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

Wood and Secretary, Department of Social Services (Social services second review) [2020] AATA 434 (5 March 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4803
Re:Christopher WOOD
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. S Parry, Member
Date:5 March 2020
Place:Hobart

The Tribunal affirms the decision under review.
.............................[sgd]......................................
The Hon. S Parry, Member
SOCIAL SECURITY - disability support pension – qualification at date of claim – qualification period – whether the applicant had a physical or psychiatric impairment – impairment rating – continuing inability to work – decision affirmed

Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.
Fanning and Secretary, Department of Social Services [2014] AATA 447.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Hamal and Secretary, Department of Social Services (1993) 30 ALD 517.
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606.
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642.
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846.
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500.
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444.
Secondary Materials
Social Security Guide
REASONS FOR DECISION
The Hon. S Parry, Member
5 March 2020
DECISION UNDER REVIEW

The Applicant applied to Centrelink for Disability Support Pension (DSP) on 2 February 2018. On 23 March Centrelink rejected the application. The Applicant requested an internal review of the decision. On 21 May an Authorised Review officer (ARO) affirmed the decision. The Applicant then sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1). AAT 1 affirmed the ARO’s decision on 17 July 2018. The Applicant now seeks review of the AAT 1 decision by the General Division of the Administrative Appeals Tribunal (AAT 2).
The Tribunal had before it the documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The Respondent also lodged a Statement of Facts, Issues and Contentions (SFIC) on 4 June 2019. Since lodging his application with the Tribunal, the Applicant has filed is an invoice/Medicare claim which shows that he underwent a “CT with surgical procedure” on 15 January 2019.
The issues and facts as stated by the Respondent in its SFIC were not contested and the Applicant relied heavily upon matters that were outside the qualification period. For clarity and convenience, the Tribunal has repeated paragraphs 3.1 to 6.18 of the Statement by the Secretary with minor amendments.
ISSUES
In determining whether the AAT1 decision is the correct or preferable decision, the Tribunal must apply the qualification criteria for DSP in s 94(1) of the Social Security Act 1991 (the Act). In particular, it must consider:
(a)whether, as at the date of claim (2 February 2018) or within 13 weeks of that date, the Applicant had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act; (the qualification period); and
(b)if so, whether the Applicant had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for the purpose of s 94(1)(b) of the Act; and
(c)if so, whether the Applicant had a continuing inability to work, as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
FACTS
The Applicant was 50 years of age at the time of claim.
On 2 February 2018, the Applicant lodged his claim for DSP (T28; T39, p 167). The Applicant listed his conditions as “broken back, severed tendons in right arm, neck issues/lower back, spinal fusion” (T28, p 127).
On 22 March 2018, an Assessment Services Recommendation was completed. The assessor recommended that the Applicant was medically ineligible for DSP as his conditions were not fully diagnosed, treated and stabilised. The assessor noted that the previous Job Capacity Assessment report dated 10 April 2017 was still valid (T29).
On 23 March 2018 the Applicant’s claim for DSP was rejected (T30).
On 21 May 2018, following a request for a review, an ARO affirmed the rejection decision (T33).
On 12 June 2018, the Applicant lodged an application for review with the AAT1.
On 17 July 2018, the AAT1 affirmed the ARO decision (T2).
On 17 August 2018, the Applicant lodged an application for further review (T1).
LEGISLATION AND POLICY
Qualification for DSP
The qualification criteria for DSP are set out in s 94 of the Act, which relevantly provides as follows:
94. Qualification for disability support pension
1A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; ...
The qualification criteria for DSP are cumulative, and if any one of the criteria are not satisfied, the person will not qualify for DSP. The Social Security Guide at 3.6.3.05 importantly notes:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Qualification period
Section 42 of the Social Security (Administration) Act1999 (the Administration Act) provides that a person's ‘start day’ in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act.
Clause 3 of Schedule 2 to the Administration Act provides the general rule that a start day is the day on which a claim is made. Otherwise, a person's qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with clause 4(1) of Schedule 2 to the Administration Act (s 13 Administration Act).
As the date of claim is 2 February 2018, the qualification period for assessing the Applicant’s entitlement to DSP is therefore during the 13 week period from that date until 4 May 2018.
As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to his medical conditions suggesting he may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of his impairments in the qualification period (Shi v Migration and Registration Authority [2008] HCA 31, [144] – [145]).
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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 [emphasis added].
Re Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where Deputy President Handley made the following pertinent observations:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the qualification period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an Applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.
In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
Impairment Tables
The Impairment Tables Determination is made under s 26(1) of the Act. The Impairment Tables commenced on 1 January 2012.
Paragraph 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Paragraph 6(1) states that a person’s impairment must be assessed taking into account the person’s abilities and not what they choose to do or not to do or what others do for the person.
Paragraph 6(3) states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (in accordance with Paragraph 6(4) of the Impairment Tables) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not permanent, the impairment resulting from this condition cannot be assigned an impairment rating. This rule also means that even if the Applicant’s condition causing the relevant impairment is “permanent” but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Impairment Tables.
Paragraph 6(4) provides the meaning of “permanent” for the purposes of paragraph 6(3). A condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised; and
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under Paragraph 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of Paragraph 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
Paragraph 6(6) defines “fully stabilised” for the purposes of paragraph 6(4)(c) and paragraph 11(4) of the Impairment Tables. It provides that a condition is fully stabilised if:
(a)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.
Paragraph 6(7) provides that, for the purposes of paragraph 6(6) of the Impairment Tables, reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Paragraph 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Paragraph 10(1) of the Impairment Tables states that table selection is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
IMPAIRMENTS
The Respondent submitted that, at the qualification period, the Applicant had physical impairments for the purpose of s 94(1)(a) of the Act.
With respect to s 94(1)(b) of the Act, the Respondent contended that none of the Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period, and accordingly no impairment ratings can be assigned to any impairment arising from those conditions.
Spinal condition
The Applicant suffered a T10 fracture and a L2 anterior fracture when he fell from a roof in February 2014. He underwent a posterior spinal fusion (T5 - T7).
A CT of the cervical spine dated 5 June 2015 showed narrowing of discs at C2-C7 as well as degeneration at C2/3 and C4/5 facet joints (T9).
Associate Professor Paul McCrory, consultant neurologist, provided a report dated 24 September 2015 which noted that the Applicant had a posterior effusion from T9 to L1 with bone graft and pedicle screws as a result of an injury in February 2014. Professor McCrory organised for the Applicant to have imaging of the cervical spine and stated that nerve conduction studies performed the previous week were essentially normal (T10).
In a second report, dated 22 December 2015, Professor McCrory noted that the Applicant has ongoing radicular symptoms, particularly in his upper limbs. Professor McCrory noted that the Applicant’s CT scan showed significant spondylotic change with multiple foraminal stenoses at many levels and a (then) recent MR showed significant cervical pathology with a combination of disc/osteophyte change with cord effacement. Professor McCrory recommended neurosurgical review and referred him to a neurosurgeon for an opinion about further surgery (T11).
In a report dated 27 June 2016 (the appointment being on 12 May 2016), Dr Keith Gomes, neurosurgeon, indicated that there was some difficulty in reaching a conclusion about the cause of the Applicant’s symptoms due to the low quality of the available imaging. Dr Gomes stated that following a repeat MRI, he would consider a CT guided nerve root injection targeting the left C7 nerve root and then consider a C6/7 anterior cervical discectomy and fusion (ACDF) (T12).
In an MRI cervical spine report dated 18 May 2016, the Applicant was noted to have “Quite advanced multilevel disc degeneration in the mid and lower cervical region with limited encroachment upon the central canal. Multilevel exit foramen compromise is present” (T13).
Dr Dabash, general practitioner, diagnosed the Applicant as suffering from back pain and a loss of sensation in the left hand, in a medical certificate dated 14 July 2016 (T14).
In a report dated 30 August 2016, Dr Gomes noted that he reviewed the Applicant with the repeat MRI which showed multilevel degenerative changes. Dr Gomes stated that:
…on review today [the Applicant] is essentially asymptomatic. He has no symptoms suggestive of brachialgia and is currently off his lyrica medication.
Dr Gomes stated that if the Applicant developed radicular pain down the left arm, then he should have a CT guided nerve root injection on the left. Dr Gomes stated that he would review the Applicant in 6-12 months and if he remained asymptomatic at that stage, he would be discharged from his clinic (T15).
The Applicant attended physiotherapy appointments on 22 September 2016 and 10 October 2016 (T17-T18). On 14 October 2016, Ms Wallace, physiotherapist, stated that the Applicant reported “numbness in the [left] arm” and “intermittent pain in the [left] leg”. Ms Wallace reported that the Applicant had restricted thoracic range of motion, full cervical range of motion, pain with lumbar extension and significant tone throughout spinal musculature. Ms Wallace stated that treatment would involve massage, a stretching program to complete, and will build to light core/pilates work (T19).
On 31 October 2016, Dr Dabash stated in an open letter that the Applicant has severe degenerative bone disease in his neck and back vertebra and that he is in pain all the time (T20).
The Applicant was booked to attend an appointment with Dr Oehme at the public neurosurgical clinic on 13 April 2017. There is no further evidence before the Tribunal in relation to this appointment or the outcome (T23).
In a report dated 22 January 2018, Dr Caballes-Beaty, general practitioner, stated that the Applicant reported ongoing radicular pain and symptoms in his upper limbs as well as ongoing lower back pain with left leg referred pain, right shoulder pain and left hand paraesthesia. Dr Caballes-Beaty stated that treatment involved annual review by a neurosurgeon and that the Applicant may require neck vertebrae surgery if the neurological symptoms in his arm increase. Dr Caballes-Beaty stated that:
“He currently denies using any analgesia regularly, he reports using paracetamol only averaging once a month.
He is ‘self-medicating’
He admits to smoking average 2 joints of marijuana and up to 15 bongs a day
He drinks approx. 12 full strength stubbies a day.
He last saw physio 10/’16 and has been referred to resume physio locally”

Dr Caballes-Beaty opined that the pain from the thoracic and lower back were likely to persist but that the neck and pain/arm symptoms may or may not improve, dependant on whether the neurosurgeon suggests surgery; but that surgery is “not always definitive for resolution of symptoms” (T27).
A Department occupational therapist assessed the Applicant’s medical eligibility on 22 March 2018 and concluded that while the condition was permanent for DSP purposes, it was not fully treated and stabilised. The officer noted that there was no medical evidence to indicate that the Applicant had participated in all reasonable treatment for the condition - such as recent physiotherapy, ongoing exercise program and pain management program/counselling. The officer opined that with reasonable treatment, significant functional improvement was likely to occur in the next two years (T29).
In a medical certificate dated 1 May 2018, Dr Caballes-Beaty diagnosed ‘lower back pain post trauma’. Treatment included rest, analgesia as needed, and that the Applicant was awaiting further neurosurgery in May 2018, as well as a pending CT of the lower back. (T31).
In a report dated 24 May 2018, Dr Paul Smith, neurosurgeon, opined that the left arm pain referred to the cervical radiculopathy, possibly involving the C6 or C7 nerve roots on the left side. Dr Smith arranged a further MRI and a steroid injection CT guided to the CT nerve sheath. (T34).
According to an invoice, on 15 January 2019 the Applicant underwent a “CT with surgical procedure”. It is not clear whether this treatment related to Dr Smith’s referral or some other condition.
Respondent’s Contentions
The Applicant contended that he suffered a T10 fracture and a L2 anterior fracture in 2014 and required spinal fusion surgery. Since that time, the Applicant has been diagnosed with multilevel disc degeneration in the mid and lower cervical spine in numerous imaging reports, which has been confirmed by his treating specialist and general practitioner. Dr Dabash and Dr Caballes-Beaty have both noted lower back pain at various times (T14, T27, T31). The Respondent accepted that the Applicant has a fully diagnosed spinal condition.
Since the Applicant’s mid-lower spinal injuries in 2014, it appears that the focus of symptoms and treatment has related to the cervical spine and the radiculopathy into the upper limbs. It does not appear that the Applicant’s lower spine has the been the subject of investigation or any treatment since the fusion surgery in 2014; and it was only in May 2018 that Dr Caballes-Beaty referred the Applicant for a CT of the lower back (T31). The Respondent argued that the mid-lower spinal condition was not fully treated and stabilised during the qualification period and that no impairment rating can be assigned to any resulting functional impairment. The Tribunal agrees.
The Respondent further contended that the cervical spine degeneration was not fully treated and stabilised during the qualification period. While the Applicant was seen by a specialist up until mid-2016, he was noted to have been asymptomatic in August 2016 and does not appear to have required any treatment throughout 2017. The Applicant stated in January 2018 that he only took occasional paracetamol and had not undertaken physiotherapy since October 2016. When the Applicant sought treatment in relation to his symptoms in early 2018, he was referred for further treatment including physiotherapy and a CT guided steroid injection. It appears that the Applicant only underwent a CT guided steroid injection subsequent to the qualification period (January 2019). It is not clear whether the ACDF surgery that Dr Gomes had been considering remains to be pursued as a treatment option. The Department occupational therapist also considered that a pain management program may assist the Applicant, which the Applicant advised AAT1 he had not yet pursued.
The Respondent submitted that the Applicant had not undergone reasonable treatment during the qualification period, and the medical evidence does not support a finding that significant functional improvement was unlikely to result with further reasonable treatment. The Tribunal agrees with these contentions of the respondent and finds that the cervical spinal condition was not fully treated and stabilised; and, therefore, an impairment rating cannot be assigned to any resulting functional impairment.
OTHER CONDITIONS
The other injuries suffered by the Applicant due to his fall in February 2014 were a 3rd finger distal phalanx fracture and a frontal lobe petechial haemorrhage. There is no medical evidence that these conditions had any ongoing impact on the Applicant during the qualification period.
In the Applicant’s claim for DSP, he stated that he suffered from severed tendons in his right arm (T28, p 127).
In the Job Capacity Assessor report dated 10 April 2017, the assessor noted that the Applicant reported suffering a laceration injury to the right arm approximately seven years ago. The assessor noted that there were surgical scars and muscle wasting (T26, p 99).
On 27 September 2018, Dr Kisselev requested a right elbow ultrasound and x-ray, noting that there was a history of ‘glass cut of distal arm’ and “? Rupture of the biceps tendon” (T35).
The Respondent submitted that there is insufficient evidence to determine that the right arm condition was fully diagnosed, treated and stabilised during the qualification period.
The Tribunal agrees with the Respondent’s submissions that the Applicant had no fully diagnosed, treated and stabilised conditions at the qualification period. Therefore, the Tribunal finds that the Applicant does not attract any impairment ratings and does not satisfy s94 (1) (b) of the Act.
CONTINUING INABILITY TO WORK
As the Applicant does not satisfy s 94(1)(b), it is not strictly necessary for the Tribunal to consider whether he has a continuing inability to work under s 94(1)(c).
However, for completeness, the Tribunal has considered the Respondent’s contentions on this issue.
The term ‘continuing inability to work’ is defined in s 94(2) of the Act as follows:
2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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
(b)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
(c)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.”
A ‘continuing inability to work’ means that the person cannot ‘work’ within the next two years or that they cannot be retrained or retraining is unlikely to enable them to work within two years (s 94(2) of the Act). ‘Work’ means work of at least 15 hours a week at award wages or above which exists anywhere in Australia (s 94(5) of the Act). A training activity means education, pre-vocational training, vocational training, vocational rehabilitation or work-related training (including on-the-job training), whether or not that activity is designed specifically for people with impairments (s 94(5) of the Act).
Under s 94(2)(aa) of the Act, where a person does not have a severe impairment of 20 points or more under a single impairment table, the person will be required to have ‘actively participated’ in a program of support (POS). If they have not done so, they cannot be found to have a continuing inability to work.
The Respondent submitted that the Applicant does not have a rating of 20 points under a single impairment table.
The term ‘program of support’ is defined in s 94(5) of the Act as a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
A person has ‘actively participated’ in a POS if they have satisfied the requirements set out in the relevant legislative instrument POS Determination (s 94(3C) of the Act).
The POS Determination provides that a person must participate in a POS for at least 18 months within the period of 36 months ending immediately before the day on which the claim for disability support pension is made, before they can be taken to have actively participated in a program of support (section 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014).
The Respondent contended that the Applicant does not meet the POS requirements, as he has not actively participated in a program of support for at least 18 months within the period of 36 months ending on 2 February 2018.
The Respondent highlighted that the ESS Referral history shows that while the Applicant was referred to various POS providers since 2016, he has been granted numerous temporary medical exemptions and was not actively participating in a POS during the period of such exemptions ([T36). During periods of temporary medical exemptions a person may be exempted from complying with the activity test requirements for activity-tested payments such as Newstart Allowance. However, during such periods a person is not attending appointments or activities and is not actively participating in a POS.
The appointment history confirms that the Applicant attended only a few appointments since 2016. This is confirmed by Department of Employment’s participation records which show the Applicant’s total participation in the 36 months ending immediately prior to his claim for DSP (the relevant period) was only 15 days (T36, p161,-165).
There is no evidence that would support a finding that the Applicant was, as at the end of the qualification period, prevented solely because of his impairments, from improving his capacity to prepare for, find or maintain work through continued participation in the POS, in accordance with paragraph 7(5)(b) of the POS Determination.
The Respondent also contended that there is no evidence that the Applicant satisfies s 94(2)(a) and (b) of the Act.
The Respondent relied on a face-to-face Job Capacity Assessment report submitted on 10 April 2017. The assessor, a registered occupational therapist, assessed the Applicant’s work capacity within two years with intervention at 15-22 hours per week. The assessor noted that the Applicant’s fully diagnosed, treated and stabilised work capacities were 30+ hours per week, as he did not have any permanent fully diagnosed, treated and stabilised conditions (T26).
In the process of determining whether a person has a continuing inability to work, the Tribunal must disregard a number of factors , including:
·any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person’s locally accessible labour market (s 94(3)(b of the Act));
·the availability to the person of a training activity (s 94(3)(a) of the Act);
·difficulties with literacy, numeracy or language which are not directly attributable to the impairment;
·the availability to the person of any kind of transport to travel to and from work;
·the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Hamal and Secretary, Department of Social Services (1993) 30 ALD 517).
In this respect the Respondent submitted that the Tribunal should prefer the Job Capacity Assessment of the Applicant’s work capacity, given such assessors have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity (Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642). The Tribunal accepts this submission.
Conclusion
The Tribunal finds that the Applicant fails to satisfy s 94(2)(a) and (b) of the Act. Therefore he does not satisfy s 94(1)(c) of the Act during qualification period. It follows that the Tribunal must affirm the decision under review.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of The Hon. S Parry, Member

..........................[sgd]...........................
Associate
Dated: 5 March 2020

Date(s) of hearing: 25 July 2019

Applicant:
By telephone

Solicitor for the Respondent: Kelvin Defranciscis

[2020] AATA 434

5 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Jurisdiction

Date(s) of hearing:	25 July 2019
Applicant:	By telephone
Solicitor for the Respondent:	Kelvin Defranciscis