Ian Gawthorne and Secretary, Department of Social Services
[2013] AATA 823
[2013] AATA 823
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2137
Re
Ian Gawthorne
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 29 October 2013 Date of written reasons 20 November 2013 Place Brisbane (heard on the Gold Coast) The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability Support Pension – Number of impairment points – Participation in Programs of Support – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Social Security Act 1991 (Cth) s 94
REASONS FOR DECISION
Senior Member Bernard J McCabe
20 November 2013
Mr Gawthorne applied for a Disability Support Pension (DSP) in February 2012. His application was refused. Mr Gawthorne has asked the Tribunal to review that decision. He was told of the date of the hearing, which was held on the Gold Coast to suit his convenience, but he did not attend. There was no explanation for his absence. Rather than adjourning the hearing or dismissing the matter for non-appearance pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975, I decided it was appropriate to proceed to hear the matter in the applicant’s absence. After reviewing the material and hearing from the respondent, I decided to affirm the decision under review. I gave oral reasons for that decision. The written reasons that follow are based on the transcript.
In order to be eligible for the DSP Mr Gawthorne must satisfy a number of medical criteria. These criteria are outlined in s 94 of the Social Security Act 1991 (the Act). The Tribunal must look at the evidence available at the time, and the following 13 week period, when reviewing Mr Gawthorne’s application for DSP. The question is not whether the applicant would be eligible for DSP now but would he have been eligible at the time of his application.
The first criterion is that the applicant must have an impairment. Mr Gawthorne suffers from a number of impairments. His impairments involve his left elbow, right shoulder, left hip and right lower leg.
The second requirement is an award of at least 20 points on the Impairment Tables. The job capacity assessor allocated a total of five points under the table relating to lower limb function. During the hearing Mr Warren, for the Secretary, conceded Mr Gawthorne might be awarded a further 5 points on the Impairment Tables for his upper limb impairments. The applicant could possibly attract a maximum of 5 points, but perhaps as little as zero, on the table relating to upper limbs as the evidence suggests he can still pick up objects, according to the Job Capacity Assessment (JCA) report. But even if I were to accept that concession it would only bring the total to ten points on the Impairment Tables, which is not enough to satisfy this requirement of the Act.
If I accept Mr Gawthorne could have been awarded 20 points under the Impairment Tables relevant to his conditions, he must still satisfy the third criterion under s 94 of the Act: he must experience a continuing inability to work during the assessment period. At the hearing the respondent submitted, based on the JCA report, that the applicant could work in excess of 15 hours per week within the near future with appropriate support. There is no evidence before me to refute that submission.
Even if I decided everything else in the applicant’s favour – if I decided he should be awarded 20 points under the various Impairment Tables and that he could not work more than 15 hours per week – there is the further requirement that he undertake a Program of Support over 18 months within the three years prior to the date of his DSP claim. There are exceptions to this requirement, most obviously where the applicant is awarded 20 points under a single Impairment Table, but there is no evidence suggesting that or any other exception is available here. There is evidence the applicant has engaged with the Program of Support, but the amount of time he has participated is eight months, well under the required period of 18 months. It follows Mr Gawthorne does not meet this requirement of the legislation.
CONCLUSION
Mr Gawthorne suffers from a number of impairments, but these are not serious enough for him to be awarded 20 points on the Impairment Tables. But even if the applicant’s conditions were serious enough for him to be awarded 20 points over the relevant Impairment Tables, Mr Gawthorne has not participated in a Program of Support for the required period. The decision under review must therefore be affirmed.
I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. .........................[Sgd]...............................................
Associate
Dated 20 November 2013
Date of hearing 29 October 2013 Applicant No appearance Solicitors for the Respondent Department of Human Services
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