Wykes and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1010

Wykes and Secretary, Department of Social Services (Social services second review) [2020] AATA 1010 (30 April 2020)
Division:GENERAL DIVISION
File Number(s):2018/7031
Re:Grant WYKES
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:30 April 2020
Place:Hobart

The Tribunal affirms the decision under review.
...........................[sgd].............................
A G Melick AO SC, Deputy President
SOCIAL SECURITY - disability support pension – rejection – qualification – medical – Applicant suffers a physical, intellectual or psychiatric impairment – whether the Applicant’s impairments attract 20 points or more under the Impairment Tables – whether the Applicant has a continuing inability to work and has completed a program of support – Applicant found to not have a continuing inability to work during qualification period – decision under review affirmed.

Legislation
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment of Disability Support
Pension) Determination 2011
Cases
O’Amico and Comcare (Compensation) [2018] AATA 54
Re Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Hamal and Secretary, Department of Social Services (1993) 30 ALO 517
Re Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753
Re Latchtord and Secretary, Department of Employment & Workplace Relations [2007] AATA 1459
Re Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
Pollock v Wellington (1996) 15 WAR 1, as cited in Perich and Secretary, Department of Social Services (Social Services second review) [2018] AATA 963
Re Secretary, Department of Social Services v Pusnjak (1999) 56 ALO 444
Re Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500
Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663
Re Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
A G Melick AO SC, Deputy President
30 April 2020
INTRODUCTION

This is a review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 27 November 2018, affirming a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 19 May 2017.
A hearing was held on 2 July 2019. The Applicant was self-represented and assisted by his wife. The Respondent was represented by Senior Government Lawyer, Ms Julie Edwards.
BACKGROUND
The Tribunal finds the following facts as set out in the Respondent’s Statement of Facts, Issues and Contentions, and as agreed by the parties at the hearing, to be accurate and therefore adopts them:
(a)On 19 May 2017, the Applicant lodged a claim for DSP.
(b)On the claim form, the Applicant listed the following conditions: “systemic lupus erythematosus, depression and anxiety, polycythaemia vera and haemochromatosis”.
(c)On 13 June 2017, the Applicant attended a face-to-face assessment with a Job Capacity Assessor (JCA) to aid in the assessment of his qualification for DSP.        The findings of that assessment were:
i.The Applicant’s anxiety was fully diagnosed and fully treated but not fully stabilised and therefore could not be assigned an impairment rating under the Social Security (Tables for the Assessment of Work-related Impairment of Disability Support Pension) Determination 2011 (the Impairment Tables).
ii.The Applicant’s arthritis was not fully diagnosed, treated and stabilised, and therefore could not be assigned an impairment rating under the Impairment Tables.
iii.The Applicant had capacity to work 15-22 hours per week within two years with intervention.
(d)On 12 December 2017, a decision was made to reject the Applicant’s claim for DSP.
(e)On 4 January 2018, the Applicant requested a review of that decision.
(f)On 5 September 2018, the Applicant attended a further face-to-face assessment with a JCA to aid in the review and assessment of his qualification for DSP.               The findings of that assessment were:
i.The Applicant’s anxiety was fully diagnosed and fully treated but not fully stabilised and therefore could not be assigned an impairment rating under the Impairment Tables.
ii.The Applicant’s arthritis was fully diagnosed, fully treated and fully stabilised and could be assigned an impairment rating. The JCA assigned the condition five points under Table 2 of the Impairment Tables.
iii.The Applicant’s sleep apnoea was fully diagnosed but not fully treated and fully stabilised, and therefore could not be assigned an impairment rating under the Impairment Tables.
iv.The Applicant had capacity to work 15-22 hours per week within two years with intervention.
(g) On 21 September 2018, a Departmental Authorised Review Officer (ARO) reviewed and affirmed the decision under review. The ARO’s findings were entirely in accord with the findings of the JCA.
(h) On 2 October 2018, the Applicant requested a further review by the AAT1.
(i)    On 27 November 2018, the AAT1 reviewed and affirmed the ARO decision.      The AAT1 found that the Applicant’s arthritis was fully diagnosed, treated and stabilised and that it should be assigned 10 impairment points under Impairment Table 1. The AAT1 found that this was the only condition that the Applicant suffered from that could be assigned an impairment rating; therefore, the Applicant’s total impairment rating was 10 impairment points.
(j)    On 3 December 2018, the Applicant lodged an application for review of AAT1 decision in the General Division of the Administrative Appeals Tribunal. That is the matter before this Tribunal.
RELEVANT LAW
The relevant law is set out in the:
(a)Social Security Act 1991 (the Act);
(b)Social Security (Administration) Act 1999 (the Administration Act);
(c)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination); and
(d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The Tribunal has also had regard to policy advice contained in the Guide to Social Security Law (the Guide). The Tribunal accepts the Respondent’s contention that to ensure consistency in decision-making, the relevant policy should be followed unless there are cogent reasons to depart from their application.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
ISSUES
Clause 4(1) of Schedule 2 of the Administration Act provides:
If:
i.a person (other than a detained person) makes a claim for a relevant social security payment; and
ii.the person is not, on the day on which the claim is made, qualified for the payment; and
iii.assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the date on which the claim is made; and
iv.the person became so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Therefore, applying this to the present case, the issue before the Tribunal is whether the Applicant was qualified for DSP at the date he lodged his claim, 19 May 2017, or at any time during the 13 week period through to 18 August 2017 (the Qualification Period).
The Tribunal is required to give consideration to section 94 of the Act to determine whether during the Qualification Period:
(a)the Applicant had a physical, intellectual or psychiatric impairment; and
(b)the impairment attracted an impairment rating of 20 points or more under Impairment Tables; and
(c)the Applicant had a continuing inability to work.
Subsection 5(2) of the Impairment Tables Determination relevantly states that the Impairment Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94 (1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign rating to determine the level of functional impact of impairment and not to assess conditions.
Impairment is defined in section 3 of the Impairment Tables Determination to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Subsection 6(3) of the Impairment Tables Determination provides that to apply the Impairment Tables, the condition must be considered permanent and the impairment that results from the condition must be more likely than not, in light of available evidence, to persist for more than two years.
Subsection 6(4) of the Impairment Tables Determination provides that a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Subsection 6(5) of the Impairment Tables Determination states that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated… the following is to be considered:
(a)whether there is corroborating evidence of the condition, and
(b)what treatment or rehabilitation has occurred in relation to the condition, and
(c)whether treatment is continuing or is planned in the next 2 years.
Subsection 6(6) of the Impairment Tables Determination states 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 within 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.
Subsection 6(7) Impairment Tables Determination provides that reasonable treatment is treatment that is:
(a)available at a location reasonably accessible to the person,
(b)is at a reasonable cost,
(c)can reliably be expected to result in a substantial improvement in functional capacity,
(d)is regularly undertaken or performed,
(e)has a high success rate, and
(f)carries a low risk to the person.
EVIDENCE
The Applicant accepted that the evidence he gave at the AAT1 hearing was correct and made a number of submissions which contained matters of fact about his matter. I have treated these in the same manner as evidence and deal with them when considering matters regarding his mental health issues.
I also deal with statements made during submissions at the hearing in the same way as evidence when dealing with the appropriate condition.
CONSIDERATION
Does the Applicant suffer a physical, intellectual or psychiatric impairment?
The Respondent has conceded, and the Tribunal accepts, that the Applicant had relevant impairments during the Qualification Period and that the requirements of paragraph 94(1)(a) of the Act are satisfied.
Do the Applicant’s impairment attract 20 points or more under the Impairment Tables?
The Respondent contended paragraph 94(1)(b) of the Act was not satisfied during the qualification period as the Applicant's impairments attracted a rating of five impairment points.
The Respondent’s submissions in respect of each condition are set out below together with my findings in respect of each.
Arthritis
A report from Dr Andrew Clarke dated 15 May 2017 verifies the condition of seronegative arthritis with an onset of February 2016 (T14, p 197). He reported that the Applicant suffers from stiff, swollen joints that are worse in the morning and that he has poor concentration, poor endurance and is unable to do physical manual work (T14, p 197 to 208).
A report of Dr Stewart Graham dated 1 March 2018 reports that the Applicant's current degree of activity is variable. It states that some mornings are good and he can get up and do what he wants, but other mornings he struggles with pain and is swollen and stiff. (T14, p 214). Dr Graham also reported some clear evidence of hypermobility in the Applicant’s hands.
The Applicant reported to the JCA on 5 September 2018 that he can do up shirt buttons and jacket zips, however he has difficulty with small buttons on sleeves and shirt collars (T11, p 163). On that evidence the JCA assigned five impairment points under Table 2. There was no evidence that there were any other functional impacts affecting other parts of the body at the time of the claim.
The Applicant gave evidence to the AAT1 that all of his joints are affected, not just his hands. His legs and back are also affected. The condition is variable and can flare up at any time (T2, p 8). He gave further evidence that:
·he usually experiences stiffness in the morning and it may take more than five minutes to get out of bed;
·he can only walk very slowly at that time, as his legs are very stiff; and
·he could walk around a supermarket, but leans on the trolley for support and often does not make it around the entire store. He then needs to rest.
In relation to his hands, the Applicant gave evidence that they tend to swell up badly, leaving him unable to do much. He used to do a lot of computer work, but he is now unable to use the keyboard for more than 30 minutes. He said he could lift no more than five kilograms (T2, p 9). The Applicant reported that he takes pain medication to control his symptoms, taking higher doses only when needed.
The AAT1 found that the arthritis condition was fully diagnosed, treated and stabilised, to which the Respondent agreed.
The AAT1 noted that the "evidence in relation to functional impact in the medical reports however is limited" (T2, p 9). Despite this, the AAT1 decided to assign 10 impairment points under Table 1 of the Impairment Tables.
As part of this review, the Applicant provided a letter from Dr Clarke dated 11 February 2019. In that letter, Dr Clarke confirmed that the Applicant was diagnosed with seronegative arthritis in November 2016. He further reported that the condition results in severe muscular skeletal pain and swelling affecting multiple joints across his whole body, in particular the joints in his hands and feet. The report stated that the condition has a significant impact on the Applicant’s ability to carry out physical activities. This included walking any great distance and completing basic chores around the home. It states the Applicant is "unable to perform any heavy manual labour tasks and is unable to remain sedentary or stationary for any length of time without pain and discomfort." The letter reported the Applicant is currently being treated with methotrexate, leucovorin and plaquenil, however over time there may be a gradual deterioration of his symptoms requiring more aggressive forms of treatment.
The Respondent submitted that the AAT1 erred in assigning 10 points under Table 1 of the Impairment Tables. When selecting the applicable table to assess impairments as a result of a condition the Introduction to the Tables requires the following steps to be undertaken:
10. Selection steps
1Table selection is to be made by 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.
2The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single Condition Causing Multiple Impairments
3Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 12)
The Introduction to Table 1 indicates that Table 1 “is to be used where the person has a permanent medical condition resulting in functional impairment when performing activities requiring physical exertion and stamina.” These include conditions commonly associated with cardiac or respiratory impairment or conditions associated with extreme fatigue or exhaustion (T5, p 39). The Introduction to Tables 2 of the Impairment Tables states that arthritis is a condition that should be rated under those tables. The Respondent submitted that the most appropriate Table to rate the arthritis condition under is Table 2, as that is the Table specific to the loss of upper limb function.
The Respondent also submitted that the Applicant's evidence to the AAT1 was not supported by corroborating medical evidence noting that here was very limited medical evidence about the functional impacts of the arthritis condition as at the time of the claim. Dr Clarke's letter dated 11 February 2019 refers to the impact of the condition at the time of the letter and medication he was taking in February 2019, not how the condition presented during the qualification period.
The Respondent further submitted that a rating of 10 points is unreasonable. The AAT1 allocated 10 impairment points under Table 1 of the Impairment Tables because Dr Clarke noted that the Applicant has poor endurance (T2, p 9). The AAT1 did not consider the functional impact of other reported conditions that also impact on the Applicant's endurance. The same report from Dr Clarke indicates that the Applicant's mental health condition causes "no endurance" (T14, p 200). In addition to this, Dr Clarke recorded in his report that the Applicant weighs approximately 140 kilograms and that BMI is an issue (T14, p 217). Given that those conditions are not fully diagnosed, treated and stabilised and those conditions can cause fatigue and lack of endurance, the Secretary submitted that it is not appropriate to consider the functional impacts associated with those conditions in applying the Tables (See 6(3) of the Introduction to the Tables).
The Respondent further submitted that it is impossible to separate and rate the fatigue caused by the arthritis condition and not assess the fatigue caused by the Applicant's weight and mental health condition.
The Respondent’s position was, given the limited medical evidence and concerns about multiple conditions (that are not permanent) causing the same impairment, that the most appropriate rating for the arthritis condition is five points under Table 2. The Secretary further submitted that there was insufficient evidence at the time to find that a rating under Table 3 could be applied.

The Applicant made submissions indicating that at times he could not turn a page but was able to so do during the hearing. I find that the Applicant was truthful throughout the hearing but obviously that incapacity was variable and not permanent.
I accept the Applicant’s description of his condition and consider that the Respondent’s submissions were overly prescriptive. I rate the arthritis condition as 10 points under Table 2.
Major depression/anxiety/panic disorder
The Respondent accepted that the Applicant's anxiety is fully diagnosed but argued that it is not fully treated and stabilised.
A complicating matter in relation to the Applicant’s anxiety condition is that it may have been fully treated and stabilised just prior to the qualifying period, but very early in that period the Applicant was charged with a serious criminal matter which exacerbated his condition.
The charges were withdrawn after pre-trial submissions, but medical reports obtained in relation to the qualifying period indicated that his condition would not be stabilised until the resolution of the court proceedings. This did not occur within the qualifying period.
The Applicant provided a letter from Mr Morrison, dated 16 June 2017, who indicated that the Applicant had first been referred to him on 10 March 2016 and that he had attended 17 sessions (T14, p 209 and 210). In that same letter, Mr Morrison reports that the Applicant's symptoms became worse around March 2017 due to significant legal, social and family-related stressors. He further reported that the Applicant had become unresponsive to treatment and that any improvement was limited. Mr Morrison also noted that this was not likely to change until legal matters involving the Applicant had been resolved (T14, p 209). It was clear on that evidence that there had been deterioration in the Applicant's condition just prior to his claim for DSP.
On 26 June 2017 the Department of Social Services contacted Mr Morrison and he advised that the Applicant's mental health condition was not fully stabilised at this point. He anticipated that the condition would improve once the court matter was resolved. He also noted that the Applicant's impairment in relation to his mental health condition was in the moderate to severe range (T14, p 212).
The Applicant's evidence to the AAT1 was that he had recently been referred to a psychiatrist, as Mr Morrison was no longer available (T2, p 10). He said that Mr Morrison also told him that his condition may or may not improve. The Applicant gave evidence that the psychiatrist had told him that he would need medication to address the severe anxiety and panic attacks, but that he has adverse reactions to most of the medication that has been suggested. The Applicant was due to see the psychiatrist again soon after the hearing to discuss that issue further.
The AAT1 considered all of the above evidence and ultimately found that the Applicant’s anxiety condition was not stabilised and could improve. Therefore, they were unable to assign an impairment rating (T2, p 10).
The Applicant provided two additional letters from Dr Clarke as part of this review. The letter dated 18 January 2019 reports that Dr Clarke had been treating the Applicant since 2000 for issues with anxiety and depression. He reports that in 2013, the Applicant had significant deterioration in his mental health issues with "severe anxiety and depression, these have now stabilised." He also reports that the Applicant had "been having medication and counselling all this time with various counsellors, been no real change in his mental health since 2013." Dr Clarke concluded that the Applicant has been fully diagnosed, managed and stabilised and that there is a severe functional impact associated with the mental condition.
The Respondent contended that Dr Clarke’s report was inconsistent with the information provided by Mr Morrison. Dr Clarke's letter suggested that there has been little change to the condition since 2013, however Mr Morrison, the treating psychologist, reports that there was significant deterioration just prior to the claim. It is noted that Dr Clarke indicates that the condition has now stabilised at 18 January 2019, which supports the AAT1's finding that the condition was not fully stabilised at the time of the claim.
The Applicant provided a further letter from Dr Clarke dated 11 February 2019 as part of this review. That letter reports that the Applicant's condition "has been constant and stable since his application for a disability support pension in May 2017 and that there is very little chance of improvement in his mental health condition over the medium to long term.”
The Respondent submitted that the opinion of Mr Morrison should be preferred over that of Dr Clarke's. The Respondent submitted that very little, if any, weight should be placed upon the letters of Dr Clarke as they were provided well after the qualification period and are not consistent with the evidence provided by Mr Morrison at the time of the claim. The letters express opinions without any explanation of underlying reasoning. These opinions relate to topics such as ability to work, correct impairment rating and permanency of conditions.
As noted in Pollock v Wellington (1996) 15 WAR 1, as cited by Deputy President Boyle and Senior Member Evans in Perich and Secretary, Department of Social Services (Social Services second review) [2018] AATA 963:
"Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight."
The Respondent submitted that the Tribunal should give more weight to specialist physicians who are expert in their field, to the options of general practitioners.[2]
[2] O'Amico and Comcare (Compensation) [2018] AATA 54.
The Respondent further submitted that given there was:
·deterioration in the condition just prior to the claim;
·evidence that the condition was not stabilised from the treating psychologist; and
·a referral to a psychiatrist after the qualification period with recommendations to address his condition,
the mental health condition was not fully treated and stabilised at the time of the claim.
I accept the above submissions and in particular rely upon the opinions of the treating psychologist Mr Morrison, whose reports were provided during or close to the qualifying period.
I also rely upon the Applicant’s evidence noting that the criminal charges, as one would expect, exacerbated his mental condition.
Accordingly I allocate no points in relation to this condition.
Sleep Apnoea and other Conditions
The Applicant also suffers from sleep apnoea, hypertension, gout, asthma, vertigo and reflux.
In relation to the sleep apnoea, Dr Collin Chia wrote that he reviewed the Applicant on 29 August 2018 (T14, p 224). A sleep study completed on 1 August 2018 revealed severe obstructive sleep apnoea. Dr Chia recommended specific sleep therapy and CPAP therapy. The Applicant applied for a "Positive Airways Pressure Device" on 10 October 2018 (T14, p 226).
On the basis of that information, the AAT1 considered that the sleep apnoea was not fully diagnosed, treated and stabilised. I agree with this assessment and note that the Applicant made no submissions to the contrary.
Treating doctor Dr Clarke's report of 15 May 2017 also mentions hypertension, gout, asthma, vertigo and reflux, but that these conditions are managed with appropriate medication and appear to have no significant impact.
Once again, I allocate no points in relation to this condition.
Overall rating
The Secretary contended that the Applicant did not satisfy paragraph 94(1)(b) of the Act during the qualification period as the Applicant's impairments attracted a rating of five impairment points.
I find have found that the Applicant’s impairments attract a rating of 10 points which is still not sufficient to satisfy paragraph 94(1)(b).
Does the Applicant have a continuing inability to work? Section 94(1)(c) of the Act
The Respondent contended that the Applicant did not have a continuing inability to work as defined in subsections 94(2) and 94(5) of the Act.
A person has a continuing inability to work if the Secretary is satisfied they have "actively participated in a program of support" and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, within the next two years. A person with a severe impairment is not required to satisfy the Secretary they have actively participated in a program of support, but will have to satisfy the Secretary the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support, or undertaking a training activity, within the next two years. The availability of local work or training activities is to be disregarded when deciding if a person has a continuing inability to work.
A person's impairment is a "severe impairment'' if it attracts 20 points or more under a single Impairment Table (subsection 94(3B) of the Act).
The Respondent contended that the Applicant did not have a severe impairment, that is, he does not have an impairment of 20 points or more under a single Impairment Table (subsection 94(3B) of the Act).
That means that the Applicant must have actively participated in a program of support within the meaning of subsection 94(3C) prior to the Applicant's claim for DSP (see POS Determination). If he has not done so, he cannot be found to have a continuing inability to work.
Participation in program of support
Generally, a person will be required to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP (subsections 7(1) and 7(2) of the POS Determination).
The Applicant's program of support summary indicates that the Applicant had actively participated in a program of support for 368 days in the 36 months prior to his claim for DSP. Accordingly, the Secretary contends that this requirement is not met.
The Tribunal has strictly enforced the program of support requirement to date, finding that no power exists to dispense with the operation of paragraph 94(2)(aa) of the Act, and that it is irrelevant whether an Applicant was aware of the requirement or not.[3]
[3] See Re Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507; Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663; Re Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753.
The POS Determination addresses situations where a person can participate in a program of support for less than 18 months and satisfy the program of support requirement.
The POS Determination states -
7. Requirements for active participation
(1) A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i)     complied with the requirements of the program of support; and
(ii)    participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2) The subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note:     A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3) The subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
(4) The subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of her or her impairment, to improve her or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) The subsection is satisfied in relation to a person and a program of support if:
(a)at the end of the relevant period, the person is participating in the program of support; and
(b)the person is prevented, solely because of her or her impairment, from improving her or her capacity to prepare for, find or maintain work through continued participation in the program.
The Respondent contended that none of the exceptions set out above apply in the Applicant's case. The Respondent submitted there is no evidence that the Applicant:
(d)Completed a program of support with a duration of less than 18 months during the qualification period (subsection 7(3) of the POS Determination),
(e)Was terminated from a program of support because he was unable, solely because of his impairments, to improve his capacity to prepare for, find or maintain work through continued participation in the program (subsection 7(4) of the POS Determination), or
(f)Was participating in a program at the end of the qualification period and was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation (subsection 7(5) of the POS Determination).
The Respondent contended that the Applicant did not satisfy paragraph 94(2)(aa) of the Act during the qualification period.
The Applicant asserted that he was unable to complete the necessary 547 days because of his mental health condition but I find that none of the exceptions set out above applied in his case.
Continuing inability to work - work capacity
The Respondent submitted that if the Tribunal were to find that the Applicant had actively participated in a program of support (which is not conceded), it would then be necessary for the Tribunal to consider his work capacity during the qualification period.
The term "work" is defined in subsection 94(5) of the Act, as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market.
In the process of determining whether a person has a continuing inability to work, the following factors must be disregarded:
(a)any impairments that have not been assigned a rating under the Impairment Tables;[4]
(b)the availability of work in the person's locally accessible labour market ; [5]
(c)the person's preferences regarding the type of work or training;[6]
(d)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;[7]
(e)the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment[8], and
(f)the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered.[9]
[4] Re Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500; Re Latchtord and Secretary, Department of Employment & Workplace Relations [2007] AATA 1459.
[5] Subsection 94(3)(b) of the Act.
[6] Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.
[7] Re Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
[8] Re Secretary, Department of Social Services v Pusnjak (1999) 56 ALO 444 at {451].
[9] Re Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Services (1993) 30 ALO 517.
The Secretary contended that the Applicant had a work capacity of greater than 15 hours per week and relied on the findings of the JCA which concluded that the Applicant had a capacity for work within 2 years, with intervention, of 15-22 hours per week (T11, p 155). The Secretary contended that the Applicant did not satisfy paragraphs 94(2)(a) and 94(2)(b) of the Act during the qualification period.
Accordingly, the Secretary contended that the Applicant did not have a continuing inability to work during the qualification period and did not satisfy paragraph 94(1)(c) of the Act.
Noting the matters referred to above including nothing advanced by the Applicant to enable him to avail himself of any of the exceptions I find that paragraph 94(1)(c) is not satisfied.
I 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 A G Melick AO SC, Deputy President

..........................[sgd]....................................
Associate
Dated: 30 April 2020

Date(s) of hearing: 2 July 2019

Applicant:

Solicitors for the Respondent:

In person

Ms Julie Edwards