Castles and Secretary, Department of Education, Employment and Workplace Relations and Anor
[2008] AATA 315
•17 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1867
GENERAL ADMINISTRATIVE DIVISION ) 2007/6109 Re TONY CASTLES Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent 1
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND
Respondent 2
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date 17 April 2008
PlaceBrisbane
Decision The decisions under review are affirmed. Specifically:
a. Mr Castles did not qualify for an activity test exemption at the date of the decision by Centrelink.
b. In relation to Disability Support Pension:
i. Mr Castles’ condition is permanent; and
ii. Mr Castles satisfies an Impairment rating of 10 points under Table 5.1 and therefore does not satisfy s. 94(1)(b) of the Act; and
iii. Mr Castles does not have a “continuing inability to work” in terms of s. 94(1)(c).
.................[Sgd]..........................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – newstart allowance – whether applicant is exempt from the activity test – applicant does not qualify for activity test exemption – decision under review affirmed.
SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension –whether impairment rating satisfies s94 (1)(b) – degenerative disc disease – condition permanent – impairment rating of 10 – whether applicant has a continuing inability to work – continuing ability to work – decision under review affirmed.
Social Security Act 1991: s 94, 593, 603C
REASONS FOR DECISION
17 April 2008 Dr K S Levy RFD, Senior Member INTRODUCTION
1. This is an application by Tony Castles, appealing against two decisions of Centrelink and the Social Security Appeals Tribunal (SSAT) in respect of the following:
(i) - A claim for Newstart Allowance activity test exemption
- A decision to decline eligibility for that exemption by Centrelink on 27 September 2006; and
- The decision by SSAT to affirm that decision on 12 April 2007;
(ii) - For Disability Support Pension
- A decision to reject eligibility by Centrelink on 3 October 2007;and
- The decision by SSAT to affirm that decision on 22 November 2007.
2. Mr Castles appeared before the Tribunal and was self represented. He was 52 years of age at the time with respect to his eligibility of his claims were raised and is now 54 years of age.
ISSUES
3. The issues for determination by the Tribunal are as follows:
(i)Is Mr Castles exempt from the activity test stated in s 603 C of the Social Security Act 1991 (the Act); and
(ii)In respect of Disability Support Pension, does Mr Castles satisfy the requirements of s 94 of the Act, i.e.
(a)Does Mr Castles have an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and
(b)does Mr Castles have a “continuing inability to work”? (s 94(1)(c)(1))
EVIDENCE
4. Substantial documentation was provided by the respondent in respect of each of the two appeals made by the applicant. These documents included the available medical reports, job capacity assessment reports and other relevant material. The applicant submitted three X-ray reports[1] as follows:
(i)Report dated 23 February 2006 – from Kallangur X-ray
(ii)Report dated 21 September 2006 – from Kallangur X-ray and
(iii)Report dated 11 March 2008 – from Southern X-ray Clinics.
[1] Exhibit 5
5. In addition to that documentary evidence, evidence was received from Dr Haque. Dr Haque was called by the respondent and stated that he saw the applicant on 9 October 2006. That was the only time on which he examined Mr Castles and said that he had chronic neck pain. He said X-ray reports revealed that there were degenerative changes to the applicant’s cervical spine and said that this is due to gradual wear and tear with age. He said that this diagnosis was confirmed by the X-ray report dated 21 September 2006. He then referred Mr Castles to a specialist on 19 October 2006.
6. In examination in chief, Dr Haque stated that when he completed his report, he was not in a position to say whether the condition experienced by Mr Castles was permanent. In cross examination by Mr Castles, he was asked whether anything could be done to improve his neck condition. Dr Haque indicated he did not think there was anything that might be done to improve that condition.
7. On questioning by the Tribunal as to whether, having regard to medical reports which are now available, whether he thought the condition would be regarded as permanent, he replied that the condition would not be expected to improve.
8. The applicant was then cross examined by Ms Brazier. Relevantly, Mr Castles indicated that he has applied for jobs since his application for Newstart Allowance and/or Disability Support Pension. He had a position as a traffic controller in July or August of 2006 which merely required him to hold a “lollypop stick”. He did that job for two days. In July 2007, he secured a job as a driver, driving an army bus containing military personnel. He said that, that could have been a full time job but it lasted only one week. The applicant indicated that he gave up some jobs because of pain but when asked whether there were other reasons why his employment did not continue he stated that employers did checks and discovered he had a medical condition. He did not elaborate on any other reasons.
medical reports
9. A report was provided to the Tribunal by Dr Hussain dated 2 June 2006[2] which states that the applicant has degenerative disc disease. Dr Hussain said that the condition was permanent. There was also a report by Dr John[3] dated 26 September 2006. Dr John stated that the applicant had a “degenerative cervical spine chronic”. Dr John did not specify whether the condition was permanent or temporary. However he stated that the applicant was not fit to work until 26 October 2006. He also referred the applicant to an orthopaedic specialist.
[2] Exhibit 2, T12; Folio 17
[3] Exhibit 2, T 22; Folio 44
job capacity assessment
10. There were three job capacity assessments undertaken. These were as follows:
(i)15 June 2006 by an Occupational Therapist[4] – this report stated the cervical spine condition was permanent although the applicant could return to employment within two years;
[4] Exhibit 2, T14; Folio 20-31
(ii)22 September 2006[5] – it is unclear what (or if any) professional discipline the author of this report belonged to. The report concluded that the applicant had a neck disorder and it was said to be temporary. It also stated that Mr Castles could work 30 plus hours per week. Of interest, the author of this report noted some practical difficulties which faced the applicant getting ongoing employment. These were:
· “Low level of education
· Limited work skills for light duties
· Would require significant re-skilling
· Ex-offender history (27 months)”
(iii)29 November 2006[6] – this report was completed by a Physiotherapist. He concluded that Mr Castles should be able to cope with moderate duties but qualified this comment by saying that further medical assessment may change the prognosis which he saw. However at that time, he thought the applicant could work 15-22 hours per week at least up to 29 November 2007, and expected that he might be able to work 30 or more hours per week for the period ending 29 November 2008.
[5] Exhibit 3, T17, Folio 103-108
[6] Exhibit 3, T17, Folio 103-108
X-ray history
11. The x-ray reports submitted by the applicant reveal the following:
(i)23 February 2006 - this report shows that at that time, there was evidence of bone density being decreased, a significant degenerative change at C3/4 and C4/5 level; there was a significant degenerative change at the lower cervical level; there was no abnormality at C1/2 level. The report concluded that there was significant degenerative change at C3/4 but no abnormality at C1/2 was seen at that time, “but there is some subluxation of C2 with respect to C3”[7].
[7] Exhibit 5
(ii)21 September 2006 – that report stated:
· “Disc space narrowing for C3 to C6 associated with mild scoliosis concave to the right”
· “Mild foraminal stenosis for C3 to C6 bilaterally, this is worse at C3-4 bilaterally and C4-5 on the left”[8].
(iii)11 March 2008 – this most recent report states as follows:
“There is a kyphosis of the upper cervical spine noted centred at C2/3 and C3/4. Marked disc space narrowing is seen at C3/4 and C4/5. There is moderate to severe narrowing of the left C4/5 intervertebral foramen. Mild narrowing of the left C3/4 and moderate narrowing of the left C5/6 intervertebral foramina is seen.
There is moderate narrowing of the right C3/4, C4/5 and C5/6 intervertebral foramina. Mild narrowing of the C6/7 intervertebral foramina noted bilaterally[9].”
[8] Exhibit 5
[9] Exhibit 5
CONSIDERATION
12. All of the evidence and relevant law has been taken into account in making a determination in this matter.
13. The relevant legislation is as follows:
in respect of newstart allowance activity test
14. The relevant statutory provisions:
“Qualification for newstart allowance
593 (1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or(ii) the person is a CDEP Scheme participant in respect of the period; and
Note: For CDEP Scheme participant see section 1188B.
(b) in the case of a person to whom subparagraph (a)(i) applies--throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test;[10] ”[10] Social Security Act 1991 Section 593(1)(a) and (b)
“Incapacitated person not required to satisfy activity test
603C (1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:
(a) throughout the period the person is incapacitated for work because of sickness or an accident; and
(b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and(c) the incapacity is, or is likely to be, of a temporary nature; and
(d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and
(e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:
(i) the medical practitioner's diagnosis; and
(ii) the medical practitioner's prognosis; and
(iii) that the person is incapacitated for work; and(iv) the period for which the person is incapacitated for work; and
(f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.
(1A) The Secretary must comply with the guidelines (if any) determined and in force under subsection (1B) in deciding the following:
(a) whether paragraph (1)(a), (b) or (c) applies to a person in respect of a period;
(b) whether, for the purposes of paragraph (a) of the definition of work in subsection (2), work is of a kind that a person could be reasonably expected to do.
(1B) The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (1A).
(2) In this section:
"work" , in relation to a person, means work (whether full-time, part-time, permanent or casual) that:
(a) is of a kind that the person could, in the Secretary's opinion, be reasonably expected to do; and
(b) is for at least 8 hours per week on wages that are at or above the relevant minimum wage.[11] ”[11] Section 603C(1) and (2) Social Security Act 1991
in respect of disability support pension
“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;[12] ”
[12] Section 94(1)(a),(b) and (c) Social Security Act 1991
“(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.[13]”
[13] Section 94(2)
“(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. [14]”
[14] Section 94(5)
Schedule 1b – Tables For The Assessment Of Work Related Impairment For Disability Support Pension
table 5.1 - cervical spine
Rating Criteria
….
TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTY Loss of three‑quarters of normal range of movement and constant neck pain.
table 20 – miscellaneous
Rating Criteria
….
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.
….
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.
ASSESSMENT OF CLAIM FOR NEWSTART ALLOWANCE AND ACTIVITY TEST
15. Section 603C deals with a situation where there is an incapacity for work and that incapacity is (or is likely to be ) “of a temporary nature” (s 603C(1)(c)). Incapacity for work under that section means an incapacity to do at least eight hours work per week which could be reasonably undertaken by the applicant (s 603C(2)).
16. In assessing whether the applicant meets the requirements of that section, the medical reports are not altogether consistent. Dr Hussain says the condition is permanent. Dr John did not specify whether the condition was permanent or not.
17. In relation to the job capacity assessments, the first report by an occupational therapist says it is permanent (probably accepting the first medical report by Dr Hussain). The second job capacity assessment says that the condition is temporary as does the third assessment by the physiotherapist.
18. The x-ray reports however show that the condition appears to be permanent. They do not say so specifically but that is implied and would be consistent with the only oral medical evidence provided to the Tribunal, that of Dr Haque.
19. I find that the condition is permanent which is based on the best evidence to date. At one point, Centrelink accepted it was permanent but later accepted a subsequent job capacity assessment report and said that it was temporary.
20. I think the evidence, particularly with respect to the x-rays, show a trend analysis which is consistent from 2006 to 2008 and show a tendency for this condition to be deteriorating. But the permanency of the condition is one matter. It is an entirely different matter to assess the extent of that permanent condition and its likely effect on incapacity for work, which may be only on a temporary basis. It may diminish capacity for work previously done, but may not preclude lighter duties which are suitable for the worker.
21. The evidence from the job capacity assessor reports all show that work in excess of eight hours per week should be possible for the applicant from 27 September 2006. I note the medical certificate by Dr John, who only saw the applicant once, indicated he may have a temporary incapacity up to 26 October 2006. While that issue has not been challenged, I accept there was additional evidence clarified with Dr John by the authorised review officer on 8 December 2006, where Dr John indicated that he only saw the applicant once but he thought Mr Castles had exaggerated his symptoms.
22. On the basis of all the evidence available, I find that the applicant has a permanent condition but that he is not eligible for exemption from the activity test under s 603C, as his condition is of a temporary nature and there is no other evidence to indicate an exemption beyond 26 September 2006. I therefore affirm the decision of the SSAT in that respect.
CLAIM FOR DISABILITY SUPPORT PENSION
23. A claim for DSP was made on 16 October 2006. This must be assessed at the date of the claim (or within 13 weeks of that date)[15]
[15] see clause 4 of Schedule 2 of the Social Security Administration Act 1999.
24. In considering s 94 of the Act, I find that Mr Castles satisfies the test in s 94(1)(a) of the Act, in that he has a physical impairment, ie. cervical degeneration. In considering whether he has an impairment of 20 points or more under the Impairment Tables (s 94(1)(b)), an assessment has been made of the applicant under Table 20 and under table 5.1 of Schedule 1B. Ms Brazier urged me to adopt Table 5.1 if I was satisfied that the condition is permanent. I agree with that submission. Having examined the wording of Table 5.1 for both a 10 point Impairment and a 20 point Impairment, the only assessment available is that undertaken by the physiotherapist. He has assessed the impairment rating as 10 points as the applicant had loss of half the range of movement. He also had frequent neck pain reported that he also had pins and needles and referred pain. To be able to extend that rating to 20 points would require evidence of a loss of three quarters of the normal range of movement as well as constant neck pain. The evidence to support such an assessment is not available. I therefore find that the applicant does not satisfy s 94(1)(b).
25. There is also a requirement in s 94(1)(c) that the applicant must have “a continuing inability to work”. Theoretically, that is only applicable if the applicant has already satisfied s 94(1)(b) (which he has not). However, for the sake of commenting on this statutory requirement also, I note that the definition of work in s 94(5) requires an applicant to be unable to work 15 hours per week. On the evidence, that factor also would not be able to be satisfied.
26. The respondent referred me also to the introductory paragraphs of Schedule 1B. It is noted that a rating must be assigned only where the condition is fully documented, diagnosed, investigated, treated and stabilised[16]. But the condition must also be permanent, which has been taken to mean that on a balanced view of the evidence, “it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years”[17].
[16] See Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606; Secretary, Department of Employment and Workplace Relations and Hatton [2007] AATA 1631.
[17] Paragraph 5 of Schedule 1B of the Act.
27. I am conscious that the claim is to be assessed as at 16 October 2006 or wihin 13 weeks of that time. The report of 29 November 2006 is within that period and is one of the main items of evidence to rely on at that time period. I find the condition is permanent even though it has not been fully investigated or treated. This is due to the unavailability of assessment at a hospital facility during the course of this application. But it must be acknowledged that it is more likely than not it will persist for the foreseeable future based on the date of the claim or within 13 weeks of that date. That is based on the evidence at that time, the evidence of Dr Haque and the X-Ray reports then available. Clearly, the more recent X-Ray report of 11 March 2008 is evidence which tends to confirm the decision that Mr Castles fits within that definitional description which indicates permanency of the condition. I find Mr Castles does not satisfy s 94(1)(c) at the time of the decision under review.
28. In considering all of the evidence, I affirm the decision in relation to Disability Support Pension. I feel obliged to add however, that I note that Mr Castles may not appear to be particularly competitive when compared to a large number of potential employees because of the factors mentioned in the job capacity assessments. They are the factors of age, low education level, skills deficit/training or re-training required, and poor appearance. His interpersonal skills may also be a factor which mitigates against him being easily employable. But there is also the fact that he has now been waiting for two years for assessment at the Royal Brisbane Hospital for assessment of his neck condition. The X-Ray reports presented to the Tribunal show that he suffers from a condition and it appears to be getting worse with time. That is probably to be expected. It would be desirable if the extent of that condition could be assessed accurately as soon as possible in order to give some certainty and finality to Mr Castles conditions and/or potential entitlement to disability support pension. Given the passage of time, more current reports would undoubtedly be valuable in assessing this case for the future.
CONCLUSION
29. In answer to the specific issues put to the Tribunal:
c.Mr Castles did not qualify for an activity test exemption at the date of the decision by Centrelink.
d.In relation to Disability Support Pension:
i.Mr Castles’ condition is permanent; and
ii.Mr Castles satisfies an Impairment rating of 10 points under Table 5.1 and therefore does not satisfy s. 94(1)(b) of the Act; and
iii.Mr Castles does not have a “continuing inability to work” in terms of s. 94(1)(c).
30. The decisions under review are affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K Levy RFD, Senior Member
Signed: .....................................................................................
Elizabeth Young, Research AssociateDate/s of Hearing 17 March 2008
Date of Decision 17 April 2008
Applicant self represented
Respondent Ms M Brazier, departmental advocate
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