mr Smith’s spinal impairment “impacts overhead repetitive reaching”. If that is correct, it is consistent with the overhead activity descriptor at the 10 point level, but not with the relevant descriptor at the 20 point level.
Dr Cudmore’s report that Mr Smith uses his trunk to move his head and neck is not consistent with the JCA report on 19 February 2015, which states that Mr Smith “can move neck OK”.[29] On balance, I accept that Mr Smith has difficulty moving his head and neck, but it is not presently established that he is ‘unable’ to do so without moving his trunk. This is consistent with the descriptor at the 10 point level – it is not consistent with the descriptor at the 20 point level.
[29] T36 folio 229.
Dr Cudmore does not report the degree or extent of Mr Smith’s restriction on bending. The JCA report on 19 February 2015 is that Mr Smith “can bend to table but not to ground”.[30] On this evidence, and considering the Job Capacity Assessments reported on 31 March 2014, 2 April 2014 and 16 April 2015, it appears that he was able to bend forward to pick up a light object from a desk or table, albeit that he could not do so at knee height. This is not consistent with the bending descriptor at the 20 point level, but it is consistent with the descriptor at the 10 point level.
[30] Ibid.
Dr Cudmore reported that Mr Smith cannot sit for longer than 10 minutes. But this report is not consistent with the JCA report on 19 February 2015 that Mr Smith “shifted in seat during 20 minute interview”.[31] On this evidence, it appears that Mr Smith may have been able to remain seated for at least 10 minutes. This is not consistent with the sitting descriptor at the 20 point level.
[31] Ibid.
On balance, I am satisfied that Mr Smith’s impairment has a moderate impact on activities involving spinal function, attracting a rating of 10 points under Table 4. The descriptors at the 20 point severe impact level are not made out on the available evidence.
Cognitive impairment secondary to opiate dependence and drug use
Mr Smith’s previous opiate dependency and methadone treatment is well documented in medical reports over a long period.[32] This condition can be accepted as fully diagnosed, treated and stabilised when Mr Smith lodged the DSP claim presently under consideration.
[32] See T4 folio 52, T21 folio 150 and T33 folios 189-191, for example.
The reports of Dr Cudmore[33] and Associate Professor Foy,[34] establish that, during the qualification period, Mr Smith’s drug-related condition resulted in mood and cognitive impairments, including “poor concentration, short term memory impairment, depressed mood, inability to sustain employment”.[35]
[33] T33.
[34] T28 and T29.
[35] T33 folio 190.
While Mr Smith’s mood impairment is to be assessed under Table 5, this is wrapped up with and, on the present evidence, cannot be distinguished from the mental health conditions Dr Cudmore diagnosed in 2012, namely depression and anxiety (see below).[36] As will appear, those conditions were not ‘permanent’ during the qualification period no rating can be assigned.
[36] T25 folio 156.
Mr Smith’s drug use impairment is to be assessed under Table 6 and his cognitive impairment of brain function is to be assessed under Table 7.
The Secretary contends that it is not appropriate to assign a rating under Table 6 and Table 7 for the same functional loss. Impairment to memory or concentration that results from drug-treatment is to be distinguished, so the argument goes, from long-term cognitive or neurological impairment resulting from previous alcohol or drug use.
The descriptors set out in Tables 5 – Mental Health Function, 6 – Functioning related to Alcohol, Drug and Other Substance Use, 7 – Brain Function and 10 – Digestive and Reproductive Function overlap in important ways. This is especially so in respect of impairments involving cognitive functions or processes. Table 5 sets out a graded scale of indicators of mental health impairment, including ‘concentration and task completion’ for example:
·at the 5 point level –
(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.
·at the 10 point level –
(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).
The phrase ‘concentration and task completion’ also appears in Table 6, which applies to impaired functioning related to alcohol, drug and other substance use, for example:
·at the 5 point level –
(d) concentration and task completion;
(a) the person engages in alcohol or illicit drug use and experiences some physical or cognitive effects that carry over into working hours (e.g. poor concentration, lethargy, irritability);or
·at the 10 point level –
(d) concentration and task completion;
(a) the person regularly uses alcohol, drugs or other harmful substances and as a result experiences difficulties performing physical or cognitive tasks;
I should say immediately, that the descriptors exemplify the functional impact of impairment under the rating scale set out in each Table. Each descriptor is to be construed and considered in the context in which it appears in the particular Table. The Secretary argues that same cognitive impairments arising from different conditions or circumstances cannot be assessed twice, under Table 5 and Table 6 for example. To the extent that the impairments are the same, this is correct.
As can be seen, in Table 5, ‘concentration and task completion’ is graded on a scale of task-related difficulty as a measure of mental health impairment, whereas in Table 6, it is graded on a scale of difficulty resulting from substance use behaviour. Even though ‘concentration and task completion’ appears as a functional loss descriptor in each of these Tables, the functional loss described, by which the impact of impairment is to be gauged, is different under each Table - the experience of difficulty performing cognitive tasks as a result of regular illicit drug use under Table 6 is one thing, whereas a person finding it very difficult to concentrate on longer tasks for more than 30 minutes as a result of a mental health impairment under Table 5 is another.
Table 7 applies to brain function. This Table sets out a scale of difficulty (from no difficulty to extreme difficulty) with day to day activities and cognitive processes, including ‘attention and concentration’, for example:
(a)at the 5 point level –
(b) attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.
(b)at the 10 point level –
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
Table 10 applies in respect of digestive and reproductive function. This Table sets out a graded scale of impairment in which the effect on ‘attention and concentration’ is measured by frequency of interruption or reduction, for example:
(a)at the 5 point level –
(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b)at the 10 point level –
(a) the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
As can be seen, while words such as ‘attention and concentration’ appear in Tables 7 and 10, the impairment being measured under each of these Tables has a different character. In Table 7, difficulty concentrating on a specified task, a ‘complex task’ or a ‘task if there are other activities occurring nearby’ for example, is a measure of the functional impact of impaired brain function. Whereas in Table 10, impairment is measured by the frequency with which the person’s attention and concentration on a task are ‘interrupted or reduced by’ symptoms or personal care needs of the specified kind. In this context, it is not impaired ‘attention and concentration’ that is being measured, but the degree to which impaired digestive or reproductive function intrudes upon the person’s attention and concentration upon a task.
To my mind, the cognitive impairment Mr Smith experiences as a result of his past opiate addiction and his continuing use of methadone (albeit as pain-relief treatment that was prescribed in place of opioid analgesics), requires consideration of Table 6 and Table 7.
Considering the applicable descriptors at the 5 point (mild), 10 point (moderate) and 20 point (severe) levels in Table 6, I am satisfied that Mr Smith’s drug use impairment is consistent with a moderate functional impact at the 10 point level. Over many years, and during the qualification period, Mr Smith regularly used drugs. He was under Methadone treatment and in remission. He often had difficulty completing daily tasks as a result of the short and long term effects of this behaviour, and it had detrimental effects on his family and social relationships, frequently causing him difficulty attending appointments and completing tasks.
Under Table 7, functional impact is expressly related to ‘a neurological or cognitive condition’. It can be accepted that Mr Smith has some degree of cognitive impairment as a result of previous alcohol and drug use. It is possible that he has a toxic brain injury. But the available materials do not establish that this was present during the qualification period. It is also possible that Mr Smith’s previous alcohol and drug use resulted in permanent neurological impairment, but this, too, is not presently established by evidence with reference to the qualification period. The present evidence does not establish that Mr Smith’s previous drug use amounts to or resulted in a long-term impairment or a permanent neurological or cognitive condition that can be distinguished from the cognitive impairments associated with his continuing drug use.
That being so, no rating can be assigned under Table 7. The functional losses resulting from Mr Smith’s drug-related impairment are appropriately assessed as moderate under Table 6. This attracts a rating of 10 points.
Hepatic damage
There is no dispute that Mr Smith’s hepatitis C infection and hepatic damage were diagnosed and treated prior to the relevant period.
The reports of Dr Tierney,[37] an infectious disease specialist, Dr Cudmore[38], Associate Professor Foy[39] and Dr Scott,[40] a gastroenterologist, set out past treatment for this condition, as well as treatment barriers and options. On this material, just prior to commencement of the qualification period, there were serious questions about Mr Smith’s fitness to undergo further treatment that was available at the time. On 21 October 2016, however, Dr Scott reported that Mr Smith “is about to commence oral antiviral therapy. It will be taken for 12-24 weeks”.[41] The available materials do not address the efficacy of this new treatment program and the likelihood of significant improvement in Mr Smith’s hepatitis C condition. That being so, it is appropriate to accept, and the Secretary concedes, that Mr Smith’s hepatitis C condition was ‘permanent’ and related impairment was likely to persist for at least two years.
[37] T21.
[38] T33.
[39] T28 and T29.
[40] T32.
[41] Exhibit
It follows that the impairment to Mr Smith’s liver function is to be assessed under Table 10.
There is only scant evidence of Mr Smith’s hepatitis-related impairment. On 26 February 2014, Dr Cudmore reported –
“There are minimal physical symptoms. The major issues are anxiety and depression related to the prognosis and the effects of further prolonged treatment which are constantly present and have been since Mr Smith first consulted me on 15 June 2012.”[42]
[42] T25 folio 155.
On 4 July 2014, Associate Professor Foy reported that Mr Smith’s mental health problems precluded further treatment at that time and said –
“This leaves Mr Smith permanently disabled for the foreseeable future with his hepatitis C, which is unlikely to be treated and even if it were there is no guarantee of success.”[43]
[43] T28 folio 175.
On 26 September 2014, Dr Scott reported that Mr Smith “has only very mildly abnormal liver tests with no evidence of advanced liver disease and things do not appear to be progressing… I do not think his hepatitis C is contributing greatly to his illness”.[44] On 17 October 2014, Dr Cudmore reported that Mr Smith’s chronic hepatitis C infection and hepatic damage were generally well managed and caused minimal or limited impact on Mr Smith’s ability to function.[45]
[44] T32 folio 182.
[45] T33 folio 192.
On 17 June 2015, Dr Cudmore reported that Mr Smith’s Hepatitis C was “asymptomatic” at that time.[46]
[46] T41 folio 287.
I am satisfied on the present materials that impairments resulting from Mr Smith’s hepatitis C condition had a mild or minimal impact on his functional capacity during the qualification period and, for this reason, it is appropriate to assign a rating of 0 points under Table 10.
I note that the Secretary suggests that a rating of 5 impairment points under Table 10 would reflect the fatigue, pain and nausea that Mr Smith suffers as a result of his Hepatitis C condition. The difficulty with this submission is that it is not consistent with the available medical evidence in reference to the qualification period. I accept that Mr Smith was impaired by fatigue, pain and nausea resulting from his hepatitis C condition during the qualification period, but the medical evidence does not support a rating of 5 impairment points under Table 10 at that time.
Notwithstanding this, as will appear, even if a rating of 5 points was to be accepted under Table 10, no different result would be obtained.
Mental health impairment
It is not in dispute that Mr Smith suffered from depression and anxiety during the qualification period. This was first diagnosed by Dr Cudmore on 15 June 2012.[47]
[47] See T25 folio 156.
On 16 August 2013, Dr Tierney reported –
“When last seen in the Tamworth Liver Clinic by our registrar Yamin Oo we were trying to organise a clinical psychology or psychiatry assessment before he has retreatment. This has proved difficult to do and I have asked for Donna the CNC at Tamworth Liver Clinic to refer [Mr Smith] to the Social Worker who normally does our clinical psychologist assessments of patients to see [Mr Smith] for her opinion on his psychiatric well-being. He does seem to have a problem with anxiety rather than depression.”[48]
[48] T21 folio 150.
It is not established that evidence was obtained from a clinical psychologist at that time, and there is no such evidence before the Tribunal. On 26 February 2014, Dr Cudmore reported the following treatment –
“Alprazolam for panic attacks initially and now Diazepam 5mg as required. Past treatment with mirtazapine. Unable to tolerate SSRI antidepressants in the period I have treated him. Psychologist intervention is planned concomitantly with interferon antiviral therapy for HCV.”[49]
[49] Ibid.
The present materials do no establish that the proposed ‘psychologist intervention’ took place. The 4 July 2014 reports of Associate Professor Foy and the 26 September 2014 report of Dr Scott, establish that Mr Smith’s mental health problems precluded further treatment for hepatitis C at that time.
Mr Smith asserts that he was assessed by a clinical psychologist in the context of his participation obligations relating to Newstart Allowance, from which he was exempt, but for quarterly interviews, from 21 April 2011. But the present evidence does not establish that Mr Smith was assessed by a clinical psychologist during or before the relevant period.
It appears that Dr Chenammchetty referred Mr Smith for review by Psychologist Healthwise on 4 February 2016.[50] But this did not go well. Mr Smith attended Healthwise twice and was assessed by Francis Hayes, a mental health clinician. Ms Hayes discharged Mr Smith when “it emerged that [Mr Smith] was seeking a report for Centrelink to assist his case for the Disability Support Pension” and “It was very difficult to tell whether [Mr Smith] wanted counselling or a report”.[51] Ms Hayes also reported that Mr Smith “said he already had a referral to a Psychiatrist who might write such a report”. There is no evidence of Mr Smith being referred to and assessed by a psychiatrist at any time.
[50] Exhibit
[51]
On balance, I am not persuaded, and the present evidence does not establish, that Mr Smith’s mental health conditions were fully treated and fully stabilised during the qualification period. From this it follows that his mental health impairment cannot be assigned a rating under the Impairment Tables.
Other impairments
As I have said, it is possible that Mr Smith suffered from other medical conditions which may have resulted in impairment during the qualification period, including a right hand injury, a cellulitis infection in his left forearm, Hepatitis A, Hepatitis B, migraine, gastro-oesophageal reflux disease, haemochromatosis and an eye condition. But there are only scant references to these conditions in the present materials, and the available evidence is not sufficient to establish the nature or extent of related impairment at that time. On the present materials, which I have carefully considered, even if I accept that each of these conditions was ‘permanent’ during the qualification period and related impairments were likely to persist for at least two years (and no such finding is presently made out), it would not be possible to assign a rating greater than 0 points under the applicable Impairment Tables – there is simply insufficient evidence to support any such assessment.
Furthermore, I note that Mr Smith complained of shortness of breath on exertion, which was investigated with a chest X-ray on 15 July 2013.[52] On 2 September 2013, Dr Ashrafi, a general practitioner, referred Mr Smith for cardiological assessment, noting that “He is complaining of DOE after 500 metres walking in [sic] flat ground which started 4 months ago”.[53] The result of this referral, and the cause of the shortness of breath of which Mr Smith complained in 2013, is not established. On Mr Smith’s evidence, the condition resolved after a few months without treatment. I can go no further with this condition.
[52] T19 folio 148.
[53] T22 folio 152.
Mr Smith complained that, over time, assessors have made inconsistent and even contradictory assessments of his various impairments. Inconsistency of this kind, he argued, is not acceptable and, in his view, it suggests an intention to deny him access to DSP.
About this there is little I can say, other than to point out that each assessor is charged with making a proper assessment on the available materials before that person, and each decision-maker, including this Tribunal, is charged with making the correct or preferable decision on the materials. Some disparity in assessment over time may be expected – this may result from changes in the medical conditions and impairments that afflict Mr Smith, or in the materials placed before decision-makers. Variations in the assessment of Mr Smith’s impairments for reasons of this kind, where a medical condition has progressed in some way, or where further or different medical and other evidence of relevance is provided to a decision-maker, do not suggest a conspiracy to deprive Mr Smith of DSP, as he contends. Changes of these kinds can be seen when comparing this decision with an earlier decision I made when dealing with an earlier application Mr Smith made for review.[54] Many are the cases in which reasonable minds may differ when assessing the same evidence.
[54] T46.
Overall impairment rating
In sum on this point, Mr Smith’s impairments during the qualification period attract an overall rating of 25 points: 5 points each under Table 1, 10 points under Table 4, 10 points under Table 6 or Table 7; and 0 points under Table 10. If the Secretary’s submission of 5 points under Table 10 is accepted, the overall rating would increase to 30 points.
It follows, in either case, that the second qualification criterion set out in s 94(1)(b) of the Act is satisfied.
Continuing inability to work
The third qualification criterion for DSP is set out in s 94(1)(c) of the Act.
In order to satisfy this criterion, it must be established that Mr Smith had a continuing inability to work, applying the tests set out in s 94(2):
(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).
As none of Mr Smith’s impairments attract a rating of 20 points under a single Impairment Table, it follows that he does not have a ‘severe impairment’ for the purposes of s 94(3B) of the Act. He is not a ‘2008-2011 DSP starter’.
This means that, for him to have a ‘continuing inability to work’, s 94(2)(aa), (a) and (b) must be satisfied.
With regard to s 94(2)(aa), it must be established that Mr Smith ‘actively participated in a program of support’. He will be taken to have done so if it is established that he satisfies the requirements set out in the applicable legislative instrument made by the Minister.
The applicable instrument is the Ministerial Determination that was in force when Mr Smith lodged his claim for DSP on 30 October 2014 - the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth) (the Participation Determination).
The requirements for active participation in a program of support are set out in s 5 of the Participation Determination –
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c) subsection (6) is satisfied in relation to the person and the program of support.
Mr Smith argues that he satisfies these tests. He asserts that he attended Peel Valley Training Enterprise in West Tamworth and filled in a number of forms, but nothing came of it. He told me that, later, he was referred to and attended A4E Australia in Tamworth, but he was unwell and “they wrote a letter about me not taking part”. He said that A4E shut down in Tamworth and he was suspended. Ms Smith asserts that throughout all of this he continued to apply for jobs he might be able to do.
Mr Smith complained that he had encountered difficulty obtaining records of his placement and participation in programs of support for the purposes of these proceedings. I allowed additional time for him to obtain relevant materials and provide them to the Tribunal. That additional time has now elapsed. Mr Smith sought a further extension of time and, with the Secretary’s agreement, this was granted to 17 March 2017. But that additional time, too, has now elapsed. Mr Smith has not provided further relevant documents and he has not sought further time in which to do so. It is now time to decide his application, without further ado.
The Secretary contends that Mr Smith did not commence a program of support in the 3 years from 29 October 2011 to 29 October 2014 immediately before he lodged the claim for DSP that is presently under consideration. The Secretary says Mr Smith did not commence a program of support placement activity until 13 July 2015, well after he lodged the particular DSP claim on 30 October 2014.
In the period from 17 August 2010 to 26 June 2015, Mr Smith was referred to an employment assistance placement with Peel Valley Training Enterprise West Tamworth and stream 2, 3 and 4 placements with A4e Australia Tamworth.[55] Whether these placement referrals would meet the definition of ‘program of support’ is not entirely clear – there is very scant material addressing the nature and content of the placements.
[55] T52 folios 368-369 and T53 folio 375.
Whatever the content of the placements may have been, there is a live question whether Mr Smith actively engaged in each referral. The documents in Exhibit 3, Annexures B and C and T52 folios 368 and 375 are evidence that Mr Smith did not commence a program of support under these referrals. I am satisfied that he did not.
In each case, Mr Smith’s placement referrals during the 3 years before he claimed DSPs came to an end –
Description
Site
Start Date
End Date
End Reason
Placement Status
Stream 4
HG30 A4e Australia Tamworth
1/07/2012
26/06/2015
2015 jobactive Transition
EXT
Stream 3
HG30 A4e Australia Tamworth
7/04/2011
1/07/2012
Change in Stream
EXT
Employment Assistance
BSAZ Peel Valley Training Enterprise WEST TAMWORTH
5/04/2011
6/01/2012
Work Cap with Intervention 8-14hrs not contactable
EXT[56]
[56] t52 FOLIO 368.
The code “EXT” means “exited”.[57]
[57] Exhibit 3, Annexure B, page 12.
Even though the word ‘exited’ might suggest removal of Mr Smith from participating in an activity or placement that had commenced, I accept that ‘exited’ in this context refers to curtailment of a referral to a service provider. From this, alone, it cannot be inferred that Mr Smith commenced participating in a program of support as defined by s 94(5).
On 10 January 2014, Centrelink informed Mr Smith that –
“This letter is to advise that Centrelink’s records show that you have Quarterly Participation Requirements with Centrelink since 21st April 2011.
This means that your only requirements are that you are required to attend Quarterly Interviews with Centrelink.
As this is your only requirement you would be suspended from compulsory participation requirements with Job Service Australia providers.”
This is a curious and rather ambiguous letter. It does not appear to be a determination or decision of any kind. The reference to ‘Quarterly Participation Requirements’ is historical and advisory. From this it may be inferred that that purpose of the letter, which is very far from clear, is to convey historical information to Mr Smith. But the author goes further and expresses opinion about Mr Smith’s participation obligations – phrases such as ‘this means’ and ‘as this is’ and ‘you would be’ clearly have an interpretive character.
The final advisory proposition that Mr Smith ‘would be suspended from compulsory participation requirements with Job Service Australia providers’ requires close consideration.
Mr Smith wrote the following notation on the 10 January 2014 Centrelink letter –
Jobs provider A4E, shut down now. Had letter from them, stating Centrelink had suspended me from partacking [sic] in any jobs search activity or programme, as above this letter confirms same.”
There is evidence to support the proposition that Mr Smith was suspended from participation for reasons relating to his health or related impairments. The document in T52 folio 376 is a print out of Centrelink computer records of Mr Smith’s participation suspensions. It sets out the following information –
SUSP SEQ NUM
SUSP FROM DATE
SUSP TO DATE
SUSP REASON
FK CVF REFERRAL DATE
1
20/08/2010
2/09/2010
OSC
17/08/2010
2
21/08/2010
20/03/2013
PCW
17/08/2010
3
3/03/2011
7/4/2011
DSP
17/08/2010
1
5/4/2011
7/4/2011
DSP
17/08/2010
2
6/04/2011
6/01/2012
PCW
5/04/2011
4
29/05/2013
7/08/2013
EEX
17/08/2010
5
9/08/2013
31/03/2014
PCW
17/08/2010
6
1/04/2014
16/04/2015
TRW
17/08/2010
The reason suspension codes have the following meanings –
OSC – Other Special Circumstances Exemption
PCW – Partial Capacity To Work
DSP – Claiming DSP Exemption
EEX – Break in Service
TRW - Temporary Reduced Work Capacity[59]
[59] Exhibit 3, Annexure B, pages 9-10.
Considering this material, it appears that Mr Smith was suspended from participation requirements from 21 August 2010 to 20 March 2013 and from 9 August 2013 to 16 April 2015 by reason of reduced capacity to work. Furthermore, he was suspended from participation requirements due to a break in service from 29 May 2013 to 7 August 2013. This is consistent with Mr Smith’s evidence that A4e ceased operations in Tamworth, and services were then provided from another town.
From this it follows that during the period from 29 October 2011 to 29 October 2014 (3 years prior to claiming DSP on 30 October 2014), the only dates on which Mr Smith was not suspended for any reason are from 21 March 2013 to 28 May 2013 and on 8 August 2013.
The present evidence is not sufficient to establish that Mr Smith commenced participating in a program of support with A4e or any other provider when the compulsion to do so was not suspended. And it is not presently established that he voluntarily participated in a program of support while the requirement for compulsory participation was suspended.
I am not persuaded that Mr Smith’s participation requirement to attend quarterly Centrelink interviews constitutes a ‘program of support’ as defined in s 94(5) of the Act. The requirement to attend quarterly interviews arose when Mr Smith was excused from the Newstart activity test requirements on grounds of ill health. Nevertheless, for these interviews to be treated as a ‘program of support’ as defined in s 94(5), for the purposes of s 94(2)(aa), the factors set out in s 6 of the Participation Determination must be considered –
6. Program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a) was provided by a designated provider; and
(b) was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c) provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and
(d) includes at least one of the following activities;
(i) job search;
(ii) job preparation;
(iii) education and training;
(iv) work experience;
(v) employment;
(vi) return to work;
(vii) vocational or occupational rehabilitation;
(viii) injury management;
(ix) an activity designed to assist the person to return to, maintain or obtain employment.
Furthermore, the purpose of Quarterly Participation Interviews is set out in ‘Operation Blueprint’ documents –
The purpose of the QTI [Quarterly Participation Interviews] is to ensure job seekers remain engaged with the Department of Human Services and are aware of their voluntary participation options. These interviews are conducted every 12 weeks. Job seekers with a QTI requirement are able to complete their reporting verbally in person, in writing (SU19) or via self service options (online accounts, Express Plus Mobile Apps and phone self service) and should be encouraged to do so.”[60]
[60] Exhibit 3, Annexure E, page 17.
Considering the factors set out in s 6 of the Participation Determination, and the other relevant materials to which I have referred above, and the evidence given by Mr Smith, I am not persuaded that the quarterly interviews he attended meet the minimum requirements of a ‘program of support’.
From this it follows that Mr Smith does not meet the requirements for active participation set out in s 5(1) of the Participation Determination for the purposes of s 94(3)(aa) of the Act.
With regard to the period from 29 October 2011 to 29 October 2014, I am satisfied that Mr Smith did not participate in a program of support for at least 18 months. He did not complete a program of support. The present materials do not establish that Mr Smith participated in a program of support that was terminated because he was unable, solely because of his impairments, to improve his capacity to find, gain or remain in employment through continued participation in the program. And it is not presently established that Mr Smith was participating in a program of support on 30 October 2014, when he claimed DSP. For these reasons he does not satisfy the requirements set out in s 5(2), (3), (4) or (5) of the Participation Determination.
This is determinative of his case. He cannot be found to have a ‘continuing inability to work’ for the purposes of s 94(2) and the third criterion which must be satisfied in order to qualify for DSP, set out in s 94(1)(c), is not met.
This means that Mr Smith’s 30 October 2014 DSP claim cannot be granted and the decision under review must be affirmed.
Decision
The decision under review is affirmed.
I certify that the preceding 129 (one hundred and twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
................[sgd]........................................................
Associate
Dated: 21 April 2017
Date(s) of hearing: 20 January 2017 Date final submissions received: 31 March 2017 Applicant: In person Advocate for the Respondent: Ms Nivvy Venkatraman
[58] T24 folio 154.
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