Muscat and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 365

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 365

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0703

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOHN MUSCAT

Applicant

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

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date6 May 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Roderick McRae
  Member

SOCIAL SECURITY ‑ disability support pension ‑ ischaemic heart disease ‑ neck pain ‑ continuing inability to work ‑ whether able to work 30 hours per week ‑ decision under review affirmed.

Social Security Act 1991 s 94(1) and (2)

Social Security (Administration) Act 1999 Sch 2 cl 4

A Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension

REASONS FOR DECISION

6 May 2008 Dr R. McRae, Member

1. Mr John Muscat (the Applicant) seeks a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 1 February 2007. On 17 August 2006, a Centrelink officer rejected the Applicant’s claim for disability support pension (DSP) because he failed to satisfy s 94(1)(c) of the Social Security Act 1991 (the Act).  The Applicant sought review of that decision.  After Centrelink had a job capacity assessment conducted (T2 p4), an authorised review officer affirmed the decision on 6 November 2006, as did the SSAT subsequently.  Centrelink acts as the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent). 

2. The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the Act at the time of his claim on 29 June 2006, or within the subsequent 13 weeks (ending on 1 October 2006). The Tribunal’s decision is that the Applicant is not entitled to DSP.

3. The Applicant was self-represented. The Respondent was represented by Ms Ailsa Bramley, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents). 

BACKGROUND

4.      The Applicant is a 59 year old, married, Maltese man who migrated to Australia in 1968.  He remained at high school until the equivalent of approximately Year 9.  He did not enjoy the classroom setting.  He was continuously employed for 37 years in physically demanding manual work with various employers.  If an employing business closed, he rapidly regained employment.  He obtained a fork-lift operators licence, but has no other qualification.  

5.      The Applicant was receiving Newstart Allowance from 22 February 2004.  He then lodged a claim for DSP on 29 June 2006 (T14).  The supporting Treating Doctor’s Report (TDR) completed by the Applicant’s general practitioner, Dr E. Lee, on 29 June 2006 (T16) reported that his neck/shoulder/arm pain and chronic low back pain were preventing him from working.  He reported ischaemic heart disease (atypical chest pain) causing limitation in physical exertion as additional information.  Dr Lee also stated that the neck/shoulder/arm pain management would include establishment of a coordinated multi-disciplinary pain management program. 

6.      The Tribunal received subsequent correspondence from Dr Lee, dated 13 April 2007, (after the SSAT’s decision) reiterating the Applicant’s medical problems and emphasising the diagnosis of anxiety and significantly severe depression which had not been mentioned in the first TDR.  This letter referred to a treating psychiatrist, Dr Geok Wong.  Dr Wong wrote an undated letter subsequent to the SSAT decision.  That letter stated the Applicant’s first psychiatric consultation was 6 June 2006. 

7.      Dr J. Lane of Health Services Australia Ltd (HSA) examined the Applicant on behalf of Centrelink in relation to a Newstart Allowance claim on 24 April 2006.  He provided a work capacity assessment, dated 10 May 2006, (T12) indicating that the Applicant was fit for light, sedentary full-time work for award wages.  He assigned an impairment rating of five points according to Impairment Table 5.1 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables), in Schedule 1B of the Act, for permanent neck pain.  He assigned an impairment rating of 20 points according to Table 1 of the Tables for permanent angina with mild exertion.  He considered the Applicant’s back pain was a temporary condition and therefore unable to be assigned an impairment rating under the Tables. 

APPLICANT’S SUBMISSIONS

8.      The Applicant stated his various jobs had abused [his] body.  He stated it would be impossible for him to work over 30 hours per week.  He had failed a pre‑employment assessment as a school crossing supervisor in January 2007. 

9.      Under cross-examination, the Applicant stated that he had no problems with retraining.  He was not scared of taking a job.  He stated there was no one problem that prevented him from doing work; rather it was a combination of all his conditions.  He is able to walk about 500 metre before needing to rest to catch [his] breath and slow [his] heart rate.  He undertakes housework as much as he can because he wants to do something. 

Witness’s Evidence

10.     Dr Brooklyn Storme, a trained and experienced psychologist, is a Job Capacity Assessor with HSA and is familiar with the requirements for DSP.  She conducted a job capacity assessment (JCA) on the Applicant on 23 August 2007 (T19).  She was aware of the Applicant’s permanent medical conditions as determined by medical assessment and considered these when she undertook the JCA.  She considered there was a range of employment options for over 30 hours per week which the Applicant could undertake for award wages.  She stated that there was nothing that would prevent the Applicant from retraining, including his ischaemic heart disease.  Under cross-examination she stated her assessment of the Applicant’s capacity to work for over 30 hours per week was based on her experience. 

RESPONDENT’S SUBMISSION

11.     The Respondent concedes that the Applicant has a physical impairment that achieves 20 points or more under the Tables.  However, the Respondent submits that the Applicant did not have a continuing inability to work 30 or more hours per week during the qualification period.  There is no impairment that would prevent educational or vocational training.  The Respondent further relies on the Applicant’s statement of information to the SSAT that If there was light work which allowed [me] to move around and flex [my] body and which did not require heavy lifting or the need to lift things above [my] shoulders, [I] might be able to do it (T2).

LEGISLATION

12. Section 94(1) of the Act provides that:

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)…

13.     Chapter 1 of the Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension provides that:

Work is defined in section 94(5) of the Social Security Act 1991.  For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

FINDINGS

14.     The Applicant claimed DSP on 29 June 2006.

15.     A reasonably contemporaneous medical assessment has been performed by Dr Lane.  Dr Storme embraced these conclusions and findings in performing her JCA.  The Applicant has a physical impairment of ischaemic heart disease which is permanent and has consistently received an impairment rating of 20 points. 

16.     The Applicant placed much focus on the extent of his physical impairment.  Further consideration is unnecessary as an impairment rating of 20 points is conceded by the Respondent.  

17.     The evidence is consistent in that there is no continuing inability to work for at least 30 hours per week for award wages due to permanent physical impairment. Dr Lane assessed the Applicant as fit for light, sedentary full-time work (T12).  Dr Storme’s JCA dated 24 October 2006 indicated the Applicant had a current capacity for work of 30+ hours per week.  The Tribunal accepts there is some work that the Applicant would be able to undertake for over 30 hours per week for award wages.  The Tribunal notes that the Applicant expressed this opinion to the SSAT. 

CONCLUSION

18. The Applicant satisfies s 94(1)(a) and (b) of the Act in that he has ischaemic heart disease that attracts 20 impairment points as required by the Act. However, the Applicant does not satisfy s 94(1)(c) of the Act in that he does not have a continuing inability to work because of his impairment as required by the Act.

19.     The Tribunal concludes that at the time of his claim for DSP and in the following 13 weeks the Applicant did not satisfy the requirements necessary to qualify for DSP. 

DECISION

20.     Accordingly, the decision to reject the claim for DSP was the correct decision.  The Tribunal affirms the decision of the SSAT made on 1 February 2007.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr R. McRae, Member

Signed:         Olympia Sarrinikolaou

Clerk

Date of Hearing  4 March 2008
Date of Decision  6 May 2008
Advocate for the Applicant       Self Represented

Advocate for the Respondent   Ms A. Bramley, Centrelink Legal Services