Banasiak and Secretary, Department of Family and Community Services
[2002] AATA 636
•26 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 636
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/62
GENERAL ADMINISTRATIVE DIVISION )
Re MARIE BANASIAK
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Date26 July 2002
PlaceMelbourne
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
Social Security - New Start Allowance - exemption from activity test - whether injuries from sickness or accident caused temporary incapacity - whether condition permanent - decision affirmed.
REASONS FOR DECISION
26 July 2002 Mr J. Handley, Senior Member
The applicant applies to review a decision made by the Social Security Appeals Tribunal on 21 November 2001. The SSAT then decided to affirm a decision previously made by the respondent on 20 August 2001 to cancel her exemption from the New Start allowance activity test.
The application was heard in Mildura on 26 June. Ms Banasiak appeared without representation. Ms King represented the respondent. A number of documents were received into evidence and will be referred to in these reasons.
Persons may be exempted from the activity test associated with qualification for Newstart Allowance ("NSA") if they satisfy the provisions of s 603C of the Social Security Act 1991 ("the Act").
That section provides that a person is not required to satisfy the activity test if they are incapacitated for work by sickness or an accident and the incapacity is of a temporary nature. For the purposes of that section, 'work' is defined to be work of either full-time, part-time, permanent or a casual nature that could reasonably be expected to be undertaken by the person for at least 8 hours per week.
Mrs Banasiak has been in receipt of NSA since 1998. She was initially exempted from the activity test by reason of illness and injuries. In March 1999, she was unfortunately involved in a motor vehicle accident where she suffered neck and right arm injuries. Previously she had suffered from a back injury and from hypertension.
At all relevant times prior to August 2001, by reason of a combination of the pre-existing injuries and the injuries from the motor vehicle accident, Mrs Banasiak was exempted from the activity test. At or about August 2001, Centrelink decided that those conditions were no longer temporary and should be regarded as being permanent. Additionally, the Department decided that regardless of whether the conditions could be regarded as being temporary or permanent, Mrs Banasiak did have a capacity for work of at least 8 hours per week.
The T-documents filed contain a number of medical reports and questionnaires completed by Doctors over many years. Those Doctors comprise the applicant's treating General Practitioners and Doctors engaged by Health Services Australia, who provided reports at the request of the respondent.
Doctor Churchman assessed the applicant in 2000 as having conditions which were permanent. Whilst there is some variation between the Doctors as to whether the conditions may reasonably be regarded now as being temporary or permanent, the applicant herself today said that she regarded the conditions now as being permanent.
I respectfully agree with the applicant's conclusions. Despite that opinion ultimately proving fatal to these proceedings, the extent of the applicant's treatment for more than three years (at least since the motor car accident) would suggest to me that the conditions could no longer be regarded as being temporary. Indeed, Mrs Banasiak said that she believed that the conditions were worsening because of increased levels of pain. If her injuries were truly regarded as being temporary she could reasonably have expected relief by now from them. Additionally, the qualification for exemption from the activity test is by sickness or accident. These words also suggest a temporary incapacity. The extent and nature of the applicant's injuries suggest that they are not only permanent, but significantly contribute to incapacity.
It follows, therefore, that the applicant cannot satisfy the provisions of s 603C of the Act because she cannot demonstrate that her incapacity for work is of a temporary nature.
Mrs Banasiak said that her entitlement to NSA has not been suspended because she has been attempting to satisfy the activity test since August 2001. She has not been able to satisfy employers that she should be engaged, because when she volunteers her injuries she is then regarded as a liability and her employment applications are rejected. I concluded, having heard of her unsuccessful attempts to secure employment, that her future rights might best be served by pursuing an application for Disability Support Pension. Mrs Banasiak understood that a claim had previously been made for it, but on close enquiry it appears that this is not so.
Mrs Banasiak is aware that the qualifying criteria for Disability Support Pension is different to ongoing entitlement to NSA. Under the present legislation, if she does qualify for Disability Support Pension, she will not be required to undergo searches for employment which, so far as her most recent experiences were concerned, have been fruitless and humiliating.
Insofar as the present application is concerned, I am obliged to apply the legislation. Upon the legislation and evidence heard and read, I cannot be satisfied that the sickness or accidents Mrs Banasiak suffered can be regarded as being temporary. Indeed, I would be satisfied that those conditions can now fairly be regarded as being permanent.
In those circumstances, the decision under review must be affirmed.
0
0
0