McElligott and Secretary, Department of Family and Community Services

[2005] AATA 128

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/240

GENERAL ADMINISTRATIVE DIVISION		)
Re		LORAIN McELLIGOTT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date11 February 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.         ..........[Sgd]........

R G Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairment – condition of chronic fatigue syndrome not stabilised or permanent – relevant time-frame for qualification

Social Security Act 1991: s94, Schedule 1B

Social Security (Administration) Act 1999: Schedule 2

REASONS FOR DECISION

11 February 2005   Mr R G Kenny, Member            

1.      Lorain McElligott (the applicant) has chronic fatigue syndrome and, on 28 August 2003, she lodged a claim for payment of disability support pension, which is a form of income support payable under the Social Security Act 1991 (the Act).  She had previously been in receipt of this form of payment but it was discontinued due to her absence from Australia for a period of more than 26 weeks.  On 29 October 2003, a delegate of Centrelink rejected her claim and that decision was affirmed by an authorised review officer on 11 December 2003.  The decision was then affirmed by the Social Security Appeals Tribunal on 25 February 2004 and, on 1 April 2004, Ms McElligott sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

THE HEARING

2.      Ms McElligott attended the hearing but was not represented.  Mr T Ffrench from the advocacy and administrative law team with Centrelink appeared on behalf of the Secretary, Department of Family & Community Services (the respondent). 

3.      At the hearing, the following material was taken into evidence:

· exhibits 1 and 2 – documents prepared in accordance with Section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents: T1 – T42 and the S documents: S1 – S73, respectively);

·     exhibit 3 – a letter, dated 1 April 2004, by the applicant;

·     exhibit 4 – a medical report, dated 1 February 2005, by Dr C Goodall, the applicant’s treating doctor.

ISSUES AND LEGISLATION

4. Provided a person meets the relevant criteria for payment of the disability support pension, this can be paid where the qualification requirements in section 94 of the Act are also met. That provision, in so far as relevant in this matter, reads:

“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;”

……

5.      In accordance with that provision, the Tribunal must determine:

·     whether the applicant has a physical, intellectual or psychiatric impairment;  and, if so

· whether she has an impairment rating of 20 points or more which is calculated under the impairment tables in Schedule 1B of the Act as required by paragraph 94 (1)(b) thereof; and, if so

·     whether she has a continuing inability to work as required by sub-paragraph 94 (1)(c)(i) of the Act.

6. To qualify for a disability support pension, all three of those requirements must be met and, further, they must be met at the time of the initial claim or in the period of 13 weeks starting immediately after the day on which the claim was lodged. This is provided for in Clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which relevantly read:

“Start Day – General Rule
3(1)  If:
(a)       a person makes a claim for a social security payment;  and

(b)the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.
…..
Start Day – Early Claim
4(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.”

Ms McELLIGOTT’S EVIDENCE

7.      Ms McElligott said that she developed chronic fatigue syndrome about nine months after she had suffered from glandular fever in the mid to late 1990s.  She described it as a condition which fluctuated in severity and as one for which treatment was difficult to obtain.  Throughout the period that she has had the condition, she has constantly sought means for overcoming its effects.  In early 2003, she resolved to remove herself from her normal environment to see if that would assist her.  She travelled to South America.  She did a lot of walking and, although she still experienced difficulties, she noticed a significant improvement whilst she was there.  The main benefits she achieved during that period were physical in nature but she made little progress in respect of her memory and concentration problems   However, she has become involved with a form of homeopathic treatment since November 2004 and this has provided her with further improvement physically and has also helped in relation to  her memory and concentration.  Ms McElligott also said that she had other conditions which cause her problems and these included the effects of a back and shoulder injury.

8.      Ms McElligott saw neurologist, Dr G Shapel, in December 2003 and he conducted various tests on her and provided a report to Dr Goodall.  She could recall reading the report and believed that no significant findings had been made by Dr Schapel. 

9.      Ms McElligott is the sole director and shareholder of Westwood Enterprises (Queensland) Pty Ltd, which is the trustee of the McElligott Discretionary Trust of which she and several other members of her family are beneficiaries.  She, along with assistance provided by some of those family members, has conducted the business of the trust which has been in property investment.  The trust owns seven properties and Ms McElligott described the business as being quite successful. She said that she had been able to carry out work on the trust’s behalf only because it was equivalent to being self-employed and she was able to work at her own pace and with the assistance of other family members.  She said that she would not be able to perform in a normal workplace because of her condition.  Ms McElligott said that, before she contracted her illness, she had worked at a senior management level in a variety of positions in various parts of Australia and believed that she would no longer be able to perform that work at that level.

SUBMISSIONS

10. Mr Ffrench submitted that Ms McElligott was not qualified to receive the disability support pension because she did not meet the requirements of section 94 of the Act. He referred to a medical report prepared by Dr K Farrell on 16 October 2003 and submitted that this revealed that Ms McElligott’s chronic fatigue syndrome had not stabilised. He submitted that this meant that the condition was temporary in nature and one which could not be allocated a rating from Schedule 1B. He also relied on that report to demonstrate that Ms McElligott did not have an incapacity for employment that would last for more than two years.

11. Mr Ffrench also made submissions in respect of the payability of the disability support pension. He submitted that the value of Ms McElligott’s assets were such as to preclude her from receiving payments even if she were qualified under section 94 of the Act.

12.     Ms McElligott submitted that her condition should be regarded as permanent because it had been affecting her for so long.  She also submitted that the nature of the condition had not changed and that it had always been fluctuating in its effects and that, if the respondent was able to pay disability support pension to her in the past, then it should be prepared to do so in response to this claim. She submitted that reliance should be had on the reports of her treating doctors, Dr Goodall and Dr F McGrath, as indicating that she continued to suffer from the effects of this chronic fatigue syndrome which could not be described in terms other than that it was permanent. She submitted that it was important for persons with a condition such as chronic fatigue syndrome that ongoing investigations continue because otherwise a person would give up and not try to improve themselves.

13.     In relation to employment, Ms McElligott said that Dr Farrell had no basis on which he could assume that there would be any improvement in her condition and no basis for indicating that a period of potential incapacity for work was less than two years.

14.     In relation to payability, Ms McElligott submitted that the respondent had inappropriately attributed to her the full value of the assets of the family trust and she also submitted that some of the valuations of the properties obtained by the respondent were inflated and did not reflect market value.

CONSIDERATION

15. Submissions were made in this matter concerning the payability of disability support pension. However, the issue of payability, because of the level of assets of Ms McElligott, is applicable only if she meets the qualifying criteria in section 94. I am satisfied that she does not.

16.     The relevant time-frame in which consideration must be given to Ms McElligott’s condition is in the 13 week period starting on the date of lodgement of her claim on 28 August 2003.  In that period, Dr Goodall provided a report, dated 9 September 2003.  He diagnosed chronic fatigue syndrome and gave the date of onset as 1996.  He nominated symptoms including fatigue, memory disturbance and cognitive impairment.  He described the condition as fluctuating in its presentation and said that the impact of the condition would persist for more than two years.  Shortly thereafter, Dr Farrell prepared his report.  Therein, he noted that the condition had improved while Ms McElligott was overseas in the early part of 2003.  Although he acknowledged that the condition significantly interferes with her daily activities, he said that the condition was temporary in the sense that it had not stabilised.  He also noted, in his report, that an appointment had been made for her to see a neurologist in December 2003.  As noted above,  Ms McElligott saw neurologist, Dr G Shapel, in December 2003.

17. Schedule 1B of the Act includes an introduction which provides guidance for decision-makers in the use of the tables in that schedule. One of the requirements is that a condition, before being rated, must be considered to be permanent and this will be the case if it has been “diagnosed, treated and stabilised”.

18.     In this matter, Dr Goodall described the condition as fluctuating and that reflects the opinion of Dr Farrell that the condition has not stabilised and, in that sense, is not permanent.  Ms McElligott submitted that greater regard should be had to the evidence of Dr Goodall because Dr Farrell had seen her only once.  However, the unstable nature of the condition is borne out by the need for continued investigation of her condition, for example, by Dr Schapel. This instability is also demonstrated by the improvement that she has been able to achieve since November 2004 with the use of homeopathic means and by the change to her environment when she was outside Australia in early 2003.

19.     Dr McGrath, who is in practice with Dr Goodall, provided a report which described Ms McElligott as being unwell and entered a “working diagnosis” for chronic fatigue syndrome. Dr McGrath also made reference to depression and Dr Farrell, in his report, entered this as a second condition and described it as mild and having a nil impairment rating. 

20.     I have noted Ms McElligott’s contention in respect of her back and shoulder conditions.  However, these were not noted in her initial claim or in the medical reports prepared by Dr Goodall, Dr Farrell or Dr McGrath.

21.     Dr Goodall’s opinion that Ms McElligott would not be able to undertake any form of employment for more than two years has not been borne out by her ability and willingness to conduct the business of the family trust.  I accept that she is able to control the pace and pattern of her work but, nonetheless, it has proven to be successful and this has been due to her efforts.

22. I have noted Ms McElligott’s reference to her receipt of disability support pension previously. While I accept that this was the case, it is still necessary for her to satisfy the requirements of section 94 for any new claim that is made by her.

23. As outlined above, all three of the requirements in section 94 of the Act must be met in order for Ms McElligott to be qualified for the disability support pension. I am satisfied that she has a physical impairment from her chronic fatigue syndrome. However, on the evidence before me, no impairment rating can be allocated for chronic fatigue syndrome because the condition is not permanent, as required by schedule 1B of the Act. In relation to depression, the only evidence was that provided by Dr Farrell. I am satisfied that the appropriate rating for this condition is nil.

24. The overall impairment in Ms McElligott’s case is less than the required threshold of 20 points and it follows that an essential component of section 94 is not met. Therefore, she does not qualify for the disability support pension at the time of her claim or at any time in the 13 week period thereafter. As she does not meet the requirements of paragraph 94(1)(b) of the Act, it is not necessary to consider her capacity for work under paragraph 94(1)(c) of the Act or the issue of payability of the disability support pension to her.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:     Camille Banks

Associate

Date/s of Hearing   1 February 2005  
Date of Decision   11 February 2005
Applicant   Ms McElligott, herself
Respondent   Mr T Ffrench, departmental advocate