Alfred Pavilupillai and Secretary, Department of Employment Secretary, Department of Social Services
[2015] AATA 240
•18 March 2015
[2015] AATA 240
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/5901
2014/5902
Re
Alfred Pavilupillai
APPLICANT
And
Secretary, Department of Employment
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 18 March 2015 Place Melbourne The decisions under review are affirmed.
......................[sgd]..................................................
Egon Fice, Senior Member
Catchwords
SOCIAL WELFARE – Pensions, payments and allowances – Newstart allowance – Rules for determining rates and payments – Assets test – Disposal of assets – Applicant exceeded assets value limit – Disability support pension – Impairment assessment – Insufficient impairment points allocated to applicant’s conditions – decisions under review affirmed
Legislation
Social Security Act 1991 (Cth) ss 11, 94, 593, 611, 1118, 1121, 1123, 1126AC, 1991–4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) cls 5–6
Cases
Calverley v Green (1984) 155 CLR 242
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Secretary, Department of Employment and Workplace Relations v Vanderpluym [2007] FCA 876 (7 June 2007)
Secondary Materials
Department of Social Services, Guides to Social Policy Law < FOR DECISION
Egon Fice, Senior Member
22 April 2015
The first application before me (2014/5901) is an application in respect of a decision made by the Social Security Appeals Tribunal (SSAT) on 28 October 2014 rejecting Mr Pavilupillai’s application for newstart allowance. The second application (2014/5902) concerns an application by Mr Pavilupillai for the disability support pension (DSP). This matter was also heard by the SSAT on 28 October 2014 which rejected his DSP claim.
I heard both matters on 18 March 2015 and handed down oral decisions affirming the decisions made by the SSAT. Subsequently, Mr Pavilupillai requested written reasons for those decisions. These are those reasons.
NEWSTART ALLOWANCE
The problem for Mr Pavilupillai regarding this claim is the level of assets he had at the time of his application. Even if he qualified for newstart allowance in accordance with s. 593 (1) of the Social Security Act 1991 (the Social Security Act), because he exceeded the assets value limit, he would not be entitled to any payment. Section 611 (1) of the Social Security Act provides:
A newstart allowance is not payable to a person if the value of the person’s assets is more than the person’s assets value limit.
Mr Pavilupillai lodged his claim for newstart allowance on 3 June 2014. The assets value limit is set out in a table found under s. 611 (2) of the Social Security Act and the figures in that table are indexed annually in line with CPI increases. The CPI Indexation Table is found at ss. 1191–4. At the time of making his claim, the asset value limit for a couple who were home-owners was $279,000; and for non-homeowner couples, $421,500.
Obviously, to establish the limit which applies to Mr Pavilupillai, I need first to determine whether he and his spouse were homeowners.
Section 11(4) of the Social Security Act defines the expression homeowner in the following way:
Homeowner. For the purposes of this Act:
(a)a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person’s principal home; and
(ii) the person’s right or interest in the home gives the person reasonable security of tenure in the home; and
(b)a person who is a member of a couple is a homeowner if:
(i) the person, or the person’s partner, has a right or interest in one residence that is:
(A)the person’s principal home; or
(B)the partner’s principal home; or
(C)the principal home of both of them; and
(ii) the person’s right or interest, or the partner’s right or interest, in the home gives the person, or the person’s partner, reasonable security of tenure in the home; and
(c)a person (whether a member of a couple or not) is a homeowner while:
(i) the whole or a part of the proceeds of the sale of the person’s principal home are disregarded under subsection 1118(2); or
(ii) the value of a residence, land or a structure is disregarded under subsection 1118(2).
While s. 11(4) sets out the circumstances in which a person can be held to be a homeowner, the expression principal home is not defined in the Social Security Act. One has to look elsewhere in order to determine how that expression is understood.
The Department of Social Security (of the Department) has established Guides to Social Policy Law. While the guides set out in that document are not the law, it seems reasonable to regard that document as an expression of departmental policy. Although dealing with ministerial policy, Brennan J, the then President of the Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 said, at 640:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy.
The above principle dealing with ministerial policy has been adopted with approval in cases dealing with departmental guidelines and policy.
The Guides to Social Policy Law state their purpose as follows:
Each Guide aims to assist in understanding the associated law and its application. The Guides are intended to be used to assist with decision making. They are not intended to be used as sole decision making tools. Decision makers should base their decisions on the relevant law, with regard to the Australian Government’s policy contained in the Guides.
Clause 4.6.3.30 of the Guide to Social Security Law defines the expression principal home. It provides:
The principal home is generally the home in which the single income support recipient or couple (1.1.M.120) lives for the greatest amount of time each year.
Mr Pavilupillai’s evidence was that his and his wife’s principal home, which was situated at 173 Gower Street, Preston (the Gower Street property), was transferred to their three children as tenants in common on 5 March 2014. I had in evidence a Register Search Statement indicating that to be the case. In a written statement accompanying his application, Mr Pavilupillai stated that he and his wife owned a second property situated at 28 Watson Street, Preston (the Watson Street property). A City of Darebin Valuation and Rates Notice for the period from 1 July 2013 to 30 June 2014 describes the Capital Improved Value as $544,000.
On the Income and Assets Form lodged with Centrelink together with his newstart claim Mr Pavilupillai stated that the Gower Street property was sold for $250,000 and as at 12 March 2014, it was valued at $835,000. Documents obtained from the Commonwealth Bank indicate that Mr Pavilupillai’s three children opened a loan account on 23 January 2014 when they were granted a loan in the sum of $250,000. That document also indicates that $110,000 of the loan amount was repaid by a transfer from Mr Pavilupillai to his children’s mortgage account. In effect, that money was gifted to his children to assist them with mortgage repayments or, possibly, for other uses. Although the money was paid into the children’s home loan account, it is simply a facility allowing drawings up to $250,000. The notice from the Commonwealth Bank indicates that the repayments which, as at 25 February 2014, stood at $110,663, could be redrawn on request. In other words, the children could withdraw amounts from that loan account up to a maximum of $250,000 and use the money as they wished.
Mr Pavilupillai also said in oral evidence that he and his wife continued to live in the Gower Street property with the consent of their children. They did not pay rent nor was there a formal rental agreement. The Gower Street property is clearly their principal home. However, given the formal transfer of that property to their children, and in the absence of a rental agreement, it cannot be said that they have reasonable security of tenure in that property. At best, it seems to me that they are tenants at will. The advance of $110,000 provided by Mr and Mrs Pavilupillai did not create an equitable interest in the Gower Street property.
As was stated by Greenwood J in Secretary, Department of Employment and Workplace Relations v Vanderpluym [2007] FCA 876 (7 June 2007), s. 11(4)(b) of the Social Security Act contemplates an interest which is either legal or equitable. His Honour also noted that reference to the term right contemplates a class or species of right which may not necessarily involve legal or equitable interest in the residence (at [60]). He said, at [61]:
To the extent that the right enjoyed by the relevant applicant is an attenuated personal right in the sense that it is a right derived from a contract or licence and not necessarily a right measured in terms of a legal or equitable ‘interest’ in the residence attached to the land, it would be difficult to envisage circumstances in which such an attenuated right could give reasonable security or continuity of assured occupation. It is the conjunction of the character of the right or interest and the circumstances in which it arises that conveys an objective sense of whether the right or interest confers reasonable security of tenure in the home.
In the circumstances, I find that Mr and Mrs Pavilupillai continued to occupy the Gower Street property depending only upon the goodwill of their children. That could be withdrawn at any stage. Mr and Mrs Pavilupillai did not retain any right or interest in that property which would amount to them having reasonable security of tenure.
Even if I am wrong about Mr and Mrs Pavilupillai retaining a right or interest in the Gower Street property, as the Secretary contended, the legal concept of a presumption of advancement as described by the High Court of Australia in Calverley v Green (1984) 155 CLR 242 would apply in this case. Deane J said, at 267:
The third “presumption”, usually called the “presumption of advancement”, is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of the other has been so provided by way of “advancement” with the result that the prima facie position remains that the equitable interest is presumed to follow the legal estate and to be at home with the legal title or, in the words of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin v. Martin (94), that there is an “absence of any reason for assuming that a trust arose”. “The child or wife has the legal title. The fact of his being a child or wife of the purchaser prevents any equitable presumption from arising” (95) (quoting Ashburner’s Principles of Equity, 2nd ed. (1933), p. 110n).
In simple words, when Mr Pavilupillai and his wife transferred the Gower Street property to their children, they transferred their legal and equitable rights and interests in that property. They did not retain an equitable interest. The consequence of the application of the so-called presumption of advancement is that Mr and Mrs Pavilupillai ceased to be homeowners for the purposes of the Social Security Act on 5 March 2014.
As part of his claim for newstart allowance, Mr Pavilupillai completed a form setting out details of real estate which he owned. He identified a property located at 28 Watson Street, Preston. He also stated that his estimate of its value was $544,000. Mr Pavilupillai said the Watson Street property was rented and the rental income was $110 per week. He also said that he owed $28,000 as a consequence of monies borrowed for the purchase of that property. Neither he nor his wife reside at that property.
The valuation of a person’s assets for the purposes of the Social Security Act is set out in Chapter 3 Part 3.12 Division 1. Section 1118 provides that certain assets are to be disregarded when calculating the value of a person’s total assets. Included amongst those disregarded assets is the value of any right or interest of the person in the person’s principal home that is a right or interest which gives the person reasonable security of tenure in the home (s. 1118(1)(a)–(b)). I have already dealt with that above, finding that Mr Pavilupillai is not a homeowner for the purposes of the Social Security Act and therefore he does not have a right or interest in the Gower Street property. It follows that the value of that property must be included in his assets, taking into account the fact that he disposed of it at undervalue.
Disposal of assets is dealt with under s. 1123 of the Social Security Act. Relevantly, that section provides (emphasis in original):
(1) For the purposes of this Act, a person disposes of assets of the person if:
(a)the person engages in a course of conduct that directly or indirectly:
(i) …
(ii) disposes of all or some of the person’s assets; or
(iii) …; and
(b)one of the following subparagraphs is satisfied:
(i) …
(ii) the person receives inadequate consideration in money or money’s worth for the destruction, disposal or diminution;
(iii) ….
The can be no question that s. 1123 applies in this case. The Gower Street property was valued at $835,000 but was sold to Mr Pavilupillai’s children for $250,000. It was plainly sold at undervalue.
In those circumstances, the value of the person’s assets must be increased in accordance with s. 1126AC (2) which provides:
Increase in value of assets. Subject to this section, if the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of assets previously made by the person, the person’s partner, or the person and the person’s partner, during the income year in which the relevant disposal took place (whether before or after they became members of the couple), exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the assets of the person and in the value of the assets of the partner for the period of 5 years starting on the day on which the relevant disposal took place:
(a)one-half of the amount of the relevant disposal;
(b)one-half of the amount by which the sum of the amount of the relevant disposal, and the amounts (if any) of other disposals of assets previously made by the person, the partner, or the person and the partner, during the income year in which the relevant disposal took place, exceeds $10,000.
Therefore, the value of Mr Pavilupillai’s assets must be increased in accordance with s. 1126AC. The increased amount is $835,000 - $250,000 - $10,000, or $575,000 (this takes into account the fact that Mr Pavilupillai is a member of a couple).
Because the Watson Street property is encumbered, s. 1121 (1) applies. It provides:
If there is a charge or encumbrance over a particular asset of the person, the value of the asset, for the purposes of calculating the value of the person’s assets for the purposes of this Act (other than Division 1B of Part 3.10), is to be reduced by the value of that charge or encumbrance.
Accordingly, the value of the Watson Street property for these purposes is $544,000 - $28,000 or, $516,000.
In addition to the above assets, Mr Pavilupillai disclosed financial assets to the value of $147,392.
The above assets amount to $1,238,392. That figure is plainly in excess of the asset value limit for a non-homeowner, which is $421,500. For that reason, no purpose is served in examining Mr Pavilupillai’s rental income from the Watson Street property. I find that Mr Pavilupillai was not entitled to payment of newstart allowance as he claimed.
DISABILITY SUPPORT PENSION
The second matter before me is Mr Pavilupillai’s disability support pension (DSP) claim. Mr Pavilupillai lodged this claim on or about 17 April 2014. He listed his disabilities as diabetes, heart disease requiring a stent and sleep apnoea. The medical report accompanying Mr Pavilupillai’s DSP claim, which was completed by Dr Mary Sathianathan, set out the following significant conditions:
ischaemic heart disease – angioplasty/stent
angina, hypertension, hyper cholesterol
diabetes poorly controlled sugar level
recently commenced on insulin three times/day
severe form of osteoarthritis
cervical spine pain and radiculopathy
sleep apnoea on CPAP machine
glacoma [sic] of eyes. Cupped ocular disk
gastritis, dizziness, extreme tiredness
On 28 May 2014 the Department of Human Services (the Department) rejected his claim for DSP. On 21 August 2014 an Authorised Review Officer (ARO) reviewed that decision but came to the conclusion that it was correct. Essentially, the ARO determined that Mr Pavilupillai did not have an impairment rating of 20 points or more and that he was able to undertake light less skilled work for at least 15 hours per week in the two years following his claim. He was also of the view that Mr Pavilupillai’s medical condition did not prevent him from undertaking a training activity to prepare him for work within two years. Mr Pavilupillai then sought further review by the Social Security Appeals Tribunal (SSAT) on 29 August 2014.
In a decision made on 28 October 2014 the SSAT affirmed the decision made by the ARO. It determined that Mr Pavilupillai’s total impairment rating was five points and therefore he did not qualify for the DSP. Mr Pavilupillai then lodged an application for review of the SSAT decision with this Tribunal on 13 November 2014.
The only issue I am required to determine in this case is whether Mr Pavilupillai, as at the date of hearing this matter, qualifies for the DSP.
Qualification for DSP
Section 94 of the Social Security Act sets out the qualifications for DSP. Insofar as it is relevant in this matter, it 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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
There was no issue about the fact that Mr Pavilupillai has physical impairments. However, (b) and (c) are in issue.
The Impairment Tables are found in a Legislative Instrument referred to as Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Part 2 of the Impairment Tables sets out the rules for applying those tables. At the outset, it is important to understand the following, which is set out under clause 5 (2) as follows:
(2) The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
Clause 6 sets out directions regarding application of the Tables. Importantly, clause 6 (3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is permanent, that is, it results from a condition which is more likely than not, in light of available evidence, to persist for more than two years. If the condition is likely to improve or cease within the two-year period, an impairment rating under the Tables cannot be assigned to the impairment.
Clause 6 (4) explains when a condition is considered to be permanent. It must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; is fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.
The second requirement, that is, the person must have a continuing inability to work because of impairment, is explained in s. 94(2) which relevantly provides (emphasis in original):
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.
A person has a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table (s. 94 (3B)).
Rather than conduct an analysis of each medical condition from which Mr Pavilupillai suffers, I propose to look at the current medical reports which deal not only with his major ailments but also with the effect they would have on his capacity to work. It is, after all, an applicant’s capacity to work which is at the forefront of the required analysis. In doing so, I will necessarily place less weight on what his General Practitioner has had to say about the effect that Mr Pavilupillai’s conditions have on his physical capacity to work. That is because Dr Sathianathan has necessarily accepted what Mr Pavilupillai has said about his physical capacity. While of course I do not discount what Mr Pavilupillai has said about his physical capacity, there must be some support for what he says in reports prepared by those who are only concerned with an objective analysis of his medical conditions and the effect they have on his functioning.
In August 2006 Mr Pavilupillai presented to the Austin Hospital with chest pain which he experienced on exertion. On examination, Dr George Proimos diagnosed Mr Pavilupillai as having a critical stenosis in his mid-right coronary artery. The remainder of his coronary arteries appeared fairly free of disease. Dr Proimos performed angioplasty and stenting which he said produced an excellent result.
A review of Mr Pavilupillai’s condition on 20 December 2007 stated that he had no angina at all since stenting. He was reported as complaining of occasional palpitations which sounded like ectopic beats. Despite that, he was described as being generally well.
Mr Pavilupillai was again reviewed at the Austen Hospital on 20 December 2012 by Dr Mario De Luise. Dr De Luise recorded that Mr Pavilupillai was then 57 years of age with long-standing type 2 diabetes, ischaemic heart disease and hypertension. The doctor reported that Mr Pavilupillai had then given up work but had not put on additional weight as a result of reduced activity. He referred to some adjustments to the medication prescribed for his type 2 diabetes but otherwise noted that Mr Pavilupillai had a very good lipid profile, reasonable blood pressure and no evidence of renal involvement.
Dr De Luise again reviewed Mr Pavilupillai on 23 May 2013 at the Austin Hospital. His main concern appeared to be control of his type 2 diabetes with oral agents and suggested to him that he should consider insulin therapy.
Dr Saul Mullen, a neurologist, examined Mr Pavilupillai and provided a report dated 1 July 2013. He described Mr Pavilupillai as having left-hand discomfort and tingling over the fifth digit which had existed for 6 to 12 months. He attributed that to leaning on his left elbow. He said the pain was not typical of carpal tunnel syndrome but that Mr Pavilupillai did get a bit of use discomfort when doing things in a prolonged way with his left arm. As to his heart condition, Dr Mullen said:
Adding to that, he is complaining of some mild central chest discomfort that can radiate to the left arm. This tends to occur when he has been exercising but his exercise tolerance sounds like it is excellent. He says he walks for one hour without getting symptoms and it is only when he has been walking up hills for 10 or 15 minutes that he starts to get some tiredness and a little discomfort in his chest. Given he has a background of ischaemic heart disease I suspect that is what it is but it does not sound like particularly unstable angina.
On examination, Dr Mullen reported that Mr Pavilupillai had reduced sensation in the ulnar distribution in the hands. Dr Mullen suspected the reduced sensation was ulnar rather than a problem with his cervical spine (C6) and he noted the reflexes were all intact as was power. Dr Mullen concluded he probably had bilateral ulnar palsy as there were no other signs of a C6 radiculopathy.
Despite what Dr Mullen said about Mr Pavilupillai’s cervical spine, I note that in her medical report provide for the purposes of the DSP claim, Dr Sathianathan described him as having severe osteoarthritis of his cervical spine and cervical radiculopathy. She stated that this had been confirmed by a neurologist at the Austin Hospital, presumably Dr Mullen. However, as I have stated above, Dr Mullen in his report appears to say otherwise. Dr Mullen did say in his report that he had arranged for an MRI scan to rule out radiculopathy, however I had no report on the outcome of that radiology.
Dr Sathianathan also reported that Mr Pavilupillai was in severe pain, waking up with numbness in his left upper arm and little finger. She recorded him as complaining of being unable to sleep due to the pain. Dr Sathianathan also described Mr Pavilupillai as suffering from sleep apnoea, glaucoma and severe gastritis.
As I have already indicated above, the Impairment Tables are concerned with the effect Mr Pavilupillai’s medical conditions have on his capacity for employment rather than the existence of the conditions themselves. I had in evidence a Job Capacity Assessment Report made on 27 May 2014. That report states:
ischaemic heart disease – permanent – Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised – experiences occasional chest pain with exertion
hypertension – permanent – Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised – minimal impact on functioning – controlled with medication
neck disorder – permanent – Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised – experiences neck pain and referred pain in his left arm
respiratory disorder – permanent – Verified by medical evidence; Fully Diagnosed – not wearing the mask at night
glaucoma – permanent – Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised – minimal impact on functioning
gastroenterological condition – permanent – Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised – minimal impact on functioning
diabetes – insulin-dependent – permanent – Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised – experiences mild fatigue associated with diabetes
The Job Capacity Assessor recommended that 5 points be allocated to Mr Pavilupillai’s neck disorder and 5 points for his diabetes. All of the other conditions were rated at 0. The reasons given were that Mr Pavilupillai’s osteoarthritis of the cervical spine and cervical radiculopathy resulted in him having problems with activities over head height and moving his head to look in all directions. His diabetes caused occasional fatigue when performing physically demanding activities and accordingly he had difficulties performing physically active tasks or heavier household activities but was able to perform most work-related tasks, other than tasks involving heavy manual labour. Mr Pavilupillai was assessed as having a baseline work capacity of 15 – 22 hours per week which would not alter with intervention. He was regarded as being suitable for light semi-skilled work.
Given the medical reports which I had in evidence, except for those of his treating doctor Dr Sathianathan, the job capacity assessment appears consistent with the severity of his diagnosed conditions. While I should emphasise that I have no criticism of Dr Sathianathan’s analysis of Mr Pavilupillai’s ability to function in a work environment due to his conditions, her analysis is clearly based on what her patient told her. It is not her role to conduct a critical assessment of what she was told. I should also add that I cannot rely on Dr Sathianathan’s statement about Mr Pavilupillai’s neck condition as she appears to refer to Dr Mullen’s report dated 1 July 2013 and not an MRI scan of his cervical spine. Although Dr Mullen in his report referred to having arranged for an MRI scan to rule out a C6 radiculopathy, I did not have in evidence any such MRI scan. On that basis, it is my opinion that there is insufficient evidence to allocate any points to his cervical spine condition.
As a result of the medical evidence which was before me, it is my opinion that the maximum rating which can be given to Mr Pavilupillai is 5 points as a result of his type 2 diabetes condition. Because Mr Pavilupillai does not meet the 20 point qualification for the DSP, it cannot be paid to him.
CONCLUSION
I have found that Mr Pavilupillai was not entitled to payment of the newstart allowance because his assets exceeded the maximum asset limit for a non-homeowner member of a couple. I have also found that Mr Pavilupillai does not qualify for the DSP because he does not meet the 20 point impairment requirement under the Impairment Tables.
Accordingly, I find that the decisions made by the SSAT on 28 October 2014 were correct. I affirm those decisions.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ............................[sgd]............................................
Associate
Dated 22 April 2015
Date(s) of hearing 18 March 2015 Applicant In person Advocate for the Respondent Mr N Nguyen Solicitors for the Respondent Sparke Helmore
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