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

[2017] AATA 1056

Von Sawiliski and Secretary, Department of Social Services (Social services second review) [2017] AATA 1056 (7 July 2017)

Division:GENERAL DIVISION

File Number(s):      2015/6351

Re:Sophia Von Sawilski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:7 July 2017

Place:Sydney

The decision under review is affirmed.

...............................[sgd].........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairments – fully diagnosed, treated and stabilised – continuing inability to work – Job Capacity Assessment – impairment rating of at least 20 points – qualification period – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

7 July 2017

DECISION UNDER REVIEW

1. The decision under review is the decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 17 July 2015, affirming the decision made by the Secretary, Department of Social Services (the Department) to reject the claim for Disability Support Pension (DSP) made by Ms Von Sawilski, the applicant, on 6 February 2014.

   LEGISLATION

2. The relevant legislative scheme is complex.  It includes:

   ·the Social Security Act 1991 Act (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

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

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

   ISSUES

3. The issue the Tribunal has to determine is whether the applicant was qualified or became qualified to receive DSP within the period 6 February 2014 (the date of claim) to 8 May 2014 (the qualification period). This depends on whether the Applicant satisfied s 94(1) of the Act, in particular whether the applicant has:

   ·physical, intellectual or psychiatric impairments (s 94(1)(a)); and

   ·the impairment arises from conditions that have been fully diagnosed, treated and stabilised and attract an impairment rating of at least 20 points under the Impairment Tables (s 94(1)(b)); and

   ·a continuing inability to work (s 94(1)(c)).

4. As the Tribunal emphasised at the beginning of the hearing, the Tribunal is concerned with whether the applicant qualified for the DSP during the qualification period commencing when she lodged her application on 6 February 2014. 

   THE EVIDENCE BEFORE THE TRIBUNAL

5. The evidence before the Tribunal included copies of:

   ·The documents comprising 310 pages provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   ·The applicant’s conference notes dated February 2016 and the attached letter from Ms Barber, Mental Health Worker, dated 24 February 2016.

   ·A letter from Ms Wilkinson, clinical psychologist, dated 28 April 2016.

   ·227 pages of notes relating to the applicant’s engagement with the organisation Bridging the Gap which covers the period 8 April 2013 to 17 June 2015, approximately.

   ·A letter from Dr Salib, general practitioner, dated 17 March 2016.

   ·Annexed to the respondent’s Statements of Facts, Issues and Contentions were a Health Advisory Unit Opinion dated 12 August 2014 and a Job Capacity Assessment (JCA) conducted on 8 March 2017.

6. The applicant gave evidence and made submissions with the assistance of Ms Fermanov.   Ms Wong represented the respondent.  She made oral submissions in support of the respondent’s written Statement of Facts, Issues and Contentions.

   Issue 1: Does the applicant have an “impairment”?

7. “Impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work, that results from the person’s condition (cl. 3 of the Impairment Tables).  The respondent accepted that the applicant has impairment in relation to the diagnosed conditions of autism and cardiomyopathy.  The applicant therefore satisfies s 94(1)(a).

   Issue 2: Does the applicant’s impairment attract a rating of at least 20 points?

8. The respondent submitted that the applicant’s impairment rating was 10 points, derived from 5 impairment points under Table 1 for the cardiomyopathy condition and 5 points under Table 7 for her autism, based on the applicant’s oral evidence before AAT1 and her earnings records. 

9. Given the large volume of evidence, it is convenient to set out a summary of the evidence in chronological order, bearing in mind that the Tribunal has to determine whether the applicant met the relevant criteria during the qualification period.  Evidence outside that timeframe is only relevant to the extent it assists that determination.

10. An Employment Services Assessment Report was completed by telephone on 15 March 2013.  The report included the following information and assessments. The applicant is a trained high school teacher with post graduate ESL qualifications and a Certificate IV in Training and Assessment.  She was tutoring but only had one student.  She had been tutoring since 2007 but gradually had fewer and fewer students.  From 1991-2004, she worked as a high school teacher but left after “burnout” caused by bullying. She had taken her employer to the Industrial Relations Commission but had ended up leaving. She was currently residing in the family home with her father, two sisters and one child.  Her father has asked her to leave by the end of the month but she had nowhere else to go and had more pressing health concerns to deal with, including heart disease for which she saw a specialist in 2011 and had been self-managing but had recently sought medical treatment.  She had provided no medical evidence.  She had a licence but cannot afford to run or register her car.  The applicant reported high levels of stress related to her health, grief (she had recently lost her mother “who she had assisted her father to care for”), and imminent housing problems.  She was concerned about her financial situation.

11. The applicant claimed for DSP on 23 October 2013.

12. A medical report was completed by Ms Yvonne Wilkinson (Clinical Psychologist) on 2 December 2013. Ms Wilkinson diagnosed the applicant with autism and depression.

13. In a report dated 11 January 2014, Dr Salib, General Practitioner, diagnosed the applicant with autism for which psychological treatment had commenced on 24 April 2013. Dr Salib noted that autism “is a developmental disability since early childhood”. Dr Salib also diagnosed the Applicant with ischaemic heart disease, sleep apnoea, and morbid obesity.  Dr Salib’s report is silent as to any functional impairment, stating only that the applicant “needs a lot of support to modify her lifestyle”.

14. On 25 February 2014, a JCA was conducted by a Registered Psychologist for the purpose of the applicant’s claim. The assessor considered that the applicant’s autism was fully diagnosed and treated but not fully stabilised. The assessor found the applicant had “only recently been diagnosed” on 2 April 2013 and first attended an assessment with a clinical psychologist on 24 April 2013.

15. The assessor considered that the applicant’s depression was fully diagnosed, but not fully treated and stabilised as “further treatment (potentially medication and/or psychiatrist referral...or at least ongoing counselling) may result in an improvement”.

16. The assessor found the applicant’s ischaemic heart disease and obesity were fully diagnosed but not treated and stabilised. The assessor noted that Dr Salib’s report indicated the applicant needed a lot of support to modify her lifestyle and accordingly, there could be an improvement in those conditions.

17. Based on the limited treatment to date, the assessor did not consider that the Applicant’s hypertension and insulin resistance were fully treated and stabilised.

18. There was future planned treatment for the applicant’s sleep apnoea.  Therefore, it was not considered fully treated or stabilised.

19. The JCA assessed the applicant’s capacity to work within 2 years, with intervention, to be 15-22 hours per week. The JCA identified teaching, tutoring, literary related roles without a large volume and frequency of social interaction as examples of suitable work.

20. On 27 February 2014, the applicant’s claim for DSP was rejected.

21. In a report dated 9 July 2014, Dr Salib identified cardiomyopathy as the condition with the most impact on the applicant. Dr Salib also again diagnosed the applicant with autism.

22. Ms Barber, a registered rehabilitation counsellor, provided two letters supporting the applicant.  One is two pages long and undated.  Another is two and a quarter pages in length and dated 17 July 2014.  The Tribunal finds that the undated letter was also written in 2014 because it refers to the death of the applicant’s mother “last year”.  Other evidence before the Tribunal states that the applicant’s mother died in January or February 2013.

23. The substance of the shorter letter is included in the longer letter.  Ms Barber was working as a Mental Health Workers for a not-for-profit organisation which supports people with mental illness to recover by supporting them to get out and about and do the things they want to do “through connecting them to their local community through leisure, employment, education, volunteer work, and social clubs”.  The applicant had been a client of the organisation since March 2013 and was currently receiving support on a fortnightly basis.

24. Ms Barber stated that the applicant had been diagnosed with autism, depression, high blood pressure, high cholesterol, pre-diabetic and a heart condition and had experienced two heart attacks within the last five years, “the 2^nd most recently on March 28, 2014”.  Ms Barber stated that the applicant required fortnightly monitoring by her general practitioner and participation in a cardiology rehabilitation program at Mt Druitt hospital.  The applicant was homeless as of 17 July 2014 and feeling pressures associated with the requirements imposed by Housing NSW. Ms Barber related the impacts the applicant said that her mental health condition had on her, including that it detrimentally affected her communication skills and ability to interpret others’ behaviour.  The applicant was also suffering from grief and loss following her mother’s death in January 2013, as well as dealing with the stressors associated with tension between other family members.

25. Ms Barber related the applicant’s claims about the impact of her mental health on her employability.  In summary, the applicant reported that she was “intellectually frail” and “behaviourly incapacitated, experienced panic attacks and reclusiveness, and cannot work full-time, since leaving her last permanent job many years ago for mental health and associated reasons”. 

26. Ms Barber stated that the applicant “is at present employed a few hours per week tutoring school children” which she enjoyed, but “is constantly worried on how any work she does will impact upon her NewStart payments”.

27. Ms Barber said that as of 17 July 2014, in addition to the support she was providing, the applicant was receiving support from a psychologist and from a counsellor who supported the applicant working through her grief and depression.  In relation to employment, the applicant was being supported by a consultant at WISE employment who “is very supportive of the appropriateness of her current exemption status due to” her mental health.

28. Ms Barber recommended that the applicant be granted the DSP:

    “due to the fragility of her current physical health situation as well as the impact her mental illness has on her daily life, her employability and interaction with others. Being granted the (DSP) would also allow her to focus on her health, the flexibility to maintain workload which she can manage, as well as alleviate stress and pressures.”

29. Dr Shalaby, cardiologist, completed a medical report dated 16 July 2014. He provided the following information in relation to conditions that have a significant impact on the applicant’s ability to function. She had a previous cardiomyopathy on 4 August 2011 for which she had been medicated. Her current symptoms were shortness of breath which impacted on her ability to function by reducing her exercise tolerance. The impact of the condition would persist for more than 24 months and would remain unchanged in that two year period.  The applicant had been diagnosed with autism by Ms Wilkinson, psychologist. Her symptoms were limited socialisation and were longstanding. It impacted on her behaviour, planning, and interpersonal difficulties. It would persist for more than 24 months and remain unchanged within the next two years.  Dr Shalaby listed obesity, Type II diabetes and obstructive sleep apnoea as conditions that are generally well managed and cause minimal or limited impact on ability to function.

30. On 12 August 2014, a registered nurse provided a Health Professional Advisory Unit Opinion.  The nurse accepted that the autism spectrum disorder could be assigned “FDTS” (fully diagnosed, treated and stabilised) and rated the impairment 10 points under Table 5. The depression condition was accepted as FDTS and its impact was found to be “captured” under the rating given for Autism.  The nurse accepted that cardiac disease, obstructive sleep apnoea, morbid obesity and hypertension were FDTS, considered their impacts and decided that those impacts were sufficiently captured by the rating under Table 1 of 5 and up to 10 points. 

31. On 15 August 2014, the decision to refuse the applicant’s DSP application was affirmed by an Authorised Review Officer (ARO).  The ARO spoke to the applicant, Ms Barber, and Break Thru People Solutions, before making the decision. The ARO’s notes of those conversations are before the Tribunal. The ARO assigned 10 points under Table 5 – Mental Health Function for the applicant’s autism. The ARO assessed the ischaemic heart disease, sleep apnoea and obesity under Table 1 – Functions requiring Physical Exertion and Stamina and assigned 10 points under that Table. However, because the applicant did not meet the Program of Support (POS) requirements, the ARO affirmed the decision to reject the applicant’s claim for DSP.

32. On 10 December 2014, a further JCA was conducted by a Rehabilitation Counsellor. The JCA assessed the applicant’s autism under Table 7 – Brain Function. The JCA reasoned that the impairment rating for autism was applied under Table 7 because “as per the guidelines” the applicant did not have low IQ. The JCA assessed the applicant’s ischaemic heart disease under Table 1 – Functions requiring Physical Exertion and Stamina. The JCA assigned 10 points for each of those conditions. The JCA assessed each of the conditions of morbid obesity, hypertension and respiratory disorder as rating 0 points because the functional impacts had been captured under the rating for ischaemic heart disease under Table 1.

33. The JCA assessed the applicant’s capacity to work within 2 years with intervention at 8-14 hours per week and identified tutoring as an example of suitable “light skilled” work.

34. On 7 April 2015, the applicant applied for review, to the AAT1, of the decision to reject her claim for DSP.

35. On 3 July 2015, Ms Louise Vincin, a counsellor, provided a letter in which she stated that she had met with the applicant for approximately one year between 2012 and 2014 on a fortnightly to monthly basis. Ms Vincin stated the applicant’s “ability to reason and negotiate social situations” was limited.

36. In her report dated 4 July 2015, Ms Wilkinson, clinical psychologist, strongly supported the application.  She diagnosed autism spectrum disorder (ASD) and major depressive disorder “which is reactive to the challenges of living with ASD especially pertaining to difficulties with social communication and establishing and maintaining interpersonal relationships”. Ms Wilkinson also referred to the applicant’s chronic heart condition.  Ms Wilkinson’s opinion was that the applicant’s “physical and psychological condition is extremely vulnerable and that she is at high risk of further deterioration to her health should she endure the stressful and unrealistic expectation of being required to work for fifteen hours per week”.  Ms Wilkinson considered that the applicant could undertake “a few hours of work per week which she would be able to cope with and sustain for the long-term”.

37. Dr Shalaby, cardiologist, saw the applicant on 10 July 2015 and confirmed a diagnosis of Takotsubo cardiomyopathy in an undated report. He noted that the applicant’s symptoms were shortness of breath on exertion. He reported that each of the following was limited by breathlessness:  use of public transport without assistance, impact on household activities, impact on workplace activities, and walking to a local shop. He wrote in response to a question about walking around a shopping centre or supermarket without assistance, “exercise 50-100 m before having to stop”.  Dr Shalaby’s opinion was that the condition would impact on the applicant’s ability to function for more than 24 months but that within the next two years, the effect of the condition on her ability to function is “uncertain”.  He noted that oxygen was not needed.   Dr Shalaby wrote that the applicant was usually compliant with treatment but that mental health issues were an issue for her compliance with treatment.

38. The applicant attended a hearing before the AAT1 on 17 July 2015.A decision was made on the same day. The Tribunal found the applicant suffered from impairments due to cardiomyopathy and “autism/depression”. The Tribunal was “not persuaded” that the applicant experienced frequent breathlessness or chest pain when performing physically demanding activities. The Tribunal found that there was a mild adverse functional impact on activities requiring physical exertion and stamina and assigned an impairment rating of 5 points from Table 1 – Functions Requiring Physical Exertion & Stamina.

39. In relation to the autism/depression, the Tribunal found there was a mild adverse functional impact on activities involving mental health function and assigned an impairment rating for 5 points from Table 5 – Mental Health Function. The Tribunal observed that the applicant tutored for a maximum of three hours per week and had published short stories and study guides. The Tribunal also noted the applicant attended church regularly and saw her various friends “sporadically” at church functions. The Tribunal noted that the applicant went to the library to borrow books and use the internet. The Tribunal found the conditions of obesity, hypertension, sleep apnoea and insulin resistance were not fully treated and stabilised.

40. On 7 October 2015, Dr Pickering, psychiatrist, provided a report in which he provided the following opinion. His “overall impression” was that the applicant had autism at the “mild end of the spectrum” that was “severe enough to be socially disabling, causing anxiety, and causing her to be too dysfunctional to operate in an employment situation.”  Dr Pickering observed:

    When people struggle as much as she has, they actually tend to burn out later in life, and usually by the time they reach the sixth decade of life are no longer capable of putting in the extra effort that they need to participate in the workforce.

41. On 7 December 2015, the applicant sought a further review to this Tribunal.

42. In her February 2016 conference notes, the applicant set out how her physical health and her autism affect her life. 

1. In a letter dated 24 February 2016, Ms Barber, rehabilitation counsellor, set out her understanding of and observations of the applicant’s physical and mental health conditions.  She noted that the applicant “has been granted successive exemptions over the past 3 yrs from having to look for work as her designated DES providers have also identified that Sophia is not in a position to be looking for work right now”.

2. On 16 May 2016, the applicant provided a bundle of additional documents comprising     documents from Bridging the Gap and Breakthru Employment Solutions. During the hearing, she was taken to various entries in those documents, including:

   ·12 May 2015 – the applicant advised that she was “currently working one day per week undertaking tutoring”, “feels she’s able to cope with this amount of hours”, and was happy to increase her hours along with her capabilities”.

   ·On 10 December 2014, the applicant said that she had mostly been doing paid work in the last 2 years of less than 8 hours a week. 

3. On the same date, 10 December 2014, an entry states:

   Job Seeker Suspension – Temporary Reduced Work Capacity – ended Start Date: 26/2/2014, Actual End Date: 10/12/2014 …

4. Dr Salib, general practitioner, provided the following opinions in his report dated 17 March 2016.  He believed that the following medical conditions are chronic in nature and:

   “have a moderate functional impact on activities requiring physical exertion or stamina.

   Due to  untreated OSA (can’t afford CPAP), morbid obesity, IHD and cardiomyopathy, she experiences frequent shortness of breath & fatigue when performing day activities around (sic) the home & community and, due to these symptoms, she is unable to walk far outside the home & needs to drive or get other transport to the local shops & community facilities”.

   She is able to use public transport & walk around a shopping centre or supermarket.  She is also able to perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion”).

5. Dr Salib then set out “Past Medical History”.  Under the hearing “Active”, he listed:

   Autistic spectrum disorder

   Fatty liver

   Hypertension

   Insulin Resistance

   Obesity – Morbid

   2011   Cardiomyopathy

   Takutsubo

   2011    IHD (Ischaemic Heart Disease)

   2014   Obstructive sleep apnoea

   Moderate

6. Under the heading “Inactive”, Dr Salib listed:

   2011    AMI (Acute Myocardial Infarction)

   2014    STEMI (ST-Elevation Myocardial Infarction)

   suspected

7. On 8 March 2017, a further JCA was undertaken. The applicant did not attend the JCA appointment. The assessor found the following conditions to be fully diagnosed, treated and stabilised:  Autism Spectrum Disorder, IHD, Hypertension, and Obstructive Sleep Disorder. The assessor accepted that Morbid Obesity, Insulin Resistance and Depression had been diagnosed but not that they had been fully treated and stabilised. The assessor considered that Fatty Liver had been fully diagnosed, but not fully treated and stabilised. The assessor also assessed “Spinal Disorder – Other” based on a report of Mr He Lail, chiropractor, as fully diagnosed but not fully treated and stabilised. Mr He Lail’s report was not before the Tribunal.  The assessor allocated 10 points to the Autism condition according to Table 7 – Brain Function, and 10 points to the IHD according to Table 1. The assessor rated each of hypertension and respiratory disorder 0 points according to Table 1.

8. The assessor found that the applicant did not satisfy the Participation in Program of Support because she had participated for 130 days from 6 October 2013 to 6 October 2016 and not the necessary 18 months or 548 days, within the past three years.

9. In her report dated 28 April 2016, Ms Wilkinson provided the following opinions. The applicant’s Autistic Spectrum Disorder and Major Depressive Disorder have a moderate functional impact on activities involving mental health function.  The applicant’s psychological and physical impairments have a permanent moderate functional impact on her capacity for self-care and independent living, social and recreational activities and travel, interpersonal relationship, concentration and task completion, behaviour, planning and decision-making, as well as work and training capacity.  Further:

   It is my professional opinion that Sophia’s physical and psychological condition is extremely vulnerable and that she is at high risk of further deterioration to her health should she endure the stressful and unrealistic expectations of being required to work for fifteen hours per week. It is clearly in the best interests of both Sophia’s physical and psychological health and wellbeing to undertake a maximum of a few hours of work per week which she would be able to cope with and sustain for the long-term.

10. In addition to the evidence about her conditions summarised above, the applicant told the Tribunal the following at the hearing.  She was tutoring once a week and had been writing for over 10 years, including study guides.  She talked about her second heart attack, going to a food bank, and getting a lift from people.  She went swimming regularly for two hours, doing laps at a slow place, using flippers and a board. She became quite exhausted. She said that she is not a great housekeeper and does five minutes at a time and is ordered and neat. 

    CONSIDERATION

11. While the Impairment Tables state variously that self-report of symptoms alone is insufficient, in this case the doctors, counsellors and psychologists are mostly reliant on the applicant’s reporting of her symptoms in terms of the impact of her mental health and physical conditions on her functioning.  The evidence summarised above has been provided at particular points in time over a period of about four years.   This Tribunal is concerned with the 13 week period beginning 6 February 2014.

12. The Tribunal finds that the applicant’s autism and depression should be considered together because the evidence does not allow separate consideration of their functional impact.  It finds that both have been fully diagnosed, treated and stabilised.  It accepts that Table 7 – Brain Function is the appropriate Impairment Table, given the injunction in that Table that “A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table“.  The applicant’s academic qualifications and employment history as a high school teacher show that she does not have a low IQ.

13. The Tribunal finds that the appropriate rating for the impact of those conditions is 10 points.  In making that finding, the Tribunal has taken into account Ms Barber’s evidence that as of 14 July 2014, the applicant was being supported by Ms Barber, as described in paragraph 24 above, a psychologist, a counsellor in relation to grief and depression, and in relation to her employment by WISE employment. The Tribunal finds that level of support satisfied the criterion “the person needs occasional (less than once a day) assistance with day to day activities.  

14. Dr Shalaby’s opinion in his 16 July 2014 report was that her autism impacted on the applicant’s behaviour, planning and interpersonal difficulties.  That opinion, together with the applicant’s history of employment difficulties in 2004, the evidence of Ms Barber and the registered nurse who provided the 12 August 2014 Health Professional Advisory Unit Opinion, the ARO’s notes and decision, and the JCA of 10 December 2014, support a finding that the applicant has moderate difficulties with planning, behavioural regulation and self-awareness.  Ms Vincin’s evidence supports the finding in relation to behavioural regulation.

15. The applicant’s cardiac condition has been described as a type of cardiomyopathy and ischaemic heart disease.  The evidence is clear that that however described, her cardiac condition is fully diagnosed, treated and stabilised. Dr Shalaby, in his report of 16 July 2014 stated that it had a significant impact on the applicant’s ability to function in that she experienced shortness of breath which impacts on her ability to function.

16. Before assessing a rating it is appropriate to consider other physical conditions raised by the evidence.

17. The Tribunal accepts that during the qualification period, the applicant had been diagnosed with sleep apnoea and morbid obesity but does not accept that either was fully treated or stabilised during that period.   It agrees with the JCA conducted on 25 February 2014.  The sleep apnoea had not been treated as of Dr Salib’s report dated 17 March 2016.  As the decision-maker in the AAT1 decision observed, the applicant had seen a dietician but nothing further had been done in relation to her obesity.

18. The Tribunal finds that information about “Type II diabetes” / “insulin resistance” and hypertension is too imprecise to permit an assessment of whether either was permanent within the meaning of the Impairment Tables.

19. In any event, in the report of 16 July 2014, Dr Shalaby stated that the applicant’s obesity, Type II diabetes and obstructive sleep apnoea were generally well managed and caused minimal or limited impact on ability to function.  

20. The references to fatty liver, high cholesterol and spinal disorder arose in the evidence after the qualification period.  None of those conditions was fully diagnosed, treated or stabilised during the qualification period.

21. Returning to the rating of the applicant’s cardiac condition, Table 1 is relevant. The Tribunal finds that the evidence demonstrates that the applicant experiences frequent symptoms, including shortness of breath and fatigue, when performing day-to-day activities around the home and community and due to those symptoms is unable to walk far outside the home and needs to drive or get other transport to local shops or community facilities and is able to use public transport and walk around a shopping centre or supermarket and perform work-related tasks of a clerical, sedentary or stationary nature.

22. In making those findings, the Tribunal has taken into account the respondent’s submissions about the evidence of the applicant’s capacity to undertake day-to-day activities, including swimming, but does not accept that in the context of all the evidence before the Tribunal, the evidence cited requires a rating of 5 points.

    CONCLUSION

23. For the above reasons, the Tribunal finds that the applicant has an impairment rating of 20 points. It is necessary to proceed to consider whether the applicant has a continuing inability to work.  The applicant does not have a “severe impairment”, that is, she does not have an impairment of 20 points or more under a single impairment table.

24. The applicant must therefore have actively participated in a Program of Support within the meaning of s 94(3C) of the Act.  In summary, the applicant must have participated in a POS for 18 months within the three years prior to the date of claim before they can be taken to have actively participated in a POS.   Unfortunately, the evidence shows that the applicant has participated in a POS for 304 days during the period 6 February 2011 to 6 February 2014. The evidence does not demonstrate that the applicant is not required to participate in a POS.  Therefore, she does not satisfy s 94(2)(aa) of the Act. 

25. That being so, the applicant does not satisfy the qualification criteria for DSP during the qualification period.  The applicant may apply for DSP again.

    DECISION

26. The decision under review is affirmed.

I certify that the preceding 68 (sixty- eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................

Associate

Dated: 7 July 2017

Date of hearing:	11 April 2017
Advocate for the Applicant:	Ms R Fermanov, Flourish Australia
Solicitors for the Respondent:	Ms A Wong, Mills Oakley Lawyers