Basit and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1820
•2 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1820
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/742
GENERAL ADMINISTRATIVE DIVISION ) Re ABDUL BASIT Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Professor T. Sourdin, Member Date2 October 2007
PlaceSydney
Decision The decision under review is affirmed.
.................[sgd].............................
Professor T. Sourdin
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – applicant has an impairment rating of 20 points under the impairment tables – whether the Applicant has a “continuing inability to work” – ability to work – capacity to be re-trained - decision under review is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – section 37
Social Security Act 1991 – section 94 and schedule 1B
Social Security (Administration) Act 1999 – schedule 2
CASELAW
Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
REASONS FOR DECISION
2 October 2007 Professor T. Sourdin, Member Background
1. Mr Abdul Basit (“the Applicant”) has a number of medical conditions. He has a painful lower back condition with a disc tear with sciatica, as well as diabetes, hypertension, nocturia, anxiety and depression. The Secretary, Department of Employment and Workplace Relations (“the Secretary”) agrees that he has a disability that can be rated as a 20 point impairment under Schedule 1B of the Social Security Act 1991 (Cth) (“the Act”) and that Mr Basit satisfies sections 94(1)(a) and 94(1)(b) of the Act. However, the Secretary does not agree that Mr Basit has a continuing inability to work (as required by section 94(1)(c) of the Act). In order for Mr Basit to receive a disability support pension (“DSP”), he must show that his condition rates 20 points or more under the Impairment Tables, and that he also has a continuing inability to work, as defined by section 94(2) of the Act, during the relevant time period.
2. Mr Basit lodged a claim for DSP (T3) on 24 February 2006. On 24 March 2006, Centrelink rejected Mr Basit’s claim for DSP, deciding that whilst his lower back condition rated 20 points under Impairment Table 5.2, he did not have a continuing inability to work. On 4 April 2006, an Authorised Review Officer (“ARO”) affirmed that decision, which was in turn affirmed by the Social Security Appeals Tribunal (“SSAT”) on 7 June 2006. Mr Basit has applied to the Administrative Appeals Tribunal (“the Tribunal”) to review the decision.
Previous Application
3. Mr Basit previously lodged an application with Centrelink for DSP (“previous application”) on 1 September 2005, which was rejected. That decision was affirmed by an ARO on 3 November 2005 and the SSAT on 18 January 2006. As in the current application, the SSAT found that Mr Basit had an impairment rating of 20 points under Table 5.2, but concluded that he did not have a continuing inability to work (T18). This decision was not, however, the subject of an application to this Tribunal. Therefore, the AAT is only dealing with the claim lodged by Mr Basit on 24 February 2006 (“the current application”). Mr Basit’s current application was heard on two occasions. The matter was first heard on 4 May 2007, but finished prematurely as Mr Basit had to leave the hearing early to return home and assist his wife. On 24 May 2007, the matter was re-listed for hearing. At the hearing, Mr Basit indicated that he wished to have his application dealt with, but would not stay on the telephone as he did not feel he could cope with hearing the medical evidence that was presented by the Secretary. As a result of this decision, a transcript of evidence was sent to Mr Basit following the close of the hearing, and he was given an opportunity to make further submissions and/or provide further evidence. However, he declined to lodge any further material.
Material before the tribunal
4. In addition to the three bundles of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (Exhibits R1, R2 and R3), the following documents were admitted into evidence:
·Curriculum Vitae of Dr Michael Gliksman (Exhibit R4);
·Pamphlet in relation to “Active Employment” (Exhibit R5); and
·Letter from Mr Basit received by the Tribunal on 23 June 2006 (Exhibit A1).
LEGISLATION
5. At the time the decision was made to reject Mr Basit’s application for the DSP, the requirements in section 94 of the Act were as follows:
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(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely 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.
6. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (“the Administration Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I have to consider if Mr Basit has a continuing inability to work, and was therefore entitled to receive the DSP, between 23 February 2006 and 24 May 2006.
Issue For Determination
7. The central issue in this matter is whether Mr Basit had a continuing inability to work as defined by the Act, commencing in the period 23 February 2006 to 24 May 2006.
8. This requires that I consider whether Mr Basit is able to work, or be retrained to work over a 2 year period so that he can work (at some stage) for at least 30 hours per week in the two years from 24 May 2006.
9. To qualify for DSP, the applicant needs to meet the criteria set out in section 94 of the Act; that is:
·he must have a physical, intellectual or psychiatric impairment; and
·his impairment must have been 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work within the meaning of section 94(2).
10. The Secretary concedes that Mr Basit has a physical impairment, and that the appropriate impairment rating for his impairment is 20 points applying Table 5.2.
Evidence of the Applicant
11. Mr Basit gave evidence at the hearing, and talked for some time about his incapacity and circumstances. On the second hearing date, he gave evidence by telephone, as he indicated that he had difficulty standing, walking and sitting, and would prefer to give evidence in this manner.
12. Mr Basit indicated that he was born on 12 April 1968, and that he is 39 years old. He said that he had arrived as a refugee from Afghanistan in 1999, and that he had only worked for limited periods in Australia. He indicated that although he had completed a Bachelor of Pharmacy in Afghanistan, he did not receive a transcript or degree, and had been told that his experience in pharmacy would not be recognised in Australia as the work of a pharmacist is very different in Australia. Mr Basit indicated that there were many differences between the role of a pharmacist in Afghanistan and Australia, with one of the primary differences being that a pharmacist in Afghanistan does not mix medicines.
13. Mr Basit also completed a sociology course in India, but he indicated in evidence that this was not a degree. Since arriving in Australia he had commenced, but not completed, certificate courses. He indicated that although he could speak a number of languages (including Persian, Dhuri, Pashto and Ordo), his command of written English was poor. He indicated that he had twice failed to pass the National Accreditation Authority for Translators and Interpreters (NAATI) exams to become an interpreter.
14. Mr Basit says that his back was injured in 2004 when he lifted something heavy, whilst working as a property officer. He received workers’ compensation payments for a short period. Since 2004, Mr Basit said that his back pain had worsened, and he now suffers from chronic lower back pain. It is not in dispute that he suffers from this condition.
15. Mr Basit indicated that he is married with two young children (aged one and two years). His back injury means that he cannot lift or change the children, and has difficulty walking, sitting, standing, and going up and down stairs. Most days he might take a short walk, but will spend most of the day lying down. He indicated that his back pain radiated into his legs, and that the pain was severe if he sat for more than 15 minutes. If he continued sitting, he said that the, “pain is so severe, I cannot focus or concentrate.”
16. Mr Basit said that he could not afford to have an operation on his back, and that even if he did have an operation, there was no guarantee that his health would improve. He was also worried that his condition may worsen if he was required to work, particularly given that when he had been involved in the “work for the dole” program (which only involved short working hours), his back condition had worsened.
17. Mr Basit said that he was interested in working as an interpreter; however, his English was not at a standard that would enable him to take the tests. He also indicated that he could not sit for the periods required to do translation work, and that his back pain bothered him so much, he could not focus.
18. Mr Basit said that he took the following medication – Diaformin (1000mg x 3), Avapro Plus (twice a day), over the counter medication for his prostate condition and Panamax (six to eight tablets per day). If the pain was particularly bad, or he had to attend an appointment, he took Panadeine Forte. He did not take medication for anxiety or depression.
Findings of the Tribunal
impairment ratings
19. Before an impairment rating can be assigned under the Impairment Tables, the condition must be considered to be fully documented, diagnosed, investigated, treated and stabilised: Introduction to the Impairment Tables in Schedule 1B of the Act. A condition will be considered fully stabilised if it is unlikely that there will be any significant functional improvement within the next two years. In order to assess whether a condition is fully diagnosed, treated and stabilised, I must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future; and
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
20. The condition must also be considered to be permanent. A condition is considered permanent if, after being diagnosed, treated and stabilised, it is more likely than not that it will persist into the foreseeable future.
21. The Respondent accepts that at the relevant date, Mr Basit had an impairment, that the condition should be regarded as permanent, and that it should be assigned a rating of 20 points under Table 5.2 of the Impairment Tables. I agree.
Ability to work
22. At the time that Mr Basit’s claim was made, section 94(2) provided that a person was considered to have a continuing inability to work if:
(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.
23. Work is defined by section 94(5) of the Act as work of at least 30 hours per week, and that exists in Australia, even if not locally accessible by the person.
24. As stated previously, the relevant timeframe that the Tribunal must consider is the thirteen week period from 24 February 2006 (when Mr Basit’s application was lodged). However, the Tribunal also has before it medical material that only became available well after the application was lodged. In particular, the Tribunal has a report of Dr John O’Rourke, dated 24 August 2006 (T40) that reports on a medical resonance imaging (MRI) scan undertaken on that day. One question that the Tribunal must consider is in what capacity this MRI scan, and the report that comments upon it (that were not available to either the original decision makers or to the SSAT) should be considered? In my view, this is a relevant question, as the MRI report indicated (amongst other findings) that Mr Basit has a left paracental tear at L4/5 “with a moderate diffuse disc bulge eccentric to the left.”
25. In Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502, the Tribunal considered whether subsequent events had some bearing on a decision about the likelihood of a return to work at the date of application. The Tribunal stated at paragraphs 47 and 48 that:
The Tribunal, in considering the longitudinal clinical history of the Applicant both prior to, and during the operative period, is drawn towards the clinical opinion of Dr Manners, in that it would appear to the Tribunal that he has weighed the various clinical issues at the time in a manner which gave the necessary weight to the nature of the significant clinical events that had occurred in the Applicant's abdominal condition prior to the operative period. That his clinical opinion was born out by subsequent events is a matter which the Tribunal is allowed to consider in so far as it assists the Tribunal in achieving a greater understanding of the clinical condition during the operative period.
As a consequence of the Tribunal's acceptance of Dr Manners' opinion in part and further because of the Tribunal's particular consideration of the Applicant's longitudinal clinical history of the abdominal condition prior to and during the operative period, and the clinical history after the operative period in so far as it permits a better understanding of the chronicity of the Applicant's abdominal condition during the operative period, the Tribunal finds that the Applicant was not fit to work in any capacity for two years from the time the claim was lodged in October 1997.
26. Here, the Tribunal accepts that this material, and examinations that were undertaken after the operative period, are relevant in exploring the question about the impact of Mr Basit’s impairment within the relevant time frame.
27. As Mr Basit applied for DSP on 24 February 2006, the Tribunal must consider not only his capacity to work as defined by section 94(5) of the Act - that is, his capacity to work at least 30 hours per week, at the date of application, and during the following two years - but must also consider the matters raised under section 94 (2) that relate to his capacity to be retrained. I will turn firstly to the test outlined in section 94(2)(a) relating to work capacity, before referring in more detail to the matters outlined in section 94(2)(b) relating to retraining and work potential.
Section 94(2)(a)
28. The Doctors who gave evidence at the hearing commented mostly upon Mr Basit’s capacity to undertake work. Mr Basit’s treating Doctor, Dr Al-Horani, gave evidence by telephone. The following excerpts are a direct transcript of what he said:
He [Mr Basit] has disc tear with sciatica. This has been confirmed by MRI scan. He has L4-L5 slipped paracentral annular tear with moderate diffuse disc bulge eccentric to the left and it’s combined with congenitally short pedicles and there is some left L5 nerve root impingement..
He also been diagnosed with spondylolisthesis, L5, and he is diabetic. He has diabetes mellitus. He has also had a urinary complaint which he was seen by a urologist. He is under a few specialists, Dr Andre Lalak, this is a urologist, he is under care of a cardiologist, Dr Vijay Solanki in Baulkham Hills. He is also seeing orthopaedic surgeon Dr Robert Elliott regarding his back and spine condition. He has also hypertension. He is on anti-hypertensive medication and for diabetes medications or high blood pressure medications.
The main condition I think he is complaining the back problem is affecting him more. The diabetes is we can say good control, good to fair. ..... control, good to fair control. Because of his back condition it’s indirectly affecting his diabetes because affecting his weight and he can’t exercise with it so he is like getting in a vicious circle with it and he has chronic urinary complaint for which also he was seen by a urologist and he had cystoscopy done last year for it.
29. I asked Dr Al-Horani whether Mr Basit’s urinary complaint was well managed, or if it had impacted on his ability to work. He stated in reply that:
It afflicts him, sometimes he gets frequency and we thought it could be diabetes, could be so that is why he had the – but the diabetes, when it’s good he still gets the same problem. So when he gets the frequency in urination I think that affects his ability to work. In addition to his diabetes management, in addition to his back; back complaint I think is the major thing for him.
30. Dr Al-Horani was specifically asked about Mr Basit’s capacity to work, and in particular whether Mr Basit might be able to undertake work with suitable training, notwithstanding his physical limitations. He stated that:
I think so but if you allow let’s say for the breaks with the training so he doesn’t – every day he doesn’t do work if he finds himself likely to do longer hours if he’s allowed to do some break in between to stretch his muscles but maybe I would think also maybe pain management program, put him – or refer him to pain clinic.
31. In addition, I asked the following questions, and Dr Al-Horani responded as follows:
Tribunal:
I just really want to ask you specifically whether you consider that he could do work within that two-year period at that time that you saw him?
Dr Al-Horani:
At that time, look, maybe when the pain is not bad yes, he can because as I told you before his pain fluctuates, like it can be bad some days and not bad so if he is not having enough pain and he’s having some painkillers like paracetamol he might be able to do some training and as you said, the training won’t be like for long hours”.
Tribunal:
So what would you think would be the maximum amount of training he could do per week, for example?
Dr Al-Horani:
Maybe he can do let’s say four hours every other day like 12 hours total a week with breaks in between.
Tribunal:
So 12 hours total per week if he had breaks and he was supported and that would involve him taking painkillers?”
Dr Al-Horani:
That's right.
32. Dr Al-Horani was suggesting that Mr Basit still had some capacity to work, and could also be retrained. However, his evidence was essentially that Mr Basit would need to be supported, and that the amount that he could do would be greatly affected by his disability. While Dr Al-Horani did not consider that the impairment would prevent Mr Basit from undertaking training, he considered that such training would require Mr Basit to be “supported”, and that the training would need to be limited in terms of actual attendance.
33. The Secretary’s medical legal specialists did not agree with this view. Dr Michael Gliksman saw Mr Basit on 19 September 2006, and gave evidence at the hearing. Dr Gliksman categorised Mr Basit’s condition as “mild”. In evidence, he said that the factors leading him to this conclusion were a combination of the history he had obtained and the results of investigations seen. However, he most particularly relied upon:
The results of the clinical examination which excluded a neurological component and that suggested that the pathology observed in the investigations in the spine while capable of producing some symptoms of pain they were not severe enough to produce actual neurological deficit. The rationale then being that the level of pain likely to be produced by bone changes and disc changes that were not severe enough to produce neurological findings would also produce a relatively mild level of pain and it makes pathophysiological sense.
34. Dr Gliksman addressed the issue of whether Mr Basit’s impairment prevented him from working for at least 30 hours per week within the next two years. On his evidence, he considered that Mr Basit was capable of working sedentary duties of more than 30 hours per week. In response to my question about what sort of jobs Mr Basit would be fit for, Dr Gliksman replied that:
I extended the benefit of doubt in his direction and to that end I suggested that those which are preferable office based, those which would not require repetitive or significant bending or lifting and particularly no below-knee height lifting or shoulder-height lifting should protect him from the condition, the mild pain and the relatively mild pathology that is there. It should stop the work from making that worse.
35. Dr Gliksman also said that from a medical point of view, Mr Basit was capable of being retrained. Further, during his medical examination, Mr Basit did not show any signs of having a poor memory or poor concentration ability. He stated in his evidence that Mr Basit appeared to, “give me a good history, one which was reasonably detailed – no complaint was made of poor memory.” Dr Gliksman also confirmed that all of his evidence relating to Mr Basit’s medical condition applied to the period 23 February 2006 to 24 May 2006; that is, the relevant 13 week period.
36. Dr Gliksman suggested in evidence that Mr Basit’s history and approach to the clinical examination was contaminated by functional overlay. He noted that there was no evidence of muscle wasting, and that his symptoms were inconsistent with the MRI report and other clinical examination findings. However, Mr Basit and Dr Gliksman’s account of the examination undertaken were inconsistent. Mr Basit reported in evidence that the examination was conducted over a short period of time. Dr Gliksman indicated that the examination would have taken ”about an hour.” In my view, the history that Dr Gliksman took was brief. In evidence, Dr Gliksman responded to my questions as follows:
Tribunal:
In terms of his work and his other history, you have got a fairly brief work history that you have noted down there. Did he indicate what work he had done prior to arriving in Australia?
Dr Gliksman:
I can’t say with certainty. I may have recorded such on my handwritten notes but they are no longer in my possession. I didn’t record it here.
Tribunal:
Do you recall what his nationality was?
Dr Gliksman:
No, I don’t.
Tribunal:
Did he tell you about his refugee status?
Dr Gliksman:
I don’t recall that. I would have included that.
Tribunal:
And did you know that he came from Afghanistan as well?
Dr Gliksman:
No, I didn’t. That doesn’t impinge upon my memory.
Tribunal:
Can I check how long your examination of Mr Basit was?
Dr Gliksman:
The history taking would have been in excess of 30 minutes and the physical examination of that nature takes approximately the same time.
37. The Secretary also relied upon the evidence of two psychologists – Ms Jah Jah and Ms Yaako-Khanania who conducted a job capacity assessment (“JCA’) in respect of Mr Basit. Both considered that Mr Basit could use the services of the Disability Employment Network (“DEN”) to assist in retraining, and finding a job once training was complete. According to Ms Yaako-Khanania, this organisation could potentially:
Assist him with getting ready for work with either re-training and re-skilling. They also, as I said, offer on-the-job support. They can assist him with preparing his resume, job applications, looking for appropriate work that will not exacerbate any of his medical symptoms that he’s reported. They also provide career advice and vocational guidance and he would work with a case manager in achieving his goals.
38. The JCA reports suggested that Mr Basit could, with training, be supported in light administrative and clerical duties. Additionally, in their view his English skills were “good”. This appeared to be a major conclusion drawn by the psychologists, with little testing. Although Mr Basit’s verbal English skills may be “good”, his written English skills may not be adequate for an office environment. The Tribunal heard little evidence on this matter – most who gave evidence assumed that because Mr Basit’s oral English skills were of a high order, his written skills were of a similar standard. Mr Basit, in contrast, gave evidence that his poor written English skills had resulted in his failing to obtain NAATI accreditation. At the hearing, Mr Basit appeared as an uncomfortable, intelligent man who had a good command of spoken English. However, in relation to his written English, there was little evidence.
39. Whilst the psychologists administered a Test of Memory Malingering (“TOMM”), they do not appear to have tested Mr Basit’s understanding or capacity in respect of written English. In their reports, it was suggested that Mr Basit was intentionally answering the memory tests incorrectly so as to gain an advantage. On this point, they opined that a person would get 50% of questions “right” in the TOMM test if they guessed, and that because Mr Basit received a lower percentage of questions ”right”, he must be deliberately falsifying his answers.
40. Taking into account these various reports, I am satisfied that Mr Basit satisfies section 94(2)(a). That is, in my view, Mr Basit is currently not able to work and is unable to work within the relevant time period. In this regard, I prefer the conclusions of Dr Al-Horani about Mr Basit’s incapacity and current inability to work, to that of Dr Gliksman. This is because Dr Al-Horani has seen Mr Basit on many occasions for treatment and overall assessment, and it is clear from the evidence that Dr Al-Horani had taken a much more comprehensive history from Mr Basit.
section 94(2)(b)
41. Therefore, the central question in this matter is whether Mr Basit’s conditions would prevent him from undertaking training in the next two years, and whether such training would equip him to do work of 30 hours or more a week. In reaching my decision, I took into account the oral and written evidence and submissions made at the hearing, as well as leading cases in this area. Both Work Capacity Assessors (“WCA”) have opined that Mr Basit is capable of working 30 hours or more a week with retraining and support. Dr Gliksman considers that he could undertake such work now. Dr Al-Horani considers, however, that he could attend limited and supported training, and that his condition “might” improve if he was able to have surgery. Mr Basit seemed to agree with Dr Al-Horani.
42. The Tribunal agrees with Dr Al-Horani. Mr Basit can undertake retraining – although this may be limited to far less than 30 hours per week. However, will such retraining mean that he would be equipped to do work of 30 hours or more a week?
43. In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at paragraphs 452 to 453, Drummond J stated in relation to a continuing inability to work that:
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)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 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. If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask:
As to s94(2)(b)(ii) If there is available training of a kind capable of fitting the claimant within a 2‑year period for work which he cannot now perform for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?
…
In my opinion, the applicant has failed to demonstrate any error of law on the part of the tribunal in taking into account Mr Pusnjak's actual work skills and experience and capacity to be retrained for any work that he could thereafter do when it determined that Mr Pusnjak had "a continuing inability to work because of an impairment" within the meaning of that expression in s 94(2)….
44. The Tribunal takes into account the requirements of sections 94(3), (4) and (5) of the Act, and notes that in relation to section 94(4), Drummond J stated at paragraphs 453 and 454 that:
Section 94(4) permits, but does not oblige the secretary to take into account the likely availability of work for a particular claimant in his locally accessible labour market provided he is at least 55 years old at the time a decision has to be made. But s 94(4) does not make the age of a claimant, be it greater or less than 55 years, irrelevant in determining whether the person has a continuing inability to work. Section 94(4) directs the decision-maker to the availability of work in the whole Australian labour market and prevents him from having regard to the availability of work for the pension claimant in his locally accessible labour market unless the claimant is 55 or older. But subject only to that restriction, a claimant's age, whatever it be, is a consideration which the decision-maker can, I think, properly take into account in determining whether the particular claimant meets the various requirements of s 94(2) and thus has a continuing inability to work, ie, whether a class or classes of work which the decision-maker has identified as in fact available somewhere in Australia is work which the particular claimant has the existing capacity to perform and (if appropriate) whether the claimant can or cannot be retrained as envisaged by s 94(2)(b).
45. In this matter, Mr Basit is only 39 years of age. Although he has an impairment that causes him severe pain and restricts his movement, there was evidence that Mr Basit could be retrained provided that such retraining offered a supportive environment and took into account his impairment. The claimant’s age is relevant in this regard. Mr Basit is still relatively young. He appears to be an intelligent person who is motivated and wishes to better himself. I accept the evidence from the DEN providers that re-training is possible for persons, such as Mr Basit, who have limitations because of severe back pain, and that employment in other positions might be feasible. Whilst I do not accept some of the evidence that was given by the DEN providers about current incapacity, I do accept the evidence given about retraining options that are available to a person with a disability such as Mr Basit.
46. Such retraining would need to take into account Mr Basit’s English capacity, as well as his impairment. I accept Dr Al-Horani’s evidence that Mr Basit would be able to attend appropriate educational or vocational training designed to retrain him and assist him to return to the workforce, provided that such retraining was limited and supported him in terms of his impairment. For these reasons, I find that the impairment suffered by the Applicant is not of itself sufficient to prevent him from undertaking educational or vocational or on-the-job training during the next two years, as required by section 94(2)(b)(i) of the Act.
47. The second question is whether the training is unlikely, because of the impairment, to enable Mr Basit to do any work within the next two years: section 94(2)(b)(ii) of the Act. Section 94(2) defines the meaning of the term “continuing inability to work” and section 94(2)(b) provides that the impairment “of itself” must prevent the person from undertaking educational or vocational training or on the job training for the next two years or, even if such training was undertaken, that the person is unlikely to be able to do any work within the next two years (emphasis added). Section 94(3) imposes a further limitation whereby the availability of vocational training, or the availability of work in a person’s local area, is not to be taken into account.
48. Following training, could Mr Basit obtain work within the two years from the date of the application being lodged? Here, the evidence of the JCA psychologists is relevant, as is Mr Basit’s age and other factors. He is motivated, and has previously attended courses within Australia. I am satisfied that following retraining, Mr Basit would have a capacity for work, thereby taking him outside the terms of section 94(2)(b) of the Act in respect of the time period being considered. However, I also note that Mr Basit has also indicated that his condition has deteriorated since his application was originally lodged. Mr Basit had, at the time of the hearing, lodged another application that was not considered in any way in these proceedings.
49. Consequently, the Tribunal finds that Mr Basit has not demonstrated a “continuing inability to work” as defined in terms of retraining, and does therefore not satisfy section 94(2) of the Act in respect of this application. Consequently, at the relevant time, Mr Basit did not qualify for DSP and the original decision was correct.
DECISION
The Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Professor T. Sourdin, Member
Signed: [Skye Owen]
AssociateDate(s) of Hearing 4 May 2007 and 24 May 2007
Date of Decision 2 October 2007
Appearance for Applicant Self-representedAdvocate for the Respondent Mr J. Larcombe and Ms P. Lee of Centrelink, Legal Services
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