Giddings and Secretary, Department of Family and Community Servic Es
[2003] AATA 893
•12 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 893
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/171
GENERAL ADMINISTRATIVE DIVISION ) Re EDWARD GIDDINGS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date12 September 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work
Social Security Act 1991 - section 94 Schedule 1B
Social Security (Administration) Act 1999 Schedule 2
REASONS FOR DECISION
12 September 2003 Mr R G Kenny, Member Background
1. On 12 March 2002, Edward Giddings (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of disabilities he nominated as “asthma”.. On 8 May 2002, a delegate of Centrelink rejected the applicant’s claim. That decision was affirmed by an authorised review officer on 12 September 2002 and, in turn, by the Social Security Appeals Tribunal on 5 February 2003. On 27 February 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Appearances
2. The applicant attended the hearing but was not represented. Mr J Howard from the Service Recovery Team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
3. At the hearing, the following material was taken into evidence:
Exhibit 1:documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1–T25);
Exhibit 2:a medical report, dated 11 April 2003, from the applicant’s treating doctor, Dr Daniel Lean;
Exhibit 3:a medication summary, dated 4 April 2003;
Exhibit 4:a Ferritin test result, dated 6 December 2002;
Exhibit 5:a diagnostic polysomnography, dated 18 July 2002, from Snore Australia;
Exhibit 6:a medical report, received by the respondent on 12 June 2003, from Dr C Mitchell;
Exhibit 7:a printout, dated 17 June 2003, of the applicant’s record with the respondent;
Exhibit 8:a letter, dated 12 June 2003, from Centrelink to the applicant; and
Exhibit 9:a prescription, dated 17 July 2003, for the applicant in relation to gout medication.
Issues and Legislation
4. The issue in this matter relates to whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:
“(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.
(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 form 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.
(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.
(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely 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.”
5. In accordance with that provision, the Tribunal must determine:
§whether the applicant has a physical, intellectual or psychiatric impairment; and, if so
§whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so
§whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.
6. In this case, Mr Howard conceded that the applicant met the third of those requirements in relation to his continuing inability to work.
7. To qualify for a disability support pension, all of the requirements in section 94 of the Act must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of three months starting immediately after the day on which his claim was lodged as provided for in clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which relevantly read:
“3(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made. …
4(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
4(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.”
Applicant’s Case
8. The applicant, who was born on 2 November 1944, told the Tribunal that he was now in receipt of disability support pension and had been since a subsequent claim had been accepted by the respondent. He said that he had medical conditions beyond those referred to in his initial claim. These were sleep apnoea, gout, gallstones, allergic rhinitis, sinusitis, hay fever and post fracture left patellae. He conceded that the reports of his treating doctor allocated nil impairment for all of these except his sleep apnoea and the initially claimed condition of asthma. He submitted that ratings should be given to these two conditions and that the ratings nominated by Dr Lean of 10 points for each condition should be allocated. In relation to the sleep apnoea, he said that he had been sent for treatment initially for this condition on 25 May 2002 and that, therefore, it was a condition which he had within 13 weeks of his claim..
9. In relation to his knee condition, he said that this had almost returned to normal. He referred to the references in medical reports to his gallstones being a condition that was able to be surgically treated but he said that he did not wish to undergo surgery because there were always some risks associated with that. He said that he is troubled with the pain associated with his gout at times.
10. The applicant submitted that he met the requirements for the disability support pension to be made to him from the date of his claim because of the impairment associated with sleep apnoea and asthma.
Respondent’s Contentions
11. Mr Howard referred to the terms of section 94 of the Act and conceded that the applicant met the requirement of being unable to work. He also conceded that the applicant had a physical disability but submitted that, in the relevant period starting on the date of claim and running for 13 weeks, the only condition which attracted an impairment rating was asthma taken in conjunction with allergic rhinitis, sinusitis and hay fever. In relation to sleep apnoea, he submitted that the condition had not been fully treated and stabilised during the 13 week period after the applicant made his claim and that, therefore, no rating could be given to it.
12. Mr Howard also submitted that there could be no rating for the knee condition or for gallstones because the former was not a permanent condition and, for the latter, the applicant had the option of undergoing surgery.
13. In relation to the applicant’s asthma, allergic rhinitis, sinusitis and hay fever, he referred the Tribunal to the report of Dr Rolls, dated 8 April 2002 and of Dr Mitchell (exhibit 6) to support an overall rating of 10 points for the combined impairment associated with these conditions.
Discussion of Evidence and Findings on Material Facts
14. It is not in dispute that the applicant suffers physical impairment as a result of his asthma, hayfever, allergic rhinitis and sinusitis, sleep apnoea, gout, fracture left patella and gallstones. Section 94 of the Act requires the tables in Schedule 1B of the Act to be used in calculating impairment ratings and that schedule includes an introduction which sets out the methodology for applying the various tables. It provides that, for a rating to be assigned, the condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”. Further, it provides that the condition must be considered to be “permanent”.
15. The applicant’s treating doctor, Dr Lean, provided a report (exhibit 2) in which he allocated nil impairment for post fracture patella, gout and gallstones. That was also the opinion of the two doctors from Health Services Australia (HSA), Dr Rolls and Dr Mitchell. I am reasonably satisfied that a nil impairment rating is applicable to these conditions.
16. In relation to sleep apnoea, Dr Lean allocated 10 points under Table 21 of the impairment tables. However, Dr Mitchell, in his report, referred to medication trials that were being conducted for this condition. That is supported by the report from Snore Australia (exhibit 5) which advised that a sleep study was done on the applicant on 18 July 2002 and in which various treatment recommendations are referred to. I am satisfied that this condition was not fully investigated, treated and stabilised during the period of 13 weeks of the lodgement of the applicant’s claim and that a nil impairment is applicable.
17. The applicant’s asthma has been coupled with allergic rhinitis, sinusitis and hay fever for rating purposes by Dr Lean and by the HSA doctors and a rating of 10 points allocated under Table 21 of the impairment tables. In his report, Dr Lean referred to the rating criteria in Table 21 and gave the following descriptions:
“severity: 3
duration: prolonged
grading : F
frequency: 40 times per year”
18. Dr Lean calculated that this equated with 20 points under that table. However, an analysis of the table reveals that those criteria equate with 10 points and I am satisfied that this is the applicable rating for the applicant.
19. For the applicant to qualify for the disability support pension, all of the requirements of section 94 of the Act must be satisfied. The level of the applicant’s impairment is 10 points and this is less than the threshold of 20 points required by paragraph 94(1)(b) of the Act. It follows that an essential component of the provision is not met and that, therefore, the applicant was not qualified for disability support pension at the time of his claim or at any time in the 13 week period thereafter. As the applicant does not meet the requirements of paragraph 94(1)(b) of the Act, this makes it unnecessary to consider his capacity for work under paragraph 94(1)(c) of the Act although, as noted above, this has been conceded by the respondent.
Decision
20. The Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 5 September 2003
Date of Decision 12 September 2003The Applicant appeared in person
For the Respondent Mr Howard, Departmental Advocate
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