Joukhador and Department of Family and Community Services - [2000] AATA 1097

DECISION AND REASONS FOR DECISION [2000] AATA 1097

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/597

GENERAL ADMINISTRATIVE DIVISION )

Re RAFIC JOUKHADOR
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date13 December 2000
PlaceSydney

Decision The decision under review is affirmed.

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A R Horton
Member
CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – Applicant made redundant in 1991 - whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 or more vide Schedule 1B - ability to undertake work – ability to undertake educational or vocational training

Social Security Act 1991 – ss 94(1),(2), (3) and 100(3)
Social Security Legislation Amendment Act No1 (1995)

Re Pirie and Secretary, Department of Social Security (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 23 November 1999 by a delegate of the Secretary, Department of Family and Community Services ("the Respondent"), that Rafic Joukhador ("the Applicant") was not eligible for a disability support pension. That decision was affirmed by an authorised review officer of the Respondent on 5 January 2000, and further affirmed by the Social Security Appeals Tribunal ("the SSAT") on 15 March 2000. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 17 March 2000.

At the hearing before the Tribunal on 1 December 2000, the Applicant was self-represented. Ms C Collis, solicitor, appeared for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Letter from Dr G Hamad dated 15 September 2000.     Exhibit A1
Letter from Dr G Hamad dated 27 June 2000.   Exhibit A2
Report from Sydney Imaging Group dated 4 October 2000     Exhibit A3
Respondent's amended statement of facts and contentions dated 24 November 2000. Exhibit R1

The Applicant gave oral evidence to the Tribunal, assisted by an interpreter fluent in the Arabic language.

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION

The issues before the Tribunal are whether the Applicant has a physical, intellectual or psychiatric impairment that is assessed at 20 points or more under the impairment tables in Schedule 1B of the Social Security Act 1991 ("the Act") and if so, whether he has a continuing inability to work because of that impairment pursuant to sections 94(2) and (3) of the Act.
Section 94 of the Act states, relevantly:
"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)   one of the following applies:
(i)    the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joukhador and Department of Family and Community Services

Details

AGLC: Joukhador and Department of Family and Community Services [2000] AATA 1097
Case: [2000] AATA 1097
Decision Date: 13 December 2000

CaseChat Overview and Summary

The applicant in this case sought a disability support pension following his redundancy in 1991. The Department of Family and Community Services contested the claim, arguing that the applicant's impairments did not total 20 points or more, as required by the Social Security Act 1991. The central legal issues were whether the applicant's physical, intellectual, or psychiatric impairments met the 20-point threshold and whether the applicant was unable to work or engage in educational or vocational training.

The Tribunal considered the applicant's medical conditions as assessed by Dr Kanapathipillai and Dr Hamad. The Tribunal agreed with the Department that only the conditions raised in the initial claim on 8 November 1999 were relevant. The Tribunal assessed the applicant's impairments based on the evidence provided by the applicant and the medical reports. The Tribunal found that the applicant's chronic lower back pain, hypertension, bilateral cataract implants, thalassaemia minor, and calcaneal spurs and left knee pain did not total 20 points or more. Consequently, the applicant did not meet the eligibility criteria for a disability support pension under the Act.

The Tribunal concluded that the applicant's impairments, as assessed, did not reach the required threshold. The Tribunal upheld the Department's assessment of the applicant's impairments and found that the applicant was not eligible for a disability support pension. The Tribunal did not find it necessary to consider the applicant's ability to work or engage in educational or vocational training, as the impairment rating was insufficient.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

When asked which condition gave him the most difficulty or pain, the Applicant said "everything, whatever I do I feel pain – including walking and sweeping". At times the pain was in "all the body" and "all the time".ANALYSIS OF EVIDENCE AND FINDINGS The Respondent contended that pursuant to section 100(3) of the Act, the relevant period under consideration is the three month period following lodgement of the claim (Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996), that is from 8 November 1999 to 8 February 2000. That being the case, the Respondent argued that additional medical conditions subsequently raised in the reports by Dr Hamad were not relevant to this matter; they were not subject to a formal claim and had not been assessed nor rated for possible impairment. The Tribunal accords with this view, and accordingly considers only those medical conditions raised in the claim lodged on 8 November 1999, as then medically assessed by Dr Kanapathipillai for Centrelink. The Respondent conceded that the Applicant has medical impairments and so satisfies subsection 94(1)(a) of the Act, but the total impairment rating should remain as assessed by Dr Kanapathipillai, which was affirmed both on review and by the SSAT, as less than 20 points. Accordingly the Applicant could not meet subsection 94(1)(b) of the Act, and would not be eligible for the disability support pension, irrespective of whether or not he meets the "inability to work" criteria as defined in subsections 94(1)(c) and 94(2). The Applicant had nothing further to add by way of final submission, stating that he had "told the Tribunal everything". The Respondent provided a written final submission addressing each of the Applicant's conditions. The conclusions drawn by the Tribunal in respect of the appropriate impairment ratings pursuant to the impairment tables at Schedule 1B of the Act are as follows:Chronic Lower Back Pain: Described by Dr Hamad as "characterised by intermittent episodes of severe low back pain that develop suddenly with no identifiable precipitant", and by the Applicant as "a real pain, occurring all the time" and occurring on prolonged sitting and standing. It prevents him from working and undertaking various activities. As noted on examination by the Respondent's doctor (T10), there is some loss of bone density and arthritic change, but a normal range of movement. An impairment rating of zero under Table 5.2 was accorded, and on the evidence available, noting that there are no specialist reports nor an impairment assessment by the treating doctor, the Tribunal agrees with an assessment of zero.Hypertension Dr Hamad describes the clinical features (in conjunction with bilateral contacts) as "develops headaches and easy fatigue" (T5). He contends that "hypertension (and other conditions) compound his back complaints and significantly restrict his ability for any work" (Exhibit A1). The Health Services Australia medical examiner notes that with medication (Renitec) blood pressure is good, and assesses an impairment rating of zero under Table 20. The Applicant stated that hypertension was under control with medication. The Tribunal sees no reason to change the impairment rating of zero.Bilateral Cataract Implants: The comment by Dr Hamad at T5 is relevant, but does not define whether "headaches and easy fatigue" is, in his view, related to hypertension or this condition. The Health Services Australia medical examiner considers that the Applicant's vision is satisfactory, and accords a rating of zero against Table 13. The Applicant gave evidence that apart from not driving at night, he had no problems. The Tribunal has no evidence that would justify an impairment rating other than zero.Thalassaemia Minor: Dr Hamad describes the implications of this condition as "easy fatigue and undue tiredness" (T5). Dr Kanapathipillai, on examination, states that the condition is "not clinically anaemic and no functional limitation". The Applicant described the effects of this condition as nervousness and "body not normal" and that he felt tired at times. He does not sleep during the day, and requires no medication. In the absence of evidence pointing to any impairment, the Tribunal agrees with the presently assessed impairment rating, under Table 20, of zeroCalcaneal spurs and left knee pain: The Health Services Australia medical examiner justified an impairment rating against Table 4 of 10 points, based on a history of painful heels and left knee, difficulties in walking and standing for long periods, although describing general mobility as being "without discomfort". Both the SSAT and the Respondent concur with that rating. On the evidence presented by the Applicant, the Tribunal is also in accord with this impairment rating.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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