QX03/03; Secretary, Department of Family and Community Services a Nd

[2003] AATA 714

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 714

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/525

GENERAL ADMINSTRATIVE  DIVISION		)
Re		SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And QX03/03

Respondent

DECISION

Tribunal Deputy President, Don Muller

Date14 July 2003

PlaceTownsville

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 23 May 2003.

...................(Sgd)........................

Deputy President

CATCHWORDS

Social Security- cancellation of disability support pension – impairment rating - continuing inability to work - intellectual disorder and knee injury-

Social Security Act 1991 section 94

WRITTEN REASONS FOR ORAL DECISION

30 July 2003 Deputy President, Don Muller      

1. This is an application made by the Secretary, Department of Family and Community Services ("the Department"), for the review of a decision of the Social Security Appeals Tribunal dated 23 May 2002, that set aside a decision of an authorised review officer dated 21 December 2001 to cancel the Respondent’s disability support pension, (“DSP”). The SSAT concluded that the Respondent had an impairment rating of over 20 points and had a continuing inability to work pursuant to section 94 of the Social Security Act 1991 (“the Act”).

2.      The Respondent was born on 3 December 1953 and is 52 years of age. He attended primary and secondary school and completed up to Queensland junior. The poor results he received indicate that the Respondent was below average from an intellectual point of view.

3.      The SSAT also came to the conclusion that the Respondent was below average intellectually from observing him for 2 hours. I agree with this observation after observing the Respondent throughout this hearing.  Never the less this is an impression only.

4.      The history and background to this matter is as follows :

(a)The Respondent was involved in a motor vehicle accident in 1963 and suffered a serious knee injury. It has deteriorated over the years and now represents a fairly serious impairment.

(b)In 1970 he was granted the invalid pension at the age of 17 on the basis that he suffered from mild intellectual retardation.

(c)Between 1970 and 1976, whilst he received the invalid pension, from time to time several attempts where made to rehabilitate the Respondent. This included a temporary job delivering telegrams for the PMG Department.

(d)In 1976, after several failed attempts to rehabilitate and employ the Respondent, he was granted a permanent invalid pension.

(e)He remained on the invalid pension (later the DSP) throughout the 1980’s and 1990’s until 28 August 2001. As a result of a review of his case by Centerlink his DSP was cancelled. This was some 25 years after the DSP was initially granted to the Respondent.

(f)The Department restored the Respondent’s DSP pending an internal review of his case.  On 3 January 2003 the Respondent’s pension was stopped all together.   

(g)The Respondent appealed successfully to the SSAT and in their decision dated 23 May 2003 they set aside the decision of the Department to cancel the DSP.

(h)On 20 June 2002 the Secretary appealed against the decision of the SSAT to this Tribunal.

5.      The various medical assessments relating to the Respondent’s knee condition vary from a severe injury to no injury at all. Dr John Maguire, an orthopaedic surgeon, gave evidence that the Respondent has had the knee injury for over 40 years. On his examination of the Respondent’s asymmetrical thigh circumference, Dr Maguire measured 44 cm on the left compared to 47 cm on the right. This was indicative of marked muscle wasting over a long period of time. Further in his report dated 2 June 2003 he states:

“ I can confirm that your client has sustained an injury to the anterior cruciate ligament and the medial meniscus with early degenerative change in the knee.

He has significant impairment as a result of the knee injury alone. With his lack of formal qualifications, it is expected his only form of employment could be manual type labouring work for which he would not be capable of undertaking due to the impairment associated with his knee injury.

Using the Functional Assessment Guide provided, the rating that your client sustained is 20. This is for demonstrable loss of strength, mobility, stability, balance, and co-ordination with problems associated with climbing, squatting, sitting or kneeling.”

6.      The Tribunal accepts Dr Maguire’s evidence and assessment rating of the Respondent’s knee injury over that of the other medical reports, because he has specialist qualifications. Dr Maguire rated the Respondent’s knee injury at 20 points.

7.      In addition, the Tribunal also accepts that although there may have been improvements to the Respondent’s knee condition in the past his condition is more likely to worsen with age as his arthritis develops.

8.      Regarding the psychological disorder of the Respondent, the Tribunal accepts the specialist report of Dr Michael Likely who described the Respondent’s psychiatric disorder as intermittent explosive disorder. Dr Likely describes this disorder as having caused the Respondent significant subjective distress and function impairment over the years and certainly for about 30 years. This disorder has contributed to his inability to engage in long-term relationships, like family, and to maintain long-term employment. The Respondent has compensated for his disorder by leading an isolated existence.

9.      The Tribunal accepts Dr Likely’s conclusion that the Respondent is suffering from impairment rating of 20 points according to Table 6.

10.     The Respondent’s employment history consists solely of working for his brother who exploited him and paid him $100 per week for over 20 hours work, out of the inheritance left to the Respondent by his mother. His job consisted of driving drunks home in the hotel bus and loading the beer fridge at the drive-in, for which his brother generously gave him $100.00 per week out of their mother’s money that was meant for the Respondent. He has never had a proper job.

11. Without having regard to the Respondent’s intellectual disabilities, his knee and psychiatric disorder total 40 points and satisfy section 94 (1) (b) of the Act. The Tribunal considers that based on the evidence of the Respondent, Dr Maguire and Dr Likely, the Respondent has a continuing inability to work. There is no way the Respondent is capable of working. Retraining him would be ineffective and a waste of time.

12.     In the Tribunal’s view the pension should never have been cancelled.  The Tribunal affirms the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Deputy President

Signed:         C. O’Donovan

Associate

Date/s of Hearing  14 July 2003 -Townsville
Date of Oral Decision                14 July 2003
Date of Written Reasons          30 July 2003
Applicant  Mr G. Riethmuller, Counsel
Respondent  Mr R. McQuinlan, Departmental Advocate