Samia Wright and Secretary, Department of Social Services

[2014] AATA 768

[2014] AATA  768

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6143
Re	Samia Wright
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date of Decision	27 August 2014
Date of written reasons	24 October 2014
Place	Sydney

The Tribunal affirms the decision of the Social Security Appeals Tribunal made on 23 October 2013.

...........[SGD].............................................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY — Disability Support Pension — Whether the applicant has a continuing inability to work — Episodic conditions

LEGISLATION

Social Security Act 1991 (Cth) – ss 94;

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A K Britton

EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS
24 October 2014

1. Ms Samia Wright seeks review by the Administrative Appeals Tribunal of a decision made by a Centrelink authorised review officer on 22 July 2013 and affirmed by the Social Security Appeals Tribunal, to refuse her claim for Disability Support Pension (DSP).

2. To qualify for DSP throughout the claim period, 22 November 2012 to 21 February 2013, Ms Wright must have:

   an impairment(s) totalling at least 20 points assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011) (the Tables)

   participated in a program of support, and

   a “continuing inability to work” because of one or more impairment (ss 94(1)(c) of the Social Security Act 1991 (Cth) (the Act).

3. The parties agree that Ms Wright satisfies the first of these two requirements.

   Did Ms Wright have a continuing inability to work?

4. There is no argument that of Ms Wright’s “permanent” conditions, arthritis has the greatest impact on her capacity to work. Whether she has “a continuing inability to work” turns on whether her impairment(s):

   is of itself sufficient to prevent her doing any work independently of a program of support during the two year period commencing on the date of claim, 22 November 2012 to 22 November 2014 (the relevant period) and

   is of itself sufficient to prevent her from undertaking a training activity during the relevant period, or

   if the impairment does not prevent her from undertaking a training activity ― such activity is unlikely (because of the impairment) to enable Ms Wright to do any work independently of a program of support within the relevant period.

5. The difficult question raised in this case is the proper approach to the assessment of a person’s “continuing inability to work” as defined by s 94(2) of the Act, in circumstances where the relevant condition is episodic in nature and fluctuates in intensity.

6. Ms Wright’s evidence, which I accept, is that she suffers from episodic pain. Her hands are especially affected. She testified that from late 2012 to about March 2013, the pain in her hands was so severe that she was prevented from undertaking any of her usual activities, including preparing meals for her 13-year-old son. She also claimed that during that period she had difficulties undertaking tasks such as shopping, and did so with her hands in ice and with the assistance of her son.

7. On the available material it is difficult to identify at what times during in relevant period Ms Wright’s conditions affected her ability to work. It would appear that in 2012 and 2013, the episodes lasted for varying periods, possibly up to six months.

8. The Tables instruct the decision-maker when assessing impairment (s 11(5)):

   caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episode or fluctuations as appropriate

9. I accept, especially in relation to her hands, that during those periods when Ms Wright’s arthritis condition was especially severe, she had a continuing inability to work, and was prevented from undertaking a training activity. I also accept that during those periods the pain was so intense she was unable to concentrate and to undertake the types of activities involved in most types of work, including light work. However I could not be satisfied that she had a relevant inability to work throughout those periods where her condition, to use the terminology used by her doctors, was not subject to "flare-ups".

10. Ms Wright’s capacity for employment was assessed in 2012 and 2013. A Centrelink job capacity assessor concluded following an assessment conducted in early 2013, that Ms Wright was able to undertake a training activity and light work. In September 2013, occupational therapists employed by CRS, (Documents produced under s 37 of the Administrative Appeals Tribunal Act 1975 at T40) concluded that Ms Wright was fit for light work. More recently her then solicitors, the Legal Aid Commission of NSW, referred Ms Wright to Dr Stephen Eng who reported that her condition, particularly her right upper limb condition, had been, and continues to be, “intermittently affected”, mostly in the warmer months of the year. In his opinion Ms Wright was not prevented from undertaking a training program or some work, at least with a program of support.

11. While I accept that Ms Wright has multiple health problems and clearly, at those points in time where her hands “flare up”, is probably incapable of undertaking any paid employment or training activity, I could not be satisfied that the duration of those periods was, or is likely to be, such that she could be said to have a “continuing inability to work” during the relevant period.

12. Ms Wright as discussed, the eligibility requirements for DSP have tightened over the last couple of years. I accept that you have significant health problems and nothing in my reasons should be taken to indicate otherwise.  I could not be satisfied however that assessed over the relevant period that you satisfy the requirement of having a continuing inability to work because of an impairment(s). For that reason, I must affirm the decision made by the Secretary to refuse your claim for DSP.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

................[SGD]........................................................

Associate

Dated 24 October 2014

Date(s) of hearing	27 August 2014
Applicant	In person
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch