Rodhouse and Secretary to the Department of Family and Community Services

[2003] AATA 150

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 150

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1028

GENERAL ADMINISTRATIVE DIVISION

Re:         IAN RODHOUSE

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             5 February 2003

Place:            Melbourne

Decision:For reasons given orally at the hearing the Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY ‑ disability support pension - ischaemic heart disease - injury to left leg - whether 20 impairment points

Social Security Act 1991 s94(1), Schedule 1B

REASONS FOR DECISION

5 February 2003  G.D. Friedman, Member

1.      This is an application by Ian Rodhouse (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 12 August 2002.  The SSAT affirmed a decision of Centrelink dated 25 June 2002.  In the Centrelink decision an authorised review officer affirmed a decision to commence payment of disability support pension (DSP) to the applicant from 28 February 2002 and not an earlier date.

2.      At the hearing of this matter on 5 February 2003 the applicant represented himself and Mr M. Todd, 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 s37 of the Administrative Appeals Tribunal Act 1975 (T1-T44).   

BACKGROUND

4.      On 4 July 2001 the applicant lodged a Claim for people with disabilities, illnesses or injuries and he was granted sickness allowance from 11 July 2001.  In May 2002 he was granted DSP backdated to 28 February 2002.  The applicant sought review of the commencement date of the payment of DSP.  On 17 June 2002 Centrelink affirmed the decision on the basis that at the time of his application in July 2001 the medical information available to Centrelink indicated that the applicant was not prevented from working for a period of two years.  After the authorised review officer affirmed the decision, the applicant sought review by the SSAT on 28 June 2002.  Following the decision of the SSAT, the applicant lodged an application with the Tribunal on 26 September 2002.

EVIDENCE

5.      The applicant gave oral evidence that in 1994 he was involved in a motor cycle accident and suffered multiple fractures to his left leg. In 1999 he received compensation from the Transport Accident Commission and was precluded from receiving social security benefits until June 2001.  He said that he has a history of ischaemic heart disease, and was hospitalised after suffering heart attacks in January 2001 and October 2001, and the symptoms have remained unchanged since the first episode.  In November 2001 he again fractured his left leg, and stated that the pain in his leg has remained unchanged since the first accident.

6.      The applicant told the Tribunal that pain in his left leg limits his ability to kneel and walk. He said that since lodging the claim in July 2001 his medical condition has not deteriorated, and that he should be entitled to receive DSP as from that date, or at the latest from October 2001 when his doctor assessed him as being unable to work for at least two years.  The applicant explained that a Centrelink officer had assured him that DSP would be payable from October 2001, and Centrelink should have advised him to lodge a new claim for DSP, instead of making an arbitrary decision in May 2002 to backdate the commencement date to February 2002. 

7.      In a written report dated 16 July 2001 (T7) Dr H. Struck, the applicant’s treating doctor, stated his heart condition was temporary and fluctuating.  He said that the applicant was well now and that he would be able to return to work for at least eight hours a week within six to twelve months.  In regard to pain in the left lower leg, Dr Struck stated that the condition was long term and fluctuating.  In a medical certificate dated 11 October 2001 (T15) shortly after the applicant suffered an angina attack, Dr Struck stated that the applicant was unable to work for at least eight hours a week and was unlikely to be able to return to work for more than two years.

8.      In a written report dated 21 November 2001 (T18) Dr A. Morgan, Health Services Australia, stated that the applicant‘s heart condition was considered temporary as it had not been fully assessed, because test results were awaited following an angina attack in October 2001. In regard to pain in the left lower leg, Dr Morgan stated that the condition was considered temporary because the applicant had suffered a second fracture three weeks earlier and was sill recovering.

9.      In a written report dated 8 May 2002 (T28) Dr J. Hilal, Health Services Australia, stated in regard to both conditions the applicant was unfit for full-time work for at least two years.

CONSIDERATION OF THE ISSUES

10. Section 94 of the Social Security Act 1991 (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; and

(d)the person has turned 16; and

(e)the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)is not an Australian resident; and

(B)is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

The Introduction to Schedule 1B of the Act: Tables for the Assessment of Work-related Impairment for Disability Support Pension 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.

11. Mr Todd submitted that at the date of the application, in July 2001, the applicant did not have an impairment of 20 points or more under the Impairment Tables, so he did not satisfy s94(1)(b) of the Act.

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

13.     The Tribunal accepts the evidence from the applicant that he has suffered from angina for a number of years and that attacks occur from time to time.  The Tribunal also notes that the applicant believes that Centrelink did not provide sufficient information or assistance that would have enabled his claim for DSP to be accepted and processed earlier than February 2002.

14. The Tribunal finds that the applicant satisfies s94(1)(a) of the Act in relation to ischaemic heart disease and injury to the left leg. In relation to s94(1)(b) of the act the Tribunal accepts the medical evidence that, as at July 2001, the heart condition was temporary and fluctuating, and the pain to the left leg was fluctuating. As the conditions had not been diagnosed, treated and stabilised, the condition could not be given a rating under schedule 1B of the Act for the purposes of s94 of the Act. There was no claim made in October or November 2001.

15. For these reasons the Tribunal finds that at the date of the applicant’s claim in July 2001 he did not satisfy s94(1)(b) of the Act, and could not satisfy s94(1). Therefore, he is not eligible to receive DSP from that date.

DECISION

16.     For reasons given orally at the hearing the Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  5 February 2003

Date of decision:  5 February 2003
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr M. Todd, Centrelink