Crawley and Department of Family and Community Services
[2000] AATA 1108
•14 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1108
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/580
GENERAL ADMINISTRATIVE DIVISION )
Re KEVIN CRAWLEY
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date14 December 2000
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto the Tribunal decides that Mr. Crawley is not entitled to Disability Support Pension because he has a continuing ability to work. This means Mr. Crawley's application is successful.
.............(Signed).................................
DR E K CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether continuing inability to work
Social Security Act 1991: s 94(2)
REASONS FOR DECISION
14 December 2000 Dr E K Christie, Member
This is an application by Kevin Crawley to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 20 June 2000. The SSAT affirmed a decision made by Centrelink on 28 February 2000 to grant Disability Support Pension (DSP) to Mr. Crawley.
The SSAT concluded that "on the evidence available to the Tribunal, the Tribunal is satisfied that Mr. Crawley is unfit for all work" (T2 Folio 8).
At the hearing, Mr. Crawley represented himself. The Department of Family and Community Services ("the Department") was represented by Mr. S. Letch, a Departmental Advocate.
At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1) and the following exhibits:
Exhibit 2: Statement of Dr. Scanlan, 4 October 2000
Exhibit 3: Medical Certificate Dr. Johnston, 11 July 2000
Exhibit 4: Statement of Senior Client Manager, Mission Australia,
6 September 2000
Exhibit 5: Report of Dr. Peros (psychologist), 14 February 2000
Exhibit 6: Medical Assessment Report, Dr. Toft, 24 February 2000
Exhibit 7: Bundle of Centrelink Medical Reports and Materials
re Kevin Crawley
At the end of the hearing, the Tribunal decided to exert it's inquisitorial powers and seek clarification from Mr. Crawley's treating doctor (Dr. Catton) on issues relating to the extent of Mr. Crawley's "cognitive defects" and Dr. Catton's assessment of Mr. Crawley's ability to work. Dr. Catton's response was received on 4 December 2000, Supplementary submissions were received from Mr. Letch on 6 December 2000. .
ISSUE BEFORE THE TRIBUNAL
The only issue for the Tribunal to decide was whether Mr. Crawley had a "continuing inability to work".
CONTENTIONS AND SUBMISSIONS OF THE PARTIES
Mr. Crawley stated that he was granted an Invalid Pension in 1983 and had reluctantly sought DSP by making a claim for entitlement in January 2000. It was Mr. Crawley's contention that he should never have been granted Invalid Pension/DSP and contended that he had been coerced into taking DSP.
Mr. Crawley referred to his current treating general practitioner (Dr. Scanlan) statement (Exhibit 2) which noted that "after a brief history and examination, I am unable to find any reason why he should not be fit for employment". In addition, Mr. Crawley referred to the following statement of Dr. Catton: "I believe he is capable of working in a suitable job. He may need some retraining in order to find something suitable" (T15 Folio 35).
Mr. Crawley stated that he had been doing voluntary work with Mission Australia (St. Vincent de Paul) for the past three months. He had worked full time five days per week from 7.30am to 4pm. He had not taken any days off over this time.
Mr. Crawley referred to the Statement of the Senior Client Manager for Mission Australia/Mission Employment (Exhibit 4) where reference was made to:
Mr. Crawley's desire to be a productive member of society – not one reliant on Government assistance; and
Mr. Crawley's situation as a long term unemployed and so in need of advocacy and job search skills and support.
Mr. Crawley said that over the period 1983 to the present time he had been "on and off" DSP and Newstart Allowance ("NSA"). He submitted that this was an acknowledgement by Centrelink that he was entitled to NSA.
Mr. Crawley concluded by contending that he was trapped in the welfare system by being granted DSP and that it was ruining his life. In addition, the DSP was not only a stigma to him but also an obstacle for him getting a job. He contended that he was fit for work and did not belong on the DSP system. In addition, his voluntary work with St. Vincent de Paul, together with his registration for work with Mission Employment, indicated his desire for getting a job.
In response to a Tribunal question, Mr. Crawley clarified that:
Dr. Catton was his treating doctor who had prepared the Treating Doctor's report (T15);
Dr. Willmott was the doctor Centrelink had sent him for assessment of his medical condition and ability to work (Exhibit 7); and
Dr. Perros was a psychologist Centrelink had sent him to for a new psychological assessment (Exhibit 5).
It was also acknowledged by the parties that Dr. Toft had not consulted with Mr. Crawley but had based her assessment of Mr. Crawley's ability to work (Exhibit 6) on the report of Dr. Perros.
Mr. Letch submitted that there was uncertainty in the Treating Doctor's reports prepared by Dr. Catton and Dr. Willmott (Exhibit 7). In particular, Questions (7-10) Part A: Medical and Work Details gave uncertain answers on Mr. Crawley's likely return to (i) any kind of full time work (at least 30 hours one week), or (ii) work more than 20 hours per week, or (iii) any kind of part-time work (at least 8 hours per week).
Mr. Letch submitted that the Centrelink File Note (T17 Folio 37) revealed a history of Mr. Crawley reclaiming or cancelling DSP and NSA, on many occasions, over the period July 1998 to October 1999.
Mr. Letch concluded that the report on Mr. Crawley's ability to work, prepared by Dr. Toft, was accurate (Exhibit 6). Accordingly, Mr. Crawley had a continuing inability to work and was entitled to DSP. Furthermore, Mr. Letch contended that a grant of DSP did not prevent Mr. Crawley from seeking work.
SUPPLEMENTARY SUBMISSIONS
In his supplementary report, Dr. Catton acknowledged that he had read the neuropsychological report of Dr. Peros (Exhibit 5) and was in no doubt that cognitive defects were present with respect to Mr. Crawley.
Moreover, Dr. Catton re-affirmed his earlier professional opinion in relation to Mr. Crawley's ability to work stating:
"I am confident that Kevin [Crawley] can be gainfully employed in a suitable job after appropriate training, if not in the open market then certainly in a sheltered supportive environment." (Supplementary submissions 4 December 2000).
In response to these supplementary submissions, Mr. Letch contended that:
"work as defined in s94(5) of the Social Security Act 1991, means work for at least 30 hours per week at award wages. The respondent contends that employment in a sheltered, supportive environment fails to meet the definition of 'work'".
It was also Mr. Letch's contention that this supplementary opinion of Dr. Catton was not consistent with the opinion of Dr. Peros and Dr. Toft that Mr. Crawley had a continuing inability to work.
CONSIDERATION OF THE ISSUES
The object of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Social Security Act 1991 ("the Act").
"Continuing inability to work is defined in section 94(2) of the Act as follows:
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; and
(ii) if the impairment does not prevent the person from undertaking education 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."
In assessing Mr. Crawley's ability to work, the Tribunal has considered all medical opinion:
(i)Dr. Wright (psychiatrist), 1 December 1993 (Exhibit 7):
"I note that he has been on Disability Support Pension for the last six or so years and he is currently making attempts to come off this in order to receive the services of CES.
My assessment of your client is that he does not have a psychiatric disorder which should prevent him from seeking work at this stage. Although he does have certain difficulties which may have contributed to his problems in holding down long term employment in the past, this should not prevent him from seeking work or undergoing some kind of retraining and I feel this would be to his benefit, particularly given his 'marked keenness'".
(ii)Dr. Cameron (psychiatrist), 18 December 1996 [Exhibit 7]:
"It appears to me that he should not have a Disability Support Pension. He is able to work and should be allowed to do so. He does not have any psychiatric illness at present."
(iii)Dr. Catton (T15, Folio 35) and Dr. Scanlan (Exhibit 2): see paragraph 8 of this decision;
(iv)Dr. Willmott: "Mr. Crawley is currently fit for part-time work" (T5 Folio 18, 4 February 2000);
(v)Dr. Toft (Exhibit 6, 24 February 2000); and
(vi)Dr. Catton (Exhibit 7, 10 January 2000) and Dr. Willmott (Exhibit 7, 15 February 2000): Part B Work Ability – Question 8 (a-f) or Questions 1 – 8.
Moreover, the Tribunal concludes that the independent assessment of Dr. Catton (Exhibit 7) and Dr. Willmott (Exhibit 7) is reasonably similar, and so corroborative and indicates that Mr. Crawley has an ability to perform any kind of work over the next two years. The assessment by both Dr. Catton and Dr. Willmott is in contrast to Dr. Toft.
When the assessment of Mr. Crawley's ability to work by Dr. Catton and Dr. Willmott is complemented with:
The statement of Mr. Crawley's current General Practitioner, Dr. Scanlan (Exhibit 2);
The statement of Mr. Crawley's previous General Practitioner, Dr. Catton (T5 Folio 35);
Supplementary submissions of Dr. Catton in which he expressed his professional opinion on Mr. Crawley's ability to work whilst being aware of Mr. Crawley's cognitive defects;
The psychiatric assessment of Dr. Wright and Dr. Cameron (Exhibit 7); and
Mr. Crawley's oral evidence before the Tribunal that he has worked full-time in a voluntary capacity with St. Vincent de Paul for the past three months. The Tribunal notes that in its decision the SSAT stated that if "Mr. Crawley was able to maintain a voluntary employment for at least three months then the Tribunal has no doubt that Centrelink would have regard to these issues when further considering Mr. Crawley's capacity for work pursuant to the terms of the Act." (T2 Folio 7).
the Tribunal is satisfied that on the balance of probabilities Mr. Crawley has the ability to work.
On consideration of all of the above materials and findings, in relation to ss.94(2)(a) and ss.94(2), (b), (i), (ii) of the Act, the Tribunal concludes that Mr. Crawley has an ability to work. Accordingly, Mr. Crawley does not satisfy the statutory requirements as having a continuing inability to work within the next two years. Consequently, Mr. Crawley is not entitled to DSP.
The Tribunal sets aside the decision under review and in substitution thereto decides that Mr. Crawley is not entitled to Disability Support Pension because Mr. Crawley has a continuing ability to work.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 20 November 2000
Date of Decision 14 December 2000
Applicant Mr. K. Crawley, himself
Respondent Mr. S. Letch, Departmental Advocate
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