FLOYDD LITTLE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2010] AATA 151

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 151

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1971

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FLOYDD LITTLE

Applicant

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

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date1 March 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Social security entitlement – disability support pension – rejection of claim – Impairment does not amount to more than 20 points - decision affirmed.

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 Pt 2 cl 4

REASONS FOR DECISION

1 March 2010 Mr S Karas, AO, Senior Member

INTRODUCTION

1.      Mr Floydd Little (the applicant) applied to Centrelink on 5 November 2008 for disability support pension (DSP).  On 6 January 2009, Centrelink rejected his claim.  The applicant sought review of that decision by an authorised review officer and on 16 February 2009, the officer affirmed Centrelink’s original decision.  The applicant appealed to the Social Security Appeals Tribunal (SSAT) on 25 February 2009 and on 9 May 2009, the SSAT affirmed the decision to refuse his claim for DSP.  On 5 May 2009, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal).

ISSUES AND LEGISLATION

2.The issues for the Tribunal to determine are:

·     whether the applicant has a physical, intellectual or psychiatric impairment, and, if so,

·     whether the applicant has an impairment of 20 points or more under the Impairment Tables referred to in the Social Security Act 1991 (Cth) (the Act), and

·     whether the applicant has a continuing inability to work or be retrained in the next two years as defined in the Act.

3. Generally, to qualify for DSP an applicant must be assessed as having permanent medical conditions of such a severity that it prevents the applicant from being able to work for at least 15 hours a week for at least the next two years. The requirements are contained in s 94 of the Act and are read in conjunction with the Impairment Tables in Schedule 1B. An impairment rating may only be given for a permanent medical condition that has been fully diagnosed, investigated, treated and stabilised. In order for a medical condition to be considered stabilised, significant functional improvement must be unlikely to occur within the next two years with or without treatment. To be considered permanent, a medical condition must be likely to persist for the next two years or more.

4. In order to receive DSP, an applicant needs to qualify at the date of the claim (5 November 2008) or within 13 weeks of that date (4 February 2009) (see Part 2, Schedule 2, Clause 4 of the Social Security (Administration) Act 1999 (Cth)) (the Administration Act).

EVIDENCE

5.      A videoconference hearing to review this matter was held on 22 February 2010.  The applicant was unrepresented and Mr Hamilton appeared for the respondent.

6.The applicant gave oral evidence that can be summarised as follows:

·     He has applied unsuccessfully for positions with job agencies namely due to his medical conditions;

·     He takes Panadeine Forte tablets for his pain;

·     He does not have a regular doctor and has not seen one since approximately August 2009; 

·     He tries to be active and does some limited exercises at home;

·     He last worked some four years ago;

·     He has made efforts to work.  For example, he attempted to launch a car detailing business but had to abandon it after 7 months of operation due to lack of funds and unsatisfactory staff.

7.      Evidence was provided by Ms Amanda Chandler, a qualified psychologist and a Job Capacity Assessment Officer, who submitted her report regarding the applicant’s capacity to work to Centrelink in 2008.  In giving evidence she relied on the assessment she provided in her 2008 report where she assessed the applicant as having the capacity for light work of up to 22 hours a week. 

8.      For the respondent, Mr Hamilton referred to the applicant’s medical and Job Assessment Reports.  He referred to the finding that based on the applicant’s medical conditions, the applicant qualified for 15 points under the Impairment Table.  Mr Hamilton argued that without the applicant’s medical conditions being fully diagnosed, stabilised and treated he is unable to qualify for any more points.

9.      Mr Hamilton referred and relied upon the assessment reports in arguing that  the applicant could either work or train for up to 29 hours a week.  In summation, Mr Hamilton requested that the Tribunal affirm the decision.   

CONSIDERATION AND FINDINGS

10. Based on the evidence and material before it, the Tribunal finds that when the applicant applied for DSP he suffered medical impairments for the purposes of s 94 of the Act as follows:

·     Degenerative condition of the cervical spine, and to a lesser extent, thoracic spine;

·     Chronic back pain;

·     Pain in the right shoulder;

·     Positive serology to Ross River Virus.

11.     The Tribunal notes the applicant experiences chronic pain as a result of his medical conditions but he is not undergoing regular and continuing medical treatment for such pain.  He takes Panadeine Forte to help alleviate the pain but is not following a regular pain management regime. 

12.     The applicant’s job capacity has been assessed as being able to partake in light, less skilled work for at least 15-22 hours a week with a future capacity of 23‑29 hours a week (see Exhibit B).

13. Given the evidence and material before it, the Tribunal finds that the applicant is not entitled to any points under the Impairment Tables for the pain in his right shoulder and the positive serology to Ross River Virus. Even if the Tribunal were to allocate 15 points for the applicant’s chronic back pain and degenerative spinal conditions, he would still not have attained the 20 points needed to entitle him to DSP. Therefore, the Tribunal finds the applicant is unable to attain 20 points or more under the Impairment Tables as required by the Act. Consequently, the applicant does not qualify for DSP under s 94(1)(b) of the Act and thus, the Tribunal does not need to consider whether he has a continuing inability to work.

DECISION

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ................[Sgd].............................................................
              Kate Slack, Research Associate

Date/s of Hearing  22 February 2010
Date of Decision  1 March 2010
The applicant was self-represented
Solicitor for the Respondent     Mr Bob Hamilton, departmental advocate