Kong and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1394

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1394

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600812

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHIAW KONG

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date1 June 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – exemption from activity test on grounds of temporary incapacity – accepted permanent conditions of asthma and NIDDM not sufficient to warrant temporary incapacity despite medical certificate - no ‘special circumstances’ – decision affirmed.

Social Security Act 1991 (Cth) ss 593(1), 603C(1); 603A

Re Beadle and director General, department of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

1 June 2007  Dr M Denovan, Member

Background

1.      Mr Kong was in receipt of Newstart Allowance when he requested exception from the activity test on the grounds that he had a temporary incapacity. It was accepted that Mr Kong suffers from asthma and non-insulin dependent diabetes mellitus (NIDDM).

2.      On 30 August 2005 Mr Kong lodged a medical certificate from Dr Feros dated 25 August 2005. Dr Feros said that Mr Kong was unfit to work due to asthma, which he stated was a permanent condition, for the period 25 August 2005 until 25 November 2005 (T18).

3.      On 21 September 2005 Centrelink refused to grant exemption from the activity test, on the grounds that Mr Kong did not have a temporary incapacity.

4.      Mr Kong was assessed by a work capacity assessor Ms A Case, on 14 September 2005 (T23). Ms Case concluded that both asthma and NIDDM are permanent conditions and neither prevents him from undertaking work of 30 hours or more in a suitable occupation. In relation to NIDDM, Ms Case noted that the applicant was capable of daily tasks and the only symptoms that he reported were frequent urination and thirst due to diabetes. Ms Case concluded that as Mr Kong’s asthma attacks usually occur at night and the most significant effect of these is to reduce the number of hours of sleep, this condition would have only minimal impact on his ability to perform sedentary tasks. Ms Case discussed the matter with Dr Feros, who she noted thought Mr Kong would benefit from a push towards employment.

5.      The matter was considered by an authorised review officer on 28 October 2005, who determined that Mr Kong did not have a temporary incapacity for work, and affirmed the decision (T36).

6.      The decision was affirmed by the Social Security Appeals Tribunal on 27 September 2006 (T2). Mr Kong appealed to the Administrative Appeals Tribunal on 8 November 2006 (T1).

Issues For Determination

7.      I have to consider:

·Whether Mr Kong was incapacitated for work during the period 28 August 2005 to 24 November 2005, and if so

·Whether the incapacity was of a temporary nature.

Evidence of Applicant

8.      Mr Kong gave evidence before me. He said that he has not worked since 1999. Mr Kong said that after Centrelink rejected his medical certificate, employment agency Serena Russo organised a job interview for him. However as soon as he told the prospective employer about the medical certificate he was advised that he could not enter the work place. He believes that this would be the case with any employer and he contends that for practical purposes, he was unable to work during the period in question - regardless of whether his medical conditions incapacitate him. He believes Centrelink should grant him exemption from the activity test for this reason. Mr Kong said that he did not return to Dr Feros after the work capacity assessment, because Dr Feros was on leave for one year. He did not discuss the situation with any of the other doctors at the same practice, as he finds them too difficult to talk to.

Evidence of Ms Case

9.      Ms Case gave evidence by telephone. She said that when preparing her work capacity report she took into account the medical certificate from Dr Feros. In concluding that the applicant could work 30 or more hours per week, Ms Case said that she considered his evidence that light duties did not exacerbate his symptoms; the fact that he was able to cope with the usual activities of daily living; and the fact that Dr Feros has indicated that the applicant would benefit from a push towards employment.

Application of the Law and Reasons

10. Under section 603C of the Social Security Act 1991 (the Act), a person is not required to satisfy the activity test if unable to work as a result of temporary incapacity caused by sickness or accident. Under section 603C(2) work means work of at least 8 hours per week at award wages that the person could be reasonably expected to do.

11.     Although Dr Feros stated in the medical certificate that Mr Kong was incapacitated to work, I accept the evidence of Ms Case that he retracted that statement and said that Mr Kong would benefit from a push towards employment. Ms Case is qualified to assess work capacity, and after considering all of the evidence – and in particular evidence of Mr Kong’s ability to engage in usual daily tasks without difficulty – found that Mr Kong could work 30 hours or more per week. I agree. Further, the evidence is that Mr Kong’s asthma is a permanent condition. Mr Kong did not have an inability to work due to a temporary incapacity, and therefore he does not qualify for exemption of the activity test during the relevant period.

12.     Section 603A of the Act states that Centrelink may determine that a person is not required to satisfy the activity test if special circumstances beyond the control of the person make it unreasonable to expect the person to comply with the activity test. While special circumstances are not defined in the Act, it is accepted that the term means ‘unusual, uncommon or exceptional’ (Re Beadle and Director General, department of Social Security (1984) 6 ALD 1 at 4). The case must be markedly different from the usual run of cases to amount to special circumstances (Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545). In my opinion, Mr Kong’s situation is not unusual, uncommon or exceptional and his circumstances do not warrant an exercise of the discretion - special circumstances do not exist in this case.

13.     Furthermore, I agree with the Social Security Appeals Tribunal that it was open to Mr Kong to discuss the possibility of changing the medical certificate with another doctor at Dr Feros’ surgery, in light of the work capacity assessment. Doing so would have likely enabled Mr Kong to attend further job interviews.

Decision

14.     The Tribunal affirms the decisions under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:         .....................................................................................
  M. Brazier, Associate

Date/s of Hearing  10 April 2007
Date of Decision  1 June 2007
Applicant  Mr Kong, self-represented
Respondent  Mr C Keim, departmental advocate