Steffensen and Secretary, Department of Social Services (Social services second review) [2024] AATA 119 (6 February 2024)

Social Security Act 1991 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Lucas and Secretary, Department of Social Services [2018] AATA 2563

Newman and Secretary, Department of Family and Community Services [2002] AATA 917

Smalldon and Secretary, Department of Social Services [2015] AATA 2

Smyrniadou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2433

Austin Health, Pain Service Referral Guidelines (January 2024)

Department of Social Services, Guide to Social Security Law (version 1.314, 2 January 2024)

Kamper S J et al, 'Multidisciplinary biopsychosocial rehabilitation for chronic low back pain: Cochrane systematic review and meta-analysis' (2015) 350 The British Medical Journal Lambeek C L et al, 'Randomised controlled trial of integrated care to reduce disability from chronic low back pain in working and private life' (2010) 340 The British Medical Journal

Monash Health, Pain Management Clinic Readiness for Change in People with Chronic Pain (November 2018)

1. Ms Melissa Steffensen (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant her a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (the Act).
2. Ms Steffensen lodged a claim for DSP on 5 April 2022. On 7 June 2022, Centrelink rejected Ms Steffensen's claim for DSP, as she did not have an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Centrelink is the service provider for Services Australia.
3. On 3 November 2022 a Centrelink Authorised Review Officer (ARO) affirmed the decision. Ms Steffensen sought review of that decision by the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the decision on 14 February 2023.
4. The application was heard via telephone on 16 January 2024. Ms Steffensen was self-represented and Ms Kathryn Lieschke, solicitor at Services Australia, appeared for the Respondent.

1. The issue in contention is whether Ms Steffensen was qualified for a DSP from the date of her claim, 5 April 2022, to a date 13 weeks thereafter, being 5 July 2022 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
2. The Tribunal must consider whether Ms Steffensen had:

(a) a physical, intellectual or psychiatric impairment(s); > > (b) a fully diagnosed, treated and stabilised condition(s) which results in impairments attracting 20 points or more under the Impairment Tables; and > > (c) a continuing inability to work.

1. Ms Steffensen is a 43-year-old female currently in receipt of Jobseeker allowance who had previously worked as a truck driver on a full-time basis for over 15 years. Ms Steffensen is currently living on her own and suffering significant housing stress.
2. On 5 April 2022, Ms Steffensen made an application for DSP in which she recorded her ability to work was affected by fibromyalgia with the condition starting in approximately 2007. She recorded her past treatment included analgesics prescribed by her physician who had been managing her chronic pain for the past 10 years and physical therapy carried out by herself in the form of light walks and stretching, and that she could do nothing more because of her pain. She recorded future treatment was pain medication which would likely continue indefinitely.
3. On 16 May 2022, Centrelink referred Ms Steffensen for a face-to-face Job Capacity Assessment (JCA) which was conducted by a physiotherapist. The JCA recorded no impairments, noting:

Fibromyalgia > > This condition is: Verified by medical evidence; Fully Diagnosed. > > This condition is fully diagnosed, but not fully treated and stabilised for Services Australia purposes. Customer has not engaged in reasonable treatment. The diagnosis has been confirmed by a rheumatologist. Significant improvement is likely expected in the next two years with reasonable treatment from a rheumatologist, pain specialist and appropriate strengthening program.

4. On 2 November 2022, in response to Ms Steffensen's appeal against the refusal of her DSP another JCA was undertaken by a Registered Occupational Therapist. They again found no impairments as her fibromyalgia was not fully treated and stabilised:

As the diagnosis has been confirmed by the GP/specialist, the condition is assessed as fully diagnosed. The condition has not been deemed fully treated and stabilised as not all reasonable treatment options have been exhausted. A pain management program is deemed reasonable treatment for this condition as it includes a pain specialist, physio, OT and psychologist. The client has never commenced such a program. It was recommended in 2016 but the client was concerned about the aim of reducing pain medication so it did not commence. The client has not been linked with a physiotherapist to set up a graded exercise program. Tai Chi and walking around the block is not regarded as a reasonable graded exercise program. A pain psychologist is important given the psychological elements involved. The client was working a FT physical job of a truck driver 2 years ago and ceased work due to employment conflict indicating there is potential for 15hrs/week sedentary duties with more treatment than just strong pain medication.

5. On 7 June 2022, Centrelink rejected Ms Steffensen's claim for DSP, as she did not have an impairment rating of 20 points.
6. On 3 November 2022, a departmental ARO affirmed the earlier Centrelink finding on internal review, determining that Ms Steffensen did not meet the requirements for DSP as she did not have an impairment rating of 20 points. The reasons for the outcome state:

Your fibromyalgia is considered fully diagnosed, however not fully treated and stabilised, at the time of your claim and the 13 weeks thereafter. This diagnosis was confirmed in the report signed by Dr Liew, rheumatologist dated 14 January 2016. The undated support letter signed by Dr Madhanpall, general practitioner indicates you are unable to sit or stand for long periods. I acknowledge that you have consulted with a pain specialist on one occasion several years ago. However, you have only attended two sessions with a rheumatologist in the past 6 years. Further to this, you declined participating in any pain management program in 2016 as you were concerned about the aim of reducing your pain medication. In addition to this, there is no evidence of you ever commencing physiotherapy or any other graded exercise program. From this perspective, this condition cannot be considered fully treated and stabilised as you have not engaged in all reasonable treatments to optimise the management of your condition. As such, no impairment rating can be assigned at this time.

7. On 14 February 2023, the AAT1 affirmed the ARO decision to reject Ms Steffensen's DSP claim. The AAT1 awarded Ms Steffensen an impairment rating of nil impairment points, finding Ms Steffensen's fibromyalgia, whilst diagnosed, was not fully treated nor stabilised and her anxiety/depression was not fully diagnosed, treated and stabilised. The Member noted:

It was not in dispute that Ms Steffensen has this condition; it is referred to by the two rheumatologists. Dr Horton wrote that although Ms Steffensen's joints are more mobile than average, it was unlikely there was any genetic condition (such as Ehlers-Danlos syndrome) to explain this and no further tests or follow-up were required. It is clear from both Ms Steffensen's oral evidence and from Dr Madhanpall's reports that she remains severely symptomatic and functionally limited, despite her use of cannabis, anti-inflammatories, analgesics and some walking. > > Ms Steffensen never engaged in a pain management program after her visit for an assessment in 2015; no report from that consultation is available. Yet the tribunal is aware that the purpose of such programs is multi-faceted, including rationalisation of medication use, improving function and allowing the patient to continue participating in daily life without necessarily abolishing their pain. This requires the use of medical, psychology, occupational therapy and physical therapy practitioners, and sometimes psychiatrists as there are often psychological and emotional components to their situation. > > The tribunal found the FMS was diagnosed. However, given the apparent failure of the measures tried so far, the tribunal found that without sustained and diligent participation in a multidisciplinary pain management program the FMS could not be considered fully treated and stabilised. Therefore no impairment rating can be assigned. > > The tribunal accepted Ms Steffensen's oral evidence about this condition which is mentioned in her GPs' reports. Medication was discussed by her GP about five years ago but declined by Ms Steffensen, and no other form of treatment has been undertaken. She has never seen a psychologist or psychiatrist. > > The tribunal found the anxiety/depression was not fully diagnosed, treated and stabilised. > > Therefore, no impairment rating can be assigned.

8. On 15 March 2023, Ms Steffensen sought a review of the AAT1 decision by this division of the Tribunal, as she disagreed with the decision, stating in her application:

Centrelink (and even the first review judge) keep repeating that they do not believe that I have sought sufficient treatment for my condition, which I did seek under Centrelink's advisement (an establishment that carry no doctors in their employ) and in the course of investigating their suggestions for treatment, was partially incapacitated by a registered physiotherapist, in losing the use of my right arm for 18 months. > > I have been misquoted and had my responses purely fabricated by the previous member hearing this matter. My information provided was flatly refused, and then proceeded to ask questions trying to ascertain mental illness. The member also claims that I have never seen a psych, this is a fabrication. > > My anxiety or any supposed or inferred mental issues are not relevant to my claim for a single condition. I don't need a stronger case, I need a fairer one. > > I am *not* being fairly heard or treated, I *do* meet the disability criteria of 20 points under a single table.

1. Section 94(1) of the Act provides that a person is qualified for DSP 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;

1. Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is "permanent".
2. Paragraph 6(4) of the Impairment Tables states that a condition is "permanent" if:

(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and > > (b) the condition has been fully treated; and > > (c) the condition has been fully stabilised; and > > (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

3. The introduction to each relevant Impairment Table requires that 'Self-report of symptoms alone is insufficient' and 'There must be corroborating evidence of the person's impairment'.
4. Paragraph 6(5) of the Impairment Tables states:

In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered: > > (a) whether there is corroborating evidence of the condition; and > > (b) what treatment or rehabilitation has occurred in relation to the condition; and > > (c) whether treatment is continuing or is planned in the next 2 years.

5. Paragraph 6(6) of the Impairment Tables states:

For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

(b) The person has not undertaken reasonable treatment for the condition and:

(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

1. Paragraph 6(7) of the Impairment Tables states 'reasonable treatment' is treatment that:

(a) is available at a location reasonably accessible to the person; and > > (b) is at a reasonable cost; and

(c) can reliably be expected to result in a substantial improvement in functional capacity; and

(d) is regularly undertaken or performed; and

(e) has a high success rate; and

(f) carries a low risk to the person.

1. Paragraph 5(2) of the Impairment Tables makes clear that the Tables are function-based, rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.
2. Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person's impairment 'must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others do for the person'.
3. Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment resulting from the condition may not result in any functional impact.
4. Therefore, it is necessary to consider Ms Steffensen's medical conditions with reference to the applicable Impairment Tables.

1. Section 94(2) of the Act provides that 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 > > (a) in all cases - the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and > > (b) in all cases - either: > > (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or > > (ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

2. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) states that in order for a person to have satisfied the requirement of actively participating in a program of support (POS), they must have participated in the program of support for at least 18 months in the 36-month period before their application for DSP.
3. The POS Determination also lists a number of exemptions to the general requirement that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment. The POS Determination relevantly provides at section 7(4) and (5):

(4) This subsection is satisfied in relation to a person and a program of support if: > > (a) the program of support was terminated before the end of the relevant period; and > > (b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program. > > (5) This subsection is satisfied in relation to a person and a program of support if: > > (a) at the end of the relevant period, the person is participating in the program of support; and > > (b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.

1. The evidence before the Tribunal included documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), referred to as the "T documents". Ms Steffensen also lodged additional material.

Does Ms Steffensen have a physical, intellectual or psychiatric impairment?

1. Section 94(1)(a) of the Act provides that to qualify for the DSP a person must suffer from an impairment.
2. The Respondent accepts that Ms Steffensen is suffering from fibromyalgia. The Tribunal finds that Ms Steffensen was living with impairments during the qualifying period; and she therefore meets the requirements of section 94(1)(a) of the Act.
3. As noted above, section 94(1)(b) of the Act states that the second DSP qualification requirement is that the person's impairment rating is 20 points or more under the Impairment Tables.

Does Ms Steffensen have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?

1. Ms Steffensen contended she qualified for the DSP for the following reasons:
   • She had been advised she automatically qualified for the DSP as fibromyalgia is classified under the Impairment Tables as severe.
   • Numerous people had advised her that Centrelink was delaying DSP applications for no good reason.
   • Centrelink was not qualified to make this determination as it had been run as a private enterprise and not a public institution for the last 20 years.
   • Since 2015 she had been acknowledged by Centrelink, with the full rights and privileges of a disabled person, including all exemptions, except without the pay.
2. The Respondent contended that Ms Steffensen did not qualify for the DSP for the following reasons:
   • She did not have 20 points under the Impairment Tables as none of her conditions were fully diagnosed, fully treated, and fully stabilised;
   • She did not have 18 months of active participation in a program of support in the 3 years immediately prior to claim, or satisfy a program of support exemption; which she required as she did not have a rating of 20 points or more under a single Impairment Table (severe impairment); and
   • She did not have a continuing inability to work.

1. Ms Steffensen contended her fibromyalgia was a long-standing condition for which she had been seeking help for numerous years and had undertaken all reasonable treatments recommend to her by her treaters. Ms Steffensen submitted she is currently being managed by a general practitioner whom she has great faith in as he knows her well and manages her condition appropriately.
2. Ms Steffensen's evidence to the Tribunal was:
   • She was not capable of the minimum 15 hours work.
   • She did less than 15 hours work a week currently to keep herself out of a wheelchair.
   • Her rehabilitation was to undertake light exercises on the advice of her doctor who was invested in her health and well-being, and this was the very best she could do to stay out of a wheelchair.
   • For the last 3 years she had been imprisoned in her house, she had not been able to eat or move, because of her physical condition and because of her financial condition, she cannot afford to undertake rehabilitation.
   • Previous to this, truck driving was the only job she could do because it provided a combination of sitting, standing or walking. She cannot do any of those things for an extended period and cannot bend over or perform repetitive tasks of any kind.
   • There was no task she can perform without consequences, merely showering exhausted her. She utilised the 'spoon systems' for fibromyalgia to measure her output, where 20 spoons is the maximum amount of energy required - with showering taking 16 spoons, that being most of her energy for one day. Showers are once a week if she is lucky as more than that is intolerable and she cannot use the bath as she is unable to get out unaided.
   • Many tasks in her life result in pain.
   • She is currently caring for herself, and has the body of a 90 year old woman due to an overprescription of antibiotics when she was in her early 20's.
   • There were very few foods she can eat.
   • She needs to be by a toilet and shower 24 hours a day because of the side effects of her condition.
   • She had recently been evicted by her landlord who had kicked her door down and was now living with this additional anxiety, that the police and VCAT had failed to support her against the actions of her aggressive landlord and she could find no assistance to get access to any form of housing.
   • She has no family or friends and was being punished by the system for being poor.
   • She had undertaken physiotherapy sessions at Centrelink's directive as a means of forming a more rounded disability application. The physiotherapy suggested by Centrelink rendered her unable to use her right arm for 18 months.
   • She was at a loss as to how Centrelink can make medical decisions, or even directives to patients, without any medical doctors on their staff. She had not spoken to one doctor in over 10 years of Centrelink investigating her claim for the DSP.
   • She can walk 500 metres once a week as a maximum but any distances past 300 metres comes with significant consequences to her health and well-being.
   • That any extended exertion past her limits, results in a healing period because she has caused damage to herself. For example, if she walks 500 metres it would require a minimum of four days recovery before feeling mobile again. For 1000 metres the recovery time is more like two weeks. Simply that recovery versus over-exertion is exponential.
   • She rarely cooks, and dirty dishes can sit for weeks before she is able to clear the backlog. She only uses one dish for daily use so she does not need to do the dishes because she cannot do it every day. Dishes are once a week if lucky.
   • She is required by the terms of her lease agreement to maintain the garden that came with the rental property, or she will suffer penalties. She did not have the money to pay someone else to perform garden maintenance for her, so she is forced to do it herself, one soul destroying hour at a time. It was almost impossible to articulate the amount of pain she has to bear in increasing amounts, to maintain the garden. She takes the task bit by bit before having to stop after only one hour, gasping and crying, to weed and mow the lawns - it has been an agonising toll on her physical well-being.
   • Her very competent doctor of 10 years had only referred her to a reputable pain management clinic, as part of Centrelink's directives, to supplement her DSP application. Upon arriving at the 'clinic' the 'doctor' explained their goals was to reduce her pain levels through reducing her medication intake to zero, and group psychotherapy sessions. No other measures were discussed.
   • This to her was not a pain management clinic, but a drug rehabilitation clinic. She does not take powerful opiate painkillers that require detox, and her pain is not psychosomatic. She could not comprehend how the system demanded she cease taking what little painkillers she does - to her this was illogical and was in no way a plausible suggestion of therapy that would lead to improved function.
   • The pain management clinic she had been sent to at the behest of Centrelink would not have led her to any form of functional improvement, it would instead send her to a wheelchair even quicker. She took minimal painkillers, so she could undertake the necessary exercise to give her the limited ability she enjoyed.
   • Her GP has been actively involved in her treatment and has made the best possible progress out of any other doctor, by managing her condition, and slowing its decline to a creep. Her GP had provided corroborating evidence of her inabilities, and how and why they result in 20 points in a single table, due to a severe functional impairment.
   • She cannot walk long distances, sit for long periods, stand for long periods or lift anything from below waist height without consequence. She cannot do repetitive tasks, shower or go to the toilet herself reliably, or any chores, exercise or errand without consequence.
   • There was no more evidence that she could provide to demonstrate her condition was fully treated diagnosed and stabilised. It had taken her 20 years of this country's medical system to get a diagnosis for one condition, never mind the other twelve possibles. That Centrelink simply was looking for a legal statement, certain words in a certain order, a certain handshake, to cover their ass and not medical evidence.
   • No real doctors had interpreted the evidence she had provided to establish if she qualified for the DSP; that all she heard was the same tired song and no one was treating her claim, and indeed her, with any respect.
   • The process was very clearly stacked against her, and since she could not field any legal representation, her appeal will fail, and the corruption of the whole process would simply be swept under the carpet.
   • She was without friends, or family and had no other means of support. She cannot meet her medical costs, had been evicted due to rent arrears and could not find a house to rent in the entire state of Victoria for under $230 a week. There were no homelessness services, and they are overwhelmed. There were no legal advocacies for tenants, and they were also overwhelmed.
   • If the Tribunal was unable to find any logical and moral reason to approve her claim, then eviction to the streets for someone in her condition was a death sentence.
3. Ms Steffensen relied upon reports from Dr Niresh Madhanpall, her general practitioner for over 10 years who opined she qualified for the DSP as she met 20 points per the Impairment Tables.

(i) Dr Madhanpall's letter of 23 March 2022 opined:

I have prepared this letter in support of my patient's application for a DSP > > Diagnosis-Fibromyalgia (Dr Straka - Parhran medical centre). > > Melissa confirms that she cannot walk any further than 300 metres before pain sets in. Hence, she isn't capable to utilising public transport. Sitting for anywhere close to 3 hours is distressing. > > This severe limitation in functioning with high doses of analgesia needing to control her pain warrants me to support an impairment rating of 20 as per centrelink table ratings. > > > (ii) Dr Madhanpall's letter of 18 August 2022 opined: > > I wish to provide a report on my patient and how It impacts her ability to work and day to-day life. > > Diagnosis of Fibromyalgla by Dr David Liew, at the Melbourne Royal Hospital Rheumatology Clinic > > (1.) My patient has reported to be unable to walk long distances. 300 meters before she starts to feel pain, any further results in increasing amount of time to recover from. Average recovery time is reported to be 3-5 days after light duties/activities Any errands need to be within parking distance. Large shopping centres are out of bounds. > > She cannot use Public Transport. Many trips include kilometres of walking or significant time/money cost. Mentally and emotionally, public transport is also a no-go, inducing anxiety attacks and more pain. However, for the purposes of my disability claim, she hasn't yet sought psychological diagnosis, and therefore it will be disregarded in a claim. > > (2.) She is am (sic) unable to stand for long periods. 30 minutes at a time at the absolute most, or as a consequence; muscle pain/fatigue and lumbar pain increases. > > She is limited in the amount of cooking that she can do in the home. Due to the chronic fatigue, she also have to schedule showers on days that she have nothing else planned. > > (3.) She am (sic) unable to sit for long periods. 2 hours is the maximum before she gets up and move around for at least 10 minutes otherwise pain and tension increases. > > She has difficulty with bending over, any light gardening usually results in increased amounts of pain and shortness of breath after 1 hour, and requires at least one week to recover from. Given the extensive garden on her property I am required to maintain as part of the rental agreement, she finds herself quite incapacitated and unable to move very far, on any given day of the month. > > She is dealing with it as best as can be expected, through exercise where possible and various analgesics.

4. The Respondent accepted that Ms Steffensen's fibromyalgia was fully diagnosed in 2016, by Dr David Liew, Rheumatology Registrar in a letter dated 14 January 2016.
5. The Respondent contended that Ms Steffensen's fibromyalgia could not be considered fully treated and stabilised, as she has not had reasonable treatment or complied with her treating doctors' treatment recommendations.
6. The Respondent submitted there was insufficient evidence to determine that Ms Steffensen had undertaken reasonable treatments recommended by her treating practitioners, such as:

• A graded aerobic/exercise program, as recommended by Dr Liew on 14 January 2016.
  • Undertaking specialist reviews, recommended by Dr Madhanpall in numerous medical certificates from 2015 to 2023. Notably, there is only evidence to suggest Ms Steffensen saw a rheumatologist twice, in January 2016 and June 2022, and a genetic counsellor once in August 2022.
  • A pain management program. Ms Steffensen reported to the ARO and JCA, and gave evidence to the AAT1 that she was recommended a pain management program in 2016 however she did not participate in the program after attending the initial interview for the following reason:

"They told her the treatment (to include group therapy and exercises) was intended to reduce her reliance on medication. She did not participate in the program as she did not believe it would be of benefit to her."

7. The Respondent submitted treatments, such as a pain management program, have a high success rate, are low risk, and substantial improvement can reliably be expected.
8. The Respondent submitted Tribunal authorities have generally recognised that a multi-disciplinary pain management program is reasonable treatment for chronic pain conditions, and failure to engage in one means a condition cannot be regarded as 'permanent'.
9. The Respondent took the Tribunal to various decisions:

• In the matter of Smalldon and Secretary, Department of Social Services [2015] AATA 2 where the Member held that:

As all Ms Smalldon's impairments relate to pain, or the effects of that pain, I consider it inappropriate to regard any of her conditions as permanent until she has at least completed a course of pain management at a recognised pain clinic. It is usual for pain management clinics to address the very problems Ms. Smalldon complains of, and to help chronic pain suffers cope with the pain and the effects of chronic pain. Dr Vecchio is not a pain specialist, nor is he an occupational physician. It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is usual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored. I do not find anything in Dr Vecchio's brief letter to persuade me that Ms Smalldon's circumstances present a reason to depart from this established position. Until Ms. Smalldon has completed a pain management course, and a specialist form pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.

• In the matter of Lucas and Secretary, Department of Social Services [2018] AATA 2563 where the Member held that:

It would be inappropriate for the Tribunal to consider this condition to be permanent and/or fully diagnosed and stabilised until the Applicant has completed a course of pain management at a recognised pain clinic...The Applicant's failure to undertake and complete a recommended course of pain management leads to the inevitable and unarguable conclusion that this condition was not fully treated or stabilised at the relevant period. Accordingly, no impairment points can be allocated to it.

• In the matter of Smyrniadou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2433 where the Member agreed with the former decisions, and firmly stated:

It has been well-recognised by this Tribunal that a program of pain management conducted by pain management specialists is reasonable treatment for a chronic pain condition such as that suffered by the Applicant and a condition cannot be regarded as permanent - that is, fully treated and fully stabilised - unless such treatment is undertaken. See Newman and Secretary, Department of Family and Community Services [2002] AATA 917 at [31]- [32], Smalldon and Secretary, Department of Social Services [2015] AATA 2 at [16] and Lucas and Secretary, Department of Social Services [2018] AATA 2563 at [51]- [52].

1. The Respondent submitted while there was evidence that Ms Steffensen has taken prescribed medication, and utilised gentle exercise such as walking and participating in Tai Chi in recent years for her condition, this was not sufficient to constitute reasonable treatment on its own.
2. The Respondent submitted Ms Steffensen has had ample opportunity prior to the qualification period to undertake reasonable treatment for her fibromyalgia, for which she received a diagnosis from at least 2016. The Respondent submitted there was no evidence that Ms Steffensen had seen specialists, such as a pain specialist or physiotherapist, or undertaken reasonable treatment in the several years prior to the qualification period.
3. Further, the Respondent contended Ms Steffensen had not provided any evidence to suggest that significant improvement cannot be expected if the reasonable treatment is undertaken, or that there is a medical or other compelling reason for her not to undertake the reasonable treatment available.

Dr Megan Eddy, physiotherapist, in a report to Dr Madhanpall, dated 31 July 2015 opined: :

Her referral has been prompted by Melissa having difficulty participating in the work for the dole programme due to her back issues. Melissa describes long standing spinal pain present for over 15 years. She felt the pain is predominantly lower spine in the lumbosacral area, but will extend all the way up her thoracic spine and to her neck at various times. The low back pain is persistent and the thoracic pain is relatively persistent as well. > > On her pain chart she shades the whole of her spine as the predominant area. She will also get pain referring down through her left buttock and down the back of her left leg. She finds she is very limited in her physical activities. She cannot walk more than about 200 metres without it being painful so she needs to stop and rest. If she sits or bends over for prolonged periods of time or lifting heaving weights she will have great difficulty and will be sore for many days. She recently participated in a work for the dole programme that she described to me as sitting in a very small chair at a low bench for eight hours fitting pipe parts. Melissa has mainly been a truck driver for the last eight years but has not been able to find work since October last year. She tended to find that whilst she had pain she could manage truck driving as she was able to change position frequently. She found a little movement and getting in and out of the truck was actually helpful and most of her role tended to be relatively light lifting. > > Having had pain for so long she has naturally sought advice from many people. She has had chiropractic, physiotherapy and massage therapy extensively in the past and tends to have found the most benefit from chiropractic and it will provide immediate relief, though not long lasting. > > ... > > I discussed with Melissa that I felt her diagnosis was one of chronic mechanical spinal dysfunction. I discussed that this is very best approached with gentle range of movement exercises and whole body exercise. This would need to start off very gently and something like hydrotherapy would be ideal but Melissa feels this is not achievable with her social anxiety disorder. > > Tai chi would be another gentle whole body exercise to start with as she is very deconditioned, being only able to walk 15 minutes every second day. She can access this through the internet to do herself at home. > > It does seem reasonable that she is unable to do any prolonged heavy manual labour and I have written a certificate for one month stating that she is fit to do work but with consideration of no prolonged sitting, standing or repetitive bending duties. She can tolerate normal hours of work. > > I also spent a lengthy amount of time explaining the nature of chronic problems and particularly chronic pain and often the view to treatment needs to be one of management rather than cure. > > Melissa certainly does not seem to overuse analgesia and is mindful that analgesia in the long term is often not useful and she tends to use this in short bursts only. > > So thus unfortunately I have nothing further in particular to offer Melissa. I wish her luck in finding employment that suits her soon, particularly given her young age. I also urge her to consider doing some gentle whole body exercise given her young age to help the health of her spine long term.

Dr Liew, Rheumatology Registrar, in a report to Dr Madhanpall, dated 14 January 2016 opined that Ms Steffensen has fibromyalgia and emphasised that in general, graded aerobic exercise and activity regulation would improve her quality of life:

Melissa has fibromyalgia, which is likely related to her hypermobility. We will screen for secondary causes today. I had a long discussion with her about the aetiology and principles of therapy. We will contact her should there be any abnormalities with the tests. I have emphasised that the key features for the improvement of her quality of life in general are graded aerobic exercise and activity regulation. I also discussed about avoiding triggers and avoiding opioids. I have given her a medical journal review written by Daniel Clauw (rheumatologist), published in JAMA 2011. Finally, I have suggested core strengthening exercises to help minimise the effect from her hypermobility, which is contributing to her fibromyalgia (such as gentle yoga, Pilates or Tai Chi). > > Melissa has elected to follow up with you rather than the Outpatient Rheumatology Clinic and thus we will discharge her from her care. We would be happy to see her again should the need arise.

Dr Ari Horton, Clinical Genetics Fellow, in a report to Ms Steffensen dated 10 August 2022 summarises their discussion following her face-to-face appointment after being referred for clinical genetics assessment by her general practitioner. He advised the following in respect of recommended treatment:

Treatment, screening and management recommendations > > I have made no recommendations for changes to your current treatment. Functional support with physiotherapy and guidance from your care team will help to support you and manage your symptoms of back pain. You report that your echocardiogram was normal but a report was not available. You may wish to undergo 5 yearly echocardiograms in the community for reassurance. > > Recommendations for your family > > No specific screening is recommended. > > Further appointments > > I have not arranged any further appointments for you in the genetics clinic, however we would be happy to see you or your family if new information about your medical history or your family history emerges, including review diagnoses, or if you have further questions that you would like to discuss.

Dr Sian Campbell, Consultant Rheumatologist, in a review report of 15 June 2022 opined:

• - was diagnosed with fibromyalgia in 2016, thought to be in the context of hypermobility
  • - since this time has continued to suffer from chronic pain
  • - has previously seen pain specialist - but didn't find this helpful - and found they were escalating doses of her opiates which is not usual treatment for fibromyalgia
  • - she has difficulty with exercise due to her chronic pain but is doing tai chi and walking as much as she can
  • - she describes difficult standing and walking long distances and difficulty sitting for long period or heavy lifting
  • - she describes 6-10/10 pain every day
  • - she's trialed (sic) a host medications previously which have not helped her pain and finds CBD oil to be helpful
  • - I am unsure as to if she has trialed (sic) endep or duloxetine, and these could be considered in the future but are unlikely to absolve her of all her pain

She tells me today she is trying to work on exercise to help things and keep her mobile. This is probably the most important part of her management. I am pleased to hear today that she is doing this. > > I have attempted to contact her GP 6 times in the past 2 weeks, for further collateral information (including prior therapies) without success, but Melissa is very happy with the care he provides so I am discharging her back into his care.

The Tribunal was not convinced by the Respondent's contention that Ms Steffensen's condition of fibromyalgia could not be considered permanent as she had not undertaken a pain management program. The Tribunal is not persuaded that a blanket reliance on a multi-disciplinary pain management program is reasonable treatment for all DSP applicants who suffer from chronic pain conditions. 6. At the outset the Tribunal, in accordance with section 33(1)(c) of the AAT Act, may inform itself of Ms Steffensen's condition of fibromyalgia and the benefits of pain management for such a condition as it thought appropriate. The Tribunal was not making a medical assessment of Ms Steffensen but an assessment of what could be considered reasonable treatment. 7. To begin, the Tribunal considered that numerous medical journals described fibromyalgia as a common condition that causes widespread pain and tenderness in the body and that a person with fibromyalgia will have their own set of symptoms and there is no cure for fibromyalgia, but symptoms can be managed. The Tribunal, based on the evidence, considers the chronicity of Ms Steffensen's fibromyalgia and her rigidity of mindset about treatment options did not make her an ideal candidate for a pain management program. 8. The Tribunal considered two of the articles referred to by the Respondent to support their contention Ms Steffensen's condition of fibromyalgia was not fully treated or stabilised as she had not undergone a pain management program. The Tribunal considered the articles reinforced the idea Ms Steffensen would not benefit from such a program as she had been out of the workforce for over two years, had been engaged with legal action against her former employer and would likely not be considered appropriate for this kind of psychosocial treatment:

(a) Kamper S J et al, 'Multidisciplinary biopsychosocial rehabilitation for chronic low back pain: Cochrane systematic review and meta-analysis' (2015) 350 The British Medical Journal: > > Conclusions: Multidisciplinary biopsychosocial rehabilitation interventions were more effective than usual care (moderate quality evidence) and physical treatments (low quality evidence) in decreasing pain and disability in people with chronic low back pain. For work outcomes, multidisciplinary rehabilitation seems to be more effective than physical treatment but not more effective than usual care. > > (b) Lambeek C L et al, 'Randomised controlled trial of integrated care to reduce disability from chronic low back pain in working and private life' (2010) 340 The British Medical Journal: > > The population in this randomised controlled trial comprised adults aged 18-65 with low back pain who had visited an outpatient clinic (mainly orthopaedics and neurology, but also rheumatology and neurosurgery) in one of the participating hospitals, had had low back pain for more than 12 weeks, were in paid work (paid employment or self employed) for at least eight hours a week, and were absent or partially absent from work. We excluded patients who had been absent from work for more than two years; had worked temporarily for an employment agency without detachment; had specific low back pain due to infection, tumour, osteoporosis, rheumatoid arthritis, fracture, or inflammatory process; had undergone lumbar spine surgery in the past six weeks or had to undergo surgery or invasive examinations within three months; had a serious psychiatric or cardiovascular illness; were pregnant; or were engaged in a lawsuit against their employer. > > ... > > Conclusions > > Chronic low back pain is not just a clinical problem but also a psychosocial and work related problem. Integrated graded activity with a workplace intervention reduced disability in both working and private life because of chronic low back pain by a median of 120 days during a follow-up period of 12 months. This applies to a selected group of patients with chronic low back pain, all of whom were judged appropriate for this kind of psychosocial treatment. The lack of effectiveness on pain confirms the validity of the work disability paradigm. This promising systems approach, directed to both the patient and the work environment, could have a great impact on the individual burden of low back pain.

9. The Tribunal considered the guidelines for acceptance of patients into public health pain management clinics, which notes patients must be willing to explore living with pain and engage in consideration of new ideas and theories:

• Austin Health Pain Service Referral Guidelines:

Criteria for referral - must indicate how meets criteria in referral:

• Persistent pain (> 3 months duration) with symptoms that impact on daily activities including impact on work, study, school or carer role,
• Multiple presentations for exacerbations of pain despite adequate treatment in previous 12 months (exercise and analgesia)
• At risk of functional or psychological deterioration, or medication dependence
• Willing to explore living well with pain and is willing to learn to self-manage ongoing pain.

• Monash Health Pain Management Clinic Readiness for Change in People with Chronic Pain:

The prevention and management of chronic pain is an essential priority in healthcare. Evidence strongly demonstrates that a comprehensive, patient centred, and multidisciplinary approach, that focuses on patient values, circumstances and beliefs, is important to ensure successful management, restoration of function, and improvements in chronic pain outcomes. Overall, it provides the skills and education necessary for patients to independently self-manage their persistent pain by engaging in health promotion activities, increasing their adherence to treatments and monitoring, and improving their self-management of symptoms, function, emotions, and interpersonal relationships. > > Self-efficacy is the patient's belief in their capacity to successfully learn and implement a new behaviour. When a patient is confident they will achieve their goals, they are more likely to be motivated and empowered to change and actively manage their chronic pain2. Therefore, interventions for patients with chronic pain should be timed to coincide with the stage of cognitive behavioural change. GPs could use this model to educate patients, identity and monitor stages of change, and to assist patients to progress through the change cycle. People do not change behaviors easily, quickly or decisively but instead change continuously through a cyclical process. > > Pre-contemplation Phase - has their own theories / not open to new theories or ideas.

1. The expectation that Ms Steffensen undertake a pain management program did not appear to be supported by her current treating general practitioner or numerous specialists who had reviewed her. The Tribunal relied upon the following:
   • Dr Liew opined in his report dated 14 January 2016:

I also discussed about avoiding triggers and avoiding opioids.

• Dr Campbell opined in her notes on 15 June 2022:

She is trying to work on exercise to help things and keep her mobile. This is probably the most important part of her management.

• Dr Eddy opined in her report dated 31 July 2015:

So thus unfortunately I have nothing further in particular to offer Melissa.

1. The Tribunal agrees with the Respondent's contention that a pain management program would be a beneficial treatment option for Ms Steffensen as multi-disciplinary pain management programs have been demonstrated to assist individuals deal with the day-to-day reality of living with chronic pain. However, the Tribunal was not persuaded with the notion that all individuals achieve substantial improvement from such programs. The Tribunal considered the likelihood of any functional improvement from a pain management program for Ms Steffensen was dubious given the chronicity of her fibromyalgia, the fact she has been suffering from chronic pain for over 10 years and her entrenched attitude towards treatment options.
2. The Tribunal, on the evidence before it, was satisfied that Ms Steffensen's fibromyalgia was fully diagnosed, treated and stabilised during the qualifying period. The Tribunal is satisfied that Ms Steffensen had undergone all reasonable treatment during the qualifying period to address her fibromyalgia, which was affecting her physical exertion as the condition was impacting her extreme fatigue and pain. The Tribunal did not consider that Ms Steffensen undertaking a pain management program would reliably be expected to result in a substantial improvement in her functional capacity.
3. As the Tribunal has found Ms Steffensen's condition of fibromyalgia was fully diagnosed, treated and stabilised, it must next consider their impairment ratings.

What impairment rating, if any, can be assigned to conditions?

1. At the hearing the Tribunal explored with Ms Steffensen the functional impact of her fibromyalgia under Table 1 - Functions requiring Physical Exertion and Stamina of the Impairment Tables, looking at what constituted 20 points or a severe functional impact:

There is a severe functional impact on activities requiring physical exertion or stamina. > > (1) The person: > > (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: > > (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or > > (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or > > (iii) use public transport without assistance; or > > (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and > > (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

2. Ms Steffensen's evidence to the Tribunal was:
   • She was heavily autistic, not a people person, deeply honest and forthcoming and people have taken advantage of her because of that, and she had no support.
   • She would rather die than have assistance from people; she lives alone; is not interested in being with another human nor having someone care for her. It was beneath her dignity, and she was afraid this was a great detriment to herself, as she was struggling to be all on her own without any assistance.
   • She had been fighting for 3 years to be granted the DSP, and wondered how she was not disabled enough to receive DSP.
   • She was unable to walk around a supermarket without assistance. She could only manage to go to the local shopping centre where she could park close to the store, walk approximately 10 metres from her car, a maximum of 500 metres around the shop with the aid of the shopping trolley and back to her car. That was the extent of her mobility.
   • She showers once a week because does not have the energy to do it more often and uses a seat in the shower.
   • She paces herself to do the housework, sweeping bits at a time, dishes once a week, cooks rarely, is obligated to maintain the garden but does it slowly over a long period of time, which takes an enormous toll on her health and often doing any of these things results in her being able to do nothing else for the rest of the week.
   • She can't work longer than 3 hours or she suffers consequences, her work at present is in bursts of 40 minutes and then she needs to stand up for 15 minutes, and the maximum she can commit to is 60 minutes.
   • She was being discriminated against as she could not afford to get help with personal care, shopping, housework or gardening and she had no choice but to do these things herself.
   • At the time of her DSP application, she and a friend had still been sharing the house and her friend had provided her with assistance.
3. The Respondent submitted if the Tribunal finds that Ms Steffensen's fibromyalgia was fully diagnosed, treated and fully stabilised (which was not conceded), they contended that a maximum of 10 points under Table 1 - Functions requiring Physical Exertion or Stamina of the Impairment Tables can be assigned.
4. The Respondent submitted it was open for the Tribunal to find that Ms Steffensen satisfies a moderate functional impairment based on Dr Madhanpall's letter dated 18 August 2022 as Ms Steffensen is unable to walk long distances, can only run errands within parking distance and has difficulty performing day to day household activities such as cooking and gardening.
5. The Respondent contended Ms Steffensen does not satisfy the descriptors at the 20-point level of Table 1, as she does not require assistance from another person to walk around a shopping centre, walk from the carpark into the shopping centre, or use public transport, and she is able to perform light day to day household activities.
6. The Respondent submitted that Dr Madhanpall's description of Ms Steffensen's functional impairment does not support a 20 impairment point rating under Table 1 as he does not suggest she needs assistance from another person to walk around a shopping centre or supermarket, from the carpark to the shopping centre or supermarket or to use public transport, as required for 20 impairment points under Table 1.
7. The Respondent contended 'assistance' is defined in relevant case law as assistance from another person.
8. It is not the Tribunal's task to make a clinical assessment of a person's illness or disability, as medical practitioners are required to do. The Tribunal's task in terms of determining an applicant's eligibility for DSP is to decide whether particular descriptors are satisfied as stipulated in the Impairment Tables. The grant of a DSP is not on the basis that a person has a particular diagnosed condition, but on an assessment of functional limitations a diagnosed condition has on an individual which results in them having an inability to work. Therefore, the purpose of the Impairment Tables, which are a legislative instrument to which the Tribunal must have regard, is to assess that inability to work, and the way that is done is by setting out functional abilities. It may be accepted that this is not a perfect measure of a person's functional impairment, but it is the one that the Tribunal is obliged to follow.
9. The Tribunal could not conclude on any of the evidence presented that Ms Steffensen's fibromyalgia condition was causing her severe functional impact. To reach the threshold of severe, an applicant must demonstrate they require assistance from another person to perform tasks of daily living. Ms Steffensen's evidence was she did not seek assistance from others.
10. The Tribunal accepted Ms Steffensen's evidence she had received assistance from her former flatmate at the qualification period however the Tribunal had no corroborating evidence to support this assertion. Nor was there evidence of the degree of assistance provided by the flatmate as Ms Steffensen also asserted both she and her flatmate were severely disabled and assisted each other. The Tribunal was not satisfied that this evidence was sufficient to determine Ms Steffensen's fibromyalgia was having a severe impact on her functionality.
11. The Tribunal fully appreciated Ms Steffensen's contention that she was being discriminated against because she could not afford to get assistance to undertake tasks of daily living. Ms Steffensen's submission was that fundamentally she had to do these tasks in pain as she has no other avenue in which to survive and afterwards was wiped out for days as a consequence. Whilst the Tribunal was very sympathetic to Ms Steffensen's argument, the Impairment Tables make no reference to reasonableness of services, that being they are readily available at a reasonable cost. A search of the relevant case law by the Tribunal found no determination which considered that 'without assistance' could be determined on the basis of an individual's necessity to perform tasks because they had no family, no friends or capacity to pay for assistance with shopping and light house cleaning.
12. The Tribunal also considered the evidence did not support Ms Steffensen's contention that her fibromyalgia resulted in severe functional impairment as by her own admission she continues to do paid work.
13. The Tribunal finds, given the chronicity of Ms Steffensen's fibromyalgia that this condition was fully treated and stabilised at the qualification period as she had undertaken chiropractic therapy for many years, performed gentle exercise and takes analgesics for pain.
14. The Tribunal found Ms Steffensen's fibromyalgia was having a moderate impact on her functional impairment during the qualification period as she had difficulty walking, standing and sitting for long periods and had difficulty performing light household tasks. The Tribunal relied upon Ms Steffensen's consistent evidence that she is in constant pain and the corroborating evidence of Dr Madhanpall on the functional impact of this long-term condition.
15. The Tribunal therefore awards Ms Steffensen 10 points under Table 1 - Functions requiring Physical Exertion and Stamina in respect of this condition.

1. Ms Steffensen submitted in her written response to the AAT1 decision that 20 years ago she was seeing a psychologist for unrelated matters and that ever since then she had seen many psychologists and/or psychiatrists, and none of them had the opinion that she needed assistance.
2. Ms Steffensen submitted she did not need assistance and resented the implication of the Member's determination at the AAT1 hearing describing it as an attempt to derail her appeal.
3. The Respondent contended Ms Steffensen's mental health condition cannot be considered fully diagnosed as there is no evidence to suggest a diagnosis from a clinical psychologist or psychiatrist has been made. The Respondent submitted this was corroborated by Dr Madhanpall's letter dated 23 March 2022 in which he stated the following in relation to Ms Steffensen's mental health condition:

She hasn't yet sought psychological diagnosis and therefore it will be disregarded in a claim.

4. The Respondent submitted as Ms Steffensen's mental health condition is not fully diagnosed during the qualification period, it cannot be considered fully diagnosed, treated and stabilised. Accordingly, the Respondent contended no impairment points are applicable for this condition.

1. The Tribunal noted Dr Madhanpall's medical certificate of 21 February 2021 diagnosed Ms Steffensen as suffering from anxiety/depression with symptoms of demotivation, social isolation, and agitation with meeting socially.
2. Having considered all the evidence before it, the Tribunal is not satisfied that Ms Steffensen's mental health condition described as anxiety and depression was fully diagnosed, treated and stabilised at the date of qualification, noting there was no evidence that this condition had been diagnosed by an appropriately qualified medical practitioner during the qualification period. The Tribunal did note Dr Madhanpall made numerous references to Ms Steffensen's anxiety having an impact on her ability to undertake activities which required her to interact with other people.
3. The Tribunal also notes Ms Steffensen did not press this condition to be considered in her claim. Ms Steffensen's evidence seemed to infer that she considered a finding she suffered from a mental health condition would derail her application. The Tribunal did not concur with this view.
4. As the Tribunal has found Ms Steffensen's condition of anxiety/depression was not fully diagnosed, treated and stabilised, it could not assign any impairment ratings.

1. The Tribunal finds that Ms Steffensen has an overall impairment rating of 10 impairment points based on 10 points under Table 1 - Functions requiring Physical Exertion and Stamina and nil points for mental health function. Therefore, Ms Steffensen does not satisfy section 94(1)(b) of the Act.

Does Ms Steffensen have a continuing inability to work?

1. To qualify for the DSP, Ms Steffensen must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables; she must also demonstrate that she has a continuing inability to work. Ms Steffensen would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to her claim for DSP, and her impairment is of itself sufficient to prevent her from improving her capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person's impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
2. The Tribunal must strictly apply the POS requirement, because it does not have the power to dispense with that requirement under the operation of section 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
3. The POS Determination requires that an applicant for DSP must actively participate in a POS for 18 months within the three years prior to the date of claim. As the Tribunal has found that Ms Steffensen does not have a severe impairment that is assigned 20 points or more under a single Impairment Table, she is required to have participated in a POS.
4. The Respondent contended that Ms Steffensen did not satisfy section 94(2)(aa) of the Act during the qualification period, as her Centrelink records indicated that she had not participated in a program of support, which falls short of the required 18 months in accordance with the requirements of paragraph 7(2) of the POS Determination.
5. The Tribunal notes the Guide to Social Security Law at instruction 3.6.3.01 outlines the equal importance of an impairment rating and continuing inability to work and provides:

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance. > > Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance. > > Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied. > > Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.

6. Ms Steffensen contended she had no capacity to work and currently only works less than 15 hours per week in agonising pain so she can afford to live.
7. The Respondent contended that Ms Steffensen does not have a continuing inability to work as required by section 94(1)(c) of the Act. The Respondent contended that Ms Steffensen was able to work for at least 15 hours a week or undertake a training activity within 2 years of the qualification period, for the purposes of sections 94(2)(a) and 94(2)(b) of the Act, and as such does not have a continuing inability to work.
8. The Respondent relied on the following:

(a) The JCA report on 2 November 2022, recommended Ms Steffensen had a capacity to work 15 to 22 hours per week within 2 years in light less skilled work, such as seated factory work. > > (b) Ms Steffensen's DSP claim form, lodged on 5 April 2022, stated she owns a sole trader business and works 15 hours per week on the business and this is further substantiated by Ms Steffensen's 2021-2022 tax return and profit and loss statement. > > (c) Ms Steffensen also gave evidence to the AAT1 that she spends most of her day using her computer "for email, browsing the internet, banking, paying bills and interacting with Centrelink. She reads quite widely including subjects such as theoretical physics (in which she is self-taught) but watches little TV". > > (d) Further, Ms Steffensen's work and training capacity appears to be affected only by her fibromyalgia, which the Respondent contends is not fully diagnosed, treated and stabilised and therefore must be disregarded in assessing the Applicant's continuing inability to work.

9. The Respondent submitted that if Ms Steffensen is able to operate her own business and work 15 hours a week towards it, it cannot be said that she has a continuing inability to work.
10. The Respondent submitted Ms Steffensen's ability to utilise the computer and read widely indicates she is capable of doing light sedentary or clerical work for at least 15 hours a week and weighs against a 'continuing inability to work' finding.
11. The Tribunal noted the JCA report of 2 November 2022 identified the following barriers and interventions required to return Ms Steffensen to the work force:

Barriers > > Barriers to be addressed: > > Barrier: Chronic pain (H12) > > Barrier: Episodic fluctuations (H04) > > Barrier: Limited physical abilities (H01) > > Barrier: Psychological/psychiatric condition (H02) > > Barrier: Anger (U09) > > Barrier: Financial (U07) > > Barrier: Social interaction (U08) > > Work Capacity > > Baseline Work Capacity: 8-14 Hours per week > > (Excludes any temporary impacts noted above) > > Suitable Work: Light less skilled (W03) > > Examples: Seated factory work > > Capacity for work within 2 years with Intervention Work Capacity: 15-22 Hours per week > > Suitable Work: Light less skilled (W03) > > Examples: Seated factory work > > Temporary Work Capacity: 0-7 Hours per week > > End Date: 15/03/2023 > > The customer's FDTS work capacities are 30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions. > > Rationale: > > A temporary reduction in work capacity to 0-7 hours per week until 15/3/23 as per previous JCA is indicated whilst the client pursues health and medical interventions to address barriers. > > Work capacity is reduced to 8-14hrs/week due to the functional impact of client's permanent medical conditions as described in this report. It is anticipated that with disability specific intervention (DES-ESS), including specialised job search, employment support and vocational assessment and counselling work capacity will increase from 8-14 to 15- 22 hours per week. > > Interventions > > Interventions that were identified for this client > > Intervention: Vocational rehabilitation (V51) > > Intervention: Workplace assessment (V55) > > Intervention: Workplace modifications (V62) > > Intervention: Disability management education/counselling (H59) > > Intervention: Functional capacity evaluation/assessment (H55) > > Intervention: Psychological/cognitive assessment/intervention (P55) > > Intervention: Pain management program (M55) > > Intervention: Anger management/conflict resolution (U58) > > Intervention: Behaviour management (U60) > > Intervention: Financial counselling/assistance (U54) > > Intervention: Self-help groups (U63) > > Intervention: Social Skills Development (U62) > > Intervention: Stress management (U59)

12. The Tribunal finds that Ms Steffensen had not completed a program of support as there was no evidence confirming that she had participated in such a program for the requisite 18 months within the three years prior to her claim. Nor was there any evidence which confirmed that Ms Steffensen was unable, solely because of her impairment, to improve her capacity to prepare for, find or maintain work through continued participation in such a program. Ms Steffensen therefore could not be found to have a continuing inability to work to satisfy section 94(1)(c) of the Act. However, based on the evidence outlined above, the Tribunal accepts that Ms Steffensen would struggle to find or maintain employment beyond 15 hours per week. Regardless of the Tribunal's observation, this does not exempt her from participation in a POS.

1. Having carefully considered all the evidence, the Tribunal finds that at the time of her DSP application of 5 April 2022, Ms Steffensen did not have the required 20 impairment points to satisfy section 94(1)(b) of the Act nor had she demonstrated a continuing inability to work. Without having a severe impairment, Ms Steffensen cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed.

1. The Tribunal affirms the decision under review.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke, AO Member

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