Gorgievska and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 783

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 783

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2248

GENERAL ADMINISTRATIVE DIVISION		)
Re		Susan Gorgievska

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member A K Britton

Date13 October 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY–– Newstart allowance – activity test – temporary exemption based on incapacity

Social Security Act 1991 (Cth) — ss 593, 603C, 603F

REASONS FOR DECISION

13 October 2010 Senior Member A K Britton

1.      Ms Susan Gorgievska was granted Newstart Allowance in May 2009. She seeks review of a decision made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal not to exempt her from the Newstart Allowance “activity test” for the period, 17 February 2010 to 17 May 2010 (“the relevant period”). As a consequence of that decision, Ms Gorgievska did not receive Newstart Allowance throughout that period. Under the Social Security Act 1991 (Cth) (“the Act”), a person may be exempted from the “activity test” where they are incapacitated due to illness or accident. The key issue to be determined in this review is whether Ms Gorgievska was incapacitated for work throughout the relevant period.

Legislative provisions

2. To qualify for the Newstart Allowance a person must, among other things, satisfy the “activity test” or not be required to satisfy the activity test: s 593(1)(b) of the Act. A person satisfies the “activity test” in respect of a period if they satisfy the decision maker that, throughout the period, they are:

(a) actively seeking; and

(b) willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

3.      Where a person is incapacitated due to illness or accident they may apply for a temporary exemption from the activity test:

603C Incapacitated person not required to satisfy activity test

(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

(a) throughout the period the person is incapacitated for work because of sickness or an accident; and

(b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c) the incapacity is, or is likely to be, of a temporary nature; and

(d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for Newstart allowance; and

(e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i) the medical practitioner's diagnosis; and

(ii) the medical practitioner's prognosis; and

(iii) that the person is incapacitated for work; and

(iv) the period for which the person is incapacitated for work; and

(f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

…

4. "Work" is defined by s 603C(2) to mean work (whether full-time, part-time, permanent or casual) that:

(a) is of a kind that the person could, in the Secretary's opinion, be reasonably expected to do; and

(b) is for at least 8 hours per week on wages that are at or above the relevant minimum wage.

Background

5.      Ms Gorgievska’s GP certified her unfit for work and study for the period, 14 October 2009 to 14 November 2009. The GP provided a diagnosis of “major exacerbation of depression, acute anxiety and panic attacks, and gastroesophageal reflux disease”. On the basis of that certificate, Centrelink exempted Ms Gorgievska from the activity test and referred her for a job capacity assessment.

6.      In an undated report prepared following an assessment conducted on 5 November 2009, the assessor stated that Ms Gorgievska’s capacity for work was temporarily limited to nil to seven hours per week. She provided the following rationale for that opinion:

… [G]iven the ongoing symptoms related to the depression and anxiety that result in panic attacks that occur on a daily basis, sadness, low mood, insomnia, inability to concentrate and social isolation, counselling is to continue. Reflux condition results in heartburn, this condition is being investigated through further testing. It is expected that Ms Gorgievska will require this amount of time in order to stabilise and manage her condition through ongoing treatment.

7.      The assessor was of the opinion that any incapacity Ms Gorgievska might suffer was temporary in nature — that is, extending from 14 October 2009 to 14 February 2010 — and that at the end of that period she would be capable of working thirty hours or more per week in light semi-skilled work.

8.      On 17 February 2010, Ms Gorgievska’s GP issued a further medical certificate certifying her unfit for work for the period, 17 February 2010 to 17 May 2010. In addition, the GP certified that Ms Gorgievska was unable to work for more than eight hours per week and undertake her usual study. The conditions nominated by the GP as causing Ms Gorgievska’s incapacity were broadly the same as those she had nominated in the medical certificate issued by the GP in October 2009. The GP wrote that “problems with anxiety, depression, and concentration” impacted on Ms Gorgievska’s ability to participate in work and study.

9.      In a decision made on 18 March 2010, a Centrelink Authorised Review Officer (ARO) concluded that Ms Gorgievska had a work capacity of at least 15 to 22 hours per week. The ARO noted that Ms Gorgievska was attending six hours per week of face-to-face classes and undertook an additional two hours study each day. While not expressly stated, it would appear that the ARO’s finding that Ms Gorgievska was fit for work was made on the basis of that information and the November 2009 Job Assessor’s report.

period of exemption

10. Section 603F of the Act provides that exemption from the activity test under s 603C can be granted for a maximum period of 13 weeks, or the period specified in the medical certificate, whichever is the lesser. Where certain criteria are met, the initial period of exemption can be extended: s 603F(4). Where amongst other things, the Secretary is satisfied that the person’s circumstances make it unreasonable to expect them to obtain a further medical certificate either during their maximum exemption period or within 14 days after the end of that period, the Secretary may extend the person’s maximum period of exemption for a period of not more than four weeks: s 603F(5).

11.     The decision to extend the maximum exemption period for a further 13 weeks — that is, for the period, 15 November 2009 to 16 February 2010 — was apparently made on the basis of the assessor’s opinion alone. Absent a medical certificate, it was not open to the Secretary to extend the maximum exemption period beyond four weeks.

12.     At the commencement of the relevant period, Ms Gorgievska had been exempted from the activity test for a period of four consecutive months. Nonetheless in this review, I have treated Ms Gorgievska’s application as an application for an initial exemption from the activity test rather than an application for an extension of the maximum exemption period because in my view, the Secretary was without power to extend the maximum exemption period to 16 February 2010.

Findings and conclusions

13.     The key issue to be determined is whether, throughout the relevant period, Ms Gorgievska was incapacitated for work, being at least eight hours per week of full-time, part-time permanent or casual work, of a kind which she could reasonably be expected to do. Ms Gorgievska agreed with the opinion of the assessor that the type of work for which she was suited was light, semi-skilled work, such as administration, reception, retail and customer service. I am also satisfied that that class of work constitutes work of a kind Ms Gorgievska could be reasonably be expected to do

14.     As noted, Ms Gorgievska attended six hours per week of classes throughout the relevant period. At the time she was enrolled in a bachelor of laws at the University of Western Sydney. She denied telling the ARO that she undertook an additional two hours per day of independent study throughout the relevant period. She agreed that throughout the relevant period that it was a course requirement that she complete assignments, read prescribed material etc., and that she had met those requirements. When asked in these proceedings to provide an estimate of the amount of additional study, if any, she had undertaken, throughout the relevant period, she refused to do so and merely replied that any additional study “was optional”.

15. There is no argument that the pre-condition to granting an exemption to the activity test for the relevant period is met, in that Ms Gorgievska has provided a medical certificate that satisfies the requirements of s 603C(1)(e) of the Act. While the opinion of a qualified medical practitioner about their patient’s capacity for work deserves great weight, I am satisfied that in the circumstances of this case a departure from that opinion is warranted. First, despite her GP’s opinion that she would be unable to undertake her usual studies throughout the relevant period, Ms Gorgievska was in fact able to do so. Second, even if accepted that Ms Gorgievska did not, as the ARO recorded, undertake two hours per day of additional study, on her own account she completed necessary assignments and other ancillary tasks throughout the period. Her case was not assisted by her refusal to provide an estimate of the amount of additional study she did undertake. This is somewhat surprising given that in her application for review to the AAT, Ms Gorgievska nominated the SSAT’s allegedly erroneous finding that she had undertaken at least 16 hours per week of independent study as one of the reasons for seeking review of that decision. I find it more probable than not that Ms Gorgievska undertook at least ten hours per week of study throughout the relevant period. Whether those additional hours were “optional” in my view is irrelevant to the assessment of capacity.

16. A person who is able to undertake study throughout a particular period is not necessarily capable of performing “work” within the meaning of s 603F(2) of the Act throughout that period. Their ability to do so depends on, among other things, the nature of their incapacity, the type of work and the work environment. A person such as Ms Gorgievska who suffers from, among other things, depression and anxiety, may be able to study towards a law degree but struggle to undertake tasks that require her to work as a part of a team or deal with members of the public. Ms Gorgievska was invited to provide an explanation as to why she was able to complete a course of study during the relevant period but unable, in her opinion, to undertake throughout that period, at least eight hours per week of work of a type for which she is suited. None was provided. I therefore have no basis on which to conclude that her proven capacity for study could not translate into a capacity for employment. In reaching that conclusion, I have had regard to the wide range of work for which Ms Gorgievska is suited and the amount of time spent on her studies throughout the relevant period.

17.     I am satisfied that Ms Gorgievska was capable of performing at least eight of work throughout the relevant period and must therefore affirm the Secretary’s decision.

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

Signed: ................................[SGD].......................................
  Associate to Senior Member Britton

Date of Hearing:  29 September 2010
Date of Decision:  13 October 2010
The applicant was self-represented.
Solicitor for the Respondent:     Centrelink Legal Services