Dalitz and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 573

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 573

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3107

GENERAL ADMINISTRATIVE DIVISION		)
Re		FREDERICK DALITZ

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date3 July 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Dr R. McRae
  Member

SOCIAL SECURITY ‑ disability support pension ‑ chronic obstructive pulmonary disease ‑ neck pain ‑ continuing inability to work ‑ whether able to work 30 hours per week ‑ decision under review affirmed.

Social Security Act 1991 s 94(1) and (2)

Social Security (Administration) Act 1999 Sch 2 cl 4

A Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension

REASONS FOR DECISION

3 July 2008 Dr R McRae           

1. Mr Frederick Dalitz (the Applicant) made an application to Centrelink for disability support pension (DSP). Centrelink acts as the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent). A Centrelink officer rejected the Applicant’s claim for DSP because the Applicant failed to satisfy s 94(1) of the Social Security Act 1991 (the Act). The Applicant sought internal review of that decision. An authorised review officer affirmed the decision on 8 May 2007. The Applicant then sought a review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 7 June 2007.

2. The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the Act, at the time of his claim on 15 March 2007, or within the subsequent 13 weeks (ending on 13 June 2007).  The Tribunal’s decision is that the Applicant is not entitled to DSP.  

3. The Applicant represented himself at the hearing. The Respondent was represented by Mr Michael Todd, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents).

BACKGROUND

4.          The Applicant is a 62 year old, married, Australian man who completed year 10 of secondary education and completed work-related training courses.  He worked as a ship’s Chief Steward at sea, operated his own business and most recently was a supervisor in a sign manufacturing business for seven years, prior to redundancy in February 2007.  He has a long history of smoking.  

5.          The Applicant lodged a claim for DSP on 15 March 2007.  The supporting Treating Doctor’s Report (TDR) completed by the Applicant’s general practitioner, Dr J Dickman, on 14 March 2007, reported that his conditions were COPD [chronic obstructive pulmonary disease] and asthma, diagnosed in 1999.  Both conditions were anticipated to deteriorate.  A subsequent letter, dated 31 March 2007, stated the Applicant has severe COPD.

He is extremely short of breath on mild exhaustion…(He) was supervising because he could no longer do the manual work because of his breathlessness.  He was terminated …because he could no longer supervise adequately. He is unable to work at all and has no prospect of improving. 

6.          The Tribunal received subsequent correspondence from Dr Dickman, dated 16 August 2007, (after the SSAT’s decision) reiterating the Applicant’s medical problems and emphasising the diagnosis of COPD and its recognised complications.  This letter also indicated a diagnosis of osteoporosis and a crush fracture of the Applicant’s eighth thoracic vertebra, but there was no supporting documentation relating to the diagnosis, including investigations or treatment.  The letter further stated [the Applicant] may be fit to do some very light sedentary work but he would be unfit to reach his workplace.  There was no further evidence related to this statement.  An undated, hand-written letter from Dr Dickman included the advice: I do no (sic) believe he is capable of any work certainly not in his profession as a sign writer. 

7.          Ms N Newton, a registered psychologist with Advanced Personnel Management, undertook a Job Capacity Assessment (JCA) on 21 March 2007 related to the claim for DSP.  She provided a work capacity assessment, dated the same day, which noted the permanent condition of emphysema, indicating that the Applicant had a current and future work capacity … [of] 30+ hrs (sic) per week … sedentary full time.  She recommended an impairment rating of 40 points for emphysema, according to Impairment Table 1 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables), in Schedule 1B of the Act. 

8.          Ms Newton undertook a further JCA on 14 November 2007.  She was assisted by Ms L Natividad, a registered physiotherapist of Advanced Personnel Management.  They noted the permanent condition of chronic obstructive pulmonary disease and recommended an impairment rating of 40 points according to Impairment Table 2 of the Impairment Tables.  The JCA report, dated 23 November 2007, stated that at the time of the DSP claim up to the present, the Applicant’s assessed future work capacity [is] 15-22 hours per week … in appropriate sedentary occupations. 

LEGISLATION

9. Section 94(1) of the Act provides that:

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)…

10.        Chapter 1 of the Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension provides that:

Work is defined in section 94(5) of the Social Security Act 1991.  For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

APPLICANT’S SUBMISSIONS

11.        The Applicant stated he assumed he should get DSP as his condition was deteriorating.  He stated he can’t drive a car a long distance. He considered it was unfair that he did not receive DSP as he knows two folks receiving [DSP] whose conditions are not as severe as his.  He submitted it was unfair that he was singled out. 

RESPONDENT’S SUBMISSIONS

12.        The Respondent concedes that the Applicant has a physical impairment that achieves 20 points or more under the Tables.  However, the Respondent submits that the Applicant did not have a continuing inability to work 15 or more hours per week during the qualification period, which is part of the relevant test.  The Respondent submits that a trained job capacity assessor is better placed to provide an assessment of the Applicant’s capacity for employment.  The Applicant does not have an impairment that would prevent him undertaking educational or vocational training.  The Respondent also relies on the Applicant’s statement of information to the SSAT that: if a suitable job existed which could be done sitting down, then he could do it … 

FINDINGS

13.        The Applicant claimed DSP on 15 March 2007. A reasonably contemporaneous medical assessment was performed by Dr Dickman. 

14.        The job capacity assessors have appropriately and reasonably undertaken their assessments related to work capacity after accepting the medical diagnosis of Dr Dickman. 

15.        The Applicant has a physical impairment of COPD which is permanent and has consistently received an impairment rating of 20 points.  [Tribunal note: This is supported by the Tribunal’s own medical knowledge and experience.]  

16.        At the hearing the Applicant placed much focus on the extent of his physical impairment.  However, further consideration of that issue is unnecessary as an impairment rating of 20 points was conceded by the Respondent.  

17.        The evidence is consistent that there is no continuing inability to work for at least 15 hours per week for award wages due to permanent physical impairment. The JCAs dated 21 March 2007 and 23 November 2007 indicated the Applicant had a current capacity for work of at least 15 - 22 hours per week until the present time.  The Tribunal accepts there is some work that the Applicant would be able to undertake for over 15 hours per week for award wages.  The Tribunal notes that the Applicant expressed this opinion to the SSAT. 

CONCLUSION

18. The Applicant satisfies s 94(1)(a) and (b) of the Act in that he has a permanent physical condition of chronic obstructive pulmonary disease that attracts 20 or more impairment points as required by the Act. However, the Applicant does not satisfy s 94(1)(c) of the Act, in that he does not have a continuing inability to work because of his impairment as required by the Act.

19.        The Tribunal concludes that at the time of his claim for DSP and in the following 13 weeks the Applicant did not satisfy the requirements necessary to qualify for DSP. 

DECISION

20.        Accordingly, the decision to reject the claim for DSP was the correct decision.  The Tribunal affirms the decision of the SSAT made on 7 June 2007.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of Dr R McRae

Signed:         Dianne Eva
  Clerk

Date of Hearing  25 March 2008         
Date of Decision  3 July 2008
Representative for the Applicant    F Dalitz, Self Represented   
Solicitor for the Respondent           M Todd, Centrelink Advocate