Jaafar and Secretary, Department of Family and Community Services

[2004] AATA 912

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 912

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION            N2004/472

Re: Raafat JAAFAR

Applicant

And: SECRETARY, DEPARTMENT of FAMILY and COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             31 August 2004

Place:            Sydney

Decision:The decision under review is affirmed.

. . . . . . . . . . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

SOCIAL SECURITY – newstart allowance – activity test – applicant not incapacitated for work because of medical conditions – permanent nature of medical conditions – decision under review affirmed

Social Security Act 1991 s. 603C

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      This application for review by Raafat Jaafar concerns payment of newstart allowance.  Centrelink, on behalf of the Secretary to the Department of Family and Community Services, the respondent, informed Mr Jaafar on 24 November 2003 that a medical certificate he had provided was not accepted.  Consequently, Mr Jaafar was told that he would have to pass the activity test for payment of newstart allowance to continue, as he was considered ineligible for an exemption from the test.  An authorised review officer at Centrelink affirmed that decision.  Mr Jaafar appealed to the Social Security Appeals Tribunal (SSAT) but was unsuccessful.  He has now requested this tribunal to review the SSAT’s decision of 5 April 2004.

2.      Mr Jaafar was born on 14 July 1960 and he immigrated to Australia in 1987. He does not communicate well in English and was assisted at the hearing by an interpreter in Arabic.

3.      In evidence Mr Jaafar said that he left school at 15 and does not have any trade or technical qualifications. He used to operate a business selling new furniture.  Subsequently he worked as a painter.  He said he has not worked at all since 1998.  In explaining what led him to give up working, he referred to the emotional distress he experienced at the time when his marriage broke down. His wife and children left  him and he said he lost his home. 

4.      Dr A Selim has been the applicant’s GP since 1991. At relevant times Dr Selim has provided Centrelink with treating doctor reports and medical certificates for Mr Jaafar. In a treating doctor report from July 1999 (T3), Dr Selim made a diagnosis of amblyopic right eye, a condition Dr Selim noted would persist for at least two years, which contributes to headache and dizziness. He also diagnosed hearing loss. It was considered that the condition anxiety / depression would last for a minimum of two years.  Dr Selim’s report stated that it would be at least two years before the applicant would be likely to return to part-time work of a minimum eight hours per week. Shortly after this report, Mr Jaafar was seen by Dr J Roberts of Health Services Australia. Dr Roberts reported that the applicant had been suffering from neck pain for about two years.  The applicant connected that pain with stress from his marital problems. Dr Roberts reported that the onset of the applicant’s impaired hearing occurred during childhood.  His impaired vision in the right eye was attributed to an infection.  In her assessment dated 3 August 1999 (T4), Dr Roberts concluded that Mr Jaafar was fit for his usual work, and capable of working thirty hours a week. 

5.      In subsequent years, Dr Selim gave medical certificates and other reports to Centrelink that referred to Mr Jaafar’s depression, impaired vision and hearing loss, which were considered to be long term disabilities. From time to time, doctors at Health Services Australia assessed the applicant.  In November 2000, Dr Z Anjum reported that the primary medical condition was depression relating to marital difficulties, but the applicant was considered otherwise fit for full time work (T7).   Dr P Kamenyitzky assessed the applicant in November 2001 for disability support pension.  Dr Kamenyitzky found an impairment rating of 5, attributable only to the applicant’s hearing loss, but no impairment ratings were assigned to his right eye problems, lumbar spine condition or depression.  In Dr Kamenyitzky’s opinion the applicant was fit for all work (T8).

6.      In January 2003 Dr Selim provided a medical certificate that referred to the diagnosis of cervical discopathy, anxiousness/ depression, right eye blindness and deafness (T12). Dr Selim certified the applicant unfit for work from 31 January 2003 to 30 April 2003 and that he could not do his usual work or any other work for at least eight hours a week.

7.      Centrelink arranged a medical assessment and on 3 April 2003, Dr V Lee from Health Services Australia examined Mr Jaafar.  An interpreter was present. Dr Lee addressed the following medical conditions (T13):

– neck pain / cervical discopathy: the pain was intermittent.  The applicant was noted as being able to drive a car and attend to all household chores.  On examination Dr Lee found full range of movement of the neck and upper limbs.  The condition was considered permanent, but in Dr Lee’s assessment it did not have any impact on the applicant’s capacity to work.   

– anxiety /depression: the history was of feeling unhappy for several years, not sleeping properly and a reactive mood.  Dr Lee noted that the condition had not been treated by a psychiatrist, and that it did not affect the applicant’s activities of daily living. Thus in Dr Lee’s opinion the condition was mild and caused little interference with function and would not prevent him from working.

– right eye problem: the history was of a stable condition suffered since childhood.  Dr Lee noted that spectacles were not required and she found partial loss of vision in the right eye.  In Dr Lee’s assessment the condition was permanent but would have no impact on the applicant’s capacity to work.  

– partial hearing loss: Dr Lee thought that the applicant should avoid noisy environments, but otherwise there was no functional impairment noted during their interview. The condition is permanent.

In assessing Mr Jaafar’s capacity to work, Dr Lee concluded that he was able immediately to work for 30+ hours a week in unskilled light to moderate activities.  Dr Lee suggested work as an office cleaner, parking attendant or cashier would be suitable. Dr Lee thought Mr Jaafar would benefit from training in vocational courses, though it was observed that he was not interested in pursuing courses.

8.      Centrelink wrote to Mr Jaafar in April 2003 to inform him that he was no longer considered to be eligible for the exemption from the activity test.  It appears that from April to November 2003, Mr Jaafar was paid parenting payment (single) and not newstart allowance.  Later, on re-applying for newstart allowance, Dr Selim provided a medical certificate to the effect that Mr Jaafar was unfit for work from 21 November 2003 to 21 February 2004 (T25) and unable to work at least eight hours a week. Dr Selim listed the following conditions as affecting the applicant’s capacity for work: cervical discopathy causing painful and stiff neck, hypertension and associated headache symptoms, and anxiety / nervousness, with irritability being the main symptom. Centrelink wrote to Mr Jaafar on 24 November 2003 (T27) to advise that this medical certificate was rejected because he was considered fit for work. As already noted, this decision was affirmed by the authorised review officer on 26 February 2004.

9.      At the hearing Mr Jaafar said he consults Dr Selim frequently, sometimes on a weekly basis.  His main reason for seeing the doctor is to obtain prescriptions.  He could not recall the names of the drugs, but he said he needs them for high blood pressure, neck pain, depression, rheumatism and sleeping difficulties. Asked why he believes he has been unable to work since 1998, Mr Jaafar stated that he needed time to organise his life following his marital problems.  Even at this juncture, he would still need a year to get himself ready to work again.

10.     When asked what medical conditions prevent him from working, Mr Jaafar said he relied on what Dr Selim has noted in medical certificates.  In addition, Mr Jaafar put into evidence a medical certificate dated 14 July 2004 (exhibit A3) and a note dated 26 August 2004 (exhibit A2) from Dr Selim.  Both those documents listed his medical conditions as right eye blindness, anxious depression, cervical disc disease and deafness. Dr Selim continues to certify the applicant as unfit for work of at least eight hours a week. A note from Malek Succari dated 25 August 2004 (exhibit A1), a colleague of Mr Jaafar, recorded that the applicant has been very ill for the preceding ten days due to migraine and depression. Ms Mantaring, the Centrelink representative for the respondent, submitted that Dr Selim’s certificate and note were not relevant as the decision under review refers to the applicant’s medical condition at November 2003.  I accept that submission.

11. Generally, to qualify for newstart allowance a person must satisfy the activity test, which requires applicants actively to seek work and be willing to undertake work. Section 603C(1) of the Social Security Act 1991 provides that, in certain circumstances, a person need not be required to satisfy the activity test; it reads:

Incapacitated person not required to satisfy activity

test

603C(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

(a) throughout the period the person is incapacitated for work because of sickness or an accident; and

(b) the incapacity is caused wholly, or virtually wholly, by a medical condition       arising from the sickness or accident; and

(c) the incapacity is, or is likely to be, of a temporary nature; and

(d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c),

(d) and (e) were disregarded, the person would qualify for newstart          allowance; and

(e) the person has, whether before or after the commencement of this      section, given the Secretary a certificate of a medical practitioner, in a form     approved by the Secretary, stating:

(i) the medical practitioner's diagnosis; and

(ii) the medical practitioner's prognosis; and

(iii) that the person is incapacitated for work; and

(iv) the period for which the person is incapacitated for work; and

(f) the Secretary is satisfied that the incapacity has not been brought about         with a view to obtaining an exemption from the activity test.

There is a definition of ‘work’:

603C(2) In this section:

work, in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

(a)  is of a kind that the person could, in the Secretary's opinion, be          reasonably expected to do; and

(b)  is for at least 8 hours per week at award wages or above.

12.     Relying on the assessment of Dr Lee, it was submitted for the respondent that the kind of work that Mr Jaafar could reasonably be expected to do was unskilled, light to moderate duties for a minimum thirty hours a week. Office cleaning, parking attendant and cashier were nominated as being suitable. I note that the other doctors from Health Services Australia also concluded that Mr Jaafar is capable of working for a minimum thirty hours a week, driving being the only work excluded and for him to avoid noisy work places. 

13. I accept that the applicant suffers from neck pain, anxiety / depression, reduced vision in the right eye and partial hearing loss. But after assessing the medical opinions, and noting that over a number of years the various Health Services Australia doctors have consistently reached different conclusions to Dr Selim, I am satisfied that the applicant’s degree of incapacity for work resulting from those conditions is negligible. I accept that during the period from November 2003 to February 2004, the applicant could be reasonably expected to do work of a light to moderate kind, including the activities nominated by Dr Lee, for at least thirty hours each week. Accordingly, I find that the applicant does not satisfy s.603C(1)(a) and does not qualify for exemption from the activity test.

14. As the conditions for exemption in s.603C(1) are cumulative, it is not necessary for me to consider whether the applicant would have satisfied any of the others. Nevertheless, as the focus of the SSAT’s decision and that of the authorised review officer was on s.603C(1)(b) and (c), I will consider those provisions. Both provisions examine the nature of the person’s incapacity for work that is attributable to a medical condition. In Mr Jaafar’s circumstances, I find that the medical conditions on which he relied for his claim of incapacity for work, were those nominated by Dr Selim in his medical certificate dated 21 November 2003. Dr Selim described each of these conditions as being permanent in nature. I note also that Mr Jaafar has been suffering from these conditions since around 1999. Accordingly, had I found that these conditions resulted in incapacity for work during the period November 2003 to February 2004, I would have reached the same conclusion as the SSAT. That is, the incapacity is not temporary in nature and the applicant thus would not have satisfied s.603C(1)(c).

15.     It follows that the decision under review should be affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

Signed:         .....................................................................................
  Associate

Hearing  27 August 2004
Decision  31 August 2004
Applicant  Self represented

Respondent’s representative  Centrelink