Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf (Australia)
SOCIAL SECURITY COMMENTARY Social Security Act 1991 PART 2.3 - DISABILITY SUPPORT PENSION: ss 94-146Q Section 94 Qualification for disability support pension .......................................................................... 1 Qualification for disability support pension ......................................................................................... 1 [94.01] Former invalid pension - 1947 Act and 1991 Act ................................................................................. 3 [94.02] "a physical, intellectual or psychiatric impairment" - s 94(1)(a) .......................................................... 4 [94.03] Assessment of the existence and degree of impairments - s 94(1)(b) ................................................... 8 [94.04] "continuing inability to work" - s 94(1)(c)(i), s 94(2) ......................................................................... 10 [94.05] Active participation in a program of support – s 94(2)(aa), (3C) ........................................................ 13 [94.06] "work" – s 94(1)(c)(i), 94(5) ............................................................................................................... 19 [94.07] [94.08] “any work” - s 94(2)(a) ....................................................................................................................... 22 [94.09] Work shy ............................................................................................................................................ 23 "Australian resident at the time when the person first satisfies paragraph (c)" - s 94(1)(e)(i) ............ 25 [94.10] Relevant date for assessment of disability support pension ................................................................ 30 [94.11] "training activity” – s 94(3)(a), s 94(5) ............................................................................................... 35 [94.12] Relationship with the Disability Discrimination Act 1992
 ................................................................. 35 [94.13] Section 95 Qualification for disability support pension - permanent blindness .................................... 36 Blind pension - general ....................................................................................................................... 36 "permanently blind" – s 95(1)(a) ........................................................................................................ 36 Department Guide to Social Security Law .......................................................................................... 37 "at the time when the person first satisfies paragraph (a)" - s 95(1)(c) ............................................... 38 Section 96 Continuation of disability support pension ......................................................................... 38 Effect of s 96 ...................................................................................................................................... 38 How to work out a person's disability support pension rate ........................................... 39 [117.01] Rate of disability support pension ...................................................................................................... 39 [95.01] [95.02] [95.03] [95.04] [96.01] Section 117 Division 1 - Qualification for and payability of disability support pension Subdivision A - Qualification Section 94 Qualification for disability support
 pension "a physical, intellectual or psychiatric impairment" - s 94(1)(a) [94.01] Qualification for disability support pension [94.02] Former invalid pension - 1947 Act and 1991 Act [94.03] [94.04] Assessment of the existence and degree of impairments - s 94(1)(b) [94.05] "continuing inability to work" - s 94(1)(c)(i), s 94(2) [94.06] Active participation in a program of support - s 94(2)(aa), (3C) [94.07] [94.08] [94.09] Work shy [94.10] [94.11] Relevant date for assessment of disability support pension
 [94.12] [94.13] Relationship with the Disability Discrimination Act 1992 "work" - s 94(1)(c)(i), (5) "any work” - s 94(2)(a) "training activity” – s 94(3)(a), s 94(5) "at the time when the person first satisfies paragraph (c)" - s 94(1)(e)(i) [94.01] Qualification for disability support pension Section 94 establishes the basic qualifications for DSP (at 28 May 2021): (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 Page 1 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 (c) one of the following applies: (i) the person has a continuing inability to work; the Secretary is satisfied that the person is participating in the program administered (ii) by the Commonwealth known as the supported wage system; and (d) the person has turned 16; and (da) … (e) the person either: (i) is an Australian resident at the time when the person first satisfies paragraph (c); or has 10 years qualifying Australian residence, or has a qualifying residence exemption (ii) for a disability support pension; or is born outside Australia and, at the time when the person first satisfies paragraph (c) (iii) the person: (A) is not an Australian resident; and (B) is a dependent child of an Australian resident; and the person becomes an Australian resident while a dependent child of an Australian resident; and (ea) … Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—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 in all cases—the impairment is of itself sufficient to prevent the person from doing any work (a) independently of a program of support within the next 2 years; and (b) in all cases—either: the impairment is of itself sufficient to prevent the person from undertaking a training (i) 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.
Note: For work see subsection (5).

In deciding whether or not a person has a continuing inability to work because of an (3) impairment, the Secretary is not to have regard to: (a) the availability to the person of a training activity; or (b) the availability to the person of work in the person’s locally accessible labour market.

… In summary, in order to qualify for a DSP under s 94, a person must, inter alia: a.

Suffer from permanent physical or mental condition(s); and b.
Score a total of 20 points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 for their impairment resulting from the permanent conditions, and have undertaken a program of support (POS); or Page 2 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 c. Score a total of 20 points under a single Impairment Table (a “severe impairment”) without any program of support; and d. Have an impairment sufficient to prevent them from doing any work for the next 2 years independently of a program of support; and e. Be unable to undertake training in the next 2 years that is likely to enable them to do work independently of a program of support; and f. Satisfy certain Australian residency requirements.
“Work” is defined in s 94(5) to be work which exists in Australia for at least 15 hours a week at or above the minimum wage.

A “severe impairment” is defined in s 94(3B) to exist if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Former invalid pension - 1947 Act and 1991 Act [94.02] Qualification for the invalid pension under the Social Security Act 1947, and the Social Security Act 1991 until 11 November 1991, depended upon "permanent incapacity for work".

A temporary incapacity for work might give rise to entitlement to sickness benefit.
The basic principles of invalid pension were laid down in Re Panke and Director-General of Social Services [1981] AATA 65, which was approved by the Full Federal Court in Annas v Director-General of Social Security [1985] FCA 428.

In McDonald v Director-General of Social Security [1984] FCA 57, Woodward J said a person’s skills, training, qualifications and the state of the labour market were all relevant in determining both the degree of incapacity and its likely duration.
In relation to permanent incapacity, Woodward J noted: The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made.

It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time.
Unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.

(at 1 FCR 360) Woodward J then stated that the true test of permanent incapacity, as distinct from temporary incapacity, was: whether in the light of available evidence, it is more likely than not that the incapacity will persist in the foreseeable future.
(at 1 FCR **) Part 2.3 of the 1991 Act, until its repeal and replacement on 12 November 1991 provided for invalid pension on a basis similar to the 1947 Act.

Section 94 was the basic qualification section for "permanent incapacity for work" and s 95 was the qualification section for permanent blindness.

The Social Security (Disability and Sickness Support) Amendment Act 1991 (No 141/1991) introduced disability support pension on 12 November 1991; it did not have retrospective effect.
Accordingly, any claims for invalid pension made before that day were assessed as a claim for invalid pension and not as a claim for disability support pension: Re Simek and SDSS [1991] AATA 318; Re SDSS and Mifsud [1992] AATA 4; Re Cirkovski and SDSS [1992] AATA 33; SDSS v Cosmano [1998] FCA 1710.
The Minister's Second Reading Speech when introducing the original Bill for substitution of DSP for invalid pension in 1991 gave the following explanation of the reasons for the introduction of the new pension: For many years now, the basis for, and the operation of, invalid pension and sickness benefit have not been satisfactory.
With invalid pension, the problems stemmed from the qualification Page 3 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 criteria set out in the legislation, and subsequently elaborated in administrative law.
With the Administrative Appeals Tribunal (AAT) gaining jurisdiction to hear invalid pension appeals in 1981, a solid body of principles regarding the key concepts of invalid pension were erected, such as the terms "permanently incapacitated for work" and "85% incapacity".

The AAT went a considerable way in taking account of socioeconomic factors and the labour market in assessing a person's incapacity for work.
We reached the stage where a person could suffer from a minor medical condition but, because of a combination of age, education, lack of skills in English, work history and worker's compensation, could end up receiving invalid pension.

Subsequent legislative amendments in 1987 went some way to reducing the impact of socioeconomic factors by introducing a requirement that at least half of the permanent incapacity had to be directly caused by a physical or mental impairment.
At the same time, there were a small but significant percentage of cases where relatively young people, even people in their 20s, who were not manifestly impaired but who were being awarded invalid pension with the expectation that they would continue to receive it on an indefinite bases.

The concept of permanent incapacity for work became self-fulfilling and only some 2 per cent of invalid pensioners went off pension because of their return to employment.
Overall, there has been minimal movement into the labour market by invalid pensioners.

Another important issue has been the failure of any significant number of invalid pensioners to benefit from rehabilitation.

Very few were referred or, if referred, accepted for rehabilitation.

This was basically due to a lack of motivation which again appears to be linked to the fact that invalid pension was regarded as a permanent payment.
(at 2-3) [94.03] "a physical, intellectual or psychiatric impairment" - s 94(1)(a) “Impairment” Cases on categories 1 and 2 Establishing the existence of category 1 and category 2 is a matter for psychiatric evidence “Impairment” In Re Kubbere and SDSS [2015] AATA 307, the Tribunal distinguished between the use of word "impairment" in s 94(1)(a) and in the Tables for the Assessment of Work Related Impairments for DSP: 8.
The requirement of s 94(1)(a) is simply that – (a) the person has a physical, intellectual or psychiatric impairment; 9.

The word "impairment" is not defined in the Act.

I see no reason why the ordinary meaning of "impairment" in common usage cannot be adopted - the action of impairing, or fact of being impaired; deterioration; injurious lessening or weakening (Oxford English Dictionary, online edition, 2015).

10.
10.

The limited definition of "impairment" set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) at cl 3 – "a loss of functional capacity affecting a person’s ability to work that results from the person’s condition" - serves the purposes of s 94(1)(b), but it does not generally restrict the meaning of "impairment" under the Act or under s 94(1)(a).
In Re Panke and Director-General of Social Services [1981] AATA 65, the Tribunal referred to the evaluation in purely medical terms of the person’s physical or mental impairment as being the first step required in a composite process and that this first step “is entirely within the competence of a suitably qualified medical practitioner”.

The second step required the ascertainment of the extent to which the impairments affected a person’s capacity to engage in paid work.
This same dichotomy was expressed by the Tribunal in Re Baum and SDEEWR [2008] AATA 1066 in which it was noted that the two steps are not only distinct steps in temporal terms but also are conceptually distinct issues.

A person may carry quite severe impairments but may still be fit for a wide range of work, and vice versa.
There is a distinction to be drawn between the cases where the person has: 1. a genuine albeit objectively unreasonable belief in the nature and/or severity of their physical impairment; Page 4 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 2. developed a genuine psychological condition often mediated by constant pain from the physical impairment; or 3. adopted a conscious or deliberate attitude of the “work shy” person, or that they choose only to return to work in the kind of work of their own choosing (see [94.09]).
The first category above is referred to by different names in different contexts, but is often referred to in the cases as “abnormal illness behaviour” and forms part of the person’s total impairment.

The second category is a new impairment in its own right.

In Re Chami and SDSS [1993] AATA 171, the Tribunal said: 31.

...We make a distinction between poor motivation of the work-shy (a social phenomenon), and the motivational problems exhibited by this applicant arising out of his injury.
We rely on the decision Malcolm v Broadhurst [1970] 3 All ER 508 in concluding that we must take the applicant as we find him, and this applicant has developed abnormal illness behaviour arising out of his injury for reasons intrinsic to him.
(at 31 ALD 388) Cases on categories 1 and 2 The medical disabilities are both physical and mental: Re McGeary and Director-General of Social Security [1982] AATA 244 where the Tribunal said: It is necessary to consider the whole person and the impact which cumulatively his physical and mental impairments may have upon his capacity to undertake suitable paid work.
(at 4 ALN N312) In Re Leone and Director-General of Social Services [1982] AATA 26, the Tribunal said: The consideration of the extent to which a person is incapacitated for work may be distorted when the physical and psychiatric impairments of the individual are seen in isolation.

The total impact of those impairments on the individual's capacity for work, may well be greater than the impact of each component viewed separately.
(at 4 ALN N5) The Tribunal also considered the effect of the applicant's continuing to look for work.

It held that, in that case, the applicant "may be nurturing false expectations of his own capacities".

In Re Hamal and SDSS [1993] AATA 283, the Department argued that, while the Introduction to the Impairment Tables states that the concept of the whole person is an essential concept to understanding impairment, this concept must be defined wholly within the parameters of the Impairment Tables themselves.
Thus, it argued, factors such as a lack of motivation should not be taken into account when determining whether impairment is of itself sufficient to prevent a person from doing work for which they are currently skilled (s 94(2)).
The Tribunal rejected this approach and found that the applicant's impairment was inextricably inter-related with a lack of motivation and that a lack of motivation was consequential upon an impairment found under the Impairment Tables and so could be taken into account for the purposes of deciding whether a person has a continuing inability to work under s 94(2).

In SDSS v Pusnjak [1999] FCA 994, Drummond J said: 27.
It is also clear from the extraneous material that the Legislature intended that the Secretary, in applying this test, should disregard attitudinal factors peculiar to the applicant, such as a lack of motivation to work.

Hence the “of itself” qualification to “impairment” in s 94(2).
But this does not mean that the term “impairment” in s 94(1)(a) is a narrow concept: a psychiatric condition caused by a physical injury can be as much part of “the impairment” within s 94(2)(a) as is the physical injury itself.

Section 94(1)(a) prevents the Secretary in applying s 94(2) to disregard such a disabling psychiatric consequence of physical injury.
In Commonwealth v Smith (1989), Smithers J in the Federal Court said in the context of a Commonwealth compensation claim: Incapacity due to disabling psychological symptoms precipitated by a minor physical injury to a person already suffering a neurotic temperament is a well recognized and unfortunately Page 5 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 common phenomenon.
If the precipitating injury occurs in compensable circumstances the incapacity caused the psychological symptoms compensable even though the physical effects of the injury may resolve quickly.
In such a case the injury is an element which only completes the tale of the circumstances which constitutes the cause of the incapacity… In Re Ward and Director-General of Social Services [1982] AATA 170, the Tribunal commented: Common elements [often] are that the applicant is a male migrant with very little formal education, barely literate in his mother tongue, unable to communicate in spoken or written English, with little vocation training, earning his living by heavy manual labour, who is prevented by an industrial accident from continuing to engage in that work, and who therefore, unable to continue as provider for his family, develops psychiatric problems in excusing himself from his traditional role by reinforcing his position as a permanent invalid.
In Re Tiknaz and Director-General of Social Services [1981] AATA 170, the applicant was a conscientious factory worker.

He suffered very minor injuries in a car accident, which normally would not have kept him off work for more than a few days.

However, he had an early neurotic response to this loss of working capacity: In the result he has lost his self-esteem as a worker and as a provider for his family.
His home has been sold, he has taken on the role of a chronic invalid and he is now seeking an invalid pension ...

It plainly would be so much to his benefit to obtain employment that his failure to do so is difficult to explain, save on the basis ... that he is suffering from a neurotic condition.

Mr Tiknaz is not a man who is shy of work or who gains an advantage from being unemployed, he is a sick man.
In Re Vella and Director-General of Social Services [1982] AATA 40, the applicant had some back pain and continuing problems with his eyes.

He had been involved in an industrial explosion 25 years previously in which a person next to him was killed.

The explosion weighed very heavily on his mind and he genuinely believed he could not work.
The Tribunal held that his medical disabilities as a whole incapacitated him for work and expressly dealt with the question of malingering: We accept that the applicant is not malingering in the sense that he is not deliberately presenting a false picture of himself in order to qualify for an invalid pension.

In Re Duspara and Director-General of Social Services [1982] AATA 10, the Tribunal stressed the need to consider all of the applicant's medical disabilities as a whole.
While in that case no particular disability was incapacitating, taken together they clearly were.

The disabilities were a hearing problem, headaches, a skin disorder, breathing disorders and associated pains and, as a result of his physical disorders, anxiety state and depression.

In Re Ilich and Director-General of Social Security [1983] AATA 109, the applicant suffered from a back injury, however his major disability was a "hysterical conversion reaction".
The combination of his physical and psychiatric conditions placed him upon the "sick" side of the line between a person who is sick and a person who merely thinks that he or she is sick.

His view of himself as an invalid may be seen as part of his psychiatric condition.

He has made no attempt [for 4 years] to find work, and this is consistent with his perception of himself.

It is not merely "a lack of any genuine interest in obtaining paid employment".
This is ... one of those cases referred to by Mr Hall in Vranesic ...

The destruction of [the applicant's] capacity for work is not effected wholly by his perception of himself; but that is a factor which contributes significantly to his situation.

In Re Di Palma and Director-General of Social Security [1982] AATA 267, the applicant had suffered a back injury in 1968.
The Tribunal, after reviewing the medical evidence, suggested: The applicant cannot be persuaded, despite intensive investigations and attempts at rehabilitation since 1969, that there is nothing seriously wrong with his back ...

The evidence establishes in our view that were it not for the applicant's belief that he is an invalid and that he is incapable of work, he has the physical capacity to undertake a wide range of unskilled jobs ...
Page 6 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 If we felt that the applicant's perception of himself as an invalid was the product of a conscious and deliberate decision to present symptoms which would qualify him for an invalid pension, we would have no hesitation in rejecting his claim.
It appears to us, however, ... that the applicant's perception of himself as an invalid is not consciously motivated with a view to obtaining gain and that it is now beyond his conscious control (cf Vranesic).

(at 4 ALN 323) Establishing the existence of category 1 and category 2 is a matter for psychiatric evidence In Re Vranesic and Director-General of Social Security [1982] AATA 204, the applicant’s perception of his incapacity to work was not fairly based in the medical evidence.
The applicant convinced himself that he would be unable to hold down a job notwithstanding that the medical evidence establishes that, in physical terms, he would be fit for work not involving heavier lifting or prolonged bending or stooping.
The Tribunal said: Whilst there may be occasions when a person's perception of himself (rightly or wrongly) as an invalid incapable of work, may become so entrenched and so ineradicable as to itself constitute a psychological condition which destroys the person's capacity to work, it has not been suggested that the applicant has developed any such condition.
Having regard to the physical impairments from which, on the medical evidence, I have found that the applicant suffers, I am unable to accept the applicant's assessment of himself and to conclude that he has lost his capacity to earn his living and that he is permanently incapacitated for work to the degree of not less than 85%.
Whilst the applicant may have difficulty in finding suitable paid work due to the present recession in Ballarat, his efforts to find work in the past six years are in my view fairly minimal and do not point to the conclusion that the applicant is by reason of his physical and mental condition unable to attract an employer who is prepared to engage and remunerate him.:.
(at 4 ALN N283) In Re Dalton and SDSS [1985] AATA 423, the Tribunal commented on the situation where a person has developed a self-perception of invalidity: [The] question of self-perception of invalidity has been considered by the Tribunal on several occasions.

[Sheely, Di Palma, Vranesic and Batzinas] are helpful in showing the kinds of tests to be applied when this matter of self-perception of invalidity arises.
However, in each of them, expert evidence of a psychiatric or psychological nature was adduced; there is no such evidence present now.

This, in my view, does not demand that I should not consider the particular aspect but it makes a decision favouring the applicant extremely difficult.

(at 7 ALN N276) Re Galea and SDSS [1985] AATA 1: The case put for the applicant raises in an acute form the problems which have faced the Tribunal in relation to eligibility for invalid pension.
There have been many cases before the Tribunal in which entitlement to invalid pension has been established although the degree of physical disability, as determined by clinical examination and presentation of medical signs and symptoms, is very low.
In these cases, however, it has been possible to establish from psychiatric evidence that a degree of psychiatric or psychological disorder has been present to such a degree as to establish that the applicant's overall situation in medical terms is such that, having regard to the limitations placed upon him by that situation, he will be unable to obtain and hold remunerative employment.
The difficulty in this case is that the evidence of none of the doctors establishes more than a quite slight degree of physical disability.
The case is therefore dependent on establishing in psychiatric terms, or by combination of physical and psychological factors, that the applicant's physical disabilities are thereby translated into an incapacity for work to the required extent in the sense understood by the Tribunal in a series of cases, commencing with Re Panke and Director-General of Social Services (1981) 4 ALD 179.
None of the psychiatric evidence in this case appears to me to establish that any relevant degree of psychiatric or psychological disorder exists.

(at 7 ALN N57) Re Nielsen and Director-General of Social Security [1985] AATA 478: Whether or not a person's perception of himself as an invalid capable of work has become so entrenched or ineradicable as to constitute a psychological condition cannot, in our view, be determined by reference only to the person's own statements.
They must, we think, be supported by evidence of a person or persons professionally qualified to express a view upon the matter.

This appears to have been the view taken by Deputy President Todd in the unreported case of [Re Galea].
Page 7 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re Batzinas and Director-General of Social Security [1984] AATA 161, the Tribunal considered at some length a neurosis caused in part by the prospects of a workers' compensation claim: Dr Collins' analysis of the applicant's condition as involving the adoption of a sick role poses a very difficult problem for which psychiatry appears to offer no simple solution.
The truth of the matter appears to be that the applicant now suffers a diverse array of physical symptoms which are substantially of psychological origin.

The reality of those symptoms may well be buttressed by some minor continuing pains for which there is a true organic basis.
Furthermore, it is quite conceivable, in our view, that symptoms of pain have been perpetuated (whether consciously or unconsciously) through an awareness that the maintenance of those symptoms was necessary in order to maximise the prospective financial gain from pending or contemplated compensation claims.
There is a danger, in a case such as the present, that even now those same forces are operating to cause the perpetuation of symptoms of sufficient incapacitating effect to qualify the applicant for an invalid pension.

(at 6 ALN N3) For discussion of “compensation neurosis”, see Kirkpatrick v Commonwealth [1985] FCA 440.
[94.04] Assessment of the existence and degree of impairments - s 94(1)(b) The role of the Impairment Tables in s 94(1)(b) The scheme of s 94(1)(b) The role of the Impairment Tables in s 94(1)(b) The assessment whether an impairment exists and whether it satisfied the 20 point test of s 94(1)(b) is performed by reference to the Impairment Tables.
The Tables contain a range of tables with criteria and percentages for impairments to various parts of the body together with an Introduction in which are set out the principles to be used in performing an assessment under the Tables.

Until 31 December 2011, the Impairment Tables were set out in Schedule 1B of the Act.
On and from 1 January 2012, the tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 made under s 26 in Part 1.3; see [26.01].

Interpretation of the 2012 Impairment Tables is discussed at [26.02] – [26.34] in Part 2.3.

Some International Agreements contain their own tests for qualification for DSP in addition to compliance with s 94(1)(a)-(c); see [Schedule 3.01 IA].
The scheme of s 94(1)(b) In Re Baum and SDEEWR [2008] AATA 1066, the Tribunal summarised the test applying under s 94(1)(b) as follows: 1. determine whether there has been a comprehensive history taken from, and an examination of, the person; 2. determine a “working diagnosis” based on best available evidence; a “diagnosis” is “the process whereby a disease or disorder is provisionally identified on the basis of its symptoms and the patient’s medical history”; 3. decide whether the “condition” (and so the “ailment or disorder” or disease, injury or disorder from which the person suffers): (1) is a “fully documented, diagnosed condition”; and (2) has been “investigated, treated and stabilised” if the condition is uncertain or if the impairment resulting from that condition is (a) unclear, require further investigations to be undertaken; and (b) determine the answers to questions 3(1) and (2) having regard to paras [5] and [6] of the Introduction; Page 8 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 in relation to each condition that is permanent and is a fully documented, diagnosed 4. condition that has been investigated, treated and stabilised: (1) decide whether it is a permanent condition, ie.
whether in light of the available evidence it more likely than not to persist for the foreseeable future given that the “foreseeable future” is taken to be a period lasting for more than 2 years; and in relation to each condition that is permanent and is a fully documented, diagnosed 5. condition that has been investigated, treated and stabilised: (1) ascertain the loss of function that each condition causes to the person in each separate body part or system; (a) each loss of function must be capable of separate identification in order to avoid the possibility of double assessment of a single loss of function; (b) one condition may lead to more than one loss of function; (2) compare each loss of function with the loss of functions described in the relevant Impairment Tables in Schedule 1B and assign the appropriate rating to each loss: (a) use the Table specific to the loss of function; (b) do not assign a rating to a single loss of function under more than one Table; (c) a loss of function may be attributable to more than one condition but that loss of function may only be counted once; and (d) pain or fatigue should be assessed in terms of the loss of function causing that pain or fatigue, but it can be assessed under Table 20 if to assess the loss of function under the Table relevant to it would underestimate the loss of function due to chronic entrenched pain; and 6. where there is more than one loss of function, add the separate ratings together to obtain a combined work-related impairment rating.
(at [54]) A different summary was provided in Re Haloum and SDSS [2015] AATA 798: 21.

Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Haloum are worth 20 points under the Impairment Tables.

This requires a few words of explanation.

22.

In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here.
Senior Member Isenberg states: [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.

23.
23.

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 Determination and the impairment resulting from the condition is likely to persist for more than two years.

The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

24.
24.

Subsection 6(5) of the Determination provides 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.

Page 9 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 25.
It is also important to appreciate that under sub-section 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, sub-section 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.

In Re SDSS and Eilbeck [2015] AATA 827, the Tribunal noted the importance of reporting medical practitioners directing themselves specifically to the terms of the relevant Table.
Reports that do not address the Table can be of little, if any, relevance.

Similarly, unclear reports may be of little use: Re Kosturski and SDSS [2018] AATA 3684.

[94.05] "continuing inability to work" - s 94(1)(c)(i), s 94(2) Overview The scheme of s 94(1)(c) and s 94(2) Who should carry out the Job Capacity Assessment?
Overview See the Note at the start of [26.01] concerning the distinction between assessing the degree of impairments using the Tables and assessing the extent of the continuing inability for work.

Section 94(1)(c) does not use the term “permanent” to describe the impairment.

Rather the concept of permanency is contained in the concept of a “continuing inability for work” for 2 years resulting from the impairment in s 94(2).
The concept of “permanency” of an impairment is further introduced in paragraph 5 of the Introduction to the Impairment Tables in s 26 in Part 1.3 of the Act which also uses a 2 year horizon.

The assessment of a continuing inability to work is both temporally and conceptually distinct from the assessment of the nature and extent of the impairment under s 94(1)(b).
In Re Baum and SDEEWR [2008] AATA 1066, the Tribunal pointed out that a person may carry quite severe impairments but may still be fit for a wide range of work; and vice versa.

The scheme of s 94(1)(c) and s 94(2) In SDSS v Pusnjak [1999] FCA 994, the Federal Court considered s 94 as it stood in 1999, and which is not schematically materially different to the present form of s 94(1)(c) and s 94(2).
Drummond J referred to the two stage process involved in assessing a person’s continuing inability for any work: 26.
… it can be seen clearly enough that the intention of the current s 94(2) is that the question of a disability support pension applicant’s continuing inability to work because of his impairment is to be determined by reference, firstly, to whether his impairment is sufficient to prevent him engaging in any of the necessarily limited range of work for which he has the requisite skills and experience and then by reference to whether there is training available to him of a kind that should fit him, within a two year period, for work which he cannot now do, but would be able to do, given his actual capacities.
In making his decision on the second of these issues, the only circumstance peculiar to the particular claimant that the Secretary can take into account is whether the claimant’s impairment itself may prevent him from completing what would ordinarily be no more than a two year retraining course in that time.

... 32.
Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2): As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?
If so: Page 10 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work.
If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask: As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a two year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within two years?
If so, the applicant will not be eligible for the pension.

But if there is a two year retraining course available to the claimant but his impairment is sufficient by itself to prevent him completing that course within that two year period, he will qualify for the pension.

Training that necessarily takes an able bodied person longer than two years to complete is not training of the kind covered by this provision.

(at 164 ALR 579-580) See [94.07] for consideration of “work”.
In Re Thomson and SDSS [2016] AATA 194, the Tribunal provided a summary of considerations that are irrelevant in determining whether a continuing inability to work exists: 83.
When determining whether a person has a continuing inability to work, the Tribunal should disregard the following factors: (a) any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500) [Note there is some disagreement on this point]; the availability of work in the person's locally accessible labour market (section 94(3)(b) of (b) the Social Security Act); (c) 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, (d) Department of Family and Community Services [2004] AATA 864 [34]); (e) 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); (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).
See also Re McGann and SDSS [2015] AATA 823, Re Hynninen and SDFHCSIA [2012] AATA 664 and Re Searles and SDSS [2020] AATA 676.

When carrying out a job capacity assessment (JCA), it is not entirely clear whether the assessor is restricted to a consideration of the effects only of those impairments that have been taken into account in arriving at the 20 pts assessment on the Tables under s 94(1)(b) (“rated impairments”).
The Federal Court in SDSS v Pusnjak [1999] FCA 994 and the Tribunal in Re SDSS and Busstra [1997] AATA 1011 and Re Li and SDEWR [2007] AATA 1606 expressed the view that the non- rated physical and psychological sequalae of physical injuries that were rated on the Tables could be taken into account in assessing the overall inability to work.
Other cases are to the effect that non-rated impairments which are not sequalae of rated impairments may not be taken into account in the JCA (SDFaCS v Michael [2001] FCA 1811; Re Latchford and SDEWR [2007] AATA 1459; Re Rotundo and SDFHCSIA [2008] AATA 484).

Page 11 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Who should carry out the Job Capacity Assessment?
The assessment of the continuing inability to work is generally carried out by an officer of the Department concerned, being what is commonly referred to as a “job capacity assessment” (JCA).

The officer may, or may not, possess medical training of some description.
The practice of having JCAs carried out by a non-medically trained officer of the Department is not inconsistent with the observations in Re Panke and Director-General of Social Services [1981] AATA 65 (see [94.02] at [67]), where the Tribunal noted that the requisite expertise for the assessment of an ongoing capacity for work was not necessarily that of a medical practitioner.
Notwithstanding this, some Tribunals have been critical of the practice of having non-medically qualified persons carrying out the JCA or having assessors without appropriate medical qualification for the impairment concerned carry out the JCA: Re Anderson and SDFHCSIA [2009] AATA 306; Re Baltagi and SDFHCSIA [2009] AATA 653; Re SDFHCSIA and Foudoulis [2008] AATA 690; Re Hermiz and SDFHCSIA [2010] AATA 917; Re Hansen and SDSS [2016] AATA 1091.
Part of the criticism of departmental officers carrying out the JCA stems from the confusion that arises where the impairment assessment under the Tables (s 94(1)(b)) is included in the JCA (s 94(1)(c)) so that the same departmental assessor has performed both roles.
Prior to the amendments that took effect on 1 January 2008, the role of carrying out the impairment assessment under the Tables was exclusively that of a medical practitioner and hence the criticism of the JCA assessor also performing this role was justified.

However, post 1 January 2008, there is no such restriction limiting impairment assessments to medical officers and hence no restriction on departmental JCA assessors performing both roles in the same report.
This criticism is not uniform or consistent.

Differently constituted Tribunals have either expressed no such reservations or have expressly endorsed the practice (see, for example, Re Aaraji and SDFHCSIA [2010] AATA 561 where the Tribunal preferred to rely on a “comprehensive professional analysis” in a JCA report rather than on an unsupported assertion by a medical practitioner.

See [26.05] and [26.06] in Part 1.3.


In Re Uebergang and SDFHCSIA [2011] AATA 642, the Tribunal adopted the approach in Re Muir preferring the JSA assessment to that of the treating medical practitioner.

See also Re Havet and SDSS [2018] AATA 2155.

In Re Booth and SDFHCSIA [2011] AATA 558, the Tribunal preferred the medical practitioner’s opinion to that of the JCA officer.
In Re Eid and SDFHCSIA [2013] AATA 558, the Tribunal conducted a detailed review of the role of the JCA assessors and concluded that the assessors, at best, make recommendations to the Secretary who has the final decision.

The recommendations of JCA assessors are not themselves evidence of any nature, whether medical or non-medical, upon which the Secretary or the Tribunal can rely.

Deputy President Forgie said: 72.


In summary, it is my view that JCA Assessors have been asked to do a task that, on many occasions, takes them outside the realm of their professional expertise as, for example, psychologists.

That does not mean that they cannot play a role but it means that, unless they have particular qualifications in assessing a person’s capacity for work or particular professional qualifications relating to the conditions, their reports should not be treated as evidence.
A JCA Assessor may make recommendations to a delegate of the Secretary who has to make decisions on claims for DSP.

There is no doubt that recommendations made in the JCA Reports may be helpful in turning a decision-maker’s mind to particular aspects of the medical evidence and whether it meets the criteria specified in Schedule 1B or the Impairment Tables.
At the same time, it seems to me that their reports must not be treated as if they were made by persons acting as allied health professionals in relation to claimants for DSP.

They can only be used as an aid in assessing the evidence.
A decision-maker cannot defer to an opinion or Page 12 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 recommendation expressed in a JCA Report and, in doing so, relinquish the task of coming to a decision on each aspect of s 94 on all of the evidence In Lokanc v SDSS [2016] AATA 195, North J found the Tribunal had erred in not adopting a sufficiently critical analysis of the JCA report in the light of complaints of the unrepresented applicant.
In Re Paiker and SDSS [2020] AATA 4533, the Tribunal declined to follow the JCA report on the basis that the Tribunal had more and later information that the JCA officer did not have.
[94.06] Active participation in a program of support – s 94(2)(aa), (3C) Overview Satisfaction of s 94(2)(aa) is mandatory Program of support for less than 18 months Early termination of a program of support Requirement for an "improvement" in capacity for employment The content of programs of support “designated provider” Overview Section 94(2)(aa) provides that a person who has a "severe impairment", as defined in s 94(3B), is not required to satisfy the participation requirements in a program of support (POS).
A "severe impairment" is defined in s 94(3B) to be a rating of 20 pts on a single Table.

Otherwise, where a person rates 20 pts on the Tables cumulatively, the "continuing ability to work" test applies which invokes the program of support requirements.

Section 94(2)(aa) provides a person has a "continuing inability to work" where the person has "actively participated in a program of support within the meaning of subsection (3C)".
The person will have actively participated in a program of support if he/she satisfied the requirements of the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (F2011L01783) that came into force on 3 September 2011 under s 94(3C).
Sections 5(1) and (2) of the 2011 Determination applied where a person has undertaken a program of support for at least 18 months within the 36 months prior to the date of the claim, having complied with the requirements of the program and provided the Secretary with details of the program of support they have undertaken.

The 2011 Determination was replaced by the Social Security (Active Participation for Disability Support Pension) Determination 2014 (F2015L00001) which came into force on 1 February 2015.
Section 7 of the 2014 Determination is the core provision that defines the participation requirements.

These requirements were set out in Re Thornley and SDSS [2015] AATA 621: 59.

The requirements for active participation in a program of support are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

The current instrument is dated 15 December 2014.
The requirements for active participation as set out in s 7 which, relevantly, provides: (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 Page 13 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 (2) This 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).

60.
Subsections (3), (4) and (5) deal with the circumstances where a person completes the entire program of support in less than 18 months; the program of support was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program; and although the person was participating in a program of support at the end of the relevant period, they are prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program.
61.

The expression relevant period is a defined term and, in relation to a person who does not have a severe impairment, means the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person (s 5 of the POS Determination).

62.
62.

Mr A Shelley, who appeared on behalf of the Secretary, explained that the idea behind the POS requirement is that persons who are not severely impaired but who have mild or moderate impairments in a number of areas of function are not immediately placed on the disability support pension.
A person will not have a continuing inability to work and will not qualify for the DSP until there has been appropriate intervention to determine whether they can be retrained and assisted into a more suitable form of employment, having regard to their impairments.

I accept that to be an accurate statement of the purpose underlying the POS.

63.
63.

Therefore, even if I were to find that Mr Thornley’s stated medical conditions attracted a total of at least 20 points, it is clear that he does not attract 20 points on a single impairment table.

Therefore, before it can be established that he has a continuing inability to work, he must have completed a POS.

Furthermore, that POS must have been completed in the 36 months prior to the lodgement of his claim, which was on 28 March 2014.

64.
64.

I had in evidence a table setting out the appointments Mr Thornley had attended with Matchworks, an entity authorised by the Commonwealth to provide a program of support.

His first contact with Matchworks was on 14 January 2013 and his final attendance, prior to his lodgement of a claim for the DSP, occurred on 20 March 2014.

That is a period of 14 months.


Although I accept Mr Thornley continued to attend Matchworks at least up until 22 September 2014, those attendances after 28 March 2014 are outside the relevant period.

I did not have any evidence that the exceptions to the 18 month period of active participation set out in ss.

5(3), 5(4) and 5(5) of the POS Determination applied to him.

65.
65.

It necessarily follows that because Mr Thornley does not satisfy the active participation in a POS for a period of at least 18 months prior to the lodgement of his claim for the DSP, he cannot establish that he has a continuing inability to work as that expression is defined in the Social Security Act.

In Re Holt and SDSS [2016] AATA 633, the Tribunal noted that the full 18 months participation had to have been completed before the application is lodged.
See also Re Karaman and SDSS [2016] AATA 597 to the same effect.

Satisfaction of s 94(2)(aa) is mandatory In Re Logue and SDSS [2017] AATA 1272, the Tribunal made the point that participation in a program of support is mandatory and cannot be waived except in the limited circumstances provided by the legislation: 58.

Were it not for the obligation in relation to a program of support I would have found that Mr Logue has a continuing inability to work as required by section 94(1)(c) of the Act.
In Kumar v Secretary, Department of Social Services [2017] FCA 158, Reeves J at [46] discussed the effect of sections 94(1)(c)(i) and 94(2)(aa), that active participation in a program of support was a necessary qualification for the grant of a disability support pension.
Further, there is no power to dispense with the operation of section 94(2)(aa) of the Act: Augustynski and Secretary, Page 14 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 507.

The strictness of the POS requirement is illustrated by Re Franklin and SDSS [2020] AATA 2162 where the applicant’s permanent impairment was 25 pts under Tables 2, 4, 10 and 13.
Because the applicant had not participated in a POS, she did not have a continuing inability to work, as defined, and therefore failed to satisfy the requirements of s 94(1)(c).

It is irrelevant whether the applicant knew of the obligation or not: Re Bibani and SDSS [2017] AATA 1386 where the Tribunal said: 62.
The operation of the Act is such that, without 18 months participation in a program of support prior to the date of her claim, Ms Bibani, while her condition cannot be regarded as ‘severe’ as defined, cannot be eligible for the DSP.
There are some limited circumstances where a person may be excused from continued participation, but these do not apply to Ms Bibani: see O'Gorman-Watson and Secretary, Department of Social Services [2014] AATA 277, Malcolm and Secretary, Department of Social Services [2016] AATA 440 and Mongan and Secretary, Department of Social Services [2016] AATA 344.
The Tribunal has strictly enforced the program of support requirement to date, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act and that it is irrelevant whether an Applicant was aware of the requirement or not: Kumar v Secretary, Department of Social Services [2017] FCA 158 at [46].
It is irrelevant that Centrelink did not advise the applicant about the program of support requirements or refer the application to a program provider (Re Byron and SDSS [2017] AATA 1536) or that the applicant’s treating doctor recommended against it: Re Manasse and SDSS [2017] AATA 1461.

In Re Kara and SDSS [2020] AATA 393, the Tribunal pointed out that in some circumstances it is not possible for an application to satisfy s 92(2).
In this case the applicant had been in receipt of DSP since 1993 with the exception of short periods where it had been cancelled because she was overseas.

The applicant’s pension was cancelled in August 2016 when she took another overseas trip.

In December 2016 the applicant had returned to Australia and applied for the restoration of her pension.

The Secretary rejected the claim on the basis that the applicant had not undertaken a POS in the three-year period prior to December 2016.
The applicant argued that it was not possible for her to have undertaken a POS in the prescribed three years period because she was already receiving the DSP in this period, with the exception of short periods while overseas, and hence was not eligible to participate in a POS.

She was also physically incapable of doing so.

The Tribunal described what it identified as a ‘Catch 22’ applying to the applicant.
She was not eligible for a DSP unless she had completed the POS requirements in the prescribed period; but she could not complete these POS requirements because in the prescribed period she was already receiving a DSP.

The Tribunal queried whether a discretion existed under s 94B to waive the POS requirements in cases such as this.

The matter was remitted to the Secretary to review the application of the POS requirements to the applicant’s case.
Program of support for less than 18 months Section 5(3) of the 2011 Determination and s 7(3) of the 2014 Determination provide (in similar terms) that the program can be of less than 18 months duration if the applicant completes the program.

In Re SDSS and Marwood [2014] AATA 686, the applicant was undertaking a rehabilitation program with his workers compensation insurer when his workers compensation claim was settled by a redemption.
The redemption brought the rehabilitation program to an end in less than 18 months.

The applicant argued that he had completed the program for the purposes of s 5(3) of the Determination.

The Tribunal held that the program had no fixed duration and its termination with the redemption did not constitute completion of the program.

In Re SDSS and Giles [2014] AATA 685, the applicant underwent a one-to-one training program of less than 18 months duration.

She completed this program.


There was an option to seek follow up Page 15 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 support from the trainers at the instigation of the applicant, of which the applicant did not avail herself.

The Secretary took the view that the option of follow up support was part of the program and so the applicant had not completed the program.
As the one-to-one phase of the program had been for less than 18 months, the applicant did not satisfy para 5(3) of the Determination.

The Tribunal held that the program was only the one-to-one phase and did not include the optional follow up.

Accordingly the applicant had completed the program.
Early termination of a program of support Section 7(4) of the 2014 Determination and its 2011 equivalent provide that a person has actively participated in a program of support if the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

The construction of section 7(4) was considered in Re O’Cass and SDSS [2016] AATA 876: 106.
For s 7(4) to apply, both limbs set out in ss 7(4)(a) and (b) must be satisfied.

It must be established by evidence that the program of support was ‘terminated before the end of the relevant period’ because ‘the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program’.

107.
107.

The process by which a program of support may properly be taken to be ‘terminated’ for the purposes of s 7(4) is a matter for consideration.

In the usual course, a decision to that effect would be expected, and evidence that the decision was communicated to the person would reasonably be looked for.

108.

To my mind it does not follow, and it should not be assumed, that this is the only means by which a program of support might be ‘terminated’.
In some circumstances, a program that has ceased to operate and has lapsed may be taken to have been terminated.

By definition, when something is ‘terminated’, it is brought or put to an end or ceased with finality.

This is to be distinguished from a program that is held over or suspended, deferred or postponed, such that it has ceased from operation for a time, or it has been temporarily brought to a stop or stayed for a time.

109.
109.

There is a point at which a program may be taken to have been ‘terminated’ if the person to whom it applies is under suspension and the program is no longer in existence or has come to an end.

This may occur in circumstances where the suspension of the person is, in effect, final, or where the particular program has ceased operating or it is taken to have been brought to an end with finality in the particular circumstances.
For example, if the program lies dormant, without action being taken to resume it, and without any confirmation of the continuing status of the program in communications between the person, the service provider and Centrelink over an extended period, these factors may be sufficient to treat the program as one that has come to an end and has been effectively ‘terminated’.
It is not difficult to conceive of circumstances where this might arise, in the case of a program that ceases to operate, ends or lapses for some reason while the person to whom it applies is under indefinite, ongoing suspension from taking part in the program, where there is no arrangement for periodic review and no reasonable prospect that the person will be capable of resuming the program.

110.
110.

Thus, where a program of support is suspended without limit, and no action is taken within a reasonable time to reactivate the program or to confirm the continuing status of the program, or the continuing effect of the suspension of the person’s requirement to undertake the program, in the particular circumstances, the program may be taken to have been ‘terminated’ for the purposes of s 7(4) of the Participation Determination.

111.
While suspension of a person from a program of support is not synonymous with termination of the program for the purposes of s 7(4), a careful examination of the facts is necessary to determine whether the program continues to operate or to exist in any meaningful form in circumstances where the person’s suspension has been in place for a long time and is ongoing, with indefinite effect, and without arrangement for periodic review of the person’s capabilities and the suitability and the enduring status of the program.
If it is found that a program of support was terminated in such circumstances, the next step is to determine the reasons for the termination and whether the terms of s 7(4)(b) are satisfied.

These are matters for evidence.
Page 16 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Requirement for an "improvement" in capacity for employment Section 5(5)(b) of the 2011 Determination and s 7(5) of the 2014 Determination are directed to persons whose participation in a Program has not resulted in an improvement in their capacity for employment and provides that such people remain eligible for DSP only if it is solely the impairment that has prevented this improvement.
In Re O’Gorman-Watson and SDSS [2014] AATA 277, the applicant suffered MS which was deteriorating.

Her participation in a Program had not led to any improvement in her capacity for employment and the Secretary discontinued her DSP.

The Tribunal found that the Program was not properly designed or helpful to the applicant and that her lack of improvement in work capacity from the program was solely due to her MS. See Re Clements and SDSS [2014] AATA 243 for a contrary example.
In Re O’Cass and SDSS [2016] AATA 876, the Tribunal commented on the construction of s 7(5) of the 2014 Determination: 148.

I would not construe the phrase ‘is participating in’ so narrowly to mean active participation only.

As I have said, s 7(5) is one of the severable elements that go to determining whether a person ‘has actively participated in a program of support’.

149.
149.

To my mind, the preferable construction is to adopt the broader meaning of ‘participating in’ a program of support, such that, for the purposes of s 7(5) of the Participation Determination, a person may be taken to be participating in a program of support during a period in which the person is temporarily exempt or suspended from active participation on grounds of impairment, alone, if the temporary exemption or suspension is in place when the end of the relevant period is reached.
In Re Betts and SDSS [2019] AATA 1000, the Tribunal was critical of the Respondent’s failure to interact with the Applicant and arrange any suitable training: 87.

The Tribunal is troubled by the fact that at no stage had Centrelink conducted a JCA on Ms Betts in respect of this DSP claim instead relying upon file reviews and that it never actually discussed with Ms Betts, face-to-face or via telephone, her functional impairment during the qualifying period.
Centrelink also did not assist Ms Betts to comply with the program of support requirements by never conducting a JCA with her.

The content of programs of support Part 3 of the 2011 Determination and Part 3 of the 2014 Determination contain (in similar form) the guidelines for determining whether an applicant has actively participated in a program of support for the purposes of s 94(2)(aa).
Those Guidelines require that the program of support: (a) was provided by a designated provider; and (b) was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and (c) provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and (d) includes at least one of the following activities: (i) job search; (ii) job preparation; (iii) education and training; (iv) work experience; (v) employment; (vi) return to work; (vii) vocational or occupational rehabilitation; (viii) injury management; (ix) an activity designed to assist the person to return to, maintain or obtain employment.
Page 17 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Section 3(1) of the 2011 Determination defined "designated provider" in wider terms than in s 3(1) of the 2014 Determination.

The 2011 Determination included references to programs provided by workers compensation authorities and insurers which are not included in the 2014 Determination.

In Re Kirvan and SDSS [2014] AATA 721, the applicant undertook a TAFE course in property management.
The Tribunal held that the course did not satisfy criteria (b) and (c) because it was a generic course not focused on the applicant or their needs.

The Tribunal noted that the terms of the Determination were mandatory and binding on the Tribunal See also Re Kumar and SDSS [2014] AATA 442; Re Haakman and SDSS [2014] AATA 624; and Re Elhenday and SDSS [2014] AATA 855.

In Re Betts and SDSS [2019] AATA 1000, the applicant undertook a tertiary qualification in law.
The Tribunal held that this did not satisfy the tests for a program of support: 75.

Additionally, the Respondent relied upon the case of Cole and Secretary Department of Social Services, which they contended determined that studying a law degree on a full-time basis did not satisfy the requirements of s 94(1)(c).
Member Shanahan in Cole found: that although she satisfied s 94(1)(b) in terms of the impairment rating, Ms Cole did have a partial capacity to work and was thus required, for the purposes of eligibility, to undertake a program of support.

She has not done this because she is undertaking tertiary studies on a full time basis at Deakin University.

The SSAT found that she did not satisfy s 94(1)(c) of the Act.

While this Tribunal agrees with that finding, it also finds that she does not satisfy s 94(1)(b).
The Tribunal affirms the decision under review.

76.

The Tribunal does not find Ms Betts had completed a program of support by virtue of undertaking a Juris Doctor.

The Tribunal finds the undertaking of a tertiary qualification aimed at qualifying an individual for a specific discipline, such as law, could not be said to satisfy the requirements of the determination that the course was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment.
Nor did it provide vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work.
In Re MacMaster and SDSS [2014] AATA 776, the Tribunal held that attendance for assessment by a rehabilitation provider appointed by the applicant’s workers compensation insurer did not satisfy the requirements for a program of support in that it was limited to an assessment of needs only and so did not satisfy (b), (c) or (d) above.
In Re McDonald and SDSS [2015] AATA 90 and Re O'Bryan and SDSS [2014] AATA 590, the Tribunal affirmed that attendances at rehabilitation programs organized for workers compensation purposes does not satisfy the requirements of a program of support under the Determination.
In Re Jefferis and SDSS [2020] AATA 4861, the Tribunal held that attendance at the UNSW Fatigue Clinic Program comprising six appointments with a clinical psychologist over a total of eight visits during a 19-week period was not participation on a ‘program of support” for the purposes of s 9 of the Determination.
“designated provider” Section 3(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 defines "designated provider" in more narrow terms as: (a) a Job Services Australia provider; (b) a Disability Employment Services provider; (c) an Australian Disability Enterprise; (d) any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
In Re Primmer and SDSS [2019] AATA 2508, the Tribunal held that the Commonwealth Rehabilitation Service (CRS) is a designated provider: Page 18 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 72.

The Tribunal must now determine whether the Commonwealth Rehabilitation Services (CRS) is qualified to provide a “Program of Support” under s 94(5)(a) of the Act.

73.
73.

CRS Australia is a division of the Department of Human Services (DHS), an agency under the Financial Management and Accountability Act 1997 (FMA Act).

Although part of an FMA Act agency, CRS Australia does not receive direct budget funding; instead, it funds its operations through payments received for services delivered.

CRS Australia provides vocational rehabilitation and employment related services to the Australian Government.

74.
74.

The Department of Human Services, whilst a government agency, is not itself a ‘designated provider’, as defined in s 5(1)(d) of the POS Determination, as it does not provide a program of support that is funded (wholly or partly) by the Commonwealth.

75.
75.

On this basis, the Tribunal finds that CRS satisfies the definition of a designated provider (emphasis added) pursuant to s 5(d) of the POS Determination which states: Any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.

In Re SDSS and Konopka [2016] AATA 627, the applicant was a self employed hairdresser.

She was consulting a pain management specialist with the view to maintaining her capacity for work.
The Tribunal held that this attendance did not constitute a program of support.

The pain specialist was not authorised as a "designated provider" per section 3(1) and the program itself did not satisfy para (g) of the 2011 definition: 20.

With respect to subs 3(g), I accept that one of the goals of Dr Green’s treatment of Ms Konopka is to assist her to maintain her self-employment and that he monitors this and regularly discusses with Ms Konopka her capacity for work and how to optimise this.
On balance, however, I am not satisfied that this amounts to a program “similar” to Commonwealth funded programs of support in the relevant sense.

21.

Clearly, one of the purposes of pain management treatment in circumstances such as Ms Konopka’s is to give advice about work capacity and assist a person to optimise their sustainable work capacity.
However, the treatment and advice provided by Dr Green to Ms Konopka was, in my view, fundamentally medical in nature and different from the services contemplated by the Determination.
While he was clearly assisting Ms Konopka to manage her condition, including by reference to her work capacity, and providing recommendations to her general practitioner aimed at minimising the impact of her symptoms upon her and maximising her work capacity, I am not persuaded that Dr Green was providing a program to Ms Konopka of the kind which would be provided by a “Job Services Australia provider or a “Disability Employment Service” provider.
[94.07] "work" – s 94(1)(c)(i), 94(5) Ability for continuing work includes the capacity to attract an employer in the open labour market Hours of work Ability for continuing work includes the capacity to attract an employer in the open labour market In Re Panke and Director-General of Social Services [1981] AATA 65, Davies J made the point that an incapacity for work had to be judged against the capacity of the person to attract an employer in the open labour market and not by reference to an employer motivated by benign or charitable motives.
In Re Hamal and SDSS [1993] AATA 283, the Tribunal considered the meaning of "work" as defined in s 94(5), stating that it is the "normal" workplace against which a person's abilities are to be judged, not the workplace of the "benign" employer.
It rejected a Department argument that the jobs suggested (car park, service station or museum attendant) would allow Mr Hamal to walk around as necessary and work at his own pace; in the Tribunal's opinion this was "most unlikely given the realities of the modern workplace".
(at 30 ALD 525) See also Re SDFaCS and Bell [1998] AATA 878, Re Smith and SDFHCSIA [2011] AATA 66 and Re Triantafillou and SDFaCS [2003] AATA 56 where the Tribunal considered “work” to be “work that is carried out in the complex entity that is the ‘open workplace’ and not work that is insulated from the dynamic and Page 19 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 unpredictable demands of this entity.
There are other arrangements and benefits for work in sheltered workplaces.” (at [51])` In SDFHCSIA v Harris [2010] FCA 360, Greenwood J considered the history of the 1947 and 1991 Act provisions in detail and came to the same conclusion, namely that the concept of “any work” (s 94(2)(a)) required a consideration of the capacity of the person to attract an employer in the open labour market having regard to the level and nature of the disabilities suffered and the type of work that the person was capable of undertaking without retraining.
The issue of retraining was a subsequent step in the assessment regime (s 94(2)(b)) but even then the capacity for work following retraining must have regard to the realistic capacity of the person to attract an employer in the open labour market following the retraining.

See also Re Bartlett and SDFHCSIA [2010] AATA 369 and Re Hamka and SDFHCSIA [2009] AATA 52 to the same effect.

Re SDSS and Dunn [2015] AATA 401 provides an example of the application of the "arms length labour market" approach: 88.
The evidence at the time of the assessment period demonstrates clearly that Ms Dunn would struggle to find and maintain employment.

She had not worked for some ten years or more.

Previously she had worked as a chef.

It is highly unlikely that she could sustain work in a clerical or administrative capacity.

As she herself said, she has no experience in clerical tasks.
The Tribunal is left with the clear impression that she could not endure the patterns, routines and requirements of work, whether the work was manual, clerical, administrative or otherwise.

Based on her own evidence and the abundant medical evidence about her circumstances leading up to and during the assessment period, she would struggle significantly in any type of employment.

She needs to rest.

She needs to be careful about physical movement.


She uses a walking stick In Re SDEWR and Meeth [2007] AATA 2034, the Tribunal found that the applicant’s ongoing fatigue and consequential unreliability made him an unattractive employee and that he therefore had no ongoing ability for work in the labour market.

The same approach was taken in Re Berrell and SDSS [2014] AATA 178.

In Re Lin and SDFHCSIA [2012] AATA 663, the applicant suffered regular migraines that caused her to be unreliable as an employee.
The Tribunal found that this factor would make her unattractive to any prospective employer and caused her to have a continuing inability for work.

In Re Sazegar and SDFHCSIA [2013] AATA 685, the applicant suffered PTSD which caused him to be reclusive.

The Tribunal held that in a normal open labour market the employer would not be able to cope with the applicant’s withdrawn nature and hence the applicant had no ability for continuing work.
Hours of work The required hours of work have changed over the years accompanied by transitional provisions for those affected.

In Re SDSS and Crocker [2017] AATA 1085, the Tribunal considered the situation from amendments by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 and the Family Assistance and Other Legislation Amendment Act 2011: 10.
The applicable provision relating to Mr Crocker’s ability to “work” under section 94(1)(c) and section 94(5) of the Act is affected by transitional provisions enacted in the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.

That legislation amended the definition of “work” in regard to DSP to mean work that is from 30 hours a week to 15 hours a week, with the legislative change taking effect from 1 July 2006.
Transitional provisions provide that the amended definition of “work” applies only to those granted DSP on or after 1 July 2006.

Any review, therefore, of Mr Crocker’s entitlement to the benefit should apply the 30 hours per week test in assessing whether he had a continuing inability to work under section 94(1)(c) of the Act.

With respect AAT1 did not consider these transitional provisions and therefore erred in applying the 15 hours a week test.
Page 20 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 11.

In addition, section 94 was further amendment from 3 September 2011 by the Family Assistance and Other Legislation Amendment Act 2011 (Schedule 3 to that Act).

This legislative change applied a requirement for a person to have actively participated in a program of support before the person could be found to have a continuing inability to work.
Again, these provisions are not applicable to Mr Crocker because they took effect from 3 September 2011 and so the provisions of section 94(2)(aa) do not apply to him.

12.
12.

In summary, because Mr Crocker was granted DSP in 2001 and was in receipt of DSP before the provisions applied from 3 September 2011, the assessment in his case of satisfaction of section 94(1)(c) of the Act means that the Tribunal must apply a definition of “work” that is for at least 30 hours per week and, if he meets the other relevant provisions of section 94 in order to qualify for DSP, the requirement for Mr Crocker to have actively participated in a program of support does not apply to him.
In Re SDFaCS and Martin [2004] AATA 569, the respondent worked as a casual teacher at a NSW High School for a number of years.

Centrelink submitted that he had been paid for more than 30 hours work in each of many weeks and therefore he fell within the meaning of "work" in s 94(5).
The Tribunal accepted evidence that the actual teaching hours of a casual teacher working on all five days of a school week were 18 hours, and that there was little requirement for additional hours for activities such as playground supervision.

The Tribunal held that the respondent could still have a continuing inability to work in those weeks where he worked on a casual, full-time basis: 28.
There are two interpretations of the definition of “work” in s94(5) of the SSA that might apply here, with opposite outcomes for Mr Martin.

The first is that, in requiring that “work” be work that is for at least 30 hours per week, the work must involve a physical and/or intellectual effort for at least 30 hours a week, with perhaps time out for the usual breaks.
The other interpretation is that work taking less than 30 actual hours a week may be regarded as work for at least 30 hours a week if the worker is paid as if the work actually took 30 or more hours a week.

29.

The first interpretation would comply with the policy behind DSP in embodying a principle that a person who can do physical or intellectual work for 30 hours a week is not incapacitated for work.

The second interpretation might reflect a policy based on DSP as an income support payment.
If the person can work, albeit for fewer than 30 hours a week, and receive payment as if he or she had worked 30 or more hours a week, then the DSP is not necessary to provide income support to that person.

30.

Of these I favour the first interpretation.

I consider it more consonant with the underlying policy of DSP to consider the actual work capacity of the disabled person.

The policy rationale for the second interpretation is observed in any event through application of the income test.
I could also refer to the SSA as beneficial legislation.

The first interpretation is more beneficial to persons with disability and may be said to find a place in beneficial legislation.

31.

I am satisfied from the sworn evidence of Mr Martin, and from Mr Jeffery’s unsworn but disinterested evidence, that Mr Martin has not in fact worked for at least 30 hours a week during any part of the period in question.
… In Re Mortimer and SDFaCS [2004] AATA 1216, the Department had raised a debt because the applicant, who had been in receipt of DSP since 1994, worked full-time hours as a real estate agent for 3 months in 2003.

The applicant was employed on a commission basis but was paid a weekly retainer; she did not earn enough commission to cover her retainer.
The Tribunal noted that the amount of the retainer was less than award wages for the position, which raised the issue whether there was sufficient evidence to satisfy the Tribunal that she was disqualified from pension for the period.

The definition of “work” in s 94(5) specifies work “that is for at least 30 hours per week at award wages or above”.

The Tribunal said: 24.


I consider that the Act clearly indicates that “work” for the requisite hours at less than award wages is not relevant to establishing whether or not a person has “a continuing inability to work”.

In paragraph 13 quoted above, Ms Paul suggested that the award wages should be calculated on the basis of a 38 hour week.

The Tribunal ultimately did not decide the application on this basis as it considered that, in any case, the debt should be waived under s 1237A.
Page 21 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 [94.08] “any work” - s 94(2)(a) “any work” “any work” - Deafness cases Prior to the amendments introduced by the Social Security Legislation Amendment Act (No 1) 1995 (No 104/1995) with effect from 29 September 1995, the relevant test in s 94(2) referred to a person’s “usual work”.

The amendments deleted this reference and substituted a reference to “any work”.
“any work” In SDSS v Pusnjak [1999] FCA 994, the Federal Court placed a significant qualification on the breadth of the expression "any work" in s 94(2)(a).

Drummond J said: 28.

But s 94(2) involves no departure from the intent of the 1991 version of the section: the necessarily limited range of work activities for which the particular claimant is fitted by his actual skills and experience is not to be ignored, in determining his eligibility for this pension.

29.
29.

Section 94(3), properly understood, shows that this is the way it was intended s 94(2)(a) would operate.

The expression “any work” in s 94(2)(a) is not accompanied by any words of qualification.

So, prima facie, the Secretary is required to have regard to work of any kind that may be available anywhere in making the determination required by s 94(2)(a).
The definition of “work” in s 94(5) requires the expression “any work” to be read as limited, but only to any work that exists anywhere in Australia.

Section 94(3)(b) reinforces the Secretary’s obligation, in applying s 94(2)(a) to a particular pension claimant, to have regard to any work available anywhere in Australia.

30.

However, s 94(3)(a) imposes a significant qualification on the scope of the inquiry the Secretary is to make in determining whether an applicant meets the requirements of s 94(2)(a).
It directs the Secretary to ignore the availability to the pension applicant of occupational retraining.

If the expression “any work” in s 94(2) has the unqualified meaning urged by the Secretary, the direction in s 94(3)(a) would be entirely unnecessary.
Section 94(3)(a) suggests that the draftsman, sensibly enough, intended s 94(2)(a) to focus the decision-maker’s attention on whether the impairment by itself might prevent the particular pension applicant from doing any kind of work for which that person was already fitted by reason of his actual work skills and work experience, ie, work of the kind he was (the impairment apart) capable of doing without the need for any retraining.
(at 164 ALR 579) An appeal by the Secretary to the Full Federal Court was abandoned and the Secretary no longer contested the construction of s 94(2) applied by Drummond J: SDFaCS v Verney [2000] FCA 570; see [94.06].

In Re Gardner and SDSS [2017] AATA 1553, the Tribunal summarised the present position as follows: 53.

The Tribunal has found that Mr Gardner does have an impairment.
He also has conditions that affected his previous occupation as a specialised tree surgeon, particularly back problems and allergies.

In considering whether a person has a continuing inability to work, “work” is defined at section 94(5) of the Act to mean any work that is for at least 15 hours a week (on wages that are at or above the relevant minimum wage) and exists in Australia, even if not within the person’s locally accessible labour market.
It is not restricted to work that a person used to do, or had experience, training or expertise in, or was familiar with.

… See also Re Uebergang and SDFHCSIA [2011] AATA 642 at [94.09] below.

“any work” - Deafness cases A person with profound deafness is not automatically unfit for any work.
In Re SDSS and Chin [1998] AATA 63, the Tribunal considered the capacity for work of a profoundly deaf 17 year old girl who could not lip read but was able to communicate using AUSLAN or in writing and was achieving very well in educational terms.
The Tribunal held that Page 22 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 the phrase “any work” necessarily implies a “notion of suitability to work that takes into account not only the persons disabilities but also their abilities, and the impact of that employment on their physical and psychological health and well being”.
It rejected a DSS submission that the following occupations were “work” that the respondent could do “light process work in testing or fabrication of jewellery or electronics, care-taker, photo developer, cleaner, mail sorter, gardener, labourer, trade’s assistant, factory hand, kitchen hand, laundry work, industrial cleaner, apprentice baker and shop assistant” on two bases: • "a position which does not allow the respondent to make use of her intellectual potential would, in the context of her particular disabilities, be likely to undermine her psychological health and would not be suitable" (at 52 ALD 345); and • her capacity to undertake that work would depend upon the benevolence of her employer, and thus was not work in the open market place intended by the Act.
An appeal against the decision of the Tribunal was allowed by the Federal Court in SDSS v Chin [1999] FCA 44.

The Court found that there was no evidentiary basis for either of the grounds for decision noted above.

However, in view of its decision as to the insufficiency of the evidence upon which the Tribunal had acted, the Court was not required to reach a conclusion on the important issues of law raised in the decision of the Tribunal, ie.
whether some element of "suitable work" should be implied into the phrase "any work" in s 94(2)(a) and whether the "benevolent employer" approach taken by the Tribunal in Re Hamal and SDSS [1993] AATA 283 and Re Warner and SDSS [1994] AATA 205 has continuing relevance after 29 September 1995.
In Re Crossland and SDFaCS [2004] AATA 864, the Tribunal (at [34]) expressly rejected the approach taken in Re Chin, noting that such a qualified interpretation would be inconsistent with the literal words of s 94(2) and with the intention of the legislature when enacting that provision.

The Tribunal held that the applicant’s profound deafness (rated at 60 points) was not, of itself, sufficient to prevent her from doing “any work” within the next two years.

The Tribunal said: 37.
Likewise, the other reports tendered in evidence by the applicant, namely, the reports of Dr Blackmore (Exhibit A2), Dr Connor (Exhibit A3), Ms Elliott (Exhibit A4) and Ms Webb (Exhibit A6), do not address the abovementioned critical issue for the purposes of s 94(1)(c)(i) and s 94(2)(a) of the Act, but rather address irrelevant or peripheral matters such as the unavailability of work, the unsuitability of available work, and the possible, or even probable, adverse effects on the applicant’s emotional and psychological condition were she to be denied DSP.
Those reports, furthermore, appear to assume, for the purpose of assessing the likely impact of denying the applicant DSP on her emotional and psychological condition, that she would thereby be required to do menial or unskilled work or be restricted to doing that kind of work, and that her emotional and psychological condition would thereby be adversely affected.
That assumption is, in the Tribunal’s opinion, unwarranted and, in any event, is beside the point for the purpose of determining whether the applicant is qualified for DSP.
The point, for the purpose of determining whether the applicant satisfies the “continuing inability to work” qualification criterion specified in s 94 (1)(c)(i) of the Act, is not whether or not the applicant would be required to, or should, do menial work or unskilled work, but rather whether or not the applicant’s impairment is of itself sufficient to prevent her from doing any work (as defined in s 94(5)) within the next 2 years.
Accordingly, the Tribunal has derived little assistance from those reports in this case.

In Re Rowbottom and SDFaCS [1999] AATA 553, the Tribunal held that a young woman with a 98.5% hearing disability was able to do work, as defined in s 94.

Similarly, in Re Woodiwiss and SDFaCS [2003] AATA 846 a woman with severe binaural hearing loss rated at 35 points was held not to have a continuing inability to work.
[94.09] Work shy The third category (in [94.03] above), concerning the work shy person or life style choices, forms no part of the person’s impairment and is also irrelevant to the assessment of the person’s capacity or ability for ongoing work.

Page 23 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re Kemp and SDSS [1994] AATA 615, the applicant was described in a report as an “outdoor type” who had no aptitude for office work.
The Tribunal refused to accept this as a factor in determining ability to work: Continuing inability to work is not to be assessed on the basis of personality or personal preferences - it is to be assessed on the basis of physical, intellectual or psychiatric impairment.
(at [29]) In Croker v SDEWR [2007] FCA 1635, the Federal Court rejected the applicant's submission that "any work" should not encompass work for which he was overqualified and which might be demeaning or psychologically damaging for him to undertake, having regard to his educational qualifications.

Re Yates and SDFHCSIA [2011] AATA 691 is an example of this issue.

The applicant was severely impaired and satisfied the 20pts test.
His level of drive was such that he was capable of 15hrs a week full-time work notwithstanding the severe level of his disability.

Unfortunately the applicant saw the range of retraining offered to him as being demeaning and believed that he could retrain himself more efficiently if he had the advantage of the DSP as a base.

The Tribunal said: 9.

Perhaps Mr Yates is right.

He might be able to make a more effective transition to the workplace if he had unrestricted access to DSP.
His ambition is certainly admirable.

But DSP is not provided to assist in rehabilitation and retraining.

It is designed to help disabled people to live in circumstances where they cannot work because of their disability.

In other words, it is a form of income support.

The legislative scheme contemplates other allowances and mechanisms that are available to assist people to re-train and rehabilitate.
Mr Yates made it clear he does not think much of the logic of that arrangement, but the Secretary does not have the luxury of tailoring social security arrangements precisely to fit the needs and circumstances of each individual.

The Secretary must apply the legislation as it stands.

Once a judgement is made that Mr Yates could return to the workforce with appropriate assistance and training, DSP is no longer an option.
The parties should now concentrate their efforts on identifying an appropriate service provider and make an assessment of what other benefits might best suit his circumstances In Re Uebergang and SDFHCSIA [2011] AATA 642, the Tribunal said: 27.
In relation to the phrase “any work” in s 94(2)(a) of the Act, the Tribunal notes that this phrase ought not be qualified to mean “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [34]), and the phrase did not exclude types of employment that a person might consider insufficiently intellectually challenging or were, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at paragraph [27].
The Tribunal was reminded that, in his evidence, Mr Uebergang had said he expected he could work in IT for 4-5 hours per day.

In Re Barbaro and SDFHCSIA [2011] AATA 895, the Tribunal summarised the authorities relating to the persons attitude to the available work as follows: 11.
In relation to the phrase “any work” in s 94(2)(a) of the Act, I note that this phrase ought not be qualified to mean “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at para [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at para [27]).
Moreover, in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360, Greenwood J (in the Federal Court) said (at paragraph 26): The reference in s 94(2)(a) to any work is not a reference to any work of any kind anywhere at any time.
The phrase ‘any work’ is qualified by a relationship between the impairment of itself and work that might be undertaken without the need to support Mr Harris in a program designed to assist him in preparing for, finding or maintaining work and, more particularly, the second stage inquiry contemplates the possibility of a training activity across five possible areas of training that might have the effect of diversifying skills and Page 24 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 exposing the claimant to wider employment or work opportunities, subject to the consideration specified in s 94(2)(b)(i) and (ii).
In Annas v Director-General of Social Security [1985] FCA 428, the Full Federal Court considered the question of capacity for self-employment: ... the Social Security Act does not limit the qualifications for an invalid pension to persons who have immediately previously engaged in paid employment.

The qualification is framed simply in terms of capacity “for work”.

We see no reason to ignore any capacity which the applicant may have to work in his or her own business.
Similarly, we see no reason to ignore any financial resources which the applicant may have and which would enable the applicant to establish, or to maintain, that business.
(at 8 FCR 55) [94.10] "Australian resident at the time when the person first satisfies paragraph (c)" - s 94(1)(e)(i) The critical date for assessment of eligibility Cases where the qualification work test was satisfied before or after the critical date New Zealand Agreement Section 94(1)(e)(i) requires that a person be an Australian resident at the time when he or she first satisfies the qualification test for a DSP.
This requirement is the same as that which appeared in the 1947 Act and the earlier form of the 1991 Act.

There are two elements of this test: (a) the critical date on which the qualification test is to be applied; (b) the content of the work test.

The critical date for assessment of eligibility In 1992 both of the above elements underwent a change.

The critical date changed from the date of arrival in Australia to the date of Australian residence.

These two concepts are not necessarily the same thing.
A person can be in Australia without being an Australian resident.

In Re Chen and SDFaCS [2001] AATA 1033, the applicant's psychiatric condition first arose in 1993 while he was in Australia on a PRC (temporary) visa.

As he was not an "Australian resident", as defined in s 7(2), at that time, s 94(1)(e)(i) was not satisfied.
The qualification work test changed from the requirement that an applicant suffer a “permanent incapacity for work” to require only an "impairment” together with “a continuing inability to work”.
The cases highlight the following distinctions in relation to the work test: (a) during the period when the “permanent incapacity for work” test applied, the residence criterion should be tested as at the date the incapacity became permanent and not on the date of onset of the injury or disease; (b) during the period in which the test of a “continuing inability to work” applied, the residence criterion should be test as at the date the applicant became unable to work and not on the date of onset of the injury or disease.
In Re Fallah and SDFHCSIA [2011] AATA 344, the applicant suffered chronic arthritis.

The Tribunal said that the relevant test is NOT the date of clinical onset of the condition but is “the time at which the level of functional impairment caused by [the] medical condition reaches the threshold defined by the Act” (at [50]).

See also Re Mekaoui and SDFHCSIA [2013] AATA 398 and Re Ljubovic and SDSS [2015] AATA 1025 to the same effect in the context of a psychiatric impairment.
(c) in the case of people born with incapacitating impairments or of children acquiring an incapacitating impairment there is considerable doubt about the date to be used for the purposes of the qualification work test.
The Full Federal Court in SDSS v Raizenberg [1993] FCAFC 952 and in SDFaCS v Michael [2001] FCA 1811 rejected the adoption of age 16 as the appropriate date, being the date upon which a child could normally be expected to enter the Page 25 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 work force.

The Full Court held that a child of under 16 could also meet the qualifying work test.

Re TH and SDSS [2016] AATA 1024 concerned a young boy with Autism.
He had the autism at the time he migrated with his parents from the UK to Australia.

He became an Australian citizen before leaving school.

During his last year in school, he attempted part-time work at Big W but was unable to cope.

The issue for the Tribunal was whether the "continuing inability to work" arose before or after his Australian citizenship was granted.
The Tribunal held that the continuing inability to work did not arise until TH attempted to work at Big W and this was after his citizenship was granted.

He therefore satisfied s 94(1)(e)(i).

The Tribunal discussed the relevant case law: 24.

The question before me is whether TH satisfies subparagraph (e)(i) of subsection 94(1) of the SS Act.

TH will satisfy subparagraph (e)(i) if he “ … is an Australian resident at the time when … [he] satisfies paragraph (c)” of subsection 94(1) of the SS Act.

25.
25.

The leading decision on the scope of subparagraph (e)(i) of subsection 94(1) is Secretary, Department of Family and Community Services v Michael [2001] FCA 1811 (Michael’s Case) which was handed down by a full court of the Federal Court of Australia in 2001.

… 28.
… 28.

For Drummond J, the test requires the applicant for DSP “ … to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date.” 29.
For Kiefel and Dowsett JJ, the test is for the decision-maker “ … to determine when the actual impairment identified for the purposes of para 94(1)(a), para 94(1)(b) and para 94(1)(c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c).” 30.

In my view, if there is any difference in the tests proposed by Drummond J, on the one hand, and Kiefel and Dowsett JJ, on the other hand, it is more about emphasis than substance.
In my respectful view, the wording of the test proposed by Kiefel and Dowsett JJ is more apt to enunciate the application of subparagraph (e)(i) of subsection 94(1) of the SS Act, and I am content to adopt their Honours test.

31.

Several decisions of this Tribunal have examined issues which are broadly similar to those before me in the instant matter.

However, none of the decisions which I shall now examine are on all fours with TH’s situation.

in New Zealand, she was diagnosed with ataxia 32.


In Syal and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 759, when the Applicant was eight years old in 2000 and was living is a neurodegenerative genetic disorder.

In 2008, she applied for DSP, and the sole issue before the Tribunal was whether she was an Australian resident when her continuing inability to work first occurred.

telangiectasia which 33.


Dr Fraser, Member, quoted the test as enunciated by Kiefel and Dowsett JJ in Michael’s Case.
Dr Fraser’s decision is encapsulated in paragraph 26 of her reasons as follows: [26] In accordance with Michael (supra) the Tribunal must identify for the purposes of s. 94 (1)(a)(b)&(c) of the Act when the actual impairments that resulted in the applicant’s continuing inability to work arose and more specifically whether it was present at the time at which the applicant became an Australian resident.
Therefore, whilst AT is a genetic disorder and the genetic abnormality is present at birth, it is relevant to determine with respect to the applicant when the actual impairments associated with the genetic disorder become apparent.

The effects these impairments have on the level of functioning of the applicant and therefore her ability to work must be assessed.

In the applicant’s case, it is the balance impairments associated with AT which most significantly contribute to her continuing inability to work.
The Tribunal considers that when the applicant was around 9 years old in New Zealand her balance impairments were severe enough to cause her to have a continuing inability to work because she required constant supervising for her own safety with respect to toileting and eating.
Therefore, the balance impairment which caused Page 26 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 the applicant’s inability to work was present before the applicant became an Australian resident.

The applicant therefore does not satisfy s 94(1)(e)(i) of the Act.

34.

In Fallah and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 344, the Applicant applied for DSP.
Here also, the only issue before the Tribunal was whether the Applicant complied with subparagraph (e)(i) of s 94(1) of the SS Act.

35.

The Applicant who was born in Lebanon had several periods of residence in Australia.

She suffered from rheumatoid arthritis which had developed over many years.

Dr Alexander, Member, dismissed her claim.

He stated as follows: 50.


The test to satisfy section 94(1)(c) is not the time of clinical onset of a medical condition but the time at which the level of functional impairment caused by medical condition reaches the required threshold as defined by the Act.

51.

In this case there is no reliable evidence to indicate when Mrs Fallah first had a continuing inability to work thereby first satisfying section 94(1)(c).

52.
52.

Furthermore, in the context of a chronic medical condition that has evolved over more than 25 years the contention that she had a continuing inability to work, as defined in the Act, shortly after the clinical onset of her rheumatoid arthritis is, in my view, not sustainable without reliable evidence to support that contention.

In this application for review there is no such reliable evidence before the Tribunal.

53.
53.

Therefore I am not satisfied that Mrs Fallah first had a continuing inability to work during her first period of residence in Australia which means that the requirements of section 94(1)(e)(i) cannot be satisfied.

36.

In paragraph 50 of his reasons which I have quoted above, Dr Alexander recognises that the onset of an impairment and a continuing inability to work may not always occur at the same time.
On occasions, the evidence may show that a continuing inability to work has occurred at some time after the diagnosis of an impairment.

37.

The final decision is Carroll and Secretary, Department of Social Services (Social services second review) [2015] AATA 982.

In 2014, the Applicant lodged a Claim for DSP.

He was born in the United Kingdom, but in 2010 he became a permanent resident.
Again, the question was whether or not his continuing inability to work had arisen before he became an Australian resident.

In other words, did he comply with subparagraph (e)(i) of the SS Act?

Senior Member Dr Popple wrote as follows: 15.


Each of Mr Carroll’s impairments was a severe impairment for the purposes of s 94(3B); each was of itself sufficient to prevent him from working 15 hours or more a week independently of a program of support within the next 2 years; and each was of itself sufficient to prevent him from undertaking a training activity during the next 2 years.
Accordingly, because of s 94(2), he had a continuing inability to work because of his impairments from no later than 1996 (for the ankylosing spondylitis) and no later than 2000 (for the mental health condition).

16.

Mr Carroll does not dispute that he had a continuing inability to work before he became an Australian resident.

But he argues that he did not satisfy s 94(1)(c) at the time that he became an Australian resident.
He says that his conditions were both in remission for a period, including the period leading up to him being granted a permanent visa.

That may be true: it is possible that he did not satisfy s 94(1)(c) at the time that he became an Australian resident, and it is possible that he later satisfied s 94(1)(c) during the relevant period.

But to satisfy s 94(1)(e)(i)—during the relevant period, or at any time—Mr Carroll must have been an Australian resident at the time when he first satisfied s 94(1)(c).

38.
38.

Senior Member Dr Popple quoted the test as enunciated by Drummond J in Michael’s Case and held that the Applicant’s claim for DSP be refused.

Dr Popple did not need to turn his mind to a situation where the onset of an impairment and a continuing inability to work did not occur at the same time.

Cases where the qualification work test was satisfied before or after the critical date See the summary of cases in Re TH and SDSS [2016] AATA 1024 above.
Page 27 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re Estasy and SDSS [1988] AATA 605, the client was suffering from a long-standing degenerative condition on her arrival in Australia.

However, the only doctor who saw the applicant around the time of her arrival "was emphatic that on her arrival in Australia, the applicant was relatively fit and fairly well".

Nine months after her arrival in Australia, the applicant suffered a recurrence of symptoms.
The Tribunal emphasised that the "critical date" was the time of the applicant's arrival in Australia.

The Tribunal held that it was the recurrence of the applicant's symptoms which rendered her incapacitated for work.

As this had occurred after the "critical date", the applicant had become permanently incapacitated for work while in Australia.
In Re Bekdache and Director-General of Social Security [1984] AATA 1, the applicant had injured his back lifting a television set seven months after arriving in Australia.

The Tribunal wished to satisfy itself that the applicant, with no employment history in Australia, satisfied the 1947 Act equivalent of s 94(1)(e)(i).

Medical evidence suggested degenerative changes in his back which would have required many years to develop.
The applicant and his son testified that the applicant had been in full-time employment until moving to Australia and had sought employment in Australia.

The Tribunal held that "This injury appears to have rendered the previously asymptomatic degenerative changes in his back symptomatic and to have resulted in the applicant becoming permanently incapacitated for work."

(at 5 ALN) Thus the applicant satisfied the provision.
The applicant in Re Yusuf and Director-General of Social Security [1984] AATA 397 suffered from a number of complaints, one being deafness which precluded noisy factory work.

The Tribunal was satisfied that the applicant had been deaf when he arrived in Australia, but was not satisfied that the other conditions had incapacitated the applicant before his arrival.
After concluding that the applicant's employment prospects had been extremely poor when he arrived in Australia, the Tribunal went on to hold that: • • • because of his age, his poor English and his limited work experience, the only work the applicant could have obtained was in a factory with a Turkish-speaking workforce; despite the above factors, it was the applicant's deafness which rendered him incapacitated for work, as it led to his inability to work in a factory; the fact that the applicant was deaf at the time he arrived in Australia rendered him ineligible for an invalid pension.
In Re Hibbert and SDSS [1990] AATA 659, the applicant had moved between Australia and England on several occasions.

He had an accident affecting his back in Australia in 1974, but continued to work for several years afterwards.

A medical report in 1976 indicated he had a full range of movement in his lumbar spine.

By 1986 he had generalised arthritis and received an invalidity benefit in the United Kingdom.
The Tribunal did not accept that a person who had worked for 3 years after an accident had a "permanent incapacity for work" and found that his incapacity arose subsequently when he was in England.

Thus the decision to pay invalid pension at a lower rate in accordance with the Reciprocal Agreement with the United Kingdom was correct.

In Re SDSS and Delmaczynski [1992] AATA 201, the respondent was injured in a motor vehicle accident while visiting Australia and not an Australian resident.
The Tribunal held that the key time was when the incapacity became permanent, not when the accident occurred.

At that time he was an Australian resident and qualified for invalid pension.

In Re Dimissianos and SDSS [1988] AATA 549, the claimant became incapacitated for work due to a condition which he contracted while living in Australia.

Medical evidence suggested that the claimant had almost completely recovered before he left Australia.
The condition later deteriorated while the claimant was living in Greece.

The Tribunal emphasised that the commencement of incapacity for work, rather than the commencement of the relevant medical condition, was relevant under the equivalent provision of the 1947 Act: See also Re Porcaro and SDSS [1988] AATA 594.
Page 28 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re SDSS and Abaroa [1991] AATA 59, the applicant was born in Australia with cerebral palsy (as an Australian resident), left at the age of 5, and returned at 28 years of age, when he claimed invalid pension.
The Department argued that the "permanent incapacity for work" arose when he reached working age, at which time he was not an Australian resident; therefore he would have to accumulate "10 years qualifying Australian residence".

The Tribunal referred to Re SDSS and Mancer [1989] AATA 278 where an intellectually disabled girl was brought into Australia at 14 for adoption.
The AAT in that case held that she qualified for invalid pension at age 16 as she became "incapacitated for work" at the age of workforce entry, not when the disability occurred ie.

at birth in Sri Lanka.

The Tribunal in Re Abaroa was concerned at the eccentric consequences which could flow from this approach, including, for example, variability in pension entitlement according to the minimum legal working age State by State.
The Tribunal's preferred approach was to require "the qualifying event" to occur at a time when the claimant was an Australian resident; this "fructifies into an entitlement" on turning 16 years of age.

In Re SDSS and Raizenberg [1992] AATA 847, the Tribunal (O'Connor J) considered a case with a very similar fact situation to Mancer; the claimant was born in Canada with cerebral palsy and emigrated to Australia at the age of 14.
The Department rejected her claim for Invalid Pension at age 16 on the basis that her "impairment occurred outside Australia".

The Tribunal drew a distinction between "impairment" and "permanent incapacity for work" and held that an incapacity for work could not arise in respect of a child under 16: "a child under sixteen has no capacity for work that is measurable because they are not capable of engaging in paid work.

It follows that a child under sixteen cannot be incapacitated for work."
(at 29 ALD 118) The Tribunal suggested that the consequences described as "eccentric" in Re Abaroa are "a natural by product of any arbitrary age limit".

Re Raizenberg was followed in another cerebral palsy case: Re Viskovich and SDSS [1993] AATA 93.

A majority of the Full Federal Court (Wilcox and Beazley JJ) in SDSS v Raizenberg [1993] FCAFC 952 preferred the reasoning in Re Abaroa and upheld the Department's appeal.
The Court considered that: The age requirement in s 94(1)(d) does not specify the point at which incapacity is to be assessed.

It does no more than prescribe the age at which eligibility for pension may arise.

Further, the construction given to the phrase by the Tribunal fails to give effect to s 94(1)(e)(iii).

The history of the legislation reveals that it has always recognised that a child may be incapacitated for work.

...
...

In our opinion, the phrase "permanently incapacitated for work" in s 94(1) means loss of earning capacity.

We appreciate that it will not always be easy to determine whether there is a loss of earning capacity, and if so its extent, before the person reaches the usual working age.

But, if there is a difficulty, this was one deliberately accepted by Parliament.

(at 47 FCR 540) Einfeld J, in a minority opinion, differed on the question as to when an incapacity for work arises.
In his view, "section 94 requires a permanent incapacity for work, not on the basis of a diagnosis at birth or any other time, but as an actuality at the time when the incapacity and the other qualifications are all being considered and assessed in the context of eligibility for a pension".

(at 47 FCR 542) He considered that the Tribunal was "fundamentally correct" in its interpretation of s 94.
However, the Full Court's decision concerned a matter that predated the 1992 amendments and so concerned only the ‘permanent incapacity for work’ test.
In Re Michael and SDFaCS [2001] AATA 560, the Tribunal conducted a detailed examination of the changes in the legislative framework of this requirement since SDSS v Raizenberg [1993] FCAFC 952 in a case where a mother brought her severely disabled son, then aged 15 years and 9 months, from New Zealand into Australia so as to live near to her sister who could assist with Page 29 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 caring.
The Tribunal concluded that s 94(1)(e)(i) required an assessment at the time when the person would usually be expected to enter the workforce, usually at age 16.

The Full Federal Court in SDFaCS v Michael [2001] FCA 1811 set aside this decision, rejecting the Tribunal's construction of the provisions as "contrived and artificial" at [24]).
The Court held that the decision-maker must "determine when the actual impairment identified for the purposes of pars 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c)" (at [27]).

The Court acknowledged that there were other ways of approaching the provision, but considered this the preferable approach: 27.
We favour the construction of subpar 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of pars 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c).

It is true that such an exercise will sometimes be difficult to perform.

As was recognized by the Full Court in Raizenberg, any exercise of this kind will pose problems.
However in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident.

It is only where the condition has become more or less acute, or where one of the other variable factors to which we have referred has come into operation that the matter will become more difficult.
In Re Murphy and SDFaCS [2004] AATA 1248, the Tribunal applied Michael, holding that a young woman who was born with severe Diastrophic Dwarfism had an inability to work from her birth and was not entitled to DSP because she could not satisfy s 94(1)(e).

Her condition meant that she could not drive or toilet herself (because of her short arms) and she was unable to breathe without a tracheostomy which could not be removed.
She entered Australia aged 15 in 2002, after having been granted Australian citizenship by descent.

In Re Syal and SDFHCSIA [2010] AATA 759, the applicant suffered from a rare neurodegenerative genetic disorder ataxia telangiectasia (AT).

The condition was diagnosed in July 2000 in New Zealand when she was 8 years old.
The Tribunal followed Michael, holding that it was necessary to determine when the actual impairments that resulted in the person’s continuing inability to work arose and, more specifically whether it was present at the time when the person became an Australian resident.
While AT is a genetic disorder, and the genetic abnormality is present at birth, it is necessary to determine when the actual impairments associated with the genetic disorder became apparent at a functional level causing continuing inability to work.

In this case, this was when the applicant was around 9 years of age and living in New Zealand.
New Zealand Agreement Article 12 of the New Zealand Agreement permits aggregation of certain periods of New Zealand residence and Australian residence to meet the 10 year qualification threshold.

See the discussion at [Schedule 3.01 IA] in the Social Security (International Agreements) Commentary.

In Re Ford and SDSS [2019] AATA 1299 the Tribunal took the view that the New Zealand Agreement does not obviate the need to satisfy s 94(1)(e).
In Re Chen and SDSS [2019] AATA 3607, the Tribunal held that the New Zealand Agreement does not obviate the need to satisfy s 94(1)(a), (b) or (c); see the discussion of this case at [Sch 3.03 IA] in Schedule 3 in the International Agreements Commentary.
[94.11] Relevant date for assessment of disability support pension Relevant date is the date of lodgment and the ensuing 13 weeks Later medical evidence Relevant date in the case of cancellation of pension Relevant date is the date of lodgment and the ensuing 13 weeks Qualification for DSP is to be considered on the date of lodgement of the claim and the ensuing 13 weeks (s 41, s 42, Sch 2 4(1) Social Security (Administration) Act 1991; see also [Sch 2 cl4.01 Page 30 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 SSA] in Part 3 of the Social Security (Administration) Commentary, Re Dawson and SDSS [2016] AATA 332 and Re Chant and SDSS [2016] AATA 410).
The actual start day for the commencement of DSP is the day on which the claim was lodged or, if the claimant made contact with the Department at an earlier day, then it is the earlier day provided the claim was lodged within 14 days of this earlier date: Re Baxter and SDSS [2014] AATA 738.

It is in this 13 week period that the medical evidence must establish the entitlement to DSP.
It is not sufficient that the medical evidence establishes entitlement by the time the matter is under review by the SSAT or the AAT, well outside the 13 week period.

In Re Bobera and SDFHCSIA [2012] AATA 922, the Tribunal put it thus: 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.

Re Bobera has been cited by the Tribunal in numerous subsequent decisions.

In Re Foran and SDSS [2015] AATA 912, the applicant sought to have his DSP start from a date earlier than the date of claim.
He argued that his psychological illness prevented him from lodging the claim.

The Tribunal rejected the argument saying: 22.

The Tribunal cannot uphold an argument that might be interpreted as contending that the Applicant lacked capacity to make an earlier written claim when his illness was severe.

There is no decision for the purposes of section 25 of the AAT Act about whether the Applicant was entitled to DSP at an earlier time.

23.
23.

The Tribunal is bound to follow the principles established by the decision of the Full Court of the Federal Court of Australia in Formosa.

24.

The Applicant did not identify any basis upon which the Tribunal should not follow the principles established by Formosa and he conceded there was no statutory or other discretion to treat his written claim as having been made earlier.

25.
25.

It may at first blush seem unfair that a person who is mentally incapable of submitting a written claim for social security entitlement, cannot be treated as having made the claim at an earlier time because of the mental incapacity.

26.

However, the Tribunal is of the view that there is no unfairness.

It accepts that the requirements for a written claim and the reasons for the same are essential to an efficient, accountable and fair system of government funded social security benefits.
It respectfully adopts the sentiments of the Full Court at paragraph 35 of Formosa.

“It would be to attend the administration of the legislation with the greatest uncertainty both for alleged claimants and for those charged with administration of the legislation”, if written applications could be treated as being made at a time other than when they were in fact made.

27.
27.

It would have potential to make identification of eligibility ambiguous and uncertain, something which is highly undesirable in the context of existing statutory criteria for eligibility.

28.

Further, as Counsel for the Respondent submitted, the Tribunal accepts that it would be unusual for a person to be left without out means of financial support, merely because they lacked mental capacity to make a written claim for a social security benefit.
At both State and Page 31 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Commonwealth levels, there are mechanisms by which assistance is offered and provided to those who lack mental capacity to apply to the Respondent for social security entitlements.

29.

Accordingly, as the requirement of s 94(1)(b) of the SS Act was not satisfied at the relevant time, the Applicant was not eligible for DSP and the decision under review is affirmed.
See Re Best and SDEEWR [2012] AATA 345 to the same effect in a case where the applicant had not put to the Secretary all of the relevant medical facts that pointed to an earlier date of permanency.

See also Re Dawson and SDSS [2016] AATA 332 and Re Chant and SDSS [2016] AATA 410.

In Re Mihri and SDSS [2014] AATA 720, the Tribunal described the relevant period as follows: 4.
Unlike many other reviews undertaken by the Administrative Appeals Tribunal (“the AAT”), this Tribunal is not able to undertake a hearing based upon the state of the Applicant’s health as at the hearing date.

The Applicant’s state of disability at the time of the hearing is not the issue.
Under the Social Security (Administration) Act 1999 the role of the AAT is to decide whether the Applicant establishes a case for a pension only as at the time of the claim or in the 13 week period thereafter: Social Security Administration Act 1999 (Cth) Sch 2 cl 4(1); Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997) and Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922.
That is, the Applicant’s health conditions as assessed after 4 June 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal except in so far as they throw light on the conditions during the relevant period.

Later medical evidence In Re Fanning and SDSS [2014] AATA 447, Deputy President Handley said: 31.
In my view, in the case of DSP, it is implicit in cl 4 of Sch 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 to the applicant’s condition during the relevant period.

32.
32.

This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [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 in so far as it may cast light on the position at the relevant time”.

33.
33.

The language in cl 6(5) and (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 2 years” (emphasis added).
While hindsight may suggest that treatment did not result in improvement within 2 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 relevant period is not directly relevant to the tribunal’s decision.

In Re Sidwell and SDSS [2015] AATA 402, the Tribunal noted that the progression of a medical condition after the assessment period cannot be taken into account: 61.

It is important to appreciate that the progression of a medical condition after the assessment period cannot be used as material to award DSP.
The Tribunal notes the comments of Member Breen in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs: 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 Page 32 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 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.

62.

In addition, the Tribunal notes the comments of Deputy President Handley in Re Fanning and Secretary, Department of Social Services [set out at at [31]-[33], above].
In Gallacher v SDSS [2015] FCA 1123, Besanko J summarised the position as follows: In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 26 404; (2007) 158 FCR 252, Gyles J said at 253: It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter.
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.

(On appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 27 AAR 466, Deputy President Handley said at 473 [31]: In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] 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 insofar as they are referrable to the applicant’s condition during the relevant period.

28 I respectfully agree with the approach taken in those cases.

The approach to be taken in this case was dictated by the terms of the legislation (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] per Kirby J; at 315 [99] per Hayne and Heydon JJ).
29 Dr Tibrewal’s opinions about the applicant’s depressive condition were not referrable to the period between 4 April 2013 and 4 July 2013 and the Tribunal did not err in the way in which it dealt with this report.

Gallacher was applied by the Tribunal in Re Moammar and SDSS [2017] AATA 1020; see also Re Hammond and SDSS [2017] AATA 1242 and Re Clifford and SDSS [2016] AATA 432 to the same effect.
This is not the same thing as saying that later evidence cannot be taken into account to give a fuller picture of the applicant’s medical condition during the assessment period ie.

the use of hindsight.

This point was made in Re SDSS and Austin [2015] AATA 441: 24.

… However, with respect to Deputy President Handley [in Fanning], I am not persuaded that the Tribunal may not have regard to what subsequently transpired in determining what was likely to occur at an earlier point in time.
I understand the position to be that, in making findings as to the state of affairs at an earlier point in time, and what could be considered likely to eventuate at that time, the Tribunal may have regard to evidence which comes into existence later.

In my view, it is consistent with that proposition for the Tribunal to have regard to what actually happened in determining what was likely at an earlier date, namely during the assessment period.
I also note there is no inconsistency between that proposition and the observations of Gyles J in Harris.
Accordingly, I am satisfied that it is permissible for me to have regard to the effect of Mr Austin’s cortisone injections in 2014, and his continuing difficulties with medication after the assessment period Page 33 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re Madgwick and SDSS [2015] AATA 626, an eye specialist provided an assessment after the end of the qualifying period.
The specialist opined that the condition was stable and had existed during the qualifying period.

The Tribunal had regard to this report in establishing the status of the eye condition for DSP purposes.

In Re Petrovic and SDSS [2018] AATA 748, the Tribunal applied Re SDSS and Austin (above): 155.
The Tribunal accepts that a finding that a condition had been fully diagnosed as at the relevant date or period might be made on the basis of evidence from a medical practitioner in the form of a report post-dating the relevant date or period, but which contained in it a medical opinion that as at the relevant date or period the claimant had a particular condition.
In a case, where the medical practitioner had treated or examined the claimant before the relevant date or end of the relevant period, such a report would seem to have a high degree of probative value and is likely to form a good evidentiary basis for a finding that the condition had been fully diagnosed as at the relevant date or relevant period, even though that diagnosis had not been recorded in writing before the relevant date or before the end of the relevant period.
However, it becomes complex if the medical practitioner recording the diagnosis did not treat or examine the claimant until a significant time after the relevant date or the relevant period.

In the present case, a psychiatrist, Dr Kaplan, did not examine Mr Petrovic until one year after the Qualification Date.
The Tribunal considers that in such a case the probative value of such evidence begins to fall away, accepting of course that each case will turn on its fact which leads to the further consideration by the Tribunal of Mr Petrovic’s circumstances as outlined below.

In Re Hancock and SDSS [2016] AATA 435, the Secretary argued that medical reports prepared after the relevant dates and with the benefit of hindsight should receive little weight.
The Tribunal rejected this argument both because hindsight could be more reliable than a prognostication and because this criticism was never put to the relevant doctor in evidence.

A review of the cases on the back dating provisions is set out at s 13 and cl 4 in Schedule 2 in the Social Security (Administration) Commentary.
Relevant date in the case of cancellation of pension In Re Van Der Kruys and SDSS [2016] AATA 282, the Tribunal noted that the date for assessing ongoing DSP entitlement where the pension has been cancelled is the date of the cancellation: See also Re SDSS and Holdsworth [2017] AATA 446, where the Tribunal affirmed the above position and said: 31.
In Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64 the Tribunal, comprising Senior Member Sosso, confirmed in relation to a DSP cancellation at [29-31]:- … 31.
In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.
In Re Collins and SDSS [2017] AATA 2277, the Tribunal said that once it had decided the cancellation issue it was without jurisdiction to consider whether a new pension should be granted: 54.

The Tribunal accepts the principle from the Federal Court decision in Freeman v Secretary, Department of Social Service (1988) 19 FCR 342, that should the Tribunal determine that a decision to cancel was the correct or preferable decision, no further matter remained for the Tribunal’s consideration.
This decision remains good law and has been followed by the Tribunal in various decisions, including Saad and Secretary, Department of Social Services [2015] AATA 160.

As the Tribunal has determined that Ms Collins did not satisfy s 94(1)(b) of the Act as of the date of cancellation of her DSP, no further consideration of the application is required.
Page 34 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re Mitting and SDSS [2017] AATA 2162, the Tribunal observed that in such circumstances the applicant had no choice but to lodge a new application with the Secretary and start the process again.
"training activity” – s 94(3)(a), s 94(5) [94.12] Section 94(2)(b) which defined “a training activity” was repealed and substituted on 1 July 2006 by item 2 in Schedule 2 to the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (No 154/2005).
"Training activity" is now defined in s 94(5): training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: (a) education; (b) pre-vocational training; (c) vocational training; (d) vocational rehabilitation; (e) work-related training (including on-the-job training).
"educational or vocational training”, “on-the-job training” – former s 94(2)(b) In Re Ikonen and SDFaCS [2002] AATA 295, the applicant suffered from a heart condition which required bed rest during attacks of palpitations which he suffered on most days.

The Tribunal was satisfied that this condition was of itself sufficient to prevent him from doing any work of 30 hours per week at award wages or above.
The applicant had undertaken a course at the Wollongong School of Management in 2000, however this was not an indication of ability to undertake educational or vocational training as the course was done entirely over the Internet and, “given the Applicant’s heart condition and the symptoms he continues to suffer, such training would be unlikely to enable the Applicant to do any work within the next two years” (at [34]).
Relationship with the Disability Discrimination Act 1992 [94.13] In Re SDSS and Connell [1998] AATA 441, the Tribunal noted that the benefit provisions of the Social Security Act are not affected by the Disability Discrimination Act 1992: 8.

A question of whether the Disability Discrimination Act 1992 applied to this case was raised.
I am mindful that section 51 of the Disability Discrimination Act 1992 affirms that actions taken pursuant to the provisions of the Social Security Act 1991, are not rendered unlawful by any provisions in the Disability Discrimination Act 1992.

Section 51 follows as relevant: “51.


(1) This Part does not affect discriminatory provisions relating to pensions, allowances or benefits in: (a) the Defence Service Homes Act 1918; or (b) the Papua New Guinea (Member of the Forces Benefits) Act 1957; or (d) the Social Security Act 1991; or (e) the Veterans' Affairs Legislation Amendment Act 1988; or (f) the Veterans' Entitlements Act 1986; or (g) the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986.
(2) This Part does not render unlawful anything done by a person in direct compliance with a provision referred to in subsection (1).” 9.

As a result, the Disability Discrimination Act 1992 does not have any bearing on the matter before the Tribunal, or the decision to be made by the Tribunal.
Page 35 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Section 95 Qualification for disability support pension - permanent blindness [95.01] Blind pension - general [95.02] "permanently blind" - s 95(1)(a) [95.03] Department Guide to Social Security Law [95.04] "at the time when the person first satisfies paragraph (a)" - s 95(1)(c) Blind pension - general [95.01] Section 95 establishes permanent blindness as an alternative ground of eligibility for disability support pension.
A pension granted on this basis is free of the ordinary income test, the assets test and the maintenance income test.

The Federal Court in SDSS v Rurak (1990) held that the rate of payment of a blind invalid pension under the 1947 Act was not affected by maintenance income.

In reaching this conclusion the Court made an extensive survey of the statutory history of the blind pension and referred to "the long standing principle that the permanently blind should not be means tested on their basic pensions".
(at 26 FCR 12) Under the 1991 Act, the rate of payment of disability support pension is explicitly exempted from means testing by the use of Rates Calculators specifically for blind people - Pension Rate Calculator B (s 1065, Part 3.3) for permanently blind age pensioners and permanently blind disability support pensioners over 21, and Pension Rate Calculator E (s 1066B, Part 3.4B) for people under 21 who are permanently blind.
Note, however, that blind disability support pension is subject to the compensation preclusion provisions: Re Parezanovic and SDSS [1993] AATA 174; Re Morgan and SDFaCS [1999] AATA 168; Re Holmes and SDFaCS [2005] AATA 812; see [1184K.08] in Part 3.14.

See Re SDFaCS and Dimitrakopoulos [2003] AATA 571 for a case where the Tribunal held that the grant of DSP to the respondent in 1994 was on the basis of general disability and not blindness.
Accordingly she was subject to the income and assets test and had incurred an overpayment of $42,626.50, being the pension paid between1994 and 2000.

In Re SDSS and Al-Shuraifi [2019] AATA 4377 the claimant was not legally blind however his visual disability rated 20 points under Table 12.

See the commentary to s 94 for discussion of general issues about the disability support pension.
[95.02] "permanently blind" – s 95(1)(a) 1998 Impairment Tables 1947 and 1991 Acts 1998 Impairment Tables Table 13 of the 1998 Impairment Tables states the following qualification for permanent blindness.

Note that it is tested on the basis of “corrected” vision.
A person meets the criteria for permanent blindness under section 95 of the Social Security Act if the corrected visual acuity is less than 6/60 on the Snellen Scale in both eyes or there is a combination of visual defects resulting in the same degree of permanent visual loss.
Table 15 provides an additional qualification based on limitation to the visual field: A person meets the criteria for permanent blindness under section 95 of the Social Security Act if their field of vision is constricted to ten degrees or less of arc from central fixation in the better eye irrespective of corrected visual acuity or there is a combination of visual defects resulting in the same degree of visual impairment.
Page 36 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 1947 and 1991 Acts In Re Touhane and Director-General of Social Security [1984] AATA 186, the Tribunal held that “blindness” does not mean a complete absence of vision, noting that: The meaning of "blind" is still very much at large.

...

It is a curiously imprecise and old fashioned word (rather like "mad") seldom used by medical practitioners and principally to be found in non- medical contexts.
It more properly belongs in the realm of literature, religion or history than in medicine or law.

It is, however, a word used in an Act of Parliament and one must, therefore, ascribe a meaning to it.

… In our view, it is not sufficient merely to go to a dictionary and to ignore all medical practice and all standards adopted by persons concerned with sight deficiencies.

This is one of the occasions where a standard meaning must be arrived at by taking into account much wider considerations.
(at 6 ALD 150) In Re Zironda and SDSS [1985] AATA 202, the Tribunal was called on to determine whether "permanent blindness" was to be assessed before or after correction of sight.
The Tribunal discussed decisions of State Courts and workers' compensation commissions in which sight was assessed without correction in the application of workers' compensation legislation and noted statements by Smithers J in Dragojlovic v Director-General of Social Security [1984] FCA 6 highlighting the differing purposes and contexts of the Social Security Act 1947 and workers' compensation legislation.

The Tribunal held that “blindness” was to be tested without correction.
In Re Cowley and SDSS [1986] AATA 269, the Tribunal took a different view: Section [95] of the Act is concerned with qualification to receive an invalid pension.

It is clear from … [the income test] that, except possibly in the case of blindness, such a pension is paid not as a recompense for the misfortune of suffering an incapacity but only for the purposes of ensuring that the person is not, by reason of that incapacity, deprived of the financial means to maintain himself.
It seems likely that the different treatment accorded by [Part 3.3] to persons who are permanently blind is intended to take account of the additional costs of day to day living which are necessitated by severe blindness.
I, therefore, prefer the view expressed by Mr Clarkson in Re Leach that "permanently blind" means totally blind, subject to the qualification that a person is to be regarded as totally blind where he is so severely blind that the effect of the blindness on his day to day living is essentially the same as the effect of total blindness.
I have no doubt that, in order to ascertain whether a person is permanently blind, his vision has to be tested when corrected by glasses or contact lenses, unless he cannot for any reason wear glasses or use contact lenses.

(at 10 ALD 202) See also Re Resetar and SDSS [1988] AATA 476 and Re Rudder and SDEWR [2006] AATA 249, which applied Re Cowley, holding that blindness was to be assessed on the basis of corrected vision.
See Re SDSS and Oakey [1993] AATA 312 for discussion of a borderline case under the 1991 Act.

It was agreed that the claimant had an impairment of 50% under the Impairment Tables, but his visual defects did not quite meet the strict requirements of the policy guidelines and his "condition is not one which results in his day-to-day activities being as impaired as one who is totally blind".
(at [30]) Department Guide to Social Security Law [95.03] The Department Guide to Social Security Law (last reviewed 1 July 2016) sets out the following policy guidelines in relation to "permanently blind".

3.6.2.40 Assessment of Blindness for DSP Summary A person who is assessed as being permanently blind (1.1.P.210) is automatically qualified for DSP under SSAct section 95.

People who qualify under SSAct section 95 do not have to demonstrate a CITW (1.1.C.330).
Act reference: SSAct section 95(1) Qualification for DSP-permanent blindness Page 37 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Policy reference: SS Guide 3.6.1.10 Qualification for DSP - 30 Hour Rule, 3.6.1.12 Qualification for DSP - 15 Hour Rule, 3.6.2.20 Manifest Grants & Rejections for DSP Meeting the qualification criteria of section 95 To be permanently blind for the purposes of SSAct section 95, a person must have: • • • visual acuity (1.1.V.50) on the Snellen Scale after correction by suitable lenses of less than 6/60 in both eyes, OR constriction to within 10 degrees of fixation in the better eye irrespective of corrected visual acuity, OR a combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points.
Assessment procedures A person whose medical evidence clearly indicates that they have NO vision is accepted as being manifestly qualified for DSP.

Example: A person who has been totally blind since birth or has lost eyes due to cancer or an accident.

A claimant whose supporting report (SA013) completed by their treating ophthalmologist confirms that they meet the criteria for permanent blindness is accepted as being manifestly qualified for DSP.
A claimant whose supporting report (SA013) completed by an optometrist confirms that they meet the criteria for permanent blindness is accepted as being manifestly qualified for DSP also, PROVIDED the optometrist's report: • • provides details of the treating or formerly treating ophthalmologist, and clearly states that it is supported by a report from the latter.

If a claimant qualifies because they are permanently blind, they do NOT need to be considered against the CITW qualification criteria.
Note: DSP (permanently blind) recipients are paid DSP free of the income and assets test but are affected by the compensation provisions of the SSAct.
Act reference: SSAct section 17 Compensation recovery definitions, section 1065 Rate of age and DSP (blind people), Part 3.14 Compensation recovery Policy reference: SS Guide 4.13 Compensation "at the time when the person first satisfies paragraph (a)" - s 95(1)(c) [95.04] See the discussion of the equivalent provision at [94.10] in relation to DSP granted on the basis of continuing inability to work.
Section 96 Continuation of disability support pension Effect of s 96 [96.01] Section 96 provides for a person to continue to be qualified for DSP if they obtain paid work that is for at least 15 hours per week and less than 30 hours per week.
In Re SDSS and Trenter [2016] AATA 292, the Tribunal offered the following obiter comments on the construction of s 96, the effect of which is that it preserves, without a time limit, the entitlement to DSP for people with 20 points or more who work for more than two year for 15 -30 hrs each week: 56.

It is strictly unnecessary for me to discuss the issue of whether Mr Trenter has a continuing inability to work.

For the two following reasons I shall offer an opinion on its meaning.
First, section 96 of the SS Act is important to the operation of the DSP, especially to recipients who are working more than 15 hours a week.

Second, Dr Thompson who appeared on behalf of the Secretary was unable to cite a decision where section 96 of the SS Act has been interpreted Page 38 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 and I am not aware of any precedents.
Therefore, it does appear appropriate in this decision to proffer an opinion on the operation of this provision.

57.

It is clear that Mr Trenter has been working for more than 15 hours a week, but less than 30 hours each week for the last few years.

Without more, he could not be said to have a continuing inability to work within the meaning of subsection 94(1) paragraph (c)(i) and subsection 94(2) paragraphs (a) and (b) of the SS Act.

58.
58.

However, the issue is whether he could continue to receive DSP owing to section 96 of the SS Act.

I have quoted section 96 of the SS Act in its entirety above.

It is common ground that subsection 96(3) is not relevant to Mr Trenter as he is not a "reviewed 2008-2011 DSP starter".

… The Plain Meaning of the Words 62.


In my opinion, when the plain meaning of the words of section 96 of the SS Act are read, this section covers persons like Mr Trenter who are recipients of DSP, and who have been employed for more than two years, and have been working for 15, but less than 30 hours per week.

After all, the provision contains no express limitations as to time.
The DSP is subject to a means test which means that where a recipient works for 15 hours or more per week, her or his DSP is reduced.

73.

In my view, there is a choice between an interpretation which focuses upon the plain meaning of the words in section 96 of the SS Act, and an interpretation which by implication reads the words "for up to two years" into section 96 of the SS Act.

This is not an easy choice to make.


However, after weighing up the merits of both interpretations, I prefer the plain meaning interpretation.

It does appear to me that subsection 94(2) paragraphs (a) and (b) of the SS Act are simply specifying the continuing inability to work qualification for DSP.
In my opinion, there is nothing inconsistent between qualifying for DSP by being unable to work for 15 hours a week for two years, on the one hand, and on the other hand, at a later date working for at least 15, but not more than 30 hours per week indefinitely while still receiving reduced DSP owing to the means test.

Section 96, thus encourages recipients to undertake work for not more than 30 hours a week, while still retaining a reduced DSP.

74.
74.

If the DSP was not subject to the means test rules, Dr Thompson's argument would have more force because from my reading of the SS Act, its purposes and objects do not encompass double dipping.

However, when persons work for 15 hours a week and not more than 15 hours each week, their DSP is reduced by the means test rules.

75.

If the Parliament had wished to place a two year time limit on the receipt of DSP under section 96 of the SS Act, it could have said so expressly.
I am fortified in this plain meaning interpretation of this provision by both the explanatory memorandum and the current Guide to Social Security Law.

It will be recalled that neither the explanatory memorandum, nor the Guide specify a two year time limit with respect to section 96 of the SS Act.

76.
76.

It is true that the two budget papers which I have quoted above do contemplate a two year time limit, but in my view these two contemplations of themselves cannot constrain the plain meaning of the words of section 96 of the SS Act.
Division 5 - Rate of disability support pension Section 117 How to work out a person's disability support pension rate [117.01] Rate of disability support pension Division 5 (s 117) was not affected by the administrative restructuring of the Act made by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 (No 192/1999) with effect from 20 March 2000.
The rate of DSP is worked out using: • Pension Rate Calculator A in s 1064 in Part 6.2 - 21 and over, not blind; • Pension Rate Calculator B in s 1065 in Part 3.3 - 21 and over, blind; or Page 39 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 • Pension Rate Calculator D in s 1066A in Part 3.4A - under 21, not blind, no dependent children; • Pension Rate Calculator E in s 1066B in Part 3.4B - under 21, blind, no dependent children.
Page 40 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3