Hanna Ford and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 651
[2013] AATA 651
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5280
Re
Hanna Ford
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 12 September 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; s 94(3B); Sch 1B; Sch 2;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
Re Hamal and Department of Social Security (1993) 30 ALD 517
REASONS FOR DECISION
Senior Member A K Britton
12 September 2013
In late 2009 Ms Hanna Ford was diagnosed as suffering from Parkinson’s disease, a progressively degenerative neurological disorder which affects a person’s ability to control their body movements. She 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 her claim for disability support pension (DSP) made in March 2012.
To qualify for DSP Ms Ford must demonstrate that she has:
an impairment of 20 points or more (s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act)), and
a “continuing inability to work” because of the impairment (s 94(1)(c)(i)), and
undertaken a “program of support” unless found to have a “severe impairment” (s 94(2)(aa)).
It is agreed that Ms Ford has an impairment rating of at least 20 points. The key questions to be decided are whether Ms Ford’s impairment can be characterised as a “severe impairment” and whether she has “a continuing inability to work”.
IS MS FORD’S IMPAIRMENT A SEVERE IMPAIRMENT?
Ms Ford’s impairment must be assessed under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Tables). Before a rating for impairment can be assigned any condition claimed to give rise to impairment must be permanent, that is, diagnosed, treated and stabilised, and likely, in light of the available evidence, to persist for more than two years (ss 6(3) and 6(4) of the Tables). There is no argument that in the claim period Ms Ford was diagnosed as suffering from Parkinson’s disease and met these criteria.
The assessment of Ms Ford’s impairment rating must be undertaken by reference to the 13-week period following the date she made her claim for DSP, that is, 5 March 2012 to 4 June 2012 (the claim period) (see s 42 and Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth).
In March 2012 at the request of Centrelink, Ms Ford was assessed by psychologist Ms Sarah Masters. Ms Masters awarded Ms Ford a total impairment rating of 30 points made up as follows:
10 points Table 1 Functions requiring physical exertion and stamina 5 points Table 2 Upper limb function 10 points Table 7 Brain function 5 points Table 13 Continence function
Ms Ford testified that her condition has deteriorated markedly in the 15 months since lodging her claim for DSP. In these proceedings she said she found it difficult to give an accurate description of the symptoms she experienced during the claim period, pointing out that memory loss was one of the symptoms of her condition. I accept that Ms Ford’s condition has deteriorated and that she finds it difficult to recall with accuracy how her condition affected her functional capacity in the claim period. Ms Ford impressed me as a truthful witness who did not attempt to exaggerate or embellish her symptoms.
On the available material I think Ms Masters’ assessment of the level of Ms Ford’s impairment was probably accurate. I agree however with the Secretary that, absent some corroborative evidence, for example a report from her treating doctor, an assessment under Table 13 cannot be made (see introduction to Table 13). I find that during the claim period Ms Ford had a total impairment rating of 25 points.
During the claim period Ms Ford met one of the criteria for the grant of DSP, namely an impairment rating of at least 20 points. However she did not have a “severe impairment” within the meaning of the Act, namely an impairment of at least 20 points under a single impairment table (s 94(3B) of the Act). To qualify for DSP she was therefore required to have participated in a program of support. Ms Ford has not undertaken such a program and consequently does not qualify for DSP (Part 2 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)). It follows that the decision under review, to refuse Ms Ford’s claim for DSP, must be affirmed notwithstanding as the evidence makes plain that she was significantly disabled during the claim period.
FRESH CLAIM FOR DSP
Ms Ford foreshadowed that if unsuccessful in these proceedings she intends to make a fresh claim for DSP. Any new claim must be assessed by reference to Ms Ford’s level of impairment as at the date of claim, and a period of 13 weeks thereafter.
In these proceedings Ms Ford gave detailed evidence relevant to her current level of impairment. Given that she intends to make a new claim for DSP, I have decided to record that evidence and my opinion about the appropriate impairment rating. I have also decided to consider the submissions made by the parties about an issue ventilated at hearing, namely the meaning of the phrase “a continuing inability to work” within s 94(1)(c)(i). As explained to Ms Ford, any conclusion reached on either issue is not binding on future decision-makers.
Current level of impairment
Given that Parkinson’s is a disease of progressive deterioration and Ms Ford has been fully treated for that condition, it is highly unlikely that in any future assessment of impairment she will be awarded an impairment rating of less than 20 points. The real issue in any future assessment will be whether Ms Ford’s condition has deteriorated to such an extent that she has a “severe impairment” because if so, the requirement to undertake a program of support does not apply.
As a starting point in the assessment of Ms Ford’s current level of impairment it is useful to record the comments made by Ms Masters in her report of 27 April 2012:
Fatigue: Hanna can walk for 5 minutes but gets tired from this, and at times will experience a rapid onset of fatigue requiring her to sit or stabilise. She has had trouble with falls, so she avoids periods of walking. She is not able to walk to the shops independently, and instead drives or has her daughter drive to the shops. Hanna reported climbing a set of stairs to get in to her building, and she finds these tiring but persists with them independently. She reported difficulties changing bed sheets, partly related to fatigue and partly related to physical stiffness and poor balance. Due to stiffness from sustained postured, Hanna required regular breaks from sitting to walk or move, and conversely she in unable to walk for long periods.
Upper limb: Hanna reports difficulties with writing for more than a minute at a time, but is able to more easily use a computer keyboard as required at work. She reported being unable to do up buckles on her shoes due to problems with flexibility to reach them, rather than due to dexterity or hand strength. She reported being able to unscrew lids on bottles, turn pages in a book and lift light items, but she would struggle with more than 1kg lifting on a regular basis. She experiences pain in the right hand, and increasing stiffness and shaking. Her left hand is now predominantly used for lifting and carrying tasks, but she noted stiffness with lifting cups, mugs and bowls. She has adapted well to her condition but struggles on a daily basis with movement in her hands.
Bladder: Hanna reported having urinary urgency with occasional leakage due to not making it to the toilet quickly enough.
Concentration: Hanna struggles to concentrate on tasks at work, and reported she is required to multitask (open mail, answer phones, sort payments, talk to colleagues etc) and she finds it very difficult to keep up with her expected productivity. Her colleagues are reportedly supportive, however she feels in general that maintaining her work activities is a strain, and she may make more mistakes than previously, and has noticed falling behind due to concentration problems. Although she has reduced her work hours, she continues to notice this change.
In a report dated 1 May 2013, Ms Ford’s general medical practitioner (GP) of 14 years recorded that:
·Parkinson’s disease affects all aspects of Ms Ford’s life and her ability to work
·Ms Ford finds it increasingly difficult to perform daily tasks such as cleaning, shopping, cooking and dressing
·Ms Ford has balance problems and can only stand for short periods
·Ms Ford’s hands are becoming increasingly stiff and painful making using the keyboard and writing more than a few words, difficult
·Parkinson’s is causing Ms Ford to experience periods of extreme tiredness making it extremely difficult to work more than 15 hours per week.
Ms Ford testified said that she now finds maintaining balance extremely difficult, so much so that she can no longer use public transport without assistance. She finds that she is exhausted after standing for any significant period, so that she now uses a chair when showering (and also for balance). She said she finds it increasingly difficult to manoeuvre in and out of a chair. She also finds it difficult to get in and out of bed and the height of her bed has been adjusted to enable her do so. She stated that her movements have slowed further since the claim period and it now takes her a couple of hours to get ready for work each morning. She stated that she was repeatedly late for work until her employer varied her start time to 10.30am. She stated that her hands were becoming stiffer, further restricting the range of activities she can undertake unassisted such as: using a seat belt, buckling shoes, opening jars, doing up buttons and jewellery clasps. She stated that she finds herself breathless after almost any physical exertion including walking short distances. She said she tries to do as many things as she can for herself and while reluctant to do so, now relies heavily on her adult daughter, with whom she lives, for assistance with a growing number of domestic tasks and activities of daily living.
Ms Ford (jnr) corroborated the claim that her mother’s condition has deteriorated significantly over the past 15 months. On her account during that period her mother increasingly required her assistance in domestic tasks and personal care. As a consequence she has reduced her hours of work from 170 to 120 per month. She claimed that her mother is no longer able to perform even simple domestic tasks such as washing dishes, making beds, laundry and opening bottles and jars. She stated that her mother is extremely weak and gave as an example her inability to plug a telephone cord into a socket or operate the air-conditioning. She observed that her mother was constantly bumping into things and breaking items around the house. In addition she claimed that her mother is extremely slow, giving as an example the time is takes her to do the grocery shopping: up to two hours if accompanied by her mother; about 10 minutes if not.
In addition Ms Ford (jnr) stated that her mother was becoming increasingly anxious and suffering anxiety attacks. According to Ms Ford (jnr) she was told by her mother’s GP that anxiety was a common symptom of Parkinson’s disease. She said she has observed that her mother’s memory is failing. She testifies that she has taken on the role of reminding her mother to take her medication and attend to other day-to-day tasks.
Rating under Table 1- Functions requiring physical exertions and stamina
Table 1 provides in part:
Points Descriptors 5 There is a mild functional impact on activities requiring physical exertion or stamina.
…
10 There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
i. is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
ii. has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
i. use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
ii. perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20 There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
i. walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
ii. walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
iii. use public transport without assistance; or
iv. perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30 There is an extreme functional impact on activities requiring physical exertion or stamina.
…
As noted, in March 2012 Ms Masters awarded Ms Ford an impairment rating of ten points under Table 1. The evidence reveals that since that assessment was conducted the range of activities that Ms Ford can undertake has reduced radically. She now experiences periods of extreme tiredness and finds her work “extremely exhausting”. In addition she is now unable to undertake many simple domestic tasks. While not the sole cause, fatigue is nonetheless a significant contributing factor to Ms Ford’s reduced capacity to undertake activities requiring physical exertion or stamina.
I am satisfied that Ms Ford meets the descriptors for a rating of twenty points: she usually experiences symptoms of fatigue when performing light physical activities and, due to these symptoms, is unable to walk around a shopping centre or supermarket without assistance, use public transport without assistance and perform light day-to-day household activities. In addition she now has difficulty sustaining work-related tasks of a clerical nature for a continuous shift of at least three hours.
In my opinion a rating of twenty points is appropriate.
Rating under Table 2 – Upper limb function
Table 2 provides in part:
Points Descriptors 0 There is no functional impact on activities using hands or arms.
…
5 There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10 There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20 There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
The weight of evidence indicates that Ms Ford’s upper limb function has declined since assessed by Ms Masters in March 2012 and found to have a score of five. On the basis of her testimony, corroborated by her daughter, I find that Ms Ford has real difficulty with all but one of the activities listed as a descriptor of “moderate functional impact” under Table 2, namely using a standard keyboard. While she has some difficulty with some of the activities listed as descriptors of “severe functional impact”, such as turning the pages of a book and using a pen or pencil I am not satisfied that her degree of difficulty could be described as severe for the purpose of Table 2.
In my opinion a rating of ten points is appropriate.
Rating under Table 7 – Brain Function
Table 7 provides in part:
Points Descriptors 10 There is a moderate functional impact resulting from a neurological or cognitive condition.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(f) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(g) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(h) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(i) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(j) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(k) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(l) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(m) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
20 There is a severe functional impact resulting from a neurological or cognitive condition.
(1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a) memory;
Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places.
(b) attention and concentration;
Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.
(c) problem solving;
Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.
(d) planning;
Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).
(e) decision making;
Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.
(g) visuo-spatial function;
Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).
(h) behavioural regulation;
Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
(j) self awareness.
Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.
When Ms Masters assessed Ms Ford in March 2012, she awarded a score of 10 points, finding that she needs occasional (less than once a day) assistance with day-to-day activities and has moderate difficulties in attention and concentration.
There is some evidence to suggest that since that assessment was carried out the level of Ms Ford’s cognitive impairment has increased. This includes Ms Ford’s evidence of the difficulties she confronts in employment, to which I shall return, together with her daughter’s account of having to constantly remind her to undertake daily tasks. Her daughter’s observations of Ms Ford routinely bumping into objects around the home may also indicate reduced visuo–spatial function.
While some evidence suggests there has been further deterioration in Ms Ford’s cognitive function, on the available evidence I could not be satisfied that her cognitive impairment could be rated as severe under Table 7. A report prepared by Ms Ford’s GP or treating neurologist addressing each of the descriptors in Table 7 may assist a future decision-maker in the task of assigning an appropriate rating.
Summary
In my opinion, assessed at the date of hearing Ms Ford has a total impairment rating of 35 points (20 points (Table 1); 10 points (Table 2) and 5 points (Table 7)). It follows that she has a severe impairment within the meaning of the Act.
CONTINUING INABILITY TO WORK
To qualify for DSP Ms Ford must have a “continuing inability to work” (s 94(1)(c)). Ms Ford will be taken to have a continuing inability to work if her impairment:
is of itself sufficient to prevent her doing any work independently of a program of support during the two year period commencing on the date of claim, and
is of itself sufficient to prevent her from undertaking a training activity during a two year period commencing on the date of claim, or
if the impairment does not prevent her from undertaking a training activity ― such activity is unlikely (because of the impairment) to enable Ms Ford to do any work independently of a program of support within the next two years.
Section 94(3) instructs that in deciding whether or not Ms Ford 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.
Section 94(5) defines “work” 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.
Ms Ford commenced work with her current employer, a call centre operator, in 2007. Since diagnosed with Parkinson’s disease she has progressively reduced her hours of work. When assessed by Ms Masters in March 2012 Ms Ford was working 6.5 hours per day four days a week; she now works five hours per day. Ms Ford says she forces herself to remain at work because she has no other source of income.
According to Ms Ford work is now a “real struggle” and she finds it increasingly difficult to concentrate and deal with customer enquiries. On her account she constantly makes mistakes and feels “muddled”, especially when multi-tasking.
Ms Ford explains that she is seated for extended periods at work and this increases her propensity to “stiffen up”. She finds it now takes her a great amount of time to “unstiffen”. She says she only just manages to drive to and from work. Her employer has recently allocated Ms Ford a special parking spot because she was finding it almost impossible to climb the flight of stairs to her workplace from the staff car park. She says when forced to park elsewhere she is completely exhausted after climbing the stairs. She says while to her knowledge, her work has not been the subject of any adverse comment, her manager commented that she had been very slow in learning her job, which was around the time she was diagnosed with Parkinson’s disease. She says she manages to stay at work with the support and assistance of her managers and colleagues.
Ms Ford (jnr) states that her mother is often so exhausted after a day’s work she can barely move and goes straight to bed.
Ms Ford’s GP supports her claim for DSP. He believes it would be to her benefit to work less than 15 hours per week. In his opinion sitting for prolonged periods increases Ms Ford’s mobility problems. He noted that she is finding many of the tasks she is required to perform, such as using a keyboard and writing, increasingly difficult.
Consideration
In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360; (2010) 114 ALD 560, after reviewing the authorities in detail, Drummond J formulated the first of the questions posed by s 94(2)(a) in these terms:
Does the impairment of itself considered in isolation from other matters that may influence the person’s attitude to working (such as motivational matters and the like) have such an impact on the person’s capacity for work that it prevents him or her from doing at least 15 hours of work per week that exists anywhere in Australia for persons with such an impairment judged in a normal or open workplace in that part of the labour market relevant to the person’s skills and experience (recognising that such work includes less skilled or unskilled work with no regard to discretionary suitability on the part of the claimant), on wages that are at or above the relevant minimum wage, being work which the person is by reason of his or her existing work skills and experience capable of performing without retraining, independently of a relevant program of support designed to assist the person in preparing for, finding or maintaining such work.
I would add to that test that the type of work contemplated by s 94(2)(a) does not extend to work that:
Is unlawful
Is manifestly difficult for the person to undertake on account of their impairment
Poses a real and material risk to the person’s health and safety.
It was submitted for Centrelink that given that Ms Ford has remained in employment in the 15 months since making a claim for DSP it could not be said that her impairment of itself is sufficient to prevent her doing any work independently of a program of support. While a powerful indicator of her capacity to work, it is not determinative and the totality of Ms Ford’s circumstances must be considered. These include any difficulties she encounters in undertaking that employment, including the effect on her health, and whether her current employment could be characterised as a “normal or open” workplace.
It is apparent that it now requires a herculean effort on Ms Ford’s part to continue in her current position even with reduced hours and a late start. I accept as claimed that she would stop work immediately if she had an alternative source of income. While as the Secretary points out there is no evidence that Ms Ford has injured herself at work, the combination of poor balance, fatigue and the tendency of her limbs to stiffen up during periods of prolonged sitting, in my opinion, suggests that there is a real and material risk that this may occur. Given the progressive nature of her condition and the evidence of rapid deterioration in the last 15 months, that risk appears likely to increase in the future.
The evidence also suggests that Ms Ford’s managers and work colleagues are accommodating of her disability to some degree, for example, by their actions in permitting her to start late, providing special parking and assisting her with files and the like. The evidence also suggests they have extended Ms Ford a degree of tolerance in respect of her lack of speed and accuracy.
As the authorities emphasise, the assessment of whether a person’s impairment prevents them from working must be made in the context of a normal or open workplace: Re Hamal and Department of Social Security (1993) 30 ALD 517 at [42]; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [54] – [74]. Given the accommodation made for Ms Ford’s disabilities, in my opinion, her current employment could not be said to constitute a “normal or open workplace”.
The question posed by s 94(2)(a) is not whether Ms Ford’s impairment prevents her from working at least 15 hours per day in her current position but in any work that exists in Australia, being work for which she was already fitted without the need for retraining, in a normal or open workplace and independently of a program of support. While there may be types of work that meet these criteria that Ms Ford would find less arduous than her current employment, given the range and severity of her impairments, in my opinion she is closely approaching the stage where to continue in employment places her health and safety, not to speak of mental well-being, at risk. Furthermore the evidence of her cognitive impairment and associated learning difficulties may indicate that Ms Ford will struggle to acquire the necessary skills to move into a new area of work.
I am satisfied that during the 24 months from the date of hearing, Ms Ford’s impairment of itself is probably sufficient to prevent her from doing at least 15 hours of work per week of work that existed anywhere in Australia, being work for which she was already fitted without the need for retraining, in a normal or open workplace and independently of a program of support. The available evidence also suggests that even if Ms Ford were able to undertake a training program, which I think is doubtful because of her cognitive impairments, it is unlikely (because of the totality of her impairments) to enable her to do any work within the relevant two-year period.
Conclusion
Ms Ford’s claim made in March 2012 for DSP must be refused because in the relevant period she did not meet the criteria for the grant of DSP. Whether she would qualify if she were to make a further claim will turn on the evidence available at that time.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................[SGD]................................................
Associate
Dated 12 September 2013
Date(s) of hearing 31 July 2013 Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Capacity for Work
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Impairment
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Risk to Health and Safety
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