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

[2013] AATA 255

[2013] AATA  255

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3196
Re	FWVM
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	26 April 2013
Place	Sydney

The decision under review is affirmed.

.........................[SGD]...............................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY — Disability support pension — Eligibility –– Whether claimed conditions result in a continuing inability to work — Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)) – s 34J

Social Security Act 1991 (Cth) – s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) – s 42, Sch 2

CASES

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560

REASONS FOR DECISION

Senior Member A K Britton

26 April 2013

1. The applicant is a 17-year-old school student who suffers from Usher Syndrome, a disorder characterised by a combination of congenital deafness, reduced visual acuity and night blindness. He also suffers from anxiety and attention deficit-hyperactivity disorder (ADHD). He applies to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal, to reject his claim for disability support pension (DSP). 

2. The applicant meets some of the requirements for DSP: he has turned 16 years of age and has a physical impairment which has been assigned an impairment rating of at least 20 points (s 94 of the Social Security Act 1991 (Cth) (the Act)). To qualify for DSP he must also demonstrate that he has a “continuing inability to work” because of the impairment(s). The Secretary contends that he does not satisfy that requirement.

3. Whether the applicant qualifies for DSP must be assessed by reference to the 13-week period following the date he made his claim, that is, 2 November 2011 to 31 January 2012 (the claim period): s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth).

4. Because of his age I have decided it would be inappropriate in these reasons to disclose the identity of the applicant. In these reasons he will be referred to as “the applicant” or by the pseudonym, FWVM.

   Determination of application

5. The applicant was represented by his mother in these proceedings. Neither attended the scheduled hearing. The Tribunal contacted the mother and it was explained that she had been unable to persuade her son to attend the hearing. Given those circumstances and with the consent of the parties, I determined the application for review “on the papers”, that is, without holding a hearing and on the basis of documents provided to the Tribunal (s 34J of the Administrative Appeals Tribunal Act 1975 (Cth)).

   IMPAIRMENT RATING

6. The applicant’s impairment must be assessed under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension contained in Sch 1B of the Act (the Tables). Before a rating for impairment can be assigned the condition must be permanent, that is diagnosed, treated and stabilised (Introduction to the Tables par [5]).

7. The applicant’s anxiety and ADHD cannot be awarded a rating under the Tables because neither was stabilised or treated during the claim period. The applicant’s GP referred the applicant to a psychologist but he declined to attend.

8. In contrast, the applicant’s Usher Syndrome was treated and stabilised. It has been assessed as attracting a rating of 35 points under the Tables. I adopt that assessment.

   DOES THE APPLICANT HAVE A CONTINUING INABILITY TO WORK?

9. Where, as in this case, a person has a severe impairment, namely an impairment which includes a single impairment of at least 20 points, s 94(2) provides they will be taken to have a continuing inability to work because of an impairment if the decision-maker is satisfied that:

   …

   (a)…--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)in all cases--either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

10. Section 94(3) provides that in deciding whether or not the applicant has a continuing inability to work because of an impairment, regard must not be had to:

    (a)the availability to the person of a training activity; or

    (b)the availability to the person of work in the person's locally accessible labour market.

11. “Work” is defined in s 94(5) to mean work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person's locally accessible labour market.

    Is the applicant’s impairment of itself sufficient to prevent him from doing any work independently of a program of support within the period, November 2011 to January 2014?

12. As a result of Usher’s Syndrome the applicant now has mild/moderate hearing loss, reduced night and peripheral vision. He is currently a full-time student enrolled in year 12. He wears hearing aids and reported to a Centrelink job capacity assessor in January 2012 that his eyesight is stable and he reads without difficulty. He is apparently performing well at school, and participates in a mainstream class. He receives some assistance with note taking and transport to and from school. He reported to the job capacity assessor that he is interested in pursuing a career in engineering or architecture.

13. The applicant’s mother argues that her son would be unable to work because he could not get himself to and from work on account of his night blindness.

14. The question to be answered is whether the applicant’s impairment because of Usher’s Syndrome i.e. reduced hearing and vision, especially in relatively low light, is of itself, sufficient to prevent him from doing work for which he has the skill and experience, of at least 15 hours per week, independently of a program of support: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560 at [29], [31]. That assessment must be undertaken in respect of the period commencing on the date he lodged his claim for DSP, and ending two years after the claim period (2 November 2011 to 31 January 2014) (the subject period). Whether the applicant is able to do “any work independently of a program of support” is to be assessed against a “normal” workplace and not one where significant allowances or adjustments are made to accommodate his disability or where the employer could be described as “benign”: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris at [34].

15. The applicant has no employment experience and is yet to attain the NSW Higher School Certificate. His lack of experience and educational qualifications coupled with his disabilities will undoubtedly reduce the class of work for which he is suited. The job capacity assessor concluded that without assistance he would have the capacity to undertake moderate/less skilled work at between 23 to 29 hours per week, during the subject period. While without transport assistance his night blindness would make it extremely difficult, if not impossible, to work those hours, on the material provided I could not be satisfied that he would be unable to work 15 hours per week. That finding is consistent with the applicant’s demonstrated ability to attend school on a full-time basis and perform to a high standard.

16. Not being satisfied that the applicant’s impairment is of itself sufficient to prevent the applicant from doing any work independently of a program of support, I am unable to find that he has a “continuing inability to work”. Accordingly he does not satisfy the requirements for grant of DSP and the Secretary’s decision to refuse his claim must be affirmed.

    OPTIONS FOR THE FUTURE  

17. The applicant’s mother is deeply concerned about her son’s future. She is concerned that his anxiety and ADHD, if untreated, will reduce his capacity to work and continue with his education. It is obviously in the applicant’s best interest to continue with his studies so that he can broaden his employment options. Centrelink’s representative has undertaken to provide information to the applicant and/or his mother about the services that are available to assist him in the future. I am grateful for that assistance.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

...............[SGD].........................................................

Associate

Dated 26 April 2013

Date(s) of hearing	18 April 2013
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch