HELEN DAVIES and SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

[2006] AATA 892

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION AATA [2006] 892

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/377

GENERAL ADMINISTRATIVE DIVISION		)
Re		HELEN DAVIES

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr Denovan, Member

Date3 October 2006

PlaceBrisbane

Decision The decision under review is affirmed.

...............[Sgd]...............................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – applicant suffers from physical and psychiatric conditions – applicant’s impairment rating less than 20 points

Social Security Act 1991 s 94

WRITTEN REASONS FOR ORAL DECISION

20 October 2006

Senior Member B J McCabe

Dr Denovan, Member

1.      The hearing in this matter was held on 3 October 2006. The Tribunal gave an oral decision on that occasion. One of the parties subsequently requested written reasons for the decision. The reasons are set out below.

introduction

2.      Ms Helen Davies applied for disability support pension (DSP) on 23 January 2006. She claims she suffers from a number of disabilities:

·a degenerative back condition, which affects the range of movement in her lower back;

·osteoarthritis of both knees. She says the condition affects her ability to use stairs or walk long distances or for long periods;

·hypertension – although she agrees it is being controlled successfully with medication at the moment; and

·anxiety, panic attacks and depression.

3.      Centrelink accepts the applicant suffers from these conditions however it rejected the application for DSP because it says the applicant does not satisfy the eligibility criteria. The Social Security Appeals Tribunal (the SSAT) agreed for slightly different reasons.

the legislation and the applicant’s position

4. To determine whether the applicant is entitled to a pension the Tribunal must have regard to section 94 of the Social Security Act 1991 (the Act) which sets out the qualifications an applicant must meet in order to receive DSP. Section 94(1) says that:

A person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment.

5.      That is the first hurdle. We are satisfied the applicant meets this qualification. The applicant has physical impairments - most obviously her back but also her knees. She also has a psychiatric impairment: ie, she suffers from anxiety and panic attacks. She also has a depressive condition.

6.      The second hurdle for the applicant is that the impairment or impairments must add up to at least 20 points or more under the relevant impairment tables.

7.      There does not appear to be any doubt that the applicant rates 10 points in respect of her back condition. The question is whether an impairment rating should be assigned in respect of the applicant’s knees, and in respect of her psychiatric condition. We will deal with the psychiatric condition first.

8.      We accept, and it seems to be quite clear, the applicant is suffering from anxiety, panic attacks and depression. They do appear to be an obstacle to the applicant obtaining employment and staying in work. However Ms Davies has not had them extensively treated yet. She has not taken up all the reasonable treatment opportunities that are available.

9.      There is no guarantee the treatments will work however there is a reasonable chance that they will. As a practical matter, because it is not fully treated and stabilised, we cannot assign an impairment rating in respect of the condition. Therefore it does not count for the purposes of this exercise, which brings us back to the knees.

10.     The SSAT decided that, on the evidence before it, Ms Davies did not attract an impairment rating in respect of her knee. That does not mean the SSAT was saying the applicant is making it up, and it does not mean the SSAT was denying the applicant is experiencing some difficulty. The SSAT is saying Ms Davies does not suffer enough difficulty to get over the threshold. Mr Thompson, when he gave evidence at the hearing, said:

Well, in fact, initially, I was prepared to say she got 10 points. But on the evidence that was before the SSAT, I would, in fact, agree with them that you don't qualify on the 10 points.

11.     We have considered the applicant’s evidence. We have considered what the applicant says she is capable of doing. We think there is some difficulty in awarding a rating. However, for the purposes of the exercise we will assume the applicant attracts a further 10 points. Ms Davies still needs to get over a further hurdle.  She must establish she has a continuing inability to work.

12.     We are satisfied the applicant does not meet this requirement. Ms Davies does have difficulty working - for example, she described the difficulties she encountered working at the police station. But that seemed to have more to do with her psychiatric problem than any physical difficulty. While her physical challenges make it harder for her to work at a lot of different jobs, there are still many other jobs that she can do if she had the psychiatric condition attended to.

13. The applicant does not satisfy section 94, and she is not eligible to receive disability support pension. The decision under review is therefore affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr Denovan, Member.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  3 October 2006
Date of Decision  3 October 2006
Date of Written Reasons          20 October 2006
The applicant was represented herself at the hearing.
The respondent was represented by Mr Dubé, a departmental advocate.