Power and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1425

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1425

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/746

GENERAL ADMINISTRATIVE DIVISION		)
Re		MR KERRY POWER

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date13 June 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.............[Sgd]..............

Dr M Denovan
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – consideration of whether applicant’s conditions are permanent – whether impairment of 20 or more points under Impairment Tables – whether continuing inability to work – consideration of medical evidence – decision affirmed

Social Security (Administration) Act 1999 (Cth) s 4 of Schedule 2
Social Security Act 1991 (Cth) ss 94, Schedule 1B

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Collins v Minister for Immigration (1981) 36 ALR 598

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

REASONS FOR DECISION

13 June 2007   Dr M Denovan, Member

Introduction

1.      Mr Kerry Power has HIV infection and chronic anxiety. I have to decide whether he is entitled to receive disability support pension in respect of these conditions.

Background

2.      Mr Power lodged a claim for disability support pension (T7) on 30 March 2006. Centrelink considered the claim and on 2 May 2006 rejected it.

3.      Mr Power was dissatisfied with the decision of Centrelink, and on 8 May 2006 he requested a review of the decision. On 9 May 2006 the original decision maker affirmed the decision. On the same day Mr Power requested that an authorised review officer review the decision.

4.      On 24 May 2006 the authorised review officer affirmed the decision.

5.      On 26 June 2006 the applicant applied to the Social Security Appeals Tribunal (SSAT) for review of the decision. The decision was affirmed by the SSAT on 27 July 2006.

6.      The application for review by the Administrative Appeals Tribunal was lodged on 17 October 2006 pursuant to a direction from the Tribunal made on 22 November 2006 extending the time for making an application.

Issues For Determination

7. I have to consider whether Mr Power is entitled to disability support pension in respect of HIV infection and chronic anxiety. Under Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 if the applicant does not qualify for disability support pension on the day on which he made the claim, but qualifies for it within the next 13 weeks, he is taken to qualify for it. He therefore needs to meet the criteria for disability support pension within the period of 13 weeks after the day on which the claim is made, that is from 30 March 2006 to 29 June 2006.

8. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (the Act), that is:

·he must have a physical, intellectual or psychiatric impairment; and

·his impairment must have been of 20 points or more under the Impairment Tables; and

·he must have a continuing inability to work.

Role of the Tribunal

9.      The role of the Tribunal is to review the merits of the decision before it. The Tribunal should reach the “correct [or] preferable decision on the basis of the material before it”: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21 at 31. The Tribunal stands in the shoes of the original decision-maker and considers all evidence anew, bearing in mind statutory provisions and any legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal must base its decision on the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration (1981) 36 ALR 598 at 601.

Material before the Tribunal

10. The only documentary evidence before the Tribunal was the T documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

Evidence of the Applicant

11.     The applicant gave evidence in person. The gist of his evidence is summarised as follows:

12.     Mr Power said that during the 13 weeks following his application, he suffered headaches, arthritic pains, diarrhoea, tiredness and difficulty sleeping. Dr Patten told him that his headaches may be due to stress. He was taking approximately 4 panadol a day, as well as some medication for diarrhoea. Around the same time he was suffering from stress due to the recent death of his brother. Mr Power was required to pack up his brother’s belongings, deal with the people his brother was living with, and take care of his nephew. Mr Power recalled feeling at the time that he just wanted to be left alone. At the time he did not consult a psychiatrist, and still has not done so. Nor has he taken any medication to treat his anxiety at any time.

13.     In March 2006 Mr Power said he was living alone. His nephew came to live with him about June 2006. From March 2006 to June 2006 Mr Power said he cooked his own meals. During the same period he washed his clothes once a month.

14.     Mr Power said that for the three months commencing at the end of March 2006, he was working 15-18 hours a week in a family owned cleaning business. In addition to these hours, he spent about one hour a week preparing paper work. Previously he had employed other people in the family business, however during the period March 2006 to June 2006 Mr Power was operating his business alone. He had approximately six regular clients who he cleaned for 5 days a week, and about eight clients he cleaned for once a week. In addition, Mr Power performed some casual carpet cleaning. This was occasional work only. All the businesses he worked for were located in the same area.

15.     Mr Power said that he increased the number of hours that he worked after applying for disability support pension, and at the time he appeared before the SSAT he was working more than 30 hours a week, however he was having great difficulty coping with that workload.

Medical evidence

16.     The claim for disability support pension was accompanied by a treating doctor’s report from Dr John Patten (T5).

17.     Dr Patten provided the diagnoses of HIV infection and chronic anxiety. In relation to the HIV infection he stated that the applicant had no symptoms and no current HIV impairment, and that no past or current treatment had been undertaken. When describing how the condition impacted the applicant’s ability to function, the doctor said that HIV infection was a stressor impacting on his second condition of chronic anxiety. Dr Patten considered that HIV infection would persist for more than 24 months and would deteriorate during that time.

18.     Dr Patten noted the current symptoms due to chronic anxiety to be a lack of energy for a full day’s work, a need to rest and sleep, and an inability to function in a normal workplace. Current, past and future treatment was said to be nil. When describing how the condition affected the applicant’s ability to function Dr Patten said that the applicant was unemployable except in a sheltered workshop for restricted hours. Dr Patten opined that the condition would persist for more than 24 months however he was uncertain if the effect of the condition on the applicant’s ability to function would change.

19.     On 28 April 2006 Dr O’Kane, a medical adviser with Health Services Australia, assessed Mr Power. Dr O’Kane considered that HIV infection was a permanent condition that was not currently causing any impairment, and assessed the applicant as rating nil impairment points under Impairment Table 20.

20.     Dr O’Kane noted the applicant has suffered multiple recent losses, including the recent deaths of his brother and father. He noted the applicant reports being tired and sleeping a lot but no other symptoms were reported by the applicant on repeated questioning. Dr O’Kane considered the applicant’s chronic anxiety was temporary as it was not fully stabilised and was not currently being treated. Dr O’Kane opined the applicant would be able to work 30 hours or more a week within six months, noting he currently needs treatment for anxiety, and then he could work as a cleaner.

Findings of Tribunal

Impairment ratings

21. Impairment Tables are included in Schedule 1B of the Act. Before an impairment rating can be assigned under the Impairment Tables the condition must be considered permanent. To be considered permanent, a condition must have been diagnosed, treated and stabilised, and will more likely than not, persist for the foreseeable future.

22.     In order to assess whether a condition is fully diagnosed, treated and stabilised I must consider:

·what treatment or rehabilitation has occurred,

·whether treatment is still continuing or is planned in the near future,

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

23.     The Respondent contends that the applicant’s chronic anxiety condition cannot be assigned a rating under the Impairment Tables because it was not a treated, stabilised or permanent condition. I agree. Mr Power has received no treatment for this condition, and so it cannot be said that it is fully diagnosed, treated and stabilised. Further Dr O’Kane considers the condition temporary and Dr Patten was uncertain about prognosis. It cannot therefore be said that the condition is more likely than not, going to persist into the foreseeable future. As the condition is not permanent for the purposes of the legislation, it cannot be assigned a rating.

24.     The Respondent accepts the applicant’s HIV infection is a permanent condition. I agree. The evidence of Dr Patten and Dr O’Kane is that the condition is permanent.

25.     I have difficulty with the Respondent’s contention that the applicant’s HIV infection is properly rated at 10 points under Table 20. That contention is not supported by the medical evidence. Both Dr Patten and Dr O’Kane described the applicant as having no HIV related symptoms or impairment and Dr Patten confirmed he was receiving no treatment. Dr O’Kane assigned an impairment rating of nil points to the HIV infection.

26.     The ARO concluded that the applicant’s tiredness is caused by HIV, and decided that HIV infection should rate at 10 points under Table 20. The reason for this was said to be due to consideration of both the doctor’s reports and the applicant’s own evidence. I find this perplexing. Both Dr O’Kane and Dr Patten attribute the applicant’s tiredness to his chronic anxiety, and there is nothing that I can see in the recorded evidence of the applicant that would support a conclusion to the contrary. Nonetheless I note the SSAT accepted the condition should rate at 10 points under Table 20 and I have decided not to disturb that conclusion.

27.     This means Mr Power has a total impairment rating of 10 points.

Ability to work

28. At the time of the claim, s 94(2) provides that a person will be considered to have a continuing inability to work if:

·The impairment is of itself sufficient to prevent the person from doing any work within the next 2 years, and

·Either,

oThe 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

oIf 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.

29. Work is defined by section 94(5) of the Act as work of at least 30 hours per week, at or above the relevant minimum wage, that exists in Australia, even if not locally accessible by the person.

30.     Any impairment that is not permanent within the meaning of the Act cannot be considered when assessing whether a person has a continuing inability to work Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500.

31.     Dr O’Kane opined that the applicant would be able to work 30 hours or more per week within six months. At the time Dr O’Kane compiled his report, Mr Power was working 14-16 hours a week, and by June 2006 Mr Power had increased his working hours to in excess of 30 per week. The evidence does not support Dr Patten’s opinion that due to his chronic anxiety Mr Power was unemployable except at a sheltered workshop, and in any case, as I have found that chronic anxiety is not a permanent condition, it cannot be taken into account when assessing Mr Power’s ability to work. I find that between 30 March 2006 and 29 June 2006 Mr Power did not have a continuing inability to work.

Decision

32.      Mr Power had an impairment rating of less than 20 points during the claim period, and did not have a continuing inability to work. For these reasons he does not satisfy the qualification criteria for disability support pension. I affirm the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:         Fiona Kamst
  Legal Research Officer

Date/s of Hearing  30 April 2007
Date of Decision  13 June 2007
The Applicant was unrepresented
The Respondent  Ms K Hamilton