Re Sargeant and Secretary, Department of Family and Community Services

[2005] AATA 1076

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1076

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/178

GENERAL  ADMINISTRATIVE DIVISION

Re:         FRANCES SARGEANT

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             28 October 2005

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY - disability support pension - depression, back pain, visual and hearing impairment - whether continuing inability to work

Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(4), 94(5), Schedule 1B

REASONS FOR DECISION

28 October 2005  G.D. Friedman, Senior Member

1.      This is an application by Frances Sargeant (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 21 January 2005.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 9 December 2004, to refuse the applicant’s claim for disability support pension (DSP).

2.      At the hearing the applicant represented herself, and Ms K. Paul, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T15), one exhibit (Exhibit A1) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 13 August 1952.  After working at the Government Printing Office and the Department of Education, she found work as a telephone switchboard operator in a hospital and worked there for a number of years.  She has a number of medical conditions including depression/anxiety, back pain, bilateral hearing loss and vision impairment.  She ceased work on 9 September 2004.

5.      On 14 September 2004 (T3) the applicant applied for DSP.  On 29 September 2004 Centrelink refused the claim because she did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension ( The Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).

6.      On 9 December 2004 an authorised review officer affirmed the decision on the   basis that the applicant did not have a continuing inability to work.  On 10 December 2004 the applicant sought review of the Centrelink decision by the SSAT.  Following the SSAT decision to affirm the decision, the applicant lodged an application for review with the Tribunal on 2 March 2005.

7.      The issue before the Tribunal is whether the applicant has a continuing inability to work.

EVIDENCE

8.      The applicant gave oral evidence that she is not well enough to work.  She said that her physical conditions are reasonably stable, but her depression prevents her from undertaking employment.  She confirmed that since February 2005 she has been receiving treatment from a psychiatrist and takes anti-depressant medication.  The applicant stated that she is able to perform some household duties and exercise her dogs, but sitting for extended periods and prolonged gardening are difficult because of her back injury.  She told the Tribunal that she reads, walks a little, visits her mother in the country whenever possible, and her friends on weekends, but she becomes tired easily.  She said that she has difficulty in concentrating, and lacks the necessary motivation or confidence to contemplate further employment.

9.      Under cross-examination the applicant agreed that she would need retraining before she could return to the workforce, as it is no longer possible for her to be a telephone switchboard operator.  She said that she would be prepared to try participating in a suitable program.

10.     In a written report dated 13 September 2004 (T4, page 37) Dr E. Sadauskas, the applicant’s treating doctor, stated that the applicant’s depression/anxiety and back pain were likely to have an impact on the applicant’s ability to function for more than 2 years.  She said that her back condition was likely to somewhat improve in the next 2 years, and the effect of the depression/anxiety condition was uncertain.  In a further written report dated 1 October 2004 (T8, page 52) focussing on the applicant’s depression/anxiety, Dr Sadauskas stated that the applicant was physically capable of performing clerical duties, and that the effect of the condition was expected to fluctuate within the next 2 years.

11.     In a written report dated 21 February 2005 (Exhibit A1) Dr J. Rogers, psychiatrist, stated that he has treated the applicant for depression, precipitated by work stressors and exacerbated by her back injury, since February 2005.  He said that she continues to experience symptoms that include lowered mood, lack of energy, lack of motivation, social isolation and anxiety and tension.  He stated:

Her prognosis for any significant improvement in the next two years is poor.  She will not be able to return to work either in a part-time or fulltime capacity for the next two years.  She will continue to be seen on a regular basis for psychiatric treatment.

In oral evidence Dr Rogers said that, hypothetically, the applicant might be capable of undertaking some kind of rehabilitation or training program, but his concern was that any stress arising from such a program would be detrimental to her well-being, and he was not persuaded that she would be capable of attending a general program.  He added that, in any event, she would not be capable of working 30 hours per week.

12.     In a written report dated 31 May 2005 (Exhibit R1) Ms C. Donald, rehabilitation consultant, noted that the applicant was suffering from depression and back pain that impacted on her capacity to work. Ms Donald stated:

…Currently: Customer reports that she has learnt in the last 8 or 9 months to manage her back condition.  Her conditions remain relatively stable.  Her confidence appears to continue to be a barrier to a return to work. It is my professional opinion that, given access to the recommended interventions, the customer could return to full-time employment within 2 years.  It is important to note that retraining may be beneficial to improve confidence and provide a greater skill base for returning to the work force…

In oral evidence Ms Donald stated that in preparing her report she took into account the comments by Dr Rogers, and noted that he appeared to be unaware of the specific programs utilising technological advances that are now available.  Ms Donald said that, despite suffering from depression, the applicant has been able to perform tasks such as limited household duties, visiting her mother and friends, and exercising her dogs, and that she would be able to benefit from personalised rehabilitation and training programs offered by relevant authorities.

13.     In a written report dated 27 September 2004 (T10) Dr A. Goh, Health Services Australia, stated that the applicant was temporarily unfit for full-time employment due to her back pain, which he said was improving with intervention.  He noted that her depression/anxiety was managed by antidepressant medication and psychological treatment.  Dr Goh concluded that the applicant could work at least 30 hours per week in a clerical or administrative position.

14.     In a written report dated 5 November 2004 (T10, page 66) Dr T. Paulson, Health Services Australia, reviewed the matter after the applicant provided further information.  He agreed that the applicant was temporarily unfit for work because of her back condition, and said that if the condition improves she could undertake appropriate light work that accommodated her limitations.

CONSIDERATION OF THE ISSUES

15.     Section 94 of the Act provides:

94(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;

…

94(2)       A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)the 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

(ii)if 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.

…

94(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 educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4)       For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5)       In this section:…

work means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

Schedule 1B of the Act,(at page 2334) in so far as it is relevant, provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

16.     Ms Paul conceded that at the date of the claim, or within 13 weeks of that date, the applicant had an impairment of 20 points or more under the Impairment Tables (s 94(1) (b) of the Act). However, she maintained that the applicant did not have a continuing inability to work because she would be able to return to employment of at least 30 hours per week within 2 years with appropriate vocational training.

17.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing.

18.     The Tribunal places considerable weight on the conclusions by Ms Donald, an experienced and qualified rehabilitation consultant, whose report was comprehensive and took into account the applicant’s particular needs and limitations.  The Tribunal also accepts the reports from Dr Goh and Dr Paulson, who recommended a gradual return to work following appropriate vocational rehabilitation, because the applicant’s conditions would prevent her from undertaking her previous occupation of telephone switchboard operator.

19.     The Tribunal prefers these reports to that of Dr Rogers, whose opinion that the applicant would not be able to return to part-time work in the next 2 years, did not take into account the availability of specially-designed rehabilitation programs with modern technology.  The Tribunal notes the symptoms of the applicant’s depression/anxiety, but takes into account her evidence that she is able to perform some household tasks and that she is prepared to try participating in an appropriate training program.

20.     The Tribunal concludes that the applicant would be able to attend appropriate educational or vocational training designed to retrain her and assist her return to the workforce.  For this reason, the Tribunal finds that the impairments suffered by the applicant are not of themselves sufficient to prevent her from undertaking educational or vocational or on-the-job training during the next two years (s 94(2)(b)(i) of the Act); or that such training is unlikely (because of the impairments) to enable her to do any work within the next two years (s 94(2)(b)(ii) of the Act).

21. Consequently, the Tribunal finds that the applicant has not demonstrated a continuing inability to work and does not satisfy s 94(2) of the Act. Therefore, she is unable to satisfy s 94(1)(c)(i), and s 94(1)(c)(ii) does not apply. It follows that she cannot satisfy s 94(1). Consequently, at the relevant time, the applicant did not qualify for DSP and the decision to refuse the claim was correct.

DECISION

22.     The Tribunal affirms the decision under review.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  10 October 2005

Date of decision:  28 October 2005
Advocate for the applicant:          Self-represented

Advocate for the respondent:       Ms K. Paul, Centrelink