Basic and Secretary, Department of Family and Community Services

[2005] AATA 103

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1312

GENERAL ADMINISTRATIVE DIVISION

Re:         MIRALEM BASIC

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             4 February 2005

Place:            Melbourne

Decision:(a)      The Tribunal affirms the decision under review in respect of disability support pension.

(b)The Tribunal sets aside the decision under review in respect of newstart allowance and substitutes a decision that the applicant is entitled to receive newstart allowance from 13 February 2004, under the hardship provisions of the assets test contained in s 1132 of the Social Security Act 1991, subject to all other newstart allowance qualification/payability criteria.  In all other respects the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - disability support pension - wrist injury - knee injury - impairment tables - whether conditions fully treated and stabilised - newstart allowance - assets test - whether financial hardship provisions apply

Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), 611, 1121, 1131, Schedule 1B

Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN 225

REASONS FOR DECISION

4 February 2005  G.D. Friedman, Member

1.      This is an application by Miralem Basic (the applicant) for review of decisions of the Social Security Appeals Tribunal (SSAT) dated 13 November 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 14 July 2003 to refuse an application for disability support pension (DSP).  The SSAT also affirmed a decision of an authorised review officer of Centrelink dated 3 October 2003 to refuse an application for newstart allowance because the applicant was not considered to be in financial hardship. 

2.      At the hearing on 25 January 2005 the applicant represented himself and Mr D. Perdon, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T56), plus three exhibits (Exhibits A1‑A3) lodged by the applicant, and one exhibit (Exhibit R1) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 23 November 1950 in Croatia and completed an apprenticeship as a fitter and turner.  He arrived in Australia in 1971 and worked for a number of years in the building industry as a fitter and turner and then as a carpenter.  He ceased work in March 2000 after fracturing his left wrist in a fall.

5.      On 16 June 2003 the applicant lodged a claim for DSP due to hand/wrist/forearm pain, and later added knee pain.  After a medical assessment Centrelink refused the claim for DSP on 9 July 2003 because his medical conditions were not considered to have been fully treated and stabilised under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  On 14 July 2003 an authorised review officer affirmed the decision.

6.      On 24 July 2003 the applicant sought review of the Centrelink decision by the SSAT.  On 25 August 2003 the SSAT affirmed the decision on the basis that the applicant’s conditions were not fully treated and stabilised, and therefore he did not have an impairment rating of at least 20 points.  On 1 October 2003 the applicant provided further medical evidence and on 8 October 2003 Centrelink again refused the claim.  On 9 October 2003 an authorised review officer affirmed the decision.   On 13 October 2003 the applicant applied to the SSAT for review of the decision.  Following the SSAT decision on 13 November 2003, the applicant lodged an application with the Tribunal on 28 November 2003 for review of the decision.

7.      The applicant lodged a claim for newstart allowance on 16 June 2003.  On 26 June 2003 Centrelink refused the claim because his assets were above the allowable limit.  On 18 July 2003 the applicant lodged a claim under the hardship provisions, and on 23 July 2003 his application was refused because he was not considered to be in severe financial hardship.  On 3 October 2003 an authorised review officer affirmed the decision.  On 7 October 2003 the applicant applied to the SSAT for review of the decision.  Following the decision of a differently-constituted SSAT on 13 November 2003, the applicant lodged an application with the Tribunal on 28 November 2003 for review of the decision.

8.      On 18 March 2004 the Tribunal made consent orders granting newstart allowance to the applicant under the hardship provisions of the assets test from 13 February 2004.  The allowance was cancelled when the applicant travelled overseas in June 2004, and since his return in September 2004 he has not re‑claimed social security benefits.

9.      The issues before the Tribunal are whether the applicant’s medical conditions satisfy the criteria for payment of DSP, and whether the applicant qualifies for newstart allowance.

EVIDENCE

10.     The applicant gave oral evidence that he was employed as a carpenter and a builder, and that since fracturing his left wrist in March 2000 he has suffered chronic pain in his left forearm and wrist.  He told the Tribunal that he injured his right knee in September 2003, resulting in constant pain.  The applicant stated that he has difficulty in walking up and down stairs.  He said that he cannot squat or bend his knees properly.  He described other medical conditions including varicose veins in his legs and pains in his neck and back arising from problems with joints, which he said was the result of lifting heavy objects over a long period.

11.     The applicant told the Tribunal that Dr I. Giannakopoulos, the applicant’s treating doctor, had diagnosed carpal tunnel syndrome as a result of the wrist fracture; and a neurologist had recommended decompression surgery.  However, WorkCover had not yet approved payment for the surgery, and he was exploring other options before agreeing to the procedure.    

12.     The applicant confirmed that he has completed a building management course through the Master Builders Association.  He also commenced a computer‑aided design program, but did not complete the course because he felt his command of the English language was inadequate.  He said he would like to work but would find difficulty in obtaining suitable employment with his medical conditions.

13.     In respect to his application for newstart allowance, the applicant said that he and his wife separated three years ago, and he resides in the former family home, which he owns jointly with his wife and which he said is currently valued at about $700,000 to $800,000.  He stated that he and his wife also own an investment property, which is valued at $600,000 and has a mortgage of $116,000.  The applicant told the Tribunal that his wife is employed and is repaying the mortgage.  He said that she had told him previously that she was unwilling to sell the property, although several months ago she lodged an application in the Family Court for a property settlement, in which she sought to purchase his share of the home and the investment unit.

14.     The applicant said that at the date of his claim for newstart allowance he had bank accounts totalling $15,634.  He agreed that this had diminished to $8440 on 3 October 2003, $7709 on 12 November 2003 and $4615 on 13 February 2004.  He stated that in 2004 his sister lent him $9000 which he is using for daily living expenses.  He also agreed that he owns the contents of his home (which he valued at about $5000) plus 600 Telstra shares.

15.     In a report dated 24 January 2003 (T6) Dr Giannakopolous stated that the applicant developed carpal tunnel syndrome after fracturing his wrist.  He noted that a neurologist recommended decompression surgery, but the applicant has been reluctant for this to proceed.  Dr Giannakopoulos said that the applicant has been unable to resume his previous work, and is restricted to light duties for a maximum of three days per week.  He added that the applicant’s symptoms improve with rest. 

16.     In a report dated 13 June 2003 (T5) Dr Giannakopoulos suggested that after surgery the applicant’s ability to function is expected to somewhat improve.

17.     In a report dated 18 May 2004 (Exhibit A1) Dr Giannakopoulos stated:

His main complaint is one of pain, mainly affecting his shoulder blades, left arm and wrist and right knee.  These are due to a combination of osteoarthritis and injury suffered while working as a builder.

He also suffers from varicose veins, worse on the left leg. 

Altogether, these conditions are having a very dramatic effect on his overall health, especially affecting his ability to do any sort of work as well as causing a worsening depressed state.

Dr Giannakopoulos expressed the opinion that decompression surgery is unlikely to resolve all the symptoms arising from carpal tunnel, but the applicant will be able to return to some kind of employment with the right treatment and the passage of time.

18.     In a report referral letter dated 22 January 2004 (Exhibit A3) seeking physiotherapy/hydrotherapy, Dr Giannakopoulos noted: Recent MRI of his R knee showed loss of articular cartilage, tear of the medial meniscus and tendinopathy of the quadriceps.

19.     In a report dated 22 April 2003 (T7) Dr G. Ziros, chiropractor, stated that the applicant was suffering from carpal tunnel syndrome and secondary cervic-thoracic and upper thoracic joint dysfunction which has been treated by physical therapy and exercises as a supportive/preventative measure to reduce the risk of further deterioration and permanent impairment.  Dr Ziros stated that the potential for more significant functional recovery cannot be realised until compression surgery is performed, and that a gradual return to modified manual duties or to such roles as drafting or as a project foreperson might then be possible.

20.     In a report dated 3 July 2003 (T8) Dr D. Cheung of Health Services Australia stated that an impairment rating could not be assigned because the applicant’s carpal tunnel condition might be improved by surgery, so any loss of function could not be considered to be permanent.  Dr Cheung said that the applicant would be incapacitated temporarily for 6 to 12 months because he was awaiting surgery, and would be capable of returning to work of 30 hours per week in 6 to 24 months.

21.     In a letter to the applicant dated 22 January 2004 (Exhibit A2) Mr O. Deacon, orthopaedic surgeon, who has been treating the applicant for right knee and lower back problems, stated that he had referred the applicant to a specialist rheumatologist.

22.     In bank statements dated 13 February 2004 (Exhibit R1) provided to the Tribunal, the applicant’s account balances totalled $4615.92.  In a rates and valuation notice dated 2002/2003 (T24) the City of Stonnington assessed the capital improved value of the investment property at $600,000.

CONSIDERATION OF THE ISSUES

23.     Section 94 of 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;

…

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)    …

"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. …

24.     Mr Perdon submitted that at the date of the claim for DSP, or within 13 weeks of that date (the relevant period), the applicant’s conditions could not be assigned an impairment rating because they had not been fully investigated, treated and stabilised, so that the applicant did not have a rating of 20 points or more under the Impairment Tables.  Mr Perdon noted that the applicant has also undertaken re‑training, and should be capable of some kind of work within the next 2 years.

25. In respect of newstart allowance s 611(1) of the Act provides:

611(1)     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.

Section 1131 of the Act provides that a claimant subject to the assets test has recourse to the hardship provisions of the test. Section 1131(1)(g) provides that if a person has an unrealisable asset, then that asset is disregarded for the purposes of the assets test if that the person would suffer severe financial hardship if the assets hardship provisions were not applied.

26.     Mr Perdon submitted that at the date of the claim the applicant’s assessable assets exceeded the allowable limit of $145,250, and his readily available funds exceeded $6000.  Therefore, he could not be considered to be in severe financial hardship.  Mr Perdon stated that the respondent now accepted that as a consequence of the consent orders made by the Tribunal on 18 March 2004, the applicant satisfied the severe financial hardship provisions of the Act as at 13 February 2004.       

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

28. In respect of the applicant’s claim for DSP, the Tribunal accepts the evidence from medical practitioners and the chiropractor that the applicant would benefit from compression surgery for treatment of his carpal tunnel condition, and that his condition may improve significantly. The Tribunal also accepts the medical evidence that the knee condition and the other conditions might improve in time. Consequently, the Tribunal accepts the submission from Mr Perdon that during the relevant period the applicant’s medical conditions could not be assigned an impairment rating because they were not fully documented, diagnosed conditions which had been investigated, treated and stabilised. Therefore, the applicant could not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act, and cannot satisfy s 94(1). The Tribunal does not need to consider whether the applicant had a continuing inability to work under s 94(1)(c) of the Act.

29.     In respect of the claim for newstart allowance, the Tribunal finds that at the date of the claim the applicant’s relevant assets totalled $255,748, comprising his bank balance of $15,634, Telstra shares worth about $2844, home contents worth about $20,000, and a half-share of the net value of the investment unit: $217,000.  The Tribunal finds that the applicant’s assets exceeded the allowable limit and that he was not eligible for newstart allowance.

30.     In respect of the hardship provisions of the assets test the Tribunal takes into account that, under social security guidelines, the amount of $6000 in readily available funds is the figure used by the respondent in determining whether a person is in severe financial hardship.  In Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN 225 the Tribunal considered the guidelines to be reasonable but not binding.  In all the circumstances, the Tribunal finds that at the date of the claim the applicant had readily available funds well in excess of $6000, and therefore he could not be considered to be in severe financial hardship if the assets hardship provisions were not applied to him.  The Tribunal notes that the orders made by consent on 18 March 2004 took into account the applicant’s depleted funds, and consequently the decision must reflect this situation from 13 February 2004.

DECISION

31.     (a) The Tribunal affirms the decision under review in respect of disability support pension.

(b) The Tribunal sets aside the decision under review in respect of newstart allowance and substitutes a decision that the applicant is entitled to receive newstart allowance from 13 February 2004 under the hardship provisions of the assets test contained in s 1132 of the Social Security Act 1991, subject to all other newstart allowance qualification/payability criteria.  In all other respects the Tribunal affirms the decision under review.

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  25 January 2005

Date of decision:  4 February 2005
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr D. Perdon, Centrelink