Abi-Elias and Secretary to the Department of Family and Community Services

[2002] AATA 1296

DECISION AND REASONS FOR DECISION [2002] AATA 1296

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/940
GENERAL ADMINISTRATIVE DIVISION
  Re:         ASHTAROOT ABI-ELIAS
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             13 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member
SOCIAL SECURITY - disability support pension - right arm impairment - vocational training - continuing inability to work
Social Security Act 1991 s94(1), (2), (3), (5), schedule 1B

REASONS FOR DECISION

13 December 2002  G.D. Friedman, Member

1. This is an application by Ashtaroot Abi-Elias (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 1 August 2002.  The SSAT affirmed a decision of Centrelink dated 5 June 2002.  In the Centrelink decision an authorised review officer affirmed a decision to refuse the applicant's claim for disability support pension because she did not have a continuing inability to work.

2. At the hearing of this matter on 9 December 2002 the applicant represented herself and Mr R. Huttner, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17).   
   BACKGROUND

4. On 2 January 2002 the applicant applied for Disability Support Pension (DSP) based on a significant impairment to her right arm.  She had previously received DSP in about 1996 before she travelled overseas and her DSP was cancelled.  On 23 February 2002 Centrelink refused the claim because although she had an impairment rating of at least 20 points, she did not meet the eligibility criteria, as she was considered fit for employment within the next two years.  After the authorised review officer affirmed the decision, the applicant sought review by the SSAT on 17 July 2002.  Following the decision of the SSAT, the applicant lodged an application with the Tribunal on 3 September 2002.
   EVIDENCE

5. The applicant gave oral evidence that she was born with a significant disability in her right arm, which limits her use of that arm.  She said that she has difficulty performing basic tasks because she is able to use only her left hand and arm.  She stated that she was born in Australia and completed secondary education to Year 10, after which she moved to Lebanon with her family.  The applicant told the Tribunal that following her return in about 1996 she was granted DSP.  She explained that as part of a rehabilitation program she undertook a short course in pharmacy sales, but was unable to find work.

6. The applicant stated that she travelled to Lebanon for an extended period, and returned with her fiance in December 2001.  They married in February 2002.  She said that in addition to her right arm disability she suffers from migraine headaches, but as she is now pregnant she has been advised not to seek treatment by a neurologist or to take medication because of side-effects and risk of harm to the foetus.  She stated that in July 2002 she enrolled in a Certificate IV course in occupational health and safety at Coburg College of TAFE, and has completed her requirements for the semester.  She said that her right arm disability would not prevent her from working in this field on completion of her studies in June 2003, although her physical limitations including the migraine headaches might limit her employment opportunities.  The applicant told the Tribunal that previous efforts to find work have been unsuccessful because of her disabilities, and she believes that working in an air-conditioned environment would aggravate her migraine headaches. 

7. In a report dated 28 December 2001, Dr R. Johnson, the applicant's treating doctor, stated that he has treated the applicant since July 1997.  He described her arm disability as permanent, and stated that she would not be able to return to any kind of work within the next two years.

8. In a report dated 11 February 2002, Dr K. Ong of Health Services Australia found that the applicant has a non-functioning right arm, with minimal movement and grip strength, and a normal left arm, and he assigned an impairment rating of 20 points.  He stated that the applicant was capable of performing light semi-sedentary duties where she is able to use her left arm only.  Dr Ong recommended re-training and assistance with finding employment, and expressed the view that if the applicant was still unable to find work after the re-training, then perhaps DSP would be the best option.  There was no mention of migraine headaches in the report.
   CONSIDERATION OF THE ISSUES

9. Section 94 of the Social Security Act 1991 (the Act) provides:

   94.(1)   A person is qualified for disability support pension if:
   (a)       the person has a physical, intellectual or psychiatric impairment; and

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

   (c)       one of the following applies:

   (i)the person has a continuing inability to work;

   (ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)       the person has turned 16; and
   (e)       the person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) 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.

   94.(2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

   (b)       either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

   94.(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)the availability to the person of educational or vocational training or on-the-job training; or

   (b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

   …
   94.(5)  In this section:
   …
   "work" means work:
   (a)       that is for at least 30 hours per week at award wages or above; and

   (b)that exists in Australia, even if not within the person's locally accessible labour market.

Schedule 1B of the Act provides:

…

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

1. Mr Huttner submitted that the applicant has a physical, intellectual or psychiatric impairment and therefore satisfies s94(1)(a) of the Act. He also stated that the applicant has an impairment of 20 points or more under the Impairment Tables and satisfies s94(1)(b) of the Act.

2. In relation to s94(1)(c) and s94(2)(a) of the Act, Mr Huttner submitted that the medical evidence suggested that the applicant would be able to return to full-time or part-time work within two years. He referred to the conclusions by the authorised review officer and the SSAT that the applicant's treating doctor had agreed with the assessment by Dr Ong. Mr Huttner suggested that the Tribunal might wish to call Dr Johnson to give evidence if there were concerns about drawing inferences from the failure of the applicant to address this situation earlier or her failure to call Dr Johnson to give evidence at the hearing.

3. In relation to s94(2)(b), Mr Huttner referred to the applicant's evidence that she is undertaking vocational training, and submitted that she would be capable of work as defined in the Act, at the completion of the course in 2003.

4. In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

5. The Tribunal accepts the submission from Mr Huttner that the applicant satisfies s94(1)(a) and s94(1)(b) in relation to her right arm impairment. As the migraine headaches have not been diagnosed, treated and stabilised, this condition cannot be given a rating under schedule 1B of the Act and is not an impairment for the purposes of s94 of the Act.

6. The Tribunal notes that work is defined in s94(5)(a) of the Act as work that is for at least 30 hours per week at award wages or above. The Tribunal takes into account the differing views expressed by Dr Johnston and Dr Ong about whether the applicant is capable of performing work over the next two years for the purposes of s94(2)(a) of the Act.

7. The Tribunal accepts the applicant's evidence that she is undertaking vocational training at Coburg Institute of TAFE and that she hopes to find employment in the field of occupational health and safety at the conclusion of her course in June 2003. Therefore, the Tribunal finds that the impairment itself is not sufficient to prevent her from undertaking educational or vocational training or on-the job training within the next two years, and the applicant does not satisfy s94(2)(b)(i) of the Act.

8. As a result of the applicant's evidence that she is able to undertake the TAFE course despite her right arm impairment, and that the impairment would not prevent her from working in the occupational health and safety field from June 2003, the Tribunal finds that there is no basis for a conclusion that such training is unlikely (because of the impairment) to enable the applicant to do any work within the next 2 years. Therefore, the Tribunal finds that the applicant does not satisfy s94(2)(b)(ii) of the Act.

9. For these reasons the applicant does not satisfy s94(2)(b) of the Act, and cannot satisfy s94(2), so she does not have a continuing inability to work. Therefore, the applicant does not satisfy s94(1)(c)(i) of the Act. There is no evidence that she satisfies s94(1)(c)(ii), so she does not satisfy s94(1)(c) and therefore does not satisfy s94(1), and is not eligible to receive DSP. As a result of these findings there is no necessity for the Tribunal to seek additional evidence from Dr Johnson or to make a finding on s94(2)(a) of the Act.
   DECISION

10. The Tribunal affirms the decision under review.

    I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:
    G.D.Friedman, Member

    (sgd)       Olympia Sarrinikolaou
                  Clerk

    Date of hearing:  9 December 2002

    Date of decision:  13 December 2002
    Advocate for applicant:               Self-represented
    Advocate for respondent:            Mr R. Huttner, Centrelink