Barbaro and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 895

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 895

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0956

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRACE BARBARO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date16 December 2011

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE      
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – entitlement to Disability Support Pension – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a “continuing inability to work” – Job Capacity Assessment conducted – report of medical practitioner – decision under review affirmed.

Social Security Act 1991 (Cth), ss 94(1), (2), (3), (5) and Schedule 1B

Secretary, Department of Social Security v Pusnjak [1999] FCA 994
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635
Secretary, Department of Families, Housing, Community Services v Indigenous Affairs v Harris [2010] FCA 360

REASONS FOR DECISION

16 December 2011   Senior Member R W Dunne         

introduction

1.      Ms Grace Barbaro (“applicant”) suffers from a number of medical conditions which prevent her from being in regular employment.  This situation led her to apply to Centrelink (“respondent”) for Disability Support Pension (“DSP”) on 8 June 2010.  A medical report dated 7 June 2010 had been prepared by her treating doctor, Dr Claire Won, whose findings were that Ms Barbaro suffered from chronic insomnia, chronic foot pain/flat feet, scoliosis and right scapular pain.  Following a Job Capacity Assessment, Ms Barbaro’s claim for DSP was rejected on 17 August 2010.  She requested a review of that decision by an Authorised Review Officer (“ARO”) and the Social Security Appeals Tribunal (“SSAT”).  They both affirmed the original decision.  Ms Barbaro has applied to this Tribunal for review of the decision of the SSAT.

2. At the hearing, Ms Barbaro was self-represented and the respondent was represented by Ms Lee-Anne Odgers (from Centrelink Program Litigation and Review Branch). The T documents lodged pursuant to s 37 of Administrative Appeals Tribunal Act 1975 were admitted into evidence as Exhibit R1, together with a letter from Ms Helen Wright, Burnside Sleep Centre, to Dr Won dated 27 October 2008 (Exhibit A1).

issue for the tribunal

3. The issue for the Tribunal, in considering s 94 of the Social Security Act 1991 (“Act”), is whether Ms Barbaro was qualified to receive DSP during the period from 8 June 2010 or within a period of 13 weeks from that date, namely 7 September 2010 (“Claim Period”).  As Centrelink:

(a)accepts that Ms Barbaro had physical, intellectual or psychiatric impairments; and

(b)concedes that Ms Barbaro’s:

(i)condition of scoliosis should be assigned an impairment rating of 10 impairment points under Table 5.2 of the Impairment Tables contained in Schedule 1B of the Act; and

(ii)Ms Barbaro’s foot condition should be assigned an impairment rating of 10 impairment points under Table 4 of the Impairment Tables,

the sole issue for the Tribunal is whether Ms Barbaro had a “continuing inability to work”, because of her impairments, during the Claim Period within the meaning of s 94(1)(c)(i) and s 94(2), (3) and (5) of the Act.

legislation

4. Entitlement to DSP is to be found within the provisions of s 94 of the Act which are reproduced relevantly as follows:

“94       Qualification for DSP

(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 DSP; 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; and

(f)the person is not qualified for disability support pension under section 94A.

(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 independently of a program of support within the next 2 years; and

(b)      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.

Note:   For work see subsection (5).

(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 a training activity; or

(b)the availability to the person of work in the person’s locally accessible labour market.

…

(5)      In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)      education;

(b)      pre‑vocational training;

(c)      vocational training;

(d)      vocational rehabilitation;

(e)      work‑related training (including on‑the‑job training).

work means work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

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

…”

background and evidence of applicant  

5.      The material facts in this case are set out in the Reasons for Decision of the SSAT and are not in dispute.  Ms Barbaro is 40 years of age, is married and has three children aged 14, 13 and 10.  She has chronic insomnia, scoliosis, flat feet and neck and back problems.  She has suffered from sleep problems for many years, which could have started when she worked in her family business and was up most of the night.  The condition affected her concentration and her ability to engage in regular work.  She saw a sleep therapist in 2008.  She does not take any specific medication for her condition, but prefers herbal remedies.  She provided a letter from her therapist, Ms Helen Wright of the Burnside Sleep Centre.  The letter was directed to her treating doctor, Dr Claire Won (Exhibit A1).  The letter indicated that she suffered from psychophysiological insomnia.  Because of her flat feet condition, she is not able to stand for long and wears orthotics in her shoes.

6.      A Job Capacity Assessment was conducted on 22 June 2010 by an assessor, Ms Jessica Dewar, together with Ms Marion Woods, nurse practitioner.  The medical conditions presented by Ms Barbaro in the assessment were lower limb deficiencies, musculo-skeletal disorder, shoulder and upper arm disorder and psychological/psychiatric disorder.

7.      Ms Barbaro said that she is unable to sleep normally.  She wakes up during the night, gets up, watches television or reads.  She sometimes blacks out while driving her car when looking after her children.  She believes her chronic insomnia is the real problem which affects her concentration and she is unable to work very long during the day.  Because of this, she believes she would be unable to find any suitable work.

consideration

Did the applicant have a “continuing inability to work” because of her impairments at the time she applied for DSP on 8 June 2010 or within a period of 13 weeks from the date of her claim? 

8. In order to qualify for DSP, Ms Barbaro must satisfy the relevant requirements of s 94(1) of the Act. It is accepted or conceded (and the Tribunal is satisfied) that, during the Claim Period, Ms Barbaro satisfied paragraphs (a), (b), (d), (e) and (f) of s 94(1) of the Act. It follows that she will qualify for DSP if, pursuant to s 94(1)(c)(i), she has a continuing inability to work. In this regard:

(a)the Tribunal (upon review) is not to have regard to the availability to Ms Barbaro of work in her locally accessible labour market; and

(b)“work” means work that exists in Australia, even if not within Ms Barbaro’s locally accessible labour market.

9. Under s 94(1)(c)(i) of the Act, when read with s 94(2) in respect of the Claim Period, Ms Barbaro has a “continuing inability to work” because of an impairment if the Secretary (or the Tribunal, upon review) is satisfied that the impairment was of itself sufficient to prevent her from doing any work within the next two years, and the impairment was of itself sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5) of the Act and in Ms Barbaro’s case, “work” means work that is for at least 15 hours per week in Australia at award rates or above.

10.     In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J (in the Federal Court) considered the operation of s 94(2) of the Act. At paragraphs 31 and 32 of his decision, the learned Judge said:

“31 If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).

32 Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):

As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:

As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?

If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. …”

11. In relation to the phrase “any work” in s 94(2)(a) of the Act, I note that this phrase ought not be qualified to mean “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at para [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at para [27]). Moreover, in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360, Greenwood J (in the Federal Court) said (at paragraph 26):

“The reference in s 94(2)(a) to any work is not a reference to any work of any kind anywhere at any time.  The phrase ‘any work’ is qualified by a relationship between the impairment of itself and work that might be undertaken without the need to support Mr Harris in a program designed to assist him in preparing for, finding or maintaining work and, more particularly, the second stage inquiry contemplates the possibility of a training activity across five possible areas of training that might have the effect of diversifying skills and exposing the claimant to wider employment or work opportunities, subject to the consideration specified in s 94(2)(b)(i) and (ii).” 

12.     As mentioned above in paragraph 6 of these reasons, Ms Jessica Dewar, together Ms Marion Woods, performed a Job Capacity Assessment for Ms Barbaro on 22 June 2010.  This assessment followed Ms Barbaro’s claim for DSP.  The Job Capacity Assessment Report (Exhibit R1, pages 173-180) indicates that Ms Barbaro had an assessed current base-line work capacity of 15-22 hours per week, and an assessed future capacity for work within 2 years with intervention of 23-29 hours per week.  In making these assessments, the Report reads (at page 177):

“All permanent conditions rationale: Considering all the client’s permanent conditions, the client does not demonstrate endurance to meet a full work day and so a work capacity of 15-22 hours is realistic at this time.  Due to the functional limitations that the client is presented with as a result of her musculo-skeletal conditions, it is unrealistic to expect that the client would be able to work more than 22 hours per week consistently for the next two years without aggravating her conditions further.  Specifically, the client demonstrates limitations in her oval Range of Movement due to such conditions.  It is therefore recommended that the client’s work capacity remain at 15-22 hours per week for the next two years.  With ESP intervention, and if matched to suitable employment within a supportive working environment, it is likely that the client’s work capacity will increase within this time.” 

13.     On the basis of the above information, Centrelink submitted that Ms Barbaro did not have a continuing inability to work at the time of her claim and during the Claim Period. 

14. On the evidence before me and having regard to Centrelink’s submission, I am not satisfied that Ms Barbaro complied with the requirements of s 94(1)(c)(i) of the Act at the time of her claim and during the Claim Period, and thus is not qualified to receive DSP.

decision

15.     For the reasons set out above, the Tribunal affirms the decision under review.

16.      

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         .....................................................................................
  Associate

Date of Hearing  31 August 2011
Date of Decision  16 December 2011
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr G Camilos

Program Litigation and Review Branch