Ireland and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1582
•25 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1582
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 200700986
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL IRELAND Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date25 July 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[SGD]...............................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant suffers from severe sensorineural hearing loss – applicant has 30 impairment points – applicant can work more than 30 hours a week – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) ss 94, Schedule 1B
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
REASONS FOR DECISION
25 July 2007 Dr M Denovan, Member Background
1. Mr Paul Ireland has severe sensorineural hearing loss and was granted disability support pension in respect of this condition. I have to decide whether he is entitled to continue to receive disability support pension.
2. Mr Ireland lodged a claim for disability support pension (T4) on 24 January 2000.
3. Mr Ireland was granted disability support pension as a result of that claim.
4. On or about December 2002 Centrelink initiated a review of Mr Ireland’s continuing eligibility for disability support pension (DSP). In response, Mr Ireland stated that he was currently employed by Coles as a night filler, working 15-20 hours a week (T6), and that from July 1998 to March 1999 he had worked as a car detailer for 38 hours a week.
5. On 8 January 2003 Centrelink confirmed Mr Ireland’s continuing eligibility for disability support pension (T7).
6. On 19 July 2006 Centrelink instituted another review of Mr Ireland’s eligibility for disability support pension. In a response dated 13 July 2006 Mr Ireland stated that he worked for Coles as a night filler, 20 hours a week. Mr Ireland stated that he had previously worked as a car detailer for 38 hours a week, from July 1998 to March 1999, and from October 1997 to February 1998.
7. Kim Collins, a job capacity assessor engaged by CRS Australia, opined on 3 August 2006 that Mr Ireland’s current capacity to work was not limited by his hearing impairment, and exceeded 30 hours per week (T11). It was noted that Mr Ireland told the assessor that he had worked at Coles for six years, that he reports having permanent part time status of 20 hours a week and that he consistently works 28 hours per week. Mr Ireland was recorded as saying that he limited the hours that he worked due to DSP requirements, and for the purpose of balancing work and family life.
8. On 3 August 2006 Centrelink decided to cancel Mr Ireland’s disability support pension. On 15 August 2006 Mr Ireland sought a review of Centrelink’s decision.
9. In her report dated 11 September 2006, Dr Beshara confirmed that Mr Ireland suffered from permanent severe sensorineural hearing loss, and provided the diagnosis of depression/bipolar disorder (T13). Dr Beshara indicated that the onset of depression/bipolar disorder was 2005, and that it was likely to fluctuate, and impact on Mr Ireland’s ability to function for more than 24 months. Dr Beshara stated that Mr Ireland suffered depressed mood as a result of this condition, and that he was currently being treated with Lovan, 20mg a day.
10. On 14 November 2006, Mary Kennedy prepared a Job Capacity Assessment Report. She assigned an impairment rating of 30 from the Impairment Tables for Mr Ireland’s incapacity due to his severe sensorineural hearing loss (T15).
11. In relation to Mr Ireland’s depression/bipolar disorder, Ms Kennedy opined that the condition was temporary. She stated that Mr Ireland informed her that the symptoms of depression had become evident since receiving advice of his DSP cancellation, that he reported mild symptoms of depression which have a minimal impact on his ability to work, and that he takes no medication.
12. Ms Kennedy noted that Mr Ireland states that he has the capacity to undertake full time employment however chooses not to do so as he is unable to pay for hearing aid repairs and upkeep without his pension card. Ms Kennedy opined that Mr Ireland had the capacity to undertake full time employment.
13. On 29 November 2006 Mr Ireland requested a further review of the decision. On 29 November 2006 Centrelink confirmed the original decision to cancel Mr Ireland’s disability support pension (T19). An authorised review officer affirmed the decision on 2 January 2007 (T24). On 14 February 2007 the decision was affirmed by the Social Security Appeals Tribunal (T2).
14. Mr Ireland’s appeal to the Administrative Appeals Tribunal was received on 27 March 2007.
Material before the tribunal
15. The following documents were admitted into evidence:
Exhibit 1 T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Issue For Determination
16. I have to consider whether, as at 3 August 2006, Mr Ireland was entitled to disability support pension.
17. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (the Act), that is:
·he must have a physical, intellectual or psychiatric impairment; and
·his impairment must have been of 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work.
18. The Respondent concedes that the applicant has a physical impairment and that the appropriate impairment rating for his severe sensorineural hearing loss is 30 points from the Impairment Tables.
Evidence of Applicant
19. Mr Ireland gave evidence at the hearing and the following is the gist of what he said.
20. Mr Ireland said that he thinks he has been depressed for a long time, due to his hearing loss. He sometimes has suicidal thoughts however he has not acted upon them. He tried the antidepressant Lovan for one month but it did not help. He does not want to go out of the house due to his depression. Mr Ireland has received no counselling and has not been referred to a psychiatrist or psychologist.
21. After leaving school Mr Ireland worked as a car detailer for up to 38 hours a week. The amount of hours he worked was limited by the availability of work. He ceased that work due to lack of availability of further employment. Mr Ireland was unemployed for 18 months and then commenced working at Coles as a night filler. Mr Ireland has 16 hours of regular work and is given on average another eight hours a week. Mr Ireland regularly rings Coles and asks for additional hours. The amount of extra work he gets depends on availability. There is sometimes extra work available around school holidays and the Christmas period. Mr Ireland would like extra hours.
22. Mr Ireland has separated from his wife and is currently living with friends. Mr Ireland would rather not be on the pension, he would rather be working, however he cannot afford the cost of maintaining his hearing aid if he does not have a pension card. With a pension card, Australia Hearing provides maintenance of his hearing aid for $38 a year. Mr Ireland is of the understanding that he is still entitled to this same concessional rate at Australia Hearing for five years following the cancellation of his disability support pension. Mr Ireland’s concern relates to what he will do after that time. Mr Ireland receives no financial or other assistance from the State government.
Findings of Tribunal
Impairment ratings
23. Before an impairment rating can be assigned under the Impairment Tables the condition must be considered to be fully documented, diagnosed, investigated, treated and stabilised (Schedule 1B of the Act). A condition will be considered fully stabilised if it is unlikely that there will be any significant functional improvement within the next two years. In order to assess whether a condition is fully diagnosed, treated and stabilised I must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
24. The condition must also be considered to be permanent. A condition is considered permanent if after being diagnosed, treated and stabilised it is more likely than not that it will persist into the foreseeable future.
25. The Respondent accepts that at the relevant date, Mr Ireland had an impairment due to severe sensorineural hearing loss, that the condition should be regarded as permanent, and that a rating of 30 points assigned under Table 12 of the Impairment Tables is appropriate. I agree.
26. It is the respondent’s assertion that Mr Ireland’s depression/bipolar disorder is a condition that causes a physical, intellectual or psychiatric impairment as stated in the Act, but the condition is temporary in nature, and therefore cannot attract a rating under the Impairment Tables.
27. When considering whether Mr Ireland’s depression/bipolar disorder is a temporary condition, it is necessary to consider the condition as it was on 3 August 2006, the date of cancellation of pension: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.
28. In her report dated 23 December 2002, Dr Beshara stated that Mr Ireland suffered from situational depression due to his hearing loss (T6). Dr Beshara provided no information about Mr Ireland’s current symptoms or current, past or future treatment in that report. It is not clear whether the condition Dr Beshara referred to in this report is the same or in any way related to the condition of depression/bipolar disorder that he referred to in his report dated 11 September 2006. It appears that it is unlikely to be the case, as in that later report Dr Beshara refers to the condition of depression/bipolar disorder as having an onset in 2005. In his later report, Dr Beshara stated Mr Ireland was being treated with Lovan; however it was Mr Ireland’s evidence at the hearing that he had tried this medication for one month only and had received no counselling or any other treatment, and had not been referred to a psychologist or psychiatrist. It can therefore not be said that Mr Ireland’s depression/bipolar disorder has been fully diagnosed, treated and stabilised. The condition cannot, therefore be given an impairment rating.
29. This means Mr Ireland had a total impairment rating of 30 points on 3 August 2006.
Ability to work
30. From 1 July 2006 new rules for disability support pension apply. As Mr Ireland was granted disability support pension on the basis of a claim made before 10 May 2005, review of his disability support pension qualification is to be determined against the old qualification provisions of section 94 of the Act.
31. At the time of the claim, s 94(2) provided that a person was considered to have a continuing inability to work if:
·The impairment is of itself sufficient to prevent the person from doing any work within the next 2 years, and
·either,
oThe impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years, or
oIf the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
32. Work is defined by section 94(5) of the Act as work of at least 30 hours per week, at award wages or above, that exists in Australia, even if not locally accessible by the person.
33. Any impairment that is not capable of being assigned an impairment rating from the Tables in the Act cannot be considered when assessing whether a person has a continuing inability to work: Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500. This means that I cannot take into consideration Mr Ireland’s depression/bipolar disorder when I consider whether he was able to work on 3 August 2006.
34. Both work capacity assessors have opined that Mr Ireland is capable of working 30 hours or more a week. Mr Ireland has had his severe hearing impairment since the age of three, however he has demonstrated a capacity to work for 38 hours a week as a car detailer. He ceased that work not due to medical reasons, but due to lack of availability of work. He has been working approximately 20 hours or more a week for the last six years without any difficulty. There is no evidence which points to him having an incapacity to work 30 hours or more due to severe sensorineural hearing loss. Mr Ireland himself does not claim to be incapable of working 30 hours or more. He has clearly stated on a number of occasions that he is prepared to work more however he feels that he cannot afford the maintenance of his hearing aid without the financial concessions he is granted as a result of holding a pension card.
35. It is certainly a regretful situation that Mr Ireland might lose financial assistance to help with the maintenance of what to him is a vital piece of equipment, clearly essential for him to function independently – both privately and within the work force. The fact remains however that Mr Ireland does not have a continuing inability to work, and did not have such an inability on 3 August 2006 when his disability support pension was cancelled.
36. As Mr Ireland did not have a continuing inability to work on 3 August 2006, on that date he did not satisfy the qualification criteria for disability support pension. I affirm the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .....................[SGD.............................................
F Kamst, Legal Research OfficerDate/s of Hearing 12 July 2007
Date of Decision 25 July 2007
The applicant was unrepresentedFor the Respondent Mr B Hamilton, departmental advocate
0
2
0