McClelland; Department of Family and Community Services

[2001] AATA 197

DECISION AND REASONS FOR DECISION [2001] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/148

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    ROBERT McCLELLAND
  Respondent

DECISION

Tribunal       Miss W.J.F. Purcell (Senior Member)     

Date15 March 2001

PlaceAdelaide

Decision      The Tribunal sets aside the decision under review and affirms the decision of the Authorised Review Officer of 30 November 1999, to cancel payment of disability support pension to the respondent.     
  (Signed)
  W J F PURCELL

(Senior Member)

CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether respondent has a continuing inability to work for at least 30 hours per week at award wages or above.

Social Security Act 1991 s94

REASONS FOR DECISION

15 March 2001        Miss W.J.F. Purcell (Senior Member)                 

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 7 April 2000 which set aside the decision of an Authorised Review Officer of 30 November 1999, to cancel the respondent's disability support pension (Pension).  The SSAT remitted the matter for reconsideration on the basis that the applicant was eligible for payment of pension subject to all the requirements of the Social Security Act 1991 (the Act) being met.

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 parties. Mr Kilderry, a Departmental advocate, represented the applicant (the Department) which called Dr Meegan, Occupational Physician and Ms Leach, Clinical Psychologist as witnesses. Mr Roberts, of counsel, represented the respondent who gave oral evidence and called Mrs Tomalin, Services Manager, Port Augusta Hospital (the Hospital) as a witness.

3. The respondent who is 54 years of age, was granted pension on 14 December 1993.  He had been assessed on 5 November 1993, as having a bilateral hearing loss, resulting in a combined impairment rating of 25 per cent.  Dr Pamnany, Commonwealth Medical Officer, ticked the "No" boxes in answer to the questions in Part 6 (A)(i) and (ii) of the Report, which read:-

   "A(i) Is the person currently medically fit for his/her usual work, or work for which he/she is skilled, for at least 30 hours a week at award wages?…"
   A(ii) If No, is the person likely to become fit for such work within the next 24 months?"

Dr Pamnany assessed the respondent's work capabilities in the following terms:-

"This pleasant well motivated man with significant permanent hearing loss has by sheer dint of personal effort managed to get casual trial employment at Port Augusta hospital as a part-time orderly since March 1993.  He enjoys this challenge but there are considerable restrictions in that people have to face him directly and at present he is in theatre.
Hence he has demonstrated his ability to work if there is sympathetic employment, however one cannot honestly say he is fit for that work if it is open employment.  He is certainly unfit for boiler maker (usual job) work as it is too noisy.
In conjunction with the recent ENT report (Mr Jay), I agree that open employment is not an option and the recent failure to pass The Railways medical test for hearing for a job there is an illustration" (T21/92).

1. The respondent's eligibility for pension was reviewed from time to time.  The respondent stated on 20 February 1995, that he had been working as a hospital orderly since March 1994, and he worked more than 16 hours per week.  On 20 October 1996, he stated that he was working as a Cleaner/Orderly 25 hours per week.  On 2 December 1996, the Commonwealth Medical Officer, Dr Richards, noted that the respondent was working about 20 hours per week and that the Hospital employed him taking into account his special needs.  On 27 April 1997, the respondent stated that he was working 16 hours per week, and on 13 November 1997, that he was working about 25 hours per week. 

2. On 23 September 1999, Dr G Hopkins, Medical Adviser, Health Services Australia, stated in relation to the respondent's whole person assessment:-

   "FILE REVIEW
   Mr McLelland (sic) is a 53 year old man who previously worked as a metal worker and as a result has suffered significant industrial deafness.  Indeed this has previously been assessed at greater than 58% loss.  He now wears hearing aids, lip reads and watches television using headphones.  He is currently working part time as a hospital orderly/cleaner.  The hearing loss is his only significant problem.  He appears to have been granted the Disability Support Pension on the basis of his hearing loss.  He is currently working about 20 hours per week as a casual hospital cleaner/orderly.
   The reported problem is:

   1.Hearing loss – previously assessed at greater than 58%.

   There is a Permanent Impairment of 20 points.
   The general practitioner has indicated that he could return to other work and has ticked both the now box and the greater than two year box, so it is difficult to understand what the general practitioner is indicating, although he does indicate that the claimant would be able to work more than 20 hours per week.
   On the basis of the information provided both by the claimant, the general practitioner and the previous HAS Examiners, I can see no reason why deafness per se should prevent full time work, indeed it does not prevent part time work as has already been performed by the claimant, therefore one wonders why it should prevent full time work should this be available.
   My impression is that the claimant could return to full time work now, but if this was the case then he should probably have a formal medical review if his pension was to be revoked." (T30/179-80).

3. On 19 October 1999, a delegate determined that the respondent's medical condition allowed him to participate in full-time work, and the delegate cancelled the respondent's pension payments.  This decision was affirmed by an Authorised Review Officer on 30 November 1999.  On 5 April 2000, the SSAT set aside the decision, and in the course of its Reasons for Decision said:-

   "INFORMATION PROVIDED AT THE HEARING :
   Mr McClelland told the Tribunal that he had been working about thirty hours a week at the Port Augusta Hospital as an orderly but had to reduce the hours, doing only the components of the job that he could do.  He found, for instance, that he could not work in the operating theatre because he could not understand what people were saying when they were wearing masks.  He could not do stores work because it needed the use of telephones and computers.  He could not work in the kitchen because the noise meant he had to turn off his hearing aids and could not then communicate.  If he tries to work in the kitchen with his hearing aids on, the effect of the noise on his ears and hearing is painful.  He was unable to work in women's and children's wards because women's voices are soft and he cannot hear them, so cannot hear answers when he knocks on a door.
   He does driving work because it is a defined job of taking patients to a known destination.  If he needed to communicate with the patients it would be stressful and difficult.  He would need to stop whatever else he was doing.  He can do cleaning, but that is only a small component of the job, or indeed of any job now.
   Mr McClelland said he would be unable to do taxi or courier work as it needs the use of telephones and radios and communicating with customers.  He said customers get agitated when he is constantly asking them to repeat themselves.  In his work at the hospital he cannot do fire training because that needs use of radios.  He can be unhelpful or in danger when handling aggressive patients or relatives, as he is unable to quickly assess what the problem is or even realises that there is a problem. He said his present employer makes allowances for his disability.
   A lot of the work he gets is because his wife answers the phone.  Often he would not hear it." (T2/4-5).

   "FINDINGS OF FACT
   On the basis of the evidence before it, the Tribunal made the following findings of fact:

• Mr McClelland's age is 53 years.

• Mr McClelland's usual work is hospital orderly.

• Mr McClelland suffers from the following diagnosed condition:  

  Severe sensori-neural hearing loss

• It has been investigated, treated and stabilised.

• It is more likely than not to persist for more than two years.

• There is marked restriction on the ability of Mr McClelland to communicate in various situations, such as on the telephone, in groups, with quiet speech, or in noisy environments.

• Any full time work that Mr McClelland could do or could be trained for would require the ability to hear instructions or talk on the telephone for at least part of the working week.

• There is not now any full time work that Mr McClelland could do.

• Because of his poor ability to hear, Mr McClelland is not able to participate in mainstream education or retraining."

"APPLICATION OF THE LAW
"…The Tribunal has found that because of the functional limitations associated with his impairment, Mr McClelland would not be able to undertake any work for which he may be currently skilled.
The Tribunal has also found that these limitations would also prevent him from undertaking educational, vocational or on-the-job training which would enable him to perform alternative work within two years.  He therefore has a continuing inability to work and satisfies section 94(1)(c)" (T2/9-10).

1. For a person to qualify for disability support pension he must satisfy 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.

   …
   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 (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.

   …"

2. It is not in dispute that the respondent has the required 20 or more points under the Impairment Tables in relation to his condition of binaural hearing loss, and that he satisfies s94(1)(b) of the Act. The Department contends that the respondent does not satisfy s94(1)(c) of the Act, in that he does not have a continuing inability to work. He has demonstrated an ability to work 30 hours per week. Although his current job might have been restructured with a focus on multi-skilling, and his working hours might have been reduced, the test is whether the respondent has a continuing inability to work in accordance with s94(2) of the Act. His deafness has restructured the type of work the respondent can undertake, but he has demonstrated an ability to work 30 hours per week, within his limitations.

3. The respondent argues that he is 54 years old with limited education and his experience in the workforce, in the full time workforce at more than 30 hours per week, has been as a welder in the fabrication industry.  This occupation is no longer available to him due to his incapacity.  The casual work that the respondent has managed to obtain should not act to prejudice his current entitlement to a pension.  The Tribunal should not confuse his physical ability to have worked some weeks at 30 hours or above to mean he can work consistently at 30 hours and above a week; i.e. to work 30 hours in a week is not the test, the test is whether it can be sustained at 30 hours or above.  The respondent has never demonstrated an ability to work in open employment at 30 hours per week on a regular basis, with his current level of hearing loss which has continued to increase.

4. The respondent submits also that his impairment prevents him from being able to undertake any educational or vocational training or on-the-job training, without it being specifically designed for his hearing impairment.  He has demonstrated initiative and motivation to find suitable part time work and this should not work against him.

5. The respondent gave evidence that he obtained employment with the Hospital in March 1993 as an orderly.  At first he worked out of an office and he moved then to a ward.  His duties changed some time later when the number of orderlies was reduced from 13 - 14 full time orderlies to 5 and full time hours were varied.  He tried working in Theatre, but he could not hear the instructions given by the surgical team, and it was considered too dangerous to patient safety for him to continue in this role.  He said that in about 1994 the Hospital administration changed, and multi-skilling practices were introduced, which caused him further difficulties because of his hearing disability.  He was expected to provide assistance in emergency situations, but because he does not hear the alarm bell he cannot be relied upon in situations where patients or staff need assistance.  He does not hear these distress calls.

6. The respondent said in evidence that with the requirements of multi-skilling his hours of work have gradually been reduced, because of the reduction in the type of work he can perform within his capacities.  There are many of the duties of the position he occupies which he is unable to perform, e.g. he cannot take the menus in the morning because he cannot understand what the patient is saying; and he has found that when he has taken orders patients have complained when the wrong meal has arrived.  He said that he could not work as a gardener because this was now a skilled occupation.  He can drive patients to and from the Hospital, and move patients around.  He can clean, vacuum passage-ways and so forth, and do the rubbish round.

7. The respondent said in evidence that over the years since at least 1996 when Dr. Richards recorded him as working 25 hours per week, he has always meant hours worked per fortnight, not per week.  He may have provided 'hours per week' but he meant 'per fortnight'.  He said that he had never worked 30 hours per week, he only  ever worked 30 hours per fortnight.

8. The matter was adjourned to enable the respondent's record of payments and working hours to be obtained from The Hospital (Exhibit  R4).  The records disclose that between 7 September 1997 and 30 November 1997 the respondent had worked up to 40 hours per week; and that between 16 November 1997 and 25 January 1998 he worked an average of 25 hours per week.  The respondent said in evidence that the Hospital records were accurate, but that he did not recall working such long hours.  He said that he had not worked 40 hours per week since July 1998, as he no longer fitted the requirements for such jobs as gardening and Theatre Assistant, because he cannot understand instructions.  Despite agreeing in evidence that Exhibit R4 disclosed that during the 5 years up to August 1999 (two months before the delegate's decision to cease payment) he had worked up to 77 hours per fortnight; and in the fortnight ending 9 April 1999 that he had worked 55 hours 15 minutes.  He said that he could not do any job available to him in Australia for 30 hours per week. He said also, that at the date of the Hearing he could not work 8 hours per day in any job.

9. It is obvious that the respondent suffers a major hearing disability, but it is clear also, that his assertions on the first day of the Hearing that he had never worked 30 hours per week, were not borne out by the Hospital records produced at the resumed Hearing.  I consider that the respondent deliberately understated the working hours of which he was capable, in an attempt to mislead the Tribunal as to his capacity for work.  This does not mean that I disregard the whole of his testimony, but that I prefer to rely on other more credible evidence in areas of dispute in the evidence.

10. The Department called Dr. Meegan, Consultant Physician, who reported, on 15 June 2000 as follows:-

    "…I would regard Mr McClelland as medically fit for any employment that does not have specific auditory requirements in relation to job performance or safety aspects.  This would include most jobs where the main tasks consist of manual work without extensive/frequent verbal communication or telephone usage.  Some examples include cleaning, gardening, packing or assembly work in an environment that was not excessively noisy.  Some jobs would require a degree of reasonable adjustment on the part of the employer, particularly where multi-skilling is the norm.  Although he could be expected to cope with limited "on-the-job" training, it would clearly be inappropriate for him to attempt extensive retraining initiatives, particularly those with a dependence on verbal communication." (Exhibit A1)

11. Dr Meegan said in evidence that he saw the respondent on 19 July 2000, and considered that the respondent had the proven ability to work 30 hours per week, and that his working hours were reduced because the work he could do became less available, rather than a situation of the respondent being physically unable to work the longer hours.  There was a narrower range of tasks available to him.  I accept  Dr. Meegan's evidence.

12. The Department called Ms Leach, psychologist, who interviewed the respondent on 29 August 2000, and gave evidence of her opinion that he has a normal range of intelligence and in her view he is:-

    "… capable of jobs where he was not required to communicate a great deal in the noisy environment or where written notes and other visual cues can be used to enhance communication.  Jobs such as working with animals, research assistant, hands on jobs or working with plants are all jobs which Mr McClelland finds interesting and as such he would be motivated to perform. He is better to avoid service or management positions such as in sales or where he would be required to direct others." (Exhibit A3)

I accept Ms Leach's evidence.

1. The respondent called Mrs Tomalin, the Hospital Service Manager, who has been his supervisor for 5 years.  She said that he was not able to fulfil all the duties; that she had to accommodate him in all positions; that he has to work in a team, and the other team members carry out the duties he cannot perform.  She said that the respondent has participated in the standard short term 1½ hour 'hands on' training sessions.  If the respondent was to work 30 hours per week, he would be required to answer the telephone, and to have personal contact with patients and members of the public; which is a duty he is unable to perform.  She said that the reason the respondent works lesser hours is because the duties he can perform are restricted in time.  I accept Mrs Tomalin's evidence.

2. I have examined the whole of the evidence carefully and in detail and I have taken into account the parties' submissions. I am satisfied on the evidence and find as a fact that the respondent has, since March 1993, worked on occasions for 30 hours per week and above. I am satisfied on the evidence that he is capable of working 30 hours per week at award wages or above, and that his impairment does not of itself prevent his undertaking educational or vocational training. The respondent does not satisfy s94(2) of the Act; and is not qualified therefore, for payment of disability support pension.

3. For these reasons the Tribunal sets aside the decision under review, and affirms the decision of the Authorised Review Officer of 30 November 1999, to cancel payment of disability support pension to the respondent.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of 

Signed:   .....................................................................................
  Personal Assistant

Date/s of Hearing  14/11/2000 and 9/1/2001
Date of Decision  15/3/2001
Counsel for the Applicant        Mr R Kilderry
Solicitor for the Applicant         Centrelink
Counsel for the Respondent    Mr C Roberts
Solicitor for the Respondent    Welfare Rights Centre SA (Inc)