YPKN and Secretary, Department of Social Services (Social services second review) - [2018] AATA 425

YPKN and Secretary, Department of Social Services (Social services second review) [2018] AATA 425 (9 March 2018)
Division:GENERAL DIVISION
File Number: 2017/0095
Re:YPKN
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:9 March 2018
Place:Perth

The decision under review is affirmed.
.....[sgd]...............................................................
Deputy President S Boyle
CATCHWORDS
Disability support pension – impairment tables – qualification period – is there 20 points or more under the impairment tables – continuing inability to work – participation in program of support – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35(3)
Social Security Act 1991 – ss 94, 94(1), 94(2), 94(3), 94(3B), 94(3C), 94(5)
Social Security (Administration) Act 1999 – Schedule 2, cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – 6(4), 6(5), 6(6), 10(5), 10(6), Table 2, Table 3, Table 5
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 – ss 7(1), 7(2)
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
Douglas and Secretary, Department of Social Services [2017] AATA 581
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
Re Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507
Re Hamal and Department of Social Security (1993) 30 ALD 517
Re Latchford and Secretary, Department of Employment and Workplace Relations [2007] AATA 1459
Re Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Tey and Secretary, Department of Social Services [2013] AATA 753
Ulukut and Secretary, Department of Social Services [2014] AATA 399
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
REASONS FOR DECISION
Deputy President S Boyle
9 March 2018
THE APPLICATION

This is an application for the review of the Social Services & Child Support Division of the Tribunal (AAT1) dated 17 December 2016 that affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 30 December 2015 (T111).
A confidentiality order was made under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) on 11 January 2018 giving YPKN his pseudonym and restricting the publication or other disclosure of the Applicant’s name, address and any other information tending to reveal the identity of the Applicant.
THE ISSUES
The issues to be decided in this application are:
(a)whether, as at the date of the Applicant’s claim for DSP (or within 13 weeks of that date), the Applicant had any physical, intellectual or psychiatric impairments;
(b)if so, whether the Applicant’s impairment(s) attracted an impairment rating of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a continuing inability to work.
BACKGROUND
On 30 December 2015, the Applicant lodged a claim for DSP (T111, page 336). The claim attached a medical certificate of Dr Johar dated 7 December 2015 (T110) which diagnosed the Applicant with “injury left knee, left shoulder, lower back, Rt wrist, Rt knee” conditions which were considered permanent and likely to persist and which caused pain in the affected regions, reduced mobility and dysfunction. Dr Johar also diagnosed depression which was noted to be a temporary condition which caused low mood, amotivation and a lack of concentration/attention.
On 29 February 2016, the Applicant was assessed by a Job Capacity Assessor who produced a report (JCA) on 15 April 2016 (T112). The JCA made the following assessment of the Applicant’s conditions:
(a)bilateral knee conditions – fully diagnosed, treated and stabilised and rated 5 points under Table 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables);
(b)lower back condition – not fully diagnosed, treated and stabilised;
(c)right wrist injury – not fully diagnosed, treated and stabilised; and
(d)mental health condition – not fully diagnosed, treated and stabilised.
The JCA also assessed that the Applicant had a baseline work capacity of 15-22 hours per week without any intervention (T112, page 372).
By decision dated 26 April 2016 the Applicant’s claim for disability support pension was rejected (T113).
The Applicant provided a medical certificate of Dr Durack (General Practitioner) on 4 May 2016 which diagnosed “multiple work injuries” and “psychological issues” which Dr Durack noted were “ongoing” (T114).
The Applicant requested a review of the decision. On 22 June 2016 an Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s claim for DSP (T115). The ARO agreed with the JCA’s findings and found that only the lower limb conditions were fully diagnosed, treated and stabilised. The ARO found that the Applicant’s lower limb conditions attracted a 5 point rating under Table 3 of the Impairment Tables.
The Applicant provided a medical certificate of Dr Awasthy (MD Physician) on 2 August 2016 which diagnosed “depression, chronic right shoulder pain and chronic left knee pain” conditions. Dr Awasthy noted that the prognosis of the conditions was uncertain (T116).
The Applicant provided a Verification of Medical Conditions Form completed by Dr Forrester (General Practitioner) dated 24 October 2016 (T117). Dr Forrester recorded that the Applicant experienced the following conditions:
(a)right shoulder bursitis, which was a temporary condition causing right shoulder pain. The condition was noted to have been treated with analgesics in the past and treated with a steroid injection at the time of writing the report. Future treatment was noted to be “rest, stretches”;
(b)“Adjustment disorder - depression/anxiety”, for which the prognosis was “unclear” and which caused low mood, insomnia and a poor tolerance of stress. Dr Forrester noted that the past, present and future treatment was referral to a psychologist; and
(c)bilateral knee pain, which was permanent condition which caused pain and a reduced ability to mobilise. Past treatment was noted to be physiotherapy, orthopaedic review and arthroscopy, whilst current and planned treatment was noted to be exercise and analgesia as required.
Dr Forrester recommended that the Applicant undergo a psychological review and assessment.
On 28 October 2016, Dr Forrester also provided a medical certificate diagnosing the Applicant with right shoulder bursitis which was noted to be temporary (T118).
On 10 November 2016, the Applicant underwent an Employment Services Assessment by telephone. In a report dated the same day (T119) in relation to the psychological condition, the assessor reported:
Dr Forrester indicates that [YPKN] "would need psychology review and assessment" and indicates referral would be actioned. [YPKN] advised that he consulted Psychologist Bertiz Pon over a period of time via telephone while he was able to access this service through Medicare. He said that he attended a Psychology review in Adelaide however was advised he would need to see a Psychiatrist and that this appointment could not be arranged in Adelaide until February 17. [YPKN] said that he has trialled antidepressants previously however reported side effects. Symptoms: Dr Forrester indicates insomnia, low mood, poor tolerance of stress. [YPKN] said that he suffers from insomnia, anger issues, easily agitated and teary, and has difficulty planning and concentrating.
The assessor did not go on to assess whether the condition was fully diagnosed, treated or stabilised. Although the assessor echoed the assessment of the JCA, finding a baseline work capacity of 15-22 hours per week, the assessor considered that the Applicant’s work capacity had temporarily reduced to 0-7 hours per week, noting:
[YPKN] presents with temporarily restricted capacity of 0-7 hours per week until 17/3/17 due to exacerbation of the symptoms and expected treatment associated with the Depression condition and referral to a Psychologist / Psychiatrist which is likely to be protracted due to waiting times and time to benefit from treatment. [YPKN] presented with reduced capacity for work until that time due to depression symptoms including experiencing changes in mood when under stress, which leads to heightened levels of anxiety, withdrawal, disassociation and avoidance.
The Applicant applied for review to the AAT1. On 17 December 2016, the AAT1 affirmed the decision under review (T2 at pages 4-10). The AAT1 found that the lower limb condition was fully diagnosed, treated and stabilised and rated 5 points under Impairment Table 3. The AAT1 also found that the left shoulder condition was fully diagnosed, treated and stabilised but rated nil points under Impairment Table 2. The AAT1 agreed with the JCA that none of the other conditions could be rated under the Impairment Tables. In relation to the mental health condition, the Tribunal at AAT1 was satisfied that the Applicant’s condition was fully diagnosed, but noted the lack of treatment at the time the Applicant lodged the claim meant that the condition had not been fully treated or stabilised.
On 4 January 2017 the Applicant filed the application for review of that AAT1 decision.
THE HEARING
The application was heard by Deputy President Boyle on 22 January 2018. The Applicant appeared by telephone. The Respondent was represented by Mr Burgess instructed by Sparke Helmore Lawyers.
The Tribunal had the following material before it:
(a)Report by Dr Luke Ashford dated 4 January 2018 (Exhibit A1);
(b)Report of Dr Luke Ashford dated 24 August 2017 (Exhibit A2);
(c)Report of Dr Andrew Hooper dated 26 May 2016 (Exhibit A3);
(d)Report of Dr Amarash Dayanandan dated 12 April 2017 (Exhibit A4);
(e)Report of Dr Amarash Dayanandan dated 23 June 2017 (Exhibit A5);
(f)Report of Dr Amarash Dayanandan dated 23 June 2017 (Exhibit A6);
(g)Report of Dr Koorush Kalani dated 14 July 2017 (Exhibit A7);
(h)Serious Injury Certificate dated 14 August 2009 (Exhibit A8);
(i)Referral to orthopaedics doctor dated 20 June 2017 (Exhibit A9);
(j)Facet Joint injection report dated 22 July 2017 (Exhibit A10);
(k)Respondent’s Statement of Facts, Issues and Contentions dated 2 October 2017 and including Annexure A (Respondent’s SFIC) (Exhibit R1); and
(l)T-Documents (inclusive of T1 – T122) and supplementary T-documents (inclusive of ST1-ST12) (Exhibit R2).
LEGISLATIVE FRAMEWORK
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The criteria for DSP are set out in s 94 of the Act which relevantly provides that:
(1) A 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;
(ii)…
Accordingly, the Tribunal must first be satisfied that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, the Tribunal must be satisfied that these impairments are rated at least 20 points under the Impairment Tables. Finally, the Tribunal must be satisfied that the Applicant has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the Act. It relevantly provides as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)...the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
“Work” is defined in subsection 94(5) of the Act as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
IMPAIRMENT TABLES
A very clear and helpful explanation of how the relevant legislation works, in particular how the Impairment Tables work, is set out in the decision of Professor R McCallum AO, Member, in the matter of Douglas and Secretary, Department of Social Services [2017] AATA 581 (Douglas). The Tribunal borrows from and adopts the learned Member’s summary in the following consideration (see paragraphs 25 – 30 in Douglas).
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explained the operation of the Impairment Tables as follows:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables provide that when considering whether a condition is fully diagnosed and treated one must consider: 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.
Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
When assessing lower limb functions under Table 3 of the Impairment Tables, regard must be had to its introduction which provides, in part, as follows:
… The diagnosis of the condition must be made by an appropriately qualified medical practitioner; self-report of symptoms alone is insufficient; [and] there must be corroborating evidence of the person’s impairment.
Finally, when assessing mental health functions under Table 5 of the Impairment Tables, regard must be had to its introduction which provides, in part, as follows:
… The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist); self-report of symptoms alone is insufficient; [and] there must be corroborating evidence of the person’s impairment.
THIRTEEN WEEK QUALIFYING PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Section 4(1) is worded in a complex manner, however, it provides for a 13 week qualifying period for DSP. The effect of this provision is that the Tribunal is required to determine the Applicant’s eligibility for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case that 13 week period is from 30 December 2015 when the Applicant lodged his claim for DSP to 31 March 2016 (the qualification period).
Again, there is a helpful analysis of the relevant law in Member McCallum’s decision in Douglas (paragraphs [33]-[36]):
33.In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said 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.
34.In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [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 relevant period may still be relevant, but only in so far as they are referrable [sic] to the applicant’s condition during the relevant period.
35.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, “[a]ny 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”.
36.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 is 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 relevant period is not directly relevant to the Tribunal’s decision.
CONSIDERATION

The issue for determination is whether the Applicant qualified for DSP in the qualification period by meeting the criteria set out in s 94(1) of the Act.
Does the Applicant suffer a physical, intellectual or psychiatric impairment – s 94(1)(a) of the Act?
The first consideration is whether the Applicant suffers an impairment or impairments which satisfy s 94(1)(a) of the Act. The Respondent accepts that to be the case (paragraph 4.23 of Respondent’s SFIC).
Do the Applicant’s impairments attract 20 point or more under the Impairment Tables – s 94(1)(b) of the Act?
The AAT1 considered a number of impairments. The Respondent contends that section 94(1)(b) of the Act was not satisfied in the qualification period because the Applicant’s impairments did not attract a rating of 20 points.
In relation to each of the identified impairments:
Lower limb condition
The Respondent accepts that the Applicant’s lower limb condition was fully diagnosed, treated and stabilised during the qualification period and that an impairment rating can be given under the Impairment Tables. The Respondent contends that the maximum rating that can be given to this condition is 5 points under Table 3 (paragraph 4.25 of Respondent’s SFIC).
There was a large number of medical reports and certificates in the T documents and in the material submitted by the Applicant in Exhibits A1 to A10. Many of these, however, related to the Applicant’s various conditions many years before the qualification period, or those that post-dated the qualification period did not specifically address the Applicant’s medical conditions during the qualification period. While obviously medical reports and certificates created outside the qualification period can be indicative of the Applicant’s condition during the qualification period (refer to passages from Fanning and Secretary, Department of Social Services [2014] AATA 447 and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 cited in paragraph 34 above) in the present case the medical evidence did not do that with a degree of certainty that would enable the Tribunal to come to a rating different to that made by the Respondent.
The JCA, which had an assessment date of 29 February 2016 (T112), assessed a number of conditions using the numerous medical reports identified in the JCA. These conditions affected the lower limb function, upper limb function, mental health, spinal condition, tinnitus and pain in the sternum possibly associated with long prior open heart surgery. On the basis of the medical evidence presented at that assessment, the impairment to the Applicant’s upper limb function was assessed at a nil rating under Impairment Table 2 and the lower limb function was assessed to attract 5 points under Impairment Table 3.
In relation to the assessment of the Applicant’s upper limb function impairment under Impairment Table 2, the Respondent contends (paragraphs 4.30 and 4.31 of Respondent’s SFIC) that:
4.30 Even if the Tribunal were satisfied that the Applicant’s upper limb condition was fully treated and stabilised (which is not conceded), the Secretary contends that the condition attracts a nil rating under Table 2. The Secretary contends a rating of 5 points is not indicated on the basis that there is no corroborative evidence that the Applicant has difficulty with “most” (or any) of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons; or
(d) reaching up or out to pick up objects.
4.31 The Secretary notes that Dr Johar opined that the Applicant suffered from a permanent wrist injury to the right hand (T110). Without any further information regarding the specific condition from which the Applicant may suffer, the Secretary contends that there is insufficient corroborating evidence to support a finding that the Applicant suffered from a wrist condition which was fully diagnosed, treated and stabilised during the qualification period. Even if the Tribunal were to disagree, the combined functional impairment resulting from any fully diagnosed, treated and stabilised upper limb conditions would need to be rated under Table 2. As contended above, there is no evidence which would support a finding of an impairment higher than nil under Table 2 of the Impairment Tables.
The Tribunal agrees with the Respondent’s submission.
In relation to the other conditions which were identified by the Applicant in his DSP application and which were assessed in the JCA and reviewed in AAT1, the Respondent contended as follows:
Mental health condition
4.32 The Secretary accepts that the Applicant suffered from a “chronic adjustment disorder with mixed anxiety and depressed mood” condition which was fully diagnosed during the qualification period (T109). The Secretary contends that the Applicant’s condition was not fully treated and stabilised during the qualification period on the basis that:
(a)Dr Johar’s report dated 7 December 2015 which noted that the Applicant’s depression condition was temporary.
(b)The Applicant has received little treatment for his conditions. In a report dated 17 October 2013, forensic and clinical psychologist, Mr Cummins reported that the Applicant “presents with very significant psychological problems for which he should be receiving mental health treatment, although he has clearly decided to cope with these problems without receiving treatment”.
(c)Mr Cummins at that time also noted that the Applicant probably suffered from post traumatic stress disorder and had received no psychiatric or psychological treatment.
(d)There is also no evidence that the Applicant had undergone any recent treatment by a psychiatrist during the qualification period.
4.33 Having regard to the lack of treatment that had taken place at the time that the Applicant lodged his claim for DSP, the Secretary contends that the condition was not fully treated and stabilised and therefore cannot be rated under the Impairment Tables.
Spinal condition
4.34 The Secretary contends that there is insufficient evidence to find that the Applicant’s spinal condition was fully diagnosed, treated and stabilised during the qualification period. As such, the Secretary contends that the condition cannot be rated under the Impairment Tables.
Overall Impairment Rating
4.35 The Secretary contends that the Applicant had a total impairment of 5 points under the Impairment Tables (Table 3) during the qualification period. The Secretary therefore contends that the Applicant did not satisfy paragraph 94(1)(b) of the Act during the qualification period as the Applicant’s impairments did not attract a rating of 20 points or more.
No new medical evidence was presented by the Applicant which would cause the assessment made in the JCA or the review undertaken in AAT1 to change. While the Tribunal sympathises with the Applicant’s frustration as he sees himself as being unable to work because of his various medical conditions, the task that this Tribunal faces is to determine whether, based on all of the medical evidence, assessed as required by the Act and the Impairment Tables, the Applicant qualified for a DSP in the qualification period. In that regard the Tribunal agrees with the Respondent’s submission that the Applicant did not satisfy s 94(1)(b) of the Act during the qualification period as the Applicant did not attract a rating of 20 points.
Does the Applicant have a continuing inability to work – s 94(1)(c) of the Act?
As the Applicant must satisfy all of the applicable conditions of s 94(1) of the Act, which in the present case are those set out in subsections (a), (b) and (c), the Tribunal’s finding that the Applicant’s impairments do not attract a rating of 20 points or more, mean it is unnecessary to consider whether the applicant has a continuing inability to work for the purposes of s 94(1)(c) of the Act.
Participation in a program of support
For the sake of completeness, however, the Respondent submits that the Applicant would also fail to satisfy the requirements of s 94(1)(c) of the Act on the basis that the Applicant did not have a continuing inability to work as that term is defined in subsections 94(2) and 94(3) of the Act. The Respondent argues that the Applicant does not have a “severe impairment”, that is an impairment attracting 20 points under a single Impairment Table (s 94(3B) of the Act) and therefore to qualify the Applicant would have to have been participating in a program of support within the meaning of s 94(3C) of the Act prior to the Applicant applying for the DSP.
Whether a person has actively participated in a support program is determined by whether he or she meets the test set out in the program of support (POS) determination. The relevant POS and how a person satisfies the obligation to actively participate in such a POS are set out in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination). In general terms, a person will be required to participate in a support program for 18 months in the 36 months prior to the date of the claim for DSP (ss 7(1) and 7(2) of the POS Determination). In the present case the Applicant has not participated in any support program (T120, page 393).
Strict compliance with the requirements of the program is required and the Tribunal has no power to dispense with the requirement for compliance with s 94(2)(aa) of the Act (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; Tey and Secretary, Department of Social Services [2013] AATA 753.
The Tribunal is satisfied that the Applicant did not satisfy the requirements of s 94(2)(aa) of the Act during the qualifying period.
Continuing inability to work – work capacity
Even if the Tribunal were to find that the Applicant had fulfilled the requirements of s 94(2)(aa) in relation to participation in a support program during the qualifying period, the Tribunal would still need to be satisfied that the Applicant’s impairment prevented the Applicant from doing work.
The term “work” is defined in subsection 94(5) of the Act (see paragraph 24 above), 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 determining whether a person has a continuing inability to work, the decision maker (Tribunal) must disregard a number of factors including:
(a)any impairments that have not been assigned a rating under the Impairment Tables (Re Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500; Re Latchford and Secretary, Department of Employment and Workplace Relations [2007] AATA 1459);
(b)the availability of work in the person’s locally accessible labour market (s 94(3)(b) of the Act;
(c)the person’s preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at [34] and [35]);
(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 (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
(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 (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at [451]); and
(f)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; Re Hamal and Department of Social Security (1993) 30 ALD 517).
The JCA (T112, page 372) assessed the Applicant to have a “capacity for work within 2 years with intervention: 15-22 Hours per week” (see also paragraph 6 above). The Tribunal accepts that the Applicant has a capacity for work as that term is defined in s 94(5) of the Act (see paragraph 52 above).
The Tribunal finds that the Applicant does not satisfy subsections 94(2)(a) and 94(2)(b) of the Act and therefore finds that the Applicant did not have a continuing inability to work during the qualification period and therefore did not satisfy the requirements of s 94(1)(c).
CONCLUSION
The Tribunal finds that the Applicant;
(a)did not have an impairment that attracted 20 points under the Impairment Tables and therefore did not satisfy the requirements of subsection 94(1)((b) of the Act; and
(b)did not have a continuing inability to work and did not satisfy the requirements of subsection 94(1)(c) of the Act;
during the qualification period and therefore did not qualify for a DSP.
DECISION
Accordingly, the Tribunal affirms the AAT1 decision under review.

I certify that the preceding 57 (fifty - seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

.....[sgd]...................................................................
Administrative Assistant - Legal
Dated: 9 March 2018

Date of hearing: 22 January 2018

Applicant: By telephone

Representative for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	22 January 2018
Applicant:	By telephone
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers