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

Thornley and Secretary, Department of Social Services (Social services second review) [2015] AATA 621 (21 August 2015)

Division

GENERAL DIVISION

File Number(s)

2014/5883

Re

Barry Thornley

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 21 August 2015

Place Melbourne
The decision under review is affirmed.

..........................[sgd]..............................................
Egon Fice, Senior Member
Catchwords
SOCIAL WELFARE – Pensions, payments and allowances – Disability Support Pension – Impairment assessment – Whether applicant had 20 impairment points – Continuing ability to work – Participation in program of support – Decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) ss 5, 7
Social Security (Administration) Act 1999 (Cth) s 4, sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5, 6
REASONS FOR DECISION
Egon Fice, Senior Member
21 August 2015

Following an unsuccessful application for the Disability Support Pension (DSP) made by Mr Thornley on 21 January 2013, he lodged a second claim for the DSP on 28 March 2014. In a letter dated 15 April 2014 a delegate of the Secretary, Department of Social Services (the Secretary) notified Mr Thornley that his claim was unsuccessful.
On 17 April 2014 Mr Thornley requested a review of the original decision. In a letter dated 30 August 2014, an Authorised Review Officer (ARO) with Centrelink informed Mr Thornley that his claim for the DSP was rejected. On 2 September 2014 Mr Thornley lodged an application seeking review of the ARO decision by the Social Security Appeals Tribunal (SSAT).
On 22 October 2014 the SSAT affirmed the ARO’s decision to reject Mr Thornley’s application for the DSP. Mr Thornley lodged an application to this Tribunal on 12 November 2014 seeking a review of the SSAT decision.
The Secretary accepts that Mr Thornley has the following medical conditions:
(a)a back condition;
(b)a psychiatric condition;
(c)a shoulder condition;
(d)a wrist condition; and
(e)sleep apnoea.
In other words, the Secretary accepts that Mr Thornley suffers a physical, intellectual or psychiatric impairment and accordingly satisfies s. 94(1)(a) of the Social Security Act 1991 (the Social Security Act).
Accordingly, the only issues before me are whether:
(a)Mr Thornley’s incapacities result in an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(b)Mr Thornley has a continuing inability to work.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
There are a number of requirements which an applicant must satisfy before qualifying for the DSP. The statutory provisions relevant to Mr Thornley’s case are as follows (emphasis in original):
94 (1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)     the person has a continuing inability to work;
(ii)    …
94 (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 the 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.
…
94 (3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
Ordinarily, if a person makes a claim for a social security payment and is qualified for the payment on the day on which the claim is made, the person’s start day in relation to the payment is the day on which the claim is made (see sch. 2, cl. 3(1) of the Social Security (Administration) Act 1999 (the Administration Act)). However, if a person does not qualify for the social security payment on the day on which the claim is made, then cl. 4(1) of sch. 2 applies. It provides:
4 (1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
There are two things which arise out of the provisions in cl. 4(1) of sch. 2 of the Administration Act. The first is that the claimant must in fact lodge a claim if he or she wishes to receive the social security payment. The second is that if the claim is lodged before the person qualifies for the social security payment sought, provided the person qualifies within the period of 13 weeks after the day on which that claim is made (the qualifying period), the claimant will not have to lodge a new claim demonstrating he or she qualifies for the social security payment.
Mr Thornley has made a number of claims for the DSP in the past. Those claims were rejected on the grounds that he did not qualify for that payment. The claim Mr Thornley made on 28 March 2014 is the subject of this review. The 13 week qualification period for that claim ended on 27 June 2014. In examining the evidence before me in this matter, I am required base my assessment on his degree of impairment at a date no later than 27 June 2014. In other words, if Mr Thornley cannot satisfy the 20 point test as at that date, he does not qualify for the DSP and he must make a fresh claim. The same limitation applies to an assessment of his ability to work. That is so even if the evidence before me on the hearing of this matter would lead me to find that he now meets the qualification requirements.
MR THORNLEY’S IMPAIRMENT LEVEL
The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations (s. 5). They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Section 6(1) of the Impairment Tables provides that the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person. The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered (s. 6(2)).
Section 6(3) deals with impairment ratings and provides:
(3) An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Whether a condition is permanent is explained in s. 6(4) which provides (emphasis in original):
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The expression appropriately qualified medical practitioner is defined in s. 3 in the following way:
appropriately qualified medical practitioner means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.
Mr Thornley’s medical conditions each need to be examined to determine the degree, if any, of impairment which might result on the application of the Impairment Tables.
Back condition
Mr Thornley has a history of low back pain and left pelvic pain. A CT scan of his lumbar spine done on 18 February 2010 revealed:
Bilateral pars defects at L5 with some anterior slippage of L5 on S1 and degeneration of the lumbosacral disc. Despite this, there is no obvious impingement on the exiting or descending nerve roots at this level. There is also severe facet degeneration at L4/5 bilaterally without any disc protrusion.
Mr Michael Shannon, Orthopaedic Surgeon, examined Mr Thornley on 13 August 2012 for the purposes of a workers compensation claim. Mr Shannon referred to the CT scan done in February 2010 stating that it disclosed a grade II spondylolisthesis of the lumbosacral junction with gross disc degeneration and facet joint arthritis and probable pars interarticularis defects. There was some minor disc bulging at L4 – 5. There was no objective evidence of radiculopathy. In analysing his findings, Mr Shannon said:
At this stage, he has quite reasonable function in his back, although he does have minor spasm [sic] and dysmetria, mainly on lateral flexion.
In a medical report prepared for Centrelink for the purposes of Mr Thornley’s DSP application, his general practitioner, Dr Michael Carroll, diagnosed him with osteoarthritis of lumbar spine, soft tissue strain of the lumbar spine. As far as his back affected his ability to function, Dr Carroll described:
· chronic low back pain, poor endurance, restrictions on lifting, bending, and turning with lift limit 5 kg
· unable to perform prolonged static postures – has lost much physical ability to work
A Job Capacity Assessment Report prepared by a registered occupational therapist on 30 January 2013 recorded Mr Thornley had reduced standing tolerance (10 minutes), reduced physical abilities, sitting reduced (30 minutes) but was able to reach over head height (including hanging washing out). The Job Capacity Assessor (JCA) recommended a rating of 10 impairment points (on Table 4) for this condition. The JCA found that this condition was fully diagnosed, fully treated and fully stabilised.
I also had in evidence two brief reports from physiotherapists, Mr David Cummins and Ms Tanya Deans. Mr Cummins said Mr Thornley had been attending the medical centre where he practices for the previous four years. Ms Deans said Mr Thornley had attended for hydrotherapy between July 2012 and January 2013 on a twice weekly basis.
Dr Carroll provided three recent reports in which he referred to Mr Thornley’s lumbar spine. They are dated 12 April 2015, 28 April 2015 and 21 June 2015. Other than stating that Mr Thornley had attended him since 26 May 2004 and on many occasions over time, Dr Carroll essentially repeated what he had previously said about Mr Thornley’s lumbar spine condition. In his letter dated 28 April 2015 Dr Carroll described Mr Thornley as having significant impairment with a rating of 20 points (which I believe was an overall assessment including his lumbar spine, depression/anxiety, left shoulder bursitis with arthritis and bilateral wrist pain) and no work capacity. He was also of the opinion that Mr Thornley’s lower back condition was stable and would not improve in time. In his report dated 21 June 2015 Dr Carroll expressed the opinion that Mr Thornley’s lower back condition attracted 10 impairment points.
I had in evidence a report dated 19 November 2014 provided by Dr Bruce Love, a consultant orthopaedic surgeon. While I am mindful of the fact that this examination occurred outside the qualification period which ended on 27 June 2014, it does raise a number of significant matters which relate to the qualification period.
The first is that in the history Mr Thornley gave to Dr Love, he described the work injury he suffered to his back on 28 January 2010 when setting up a road works site. This injury caused the sudden onset of pain in his lower back and it resulted in Mr Thornley having two or three months away from work due to the pain. Mr Thornley then apparently told Dr Love that his back condition was aggravated by a further event which occurred in 2012 when he was lifting 20 kg sandbags. Despite that, although I had evidence that Mr Thornley was examined on 20 December 2012 by Dr Derek Davey, his then general practitioner, the Certificate of Capacity issued by Dr Davey left blank the part of that Certificate where he was required to provide details of any aggravation or recurrence of a previous injury or a degenerative component. Furthermore, the Certificate states that Mr Thornley was expected to be fit for normal duties from 20 December 2012, which was the date he was examined by Dr Davey, and although not 100% recovered, said that he could work more than he was working at the time on restricted duties.
The questions which arise from this evidence are how it was that Mr Thornley was lifting 20 kg sandbags at a time when he was said to be recovering from a workplace injury combined with degenerative changes; and why was it that Dr Davey considered him to be fit for normal duties. Those questions are compounded by a further statement made in Dr Love’s report where he said treatment was commenced with physiotherapy (after the 2012 incident) and certificates were provided indicating that he was not fit for normal duties.
In a medical report prepared for a DSP application lodged by Mr Thornley on 21 January 2013, Dr Carroll referred to Mr Thornley’s lower back condition as being osteoarthritis of the lumbar spine with a soft tissue strain. Regarding the impact of his condition on his ability to function, Dr Carroll referred to chronic lower back pain, poor endurance, and restrictions on lifting, where he referred to a limit of 5 kg. It also appears that Dr Carroll provided a report dated 15 March 2013 in support of that application. For unexplained reasons, the report is only about Mr Thornley’s psychological condition and it makes no mention whatsoever of his lower back.
Dr Carroll provided a further detailed report dated 11 November 2013 which appears to have been prepared for the purposes of Mr Thornley’s first application to the SSAT which was heard on 15 November 2013. Regarding Mr Thornley’s lumbar spine, Dr Carroll reported:
Mr Thornley has suffered from years of work related low back pain and limitation of function consistent with osteoarthritis of his lumbar spine. He has had significant amounts of physiotherapy, acupuncture and analgesics. On examination he has tenderness of the lumbar spine and significantly reduced range of movement of the lumbar spine. I believe there is a moderate functional impact on his activities involving spinal function. I believe this condition is permanent.
Dr Carroll provided a further report dated 16 January 2014 in which, regarding his lower back condition, he simply referred to his report of 11 November 2014 (presumably intended to be the 11 November 2013 report).
In addition, Dr Carroll provided the three reports I have referred to above [21]. Despite all of these reports being in evidence, there is no evidence whatsoever before me indicating Mr Thornley had been referred to a specialist for treatment of his lower back condition. In fact the only specialist report which I have, that of Dr Love, states that Mr Thornley has been treated with physiotherapy, hydrotherapy, injections into the left shoulder and injections into the lower back but none of these treatments have made a meaningful difference to him. Dr Love also said Mr Thornley had consulted numerous specialists regarding his back but none wished to offer him surgical treatment.
The only evidence I have of treatment for his lower back condition is that described by Dr Carroll. That is, he has had physiotherapy and hydrotherapy and uses analgesics for pain. Although Dr Love said Mr Thornley had been treated with an injection into his lower back, I can find no evidence of such an injection in any of the reports prepared by Dr Carroll. Dr Carroll does mention that Mr Thornley had a steroid injection on one occasion in his left shoulder, but not into his lower back.
Nevertheless, Dr Love said that he was not of the opinion that there was a surgical solution to Mr Thornley’s lumbar spine condition and in his opinion, the current treatment he was receiving was appropriate. He did not suggest any further treatment. Dr Love was also of the opinion that regarding Mr Thornley’s lumbar spine, the prognosis was poor and that there was little likelihood that there would be any change in his condition in the foreseeable future. He said Mr Thornley’s current back condition should be considered stable.
I find that Mr Thornley’s back condition, particularly his lumbar spine, is fully diagnosed, treated and stabilised. It does cause Mr Thornley to have a functional impairment when bending or turning his back, trunk or neck. Therefore, an impairment rating can be assigned under Table 4 of the Impairment Tables.
I had in evidence a number of Job Capacity Assessment reports, the most recent of which was done on 14 April 2014. As that is within 13 weeks of Mr Thornley lodging his claim for the DSP, it is the report which I should consider when determining his work capacity.
The JCA reported that Mr Thornley was able to stand for 10 minutes, sit for up to 30 minutes and was able to lean forward and pick up light objects from a desk. He apparently reported being able to walk for 15 minutes and that he was independent with chores, requiring no assistance around the home and was able to drive a car. Mr Thornley reported that he could not walk up or down stairs and that his ability to perform overhead tasks was restricted by his shoulder condition rather than his back. He said he could lift up to 5 kg. While some of the evidence regarding his incapacity is self-reported, I did have evidence from Mr Thornley’s treating doctor, Dr Carroll. In his 11 November 2013 report Dr Carroll said that on examination, Mr Thornley had tenderness of the lumbar spine and a significantly reduced range of movement. In his opinion, there was a moderate functional impact on activities involving spinal function. That description of Mr Thornley’s incapacity is consistent with the JCA report. The appropriate point assignment in the case of moderate functional impact on activities involving spinal function is 10.
Shoulder condition

Dr P Carman reported on an x-ray taken of Mr Thornley’s left shoulder on 29 April 2011. Dr Carman said:
The glenohumeral joint is essentially normal in appearance. There is some minor irregularity in the greater tuberosity suggesting some minor degeneration of the rotator cuff. No soft tissue calcification or focal bony abnormality.
Dr Carman also reported on an ultrasound on Mr Thornley’s left shoulder also taken on 29 April 2011. Significantly, Dr Carman said:
There is a thickened subacromial bursa which impinges at 45 degrees of arm abduction with recurrent symptoms. The findings are those of subacromial bursitis with impingement.
In his report of 16 August 2012 Mr Shannon said that Mr Thornley had mild restriction of shoulder movements without definite evidence of impingement. He referred to the x-ray taken on 29 April 2011 and noted that Mr Thornley had an injection into the subacromial bursa on 3 May 2011. Apparently Mr Thornley reported significant improvement in his symptoms following the injection but he still had mild restriction of movement.
In his report of 11 November 2013 Dr Carroll recorded that Mr Thornley suffered from left shoulder pain intermittently over the preceding eight years. He was also of the opinion that his upper limb and left shoulder condition combined causing him mild functional impact with respect to domestic or work activities.
I had in evidence a report from Mr Nicholas Williams, a physiotherapist, dated 28 November 2014. While this report was made outside the qualification period, it may have some relevance for Mr Thornley’s shoulder condition during the qualification period. That is because Mr Williams said that he had seen Mr Thornley for a number of sessions of physiotherapy for his intermittent left shoulder pain. He reported that through an extensive rehabilitation process, Mr Thornley’s shoulder pain had settled significantly and had now stabilised. He did not discount the possibility of flare-ups in the future.
In his report dated 19 November 2014, which is also outside the qualification period, Dr Love recorded Mr Thornley telling him that he had pain in his left shoulder with lifting tasks. Dr Love also said:
With respect to the left shoulder he has moderate loss of function due to pain but there is no gross restriction of movement. Consideration for a rotator cuff decompression could be given but the prognosis would be guarded.
That statement from Dr Love raises a question regarding whether Mr Thornley’s left shoulder has been fully treated and is therefore fully stabilised. Before an impairment rating can be assigned to an impairment, the impairment must be regarded as being permanent (s. 6(3) of the Impairment Tables). The condition is permanent if, amongst other things, it has been fully treated and fully stabilised (s. 6(4)).
The expression fully stabilised is defined in s. 6(6) of the Impairment Tables as follows:
(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…
The expression reasonable treatment is defined s. 6(7) as follows:
(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.
The very brief comment made by Dr Love regarding rotator cuff decompression probably needs to be considered more carefully. While Dr Love has indicated that prognosis would be guarded, he does not state why that might be the case. In any event, I do not have evidence from an appropriately qualified medical practitioner where detailed consideration to a rotator cuff decompression has been given. It seems to me that before I can conclude whether such treatment is reasonable, I need a fulsome considered opinion, probably from an orthopaedic surgeon. In those circumstances, I am unable to find that his left shoulder condition has been fully treated and stabilised. I find that an impairment rating cannot be assigned to this condition.
Depression
Dr Paul Kornan, a psychiatrist, examined Mr Thornley for the purpose of his workers’ compensation claim. He provided a report dated 15 August 2012. Relevantly, Dr Kornan said this about Mr Thornley’s mental state:
There was evidence of some mild anxiety, and mild depression, but he was certainly not agitated, or deeply sad.… He was someone who, whilst he had some anxiety, and depression, did not appear agitated, or deeply sad. There were no psychotic features.
Later in his report Dr Kornan referred to Mr Thornley’s psychiatric health condition as being only a very mild to mild degree.
A clinical psychologist, Mr Brett Jones, provided a medical report for the purposes of Mr Thornley’s DSP application on 27 November 2014, which is outside the qualification period. Nevertheless, Mr Thornley told Mr Jones that his current depressive episode was precipitated by a workplace injury to his lower back in 2010 and other subsequent workplace injuries and stressors he experienced from 2010 to 2013. Mr Jones diagnosed Mr Thornley as having major depressive disorder. Mr Jones reported that Mr Thornley had undergone psychotherapy commencing on 1 March 2012. He was of the opinion that Mr Thornley’s condition had not improved since 2010 despite anti-depressants and psychotherapy.
Mr Jones also described the following future/planned treatment for Mr Thornley: cognitive behaviour therapy and mindfulness for the foreseeable future.
Given the above reports, I find that Mr Thornley does suffer from anxiety and depression. These conditions have been appropriately diagnosed by a psychiatrist and a clinical psychologist as required under the Impairment Tables. While Mr Jones’ report stating future/planned treatment for Mr Thornley might indicate that his condition is not fully treated and fully stabilised, given that the treatment he envisaged would continue for the foreseeable future, I find that the proposed treatment is unlikely to result in significant functional improvement which would enable Mr Thornley to undertake work in the next two years. That treatment appears to be directed to maintaining his current level of functioning. Regarding his inability to function, Mr Jones said Mr Thornley reported experiencing:
Low energy, anxiety, poor sleep, memory and concentration problems, suicidal thoughts, low mood, low self-esteem, social withdrawal.
The JCA who provided a Job Capacity Assessment Report on 14 April 2014 recorded that there was a mild functional impact on activities involving the mental health function. She said that Mr Thornley had mild difficulties with interpersonal relationships, concentration and task completion, behaviour, planning and decision-making. Mr Thornley was able to care for himself and no assistance, supervision or support was required. Accordingly, I find that the appropriate impairment rating for this condition is 5 points on Table 5.
Wrist condition
An x-ray and ultrasound of both of Mr Thornley’s wrists was taken on 3 June 2011. Apparently Mr Thornley had complained of generalised soreness. Those radiological examinations revealed no specific pathology or any abnormality.
On examination in August 2012, Mr Shannon reported that Mr Thornley had normal range of movement in both wrists and normal range of forearm rotation. His diagnosis was soft tissue injury in both wrists.
According to Dr Love, there was no obvious diagnosis available with respect to Mr Thornley’s wrist pain.
Given the very limited evidence regarding this condition, I must find that the condition is not fully diagnosed, treated and stabilised. Therefore, no impairment points can be assigned. There was no evidence of any impairment resulting from that condition.
Sleep apnoea
In his medical report dated 15 January 2013, Dr Carroll diagnosed Mr Thornley as having mild obstructive sleep apnoea. This diagnosis was confirmed by Dr Jeremy Cailes, a thoracic and sleep physician, in a brief report dated 8 April 2014. Dr Cailes asked Mr Thornley to see him again with his current welfare cards to see whether he qualified for the government CPAP pilot program.
I had no other evidence before me regarding this condition. Plainly, I have insufficient evidence to determine whether Mr Thornley’s sleep apnoea is fully treated or stabilised. Therefore, it is not possible to assign impairment points under the Impairment Tables to this incapacity, if there is an incapacity resulting from sleep apnoea.
TOTAL IMPAIRMENT RATING
I have found that Mr Thornley’s total impairment rating is 15 points. Therefore, he does not meet the qualification criterion for the DSP set out in s. 94(1)(b) of the Social Security Act. In other words, Mr Thornley is not, on this criterion alone, qualified to receive the DSP. However, in the event that I am wrong about the correct assignment of points under the Impairment Tables, I shall examine whether Mr Thornley satisfies the criterion in
s. 94(1)(c) of the Social Security Act, that is, whether he has a continuing inability to work.
CONTINUING INABILITY TO WORK
Where a person does not have a severe impairment, that is an impairment which attracts at least 20 points on a single Impairment Table, that person is considered to have a continuing inability to work only if (s. 94(2) of the Social Security Act):
(a)they have actively participated in a program of support which was wholly or partly funded by the Commonwealth; and
(b)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years; and
(c)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years; or if the impairment does not prevent the person from undertaking a training activity – the activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years.
For the purposes of the Social Security Act, work means work which is for at least 15 hours per week on wages that are at or above the relevant minimum wage and which exists in Australia, even if it is not available within the person’s locally accessible labour market (s 94(5)).
The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The current instrument is dated 15 December 2014. The requirements for active participation as set out in s. 7 which, relevantly, provides:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
Subsections (3), (4) and (5) deal with the circumstances where a person completes the entire program of support in less than 18 months; the program of support was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program; and although the person was participating in a program of support at the end of the relevant period, they are prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program.
The expression relevant period is a defined term and, in relation to a person who does not have a severe impairment, means the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person (s. 5 of the POS Determination).
Mr A Shelley, who appeared on behalf of the Secretary, explained that the idea behind the POS requirement is that persons who are not severely impaired but who have mild or moderate impairments in a number of areas of function are not immediately placed on the disability support pension. A person will not have a continuing inability to work and will not qualify for the DSP until there has been appropriate intervention to determine whether they can be retrained and assisted into a more suitable form of employment, having regard to their impairments. I accept that to be an accurate statement of the purpose underlying the POS.
Therefore, even if I were to find that Mr Thornley’s stated medical conditions attracted a total of at least 20 points, it is clear that he does not attract 20 points on a single impairment table. Therefore, before it can be established that he has a continuing inability to work, he must have completed a POS. Furthermore, that POS must have been completed in the 36 months prior to the lodgement of his claim, which was on 28 March 2014.
I had in evidence a table setting out the appointments Mr Thornley had attended with Matchworks, an entity authorised by the Commonwealth to provide a program of support. His first contact with Matchworks was on 14 January 2013 and his final attendance, prior to his lodgement of a claim for the DSP, occurred on 20 March 2014. That is a period of 14 months. Although I accept Mr Thornley continued to attend Matchworks at least up until 22 September 2014, those attendances after 28 March 2014 are outside the relevant period. I did not have any evidence that the exceptions to the 18 month period of active participation set out in ss. 5(3), 5(4) and 5(5) of the POS Determination applied to him.
It necessarily follows that because Mr Thornley does not satisfy the active participation in a POS for a period of at least 18 months prior to the lodgement of his claim for the DSP, he cannot establish that he has a continuing inability to work as that expression is defined in the Social Security Act.
CONCLUSION
I have found that Mr Thornley should only be allocated a total of 15 impairment points on the Impairment Tables. He should be allocated 10 points on Table 4 dealing with Spinal Function and 5 points on Table 5 dealing with Mental Health Function. Therefore, I find that he does not satisfy the requirement in s. 94(1)(b) of the Social Security Act which is a mandatory qualification for the DSP. In the event that I am wrong about that, and the correct allocation of points is 20 or more, I have also examined the requirement of an applicant for the DSP to have a continuing inability to work.
I have found that Mr Thornley does not satisfy the requirements set out in s. 94(1)(c)(i) because he does not have a continuing inability to work. He does not have a severe impairment within the meaning of s. 94(3B) and is therefore required to have completed a POS. That requires active participation in a POS for a period of at least 18 months in the three years preceding lodgement of a claim for the DSP. The exceptions to that requirement do not apply to Mr Thornley. Therefore, I find that he does not satisfy this qualification requirement for the DSP.
I find that the decision made by the SSAT on 22 October 2014 was correct. I affirm that decision.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
................................[sgd]........................................
Associate
Dated 21 August 2015

Date of hearing 3 August 2015

Applicant In person

Advocate for the Respondent Mr A Shelley

Solicitors for the Respondent Sparke Helmore

[2015] AATA 621

21 August 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Continuing Inability to Work

Impairment Assessment

Active Participation in a Program of Support

Division	GENERAL DIVISION
File Number(s)	2014/5883
Re	Barry Thornley
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	21 August 2015
Place	Melbourne

Date of hearing	3 August 2015
Applicant	In person
Advocate for the Respondent	Mr A Shelley
Solicitors for the Respondent	Sparke Helmore