Nguyen and Secretary, Department of Family and Community Services

[2003] AATA 1134

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1134

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1893

GENERAL ADMINISTRATIVE DIVISION		)
Re		Thanh Liet Nguyen

Applicant

And SECRETARY DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms G Ettinger,Senior Member

Date              28 October 2003

PlaceSydney

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

[SGD]   G Ettinger

Senior Member  

CATCHWORDS

SOCIAL SECURITY – claim by Applicant for exemption of Newstart Activity Test – decision affirmed

Social Security Act 1991 section 603C(1)

REASONS FOR DECISION

Ms G Ettinger, Senior Member                 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Parties pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member G Ettinger

Signed:         ………………………….

Associate

Date of Hearing  28 October 2003

Date of Decision  28 October 2003

Representative for Applicant      Self-represented

Solicitor for Respondent              Ms Jane Green

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N01/1893

BY MS G. ETTINGER, Senior Member

NGUYEN and SECRETARY DEPT OF FAMILY
AND COMMUNITY SERVICES
SYDNEY, TUESDAY, 28 OCTOBER 2003

MS ETTINGER:   This is a matter of Mr Thanh Liet Nguyen and Centrelink  or Secretary, Department of Family and Community Services.  None of the parties are here but I shall put this on the transcript and we will be sending the decision out to the parties. 

So I note that the decision under review before the Tribunal was the decision of the delegate of the Secretary, the Department of Family and Community Services dated 20 February 2001 as affirmed by the authorised review officer on 8 June 2001, and the Social Security Appeals Tribunal on 7 November 2001.

In these decisions the relevant bodies refused the claim by the applicant, Mr Nguyen Thanh Liet exemption from the Newstart activity test which he is required to undertake in connection with his receipt of Newstart Allowance. 

At the hearing the applicant was self-represented and accompanied by his daughter, Ms Jessica Nguyen, and the respondent Department was represented by its advocate, Ms Jane Green.  The Tribunal was assisted by a very competent interpreter in the Vietnamese language, Mr Paul Ho.

Now to the issue before the Tribunal.

ISSUE BEFORE THE TRIBUNAL

The issue before the Tribunal was whether Mr Nguyen was qualified for exemption from the Newstart Allowance activity test on and from 15 March 2001 pursuant to section 603C(1) of the Social Security Act 1991, to which I shall refer as the Act.  In considering this, the main issue was whether Mr Nguyen's medical conditions were of a temporary nature.

Now to the legislative framework. 

LEGISLATIVE FRAMEWORK

The relevant legislation in this matter is the Social Security Act 1991, in particular section 603C(1).

EVIDENCE  AND SUBMISSIONS BEFORE THE TRIBUNAL 

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which we call the T- documents.  They were exhibit R1, and the Statement of Facts and Contentions of the respondent were exhibit R2. 

Mr Nguyen had no documents to tender as he said he could not get doctors to give him full reports.  Mr Nguyen and his daughter, Jessica Nguyen, gave oral evidence before the Tribunal. 

MR NGUYEN AND MS JESSICA NGUYEN

Now, the evidence and submissions of the applicant. Mr Nguyen, who is aged 45 and has been in Australia with his family since 1986, told me that he has had a lower back condition for approximately 10 years but not attribute it to any particular incident.  He said that it came on over a period of time.

He said that his back aches and causes numbness in his limbs.  He said that various doctors and hospitals have recommended that he have surgery, but that he had not had any, and did not want to undergo surgery.  The applicant also told me that his other complaints are a poor memory, headaches, dizziness, insomnia and irritability. 

Ms Jessica Nguyen confirmed that her father's irritability had led to family members, including his wife, moving out of home, and resulted in Mr Nguyen living with his younger son.

Mr Nguyen told me that he had first consulted Dr Law for his psychological problems 2 or 3 years ago.  He said he attended at Dr Law every 2 months or so just to get prescriptions for continuing medication because Dr Law said that he could not be cured.  Mr Nguyen and his daughter referred to a number of specialists and hospitals Mr Nguyen had consulted, and the applicant said that the doctors had told him he could not work.

He also said he had been told his conditions were permanent and could not be cured.  Mr Nguyen said that he wanted fairness in this matter.  He had applied for the disability support pension and been rejected, he said.  He wanted to know how he could obtain the pension.  Mr Nguyen submitted that the respondent simply relied on its own doctors and said that the opinions of external doctors must surely also be valid.  He said that the doctors simply filled in the relevant Centrelink forms but would not write full reports for him.

I note here that Mr Nguyen is of course perfectly right that doctors who are not part of the Government health system may give valid medical reports, and that if he feels his conditions have deteriorated in some way he should ask those doctors to document it for him and submit those reports to Centrelink. 

Now, as to work; Mr Nguyen said that he had attempted to find work, but that he had been abused and sent away once he had filled in the relevant forms. He said he could not handle heavy work in a factory but that he had sought a job as a cleaner, work in restaurants or in shops.  However, he had not been successful. 

THE RESPONDENT

I move then to consider the submissions of the respondent. Ms Green submitted that the issue was whether Mr Nguyen qualified for an exemption from the Newstart activity test from 15 March 2001 pursuant to section 603C(1) of the Act. She indicated that the general condition associated with the receipt of Newstart Allowance was that recipients had to be looking for work.

Ms Green submitted that the respondent considered Mr Nguyen met the tests in section 603C(1)(a) and (b) in that throughout the relevant period he was incapacitated for work because of his sickness, and that that incapacity was caused wholly, or virtually wholly, by a medical condition arising from that sickness.

However, she submitted that when one came to consider section 603C(1)(c) of the Act, which required in order to satisfy the requirements of the sub-section, that the incapacity was, or was likely to be, of a temporary nature, there was no question that Mr Nguyen's conditions were permanent.

Accordingly, she submitted he could not satisfy the requirements to permit exemption from the Newstart activity test.  Referring to the annexures to exhibit R2, Ms Green indicated that Mr Nguyen had been exempted from the activity test for various periods from 1992.  These periods of exemption were made on the basis of medical reports.  Ms Green indicated that the review then regularly took place after a recipient of Newstart had been receiving the benefit for 92 weeks and that had in fact occurred with Mr Nguyen.

Ms Green submitted that on the basis of doctors' reports, that is Dr Law's report at T9 and Dr Elliott's report at T12, Mr Nguyen's conditions have been found to be permanent rather than temporary.  Dr Elliott's advice, given in a report dated 16 February 2001, which was accepted by Centrelink had been that Mr Nguyen could work full-time in light duties.  She submitted therefore that Mr Nguyen did not qualify for an exemption from the Newstart activity test after 15 March 2001.

THE TRIBUNAL

Having considered all the submissions, I move then to the conclusions. In deciding whether Mr Nguyen is qualified for exemption from the Newstart activity test from 15 March 2001, pursuant to section 603C(1) of the Act, I had to take into account the evidence, both written and oral, the submissions of the parties and the requirements of the legislation. As I pointed out to Mr Nguyen, it is not a matter of any personal likes or dislikes for a particular person, but rather the dictates of the legislation and the medical evidence on which I must make my decision.

I was mindful that Mr Nguyen feels some frustration at having to look for work as part of the conditions of receiving Newstart Allowance because he feels that he cannot work. I accepted the respondent's concessions in regard to section 603C(1)(a) and (b) of the Act in that I accepted that throughout the relevant period Mr Nguyen was incapacitated for work because of his back condition and his PTSD, as diagnosed by Dr Law.

I further accepted that that incapacity was caused wholly, or virtually wholly, by the applicant's back condition and his PTSD.  In considering section 603C(1)(c) of the Act, which is part of the consideration of whether Mr Nguyen can be exempted from the Newstart activity test, I considered the medical evidence and that of Mr Nguyen.  This was, that Mr Nguyen's back condition manifested as numbness in his legs and his backache, which he has had for some 10 years was permanent (note X-rays dated 1992 before the Tribunal at T13).

The PTSD which he has suffered for the last 2 years or so has also been diagnosed as a permanent condition.  The evidence given by Mr Nguyen and his daughter was that the psychological condition manifested as insomnia, headaches, poor memory, dizziness and irritability. It can be deduced from the reports of Drs Law and Elliott that the conditions are permanent. 

I noted Mr Nguyen's belief that he cannot work, noting that work is defined in section 603C(2) of the Act as work of a kind that Mr Nguyen could reasonably be expected to do for at least 8 hours a week.  However, I relied on Dr Elliott's report that Mr Nguyen can work full‑time. There was no new medical evidence which I could consider in that regard. 

I therefore was satisfied that Mr Nguyen suffers only permanent conditions and no temporary ones, and that he would be able to work at least 8 hours a week.

Therefore I must find that the decision to revoke his exemption from the Newstart activity test was correct, and I affirm the decision of the respondent and the Social Security Appeals Tribunal in that regard. 

I just want to also put on record that I noted Mr Nguyen's frustration at the rejection of his application for disability support pension and his question to me regarding what he could do to become eligible.

In that regard, I must inform Mr Nguyen that I cannot give him legal advice. However, I draw to his attention that there are tests he must meet in section 94(1) and (2) of the Social Security Act if he is to qualify for disability support pension. There are also agencies available who may be able to assist with advice in that regard, and I ask that Ms Green direct Mr Nguyen to those.

DECISION

I move then to make the decision for today. 

The decision under review to revoke Mr Nguyen's exemption from the Newstart activity test is affirmed.

Ms G Ettinger

Senior Member