Muscat and Secretary, Department of Family and Community Services

[2005] AATA 450

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 450

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/155

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANTHONY MUSCAT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date19 May 2005

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Social Security – disability support pension – continuing inability to work – applicant working at time of claim and  within following 13 week period  for 26 hours per week – medical assessment applicant could work up to 30 hours per week – decision affirmed.

Social Security Act 1991 – s94(1)

Social Security (Administrative) Act 1999 – Clause 4, Schedule 2

REASONS FOR DECISION

19 May 2005 Ms A F Cunningham (Part-time Member)           

1.      The applicant has sought the review of a decision of the Social Security Appeals Tribunal (SSAT) dated 12 August 2003 which affirmed a decision made by a Centrelink officer refusing his application for a disability support pension (DSP).

2.      The hearing was conducted by a telephone link to the applicant’s country of residence, Malta.   Mr J Sammut appeared on behalf of the applicant who did not attend the hearing.    Mr Brian Sparkes appeared on behalf of the respondent.

3. The T documents were tendered in evidence pursuant to the provisions of s27 of the Administrative Appeals Tribunal Act 1975.    No other evidence was given at the hearing.   The applicant did not submit a proof of evidence or request that any oral evidence be given at the hearing.   The Tribunal was informed by Mr Sammut that the applicant would not be attending the hearing.   Oral submissions were made on behalf of the applicant by Mr Sammut and by Mr Sparkes on behalf of the respondent.

4. The issue for the Tribunal is whether the applicant satisfies the provisions of s94(1)(c) of the Social Security Act 1991 (“the Act”) by having a continuing inability to work, either at the time of his pension application or within 13 weeks of that date.

5.      The following facts did not appear to be in contention and the Tribunal accordingly finds as follows:

(i)The applicant lodged an application for DSP on 15 June 2001 with the Maltese authorities pursuant to the Social Security Agreement between Australia and Malta.    The application was received by Centrelink International Services on 15 October 2001.

(ii)On 21 August 2001 the applicant was examined by a medical panel in Malta   who observed that the applicant was “obviously deaf” and had a “chronic back pain of 20 years standing”.

(iii)An orthopaedic report from Mr Alex Sultana stated that the applicant “is only able to walk for 10 minutes at a time because of the back pain”, and that “he has tenderness over the lower cervical and lower lumbar spine”, but that the applicant’s spine “enjoys a reasonable range of movement”.

(iv)An audiogram report of 25 October 2001 confirmed that the applicant suffered from hearing loss.

(v)An additional orthopaedic report from Mr Alex Sultana dated 18 October 2002 stated that the applicant’s condition had not changed since the previous report.

(vi)On 6 January 2003 Health Services Australia (HSA) completed a file base assessment of the applicant’s medical conditions and his capacity to work.  Although the HSA found that the applicant’s conditions attracted 35 points under the work impairment tables,  the HSA concluded that the applicant was fit for light work, such as security work or as a parking attendant for 30 hours or more per week.

(vii)In the applicant’s Medical Study and Work Details form completed on 12 June 2001, he stated that he had been working full-time as a watchman for the Maltese Government since 1987 and was still employed in the same occupation.    The applicant indicated that he considered that he was able to work doing very light duties for 26 hours.     The applicant had in fact worked in the capacity as a full-time watchman for the Maltese Government since 1987.

(viii)The applicant’s claim for DSP was rejected by Centrelink on 28 January 2003 on the basis that he did not have a continuing inability to work.   

(viiii)On  5 May 2004 the applicant completed a claim for Payments for people with disabilities, illnesses or injuries in which he stated that he was then working as a watchman in Malta for 26 hours per week and that his total income per week before tax and other deductions was $477.     In response to the question “date you last worked” he responded “this week”.     In response to the question “date you were last paid” he responded “21/4/04”.  

Legislation

6. Section 94(1) sets out the qualifications for DSP:

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. Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

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.

Note: For work see subsection (5).

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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely 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.

Person not qualified in certain circumstances

94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).”

7. Reliance is made on the provisions of the International Agreement which exists between Australia and Malta. As the applicant is a resident of Malta and has previously been a resident of Australia he may qualify for a DSP if he satisfies the usual qualification criteria set out in s94(1) of the Act.

8.      It was conceded on behalf of the respondent that the applicant satisfies the provisions of sub-section 94(1)(a) in that he suffers from chronic back pain and deafness.   It was further conceded that the applicant satisfies the provisions of sub-section 94(1)(b) having been assessed as having an impairment rating for his hearing loss of 35 points under Table 12.

9. What remains in dispute is whether the applicant has “a continuing inability to work” in accordance with the provisions of sub-section 94(1)(c)(i).

10.     Sub-section 94(5) defines “work” being for at least 30 hours per week.

11.     It was contended on behalf of the respondent that the available evidence shows that the applicant had an ability to work 30 hours per week when he lodged his pension claim in June 2001 and was at the time working as a watchman.

12.     Whilst there is some medical evidence that the applicant is restricted in his activities as a result of back pain and in some specialists’ opinions, the applicant was “not fit for work for an indefinite period of time”, the evidence from the applicant was that he was employed as a watchman at the time of these reports and had full-time work in the same employment for some 14 years before lodging his application for pension.   

13. The evidence was that the applicant had suffered from chronic back pain for more than 20 years and from significant hearing loss since 1980. On 6 January 2003 HSA completed a file base assessment of the applicant’s medical conditions and his capacity to work. Notwithstanding the applicant’s hearing loss which attracted 35 points on Table 12 of Schedule1B of the Act, and finding that the applicant was not suited to a job requiring high communication skills as a result of his hearing impairment, the HSA assessed his capacity for work at 30+ hours per week for light work such as security work or as a parking attendant.

14.     It was submitted on behalf of the respondent that there is no medical evidence to explain why the applicant is only capable of working 26 hours per week as a opposed to 30 hours per week and it could be concluded that the reasons why the applicant worked slightly less than 30 hours per week are non medical.

15.     The Tribunal was referred to the decision of Crossland and Secretary, Department of Family and Community Services (2004) AATA 864, in which the Tribunal considered whether other factors, such as a lack of motivation to work could be taken into account in considering a person’s inability to work. The Tribunal found that the expression “any work” in s94(2)(a) should not be interpreted to mean any suitable work as such a qualified interpretation would be inconsistent with the literal words of s92(2) of the Act and contrary to the intention of the legislature when enacting the provision. The Tribunal noted that the expression “unsuitable work” referred to in the qualifying provisions for youth allowance and newstart allowance is to be distinguished from the term “any work” used in this Act.

16.     The Tribunal referred to the expression in sub-section s94(2)(a) that the impairment is “of itself” sufficient to prevent the person from doing any work, and made a finding that attitudinal factors such as lack of motivation to work should be disregarded and that only the applicant’s medical condition or illness should be considered in  assessing  a person’s inability to work.

17.     This Tribunal agrees with the findings of the Tribunal in the Crossland decision  and accordingly accepts Mr Sparkes’ submission that the Tribunal has no basis upon which it could determine that the applicant is incapable of working  30 hours per week.

18.      Mr Sammut submitted that the latest medical evidence in relation to the applicant’s condition had not been made available.  Mr Sammut did not dispute that the applicant had been working until recently as a night watchman in accordance with the evidence referred to above, but he submitted that the applicant is now completely unable to work.

19. Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 states:

“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.”

20.     Whilst the applicant may currently not be in employment and unable to work because of his accepted medical conditions, the above provision makes it clear that either the applicant must be qualified to receive the pension in accordance with the relevant legislation on the day on which the claim is made, or within 13 weeks after the day on which the claim was made.

21.     The available evidence satisfies the Tribunal that the applicant did not have an inability to work when his claim was lodged on 15 June 2001 or within 13 weeks thereafter, as he was then working as a watchman for up to 26 hours per week.   The Tribunal accepts the medical evidence referred to above that at the relevant time the applicant was able to work for at least 30 hours per week and that there is no evidence upon which the Tribunal could conclude that the applicant was not able to work in excess of 26 hours per week, and for at least 30 hours per week.

22. For the above reasons the decision of the Tribunal is that the applicant fails to qualify for a disability support pension in that he has not demonstrated a continuing inability to work because of his impairment as required by sub-section 94(1)(c)(i) of the Act.

23.     The Tribunal accordingly affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:   K L Miller (Administrative Assistant)

Date/s of Hearing  21 April 2005
Date of Decision  19 May 2005
Counsel for the Applicant         Mr J Sammut  - by telephone link
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink