Dowie; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2010] AATA 207
•24 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 207
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/2103
Veterans' Appeals Division )
Re: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Applicant
And: Andrew Dowie
Respondent
TRIBUNAL: Deputy President CR Wright QC
DATE: 24 March 2010
PLACE: Hobart
DECISION:Application to review granted.
Decision of Social Security Appeals Tribunal set aside.
Decision of Centrelink cancelling Respondent’s entitlement to payment of a disability support pension affirmed.
................................................................
CR Wright QC
(Deputy President)
CATCHWORDS
DISABILITY SUPPORT PENSION – continuing inability to work – pension cancelled – correctness of decision should be assessed on situation which existed at that time
Social Security Act 1991 s94
Shi v Migration Agents Registration Authority (2008) HCA 31 (30 July 2008)
REASONS FOR DECISION
24 March 2010 CR Wright, QC (Deputy President)
The Applicant has applied to the Administrative Appeals Tribunal (AAT) to review a decision of the Social Security Appeals Tribunal (SSAT), made on 1 April 2009, setting aside a decision of Centrelink to cancel the Respondent’s disability support pension.
The Respondent is 53 years of age. On 1 April 2006 he was granted a disability support pension with effect from 27 March 2006. Section 94 of the Social Security Act 1991 (the Act) specifies a number of criteria which must be established as pre-requisites for entitlement to payment of a disability support pension. It is accepted by the Applicant that the Respondent satisfies each of these criteria, with the sole exception of that required by Section 94(1)(c), viz a “continuing inability to work”. This phrase, and the word “work”, are defined in Section 94 in terms which may be shortly stated as requiring that a pension applicant must establish that he or she is so impaired as to be unable to work for at least 15 hours per week on wages at or above the relevant minimum anywhere in Australia within the next two years without a program of support, and furthermore, that he or she, by reason of the impairment, cannot be retrained or any retraining is unlikely to enable him or her to work 15 hours or more a week within a period of 2 years. A “program of support” in the context does not include a program which is provided “occasionally” or is “not ongoing”.
Before 1 July 2006, “work” was defined as “work of at least 30 hours per week at award wages or above.” Accordingly, when the Respondent was granted his pension on 7 April 2006, he was assessed against this requirement, and it was then accepted that he met this criterion. However the definition was changed from “30 hours per week” to “15 hours per week” from 1 July 2006, and, because of transitional provisions in the Act providing that anyone who made a disability support pension claim after 11 May 2005 and before 1 July 2006 must be reviewed under the 15 hours per week rule, the Respondent was reviewed on 6 August 2008. He was seen by three assessors who each completed a Job Capacity Assessment Report in which they assessed him as having a work capacity of 15-22 hours per week. As a result, his disability support pension was cancelled on 6 August 2008, the decision being affirmed by an authorised review officer on 4 February 2009. As already noted the SSAT upheld the respondent’s application to review the cancellation on 1 April 2009. The reasons for the SSAT’s decision are encapsulated in the final four paragraphs of its published decision.
“Section 94(5) defines “work” to be work that is of at least 15 hours per week at award wages or above and that exists in Australia, even if not within the person’s locally accessible labour market. Section 94(4) explains that a person is treated as doing work “ independently of a program of support” if, the person is unlikely to need a program of support or is likely to only need a program that is not ongoing or on an occasional basis.
It is not disputed that Mr Dowie has a reduced capacity to work and currently works irregular hours for various periods of time. He maintains that he can only work as he is by increasing his pain management medication and in the knowledge that at the end of the work period he can recover. In relation to the definition of work, the Tribunal considers it reasonable to assume that the 15 hours person week must be sustainable on an ongoing basis. This assumption is consistent with the Guide to Social Security at 3.6.2.112 which sets out that the ability to regularly report to work and persist at work tasks are factors to consider in determining a person’s inability to work.
Since the Tribunal has found that Mr Dowie cannot sustain work of 15 hours or more per week on an ongoing basis it is satisfied that he has a continuing inability to work and therefore satisfies section 94(1)(c) of the Act.
This means that Mr Dowie remains eligible to receive disability support pension and the decision to cancel his disability support pension is set aside.”
The present application for review came on for hearing in Launceston on 10 February 2010. The Applicant was represented by Mr Brian Sparkes and the Respondent appeared in person. Documentary evidence was tendered and received from Mr Sparkes and the Respondent gave oral evidence.
The Respondent appeared to me to be a credible witness and I accept that he has worked and has made efforts to obtain work to the best of his ability since he first received his disability support pension. He has consulted with employment agencies but with limited success. He said his physical condition has deteriorated “noticeably” since 2008. Nonetheless in January, February and March 2009 he had a significant amount of work as a traffic controller. In January 2010 he did work for Tas Alkaloid at Westbury. He agreed that he is qualified to drive fork lift trucks and said “I could do three hours per day for 5 days (per week) forklift driving if it was available. The Respondent contended, as he had before the SSAT, that he can work in “short bursts” of 15-22 hours per week. He said “I can cope because of increased medication and I know I will be have extended period of time to recover”. However it seems to be that the real reason for the Respondent’s inability to work regularly for periods of 15 hours per week or more is the current unavailability of suitable work in the Respondent’s readily accessible labour market (as to which see section 94(3)). The Respondent suffers from numerous ailments which have combined to produce his limited work capacity. There is however no need to reproduce the medical and other evidence which details the nature and extent of these conditions. There is no doubt that the Respondent has a reasonably substantial disability but he is not totally incapacitated. The Respondent was critical of some aspects of the report of Dr Micka Tabart, an occupational medical practitioner who provided a report to Centrelink dated 14 July 2009 (Exhibit A2). This report was very comprehensive and most helpful in giving a picture of the Respondent’s medical and employment history and his ongoing incapacities. In my opinion the respondent’s criticisms of the report were of a minor nature and overall were inconsequential.
I am of the view that at the time of the original decision to cancel the respondent’s disability support pension there was clear, and at that time, uncontradicted evidence that he was capable of working 15 hours or more per week within the meaning of the legislation. This was the view of Dr Tabart (see also her report of 4 February 2010 – Exhibit A6) and the assessors who provided the Job Capacity Assessment reports (Exhibit A1) and similar reports contained within the T-Documents. That this is the correct approach to an issue such as that now before the Tribunal is confirmed by the views of the High Court in Shi v Migration Agents Registration Authority (2008) HCA 31 (30 July 2008). See Kirby J at paragraph 44 and Haynes and Heydon JJ at paragraph 101.
I am fully satisfied that on 6 August 2008, and indeed for a substantial period thereafter, the respondent was not a person with a continuing inability to work within the meaning of section 94 of the Social Security Act 1991, following the legislative amendments of 2008. It is open to question whether the interpretation to question of section 94 adopted by the SSAT can be supported but I find it unnecessary to resolve that issue on this occasion. The application to review is upheld, the decision of the SSAT is set aside and the original decision cancelling the respondent’s entitlement to payment of a disability support pension is affirmed.
I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of C Wright (Deputy President)
Signed: .............................................................................
S. Kivela, Associate
Date of Hearing 10 February 2010
Date of Decision 24 March 2010
Applicant Self Represented
Solicitor for the Respondent Brian Sparkes, Centrelink
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