Bishop and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 422

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 422

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6019

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAYMOND BISHOP

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date22 May 2008

PlaceSydney

Decision The decision under review is affirmed.

………………[sgd]…………………

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical, intellectual or psychiatric impairment – entitlement to disability support pension – impairment rating of 20 points or more under the Impairment Tables – condition treated and stabilized – continuing inability to work - entitlement to special benefit – decision under review affirmed.

LEGISLATION

Social Security Act 1991 – sections 94(1), 729(2)(e), Schedule 1B

CASE LAW

Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938

Secretary Department of Social Security v Secaraand Others (1998) 89 FCR 151

REASONS FOR DECISION

22 May 2008 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.  Mr Bishop seeks review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 16 November 2007, which affirmed the Secretary’s decision to cancel Mr Bishop’s disability support pension (“DSP”).

2. The decision of the SSAT was made on the basis that Mr Bishop no longer qualified for DSP. The requirements for qualification for DSP are set out in section 94 of the Social Security Act 1991 (“the Act”) and are as follows:

94 Qualification for disability support pension

(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

…

BACKGROUND

3.      Mr Bishop had been on Newstart Allowance since at least 1997. On 27 August 2003, Mr Bishop was assessed by a Centrelink psychologist and as a result he was granted DSP from 11 August 2003.

4.      Mr Bishop’s DSP was the subject of a standard review and on 11 July 2007 a treating doctor’s report was obtained from Dr Poovaiah, who wrote that Mr Bishop has no medical disabilities, but just wished to look after his son who had mental health problems. On 17 July 2007 Mr Bishop provided a medical review form in which, when asked to list any disabilities or illnesses, he wrote “No medical disabilities, I require housing to help my wife and son Benjimen (sic)”.

5.      On 24 July 2007, Centrelink cancelled Mr Bishop’s DSP. That decision was affirmed on internal review and by the SSAT.

ISSUE BEFORE THE TRIBUNAL

6.  The issues to be determined with relation to this matter are:

a) Does Mr Bishop have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b)        Does he have a continuing inability to work because of the impairment because:

·the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and either

·the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or

·such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

EVIDENCE

7.  In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered by Mr Bishop. Not all of the voluminous material he provided was relevant.

8.  Mr Bishop said he just wants to be provided with housing to help his wife and son. He thought Centrelink should provide this and seek reimbursement from the Law Society. Mr Bishop had made a complaint against the firm of solicitors that had appeared for him in apprehended violence order (“AVO”) proceedings brought by his wife in 1995. He had complained to the Legal Services Commissioner about the firm, without success. The solicitors, he alleged, were responsible for him being “kicked out” of his house which had resulted in him being homeless and unable to provide accommodation for his son. His son had behavioural problems when young, and, from the papers, appears to have been a heroin addict for some years. He is now aged 23, but Mr Bishop said he has not been in contact with him for four years and does not know where he might presently be living. Mr Bishop also did not know, if he had other housing, if his son would actually move in. Mr Bishop thought he could provide his son with some guidance and support. He had heard that his son is violent towards his mother, Mr Bishop’s estranged wife, and Mr Bishop had wanted to help her by providing accommodation for the son so that he did not have to live with his mother. Mr Bishop said he had not spoken to his wife since 1995.

9.  Mr Bishop told me that when he was on Newstart Allowance he was obliged to “tell lies” about looking for work. He would not look for work because he needed to care for his wife and son. He said that Centrelink decided to put him on DSP, and told him he would no longer have to tell lies. He told them at the time he had no medical problems, but they made him see a psychologist.

10.     Mr Bishop said that Centrelink had last year told him that he needed to get a doctor’s report about whether he had a disability. He went to see Dr Poovaiah, his GP. Mr Bishop said that he rarely goes to the doctor but had seen Dr Poovaiah a few times in respect of minor matters. He regards himself as being in good health. He had a good talk with Dr Poovaiah, telling him he just wanted housing to help his wife and son.

11.     He told me that he presently has housing – a small one bedroom flat at East Hills. It is quite comfortable but he regards it as unsuitable for his son, because it is so small. He also thinks the other occupants of the block would make it unsuitable.

12.     Mr Bishop told me that he is presently licensed to drive bobcats, backhoes, semi-trailers and some other vehicles. He is also a licensed drainer. He fills in his day by “waiting” for housing to be provided to help his wife and son. While waiting he might read the papers or go fishing.

13.     When I pointed out that if his DSP is cancelled he would be likely to have to go back onto Newstart Allowance he said he would still not look for work. He said though that he would work, providing the “solicitors responsible” were “struck out”. In his view, the government is “hell-bent”, on causing social problems and Campbelltown Legal Aid is encouraging too many women to seek AVOs.

14.     He said he had not seen a social worker in recent times, because social workers create social problems. He said if Centrelink required him to see an on–staff psychologist, as it had done previously, he would not attend. He said he does not have a psychological problem.

15.     In summary, he said the he believed the government should make special category for him and recover all monies it had paid to him since 1997 from the Law Society because of the solicitors who had acted on his behalf in the AVO proceedings brought by his wife in 1995.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

16.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

17.     For a person to qualify for a disability support pension they must have a physical, intellectual or psychiatric impairment.

18.     A Centrelink on-staff psychologist had, in 2003, considered Mr Bishop to be suffering a psychological personality disorder with thought disorder. Centrelink had been prepared to grant him the DSP on the basis of that report.

19.     More recently, however, the evidence of Dr Poovaiah, Mr Bishop’s GP, set out in his treating doctor’s report is that Mr Bishop “has no medical disabilities”. Mr Bishop himself, considers that he is in good health.

20.     Mr Bishop did not see his demands about housing as unrealistic.

21.     I pointed out to Mr Bishop that cessation of his DSP would likely mean he would be placed on Newstart Allowance again and, as a result, have to look for jobs. From what he said, although this is not a matter relevant to my consideration, he was unlikely to comply with that requirement.

22.     I considered if it would be of assistance to have Mr Bishop reviewed by another on-staff psychologist, but in view of Mr Bishop’s stated refusal to attend, and his attitude towards social workers who might have been able to make suggestions which could assist, I did not think adjourning for that purpose would be of help.

23.     The Introduction to the Impairment Tables notes that only a condition that has been fully diagnosed is capable of being assigned an impairment rating under the Impairment Tables.

24.     Mr Bishop does not think he has any medical disability, and neither does his GP. I have some reservations myself though, given that he was previously thought to be suffering a psychological personality disorder with thought disorder and having regard to his fixation about accommodation. It is not for me to make a diagnosis of a condition, in the absence of medical evidence.

25. I must therefore find that Mr Bishop does not have a physical, intellectual or psychiatric impairment, therefore, he cannot satisfy section 94 (1) (a) of the Act.

26.     Even if there were evidence that he does have a physical, intellectual or psychiatric impairment, it is not one that has been treated and stabilized: Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938.

27.     Mr Bishop therefore does not satisfy the first test for DSP.

28.     Even if Mr Bishop had a permanent impairment rated at 20 points or more under the Impairment Tables, I also do not think it could be said he had a continuing inability to work. There was no evidence whatsoever that he could not work. In fact there was evidence to the contrary, namely that he holds various vocational licences but chose not to work while waiting for alternative accommodation.

29. I note that Mr Bishop was not really seeking DSP but a “special category” of pension for him. I considered if, in the circumstances, he might be eligible for a “special benefit” under section 729(2)(e) of the Act. That benefit, however, is aptly described as a “payment of last resort under the Act made to people who are otherwise ineligible for any other pension”, Secretary Department of Social Security v Secaraand Others (1998) 89 FCR 151 at 153. I was assured by the Centrelink advocate that Mr Bishop is eligible for Newstart Allowance, and providing he complies with the job-seeking and other requirements, that pension will be payable. He is not therefore entitled to a “special benefit”.

30.     While I accept that Mr Bishop feels he has been let down by the legal system about both the AVO and his complaint against the solicitors who acted on his behalf, these are not matters in respect of which the Tribunal has any jurisdiction.

DECISION

31.     The decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed: ....................[sgd]..................................
  Associate

Date of Hearing  24 April 2008      

Date of Decision  22 May 2008
Appearance for Applicant         Self-represented
Advocate for the Respondent  Mr Ken Bullock of Centrelink Legal Services