Boyd and Secretary, Department of Family and Community Services

[2005] AATA 333

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 333

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/1056

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SANDRA BOYD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date15 April 2005

PlaceMelbourne

Decision

The decision of the Social Security Appeals Tribunal made on 4 August 2004 in so far as it found that the impairment rating of the applicant is 15 points is set aside and in substitution it is decided that by a combination of the impairment criteria within Tables 9 and 12 of the Impairment Tables found within Schedule 1B of the Social Security Act 1991 (“the Act”) the applicant has a rating of 30 points.

It is also decided the applicant does not have a continuing inability to work, s94(1)(c) of the Act is therefore not satisfied and the decision to reject qualification for Disability Support Pension is affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – application for disability support pension – applicant 22 years – significant hearing loss –jaw and dental impairments – loss of vision – 15 impairment points under Table 12 – speech impediment by the hearing loss permits resort to Table 9 – minimum of 20 impairment points – applicant working – employment modified and employer benevolent – no continuing inability to work – decision affirmed

Social Security Act 1991 s94

Re Secretary, Department of Family and Community Services and Bell (1998)

52 ALD 472

Re Warner and Secretary, Department of Social Security (1994) 36 ALD 313

REASONS FOR DECISION

15 April 2005 Mr John Handley, Senior Member           

1.      The applicant applies to review a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 4 August 2004.  The SSAT then decided to affirm a decision previously made by an Authorised Review Officer (“ARO”) of Centrelink to reject a claim made on 27 February 2004 for Disability Support Pension (“DSP”).

2.      The application was heard in Wangaratta on 4 April 2005.  Miss Boyd appeared with her mother, Glenys Boyd and Bronwyn Sleeth, an Advocate with the Regional Information and Advocacy Council Inc. (formerly The Council for the Disabled) in Shepparton.

3.      Miss Boyd is presently 22 years of age having been born on 30 October 1983.  She suffers from a number of profound injuries being loss of hearing, loss of vision, ptosis (drooping eyelids), astigmatism, a speech disorder and a “dental” and “jaw” disorder.

4. Entitlement to DSP is to be found within s94 of the Social Security Act 1991 (“the Act”) which is reproduced in the following terms:

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; 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.

5.      There is no dispute that the applicant suffers from a physical impairment, that she has achieved 16 years and that she is an Australian resident.  The two principle issues in dispute in this application is whether Miss Boyd has an impairment of 20 points or more under the Impairment Tables and whether she has a continuing inability to work.

6. There is no dispute that at the date of claim, Miss Boyd suffered from a bilateral sensorineural hearing loss of 46.2 per cent (T4, page 41). The Impairment Tables are found at Schedule 1B of the Act and under Table 12, a hearing loss of 46.2 per cent gives a rating of 15 impairment points. The respondent submitted at the hearing that the remaining disabilities do not attract any impairment points and accordingly, the applicant does not satisfy the first threshold of qualification for DSP, namely 20 impairment points or more under s94(1)(b) of the Act.

7.      Miss Boyd said that she suffers from a loss of vision but did not know the extent of the loss nor did she provide any medical reports concerning it.  She said that the ptosis causes her to wear modified and smaller contact lenses because her eyes do not open “wide enough” to permit her to use traditional contact lenses.  She has had plastic surgery and it is proposed to have further plastic surgery to “open” her eyes.  She does not wear her contact lenses on a full time basis and attended the hearing without them.  She said that she had been affected by dust on the day prior to the hearing, that her eyes had been weeping and to wear them would have been uncomfortable.  When she wears contact lenses she is able to use a computer, to read fine print and is assisted when lip reading.  Miss Boyd drives a motor car.  In the event that the proposed plastic surgery is successful she will then be able to wear traditional soft contact lenses which will be more comfortable and improve her vision.  It will also reduce the frequency of the affects of an astigmatism which she currently suffers on a monthly basis.  When she suffers from astigmatism, she said it is as if a “white cloud” is before her eyes.

8.      Miss Boyd associated the speech disorder suffered by her as having an association with her hearing loss.  She said that she and most profoundly deaf people suffer from a speech disorder to the extent that they either mispronounce words or speak in a tone that is difficult for other persons to comprehend.  She said that she is frequently required to repeat herself and persons often indicate to her that they find it difficult to understand her oral communication.  She said that on those occasions she feels as if she is a “smaller person” and is conscious that she is different to other persons that she associates with.  Miss Boyd said that she has had difficulty with speech since she was an infant and did have speech therapy when she was a full time school student.  The therapy was provided through the Education Department without fee.  Miss Boyd has been unable to afford the cost of attending upon a speech therapist after she obtained her VCE.

9.      Miss Boyd’s speech is also affected by disorders affecting her jaw and teeth.  She said that as an infant her teeth were crooked and widely spaced.  She has been treated by orthodontists.  Some years ago she was fitted with braces to prevent her teeth “moving” when she ate certain foods.  That treatment was largely unsuccessful but in recent years she has attended another orthodontist who has again applied braces which she will wear for three years.  She said that this also affects her speech.  Her dental disorder is also affected by a disorder affecting her jaw where she is only able to open her mouth by approximately 50 per cent.  This has a profound affect on the food that she is able to consume and her ability to communicate orally.  She suffers from permanent pain in her jaw which she rates on a scale of 4 out of 10.  She suffers intense pain when she brushes her teeth because she is forced to open her mouth to insert a toothbrush thereby precipitating pain which she rates at 9 out of 10.  She said she had increased pain at the hearing because she was talking at a frequency that she would not ordinarily.

10.     In cross-examination, Miss Boyd indicated that if the plastic surgery over her eyes is successful, she will have improved vision.  Surgery is also proposed for her jaw and if successful, she will be able to open her mouth to a greater extent, will have reduced pain and will have some improvement in her speech.

11.     Miss Boyd said that the hearing loss affects her on a daily basis to the extent that she does not hear her alarm clock in the mornings and cannot hear a doorbell when it rings.  She suffers from recurring ear infections which sometimes require her to be absent from work.  She uses hearing aids which require replacement annually and which require replacement of batteries every second day.  She is unable to use a telephone because the nature of her hearing loss exposes her to the intrusion of background noises.  She finds a telephone also to be unsatisfactory because she is unable to lip read and is also unable to hear the person with whom she is attempting to communicate.

12.     With respect to the degree of impairment, it was submitted by the respondent that the conditions suffered by Miss Boyd other than hearing loss, could not be regarded as being “permanent” within the introductory paragraphs of the Impairment Tables, more so when it is proposed that Miss Boyd will undertake surgery.  In those circumstances the conditions principally affecting her eyes and her jaw could not be regarded as having been “treated” and “stabilized” being a precondition to any finding of those conditions being “permanent”.  Subject to delays in the public hospital waiting list it could not in the circumstances be found that those conditions will not involve “significant functional improvement” within the next two years (refer paragraph 5 of the Introductory Chapter).

13.     It was submitted that Table 20 of the Impairment Table did not apply (because the conditions were not permanent) and additionally it was submitted that Table 14 did not apply (being a Table with respect to “Miscellaneous Eye Conditions” in the absence of medical reports specifically giving a diagnosis of the “eye conditions”).

14.     I was concerned however as to the extent of the speech impediment suffered by Miss Boyd and it was noted that Table 9 is specifically concerned with “Communication Function – Receptive and Expressive Language Competency”. 

15.     Whilst Miss Boyd acknowledged that some of her speech impediment is associated with the wearing of braces and the restriction by her jaw injury preventing her fully opening her mouth, her principle difficulty communicating by speech has its origin in her hearing loss.  That is, the impediment to her hearing has caused an impediment in her ability to effectively orally communicate.

16.     Table 9 records that it is to be applied where there is “hearing loss with impaired language processing or expression” and it is to be used in conjunction with Table 12.  The introduction to Table 9 also provides that if a person has hearing loss with “normal language competency” only Table 12 applies. 

17.     I am satisfied, having observed Miss Boyd and having heard her at the hearing, that she does not have “normal language competency” and she in fact does have “impaired language processing or expression”.  It follows that Table 9 should be applied in addition to Table 12.

18.     Under Table 9 a rating of Nil is applicable against the criteria of “satisfactory or only minor difficulties with communication”.  That criteria does not apply because the ability of Miss Boyd to communicate cannot be properly described as “satisfactory or only minor difficulties”.  This is clearly demonstrated by her evidence of people frequently misunderstanding her and asking her to repeat her spoken words. 

19.     The next rating after “Nil” in Table 9 is a rating of 15 impairment points where the applicable criteria is “difficulty with unfamiliar, lengthy or complex verbal situations and unable to adapt or manage interruption but competent communication in favourable settings could work in a wide range of occupations but high public contact and high communication content jobs may be too demanding”.

20.     On what was learnt at the hearing – including the communication difficulties suffered in her current workplace – which I will refer to later – I am satisfied that this criteria is applicable.

21.     For the above reasons I am satisfied that there should be an impairment rating under Table 9 which, in conjunction with Table 12, gives an impairment of 30 impairment points under the Impairment Tables.

22.     Accordingly that part of the SSAT which affirmed the decision with respect to impairment points is set aside.

23.     The remaining issue therefore is whether Miss Boyd has ‘a continuing inability to work.’

24.     Miss Boyd said that she first started work on a part time or casual basis at the age of 14 picking fruit at a local orchard.  When she was in Year 9 at Secondary School, she worked on a casual basis at a supermarket in Mooroopna as a cashier and as a bakery assistant.  She eventually left that employment and whilst continuing full time education she worked at another supermarket in Mooroopna for two years as a casual employee undertaking the work as a cashier and assisting in various departments being fruit and vegetables, the meat room, the liquor department and in the delicatessen.  She said that she had difficulty in communicating with customers and she recalled difficulty using EFTPOS facilities where if persons requested cash payments she was often unable to distinguish the amounts requested and would cause errors in transactions. 

25.     When Miss Boyd finished secondary schooling she commenced a traineeship with a landscaping firm but resigned on the first day when the nature of the work was first learnt.  She understood that she would be working in domestic landscaping with plants but in fact she was to work in environmental type landscaping and rehabilitation.  This did not interest her and she sought employment again at a supermarket where she had previously been employed.  She did not obtain that employment because of a policy of the proprietors of the supermarket not to re-employ persons who had previously been employed on a casual basis.

26.     Miss Boyd then commenced full time study at the Shepparton College of TAFE and eventually completed “Business Administration Certificate III”.  During that study she was required to undertake work experience and did so at “Wayne Skinner Rural Supplies Pty Ltd” (“Skinner”) in Mooroopna.  Before she finished her course at TAFE she was again approached by Skinner and offered two or three week’s full time employment.  That was eventually extended to full time employment for two or three months and when the TAFE studies finished in September 2004, Skinner offered her full time employment for 12 months.  Miss Boyd continues to work on a full time basis with Skinner.  She said that the employer allows her to seek other employment and to attend for interviews.  She is also permitted to take time away from employment for medical and other like treatment.  She said that Skinner and other employees help her in job applications and on occasions they have rung the persons who have interviewed her to enquire why she has been unsuccessful.  On all occasions she has been told that employment was not offered because of her speech impairment, her hearing loss and the inability to use a telephone.

27.     Miss Boyd said that her study at the TAFE College qualified her to use Microsoft computer programs and MYOB, work with ledgers and payrolls and construct letters.  At Skinner her work has required her to sort, process and send mail, complete daily bank reconciliations, issue receipts and undertake banking, place orders, type letters, undertake deliveries of stock and check incoming goods.  She said that Skinner had indicated to her that he had preferred to employ a male person who would be permitted under State Labour and Industry laws to undertake heavy lifting and that she would be “kept on” until a male person was employed.  However, such a person did obtain employment with Skinner in January 2005, yet Miss Boyd continues to be employed.  She works 36 hours per week and is paid a full time award wage.  She is also provided with sick leave and annual leave and the employer makes superannuation contributions.  Whilst her employer supports her in the making of job applications, attending interviews and permits time away from work to have medical treatment, her salary is reduced by the hours that she is absent.

28.     Miss Boyd said that she does not anticipate that Skinner will continue in his employment of her beyond September of this year.  She will seek employment elsewhere and until she obtains it, she will seek benefits from Centrelink and will also seek to complete work as a volunteer.

29.     Having heard Miss Boyd describe the work that she currently undertakes, I could not on balance be satisfied, that she has a “continuing inability to work”.  It is apparent that she is fortunate to have an employer who is both sympathetic and supportive.  In fact, Miss Boyd described her work colleagues as “like a family” because of the support that she is offered.  The work that she undertakes also recognises her hearing and speech impediment because the employment is structured to permit her to have little contact with customers thereby reducing the extent of communication.  Miss Boyd acknowledged that her work with Skinner has given her the opportunity to learn new skills and expand the skills and training that she completed at the TAFE College.  Miss Boyd regards her current employment as being “work” and on balance I also agree.

30.     The nature of the employment relationship existing presently between Miss Boyd and Skinner does not suggest that of a “benevolent” or “benign” employer, where Miss Boyd is engaged under a Government subsidiary and where the duties undertaken do not meet the concept of “work”.  (Re Warner and Secretary, Department of Social Security (1994) 36 ALD 313 (“Re Warner”); Re Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472) (“Bell”).

31.     In the matter of Re Warner, the applicant suffered from profound deafness and a related psychiatric illness being an immature personality disorder.  The Tribunal found that these impairments led to a failure to demonstrate a willingness or motivation to work even where the employer could be described as benign.  On past occasions he had been offered work including cleaning jobs but had not been motivated to obtain such work.  Where the applicant may have physically been able to carry out these jobs, his personality disorder, which in turn was a product of his hearing loss and the consequential gaps in his emotional development, resulted in an unwillingness to cooperate and therefore an inability to work.  It was also found that significant assistance would be required if the applicant was to undergo further training for employment. 

32.     Similarly in the matter of Bell, the Tribunal found that there was a continuing inability to work given that the respondent’s impairments would only allow her to carry out work with benevolent employers.  The respondent suffered from hearing loss of 89.8 percent.  Whilst the respondent was motivated to work, the only full-time work that she had been able to perform in the past was with an employer who was her mother’s partner and for an employer who received a government subsidy for the duration of her employment.  On the first occasion the respondent’s mother also worked at the same workplace and was able to provide any necessary support to her.  The respondent suffered significant difficulties in communicating with others and would often become distressed as a result.  It was noted by the Tribunal that the respondent had not specific skills which would be of assistance to an employer and that learning difficulties would be an impediment to her attaining any such skills.

33.     The circumstances of Miss Boyd are different to those in the cases discussed above.  I am not satisfied that she has a ‘continuing inability to work.’  Whilst the duties Miss Boyd undertakes in her present workplace have been adapted to take account of her impairments, she is able to undertake those tasks assigned to her in a satisfactory manner and holds training qualifications which assist her in fulfilling these duties.  Whilst she is unable to adequately communicate on the telephone she is able to perform those tasks not involving telephone communication to a satisfactory level.  She is motivated and keen to work and is able to bring those skills attained through her TAFE studies to the position. 

34.     The effect of this decision is to deny Miss Boyd DSP, although presently she has no monetary entitlement to it, because she is earning a full time adult wage.  Nonetheless it appears that in September of this year she will cease to have this employment and in the absence of DSP she will not be entitled to have Commonwealth assistance in the provision of hearing aids.  That is not a factor that I am permitted to bring into account in assessing qualification for DSP.

35.     I am impressed that Miss Boyd is a person of considerable motivation as evidenced by the numbers of job applications that she has made.  She provided an exhaustive list of the places to whom employment has been sought and the agencies that she has approached seeking assistance in the finding of employment.  No doubt those attempts are demoralising but her persistence is a testament to her motivation and her preparedness to rise above the considerable limitations that she endures.  The Tribunal recognises that by her disabilities, it is possible that Miss Boyd will be exposed to discrimination from potential employers however it is to be hoped that by her work experience with Skinner, the training that she has completed and potential of a successful outcome from proposed surgery, that the opportunities to obtain employment will be improved.

36.     In this application where Miss Boyd is presently in full time employment, I cannot find that she has a “continuing inability to work” within the meaning of s94 of the Act. In those circumstances she does not satisfy all of the qualifying criteria of s94 and the claim for DSP cannot succeed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of:
 Mr John Handley, Senior Member

Signed:         Alice Beattie
  Associate

Date of Hearing  4 April 2005
Date of Decision  15 April 2005

Solicitor for the Applicant          Ms B Sleeth Regional Advocacy and

Information Service
Departmental Advocate            Sean Meehan