Lucas and Department of Family and Community Services

[2002] AATA 144

DECISION AND REASONS FOR DECISION [2002] AATA 144

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/966

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      NEIL JAMES LUCAS       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr IR Way, Member           

Date7 March 2002

PlaceBrisbane (heard at Coolangatta)

Decision      The Tribunal affirms the decision under review.      
  (Sgd) I R Way
  Member

Decision No:  144/2002
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Eligibility – Whether applicant has a continuing inability to work 

Social Security Act 1991 (Cth), s 94
Social Security Administration Act 1999, Schedule 2

REASONS FOR DECISION

7 March 2002    Mr IR Way, Member   

1. This is an application by Neil Lucas for review of a decision of Centrelink dated 2 February 2001 which determined that the applicant was not qualified for Disability Support Pension (DSP).  This decision was affirmed by an Authorised Review Officer on 16 May 2001 and by the Social Security Appeals Tribunal ("SSAT") on 13 September 2001.

2. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T22) and treating Doctor reports from Dr T Clements dated 11 December 2001 (Exhibit A1) and 22 January 2002 (Exhibit A2).  The applicant was self represented and gave oral evidence.
   Background Information

3. The applicant was born on 31 March 1946 and lodged his claim for DSP on 28 November 2000.  In his claim the applicant listed his disabilities as osteoarthritis in both knees, arthritis in feet, knees and finger joints, diabetes, gout to both feet and bones spur left foot. 

4. On 24 April 1996 an audiologist reported among other things that the applicant had a "mild predominantly sensorineurol loss in both ears". 
   Legislative Framework

5. The Social Security Act 1991 ("the Act") relevantly provides as follows:

   "Qualification for disability support pension—continuing inability to work
   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.

   Meaning of continuing inability
   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.

   94(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)the availability to the person of educational or vocational training or on-the-job training; or

   (b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

   94(4)  For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

   94(5)  In this section:
   "educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
   "on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
   "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. Clause 4 of Part (ii) Schedule 2 of the Social Security Administration Act 1999 provides as follows:

   "4   Start day – early claim

   (1)       If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

   (2)       For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

(b)family allowance, family tax payment, maternity allowance, maternity immunisation allowance or parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the allowance or payment because of the birth of a child."

Issues

1. There is no dispute between the parties that the applicant has a physical impairment of 20 points or more under the Impairment Tables. 

2. It is common ground that the sole issue in this matter is whether the applicant had a continuing inability to work within the 13 week period from the date of his claim (the relevant period). 
   The Applicant's Evidence

3. The applicant told the Tribunal that he was employed by Ansett as a porter undertaking loading and cleaning duties but he felt he had become a liability to the company because of the time he had to take off as a result of his arthritis, particularly in his knees, feet and fingers.  He said that in this context when he was given the opportunity to take redundancy in late 2000 he did so and then applied for New Start Allowance ("NSA").  On application for NSA he was advised to apply for a disability support pension and this he did on 28 November 2000. 

4. It was the applicant's evidence that Ansett had sent him for a hearing test a few years ago and, following his application for DSP, Centrelink sent him to Dr Black for medical assessment.

5. The Tribunal notes that the applicant's application for NSA was accepted and that, should the applicant be successful in his claim for DSP, the benefits he would then receive are not significantly greater than those he is now receiving.

6. The applicant stated in his reason for lodging this appeal:

   "The Tribunal only considered my medical condition from 28 November to 3 months from this date late Feb.  As it is now October my conditions have continued to deteriate (sic) since Feb.  They told me to appeal decision to you then if not satisfied to reapply for my conditions.
   So on their advice I do appeal their decisions!"

1. When asked to clarify why he thought the respondent's decision was wrong, the applicant said he was appealing because he was told to do so and that he thought that he had to "go along with the system" as part of the process of progressing his claim for DSP.  He said that he was not before the Tribunal for the money. 

2. The applicant told the Tribunal that he was now well aware that consideration of the circumstances of his claim was confined to the relevant period of 13 weeks after the day on which his claim was made; that he had recently lodged a further claim; and that he was waiting for further medical assessment in relation to this claim.
   Medical Evidence

3. A treating Doctor's report was completed by Dr Clements on 5 December 2000 [T6 ff43-49].  This report diagnosed the applicant as suffering from osteoarthritis to both knees and indicated, among other things, that the applicant's condition was long-term, and deteriorating [f45].  The report also indicated that the applicant was currently able to work part time for at least 8 hours per week, but that this depended "entirely on the type of work – unable to stand, sit for long periods, kneel, etc".  Dr Clements did not advise whether, in his opinion, the applicant had an ability to do any kind of work for more than 30 hours per week [f47].

4. On 19 January 2001 a Medical Assessment Report was made by Dr Black of Health Services Australia (HSA) [T7 ff50-65].  Dr Black indicated that the applicant suffered from a degenerative osteoarthritis to both knees and allocated a rating of 20 points under Table 4 of the Impairment Tables [f 56].  The report also indicated that the applicant suffered hearing loss but declined to allocate a rating as the results of the audiogram were not available.  Dr Black commented [at f63] that the applicant was capable of "work in which he could accommodate his lower limb condition" (eg telemarketing), provided his hearing could be improved.

5. A further audiologists report was prepared on 1 March 2001 [T10 ff68-69].  This report stated, among other things, that the "applicant's speech amplification improved to excellent in both ears with appropriate amplification", and that the results of the examination suggested that he would be "a suitable candidate for amplification in either or both ears" [83].

6. In light of this report a further Medical Assessment Report was made by Dr Black [T11 ff70-84A].  This report repeated the assessment of the osteoarthritis [f76], but gave the applicant's hearing loss a rating of 5 points under Table 5 [f77].  Dr Black was of the opinion that the applicant could return to work of 20 hours or more per week within 6 months, but that this would need to be in a "supported environment" [f80].  He later stated that he would be fit for retraining for suitable work, such as telemarketing, after amplification in both ears [f83].

7. On 26 March 2001 a Centrelink officer requested that Dr Black clarify what he meant by "supported environment" [T12 f85].

8. On 3 April a file note records Dr Black as stating that this meant "an employer who could accommodate client's mobility problems with his knees".  In the same file note a Centrelink officer questioned whether the hearing loss has been "'treated' inasmuch as he has not taken any steps towards obtaining hearing aids".

9. The Tribunal notes that:

(a)A Treating Doctor's Report has since been completed on 11 December 2001 by Dr Clements.  This report stated that the applicant currently could return to part time work, but did not address the issue of whether work of more than 30 hours a week could be done [p5 of that report]; and

(b)On 22 January 2002 the applicant authorised the release of a further TDR completed by Dr Clements.  In this report the Doctor stated that the applicant would be unable to return to any work within 2 years [page 3 of that report].

Considerations

1. The respondent contended that the applicant had no entitlement to DSP as the only medical reports covering the relevant period were those of Dr Clements (dated 5 December 2000) and Dr Black (dated 9 January 2001, and 9 March 2001); and that all these reports indicated that the applicant had no continuing inability to work. 

2. The Tribunal is satisfied that the above medical reports comprise the only medical evidence available to the Tribunal with respect to the relevant period of assessment, namely 13 weeks from the applicant's claim. 

3. Dr Clements on 5 December 2000 originally declared the applicant would be capable of returning to part time work within six months, but did not indicate whether full time work of any kind was an option.

4. On 19 January 2001, Dr Black specifically addressed this issue.  At that time he stated that the applicant would be fit for work of some type for at least 30 hours per week within 6 to 12 months.

5. On 9 March 2001, Dr Black restated his belief that the applicant could perform some type of work within six months.

6. The Tribunal is satisfied that the assessment of Dr Black is correct and that the applicant did, at the time of his claim, and within 13 weeks thereafter, have an ability to return to work for 30 hours or more per week, after measures had been taken to address the applicant's hearing loss. 

7. After consideration of all of the material before it the Tribunal is satisfied that, at the relevant time, the applicant did have an impairment warranting a rating of 20 points or more under the Impairment Tables, however for the reasons given above, the applicant did not have an impairment during the relevant period which would be sufficient to prevent him from doing any work within the next two years.

8. The Tribunal finds that the applicant did not have a continuing inability to work as within the meaning of s 94 of the Act.

9. The Tribunal affirms the decision under review.

   I certify that the thirty (30) preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

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

   Date/s of Hearing  4 February 2002 (heard at Coolangatta)
   Date of Decision  7 March 2002
   Applicant  In Person
   Respondent  Mr N Foster