MURRAY SANDERS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 846

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 846

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3099

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MURRAY SANDERS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date7 October 2009

PlaceMelbourne

Decision For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) E A Shanahan

Member

social security – DSP – impairment rating – work capacity – dispute relating to METs assessment – s 94(1)(a) and s 94(1)(b) of the Act satisfied – s 94(1)(c) not satisfied – decision affirmed

Social Security Act 1991 s 94 and Sch 1B

Social Security (Administration) Act 1999 s 192 and Sch 2

REASONS FOR DECISION

4 November 2009 Miss E A Shanahan, Member       

1. Mr Sanders applied to Centrelink for the disability support pension (DSP) on 4 September 2008. Centrelink is the agency which provides services for the Department of Families, Housing, Community Services and Indigenous Affairs. He had lodged a similar application on 23 August 2007. A Centrelink delegate had rejected this earlier application on 19 September 2007. The delegate’s decision was affirmed by an authorised review officer (ARO) on 31 October 2007, as Mr Sanders did not meet s 94(1)(c) of the Social Security Act 1991 (the Act) because he was working more than 15 hours per week. 

2.      The application of 4 September 2008 was supported by a treating doctor’s report (TDR) completed by Mr Sanders’ general practitioner Dr Kirwan.  Dr Kirwan diagnosed Mr Sanders as suffering from ischaemic heart disease (IHD) with onset in 15 May 2007.  This condition gave rise to shortness of breath on hills and lethargy, which limited Mr Sanders’ work capacity to light work for not more than 15 hours per week. 

3.      Centrelink arranged for a job capacity assessment, conducted by a physiotherapist.  The job capacity assessor (JCA) assessed Mr Sanders as being asymptomatic at 5 to 6 METs (a MET is the average oxygen consumption of an individual at rest and 1 MET is equivalent to 3.5ml of oxygen per kilogram per minute consumption; a measurement in accordance with the Metabolic Cost of Activities table in Schedule 1B of the Act). This was because he was assessed as able to tolerate vacuuming for 90 minutes, could walk up to 500 metres before becoming breathless but could not use heavy machinery, walk up hills or mow lawns on undulating surfaces thus attracting an impairment rating of 15 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables) with a work capacity of 15 to 22 hours per week. The JCA reached these conclusions based on the contents of the TDR, a face-to-face interview with Mr Sanders and a telephone conversation with Dr Kirwan.

4.      Dr Kirwan, subsequently (on 3 November 2008) notated his earlier report to the effect that Mr Sanders also became short of breath on walking 100 metres on the flat and that his METs assessment should be 4 to 5 METs, and not as he had previously stated can do all 4-5.  The JCA interpreted this statement to mean that Mr Sanders’ correct METs assessment was 5 to 6 METs.  Mr Sanders also advised Centrelink that he was suffering from Diabetes Type II, which was well controlled.

5.      In light of the impairment rating of 15 points and the work capacity assessment of 15 to 22 hours per week, Centrelink rejected the second application.  This decision was affirmed by an ARO on 20 January 2009.  Mr Sanders lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision, including the impairment rating of 15 points, on 3 June 2009.

6.      Mr Sanders’ lodged an application for a review of the SSAT decision with the Administrative Appeals Tribunal (AAT) on 6 July 2009.  In response to the reason for application question on the application, Mr Sanders noted MET rating stated by SSAT incorrect. (T1). 

7. The Tribunal was provided with the documents lodged by the Respondent pursuant to s 37 of Administrative Appeals Tribunal Act 1975 (the T-documents).  Mr Sanders was self-represented and Ms A Bramley, a Centrelink advocate appeared for the Respondent.  Mr Sanders spoke to the Tribunal.  He did not give evidence on oath or affirmation.  The hearing was recorded and the transcript acquired by the Tribunal. 

8. Mr Sanders provided the Tribunal with a copy of the TDR (completed by Dr Kirwan on 1 September 2008) with the annotation added on 3 November 2008. The amended document was not part of the T-documents; although it had been before the SSAT at the hearing of 3 June 2009. Ms Bramley had no prior knowledge of this amendment. However, in its Statement of Facts and Contentions the Respondent had accepted that, based on Dr Kirwan’s assessment, the appropriate impairment rating for Mr Sanders was 20 points. Mr Sanders thus satisfied s 94(1)(a) and s 94(1)(b) or the Act but did not meet s 94(1)(c), as during the period under consideration Mr Sanders was working for more than 15 hours per week. The period under consideration was from 29 July 2008 to 28 October 2008 (Clause 4.1 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).

9.      At the commencement of the hearing, the Tribunal pointed out that the Respondent had conceded that Mr Sanders’ MET rating was 4 to 5 METs and his impairment rating 20 points under the Impairment Tables.  Thus, the only question the Tribunal needed to address was his work capacity.  Mr Sanders’ response to this  was:

I don’t care about that.  You don’t understand.  I want my voice heard here to uncover the breaches in Social Security law that Centrelink have done.  I want the incompetence of the job capacity assessor – I want that person hung and quartered.  She is incompetent.  She lied on the job capacity assessment … In writing she had lied.  Now, nobody has confronted any of these things.  They just keep hoping I will back off.  I don’t give a rat’s diddle whether I get my disability support. (Transcript p 5, lines 35-43)

10. Mr Sanders outlined all the areas of his complaint in some detail and the efforts he had already made to obtain redress. He had written a letter of complaint to Centrelink and had contacted various Members of Parliament, the Commonwealth Ombudsman and the Victorian Department of Human Services, predominantly by telephone, all of whom had either failed to respond or had said that they were not empowered under the legislation to address his concerns. He had also chastised his treating doctors, Dr Kirwan and his cardiologist Dr Ryan on the brevity of their reports. The Tribunal explained its role was to consider his claim for DSP in terms of the social security legislation, and in particular s 94 of the Act. The Tribunal explained that it took into account all the reports and did not necessarily accept a JCA report where there was evidence that was contrary to the conclusions reached by the assessor. However, it was not within the jurisdiction of the Tribunal to sanction a JCA.

11.     Mr Sanders stated that he was now working 12½ hours per week cleaning a school with his wife’s assistance; and a maximum of 2 hours per week in his home-based auto-electrician business; totalling 14½ hours work per week.  He had previously cleaned two schools, the second for one hour per day.  Mr Sanders had told the SSAT that he and his wife gave up the second school after the 2008/2009 school long vacation.  In his evidence to this Tribunal he confirmed that he worked as a school cleaner for 12½ hours per week and coped by varying tasks and resting as needed.  He said he was incapable of vacuuming continuously for 90 minutes as reported in the JCA.  Mr Sanders expressed his intention to continue working 14½ hours per week and no more as his doctors and mental health nurse had advised that working such hours would be beneficial to his health.

12.     The Tribunal explained to Mr Sanders that the medical evidence provided was such that the Tribunal could not properly assess his capacity for work despite the JCA.  His myocardial infarct was well documented and in May 2007 the function of his heart pumping chamber, the left ventricle, was moderately impaired (T4, p28).  Mr Sanders had undergone repeat coronary artery angiography and several echocardiograms (ECHOs), all of which would have assessed his left ventricular function.  However, neither Centrelink nor the Tribunal had been provided with the reports of these tests.  The reports would contain information going directly to Mr Sanders’ exertional capacity. 

13.     With the assistance of those reports, an Occupational Health Physician could have provided a more scientifically based assessment of Mr Sanders’ work capacity.  Mr Sanders had provided Dr Ryan and Dr Kirwan with documents setting out two options.  Option one was that Mr Sanders was to continue cleaning schools provided he reduced his hours to fewer than 15 hours per week.  Option two was retraining and working in a sedentary capacity for longer hours.  Both doctors had recommended the first option.  However, the doctors did not give any reasons as to why the first option was preferred on a medical basis.

14.     Initially, Mr Sanders rejected the Tribunal’s advice regarding the provision of more medical data and the pursuit of an opinion from an Occupational Health Physician, stating that he would abandon his efforts to obtain the DSP.  He had estimated that by continuing to work 14½ hours per week and receiving a carer’s pension for caring for his 92 year old mother (who he said was as fit as a Mallee bull actually (Transcript p 42)), he would not be financially better off on DSP.  Later in the hearing, however, he changed his mind; and agreed to the Respondent obtaining further test results from his treating doctors and said he would consider seeing an Occupational Health Physician for a work capacity assessment. 

15.     Mr Sanders voiced his intention to apply to the Federal Court for redress for the JCA assessment on the bases that the assessor’s conclusions were lies and in breach of social security law. 

RELEVANT LEGISLATION

16. The relevant legislation is contained in s 94 of the Act which states:

(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 …

TRIBUNAL’S DELIBERATIONS

17.     Mr Sanders has been diagnosed with IHD, Diabetes Type II and recent onset depression (April 2009).  He did not raise or speak to the diabetes or depression.  Dr Kirwan his general practitioner had opined that the diabetes is well controlled and does not cause any incapacity.  Mr Sanders’ depression is being treated with medication and counselling.  Given its recent onset, the depression has not yet been fully treated or stabilised and has not been assessed.  Nor is it necessary to do so, as the Respondent has determined his impairment rating at 20 points, thereby satisfying the requirements of s 91(4)(b) of the Act. 

18. The only issue that this Tribunal had jurisdiction to address is Mr Sanders’ work capacity. On his evidence to the SSAT and to this Tribunal, during the period under consideration he was working more than 15 hours per week and therefore did not satisfy s 94(1)(c) of the Act. At the hearing of the matter on 7 October 2009 the Tribunal indicated that the decision under review would be affirmed.

19. Following the hearing, on 19 October 2009, Ms Bramley provided the Tribunal with the results of the coronary angiography and several ECHOs obtained from Dr Kirwan pursuant to s 192 of the Administration Act.

20.     In May 2007 Mr Sanders’ left ventricle was normal in size but showed moderate segmental dysfunction.  ECHOs since then, the latest being 17 September 2009, report left ventricular function to be mildly/moderately reduced but both segmental shortening and ejection fraction of the left ventricle were normal.  These two measurements assessed the pumping efficiency of the left ventricle. 

21.     Ms Bramley also provided a record of the hours worked by Mr Sanders. This was obtained from his employer, Aero Property Services Pty Ltd.  This states that Mr Sanders worked 40 hours per fortnight between 15 June 2008 and 28 December 2008, except for two periods of annual leave, when he worked 31.99 and 31.22 hours in the fortnightly periods and 7.75 hours in the fortnight between 29 June 2008 and 13 July 2008 and 26.56 hours in the fortnight between 30 November 2008 and 14 December 2008.  The pay records are in Mr Sanders’ name and do not mention his wife.  The Tribunal is aware that Mrs Sanders helps her husband with the school cleaning but does not know if she is paid in her own name.

22.     For the reasons given orally at the hearing, the Tribunal affirms the decision under review. 

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E A Shanahan, Member

(sgd):     Leah Berardi

Clerk

Date of Hearing  7 October 2009
Date of Decision  7 October 2009
Advocate for the Applicant          Mr M Sanders, self represented
Advocate for the Respondent       Ms A Bramley, Centrelink Legal Services