Gailis and Secretary, Department of Employment and Workplace Relations
[2006] AATA 331
•7 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 331
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/174
GENERAL ADMINISTRATIVE DIVISION ) Re CARLA LYDIA GAILIS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date7 April 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension – continuing inability to work – capacity for educational or vocational training – decision affirmed.
Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(5)
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
REASONS FOR DECISION
7 April 2006 Senior Member R W Dunne 1. This is an application by Carla Gailis (“applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 25 May 2005. The SSAT affirmed a decision of an Authorised Review Officer of Centrelink dated 14 March 2005, to refuse the applicant’s claim for Disability Support Pension (“DSP”), but found that the applicant had a combined impairment rating of 20 points under the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 (“Act”).
2. At the hearing, the applicant represented herself and was assisted by her father, Mr George Gailis. Mr Christian Goldsworthy, a Centrelink advocate, represented the Secretary to the Department of Employment and Workplace Relations (“respondent”).
3. The Tribunal received into evidence the T documents tendered under s 37 of the Administrative Appeals Tribunal Act 1975 (exhibit R1) and a report from the applicant’s treating doctor (Dr Linde) dated 16 September 2005, which was tendered by the respondent (exhibit A1).
background
4. The applicant was born on 1 October 1983. During the course of the hearing, the applicant appeared somewhat reluctant to provide the Tribunal with details of her background and became visibly upset when certain issues were raised. However, the Tribunal has been aided by the report of a Centrelink psychologist dated 16 May 2003, in connection with a prior claim for Newstart Allowance, which relevantly provides in relation to the applicant (exhibit R1, T15 at page 85):
“Difficult early home life and reported eating disorder throughout most of childhood. Family members have mental health history. Poor peer relationships during primary education. Not [sic] difficulties academically. Secondary school okay till year 10 when commenced substance abuse. Reported that she had hypochondriacal features whilst at school. Ceased school part way through year 12 after suspension due to substance use. Father evicted her from home. Lived with sister who evicted her. Then commenced sleeping under jetty or in friend’s car. Longest employment 4 months left due to difficulties with management. This was followed by one month as a cook/kitchenhand and one day waitressing (left following dispute with manager). Commenced 4 hour per week bridging course to enable university entry but difficulties due to poor concentration. History of self harm. …”
5. On 20 September 2004, by application dated 19 September 2004 (exhibit R1, T19) the applicant applied for DSP. The following is a chronology, largely from Centrelink records, of the events that followed:
11 October 2004 – claim for DSP rejected as treating doctor’s report not provided;
22 November 2004 – treating doctor’s report lodged;
23 December 2004 – medical assessment provided by Dr Ducrou, Health Services Australia;
30 December 2004 – claim for DSP rejected – applicant did not have an impairment rating of at least 20 points under the Impairment Tables – notice of decision forwarded to applicant;
28 January 2005 – further medical assessment by Dr Ducrou, Health Services Australia;
9 February 2005 – Centrelink original decision-maker reviews claim for DSP – affirms decision – applicant notified of affirmation;
14 March 2005 – Centrelink original decision-maker’s decision reviewed by Authorised Review Officer – decision affirmed;
12 April 2005 – application for review of Centrelink decision by SSAT;
24 June 2005 – application for review lodged with this Tribunal.
issues for consideration and legislation
6. The sole issue for the Tribunal to consider in this case is whether the applicant has a continuing inability to work within the meaning of s 94(1)(c)(i) of the Act.
7. Section 94 of the Act relevantly provides as follows:
(1) 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)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see section 23(1) and Schedule 1B.
(2)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 2 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 2 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 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person’s locally accessible labour market.
…
(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
evidence
8. The applicant gave oral evidence that she suffered from depression and myotonic dystrophy. These conditions were accepted by the respondent as permanent or long-term medical conditions. The respondent also accepted that, at the date of her claim for DSP, the applicant should have been assessed as having 20 impairment points under the Impairment Tables. The applicant’s evidence was that her myotonic dystrophy caused muscle weakness, writing difficulties and problems with her jaw locking and swallowing. She had difficulties with writing, suffered from tiredness and lacked concentration. She said her depression was part of, or was associated with, her myotonic dystrophy. As a consequence of that condition, she often became emotional and tearful and “felt down”. She had been studying creative writing full-time at Flinders University during the 2004 academic year. However, she did not enrol full-time in 2005 and she had not enrolled in 2006. She said it was unlikely that she would qualify for her degree.
9. The applicant was questioned about the University subjects in which she had enrolled in 2004 and 2005. She was invited to forward her transcript to the Tribunal, along with submissions relating to the subjects she studied and the results she obtained. The same opportunity for submissions was afforded to Mr Goldsworthy.
10. Under cross-examination by Mr Goldsworthy, the applicant said that, at the time of lodging her application for DSP, she was enrolled with the University but was not attending lectures or tutorials. She had been failed in some subjects because she was unable to complete them.
11. In his assessment report dated 23 December 2004 (exhibit R1, T24 at page 155), Dr Ducrou found that the applicant suffered from depression which was a permanent condition and she had mild to moderate symptoms which would cause some loss of efficiency, but would not prevent work. In his later report dated 28 January 2005 (exhibit R1, T27 at page 188), Dr Ducrou confirmed that the applicant was a “carrier” for myotonic dystrophy and was, at that stage, asymptomatic. The myotonic dystrophy gene was not currently affecting her in any physical way and she was fit for full-time study.
12. In his report dated 22 November 2004 (exhibit R1, T 22 at pages 142-146) , the applicant’s treating doctor (Dr Linde) made the following points about the applicant’s medical conditions:
·the applicant had suffered from depression since 2000, which caused low mood, teariness and difficulty in concentrating;
·the applicant has had psychiatric treatment in the past and at present was being treated with anti-depressants;
·the applicant’s depression was expected to fluctuate and to be present for 3-24 months;
·the applicant had myotonic dystrophy and had a family history of the condition. The symptoms at the time were fatigue and muscle fatigue, especially muscles of the hand and of breathing;
·the applicant’s myotonic dystrophy was permanent and was expected to fluctuate.
consideration
13. In order to qualify for DSP, the applicant must satisfy the relevant requirements in s 94(1) of the Act. These relevant requirements are contained in ss 94(1)(a)(b) and (c). It is accepted (and the Tribunal is satisfied) that the applicant:
·has a physical, intellectual or psychiatric impairment; and
·has an impairment of 20 points or more under the Impairment Tables.
To demonstrate that she has a continuing inability to work, the applicant must satisfy the Secretary (and the Tribunal) that:
·her impairment is of itself sufficient to prevent her from doing any work within the next two years; and
·either:
othe impairment is of itself sufficient to prevent the applicant from undertaking educational, vocational or on-the-job training during the next two years; or
oif the impairment does not prevent the applicant from undertaking educational, vocational or on-the-job training, such training must be unlikely, because of the impairment, to enable the applicant to do any work within the next two years.
(emphasis added)
14. Mr Goldsworthy referred to the report of Dr Linde (exhibit A1). He submitted that the report contained inconsistencies. Dr Linde that the applicant’s condition had been diagnosed at the Women’s and Children’s Hospital on 21 September 2004. However, the applicant’s claim for DSP (exhibit R1, T19 at page 125) indicated that treatment for her myotonic dystrophy had commenced on 1 July 2004 and that the condition had made it difficult for her to work or study full-time from August 2004. Mr Goldsworthy also submitted that Dr Linde’s report had been based on a template which the respondent had sent to the applicant and, as such, the report was plagiaristic and self-serving in its nature.
15. In considering the applicant’s case, the Tribunal has gained assistance from the decision of the Tribunal in Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 where at paragraphs 34, 37 and 38 Deputy President S D Hotop and Dr P A Staer, Member said:
“34. The Tribunal turns to the first of the questions posed by Drummond J in Pusnjak (above), at para [32]. For the purpose of addressing that question the Tribunal notes that, in accordance with the definition of the word "work" in s 94(5) of the Act, the relevant work must be "for at least 30 hours per week at award wages or above". The Tribunal also notes, and accepts, the respondent’s concession that the expression "any work" in s 94(2) of the Act should be qualified so as to exclude work which is unlawful or which involves a contravention of occupational health and safety legislation. Apart from that qualification, and the qualifications necessarily implied in s 94(3), and expressed in the definition of "work" in s 94(5), of the Act as discussed by Drummond J in Pusnjak, at paras [29]-[30], the Tribunal does not accept that the expression "any work" in s 94(2) of the Act admits of any other qualification. In particular, the Tribunal does not accept that the expression "any work" in s 94(2) of the Act should be interpreted so as to mean any suitable work in the sense adopted by the Tribunal in Re Secretary, Department of Social Security and Chin (1998) 52 ALD 337 at 343. Such a qualified interpretation would be inconsistent with the literal words of s 94(2) of the Act and would, in the Tribunal’s opinion, be contrary to the intention of the legislature when enacting that provision. The Tribunal is fortified in that opinion by a comparison between s 94(2) of the Act, on the one hand, and ss 541(1), 541D, 601 (1) and 601(2A) of the Act, on the other. Whereas the latter provisions expressly refer to "unsuitable" work in the context of qualification for Youth Allowance and Newstart Allowance, s 94(2) of the Act refers generally to "any work" and contains no express reference to suitable/unsuitable work. The explanation for that distinction is clear. Sections 541(1), 541D, 601(1) and 601(2A) are concerned with a requirement that the person is actively seeking, and is willing to undertake, work and, in that context, the suitability/unsuitability of that work is, appropriately enough, expressly made a decisive consideration. By contrast, s 94(2)(a) of the Act is concerned with the person’s incapacity, by reason of physical or mental impairment, to do "any work", rather than with the particular kinds of work that the person’s impairment prevents them from doing.
…
37. … The point, for the purpose of determining whether the applicant satisfies the "continuing inability to work" qualification criterion specified in s 94(1)(c)(i) of the Act, is not whether or not the applicant would be required to, or should, do menial work or unskilled work, but rather whether or not the applicant’s impairment is of itself sufficient to prevent her from doing any work (as defined in s 94(5)) within the next 2 years. Accordingly, the Tribunal has derived little assistance from those reports in this case.
38. The Tribunal’s abovementioned finding that the applicant, at the material time, did not satisfy s 94(2)(a) of the Act makes it unnecessary for the Tribunal to make a finding regarding s 94(2)(b) of the Act. Were it necessary for it to do so, the Tribunal would find, on the whole of the evidence and material before it, that at the material time, having regard in particular to the applicant’s successful progress in her university studies in the second semester of 2002, her impairment was, of itself, not sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next 2 years, and that such training was not unlikely (because of her impairment) to enable her to do any work (as defined in s 94(5)) within the next 2 years, within the meaning of s 94(2)(b) of the Act.”
16. The Tribunal accepts the reports of Dr Ducrou and prefers them to the report of Dr Linde, which appears to have been prepared in some haste and which, in parts, uses language that does not seem consistent with the applicant’s actual conditions. It is clear from Dr Ducrou’s reports that, at the time the applicant applied for DSP, she had symptoms that would cause loss of efficiency, but would not prevent her from working or studying. In the case of the applicant’s myotonic dystrophy, she was asymptomatic at the time and she was not then being affected by the condition in any physical way. The Tribunal concludes that the applicant would, at the time she applied for DSP, be able to attend appropriate educational or vocational training designed to train (or re-train) her and assist her to enter (or re-enter) the workforce. For this reason, the Tribunal finds that the impairments suffered by the applicant are not of themselves sufficient to prevent her from undertaking educational, vocational or on-the-job training during the two years following the making of her application (s 94(2)(b)(i) of the Act), or that training is unlikely (because of the impairments) to enable her to do any work within the two years following the date of her DSP application (s 94(2)(b)(ii) of the Act).
17. Consequently, the Tribunal finds that the applicant has not demonstrated a continuing inability to work and does not satisfy s 94(2) of the Act. Hence, she is unable to satisfy s 94(1)(c)(i) and s 94(1)(c)(ii) does not apply. It follows that she cannot satisfy s 94(1). Consequently, at the relevant time, the applicant did not qualify for DSP and the decision to refuse the claim was correct.
18. As she had been invited, the applicant forwarded to the Tribunal a copy of her unofficial transcript from Flinders University. However, she did not put to the Tribunal any submissions that would be of assistance to it in relation to the subjects she studied and the results she obtained.
decision
19. The Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard...........................................
AssociateDate of Hearing 18 January 2006
Date of Decision 7 April 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr C Goldsworthy
Solicitor for the Respondent Centrelink Legal Services Branch
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