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Post by tasjo on Jan 16, 2017 19:10:42 GMT 7
The good and not so good news following todays AAT Level1 Appeal The good news was that the member supported impairments under 4 dofferent tables and assessed the combined impact where it was appropriate to do so (Table 1, 2 and 3). He also overturned the JCA and ARO decision that my mental health condition was not FDTS. His decision and the exact points being awarded will be semt through in the next 2 weeks but indications are I will jave at least 30.
Not so good was that he did not find he could award 20 points on any one table He indicated he would check with CLink if my voluntary participation with DES can exempt me from POS but it didnt appear I would be.
While he does that I will follow up with Welfare Rights how to request POS exemption, as I have participated in 2 programs and exited both due to my health and its deterioration.
He couldnt consider the Parkinsons becsuse it hasnt been fully diagnosed, but indicated that if I get a diagnosis I would be FDTS for that too.
If anyone has any suggestions on how to approach the POS exemption I would very much loke to hear them.
Overall it was a pretty positive experience so I'll wait for the letter and fo from there.
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Post by krystal on Jan 17, 2017 1:18:13 GMT 7
The "active participation in a POS" is covered in the Social Security (Active Participation for Disability Support Pension) Determination 2014 www.legislation.gov.au/Details/F2015L00001The POS Rules are confusing and the Social Security Act 1991 is contradictory to the Active Participation Determination to who can actually be a DES provider. The basic rule is: The "active participation in a POS" criteria is you have had to be participating in a POS for 18 months in the 3 years before your DSP claim. If any exemptions, suspensions or reliefs were granted (medical or otherwise), this time is not counted as being part of your 18 months. ExceptionsThe Exceptions to the "active participation in a POS" rule are fairly clear. The exemptions are in Section 7 of the Active Participation Determination: (3) If the duration of the program of support was less than 18 months but you still completed the entire program (in the 3 years before your claim) you can have an exemption. (4) If the DES provider exited you out of the Program early (before the 18 months was up) because the Program wasn't going to improve you capacity to prepare for, find or maintain work through continued participation in the program, you can have an exemption. (5) If you ARE doing a Program and it won't help you prepare for, find or maintain work through continued participation in the program, you can have an exemption. For 4 and 5, you have to have been exited early solely because of your impairment. And this is the tricky bit and it's all in the wording- You have to have exited SOLELY because of your impairment And it's all in the wording. They don't care if you are too unhealthy to do a POS, only whether or not a POS will help you into the workforce. You said in your post "exited both due to my health and its deterioration". The Tribunal needs to hear "exited both because due to my impairment solely, continuation in the program will not help me prepare for, find or maintain work" Being unhealthy and deteriorating will NOT get you an exemption from the POS. If, because of your impairment, the POS is not going to help you find, gain and maintain employments, will get you an exemption from the POS. They want to know that no matter how much money they throw at Programs or interventions for you, your impairment is not going to let you prepare, find, gain or maintain employment. In the determination (s9) there is also a list of things that are considered mandatory for the Provider to have included in the Program. If you can get you provider to fill out this form, with the list in s9 in mind, it will go a long way to NOT having to explain the Program to a Tribunal. www.humanservices.gov.au/customer/forms/sa437
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Post by tasjo on Jan 17, 2017 10:42:39 GMT 7
Thanks Krystal, I'm getting prepared to put a fight up for exemption but will wait until I see the AAT decision in writing as the Tribunal Member did indicate he would look at how long I had 'participated' in a POS with Wise. The best I can do at the moment is be prepared for review and appeal.
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Post by nomadic on Jan 17, 2017 18:58:40 GMT 7
For everyone. All I can say is appeal and keep appealing if you believe you are correct. Do not let them bluff you into believing otherwise. Some of things we have read recently about directions given to Satan link staff only confirm what has already happened to millions of us. Simply disgusting.
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Post by krystal on Jan 18, 2017 11:07:48 GMT 7
As Nomadic says appeal and keep appealing. And remember the Tribunal Members at the AAT generally ARE NOT lawyers and ARE NOT legally trained. In a great majority of cases the only lawyer/legally trained person at a AAT Hearing is the Centrelink lawyer. (all for the sake of being "informal", I guess) Here's the list: www.aat.gov.au/about-the-aat/corporate-information/annual-reports/2015-16-annual-report/annual-report-2015-16/appendix-1-members-of-the-aatAfter the first 20 people, everyone else is listed under "Non-judicial members" and the people that deal with DSP are the people with "So" in the last column (for AAT First Review) and "G" (for AAT Second Review). Some of them are medical doctors, there's a couple of ex-military and a couple of them may have legal training but the majority don't.
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Post by tasjo on Jan 18, 2017 15:48:23 GMT 7
As Nomadic says appeal and keep appealing. And remember the Tribunal Members at the AAT generally ARE NOT lawyers and ARE NOT legally trained. In a great majority of cases the only lawyer/legally trained person at a AAT Hearing is the Centrelink lawyer. (all for the sake of being "informal", I guess) Here's the list: www.aat.gov.au/about-the-aat/corporate-information/annual-reports/2015-16-annual-report/annual-report-2015-16/appendix-1-members-of-the-aatAfter the first 20 people, everyone else is listed under "Non-judicial members" and the people that deal with DSP are the people with "So" in the last column (for AAT First Review) and "G" (for AAT Second Review). Some of them are medical doctors, there's a couple of ex-military and a couple of them may have legal training but the majority don't. Does the AAT response show which member heard the appeal do you know? I dont think I wrote his name down
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Post by krystal on Jan 18, 2017 23:35:34 GMT 7
Yes Tasjo, the AAT decision is sent to you and the members name should be on the first page.
Crossing my fingers here that they set aside Centrelinks decision.
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Post by tasjo on Jan 19, 2017 6:35:35 GMT 7
Yes Tasjo, the AAT decision is sent to you and the members name should be on the first page. Crossing my fingers here that they set aside Centrelinks decision. The indication I had was that he would nost likely award 30 or 35 points but he wasnt sure he could award 20 on 1 table. Still, it's a more realistic assessment than the 15 from the JCA and I can, and will, appeal the POS requirement if I need to.
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Post by tasjo on Jan 21, 2017 15:11:54 GMT 7
Trying to think ahead but may be overthinking...
The Tribunal member indicated that to be granted 20 points on Table 1 would mean I would need to meet 'pretty much all' of the criteria, which isnt what Table 1 says. 'If' he does only award 10 (which means I dont have 20 from any 1 table and hence will need the POS/POS Exemption) I assume the options are: Appeal to lvl 2 (not overly keen on this) Apply for POS exemption.
Any thoughts on what would be less 'stressful'?
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Post by Denis-NFA on Jan 21, 2017 21:37:06 GMT 7
Trying to think ahead but may be overthinking... The Tribunal member indicated that to be granted 20 points on Table 1 would mean I would need to meet 'pretty much all' of the criteria, which isnt what Table 1 says. 'If' he does only award 10 (which means I dont have 20 from any 1 table and hence will need the POS/POS Exemption) I assume the options are: Appeal to lvl 2 (not overly keen on this) Apply for POS exemption. Any thoughts on what would be less 'stressful'? tasjoSorry. It is all stressful. But hang in there. Keep asking questions and listening to answers and verify for yourself. And if you are not sure of something then just say that and ask the question again. It's just people supporting each other. I like Tas.
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Post by murphy on Jan 22, 2017 2:22:37 GMT 7
Trying to think ahead but may be overthinking... The Tribunal member indicated that to be granted 20 points on Table 1 would mean I would need to meet 'pretty much all' of the criteria, which isnt what Table 1 says. 'If' he does only award 10 (which means I dont have 20 from any 1 table and hence will need the POS/POS Exemption) I assume the options are: Appeal to lvl 2 (not overly keen on this) Apply for POS exemption. Any thoughts on what would be less 'stressful'? Based on what you've said, the member sounds like he is investigating and researching. That's more than most do -- it gives me hope that he'll re-examine the wording of Table 1. As denis said, it's all stressful.
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Post by nomadic on Jan 22, 2017 18:59:59 GMT 7
Keep remembering that every win we have probably stresses them out even more. So what goes around etc etc. They hate it when they think we are spending THEIR money. I now love to tell them tales of me sitting on a beach with prawns and a beer. Even if not true they stress out. If they can lie then so can I.
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Post by krystal on Jan 22, 2017 19:41:52 GMT 7
The exception is probably less stressful. Get your provider to fill out the proper "program of support" form to say they exited you from the Program because it didn't matter how much help they give you it isn't going to help you get a job because of your impairment. www.humanservices.gov.au/customer/forms/sa437The whole AAT 2nd review procedure is stressful to say the least. Before you get to the 2nd review, you have to do a "Mediation/Alternate Dispute Resolution" where a Centrelink lawyer turns up with no power, authority or inclination to resolve anything (It's a fishing trip for what you're going to say at the Hearing). Then you get 1 phone appointment with Legal Aid. Then you get the Centrelink's lawyers Statement of Facts, Contention and Issues you have to have answers for. Then you get to go to the hearing. And, in my experience, through the whole process the Centrelink lawyer will ask for extension after extension after extension.
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Post by tasjo on Jan 23, 2017 18:12:48 GMT 7
Thanks Krystal... I will try and enlist assistance from Welfare Rights when I see them to get the POS exemption filled out by the provider.
I'm also going to try and find out what my capacity is likely to be with 30 or 35 points.
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Post by krystal on Jan 24, 2017 13:06:59 GMT 7
I'm also going to try and find out what my capacity is likely to be with 30 or 35 points. I'm going to assume you mean "work capacity". If that is what you mean, your capacity (Base Capacity and "Within in 2 years with intervention") is listed on your JCA. From my AAT 2nd review I had 40 points and Centrelink was still saying I could work 16-22 hours a week (The AAT didn't hear or decide on the "capacity" issue).
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