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

[2012] AATA 35

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL       )

)  No 2011/2832

GENERAL ADMINISTRATIVE DIVISION		)
Re		TAMMY BOWDEN

Applicant

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

Respondent

DECISION

Tribunal Mr P Wulf, Member

Date24 January 2012  

PlaceBrisbane

Decision The decision under review is affirmed.

[Sgd]

Member         

CATCHWORDS

SOCIAL SECURITY – Benefits and allowances –  – Claim for disability support pension – No permanent medical impairment that would result in 20 impairment points – Ability to work following treatment – Insufficient reasons for not working - Decision affirmed

Social Security Act 1991 (Cth) s 94, Schedule 1B

Administrative Appeals Tribunal Act 1974 (Cth) s 37

REASONS FOR DECISION

24 January 2012 Mr P Wulf, Member

1.      Ms Tammy Bowden (“the applicant”)[1] made a claim for Disability Support Pension (“DSP”) on 12 January 2011 with Centrelink.[2] On 28 February 2011, Centrelink made a decision not to pay the applicant DSP.[3] On 5 May 2011, the decision not to pay the applicant DSP was reviewed by an Authorised Review Officer (“ARO”) who affirmed the decision to not pay the applicant DSP.[4] The applicant then sought review by the Social Security Appeals Tribunal (“SSAT”) and, on 28 June 2011, also found that the applicant did not qualify for DSP.[5] On 12 July 2011, the applicant applied to this Tribunal for a review of the decision.[6]

ISSUES

2.The relevant issues for the Tribunal to consider in this matter are:

(a)Did the applicant suffer from a physical, intellectual or psychiatric impairment as at the date of her DSP application (12 January 2011) or within 13 weeks after that time (13 April 2011), which attracted 20 or more points under Schedule 1B – Tables for the assessment of work-related impairment for DSP (‘the Impairment Tables’) – of the Social Security Act 1991 (Cth) (‘the Act’), that was a fully documented and diagnosed condition which had been investigated, treated and stabilised[7] and which was “permanent” (lasting for more than two years)[8]; and if so

(b)Does the applicant have a continuing inability to work?

[1] Exhibit 1, T-Document 1/1 – 2.

[2] Exhibit 1, T13/68-69.

[3] Exhibit 1, T8/45-46.

[4] Exhibit 1, T10/49-56.

[5] Exhibit 1, T2/3 –8.

[6] Exhibit 1, T1/1 –2.

[7] Social Security Act 1991 (Cth), Schedule 1B (Introduction, Paragraph 4).

[8] Social Security Act 1991 (Cth), Schedule 1B (Introduction, Paragraph 5).

LEGISLATIVE SCHEME

3. Section 94 of the Act provides as follows:

94Qualification 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

(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 disability support pension; 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

…

(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.

(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)…

"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.

THE EVIDENCE

4.      The evidence before the Tribunal was comprised of:

a) The “T-Documents” (Exhibit 1 (T1-T14/1-88) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“Respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

b)    The respondent’s Statement of Facts and Contentions dated 22 November 2011 (Exhibit 2); and

c)    Job Capacity Assessment Report prepared on 17 August 2010 (Exhibit 3).

ANALYSIS

5.      The applicant lives in Beenleigh with her two daughters. She is divorced from her ex-husband. The applicant has a Year 10 education, commenced a hotel management course which she did not complete and has never undertaken paid employment.

6. To be eligible for DSP under the Act, the claimant must have a physical, intellectual or psychiatric impairment at as the date of her DSP application (12 January 2011) or within 13 weeks after that time (13 April 2011). The impairment must then attract 20 or more points under the Impairment Tables and, the condition, must have been fully documented and diagnosed, be permanent and been investigated, treated and stabilised. There must also be a continuing inability to work.

7.      In the applicant’s DSP application of 12 January 2011, she lists her medical conditions as “arthrites [sic] left ankle, both knees give out at times, left hand week due to cut artery, back pain, depression, can’t where anything on or around head without throbbing pain”.[9]  The applicant supported her medical condition with a report from Dr Dreves dated 1 February 2011.[10] The report lists the applicant’s conditions as “chronic depression” and “left ankle arthritis, traumatic”. The treatment for the depression is 30mg daily of Cymbalta (although there appears to be varying dosages taken and/or not taken at all) and future treatment including counselling. Dr Dreves also indicated that the applicant was rarely complaint with her medication and recommended treatment. With respect to the ankle, Dr Dreves indicated that there was no future treatment planned.

[9]  Exhibit 1, T5/26.

[10] Exhibit 1, T6/28-35.

8. The Tribunal agrees that the applicant has issues with her left ankle that are fully diagnosed, treated and stabilised; however the aspects of her depression, while they might be fully diagnosed, are clearly not treated and stabilised as the applicant is still experimenting with the right medication level. Therefore, based on this, the applicant does not have a physical, intellectual or psychiatric impairment at as the date of her DSP application, or within the 13 week period from that date, that attracts 20 or more points under the Impairment Tables. The applicant does, however, attract 10 points for her ankle as it is fully “diagnosed, treated and stabilised” and is considered “permanent”, as is required by the Act.

9.      Notwithstanding, it is appropriate to consider the applicant’s ability to undertake work. As part of the application process for DSP, the applicant was assessed twice by Registered Occupational Therapists who prepared Job Capacity Assessment Reports for the respondent.[11] The second assessment report, undertaken by Ms Baker on 3 February 2011, agreed with what the Tribunal has found above. The first assessment report, undertaken by L Karger on 1 July 2010, indicated that the depression was temporary only.  It also indicated that the applicant was commencing counselling, although, from the applicant’s evidence, this has not occurred.

[11] Exhibit 1, T7/36-44 and Exhibit 3.

10.     The two assessors considered the most appropriate course of action to alleviate the applicant of her conditions and allow her the ability to work was for her to take medication and seek the services of a counsellor. The job assessors considered that, based on the conditions at the time, the applicant had an ability to work 30+ hours per week.

11.     The applicant, during her oral evidence, appeared to suggest that despite all her conditions, and others that she would not go into, there was no medical evidence that could show her real issues including her asthma attacks and other supposed conditions. The applicant also suggested that it was not possible for her to see a counsellor as she could not go to the Gold Coast. The Tribunal does not accept this as a reasonable reason for not seeing a counsellor.

12.     The applicant indicated that she had trouble walking in that she had pain in her ankle and was short of breath when walking long distances. Therefore, she suggested, she could not undertake work. As an example, she described her morning routine of walking her children to school, which took her approximately 25 minutes. Under cross examination, the respondent’s representative, based on her knowledge of the Beenleigh area, suggested that the time from the applicant’s place to the school would take a non-disabled person approximately 20 minutes. In response, the applicant agreed that she was able to walk the distance although in some pain.

13.     When asked about her preference for work, the applicant indicated that the only work she could do was with animals as she was not comfortable communicating with humans. However, when pressed by both the respondent and the Tribunal, it was clear the applicant had no work aspirations and she could actually not say what she would do with animals. When pressed further, it became apparent that the applicant refused to work as she had to look after her children. Her rationale for this was that the Beenleigh area had numerous paedophiles and other matters that cannot be listed here due to protection of individuals. However, there was no evidence before the Tribunal as to both these matters although the Tribunal notes both in making its decision.

14.     The Tribunal finds this an unsatisfactory conclusion as both her children attend school and, based on this, there appears to be no reason other than the applicant’s own desires why she is unable to work.

DETERMINATION

15.     The Tribunal finds that the applicant does have a permanent impairment of her ankle; however the impairment only gains 10 points in the impairment tables. The applicant’s depression, from the Tribunal’s mind, clearly does not fall within the definition of “permanent” under the Impairment Tables. The Tribunal also finds that the applicant has failed to follow the required treatment for her depression and, therefore, until she does, her depression cannot be considered as “diagnosed, treated and stabilised.” The evidence indicates that, with proper treatment and some change in her attitude, the applicant does not have a continuing inability to work and, indeed, she has the ability to work 30+ hours per week.

16.     The Tribunal affirms the original decision. The applicant is not entitled to receive DSP payments.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Wulf, Member

Signed: ........................[Sgd].....................................................
                Associate

Date/s of Hearing	30 November 2011
Date of Decision	24 January 2012
Applicant	Tammy Bowden, by telephone
Solicitor for the Respondent	Jasmine Forsyth, departmental advocate