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

[2021] AATA 789

Vicaretti; Secretary, Department of Social Services and (Social services second review) [2021] AATA 789 (25 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3711

Re:Secretary, Department of Social Services

APPLICANT

AndAnnunziata Vicaretti

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:25 March 2021

Place:Sydney

The decision under review is affirmed.

.........................[SGD]...............................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – multiple sclerosis – disability support pension – continuing inability to work – 15 hour work capacity rule – support to work from employer

LEGISLATION

Disability Discrimination Act 1992 (Cth), s 21B.

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security Guide

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

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

25 March 2021

1. Mrs Vicaretti (the Respondent) has been employed as a customer service officer by the IAG Insurance Group (NRMA) for approximately 25 years. She suffers from multiple sclerosis (MS), first diagnosed some 30 years ago. Her health has gradually deteriorated, and she has reduced her working hours accordingly.

2. On 29 October 2019, Mrs Vicaretti applied for Disability Support Pension (DSP) under the Social Security Act 1991 (Cth) (Social Security Act). A claimant for DSP must show a continuing inability to work (CITW). Work is defined to mean not less than 15 hours per week in a normal commercial workplace, and this is sometimes called the ‘15 hour work capacity rule’.[1]

   [1] T-Documents, T3 at 18.

3. Centrelink determined that she was ineligible, because she was working more than 15 hours a week during the relevant application period.[2] Mrs Vicaretti believed that the relevant work limit was 30 hours per week, but nothing turns on this.[3]

   [2] By letter dated 2 March 2020, Centrelink advised Mrs Vicaretti that her DSP had been ‘cancelled’ from 29 October 2019. The reference to ‘cancellation’ was inappropriate because there was nothing to cancel. Refer to T- Document. T12 at 101-102.

   [3] T-Documents, T18 at 125. From 1 July 2012, DSP recipients may continue to receive DSP if they obtain paid work of at least 15 and less than 30 hours per week, as long as they had a CITW at the time of claim.

4. On 31 March 2020, Centrelink’s initial decision was upheld by an Authorised Review Officer (ARO). The ARO was not satisfied, in light of her then working arrangements, that Mrs Vicaretti had a CITW.[4]

   [4] See the Social Security Guide paragraph 1.1.C.330, accessed on 11 March 2021.

5. On 21 May 2021, the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) set aside the ARO’s decision of 31 March 2020, and remitted the matter to Centrelink for reconsideration, with a direction that she had a CITW.

6. On 19 June 2020, the Secretary, Department of Social Services (the Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision made by the AAT1 on 21 May 2020. 

7. The Tribunal heard the matter by telephone on 19 November 2020. 

   MATERIALS BEFORE THE TRIBUNAL

8. The Applicant tendered material pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These included the following key documents:

   ·Medical Report form, dated 17 August 2013, completed by Dr Kal Abraham;[5]

   ·Job Capacity Assessment (JCA) reports, dated 18 November 2013[6] and 31 January 2020;[7]

   ·Letter from Dr Alan McDougall, the Respondent’s specialist neurologist, dated 13 February 2019;[8]

   ·Medical certificate from Dr Hamayoun Siddiqui, dated 18 October 2019;[9]

   ·Medical certificate from Rachel Pisarev and NDIS physiotherapy report, dated 23 October 2019;[10]

   ·Disability Support Pension Medical Eligibility Assessment Recommendation, 07 November 2019;[11]

   ·Government-contracted doctor Disability Medical Assessment, 14 February 2020.[12]

   [5] T-Documents, T4 at 29-39.

   [6] T-Document, T5 at 40-45.

   [7] T-Document, T13 at 103-111.

   [8] T-Document, T6 at 46.

   [9] T-Document, T10 at 97.

   [10] T-Document, T11 at 98-100.

   [11] T-Document, T12 at 101-102.

   [12] T-Document, T14 at 112-113.

9. In addition, I note the following documents provided by the Respondent:

   ·Letter from Dr Alan McDougall, dated 19 August 2020;

   ·Letter from NRMA, dated 19 August 2020.

   RELEVANT LEGISLATION

10. Subsection 94(1) of the Social Security Act provides:

    (1) A person is qualified for disability support pension if:

    (a) the person has a physical, intellectual or psychiatric impairment; and

    (b) he person’s impairment is of 20 points or more under the Impairment Tables; an

    (c) one of the following applies:

    (i) the person has a continuing inability to work;

11. Subsection 94(2) of the Social Security Act provides:

    (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;

    (b) and 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.

12. Subsection 94(5) defines ‘work’ to mean work:

    (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b) that exists in Australia, even if not within the person’s locally accessible labour market.

13. Section 42 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that a person's ‘start day’ in relation to a social security payment (including DSP) is the day worked out in accordance with Schedule 2 to the Administration Act.

14. I also refer to the Social Security Guide, (the Guide), paragraph 3.6.1.12 Qualification for DSP – 15 Hour rule.[13]

    [13] T-Document, T3 at 18.

    ISSUE FOR TRIBUNAL

15. The Applicant accepts that Mrs Vicaretti’s impairment was correctly assessed by the AAT1 under Table 1 – Functions Requiring Physical Exertion and Stamina at 20 points and is thus a ‘severe impairment’ within subsection 94(3B) of the Social Security Act.[14]

    [14] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; Applicant’s Statement of Facts, Issues and Contentions (ASFIC) at [6.2].

16. It is therefore common ground, and the Tribunal so finds, that Mrs Vicaretti suffers from a severe impairment. Therefore, paragraph 94(2)(aa) implies that the requirement to have actively participated in a program of support does not apply to her.

17. The matter was presented to the Tribunal on the basis that the sole issue to determine is whether Mrs Vicaretti had a CITW during the qualification period.

18. Mrs Vicaretti’s date of claim is 29 October 2019, and therefore the qualification period for assessing her entitlement to DSP is the 13 week period from 29 October 2019 until 28 January 2020 inclusive (qualification period). The DSP eligibility criteria contained in section 94 must be satisfied during the qualification period.[15]

    [15] ASFIC at [5.4].

    THE ARO DECISION

19. The ARO rejected the claim on the basis that Mrs Vicaretti’s pay slips showed that she was working for more than 15 hours of work in open employment. It could not therefore be said that she had a CITW. The ARO did not consider that she received a significantly higher level of support than might reasonably be expected in a comparable workplace. The adjustments made to her working conditions by the employer were not extraordinary.

    Mrs Vicaretti is consistently working more than 15 hours per week and although she took a full week’s sick leave in the fortnight she claimed DSP, her regular part time hours have been an ongoing arrangement. Since claiming DSP she has consistently worked 19 hours per week plus overtime and her payslips do not indicate that she takes excessive sick leave.

    The modifications her employer has made to enable her to continue working 19 hours per week are not considered a significantly higher level of support that would be reasonably expected in a comparable workplace. The customer has confirmed that she has now been offered home based work, due to the current coronavirus situation, and she continues to work 19 hours per week.

    As the customer is working more than 15 hours per week in open employment, it cannot be said that she has a continuing inability to work. Therefore, she is not qualified for DSP.[16]

    [16] T-Document, T18 at 127.

20. The ARO Notes contain the following:

    Customer contact details:

    I contacted Mrs Vicaretti via telephone on 24 March 2020. She stated that she understands why her DSP claim was rejected, however, she had been told that you could work up to 30 hours per week and still get DSP, which is why she claimed. She stated that she has continued to work 19 hours per week, and overtime sometimes, but as of now she has been directed to work from home and will continue to work only 19 hours per week…

    Mrs Vicaretti stated that she had previously had a 19 hour per week arrangement in place to work around school hours when her children were younger. As her illness progressed and she became less able, she was allowed to continue working 19 hours per week, rather than the general minimum requirement of 20 hours per week.

    I contacted Mrs Vicaretti again via telephone on 30 March 2020. She stated that they have sit/stand desks at work. Generally staff are required to stand at their workstations and see customers but she is able to sit down at all times. Instead of her walking out to get a customer, someone else walks them to her desk. She stated that she is allowed extra breaks to go to the toilet without losing any pay - it takes her at least 15 minutes each time as the toilet is out in the shopping centre where her office is located and she can’t get there and back quickly.

    Mrs Vicaretti is also allowed to take time off if needed to attend doctor’s appointments and she was the first one to be allowed to work from home as she is considered vulnerable in terms of coronavirus risk. She stated that she feels it is unfair that she is penalised for only 4 hours extra work per week, when if she were to reduce her hours she would lose her job.[17]

    [17] T-Document, T18 at 125.

21. Every effort was made to see whether Mrs Vicaretti was eligible for DSP.

    Record of other investigations

    I contacted the Disabilities Level 2 policy helpdesk to query whether it could be said that Mrs Vicaretti was qualified for DSP as at the date of claim because her payslip from that particular fortnight showed that she worked only 19 hours in the fortnight, and then use Section 96 of the Act to continue paying her DSP as she was working more than 15 hours per week but less than 30.

    The response received was: 

    ‘Of the 6 payslips provided, the customer worked more than 15 hrs pw on 5 of them. On the payslip for the period 29.11.19 to 8.12.19, the customer worked 26.5 regular hours and 6 hours overtime. The customer completed overtime shifts on every payslip. The only payslip where the customer worked less, was the payslip for the fortnight when the customer lodged the claim.

    It is clear from the payslips provided that the customer is working at least 15 hours per week…[18]

    [18]T-Document, T18 at 126.

22. The ARO referred to decisional guidelines involving a ‘Clear ability to work at least 15 hours per week in open employment’.

    Clear ability to work at least 15 hours per week in open employment

    A Disability Support Pension (DSP) claim may be manifestly rejected if it is clear that the customer is able to work 15 hours per week at the relevant minimum wage. There must be clear evidence that:

    ·     the customer is regularly working at least 15 hours per week in open employment, and

    ·     the customer's employment is not in jeopardy, suspended, expected to cease or significantly reduce solely due to the customer's medical conditions.

    ·     Customers claiming DSP may still be in the labour market and lodge a prospective claim to test their eligibility prior to ceasing employment. While it is unlikely that someone who is currently working full time in the open labour market would qualify for DSP under manifest guidelines, this does not mean that the claim should be automatically rejected under manifest guidelines. Consideration must be given to any employer support, such as workplace modifications and/or accommodations that may be in place and have enabled on-going employment to date, and whether continued full-time work is sustainable.

    Care must be taken to identify:

    ·     situations where the customer's employment is being sustained only through extraordinary support from their employer (that is, a significantly higher level of support that would be reasonably expected in a comparable workplace)

    ·     customers who are working in the Supported Wage System or with significant ongoing support from an Australian Disability Enterprises or Disability Employment Services Provider.

    THE AAT1 DECISION

23. The AAT1 set aside the ARO decision on the basis that her actual work history, as detailed in her pay slips was possible only because the employer provided a higher degree of assistance than might ordinarily be expected.

24. The AAT1 summarised the concessions the Applicant receives in her present workplace as follows:[19]

    [19] T-Document, T2 at 8 [14].

    Approximate 10 years ago, after her symptoms had worsened, her employer agreed to reduce her working hours from 37 to 20 hours per week.

    After Mrs Vicaretti’s health had further deteriorated, she requested a further reduction in her working hours. Her employer’s strict policy is that employees must work a minimum of 20 hours per week, yet she was allowed to reduce her hours to 19 hours per week.

    Since then, Mrs Vicaretti’s employer has changed her duties to accommodate the increasing impact of her condition. Because she can stand for a maximum of 10 minutes, she was relieved from dealing with customers at a counter, as her colleagues do. Instead she was allocated a workstation where she deals with customers while seated.

    The usual practice in Mrs Vicaretti’s workplace is for customer service staff to walk to greet customers waiting for consultations. Mrs Vicaretti’s employer has assigned a staff member to assist her by fetching customers to her workstation.

    Mrs Vicaretti’s employer has given her a higher proportion of sedentary duties such as dealing with customers via email and telephone, rather than face-to-face.

    Due to her multiple sclerosis, Mrs Vicaretti walks very slowly and her employer has given her additional personal time to use toilet facilities during work hours, as it takes her 15 minutes to walk to the nearest toilet and back.

    At the onset of the COVID-19 pandemic Mrs Vicaretti was the first employee in her company to be sent home to work remotely, as her multiple sclerosis compromises her immunity and renders her vulnerable to the virus.

    A few years ago Mrs Vicaretti’s employer asked her to disclose her condition to her colleagues, because she had been granted so many concessions that it had to be explained to defuse any resentment about what would otherwise be viewed as blatant favouritism.

    Mrs Vicaretti has considered finding another job with less working hours but believes she would be unable to secure and maintain another position because a new employer would not grant her the workplace concessions she needs.

25. The AAT1 quoted from the Explanatory Memorandum in relation to subsection 94(2) which stated

    The requirement that work at award wages be done ‘independently of a program of support’ means that, if a person can do work of at least 15 hours per week at award wages or above (see also Item 5 below) within the next 2 years (taking into account activities that the person could undertake to assist him or her), but the person can only do the work if provided with certain types of ongoing or regular support, then the person will have a ‘continuing inability to work’. If the person meets all other qualification requirements the person will therefore qualify for a disability support pension.

    This ensures that people who are working at full award wages in the open labour market who require significant support in the workplace on an ongoing basis to maintain that employment, such as an attendant carer to assist with toileting and eating in the workplace, will continue to qualify for the disability support pension. Item 5 substitutes a new subsection 94(4) providing when a person is treated as being able to do work ‘independently of a program of support’ and what types of support are considered to be a ‘program of support’.

26. The AAT1 found that without the special arrangements put in place by the employer, she would have been restricted by her disability to working less than 15 hours a week. She therefore had a CITW.

    CONSIDERATION

27. According to the Guide, the general rule is that an applicant must be unable to work for 15 hours or more per week and be unable to be retrained for such work in the next 2 years – the so-called ‘15 hour work capacity rule’.[20] There is a significant exception to the general rule. A disabled employee may have a work capacity above 15 hours because the employer provides ‘extraordinary support’.[21] A person working more than 15 hours per week with such support may still be regarded as having a CITW.[22]

    [20] T-Document, T3 at 18.

    [21] T-Document, T18 at 126. See Operational Blueprint 008-03030150 Rejecting a new claim for Disability Support Pension (DSP), including manifest rejections, which has a link on the Background tab, under Manifest

    medical ineligibility to clear ability to work at least 15 hours per week in open employment.

    [22] I note that the Explanatory Memorandum to the legislative amendments introducing the 15 hour work capacity rule refers to ‘certain types of ongoing or regular support’ (rather than ‘extraordinary’ support); see AAT1 decision, T-Document, T2 at 6 [10].

28. Therefore, in the absence of evidence of duress or certain kinds of special arrangements, the fact that a claimant did in fact work more than 15 hours per week on a continuous basis during the qualification period is strongly suggestive that he or she does not have a CITW.

29. The Applicant concedes that in some cases a person working for more than 15 hours per week may have a CITW, but only where an employer provides extraordinary levels of support.

30. At the time she applied for DSP, Mrs Vicaretti was working 19 hours per week, spread over three working days. The NRMA requires employees to work not less than 20 hours per week, but her managers made a small exception for her because of her disability. They also made some minor adjustments to her workplace in the areas of seating arrangements, client management, and toileting breaks, as outlined in the NRMA letter of 19 August 2020.

31. The arrangements involve minor adjustments to work practices, such as allowing her to sit rather than stand, and requiring customers to walk to her, rather than her walk to them, and providing longer breaks for personal hygiene. I note that the workplace lacked proximate toilet facilities and Mrs Vicaretti was required to leave the immediate workplace to access the toilet. At one point she felt the need to wear incontinence pads. Because of her impairment, she was prioritised for working at home during COVIDs and allowed extra breaks while at home. Her return to work was staggered. These concessions do not appear to be very substantial, and go no further than required by modern workplace law. None of the concessions granted to Mrs Vicaretti could be said to impose unreasonable costs on the employer.[23] 

    [23] Disability Discrimination Act 1992 (Cth), s 21B.

1. The Applicant identified the supposed error by the AAT1 as follows.

   The AAT1 confused a “normal” workplace where the employer takes into account the person’s disability, with the workplace of a “benign” employer. Ms Vicaretti’s workplace is a “normal” workplace where the NRMA takes into account her disability, and not a sheltered workplace.[24]

   [24] ASFIC at [6.5].

2. With respect, I do not accept that the AAT1 made such an error. However, for reasons explained below, I do not consider that the evaluation of the special arrangements provides a satisfactory resolution of this application.

3. The focus on special arrangements draws attention away from the primary question for determination under paragraph 94(2)(a) of the Social Security Act, namely, whether the impairment is of itself sufficient to prevent Mrs Vicaretti from doing any work independently of a program of support within the next 2 years; ‘work’ being defined by subsection 94(5) to mean work for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person’s locally accessible labour market.

4. In my view the primary focus should be on the evidence regarding the applicant’s medical condition, and the assessment of experts trained to evaluate work capacity, rather than the extent of workplace modifications made by the employer. I therefore turn to the medical evidence.

   THE MEDICAL EVIDENCE

5. I note that there are two reports from 2013 which provide some insight into the progression of Mrs Vicaretti’s condition. There is a Medical Report, dated 17 August 2013, by Dr Kal Abraham, in which the doctor referred to ‘Tiredness, muscle aches, heavy feeling in the legs’, and said that the impact of the condition on the applicant’s ability to function over the next 24 months was ‘uncertain’.[25]

   [25] T-Document, T4 at 29-39.

6. There is also a Job Capacity Assessment (JCA) report, dated 18 November 2013, which noted that that she was usually working about 19-25 hours per week, but considered that her baseline working capacity was 15-22 hours per week, in light skilled work, such as customer assistance or office assistant. The assessor stated that her work capacity was unlikely to change despite intervention.[26]

   [26] T-Document, T5 at 40-45.

7. There are two relevant reports prepared in 2019:

   (a)A medical certificate from Dr Hamayoun Siddiqui, dated 18 October 2019 (filed 29 October 2019).[27] The medical certificate states:

   Ms Annunziata Vicaretti has Multiple Sclerosis for 28 years and getting worse over the last 5-6 years. It is affecting her whole life, in particular functional capacity, mobility and activities of daily living. She needs assistance at home. She needs someone to accompany her when going out and uses walking stick as well. She is under specialist care and see physiotherapist regularly.

   This Certificate was completed on 18/10/2019

   (b)A medical certificate from Training Physiotherapist, Rachel Pisarev and NDIS physiotherapy report, dated 23 October 2019 (filed 29 October 2019).[28] The medical certificate states:

   This is to certify that Ms Annunziata Vicaretti has been living with multiple sclerosis for 28 years. Her condition continues to worsen and is starting to have an impact on her quality of life. She is limited to the amount of driving she can do, her fatigue limits the amount of work she can do, both factors limiting her social interaction. When she has to walk outdoors for longer distances she uses a hiking stick, and sometimes will not go out without having a second person to hold on to. Her children are having to help her at home with domestic tasks. Continuing physiotherapy for her is very important to her condition as she needs to be able to maintain the current strength that she has. Physiotherapy plays a vital role for her condition, without it she will continue to decline at a more rapid rate.

   Recommendation for action

   Ms Annunziata Vicaretti will require physiotherapy 2 x week, 1 session focusing on strength and balance, and the other being hands on working on reducing muscle rigidity. This will help reduce her rate of decline. It is recommended to start with 20 sessions (10 weeks), and review how she is going at this point.

   [27] T-Document, T10 at 97.

   [28] T-Document, T11 at 98-100.

8. There are two reports from Mrs Vicaretti’s treating specialist, Dr McDougall, which bracket the qualification period (29 October 2019 - 28 January 2020 inclusive):

   (i)The first letter, dated 13 February 2019, written nine months before the commencement of the 13 week qualification period, suggests that Mrs Vicaretti is unable to work full time; and should only be working 20 hours per week; ^[29] 

   (ii)The second letter, dated 19 August 2020, some seven months after the end of the qualification period, states that she should only be working 15 hours per week, taking regular breaks, especially when sitting for long periods.

   [29] T-Document, T6 at 46.

9. This suggests a significant deterioration in work capacity over the 18 months between the reports.

10. I also note the Report dated 14 February 2020 by the Government Contracted medical practitioner, Dr Candice. In supporting an impairment rating of 20 points, Dr Candice notes:

    As per Dr Siddiqui's report, client has worsening MS and is affecting her functional capacity, mobility and ADLs hence she cannot walk around shopping centre or do light housework. As per Dr McDougall's report, client has fagiute and is unable to work full time. She continues to work but her condition has been worsening and will continue to worsen and is will not be able to sustain employment in the future.[30] [sic]

    [30] T-Document, T14 at 112.

11. Last but not least, I refer to the JCA report dated 31 January 2020. The JCA assessor is a specialist in workplace assessment and is trained to assess workplace capacity. The JCA Report confirms the steady decline of Mrs Vicaretti’s condition. It finds that Ms Vicaretti’s work capacity within two years was 8 – 14 hours per week ‘with intervention’. The report summary states:

    The previous Job Capacity Assessment (JCA) dated 15/11/2013 indicated an Impairment Rating of 10 points from Table 1 - Functions requiring Physical Exertion and Stamina with a work capacity with intervention of 15-22 hours per week.

    Current medical evidence from treating specialist, GP and physiotherapist indicate the condition getting worse over the last 5-6 years and continues to worsen. The condition is now assessed under Table 1 - Functions requiring Physical Exertion and Stamina with 20 points recommended. The client's work capacity with intervention is reduced from 15-22 hours per week to 8-14 hours per week due to deterioration in the client's function. ^[31]

    [31] T-Document, T13 at 103-111.

12. The evidence shows that Mrs Vicaretti’s MS is getting worse. Her level of functional impairment has increased gradually, as indicated by the increase from 10 to 20 points under the Impairment Tables over the past seven years. The rate of decline appears to have accelerated in recent years.

13. As noted above, Dr McDougall’s estimates were made 18 months apart. His estimates suggest a decline of around one hour of work per week for every 3-4 months, assuming a roughly linear rate of decline. This suggests a work capacity in early 2020 of approximately 16-17 hours per week.[32] This is broadly consistent with the JCA assessment of 15 – 22 hours per week in 2013, and 8 – 14 hours per week (with intervention) in 2020.  I note that the 2020 JCA assessment was done at the end of the qualification period.

    [32] The qualification period ended on the 28 January 2020, 11 months into the 18 month period between this reports.

14. The fact that Mrs Vicaretti was working for 19 hours per week during the qualification period is not, in the circumstances of this case, fatal to her claim for DSP. In reaching this conclusion, I consider that with one exception the workplace concessions are relatively minor. Such work modifications may be assumed within the modern workplace.

15. The exception relates to the minimum work requirement of 20 hours a week for part time employees imposed by the NRMA. This applied to all employees whether or not they had a disability. It is not clear when or indeed whether Mrs Vicaretti formally requested a reduction of hours but she appears to have done so. The NRMA letter of 19 August 2020 refers to this matter.

    [Mrs Vicaretti] has advised us that she has multiple sclerosis and she is only able to work part time. As an employer our minimum hours of work is 20 hours. However we have exception [Mrs Vicaretti] for 19 hours.

16. The reduction from 20 to 19 hours was a very small indulgence. I cannot exclude the possibility that there was an element of duress in her work circumstances. I note that she has responsibility for two teenage children.[33]

    [33] T-Document, T7 at 55; T11 at 98; T13 at 106; T13 at 110; T18 at 125.

17. For the avoidance of doubt, I am satisfied in light of the medical evidence and especially the 2020 JCA assessment that during the qualification period Mrs Vicaretti suffered from an impairment which by itself was sufficient to prevent her from working more than 15 hours a week independently of a program of support within the following 2 years. 

18. I am also satisfied that the impairment was of itself sufficient to prevent her from undertaking a training activity during the next 2 years, as required by subsection 94(2)(b)(i) of the Social Security Act.

19. Finally, I note that the evidence shows that Mrs Vicaretti has served as an employee of the NRMA for a quarter of a century and has continued working even in the face of a debilitating illness. I agree with the AAT1 that she had a CITW during the qualification period, although with slightly different reasoning in reaching what I consider to be the correct and preferable decision.

    CONCLUSION

20. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........................................................................

Associate

Dated: 25 March 2021

Date(s) of hearing:	19 November 2020
Solicitors for the Applicant:	Dr S Thompson, Services Australia
Respondent:	Self-represented