Howard and Department of Family and Community Services

[2000] AATA 550

DECISION AND REASONS FOR DECISION [2000] AATA 550

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T1999/203

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      NICHOLAS HOWARD      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr C P Webster (Senior Member)           

Date21 June 2000

PlaceHobart

Decision      The decision under review is affirmed. 
  [SgdC P Webster]
  Senior Member
CATCHWORDS
Social Security – qualification for disability support pension – applicant overseas.
Social Security Act 1991 – s.94(1)

REASONS FOR DECISION

21 June 2000          Mr C P Webster (Senior Member)   

Issues

1. Mr Nicholas Howard ("the applicant") seeks a review of a decision of a Centrelink officer acting on behalf of the Secretary of the Department of Family and Community Services ("the respondent") of 6 May 1999 which was affirmed by the Social Security Appeals Tribunal ("SSAT") on 16 November 1999 to cancel the applicant's disability support pension.

2. The principal issue to be determined by the Tribunal is whether the applicant satisfies s.94(1)(b) of the Social Security Act 1991 ("the Act").

3. The relevant legislation reads as follows:

   "94(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)…".

Evidence

1. The parties agreed that the Tribunal should determine the review in the parties absence due to the applicant residing in Vietnam.

2. There was no oral evidence adduced and both parties relied upon the documents tendered in the T documents submitted pursuant to the provisions of s.37 of the Administrative Appeals Tribunal Act 1975 and correspondence and submissions received from both parties.

3. The documents indicate that the applicant has been in receipt of a disability support pension since 12 November 1991.

4. The applicant supplied a Md Overseas form dated 8 January 1998 which stated that the applicant had depression, schizophrenia, spinal deformity and sciatica.   That form was accompanied by a treating doctor's report.

5. On 25 February 1999 the applicant provided a further medical report from his doctor dated 25 February 1999 confirming the presence of chronic depression and fatigue and an injury of the spine.

6. The information supplied by the applicant was referred to the respondent's medical adviser and a rating of 10 points under Table 6 of the Impairment Tables was given.
   Findings of Fact

7. The applicant is a 50 year old man with medical conditions of chronic depression, personality disorder and spinal injury.

8. The area of dispute between the applicant and the respondent is the rating which should be given under the Impairment Tables in respect of the applicant's conditions.

9. The medical report provided by the applicant dated  February 1999 describes an old injury to the spine which results in slight limitation of rotation of the neck and back, chronic depression and fatigue.

10. Dr. J G Churchman in his assessment report dated 25 April 1999 assigns an impairment rating of 10 points based on Table 6 for the applicant's depression, and a rating of 0 in Tables 5.1 and 5.2 in respect of back and neck pain.   The Tribunal accepts the assessment of Dr. Churchman as to the applicant's impairment rating of 10 points.  That assessment is the only assessment of the applicant's impairment rating and appears to the Tribunal to correctly rate the applicant's impairment rating according to the criteria in each Table.   Table 6 provides an impairment rating of 10 for psychiatric condition which reads as follows:

    " Moderate and regular symptoms and generally functioning with some difficulty.""

1. This rating appears to best fit the description of the applicant on the Md Overseas form and in  his own doctor's report.

2. In his assessment Dr. Churchman assessed the applicant back and neck impairment by reference to Tables 5.1 and 5.2.   He attributed a rating of nil in respect of the applicant's neck and back pain.    Both of these Tables provide a nil rating where the normal range of movement of the neck and back is "normal or nearly normal".

3. This is consistent with the description of the limitation of movement provided by the applicant's doctor on his discharge summary dated 12 February 1999 when that doctor described "slight limitation of rotation of the neck and the back".

4. The Tribunal accepts the impairment ratings as assessed by Dr. Churchman and accordingly finds that the applicant has a combined impairment rating of 10 in respect of his medical condition.
   Application of the Law

5. The applicant must satisfy s.94(1) of the Act to qualify to receive a disability support pension. Section 94(1) requires that the applicant's impairment must be 20 points or more under the Impairment Tables. The applicant does not have an impairment rating of 20 points or more in that his impairment is only 10 points. The applicant therefore does not satisfy the requirement of s.94(1) of the Act.
   Decision

6. The decision under review is affirmed.

   I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  Matter decided on the papers.
   Date of Decision  21 June 2000