Kelly; Secretary, Department of Family and Community Services

[2002] AATA 1124

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 1124

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/112

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    ANTHONY JOHN KELLY            
  Respondent

DECISION

Tribunal       Senior Member WJF Purcell        

Date18 October 2002

PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review, and substitutes the decision of a delegate of 20 September 2000 that the respondent was not qualified for payment of Disability Support Pension.              
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY- pensions, benefits and allowances – Disability Support Pension – whether respondent satisfied legislative requirements – continuing inability to work   
Social Security Act 1991 section 94

ORAL REASONS FOR DECISION

18 October 2002       Senior Member WJF Purcell                   

1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 16 February 2001, which set aside the decision of a delegate of 20 September 2000, to cancel Disability Support Pension.  The decision was affirmed by an Authorised Review Officer on 5 December 2000.  The SSAT substituted a new decision that the respondent satisfied the legislative requirements for payment of Disability Support Pension. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the applicant (the Department). The respondent advised by telephone 2 days before the Hearing that he would not be in attendance, and the Hearing proceeded in his absence. Ms Pugsley represented the Department.

3. On 29 June 1995 the respondent was granted Disability Support Pension (DSP).  In September 1997, he advised the Department that he was working 30 hours per week, and was not paid DSP during the period 11 September 1997 to 22 January 1998.  In September 1999, he again advised that he had commenced employment, and was not paid DSP during the period 16 September 1999 to 22 December 1999.  In January 2000, he again advised that he had commenced employment, and was not paid DSP from 21 January 2000 to 26 April 2000.  In July 2000, the respondent advised the Department that he had worked for one week for Select Staff, and had earnings of approximately $1,343.  His DSP was adjusted to take account of those earnings. 

4. The respondent's continued entitlement to DSP was reviewed in July 2000.  In connection with the review, he completed a "Medical Review – Disability Support Pension" form, which was lodged with Centrelink on 19 July 2000.  On the form he was asked "Have you ever applied to do rehabilitation or work training?".  He ticked the box entitled "Yes" and wrote "Commonwealth Rehabilitation Program".  He was also asked "Have you gained any other qualifications, skills or experience?".  He ticked the box entitled "Yes" and wrote "Fin Fish Farm Hand, GSW Flinders Power".  In response to the question "Have you ever done any paid work?" he answered "Yes", and advised that he had worked in a casual capacity from 1999 to 2000 for Select Staff, and in a casual capacity from 1996 to 1999 for Spencer Gulf Aquaculture.  He also advised that he did not leave that employment because of his disability.

5. The respondent's treating doctor, Dr McQuistan, provided a report dated 19 July 2000 [T17], in which he stated that the respondent's conditions were left ankle osteoarthritis, low back pain – lumbar region L3/4 disc injury, and arthritis left elbow.  In respect of each of these conditions, Dr McQuistan was of the view that the condition was long-term and fluctuating.  In response to the question "When is the patient likely to be able to return to any kind of full-time work – not just their last job? (for at least 30 hours per week)" Dr McQuistan ticked the box marked "more than 2 years".

6. The respondent was referred for an assessment by Health Services Australia, and completed a pre-assessment questionnaire.  In response to the question "Do you currently work?" he wrote "Part-time".  In response to the question "If so, how many hours per week?' he replied "38 aprox [sic]".  He was examined by Dr Gormly of Health Services Australia on 18 September 2000.  Dr Gormly described his impairments as being lower back pain, lumbar disc lesion, osteoarthritis left ankle and arthritis left ankle.  Dr Gormly reported that, in his view, the respondent was fit for his usual work, and that he was fit to work for more than 30 hours per week.  He stated:

   "Despite the customer's physical conditions he has completed an aquaculture course and has been working on a full-time basis for the last 18 months as a trades assistant."  [T18/74]

Dr Gormly determined that the respondent had an impairment rating of 15 points and did not have a "continuing inability for work" as required by section 94 of the Social Security Act 1991 (the Act), which, as far as is relevant for the purposes of this review, provides:

"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, stating the period for which the person is to participate in the system; and

(d)       the person has turned 16; and
(e)       the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)      is not an Australian resident; and
(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident."

1. The term "continuing inability to work" is defined in section 94(2) of the Act as:

   "94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

   (b)       either:

   (i)the 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

   (ii)if 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."

2. The term "work" is defined in section 94(5) of the Act as:

   ""work" means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market."

1. The Department accepts that the respondent satisfies sections 94(1)(a), (b), (d) and (e) of the Act, and the Department accepts now, that the respondent has an impairment rating of 20 points, as determined by the SSAT. It contends that section 94(1)(c)(ii) of the Act is not relevant to the respondent's circumstances.

2. The Department contends that during the review period the respondent did not have a continuing inability to work as required by section 94(1)(c) of the Act. The assessment by Dr Gormly found that the respondent was presently capable of working 30 hours per week. He was of the view that vocational rehabilitation, or supported employment would help the respondent return to, or start work.

3. The Department contends also that the SSAT was in error in finding that the respondent had a "continuing inability to work".  The SSAT relied largely upon the respondent's statements regarding his work history.  The Department contends finally that the information provided by the respondent to the SSAT was not accurate.  In particular, it did not address the significant periods during which he had been in employment over the preceding 4 years, as indicated in the documentary evidence provided by his employers.

4. The Department maintains also that the SSAT took into account the respondent's "problems with temper and loss of control", which they considered would "mean that he would not flourish in a situation in which he had to deal with the public or with other workers".  These are not factors relevant to determining the issue as to whether he had a continuing inability to work. 

5. At the Hearing the Department tendered two responses from the respondent's employers, Select Staff and Aztec Services, together with their replies to specific questions from the Department.  Select Staff advised that the respondent had been registered with the organisation since 17 November 1998; that he had been employed as a general skilled worker on standard daily hours of 7-9 hours per day., weekly standard hours of 39.5 per week; that he had only minor periods of non-attendance, and that he ceased the particular employment on each occasion when the work was complete.

6. An examination of the records provided by Select Staff discloses that between 22 November 1998 and 20 December 1998, the respondent was in continuous employment, an average of 38 hours per week, and not less than 31 hours per week on any occasion.  Between 5 September 1999 and 19 December 1999, when he was in employment, he worked an average of 38 hours per week, and not less than 31 hours per week in any week, and on several occasions he worked more than 57 hours per week.  The maximum in any one week during this period being 74.25 hours, during the week ending 3 October 1999.  He had continuous work between 3 July 2000 and 16 July 2000 and between 28 August 2000 and 15 October 2000, some 3 weeks after the delegate's decision to cancel his DSP.

7. Aztec Services advised that the respondent registered with the organisation on 9 June 2000; his periods of non-attendance were when no work was available, and that he would be employed as required.  An examination of the records provided by Aztec Services disclosed that between 11 June 2000 and 23 July 2000, he worked for Aztec Services as well as Select Staff, and that between 20 August 2000 and 29 October 2000, he was in full-time employment working, in fact, 73 hours in the week ending 29 October 2000.

8. It is clear on the documentary evidence that Dr Gormly was not in error when he reported that as at September 2000, the respondent had resumed full-time work.  The SSAT accepted the respondent's evidence as to his inability to work.  The documents provided by his employers demonstrate clearly that he was able to work more than 30 hours per week, and up to 74.25 hours per week when work was available.

9. I am satisfied on the evidence, and find as a fact, that the respondent, during the review period, did not have a continuing inability to work. He did not satisfy section 94(1)(c)(i) of the Act, and was not qualified for Disability Support Pension.

10. For these reasons the Tribunal sets aside the decision under review, and substitutes the decision of a delegate of 20 September 2000, that the respondent was not qualified for payment of Disability Support Pension. 

    I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

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

    Date of Hearing  18 October 2002
    Date of Decision  18 October 2002
    Counsel for the Applicant        Ms A Pugsley
    Solicitor for the Applicant         Centrelink
    Counsel for the Respondent    N/A
    Solicitor for the Respondent    -