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

[2011] AATA 844

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1109

GENERAL ADMINISTRATIVE DIVISION		)
Re		Debra Bartlett

Applicant

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

Respondent

DECISION

Tribunal Senior Member A K Britton

Date31 October 2011  

PlaceSydney

Decision The decision under review is affirmed.  

.......................[sgd].......................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – entitlement – applicant did not have continuing inability to work – decision under review affirmed

Social Security Act 1991 (Cth) - s 94(1)(b), 94(2)

Re Bartlett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 369

REASONS FOR DECISION

Senior Member A K Britton           

1.      I affirm the decision made by the Authorised Review Officer to refuse the claim made by Mrs Debra Bartlett, the applicant in these proceedings, for Disability Support Pension.  

2.      There is no argument that Mrs Bartlett has a disability that significantly reduces her functional capacity, primarily on account of her back, and to a lesser but nonetheless real and material extent, her knees.  Nor is there an argument that Mrs Bartlett has an impairment of at least 20 points under the Impairment Table and therefore satisfies one of the criteria for Disability Support Pension set out in the Social Security Act 1991 (Cth) (s 94(1)(b)).

3. The issue in dispute is whether Mrs Bartlett satisfied another of the criterion for a disability support pension namely, a “continuing inability to work” within the meaning of s 94(2) of the Act. It provides:

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

…

(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.

4. In my opinion, Mrs Bartlett does not satisfy s 94(2)(b). The report dated 9 August 2011 prepared by her GP, Dr John Houston, states that she is fit for 15 hours light work per week, providing it does not require any bending or twisting and allows her to stand as needed, up to four hours per day. This indicates that her condition may have improved somewhat since I handed down my reasons for decision in May last year (Re Bartlett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 369). I note that she gave evidence today that while she sometimes has reasonable sitting and standing tolerances, there are days where she is unable to get moving at all.

5. I make no finding about whether Mrs Bartlett satisfies s 94(2)(a), that is — whether the impairment is of itself sufficient to prevent her from doing any work independently of a program of support within the next two years. However I could not be satisfied that, of itself, the impairment is sufficient to prevent her undertaking a “training activity”, given the breadth of the definition of that term (see ss 94(2)(b) and 94(5)).

6.      While I affirm the decision made by the Secretary, I strongly recommend that an appropriate person within Centrelink contact Mrs Bartlett and discuss with her the availability of meaningful training opportunities that might assist her to broaden the scope of work available to her.  And what I would ask you to do, Mrs Bartlett, is to sit down and hear what that person has to say; see what the options are; and explore them.  And if at that point you conclude, ‘Well, given where I am at this point of my life, I do want to return to the work force”, that is a decision you are entitled to make.  But at least then you will be in an informed position. I cannot help but think when I hear from you, that what you are really saying is that “I just can’t go back and do the job I did before”. 

7.      Clearly given the heavy nature of that work and the problems with your back and knees you are no longer fit for that type of work. The question is — “What other types of work might you be able to do?” — if you were provided with appropriate training.   You might decide, “Well, they don’t look very interesting and that’s not how I want to spend my life” but you might take a different view.  You might think, for example, that a counselling role with sick people or working as a ticket seller or something like that, “Well, I will give it a go”.  But that should be a decision you make.  So, Ms Maclean, if you could pass on that recommendation to the Secretary. 

8.      I emphasise that the person nominated by the Secretary to speak to Mrs Bartlett needs to be an appropriately qualified person. This might assist to break the deadlock that appears to have developed in this matter.

9.      Mrs Bartlett, it is clear to me that you are a person with a strong work ethic and if an appropriate position could be found for you within the work force, you would make a very valuable contribution to the Australian community.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ..........................................[sgd].........................
  Associate to Senior Member A K Britton

Date/s of Hearing  31 October 2011
Date of Decision  31 October 2011
Applicant self-represented

Solicitor for the Respondent     Ms J Maclean, Centrelink Program Litigation and Review Branch