Payne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 458

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 458

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No 2007/5252

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALAN PAYNE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date3 June 2008  

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Isenberg
  Senior Member  

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – physical impairment – Applicant denies intellectual impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – Applicant denies entitlement – decision affirmed.  

Social Security Act 1991 – section 94 and Schedule 1B

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568

REASONS FOR DECISION

3 June 2008   Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1. Centrelink granted Mr Payne disability support pension in 1993 on the basis of physical and intellectual impairment such that he satisfied the qualifying requirements of section 94 of the Social Security Act 1991 (“the Act”). He was considered to have a continuing inability to work which is also required by the Act.

2.      On 6 March 2002 Mr Payne wrote to Centrelink alleging that the granting of his disability support pension (“DSP”) stigmatised him, therefore he claimed damages of $457,073.02 salary loss and also punitive damages.

3.      On 18 July 2007 an authorised review officer affirmed the decision that Mr Payne had been qualified to receive disability support pension since 27 July 1993.  The Social Security Appeals Tribunal (“SSAT”) affirmed this decision.  Mr Payne now seeks review of that decision.

ISSUE BEFORE THE TRIBUNAL

4.      The main issues to be determined in relation to this matter are:

a) Whether Mr Payne has a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b)    Whether Mr Payne has a continuing inability to work because the impairment prevents him from doing any work within the next two years; and:

i)the impairment of itself was sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or

ii)because of the impairment such training is unlikely to enable him to do any work within the next two years.

BACKGROUND

5.      Mr Payne identified the following as the issues he wished the Tribunal to consider:

1.    Due to a communication problem, and Social Security inability to acknowledge facts eliminated any potential career to secure a financial background.

2.    The granting of the Disability Support Pension was extremely unbeneficial to my circumstances at that time as DSS communicating incompetence left me unemployable.

I did not require Social Security interference to find suitable employment. (As my occupation was/is limited by a physically disability) I was in the in the process of obtaining TAFE tutorial in Accounting procedures in response to a former occupation of operating a Taxi Business. Damages caused by 1992 communication issue’s are irreparable.

3.    Due to Social Security’s communication problems, if this activity finds a debt owed to Centrelink will confirm, and enforce communication negligence.

The SSAT were determined that I respond to a file which has been acquired as a result of Social Security’s communicating difficulties, which would only enhance derogatory issues caused by a communication errors.

6.      Mr Payne said that he had been injured in a bicycle accident when he was about 10 years old.  He received substantial damages which were managed by the Public Trustee.  In 1981 he bought a taxi with the funds. 

7.      He drove the taxi until 1989.  He said that he had to give up the taxi work because of “personal hygiene issues”, that is, he was incontinent.  He had initially told Centrelink that he was not making enough money from the business.

8.      He sold the business and then took a holiday for a while, as he had not had a break for two to three years.  During that time he lived off the proceeds of sale.

9.      He did a correspondence course in Japanese because he thought that might lead to a career.   He “didn't go far” and learned only numbers and basic greetings.  In 1991 he commenced a bookkeeping and keyboard course.  He was given a “C pass” for bookkeeping but was unable to manage the keyboard because his fingers had been “locked around a steering wheel” for too long.  He said he had been offered extra tutoring but did not know why.

10.     In 1992 he commenced an “accounts clerical” course at TAFE and had a certificate.

11.     He alleged that he was “forced to apply” for DSP because the (then) Department of Social Security (“the Department”) had not recognised his association with Cumberland cabs.  This association involved his position as a road monitor and the fact that he has been on the management committee. He claims that if the Department had acknowledged that work, they would have realised he was not intellectually impaired.  He contends that being on the DSP has been degrading and humiliating. As a consequence, he has been defamed and has been “kept unemployed”.

12.     He had been on DSP ever since its grant in 1993, except for one period of 6 months when he did some on-the-job clerical training at a school which had been organised through the Commonwealth Rehabilitation Service (CRS).  Jobmatch had tried to push him into the school environment but he did not think that would provide him with financial security, unlike if he had an accounting job.  He had applied for a lot of jobs by himself without success.  When he applied for the jobs he would always note that he had run a taxi business.  He did not think that Jobmatch was aware that he had operated the taxi business.

13.     In 1972 his right knee was “worn out” and the kneecap was removed.  The left kneecap was removed in 1982.  He said that when he got out of the cab after a long shift it took a while for the circulation to get going in his legs and there had been occasions when his knees had collapsed under him.  He had a job in 1970 at which time he could “walk fast” but by the time he gave up the cab he was walking more slowly.  He had “never” been able to run.  He had difficulty going down steps and always needed to hang onto something.  He said that it was only now that he is unable to stand for long before his legs start aching, and that it had it has only been in the last 2 to 3 years that he has acquired a stick. 

CONSIDERATION OF THE EVIDENCE AND FINDINGS

14.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

15.     In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), a further bundle of documents was tendered by Mr Payne.

Did Mr Payne have a physical, intellectual or psychiatric impairment of 20 points or more?

Knees

16.     Mr Payne did not appear to be disputing that he had problems with his knees, with both kneecaps having been removed by 1982.  His evidence indicates that his knees would occasionally give way and by the time he gave up the cab in 1989 he was walking more slowly than before.  He has needed the assistance of a handrail when going down steps.

17.     His account was consistent with the claim form dated on 14 December 1992, which also added that he was unable to lift heavy objects.  On 15 February 1993 Mr Payne’s GP, Dr Gerrard, wrote of Mr Payne’s mobility problems due to his lack of kneecaps.  In the claim form dated 22 July 1993, Mr Payne’s inability to lift heavy objects and his difficulty descending stairs and the need for the assistance of handrails were noted.  In the doctor’s report of the same date Dr Gerrard wrote that Mr Payne’s knees reduced his ability to undertake prolonged standing and physical work. 

18.     On 11 August 1993 the report of the Commonwealth Medical Officer (“CMO”) identified that Mr Payne was unable to squat and that his gait was slightly unsteady.  He considered that Mr Payne was able to stand for only one hour and that he could only carry 5 to 10 kgs.  He noted that Mr Payne’s knees occasionally gave way and sometimes became swollen and required elevation and bandaging.  Mr Payne also needed to rely on the (chair’s) arms to get out of a chair.  The CMO assessed Mr Payne’s condition as attracting an impairment rating of 10 points.  The relevant descriptor is as follows:

TEN Walks with intermittent difficulty, such as locking or giving way, without falling. Caution needed on steps and uneven grounds, or when running. Pain or claudication restricts walking to 500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

19.     I note, too, the descriptors for 15 and 20 points:

FIFTEEN Walks at normal pace on level ground, but has constant difficulty up and down steps and over uneven ground.

…

TWENTY Can walk at moderately reduced pace on flat ground and

·is unable to manage stairs or ramps without rails, or

·is unable to rise from the sitting position without the assistance of one hand.

20.     I note that at the hearing there was some evidence that Mr Payne’s walking pace was reduced and that he was unable to manage the descent of stairs without rails and that he was unable to rise from the sitting position without the assistance of one hand.  This was consistent with the available contemporaneous medical evidence.  Referring to the above descriptors, this would attract a rating of 20 points.  On balance therefore I consider that it is appropriate to allocate 20 points in respect of Mr Payne’s lower limb function under Table 4.

Head injury

21.     In the claim form dated 14 December 1992, “brain damage” was also recorded as a relevant condition.  In the claim form dated 22 July 1993, Mr Payne also referred to the 1963 head injury as a medical condition which he claimed would stop him working.

22.     On 15 February 1993 Dr Gerrard wrote that Mr Payne had suffered “a head injury with serious consequences 30 years ago”.  In his doctor’s report dated 22 July 1993, Dr Gerrard wrote that Mr Payne’s brain damage caused slurred speech and general slowness. 

23.     In July 1993 Mr Payne was assessed by the CRS. During this assessment, the CRS felt that they were shown insight into Mr Payne’s short-term memory loss and his need for extra time to process information. 

24.     The CMO’s report dated 11 August 1993 noted that Mr Payne’s head injury caused a speech impediment and slowness.  Mr Payne’s memory and concentration were described as only “reasonable”, although his intellectual impairment was considered to be mild. 

25.     A more detailed work capacity evaluation was conducted in September 1993.  While Mr Payne was able to satisfactorily complete tasks his speed at undertaking basic clerical functions was slow. 

26.     In a letter dated 3 November 1993 his Jobmatch case officer, Mr Pannell, described Mr Payne’s cognitive processes as “quite often inappropriately emotionally coloured”.  He considered that Mr Payne did “not posses the skills at a productivity level” that would be acceptable in industry.  He referred to the courses undertaken by Mr Payne:

Mr Payne has for the past three years been undertaking clerical courses at Baulkham Hill College of TAFE in an attempt to gain qualifications in this area. He commenced course number 7318 (Clerical Duties & Bookkeeping), which is a rudimentary course, in 1991. He has still to pass the general keyboard (word processor) applications component despite tutoring from a TAFE disability support tutor, extra examination time, repeating the subject and spending two years on a twelve month course. This component is the most elementary for an able bodied student. Alan has still to pass it, but it is possible that TAFE will not offer tutorial support in the future due to repeated failure and a lack of resources.

In 1992 Alan commenced course number 8649 (Accounts Clerical) at the same TAFE. The key subject comment of this certificate course, Accounting Principles and practice, Alan has failed to pass so far. Again, this is despite tutorial support, extra examination time and spending two years on a twelve month course.

27.     On the basis of his slurred speech and slowness, Mr Payne was assessed under Tables 9 and 11 at 10 points.  The relevant ratings are respectively as follows:

[Table 9]

TEN Mild impairment: appropriate use is made of accumulated knowledge, and reasonable judgement is shown in routine daily activities most of the time. Difficulties are apparent in new circumstances.

[Table 11]

TEN Speech is of enough intensity and vocal quality for many of the needs of everyday speech, eg:

·is adequate with low background noise, but is heard with some difficulty in vehicles or public places; or

·has many inaccuracies, but is easily understood by strangers; or

·is slow or discontinuous, conveying the distinct impression of difficulty.

28. Schedule 1B of the Act suggests that only one rating from either Table 9 or 11 can be made as both the speech impediment and the cognitive impairment are based on the loss of the neurological function. On balance, I consider that it is appropriate to assign an impairment rating of 10 points in respect of his head injury under Table 11.

Combined impairment

29.     Taken together Mr Payne’s combined impairment rates at least 20 points.

Did Mr Payne have a continuing inability to work because of the impairment?

30.     In this regard, I place considerable weight upon the letter of Mr Pannell dated 3 November 1993.  He, as Mr Payne’s Jobmatch case officer, was charged with trying to find Mr Payne a job.  In the letter he wrote that it had been recognised at an early stage that Mr Payne did not possess the skills and industry level necessary for him to compete for advertised positions in the normal way.  It was decided that it would be best for Mr Payne to be placed within an organisation on a wage subsidy scheme.  He acknowledged that the CRS had considered Mr Payne capable of the “light clerical duties” although he had no previous paid working experience in the field at all.  He noted that there was no likelihood of Mr Payne being able to return to taxi driving due to pains in his back and lower limbs, which was associated with long periods spent sitting in and driving a vehicle, as well as his incontinence.  He further noted that Mr Payne’s TAFE performance had been poor.

31.     When considering the issue of work in this context, it is the “normal workplace” against which Mr Payne’s abilities are to be judged, not the workplace of the “benign employer”: Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 at 525. “Work” is that which is carried out in the “open workplace” and not work that is insulated from dynamic and unpredictable demands: Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568 at 572.

32.     I note that the CRS assessment of 17 September 1993 recorded Mr Payne’s inability to do low level reaching or crouching due to his knees.  He was transported to and from the assessment by a Commonwealth car, but nonetheless reported continuous discomfort in his lower back and stiffness in the knees.  Even while seated he had difficulty with a stocktake task.  When walking he appeared stiff and unsteady and when ascending stairs he was slow and unsteady.  He reported pain in the left knee all day.  Only a job where he could avoid the use of steps, standing for greater than 30 minutes, low level reaching, and crouching, would be appropriate.  A speech pathologist was recommended.  On 18 October 1993, Dr Gerrard, his GP, told Centrelink that Mr Payne was totally unfit for physical work because of his knee injury and considered him only capable of undertaking the most basic of office tasks.

33.     I do not think that there was a light clerical job which Mr Payne could undertake which would permit him to avoid steps, standing for greater than 30 minutes, low level reaching, and crouching.  Even if there were such a job that could accommodate Mr Payne’s physical limitations, I do not think such a job could also accommodate Mr Payne’s cognitive limitations.

34.     I therefore find that Mr Payne was, at the relevant date, qualified for DSP because he has an impairment, which is properly rated at least 20 points under the Impairment Tables.  I also find that because of the impairment, he had a continuing inability to undertake any work. 

DECISION

35.     The decision under review is affirmed. 

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ..............[sgd].....................
  Associate

Date of Hearing        28 April 2008
Date of Decision  3 June 2008
Appearance for the Applicant        Self-represented

Solicitor for the Respondent  Mr Ken Bullock, Centrelink Legal Services