Caldow and Secretary to the Department of Family and Community Se Rvices

[2003] AATA 501

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 501

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V02/1052

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PETER CALDOW

Applicant

And SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date30 May 2003

PlaceMelbourne

Decision The decision under review is affirmed.

……………………………

Senior Member

SOCIAL SECURITY – Application for disability support pension; whether injury “permanent” at date of claim or within 13 weeks;

Social Security Act1991 s 94

Social Security (Administration) Act 1999 Schedule 2 Clause 4

REASONS FOR DECISION

30 May 2003 Mr John Handley, Senior Member

1.      Mr Caldow applies to review a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 12 September 2002.  The SSAT then decided to affirm a decision made by an officer of Centrelink on 31 May 2002 to reject his claim for disability support pension (“DSP”).

2.      The hearing was convened in Mildura on 19 May 2003.  Mr Caldow appeared without representation.  Ms Navarro appeared on behalf of the respondent.

THE LEGISLATION

3.      The applicable legislation is the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (the “Administration Act”). Qualification for DSP is found at s. 94 of the Act which is reproduced as follows:

94  Qualification for disability support pension

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.

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:for Impairment Tables see section 23(1) and Schedule 1B.

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.

Note:    For work see subsection (5).

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)   In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

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.

Person not qualified in certain circumstances

94 (6)A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Note:a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48 (3)).

4. The date at which entitlement is assessed or the period within which entitlement is assessed is found at Clause 4(1)(a) – (d) and (2)(a) of Schedule 2 of the Administration Act which is reproduced as follows -

4 Start day- early claim

(1)If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2)For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

THE FACTS

5.      Mr Caldow is presently 38 years of age having been born on 16 August 1964.  He made a claim for DSP in May 2002 which was eventually rejected.  The respondent decided that at the date of claim, and within 13 weeks of that date, Mr Caldow did not satisfy the qualifying criteria.

6.      Mr Caldow said in evidence that he had suffered back pain for almost 20 years.  Despite it, he remained engaged in heavy employment and played sport.  He described the injury giving rise to the back pain as being “manageable”.

7.      In November 2001 Mr Caldow slipped on a pathway in premises he was renting in Shepparton and either suffered an exacerbation of the pre-existing back injury or a new injury.  From that date he has not worked.  Initially Newstart allowance was paid.  That benefit continued until December 2002 or January 2003 when, consequent upon obtaining custody of his 13 year old son, Mr Caldow has been in receipt of Parenting Payment and Family Tax Benefit.  By reason of qualifying for these benefits he also qualifies for a health card and for pharmacy allowance.

8.      The rate of DSP, Newstart allowance and Parenting Payment and Family Tax Benefits was not known at the hearing, however it is believed that DSP has a monetary rate greater than Newstart allowance but less than the combined entitlement to Parenting Payment and Family Tax Benefit.  On that assumption any monetary entitlement to Mr Caldow by this appeal will permit him to recover the difference between Newstart allowance and DSP until the commencement of payments of Parenting Payment/Family Tax Benefit.  It is likely that Parenting Payment/Family Tax Benefit will continue to be paid to Mr Caldow although he did say at the hearing that he has been recently asked by the local Centrelink office to provide evidence of incapacity (because Centrelink now has an expectation that by reason of the age of his son he should be working).

9.      At the present time Mr Caldow has physiotherapy on one occasion per week and hydrotherapy on two occasions per week.  He said that he has been advised by his physiotherapist that he should continue with that treatment because it will keep his muscles “supple”..  He said he suffers from pain on a daily basis which is not relieved by pain killing medication which he consumes.  He said that hydrotherapy “takes the pressure” off his back and gives short term relief for about 20 minutes only.

10.     Mr Caldow has been treated to date by Dr Russell in Mildura who has recently referred him to a specialist in Richmond with whom Mr Caldow will consult in about two months.  He has also recently been diagnosed as suffering from depression which is believed to be secondary to his back pain.

11.     Mr Caldow has also consulted Dr Skinner a doctor with Health Services Australia in Mildura.

12.     There is no issue between the parties or between the doctors as to the extent and severity of Mr Caldow’s back injury.  Medical evidence obtained in 2002 – following the fall in Shepparton – would indicate that the applicant does have an L5/S1 disc protrusion.  This would account for Mr Caldow’s complaint of left sided referred leg pain and persisting low back pain.

CONCLUSION AND REASONS FOR DECISION

13.     In his report of 1 May 2002 (T6), Dr Russell recorded that Mr Caldow’s back injury was then “temporary” (page 26).  He was also of the opinion that Mr Caldow would be likely to be able to return to work within 6/12 months and likely to be able to return to study for at least 15 hours per week within six months (page 27).

14.     Dr Skinner on 30 May 2002 reported (T9) in the following terms:

I believe he is genuinely suffering from quite severe low back discomfort and that this is limiting his activities.  He would not be able to persist in work related tasks long enough to hold down a job.  He needs to avoid sitting as much as possible as this will aggravate his problem.  As to prognosis I think it is not easy to predict but too early to attempt complete prediction.  Certainly he will be unfit for manual work requiring bending or heavy manual handling for the coming two years.  However it is still relatively early in the course of his condition and he is still undergoing physiotherapy.  Gradual improvement may occur and allow a return to light work full time work within two years.  The TDR does not indicate a prognosis in the “any kind” of full time work section.  I therefore recommend he be considered unfit for all work at present and have his case reviewed in six months time.

15.     On 15 November 2002 Dr Russell completed another report.  He then found Mr Caldow had left sided sciatica with an L5/S1 disc protrusion.  He found that the injury would be likely to persist for “more than 24 months” but within that period of time Mr Caldow’s “ability to function” was expected to “significantly improve”.

16.     Dr Russell has not referred in his report to the depression suffered by Mr Caldow although having heard from Mr Caldow in evidence that prescription medication is being provided for that condition I am satisfied that he does suffer from it.

17.     One of the qualifying criteria for DSP is an impairment of 20 point or more under the Impairment Tables.  The introductory passages to the Impairment Tables provide that an impairment rating is only to be made after the condition is considered to be “permanent” and has been diagnosed, treated and stabilised and is accepted as being “permanent”.

18.     Based on what is presently known of Mr Caldow I would have thought – in regard to the duration of his symptoms, the nature of the injury and the referral of him to a specialist in Melbourne that the condition might now -–if a claim was made now – that it would be considered to be permanent. 

19. However this appeal concerns the qualification of Mr Caldow for DSP at the date of claim in May 2002 or within 13 weeks of that date (refer to Administration Act).

20.     Having regard to the above medical evidence I cannot be satisfied that at the date of claim or within 13 weeks of that date the condition could then have been found to be permanent.  The injury then would have been diagnosed and treated but could not then be considered to be stabilised.  Certainly, on report of Dr Russell of 1 May 2002, the injury then, was temporary.

21.     Mr Caldow has not made another claim for DSP subsequent to May 2002.  If he were to make such a claim it may be that based on the available material and the history of the injury that he would qualify now.  However I am unable to find for the above reasons that he suffered an injury which could be considered to be “permanent” at the date of claim or within 13 weeks of it as that concept is defined in paragraphs 4 and 5 of the Introduction to the Impairment Tables.

22.     In the circumstances the decision under review will be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         Elsa Genovese
  Personal Assistant

Date/s of Hearing  19 May 2003
Date of Decision  30 May 2003
Solicitor for the Applicant          Self Represented

Department Advocate               Ms K Navarro