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

[2018] AATA 3199

Warren and Secretary, Department of Social Services (Social services second review) [2018] AATA 3199 (3 September 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5450

Re:Zulkifi Warren

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:3 September 2018

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Theodore Tavoularis

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether conditions attracted 20 impairment points or more – Sojgren’s syndrome – lupus – gastrointestinal conditions – depression – dry eyes – conditions were fully diagnosed – whether conditions were fully treated and stabilised – some conditions fully treated and stabilised – where Applicant’s conditions attracted 20 impairment points under multiple tables – whether Applicant has a continuing inability to work – where Applicant had not actively participated in a program of support – decision under review affirmed

LEGISLATION

Social Security Act 1994 (Cth), ss 26, 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42, cls 3, 4(1) Schedule 2 Part 2

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
The Guide to Social Security Law

REASONS FOR DECISION

Senior Member Theodore Tavoularis

3 September 2018

1. On 8 December 2015, Mr Zulkifli Warren (the “Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as:

   ·     Sjogren’s Syndrome;

   ·     Lupus – systemic;

   ·     Barrett Oesophagus Syndrome;

   ·     diverticulitis disease;

   ·     hiatus hernia;

   ·     gastro-oesophageal reflux;

   ·     depression;

   ·     high liver function test;

   ·     recurrent joint pains;

   ·     lack of mobility and strength of limbs;

   ·     dry eyes; and

   ·     rheumatoid arthritis.[1]

   [1] Exhibit 3, T Documents, PT15, p 140.

2. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of his claim (8 December 2015),[2] or within 13 weeks thereafter, that being up until 8 March 2016 (“the Relevant Period”).

   [2] Ibid.

   HISTORY OF THE MATTER

3. After lodging his claim for the DSP on 8 December 2015, the Applicant Applicant attended a face-to-face assessment with a Job Capacity Assessor (“JCA”) on 13 January 2016. The JCA subsequently produced a report on 27 January 2016,[3] and made the following findings:

   ·The Applicant’s lupus and depression were fully diagnosed, but not fully treated and stabilised. On that basis they could not be assigned an impairment rating.

   ·The Applicant’s digestive conditions of Barrett Oesophagus, Gastro-Oesophageal Reflux Disorder (“GORD”) and diverticular disease were assessed as fully diagnosed, treated and stabilised, and were assigned a rating of 5 points under Impairment Table 10.

   ·The JCA did not address the Applicant’s Sjogren’s Syndrome.

   ·The Applicant was assessed as having a baseline work capacity as 8-14 hours per week, and a future work capacity within two years of intervention as 15-22 hours per week.

   [3] Ibid, T16, pp 145-153.

4. On 29 January 2016, Centrelink rejected the Applicant’s claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[4]

   [4] Ibid, T17, pp 154–155.

5. On 27 April 2016, the Applicant sought review of that decision by an Authorised Review Officer (“ARO”). In essence, the Applicant disagreed with Centrelink’s assessment that he did not have an impairment rating of 20 points. The relevant file memorandum of the Respondent reads as follows:

   Why does the customer want the decision reviewed?

   (1)  customer advised jca team did not get all information from his doctor as Doctor was on holidays.

   (2)   condition is unable to be stabilized because it is a progressive illness - SJOGRENS syndrome . pain is been [sic] managed.

   …

   …customer has not provided further medical evidence…[5]

   [5] Ibid, T26, p 191.

6. On 6 July 2016, the Applicant’s claim was referred to the Department of Human Services’ Health Professional Advisory Unit (“HPAU”) for a further opinion. The HPAU assessed the Applicant as having a total impairment rating of 25 points, made up as follows:

   ·Systemic Lupus Erythematosus (SLE) – 5 points under Table 1;

   ·SLE – 10 points under Table 2;

   ·SLE – 5 points under Table 14; and

   ·GORD, Barrett Oesophagus and diverticulitis – 5 points under Table 10.[6]

   [6] Ibid, PT22, p 164.

7. On 19 July 2016, the ARO affirmed the decision under review on the basis that the Applicant had not participated in a program of support. The ARO made the following findings of fact:

   Findings of Fact

   After careful consideration of the evidence, I have made these key findings:

   ·You have the following permanent conditions: systemic lupus erythematosus, GORD, barrett’s oesophagus, diverticular disease and hiatus hernia.

   ·Your conditions of sjogren’s syndrome and depression are not accepted as being permanent as they have not been fully treated and stabilised.

   ·Your total impairment rating is 20 points.

   ·You do not have a severe impairment.

   ·You have not actively participated in a program of support.

   ·You do have a continuing ability to work up to 15 hours per week because of your impairment however you have not actively participated in a program of support for 72 weeks in the past 3 years.[7]

   [7] Ibid, T23, p 169.

8. On 29 July 2016, the Applicant requested further review of the decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”). In the “Application for Review of Decision” form, the Applicant answered “No” to the question “Do you want to provide any additional documents now?” In response to the question “Why do you claim the decision is wrong?”, the Applicant responded with these comments:

   ·“…according to my specialist Dr Spencer Sjogrens syndrome is a progressive disease and definitely [sic] been diagnosed and permanent.”

   ·“I recently spent 6 days in Campbelltown Hospital for a serious ulcerative colitius [sic] attack and because of the constant bleeding from the bowel I did not leave the house for a month.”

   ·“I also have constant pain in my right shoulder, lower back and various other joints yet cannot get help from pain killers.”

   ·“I now have Adjustment Disorder with depressed and anguish features due to my inability to work as I have worked for the last 40 years and am having difficulty accepting that I cannot do so now.”[8]

   [8] Ibid, PT24, p 180.

9. On 31 August 2016, the AAT1 affirmed the decision under review. The AAT1 assessed the Applicant as having a total impairment rating of 30 points, but found that he had not adequately participated in a program of support. The AAT1 made the following findings:

   ·The Total Impairment Rating was 30 points, made up as follows:

   oSLE and Sjogren’s Syndrome – 10 points under Table 1;

   oSLE and Sjogren’s Syndrome – 10 points under Table 2;

   oSLE and Sjogren’s Syndrome – 0 points under Table 4;

   oUpper digestive tract conditions – 5 points under Table 10; and

   oLower digestive tract conditions – 5 points under Table 13.

   ·Participation in a program of support commenced on 29 July 2016 (seven months after claim was lodged).

10. On 11 October 2016, the Applicant’s representative lodged an Application for Review of Decision with the Tribunal.[9]

    [9] Ibid, T2, p 3.

    LEGISLATIVE FRAMEWORK

11. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

12. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 8 December 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[10] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 8 December 2015 and 8 March 2016.

    [10] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

13. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (“Bobera”) at [34]:

    the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

    [my underlining]

14. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[11] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[12] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[13]

    [11] See s 26(1) of the Act.

    [12] See s 5(2) of the Determination.

    [13] See s 6(1) of the Determination.

15. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[14] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[15]

    [14] See s 6(3) of the Determination.

    [15] See s 6(4) of the Determination.

16. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[16]

    [16] See s 6(5) of the Determination.

17. 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 two years; or

    b)    the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[17]

    [17] See s 6(6) of the Determination.

18. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[18]

    [18] See s 6(7) of the Determination.

19. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[19]

    [19] See s 11(1) of the Determination.

20. Even where an applicant does meet the requirements for 20 impairment points, an applicant must meet the requirements in sub-section 94(1)(c)(i) of the Act, namely, that they can demonstrate a continuing inability to work via participation in a programme of support. In respect of this requirement, all the criteria in sub-section 94(2) of the Act need to be satisfied. In the case of an applicant with a severe impairment[20], that applicant is deemed to have actively participated in a programme of support within the meaning of sub-section 94(3C) of the Act.[21]

    [20] A “severe impairment” is one capable of being rated at 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table: s.94(3B) of the Act.

    [21] Subsection 94(3C) provides: “A person has actively participated in a programme of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection”.

    ISSUES FOR THE TRIBUNAL

21. The issues that arose in this review were:

    (a)whether the Applicant had one or more physical, intellectual or psychiatric impairments during the relevant period;

    (b)whether alone or together those impairments cause a functional impact such that they can be rated 20 points or more under the Impairment Tables;

    (c)Whether the Applicant has a severe impairment (that can be rated 20 impairment points) or participated in a program of support; and

    (d)if so, whether he had a continuing inability to work.

22. For the reasons outlined below, I am of the view that the Applicant’s impairments can together be rated at 20 points under the Impairment Tables, but his failure to adequately (or at all) participate in a programme of support means that he cannot demonstrate a continuing inability to work. He thus does not satisfy s 94(1)(c) of the Act and does not qualify for the DSP via this application.

    CONSIDERATION

    Does the Applicant have a physical, intellectual or psychiatric impairment pursuant to subsection 94(1)(a) of the Act?

23. The Respondent has made a helpful concession with reference to s 94(1)(a) of the Act in that it accepts the following of the Applicant’s conditions constitute impairments pursuant to the Act:

    (a)SLE and Sjogren’s Syndrome;[22]

    (b)Barrett oesophagus, hiatus hernia, GORD and diverticular disease;[23] and

    (c)Adjustment disorder with depressed and anxious features.[24]

    [22] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [34].

    [23] Ibid, [60].

    [24] Ibid, [71].

24. I will address each of these impairments in turn.

    What impairment ratings do the Applicant’s impairments attract?

    SLE and Sjogren’s Syndrome

25. The Respondent helpfully – and in my view, correctly – accepts that the Applicant’s two autoimmune diseases of SLE and Sjogren’s syndrome were fully diagnosed, treated and stabilised during the relevant period.[25] While these two diseases share the categorisation of autoimmune diseases, the symptoms which they cause do not neatly fit within single impairment tables. Rather, they are multifactorial, affecting many different aspects of the Applicant’s function. Consequently, in accordance with s 10(3) of the Determination, each kind of functionality that is impaired by the condition should be assessed under the Impairment Table relevant to that functionality. It seems that the Applicant’s conditions should be assessed under Tables 1, 2, 4, 10, 12 and 14. I will now proceed to do so.

    Table 1 – Physical exertion and stamina

    [25] Ibid, [34].

26. There is little doubt that the Applicant’s conditions affect his function in terms of physical exertion and stamina. However, the question is whether they warrant the award of impairment points under this Table. The Respondent contends that these conditions warrant an impairment rating of 5 points as while it is evident that the Applicant experiences occasional symptoms of shortness of breath and fatigue, the medical evidence does not support the proposition that he suffers from a higher level of impairment.[26] Conversely, the Applicant contends that the Applicant’s impairments meet the 20 point threshold under this Table.[27] This is on the grounds that the Applicant experiences:

    (a)    Excessive tiredness and very little capacity for movement, including walking sitting and standing.

    (b)    Limited capacity to walk around a supermarket, the applicant is forced to stay in the car of [sic] only come in for a very short amount of time.

    (c)    The applicant is unable to use public transport through a combination of difficulty with stairs and inability to sit on public transport due to pain.

    (d)    Inability to sit in one place for periods of 10 to 15 minutes, and experiences a burning pain in his lower back when he does.

    (e)    The applicant is unable to help with household tasks or gardening beyond basic cooking.

    [footnotes omitted]

    [26] Ibid, [37]-[39].

    [27] Exhibit 2, Applicant’s SFIC, [28].

27. In order to assess which is the appropriate impairment rating to assign, one must of course have reference to the relevant Impairment Table. Under Table 1, to attain a rating of 20 points, an applicant must meet the following criteria:

    There is a severe functional impact on activities requiring physical exertion or stamina.

    1The person:

    (a)    usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

    (i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

    (ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

    (iii)use public transport without assistance; or

    (iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

    (b)    has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

    [emphasis added]

1. The bolded portion of the above extract is important: the functional difficulties suffered by an applicant must relate back to their symptoms such as shortness of breath or fatigue. It is apparent that, if the Applicant suffers pain in his lower back when sitting which prevents him from using public transport, as he alleges, the source of his reduced functionality is not his symptoms relating to physical exertion. Rather, it is as a result of an impairment of spinal function. Consequently, I consider that only points (a), (b) and (e) raised by the Applicant are properly raised in assessing which impairment rating the Applicant’s conditions attract under Table 1.

2. As observed by the HPAU, the Applicant experienced symptoms of fatigue when performing physically demanding activities. The resulting effects of these symptoms are suggestive of a mild impact on his activities requiring physical exertion or stamina because of:

   (a)his stated difficulty walking to local facilities without stopping to rest (consistent with descriptor 5(1)(a)(i) of the Impairment Tables); and

   (b)his stated difficulty in performing active tasks and household activities (consistent with descriptor 5(1)(a)(ii) of the Impairment Tables).

3. Unfortunately for the Applicant, is it hard to identify evidence specifically relating to the impact of the Applicant’s conditions on physical exertion and stamina during the relevant period in the manner required to satisfy the test posed in Table 1. Dr Salama noted in his report of 3 December 2015[28] (i.e. during the relevant period) that the Applicant “…needs assistance in his day to day function” and that “He is unable to do any form of lifting.” However, that does not go to the question of physical exertion or stamina per se. To the extent that they might, those observations seem at odds with the Applicant’s capacity to travel internationally during the period March – July 2015 when he undertook two return trips to Malaysia.[29] Dr Salama’s abovementioned observations also seem at odds with the Applicant’s reporting to the JCA and AAT1 review that:

   (a)he was capable of completing light household tasks such as food preparation when his symptoms are settled;[30]

   (b)he was capable of walking for short periods but for no more than five minutes; and

   (c)he could use public transport as long as his back is supported.[31]

   [28] Exhibit 2, T Documents, T14, p 113.

   [29] Ibid, T26, p 183.

   [30] Ibid, T16, p 147.

   [31] Ibid, T3, p 14.

4. Dr Salama, as recently as 26 June 2017, has noted the Applicant can walk unaided and can walk unassisted in the shopping centre. To the extent the Applicant’s reporting of his symptoms – outside the relevant period – indicates a worsening or intensification of his symptoms such that the impact on his functional capacity is now more severe than it was, then this must be ventilated in a fresh claim for the DSP. This is consistent with the Tribunal’s comments in Bobera that have the practical effect of preventing this Tribunal to use any evidence of progression of the Applicant’s symptoms to directly award the DSP to this Applicant via this application.[32]

   [32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].

5. In consideration of the above, I consider that the correct and preferable decision is to find that the Applicant’s impairment attracts a rating of 5 impairment points under Table 1. While the Applicant’s level of impairment now may differ greatly from late 2015, it is important to remember that this decision must relate back to his physical state at the time he lodged his claim or 13 weeks thereafter.

   Table 2 – Upper Limb Function

6. The Applicant and the Respondent each agree that the Applicant should be assigned 10 points for his upper limb function under Table 2.[33] For the following reasons, I agree.

   [33] See Exhibit 2, Applicant’s SFIC, [30] and Exhibit 1, Respondent’s SFIC, [46].

7. The 10 point descriptors are recorded in the Impairment Tables as follows:

10

There is a moderate functional impact on activities using hands or arms.

(1)The person has difficulty with most of the following:

(a)picking up a 1 litre carton full of liquid;

(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c) holding and using a pen or pencil;

(d) doing up buttons or tying shoelaces;

(e) using a standard computer keyboard;

(f)unscrewing a lid on a soft-drink bottle.

1. It is largely beyond argument that the Applicant meets the moderate descriptors appearing in 10(b), (d), (e) and (f) of the Impairment Tables. He reports:

   (a)difficulty in picking up a light but bulky object requiring the use of two hands together (descriptor 10(1)(b));

   (b)doing up his buttons or tying his shoelaces (descriptor 10(1)(d));

   (c)using a standard computer keyboard (descriptor 10(1)(e)); and

   (d)unscrewing a lid on a given receptacle (descriptor 10(1)(f)).

2. An applicant qualifies for a finding of moderate functional impact if they can demonstrate difficulty with most of the descriptors in this 10 point part of the Table.[34] Here, it is clear the Applicant has difficulty with four of the six listed functions. On this basis, my finding is that the Applicant’s symptoms fall within the 10 point descriptors in the Impairment Tables.

   [34] See, e.g. The Guide, Instruction 3.6.3.50.

3. Such a finding is, to my mind, supported by the evidence of Dr Salama who, in his report of 3 December 2015 prepared for a derivative entity of the Respondent (Centrelink), noted that the Applicant “…needs assistance in his day to day function, for example, getting dressed, having a bath and he cannot open a jar of food and his wife has to assist him. He is unable to do any form of lifting.”[35]

   [35] Exhibit 2, T Documents, T14, p 113.

4. The 20 point descriptors are recorded in the Impairment Tables as follows:

20

There is a severe functional impact on activities using hands or arms.

(1)Most of the following apply to the person:

(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c) the person has difficulty using a computer keyboard despite appropriate adaptations;

(d) the person has severe difficulty using a pen or pencil;

(e)the person has severe difficulty turning the pages of a book without assistance.

1. The evidence does not point to the Applicant being able to demonstrate a severe functional impact on activities involving the use of his hands and arms. In particular, the Applicant has given evidence of being capable of picking up a two litre drink container with his right hand and of being able to use a computer keyboard, albeit very slowly and with one hand.[36] There is further evidence that the Applicant does go to the shops with his wife and that he does assist her to “choose fruit.” Further, the Applicant says he can assist with “basic cooking”.[37]

   [36] Ibid, T3, p 14.

   [37] Exhibit 1, Respondent’s SFIC dated 3 November 2017, attachment (b) comprising Statement of the Applicant dated 2 October 2017.

2. The Applicant’s capacity to (1) pick up a two litre drink container with one hand; (2) choose goods while shopping; and (3) undertake albeit basic cooking duties is not indicative of him having either limited movement or co-ordination in both arms or both hands (descriptor 20(1)(a)) or of him having severe difficulty in handling, moving or carrying most objects (descriptor 20(1)(b)).

3. Given the evidence that the Applicant, after the relevant period, commenced a training course, and in the absence of any evidence that he cannot undertake the following activities, I find it hard to accept that the Applicant can demonstrate to the requisite level:

   (a)a severe difficulty using a pen or pencil (descriptor 20(1)(d)); or

   (b)a severe difficulty turning the pages of a book without assistance (descriptor 20(1)(e)).

4. I am therefore of the view that the Applicant does not meet enough of the 20 point descriptors for me to be satisfied that his impairments have a severe functional impact of his symptoms on activities using his hands or arms.

   Table 4 – Spinal Function

5. The Respondent contends that there is insufficient medical evidence to verify the extent of any impairment in terms of spinal function that the Applicant may suffer from, and so concludes that no impairment points should be assigned.[38] Conversely, the Applicant contends that he should be assigned an impairment rating of 20 points for this aspect of his functional impairments.[39]

   [38] Ibid, [50].

   [39] Exhibit 2, Applicant’s SFIC, [32].

6. As I understood the Applicant’s evidence, he contends that his symptoms affecting his spinal function entitle him to 20 impairment points (thus indicating a severe functional impact on activities involving spinal function) as a result of these things:

   (a)he says (i.e. self-reports) he cannot lift his hands over his head;

   (b)he says (i.e. self-reports) he cannot bend to fold clothing and put it away;

   (c)he says (i.e. self-reports) he is unable to remain seated for more than 10 or 15 minutes, but is able to sit in or drive a car, with suitable padded seats for up to that time.[40]

   [40] Ibid, [31].

7. The above three things, the Applicant says, are consistent with a severe functional impairment and that he “…should be assigned 20 points on Table 4”.[41] The only medical evidence in support of this is a letter from Dr David Spencer dated 22 April 2016. Dr Spencer noted that the Applicant “has quite a deal of musculoskeletal pain around the cervical spine and shoulders”.[42] However, this does not attest to there being any functional impact and so is of little use in determining the present issue.

   [41] Ibid, [32].

   [42] Exhibit 3, T Documents, T19, p 157.

8. I cannot agree with the Applicant’s contention relating to his impairment rating under Table 4 for several reasons. First, the introduction to Table 4 makes it clear that the diagnosis of an asserted condition must be made by an appropriately qualified medical practitioner and that self-reporting of symptoms alone is insufficient. There is a plain requirement for corroborating evidence of an asserted impairment.[43]

   [43] Ibid, T4, p 42.

9. Second, the three things relied upon by the Applicant to indicate a severe functional impairment do not square with or otherwise cannot be related to the stipulated activities at 20(1) of Table 4 – Spinal Function. Those items are stated thus:

20

There is a severe functional impact on activities involving spinal function.

(1)The person is unable to:

(a) perform any overhead activities; or

(b) turn their head, or bend their neck, without moving their trunk; or

(c) bend forward to pick up a light object from a desk or table; or

(d) remain seated for at least 10 minutes.

1. There is not a sufficient connection between the three abovementioned things asserted by the Applicant on which he bases a severe impairment and any of the nominated 20 point descriptor items.

2. There are further difficulties with any impairment points being allocated to the Applicant’s asserted symptoms affecting his spinal function. As mentioned earlier, there is no corroborative medical evidence of any functional impairment relating to any spinal pain the Applicant may suffer from. Further, in his evidence to the AAT1 review, the Applicant spoke of being able to raise one arm above his head, looking around and moving his neck, bending forward to pick up a light object with one hand and standing up from a chair.[44] Taken in totality, the absence of corroborative medical evidence, the exclusive reliance on self-reporting and the inherently contradictory evidence given at AAT1 each militate against the allocation of any impairment points to the Applicant’s (self-reported) symptoms relating to his spinal function. Accordingly, I allocate no impairment points pursuant to Table 4 – Spinal Function.

   [44] Ibid, PT3, p 15.

3. As noted by the Respondent, there may well be a marked deterioration in the Applicant’s spinal functioning following the qualification period. To again return to the Tribunal’s comments in Bobera,[45] it is not open to this Tribunal to use any evidence of progression of the Applicant’s symptoms to directly award the DSP to this Applicant via this application.

   Table 10 – Digestive and Reproductive Function

   [45] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].

4. The Respondent considers that, although the Applicant’s autoimmune conditions do have an impact on his gastrointestinal function, the assessment of the impact of these conditions on this function is best considered alongside that of the Applicant’s other gastrointestinal diseases, which are to be considered below.[46] It appears that the Applicant has adopted a similar approach.[47]

   [46] Exhibit 1, Respondent’s SFIC, [55].

   [47] See Exhibit 2, Applicant’s SFIC, [33]-[37].

5. There seems common ground between the parties that a number of the Applicant’s gastrointestinal symptoms arise from his asserted auto-immune conditions. It seems clear that the Applicant’s auto-immune condition (primarily, Sjogren’s syndrome) has some level of functional impact on his digestive function.

6. Accordingly, the correct approach is to apply the provisions of ss 10(5) and 10(6) of the Determination. The combined effect of those two sub-sections is that where two or more conditions cause a common or combined impairment, a single rating should be assigned under a single table. This approach avoids an outcome whereby a separate impairment rating would be assigned to each condition thus resulting in the same impairment being assessed more than once. I will re-visit the question of allocation of impairment points pursuant to this Table 10 when I consider the Applicant’s conditions relating to Barrett oesophagus, hiatus hernia, GORD and diverticular disease.

   Table 12 – Visual Function

7. The Respondent contends that although Dr Salama reported that the Applicant had developed “dry eyes”,[48] a rating cannot be attributed under this Table unless the condition has been diagnosed “with supporting evidence from an opthamologist”.[49] I consider this contention to be well-made; accordingly, I cannot assign any impairment rating under this Table for this condition.

   [48] Exhibit 3, T Documents, T12, p 109; T14, p 113.

   [49] Exhibit 1, Respondent’s SFIC, [57]; The Determination, Introduction to Table 12.

8. The introduction to Table 12 – Visual Function – makes the position clear:

   The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.

   [my underlining]

9. There is thus an evidentiary shortfall preventing allocation of impairment points pursuant to this Table 12 because there is no evidence from an ophthalmologist confirming the diagnosis of “dry eyes” from Dr Salama. Accordingly, no impairment points can be allocated pursuant to this Table 12.

   Table 14 – Skin Function

10. Taken at its highest, any impairment points attributable pursuant to this Table 14 – Functions of the Skin – has been expressed by the HPAU in his/her report of 11 July 2017. According to the HPAU:

    …persons with SLE [Systemic lupus erythematosus] should wear sunscreen and protective clothing or avoid sun exposure to limit photosensitive rash or disease flares. Therefore, a rating using Table 14 – Functions of the Skin – would be appropriate. The customer can be assigned 5 points for a mild impairment due to the need to difficulties [sic] involved in performing activities involving exposure to sunlight due to heightened sensitivity to sunlight and will need to take higher than normal precautions to limit sunlight exposure due to photosensitive rash and flare of symptoms.[50]

    [50] Exhibit 3, T Documents, T22, p 164.

11. Nowhere in the Applicant’s SFIC is there any reference to any functional impairment relating to disorders of, or injury to, the Applicant’s skin.

12. In the absence of any medical evidence or even self-reporting indicating any impairment in activities requiring healthy, undamaged skin during the qualification period, no impairment rating under Table 14 – Functions of the Skin – can be allocated in this matter.

    Barrett oesophagus, hiatus hernia, GORD and diverticular disease

13. As alluded to earlier, the above collection of asserted conditions and/or symptoms facilitates an assessment of impairment points pursuant to two Tables comprising:

    ·Table 10 – Digestive and Reproductive Function; and

    ·Table 13 – Continence Function.

    Table 10 – Digestive and Reproductive Function

14. There is a helpful concession by the Respondent that the Applicant’s digestive conditions were fully diagnosed, treated and stabilised during the qualification period.[51] Further, the Respondent makes the pertinent and critical differentiation between the level of impact of these conditions based on medical evidence available now compared to the state of the medical evidence during the qualification period. I must therefore limit myself to the evidence that relates back to the Applicant’s state during the relevant period, that period being from 8 December 2015 to 8 March 2016.

    [51] Exhibit 1, Respondent’s SFIC, p 10, para [60].

15. The descriptors relating to a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition are stated thus:

5

There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1)At least one of the following applies:

(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or

(b) the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition. [52]

[52] Exhibit 3, T Documents, T4, p 51.

1. Put at its highest, I think the assessment of any impairment points pursuant to Table 10 – Digestive and Reproductive Function – for the total effect of the above four conditions on the Applicant’s digestive functional capacity warrants the allocation of five impairment points. This was the approach of the HPAU who made these observations and findings:

   The customer’s gastrointestinal disorders have been diagnosed as Barrett oesophagus, hiatus hernia, GORD and diverticular disease. Formal diagnosis was made following endoscopic investigations and specialist review. Treatment is with Pariet (rabeprazole) and antacids as required. The customer is reported to have reflux and epigastric discomfort. The customer reported the condition affects his digestion, he is unable to drink water and has developed a persistent cough recently. The client reported reflux on a daily basis which is aggravated by bending over and eating certain foods. The client reported that the medication provides some relief and care regarding dietary intake helps with symptoms.

   Barrett Oesophagus is a complication of GORD secondary to refluxate eroding the oesophageal mucosa. This condition causes increased heartburn, pain and difficulty swallowing. Sjogren’s syndrome causes submandibular pain which will add to the digestive dysfunction.

   Diverticular disease is reported by the customer to cause episodic abdominal pain and diarrhoea. Following a Job Capacity Assessment, GORD was assessed as FDTS and the customer was assigned 5 points for a mild impairment of his digestive function. This impairment rating appears appropriate as the reported symptoms appear to fall within the descriptors of mild to moderate impacts and as per Legislative requirements, the lower of the two ratings must be applied.[53]

   [53] Ibid, T22, p 163.

1. In this impairment rating of five points, the HPAU included five points for the Applicant’s Sjogren’s Syndrome:

   The customer’s diagnosed Sjogren’s syndrome can be considered as FDTS and causes parotid gland swelling and submandibular pain. These reported impacts will be included in the previously used Table 10.[54]

   [54] Ibid, p 164.

2. As observed by the Respondent, the state of the medical evidence as at the relevant period is such that “…the Applicant’s attention and concentration performing tasks was sometimes (on most days) interrupted or reduced by pain and other personal care needs associated with his digestive dysfunction.”[55]

   [55] Exhibit 1, Respondent’s SFIC, p 10, para [63].

3. The state of the medical evidence both prior to and after the relevant period points towards a mild functional impairment. In his Medical Certificate prepared for Centrelink on 5 December 2014, the general practitioner, Dr Randal Davis, made a formal diagnosis of (1) diverticulitis; and (2) polyarthralgia with symptoms comprising, inter alia, abdominal pain, diarrhoea, with multiple aches and pains and joint swelling. Dr Davis thought the date of onset of these two conditions was 5 November 2014 for the diverticulitis and 5 January 2014 for the polyarthralgia. In terms of a prognosis, Dr Davis noted his report as “Likely to persist” for both conditions. This opinion dates some 12 months before commencement of the relevant period in December 2015.[56]

   [56] Exhibit 3, T Documents, T6, p 77.

4. Dr Salama, in his medical report of 18 June 2015, prepared for Centrelink, noted the Applicant’s then-current symptoms as “reflux epigastric discomfort”.[57] In his medical certificate dated 31 March 2016,[58] Dr Salama diagnosed the condition of “barret oesophagus and 7 [sic] hiatus hernia” with a primary symptom of “heartburn”. Dr Salama thought this condition was “permanent” and that in terms of a prognosis, he noted the symptoms were “condition stabilised”. Dr Salama’s first report pre-dates the relevant period by some seven months while his second report occurs shortly after the relevant period.

   [57] Ibid, T12, p 107.

   [58] Ibid, T18, p 156.

5. As noted by the Respondent, on 13 January 2016, the Applicant self-reported to the JCA as follows:

   The client reported daily symptoms of abdominal pain and heartburn which were aggravated by eating certain foods and bending over. The client reported impacts on his ability to complete certain care activities and concentrate on tasks.[59]

   [59] Ibid, T16, pp 149 – 150.

6. In the Applicant’s SFIC, in terms of functional impairments upon digestive and reproductive function (Table 10), the following is said:

   The functional impairment of the applicant’s digestive and reproductive function is variable, dependent upon whether he is having a ‘flare up’ of his colitis and diverticulitis[60]

   [60] Exhibit 2, Applicant’s SFIC, p 6, [33].

7. The descriptors relating to a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition are stated thus:

20

There is a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition:

(1)At least two of the following apply to the person:

(a) the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b) the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;

(c) the person’s condition may affect the comfort or attention of co-workers;

(d) the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.

1. In his statement of 2 October 2017 (some 17 months after expiry of the relevant period), the Applicant says:

   2.The Auto-immune diseases and the Digestive diseases have a severe impact on my ability to function.

   3.The Auto-immune diseases have caused extreme pain and swelling in my lower back and in my joints as well as in my neck, jaw, hips and legs.[61]

   [61] Exhibit 1, Respondent’s SFIC dated 3 November 2017 – see attachment A comprising Statement of Applicant dated 2 October 2017, [2]-[3].

2. Given (1) the findings of the HPAU; and (2) the state of the medical evidence prior to and (if at all) during the relevant period, I am of the view that the Applicant’s symptoms arising from his digestive and reproductive function only gave rise to a mild functional impact on work related or daily activities. The totality of the evidence (referable to the relevant period) points to an application of descriptor 5(1)(a) of Table 10 such that the Applicant’s attention and concentration at a task were sometimes (perhaps on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with his digestive dysfunction. Accordingly, I allocate five impairment points to the Applicant’s conditions pursuant to Table 10 – Digestive and Reproductive Function.

3. I have had regard to the descriptors for a severe functional impact pursuant to this Table 10 and do not consider that totality of the medical evidence referable to the relevant period lends any weight to a finding that at least two of the four descriptors in the 20 point or severe category are applicable to the asserted functional impact of these symptoms during the relevant period.

4. To repeat my previous comments, there may well have been a deterioration of the Applicant’s impairments relating to digestive functions following the qualification period. If so, the principles of Bobera apply and it is not open to this Tribunal to use any evidence of progression of the Applicant’s symptoms to directly award the DSP to this Applicant via this application.

   Table 13 – Continence Function

5. There seems to be a fundamental difficulty precluding any assessment of impairment points arising from the functional impact of the Applicant’s conditions on the capacity of the Applicant to maintain continence of his bladder or bowel.

6. As pointed out earlier in these Reasons, the present enquiry is limited to the impact of the asserted symptoms on continence function during the relevant period (8 December 2015 – 8 March 2016). There is no question that his current symptoms clearly manifest some measure of functional impact on the Applicant’s capacity to maintain continence of his bladder or bowel. This is clearly apparent from what he says in his statement of 2 October 2017, his evidence given at the hearing and the notations of Dr Salama in his report dated 2 August 2016.

7. Some five months outside the qualification period, Dr Salama, on 2 August 2016, notes that the Applicant:

   …is currently having symptoms of blood and clots in stools, diarrhea and urgency. He has to go to the bathroom up to 10 times a day and has had a drastic limitation in his ability to work, meet friends etc. He has recently had endoscopy & Colonoscopy for colitis and is awaiting results for his biopsies after which he will see his specialist on 11.08.2016. He has been diagnosed with diverticulosis and colitis, for which he was recently admitted and managed in the hospital.[62]

   [62] Exhibit 3, T Documents, T25, p 181.

8. The Respondent puts forward two contentions in relation to the symptoms now propounded as having impacted upon the Applicant’s continence function as at the relevant period. I think both contentions are fairly made out. First, the Respondent contends that the issues now said to adversely affect the Applicant’s continence function arose after his admission to Campbelltown Hospital on 19 June 2016. The Discharge Referral notes, inter alia:

   PRINCIPAL DIAGNOSIS

   Colitis

   Summary of Progress

   Dear Dr

   Thank you for your ongoing care of Mr Zulkifli Warren, a 61 year old male, who presented to Campbelltown Hospital on 19/06/16 with epigastric pain and fevers. He was admitted under the care of Dr Akima on the General Medicine Team.

   HPC – [history present complaint]

   5 days history fever and chest/epigastric pain

   Loose bowel motions

   5 episodes of PR [per rectum] bleed (patient is colourblind, unsure of time course)

   PR bleed mixed in feces [sic] small amount, no mucus

   …

   Background

   …

   4 Diverticulitis

   …

   Conspicuous superficial stromal haemorrhage and patchy karyorrhexis suggestive of possible ‘bowel prep effect’.[63]

   [63] Ibid, T20, pp 158-161.

9. As noted by the Respondent, the Applicant’s admission to Campbelltown Hospital occurred in June 2016, some three months outside the qualification period. There is no available medical material proximate to or contemporaneous with the relevant period which refers to incontinence of the Applicant’s bladder or bowel.

10. Second, in a certain “Adult Disability Personal Activities” printout (part of a suite of records kept by Centrelink), the Applicant’s then-general practitioner, Dr Adam Hall, noted on        9 January 2015, that the Applicant’s function in relation to both his bowel and bladder was “continent”. Further, Dr Hall allocated a “0.00” score in relation to the severity of any aspect of the Applicant’s bowel and bladder function.[64]

    [64] Ibid, PT26, p 188.

11. The introduction to Table 13 – Continent Function requires, inter alia, the following items to be met before undertaking any exercise aimed at allocation of impairment points:

    .          The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

    .          Self-report of symptoms alone is insufficient.

    .          There must be corroborating evidence of the person’s impairment.

    .          Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

    - a report from the person’s treating doctor;

    - a report from a medical specialist, particularly in cases of moderate or

    severe incontinence, (e.g.… urologist…)…;

    - assessments and reports from practitioners specialising in the treatment and management of incontinence (e.g. urologists…).[65]

    [65] Ibid, T4, p 57.

12. As further contended by the Respondent (to my mind, validly), there is still no medical evidence corroborative of the level of functional impairment described by the Applicant in his statement of 2 October 2017. The Respondent suggests that Dr Salama’s most recent report of 26 June 2017[66] failed to refer “at all” to the issue of incontinence or any functional limitations. That may be only partially correct because Dr Salama does refer to “Colitis” and “Ulcerative Colitis” although there is no expanded explanation by Dr Salama as to how either or both of these conditions affected the Applicant’s continence function during the relevant period or at any subsequent time.

    [66] Exhibit 1, Respondent’s SFIC, attachment A.

13. Given the absence of any medical evidence, self-reporting or other corroborative material indicating any level of functional impact on the Applicant’s capacity to maintain continence of his bladder or bowel at the relevant period, no impairment points can be allocated under this Table 13 – Continence Function.

14. Once again, the Applicant’s issues with continence function may be indicative of a deterioration of this condition following the qualification period. If so, the principles of Bobera apply and it is not open to this Tribunal to use any evidence of progression of the Applicant’s symptoms to directly award the DSP to this Applicant via this application.

    Adjustment disorder with depressed and anxious features

15. Mental health conditions are assessed under Table 5 of the Impairment Tables, which relates to Mental Health Function. Importantly for present purposes, under Table 5:

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).[67]

    [67] The Determination, Impairment Table 5 – Mental Health Function, “Introduction to Table 5”.

16. Thus, even if the Applicant’s mental health conditions are diagnosed by a medical practitioner, that is not enough for him to be able to claim the DSP for them. Rather, such diagnosis must be made either:

    (a)By a psychiatrist; or

    (b)By another appropriately-qualified medical practitioner, with supporting evidence from a clinical psychologist.

17. The Applicant relies on a report dated 19 November 2015 of Dr Samtani, a clinical psychology registrar, who diagnosed the Applicant with “Adjustment Disorder with depressed and anxious features”.[68]

    [68] Exhibit 3, T Documents, T13, p 111.

18. The Respondent takes two issues with this diagnosis. First, it contends, correctly in my view, that there is no evidence that the Applicant’s mental health condition was diagnosed by a psychiatrist.[69] Secondly, it contends that this diagnosis was not made by another appropriately-qualified medical practitioner, with supporting evidence from a clinical psychologist.[70] This latter test requires a diagnosis by both a clinical psychologist and by another, appropriately-qualified medical practitioner. I do not accept the Respondent’s contention that, as Dr Samtani was at the time a registrar, Dr Samtani did not meet the requisite standard to be a clinical psychologist. However, Dr Samtani’s report – alone – is not enough for a mental health condition to be “fully diagnosed”. The lack of another report from an appropriately-qualified medical practitioner in this case means I cannot consider the Applicant’s mental health condition to have been fully diagnosed during the relevant period. It follows that no impairment points can be awarded for it.

    [69] Exhibit 1, Respondent’s SFIC, [75].

    [70] Ibid.

19. In any event, the Applicant only began seeing Dr Samtani in November 2015, and had only attended six sessions of cognitive behaviour therapy prior to and during the relevant period.[71] Particularly in circumstances where Dr Samtani apparently expected during the relevant period that the Applicant’s function would improve,[72] I cannot find that his condition was fully stabilised.

    [71] Exhibit 1,  Respondent’s SFIC, Annexure A.

    [72] Exhibit 3, T Documents, T13, p 112.

20. Consequently, no impairment points can be awarded for this condition.

    Conclusion – impairment rating

21. In view of the above, I find that the Applicant’s conditions attract a total of 20 impairment points, made up as follows:

Impairment Table	Name of Impairment Table	Impairment Points
Table 1	Physical Exertion and Stamina	5
Table 2	Upper Limb Function	10
Table 4	Spinal Function	Nil
Table 5	Mental Health Function	Nil
Table 10	Digestive and Reproductive Function	5
Table 12	Visual Function	Nil
Table 13	Continence Function	Nil
Table 14	Functions of the Skin	Nil
TOTAL IMPAIRMENT POINTS	20

Does the Applicant have a severe impairment?

1. Although the Applicant’s conditions attract a total of 20 impairment points, that is not the end of the inquiry. Section 94(3B) of the Act defines a person as having a “severe impairment” if they have a total impairment rating of 20 points or more, and their impairments attract 20 points or more under a single Impairment Table.

2. Although the Applicant’s conditions attract a total of 20 impairment points, this total is split between different tables. None of the Applicant’s impairments attracts a rating of 20 points or more under a single Impairment Table. Consequently, the Applicant does not have a severe impairment, as defined under the Act.

   Does the Applicant have a continuing inability to work?

3. As the Applicant does not have a severe impairment, I must now turn my mind to the question of whether he has a continuing inability to work. This question must be determined with reference to s 94(2) of the Act, which relevantly reads:

   2A 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)… 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.

4. Importantly, “work” is defined in s 94(5) to be:

   "work " means 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.

5. As the Applicant does not have a severe impairment, he must satisfy the requirements of s 94(2)(aa) in addition to those of ss 94(2)(a) and 94(2)(b). Thus, in order to receive the disability support pension, he must have actively participated in a program of support. Section 94(3C) provides that a person will have actively participated in a program of support if they satisfy the requirements specified in the relevant legislative instrument.

6. The relevant legislative instrument is the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (“the PoS Determination”). Relevantly, a person will be taken to have actively participated in a program of support if:

   (a)they have participated for at least 18 months during the three years prior to their application for the DSP;[73]

   (b)they have completed their program of support;[74]

   (c)the program of support was terminated because the person was unable to improve their capacity to prepare for, find or maintain work by participating in the program of support because of their impairments;[75] or

   (d)the person was participating in the program of support, but was nevertheless prevented, solely because of their impairments, from improving their capacity to prepare for, find or maintain work through continued participation in the program of support.[76]

   [73] The PoS Determination, s 7(2).

   [74] Ibid, s 7(3).

   [75] Ibid, s 7(4).

   [76] Ibid, s 7(5).

7. Significantly, the Applicant only enrolled in a program of support well after he lodged his application for review.[77] He therefore cannot avail himself of the provisions of ss 7(3)-(5) of the PoS Determination, which presuppose that a person has at least attempted to participate in a program of support before they lodge their claim for the DSP. Plainly, the Applicant also cannot have met the requirements of s 7(2) of the PoS Determination, as he has not at all participated in a program of support prior to the lodging of his application for the DSP.

   [77] Exhibit 3, T Documents, T27, p 194.

8. I therefore find that the Applicant has not actively participated in a program of support. As he does not satisfy the requirements of s 94(2)(aa) of the Act, he cannot be said to have a continuing inability to work.

   CONCLUSION

9. Although the Applicant has a number of impairments which attract a total of 20 impairment points split across different impairment tables, he had not, before the relevant period, actively participated in a program of support. I therefore cannot find that he had a continuing inability to work. It follows that I must find that the Applicant was not qualified to receive the DSP at the time he lodged his application for it (i.e. 8 December 2015), or within 13 weeks thereafter (i.e. until 8 March 2016).

1. Accordingly, I affirm the decision under review.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 3 September 2018

Date of hearing:	4 December 2017
Counsel for the Applicant:	Mr M Taylor
Solicitors for the Applicant:	Disability Law Queensland
Advocate for the Respondent:	Ms C Campbell
Solicitors for the Respondent:	Department of Human Services