Said and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 11
•7 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 11
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1356
GENERAL ADMINISTRATIVE DIVISION ) Re AYAD SAID Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Regina Perton, Member Date7 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
SOCIAL SECURITY – disability support pension – whether physical, intellectual or psychiatric impairment ‑ whether conditions attract 20 points – whether applicant has continuing inability to work
Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(4) and 94(5)
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
REASONS FOR DECISION
7 January 2008 Regina Perton, Member 1. Ayad Said lodged a claim for disability support pension (DSP) on 31 July 2006 on the grounds of a back injury. On 20 November 2006, Centrelink, which administers DSP for the respondent, determined that Mr Said was not eligible for DSP because his medical conditions did not result in a continuing inability to work for at least 15 hours per week.
2. An authorised review officer of Centrelink (ARO) decided that Mr Said did not qualify for DSP on the basis that he could not be awarded 20 points because his condition was not fully diagnosed, treated and stabilised. Mr Said applied to the Social Security Appeals Tribunal (SSAT) for review of that decision. On 27 March 2007, the SSAT affirmed the decision on the basis that Mr Said’s impairment did not attract sufficient points. Mr Said lodged an application for review of the SSAT decision with the Tribunal on 16 April 2007.
3. The issue before the Tribunal is whether Mr Said met the criteria for DSP at the date of his claim or within 13 weeks.
Legislative Requirements
4. The requirements for qualification for DSP after 1 July 2006 are set out in s 94 of the Social Security Act 1991 (the Act) as follows:
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;
…
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 independently of a program of support within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely(because of the impairment) to enable the person to do any work independently of a program of support 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 a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
94(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support that:
(i)is designed to assist the person to prepare for, find or maintain work; and
(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b)is likely to need such a program of support provided occasionally; or
(c)is likely to need such a program of support that is not ongoing.
94(5)In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work-related training (including on-the-job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…
5. In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 Drummond J stated that the question of an applicant’s continuing inability to work is to be determined by assessing whether the impairment of itself is sufficient to prevent the applicant engaging in any work for which he or she has the requisite skills and experience; and whether the impairment of itself prevents the applicant from undertaking training within two years that would qualify him for a class of work available in Australia. It is then determined by reference to whether training is available, within a two-year period, for work that he or she cannot do now, but would be able to do after training, in light of physical or actual capacities. The Federal Court observed at [27]:
It is also clear from the extraneous material that the legislature intended that the Secretary, in applying this test, should disregard attitudinal factors peculiar to the applicant, such as a lack of motivation to work. Hence the “of itself” qualification to “impairment” in s 94(2)….
Did Mr Said have a Continuing Inability to Work?
6. Mr Said lodged his claim for DSP on the eve of his 38th birthday. He listed the disability from which he suffered as a back injury dating back to January 2003. He stated that he could not participate in rehabilitation, a training program or voluntary work because:
My constant pain and depression makes it hard to commit in writing to something I might not be able to fulfil, so saying unsure is being honest, as I have no idea about what exactly I have to participate in. I will only commit once I know exactly what’s being asked of me and then determining if I can perform those tasks.
7. Mr Said provided documentation to Centrelink concerning his workplace injury as well as medical reports prepared in November 2004 and July 2005 concerning the injury.
8. In a Treating Doctor’s Report dated 28 August 2006, Dr Brian Glassenbury, Mr Said’s general practitioner, stated that Mr Said had suffered a back strain injury in mid‑2002. His back pain was exacerbated by exercise. Dr Glassenbury stated that his patient’s current, past and future treatment comprised the taking of analgesics, physiotherapy and hydrotherapy to treat his back injury. He indicated that the condition would impact on Mr Said for the next two years and that the effect of the condition on his ability to function was expected to fluctuate.
9. In a report prepared for Mr Said’s solicitors on 22 November 2004, Dr Glassenbury indicated that his patient could not return to his past work as a fork life driver, but could undertake sedentary or administrative work.
10. Mr Greg Malham, neurosurgeon. prepared a report dated 7 July 2005 for Mr Said’s solicitors. Mr Malham stated that Mr Said could not return to his pre‑injury duties but would be able to perform light duties with tight restrictions on twisting, bending and lifting and with a break of 15 minutes after sitting or standing for 45 minutes. In Mr Malham’s opinion, Mr Said’s condition had stabilized but further treatment was required to manage the pain.
11. Ms Simone Zaacks, occupational therapist, of Health Services Australia Ltd prepared a Job Capacity Assessment Report on 18 September 2006 at the request of Centrelink. In her report, Ms Zaacks indicated that Mr Said suffered from a spinal disorder and depression due to the stress from the physical condition. She awarded him an impairment rating of 20 points. She reported that Mr Said did not presently have the capacity to work but that he would like to return to full-time work if he is rehabilitated and is physically able to do so. Ms Zaacks suggested that appropriate interventions for Mr Said were a pain management program, vocational rehabilitation and vocational training such as a computer course or sales training. She recorded that his future capacity to work without intervention was 0–7 hours per week but if he receives appropriate intervention he had the capacity to work 30+ hours per week.
12. On 21 September 2006, Dr Lester A Walton, consultant psychiatrist, prepared a report in relation to Mr Said’s workers’ compensation claim at the request of the insurer. Dr Walton diagnosed Mr Said as suffering from an adjustment disorder with anxiety and depressed mood. He reported that Mr Said had not received any psychiatric treatment and that such treatment was not needed given his mild psychological symptoms. Dr Walton stated that Mr Said was affected more by his pain rather than his psychological problems.
13. Mr Said gave evidence by telephone. He said that it was difficult dealing with the situation because he had been given different reasons by people within the system who had rejected his claim for DSP. He said that when he went to see Ms Zaacks, she undertook a quick consultation and then told him that his disabilities warranted 20 points. She also told Mr Said that he would be unable to do any work in the next two years. Mr Said said that he asked whether he could undertake some training through Centrelink. He said that Ms Zaacks had contacted Centrelink who told her not to make an appointment through the Centrelink endorsed rehabilitation agency because Mr Said did not have an employment activity agreement. Mr Said stated that Ms Zaacks then asked him how many hours he thought he could work if he was rehabilitated. He said that he suggested that he could work 30 hours rather than Ms Zaacks. Ms Zaacks was unable to be contacted as she was on maternity leave at the time of the hearing.
14. Mr Said said that all his employment had involved heavy lifting or driving a forklift in a factory environment. He was working continuously from 1994 until his back injury in 2003. He undertook light duties for a while after his injury but ceased work when the business was sold to another company and there was little for him to do. Mr Said said that he had been the factory’s occupational health and safety representative. He has undertaken a number of courses for that position. The factory closed a few months after he stopped working and Mr Said was given a package from which Centrelink was repaid. Mr Said still has outstanding compensation litigation.
15. Mr Said worked for a short time helping his brother in his pet shop where his brother sold pigeons. Mr Said said he just answered the phone and did a little paper work. However, the business was not viable and was closed a month and a half after it opened.
16. Mr Said’s wife is currently working part-time because they cannot meet their financial requirements. Mr Said said that if his worker’s compensation case is successful, he would be repaying Centrelink the interim benefits he received. He currently receives parenting payment as he cares for his children who are both under three years old.
17. Mr Said said that he undertakes an exercise program given to him by his doctor as he wants to recover. However, he is in a lot of pain. He sees his doctor regularly and has recently seen two neurosurgeons. He described the many appointments he has had. He feels frustrated because he is unable to pursue some of the suggested options due to his poor financial situation.
18. Mr Said said that he left school when he was aged fifteen. He was mixing with the wrong people at that time but would now like to complete some retraining if possible. If he was offered a job that he could do, he would accept it immediately.
19. The Tribunal accepts that Mr Said faces barriers which have affected his confidence and motivation to work. However, Ms Zaacks and others, including Mr Said himself, have stated that he would be able to work if he receives retraining. The Tribunal is satisfied that Ms Zaacks is appropriately qualified and accepts her evidence.
20. The Tribunal is satisfied that the impairments suffered by Mr Said at the date of application and over the following 13 weeks were of themselves sufficient to prevent him from working within the next two years (s 94(2)(a) of the Act). However, the Tribunal is not satisfied that he was unable to undertake educational or vocational or on-the-job training during that two year period (s 94(2)(b)(i) of the Act).
21. Consequently, the Tribunal finds that Mr Said did not demonstrate a continuing inability to work and did not satisfy s 94(2) of the Act. Therefore, he was unable to satisfy s 94(1)(c)(i). It follows that he did not satisfy s 94(1). Consequently, at the date of his application and over the following 13 weeks, Mr Said did not qualify for DSP.
22. The Tribunal has not made a finding as to whether Mr Said attracted 20 points for his disabilities at the date of application or during the next 13 weeks thereafter. This would have required evidence from medical specialists and Ms Zaacks. Given the Tribunal has found that he does not met s 94(1)(c)(i) of the Act, there is no need to decide whether he attracted 20 points or not.
23. The Tribunal is only able to consider the period between 31 July 2006 and 30 October 2006 in relation to this application for review. Mr Said is entitled to lodge a new claim for DSP based on his current circumstances, which may well be different to what they were during the relevant 13 week period.
DECISION
24. The Tribunal affirms the decision under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
Signed: Lauren Spragg
Clerk
Date of hearing: 17 September 2007
Date of decision: 7 January 2008
Advocate for the applicant: Self-representedAdvocate for the respondent: Mr D Perdon, Centrelink Legal Services Branch
0
1
0