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

[2008] AATA 917

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 917

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4030

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELIZABETH DUBI

Applicant

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

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr MEC Thorpe, Member

Date7 October 2008

PlaceSydney

Decision  For the reasons given orally at the conclusion of the hearing, the decision under review is set aside and this matter is remitted to the Respondent with the Direction that the Applicant was qualified for the payment of Disability Support Pension as and from 8 September 2006.

...................[Sgd]........................

M D Allen

Senior Member

CATCHWORDS

SOCIAL SECURITY – whether Applicant qualifies for disability support pension – decision under review set aside.

Social Security (Administration) Act 1999 - s 42, Schedule 2

Social Security Act 1991 - s 94, Schedule 1B

REASONS FOR DECISION

7 October 2008 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision. 

I certify that this and the preceding pages are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ................[Sgd]....................
  Associate

Date of Hearing  7 October 2008        
Date of Decision  7 October 2008
Appearance for the Applicant         Mr Paul Thorsby, Bullivants Legal
Appearance for the Respondent    Mr Ken Bullock, Centrelink Legal Services

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN: By application made 23 August 2007, the applicant sought review of a decision by a social security appeals tribunal made 18 July 2007, affirming a prior determination to refuse the applicant's claim for disability support pension. The applicant's claim for disability support pension was made on 8 September 2006, pursuant to section 42 and schedule 2 to the Social Security Administration Act 1999, the tribunal is constrained to consider a person’s entitlement to disability support pension for the period of 13 weeks commencing on the date that the claim is made. The criteria for the grant of disability support pension are set out in section 94 of the Social Security Act (1991). That section reads inter alia, a person is qualified for disability support pension if they have a physical, intellectual or psychiatric impairment, which amounts to 20 points or more under the impairment tables, and has a continuing inability to work.

The impairment tables referred to in paragraph 94(1)(b) Social Security Act are found in schedule 1(b) to the said Act. The term “a continuing inability to work” is defined in subsection 94(2) of the Social Security Act in the following terms.

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 two 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 two 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 two years.

As at 8 September 2006, the applicant suffered from essential hypertension and anxiety/depression (see the reports of Dr Raul at exhibit A12); and according to Dr Shaffey, neurologist, has a background history of hyperthyroidism.  In her report of 29 January 2008, Dr Harvey Sutton, consultant occupational physician, stated that the applicant would be incapable of getting and retaining any work for at least 15 hours per week within the next two years. 

During the course of these proceedings it became clear that the applicant's main incapacity was related to her hypertension, as it has resulted in both impaired concentration and memory loss together with a tendency, at least once a month, to suddenly lose balance and fall.  The applicant's treating general practitioner has been prescribing anti-hypertensive medication for several years.  A difficulty is that, although the medication causes ongoing impairment, it is necessary as there is a history of cerebrovascular accidents (stroke) in the applicant's family.

Having regard to the applicant's evidence in these proceedings and the evidence from her husband, we find that the applicant's major impairment is her hypertension which, as said, leads not only to a fall but also to impaired memory concentration and an inability to carry out her normal tasks.  The effects of her hypertension can be assessed under table 20 of schedule 1B. 

We also find that, as at the application day, the applicant's hypertension was fully diagnosed, investigated, treated and stabilised.  Applying table 20 schedule 1B, we find from the evidence the applicant has a decreased ability to carry out many every day activities.  Symptoms can prevent or lead to avoidance of some daily tasks, and simple tasks will usually aggravate symptoms of fatigue.  Symptoms do cause significant interference with her ability to perform or persist with work-related tasks. 

Under the heading 20 it says:

Symptoms may cause prolonged absences from work

But we find that the applicant is even more severely impaired, in as much as the symptoms have resulted in an absolute inability to carry out her normal work as a nursing sister.  We find that 20 is the appropriate assessment under table 20.  Therefore, with a finding that she has 20 impairment points and a continuing inability to work, the applicant qualifies for disability support pension.  The decision under review will, therefore, be set aside and this matter remitted to the respondent with the direction that, as at 8 September 2006, the applicant was qualified for the grant of disability support pension. 

END OF EXTRACT  [12.41 pm]