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

Whalen and Secretary, Department of Social Services (Social services second review) [2017] AATA 182 (16 February 2017)
Division:GENERAL DIVISION
File Number: 2016/4580
Re:Robert Whalen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:16 February 2017
Place:Brisbane

The Tribunal affirms the decision under review.
...............................[Sgd]..............................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant qualifies for DSP – whether 20 points or more under Impairment Tables – anxiety - panic attacks – whether condition fully treated and stabilised – Table 5 – whether severe impairment – whether continuing inability to work within two years of the relevant period – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s 7
Social Security (Tables for the Assessment of Work-related Impairment for Disability
Support Pension) Determination 2011 (Cth) ss 5, 6, 9, 11
Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 4, Schedule 2, Part 2
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Senior Member A C Cotter
16 February 2017
INTRODUCTION

On 18 January 2016, Mr Robert Whalen lodged a claim for Disability Support Pension (“DSP”).
He attended a face to face assessment with a Job Capacity Assessor (“JCA”) in early March 2016, and shortly afterwards, was informed by the Department that his claim was rejected on the ground that he did not have 20 points or more under the Impairment Tables.
His request for a review of that decision by an Authorised Review Officer (“ARO”) was unsuccessful, as was his application for a first tier review of the ARO’s decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal.
Dissatisfied with the outcome, Mr Whalen has applied to the General Division of this Tribunal to undertake a second tier review of the SSCSD’s decision.
For the reasons which I outline below, I consider that the SSCSD was correct in its decision, which should be affirmed.
BACKGROUND
Mr Whalen’s claim for DSP was lodged on 18 January 2016,[1] after an earlier claim lodged by him the previous April was declined. In his most recent claim form (that is, in respect of the January claim), Mr Whalen listed his disabilities and illnesses as “anxiety following acute trauma response” and “occasional panic attacks”.[2] A medical report completed by his general practitioner, Dr Andrew Binns, and lodged in support of the earlier claim, confirmed a diagnosis of “anxiety/ depression/ insomnia/ post traumatic stress”.[3] The impact on Mr Whalen’s ability to function was described as “unable to concentrate”.[4] Dr Binns expected that impact to persist for more than 24 months.[5]
[1] Exhibit 1, T Documents, T 9, pages 100-129, claim form dated 18 January 2016.
[2] Ibid, page 125.
[3] Exhibit 1, T Documents, T 7, page 87, medical report of Dr Andrew Binns dated 28 April 2015.
[4] Ibid, page 89.
[5] Ibid.
Dr Binns’ report was supplemented on this occasion by a report by Mr Whalen’s treating clinical psychologist, Ms Lauren Baker, dated 28 January 2016.[6] She stated that she had been engaged with Mr Whalen since 23 September 2015 and that, at the time of her report, he had attended seven sessions, with more to come. Ms Baker confirmed that Mr Whalen “presents with anxiety that reflects an acute trauma response”. While Mr Whalen did not meet the criteria for PTSD (post-traumatic stress disorder), she thought that he exhibited some symptoms, such as hypervigilance near children and when in public, perpetual fear of being falsely accused, and marked anxiety. Ms Baker noted that Mr Whalen had been in prison and that he had been “exposed to many traumatic events” during that time. The listed symptoms, together with Mr Whalen’s criminal history, impacted on his ability to work, as well as on his relationship with his partner. Ms Baker observed:
Whilst Robert has experienced significant trauma through jail, he is also a resilient individual. Since attending therapy, Robert has improved insight and has engaged well. He seems to have benefited from the strong therapeutic rapport that has established and this is now a safe space for him to discuss his difficulties, without judgement. This is critical in Robert’s recovery… As he has not long exited from jail it is expected that his recovery and adjustment into society will take a minimum of two years. His presentation has now stabilised and he is committed to ongoing psychological intervention.
[6] Exhibit 1, T Documents, T 10, page 130, report of Ms Lauren Baker dated 28 January 2016.
A report was prepared following Mr Whalen’s attending an assessment by a JCA in early March 2016.[7] The JCA recorded Mr Whalen’s symptoms as follows:
Client reports difficulty in public places, impaired sleep, avoidance of crowds, impaired memory (misplaces thing and forgets why he has gone somewhere), difficulty with confined spaces and heat, difficulty near aggressive people, discomfort going out in public places socialising with friends, and use of alcohol to assist with sleeping.[8]
[7] Exhibit 1, T Documents, T 11, pages 131-136, Job Capacity Assessment Report dated 8 March 2016.
[8] Ibid, page 132.
Mr Whalen confirmed to the JCA that he had minimal contact with a psychologist in the preceding six years while he was incarcerated. Noting that Mr Whalen had only recently commenced psychological treatment (less than six months earlier) and Ms Baker’s comment that he would be continuing with his therapy sessions, the JCA concluded that his condition was not fully treated at the time of the assessment.[9] Other conditions mentioned by Mr Whalen during the assessment were not considered medically verified at the time of the assessment.[10]
[9] Ibid.
[10] Ibid, pages 132-133.
Following receipt of the JCA report, Mr Whalen’s claim was rejected on 11 March 2016 on the basis that he had been assessed as not having an impairment rating of 20 impairment points or more.[11]
[11] Exhibit 1, T Documents, T 12, page 137, letter from Department of Human Services to Mr Whalen dated 11 March 2016.
A further report was provided by Ms Baker on 5 April 2016, in which she confirmed that, to that time, Mr Whalen had attended nine sessions with her since September 2015. The report largely reiterated what was said in Ms Baker’s earlier report, although she expressed the opinion that Mr Whalen’s symptoms were moderate and at some times, severe:
They would be considered to be severe when he is faced with a trigger, such as when he is in close proximity to a child or in view of police. When not triggered his symptoms are considered to be moderate.[12]
[12] Exhibit 1, T Documents, T 13, page 140, report of Ms Lauren Baker dated 5 April 2016.
After receipt of that further report from Ms Baker, another JCA assessment was prepared.[13] The JCA on that occasion noted that Mr Whalen had commenced on New Start payments in April 2015 and that he had reported receiving earnings for employment up to 44 hours per fortnight between September and December 2015.[14] In light of Mr Whalen undertaking that work while he was undergoing counselling, the fact that he was committed to undertaking further counselling (despite Ms Baker’s indicating that his condition had stabilised), and Mr Whalen’s reported symptoms, the JCA considered that further improvements in the next 24 months were likely. Consequently, it was concluded that the condition was not fully treated and stabilised.[15]
[13] Exhibit 1, T Documents, T 14, pages 141-146, Job Capacity Assessment Report dated 2 May 2016.
[14] Ibid, page 145.
[15] Ibid, page 142.
The rejection decision was affirmed following a review by an ARO.[16]
[16] Exhibit 1, T Documents, T 15, pages 147-153, letter (and notes) from Authorised Review Officer to Mr Whalen dated 27 May 2016.
The ARO’s decision was in turn affirmed on review by the SSCSD.[17]
[17] Exhibit 1, T Documents, T 2, pages 4-7, decision and reasons for decision of the Social Services & Child Support Division dated 8 August 2016.
Mr Whalen now seeks a review of the SSCSD’s decision by the General Division of this Tribunal.
THE LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“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.
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, 18 January 2016). 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.[18] Therefore, the relevant period for considering whether Mr Whalen qualified for DSP is between 18 January 2016 and 18 April 2016.
[18] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
Previous decisions of both this Tribunal and the Federal Court have emphasised that 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 13 weeks which followed it. Medical reports and other evidence that come into being after the relevant period may still be relevant, but only insofar as they are referable to an applicant’s condition during the relevant period.[19]
[19] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34] (Member Breen); Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).
The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[20] 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.[21] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[22]
[20] See Social Security Act 1991 (Cth) s 26(1).
[21] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).
[22] See Ibid, s 6(1).
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.[23] 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 be more likely than not, in light of available evidence, to persist for more than two years.[24]
[23] See Ibid, s 6(3).
[24] See Ibid, s 6(4).
The following factors are to be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated: 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.[25]
[25] See Ibid, s 6(5).
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[26]
[26] See Ibid, s 6(6).
“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.[27]
[27] See Ibid, s 6(7).
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.[28]
[28] See Ibid, s 11(1).
As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:
(a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B) of the Act); and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.
A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[29]
[29] See Social Security Act 1991 (Cth) s 94(3B).
ISSUES FOR THE TRIBUNAL
Based on the evidence that has been provided, there is no dispute that, at the relevant time, Mr Whalen had a psychiatric impairment for the purposes of s 94(1)(a) of the Act.[30] Consequently, the first of the requirements for DSP is satisfied.
[30] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 12 December 2016, [31].
The remaining issues for me to consider are therefore:
(a)whether, within the relevant period, Mr Whalen’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and
(b)if so, whether Mr Whalen had a continuing inability to work within two years of the relevant period.
I deal with those questions below.
CONSIDERATION
Did Mr Whalen’s impairments attract an impairment rating of 20 points or more?
I address this question by reference to the conditions referred to above.
Mental health condition
It is not in dispute that Mr Whalen’s mental health condition was fully diagnosed.[31] Dr Binns’ diagnosis was confirmed by the clinical psychologist, Ms Baker, as required by the Introduction to Table 5 (Mental Health Function) of the Impairment Tables.
[31] See ibid, [32].
What is in issue is whether Mr Whalen’s condition was fully treated and stabilised during the relevant period. The Secretary contends that it was not, such that no impairment points could be assigned in respect of the impairment.[32] For his part, Mr Whalen relied on the report of Ms Baker, which stated that his condition had stabilised.[33] At the SSCSD hearing in August 2016, he said that a few months earlier, Ms Baker had told him that he was “as good as he will get”.[34] He told me at the hearing that Ms Baker had said that his condition had “plateaued” and therefore, he was not committed to further counselling sessions.
[32] Ibid, [32] and [43].
[33] Exhibit 1, T Documents, T 13, page 140, report of Ms Lauren Baker dated 5 April 2016.
[34] Exhibit 1, T Documents, T 2, page 7, decision and reasons for decision of the Social Services & Child
Support Division dated 8 August 2016, [11].
Dr Binns put the date of onset of Mr Whalen’s condition as 26 March 2015[35] (being the date Mr Whalen was released from prison[36]). However, Mr Whalen told the JCA in June 2015 that he experienced the onset of symptoms over the preceding six years. He said that during that time, he had minimal contact with a psychologist.[37]
[35] Exhibit 1, T Documents, T 7, page 87, medical report of Dr Andrew Binns dated 28 April 2015.
[36] Exhibit 1, T Documents, T 6, page 78, claim form for Disability Support Pension dated 31 March 2015.
[37] Exhibit 1, T Documents, T 8, page 96, Job Capacity Assessment Report dated 3 July 2015.
On Mr Whalen’s release from prison, it appears that Dr Binns first referred him to the psychologist, Ms Lynne Charlston, and later to Ms Baker. Mr Whalen apparently commenced counselling with Ms Charlston on 1 April 2015,[38] although it is unclear how many sessions he attended with her. He told the JCA at the assessment in late June 2015 that at that stage, he had only attended one session, although he had to make further appointments.[39] No reports or other material concerning the sessions conducted by Ms Charlston were produced. Mr Whalen commenced sessions with Ms Baker on 23 September 2015.[40] It is not clear what, if any, treatment occurred in the intervening six months.
[38] Exhibit 1, T Documents, T 7, page 87, medical report of Dr Andrew Binns dated 28 April 2015.
[39] Exhibit 1, T Documents, T 8, page 96, Job Capacity Assessment Report dated 3 July 2015.
[40] Exhibit 1, T Documents, T 10, page 130, report of Ms Lauren Baker dated 28 January 2016.
Mr Whalen told the SSCSD that he found the breathing and mental exercises given to him by the psychologists helpful, but he did not believe that he would ever fully recover.[41]
[41] Exhibit 1, T Documents, T 2, page 7, decision and reasons for decision of the Social Services & Child Support Division dated 8 August 2016, [11].
As mentioned earlier, Mr Whalen said that Ms Baker had told him a few months earlier that he was “as good as he will get”.[42] That is at odds with Ms Baker’s own report of about the same time, in which she spoke of Mr Whalen’s expected recovery and adjustment into society, and his commitment to ongoing psychological intervention.[43] The same report observed that since attending therapy, Mr Whalen had improved insight and had engaged well; he appeared to have benefited from the strong therapeutic rapport that had been established and that he was in a safe space to discuss his difficulties, without judgement.
[42] Ibid.
[43] Exhibit 1, T Documents, T 13, page 140, report of Ms Lauren Baker dated 5 April 2016.
Mr Whalen told the SSCSD that he had declined antidepressant medication.[44] At the hearing before me, he confirmed that antidepressant medication had been suggested to him, but not “pushed”, and that he had declined. However, Mr Whalen did admit to the JCAs that he used alcohol to self-medicate.[45]
[44] Exhibit 1, T Documents, T 2, page 7, decision and reasons for decision of the Social Services & Child Support Division dated 8 August 2016, [11].
[45] Exhibit 1, T Documents, T 8, page 96, Job Capacity Assessment Report dated 3 July 2015; and T 11, page 132, Job Capacity Assessment Report dated 8 March 2016.

It is also noteworthy that neither of Ms Baker’s reports make reference to the fact that Mr Whalen had worked in the last quarter of 2015, during which time he was also undergoing counselling sessions with her. That is inconsistent with her statements that his symptoms and criminal history had impacted on his ability to work.
Having regard to the above matters, I am not persuaded that Mr Whalen’s mental health condition was fully treated and stabilised at the time of the claim or in the relevant period which followed. Apart from his statement that he declined antidepressant medication, there is no suggestion that a comprehensive psychological and pharmacological treatment regime was proposed. Although counselling was recommended by Dr Binns from the outset, it appears that there was a significant and unexplained gap of over six months (between early April and late September) when there was no, or minimal, counselling treatment. While it is true that by January 2016, Mr Whalen had attended seven counselling sessions with Ms Baker (and nine by early April), that was relatively recent as at the date of claim. I am not satisfied that, by that date and the 13 weeks that followed, it could have been confidently said that Mr Whalen’s condition had been fully treated. Although Ms Baker is quoted as saying that his condition was as good as it would get, her report at about the same time anticipated further counselling sessions, she having remarked on Mr Whalen’s improvement to that point. It is also clear that, despite Ms Baker’s comments to the contrary, Mr Whalen’s ability to undertake work was not affected by his condition.
In those circumstances, I accept the Secretary’s submission that, at the relevant time, Mr Whalen’s mental health condition was not fully treated and stabilised. As such, I do not consider that any impairment points can be assigned in respect of the impairment arising from that condition.
In any event, even if (contrary to my finding) the condition were fully treated and stabilised at the relevant time and impairment points could be assigned in respect of the impairment, I do not consider that it would attract more than 10 points under the relevant table, Table 5 (Mental Health Function).
Ms Baker expressed the opinion that Mr Whalen’s symptoms were moderate, and severe at times when faced with a trigger (such as being in close proximity to a child or in view of police).[46] However, she did not indicate the basis for that assessment. Nor did she make any reference to Table 5 or its descriptors.
[46] Exhibit 1, T Documents, T 13, page 140, report of Ms Lauren Baker dated 5 April 2016.
Each of the descriptors in Table 5 contain the same six domains of mental health impairment: self care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity. In determining which descriptor applies to the applicant, most of the domains must apply to him or her in line with the relevant level of severity under consideration.
In respect of at least some of the domains, there is simply insufficient evidence to form a concluded view as to whether they were impacted by Mr Whalen’s condition, and to what extent. However, I make the following observations. There is no suggestion that Mr Whalen’s mental health condition prevented him from looking after himself and living independently; indeed, he stated that he had no difficulty in that regard.[47] Equally, it is clear from Mr Whalen’s employment in the last quarter of 2015 that his condition did not render him unable to work. As to social/recreational activities and travel, Mr Whalen told the SSCSD that his preference would be to undertake physical activity such as bike riding; he told me that he tries to ride up to 100 km per week.[48] He found the breathing and mental exercises provided by the psychologists helpful,[49] telling me that he does crosswords and other activities to keep his brain active and to keep away negative thoughts and memories. He told the SSCSD that he enjoys speaking to interesting people.[50] With respect to concentration and task completion, while it is said that Mr Whalen’s concentration was poor and he was unable to focus on reading and watching television,[51] there is nothing to suggest that his concentration span was reduced to 10 minutes, as noted in the descriptor for severe functional impact. In that regard, I note that Mr Whalen was able to represent himself at the hearing before me without any apparent impediment or difficulty. From that brief overview of more than half the domains, it is at least clear that Mr Whalen’s impairment would fall short of the severe rating.
[47] See Exhibit 1, T Documents, T 6, page 81, Disability Support Pension claim form dated 31 March 2105.
[48] Exhibit 1, T Documents, T 2, page 6, decision and reasons for decision of the Social Services & Child Support Division dated 8 August 2016, [11].
[49] Ibid, page 7, [11].
[50] Ibid, page 6, [11].
[51]Ibid.
Returning to Ms Baker’s assessment, it appears that she, too, considered Mr Whalen’s overall functional impact to be moderate, elevating on occasions to severe in response to specific triggers.
Based on that conclusion, Mr Whalen questioned whether his impairment rating should be set somewhere between 10 and 20 points. Such an assessment is not envisaged, or indeed permitted, by the rules relating to the Impairment Tables. In particular, s 11(1) of the Determination relevantly provides:
(1) In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and…
Further, the Introduction to Table 5 contains an instruction for dealing with mental health conditions that are episodic or fluctuate:
For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.[52]
[52] See also Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 11(4).
Reading those provisions together and having regard to Ms Baker’s assessment, it would appear that she considered that Mr Whalen would meet the descriptors for moderate impairment; on occasions, he would display severe symptoms. As Mr Whalen did not satisfy all the descriptors for severe impairment, it is clear from both Ms Baker’s assessment and my comments above concerning several of the domains, that a moderate rating, rather than a severe rating, would best reflect his overall functional ability. Therefore, if (contrary to my earlier finding) impairment points could be assigned, I do not consider that Mr Whalen’s impairment would attract more than 10 points under Table 5.
Other conditions
At the assessment with the JCA in March 2016, Mr Whalen reported three other conditions which had not been mentioned by him in his claim form. Nor had they been mentioned by Dr Binns in his supporting medical report. In response to the question whether Mr Whalen had any other medical conditions (besides his mental health condition) which were generally well managed and caused minimal or limited impact on his ability to function, the doctor answered “no”.[53]
[53] Exhibit 1, T Documents, T 7, page 93, medical report of Dr Andrew Binns dated 28 April 2015.
The first of the conditions mentioned by Mr Whalen was that he had symptoms of partial hearing loss, making it difficult for him to hear if there is background noise. He stated that he had been reviewed by an audiologist in the past and was awaiting a hearing aid. There was no medical verification of that condition at the time of assessment, nor has any such material been produced since.[54]
[54] Exhibit 1, T Documents, T 11, page 132, Job Capacity Assessment Report dated 8 March 2016.
Mr Whalen also reported suffering symptoms of glaucoma in his right eye. No other information was provided at the time, nor since.[55]
[55] Ibid, page 133.
The third condition mentioned was episodic gout. Again, no medical verification was available at the time of assessment.[56] As far as I am aware, no other material has been provided since that time.
[56] Ibid.
Given the lack of medical evidence verifying the conditions, I do not consider that they could be considered permanent at the relevant time. As such, they cannot be assigned any impairment rating under the Impairment Tables.
Total impairment rating – summary
It follows from what I have said that no impairment points could be assigned under the Impairment Tables. Mr Whalen’s mental health condition, having not been fully treated and stabilised at the time of the claim or during the relevant period, cannot have an impairment rating assigned to it. The three conditions raised by Mr Whalen for the first time at a JCA assessment were not, and have not been, verified by relevantly qualified doctors. As such, they cannot be considered permanent conditions which could attract impairment points.
Mr Whalen therefore did not satisfy the second of the qualifications in s 94(1)(b) of the Act, that the applicant have 20 points or more under the Impairment Tables. As a result, he did not qualify for DSP at the time of the claim or in the 13 weeks which followed it.
Did Mr Whalen have a continuing inability to work?
In light of my conclusion that Mr Whalen did not have the requisite impairment points and therefore did not qualify for DSP, it is unnecessary for me to address this question. Nevertheless, for completeness, I make the following brief comments.
Even if I were wrong, that Mr Whalen’s mental health condition was not fully treated and stabilised during the relevant period such that (contrary to my finding) it could attract impairment points, I do not believe that condition would be considered to have resulted in “severe impairment”, as that term is understood under s 94(3B) of the Act. In other words, that impairment would not attract 20 points or more under Table 5 alone. As I mentioned earlier, I do not believe the impairment would attract more than 10 points under that table.
In those circumstances, Mr Whalen would be required to meet the requirement in s 94(2)(aa) of the Act, that he actively participated in a program of support (“POS”), in order to be regarded as having a continuing inability to work. Generally, that requires a person to participate in a POS for at least 18 months of the 36 months ending immediately before the day on which the claim for DSP is made.[57]
[57] See Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth), ss 7(1) and (2).
As mentioned already, Mr Whalen served six years in prison prior to his release in March 2015. A prison not being a “designated provider” within the meaning of s 9 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (“POS Determination”), it is clear that Mr Whalen had not engaged with a designated provider or commenced a POS in the 36 months immediately preceding his claim.[58] He therefore could not satisfy s 7(2) of the POS Determination. Nor is there any suggestion that he could satisfy the other requirements for active participation in s 7 of the POS Determination.
[58] See also Exhibit 1, T Documents, T 20, page 167, Program of Support referrals printout.
Mr Whalen therefore cannot be found to have a continuing inability to work because he did not actively participate in a POS. Consequently, I do not consider that he could satisfy the requirement in s 94(1)(c) of the Act. He therefore did not qualify for DSP on that basis.
Further, as mentioned earlier, Mr Whalen worked for over three months, from 10 September 2015 to 31 December 2015, picking blueberries.[59] The employment income record of his employer, Mountain Blue Orchards, reveals that on several occasions during that period, he worked in excess of 30 hours per fortnight.[60] As “work” is relevantly defined as work that is for at least 15 hours per week on wages, it is apparent that Mr Whalen’s impairment was not of itself sufficient to prevent him from doing “work” independently of a POS. That is not inconsistent with the JCA reports, which identified Mr Whalen’s baseline capacity for work as between 15 and 22 hours per week, increasing to 23 to 29 hours per week within two years with appropriate interventions.[61]
[59] Exhibit 1, T Documents, T 2, page 6, decision and reasons for decision of the Social Services & Child Support Division dated 8 August 2016, [11].
[60] Exhibit 2(b), employment income record (Mountain Blue Orchards) dated 1 November 2016.
[61] See Exhibit 1, T Documents, T8, page 97, Job Capacity Assessment Report dated 3 July 2015; T 11, page 134, Job Capacity Assessment Report dated 8 March 2016; and T 14, page 144, Job Capacity Assessment Report dated 2 May 2016.
For those reasons, I consider that Mr Whalen did not have a continuing inability to work, and so did not satisfy the requirement of s 94(1)(c) of the Act. He therefore did not qualify for DSP on that basis.
CONCLUSION
To summarise, I do not consider that Mr Whalen qualified for DSP. That is for two reasons. First, he did not have a total of 20 points or more under the Impairment Tables. Second, he did not have a continuing inability to work, as he had not actively participated in a POS and because his impairment was not of itself sufficient to prevent him from doing “work” independently of a POS within two years from the relevant period. I therefore believe that the decision of the SSCSD was correct.
Accordingly, the decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of

Senior Member A C Cotter

.................................[Sgd].......................................
Associate
Dated: 16 February 2017

Date of hearing:
Applicant:

31 January 2017

By telephone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 182

16 February 2017

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