James Drewett and Secretary, Department of Social Services

[2014] AATA 876

[2014] AATA  876

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2815
Re	James Drewett
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta Professor P Reilly
Date	26 November 2014
Place	Adelaide

The decision under review is affirmed.

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

Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - claim for disability support pension - whether there is a "continuing inability to work" – whether 20 points - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s94

Social Security (Administration) Act 1999 (Cth) s80

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) Subitem 13(2) of Schedule 2

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member N A Manetta
Professor P Reilly

26 November 2014

1. This is an application by Mr James Drewett for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 20 May 2013.  The SSAT affirmed decisions taken in the respondent’s department to cancel the disability support pension (DSP) granted to him under the Social Security Act, 1991 (the Act).[1]  Ms Welfare appeared for Mr Drewett; Mr Visser, for the respondent.

   [1] Cancellation of a benefit when the recipient is no longer eligible is authorised under s. 80 of the Social Security (Administration) Act, 1999.

   ISSUES FOR DETERMINATION

2. Mr Drewett had been in receipt of a DSP since 17 January 2005.  On 17 April 2013, an Authorised Review Officer[2] confirmed the initial decision taken on 14 January 2013 to cancel Mr Drewett’s pension because he concluded, first, that Mr Drewett no longer had impairments attracting 20 points under the Impairment Tables;[3] and secondly, that he no longer had a “continuing inability to work” as that concept is defined in the Act.[4]  The SSAT agreed[5] that Mr Drewett’s impairments did not attract 20 points under the Impairment Tables and for that reason did not proceed to consider the question of his continuing inability to work.

   [2] See Exhibit R1 (the “T” Documents) at T5, pp113-116.

   [3] See s.94(1)(b) of the Act. The Impairment Tables are included in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

   [4] See s.94(2).

   [5] The SSAT’s decision appears at T2, pp3-13.

3. Hearing the matter afresh on the evidence before us,[6] we must decide whether Mr Drewett continues to meet the prescribed eligibility criteria, and the following issues, in particular, are relevant.  First, we must decide whether Mr Drewett continues to have impairments attracting 20 points under the Impairment Tables.[7]  Secondly, we must decide whether Mr Drewett is incapable of working 30 hours a week.[8]  Thirdly, we must address Mr Drewett’s present capacity to undertake educational, vocational, and on-the-job training during the next two years and the likelihood of such training enabling him to do any work within the next two years.[9]

   [6] Cf  Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68.

   [7] See 94(1)(b).

   [8] In relation to this second issue, it was common ground between the parties that Mr Drewett benefits from certain transitional provisions.  At the time Mr Drewett was first granted his pension, he needed to establish only that he was unable to work for a minimum of 30 hours per week.  An applicant for a DSP today must be unable to work for a minimum of 15 hours per week.  The parties agreed that Mr Drewett continues to receive the benefit of the less stringent regime.  Accordingly, in respect of this second issue, Mr Drewett would lose his pension only if it is shown that he can work for 30 hours a week or more: see subitem 13(2) of Schedule 2 of the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.

   [9] See s.94(1)(c)(i) and s.94(2).

   Impairments

4. Ms Welfare put forward three conditions from which impairments arose justifying an aggregate of 20 points under the Impairment Tables.  These were epilepsy, a spinal condition, and lower limb chronic pain.  In her submission, Mr Drewett’s epilepsy warranted either 5 or 10 points under Table 15; the spinal condition, 10 points under Table 4; and the lower limb chronic pain, 10 points under Table 3.[10]  Mr Visser submitted that the epilepsy should be awarded nil points, the spinal condition nil points, and the chronic lower limb pain 5 points only. 

   [10] This was her oral submission, which we note differs from paragraph [15] of the written submissions filed on Mr Drewett’s behalf.

   Continuing Inability to Work

5. So far as Mr Drewett’s continuing inability to work is concerned (the second of the two issues we have identified), Ms Welfare submitted that Mr Drewett is unable to work a minimum of 30 hours per week.  Mr Visser submitted that Mr Drewett is able to work at least 30 hours per week.  The question of training was not the subject of submissions from either party; but it is implicit that this, too, remains an issue.

   CONSIDERATION OF THE ISSUES

   Continuing Inability to work

6. It is convenient to consider first Mr Drewett’s continuing inability to work as this issue is clearly decisive of his application before us in our opinion.

   Inability to work 30 hours per week

7. If we are satisfied that Mr Drewett is able to work 30 hours per week, Mr Drewett will no longer have a continuing inability to work, and he will lose his DSP, no matter what number of points he has under the Impairment Tables.  In our opinion, the evidence submitted to the Tribunal concerning Mr Drewett’s work history in 2010 and 2011 is conclusive. 

8. It is not in dispute that Mr Drewett was employed as a truck driver with White Fox Tipper Hire from 11 November 2010 to 24 August 2011 while in receipt of his pension.  It would appear that Mr Drewett did not notify Centrelink of this work and continued to claim the pension despite working long hours.  Centrelink received a return from White Fox Tipper Hire detailing Mr Drewett’s working hours for each week commencing 2 December 2010 to 24 August 2011, a period of 33 weeks.[11]  We understand from Mr Drewett’s evidence that he was employed casually during this period.

   [11] Exhibit A4.

9. In 22 of the 33 weeks (i.e., two thirds of the entire period), Mr Drewett worked at least 30 hours per week.  Over the entire period, there were some 20 consecutive weeks where he worked at least 30 hours per week (with the exception of 2 weeks).[12]  This period included four consecutive weeks where the lowest number of hours worked per week was 43.  This record was not disputed by Mr Drewett, and we do not believe it was satisfactorily explained by him.  It is, in our opinion, very strong evidence - indeed, conclusive evidence for all practical purposes - that Mr Drewett is capable of working at least 30 hours per week as a driver. 

   [12] In these weeks, Mr Drewett worked 28.5 hours and 15.5 hours respectively.

10. We remain unclear on the evidence before us whether Mr Drewett would be refused the appropriate truck-driving licence were he to apply for one today.[13]  On the assumption that he would be refused a licence, we note that his employment with White Fox Tipper Hire shows a physical capacity for long hours of sedentary work (at least when they are interspersed with breaks).  That Mr Drewett can perform long hours of sedentary work opens up the possibility of many types of work that might previously have been thought to fall beyond his capacity.  We note that Mr Drewett’s evidence to us was that he did not suffer any petit mal epileptic episodes whilst driving the truck.[14]  

    [13] The evidence before us suggests Mr Drewett did not hold an appropriate licence at the time of his employment with White Fox Tipper Hire, although he has held a licence in the past.  He does hold a licence to drive a car.

    [14] And has not had a grand mal episode for some years and only then because he had discontinued his medication.

11. Accordingly, we find that Mr Drewett is capable of working at least 30 hours per week.  Given his qualifications and employment history, he is best suited to semi-skilled work.  Our finding means that Mr Drewett no longer satisfies one of the essential eligibility criteria for the DSP.

    Training

12. Section 94(2)(b) of the Act requires a conclusion either that Mr Drewett’s impairments prevent him from undertaking training, or, alternatively, that a training activity will be unlikely to enable him to work independently of a program of support in the next two years.  We are not persuaded that Mr Drewett’s impairments are of themselves sufficient to prevent him from undertaking training.  Mr Drewett’s work history provides ample corroboration of his ability to participate in training, especially on-the-job training.  Given this conclusion, in order to find in Mr Drewett’s favour in this regard, we would need to be satisfied that any training is unlikely, because of the impairments, to enable him to work 30 hours per week without a program of support.  We do not believe that is the case on the evidence before us.  Again, given his demonstrated work capacity, we do not conclude that training would be unhelpful to Mr Drewett.

13. Accordingly, the eligibility criterion in s 94(2)(b) of the Act is no longer satisfied in our opinion.

    Points

14. These conclusions make it unnecessary for us to consider the number of points we should attribute to any impairments arising from Mr Drewett’s three conditions.  In any event, we would have difficulty doing so given the evidence. 

    Spinal condition

15. So far as Mr Drewett’s spinal condition is concerned, we note that Dr Yau, who gave evidence for Mr Drewett, indicated to the Tribunal that he did not know of Mr Drewett’s work with White Fox Tipper Hire, nor was he aware of the evidence given by Mr Drewett to the SSAT[15] indicating a reasonable capacity for walking. 

    [15] T2, p8 at [31].

16. Table 4 requires corroborating evidence of a person’s impairment before points can be awarded.[16]  We do not view Dr Yau’s evidence, based as it was on an incomplete understanding of Mr Drewett’s work history and physical capacity, as sufficient corroborating evidence of the degree of his impairment in this regard.  We do not award, therefore, any points in the absence of corroborating evidence.

    [16] We note that the rules in the Introduction to a table must be applied: see s. 4(2)(b) of Part 1 of the Impairment Tables and s. 26(3) of the Act.

    Epilepsy

17. We note in respect of as Mr Drewett’s epilepsy that Dr Wenceslaus refers in his report of 20 August 2013[17] to Mr Drewett “functioning well” whilst on epileptic medication and further refers to an EEG of 16 October 2012 that was “unremarkable”.  Mr Drewett’s treating neurologist, Dr Norton, was not called to give evidence.  Mr Drewett’s evidence to the Tribunal was that he had not suffered from grand mal seizures for some years, but that he suffers from petit mal seizures on a weekly basis, but not, he says, while truck driving.  The evidence concerning petit mal seizures was not corroborated by the medical reports.

    [17] Exhibit R2.

18. Ms Welfare made a very late request to call evidence corroborating the impact of this impairment on Mr Drewett.[18]  In the unusual circumstances of this case, where Ms Welfare indicated she had been briefed very late, we indicated that we were not necessarily opposed to that course, although we regarded it as exceptional.  We further indicated, however, that we would only call the matter back on if we thought additional evidence would make a difference to the result.  Our earlier conclusions in respect of Mr Drewett’s ongoing inability to work make this unnecessary; but we would specifically note that in the absence of corroborating evidence, we cannot award any points in respect of the epilepsy. 

    [18] As required in the Introduction to Table 15.

    Chronic lower limb pain

19. In respect of Mr Drewett’s chronic lower limb pain, again, we do not believe we have sufficient corroborating evidence of the degree of impairment[19] to award points.  It is clear to us that any corroborating evidence of the degree of impairment in this regard would have to take account of Mr Drewett’s demonstrated work capacity. 

    [19] As required in the Introduction to Table 3.

    SUMMARY OF CONCLUSIONS

20. In all the circumstances, we have decided that the evidence before us clearly supports a finding that Mr Drewett no longer has a continuing inability to work.  For the reasons we have given, we have decided that it is not necessary to call the matter back on to receive further evidence in respect of the degree of impairment said by Mr Drewett to arise from his epilepsy or from any other condition.  We make no findings in respect of the points that ought to be awarded under the Impairment Tables, but would reiterate that in the absence of persuasive corroborating evidence, Mr Drewett is ineligible to receive any points under the Impairment Tables.

    DECISION

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta, Professor P Reilly

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

Administrative Assistant

Dated 26 November 2014

Date(s) of hearing	11 August 2014
Advocate for the Applicant	Ms Martine Welfare
Solicitors for the Applicant	Rudham Lawyers
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services