Moyle and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1136

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION  [2007] AATA 1136

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/693

GENERAL ADMINISTRATIVE DIVISION		)
Re		KIM MOYLE

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date              16 March 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

R G Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – medical condition not preventing applicant from undertaking work for at least 8 hours per week – no exemption from activity test

Social Security Act 1991 ss 593, 601, 603C

REASONS FOR DECISION

16 March 2007 Mr RG Kenny, Member

Background

1.      In 2006, Kim Moyle (the applicant) was in receipt of newstart allowance in accordance with the terms of the Social Security Act 1991 (the Act).  On 26 April 2006, he provided Centrelink with a medical certificate from his treating doctor, Dr Igor Ignatovich.  This certificate declared that, because of “left inguinal pain”, he was not able to undertake work for 8 or more hours per week for the period from 24 April 2006 until 24 July 2006.  For that reason, he sought to be exempted from the activity test associated with receipt of newstart allowance.  On 10 May 2006, a Centrelink officer rejected that application.  On 5 June 2006, that decision was affirmed by an authorised review officer.  On 31 August 2006, the decision was then affirmed by the Social Security Appeals Tribunal.  On 29 September 2006, Mr Moyle sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Issues and Legislation

2. The qualification requirements for newstart allowance are set out in section 593 of the Act. One of those is that a recipient of newstart allowance must satisfy the activity test which is set out in section 601 of the Act. This requires the recipient to be actively seeking paid work through the performance of job search activities. The Act makes provision for exemption from this requirement in various circumstances. One of these is set out in section 603C of the Act which reads:

603C.   Incapacitated person not required to satisfy activity test

603C(1)  Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

(a) throughout the period the person is incapacitated for work because of sickness or an accident; and

(b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c) the incapacity is, or is likely to be, of a temporary nature; and

(d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and

(e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i) the medical practitioner's diagnosis; and

(ii) the medical practitioner's prognosis; and

(iii) that the person is incapacitated for work; and

(iv) the period for which the person is incapacitated for work; and

(f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

603C(2)  In this section:

“work”, in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

(a) is of a kind that the person could, in the Secretary's opinion, be reasonably expected to do; and

(b) is for at least 8 hours per week on wages that are at or above the relevant minimum wage.

3.      The issue for determination is whether Mr Moyle met the requirements of that provision as certified by Dr Ignatovich.

Medical Evidence

4.      Dr Ignatovich’s report described post operative pain of a “temporary” nature.  This pain was related to surgery that Mr Moyle underwent for an inguinal hernia in March 2004.  Dr Ignatovich described the treatment for Mr Moyle’s condition as comprising “investigations, analgesia and specialist review”. 

5.      In investigating Mr Moyle’s circumstances, Centrelink arranged for him to be seen by a rehabilitation consultant, Deborah Duberry, with Advanced Personnel Management.  Ms Duberry provided a Work Capacity/Participation Assessment Report on 5 May 2006.  This report noted that Mr Moyle had a hernia repair in 2004 and has since suffered groin pain and kidney stone pain which he self-treated with panadol or paracetamol about once per week.  It was also noted that Mr Moyle advised that he was to see a specialist in relation to kidney stones at the end of May 2006.  The report described Mr Moyle as living alone and managing self-care and domestic duties independently, depending on his level of motivation.  His past history of employment was noted as including 10 years as a technician with Telecom, several weeks in a post office and a week of delivering telephone books.  Ms Duberry noted the presence of mood disorder with mild but regular symptoms as well as mild to moderate symptoms from his groin condition.  She concluded that Mr Moyle was able, without the need for any intervention programs, to undertake work for at least 30 hours per week in activities such as “cashier, courier driver, ticket sales, gate-keeper, car-park attendant, call-centre operator, newsagent sales”.

6.      File notes indicate that, before affirming the original decision, the authorised review officer attempted to make contact with Dr Ignatovich in early June 2006.  It is also noted that, on 6 June 2006, Dr Ignatovich advised that Mr Moyle was able to undertake at least 8 hours work per week and also that he had not received any recent specialist reports concerning Mr Moyle.

Mr Moyle’s Evidence and Submissions

7.      Mr Moyle was highly critical of Centrelink’s role in rejecting his claim.  He believed that Centrelink refused to accept his medical certificates and that the real but unstated reason for rejection of his claim on this occasion was that he had been given exemption from the activity test too often in the past.  He also did not accept that Dr Ignatovich had agreed in a telephone conversation with a Centrelink officer that he was able to undertake work.

8.      Mr Moyle was also critical of the report prepared by Ms Duberry.  He submitted that she had recorded incorrect information in the report.  In particular, he said that she understated the extent of his reliance on pain killers.  He said that he informed her that he took panadol 2 or 3 times per week.  He also said that she overstated his ability to care for himself because he revealed to her that he had difficulties in that regard. 

Consideration  

9.      I do not accept Mr Moyle’s submissions concerning Centrelink or the Work Capacity Assessor, Ms Duberry.  Mr Moyle has been exempted from the activity test on occasions in the past.  This demonstrates that Centrelink has been willing to give credit to his medical certificates.  However, the evidence is that, on this occasion, an independent assessment did not support his claim that he was not able to undertake work.

10.     I have noted Mr Moyle’s doubt about Dr Ignatovich’s concensus with the Centrelink officer regarding his capacity to work.  However, Mr Moyle stated he had not attempted to contact Dr Ignotavich about his comment and made no request to have him give evidence at the hearing.  I have no reason to doubt the correctness of the file note completed by the Centrelink officer concerning Dr Ignatovich’s opinion.

11.     In relation to his medication and the reference to it by Ms Duberry, Mr Moyle expressed concern about the detrimental effects that excessive medication may have, in particular, on his heart function which, in his case, was relevant because his parents had both died from a heart-related condition.  For that reason, he was mindful not to take too much paracetamol.  This suggests that he would exercise control over its usage.  In cross examination, he said that, when he took paracetamol or panadol, it was his usual practice to take 2 tablets if he was suffering pain and that he might do this, on average, once per week with more at times of greater need.  The reference by Ms Duberry in the Work Capacity Assessment Report was “panadol about once per week” and “panadol and paracetamol approx once per week”.  Accordingly, the level she described was not precise.  Neither was Mr Moyle’s description of the level of consumption of paracetamol to the Tribunal and I am satisfied that there is no material difference in the descriptions given by Mr Moyle and Ms Duberry. 

12.     Mr Moyle provided photographs of his garden and of various rooms of the house in which he lives.  It is not in dispute that they revealed an untidy yard and unclean interior.  He has owned the house since the 1980s and there were no comparative photographs of the house in a tidy state at any earlier time.  In evidence was a letter, dated 30 January 2006, to Mr Moyle from the Caloundra City Council advising him to clear his yard.  Mr Moyle gave evidence that this task was completed with the assistance of his brother.  He also conceded that he was able to look after himself, carry out his own shopping, complete his washing, albeit belatedly at times, and prepare his own meals.  I am satisfied that the description of his capacity is consistent with that provided by Ms Duberry in her report.

13.     The period nominated in the initial report from Dr Ignatovich was 24 April 2006 until 24 July 2006.  Ms Duberry assessed and reported on Mr Moyle on 5 May 2006.  Clearly, this date falls within the period stated in Dr Ignatovich’s medical certificate.  Ms Duberry concluded that Mr Moyle was capable of undertaking work, without the need for an intervention program for at least 30 hours per week in a variety of employment options. 

14.     I note that, on an earlier occasion when Mr Moyle was assessed, a different consultant completed a report, dated 18 August 2005.  There, it was concluded that Mr Moyle had capacity, at that time, to work for more than 8 hours per week in a variety of activities.  That is consistent with the conclusion of Ms Duberry.

15. I am satisfied that Mr Moyle was not incapacitated, as required by section 603C of the Act, in the relevant period and is not exempted from the activity test under the Act.

Decision

16.     The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
           F. Kamst, Legal Research Officer

Date of Hearing  13 February 2007
Date of Decision  16 March 2007
The Applicant appeared in person
For the Respondent                  Mr R McQuinlan Departmental Advocate