Nemas and Secretary, Department of Family and Community Services

[2004] AATA 701

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 701

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/648

GENERAL ADMINISTRATIVE  DIVISION		)
Re		APOSTOLOS  NEMAS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J A Shead, Member

Date30 June 2004  

PlaceSydney

Decision The decision under review is affirmed.

[sgd] J A Shead
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – relevant time-frame – whether applicant has continuing inability to work 

Social Security Act 1991 - ss 94; 100(3)

Administrative Appeals Tribunal Act – s 43

REASONS FOR DECISION

30 June 2004  Ms JA Shead, Member      

1.     This is an application for review by Mr Apostolos Nemas ("Applicant") of the decision of the Social Security Appeals Tribunal ("SSAT") dated 28 March 2003 which affirmed the decision of an authorised review officer of Centrelink dated 20 November 2002 to reject Mr Nemas's claim for disability support pension ("DSP"). The Respondent to the application is the Secretary, Department of Family and Community Services.

2.      A hearing in this matter was held before the Tribunal on 12 May 2004. The Respondent was represented by Ms J Green. The Applicant gave oral evidence to the Tribunal and Mr Louis Rorris an interpreter in the Greek language assisted him.

3.The Tribunal had before it the following documentary evidence:

Exhibit No	Description	Date
TD1	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-18 pp1-58
A1	Report Dr G Rosenberg	22 March  2004
A2	Report Senior Outpatient Physiotherapist	26 March 2004
A3	Report Dr George Takas	29 March 2004
R1	Respondent’s Statement of Facts and Contentions	20 April 2004

BACKGROUND

4.      The Applicant lodged a claim for DSP on 21 October 2002 (T7). His claim was supported by his local treating doctor, Dr Aravanis who stated he had lumbar back pain and hearing loss (T6). His work capacity/participation assessment was assessed by an occupational therapist from Advanced Personnel Management on 13 November 2002, who reported the applicant then had a capacity for 15-29 hours per week light to moderate unskilled work and that capacity would extend to 30 or more hours per week within 6 months (T8). 

5. In the Centrelink decision under review 10 points had been allocated to the Applicant under the Table 20 “Other Spinal Disorder” contained in Schedule 1B to the Social Security Act 1991 ("the Act").

ISSUE

6. The issue to be considered by the Tribunal is whether, in accordance with section 94 of the Act the Applicant has a physical, intellectual or psychiatric impairment, and, if so, whether his impairment is of 20 points or more under the Impairment Tables, and, if so, whether he has a continuing inability to work.

7.      In the Application for Review to the Tribunal for review of the SSAT decision, the reasons for the Application were (T1):

“I have new medical evidence to support my case which I will bring with me to the appeal.”

8.                 The Applicant reiterated that he disagreed with the impairment rating and he did not agree with the decision that he was able to work.

9. On behalf of the Respondent, Ms Green advised the Tribunal that for the purposes of subsection 94(1)(a) of the Social Security Act 1991 (“the Act”) it was contended that the maximum impairment ratings for the Applicant’s lower back pain was 10 points under Table 5.2, and 5 points for his hearing loss under Table 12. Concerning the Applicant’s depression and glaucoma, it was also contended that the conditions had not stabilised at the date of the decision. Accordingly, it was contended that the Applicant did not have an impairment rating of 20 points or more and consequently failed to satisfy section 94(1)(b) of the Act. Also it was further contended that the Applicant did not have a continuing inability to work and consequently he failed to satisfy section 94(1)(c) of the Act.

10. To qualify for a disability support pension all three subsections of section 94 of the Act must be satisfied. Also, pursuant to section 100 of the Act, the Tribunal has to consider the Applicant’s conditions on the day on which his claim was lodged and for a period of three months starting immediately after the day on which his claim was lodged.

LEGISLATION

11. The legislation relevant to the Tribunal’s determination of this matter is section 94 of the Act, which sets out the qualification for a disability support pension. It relevantly provides:

"94. Qualification for disability support pension

(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;

…

(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).

(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.

(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 the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.

(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.…”

12. In general terms, the impairment rating is determined under Schedule 1B of the Act and the “continuing inability to work” is determined by reference to subsections 94(2), (3) and (5) of the Act.

13. Section 100 of the Act (effective at the time of the original decision), deals with the commencement day for disability support pension and relevantly states:

“100. Early claim

…

(3) If:

(a) a person lodges a claim for a disability support pension; and

(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.”

EVIDENCE

14.     The Applicant was born 20 May 1952.  He last worked in 1996.  He had been treated for low back pain for about 2 years.  He could walk about 1km, and stated his biggest problem was when he got out of bed as he could not bend his back.  Sitting or standing for more than 10 to 15 minutes caused him pain.

15.     Concerning his hearing, the Applicant agreed that his hearing was pretty much the same as when he was examined in May 1994 by Dr Stanley C Stylis, Ear Nose & Throat specialist (T3).

16.     In response to the Tribunal’s questions, the Applicant stated he considered that his lower back pain warranted 20 points under Table 5.2, as he considered his condition more closely satisfied the criteria for 20 points.  He no longer received a new start allowance but he was receiving a carer’s allowance in respect of his care of his 84 year old mother.  He stated he took her to medical appointments, did the shopping and cooked most of the time.  He did not assist her with bathing or showering.  He sometimes put the washing out.  He carried the garbage in a plastic bag to the outside garbage bin.  He did a small amount of vacuuming and light mopping of floors. 

CONSIDERATION OF THE ISSUES

17.     The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and the legislation.

18.     The Tribunal is only able to consider the conditions disclosed in Applicant’s original claim for disability support pension. 

19.     Concerning the lower back pain, the Tribunal is satisfied, having regard to the evidence of the Applicant and the report of Dr Aravanis, that a rating 20 points under Table 5.2 was warranted.  In respect of hearing loss, the Tribunal was reasonably satisfied that the hearing loss recorded by Dr Scoppa in his report of 6 March 2000 (T4), warrants an impairment rating of 5 points under Table 12.

20. Consequently the Tribunal considered the combined impairment rating for the Applicants’ conditions was 20 points which was sufficient to satisfy eligibility under sections 94(1)(b) of the Act for disability support pension. As such, at the time of his claim for disability support pension, or within 3 months of the claim, the Applicant did satisfy the requirements of subsection 94(1)(b) of the Act, in that he had reached the requisite 20 points.

21. In relation to whether the Applicant had a continuing inability to work under section 94(1)(c) of the Act, the Tribunal accepts Occupational Therapist Ms Eloise Stedman’s report dated 13 November 2002 that the Applicant was fit for light full-time work within 6 months. There was no medical or other specialist evidence contradicting that opinion. Having regard to the oral evidence of the Applicant concerning his carer duties, the Tribunal is reasonably satisfied that he could do light work, such as invalid support worker or a walking courier around the city.

22. The Tribunal’s determination in relation to Applicant’ 2002 claim is that at that time he did satisfy the requirements of subsection 94(1)(b) of the Act in that his lower back pain, and hearing loss conditions did reach the requisite 20 points. Also the Applicant’s impairments would not, of themselves, have prevented him from undertaking full-time work. In such circumstances, as one of the requirements to satisfy section 94 of the Act was not met, the section as a whole was not met. Therefore, the Tribunal determines that the Applicant was not qualified for a disability support pension at the time of his claim.

CONCLUSION

23. The Tribunal’s determination in relation to the Applicant’s claim is that at the time of the claim for disability support pension he did satisfy the requirements of subsections 94(1)(a) and 94(1)(b), however he did not satisfy the requirements of subsection 94(1)(c) of the Act.

24. Accordingly, in all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is affirmed. This means that the decision under review is unchanged.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.

Signed: Guy Moloney           .....................................................................................

Associate

Date of Hearing  12 May 2004 
Date of Decision  30 June 2004

Representative for the Applicant    Self

Advocate for the Respondent        Ms J Green