Redmond and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1066
•16 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1066
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/192
GENERAL ADMINISTRATIVE DIVISION ) Re DONALD REDMOND Applicant
And
SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr Peter Taylor SC, Senior Member Date16 February 2007
PlaceSydney
Decision The decision under review is affirmed
…................[sgd].....................
Mr Peter Taylor SC
Senior Member
CATCHWORDS
SOCIAL SECURITY- disability support pension- physical, intellectual or psychiatric impairment- failure to satisfy impairment threshold - inability to work- decision under review affirmed.
Social Security Act 1991- s94, Schedule 1B
Social Security (Administration) Act 1999- ss 41, 42, Schedule 2, Part 2, s 4
Xerri and Secretary, Department of Employment and Workplace Relations [2006] AATA 493
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444.
REASONS FOR DECISION
16 February 2007 Mr Peter Taylor SC, Senior Member 1. Mr Redmond worked for most of his life as a truck driver and cleaner. He stopped full-time work in about 1995. He was then aged 50. He continued to work part-time as a cleaner until about 2000. At that time, his feet and knees were causing him problems and he felt he was unable to continue working.
2. Mr Redmond suffered polio as a young boy in the early 1950s. This affected his left leg but not, to any significant extent, and his ability to earn his living and provide for himself, his wife and three children. Mr Redmond has long-standing asthma and was diagnosed with diabetes in about 1998. It was peripheral neuropathy associated with his diabetes that led to the development of foot trouble and ultimately contributed to his decision to stop work.
3. Mr Redmond applied for a disability support pension on 13 May 2005. The application was rejected by the original decision maker (on 23 June 2005), subsequently by the Authorised Review Officer (ARO) (on 19 October 2005) and ultimately by the Social Security Appeals Tribunal (SSAT) (in a decision of 11 January 2006, formally recorded in Reasons for Decision dated 25 January 2006). All the prior decision makers, though with some variations, concluded that Mr Redmond's impairments did not satisfy the 20 point impairment threshold in s 94 of the Social Security Act 1991 (the Act).
4. The principal issues in this application are:
(a)whether Mr Redmond satisfies the point score threshold –because of his foot, leg and back impairments; and
(b)whether Mr Redmond has a “continuing inability to work”.
THE POINTS SCORE ISSUE
5. The earlier decision makers’ assessments were based substantially on medical reports by Dr Wassenaar (dated 3 November 2004) and Dr Pearson (dated 12 May 2005) and a further report (dated 3 June 2005) from a rehabilitation consultant, Ms Boon. Dr Wassenaar’s report had been obtained by Centrelink in connection with a previous application by Mr Redmond for another benefit. Dr Pearson's report accompanied Mr Redmond's 13 May 2005 application. Ms Boon's report was obtained specifically for the purposes of the disability support pension application
6. Since the SSAT decision two further medical reports have been obtained. They are those of Dr Gibson (dated 29 March 2006) and Dr Ramakrishna (dated 20 October 2006). Dr Gibson is an occupational physician. Her report was commissioned on behalf of the Secretary. Dr Ramakrishna's report resulted from a referral following abnormal results in blood tests Dr Pearson had done as part of his ongoing monitoring of Mr Redmond's diabetes.
7. The point score assessments made in the various reports, and the related conclusions of the prior decision makers can be summarised in the following table:
| Table | Impairments | Wassenaar | Boon | ARO | SSAT | Gibson | Ramakrishna |
| 3/11/04 | 3/6/05 | 19/10/05 | 11/1/06 | 29/3/06 | 20/10/06 | ||
| 1 | Asthma | NR | 0 | NR | NR | NR | 20 (Dr includes osteoarthritis, chronic airflow limitation, polio, diabetes, hypertension in this table) |
| 4 | Peripheral neuropathy, polio (L leg) & osteoarthritis (R) knee pain | 10 | 0 | 10 | 10 | 10 | NR |
| 5.2 | Thoracic spine pain | 0 | NR | NR | NR | 5 | NR |
| 11.1 | Reflux // (chronic liver disease) | 0 | 0 | 0 | 0 | 0 | 10 |
| 16 | Prostatitis | NR | 0 | NR | NR | 0 | NR |
| 19 | Diabetes mellitus (& peripheral neuropathy) | 0 | 0 | 0 | 0 | NR | NR |
| 20 | Hypertension // Miscellaneous (asthma) // (not separately specified | 0 | NR | 0 | 0 | NR | NR |
| Total Impairment Table Points | 10 | 0 | 10 | 10 | 15 | 30 |
“NR” = not recorded
8. There is, with an exception to which I will shortly come, a uniformity of medical opinion about Mr Redmond's relevant "physical, intellectual or psychiatric impairments" for the purposes of his claim. They relate to:
(a)diabetes mellitus and associated peripheral neuropathy affecting his feet;
(b)gastro oesophageal reflux disease;
(c)thoracic spinal restriction or pain;
(d)hypertension;
(e)osteoarthritis affecting his right knee;
(f)asthma;
(g)prostatitis; and
(h)polio – in terms of the effect of his childhood disease on his left leg.
Chronic Liver Disease and Dr Ramakrishna’s Report
9. The exceptional medical condition, to which I referred in the preceding paragraph, is chronic liver disease. This was reported only by Dr Ramakrishna. He accorded it a rating of 10 points under Table 11.1 of the “Tables for the assessment of work-related impairment for disability support pension” (the Impairment Tables) in Schedule 1B of the Act.
10. Table 11.1 permits ratings of either 10, 20 or 30 points for "established chronic liver disease" - according to the following descriptive criteria:
(a)10 points – “Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.”
(b)20 points – “Established chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.”
(c)30 points – “Established chronic liver disease. Symptoms (eg ascites, bleeding disorders, hepatic encephalopathy, more severe fatigue, nausea, vomiting) may cause substantial difficulty with most daily tasks.”
11. The descriptive criteria required to justify a 10 point assessment include the prevalence of established disease and overt symptoms. Dr Ramakrishna's report records that Mr Redmond's liver function tests and blood counts were "mildly abnormal" and "not marked enough to contribute to significant disability or impairment of his activity”. Dr Ramakrishna does not recite any history of overt symptoms. Indeed, the thrust of the history reflected in his short report suggests there were none. Mr Redmond gave no evidence of any symptoms to the Tribunal and said that his chronic liver disease had been detected only after Dr Pearson had referred him to Dr Ramakrishna. That referral arose because of blood count abnormalities. The blood tests were themselves undertaken as part of Dr Pearson's regular monitoring of Mr Redmond's diabetic condition. There is no evidence to suggest that Mr Redmond has ever reported any physical symptoms attributable to the chronic liver disease diagnosed by Dr Ramakrishna.
12. In these circumstances, the evidence does not justify Dr Ramakrishna's 10 point rating for Mr Redmond’s chronic liver disease under Table 11.1.
13. Even if I had not formed the view that Dr Ramakrishna’s point score for chronic liver disease was inappropriate, I would not have relied on it in assessing Mr Redmond’s impairment score. The combined effect of ss 41, 42 and Schedule 2, Part 2, s 4 of the Social Security (Administration) Act 1999 is that no disability benefit is payable unless the applicant “qualifies” under section 94 within 13 weeks of the lodgement of the claim: see Xerri and Secretary, Department of Employment and Workplace Relations [2006] AATA 493 at 12. There is no basis for concluding that Mr Redmond was suffering from chronic liver disease, or that he was experiencing any symptoms attributable to it, within 13 weeks of the lodgement of his claim in May 2005. Therefore, Dr Ramakrishna’s opinion in relation to chronic liver disease was, as the Secretary contended, irrelevant to Mr Redmond’s impairment point score
14. Dr Ramakrishna's report is also unique in allocating a 20 point impairment score to Mr Redmond's other impairments. However, he does so without reasoned analysis and asserts that the rating has been derived from Table 1. In fact, Table 1 relates to "Loss of Cardiovascular and/or Respiratory Function: Exercise Tolerance". Yet Dr Ramakrishna's report expressly acknowledges that "formal cardiovascular and respiratory assessment have not [been] performed” – because it fell outside his “area of expertise".
15. It may be that Dr Ramakrishna's reference to Table 1 was a mere slip. The SSAT proceeded on the basis that, in the absence of formal exercise tolerance testing, it was appropriate to assess Mr Redmond's asthma by reference to the miscellaneous conditions criteria in Table 20. Dr Ramakrishna may have intended a similar process of assessment - but one which included Mr Redmond's other conditions as well and his asthma. But even if this was Dr Ramakrishna's intention it is not expressed in his report. Furthermore, the difficulty is that other tables more specifically apply to some of Mr Redmond's impairments and Dr Ramakrishna’s report offers no reasoned basis for choosing to ignore the more specific tables and resort to the miscellaneous ratings contemplated by Table 20. Finally, the apparent lack of attention to accurate detail in Dr Ramakrishna's report precludes reliance upon it as a satisfactory basis for finding that Mr Redmond satisfies the 20 point threshold requirement. For these reasons, I will leave aside any further consideration of chronic liver disease and Dr Ramakrishna's point score assessment.
Asthma
16. The history consistently recorded in the other medical reports is that Mr Redmond's asthma does not cause any significant impact on his daily living. His evidence to the Tribunal was to the same effect. He uses his puffer up to four times a day. With that assistance his asthma is well controlled and does not really trouble him. Neither is it likely that it would adversely affect his ability to work, at least in the relatively sedentary types of jobs most of the medical reports suggest are within the range of his physical abilities. On this basis Mr Redmond’s asthma does not merit any point score - either under Table 1 or Table 20. This is the view that his been consistently reached by all prior decision makers. It is amply justified by Mr Redmond's evidence to the Tribunal.
Reflux
17. Mr Redmond takes daily medication to control his reflux disease. Sometimes he gets food caught in his throat. But this is episodic. The reality is that his reflux disease does not cause Mr Redmond any significant difficulty in his daily living. Again, the consistent prior assessments have concluded that this condition does not merit any score on the Impairment Tables. Neither would Mr Redmond's evidence to the Tribunal justify allocating an impairment point score to this condition.
Hypertension
18. Mr Redmond's hypertension is controlled by medication. It has no appreciable effect on his daily living. It does not merit any point score under the Impairment Tables.
Prostatitis
19. Mr Redmond's prostatitis was reported by Ms Boon as a temporary condition being effectively treated by antibiotics. Dr Gibson's report recorded that Mr Redmond had a history of prostatitis which had resolved. It follows that Mr Redmond's prostatitis does not merit any score under the Impairment Tables.
Thoracic Spinal Impairment
20. There appear to be two aspects of Mr Redmond's thoracic spinal impairment. He has experienced, from time to time episodes of thoracic spinal pain. This can be brought on by prolonged sitting or driving. But it is essentially episodic and, in his evidence to the Tribunal, Mr Redmond said that he could generally manage without significant discomfort provided he could get up and move around regularly during the course of the day. At the time of the proceedings before the Tribunal Mr Redmond had recently had a fall at home. This had made his back sore again. He thought, however, this would was mostly associated with bruising to his back and he expected and hoped his back would soon return to normal.
21. The variability in Mr Redmond’s presentation with spinal pain may account for the variation between Dr Gibson's and Dr Wasenaar’s assessments and that of Ms Boon. In this regard, the Secretary referred to the SSAT’s Reasons for Decision. Paragraph 12 of the reasons records Mr Redmond's evidence that whilst he has had back pain on and off for many years it was not then a problem and recent x-rays indicated that his problems were "wear and tear". Encouraged by that evidence the Secretary submitted that Mr Redmond had not substantiated any point score impairment associated with his thoracic spine.
22. This submission was inconsistent with Dr Gibson’s 29 March 2006 impairment point score assessment. It may have been intended to convey that because Dr Gibson’s assessment had been carried out more than 13 weeks after the May 2005 claim was lodged, it was irrelevant to Mr Redmond’s benefit entitlement. Since ss 41, 42 and Schedule 2, Part 2, s 4 of the Social Security (Administration) Act 1999 required Mr Redmond to establish that he had qualifying impairment conditions within the 13 week period, any subsequent deterioration, if that was what Dr Gibson’s report indicated, was not relevant to his entitlement under the claim lodged in May 2005: see Xerri (supra) at 27.
23. Dr Gibson's report includes her examination finding relating to Mr Redmond's range of back movement. She reported that extension and lateral flexion were both limited to three quarters of the normal range. Later, in allocating an impairment rating of five points, she said that there was a loss of one quarter of normal range of movement "as well as back pain or referred pain with many physical activities and with standing for about 30 minutes but not with sitting or driving for about 60 minutes". Dr Gibson's report included the emphasis I have reproduced. It was obviously intended to highlight her regard to the cumulative criteria in Table 5.2. The table allocates scores of 5 and 10 points respectively according to the following criteria
(a)5 points - “Loss of one quarter of normal range of movement.”
(b)10 points – “Loss of one quarter of normal range of movement as well as back pain or referred pain:
·with many physical activities and
·with standing for about 30 minutes and
·with sitting or driving for about 60 minutes.”
24. Earlier in her report Dr Gibson had recorded that Mr Redmond reported unrestricted sitting - except that sitting in a car for a long period made his leg swell and his back ache. It appears to follow that in allocating a point score of only five under Table 5.2 Dr Gibson did not regard Mr Redmond as having any back difficulties associated with ordinary sitting. She must also have thought that the unquantified "long period" she recorded that Mr Redmond was able to drive without pain was in fact longer than the “about 60 minutes” referred to in Table 5.2.
25. Dr Wassenaar’s recorded history was that of minor, intermittent spinal pain that was not of any functional significance. Another note described the pain as "discomfort with prolonged driving". Dr Wassenaar allocated a zero point score - indicating an opinion that Mr Redmond had a normal or nearly normal range of spinal movement. Dr Pearson did not deal with the topic in his report. Ms Boon's report recorded a history of minimal difficulty with driving except for a peripheral neuropathy related difficulty in relation to speed awareness. She also recorded Mr Redmond was able to sit for more than two hours. Otherwise the report does not refer specifically to spinal pain or discomfort.
26. In his evidence to the Tribunal Mr Redmond said that he could drive for a couple of hours, that he was able to sit without discomfort but that his back pain comes and goes. His evidence was that it was not really a problem if he was able to get up and walk around regularly, about every hour. But Mr Redmond’s need to move is not confined to back pain. His reported sitting endurance is limited by the neuropathy affecting his feet.
27. Given the history recorded by Dr Wassenaar, I do not consider it would be correct to conclude that Dr Gibson’s point score assessment is attributable to deterioration in Mr Redmond’s thoracic spine since May 2005. Having regard to the totality of the evidence, and in particular, the fact that Dr Gibson appears to have paid scrupulous attention to the cumulative criteria in Table 5.2, the preferable conclusion to draw is that Mr Redmond’s spinal impairment merits a 5 point score according to the criteria in Table 5.2.
28. I am not satisfied that Mr Redmond’s thoracic spine, taken on its own, adversely affects either his range of movement or sitting endurance sufficiently to merit a 10 point impairment score under table 5.2. The history and examination details in her report make it appropriate to accept Dr Gibson's conclusion about the impairment point score under Table 5.2. Her report evidences the close regard she had to the criteria in the table and the care with which she expressed her conclusion. Furthermore, it is generally consistent with the other evidence – specifically that of Ms Boon (in relation to Mr Redmond’s sitting endurance). For these reasons, I allocate a five point impairment score for Mr Redmond's thoracic spine impairment.
Polio, Peripheral Neuropathy and Osteoarthritis
29. The legacy of Mr Redmond's childhood polio is relative wasting of his left lower leg and a degree of stiffness in that ankle. Although this had relatively little significant impact upon his working life Mr Redmond feels he has a relative weakness in his left leg and this has resulted in a disturbed gait. He feels the problem has become worse over time, particularly more recently. He thinks this is a consequence of his childhood polio. It appears, however, that Mr Redmond's lower limb limitations are mostly concerned with peripheral neuropathy in his feet and osteoarthritis in his right knee. The peripheral neuropathy is, of course, a consequence of his diabetes. He gets numbness in his feet and he complains of a constant burning discomfort in his feet when in bed at night. Mr Redmond's right knee condition is attributable to a work injury of about 10 years ago. This caused him to be hospitalised twice, most recently in April 2003. He reported to Dr Gibson that his right knee had been less symptomatic since that hospitalisation.
30. The combined effect on Mr Redmond, of these three conditions - peripheral neuropathy, the polio legacy and the right knee injury - has been difficulty in standing and walking. Dr Wassenaar recorded the effect as moderate, apparently principally because of pain associated with neuropathy. That assessment merited an impairment point score of 10 according to the criteria in Table 4. Ms Boon recorded a history that Mr Redmond reported walking 500 to 1 km daily, she observed that he had a slight limp. In his 27 July 2005 review application Mr Redmond challenged the report that he could walk at least 500 m. He said he could not walk anywhere near that distance in fact.
31. It is not clear what evidence, if any, Mr Redmond gave to the SSAT about the distance he was able to walk. In reliance upon Dr Wassenaar's report, however, the ARO had accepted an impairment score of 10 and the SSAT came to the same conclusion. That conclusion was based on the view that Mr Redmond had "moderate" interference with walking and standing.
32. The only other report to deal specifically with Mr Redmond's walking ability is that of Dr Gibson. She says that Mr Redmond cannot walk any long distance but can manage up to 200m. She concluded that Mr Redmond merited an impairment point score of 10 (under Table 4) on the basis that he had only a "moderate" interference with walking.
33. There is a significant discrepancy between the history reported by Ms Boon and that noted by Dr Gibson, in relation to Mr Redmond's inability to walk at least 500 m. During his evidence to the Tribunal, Mr Redmond was taken to Ms Boon’s specific and detailed notes of the history she obtained. Mr Redmond ultimately said that he thought that he probably could walk 500 m in June 2005 but that his ability had decreased since then. Given the promptness of Mr Redmond's challenge (in his 27 July 2005 review application) to Ms Boon’s report, and the history recorded by Dr Gibson, I do not think it is appropriate to accept Ms Boon's notes as persuasive evidence that Mr Redmond could walk more than 500 m.
34. Table 4 allocates impairment points of 10 or 20 according to the following criteria:
(a)10 points – “Demonstrable loss of strength, mobility, stability, the balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4 km/h). Can walk further after resting.”
(b)20 points – “Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as the cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting …”
35. In her report Dr Gibson adopted the 10 point impairment score - basically following the precise wording in Table 4. She added that Mr Redmond "indicated that he was unable to walk 500 metres or more. But he could walk further after resting”. This passage appeared in Dr Gibson's specific answers to the questions that have been posed for her. Earlier in the report, however, she said that Mr Redmond "finds he cannot walk any long distance, but can manage up to 200 metres, before he is restricted by right knee pain, left ankle pain and left leg weakness".
36. This apparent inconsistency in the history and formal finding sections of Dr Gibson’s report is not, in my opinion, significant in relation to identifying the appropriate point score impairment under Table 4. My own finding, having regard to Mr Redmond’s evidence to the Tribunal, is that he probably could walk up to 500m in about July 2005. In any event, the Table 4 criteria (as reproduced above) emphasise the criteria of “moderate” and “major” difficulty in walking as the principal reasons to differentiate between the 10 and 20 point score assessments. The self reported walking endurance distances are alternative criteria. Moreover they are criteria that the Guide to the Impairment Tables warns should be applied by an assessment of the maximum time spent in the activity rather than self reported distances – because of their variable reliability. The difficulty of getting a reliable assessment of Mr Redmond’s actual walking distance capacity is indicated by the differences in the histories recorded by Ms Boon, on the one hand, and Dr Gibson, on the other – and his evidence to the Tribunal that he probably could walk 500 m in June 2005.
37. The preferable conclusion from the whole of the evidence is that Mr Redmond’s difficulties with walking are “moderate” rather than “major” and that the appropriate impairment point score under Table 4 is 10 – as assessed by Dr Gibson.
38. It follows that Mr Redmond’s total impairment point score is 15 – rather than the 10 points determined by the SSAT. The 15 point score is below the s 94 threshold. It is not therefore necessary to also consider the “inability to work” issue. I have decided to do so, however, because of the evidence relating to the application of Tables 4 & 5 and the “fine” assessment involved in the point score assessments that have been made under those tables.
THE “INABILITY TO WORK” ISSUE – s 94(1)(c)(i)(as at May 2005)
39. Mr Redmond turned 60 shortly after he made his 13 May 2005 application. There is no evidence, however, that the Secretary has determined that s 94(4) applies to him. That section states that “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”. There was also no evidence about what would constitute his “locally accessible labour market” or the availability of particular work in that market – whether regard is had to his May 2005 residential address at Gerringong or his current address at Werri Beach. Consequently, s 94(4) cannot apply to the present application and therefore pursuant to s 94(3)(b) the potential availability to Mr Redmond of work in his “locally accessible labour market” is not relevant to an assessment of his “inability to work” for the purposes of s 94 of the Social Security Act 1991.
40. The concept of inability to work is dealt with in s 94(2)-(4) of the Act. There are a number of elements to consider. The first of these is whether Mr Redmond’s impairment is “of itself” sufficient to prevent him doing “any work within the next 2 years”. In this context “work” means at least 30 hours work per week in an Australian job at award wages or above.
41. The meaning of the “any work” concept in s 94(2) was addressed in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444. In what has become regarded as the leading case, Drummond J held that the expression “any work” should be understood as meaning work of a kind that was within the applicant’s actual capacity. In various places His Honour used the expressions like “existing skills and experience” (see for example paragraphs 26, 28 32 & 36). But in paragraph 30 His Honour used the more expanded description of “work for which that person was already fitted by reason of his actual work skills and work experience, ie, work of the kind he was … capable of doing without the need for any training”. This more expansive description better conveys the notion that the relevant inquiry is about the person’s capacity to do the hypothesised job – rather than whether they have past experience, or actual skill in undertaking work of that particular kind.
42. In the present case Dr Wassenaar’s report included his opinion that Mr Redmond was capable of doing sedentary work for 30 hours a week or more and that Mr Redmond would also benefit from some vocational assistance in order to help him develop and identify transferable skills. Ms Boon’s report made essentially similar comments. She suggested a number of, admittedly not glamorous, occupations, including ticket seller, car park attendant, video store attendant and florist delivery driver. Dr Gibson also concluded that Mr Redmond’s impairments, as she described them in her report, would not impact upon his performing a sedentary role, provided he had the capacity to change his position on a frequent basis. She regarded him as capable of working 30 hours a week or more.
43. The only assessment favouring the conclusion that Mr Redmond has a relevant inability to work is that of Dr Ramakrishna. I have already referred above to the lack of careful detail in Dr Ramakrishna’s report. This absence of detail also affects his opinion of Mr Redmond’s work capacity. The report does not include any description of Mr Redmond’s actual limitations and disabilities. In the absence of such a description Dr Ramakrishna’s opinion seems to be more a generic surmise about Mr Redmond’s abilities having regard to the nature of the medical conditions Dr Ramakrishna recorded or diagnosed. In these circumstances his opinion cannot be preferred to those in the other reports to which I have referred. Neither does it provide a reasoned basis on which the Tribunal, having regard to the available evidence, could itself come to an affirmative conclusion that Mr Redmond had a relevant “inability to work”.
44. In his evidence to the tribunal Mr Redmond was cross examined about the work suggestions contained in Ms Boon’s report. Mr Redmond acknowledged that he probably did have the capacity to work as a ticket seller, video store attendant or perhaps even as a florist delivery driver. He said he was prepared to try. It was clear from his evidence, however, that he was entirely sceptical that any work of that kind would in fact be available to him. His scepticism on that account may be entirely justified but, for the reasons I indicated earlier, it is neither a relevant consideration nor a conclusion which the Tribunal could embrace on the available evidence.
45. In the circumstances I am not satisfied that Mr Redmond’s impairments are themselves sufficient to prevent him from “doing any work within the next 2 years.” That conclusion dictates the result that he has not established his qualification under section 94 of the Act. Accordingly the decision of the SSAT made on 11 January 2006, and formally recorded in the Reasons for Decision dated 25 January 2006, is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Peter Taylor SC, Senior Member.
Signed: .......... [Emily Gadsby]...........
Associate
Date/s of Hearing 30 January 2007
Date of Decision 16 February 2007
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms P Lee of Centrelink Legal Services
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