Editors --- "Disability support pension: qualification; program of support" [2014] SocSecRpr 10; (2014) 16(2) Social Security Reporter, Article 2

• O'GORMAN-WATSON and SECRETARY TO THE DSS
• Background
• Issue
• Legislation
• Evidence
• Formal decision

---

Disability support pension: qualification; program of support

O'GORMAN-WATSON and SECRETARY TO THE DSS

(2014/277)

Decided: 30th April 2014 by I. Alexander

Background

O’Gorman-Watson was diagnosed with multiple sclerosis (MS) in 2000. Deterioration in her medical condition resulted in her ceasing employment in 2012. On 31 August 2012, O’Gorman- Watson submitted a claim for disability support pension (DSP). It was determined that her condition was permanent, fully diagnosed, treated and stabilised. Her impairment rating was 25 points across 4 tables and she was deemed incapable of working 15 hours per week. Her application was rejected as Centrelink found she had not completed a ‘program of support’ (POS) and thus did not have a continuing inability to work. An authorised review officer (ARO) and the Social Security Appeals Tribunal (SSAT) affirmed this decision. O’Gorman-Watson then sought review at the Tribunal.

Issue

The Secretary conceded that at the relevant time O’Gorman-Watson satisfied the requirements of s.94 (1) (a) and s.94 (1) (b) of the Social Security Act 1999 (Cth) (‘the Act’). The only issue was whether she had a continuing inability to work within the meaning of s.94 (1) (c) and this turned on whether she had failed to actively participate in a POS in accordance with s.94 (3C). This required consideration of whether she was prevented solely by her impairment from improving her capacity to find, gain or remain in employment through continued participation in the program.

Legislation

Section 94 of the Act provides:

(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person’s impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:(i) the person has a continuing inability to work; ...

(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 impair-ment within the meaning of subsection (3B)-the person has actively particip-ated in a program of support within the meaning of subsection (3C); and

(a) in all cases-the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b) in all cases-either:

(i) the impairment is of itself sufficient to prevent the per-son from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from un-dertaking 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. ...

Section 5 of the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (‘the Determination’) sets out the requirements for active participation in a program of support.

Subsection 5(5) of the Determination states:

This subsection is satisfied in relation to a person and a program of support if:

(a) At the relevant date of claim is participating in the program of support; and

(b) The person is prevented solely because of his or her impairment from improving his or her capacity to find, gain or remain in employment through continued participation in the program.

Evidence

O’Gorman-Watson told the AAT that from about August 2012 her health deteriorated rapidly and she was no longer able to work. On 4 October 2012 she struggled to attend her first interview with Interwork Disability Services (IDS), a designated support provider. She was told at that interview she did not have to attend because she had been ‘suspended by Centrelink’. She was confused by the information given to her. She was later advised by IDS that she was to exit the program. Her condition continued to worsen. Later in 2013, IDS informed O’Gorman-Watson that they were closing down, so in September 2013 O’Gorman-Watson volunteered to attend ORS Employment Solutions (ORS). O’Gorman-Watson believed she had been suspended from the POS because of the effect of her impairment on her capacity to work and submitted that the nature and severity of her condition prevented her from obtaining any benefits from these programs. The AAT considered documentary evidence being ARO notes, IDS file notes and ORS file notes. Consideration of evidence

The AAT considered that, based on the evidence, it was likely that at the time of claim O'Gorman-Watson's impairment should have rated 40 points, with 20 points on one table which would meet the defini-tion of a severe impairment. However, it noted that as no additional assessment was carried out the AAT had to assume she did not meet the requirement for ‘severe impairment’. The Secretary conceded that at the relevant date O’Gorman-Watson was participating in a POS. The Tribunal found that given O’Gorman-Watson’s severe physical, cognitive and communicative incapacities, it was unlikely she would benefit from any POS unless it was tailored to meet her specific needs. There was no evidence that it was. The Tribunal concluded that during the relevant period O’Gorman-Watson was prevented solely because of her impairment from improving her capacity to find gain or remain in employment through continued participation in the POS. She therefore satisfied s.5 (5) of the Determination and she satisfied s.94 of the Act and was qualified for DSP.

Formal decision

The decision was set aside and a decision substituted that at the relevant time O’Gorman-Watson satisfied s.94 of the Act and was qualified for DSP. [C.E.]