Nguyen and Secretary, Department of Social Services (Social services second review)

[2017] AATA 724

Nguyen and Secretary, Department of Social Services (Social services second review) [2017] AATA 724 (24 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2911

Re:Tu Nguyen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:24 May 2017

Place:Sydney

The decision under review is set aside, and I decide, in substitution, that Mr Nguyen was qualified for the DSP at the date of cancellation.

...............[sgd].........................................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – multiple impairments – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – decision set aside and decision made in substitution

LEGISLATION

Social Security Act 1991 s 94

CASES

Freeman v Department of Social Security (1988) 15 ALD 671

Crossland and Secretary, Department of Family and Community Services (2004) AATA 864
Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011

REASONS FOR DECISION

Ms N Isenberg, Senior Member

24 May 2017

BACKGROUND

1. The Applicant, Tu Than Nguyen, commenced proceedings in this Tribunal for a review of a decision to cancel his Disability Support Pension (DSP).

2. Mr Nguyen received the DSP from 6 December 2007. The decision to cancel his DSP was made on 14 October 2015. The central question is whether he can satisfy the medical criteria in s 94(1) of the Social Security Act 1991 (Cth) (the Act) at the time his DSP was cancelled: per Freeman v Department of Social Security (1988) 15 ALD 671 at 674.  That decision was affirmed on internal review and at the first level review by this Tribunal (AAT1).

3. The first question is whether Mr Nguyen had a physical, intellectual or psychiatric condition: s 94(1)(a) of the Act. The Respondent accepted that Mr Nguyen satisfies that criterion, in that at the date of cancellation he suffered poliomyelitis.

4. Mr Nguyen also claimed he suffered post-traumatic stress disorder, tuberculosis, stomach problems, right knee problems and an ear problem (which may be tinnitus).  Before an allocation of impairment points for these other conditions can occur, I must be satisfied each is fully diagnosed, fully treated, and fully stabilised; otherwise no impairment points can be assigned to the condition.

5. The next question is whether Mr Nguyen is able to be allocated at least 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011 (the Determination).  Each of the claimed conditions is considered in turn.

   POLIOMYELITIS (POLIO)

6. The Applicant, who came to Australia in 1985, gave evidence that he contracted polio when he was about 4 years old.  It is clear that he has impairment to the upper and lower limbs as a result of his childhood polio.  In a Job Capacity Assessment (JCA) report dated 12 October 2015 the assessors, a Registered Psychologist and Rehabilitation Counsellor, noted that due to the nature of polio and the limited interventions available, this condition was fully diagnosed, treated and stabilised.  I accept that to be the case.

7. The respondent contended that the Applicant’s polio should be assigned 5 points under Table 2 – Upper Limb Function and 10 points under Table 3 – Lower Limb Function.

8. As to upper limb function, Mr Nguyen, who is right-handed, told the AAT1 that, as a consequence of the polio, he has weakness of his left arm and his left shoulder is deformed.  He is able to dress himself (in a seated position), do up buttons, although with some difficulty, use a spoon and/or fork for eating, write with a pen or pencil and use a telephone.  It is difficult for him to unscrew a bottle of lemonade.  He is able to take a carton of milk out of the refrigerator.  Mr Nguyen has some difficulty with handling very small objects, though he is able to hold and use a pen or pencil.

9. The Applicant gave evidence before me that even eating is difficult for him because he can hardly use his left hand and arm at all, and uses his right hand “with difficulty”.  He often uses a sling, or holds his arm up against his upper body.  He can shower himself, including washing his hair, and he has a chair in the shower.  He estimated the maximum weight he could lift and carry was up to 3 kg, providing the item was not awkward in shape.  Lifting anything heavy causes pressure.  He said he lives with his children who all work or study and he looks after the home.  He can mop the floor and can do so without lifting the bucket.  The children cook and leave food for him.  The Applicant said in his evidence that he can manage the kettle to make a cup of coffee, and attend to re-heating leftovers for his meals when his children are absent.  He can wash up.  He can open a carton of milk by holding it against him and using a fork to “flip” it open.  His children do up his shoes, and he must wriggle his feet into the already-laced up shoes.  He takes care of the dog, but does not walk the dog.  He spends his day watching movies or sleeping.  He is not computer literate so has no cause to be using a standard computer keyboard.

10. In a medical certificate dated 13 January 2015 the Applicant’s treating doctor, Dr Yusuf Bulbulia, wrote of the weakness in the Applicant’s left arm, indicating that the Applicant was “unable to use left arm effectively...unable to use left arm, poor hand grip and loss of power”.

11. The JCA of 8 October 2015 considered the Applicant could manage most daily activities requiring the use of hands and arms but had some difficulty with picking up heavier objects, handling very small objects and doing up buttons.  The JCA noted the Applicant reported some difficulty doing up buttons and zippers, due to reliance on the right hand and limited to “nil support” with the left hand.

12. The relevant portion of the applicable Table provides as follows:

5

There is a mild functional impact on activities using hands or arms.

(1)      The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)      picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)      handling very small objects (e.g. coins);

(c)      doing up buttons;

(d)      reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

1. It is clear that the Applicant meets the criteria for a mild functional impairment.  The Respondent contended that there is no evidence there is a moderate functional impact on activities using hands and arms, in particular, that there was no evidence the Applicant has difficulty picking up a 1 litre carton full of liquid, picking up a light but bulky object requiring the use of two hands, holding and using a pen or pencil, doing up buttons or tying shoelaces, using a standard computer keyboard or unscrewing a lid on a soft-drink bottle.

2. The Respondent submitted that the Applicant had overstated the impact of his polio, especially in his claim that his left arm is “totally unusable” which is inconsistent with his evidence of being able to make coffee, wash the dishes, mop the floor and feed the dog.

3. Of the five elements of a “moderate” impairment relevant to the Applicant, I accept that he has difficulty picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box); doing up buttons or tying shoelaces; and unscrewing a lid on a soft-drink bottle.  While he was able to lift a 1 litre carton full of liquid he could only open it using a work-around method.  I therefore find that the Applicant’s upper arm condition attracts a rating of 10 impairment points under Table 2.

4. As to lower limb function, the Respondent contended that the Applicant should be assigned 10 points under Table 3 – Lower Limb Function.

5. The Applicant said that his legs are weak and the muscles are wasted.  The Applicant gave evidence that he felt his condition is deteriorating, as he is prone to falls – 7-8 times a year – because of weakness in his legs, and because they are not “parallel”.  He required an operation only recently, and his buttock was affected which has made sitting difficult.  When driving he has difficulty braking.

6. He said if he sits on the floor he has difficulty getting up again, so he never sits on the floor.  He can only walk for 3-5 minutes until he has to stop and rest.  At the station he always uses the lift, and on the train he is usually offered a seat.  He said that on weekends the children may take him to the shops, where he always uses the escalator.  He otherwise must use a handrail when negotiating stairs.  While he can drive, he rarely does so – about once or twice per month – because he suffers a lack of concentration.  His children dissuade him from driving.  He has difficulty turning the wheel and braking.

7. The Respondent relied on the JCA of 8 October 2015 where there was considered to be a moderate functional impact on activities using lower limbs.  The Applicant had reported he was unable to walk far outside his home and needed to drive or get other transport to local shops or community facilities.  He was able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.  The JCA noted the Applicant reported he had to rest after “3-5 minutes of walking at a time” but tried to maintain 40 minutes of walking exercise daily.  The Applicant also reported he was unable to stand for more than one hour at a time and had difficulty climbing in and out of his children’s motor vehicles due to the high step and therefore refrained from travelling in their cars.  However, the JCA noted the Applicant reported being able to use buses and trains independently and drive a small car/sedan type vehicle.

8. In his report dated 13 January 2015 Dr Bulbulia wrote that the Applicant had “residual effects of weakness of…both legs”, was “unable to walk fast” and “walking with a limping gait”.

9. In a medical certificate dated 17 November 2016, Dr Pope referred to the Applicant’s “weakness and pariesis of his left body...and leg”.

10. The relevant portion of the applicable Table provides:

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

1. The Respondent contended that there is no evidence there is a severe functional impact on activities using lower limbs.  It submitted that there is no evidence the Applicant is unable to walk around a shopping centre or supermarket without assistance, walk from the carpark into a shopping centre or supermarket without assistance and requires assistance to use public transport.  I observe he was able to travel to Vietnam 18 months ago.  I agree that, on the available evidence, the Applicant’s functional impairment is best addressed by a rating of 10 impairment points from Table 3.

   RIGHT KNEE

2. The Applicant also contended that he has had surgery on his right knee 4-5, or possibly 7-8 years ago.  While the pain has improved, he has decreased ability to bend his knee.

3. Dr Bulbulia’s report dated 6 December 2007 referred to the Applicant’s “right knee condition”, which affected the Applicant’s ability to walk fast and bear excessive weight, as scheduled for operation.  Dr Pope, in his medical certificate of 17 November 2016 did not refer to this condition independently of the effects of the Applicant’s polio.

4. The JCA of 8 October 2015 noted the Applicant reported “knee pain aggravated in cold weather and reduced tolerance with standing for a prolonged duration”.

5. There was no medical evidence regarding details of the diagnosis of the condition, nor the treatment undertaken.  In the absence of medical evidence, I am unable to conclude that the condition has been fully diagnosed, treated and stabilised.  Consequently, the condition cannot be rated under the Tables.  I observe though, that in any event the Applicant’s functionality would be assessed under the same Table as the effects of his polio on his lower limb functionality, and would therefore not be assigned an additional rating than that assigned because of the effects of his polio.

   PSYCHIATRIC CONDITION

6. The Respondent contended that the Applicant’s anxiety and depression could not be verified as permanent, fully diagnosed, treated or stabilised and does not therefore attract any impairment points.

7. Dr Bulbulia, in his report of 6 December 2007 recorded the Applicant suffered from “anxiety/depression” from 2000.  At a JCA dated 17 August 2007 the Applicant reported that he had seen a psychiatrist in the past and had recently started medication.  There was no evidence about who he had consulted or what medication he had been prescribed at that time.

8. The Applicant said in his evidence that he first consulted Dr Law, Consultant Psychiatrist, in 2013, and provided a copy of a referral letter dated 28 May 2013, noting that at that time he presented with a history of insomnia and recurrent nightmares.  He was medicated and this has been changed 2-3 times.  He does not know what the medication was because his children manage his medication.  Dr Law confirmed that he was first consulted by the Applicant in 2013.

9. In his medical report of 13 January 2015 Dr Bulbulia made no reference to a psychiatric condition.

10. In a JCA conducted in October 2015 the Applicant reported that he was irritable in crowded situations, had impaired sleep and fluctuations in mood.  He said he had seen a psychiatrist or a psychologist twice in the past.

11. On 11 May 2016, Viet Thang Tran, Registered Psychologist, provided a report noting the Applicant was referred to him under the GP Mental Health Care Plan.  Mr Tran stated the Applicant met the criteria of “mixed anxiety and depression as a result of coping with chronic pain and family issues”. Mr Tran stated the disorder was “severe based on symptoms report”.

12. The Applicant said he started seeing Dr Law again in 2016 because of severe headaches and asked for some stronger medication.  He has seen him several times since then, including the day prior to the hearing.

13. On 2 November 2016, Dr Law provided a report and concluded that the Applicant “most probably” suffered from symptoms of post-traumatic stress disorder, causally related to his early exposure to scenes of mortalities and morbidities in war-time Vietnam.  He considered the Applicant unable to work or look for work for up to eight hours per week, and that that would probably continue for two years. He counselled the Applicant and prescribed medication.

14. Dr Law provided a further report on 15 November 2016, following a further consultation on 9 November 2016.  Dr Law confirmed that he had previously seen the Applicant in 2013, and that, at that time, indicated the Applicant experienced symptoms of anxiety and depression.

15. The Applicant reported he “seemed” to be able to sleep slightly better after taking the prescribed medication.  Dr Law confirmed the “clinical opinion” expressed in his report of 2 November 2016 that the Applicant “most probably” suffered from symptoms of post-traumatic stress disorder.  Dr Law gave the Applicant 10 impairment points for his “PTSD”.  He referred to the Applicant sometimes neglecting self-care and meals; he is not actively involved when attending social activities; he has strained interpersonal relationships and his marriage has broken down; he has difficulty focusing on complex tasks for more than 15 minutes; and he has major problems in organising complex tasks.

16. In another report dated 8 December 2016 Dr Law reported that the Applicant continued to be worried, anxious, and dejected.  In another report dated 1 February 2017 Dr Law wrote that the Applicant reported being easily nervous and dejected, had poor concentration, and was tired and forgetful easily.  He had spells of severe headaches and some dizzy spells.  He still had bad dreams and nightmares.  His medication was increased.

17. I accept that the Applicant is currently, and was at the date of cancellation, psychiatrically unwell.  However, it is unclear whether the Applicant suffers from anxiety/depression and/or PTSD.  Mr Nguyen’s psychiatric condition was not fully diagnosed because the diagnosis of PTSD was made by Dr Pope and “anxiety and depression” by Dr Bulbulia.  Both doctors are general practitioners and, as the Determination requires that a psychiatric diagnosis be made by an appropriately qualified medical practitioner – that is, a psychiatrist, or a general practitioner with the assistance of a clinical psychologist, neither diagnosis can be relied on.  Further, despite having treated the Applicant in 2013 and on several occasions since November 2016, Dr Law has not made a clear diagnosis of the Applicant’s psychiatric condition.  As a result, his psychiatric condition(s) cannot be regarded as fully diagnosed.  Even if I were persuaded that diagnosis of the precise psychiatric condition is not required, I cannot be satisfied that his condition was fully treated or stabilised, by the date of cancellation.  For example, in his report of 15 November 2016, more than 12 months after the date of cancellation, Dr Law noted the Applicant reported he “seemed” to be able to sleep slightly better after taking the prescribed medications.  I observe that the Applicant only resumed his consultations with Dr Law and his counselling with Mr Tran after the date of cancellation.

1. I therefore find that the Applicant’s psychiatric condition was not fully diagnosed, treated or stabilised at the cancellation date and it cannot be rated under the Impairment Tables.

   STOMACH PROBLEMS

2. The Applicant said in his evidence that his stomach problems dated from 2013.  About 10 times a day he has a sharp pain in his stomach like it is being pinched and his stomach makes a rumbling noise.  He said he was investigated for a duodenal ulcer and he thought he might have had cancer.  He had been prescribed some medication but had ceased it when he learned it may lead to intestinal bleeding.  Instead, he takes herbal remedies which alleviate the problem about half the time.  Otherwise he has to lie down.

3. The Respondent contends that there is no medical evidence to corroborate the Applicant’s claim that he suffers from a condition in relation to his stomach.  At the hearing, though, the Applicant produced a gastroscopy report dated 4 February 2013.  There a preliminary diagnosis was made of duodenal ulcer.  There was no evidence from Dr Bulbulia or Dr Pope about whether the diagnosis was confirmed, and what treatment has been provided.  The Applicant provided a printout from Wilson Road Clinic dated 29 April 2016 when the Applicant had presented, requesting a gastroscopy and a colonoscopy, due to symptoms of gastro-oesophageal reflux disease (GORD) and irritable bowel syndrome (IBS).

4. There is insufficient medical evidence about this condition.  Accordingly, it cannot be said that it has been fully diagnosed, treated or stabilised at the cancellation date.   It therefore cannot be rated under the impairment Tables.

   TUBERCULOSIS

5. It was not until the report of Dr Pope dated 6 February 2017 that it was indicated the Applicant had “tuberculosis pulmonary with cavitation”.  The Applicant gave evidence that he went to Vietnam about a year and half ago for 5-6 weeks to visit his ill father.  He returned with “a cough” which was later found to be tuberculosis.  He said he has difficulty breathing and his chest feels “heavy”.  However, he did not claim the condition to impact upon his functionality.

6. On 20 February 2017, a further JCA was conducted by a Registered Psychologist and Registered Occupational Therapist.  The JCA referred to the report of Dr Pope dated 6 February 2017 which noted “tuberculosis pulmonary with cavitation” with an “onset” date of 2016.  Although this condition was considered to be fully diagnosed, treated and stabilised, on the basis that there was no evidence to suggest ongoing symptoms or impacts from this condition pertaining to the period of consideration or ongoing specialist or medication requirements, no points were assigned for the Applicant’s tuberculosis.

   LOW BACK PAIN

7. The Applicant gave evidence that about one and a half or even 4-5 years ago he started experiencing low back pain.  He said this makes it very hard to stand after sitting down.  He can walk only 20-30 metres before he feels pain in his hips.  In his report of 6 February 2017 Dr Pope referred to the Applicant’s scoliosis and to a vertebral crush fracture at L3.  An x-ray report dated 14 December 2016 confirmed mild scoliosis but also referred to mild anterior wedging of the L3 vertebra, and mild degenerative change at L4/L5 and L5/S1.  There was no evidence of the vertebral “crush fracture” at L3 to which Dr Pope had referred.

8. The Respondent contended, and I agree, that this condition was not fully diagnosed, treated or stabilised at the cancellation date and it cannot be rated under the Impairment Tables.  There is no medical evidence of ongoing symptoms or impacts from this condition at the date of cancellation.

   POSSIBLE TINNITUS

9. In his evidence the Applicant said he suffers noises in his ears “like a cricket”.  He said he had had a punctured eardrum but had no further information to provide about that and it was unclear if this was related to the “noises”, which from his description may be tinnitus, which he said he has suffered from for 20 years and disturbs him “all day”.  He said he had been referred to an “ear specialist” 8-9 years ago but could not afford the consultation fee.  His local doctor told him that the condition can never be fully treated.

   TOTAL IMPAIRMENT RATING

10. Therefore I find that that at the date of cancellation, 14 October 2015, the Applicant’s conditions attract a total of 20 points under the Impairment Tables and he thereby satisfies s 94(1)(b) of the Act.

    CONTINUING INABILITY TO WORK

11. Having come to the view that the Applicant meets the requirement of 20 impairment points, I turn to consider if he had a continuing inability to work for the purposes of s 94(1)(c)(i) of the Act.

12. The term continuing inability to work is defined in s 94(2) of the Act, and as at the relevant date this section stated:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    …

    (a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b) in all cases—either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

13. The Secretary contended that the Applicant is able to work at least 15 hours per week within the 2 years from the date of cancellation, and therefore he does not have a continuing inability to work under s 94(2)(b) of the Act.

14. Work means work of at least 15 hours a week at award wages or above which exists anywhere in Australia: s 94(5) of the Act.  A training activity means education, pre-vocational training, vocational training, vocational rehabilitation or work related training (including on-the-job training) whether or not that activity is designed specifically for people with impairments: s 94(5) of the Act.

15. The concept of continuing inability to work is not confined to the claimant’s ability to undertake work for which they are trained and skilled.  Rather, it refers to their capacity to undertake any work.  It involves consideration of whether the claimant has an impairment which, of itself, prevents the person from undertaking any work, or which prevents the person from undertaking educational or vocational training for a period of two years, if such training is not prevented by the impairment, then it is necessary to consider whether such training would be likely to enable a person to undertake any work for the next two years.[1]

    [1] See also Crossland and Secretary, Department of Family and Community Services (2004) AATA 864.

16. A consideration of whether a person has a continuing inability to work should be based on “...the person’s capacity to do the hypothesised job – rather than whether they have past experience, or actual skill in undertaking work of that particular kind”.[2] ^[3]  The Applicant last worked in 2003, as a cleaner.

    [2] Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066.

    [3] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451.

17. Factors that are consequential upon the person’s impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person’s continuing inability to work under s 94(2).  The only exception to this is where medical evidence indicates that the lack of motivation is directly attributable to the impairment.  There was no evidence that the Applicant lacks motivation to work.

18. It is also clear from the terms of s 94(2) that “the impairment” referred to in that section is the impairment which has been assessed as permanent and thereby attracting a rating under the Impairment Tables.  The result is that any impairment for which a rating cannot be assigned under s 94(1)(b) of the Act cannot be considered; in the present matter that includes the Applicant’s mental health condition, his stomach problems, his right knee, his back, his tuberculosis and his ear problem.

19. In determining whether a person has a continuing inability to work, I must also disregard the availability of work in the person’s locally accessible labour market: s 94(3)(b), and the availability to the person of a training activity: s 94(3)(a).

20. As far back as 2007 when the Applicant was assessed through a JCA, he was considered to only have a work capacity of 8-14 hours per week.  He was considered to have a future capacity of 15-22 hours per week, whether with or without intervention.  Light less skilled work was suggested, with an example of light process work.

21. The Applicant was assessed for the purposes of the review of his DSP by the JCA in October 2015.  He was considered to have a capacity for work within 2 years with intervention capacity of 15-22 hours per week.  The JCA report noted he had reduced endurance for work related tasks due to weakness and pain of the left arm and lower limbs which are aggravated by prolonged sitting, walking and standing.  He needed a sling to support his left arm to alleviate discomfort.  He was acknowledged to have limited capacity for tasks requiring bilateral manual handling and is reliant upon his right hand for most tasks.  Without intervention his capacity was considered to be 8-14 hours per week.  It was acknowledged that he may have difficulty obtaining work within his physical capabilities and to manage his symptoms in a work context.  The report did not specify what “disability specific support” it advocated but I observe that, at best, it was put that with this, the Applicant may be able to achieve 15-22 hours per week.  He would need a “suitable” work environment, but again the report did not specify what that might be.  He would need rest breaks and “limited activity” during the day, to “enhance work retention over the long term”.  That final remark, it appeared to me, was not overly optimistic of the likelihood of the Applicant’s continued employability.  Light less skilled jobs were considered suitable with an example given of light seated duties.

22. In the most recent JCA report dated 8 March 2017 data entry was a suggested duty.  Although the report purported to have taken into account his inability to communicate in English, it failed to take into account the Applicant’s very limited use of his left hand and arm generally and the previous report’s acknowledgement of a limited capacity for tasks requiring bilateral manual handling.  Further, it did not take into account that the Applicant is computer illiterate.

23. I therefore find that that, as at the date of cancellation, the Applicant had a continuing inability to work during the relevant period as required by s 94(1)(c) of the Act.

24. While there was some evidence about whether the Applicant receives carer pension with respect to his ex-wife, who may also live in the premises he occupies, the Applicant denied that he had provided much at all in the way of care for her.  He said after he had confused her medication, he had ceased being her carer, but this appears to be at odds with Centrelink’s current information about payments to him, about which he professed to be ignorant.  The Applicant conceded he may have to pay money back to Centrelink, but this, no doubt, will be canvassed elsewhere.  Relevantly to the matter at hand, there was no evidence which might assist in relation to his ability to work.

    DECISION

25. In the circumstances, I am satisfied Mr Nguyen satisfied the medical criteria in s 94(1) of the Act at the date of cancellation. The decision under review is therefore set aside, and I decide in substitution that Mr Nguyen was qualified for the DSP at the date of cancellation.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

...............[sgd].........................................................

Associate

Dated: 24 May 2017

Date(s) of hearing:	29 March 2017
Applicant:	In person
Solicitors for the Respondent:	Ms A Wong, Mills Oakley Lawyers