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

[2018] AATA 1080

Nunn and Secretary, Department of Social Services (Social services second review) [2018] AATA 1080 (27 April 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5251

Re:Michelle Nunn

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:27 April 2018

Place:Hobart

The Tribunal affirms the decision under review.

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

Ms A F Cunningham, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – severe impairment – hearing loss – continuing inability to work provision is not satisfied – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) ss 94(1), (2), (3) & (3B)
Social Security (Administration) Act 1991 (Cth) ss 41, 42 & cl 3, Sch 2

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

SECONDARY MATERIALS

Department of Social Services, Guide to Social Security Law

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

27 April 2018

1. The applicant, Michelle Nunn seeks a review of a decision of the Social Services & Child Support Division of this Tribunal (AAT1) dated 7 August 2017 which affirmed an earlier decision to refuse her claim for disability support pension (DSP).

   Background

2. Ms Nunn can hear very few sounds at all and has suffered from bilateral sensori-neural hearing loss since she was 15 years old. She uses lip-reading to converse with others but does not use Auslan.

3. Ms Nunn applied for DSP in April 2016 and her claim was rejected by the Department of Human Services (the Department). The decision to reject her claim was affirmed by an authorised review officer (ARO) in March 2017 and again by the AAT1 on 7 August 2017. Ms Nunn’s claim for DSP was refused on the basis that she failed to meet the qualification requirement for a continuing inability to work.

4. This Tribunal conducted a hearing on 7 March 2018. Ms Nunn attended in person and gave oral evidence. Live captioning software was used to accommodate Ms Nunn’s hearing loss. She tendered a medical report from Dr Jackson dated 22 April 2016. Mr Sparkes appeared on behalf of the respondent and called no evidence but tendered the T documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   ISSUE

5. The issue for the Tribunal to determine is whether Ms Nunn satisfied the qualification requirements of s 94 of the Social Security Act 1991 (the Act) during the relevant period, particularly those relating to a continuing inability to work.

   RELEVANT LEGISLATION

6. The criteria for qualification for DSP are contained within s 94 of the Act. Subsection 94(1) relevantly provides as follows:

   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;

   (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d) the person has turned 16; and

   (da) in a case where the following apply:

   (i) the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

   (iii) if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; 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; and

   (ea) one of the following applies:

   (i) the person is an Australian resident;

   (ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

7. The requirements set out in s 94(1) are conjunctive and a failure to satisfy one will result in failure to qualify for DSP. The respondent conceded that Ms Nunn satisfied the requirements in s 94(1)(a), (b), (d), and (e) but not s 94(1)(c).

8. Also of relevance are the continuing inability to work provisions contained in subsections 94(2) and (3) which state:

   Continuing inability to work

   (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.

   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 a training activity; or

   (b) the availability to the person of work in the person's locally accessible labour market.

9. Severe impairment is defined in s 94(3B) which reads:

   A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

10. ‘Work’ is defined in s 94(5) as work that is of at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if such work is not within the locally accessible labour market.

11. Other relevant legislation is contained in the Social Security (Administration) Act 1991 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination). The applicable table in the Impairment Determination is ‘Table 11 – Hearing and other Functions of the Ear’. Relevant government policy is set out in the Department’s ‘Guide to Social Security Law’.

12. Sections 41 and 42, and Schedule 2, clause 3 of the Administration Act provide that the DSP qualification period begins on the date of claim and ends 13 weeks later. Therefore, Ms Nunn’s qualification period is from 19 April 2016 until 18 July 2016. Whether she qualified for DSP since, or prior to that time, is an irrelevant consideration. If a person becomes qualified outside that timeframe then a new claim would need to be lodged.

    CONSIDERATION AND FINDINGS

13. The Tribunal accepts that Dr Jackson’s medical report confirms that Ms Nunn has suffered from bilateral sensori-neural hearing loss since she was 15 years old. The report states that she ‘can hear very few sounds at all and cannot take part in normal conversations’ and that this has a severe functional impact on activities involving hearing.

14. The evidence supports a finding that her hearing loss was fully diagnosed, treated and stabilised at the time of her claim and causes a ‘severe impairment’ which attracts 20 points under Table 11. Such a finding was made by the AAT1 and is accepted by the respondent.

15. Because Ms Nunn’s hearing loss is categorised as a ‘severe impairment’, she is not required to satisfy the Act’s program of support requirements. However she is still required to satisfy the continuing inability to work requirements set out in s 94(2)(a) and (b) of the Act. These provisions require that the impairment prevents a person from doing any work independently of a program of support within two years and that the impairment prevents training or, if it does not, then the training is unlikely, because of the impairment, to enable a person to do any work independently of a program of support within the next two years.

16. In a statement accompanying her application for review, Ms Nunn stated that she considers that because she has been assessed as having a severe impairment, ‘it must be said that I have a continuing inability to work because of the impairment meeting 20 points.’

17. Ms Nunn rejected the AAT1’s findings regarding her ability to find work. In her evidence she said she would ‘love to work’ and has been attending courses in an effort to increase her skills and opportunities for employment. Ms Nunn told the Tribunal that she has previously completed a business course and is now undertaking a further, advanced business course. For the past six years, she has also participated in a support program with Centrelink on a fortnightly basis in order to maintain her Newstart allowance and she is currently engaged with Multiple Solutions to assist her in obtaining employment.

18. Ms Nunn’s evidence was that she has never disputed that she is not able to work. She referred to various jobs she has undertaken in the past including mail and parcel sorting with Australia Post, and cleaning and work at a motel. However, she maintained that her hearing loss makes it very difficult for her to obtain work. Ms Nunn said she would love to work in an administrative role although she would not beable to work as a receptionist as she cannot hear on the telephone.

19. Ms Nunn was assessed by a job capacity assessor (JCA) in February 2017 as having a baseline work capacity of between 15 and 22 hours per week. The report noted:

    [c]lient can speak well however at times she can have some difficulty lip reading, and may need written communication to relay job instructions / procedures. Client has not learnt Auslan to date.

    Suitable work for Ms Nunn was assessed as ‘[m]oderate less skilled’ in the manufacturing or services industry.

20. Ms Nunn maintains, and the Tribunal does not doubt, that she has encountered significant difficulty in obtaining suitable work on account of her significant hearing loss. However this is not a matter the Tribunal can take into account in determining her capacity to undertake work for the purposes of qualification for DSP.

21. The evidence does not support a finding that Ms Nunn’s impairment, bilateral sensori-neural hearing loss, prevents her from undertaking any work of 15 hours per week or more. The evidence is that she is physically able to undertake such work independently of a program of support. It is not relevant that Ms Nunn is currently engaged in a support program with Centrelink to maintain her Newstart allowance.

22. Ms Nunn agrees that she has the physical capacity to undertake certain types of work if it was made available to her. The fact that suitable employment may not be available in her local area or that employers may be reluctant to engage persons with a disability such as hearing loss, cannot be taken into account by this Tribunal in determining Ms Nunn’s capacity to undertake any work.

    CONCLUSION

23. On the basis of the Tribunal’s finding that Ms Nunn does not satisfy the qualification requirement for a continuing inability to work, it must accordingly affirm the decision under review that Ms Nunn was not qualified for DSP during the qualification period.

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

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

Associate

Dated: 27 April 2018

Date(s) of hearing:	7 March 2018
Applicant:	In person
Counsel for the Respondent:	Mr Brian Sparkes, FOI and Litigation Branch, Department of Human Services