Bruce Bevan and Secretary, The Department of Social Services

[2013] AATA 708

[2013] AATA 708

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0138
Re	Bruce Bevan
APPLICANT
And	Secretary, The Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	3 October 2013
Place	Sydney

The Tribunal affirms the decision under review.

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Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – impairment tables – continuing inability to work requirement – participation in a program of support - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss, 94, 94(1), 94(2), 94(3B), 94(3C)

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Mr Bevan claimed disability support pension in July 2012. He suffers from chronic severe MRSA (Methicillin Resistant Staph), HIV and Hepatitis C which combine to produce a debilitating storm of symptoms including lethargy, fatigue, painful and infected skin lesions, anxiety and depression.

2. A Centrelink officer rejected Mr Bevan’s claim on the basis that he had not participated in a program of support and did not have a continuing inability to work under the Social Security Act 1991. The decision was affirmed on further internal review by an authorised review officer and then by the Social Security Appeals Tribunal.

3. Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s combined impairment is of 20 points or more under the impairment tables; and

   (c)the person has a continuing inability to work; and

   (d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.

4. The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr Bevan during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the impairment tables as they were during that 13 week period, that is, from 27 July 2012 to 25 October 2012. Similarly, his satisfaction of other eligibility requirements must also be assessed for that limited period.  

5. It is not in dispute that Mr Bevan has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in his application.

6. Mr Bevan’s conditions have combined at times to make it impossible for him to work. However, for the last seven months he has managed to work for at least 15 hours per week. He accepted that, while he is working these hours, he is not eligible to receive disability support pension because this amount of work takes him outside the scope of a “continuing inability to work”, as defined in the Act. Instead, Mr Bevan wishes to be paid disability support pension, a higher rate of payment than the newstart allowance he was paid, for the seven months from July 2012 to February 2013 during which his symptoms were so severe that he was unable to do any work at all. There is ample medical evidence of the severity of his symptoms at that time.

7. Mr Bevan’s ability to steel himself to work in a demanding job, while suffering the combined effects of his conditions is admirable and remarkable. It is not surprising that there have been periods during which he has been unable to work at all. His request for payment for the limited period he has identified is understandable and reasonable.

8. However, the definition of “continuing inability to work” in the Act will not allow this.

9. Section 94(2) of the Act defines “continuing inability to work” as follows:

   94 (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a) in all cases—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) in all cases—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.

   Note: For work see subsection (5).

   …

   (5) In this section:

   …

   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.

10. Among other things, Mr Bevan’s impairments must prevent him from working for at least 15 hours per week within two years. Mr Bevan commenced to work more than 15 hours per week seven months after he made his claim for disability support pension.

11. There are other matters that may stand in the way of Mr Bevan’s eligibility to receive disability support pension – even for the limited time for which he requests it. However, his commencement of at least 15 hours per work per week in February 2013 precludes him from establishing that he cannot work for 15 hours or more for the next two years from the date of his claim for disability support pension.

12. It follows that he did not in the relevant period, have a continuing inability to work.

    DECISION

13. The Tribunal affirms the decision under review.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell.

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Associate

Dated  3 October 2013

Date of hearing	25 September 2013
Applicant	In person
Solicitors for the Respondent	C Hutchins, DHS Program Litigation Review Branch